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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, V UMAR A. MUHAMMAD, Defendant-Appellant.

UNPUBLISHED June 28, 2012

No. 301994 St Clair Circuit Court LC No. 85-127208-FC

Before: SERVITTO, P.J., and METER and FORT HOOD, JJ. PER CURIAM. Defendant appeals by leave granted1 from the order of the circuit court denying defendant's motion for relief from judgment. We affirm. I. BASIC FACTS AND PROCEDURAL HISTORY Defendant has been before this Court many times, beginning first in 1986, which resulted in a published opinion. People v Muhammad, 170 Mich App 747; 428 NW2d 762 (1988). Defendant's convictions arose from a bank robbery and shooting that occurred while fleeing a police pursuit. The Court in this first case remanded for a new trial, holding that the trial court abused its discretion by denying defendant's motion to sever trial. Id. at 758-759, 766. On retrial in 1989, defendant was convicted of bank robbery, MCL 750.531, assault with intent to do great bodily harm less than murder, MCL 750.84, as a lesser included offense of assault with intent to murder, MCL 750.83, possession of a firearm during the commission of a felony (bank robbery), MCL 750.227b, and possession of a firearm during the commission of a felony (assault), MCL 750.227b. Defendant was sentenced as a habitual offender, fourth offense, MCL 769.12, to life imprisonment for the bank robbery, 50 to 90 years for assault with intent to do great bodily harm, and two years for each of the felony-firearm convictions. Defendant appealed his conviction to this Court, which affirmed, People v Muhammad, unpublished opinion per curiam of the Court of Appeals, issued February 17, 1993 (Docket No. 128144), and to our Supreme Court, which denied leave to appeal, People v Muhammad, 444 Mich 855 (1993). In

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People v Muhammad, unpublished order of the Court of Appeals, entered May 2, 2011 (Docket No. 301994).

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1993, defendant filed a motion for a new trial, which was denied, as well as a motion to set aside judgment, which was also denied. In 1994, defendant filed a motion for relief from judgment which was similarly denied. In 2009, this Court held that a "verdict form was defective, requiring reversal, because it did not give the jury the opportunity to return a general verdict of not guilty." People v Wade, 283 Mich App 462, 468; 771 NW2d 447 (2009). Following the release of Wade, defendant filed another motion for relief from judgment with the trial court, asserting that his conviction for assault with intent to do great bodily harm less than murder should be overturned because the jury verdict form used in his case was analogous to the error in Wade. The court denied defendant's motion in a written opinion, finding that "[t]he verdict form in this case is clearly distinguishable from the one used in Wade, as a general verdict of not guilty was available for Count II." Defendant then sought delayed leave to appeal to this Court, which granted defendant leave to appeal. II. STANDARD OF REVIEW We review a trial court's denial of a defendant's motion for relief from judgment for an abuse of discretion. People v Fonville, 291 Mich App 363, 375-376; 804 NW2d 878 (2011). A lower court's interpretation of appellate decisions is a question of law we review de novo. People v Sexton, 458 Mich 43, 52; 580 NW2d 404 (1998). "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." MCL 768.29. The failure to object limits appellate review to plain error affecting the defendant's substantial rights. People v Martin, 271 Mich App 280, 353; 721 NW2d 815 (2006). "Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999) (citation and quotations omitted). To avoid forfeiture, the defendant bears the burden of establishing that error occurred, the error was plain, and the plain error affected substantial rights. People v Jones, 468 Mich 345, 355; 662 NW2d 376 (2003). When a defendant fails to object to the jury instructions or the verdict form, appellate review is precluded absent manifest injustice. People v Ferguson, 208 Mich App 508, 510; 528 NW2d 825 (1995). III. ANALYSIS "`A criminal defendant is entitled to have a properly instructed jury consider the evidence against him.'" People v Hawthorne, 474 Mich 174, 182; 713 NW2d 724 (2006), quoting People v Rodriguez, 463 Mich 466, 472; 620 NW2d 13 (2000). Additionally, a criminal defendant is deprived of his constitutional right to a jury trial when the jury is not given the opportunity to return a general verdict of not guilty. People v Clark, 295 Mich 704, 707; 295 NW 370 (1940); People v White, 81 Mich App 335, 339 n 1, 265 NW2d 139 (1978). In 2009, the Wade Court applied these rules to a particular jury verdict form. In Wade, one of the counts the defendant was charged with was first-degree murder, with the lesserincluded offenses of second-degree murder and involuntary manslaughter. The jury verdict form in that case read as follows, Wade, 283 Mich App at 465: -2-

POSSIBLE VERDICTS YOU MAY RETURN ONLY ONE VERDICT FOR EACH COUNT. COUNT 1

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