**_______________________________** Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

**FILED MARCH 29, 2005**

**PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,** 

**v No. 124811**  **WAYNE L. YOUNG, Defendant-Appellant.** 

**BEFORE THE ENTIRE BENCH CORRIGAN, J.** 

**In** People v McCoy **, 392 Mich 231; 220 NW2d 456 (1974), this Court invented a new rule regarding cautionary**  **instructions on accomplice testimony. That rule provided that the trial court’s failure to give a cautionary**  **instruction upon a defense request requires reversal of a conviction. Moreover, reversal may be required even in the**  **absence of a defense request if the issue of guilt is “closely drawn.” We reject the**  McCoy **rule because it has no basis in Michigan law. Indeed, it contravenes long**  **** **standing authorities according discretion to trial courts in deciding whether to provide a cautionary instruction on**  **accomplice testimony. Moreover, the** McCoy **rule is inconsistent with MCL 768.29, which provides that the**  **failure to instruct on a point of law is not a ground for setting aside a verdict unless the instruction is requested**  **by the accused, and MCR 2.516(C), which states that a party may assign as error the failure to give an instruction only**  **if the party objects on the record before the jury retires to consider the verdict.**  **We further clarify that an unpreserved claim of failure to give a cautionary accomplice instruction may be**  **reviewed only in the same manner as other unpreserved arguments on appeal. That is, appellate review is confined**  **to the plain-error test set forth in** People v Grant **, 445 Mich 535; 520 NW2d 123 (1994), and**  People v Carines **, 460 Mich 750; 597 NW2d 130 (1999). We therefore affirm the**  **judgment of the Court of Appeals, because it reached the correct result in affirming defendant’s convictions and** 

**sentences.**
**I. UNDERLYING FACTS AND PROCEDURAL HISTORY**  **Defendant shot and killed two people in an execution**   ** style slaying while robbing a drug house in Detroit. Among** **other evidence of guilt, the prosecution presented**

**2 testimony from two witnesses whom defendant now claims were**  **his accomplices, Michael Martin and Eugene Lawrence. Martin testified that defendant came to his house and**  **asked him for a gun to rob someone. Martin had no gun. Defendant then spoke on the telephone to Martin**  = **s brother**   ** in-law, Lawrence. Martin did not hear their conversation.** **Martin then drove defendant to Lawrence** = **s house. After they arrived, defendant and Lawrence spoke in a back room away**  **from Martin, who again could not hear their conversation. Lawrence testified that during this conversation,**  **defendant asked him for a gun because some men had threatened him. Defendant did not mention to Lawrence any**  **plan to rob a drug house. Lawrence did furnish a gun to defendant. Martin and defendant then drove back to**  **Martin’s home. Martin went inside his home while defendant walked off in the direction of a nearby drug house.**  **Defendant later telephoned Martin, stating that he was planning to rob a drug house. Martin hung up. Later that**  **day, defendant visited Martin’s home and admitted that he had shot the two victims in the head. After defendant**  **left, Martin contacted Lawrence. Martin and Lawrence then went to defendant**  = **s home. Defendant told them that he was angry because he had killed the victims for only six rocks**  **of crack cocaine. Defendant called an unknown person and**

**3 directed him to tell Martin where to find the gun.**  **Defendant eventually directed Martin and Lawrence to a field near Martin’s home where Martin found the gun.**  **The police questioned Martin twice. During the second interview, he disclosed what had happened. The police then**  **retrieved the murder weapon. Martin and Lawrence were never charged with a crime in connection with the murders.**  **In addition to the testimony of Martin and Lawrence, the prosecution presented other evidence of defendant’s**  **guilt. One witness testified that defendant had also asked him for a gun. Another witness, Ronald Mathis, had seen**  **defendant in the drug house just before the murders occurred. At that time, defendant offered to sell Mathis a**  **gun. Mathis then left the premises. Upon his return approximately fifteen minutes later, Mathis discovered the**  **victims’ bodies and noted that defendant was gone. Finally, a cigarette butt recovered at the murder scene**  **contained deoxyribonucleic acid (DNA) material that matched defendant**  = **s DNA. Defendant was charged with several offenses, including**  **first-degree murder, MCL 750.316. The jury convicted defendant of two counts of second-degree murder, MCL**  **750.317; one count of assault with intent to commit armed robbery, MCL 750.89; one count of possession of a firearm** 

**4 during the commission of a felony, MCL 750.227b; and one**  **count of possession of a firearm by a person convicted of a felony, MCL 750.224f. Defendant was sentenced to**  **concurrent terms of forty-five to seventy years’ imprisonment for the second-degree murder convictions,**  **forty to sixty years’ imprisonment for the assault conviction, and two to five years’ imprisonment for the**  **felon in possession of a firearm conviction. Those sentences are to be served consecutively to the two-year**  **term of imprisonment for the felony-firearm conviction. The Court of Appeals affirmed defendant’s convictions.**  **1 It rejected defendant**  = **s contention that the trial court had erred under**  McCoy **in failing to sua sponte provide a cautionary instruction on accomplice testimony, concluding**  **that: (1) this case did not present a closely drawn credibility contest, and (2) it was not clear that Martin**  **and Lawrence were accomplices. We granted defendant’s application for leave to**  **appeal. 470 Mich 869 (2004), mod 471 Mich 862 (2004).**

**II. STANDARD OF REVIEW**  **Whether the** McCoy **rule has a basis in Michigan law and whether it is consistent with MCL 768.29 and MCR 2.516(C)** 

1 **Unpublished opinion per curiam, issued September 25, 2003 (Docket No. 240832).** 

**5 are questions of law that**  **we review de novo.** Jenkins v Patel **, 471 Mich 158, 162; 684 NW2d 346 (2004). Moreover, as discussed later in this opinion, the decision whether to**  **give a cautionary accomplice instruction falls within the trial court’s sound discretion. MCL 768.29;**  People v

Dumas **, 161 Mich 45, 48-49; 125 NW 766 (1910);** People v Wallin **, 55 Mich 497, 505; 22 NW 15 (1885). We therefore review that decision for an abuse of discretion. Finally,**  **where, as here, the defendant failed to preserve his claim, our review is confined to the plain-error framework set**  **forth in** Grant **and** Carines **. III.**  **ANALYSIS**

**A. Legal Background** 

**In** McCoy **, this Court discussed dangers that inhere in accomplice testimony, including “'the effect of fear,**  **threats, hostility, motives, or hope of leniency.'”** McCoy **,** supra **at 236, quoting 30 Am Jur 2d, Evidence, § 1148, p**  **323. The**  McCoy **Court stated that in** People v Jenness **, 5 Mich 305, 330 (1858), this Court referred to a judge’s duty**  **to comment, where warranted, on the nature of accomplice testimony. The**  McCoy **Court acknowledged, however, that subsequent case law reflected that the trial court had**  **discretion in deciding whether to provide a cautionary accomplice instruction. See**  Dumas **,** supra **.**

**6 The**  McCoy **Court also acknowledged that federal courts have not articulated a definitive rule regarding cautionary**  **instructions on accomplice testimony. Indeed, the United States Supreme Court refused to reverse a conviction on the**  **basis of a failure to give such an instruction in** Caminetti v United States **, 242 US 470, 495; 37 S Ct 192; 61 L Ed 442 (1917). The**  Caminetti **Court stated that “there is no absolute rule of law preventing convictions on the**  **testimony of accomplices if juries believe them.”** Id **. Despite these authorities, the**  McCoy **Court invented a novel rule: “For cases tried after the publication of this**  **opinion, it will be deemed reversible error . . . to fail upon request to give a**  **cautionary instruction concerning accomplice testimony and, if the issue is closely drawn, it**  **may be reversible error to fail to give such a cautionary instruction even in the absence of a request to charge.”**  McCoy **,** supra **at 240. Justice Coleman dissented in**  McCoy **. She cited MCL 768.29, which provides: “The failure of the court to**  **instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such**  **instruction is requested by the accused.” She also quoted the predecessor to MCR 2.516(C), GCR 1963, 516.2: “No party**  **may assign as error the giving or the failure to give an**

**7 instruction unless he objects thereto before the jury**  **retires to consider the verdict, stating specifically the**

**matter to**  **which he**  **objects and**  **the grounds**  **of his**  **objection.” Justice**  **Coleman noted**  **that the**  **articulation in** 

Jenness **of a duty to comment on accomplice testimony predated both the statute and the court rule. Moreover,** 

Jenness **“was not a rigorously applied precedent.”** McCoy **,** supra **at 248. For example, in** Dumas **, this Court stated: It is the long settled rule in this State**  **that the credibility of an accomplice, like that of any other witness, is a question exclusively**  **for the jury. And while there have been intimations, rather than rulings, to the effect**  **that it is proper, or is not improper, especially in cases where an accomplice is the sole witness**  **upon a material point, for the trial court to direct the attention of the jury to the**  **circumstance and invite the exercise of caution upon the part of the jury, we know of no decision**  **of this court in which it is held or intimated that the failure of the court to indulge in**  **voluntary comment is ground for reversal. [** Dumas **,** supra **at 48.] The**  Dumas **Court had also quoted from** Wallin **,** supra **, where the trial court had refused a defense request to**  **instruct the jury regarding c ircumstances that tended to**  **discredit a witness. Chief Justice Cooley, writing for a unanimous Court in**  Wallin **, rejected the defense argument: "We repeat that instructions respecting the**  **credibility of witnesses, which involve no question of law, are not matter of right. The** 

**8 judge is under no obligation to comment upon the**  **facts; he may, if he chooses, confine himself strictly to laying down such rules of law as must**  **guide the action of the jury, and leave the facts to them without a word of comment. In many cases**  **this is no doubt the desirable course. And it is always within the discretion of the judge to**  **adopt it." [** Id **. at 48-49, quoting** Wallin **,** supra **at 505.] Justice Coleman’s dissenting opinion in**  McCoy **also noted that the Court of Appeals had rejected an argument**  **for a cautionary accomplice instruction in** People Sawicki **, 4 Mich App 467; 145 NW2d 236 (1966), in part because defense counsel on cross-examination had fully**  **explored the circumstances of the accomplice** = **s testimony: In a criminal case it is not only proper but**  **it is the duty of counsel for defendant to place before the jury all circumstances surrounding the**  **people** = **s witness upon the stand, as well as any fact which would have any reasonable tendency to**  **affect their credibility. It is the function of the jury to decide first if the witness is**  **interested, and second if the witness’ interest has affected the credibility of his testimony. The**  **trial judge is not required to comment in his instruction concerning a witness’ interest since it**  **bears upon the question of credibility which is reserved to the jury. [**  Id **. at 475 (citations omitted).]**  **In light of these authorities, Justice Coleman concluded in**  McCoy **that neither statute nor case law required the court to give a cautionary accomplice**  **instruction in the absence of a request. Moreover, the failure to so instruct did not deny the defendant in**  McCoy

**9** v**a fair trial, because “the accomplice was thoroughly cross**   ** examined and the jury fully aware of all facets of his** **involvement. The judge correctly instructed that the testimony of all witnesses should be considered as to**  **motive, prejudice, bias or interest in the outcome.”** McCoy **,** supra **at 250. This Court discussed the holding in**  McCoy **in** People v Reed **, 453 Mich 685; 556 NW2d 858 (1996). In** Reed **, a codefendant testified in a joint trial, and the defendant**  **argued on appeal that a cautionary accomplice instruction should have been given sua sponte. This Court rejected**  **that argument because such an instruction would have prejudiced the codefendant.**  **The Court in** Reed **also explained that** McCoy **does** not **require** automatic **reversal for failure to instruct sua sponte in a closely drawn case. Rather,**  McCoy **says only that such a failure to instruct**  may **require reversal. Before**  Reed **, this Court had not established standards for determining when the failure to instruct sua sponte**  **requires reversal. The** Reed **Court concluded that reversal was not required where the accomplice**  = **s potential credibility problems have been plainly presented to the**  **jury by other means, such as through defense counsel’s**

**10 cross-examination of the alleged accomplice.**  Reed **,** supra **at 693. The**  Reed **Court did not require reversal because the codefendant/accomplice**  = **s credibility problems were plainly apparent to the jury. Defense counsel and the prosecutor**  **had explored credibility problems during cross-examination. Moreover, the accomplice was not a prosecution witness, but**  **was a codefendant, and thus was not the beneficiary of any favorable bargains from the prosecution.** 

**In** People v Gonzalez **, 468 Mich 636; 664 NW2d 159 (2003), this Court questioned**  McCoy **. We quoted MCL 768.29, which provides that “[t]he failure of the court to instruct**  **on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is**  **requested by the accused,” and MCR 2.516(C), which states that “[a] party may assign as error the . . . failure to**  **give an instruction only if the party objects on the record . . . .” We then stated:**  **In this case, defendant neither requested a cautionary accomplice instruction nor objected to**  **the court** = **s failure to give one. Therefore, defendant is precluded from arguing that the**  **omitted instruction was error. MCR 2.516(C). Furthermore, because he failed to request the**  **omitted instruction, defendant is not entitled to have the verdict set aside. MCL 768.29.**  **Consequently, defendant** = **s only remaining avenue for relief is for review under**  People v Grant **, 445 Mich 535; 520 NW2d 123 (1994).** 

**11 Because defendant failed to object to the**  **omitted instruction, defendant** = **s claim of error was forfeited. A forfeited, nonconstitutional**  **error may not be considered by an appellate court unless the error was plain and it affected**  **defendant** = **s substantial rights.** Grant **,** supra **at 552-553. [**  Gonzalez **,** supra **at 642-643.] We then concluded that no error occurred because there**  **was no evidence that the alleged accomplice was involved in the crime, and because the cautionary accomplice**  **instruction would have been inconsistent with the defense theory at trial. Because the defendant could not**  **demonstrate an error, he could not establish a plain error that affected his substantial rights, and thus he was not**  **entitled to relief for the forfeited claim under** Grant **. B.**  **Analysis The rule created in**  McCoy **has no basis in Michigan law. The**  McCoy **rule mandates reversal of convictions for failing to give a cautionary accomplice instruction upon**  **request, and allows reversal for failing to give such an instruction sua sponte**  **where the issue of guilt is “closely drawn.” But as Justice Coleman’s dissent in**  McCoy **demonstrates, this Court’s decisions have historically accorded discretion to trial courts in deciding whether to**  **provide a cautionary accomplice instruction. The mandatory rule invented in**  McCoy **subverts this historical discretion.**

**12 Moreover, the discretion that this Court had, before**  McCoy **, accorded to trial courts in this area is consistent with our statutory law. MCL 768.29 states: “The court**  **shall instruct the jury as to the law applicable to the case and in his charge**  make such comment on the evidence, the testimony and character of any witnesses, as in his opinion the interest of justice may require **.” (Emphasis added.) The phrase “as in his opinion the interest of**  **justice may require” vests discretion in the trial court to decide to what extent it is appropriate to comment on**  **matters such as the credibility of witnesses. The** McCoy **Court failed to consider this provision of MCL 768.29. Despite these authorities, the**  McCoy **Court chose to invent an unfounded rule. Indeed, in**  People v Atkins **, 397 Mich 163, 171; 243 NW2d 292 (1976), this Court acknowledged**  **the lack of a historical basis for the** McCoy **rule: “[T]he** McCoy **rule under discussion was given prospective application for the reason that it went beyond long**  **** **established Michigan precedent to the effect that special instructions regarding credibility was [sic] a matter**  **within the sound discretion of the trial court.” Further, the first portion of the**  McCoy **rule, i.e., that reversal is automatically required when the court** 

**13 fails to give an instruction upon request, conflicts with**  **MCL 769.26. That provision states: No judgment or verdict shall be set aside or**  **reversed or a new trial be granted by any court of this state in any criminal case, on the ground**  **of misdirection of the jury, or the improper admission or rejection of evidence, or for error**  **as to any matter of pleading or procedure, unless in the opinion of the court, after an examination**  **of the entire cause, it shall affirmatively appear that the error complained of has resulted**  **in a miscarriage of justice. As we explained in**  People v Lukity **, 460 Mich 484; 596 NW2d 607 (1999), in light of MCL 769.26, a defendant on**  **appeal must demonstrate that a preserved nonconstitutional error was not harmless by persuading the reviewing court**  **that it is more probable than not that the error affected the outcome of the proceedings. “An error is deemed to**  **have been ‘outcome determinative’ if it undermined the reliability of the verdict.”**  People v Elston **, 462 Mich 751, 766; 614 NW2d 595 (2000). See also**  People v Rodriguez **, 463 Mich 466, 474; 620 NW2d 13 (2000). The** McCoy **mandate of automatic reversal for failing to give a cautionary accomplice instruction upon request plainly**  **contradicts MCL 769.26. Accordingly, we reject the automatic-reversal portion of the rule.**  **Next, the portion of the** McCoy **rule permitting reversal in the absence of a defense request if the issue** 

**14 of guilt is “closely drawn” contradicts MCL 768.29, which**  **states that “[t]he failure of the court to instruct on any point of law shall not be ground for setting aside the**  **verdict of the jury unless such instruction is requested by the accused,” and MCR 2.516(C), which says that "[a] party**  **may assign as error the . . . failure to give an instruction only if the party objects on the record**  **. . . ." As we explained in** Gonzalez **, an appellate court’s review of unpreserved claims is governed by MCL 768.29 and**  **MCR 2.516(C). This Court in**  Reed **correctly observed that** McCoy **does not by its own terms**  require **automatic reversal for failure to instruct sua sponte where the issue of credibility is**  **closely drawn. The** McCoy **Court said that reversal** may **be required in the absence of a request,**  not **that reversal is automatic. The central flaw in this aspect of the**  McCoy **rule, however, is that it authorizes reversal without regard to the plain-error analysis required by**  Grant **and** Carines, **by focusing solely on whether the issue of guilt is closely drawn. As this Court explained in**  Reed **, potential credibility problems in a closely drawn case may**  **become plainly apparent to a jury in the absence of a cautionary instruction.** 

**15 Fundamentally, it is the province**  of the jury **to assess the credibility of witnesses. In making that**  **assessment, the jury should decide whether witnesses harbor any bias or prejudice.**  Dumas **,** supra **;** Wallin, supra; Sawicki **,** supra **. And it is the role of defense counsel, through cross-examination of prosecution witnesses and**  **closing argument, to expose potential credibility problems for the jury to consider.**  Id **. The** McCoy **“closely drawn” rule fails adequately to take account of these central**  **components of our system of trial by jury. For these reasons, we hold that, as with all**  **unpreserved claims of error, an unpreserved claim that the court failed to give a**  **cautionary accomplice instruction may be reviewed**  only **for plain error that affects substantial rights. An appellate court must follow the** 

Grant **/** Carines **plain-error analysis, and only when the defendant satisfies that test is reversal ever appropriate.**  **We discern no basis for treating this one category of unpreserved claim any differently from other categories of**  **alleged error that a defendant has failed to preserve. Moreover, in considering whether a plain error exists,**  **a reviewing court should be mindful of the discretion historically accorded to trial courts in deciding whether** 

**16 to give a cautionary accomplice instruction.**  Dumas, supra **;** Wallin **,** supra **. Finally, applying the plain-error test to this case,**  **we conclude that defendant has not met his appellate burden. A cautionary accomplice instruction was not**  **clearly or obviously required in this case. As the Court of Appeals noted, it is not clear that Martin and Lawrence**  **were accomplices in any event. Moreover, the prosecution presented evidence of guilt beyond the testimony of the**  **alleged accomplices, including testimony from other witnesses and physical evidence that defendant was at the**  **murder scene. Further, defense counsel thoroughly cross**   ** examined Martin and Lawrence and challenged their testimony** **during closing argument, thereby exposing their potential credibility problems to the jury. The court also**  **instructed the jury to consider any bias, prejudice, or personal interest that a witness might have. For these**  **reasons, defendant has not demonstrated a plain error that affected his substantial rights.** 

**V. CONCLUSION**  **We conclude that the** McCoy **rule has no basis in Michigan law and is inconsistent with MCL 769.26, MCL**  **768.29, and MCR 2.516(C). A trial court has discretion in deciding whether to give a cautionary accomplice** 

**17 instruction. Also, an unpreserved claim that the court**  **failed to give a cautionary accomplice instruction may be reviewed only for plain error, under the framework set**  **forth in** Grant **and** Carines **. Accordingly, we overrule** McCoy **and affirm the judgment of the Court of Appeals. Maura D. Corrigan**  **Clifford W. Taylor Elizabeth A. Weaver**  **Robert P. Young, Jr. Stephen J. Markman** 

**18 _______________________________**  **v S T A T E O F M I C H I G A N** 
**SUPREME COURT**

**PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,** 

**No. 124811**  **WAYNE L. YOUNG, Defendant-Appellant.** 

**KELLY, J. (** concurring **). I would affirm the Court of Appeals decision, but I**  **strongly disagree with the majority’s reasoning. The decision in**  People v McCoy **1 should not be applied to this**  **case. It represents a valid rule of law that we should**  **retain, and the majority should not use this case as a vehicle to abandon it.** 

M C C OY **IS I**  **NAPPOSITE**
**In** McCoy **, we stated: [I]t will be deemed reversible error . . .**  **to fail upon request to give a cautionary instruction concerning accomplice testimony and,**  **if the issue is closely drawn, it may be reversible error to fail**  **to give such a cautionary instruction even in the absence of a**  **request to charge. [** McCoy **,** supra **at 240.]**

1 **392 Mich 231; 220 NW2d 456 (1974).**

**1 Defendant did not request a cautionary instruction in**  **this case. To warrant giving the instruction, as** McCoy **tells us, the issue must be “closely drawn.”** Id **. An issue is said to be closely drawn if a credibility contest**  **between the defendant and an alleged accomplice must be resolved in order to rule on it.**  People v Gonzalez **, 468 Mich 636, 643 n 5; 664 NW2d 159 (2003);**  McCoy **,** supra **at 238-239.**  **This case does not involve a closely drawn issue. It is not one in which contrary versions of the facts were**  **offered, leaving the jury to choose between them. Instead, the defense proceeded under the theory that the prosecution**  **would be unable to prove every element of the charged offenses.**  **In argument before the jury, defense counsel attacked the story offered by the prosecution. He tried to show**  **that the prosecution failed to meet the requirements for conviction. In some cases, to create a credibility contest**  **between a defendant and an alleged accomplice, the defendant would have to take the stand. Other**  **circumstances could arise as well that would create a credibility contest. However, because**  **defendant in this case did not take the stand and his credibility was not** 

**2 otherwise put at issue, he was not entitled to the**  **cautionary instruction permitted by** McCoy. 2 Id **. at 240. I also agree with the Court of Appeals that there was**  **insufficient evidence to conclude that Michael Martin and Eugene Lawrence were defendant’s accomplices. Whereas**  **Martin accompanied defendant on some of his travels on the day of the murders, he never agreed to participate in the**  **crime. In fact, he refused to participate. Martin may not have done enough to stop defendant, but his failure does**  **not make him defendant’s accomplice legally. Lawrence provided defendant with a gun. But the**  **evidence suggests that Lawrence was unaware that defendant planned to use it to commit a felony. Defendant asked**  **Lawrence for the gun to protect himself from a person who had threatened him. Although insufficient evidence exists**  **that Lawrence was defendant’s accomplice, defense counsel implied during closing argument tha**  **t Lawrence and Martin were defendant’s accomplices.**  **The facts of the** McCoy **case were entirely different. There, the police arrested an individual whom they believed**  **had been an accomplice in a robbery. The accomplice admitted that he and McCoy had committed the crime.**  Id **. at**

2 **At oral argument in this case, defense counsel admitted that**  McCoy **was a “narrow case” and did not fit the facts of this case.**  **3 241 (Coleman, J., dissenting.). Here, there was no such**  **admission. All the evidence suggested that Martin and Lawrence were not involved in the crime. Because they were**  **not accomplices, the trial court did not err in failing to give the special instruction on accomplice testimony.**  Id **. at 238-240.**  **Hence, the** McCoy **decision has no application to this case, and the majority offers no justification for reaching**  **and overruling it here. It is as inappropriate to address** McCoy **in this case as it was in** People v Gonzalez, supra, **in which Justice Young wrote: [W]e conclude that there was no evidence of**  **an accomplice in this case, and, therefore,** McCoy **'s "closely drawn" rule is not implicated. For that reason, we do not reach the question**  **whether** McCoy **conflicts with MCL 768.29. [**  Gonzalez, supra **at 643 n 6.] We should not do here what we chose not to do in**  Gonzalez.

M

C C OY **R EPRESENTS A**  **V ALID**  **R ULE OF**  **L AW**  **3**

3 **Given that** McCoy **is inapposite, there is no need to apply it to the facts of this case. However, because the**  **majority has decided to overturn** McCoy **, I provide a full discussion of the rules of law laid out in that case.**  **Therefore, I will discuss both the requested cautionary instructions and sua sponte instructions. I feel that both**  **were wisely recognized in** McCoy **and that both fit well within the established framework of appellate review in**  **this state.**

**4 The majority accuses the**  McCoy **decision of lacking any basis in Michigan jurisprudence and of inventing a novel**  **rule of law. Those claims should be examined more closely. This Court stated long ago:**  **We think the credibility of an accomplice, like that of any other witness, is exclusively a**  **question for the jury; and it is well settled that a jury may convict on such testimony alone**  **without confirmation. There is no good sense in always applying the same considerations in every**  **case to every witness who may stand in the relation of**  particeps criminis **. We think it is the duty of a judge to comment upon the nature of**  **such testimony, as the circumstances of the case may require; to point out the various grounds of**  **suspicion which may attach to it; to call their attention to the various temptations under which**  **such witness may be placed, and the motives by which he may be a**  **ctuated; and any other circumstances which go to discredit or confirm**  **the witness, all of which must vary with the nature and circumstances of each particular case.**  **[** People v Jenness **, 5 Mich 305, 330 (1858).] This was a rule of law that has been endorsed by this Court**  **repeatedly over the past 134 years. 4**  **Obviously, because** McCoy **represents a natural growth of that history, it is neither novel nor lacking in legal basis.** 

**R EQUESTED**  **C AUTIONARY**  **I NSTRUCTIONS AND**  **A BUSE OF**  **D ISCRETION**  **/H ARMLESS**  **E RROR**  **R EVIEW**  **Not only does** McCoy **have substantial historical support, it fits well within**  **Michigan’s long established**

4 **See** People v Schweitzer **, 23 Mich 301, 305 (1871),** People v Hare **, 57 Mich 505, 518; 24 NW 843 (1885),** People v Considine **, 105 Mich 149, 163; 63 NW 196 (1895), and** People v Koukol **, 262 Mich 529, 532-533; 247 NW 738 (1933). 5** **framework of appellate review.** McCoy 5 **holds that “it will be deemed reversible error . . . to fail upon request to**  **give a cautionary instruction concerning accomplice testimony . . . .”**  **The majority concludes that this rule contradicts the review established for both abuse of discretion and**  **harmless error issues. It accuses** McCoy **of ignoring the discretion of the trial court to instruct the jury.**  **The opposite is true.** McCoy **explicitly recognizes the trial court’s discretion and hews to the abuse of**  **discretion standard.** McCoy **,** supra **at 237. Moreover, it provides guidance to when the standard is met.**  McCoy **recognizes that it is an abuse of discretion for a trial court to refuse to instruct a jury about the**  **inherent unreliability of accomplice testimony.** Id **. at 236-237. This is consistent with MCL 768.29.**  **6 If the trial** 

5 Supra **at 240.**

6 **MCL 768.29 provides: It shall be the duty of the judge to control**  **all proceedings during the tr ial, and to limit**  **the introduction of evidence and the argument of counsel to relevant and material matters, with a**  **view to the expeditious and effective ascertainment of the truth regarding the matters**  **involved. The court shall instruct the jury as to the law applicable to the case and in his charge**  **make such comment on the evidence, the testimony and character of any witnesses, as in his opinion**  **the interest of justice may require. The failure 6** **court fails to give an accomplice instruction, it fails to work toward “the expeditious and effective ascertainment of**  **the truth regarding the matters involved.” MCL 768.29. And it fails to make the comments on the evidence, the**  **testimony, and the character of witnesses that justice requires.** 

**As** McCoy **noted, accomplice testimony is fraught with dangers. Whether because of fear, threats, or hostility**  **caused by government overreaching or the witness’s greed or hopes of leniency occasioned by government deals,**  **accomplice testimony has severe credibility problems. Given this inherent weakness, a skeptical approach to such**  **testimony “'is a mark of the fair administration of justice.’”**  McCoy **,** supra **at 236, quoting 30 Am Jur 2d, Evidence, § 1148, p 323. Therefore, a court fails to meet**  **the mark of fair administration of justice when it omits a requested accomplice instruction. Moreover, the omission**  **constitutes an abuse of discretion. For the same reason, the**  McCoy **rule does not violate the tenets of review for harmless error. Given the**  **inherent unreliability of accomplice testimony, any conviction based on such testimony, absent a proper**  **of the court to instruct on any point of law shall not be ground for setting aside the verdict**  **of the jury unless such instruction is requested by the accused.** 

**7 instruction, will affirmatively appear to be a miscarriage**  **of justice. The failure to give the instruction fails to meet the mark. We should avoid letting the standards of**  **the Michigan criminal justice system fall below this mark. The inclusion of the accomplice witness instruction**  **ensures the fairness of the trial. Its exclusion, when it is merited, undermines the reliability of the verdict.**  **Accordingly, the error cannot be harmless.** People v Krueger **, 466 Mich 50, 54; 643 NW2d 223 (2002).**

**S UA**  **S PONTE**  **I NSTRUCTION AND**  **R EVIEW FOR**  **P LAIN**  **E RROR**  McCoy **states that it may be error requiring reversal to fail to give the accomplice instruction if the issue is**  **closely drawn, even absent a request from counsel.** McCoy **,** supra **at 240. The majority attacks this portion of** McCoy, **claiming that it contradicts the established review for plain error. A failure to instruct when there was no**  **request is subject to review for plain error, the majority reasons, because the issue was neither raised nor addressed**  **in the trial court. For there to be plain error, our Court has decided,**  **there must first be an error. Next, the error must be clear and obvious. Finally, it must adversely affect the**  **defendant’s substantial rights.** People v Carines **, 460 Mich 750, 763; 597 NW2d 130 (1999). To warrant reversal, the** 

**8 error must either result in the conviction of an actually**  **innocent defendant or it must affect the fairness, integrity, or public reputation of the judicial**  **proceedings.** Id **. Again, the** McCoy **rule fits within the confines of these principles.**  **The first two elements of the plain error test are satisfied if a judge mistakenly fails to give the**  **cautionary accomplice instruction. The error exists, and it is clear and obvious. The next question is whether the**  **error adversely affected the defendant’s substantial rights. To determine if an error affects substantial**  **rights, the appellate court makes the same inquiry as when reviewing for harmless error, except that the defendant**  **bears the burden of persuasion.** United States v Olano **, 507 US 725, 734; 113 S Ct 1770; 123 L Ed 2d 508 (1993).**  **The failure to give the cautionary accomplice instruction if it is appropriate undermines the reliability**  **of any jury verdict. Hence, the error cannot be considered harmless.**  Krueger **,** supra **at 54. This is especially true when the case boils down to a closely drawn credibility**  **contest. Without basic protections, a criminal trial cannot reliably serve as a vehicle for properly determining**  **guilt. A** rizona v Fulminante **, 499 US 279, 310; 111 S Ct 1246; 113 L Ed 2d 302 (1991).**  **Because this failure to**

**9 instruct meets the harmless error standard, it also meets**  **the plain error standard.** Olano **,** supra **at 734. Moreover, such closely drawn cases will likely always**  **meet the requirements for reversal. The omission of the instruction would mean that the trial court failed to meet**  **the mark of the fair administration of justice.** McCoy **,** supra **at 236. This failure would raise serious questions regarding fairness, integrity, or the public reputation of**  **the proceedings.** Carines **,** supra **at 763. Contrary to the majority’s conclusion,**  McCoy **does not contradict MCL 769.26**  **7 or MCR 2.516(C).**  **8 MCL 769.26 and MCR** 

7 **MCL 769.26 provides: No judgment or verdict shall be set aside or**  **reversed or a new trial be granted by any court of this state in any criminal case, on the ground**  **of misdirection of the jury, or the improper admission or rejection of evidence, or for error**  **as to any matter of pleading or procedure, unless in the opinion of the court, after an examination**  **of the entire cause, it shall affirmatively appear that the error complained of has resulted**  **in a miscarriage of justice.**

8 **MCR 2.516(C) provides: Objections. A party may assign as error the**  **giving of or the failure to give an instruction only if the party objects on the record before**  **the jury retires to consider the verdict (or, in the case of instructions given after**  **deliberations have begun, before the jury resumes deliberations), stating specifically the matter**  **to which the party objects and the grounds for the objection. Opportunity must be given to make**  **the objection out of the hearing of the jury.**

**10 2.516(C) merely require that a**  **defendant preserve issues for review. Those issues not preserved are subject to**  **review for plain error.** McCoy **works within the framework of plain error review. In overruling it, the majority abandons an**  **important protection.**
**C ONCLUSION**  McCoy **does not apply to this case because no credibility contest existed and there was insufficient**  **evidence to justify characterizing Martin and Lawrence as accomplices. Therefore, this case provides an**  **inappropriate vehicle for the majority to attack** McCoy **. Moreover,**  McCoy **represents a valid rule of law that fits well within the established rules of appellate review. It**  **should not be struck down. Marilyn Kelly**  **Michael F. Cavanagh**

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