People v. Torres , 222 Mich. App. 411 ( 1997 )

564 N.W.2d 149 (1997) 222 Mich. App. 411

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Gavino TORRES, Defendant-Appellant.

Docket No. 197735.

Court of Appeals of Michigan.

Submitted September 19, 1996, at Lansing. Decided March 25, 1997, at 9:00 a.m. Released for Publication June 6, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for People.

State Appellate Defender by Ronald E. Steinberg, for defendant-appellant on appeal.

Before MARK J. CAVANAGH, P.J., and HOOD and BANDSTRA, JJ.

ON REMAND

MARK J. CAVANAGH, Presiding Judge.

This case is before us for the second time. Previously, we held, in part, that the prosecutor's appeal of the trial court order granting defendant a new trial was not properly before us and declined to address it. People v. Torres, 209 Mich.App. 651, 658, 531 N.W.2d 822 (1995). The Supreme Court reversed this holding and remanded the case to us so that we may address the question whether the trial court erred in sua sponte setting aside the jury verdict and granting defendant a new trial. People v. Torres, 452 Mich. 43, 549 N.W.2d 540 (1996), cert den ___ U.S. ___, 117 S. Ct. 985, 136 L. Ed. 2d 867 (1997). We reverse and remand for reinstatement of the jury verdict.

Defendant was charged with possession with intent to deliver more than 650 grams of cocaine, M.C.L. § 333.7401(2)(a)(i); M.S.A. § 14.15(7401)(2)(a)(i). A jury convicted defendant of simple possession of more than 650 grams of cocaine, M.C.L. § 333.-7403(2)(a)(i); M.S.A. § 14.15(7403)(2)(a)(i). In our previous opinion, at 653-654, 531 N.W.2d 822, we set forth the facts of this case:

At trial, the prosecution attempted to show that defendant had acted in concert with several others in the delivery of cocaine to undercover police officers. Anthony Valentine testified that defendant participated in conversations about purchasing the cocaine. Defendant accompanied Valentine, Rodney Edwards, Freddie Marshall, and David Crowl as they went to get cocaine from Edwards' source. The source handed a box containing cocaine to defendant, who kept it in front of him as the group traveled to the meeting place. When the vehicle stopped several blocks from the site where the transaction with the undercover officers was to occur, defendant handed the box to Edwards, who in turn handed it to Valentine. Marshall, Crowl, and Valentine then left to make the sale.

The jury was instructed with regard to both possession with intent to deliver and simple possession of more than 650 grams of cocaine. When instructing the jury, the trial court described simple possession as a "less serious" offense. On September 27, 1990, the jury convicted defendant of possession of more than 650 grams of cocaine.

In an order dated October 22, 1990, the trial court, on its own motion, set aside the jury verdict and granted defendant a new trial. The court believed that it had erred in instructing the jury that simple possession is a "less serious" offense than possession with intent to deliver because both offenses carry the same penalty.1 The court reasoned that if it had not instructed the jury that simple possession was a "less serious offense," the jury might well have acquitted defendant.

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1 At that time, the penalty for both possession with intent to deliver more than 650 grams of cocaine and simple possession of more than 650 grams of cocaine was a mandatory sentence of life imprisonment without possibility of parole. However, the Supreme Court has since held that a mandatory life sentence without parole for simple possession of more than 650 grams of cocaine violates the constitutional prohibition of cruel or unusual punishment. Simple possession of more than 650 grams of a controlled substance is now a parolable offense. People v. Bullock, 440 Mich. 15, 37 & n. 19, 485 N.W.2d 866 (1992).

I

The prosecutor argues that the trial court erred in sua sponte granting defendant a new trial.^[1] The grant of a new trial is reviewed for an abuse of discretion. People v. Reed, 198 Mich.App. 639, 645, 499 N.W.2d 441 (1993), aff'd. 449 Mich. 375, 535 N.W.2d 496 (1995). The standard for reviewing a decision for an abuse of discretion is narrow; the result must have been so violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or an exercise of passion or bias. People v. Woods, 200 Mich.App. 283, 288, 504 N.W.2d 24 (1993).

Under MCR 6.431(B), on the defendant's motion, the court may order a new trial on any ground that would support appellate reversal of the conviction or because it believes that the verdict has resulted in a miscarriage of justice. This Court has held that MCR 6.431(B) allows the trial court to order a new trial in a criminal case only when a motion has been brought by the defendant.^[2] See People v. McEwan, 214 Mich.App. 690, 694, 543 N.W.2d 367 (1995). Accordingly, the trial court erred in granting defendant a new trial on its own motion.

Moreover, we conclude that even if defendant had moved for a new trial, the trial court would not have been justified in granting one. The trial court based the grant of a new trial on its belief it had erred in instructing the jury with regard to the offense of simple possession of more than 650 grams of cocaine. The court believed that, under the circumstances of this case, simple possession could not be considered a lesser included offense of possession with intent to deliver because the offenses carried the same penalty.

In general, the duty of the trial court to instruct with regard to lesser included offenses is determined by the evidence. People v. Hendricks, 446 Mich. 435, 442, 521 N.W.2d 546 (1994). When an offense is necessarily included, the evidence will always support the lesser offense if it supports the greater. People v. Veling, 443 Mich. 23, 36, 504 N.W.2d 456 (1993). If evidence has been presented that would support a conviction of a lesser included offense, refusal to give a requested instruction regarding the lesser included offense is error requiring reversal. Hendricks, supra. The prosecutor, as well as the defendant, may request an instruction regarding a lesser included offense.^[3]People v. King, 98 Mich.App. 146, 153, 296 N.W.2d 211 (1980).

Possession of more than 650 grams of cocaine has been considered to be a necessarily included lesser offense of possession with intent to deliver that amount of cocaine, because the only distinguishing characteristic is the additional element of the intent to deliver. People v. Gridiron (On Rehearing), 190 Mich.App. 366, 369, 475 N.W.2d 879 (1991), amended with regard to remedy 439 Mich. 880, 476 N.W.2d 411 (1991). However, the question remains whether simple possession could have been considered a lesser included offense of possession with intent to deliver at the time of defendant's trial, because the offenses then carried the same penalty.

Whether one offense can be a lesser included offense of another if both carry the same penalty is an issue of first impression in Michigan. Other states have addressed this issue, reaching conflicting results. Some states have held that one offense cannot be a lesser included offense of another if both carry the same penalty. See, e.g., Nurse v. State, 658 So. 2d 1074 (Fla.App.1995); State v. Anthony, 242 Kan. 493, 497, 749 P.2d 37 (1988); Sanders v. State, 479 So. 2d 1097, 1108 (Miss., 1985). However, other states have found that the penalty is irrelevant in determining whether one offense is a lesser included offense of another. See, e.g., State v. Young, 305 N.C. 391, 393, 289 S.E.2d 374 (1982); Stockton v. State, 756 S.W.2d 873, 876 (Tex.App.1988).

In Nurse, supra, the court addressed the issue and concluded that the underlying reasons for allowing a jury to convict of a lesser included offense imply that the lesser offense carries a lighter penalty than the charged offense. The Nurse court noted that one policy reason for allowing a jury to convict of a lesser included offense is that it allows a jury to exercise its power of leniency, or pardon power, by acquitting the defendant of the charged offense and convicting the defendant of a lesser offense. A related policy reason is that it allows a jury that cannot agree on a verdict with regard to the charged offense to compromise by finding the defendant guilty of a lesser offense. The court concluded that both policy rationales presuppose that the lesser offense carries a lesser penalty than the charged offense. 658 So. 2d at 1078-1079.

In contrast, in Texas the determination whether an offense is a lesser included offense of the charged offense is made without regard to punishment. One court explained, "The word ``lesser' does not refer to the punishment range but to the factor that distinguishes the included offense from the offense charged, i.e., less than all facts, less serious injury or risk of harm, less culpable mental state, or an attempt." Johnson v. State, 828 S.W.2d 511, 515-516 (Tex.App., 1992).

A factor cited by some courts in holding that one offense cannot be a lesser included offense of another if both carry the same penalty has been the fact that the offenses at issue were defined in a single statute. See Anthony, supra; Sanders, supra. However, that factor is irrelevant in the present case because the offenses of possession of more than 650 grams of cocaine and possession with intent to deliver more than 650 grams of cocaine are set out in two separate statutes. See M.C.L. § 333.-7401(2)(a)(i); M.S.A. § 14.15(7401)(2)(a)(i), M.C.L. § 333.7403(2)(a)(i); M.S.A. § 14.15(7403)(2)(a)(i).

In Michigan, statutory authorization for allowing a trier of fact to convict a defendant of lesser degrees of an offense charged, except where the defendant is charged with certain drug offenses, is provided by M.C.L. § 768.32(1); M.S.A. § 28.1055(1). The statute states:

Except as provided in subsection (2), upon an indictment for an offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to commit that offense.

Over a century ago, our Supreme Court noted that the statute was intended to remove the common-law restriction that, upon an indictment for a felony, the defendant could not be convicted of a misdemeanor. See Hanna v. People, 19 Mich. 316, 322 (1869).^[4] More recently, this Court stated that the statute "is merely declaratory of the longstanding rule that due process notice requirements are not violated by convicting an accused of a lesser included offense since lesser included offenses can have no elements different from those in the principal charge." People v. Membres, 34 Mich.App. 224, 231, 191 N.W.2d 66 (1971).

Defendant argues that in order for an offense to be "inferior" within the meaning of M.C.L. § 768.32(1); M.S.A. § 28.1055(1), its penalty must be less than that of the charged offense. However, after carefully considering its issue, we conclude that under M.C.L. § 768.32(1); M.S.A. § 28.1055(1), an offense may be inferior to another even if the penalties for both offenses are identical. We believe that the word "inferior" in the statute does not refer to inferiority in the penalty associated with the offense, but, rather, to the absence of an element that distinguishes the charged offense from the lesser offense. The controlling factor is whether the lesser offense can be proved by the same facts that are used to establish the charged offense. As the Membres Court noted, the defendant's due process notice rights are not violated because all the elements of the lesser offense have already been alleged by charging the defendant with the greater offense.

Moreover, under the constitution of this state, the people have vested in the Legislature the exclusive authority to determine the terms of punishment imposed for violations of the criminal law. Const. 1963, art. 4, § 45; People v. Schultz, 435 Mich. 517, 525, 460 N.W.2d 505 (1990). There is nothing in the constitution that prohibits the Legislature from selecting the same penalty for a crime and a lesser included offense of that crime. The right to due process of law merely requires that a defendant cannot be convicted of an offense unless each element of the offense has been proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072-73, 25 L. Ed. 2d 368 (1970).

We are not persuaded by the Nurse court's policy arguments for concluding that an offense cannot be a lesser included offense of another if both carry the same penalty. Michigan courts have recognized that a jury possesses the power of leniency. See People v. Lewis, 415 Mich. 443, 450-453, 330 N.W.2d 16 (1982); People v. Vaughn, 409 Mich. 463, 466, 295 N.W.2d 354 (1980). However, this is a de facto power with regard to which the jury is not instructed. Furthermore, as the dissenting judge in Nurse noted, the existence of a jury power of leniency does not entitle the defendant to a jury charge on any and every offense, without regard to the evidence presented at trial. See Nurse, supra at 1087 (Cope, J., dissenting).

Moreover, while compromise verdicts undoubtedly occur, we do not believe that their existence compels the conclusion that a lesser included offense must have a less severe sanction than the greater offense. It seems likely that at least some compromise verdicts are based upon disagreements among the jurors over which elements the prosecution has proved beyond a reasonable doubt, without regard to penalty. Moreover, as stated above, the right to due process of law merely requires that a defendant cannot be convicted of an offense unless each element of the offense has been proved beyond a reasonable doubt. Winship, supra.

Thus, we hold that the trial court did not err in instructing the jury with regard to the lesser included offense of possession of more than 650 grams of cocaine despite the fact that, at that time, the penalty for simple possession of more than 650 grams of cocaine was identical to that for possession with intent to deliver more than 650 grams of cocaine. The trial court would in fact have erred had it not acceded to the prosecutor's request for the instruction. See Hendricks, supra; King, supra. The fact that, at the time, the penalties for simple possession of more than 650 grams of cocaine and possession with intent to deliver more than 650 grams of cocaine were identical is irrelevant to the determination whether the former offense is a necessarily included offense of the latter. Accordingly, we conclude that the trial court abused its discretion in setting aside the jury verdict and granting defendant a new trial.

II

Defendant also contends that even if a lesser included offense may carry the same penalty as the charged offense, the trial court erred in telling the jury that simple possession was a "less serious" crime than possession with intent to deliver. Defendant compares this situation to that addressed by the Supreme Court in People v. Vail, 393 Mich. 460, 227 N.W.2d 535 (1975). In Vail, the Court held that where the jury is permitted to consider a charge unwarranted by the proofs, prejudice is presumed because the defendant's chances of acquittal with regard to any valid charge are substantially decreased by the possibility of a compromise verdict. Id. at 464, 227 N.W.2d 535. However, we find defendant's analogy to Vail to be inapposite because defendant does not argue that the proofs did not support a conviction of possession with intent to deliver more than 650 grams of cocaine. In fact, the opposite is true; defendant vociferously contends that the conviction of simple possession of 650 grams of cocaine was flawed because "no rational view of the evidence would have supported a claim that he possessed the drugs without the intent to deliver them." Because defendant concedes that the evidence supported the instruction regarding possession with intent to deliver more than 650 grams of cocaine, he was not prejudiced by a compromise verdict convicting him of a lesser included offense.

In deciding to grant defendant a new trial, the trial court reasoned that if it had not instructed the jury that simple possession was a "less serious" offense than possession with intent to deliver, the jury might have acquitted defendant. However, we find this to be mere speculation on the part of the trial court. The rule in Michigan is that neither the court nor counsel should address themselves to the question of the disposition of a defendant after the verdict. Furthermore, it is proper for the court to instruct the jury that it is not to speculate with regard to this issue and that it should confine its deliberations to the issue of guilt or innocence. People v. Goad, 421 Mich. 20, 25-26, 364 N.W.2d 584 (1984); see CJI2d 3.13. The trial court in fact instructed the jury that it should not allow the possible penalty to influence its decision. As a general rule, juries are presumed to follow their instructions. People v. Banks, 438 Mich. 408, 418, 475 N.W.2d 769 (1991), cert den 502 U.S. 1065, 112 S. Ct. 955, 117 L. Ed. 2d 122 (1992).

Defendant did not object to the jury instructions at trial; in fact, he indicated that he was satisfied with them. Therefore, our review is limited to the issue whether relief is necessary to avoid manifest injustice. People v. Haywood, 209 Mich.App. 217, 230, 530 N.W.2d 497 (1995). Manifest injustice occurs where the erroneous or omitted instruction pertains to a basic and controlling issue in the case. People v. Johnson, 187 Mich.App. 621, 628, 468 N.W.2d 307 (1991). We find that the trial court's statement that simple possession was a "less serious" crime than possession with intent to deliver did not lead to manifest injustice, and therefore defendant is not entitled to relief.

III

Next, defendant maintains that the failure of his trial counsel to object to the instruction regarding simple possession constitutes ineffective assistance of counsel. A defendant that claims that he has been denied the effective assistance of counsel must establish that (1) the performance of his counsel was below an objective standard of reasonableness under prevailing professional norms, and (2) a reasonable probability exists that, in the absence of counsel's unprofessional errors, the outcome of the proceedings would have been different. People v. Pickens, 446 Mich. 298, 302-303, 521 N.W.2d 797 (1994). A defendant must overcome a strong presumption that the assistance of his counsel was sound trial strategy, and he must show that but for counsel's error, there is a reasonable probability that the outcome of the trial would have been different. People v. Stanaway, 446 Mich. 643, 687, 521 N.W.2d 557 (1994), cert den sub nom Michigan v. Caruso, 513 U.S. 1121, 115 S. Ct. 923, 130 L. Ed. 2d 802 (1995).

Defendant relies on Gridiron (On Rehearing), supra. In Gridiron, the defendant was charged with possession with intent to deliver over 225 but less than 650 grams of cocaine, M.C.L. § 333.7401(2)(a)(ii); M.S.A. § 14.15(7401)(2)(a)(ii), and his defense counsel requested an instruction regarding simple possession of over 225 but less than 650 grams of cocaine, M.C.L. § 333.7403(2)(a)(ii); M.S.A. § 14.15(7403)(2)(a)(ii). The defendant was then convicted of simple possession. This Court held that defense counsel, in requesting an instruction regarding simple possession, rendered ineffective assistance of counsel because there was no logical reason why a defendant charged under § 7401(2)(a)(ii) would want a simple possession instruction under § 7403(2)(a)(ii), because the penalty for the two offenses was the same, but a conviction pursuant to § 7403(2)(a)(ii) requires proof of fewer elements than a conviction under § 7401(2)(a)(ii). Id. at 369-370, 475 N.W.2d 879.

We find that the instant case is distinguishable from Gridiron. In contrast to Gridiron, where the defense counsel requested and received the instruction, here the defendant's trial counsel merely failed to object to the prosecutor's request for an instruction regarding simple possession. As discussed above, the trial court must instruct the jury with regard to a necessarily included lesser offense if the prosecutor requests it. Hendricks, supra; King, supra. Thus, the instruction was proper, and defendant was not prejudiced by his counsel's failure to object. As the Supreme Court has noted:

Defense counsel's objection to the giving of the instruction on lesser included offenses is not controlling. It is the duty of the trial court to instruct the jury as to the law applicable to the case. MCLA 768.29; M.S.A. § 28.1052. Neither the defense nor the prosecution has the option of precluding the court from carrying out this duty in hopes of forcing an "all or nothing" verdict. [People v. Chamblis, 395 Mich. 408, 415, 236 N.W.2d 473 (1975), overruled in part on other grounds in People v. Stephens, 416 Mich. 252, 330 N.W.2d 675 (1982).]

Thus, defense counsel's failure to object to a proper jury instruction regarding a lesser included offense does not constitute ineffective assistance of counsel. Defense counsel was not required to raise a meritless objection. See People v. Gist, 188 Mich.App. 610, 613, 470 N.W.2d 475 (1991).

Reversed and remanded for reinstatement of the jury verdict. We do not retain jurisdiction.

NOTES

[1] Defendant argues that the prosecutor has abandoned this issue by failing to file the necessary transcripts. However, because the prosecutor has belatedly remedied this deficiency, we will address this issue.

[2] In the present case, defendant did not move for a new trial, although defense counsel indicated that he planned to file a motion for judgment notwithstanding the verdict after sentencing.

[3] Of course, double jeopardy considerations come into play when a defendant is acquitted after the trial court erroneously refuses a prosecutor's request to instruct with regard to a lesser included offense.

[4] In Hanna, the Supreme Court addressed § 16 of Chapter 161 of the Revised Statutes of 1846, which provided:

Upon an indictment for any offense, consisting of different degrees, as prescribed in this title, the jury may find the accused not guilty of the offense in the degree charged in the indictment, and may find such accused person guilty of any degree of such offense, inferior to that charged in the indictment, or of an attempt to commit such offense.