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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ANTONIO MENDOZA, JR., Defendant-Appellant.

UNPUBLISHED July 20, 2001

No. 222549 Ogemaw Circuit Court LC No. 99-001456-FC

Before: Neff, P.J., and O'Connell and R. J. Danhof*, JJ. PER CURIAM. Following a jury trial, defendant was found guilty but mentally ill of two counts of assault with intent to commit murder, MCL 750.83. The jury also found defendant guilty of malicious destruction of property over $100, MCL 750.377a, carrying a concealed weapon, MCL 750.227, and possession of a firearm during the commission of a felony, MCL 750.227b. The trial court sentenced defendant to concurrent terms of thirty to fifty years' imprisonment for each of the assault convictions, with these sentences to be served concurrently to the thirty-two to forty-eight month sentence for the destruction of property conviction. These sentences were to be served consecutively to the mandatory two-year term for the felony-firearm conviction, which was to be served concurrently with the forty to sixty month sentence for the CCW conviction. Defendant now appeals as of right. We affirm. On appeal, defendant contends that his felony-firearm, malicious destruction of property and CCW convictions should be modified or reversed because they are inconsistent with the accompanying guilty but mentally ill verdicts for assault with intent to commit murder. We disagree. Inconsistent jury verdicts are permissible in Michigan and therefore do not provide a basis for reversal. People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980); People v Lewis, 415 Mich 443, 449-450; 330 NW2d 16 (1982). As our Supreme Court observed in People v Garcia, 448 Mich 442, 464; 531 NW2d 683 (1995) (Riley J.)., "[t]here is no reason to vacate [a]

* Former Court of Appeals judge, sitting on the Court of Appeals by assignment. -1-

conviction merely because the verdicts cannot rationally be reconciled." Id., quoting United States v Powell, 469 US 57; 105 S Ct 471; 83 L Ed 2d 461 (1984).1 Defendant also contends that reversal of his convictions is required because four members of the jury observed defendant wearing leg irons outside of the courtroom. A trial court's decision to restrain a defendant is reviewed by this Court "for an abuse of discretion under the totality of the circumstances." People v Dixon, 217 Mich App 400, 405; 552 NW2d 663 (1996). We recognize that freedom from shackles during trial is an important element of a fair and impartial trial. See People v Dunn, 446 Mich 409, 426; 521 NW2d 255 (1994). Thus, the shackling of a defendant during trial is allowed only in "extraordinary circumstances" to the extent that it may (1) prevent the defendant's escape, (2) prevent the defendant from injuring other individuals in the courtroom, or (3) to foster an orderly trial. Dixon, supra at 404. A trial court must clearly set forth its finding of necessity on the record. Dunn, supra at 426. Before voir dire, the prosecutor argued that defendant should be shackled because the sheriff's department had deemed him a flight and security risk based on a series of incidents during defendant's incarceration. When defense counsel objected to the shackling of defendant, the trial court explained its decision in the following terms: Well, I was contacted by the Ogemaw County clerk's office yesterday. There was [a] request by the sheriff for to [sic] security reasons to have your defendant shackled. I indicated

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