STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED October 21, 2004 v No. 232830 Wayne Circuit Court HAROLD D. BRAXTON, LC No. 00-004785 Defendant-Appellant. ON REMAND Before: Cooper, P.J., and Sawyer and Murphy, JJ. PER CURIAM. We originally affirmed defendant s convictions for second-degree murder, MCL 750.317, and possession of a firearm during the commission of a felony, MCL 750.227b. Defendant thereafter filed an application for leave to appeal to the Supreme Court. In lieu of granting leave, the Supreme Court remanded the matter to us for further consideration. People v Braxton, 470 Mich 872; NW2d (2004). Specifically, the Supreme Court s order directs us to consider whether there is a reasonable likelihood that the jury applied the reasonable doubt instructions in a manner that lowered the government s burden of proof, and, if so, the appropriate standard of review. We believe that we answered this question in our original opinion. In addressing this issue, we stated: Next, at least with respect to the duty to convict portion of the instructions, those instructions do not create the possibility of conviction where the jury did possess a reasonable doubt. That is, while a duty to convict instruction is disfavored, the instruction here does not raise the possibility that the jury would convict despite having a reasonable doubt. Rather, it raises the possibility that the jury may have convicted despite having an unreasonable doubt. Thus, this case does not present a situation, as in Sullivan v Louisiana, 508 US 275; 113 S Ct 2078; 124 L Ed 2d 182 (1993), wherein the defective reasonable doubt instruction would have allowed for the jury to convict even though there did exist a reasonable doubt as properly defined. Finally, the jury convicted of the lesser offense of second-degree murder, acquitting defendant of first-degree murder. Apparently, the jury did have a reasonable doubt as to defendant s mens rea and, therefore, acquitted on the -1-
greater charge. This fact reflects the jury s ability to apply the proper definition of reasonable doubt as provided by the trial court. [People v Braxton, unpublished opinion per curiam of the Court of Appeals, issued July 8, 2003 (Docket No. 232830), slip op at 9; footnote omitted.] Although we believe that this portion of our original opinion makes it clear that we concluded that there was not a reasonable likelihood that the jury applied the instructions in a manner that lowered the government s burden of proof, perhaps we created some confusion by our statement in the omitted footnote. That footnote, id., slip op at 9 n 7, stated: Arguably this is not the case with respect to the portion of the instructions which told the jury they must have a reason for their doubt. In such case, it is theoretically possible, though perhaps not realistic, that a juror may have had a reasonable doubt, but nevertheless voted to convict because that juror could not articulate a reason for his doubt. To clarify, that statement reflects our opinion of the possible effect of the instructions given, not their actual effect. Not only does the footnote itself dismiss such a situation as not being reasonably likely, we further addressed the matter in the second paragraph quoted above from the text of our original opinion. That is, the jury s actions in convicting defendant of a lesser offense reflects that they did not, in fact, follow that unlikely course of action of convicting despite a reasonable doubt merely because the basis for that doubt could not be articulated. Finally, the dissent suggests that in our original opinion we found that the instructions improperly shifted the burden of proof onto defendant. Ante, slip op at. We made no such conclusion in our original opinion. We did conclude that the improper portions of the instructions, when read in isolation, could have that effect. But, our opinion then goes on to observe that the matter was not that simple, because of the presence of the proper instructions as well. Ultimately we concluded that, when the instructions are read as a whole, and in light of the actual actions of the jury in this case, there was not a reasonable likelihood that the jury actually shifted the burden of proof to defendant. In conclusion, the United States Supreme Court in Victor v Nebraska, 511 US 1, 5; 114 S Ct 1239; 127 L Ed 2d 583 (1994), reiterated that jury instructions, when read as a whole, must convey the correct concept of reasonable doubt. But the appropriate inquiry is not whether the instructions could have been applied in an improper manner, but whether there was a reasonable likelihood that the jury did, in fact, understand the instructions to permit conviction on less than proof beyond a reasonable doubt. Id. at 6. We again reaffirm our original holding that there was no reasonable likelihood that the jurors... applied the instructions in a way that violated the Constitution. Id. at 22-23. Affirmed. /s/ David H. Sawyer /s/ William B. Murphy -2-
STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED October 21, 2004 v No. 232830 Wayne Circuit Court HAROLD D. BRAXTON, LC No. 00-004785 Defendant-Appellant. ON REMAND Before: Cooper, P.J., and Sawyer and Murphy, JJ. COOPER, P.J. (dissenting). I must, once again, respectfully dissent from the majority s opinion affirming defendant s convictions. After considering Victor v Nebraska, 1 as ordered by the Michigan Supreme Court on remand to this Court, 2 I would find that there is a reasonable likelihood that the jury applied the reasonable doubt instructions in a manner that lowered the government s burden of proof. In Victor, the United States Supreme Court upheld the convictions of two criminal defendants in a consolidated case. In each case, the jury instructions regarding reasonable doubt intertwined faulty elements with instructions properly defining reasonable doubt. The Court found that taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to the jury. 3 In instructing the jury, the trial court must avoid defining reasonable doubt so as to lead the jury to convict on a lesser showing than due process requires. 4 Reversal is warranted where there is a reasonable likelihood that the jury did so apply it. 5 The majority asserts that these questions were answered in their original opinion. However, the majority fails to separate the proper from the improper instructions regarding the 1 Victor v Nebraska, 511 US 1; 114 S Ct 1239; 127 L Ed 2d 583 (1994). 2 People v Braxton, 470 Mich 872; 674 NW2d 380 (2004). 3 Victor, supra at 5, quoting Holland v United States, 348 US 121, 140; 75 S Ct 127; 99 L Ed 150 (1954). 4 Id. at 22. 5 Id. at 6 (emphasis in original). -1-
definition of reasonable doubt to determine if the jury actually did apply the proper definition. I would find that the jury could not apply a proper standard given the confusing jury instructions containing multiple erroneous elements. Michigan s standard jury instructions describe reasonable doubt as follows: (1) A person accused of a crime is presumed to be innocent. This means that you must start with the presumption that the defendant is innocent. This presumption continues throughout the trial and entitles the defendant to a verdict of not guilty unless you are satisfied beyond a reasonable doubt that [he/she] is guilty. (2) Every crime is made up of parts called elements. The prosecutor must prove each element of the crime beyond a reasonable doubt. The defendant is not required to prove [his/her] innocence or to do anything. If you find that the prosecutor has not proven every element beyond a reasonable doubt, then you must find the defendant not guilty. (3) A reasonable doubt is a fair, honest doubt growing out of the evidence or lack of evidence. It is not merely an imaginary or possible doubt, but a doubt based on reason and common sense. A reasonable doubt is just that a doubt that is reasonable, after a careful and considered examination of the facts and circumstances of this case. [6] As stated by the majority in their original opinion, the challenged instructions of the trial court did not comport with the standard jury instructions. The trial court s instructions were quoted in that opinion as follows: Now, I think I briefly explained to you about the meaning of reasonable doubt. Reasonable doubt is defined as exactly what the word specified. Doubt that is based on reason, on common sense. There is nothing mysterious about any of the words. It s English language. And a reasonable doubt means a doubt that s based on reason and common sense. A fair, honest and reasonable doubt. A doubt that you should have a that you have a reason for having. Now, reasonable doubt is not merely an imaginary, ficticous [sic] or flimsy doubt. It s not a hunch or a feeling or a possibility of innocence. It s a fair, honest and reasonable doubt. A doubt that s based on reason and common sense. And you decide that by applying your everyday experience and common sense to help you decide if such a reasonable doubt exist[s]. 6 CJI2d 3.2. -2-
The foregoing instruction was preceded by the court s instruction on defendant s alibi defense, wherein the court instructed the jury that if you have a reasonable doubt that he was there, then find him not guilty. If you have no such reasonable doubt, then it is your duty to bring back a verdict of guilty. Following the reasonable doubt instruction, the court further stated [I]f you have a reasonable doubt, it is your duty to acquit the defendant. If you do not have a reasonable doubt, you should it s your duty to convict the defendant. [7] The majority ultimately affirmed defendant s convictions. However, they originally found that the reasonable doubt instruction called upon the jury to justify its decision, and therefore, improperly shifted the burden of proof onto defendant to provide a reason to doubt his guilt. The majority specifically found: When a court instructs a jury to base its decision on a reason, however, it calls upon the jury to justify its decision. Such an instruction improperly shifts the burden of proof to the defendant by requiring the jurors to have a reason to doubt the defendant s guilt. 8 Now that the matter has been remanded for reconsideration under Victor v Nebraska, the majority now states that there is no reasonable likelihood that the jury applied the reasonable doubt instructions in a manner that lowered the government s burden of proof. It was, and still is, disingenuous for the majority to find that these instructions were harmless when they in fact lowered the government s burden of proof. The government s burden of proof is not subject to theoretical possibilities. If the government does not meet its burden, acquittal by the jury is required. The trial court erroneously defined reasonable doubt as a doubt that you should have a reason for having. Additionally, the trial court, a neutral forum, instructed the jury that it had a duty to convict defendant if the jury failed to find a reasonable doubt. 9 Furthermore, as I noted in my original dissent, the trial court s instruction concerning defendant s alibi defense was inaccurate. The jury was instructed that it must convict defendant if it rejected his claim that he was not present at the scene of the crime. In this manner, the trial court effectively minimized the prosecution s burden of proving each element of the offense beyond a reasonable doubt. This error prejudiced defendant because it permitted the jury to find him guilty on the basis of his mere presence. [10] The jury was instructed that defendant must be convicted if they rejected his alibi defense. Combined with the instruction that reasonable doubt to acquit must be justified by a 7 People v Braxton, unpublished opinion per curiam of the Court of Appeals (Docket No. 232830, issued July 8, 2003), slip op at 7 (emphasis in original). 8 Id. (emphasis in original). 9 See People v Cooper, 236 Mich App 643; 601 NW2d 409 (1999) (finding a prosecutor s argument that a jury is duty-bound to convict to be error). 10 Braxton, supra (Cooper, PJ, dissenting) at 3, citing People v Gaydosh, 203 Mich App 235, 238-239; 512 NW2d 65 (1994). -3-
reason, it is impossible to ascertain that the jury actually applied the instructions accurately defining reasonable doubt. Jurors come to a trial uninformed about the law; they are triers of fact, not triers of law. Jurors must look to the court to provide guidance and instruction. The standard jury instructions ask the trial judge to inform the jury of the judge s duty as follows: It is my duty to instruct you on the law. You must take the law as I give it to you. If a lawyer says something different about the law, follow what I say.... You must take all my instructions together as the law you are to follow. You should not pay attention to some instructions and ignore others. [11] If a trial court improperly states the burden of proof, on multiple occasions, it is reasonably likely that the incorrect standard will be applied in the jury room. Accordingly, I would find that there is a reasonable likelihood that the jury applied the reasonable doubt instructions in a manner that violated defendant s constitutional rights. Therefore, I continue to find that we should reverse defendant s convictions and remand for a new trial. /s/ Jessica R. Cooper 11 CJI2d 3.1(4). -4-