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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v CARLETUS LASHAWN WILLIAMS, Defendant-Appellant.

Chief Justice:

Justices:

Marilyn Kelly

Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway

FILED JULY 9, 2009

No. 135271

BEFORE THE ENTIRE BENCH. CORRIGAN, J. In this criminal case, we consider the joinder and severance of charges against a single criminal defendant under our court rules. MCR 6.120(A) and (B) establish when a court may join offenses charged in two or more informations against a single defendant and when a court must sever offenses charged in a single information against a single defendant. This Court first adopted MCR 6.120 on October 1, 1989. Before adopting MCR 6.120, however, we had ruled 12 years earlier that two drug sales to the same undercover agent within 12 days could not be joined because "[t]he two informations charged distinct and separate offenses, and [the defendant] was entitled to a separate trial on each offense." People v Tobey, 401 Mich 141, 145; 257 NW2d 537 (1977).

We conclude that the provisions of MCR 6.120 superseded Tobey. The unambiguous language of MCR 6.120 permits joinder in a greater range of circumstances than did Tobey. In this case, the trial court correctly applied the plain language of the court rule when it determined that defendant's offenses were "related." Accordingly, we affirm defendant's convictions. I. FACTS AND PROCEDURAL HISTORY The Court of Appeals summarized the facts of this case as follows: Officers from the Oakland County Narcotics Enforcement Team executed a search warrant at a Motel 6 motel room on November 4, 2004. They knocked and announced their presence, and they forced the door open when they received no response. As they entered, defendant, the sole occupant, was just walking out of the bathroom and the toilet was in mid-flush. A bag of suspected crack cocaine was caught in the drain and an officer fished it out. Another officer broke the toilet bowl and recovered one or more small rocks. In the room itself, the officers found some large chunks of suspected crack cocaine, several small rocks in individual "corner ties," a digital scale, a box of razor blades, a container of sandwich baggies, some individual baggies with missing corners, a pair of scissors, two handguns and ammunition, over $500 in cash, and a receipt showing that the room had been rented to defendant. The suspected narcotics weighed at least 50 grams and tested positive for cocaine. Pontiac police officers testified that they executed another search warrant at 510 Nevada on February 2, 2005. The officers saw defendant arrive in a 1994 Ford and enter the house shortly before the warrant was executed. The officers again knocked and announced their presence, then forced the door open when they received no response. Defendant and another person were in the living room. Defendant was seated in a chair with a brown bag in his lap. He was leaning down with his right hand extended toward the floor between the chair and the television set. He ignored orders to raise his hands. On the floor where defendant had been reaching, the officers found a plastic bag containing approximately 18 rocks of suspected cocaine. The bag in defendant's lap contained sandwich 2

baggies and a pair of scissors. A digital scale and a box of sandwich baggies were on top of the television, along with a set of keys that included a key to the 1994 Ford. Both inside the back of the television and on the floor behind it were empty baggies and used "corner ties" with cocaine residue. Defendant had over $1,000 in his wallet. Inside the trunk of the 1994 Ford, the officers found a handgun and two assault rifles. The suspected narcotics weighed just under ten grams and tested positive for cocaine.[1] The prosecutor moved under MCR 6.120(A) and (B) to consolidate for a single jury trial the offenses charged as a result of defendant's November 4, 2004, and February 2, 2005, arrests. In the alternative, the prosecutor moved to

introduce evidence of each offense in the other trial under MRE 404(b). Defendant objected to both motions. The trial court granted the prosecutor's motion for joinder, holding that the offenses were "related" under MCR 6.120(B) because "[b]oth of the acts that are involved here do appear to the Court to be parts of a single scheme or plan; namely, drug trafficking and therefore they would appear to be related offenses." The trial court further explained that "[t]he Court is concerned about the potential for prejudice, but the Court believes there actually is a greater risk of prejudice if we had separate trials and the Court would allow 404(b) even to be used in the form of the conduct of the offense that is not the subject of a particular trial." With regard to the charges stemming from the November 2004 arrest, the jury convicted defendant of possession with intent to deliver 50 grams or more,
1

People v Williams, unpublished opinion per curiam of the Court of Appeals, issued October 25, 2007 (Docket No. 266807), at 1-2.

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but less than 450 grams, of cocaine, MCL 333.7401(2)(a)(iii), felon in possession of a firearm, MCL 750.224f, and two counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. With regard to the February 2005 arrest, the jury convicted him of possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), being a felon in possession of a firearm, carrying a concealed weapon in a vehicle, MCL 750.227(1), and one count of felony-firearm. In an unpublished opinion per curiam, the Court of Appeals affirmed. It held that the trial court did not err by concluding that the offenses were "related" under MCR 6.120(B). The Court explained: The offenses here were not discrete, unrelated sales. Rather, they indicated a single scheme or plan to earn money by selling cocaine. In both, defendant was found in possession of enough cocaine to indicate an intent to sell it, as well as the necessary equipment to prepare it for sale and weaponry to defend the operation. The evidence therefore indicated that both of defendant's offenses were connected parts of an ongoing scheme or plan to sell drugs.[2] Defendant then applied for leave to appeal in this Court. We granted his application for leave and directed the parties to address "(1) whether the defendant was entitled to separate trials under MCR 6.120; (2) whether People v Tobey, 401

2

Williams, supra at 2.

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Mich 141 (1977), is consistent with MCR 6.120; and (3) if the joinder was erroneous, whether the error may be deemed harmless."3 II. STANDARD OF REVIEW Generally, this Court reviews questions of law de novo and factual findings for clear error. People v McRae, 469 Mich 704, 710; 678 NW2d 425 (2004); MCR 2.613(C). The interpretation of a court rule, like matters of statutory

interpretation, is a question of law that we review de novo. People v Petit, 466 Mich 624, 627; 648 NW2d 193 (2002). To determine whether joinder is

permissible, a trial court must first find the relevant facts and then must decide whether those facts constitute "related" offenses for which joinder is appropriate. Because this case presents a mixed question of fact and law, it is subject to both a clear error and a de novo standard of review. Additionally, when this Court reviews preserved nonconstitutional errors, we consider the nature of the error and assess its effect in light of the weight and strength of the untainted evidence. MCL 769.26; People v Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999). Similarly, MCR 2.613(A) provides that "[a]n error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears
3

People v Williams, 481 Mich 884 (2008).

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to the court inconsistent with substantial justice." We recognize that both the statute and the court rule present "different articulations of the same idea." People v Robinson, 386 Mich 551, 562; 194 NW2d 709 (1972). III. ANALYSIS The same legal principles that govern the construction and application of statutes apply to court rules. In re KH, 469 Mich 621, 628; 677 NW2d 800 (2004). When construing a court rule, we begin with its plain language; when that language is unambiguous, we must enforce the meaning expressed, without further judicial construction or interpretation. Id. Defendant alleges that the trial court violated MCR 6.120. Defendant

argues that his offenses do not constitute either "the same conduct" or "a series of connected acts or acts constituting part of a single scheme or plan," as the Tobey Court defined those terms. Defendant further contends that his interpretation of the court rule is consistent with a Court of Appeals decision in which the Court applied Tobey's definitions of the relevant terms.4 Because the offenses charged were "unrelated," defendant claims that he had an absolute right to severance upon his objection to the prosecutor's motion to consolidate under MCR 6.120(B).

4

People v Daughenbaugh, 193 Mich App 506; 484 NW2d 690 (1992), mod in part and lv den in part 441 Mich 867 (1992).

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At the time of defendant's trial, MCR 6.120(A) and (B) provided in relevant part:5 (A) Permissive Joinder. An information or indictment may charge a single defendant with any two or more offenses. Each offense must be stated in a separate count. Two or more informations or indictments against a single defendant may be consolidated for a single trial. (B) Right of Severance; Unrelated Offenses. On the defendant's motion, the court must sever unrelated offenses for separate trials. For purposes of this rule, two offenses are related if they are based on (1) the same conduct, or (2) a series of connected acts or acts constituting part of a single scheme or plan. The plain language of MCR 6.120 permits joinder if offenses are "related." Offenses are "related" if they comprise either "the same conduct" or "a series of connected acts or acts constituting part of a single scheme or plan." MCR

6.120(B)(1) and (2). Accordingly, the court rule then in effect unambiguously provided three potential bases on which joinder is permissible. The Court amended MCR 6.120 effective January 1, 2006. Currently, MCR 6.120(B)(1) states that: (1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are related if they are based on (a) the same conduct or transaction, or (b) a series of connected acts, or (c) a series of acts constituting parts of a single scheme or plan. Because the trial court decided this issue before January 1, 2006, under the former rule, we analyze this case with the rule then in effect.
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In this case, the record reflects that the trial court correctly applied the plain language of MCR 6.120 to the facts presented when it concluded that the offenses charged were "related." After hearing arguments from the parties, the trial court specifically addressed the language of MCR 6.120(A) and (B). The court

concluded that the offenses charged in both cases reflect defendant's "single scheme or plan" of drug trafficking. MCR 6.120(B)(2). Consequently, defendant had no right to sever these "related" offenses. MCR 6.120(B).6 The trial court noted that in light of the relevant facts, a single jury trial was appropriate and, further, the court stated that it would "be cautioning the jury that they need to find that both events have to meet the standard of proof beyond a reasonable doubt." We conclude that the trial court did not violate the unambiguous language of MCR 6.120. The offenses charged were plainly "related" under MCR

6.120(B)(2). In both cases, defendant was engaged in a scheme to break down cocaine and package it for distribution. Evidence of acts constituting part of

The dissent argues that MCR 6.120(B) "is mandatory and requires that unrelated offenses be severed upon a timely motion to sever." Post at 21 n 37. We agree that if the offenses charged were "unrelated," defendant would have a right to severance under MCR 6.120(B). In this case, however, the record reveals that the trial court analyzed the relevant facts and concluded that the charged offenses were "related"; therefore, defendant had no right to severance. Generally, a trial court's "ultimate ruling on a motion to sever is reviewed for an abuse of discretion." People v Girard, 269 Mich App 15, 17; 709 NW2d 229 (2005). Because the dissent cites no caselaw and advances no cogent argument to support its underlying assumption that the trial court abused its discretion, the dissent's repeated insistence that severance is mandatory for "unrelated" offenses is unavailing.

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defendant's single scheme was found in both the motel room and the house at 510 Nevada. Even if one views defendant's first arrest in November and his second arrest in February as discrete moments in time, direct evidence indicated that he was engaging in the same particular conduct on those dates.7 The charges

stemming from both arrests were not "related" simply because they were "of the same or similar character."8 Instead, the offenses charged were related because the evidence indicated that defendant engaged in ongoing acts constituting parts of his overall scheme or plan to package cocaine for distribution.9 Accordingly, the trial court complied with what the language of MCR 6.120 unambiguously required.10
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Likening us to a magician, the dissent contends that our statement is "a semantic sleight of hand." Post at 10. Although we conclude that defendant's charged offenses constitute "part of a single scheme or plan" under MCR 6.120(B)(2), we nevertheless note that discussion of whether the charged offenses involved "the same conduct" is also relevant for a reviewing court to consider because it reflects an alternative definition of "related offenses" under MCR 6.120(B)(1). See 2 ABA Standards for Criminal Justice (2d ed), ch 13, p 11 ("Offenses committed at different times and places are not `related' merely because they are of the same or similar character."). The dissent complains that "[n]othing in the record supports or even suggests that defendant's two arrests were anything more than two discrete occurrences of packaging illegal drugs." Post at 11 n 17. The dissent's concession that defendant's actions constituted two "occurrences of packaging illegal drugs" provides additional support for our conclusion that defendant's acts constituted parts of his scheme or plan to package cocaine for distribution. Although the trial court complied with the unambiguous language of MCR 6.120, the Court of Appeals construed the court rule too broadly. In our judgment, joinder may not be permitted if a reviewing court concludes that the only link to an ongoing scheme or plan is "to earn money" through some criminal enterprise.
10 9 8

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Our interpretation of MCR 6.120 is reinforced by the analysis of the United States Court of Appeals for the Sixth Circuit in several cases addressing the analogous federal rules.11 In United States v Saadey, 393 F3d 669 (CA 6, 2005), the court held that joinder of counts for filing false tax returns with counts for filing false credit applications against the defendant was appropriate "[b]ecause the credit application counts contained financial figures that were materially different from those reported on his tax returns . . . ." Id. at 678. The court concluded that the multiple counts revealed "a common scheme to defraud." Id. A second case involved a defendant charged with conspiracy to commit violent acts on the United States and its officers, in which the court had joined the defendant's drug-related and firearms-related counts. United States v Graham,

Williams, supra at 2. Moreover, in light of the myriad evidence indicating that defendant was engaged in an ongoing scheme or plan to package cocaine for distribution, whether his underlying motive was to earn money is immaterial. FR Crim P 8(a) provides that two or more offenses may be charged in the same indictment "if the offenses charged . . . are of the same or similar character or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." FR Crim P 14(a) states that severance is proper if joinder of offenses would prejudice the defendant: If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.
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275 F3d 490 (CA 6, 2001).12 The district court ruled that, based on the grand jury's indictment, the conspiracy to manufacture marijuana was part of "a common scheme or plan" to sell drugs to finance violence. Graham, supra at 512. On appeal, the court agreed that joinder of the counts was proper, reaffirming the well-established principle that "`[w]hen the joined counts are logically related, and there is a large area of overlapping proof, joinder is appropriate.'" Id., quoting United States v Wirsing, 719 F2d 859, 863 (CA 6, 1983). Similarly, in United States v Jacobs, 244 F3d 503, 507 (CA 6, 2001), the court held that the district court had not abused its discretion by denying the motion to sever charges arising from two separate incidents in which the defendant abducted his estranged wife.

The dissent asserts that in Graham, supra, the court based its holding "on the motive underlying the defendant's perpetration of each offense . . . ." Post at 1213. Moreover, the dissent contends that "the cases cited by the lead opinion all involve situations in which each joined offense was committed with a particular motive or goal underlying the defendant's conduct." Post at 13-14. In so doing, the dissent fails to explain why defendant's actions here do not reflect an underlying motive or particular goal each time that he was observed packaging cocaine for distribution. Indeed, in the seminal case used in LaFave, Criminal Procedure (3d ed),

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