People v. Bragdon

369 N.W.2d 208, 142 Mich. App. 197

• Court: Michigan Court of Appeals
• Decided: February 12, 1985
• Docket: Docket 76899
• Status: Published

Opinions

Per Curiam.

Defendant was convicted following a jury trial of delivery of marijuana, MCL 333.7401, subds (1) and (2)(c); MSA 14.15(7401), subds (1) and (2)(c). The next day, January 4, 1984, the same jury convicted defendant of being a second felony offender, MCL 769.10; MSA 28.1082. He was sentenced to one year in the county jail. He appeals as of right. We reverse.

It was error for the prosecutor to question the defendant by stating, "So you’re guilty of the crime?” Absent a valid plea, the issue of an accused’s guilt or innocence is a question for the trier of fact. As with matters of credibility, it is clear that a witness cannot express an opinion on the defendant’s guilt or innocence of the charged offense. See People v Drossart, 99 Mich App 66; 297 NW2d 863 (1980); People v Parks, 57 Mich App 738; 226 NW2d 710 (1975). We find the prosecutor’s question to be tantamount to a transformation of this proceeding from a jury trial to a guilty plea situation. Although the defendant had virtually admitted the existence of the elements of the offense on direct and cross-examinations, he was still entitled to have the jury decide the question of his criminal responsibility. Although we are cognizant of the overwhelming evidence of guilt presented, we find this question, coupled with the further references to defendant’s admission of guilt in closing and rebuttal argument, to be so offensive to the maintenance of a sound judicial system that it cannot be considered harmless error. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972).

While the defendant, as any other witness, is sworn to testify truthfully, once the defendant has entered a plea of not guilty and invoked his right to trial by jury, the prosecution bears the burden of proving the defendant guilty beyond a reasonable doubt and may not seek to obtain a plea of guilty by directly questioning the defendant on the ultimate issue of guilt. Moreover, while defendant may have admitted the existence of the elements of the offense, it is solely within the jury function to find the facts and to determine the guilt or innocence of the accused. As was stated in People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980),

"Our Court has recognized the role of the jury in a criminal trial. 'Because the jury is the sole judge of all the facts, it can choose, without any apparent logical basis, what to believe and what to disbelieve. What may appeal to the judge as "undisputed” need not be believed by a jury.’ People v Chamblis, 395 Mich 408, 420; 236 NW2d 473 (1975).

"Juries are not held to any rules of logic nor are they required to explain their decisions. The ability to convict or acquit another individual of a crime is a grave responsibility and an awesome power. An element of this power is the jury’s capacity for leniency.”

In the event that the prosecutor elects to retry the defendant on this charge, we briefly address the remaining issues. First, the trial court properly applied the objective test in finding that defendant had not been entrapped by the undercover police officer. People v Turner, 390 Mich 7; 210 NW2d 336 (1973). That finding is not clearly erroneous and is not a ground for reversal. People v D’Angelo, 401 Mich 167; 257 NW2d 655 (1977). Second, the trial court properly refused to give the requested instruction on the lesser misdemeanor offense of possession of marijuana. Because there was no disputed factual element differentiating the offense of delivery from the offense of possession, the third element of People v Stephens, 416 Mich 252, 263; 330 NW2d 675 (1982), was not met. Finally, although we do not condone the procedure utilized by the trial judge in instructing the jury in defendant’s trial of the habitual offender charge, a review of the record in its entirety discloses that the jury was adequately advised of its responsibilities. Moreover, counsel’s failure to object either to the procedure employed by the trial court or to the omission of certain instructions will generally preclude appellate review. Counsel may not sit back and harbor error to be used as an appellate parachute in the event of jury failure. People v Brocato, 17 Mich App 277, 305; 169 NW2d 483 (1969).

Defendant’s convictions are reversed.