Michigan Supreme Court 

# Order

Lansing, Michigan

March 21, 2007 Clifford W. Taylor,
Chief Justice

129038 Michael F. Cavanagh

Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman, Plaintiff-Appellee, Justices

v SC: 129038 COA: 252516 Kent CC: 02-000104-FH ANGEL HERNANDEZ-GARCIA, Defendant-Appellant.

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On January 13, 2006, this Court granted leave to appeal. 474 Mich 1000 (2006). On order of the Court, the judgment of the Court of Appeals is AFFIRMED in part and VACATED in part. We affirm an d adopt the Court of Appeals holding that th e trial court correctly instructed th e jury that momentary innocent possession of a concealed weapon is not a defense to a charge of unlaw fully carrying a con cealed weapon (CCW). 1 266 Mich App 416, 417-420 (2005). People v Coffey , 153 Mich App 311 (1986), is

overruled. 2 We also affirm the Court of Appeal s holding that “the trial court’s response to the jury’s questions reg arding the definition of ‘concealment’ did not constitute a finding of fact or an order to the jury to find defendant gu ilty.” 266 Mich App at 421.

1 Our decision in People v Tombs , 472 Mich 446 (2005), doe s not require recognition of a defense of momentary i nnocent possession. In Tombs, supra at 454-455, this Court held that there exists a presumptio n that a criminal intent or mens rea requirement applies to

each element of a statut ory crime. Applying Tombs , the CCW statute, MCL 750.227(2), requires only that a defendant knowin gly possess a conceal ed weapon. The mens rea requirement does not extend to the defendant ’s purpose for carry ing the concealed

weapon.

2 Justice Kelly incorrectly a sserts that our decision to affirm the Court of Appeals decision disrupts establishe d law. As the Court of Appeals explained, Coffey is no longer good law in light of People v Pasha , 466 Mich 378 (2002). Even defendant does not dispute this conclusion. Coffey must be interpreted in light of subsequent decisions by this Court. The Court of Appeals’ reasoning in Coffey is no longer legally sustainable in light of our decision in Pasha . While we did no t explicitly overrule Coffey in Pasha , we do so today.2

We vacate the Court of Appeals holding that the trial court’s contradictory preliminary and final instru ctions regarding the validity of the momentary innocent possession defense were harm less error because defendant requested the erroneous instruction, and jurors are pres umed to follow the incorrect in struction. Nonetheless, we affirm the Court of Appeals result on different gr ounds. Even if the trial court had given consistent instructions regarding the valid ity of the momentary innocent possession defense, the outcome woul d more probably than not have been the same. People v Lukity , 460 Mich 484, 495-496 (1999).

First, even if the trial court had followed Coffey and adhered to its preliminary instruction that momentary inno cent possession is a valid d efense to CCW, the evidence does not show that defendant’s possess ion of the gun was innocent. In Coffey, supra at 315, the Court of Appeals held that “momen tary or brief possession of a weapon resulting from the disarming of a wrongfu l possessor is a valid defense against a charge of carrying a concealed weapon if the possessor had the in tention of delivering the weapon to the police at the earliest possible time.” Defe ndant admitted on the st and that he never

indicated his intention to relin quish the gun to the police on the night in question because he “was drunk.” Further, when an offi cer responding to a report of gunshots told defendant to stop walking, d efendant turned around, looked at the uni formed officer, and walked away from the officer at a faster pace. The jury did not believe defendant’s testimony that he did not conceal the gun, and there is no indication that the jury would have believed that defendant’s possession of the gun was innocent. Defendant has not shown that the jury mo re probably than not would have fo und that he inte nded to deliver the gun to the police at the earliest possible time. Ra ther, defendant’s own admission

establishes that he was not entitled to an instruction on moment ary innocent possession,

because he concedes that he did not relinquish the weapon to the police at the earliest possible time.

Conversely, if the trial court had consiste ntly instructed the jury that momentary innocent possession is not a valid defense to a CCW charg e, and defendant had instead argued the defense of duress, the outcome of the trial still would not have changed.

There is no evidence that defenda nt, in order to avoid death or serious bodily harm, was compelled to grab the unloade d gun from the sellers or to hold onto the gun and conceal it in his waistband after the sellers had run away. People v Lemons , 454 Mich 234, 247 (1997). 3

3 Justice Cavanagh argues that the error was not harmless because d efendant directed his

case toward the defense of mo mentary innocent possession, and defense counsel relied on the trial court’s acceptance of the preliminary jury instructions. But Justice Cavanagh

fails to consider that defe ndant also claimed that th e weapon was not concealed.

Defendant testified that he walk ed with the gun in front of him so that the “whole world

could see” that he “di dn’t have it concealed.” By its guilty verdict, th e jury obviously3

C AVANAGH , J., dissents and states as follows:

I disagree with the major ity’s decision to affirm the judgment of the Court of Appeals. I would grant defenda nt a new trial because the c onflicting jury instructions prejudiced defendant. It is well established that a trial c ourt must properly instruct the jury so that it may correctly and intelligently deci de the case. People v Clark , 453 Mich 572, 583 (1996). Where the tr ial court errs in misleadin g or misinforming counsel regarding the ultimate instructions that will be given to the jury and prej udice results, a new trial is required. Id . at 587. In this case, defense counsel relied on the trial court’s acceptance of the prelim inary jury instructi ons, which included an instruction on momentary innocent possession. Defendant directed his case to ward this defense, which

was still valid law at the time of the trial. People v Coffey , 153 Mich App 311 (1986). In fact, when objecting to the trial court’s final jury instructi ons, defense counsel told the trial court, “I prepared this case with this defense in mind.” Had defense counsel known

that the trial court would refuse to inst ruct on momentary innocent possession after closing arguments, he may we ll have taken a different approach at trial. For example,

defendant could have requested an instruction reg arding duress and conducted his defense accordingly. Or, as a practical matter, defendant might have pursued a plea bargain that would have resulte d in a more favorable outcome.

Further, the jury’s confusion about th e contradictory instru ctions was apparent when it sought clarification regarding the relevan ce of intent or motive. Given the jury’s

confusion and defense counse l’s extensive reliance on the validity of the defense, I cannot say that this error was harmless. Instructing the ju ry that a defense exists, allowing counsel to proceed in reliance on the preliminary ruling, and then issuing a final jury instruction that specifi cally repudiates the validity of the defense causes prejudice that can only be rectified by a new trial.

M ARKMAN , J., joins the statement of C AVANAGH , J.

K ELLY , J., dissents and states as follows:

For the reasons articulated in Justice Ca vanagh’s statement, I dissent from the order affirming the judgment of the Court of Appeals. I wr ite separately to discuss the unnecessary overruling of People v Coffey, 153 Mich App 311 (1986)

.

rejected defendant’s testimony. Justice Cavanagh also fails to acknowledge defendant’s

admission that he did not act in a manner consis tent with the intent to deliver the weapon to the police at the earl iest possible time, a necessary element of the momentary innocent possession defense articulated in Coffey . Lastly, in light of the evidence adduced at trial, Justice Cavanagh fails to articulate how th e error changed the outcome of the trial.4

On December 16, 2001, the Grand Rapids Police responded to a report of “shots fired.” Officer Jeffrey Freres found defendant leaving the crime scene and told him to stop. Defendant, who does not speak Englis h, continued to walk away until he was directed in Spanish to stop. When he turned to face the officer, the officer saw that defendant had a gun.

Defendant was arrested and charged with carrying a c oncealed weapon (CCW), MCL 750.227(2). At trial, he testified th at two men had approached him and offered to sell him drugs. When defendant told them he was not interested, one of the men offered to sell him a gun. Defendant said he sei zed the gun and fled. When the men pursued him, defendant loaded the gun and fired two shots to fright en them. He sa id he intended to call the police and tu rn the gun over to them. He tes tified that he did not immediately stop when the officer ca lled to him because he did not s ee the officer and feared that the two men were following him. He realized that it was the poli ce only when he was ordered in Spanis h to stop.

Defendant argued at trial that these factual allegations entitled him to have the jury

instructed on the defen se of momentary inno cent possession. The trial court gave a preliminary instruction on the defense but refused to give a final instructio n on it. The jury convicted defendant of CCW, and the Co urt of Appeals affirmed the conviction.

In 1986, the Court of Appeals recognized in Coffey

, supra , that momentary innocent possession could be raised as a defen se to the charge of carrying a concealed

weapon. People v Coffey . In order to establish the defens e, defendant in this case had to show that he took the weapon from a wrongful possessor. He also had to assert his intention to deliver the weap on to the police at the earliest possible time. Coffey , 153 Mich App at 315.

A majority of this Court concludes that the facts do not support an instruction on momentary innocent possession. Given that conclusion, the Court need not decide

whether Coffey should be overruled. Yet, the majority has overruled Coffey . This case represents another in a lo ng series of needless disruptions of established law. I continue to object to this practice. Cf. Joliet v Pitoniak , 475 Mich 30, 46 (2006) (Kelly, J., dissenting); People v Cornell , 466 Mich 335, 371 (2002) (Kelly, J., dissenting); People v
Kazmierczak , 461 Mich 411, 427 (2000) (Kelly, J., dissenting).

The majority claims that it has no t disrupted established law because Coffey was no longer good law in light of People v Pasha , 466 Mich 378 (2002). This simply is not

true. In Pasha , this Court held that la wful ownership of a pistol is not a prerequisite to_______________________________________ __ 5

establishing an exception to the CCW statute. Id. at 383. In so deci ding, the Court stated that “our holding is confined to an interpretation of the dwelling house exception to the

CCW statute.” Id. at 383 n 8. Since th is Court explicitly stated that its holding in Pasha

was limited to an issu e not presented in Coffey , it is preposterous to claim that, by implication, Pasha overruled Coffey

. Coffey remained good law a nd should not have

been overruled here.

t0314 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

March 21, 2007

Clerk