People v. Bragdon ( 1985 )

R. M. Maher, P.J.

(concurring in part and dissenting in part). I agree with the majority that defendant’s conviction for delivery of marijuana, MCL 333.7401, subds (1) and (2)(c); MSA 14.15(7401), subds (1) and (2)(c), must be reversed because of the prosecutor’s improper questioning of defendant. I also agree that the trial court properly found the defendant had not been entrapped by the police and that reversible error did not occur under the procedure utilized by the trial court in instructing the jury for defendant’s trial on the habitual offender charge. However, I do not agree that the trial court properly refused to give the requested instruction on the lesser misdemeanor offense of possession of marijuana. The majority states that "because there was no disputed factual element differentiating the offense of delivery from the offense of possession”, the trial court properly declined to give the instruction under People v Stephens, 416 Mich 252, 263; 330 NW2d 675 (1982). A close reading of Stephens shows, however, that the Supreme Court specifically declined to overrule in Stephens its decision in People v Kamin, 405 Mich 482; 275 NW2d 777 (1979). See Stephens, 416 Mich 258, fn 9. Therefore, the trial court and this Court are still bound by the dictates of Kamin. Kamin held that, where a defendant who is charged with delivery of a controlled substance is shown by the state’s evidence to have been in possession of the substance, the trial court must give a requested possession instruction. I would hold, therefore, that if defendant requests the possession instruction on retrial, the trial court must give the instruction.