PEOPLE OF MI V DANIEL BRATHER COLEMAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 27, 2011
Plaintiff-Appellant,
v
No. 298065
Wayne Circuit Court
LC No. 10-000372
DANIEL BRATHER COLEMAN,
Defendant-Appellee.
Before: JANSEN, P.J., and OWENS and SHAPIRO, JJ.
PER CURIAM.
The prosecution appeals by leave granted1 from the trial court’s order granting defendant
a new trial following his jury trial convictions of possession of marijuana, MCL 333.7403(2)(d),
and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
On appeal, the prosecutor argues that there were no grounds on which the trial court could order
a new trial in this case. We agree and reverse.
The prosecutor argues that the trial court erroneously concluded that the jury was
confused by the trial court’s jury instructions. We agree.
A trial court’s decision to grant or deny a motion for a new trial is reviewed for an abuse
of discretion. People v Blackston, 481 Mich 451, 460; 751 NW2d 408 (2008). A court abuses
its discretion when it selects a course outside the range of principled outcomes. Id. Questions of
law are reviewed de novo. People v Thompson, 477 Mich 146, 151; 730 NW2d 708 (2007).
In criminal cases, a new trial may be granted “on any ground that would support appellate
reversal of the conviction or because the trial court believes that the verdict has resulted in a
miscarriage of justice.” MCR 6.431(B); see also MCL 770.1 (“when it appears to the court that
justice has not been done”). Further, the trial court “must state its reasons for granting or
denying a new trial . . . on the record.” MCR 6.431(B).
1
People v Coleman, unpublished order of the Court of Appeals, entered September 19, 2010
(Docket No. 298065).
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In this case, defendant was charged with manufacturing 200 or more plants of marijuana,
MCL 333.7401(2)(d)(i), and possession of a firearm during the commission of a felony (felonyfirearm), MCL 750.227b. At the prosecutor’s request, the trial court also instructed the jury on
the “lesser included offenses” of manufacture of between 20 and 200 marijuana plants, MCL
333.7401(2)(d)(ii), and manufacture of fewer than 20 marijuana plants, MCL 333.7401(2)(d)(iii).
At defendant’s request, the trial court instructed the jury on possession of marijuana, MCL
333.7403(2)(d), also as a lesser included offense of manufacturing 200 or more plants of
marijuana. During deliberations, the jury requested, and was given, the written jury instructions.
Further, it returned without a unanimous verdict twice before reaching a unanimous verdict. The
jury eventually convicted defendant of the lesser offense of possession of marijuana and felonyfirearm.
Defendant moved for the trial court to set aside the felony-firearm conviction on the
ground that the jury was confused. After further briefings and hearings, the trial court treated
this motion as a motion for a new trial and granted it. The trial court’s stated reasons for
granting a new trial were as follows:
[I]n carefully considering this case, the jury instructions on the case, the
arguments of counsel on the case, and how it was presented, on the time frame,
and all of the issues surrounding this case, I am of the very firm conviction that . .
. there was jury confusion.
***
[T]he jury would have to have found that the defendant committed or
attempted to commit a felony. It’s neither clear by the viewing of the entire
instruction nor by the questioning of the jury, or the argument of the prosecutor or
defense attorney, as to these issues leave [sic] the court with the concern, great
concern, that there was confusion in this case.
***
[T]he court does not presuppose inconsistent verdicts in this situation. It’s
more of a concern about the instructions, the feedback we got from the jury.
At the outset, we note that our Supreme Court has confirmed that a jury need not convict
a defendant of the underlying felony in order to convict the defendant of felony-firearm. People
v Duncan, 462 Mich 47, 54; 610 NW2d 551 (2000), citing People v Lewis, 415 Mich 443; 330
NW2d 16 (1982). “Juries are not held to any rules of logic nor are they required to explain their
decisions.” People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980). However, if an
inconsistent verdict is evidence of jury confusion that “taints the verdict” new trial on all charges
may be required. Lewis, 415 Mich at 450 n 9; see also People v Duncan, 462 Mich at 53-54;
(evidence that jury thought two charges were “tie-barred” requires a new trial); People v
McKinley, 168 Mich App 496, 510; 425 NW2d 460 (1988) (following Lewis).
The circumstances under which the instruction for the possession of marijuana charge
arose were confusing. The trial court appeared to misunderstand the prosecutor’s request for an
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instruction regarding constructive possession of the marijuana plants and the firearms, predicated
on the fact that defendant was not at the house at the time the items were seized. As a result of
this confusion, defense counsel volunteered that defendant would like an instruction on
possession of marijuana as a lesser included offense of the manufacturing marijuana charge.
Further, defense counsel noted that there was evidence presented of a small baggie of marijuana
inside the house, separate from evidence presented regarding 280 marijuana plants growing
outside the house. The trial court agreed, and the prosecutor assented to the instruction. Clearly
the addition of this instruction arose under confusing circumstances. However, none of these
negotiations took place before the jury. The fact that the parties and the trial court were confused
at this point does not, by itself, provide evidence that the jury was confused.
It is therefore necessary to consider the actual statements made to the jury in assessing
whether the jury might have become confused. In the prosecutor’s closing argument, he never
discussed the possession of marijuana charge. He only discussed possession as it relates to
constructive possession of marijuana plants or firearms. Defense counsel presented the issue as
follows:
Defense Counsel. Another crime you have to pay attention to, and the
judge is going to read to you, is possession of marijuana. And I want you to be
very careful. Possession of marijuana is totally different from manufacturing
marijuana. Manufacturing marijuana, the judge will tell you, is a felony.
Prosecutor. Objection, your honor.
Trial Court. Sustained.
Defense Counsel. Possession of marijuana—the judge will give you
different crimes and, therefore, one crime she’s going to read to you is the
instruction which is [sic] possession of marijuana. And if for some odd reason
you feel someone possesses marijuana while in possession of a gun, that is not
felony-firearm. . . . I want to make sure you understand possession of marijuana,
while having a gun, is not felony-firearm. And that you have to have the gun in
your possession in furtherance of the crime, to make it a felony-firearm.
In rebuttal, the prosecutor did not mention possession of marijuana, but reiterated, “[I]f you
decided you are going to manufacture marijuana and have guns you’re guilty of felony-firearm.”
Finally, the trial court clearly instructed the jury that they must find that defendant “committed or
attempted to commit the crime of manufacture of marijuana” in order to convict defendant of
felony-firearm. The court also instructed the jury, “It is not necessary, however, that the
defendant be convicted of [the crime of manufacture of marijuana].”
Thus, the jury was not presented with confusing information regarding what was required
to convict defendant of felony-firearm. Defense counsel made it very clear that mere possession
would not support a conviction of felony-firearm. The trial court made it clear that defendant
must commit or attempt to commit, but not necessarily be convicted of, manufacture of
marijuana to support a conviction of felony-firearm. Further, the jury was given the written
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instructions to review during deliberations. There is no basis for concluding, merely from the
parties’ argument and trial court’s instructions, that the jury was confused.
Next, during deliberations, the jury asked to view the trial court’s instructions and asked,
“Did the prosecution stipulate to the fact that the defendant had the guns?” They received the
written instructions and were reread the parties’ stipulations regarding the substance and number
of the marijuana plants and firearms.2 Further, during deliberations the jury indicated that one
juror was being uncooperative and preventing a unanimous verdict. After hearing deadlocked
jury instructions twice, the jury reached a unanimous verdict. Here, again, there is no actual
evidence that the jury was confused. The jury did not ask any questions regarding the
relationship between the possession of marijuana instruction and felony-firearm charge. Further,
a failure to reach a unanimous verdict is not dispositive evidence of confusion, especially when
the jurors indicated themselves that the single holdout was being uncooperative, not that there
was a disagreement regarding the jury’s duty.
The circumstances surrounding the jury instructions and jury’s verdict were indeed
confusing. However, most of the confusion manifested itself outside the presence of the jury.
Further, we are unable to identify any evidence that the jury was actually confused. Finally, the
jury’s superficially inconsistent verdict was neither improper nor a logical implication of the
confusing circumstances that gave rise to the jury instructions. Thus, there was no evidence of a
miscarriage of justice, justifying the grant of a new trial. MCR 6.431(B). Accordingly, the trial
court abused its discretion when it granted defendant a new trial. People v Giovannini, 271 Mich
App 409, 417; 722 NW2d 237 (2006) (an error of law constitutes an abuse of discretion).
Reversed and remanded. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Donald S. Owens
/s/ Douglas B. Shapiro
2
Defendant presented no evidence at trial and stipulated to the admission of the prosecutor’s
physical evidence. Defendant’s sole defense was that the prosecutor had not proved that
defendant lived at the house from which the marijuana and firearms were seized.
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