People v. Torres

• Citation: 564 N.W.2d 149,222 Mich.App. 411
• Decision Date: 25 March 1997
• Docket Number: Docket No. 197735
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gavino TORRES, Defendant-Appellant.(On Remand)
• Court: Court of Appeal of Michigan (US)

Page 149

564 N.W.2d 149

222 Mich.App. 411

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gavino TORRES, Defendant-Appellant.(On Remand)

Docket No. 197735.

Court of Appeals of Michigan.

Submitted Sept. 19, 1996, at Lansing.

Decided March 25, 1997, at 9:00 a.m.

Released for Publication June 6, 1997.

[222 Mich.App. 413] 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...