STATE OF MICHIGAN COURT OF APPEALS

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1 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, UNPUBLISHED March 20, 2001 v No Wayne Circuit Court BARNEY KEVIN JAMES, LC No Defendant-Appellant. Before: Whitbeck, P.J., and White and Wilder, JJ. PER CURIAM. Following a jury trial, defendant was convicted of second-degree murder, MCL ; MSA , two counts of assault with intent to commit murder, MCL ; MSA , two counts of assault with intent to commit great bodily harm, MCL ; MSA , conspiracy to commit murder, MCL (a); MSA (1), and possession of a firearm during the commission of a felony, MCL b; MSA (2). Defendant was sentenced to concurrent terms of thirty to eighty years on the murder conviction, twenty to sixty years for each assault with intent to commit murder conviction, six to ten years for each assault with intent to commit great bodily harm conviction, and life imprisonment for the conspiracy to commit murder conviction, to be served consecutive to the mandatory two-year sentence for the felonyfirearm conviction. Defendant now appeals as of right. We affirm in part, reverse in part, and remand for further action consistent with this opinion. I Defendant first argues that the trial court s conspiracy to commit murder instruction was erroneous because it failed to advise the jury that it must find defendant guilty of conspiracy to commit first-degree murder, and failed to define the requisite intent necessary for the offense. We agree. A trial court must instruct the jury concerning the law applicable to the case and must fully and fairly present the case to the jury in an understandable manner. MCL ; MSA ; People v Mills, 450 Mich 61, 80; 537 NW2d 909, modified on other grounds 450 Mich 1212; 539 NW2d 504 (1995); People v Daoust, 228 Mich App 1, 14; 577 NW2d 179 (1998). Jury instructions should be considered in their entirety, rather than extracted piecemeal, to -1-

2 determine whether there was error requiring reversal. People v Dumas, 454 Mich 390, 396; 563 NW2d 31 (1997). Even if somewhat imperfect, error will not be found if the instructions fairly present the issues to be tried and sufficiently protect the defendant s rights. Daoust, supra. At the conclusion of presentation of the proofs, the trial court instructed the jury on both first-degree murder and the lesser included offense of second-degree murder under count one. Thereafter, the trial court instructed the jury on conspiracy to commit murder as follows: The Defendant is charged with the crime of conspiracy to commit murder in count six. Anyone who knowingly agrees with someone else to commit murder is guilty of conspiracy. To prove the Defendant s guilt, the Prosecutor must prove each of the following elements beyond a reasonable doubt: First, that the Defendant and someone else knowingly agreed to commit murder. Second, that the Defendant specifically intended to commit or helped commit that crime. Third, that this agreement took place on or about August 19, If there was a conspiracy, you must decide whether the Defendant was a member of it. You may only consider what the Defendant did and said during the time the conspiracy took place. A finding that the Defendant was merely with other people who were members of a conspiracy is not enough by itself to prove that the Defendant was a member. In addition, the facts [sic] that a person did an act that furthered the purpose of an alleged conspiracy is not enough by itself to prove that that person was a member of the conspiracy. It is not necessary for all the members to know each other, or know all the details of how the crime will be committed, but it must be shown beyond a reasonable doubt that the Defendant agreed to commit the crime and intended to commit or helped commit it. The Defendant is not responsible for the acts of other members of the conspiracy, unless those acts are a part of the agreement or further the purposes of the agreement. If the Defendant agreed to commit a completely different crime, he is not guilty of conspiracy to commit murder. A person who joins a conspiracy after it has already been formed is only responsible for what he agreed to when joining, not for any agreement made by the conspiracy before he joined. Members of a conspiracy are not responsible for what other members do or say after the conspiracy ends. -2-

3 Defendant claims that the foregoing instruction was misleading because it failed to distinguish for the jury between conspiracy to commit first- and second-degree murder and, in light of the misleading instruction, there was no way to determine whether the jury found defendant guilty of conspiracy to commit first- or second-degree murder. Defendant argues that because the trial court did not instruct the jury that conspiracy to commit murder requires the prosecution to show that defendant had a specific intent to commit premeditated murder at the time the agreement was made, and that conspiracy to commit second-degree murder is not an existing offense, the jury likely did not consider the requisite element of intent in reaching its verdict. A conspiracy has been defined as a particular partnership in criminal purposes. People v Justice (After Remand), 454 Mich 334, 345; 562 NW2d 652 (1997), quoting People v Atley, 392 Mich 298, 310; 220 NW2d 465 (1974). 1 Under such a partnership, two or more individuals must have voluntarily agreed to effectuate the commission of a criminal offense. Justice, supra at 345. The gist of the offense of conspiracy lies in the unlawful agreement and, thus, it is critical to establish that the individuals specifically intended to combine to pursue the criminal objective of their agreement. Id. The conspiracy statute is a general one and makes no reference to specific underlying offenses. See MCL a; MSA (1). Thus, as part of the conspiracy instruction, the trial court must instruct the jury on the underlying offense the accused is alleged to have conspired to commit unless it was previously defined in the instructions. See CJI2d 10.1(6). This Court has previously ruled that the offense of conspiracy to commit second-degree murder does not logically exist: Criminal conspiracy is a specific intent crime which arises from a mutual agreement between two or more persons to do or accomplish a crime or unlawful act. The gist of a criminal conspiracy is the specific, mutual agreement to perform the crime in question; the conspiracy statute provides punishment for the actual advance planning and agreement to perform the substantive criminal acts. However, second-degree murder is distinguishable from first-degree murder in that it does not require premeditation and in fact may not require a specific intent to kill. 1 The statutory provision proscribing conspiracy simply states the punishment for conspiring to commit the substantive offense: Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy punishable as provided herein:... [T]he person convicted under this section shall be punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit and in the discretion of the court an additional penalty of a fine of $10, may be imposed. [MCL a; MSA (1).] -3-

4 In Hamp, supra, p 103, the Court reasoned: Since prior planning and agreement are necessary, mandatory requisite elements of the crime of conspiracy, we find it analytically consistent to plan to commit first-degree murder but logically inconsistent to plan to commit seconddegree murder. To prove a conspiracy to commit murder, it must be established that each of the conspirators have [sic] the intent required for murder and, to establish that intent, there must be foreknowledge of that intent. Foreknowledge and plan are compatible with the substantive crime of first-degree murder as both the crime of conspiracy and the crime of first-degree murder share elements of deliberation and premeditation. Prior planning denotes premeditation and deliberation. The elements of conspiracy, conversely, are incompatible and inconsistent with second-degree murder. One does not plan to commit an unplanned substantive crime. It is not absence of the elements but the inconsistency of the elements which lead [sic] us to conclude that one conspires to commit first-degree murder but not second-degree murder. Because of this logical inconsistency, we conclude as a matter of law that there is no crime of conspiracy to commit second-degree murder. [People v Hammond, 187 Mich App 105, 107; 466 NW2d 335 (1991), citing People v Gilbert, 183 Mich App 741, ; 455 NW2d 731 (1990).] See also People v Buck, 197 Mich App 404, 409; 496 NW2d 321 (1992), rev d in part on other grounds 444 Mich 853; 508 NW2d 502 (1993). Thus, because conspiracy to commit second-degree murder is not an offense under Michigan law, for the following reasons we find that the conspiracy to commit murder instruction provided to the jury was not an accurate statement of the law. First, although the trial court s conspiracy instruction essentially mirrored the language provided in CJI2d , the trial court did not reiterate the substantive offense to which the conspiracy related (first-degree murder) and, instead, simply noted that it had previously instructed the jury on the elements of first- and second-degree murder. Because conspiracy to commit second-degree murder does not exist under Michigan law, the trial court should have but did not make it clear to the jury that in order to find the defendant guilty of conspiracy to commit murder they must find that the conspiracy was to commit first-degree murder, i.e., that the conspiracy involved premeditation and deliberation. In this unique circumstance, the use note to CJI2d 10.1, advising the trial court to define the underlying crime in conjunction with the conspiracy instruction only when the crime charged has not been previously defined, does not apply. Since the jury was instructed on the elements of both first- and second-degree murder and because conspiracy to commit second-degree murder is not an existing offense, the trial court should have advised the jury in some fashion that only the elements of first-degree murder applied to the conspiracy charge. The trial court s failure to distinguish between the degrees of murder in relation to the conspiracy charge resulted in a misleading and inadequate instruction. -4-

5 Second, we are mindful that any doubts regarding the particular offense of which a defendant has been convicted should be resolved in favor of the accused. See Dumas, supra at 402; People v McNary, 43 Mich App 134, ; 203 NW2d 919 (1974), rev d in part on other grounds 388 Mich 799; 201 NW2d 845 (1972); People v Smith, 14 Mich App 502, 505; 165 NW2d 640 (1968), aff d 383 Mich 576; 177 NW2d 164 (1970). Here, defendant was convicted of both conspiracy to commit first degree murder and the lesser offense of seconddegree murder. By convicting defendant of second-degree murder, the jury ostensibly found that defendant did not possess the requisite premeditation and deliberation necessary for first-degree murder, a finding inconsistent with the jury s verdict of guilty on the conspiracy charge. On the existing record, then, we are led to the conclusion that the verdict itself suggests that the jury did not clearly understand that the instruction on conspiracy to commit murder was the equivalent of an instruction on conspiracy to commit first-degree murder. By this finding, we do not mean to imply that juries are incapable of understanding less than perfect instructions and correctly applying the law to the facts in a given case. Rather, we emphasize that in this case the jury s findings, that defendant had a premeditated intent for purposes of the conspiracy charge (the only intent possible) but lacked a premeditated intent in the commission of the murder, are inconsistent and irreconcilable, and can only be the product of insufficient understanding of the conspiracy instruction. We further find that the preserved, instructional error in this case was not harmless. This Court will not set aside a verdict on the basis of instructional error or misdirection of the jury unless such error resulted in a miscarriage of justice. MCL ; MSA ; Dumas, supra at The only question properly before the jury on the conspiracy charge was whether defendant conspired with his co-defendants to commit first-degree murder. Assuming the jury obeyed the instructions to follow the law as it was given by the trial court, see People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998), it is both possible and plausible, particularly in view of its second-degree murder verdict, that the jury convicted defendant of conspiracy to commit second-degree murder. Because the determination whether defendant possessed the requisite mental state for conspiracy to commit murder was a factual question for the jury, and on this point the jury was misguided and insufficiently instructed, we are unable to conclude that the instructional error was harmless. Accordingly, defendant s conspiracy to commit murder conviction is reversed. II Defendant next argues that the trial court erred in refusing to instruct the jury on CJI2d We disagree. At trial, defendant requested that the trial court instruct the jury in accordance with CJI2d which instructs that the act of the defendant must be the cause of death. 2 The trial court 2 CJI2d states as follows: [There may be more than one cause of death.] It is not enough that the defendant s act made it possible for the death to occur. In order to find that the death of [name deceased] was caused by the defendant, you must find beyond a -5-

6 denied the request, noting that the instruction was not intended for use in cases involving aiding and abetting, concert of action, or conspiracy. Thereafter, the trial court instructed the jury on the murder charge as follows: The Defendant in count one is charged with the offense of first[-]degree premeditated murder. The statute defining that offense, insofar as the same is material, reads: A person who commits any of the following is guilty of first[- ]degree murder: Murder perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing. In count one the Defendant is charged with the offense of first[-]degree premeditated murder. To prove this charge, the prosecution must prove each of the following elements beyond a reasonable doubt: First, that the Defendant caused the death of James White. That is, that James White died as a result of being shot. Second, that the Defendant intended to kill James White. hand. Third, that this intent to kill was premeditated. That is, thought out before Fourth, that the killing was deliberate, which means that the Defendant considered the pros and cons of the killing, and thought about and chose his actions before he did it. There must have been real and substantial reflection for along enough to give a reasonable person a chance to think twice about the intent to kill. The law does not say how much time is needed. It is for you to decide if enough time passed under the circumstances of this case. The killing cannot be the result of a sudden impulse without thought or reflection. Fifth, that the killing was not justified, excused or done under circumstances that reduce it to a lesser crime. Under the law of the State of Michigan, where the offense of first[-]degree murder is charged, the Court must charge the jury on the offense of common law murder, statutorily classified as murder in the second degree. The second[- ]degree murder statute, insofar as the same is material, reads: All other kinds of murder shall be murder of the second degree. You may also consider the lesser charge of second[-]degree murder, murder in the second degree. To prove this charge, the Prosecutor must prove each of the following elements beyond a reasonable doubt: reasonable doubt that the death was the natural or necessary result of the defendant s act. -6-

7 First, that the Defendant caused the death of James White. That is, that James White died as a result of being shot. Second, that the Defendant had one of these three states of mind: He intended to kill, or he intended to do great bodily harm to James White, or he knowingly created a very high risk of death or great bodily harm, knowing that death or such harm would be the likely result of his actions. Third, that the killing was not justified, excused, or done under circumstances that reduce it to a lesser crime. The difference between first[-]degree premeditated murder and second[- ]degree murder is that for first[-]degree premeditated murder, the Defendant must have actually intended to kill, and have premeditated the victim s death, and have deliberated or substantially reflected upon the killing beforehand. Such premeditation and deliberation is not required for second[-]degree murder. For second[-]degree murder the Defendant must have actually intended to kill, or have intended to do great bodily harm, or have created a very high risk of death or great bodily harm, with knowledge that death or great bodily harm was the probable result. Defendant argues that the italicized language in the first element of the first- and seconddegree murder instruction was improper because by instructing the jury that defendant could be found guilty of murder if the jury found that James White died as a result of a gunshot, without further instructing that it must find defendant actually fired the fatal shot, the trial court relieved the prosecution of proving an essential element of the offense, that defendant caused James White s death. Defendant claims that the trial court s instruction effectively shifted the burden to defendant to prove that someone other than defendant fired the shot that killed James White. Defendant contends that an instruction in accordance with CJI2d would have clarified that the jury was required to find that defendant s actions were the actual cause of James White s death in order to find him guilty of murder. After a thorough review of the record, we agree with the trial court that CJI2d was not an appropriate instruction under the circumstances. The jury was adequately informed that it must find defendant caused the death of James White in the first element of the murder instruction. Defendant s theory of the case was that he was wrongly accused of shooting James White, that he was misidentified by those witnesses who named him as the perpetrator or placed him at the scene of the crime, and that James White was shot by his uncle, Joseph White. Defendant did not claim that there was an intervening cause of White s death and, in fact, it was undisputed that James White died as a result of a gunshot wound to the head. Furthermore, there was no evidence introduced at trial to support defendant s theory that Joseph White or someone other than defendant or his co-defendants shot the decedent. While Officer McDowell -7-

8 of the Detroit Police Department testified that Joseph White disclosed the location of a previously hidden assault rifle, McDowell also testified that Joseph denied shooting the rifle that evening. In addition, though Officer McDowell testified that he believed Joseph White was in possession of the rifle at the time of the shooting and might have shot the rifle on the night in question, he acknowledged there was no evidence to this effect and that his belief was speculative. For this reason, he never placed his opinion in this regard in the incident report. Further, Joseph White testified that he was not in possession of a gun at the time James White was shot. Finally, Detroit Police Officer Pauch, an expert in firearms identification, testified that none of the sixteen shell casings found at the scene of the shooting matched the rifles in evidence, including the rifle discovered with the help of Joseph White. The defense declined to cross-examine Officer Pauch or offer any evidence to rebut his expert opinion. Thus, the trial court properly denied the request for CJI2d 16:15, since the only evidentiary issue before the jury was whether the fatal shot was fired by defendant or one of his co-defendants, not whether James White died as a result of a gunshot fired by Joseph White, or another, intervening form of homicide. Moreover, the prosecutor s theory at trial was two-fold: (1) that defendant fired the fatal gunshot killing James White, or (2) if defendant did not fire the fatal shot, he participated in the offense as an aider and abettor. The trial court s instruction clearly related to the jury that it must find defendant s conduct, either as a principal or an aider and abettor, caused the death of James White. On these facts, the trial court was not required to instruct the jury that to find defendant guilty of murder, it must find defendant fired the fatal shot because he could be found guilty of the charged offense as an aider and abettor in the shoot-out even if one of his co-defendants fired the shot that killed James. People v Brown, 184 Mich App 567, 571; 459 NW2d 19 (1990); People v Daniels, 172 Mich App 374, ; 431 NW2d 846 (1988); People v Dykes, 37 Mich App 555, 559; 195 NW2d 14 (1972). We are not convinced that the trial court s murder instruction, particularly on the element of causation, was misleading or inaccurate. See People v Warren, 228 Mich App 336, 348; 578 NW2d 692 (1998), lv granted 460 Mich 851; 595 NW2d 858 (1999). When viewed in its entirety, the murder instruction adequately related the issues to the jury and sufficiently protected defendant s rights. Dumas, supra at 396; Daoust, supra at 14. III Lastly, defendant argues that the trial court made a number of erroneous evidentiary rulings. We review a trial court s ruling to admit or exclude evidence for an abuse of discretion. People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998); People v Rice (On Remand), 235 Mich App 429, 439; 597 NW2d 843 (1999). Upon review of the record, we find no abuse of discretion in the trial court s rulings. First, we find that evidence pertaining to the alleged firebombing of Reginald Vines mother s house was irrelevant to the charged offenses against defendant. MRE 402. The alleged firebombing occurred more than one year after the shooting that killed James White and had no bearing on defendant s state of mind at the time of the shooting. Moreover, the alleged perpetrators of the firebombing were not identified or otherwise connected to the shooting in this -8-

9 case and their conduct over a year after the charged offense was of no relevance to any material issue in this case. Further, defendant was allowed to introduce evidence concerning previous disputes or bad blood between himself and his accusers for the purpose of showing bias and motive. Accordingly, we find no abuse of discretion in the trial court s ruling. We likewise reject defendant s argument that the trial court erred in excluding evidence of pending charges against prosecution witnesses arising out of their involvement in the alleged firebombing. Defendant argued for the first time on appeal that the evidence was admissible to show that the witnesses may be susceptible to pressures from the prosecution and may have a personal motive for testifying in a certain manner. Defendant did not argue this basis for admission of the evidence at trial, and did not otherwise demonstrate that the witnesses charged with the firebombing were indeed susceptible to prosecutorial pressures or testifying pursuant to an agreement. An objection based on one ground at trial is insufficient to preserve an appellate attack based on a different ground. People v Stimage, 202 Mich App 28, 30; 507 NW2d 778 (1993). Therefore, we deem this argument abandoned. People v Parcha, 227 Mich App 236, 248; 575 NW2d 316 (1997). Defendant next argues that the trial court abused its discretion in excluding evidence that Tyrone Knowles pleaded guilty to firebombing defendant s mother s house the day after the shooting and that he was sentenced to five to twenty years in prison for that conviction. However, we agree with the trial court s ruling that the evidence was inadmissible because the offense did not involve an element of theft, dishonesty, or false statement as required by MRE 609. Parcha, supra at 241. Accordingly, we find no abuse of discretion. Lastly, defendant claims that he was prejudiced by the manner in which the judge responded to the proffered evidence. However, defendant did not object to any of the alleged improper remarks by the trial court and, thus, has not preserved this issue for appellate review. People v Paquette, 214 Mich App 336, 340; 543 NW2d 342 (1995). In the absence of a timely objection, this Court will only review claims of trial court misconduct to avoid manifest injustice. Id. A trial court has wide discretion and power in the matter of trial conduct. Id. Portions of the record should not be taken out of context in order to show trial court bias; rather, the record should be reviewed as a whole. Id. A trial court s conduct pierces the veil of judicial impartiality where its conduct or comments unduly influence the jury and thereby deprive the defendant of a fair and impartial trial. Id. After reviewing the challenged comments in the context of the entire record, we conclude that the jury was not unduly influenced and defendant did not suffer manifest injustice by any of the trial court s remarks. Accordingly, we decline to further review this unpreserved claim. Paquette, supra. Affirmed in part, reversed in part, and remanded for further action consistent with this opinion. -9-

10 We do not retain jurisdiction. /s/ Kurtis T. Wilder -10-

11 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED March 20, 2001 v No Wayne Circuit Court BARNEY KEVIN JAMES, LC No Defendant-Appellant. Before: Whitbeck, P.J., and White and Wilder, JJ. WHITE, J. (concurring in part and dissenting in part). I agree with the statements of controlling law in the lead and dissenting opinions. I do not, however, draw the same conclusions upon applying the law to the facts of the instant case. While the lead opinion correctly states that defendant contended that he was wrongly accused of shooting the victim and was misidentified by those who named him as the perpetrator or placed him at the scene, this was only one theory of defense. Defendant also argued that whoever the perpetrators were, whether defendant and his brother or others, their intent at the time was to scare and terrorize, not to kill, and further argued that the fatal bullet was not shot by defendant or those with him, but, rather, was shot by the victim s uncle, who was not one of defendant s alleged companions, but one of the group at which defendant was allegedly shooting. I do not agree that the instruction clearly related to the jury that it must find defendant s conduct, either as a principal or an aider and abettor, caused the death of James White. The court stated the causation requirement as: First, that the Defendant caused the death of James White. That is, that James White died as a result of being shot. The jury was not required to find that James White was shot by defendant, one of his coconspirators, or someone he was aiding and abetting, or, if not, that there was the requisite causal connection between defendant s conduct and the shooting. Rather, the jury was instructed, in effect, that causation was established upon a finding that James White died as a result of being shot, without regard to who shot him, including Joseph White. -1-

12 As to the conspiracy instruction, I agree that reversal is required. The conspiracy instruction only required that the jury find that defendant and someone else knowingly agreed to commit murder, and that defendant specifically intended to commit or help commit 1 that crime. The instruction did not require that the jury find that defendant agreed and intended to commit first-degree murder. The dissent concludes both that the jurors were informed of every piece of information about the law of conspiracy necessary to make a factual determination within the bounds of the law, and that jurors have the capacity to infer that first-degree murder is the only degree of murder that can be planned in advance and, as a result, it is the only degree of murder for which there can be an agreement that is the core of a conspiracy. I respectfully disagree. The proposition that first-degree murder is the only degree of murder that can be planned in advance and the subject of a conspiracy is a statement of the law, previously announced by this Court, that is not necessarily self-evident, especially to lay persons who have never been so informed. One of defendant s theories of the case was that the shooters did not intend to kill, but only to scare or terrorize. The jury could have found that the four men planned, agreed and intended to go to the area and shoot it up, not intending to kill, but knowingly agreeing and intending to create a very high risk of death or great bodily harm. 2 Logically, and following the court s instructions on the substantive offenses of first-degree and second degree murder, the jury could have concluded, based on such findings, that defendant was guilty of conspiracy to commit second-degree murder. Under the circumstances that the jury was not informed that conspiracy to commit second-degree murder is an impossible verdict, the legal proposition is not self-evident in light of the evidence and the second-degree murder and conspiracy instructions, and neither the instructions nor the verdict form restricted the jury s consideration to conspiracy to commit first-degree murder, this Court should not assume that the jury restricted itself to consideration of conspiracy to commit first-degree murder only. On this record, there is no way to know whether the jury found defendant guilty of conspiracy to commit murder because it concluded that defendant agreed with others and intended to commit or help commit premeditated murder (presumably of Joseph White or Derrick Sanders based on the verdicts), 3 or because defendant agreed with others and intended to do acts that constituted second-degree murder under the court s murder instructions. Lastly, I do not agree that the court complied with the standard instruction. The standard 1 The court erroneously used the word helped rather than help. 2 As observed by the lead opinion, this is consistent with the verdict of second-degree murder as to James White s death. In fact, as to James White, verdicts of guilty of conspiracy to commit first-degree murder and guilty only of second-degree murder are inconsistent based on the facts, where the jury was instructed on transferred intent. 3 The conspiracy instruction did not direct the jury s attention to a particular victim. The conspiracy verdict might have related to a finding that there was a conspiracy to commit the first degree murder of White or Sanders, but such a verdict would require a finding that there was an agreement to commit premeditated murder, and such a finding cannot be inferred simply from the jury s verdicts of guilty of assault with intent to murder as to White and Sanders. That verdict simply tells us that the jury found that at the time he shot at them, defendant intended to kill White and Sanders. It does not speak to premeditation or deliberation, or to an agreement involving someone else. Thus, again, it is impossible to know the basis of the jury s verdict unless we presume that it knew that conspiracy to commit second-degree murder is an impossible verdict. -2-

13 instruction contemplates reference to the crime charged. Here, defendant was charged with conspiracy to commit first-degree premeditated murder. Had the trial court properly referred to that charge, there would have been no need to refer back to any elements of the offense since the instruction had already been given. I agree that defendant s additional claims of reversible error lack merit. I conclude that defendant must be granted a new trial on the murder and conspiracy to murder counts due to prejudicial instructional error. /s/ Helene N. White -3-

14 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, UNPUBLISHED March 20, 2001 v No Wayne Circuit Court BARNEY KEVIN JAMES, LC No Defendant-Appellant. Before: Whitbeck, P.J., and White and Wilder, JJ. WHITBECK, J. (concurring in part and dissenting in part). I concur in the lead opinion s reasoning and result concerning the trial court s refusal to instruct the jury pursuant to CJI2d and the various evidentiary issues defendant Barney James raises in this appeal. I, too, would affirm on those grounds. However, I respectfully dissent from the lead opinion s conclusion that the trial court s conspiracy instruction mandates reversing James conspiracy conviction. As the lead opinion points out, Michigan s trial courts have an independent obligation to instruct the jury on the law before the jury retires to deliberate. MCL ; MSA ; see also MCR 6.414(F). At their best, jury instructions are clear and concise, explaining the law in an understandable manner that helps define the difficult factual matters that the jury must decide. See People v Woods, 416 Mich 581, ; 331 NW2d 707 (1982). The Michigan State Bar Standing Committee on Standard Criminal Jury Instructions has attempted to make this often complex instructional duty easier by drafting model instructions, a project the Michigan Supreme Court has encouraged without formal endorsement for almost twenty-five years. See Administrative Order ; People v Vaughn, 447 Mich 217, 235, n 13; 524 NW2d 217 (1994) (Brickley, J.), overruled on other grounds by People v Carines, 460 Mich 750, ; 597 NW2d 130 (1999). In general, I think it fair to say that in most instances, the standard criminal jury instructions are legally correct and likely accomplish their goal of increasing juror comprehension of the law through their plain language. There have been a few instances in which the standard criminal jury instructions have been erroneous and so the courts have disapproved of them. See, e.g., People v Petrella, 424 Mich 221, 227, 276; 380 NW2d 11 (1985); People v Legg, 197 Mich App 131, ; 494 NW2d 797 (1992); People v Moore, -1-

15 176 Mich App 555, ; 440 NW2d 67 (1989) (Hammond, J. concurring); see also People v Dykhouse, 418 Mich 488, 511, n 15; 345 NW2d 150 (1984) (Cavanagh, J., dissenting). In my view, however, this case does not involve an instruction that is legally erroneous or otherwise misleading, both of which are factors that would support reversing a criminal conviction. See People v Morey, 230 Mich App 152, , 165; 583 NW2d 907 (1998), aff d 461 Mich 325 (1999); People v Graham, 219 Mich App 707, ; 558 NW2d 2 (1996); see generally People v Burden, 141 Mich App 160, ; 366 NW2d 23 (1985). Rather, CJI2d 10.1, when read with CJI2d 102. and 10.3, accurately states the law of conspiracy. See People v Barajas, 198 Mich App 551, ; 499 NW2d 396 (1993) (relying on CJI2d 10.1 to define a conspiracy); see also People v Atley, 392 Mich 298, ; 220 NW2d 465 (1974) (outlining the elements of conspiracy). Although the instruction relies on a separate definition of the offense the defendant allegedly conspired to commit, the jurors heard every piece of information about the law of conspiracy necessary to make a factual determination within the bounds of the law. In my view, courts can assume that, with this proper information, the jury in fact made a decision within the legal limits. See generally People v Burkard, 374 Mich 430, 438; 132 NW2d 106 (1965). Perfection, even if achievable, is not the standard appellate courts apply when reviewing the instructions a trial court issued to the jury. See People v Johnson, 164 Mich App 634, 642; 417 NW2d 117 (1987). While there are any number of things that the trial court here could have done to improve the conspiracy instructions it issued to the jury, trial courts must issue instructions that are fair and accurate. People v Daniel, 207 Mich App 47, 53; 523 NW2d 830 (1994). I regard the instructions in this case as being fair and accurate. Therefore, I would hold that there was no error requiring reversal of James conviction for conspiracy. The lead opinion states that it does not mean to imply that juries are incapable of understanding less than perfect instructions and are correctly applying the law to the facts in a given case. Respectfully, I suggest that it is certainly possible to draw just such an implication from the balance of the opinion. Contrary to such an implication, I believe that jurors will be able to piece together disparate parts of the final instructions issued before deliberations in order to understand the law. While the job may be a difficult one in any particular case, we not only assume that jurors are up for this task, we rely on them to exercise the logic and skills that are necessary to understand the law on a routine basis. In fact, the judicial system trusts jurors to make extremely difficult decisions in even the most complex cases involving technical problems spanning diverse fields such as engineering, medicine, and commercial finance. Further, to carry out their duties, jurors must be able to look at the evidence presented over the course of a trial and consider specific pieces of the evidence together to make a complete picture of the facts in a particular case. This requires jurors to be able to recall information presented sometimes even months before they are released to deliberate. Although criminal law can be every bit as complex as other technical fields that may challenge jurors to think and understand the facts of a case, it is a form of hubris for courts and attorneys to believe that criminal law is so much more complex than these other fields that a jury could not understand an instruction that was somewhat less than perfect. It is not beyond a reasonable juror s ability to hear criminal law instructions, think about them logically, and then apply them, -2-

16 just as that juror would be able to apply an engineering expert s testimony to a product liability case. In fact, juries benefit from the fact that instructions are read as a whole, rather than being scattered across several days of a trial, as evidence is often presented. Further, instructions are quite frequently the very last thing the jurors hear before they commence deliberating. Consequently, I have every reason to believe that when a trial court issues CJI2d 10.1 in a murder case, jurors have the capacity to infer that first-degree murder is the only degree of murder that can be planned in advance and, as a result, it is the only degree of murder for which there can be an agreement that is the core of a conspiracy. While I do not share in the lead opinion s decision to reverse the conspiracy conviction in this case, I agree without reservation that this case presents an opportunity to urge further improvement in the standard jury instructions for criminal cases and that this Court should not ignore such an opportunity. Although I believe that CJI2d 10.1 is minimally adequate, I concur in the lead opinion s implicit conclusion that it lacks clarity. I strongly encourage the Standing Committee on Standard Criminal Jury Instructions to revisit CJI2d 10.1 to determine if it can be drafted in a clearer manner. In particular, I would support a new use note to the very first sentence in the instruction informing the trial court that it must specify the degree of any crime underlying the conspiracy in every case in which the underlying crime is divided into degrees. /s/ William C. Whitbeck -3-

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