PEOPLE OF MI V SHAWN J SILVER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 23, 2000
Plaintiff-Appellee,
v
No. 212508
St. Clair Circuit Court
LC No. 98-000946-FH
SHAWN J. SILVER,
Defendant-Appellant.
Before: Cavanagh, P.J., and Holbrook, Jr., and Kelly, JJ.
HOLBROOK, JR., P.J. (dissenting)
I respectfully dissent. While I agree with the majority’s conclusion that the trial court erred in
refusing defendant’s request for an instruction on the lesser included misdemeanor offense of entering
without permission, MCL 750.115; MSA 28.310, I disagree with the conclusion that this error was
harmless.
In reaching the conclusion that the instructional error was harmless, the majority makes the
following observations: “The jury obviously rejected defendant’s claim that he entered the
complainant’s house only to use the bathroom; otherwise it would have acquitted him rather than
convicting him of first-degree home invasion.” Ante, p ___. I do not hold a similar confidence that the
jury’s failure to acquit necessarily means that it rejected defendant’s stated reason for being in the
house. The majority’s reasoning is, I believe, predicated upon the following false dilemma: (1) if the
jury believes defendant’s testimony regarding intent, then the jury will find defendant not guilty; (2) the
jury did not find the defendant not guilty; therefore, (3) the jury must have rejected defendant’s
testimony about why he was in the home. I believe the unmentioned alternative is just as possible. That
is, although the jury may have had some doubts about defendant’s intent, given his admission that he
was in the house without permission, the jury may have believed defendant was guilty of some offense,
and thus “resolve[d] its doubts in favor of conviction.” Keebe v United States, 412 US 205, 213; 93
S Ct 1993; 36 L Ed 2d 844 (1973). The probability that the jury would follow this path could only be
enhanced by the appearance of defendant at trial in shackles.1 Such a resolution need not be based on
an impassioned or “vehement” animus toward defendant, but on an understandable desire to punish a
man who was “plainly guilty of some offense.” Id. (emphasis in original).
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I am also not convinced that the majority’s application of the harmless error rule for this
particular preserved nonconstitutional error is correct. While I agree that under People v Lukity, 460
Mich 484; 596 NW2d 607 (1999), we should not reverse unless after an examination of the entire
record we conclude that it is more probable than not that the error resulted in a miscarriage of justice,
id. at 494, I do not agree that this calculation is made by “assessing [the instructional error] in the
context of the untainted evidence.” Ante, p ___. As support for its use of the tainted-untainted
balancing test, the Court in Lukity cited to People v Mateo, 453 Mich 203; 551 NW2d 891 (1996).
However, in both of those cases the recognized error was an evidentiary one, not the failure to properly
instruct the jury. Lukity, supra at 491; Mateo, supra at 206 (“Where the error asserted is the
erroneous admission of evidence, the court engages in a comparative analysis of the likely effect of the
error in light of the other evidence.”).
Moreover, in each of the Michigan cases cited by the Mateo Court as supporting the tainted
untainted test, Mateo, supra at 215, the asserted error was an evidentiary one. See People v
Peterson, 450 Mich 349, 377-378; 537 NW2d 857 (1995), amended 450 Mich 1212 (1995);
People v Straight, 430 Mich 418, 424 NW2d 257 (1988) (observing that in order to determine
whether the erroneous admission of statements made by a sexual assault victim approximately one
month after the assault was harmless, the court “evaluate[s] the prejudicial effect of [the] testimony in
the light of other competent evidence”); People v Young (After Remand), 425 Mich 470, 501-505;
391 NW2d 270 (1986).
In this same passage, the Mateo Court also cited as persuasive authority the majority opinion in
Kotteakos v United States, 328 US 750; 66 S Ct 1239; 90 L Ed 1557 (1946), and Justice Brennan’s
concurrence/dissent in United States v Lane, 474 US 438; 106 S Ct 725; 88 L Ed 2d 814 (1986).
Neither of these cases directly indicates that the tainted-untainted test should be used when the error is
an evidentiary one. Rather, it seems to me that the Court cited to the two opinions because they
support the proposition that the nature of the error should be examined in light of the entire record to
see if it had a substantial effect that casts doubt on the outcome of the trial. When the error is only an
evidentiary one (which assumes, of course, that the jury was properly instructed), the gauging of the
effect is accomplished by examining the entire evidence, and balancing the corrupting effect of the
tainted evidence against the effect of the untainted evidence.
Accordingly, I do not believe that they support, even inferentially, the use of the tainted
untainted test for preserved instructional error. While the Kotteakos Court did discuss the trial court’s
instructions on conspiracy, the issue in that case was whether the joint conspiracy trial of individual
defendants who had no connection with each other was prejudicial. Id. at 773-774. The Kotteakos
Court found that the procedure was prejudicial, even though the Court concluded “that each
[defendant] was clearly shown to have shared in the fraudulent phase of the conspiracy in which he
participated.” Id. at 771. Indeed, the Kotteakos Court made it clear that the harmless error analysis is
distinct from a simple weighing of the evidence analysis. “The inquiry cannot be merely whether there
was enough to support the result, apart from the phase affected by the error,” the Court observed. Id.
at 765. “It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in
grave doubt, the conviction cannot stand.” As for Lane, the Court’s harmless error analysis was limited
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to the issue of the misjoinder of charged offenses. Lane, supra at 439-440. The Lane majority
acknowledged that in such a situation, harmless error analysis does not collapse into a perfunctory
examination of the sufficiency of the evidence. Lane, supra at 450 n 13. The Lane Court did
conclude, however, that the misjoinder error was harmless “[i]n the face of overwhelming evidence of
guilt.” Id. at 450.2
Therefore, I conclude that outside of the situation where the error was an evidentiary one, I do
not believe harmless error analysis collapses simply into a weighing of the evidence presented at trial. In
other words, I do not believe that it is wise to use this approach outside of the specific circumstances for
which its has been provided (i.e., where the acknowledged error involved the admission or exclusion of
evidence). This does not mean that a reviewing court need turn a blind eye to overwhelming evidence
of guilt. Lane, supra at 450. But to always turn to a weighing of the evidence in every situation invites,
in my opinion, the very type of appellate abuse that Justice Traynor warned against when extolling the
virtues of the highly probable standard, i.e., that an appellate judge will focus “‘his inquiry on the
correctness of the result,” and “hold[] an error harmless whenever he equated the result with his own
predilections.’” Mateo, supra at 219-220, quoting Traynor, The Riddle of Harmless Error (Ohio State
Univ Press, 1970), pp 34-35.
In an oft cited passage from Keebe, the United States Supreme Court commented on how an
instruction on a lesser offense protects a defendant’s right that the state prove beyond a reasonable
doubt the existence of every element of the crime charged:
[I]f the prosecution has not established beyond a reasonable doubt every element of the
offense charged, and if no lesser offense instruction is offered, the jury must, as a
theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser
offense—in this context or any other—precisely because he should not be exposed to
the substantial risk that the jury’s practice will diverge from theory. Where one of the
elements of the offense remains in doubt, but defendant is plainly guilty of some offense,
the jury is likely to resolve its doubts in favor of conviction. In the case before us, for
example, an intent to commit the serious bodily injury is a necessary element of the
crime with which petitioner was charged, but not of the crime of simple assault. Since
the nature of petitioner’s intent was very much in dispute at trial, the jury could rationally
have convicted him of simple assault if that option had been presented. But the jury was
presented with only two options: convicting the defendant of assault with intent to
commit great bodily injury, or acquitting him outright. We cannot say that the availability
of a third option—convicting the defendant of simple assault—could not have resulted in
a different verdict. [Keebe, supra at 212-213 (emphasis in original).]
In the case before us, the issue of defendant’s intent was in dispute. Indeed, it was the central
question to be resolved given that defendant admitted that he was in the complainant’s house without
her permission. After considering the record in its entirety, I conclude that had the trial court instructed
on the lesser offense, the jury could have rationally convicted defendant of that misdemeanor.
Therefore, I cannot say, as does the majority, that “it is unlikely that the jury would have chosen to
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convict defendant of the lesser offense” if it had been presented to them in an appropriate jury
instruction. Ante, p ___.
Furthermore, this is not a situation “where the jury had the choice of a lesser offense and
rejected it in favor of conviction of a higher offense.” See People v Beach, 429 Mich 450, 493; 418
NW2d 861 (1988). Nor is the situation analogous to those cases where the jury “acquits a defendant
of an unwarranted charge . . . and a lesser included warranted charge . . . before convicting of a still
lesser charge.” People v Graves, 458 Mich 476, 487; 581 NW2d 229 (1998).3 The conclusion in
each of these scenarios that the instructional error4 was harmless, is predicated on the existence of an
instruction on an offense that is interposed between at least one other instruction and the erroneous
instruction (be it an error of inclusion or omission). For example, in the Beach-type scenario, it can be
reasonably concluded that the failure to give instruction on the cognate lesser included offense “A3” was
harmless where the jury was instructed on an additional lesser included offense, “A2,” but nevertheless
convicted the defendant of the greater offense, “A1.” In the Graves-type scenario, the erroneous
inclusion of an instruction on the greater offense, “A1,” is harmless where the jury was also properly
instructed on a lesser included offense, “A2,” which it rejected in favor of a still lesser offense, “A3.” In
the case before us, where the only alternatives presented were conviction on the first-degree home
invasion charge or acquittal, there is no interposed jury instruction upon which a conclusion of
harmlessness may be hung.
The jury instruction on the misdemeanor offense of entering without permission should have
been given in this case “precisely because [defendant] should not be exposed to the substantial risk that
the jury’s practice will diverge from theory,” Keebe, supra at 212, with defendant being convicted even
though the issue of intent remains in doubt. The importance the reasonable doubt standard plays in our
system of justice cannot be overstated, nor too often acknowledged. Rooted firmly in the
jurisprudential traditions of Western civilization, Coffin v United States, 156 US 432, 454-456; 15 S
Ct 394; 39 L Ed 481 (1895), and essential to ensuring that a criminal defendant’s constitutionally
mandated due process rights are protected, Victor v Nebraska, 511 US 1, 5; 114 S Ct 1239; 127 L
Ed 2d 583 (1994), the standard also “provides concrete substance for the presumption of innocence—
that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the
administration of our criminal law.’” In re Winship, 397 US 358, 363; 90 S Ct 1068; 25 L Ed 2d 368
(1970), quoting Coffin, supra at 453.5 In the words of Justice Harlan, the reasonable doubt standard
is “bottomed on a fundamental value determination of our society that it is far worse to convict an
innocent man than to let a guilty man go free.” In re Winship, supra at 372 (Harlan, J., concurring).6
For these reasons, I would reverse defendant’s conviction of first-degree home invasion and
remand for a new trial.
/s/ Donald E. Holbrook, Jr.
1
I do not mean to imply by this observation that I disagree with the majority’s analysis on defendant’s
claim that he was denied due process because he was forced to wear the shackles at trial. In fact, I
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agree with the conclusion that under the circumstances, the trial court did not abuse its discretion in this
matter. Ante, p ___.
2
Although the Mateo Court cited to Justice Brennan’s concurrence/dissent, there is nothing in the cited
excerpt from that opinion that would contradict the above stated observations of the Lane majority.
See Lane, supra at 455-460 (Brennan, J., concurring in part and dissenting in part).
3
Both Graves and Lukity were authored by Justice Taylor. In Lukity, Justice Taylor specifically noted
that the Court was overruling the “highly probably” test for preserved, nonconstitutional error
established in People v Gearns, 457 Mich 170; 557 NW2d 422 (1998). Lukity, supra at 494.
Accordingly, although he does not specifically so state, I read Justice Taylor’s Lukity analysis as a
rejection of his earlier analysis in Graves, to the extent that the Graves analysis was predicated upon
the “highly probable” test. See Graves, supra at 487 (observing that “[o]n the basis of the record, we
are satisfied that it is highly probable that the [instructional] error did not affect the verdict”). I do not
assume that our Supreme Court would apply one standard where the error was instructional, and
another where the error was evidentiary.
4
In the first instance, the error was one of exclusion, whereas in the second it is one of inclusion.
5
The close relationship between the presumption of innocence and the reasonable doubt standard is
evidenced by the language of CJI2d 3.2(1):
A person accused of a crime is presumed to be innocent. This means that you
must start with the presumption that the defendant is innocent. This presumption
continues throughout the trial and entitles the defendant to a verdict of not guilty unless
you are satisfied beyond a reasonable doubt that [he / she] is guilty.
6
The goals served by the reasonable doubt standard are both universal and particular, removed and
immediate. For the society in general, the standard serves to build confidence in the fairness of the
criminal judicial system, and by extension the legitimacy of the government that system serves. Winship,
supra at 364. For a particular defendant facing a criminal trial, the standard assures that he will not be
arbitrarily condemned.
The accused during a criminal prosecution has at stake interests of immense importance,
both because of the possibility that he may lose his liberty upon conviction and because
of the certainty that he would be stigmatized by the conviction. Accordingly, a society
that values the good name and freedom of every individual should not condemn a man
for commission of a crime where there is reasonable doubt about his guilt. [Id. at 363
364.]
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