People v. Binder

• Decision Date: 12 January 1996
• Docket Number: Docket No. 179588
• Citation: 215 Mich.App. 30,544 N.W.2d 714
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Peter J. BINDER, Defendant-Appellant. (On Remand).
• Court: Court of Appeal of Michigan — District of US

Page 714

544 N.W.2d 714

215 Mich.App. 30

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Peter J. BINDER, Defendant-Appellant. (On Remand).

Docket No. 179588.

Court of Appeals of Michigan.

Submitted Oct. 24, 1994, at Lansing.

Decided Jan. 12, 1996, at 9:15 a.m.

Released for Publication March 19, 1996.

[215 Mich.App. 32] Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief Appellate Division, and Thomas S. Richards, Assistant Prosecuting Attorney, for the People.

Philip A. Gillis, Clinton Township, for defendant on appeal.

Before MARILYN J. KELLY, P.J., and REILLY and McDONALD, JJ.

ON REMAND

MARILYN J. KELLY, Presiding Judge.

This case is before us as on rehearing granted by order of the Supreme Court pursuant to MCR 7.302(F)(1). The Supreme Court instructed us to consider two issues not addressed by the majority in People v. Binder, unpublished opinion per curiam of the Court of Appeals, issued November 3, 1993 (Docket No. 137274).

Both questions concern a defendant charged with delivery of 650 grams of a controlled substance contrary to M.C.L. § 333.7401(2)(a)(i); M.S.A. § 14.15(7401)(2)(a)(i). The first is whether the trial court is obliged, even over objection, to sua sponte instruct the jury on simple possession. M.C.L. § 333.7403(2)(a)(i); M.S.A. § 14.15(7403)(2)(a)(1). The second is whether, in such an instance, M.C.L. § 768.32(2); M.S.A. § 28.1055(2) precludes an instruction on mere possession. M.C.L. § 333.7403(2)(b); M.S.A. § 14.15(7403)(2)(b). If so, has the Legislature interfered with procedural matters left exclusively to the judiciary by the Michigan constitution? Const. 1963, art. 6, § 5.

Upon reconsideration, we resolve the Supreme Court's first question by concluding that the judge is not required to give the instruction on possession of over 650 grams. We next conclude that the portion of the statute which limits the offenses upon which the judge may instruct the jury is unconstitutional. M.C.L. § 768.32(2); M.S.A. § 28.1055(2), Const. 1963, art. 6, § 5.

I

A

Considering whether a jury must be given a simple possession instruction where a defendant has been charged with delivery, we note that an analogous issue was considered in People v. Jenkins, 395 Mich. 440, 442, 236 N.W.2d 503 (1975). There, the defendant had been accused of first-degree murder, and the question was whether a sua sponte second-degree murder instruction was required.

The Supreme Court concluded that the jury instruction must be given. Instructions on first- and second-degree murder were necessary because of the significant difference in penalties for the two offenses. Also, first-degree murder necessarily includes the lesser offense of second-degree murder.

Interestingly, here, neither defendant's counsel nor the prosecutor argues in favor of an instruction, sua sponte, even over objection, on the lesser offense of possession of over 650 grams. M.C.L. § 333.7403(2)(a)(i); M.S.A. § 14.15(7403)(2)(a)(i). Defense counsel points out that there is no practical difference between the sentences. He stresses that the real effect of requiring an instruction on possession sua sponte, even over objection is to lubricate a jury's inclination to convict.

The prosecutor argues that possession is not a necessarily lesser included offense of the crime of delivery. All the elements of possession are not contained in a delivery charge. He asserts that the instruction need be given only if the evidence supports it, citing People v. Jones, 395 Mich. 379, 390, 236 N.W.2d 461 (1975). He asserts that the instruction would permit individuals engaged in the delivery of controlled substances to be convicted of a crime with a far less severe penalty; it would be contrary to one of the Legislature's specific strategies in combatting the drug problem.

The arguments are opposed but the conclusion that requiring the instruction would make it easier for a jury to convict of the lesser offense is identical.

B

If we were to apply the reasoning of the Supreme Court in Jenkins on the differences between the two penalties, we would reject the arguments of both parties. We would conclude that, if punishment alone were the determining factor here, the instruction on possession would be required sua sponte, even over objection. M.C.L. § 333.7403(2)(a)(i); M.S.A. § 14.15(7403)(2)(a)(i). M.C.L. § 333.7401(3); M.S.A. § 14.15(7401)(3) indicates that parole is not available for individuals convicted under § 7401(2)(a)(i) or § 7403(2)(a)(i). However, our Supreme Court has held that mandatory life imprisonment without possibility of parole is "cruel or unusual punishment" for conviction of possession of 650 grams or more under § 7403(2)(a)(i), People v. Bullock, 440 Mich. 15, 485 N.W.2d 866 (1992), but not for delivery of the same amount under § 7401(2)(a)(i), People v. Fluker, 442 Mich 891, 498 N.W.2d 431 (1993).

However, Jenkins also mandates that we consider whether possession is a lesser necessarily included offense of delivery, as they are defined in their respective statutes. M.C.L. § 333.7403(2)(a)(i); M.S.A. § 14.15(7403) (2)(a)(i), M.C.L. § 333.7401(2)(a)(i); M.S.A. § 14.15(7401)(2)(a)(i).

The conventional wisdom of our Courts has concluded that possession is not a necessarily included lesser offense of delivery. In 1979, the Supreme Court wrote:

Our case law makes clear that possession of a controlled substance may, though need not, be a lesser included offense of unlawful delivery.... In People v. Stewart (On Rehearing), 400 Mich. 540, 256 N.W.2d 31 (1977), this Court stated:

"In a given case, sale may be found without possession. Likewise, possession may be determined without sale...." 400 Mich 540, 548 . [People v. Kamin, 405 Mich. 482, 497-498, 275 N.W.2d 777 (1979), overruled in part on other grounds in People v. Beach, 429 Mich. 450, 484, 418 N.W.2d 861 (1988).]

This distinction has been made consistently. See e.g. People v. Leighty, 161 Mich.App. 565, 577-578, 411 N.W.2d 778 (1987); People v. Patrick, 178 Mich.App. 152, 161-162, 443 N.W.2d 499 (1989).

C

One might argue that it is impossible for a party to manufacture, deliver or intend to manufacture or deliver a controlled substance without at least constructive possession of it. However, in our estimation, such an analysis unnecessarily adds the element of constructive possession to the crime. Requiring proof of constructive possession inappropriately creates a doorway through which drug traffickers, particularly those high in the distribution chain, can escape.

Earlier judicial decisions finding the crimes of possession and delivery to be cognate offenses must have been made in partial recognition of the problems any other interpretation would create. We adopt the reasoning of our predecessors and reiterate that possession of a controlled substance is not a lesser, necessarily included offense of delivery.

Consequently, we find that the trial judge is not required to give, sua sponte, even over objection, an instruction on possession when a defendant is tried for a delivery offense, M.C.L. § 333.7403(2)(a)(i); M.S.A. § 14.15(7403)(2)(a)(i), M.C.L. § 333.7401(2)(a)(i); M.S.A. § 14.15(7401)(2)(a)(i) respectively.

D

Having concluded that a sua sponte jury instruction on possession under § 7403(2)(a) is not required, we now address whether defendant is nevertheless entitled to the instruction he requested on possession under § 7403(2)(b); M.C.L. § 333.7403(2)(b); M.S.A. § 14.15(7403)(2)(b). Possession of cocaine is a cognate lesser included offense of delivery of cocaine. People v. Marji, 180 Mich.App. 525, 530, 447 N.W.2d 835 (1989). Ordinarily, defendant would be entitled to the requested instruction if the evidence supported it. People v. Veling, 443 Mich. 23, 36, 504 N.W.2d 456 (1993). However, we conclude that, in this case, he was not entitled to it.

Before the enactment of 1994 P.A. 38, possession of cocaine, in any amount, was punishable under both § 7403(2)(a) and § 7403(2)(b). A detailed explanation appears in People v. Gridiron, 185 Mich.App. 395, 460 N.W.2d 908 (1990).

The conflict that existed between § 7403(2)(a) and § 7403(2)(b) in cases involving cocaine is readily apparent when a concrete application of them is made. For example, a person convicted of possession of cocaine in excess of 650 grams "shall be imprisoned for life" under § 7403(2)(a)(i). However, under § 7403(2)(b), punishment for the same offense, possession of a controlled substance classified in schedule 2, was limited to "imprisonment for not more than 2 years, or a fine of not more than $2,000, or both." It seems obvious that the inconsistency in the two provisions was the result of a mistake in the drafting of the statute, not legislative intent. The enactment of 1994 P.A. 38 eliminated the overlap between § 7403(2)(a) and § 7403(2)(b). ¹

Although defendant was tried before the effective date of the 1994 amendment, the more specific provision concerning cocaine, § 7403(2)(a)(i)-(iv), was controlling. ² Therefore, defendant's offense was not punishable under § 7403(2)(b) and defendant was not entitled to an instruction that would allow the jury to convict him of possession under that subsection.

II

A

Although we find that determining the constitutionality of M.C.L. § 768.32(2); M.S.A. § 28.1055(2) is unnecessary in light of our conclusion in section I, supra, we address it because the Supreme Court directed us to do so.

M.C.L. § 768.32(2); M.S.A. § 28.1055(2) provides:

Upon an indictment for an offense specified in section 7401(2)(a)(i) or (ii) or section 7.403(2)(a)(i) or (ii) of the public health code, Act No. 368 of the Public Acts of 1978, being sections 333.7401 and 333.7403 of the Michigan Compiled Laws, or conspiracy to commit 1 or more of these offenses, the jury, or judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment...