People v. Martin, Docket No. 132168.

CourtSupreme Court of Michigan
Citation752 N.W.2d 457,482 Mich. 851
Docket NumberCOA No. 256461.,Docket No. 132168.,COA No. 256463.,Docket No. 132169.,Docket No. 132170.,COA No. 256464.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Bobby Dean MARTIN, Roger Thompson, and Roger Brown, Defendants-Appellees.
Decision Date18 July 2008

On order of the Court, the application for leave to appeal the June 13, 2006 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we AFFIRM the Court of Appeals decision holding that the trial court erred when it instructed the jury that it could convict defendants of keeping a house of prostitution as a necessarily included lesser offense of racketeering. This Court has made clear that a harmless error analysis is applicable to instructional errors involving necessarily included lesser offenses. People v. Cornell, 466 Mich. 335, 361-362, 646 N.W.2d 127 (2002), citing People v. Mosko, 441 Mich. 496, 503, 495 N.W.2d 534 (1992). Because the Court of Appeals failed to consider whether the error was harmless, we do so.

Preserved, nonconstitutional error is not grounds for reversal unless it is more probable than not that the error was outcome determinative. Cornell, supra at 363-364, 646 N.W.2d 127. We conclude that the error was not harmless. See People v. Hawthorne, 474 Mich. 174, 713 N.W.2d 724 (2006); People v. Silver, 466 Mich. 386, 646 N.W.2d 150 (2002). It is not likely that defendants would have been convicted of keeping a house of prostitution had the trial court not erroneously instructed the jury that it could be considered as a lesser included offense of racketeering.

MARILYN J. KELLY, J., concurs and states as follows:

The Court of Appeals correctly held that the trial court erred by instructing the jury that it could convict defendants of keeping a house of prostitution. If a harmless error analysis applies in this situation, I agree that the instructional error was not harmless.

I write separately because I believe that the error was constitutional in nature. When an instructional error violates a defendant's right to due process, it may rise to the level of a constitutional error.1 "A fair trial is a right guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution."2

To prove racketeering, the prosecution must prove that a defendant committed at least two of the enumerated predicate offenses.3 Here, the amended information identified keeping a house of prostitution and accepting the earnings of a prostitute as the predicate offenses. Thus, to convict defendants of racketeering, the prosecution had to prove that defendants were guilty of both predicate offenses. Accordingly, defendants could have conceded that they kept a house of prostitution and still not have been convicted of racketeering.

Although defendants did not make that concession, they may not have applied their strongest efforts to prevail on that issue, judging it unnecessary. However, their strategy might have been quite different if, before the jury was instructed, they had had notice that they could have been convicted of keeping a house of prostitution.

I conclude that defendants did not receive a fair trial because they did not have notice that they could be separately convicted of the predicate offense. This deprivation of notice and of a fair trial appears to be a due process violation that rendered the instructional error constitutional in nature.4

MARKMAN, J., concurs and states as follows:

Under MCL 768.32, a defendant can only be convicted of an offense that is charged in the indictment or of a necessarily included lesser offense. People v. Cornell, 466 Mich. 335, 353-358, 646 N.W.2d 127 (2002).5 The indictment here did not charge defendants with keeping a house of prostitution; it only charged defendants with racketeering. Moreover, keeping a house of prostitution is not a necessarily included lesser offense of racketeering because one can commit racketeering without keeping a house of prostitution. Id. at 361, 646 N.W.2d 127 (defining necessarily included lesser offense as one in which it is "impossible to commit the greater offense without first committing the [necessarily included lesser] offense.")

The original indictment here listed three predicate offenses. The prosecutor was required to prove two of these in order to convict defendants of racketeering. Therefore, defendants could have conceded that they had kept a house of prostitution and still not have been convicted of racketeering. Before trial, the prosecutor amended the information to list only two predicate offenses. However, defendants again could have conceded that they had kept a house of prostitution and not have been convicted of racketeering; the prosecutor still would have been required to prove that defendants committed both of the predicate offenses. Therefore, defendants were not placed on notice that they had to argue that they had not kept a house of prostitution in order to avoid conviction. Indeed, given that the trial court denied the prosecutor's motion to amend the information to directly charge the predicate offenses because the motion was filed after the deadline for the filing of motions had passed, defendants were placed on notice that they were not facing separate charges for the predicate offenses.6

For these reasons, I concur in the majority's order affirming the Court of Appeals. I also concur in the majority's conclusion that, if harmless-error analysis is applicable, the error here was not harmless. However, I question whether harmless-error analysis is even applicable here. The majority cites two cases in support of this proposition, Cornell, supra at 361-362, 646 N.W.2d 127, and People v. Mosko, 441 Mich. 496, 503, 495 N.W.2d 534 (1992). However, the error in those cases was the failure to instruct on a necessarily included lesser offense; in this case, the error was to affirmatively instruct on an offense that was not a necessarily included lesser offense. That is, in both Cornell and Mosko, the trial court failed to instruct the jury that it could convict the defendant of a necessarily included lesser offense, while here the court instructed the jury that it could convict defendants of an offense that was not a necessarily included lesser offense.

Harmless-error analysis is applicable to the former error because it is possible that the error was harmless, i.e., even if instructed on the necessarily included lesser offense, the jury might not have convicted the defendant of that offense. However, harmless-error analysis is not applicable to the latter error because I do not believe a situation can be conceived in which such an error would ever be harmless.7 That is, whenever the trial court instructs on an offense that is not a necessarily included lesser offense and the jury convicts the defendant of that offense, the error would obviously not be harmless because the jury convicted the defendant of an offense that it should not have even been allowed to consider.8

YOUNG, J., joins the statement of MARKMAN, J.

WEAVER, J., dissents and states as follows:

I dissent from the order holding that the alleged error is necessarily harmful and I join Justice Corrigan's statement. I would grant the Attorney General's application for leave to appeal or remand this case for harmless-error analysis.

CORRIGAN, J., dissents and states as follows:

I would grant the Attorney General's application for leave to appeal or remand this case for harmless-error analysis. The Court of Appeals reversed defendants' convictions of maintaining a house of ill fame on the ground that it was not a necessarily included lesser offense of racketeering. People v. Martin, 271 Mich.App. 280, 721 N.W.2d 815 (2006). Determining whether the offense is necessarily included or separate and distinct, however, is essentially a meaningless exercise in the special circumstances of racketeering prosecutions. The charge of which defendants were convicted was specifically laid out in the information as a predicate offense of racketeering. Defendants had explicit notice of the offense of which they were ultimately convicted in the charging document. They vigorously defended against it. Accordingly, any error is harmless.

Racketeering is a unique crime. In order to establish the substantive offense of racketeering, the prosecution must prove at least two specifically enumerated separate offenses,9, often referred to as "predicate offenses". Proof of these predicate offenses establishes the "pattern of racketeering activity" necessary for a racketeering conviction.10 When charging a defendant with racketeering, the prosecution must provide the defendant with notice of the specific predicate offenses underlying the racketeering charge.

Here, defendants worked at a topless bar in Belleville. The prosecution charged defendants with racketeering under MCL 750.159i, alleging that dancers at the bar engaged in prostitution in a VIP room and then turned over their earnings to defendants and other managerial employees. The basis of the racketeering charge rested on the predicate offenses of maintaining a house of ill fame, MCL 750.452, and knowingly accepting or receiving the earnings of a prostitute, MCL 750.457. Specifically, the amended information stated:

1) On or about various dates from January 1, 1997 through October 25, 2002, in Van Buren Township, Wayne County, Michigan, co-defendants did commit and/or conspired to commit the following offense for financial gain, to wit: did keep, maintain or operate, or aid and abet in keeping, maintaining or operating a house of ill fame, bawdy house or place at 50778 Michigan Avenue, Van Buren Township, resorted to for the purpose of prostitution or lewdness; contrary to MCL 750.452; MSA 28.707.

2) On or about various dates from 1997 to October 25, 2002, in Van Buren Township, Wayne County, Michigan,...

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