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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 12, 2017

v No. 324384 Wayne Circuit Court CHARLES DAMON JONES, LC No. 12-000948-FC

Defendant-Appellant.

Before: R ONAYNE K RAUSE , P.J., and S AWYER and S TEPHENS , JJ.

S AWYER , J. ( concurring in part and dissenting in part ).

I concur with the majority’s opinion, except for part V. Whil e I agree with the majority’s conclusion in part V that there was sufficient evidence to supp ort his conviction for seconddegree murder and the trial court properly denied a directed ve rdict, I dissent as to the majority’s conclusion in part V that defenda nt is entitled to a new trial based upon inconsistent verdicts. 1

While the majority acknowledges that inconsisten t verdicts are not a basis to reverse a conviction, it looks to the Supreme Court’s decision in People v Lewis , 415 Mich 443; 330 NW2d 16 (1982), and this Court’s decision in People v McKinley , 168 Mich App 496; 425 NW2d 460 (1988), in support of its conclusion that reversal is required based upon jury confusion. I disagree w ith this assessment.

First, I believe that care must be taken in deciding how much can be read into the Court’s decision in Lewis . In Lewis , Justice L EVIN identified three possible explanations for an inconsistent jury verdict: (1) jury leniency, (2) jury comprom ise and (3) jury confusion. 415 Mich at 450. The opinion goes on to state that, if it is a cas e of jury leniency, the defendant has no reason to complain as there is no prejudice to the defendant . 415 Mich at 451. As to the issue

1 I also agree with the majority that we must reject the offer i n defendant’s brief to waive any double jeopardy issue in order to obtain a new trial. I am not aware of any authority that would support a decision in a defendant’s favor conditioned upon the defendant’s waiving a constitutional right, such as the protection against double jeo pardy. That is, if defendant were entitled to a new trial on the second-degree murder charge beca use of the inconsistent verdicts, I am not aware of any authority to allow us to condition actually receiving that new trial upon his waiving the double jeopardy issue.-2- of jury compromise, the Court acknowledged that, at least in th eory, it potentially represents prejudice to the defendant because some jurors, in reaching the compromise, did not actually believe that the defendant is guilty of the offense for which h e was convicted. 415 Mich at 451- 452. But, because it is impossible to determine whether it was a case of jury leniency or jury compromise, there is no remedy because the Court cannot enforce only part of the verdict. 415 Mich at 453.

This leaves jury confusion. Lewis , 415 Mich at 450-451 n 9, explains the potential problem with a confused verdict:

Another view of the jury's verdict is that the jury was confus ed, did not understand the instructions, and did not know what it was doing . If that is what occurred, then the confusion taints the verdict finding the def endant not guilty of the underlying felony as well as the verdict finding him guiltyof felony-firearm. Jury confusion is not a reason to set aside the verdict of conv iction and to uphold the verdict of acquittal, but rather would argue for setting as ide both verd icts, with a new trial on both charges.

This Court in McKinley , relying upon Lewis , did acknowledge that inconsistent verdicts might be the basis for reversal if jury confusion was evident. McKinley , 168 Mich App at 496.

But I am unwilling to rely on either of those cases to conclud e that a conviction may be set aside based upon jury confusion resulting in inconsistent v erdicts. First, in neither Lewis nor McKinley were the cases resolved based upon a finding of jury confusion . Indeed, in both cases, the convictions were upheld. Thus, any discussion in those cas es regarding jury confusion is mere dicta.

Second, in looking at Justice L EVIN ’s discussion of jury confusion in Lewis , it is not at all clear that the Court even concluded, albeit in dicta, that jury confusion was a basis for reversal where there is an inconsistent verdict. In footnote 9, Justice L EVIN discusses jury confusion and states that jury confusion would taint both the verdict of acqu ittal as well as the conviction. Justice L EVIN , 415 Mich at 450 n 9, then states what he would view as the re medy in such cases:

Jury confusion is not a reason to set aside the verdict of conv iction and to uphold the verdict of acquittal, but rather would argue for setting as ide both verd icts, with a new trial on both charges.

But there are problems with looking to this sentence to establi sh a rule of law that allows for reversal in such cases. First, it is worded in a very conditio nal syntax, that jury confusion “would argue for” and not “would require.” That is, the discus sion in footnote 9 of jury confusion reflects the Court’s speculation as to the argument, not its resolution of the argument.

But perhaps the more impor tant problem is Justice L EVIN ’s speculative remedy: retrial on all charges involve d in the inconsistent verdict, including those upon which the defendant was acquitted. Very clearly such a remedy would violate the prohib ition against double jeopardy. In Evans v Michigan , ___ US ___; 133 S Ct 1069; 185 L Ed 2d 124 (2013), the Suprem e Court addressed the double jeopardy imp lications of a trial judge dir ecting a verdict of acquittal based upon an erroneous view of the elements of the crime. This Cour t reversed and remanded for a-3- new trial, which decision was upheld by the Michigan Supreme Co urt, on the basis that retrial was not precluded because it did not constitute an acquittal fo r double jeopardy purposes. 133 S Ct at 1073-1074.

The United States Supreme Court reversed, concluding that the Double Jeopardy Clause prohibited retrial. The Court su ccinctly stated that an acquit tal always bars retrial: “A mistaken acquittal is an acquittal noneth eless, and we have long held th at ‘[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting [a defe ndant] twice in jeopardy, and thereby violating the Constitution.’ United States v Ball , 163 US 662, 671; 16 S Ct 1192; 41 L Ed 300 (1896).” The Court also emphasized that an acquittal, “ however mistaken the acquittal may have been,” precludes retrial. Evans , 133 S Ct at 1075. Moreover, while the case involves an analysis of a trial court’s e rror in directing an acquittal, the Court also spoke as to the effect of a jury verdict of acquittal: “There is no question that a jury verdict of acquittal precludes retrial, and thus bars appeal of any legal e rror that may have led to th at acquittal.” 133 S Ct at 1080.

In our case, as well as any case premised upon inconsistent ju ry verdicts, the jury returned a verdict of acquittal on some of the charges. Evans makes it very clear that retrial on those charges is prohibited. Indeed, if a legal error by a tri al judge resulting in an erroneous directed verdict of acquittal prec ludes retrial, then clearly a ny actual verdict of acquittal by a jury must preclude retrial.

This then leads me back to Justice L EVIN ’s comments regarding a confused verdict and his suggestion that an argument based upon jury confusion “is n ot a reason to set aside the verdict of conviction and to uphol d the verdict of acquittal, b ut rather would argue for setting aside both verdicts, with a new trial on both charges.” Lewis , 415 Mich at 450 n 9. The suggestion that a defendant coul d be retried on the charges for which he was acquitted flies in the face of well-established double jeopardy jurisprudence that goe s back to the 19 th century. This leads me to two possible conclusions regarding footnote 9. Fir st, we could conclude that Justice L EVIN overlooked, or was grossly mis taken, as to the potential doubl e jeopardy implications of his suggested remedy. Or, second, that Justice L EVIN was making a reducto ad absurdum argument. That is, the better way to read footnote 9 is that Justice L EVIN was saying, “If we accept the defendant’s argument that a confused verdict require s a new trial on the charge for which he is convicted, then it would also require a retrial on the charge for which he was acquitted, which of course cannot happen.” I prefer to give Ju stice L EVIN the benefit of the doubt that the second interpretation of footnote 9 is the corre ct one. Therefore, I conclude that there is no basis for reversing a conviction based upon inconsi stent verdicts caused by jury confusion.

Next, I turn to the majority’s reliance on People v Graves , 458 Mich 476; 581 NW2d 229 (1998), for the proposition that jury confusion is sufficient t o establish jury compromise and entitles a defendant to a new trial. I disagree with the major ity’s characterization of Graves

. First, the context of the Court’s decision in Graves is significantly differe nt than with our case. In Graves , the defendant was charged with first-degree murder. The tria l court denied a motion for directed verdict on the firs t-degree murder charge, but the jury was also instructed on seconddegree murder and voluntary manslaughter as lesser offenses and the jury convicted the defendant of voluntary manslaught er. 458 Mich a t 478. The def endant argued that the trial court erred in submitting the first-degree murder to the jury and, th erefore, under the automatic-4- reversal rule of People v Vail , 393 Mich 460, 464; 227 NW2d 535 (1975), he was entitled to a new trial. The Supreme Court granted leave in order to conside r whether it should overrule Vail

. 458 Mich at 479. The Court did, in fact, overrule Vail , concluding that the harmless error analysis of People v Gearns , 457 Mich 170; 577 NW2d 222 (1998), should be employed. Graves , 458 Mich at 483.

The Graves Court’s reference to jury compro mise and confusion comes not i n the context of inconsistent verdicts, but in whether it was, in fact, harml ess error to submit the greater, unwarranted charge to the jur y, even though the jury convicted on a lesser offense. In limited circumstances, the Court, 458 Mich at 487-488, acknowledged tha t jury compromise, perhaps based on jury confusion, can be a basis for concluding that the instructional error was not harmless:

If, however, sufficiently persuasive indicia of jury compromis e are present, reversal may be warranted in certain circumstances. T hat is to say, a different result may be reached, under a Gearns review, where the jury is presented an erroneous instruct ion, and: 1) logically irreconci lable verdicts are returned, or 2) there is clear r ecord evidence of unresolved ju ry confusion, or 3) as the prosecution concedes in the alternative, where a defendant is convicted of the next-lesser offense after the improperly submitted greater offe nse.
But this principle is irrelevant to our case as the majority is not invoking it in the context of determining whether an instructional error was harmless. Indee d, Graves makes it clear that to apply this principle, there must be an instructional error alon g with one of the other factors (one of which is a clear record of jury confusion). And, even then, that would not lead to the conclusion that the defendant is entitled to a new trial based solely on the possibility of jury confusion or compromise. Rather, it would lead to the conclusi on that it is not possible to conclude that submitting the unwarranted higher charge to the j ury was harmless error despite the fact that the jury convicted on the lesser offense. Accord ingly, I find the majority’s reliance

on Graves misplaced.

For these reasons, I conclude that there is no basis for rever sing defendant’s conviction for second-degree murder based upon inconsistent verdicts.

I would affirm.

/s/ David H. Sawyer