Order Michigan Supreme Court
Lansing, Michigan
December 2, 2009 Marilyn Kelly,
Chief Justice
139327 & (75) Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman
Plaintiff-Appellant, Diane M. Hathaway,
Justices
v SC: 139327
COA: 281566
Wayne CC: 06-014242
MICHAEL JESS WADE,
Defendant-Appellee.
_________________________________________/
On order of the Court, the application for leave to consider the April 21, 2009
judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals.
The jury verdict form was not dispositive because the trial court properly instructed the
jury. On the basis of the trial court’s instructions, the jury would have clearly understood
that it could find the defendant “not guilty” of first-degree murder and “not guilty” of the
lesser offenses of second-degree murder and involuntary manslaughter by checking the
“not guilty” box listed on the form under “Count 1.” In light of the jury instructions, the
trial court’s error in using the improper verdict form was harmless, see MCL 769.26;
People v Lukity, 460 Mich 484, 495 (1999), and the Court of Appeals erred in relying on
this Court’s decisions, including People v Clark, 295 Mich 704, 707 (1940), to hold that
the defendant’s constitutional right to a trial by jury was violated. Accordingly, we
REINSTATE the defendant’s convictions of involuntary manslaughter and possession of
a firearm during the commission of a felony. The motion for bond pending appeal is
DENIED as moot.
KELLY C.J. (dissenting).
I would grant the prosecutor’s application for leave to appeal and order full
briefing and oral argument. This case involves a jurisprudentially significant issue of
first impression in this state. Therefore, I would not take peremptory action, as I believe
it represents an unwarranted rush to judgment.
2
I find it particularly disturbing that the majority is willing to assume that “the jury
would have clearly understood” that it could find defendant not guilty of the lesser
offenses. In this case, the jury received conflicting directives: a verdict form that the
majority concedes was “improper” and legally proper oral instructions from the trial
judge. It is entirely speculative to conclude, as the majority does, that the jury clearly
relied on the proper instruction rather than the improper one. While the use of the
erroneous jury verdict form may have been harmless error, I cannot summarily reach that
conclusion on the record before us.
I dissent from the order peremptorily reversing the Court of Appeals judgment and
would instead grant leave to appeal.
CAVANAGH, J., joins the statement of KELLY, C.J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 2, 2009 _________________________________________
p1124 Clerk