DocketNumber: Docket Nos. 306084 and 315767
Citation Numbers: 303 Mich. App. 271
Judges: Connell, Kelly, Sawyer
Filed Date: 11/19/2013
Status: Precedential
Modified Date: 9/9/2022
A jury convicted defendant, Willie Dell Powell, of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to two years’ imprison
Defendant first argues that MCL 750.227b violates his constitutional right to bear arms. We disagree.
This Court reviews constitutional questions de novo. People v Brown, 294 Mich App 377, 389; 811 NW2d 531 (2011). “Both the United States Constitution and the Michigan Constitution grant individuals a right to keep and bear arms for self-defense.” People v Deroche, 299 Mich App 301, 305; 829 NW2d 891 (2013) (quotation marks and citation omitted). However, this right is not unlimited. Dist of Columbia v Heller, 554 US 570, 595; 128 S Ct 2783; 171 L Ed 2d 637 (2008). Exceptions to the right to bear arms include regulation of gun possession by felons. Deroche, 299 Mich App at 307. Similarly, this Court has held, “[a] right to bear arms does not encompass the possession of a firearm during the commission of a felony.” People v Graham, 125 Mich App 168, 172-173; 335 NW2d 658 (1983).
Defendant argues that the felony-firearm statute is unconstitutional as applied to him, because the jury acquitted him of the charged underlying felony of possession with the intent to deliver marijuana. However, in order for the jury to have properly convicted
Next, defendant argues that the trial court’s instruction following a third note from the jury violated defendant’s right to be present and have counsel at a critical stage of trial. We disagree.
This Court reviews constitutional questions de novo. Brown, 294 Mich App at 389. “The Sixth Amendment provides that the accused in a criminal prosecution ‘shall enjoy the right... to have the Assistance of counsel for his defence.’ ” People v Russell, 471 Mich 182, 187; 684 NW2d 745 (2004), quoting US Const, Am VI. “It is well established that a total or complete
In People v France, 436 Mich 138, 161; 461 NW2d 621 (1990), the Michigan Supreme Court specifically addressed ex parte communications. It discouraged ex parte communications by a trial judge with a deliberating jury. Only ex parte communications that have “any reasonable possibility of prejudice” should result in a new trial. Id. at 162-163 (quotation marks and citation omitted). In order to determine the presumption of prejudice and the burden of showing prejudice, an appellate court should categorize the communication as substantive, administrative, or housekeeping. Id. at 163. A substantive communication includes “supplemental instruction on the law....” Id. A substantive communication results in a presumption of prejudice and places the burden to rebut the presumption on the prosecution. Id. An administrative communication includes, “instructions that encourage a jury to continue its deliberations.” Id. “An administrative communication has no presumption of prejudice. The failure to object when made aware of the communication will be taken as evidence that the instruction was not prejudicial.” Id. However, an appellate court may determine that the instruction was prejudicial to a defendant because it violated American Bar Association (ABA) Standard Jury
The trial court’s instruction, following the third note, was administrative in nature. An administrative communication includes, “instructions that encourage a jury to continue its deliberations.” France, 436 Mich at 163. The record indicates that the trial court instructed the jury to continue its deliberations until it could reach an agreement. Defendant did not object to the instruction when the trial court later raised the subject on the record. Therefore, there is no presumption that the instruction prejudiced defendant. Id. at 163. Furthermore, defendant’s failure to object when the trial court raised the issue constitutes “evidence that the instruction was not prejudicial.” Id. There is nothing to indicate that the trial judge said anything more than instructing the jury to continue to deliberate.
Finally, the prosecution argues that the trial court abused its discretion when it granted defendant a new trial on the basis of the exclusion of defendant’s evidence regarding his possession of a concealed pistol license (CPL). We disagree.
This Court reviews a trial court’s decision to refuse to admit evidence for an abuse of discretion. People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010). However, this Court reviews de novo whether a rule of evidence precludes admission of the evidence. Id. “This Court reviews for an abuse of discretion a trial court’s
First, the trial court properly determined that it had abused its discretion when it granted the prosecutor’s motion to exclude the CPL evidence. “Generally, all relevant evidence is admissible at trial.” People v Aldrich, 246 Mich App 101, 114; 631 NW2d 67 (2001); see also MRE 402. “Evidence which is not relevant is not admissible.” MRE 402. Relevant evidence is evidence that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401. Evidence is “admissible if it is helpful in throwing light on any material point.” Aldrich, 246 Mich App at 114. “ ‘[T]he relationship of the elements of the charge, the theories of admissibility, and the defenses asserted governs what is relevant and material.’ ” People v Brooks, 453 Mich 511, 520; 557 NW2d 106 (1996), quoting People v VanderVliet, 444 Mich 52, 75; 508 NW2d 114 (1993); see also People v Kevorkian, 248 Mich App 373, 442; 639 NW2d 291 (2001). “[A] material fact need not be an element of a crime or cause of action or defense but it must, at least, be in issue in the sense that it is within the range of litigated matters in controversy.” Brooks, 453 Mich at 518 (citations and quotation marks omitted). “ ‘[Materiality does not mean that the evidence must be directed at an element of a crime or an applicable defense.’ ” Id., quoting People v Mills, 450 Mich 61, 67-68; 537 NW2d 909 (1995).
Second, the trial court did not abuse its discretion when it granted defendant’s motion for a new trial. The court rules provide several bases for a trial court to award a defendant a new trial. MCR 2.611(A)(1)(a) provides that a court may grant a new trial “whenever [a defendant’s] substantial rights are materially affected [by] ... an order of the court or abuse of discretion which denied [a defendant] a fair trial.” See also People v Jones, 203 Mich App 74, 79; 512 NW2d 26 (1993). MCR 6.431(B) provides, that “[o]n 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.” The trial court could have properly granted defendant’s motion for a new trial under several bases.
A NEW TBIAL PURSUANT TO MCR 2.611(A)(1)(a)
The trial court did not abuse its discretion when it determined that the trial court’s exclusion of the CPL evidence materially affected defendant’s right to
The trial court’s exclusion of the CPL evidence denied defendant the right to present evidence that supported his argument that he legally possessed the handgun and the right to a fair trial. The prosecution specifically argued that defendant’s possession of the handgun was evidence that he was involved in selling the marijuana. This argument implied that defendant was not using the handgun in a legal manner. Whether defendant legally possessed the handgun is an issue that may have influenced the jury’s determination of guilt.
A NEW TRIAL PURSUANT TO MCR 6.431(B)
Even if the trial court improperly granted defendant a new trial pursuant to MCR 2.611(A)(1)(a), the trial court could have granted defendant a new trial on the basis of the fact that the exclusion of the evidence would have required reversal on appeal.
Affirmed.
This Court “will not reverse when the trial court reaches the correct result for the wrong reason.” People v Witherspoon, 257 Mich App 329, 335; 670 NW2d 434 (2003).