People v. Williams

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion 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

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 135271

CARLETUS LASHAWN WILLIAMS,

Defendant-Appellant.

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 We conclude that the provisions of MCR 6.120 superseded Tobey.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.

3
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.

4
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).

5
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).

6
 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.

5
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.

7
 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

6
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.

8
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

7
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).
8
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.”).
9
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.
10
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.

9
 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.
11
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.

10
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.

12
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 12-
13. 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), § 17.1(a), to illustrate the “common scheme or plan” aspect of
the federal rule, the court held “that charges of bribery, tax evasion, and mail fraud
were properly joined because they all were instances of the defendant using his
public office for personal gain.” Id. at 4, citing United States v Barrett, 505 F2d
1091 (CA 7, 1974); see also United States v Fortenberry, 914 F2d 671 (CA 5,
1990) (holding that car bombing and weapons charges were properly joined where
all charges allegedly arose from defendant’s attempt to exact revenge on persons
involved in his divorce). Therefore, although the dissent attempts to distinguish
cases in which the court permitted joinder of those offenses committed with the
same motive, we conclude that the broad acceptance of a variety of underlying
motives by our sister courts provides yet another basis to conclude that the
charged offenses in this case were properly joined.

11
The court distinguished the defendant’s appeal from another case “[b]ecause, as

the district court properly concluded, both abductions were part of a common

scheme, the counts in the indictment are factually intertwined . . . .” Id. The court

concluded, “Here, even if the charges were tried separately, evidence from each

crime would have been admissible in the trial of the other because of the common

scheme or plan.” Id. The admissibility of evidence in other trials is an important

consideration because “[j]oinder of . . . other crimes cannot prejudice the

defendant more than he would have been by the admissibility of the other

evidence in a separate trial.” United States v Harris, 635 F2d 526, 527 (CA 6,

1980).

Having determined that defendant was not entitled to separate trials under

MCR 6.120, we next consider whether Tobey is consistent with MCR 6.120.13

Tobey, which predated the enactment of MCR 6.120 by approximately 12 years,

also analyzed the permissible circumstances for joinder. However, the Tobey

Court took a much narrower view of the circumstances in which joinder may be

appropriate than that set forth in MCR 6.120. This narrower view of Tobey can be

seen when one compares Tobey’s original analysis of the defendant’s conduct with

13
The dissent asserts that our decision is inherently flawed because we have
adopted “cart-before-the-horse reasoning” by analyzing whether defendant was
entitled to separate trials before analyzing whether Tobey is consistent with MCR
6.120. Post at 2. In so doing, the dissent fails to mention that we have analyzed
the issues before us in the same sequence set forth in our order granting
defendant’s application for leave and in the same sequence that the parties
themselves addressed the issues. See Williams, supra 481 Mich at 884.

12
the language later enacted in MCR 6.120.14 Because the differences between

Tobey and MCR 6.120 cannot be reconciled without undermining the plain

language of the court rule, we conclude that MCR 6.120 superseded Tobey.

Consequently, courts should no longer view Tobey as dispositive on issues of

joinder and severance.15 Consistent with our decision, we also reject the analysis

of Daughenbaugh in accordance with the plain language of MCR 6.120.16

14
Compare MCR 6.120(B)(2) (“a series of connected acts or acts constituting part
of a single scheme”) with Tobey, supra at 153 (“The undercover police agent
testified that he never gave Tobey his telephone number or address . . . . The
officer stated that he ‘always called down’ any time he wished to see Tobey to
make a purchase, and responded affirmatively to the question whether the sales
and purchases were ‘always initiated’ by him.”). Notably, the unambiguous
language of MCR 6.120 does not require that a reviewing court consider the
factors that the Tobey Court apparently found dispositive, including whether the
undercover agent had always initiated the drug sales or whether the defendant had
some means to locate the undercover agent.
15
The staff comment to MCR 6.120 states that “[e]laboration on this standard may
be found in People v Tobey, 401 Mich 141 (1977).” The staff comment
erroneously implied that Tobey is entirely consistent with the unambiguous
language of MCR 6.120. Moreover, a staff comment to the Michigan Court Rules
is not binding authority. People v Grove, 455 Mich 439, 456; 566 NW2d 547
(1997). Because the staff comment should not be considered an authoritative
construction of MCR 6.120, we only address the unambiguous language of the
court rule and this Court’s prior decision in Tobey. See MCR 1.101.
Consequently, the dissent’s reliance on the staff comment to buttress its argument
that “Tobey is virtually identical to the language in MCR 6.120 and is in no way
inconsistent” is misplaced. Post at 8.
16
As we have discussed, MCR 6.120 superseded Tobey because the unambiguous
language of the court rule cannot be reconciled with Tobey. Therefore, the Court
of Appeals erred when it concluded that MCR 6.120 codified Tobey.
Daughenbaugh, supra at 509. The dissent contends that Daughenbaugh should
nevertheless be viewed as “persuasive authority” for the proposition that MCR
6.120 codified our earlier decision in Tobey. Post at 8. We reject the dissent’s

13
 In Tobey, the Court concluded that charges arising from two drug sales to

the same undercover agent within 12 days were improperly joined because “[t]he

two informations charged distinct and separate offenses, and Tobey was entitled to

a separate trial on each offense.” Tobey, supra at 145. Because MCR 6.120 did

not yet exist, the Tobey Court’s discussion of permissible circumstances for

joinder relied on three primary sources. First, the Court quoted its earlier opinion

in People v Johns, 336 Mich 617; 59 NW2d 20 (1953), which had noted that “‘this

Court has emphasized that the offenses charged in the several counts must arise

out of substantially the same acts committed at the same time.’” Tobey, supra at

148-149, quoting Johns, supra at 623 (emphasis in Tobey). Second, the Court

relied on Blockburger v United States, 284 US 299, 301-302; 52 S Ct 180; 76 L Ed

306 (1932), to support its conclusion that, for double jeopardy and joinder

purposes, it would be inappropriate for consecutive sales of heroin made to the

same person on different days to constitute one offense. Tobey, supra at 149-150.

Third, the Tobey Court discussed the American Bar Association (ABA) Project on

reliance on obiter dictum from Daughenbaugh as persuasive authority.
Additionally, we note that Daughenbaugh cited no authority and omitted any
analysis of the plain language of MCR 6.120 in support of its conclusion.
Daughenbaugh, supra at 509. Instead, the Court of Appeals held that the charged
offenses were “unrelated” and that severance was mandatory under two of the
three primary sources on which Tobey had relied. Id. at 509-510. Perplexingly,
the dissent asserts that our analysis of these sources “is of questionable
assistance,” post at 2, but nonetheless describes the corresponding analysis in
Daughenbaugh as “entitled to some weight.” Post at 8 n 11.

14
Minimum Standards for Criminal Justice, Standards Relating to Joinder and

Severance (Approved Draft, 1968). Id. at 150-153.

None of the sources discussed in Tobey can be reconciled with the

unambiguous language of MCR 6.120. First, Tobey relied on Johns for the

proposition that “the offenses charged in the several counts must arise out of

substantially the same acts committed at the same time.” Tobey, supra at 149

(quotation marks and citation omitted; emphasis in original).17 Yet, Johns did not

conclude that offenses must be “committed at the same time” in order for joinder

to be appropriate. Instead, the Court described the general principle that

where the several offenses charged, though distinct in point of law,
yet spring out of substantially the same transaction, or are so
connected in their facts as to make substantially parts of the same
transaction, or connected series of facts, the defendant can not be
prejudiced in his defense by the joinder, and the court will neither
quash nor compel an election. [Johns, supra at 623.]

17
Although Tobey referred to this language from Johns, as well as earlier caselaw
that quoted such language approvingly, the dissent nevertheless insists that Tobey
reached the exact opposite conclusion about temporal proximity “in the context of
offenses committed as part of a single scheme.” Post at 4 n 5. This claim,
however, does not comport with Tobey’s discussion of Johns. Tobey, supra at
148-149, quoting Johns, supra at 623 (“‘It is to be noted that this Court has
emphasized that the offenses charged in the several counts must arise out of
substantially the same acts committed at the same time.’”); id. at 152 (“[c]ounts
charging Johns with maintainng [sic] a gaming room table and with keeping a
place where gambling was permitted were joined. ‘The acts committed . . .
occurred within an hour and a half and out of substantially the same
transaction.’”). The dissent, however, fails to acknowledge Tobey’s discussion of
Johns and instead relies on the commentary accompanying the ABA Standards.
See Tobey, supra at 152 n 15.

15
Moreover, the unambiguous language of MCR 6.120 does not mandate the

existence of temporal proximity between several offenses.18 Instead, MCR

6.120(B)(2) permits joinder of offenses that were not committed at the same time

but nevertheless constitute “a series of connected acts or acts constituting part of a

single scheme or plan.”

Tobey’s reliance on Blockburger “for double jeopardy and joinder

purposes” is similarly unavailing. Generally, joinder is a “discrete,

nonconstitutional concept[] that should not be conflated with the constitutional

double jeopardy protection.” People v Nutt, 469 Mich 565, 592 n 28; 677 NW2d 1

(2004). In Tobey, however, the Court reasoned that, “[f]or double jeopardy and

joinder purposes each sale is separate conduct, a separate act and transaction, and,

as the Court of Appeals correctly noted, a separate and distinct criminal offense.”

Tobey, supra at 149. Additionally, Tobey quoted extensively from Blockburger to

buttress its conclusion that “[w]hile Tobey’s conduct in selling heroin on different

days to the same person is substantially similar conduct, it is not the same conduct

or act.” Id. In so doing, Tobey conflated the constitutional double jeopardy

protection with the nonconstitutional concept of joinder. Consequently, we find

Tobey’s discussion of Blockburger unpersuasive.

18
We agree with the dissent that multiple offenses may be “related” as part of a
single scheme or plan despite a lack of temporal proximity. See post at 14 n 25.

16
 Tobey’s discussion of the draft ABA Project on Minimum Standards for

Criminal Justice, Standards Relating to Joinder and Severance (Approved Draft,

1968), refers to an earlier version. Soon after the Court decided Tobey, the ABA

published revised standards.19 These revised standards endeavored to “incorporate

and extend the approach of the original standards.”20 Unlike the draft version on

which Tobey relied, the revised ABA standards first introduced the concept of

“related” and “unrelated” offenses.21 When the Court adopted MCR 6.120 in

1989, it also used the framework of “related” and “unrelated” offenses. In

contrast, Tobey made no mention of “related” or “unrelated” offenses. Instead,

Tobey emphasized that the draft version permitted “joinder of offenses which ‘are

of the same or similar character’, or which ‘are based on the same conduct or on a

series of acts connected together or constituting parts of a single scheme or

plan’.”22 Both the revised standards and MCR 6.120, however, omitted any

suggestion that offenses should be “of the same or similar character,” as the draft

19
See 2 ABA Standards for Criminal Justice (2d ed, ch 13).
20
Id. at 6.
21
Id. at 9-10. Specifically, Standard 13-1.2 provides that “[t]wo or more offenses
are related offenses if they are based upon the same conduct, upon a single
criminal episode, or upon a common plan.” Moreover, Standard 13-1.3 provides
that “[u]nrelated offenses are any offenses which are not ‘related’ offenses.”
22
Tobey, supra at 150, citing ABA Standards Relating to Joinder and Severance
(Approved Draft, 1968), Standard 1.1.

17
ABA version had provided.23 The incongruities between the draft ABA version on

which Tobey relied and the plain language of MCR 6.120 reinforce our conclusion

that MCR 6.120 superseded Tobey.

Finally, we conclude that even if defendant successfully had established

that the trial court erred by joining his two cases, any error would be harmless.

Under MCL 769.26, a preserved, nonconstitutional error is not grounds for

reversal unless, after an examination of the entire cause, it affirmatively appears

that it is more probable than not that the error was outcome determinative. Lukity,

supra at 495-496. Similarly, MCR 2.613(A) provides that an error is not grounds

for disturbing a judgment “unless refusal to take this action appears to the court

inconsistent with substantial justice.”

In this case, the evidence of each charged offense could have been

introduced in the other trial under MRE 404(b).24 See, e.g., People v Sabin (After

23
The dissent claims that “just as Tobey rejected connecting offenses solely on the
basis that they are of ‘the same or similar character,’ MCR 6.120 omits that
language from its definition of ‘related’ offenses.” Post at 6. In so doing,
however, the dissent fails to acknowledge that neither Tobey nor the draft ABA
standards mentions “related” offenses at all. See Tobey, supra at 150-153.
Similarly, the dissent omits any discussion of the revised ABA standards, which,
unlike the draft version, no longer permitted the joinder of offenses “‘of the same
or similar character, even if not part of a single scheme or plan.’” Id. at 151 n 13,
quoting Draft Standard 1.1.
24
MRE 404(b) provides, in relevant part:

(1) Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action
in conformity therewith. It may, however, be admissible for other

18
Remand), 463 Mich 43, 63-65; 614 NW2d 888 (2000).25 Indeed, the prosecutor

moved to allow MRE 404(b) evidence as an alternative to its motion to

consolidate.26 The trial court concluded that defendant would suffer greater

prejudice if the court allowed evidence of the charged offenses in two separate

trials under MRE 404(b) than if the court permitted joinder. Moreover, the trial

court instructed the jury that it “must consider each crime separately in light of all

of the evidence in this case” and further that it “may find the defendant guilty of

all or any combination of these crimes or not guilty.”

We note that, besides being consistent with this Court’s caselaw, the trial

court’s conclusion is also consistent with that of the District of Columbia Court of

Appeals, which has stated that “a misjoinder may be deemed harmless only if all

purposes, such as proof of motive, opportunity, intent, preparation,
scheme, plan, or system in doing an act, knowledge, identity, or
absence of mistake or accident when the same is material, whether
such other crimes, wrongs, or acts are contemporaneous with, or
prior or subsequent to the conduct at issue in the case.
25
See also Krist v Foltz, 804 F2d 944, 947-948 (CA 6, 1986) (agreeing with the
Michigan Court of Appeals decision that while joinder of two robbery counts may
have been improper, similarity in details of the two robberies and their closeness
in time would have made evidence of one crime admissible at the separate trial of
the other; therefore, the petitioner suffered no prejudice from his counsel’s failure
to move for severance).
26
The dissent contends that evidence of each charged offense could have been
introduced in the other trial under MRE 404(b) “[o]nly once such a [single]
scheme has been shown.” Post at 22. The dissent’s argument, however, ignores
the many bases on which MRE 404(b) permits evidence of other crimes, including
“proof of motive, opportunity, intent, preparation, scheme, plan, or system in
doing an act, knowledge, identity, or absence of mistake or accident.” See note 24
of this opinion.

19
or substantially all of the evidence of one offense would be admissible in a

separate trial of the other.” Byrd v United States, 551 A2d 96, 99 (DC, 1988)

(citation and quotation marks omitted).27 The United States Supreme Court also

has stated, “[i]mproper joinder does not, in itself, violate the Constitution. Rather,

misjoinder would rise to the level of a constitutional violation only if it results in

prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial.”

United States v Lane, 474 US 438, 446, n 8; 106 S Ct 725; 88 L Ed 2d 814 (1986).

Therefore, even if the trial court had erred by joining the charges, we

cannot conclude that such an error was outcome determinative.28

27
The language of FR Crim P 8(a) closely tracks the language of MCR 6.120.
Nevertheless, some differences exist between the rules, including the concept of
misjoinder. Failure to meet the requirements of FR Crim P 8(a) constitutes
misjoinder as a matter of law. United States v Chavis, 296 F3d 450, 456-457 (CA
6, 2002). Unlike the federal rule, however, 1A Gillespie, Michigan Criminal Law
& Procedure (2d ed), § 17:36, pp 227-228, states:

Where two distinct offenses were not committed at the same
time, or were committed on different days,11 or where the first was
committed before a second and separate offense was committed,12
and they cannot be shown by the same evidence, they nonetheless
can be joined in the same information, there being no such thing as
misjoinder of offenses in Michigan.13

11
People v. Dupree, 175 Mich. 632, 141 N.W. 672 (1913).
12
People v. Goulette, 82 Mich. 36, 45 N.W. 1124 (1890).
13
MCR 6.120(A).
28
Our conclusion is also consistent with a recent case denying an application for a
writ of habeas corpus, in relevant part because the petitioner was not prejudiced by
the joinder of four counts of second-degree criminal sexual conduct, MCL

20
 IV. FURTHER RESPONSE TO CHIEF JUSTICE KELLY’S DISSENT

Chief Justice Kelly asserts that we have “implicitly” incorporated “same or

similar character” language into MCR 6.120 “by denying severance of offenses

that are of the same or similar character under the misnomer of a single scheme or

plan.” Post at 17. Not only does Chief Justice Kelly fail to adequately explain

how we have implicitly read language into the court rule, she also ignores our

explicit statement concerning “same or similar character” offenses. See supra at

8-9. Moreover, the plain language of MCR 6.120 does not permit the joinder of

those offenses that are only “of the same or similar character.” Accordingly, we

reject Chief Justice Kelly’s assertion. Our analysis begins with the plain language

of the court rule and enforces the meaning expressed, without further judicial

construction or interpretation. See In re KH, supra at 628.

Chief Justice Kelly contends that “[o]ther jurisdictions with similar court

rules have correctly rejected” interpretations consistent with our interpretation of

“single scheme or plan.” Post at 14 n 25. She further argues that many

jurisdictions “consider a finding of a common motive or goal to be a precondition

750.520c(1)(a). Couturier v Vasbinder, __ F Supp __; 2008 WL 4613055 (ED
Mich, 2008). In Couturier, the petitioner allegedly engaged in sexual contact with
three first-grade students while the students sat on his lap. The district court
concluded that the “[p]etitioner was not prejudiced by the joinder of the charges,
because both the trial court and the Michigan Court of Appeals found that each of
the charges was admissible under M.R.E. 404(b) against the other charges to show
that petitioner had a ‘plan, scheme, or system’ to sexually assault the different
victims.”

21
for establishing a single or common scheme or plan under the joinder and

severance rules.” Post at 14 n 25. In so doing, Chief Justice Kelly again

presupposes that defendant’s actions do not reflect a common motive or particular

goal each time that he was observed packaging cocaine for distribution. To

buttress her argument, Chief Justice Kelly cites three cases that do not advance her

position.

In State v Denton, 149 SW3d 1 (Tenn, 2004), for example, the Tennessee

Supreme Court explained the unique rubric developed through that state’s court

rules and caselaw to address joinder and severance issues. See Denton, supra at

12-13. Although Chief Justice Kelly acknowledges that Tenn R Crim P 14(b)(1)

and MCR 6.120 differ, she asserts that any differences between the two rules are

irrelevant because Denton “interpreted the common scheme or plan clause, not the

evidentiary admissibility question.” Post at 14 n 25. We reject Chief Justice

Kelly’s flawed assertion that the common scheme or plan clause can be isolated

from the evidentiary admissibility clause because the clauses are compound

propositions. Under Tenn R Crim P 14(b)(1), a defendant has the right to

severance unless the offenses charged are “part of a common scheme or plan and

the evidence of one would be admissible in the trial of the others.” Indeed, this

latter conjunctive requirement, which is entirely absent in MCR 6.120, functions

22
as the primary inquiry in Tennessee.29 The Tennessee Supreme Court thus

explained that, “in addition to showing that the offenses are part of a common

scheme or plan, there is also a question of evidentiary admissibility that must be

addressed.” Denton, supra at 13.30 Because of these differences, we question how

much value, if any, should be assigned to Chief Justice Kelly’s repeated

invocation of Denton and Tenn R Crim P 14(b)(1) throughout her dissent.

Additionally, in State v McCrary, 621 SW2d 266 (Mo, 1981), the Missouri

Supreme Court found no abuse of discretion in the trial court’s refusal to sever the

offenses charged against the defendant when the offenses revealed “ample

evidence of the existence of a plan of harassment and revenge aimed at the

[defendant’s former partner and her new] family.” McCrary, supra at 271-272.

The Missouri Supreme Court thus upheld the joinder of offenses against the

defendant for three discrete occurrences, including carrying a concealed weapon

29
See State v Burchfield, 664 SW2d 284, 286 (Tenn, 1984) (“The primary inquiry
into whether a severance should have been granted under Rule 14 is whether the
evidence of one crime would be admissible in the trial of the other if the two
counts of indictment had been severed.”).
30
Three types of evidence showing a common scheme or plan exist in Tennessee:

(1) offenses that reveal a distinctive design or are so similar
as to constitute “signature” crimes; (2) offenses that are part of a
larger, continuing plan or conspiracy; and (3) offenses that are all
part of the same criminal transaction.” [Denton, supra at 13, citing
State v Shirley, 6 SW3d 243, 248 (Tenn, 1999).]

23
on March 12, 1978, an assault on November 16, 1978, and a firebombing on

March 8, 1979. Id. at 271.

Similarly, in State v Oetken, 613 NW2d 679, 688 (Iowa, 2000), the

defendant argued that his trial counsel was ineffective because his attorney did not

move to sever two burglary charges that defendant asserted were not part of

“common scheme or plan.” The Iowa Supreme Court disagreed, concluding that

sufficient evidence supported the existence of a common scheme or plan, where

the defendant “traveled through the rural countryside in search of homes that were

unoccupied during traditional work hours, he knocked to ascertain the abodes were

indeed vacant, broke and entered the premises through the rear doors, and

proceeded to steal small portable objects such as TVs, VCRs, and guns.” Id. at

699. The Iowa Supreme Court has affirmed its interpretation of what constitutes a

“common scheme or plan” in more recent decisions as well.31 Indeed, the analysis

in these cases does not justify Chief Justice Kelly’s reliance on them.

Moreover, several recent decisions reflect that other jurisdictions with

similar court rules have adopted interpretations consistent with ours. The

Mississippi Supreme Court has held that a “common scheme or plan” existed

when the defendant was charged with three counts of forging prescriptions

31
See State v Elston, 735 NW2d 196, 199 (Iowa, 2007) (concluding that the
charges against the defendant were part of a “common scheme or plan” even
though “the temporal proximity of the alleged indecent contact and sexual
exploitation offenses was not close and the modus operandi allegedly employed by
[the defendant] was dissimilar.”).

24
involving two different pharmacists over a five month period. See Rushing v

State, 911 So 2d 526, 536 (Miss, 2005) (“Succinctly stated, these counts involve

too many similar factors when viewed together, to be anything but clearly linked

and part of the same common scheme or plan.”). Similarly, the Wyoming

Supreme Court has held that the trial court did not abuse its discretion in refusing

to sever a first-degree attempted sexual assault charge from attempted first-degree

sexual assault charges involving a different victim. Lessard v State, 158 P3d 698,

704 (Wy, 2007). The court reasoned that the charged offenses constituted parts of

a “single scheme or plan” even though “the criminal acts occurred at different

locations and against different victims . . . .” Id. The Vermont Supreme Court

also rejected the argument that because the charged offenses were separated in

time, they cannot constitute a “common plan or scheme,” explaining that “there is

no hard-and-fast rule regarding time limits, and . . . the necessary proximity must

vary with the circumstances.” State v Willis, 181 Vt 170, 181; 915 A 2d 208

(2006) (citation and quotation marks omitted). Moreover, the Massachusetts

Supreme Court affirmed a trial court decision to join four counts of aggravated

rape and murder, stating that “the evidence supported a finding of ‘a common plan

by the defendant to prey upon similarly situated cocaine-addicted women for

sexual gratification . . . .’” Commonwealth v Gaynor, 443 Mass 245, 259-260; 820

NE2d 233 (2005). In light of these decisions, we reject the view that our

interpretation of the court rule somehow deviates from the interpretation of other

jurisdictions concerning analogous rules.

25
 V. CONCLUSION

The trial court correctly applied the unambiguous language of MCR

6.120(A) and (B) in determining that the offenses in this case were “related” and

consequently that joinder was appropriate. We further conclude that MCR 6.120

superseded the Court’s earlier decision in Tobey and, therefore, courts should no

longer view Tobey as dispositive regarding issues of joinder and severance against

a single criminal defendant. Instead, courts must give effect to the plain language

of the court rule. Accordingly, we affirm defendant’s convictions.

Maura D. Corrigan
Elizabeth A. Weaver (except for part IV)
Robert P. Young, Jr.
Stephen J. Markman

26
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 135271

CARLETUS LASHAWN WILLIAMS,

Defendant-Appellant.

WEAVER, J. (concurring).

I concur in all except part IV of Justice Corrigan’s opinion.

Elizabeth A. Weaver
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 135271

CARLETUS LASHAWN WILLIAMS,

Defendant-Appellant.

KELLY, C.J. (dissenting).

I respectfully dissent. The majority erroneously concludes that MCR 6.120

superseded People v Tobey.1 I disagree because the court rule and Tobey can be

reconciled. Moreover, in rejecting Tobey, the opinion offers no persuasive reason

why MCR 6.120 does not require that defendant’s alleged offenses be severed for

trial. I therefore disagree with its analysis and conclusions. The offenses should

have been separately tried, and the failure to sever them was not harmless error.

Therefore, I would reverse the judgment of the Court of Appeals.

There are three flaws in the majority’s analytical approach. Tobey and

MCR 6.120 are currently the controlling authority on joinder and severance.

Thus, I believe the appropriate initial question for the Court is whether the two

standards for joinder and severance are reconcilable.

1
People v Tobey, 401 Mich 141; 257 NW2d 537 (1977).
 However, the starting point for the majority’s analysis is its own

determination that the offenses in this case were “related” under MCR 6.120.

Only then does it proceed to determine whether Tobey is consistent with the court

rule. This cart-before-the-horse reasoning certainly makes it easier to conclude

that the two standards are irreconcilable, given that Tobey explicitly held that

essentially the same offenses were not properly joined. But this approach

prejudges the central question at issue.

Second, the majority never compares the language of Tobey with the

language of MCR 6.120. Yet it concludes that the language of Tobey is

inconsistent with the “plain language” of MCR 6.120.2

2
The majority evades this failure to compare the relevant language by comparing
MCR 6.120(B)(2) and the defendant’s conduct in Tobey. Ante at 12-13 and n 15.
This is not the same as comparing the standards from the two cases. Moreover, it
is immensely unhelpful to the majority’s argument that “the unambiguous
language of MCR 6.120 does not require that a reviewing court consider the
factors that the Tobey Court apparently found dispositive[.]” Ante at 13 n 15.
MCR 6.120 does not have any “factors” or describe any factual circumstances to
which it does or does not apply. Therefore, the fact that MCR 6.120 does not
require a reviewing court to consider “whether the undercover agent had always
initiated the drug sales” is irrelevant.

Despite its failure to compare the language of Tobey with MCR 6.120, the
majority confidently asserts that “the Tobey Court took a much narrower view of
the circumstances in which joinder may be appropriate,” ante at 12, and that “the
differences between Tobey and MCR 6.120 cannot be reconciled without
undermining the plain language of the rule,” ante at 13. It reaches these
conclusions without ever comparing the pertinent language of Tobey and MCR
6.120.

2
 Third, the majority engages in lengthy and largely irrelevant criticism of the

language in the authority that Tobey relies on to support its holding. This analysis

is of questionable assistance in determining whether the two standards can be

reconciled because it ignores the language of Tobey’s actual holding.

Therefore, the majority provides little basis for its conclusion that Tobey is

irreconcilable with MCR 6.120. The opinion’s often reiterated conclusion that

Tobey is inconsistent with the “unambiguous language” of MCR 6.120 does not

become more persuasive through repetition.

I. MCR 6.120 AND TOBEY ARE RECONCILABLE AND
CONSISTENT WITH ONE ANOTHER

Any meaningful analysis of whether Tobey is consistent with MCR 6.120

requires the answers to two key questions. First, for joinder and severance

purposes, what relationship must exist between the charged criminal offenses?

Second, under what circumstances is joinder allowed or severance mandated? If

the answers to these questions are consistent under both a Tobey analysis and an

MCR 6.120 analysis, the two can be applied harmoniously. I will address each of

the questions separately.

3
 A. Definition of “Related” Offenses3

The majority’s attempt to distinguish the language of MCR 6.120 from the

authority cited in Tobey ignores Tobey’s central holding. Certainly, some of the

authority on which Tobey relies quotes language that differs from the language of

the court rule.4 However, Tobey’s holding did not incorporate any language from

those sources that is inconsistent with the definition of “related” offenses in MCR

6.120.5

3
The majority observed that Tobey did not use the terms “related” or “unrelated”
to modify “offenses.” Ante at 17. We note that the joinder and severance
standards from Tobey and MCR 6.120 are mutually consistent, and that is the fact
more worthy of observation. See Part I(A), Part I(B), and note 7 of this opinion.
4
The majority addresses Tobey’s citation of People v Johns, 336 Mich 617; 59
NW2d 20 (1953), Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed
306 (1932), and the American Bar Association (ABA) Project on Minimum
Standards for Criminal Justice, Standards Relating to Joinder and Severance
(Approved Draft, 1968).
5
Contrary to the majority’s implication, Tobey did not “mandate the existence of
temporal proximity between several offenses.” Ante at 16. Rather, Tobey simply
stated that, when a defendant commits separate offenses at different times, joinder
of the separate offenses for trial is permitted only under certain circumstances.
When MCR 6.120 was enacted, it defined those circumstances as “related”
offenses, using language virtually identical to Tobey’s definition.

The majority opines that this claim does not comport with the Tobey
Court’s discussion of Johns. Ante at 13 n 15. This argument is misguided because
the Tobey Court concluded that Johns involved “a series of connected acts,” not a
single scheme or plan. Tobey, supra at 152. In fact, Tobey said exactly the
opposite in the context of offenses committed as part of a single scheme. Tobey,
supra at 152 n 15 (“joinder is allowed for offenses which are part of a single
scheme, even if considerable time passes between them.”) (emphasis added).

The majority similarly rejects as “unpersuasive” Tobey’s conclusion that
“each sale is separate conduct, a separate act and transaction, and . . . a separate

4
 The key portion of the Tobey opinion states:

We adhere again to our earlier precedents and hold: a judge
must sever two or more offenses when the offenses have been joined
for trial solely on the ground that they are of the “same or similar
character” and the defendant files a timely motion for severance
objecting to the joinder . . . a judge has no discretion to permit the
joinder for trial of separate offenses committed at different times
unless the offenses “are based on the same conduct or on a series of
acts connected together or constituting parts of a single scheme or
plan.”[6]

Tobey therefore held that joinder is appropriate when charged offenses are of the

same or similar character, but the charges must be severed if a timely motion for

severance is filed. Tobey also held that offenses cannot be joined unless they are

based on (1) the same conduct, (2) a series of acts connected together, or (3) a

series of acts constituting parts of a single scheme or plan. The language used in 1

and distinct criminal offense” because it relied on Blockburger. Ante at 16. It
contends that Tobey erred because joinder and double jeopardy are distinct
concepts, joinder being a nonconstitutional concept and double jeopardy being a
constitutional protection. Ante at 16, quoting People v Nutt, 469 Mich 565, 592 n
28; 677 NW2d 1 (2004). Despite the majority’s isolated quotation from Nutt,
nothing in Nutt undermines Tobey’s holding. Nutt defined “same offense” using
the “same elements” test from Blockburger. In doing so, Nutt rejected the broader
“same transaction” test for defining what constitutes the same offense, overruling
People v White, 390 Mich 245; 212 NW2d 222 (1973). The majority offers no
explanation for why this narrow definition of the “same offense” for double
jeopardy purposes should be defined more broadly in the joinder and severance
context. I am not persuaded that a defendant’s conduct should be considered “the
same conduct” for joinder purposes when it simultaneously constitutes separate
and distinct criminal offenses for double jeopardy purposes.
6
Tobey, supra at 153 (citations omitted; emphasis added).

5
through 3 is virtually identical to the language used in MCR 6.120 when it defines

what constitutes a “related” offense.7

Moreover, just as Tobey rejected connecting offenses solely on the basis

that they are of “the same or similar character,” MCR 6.120 omits that language

from its definition of “related” offenses.8 Therefore, the court rule’s definition of

“related” offenses requires the same connection between criminal offenses for

joinder and severance purposes that Tobey did.

B. Negative Joinder and Affirmative Right to Severance

The second question in the analysis is whether Tobey and MCR 6.120 allow

joinder and mandate severance of offenses in a manner consistent with one

another. MCR 6.120 permits joinder of offenses under any circumstances, which

Tobey did not. However, MCR 6.120 also requires severance of “unrelated”

offenses upon a defendant’s timely motion for severance. As discussed

7
I note that the standards need not be “identical” to be consistent with one
another. Nevertheless, an illustration of the very minor differences between the
two standards seems appropriate. These differences are inconsequential, as can be
seen below:

Tobey: “based on the same conduct or on a series of acts connected together
or constituting parts of a single scheme or plan.”

MCR 6.120(B): “based on the same conduct, or a series of connected acts
or acts constituting part of a single scheme or plan.”
8
Therefore, contrary to the contention of the majority, the fact that MCR 6.120
omits any reference to conduct of the “same or similar character” in its definition
of related offenses supports my position. The Michigan rule’s definition of related
offenses is significantly narrower than that of the federal rule.

6
previously, MCR 6.120 defined “related” offenses using language virtually

identical to that used in Tobey.

Thus, the sole substantive difference between Tobey and MCR 6.120

concerns whether joinder of offenses is allowed in the first instance. But where, as

in the case before us, a defendant makes a timely motion for severance, this

distinction makes no practical difference and does not render the two

irreconcilable.9

C. The Staff Comment to MCR 6.120 and Daughenbaugh

Finally, I note that the staff comment to MCR 6.120 states that “[t]his

provision is consistent with Michigan law” and then cites Tobey. In People v

9
Both Tobey and the court rule require that offenses must either not be joined or
must be severed using virtually identical language to define “related” offenses.
Tobey does not allow unrelated offenses to be joined in the first place. MCR
6.120 simply rephrases the negative joinder rule from Tobey as an affirmative
right to severance, allowing unrelated offenses to be joined, but making severance
mandatory if the defendant objects. Whether the charges are joined and then
severed, or never joined in the first place, is irrelevant here. Defendant made a
timely motion for severance, which is all that MCR 6.120 requires for mandatory
severance of unrelated offenses.

The rewriting of the joinder and severance provisions to create an
affirmative right to severance of unrelated offenses is significant for another
reason. That an affirmative right to severance exists for defendants charged with
unrelated offenses is significant when analyzing whether the erroneous denial of a
motion to sever constitutes harmless error. See section on harmless error, infra.

The majority acknowledges that “some differences” exist between MCR
6.120 and the analogous federal rules, ante at 20 n 27. But it does not explain why
its analysis is plausible given that the differences between MCR 6.120 and the
federal rules are far more substantive than the differences between MCR 6.120
and Tobey.

7
Daughenbaugh, the Court of Appeals concluded that “[t]he court rule is a

codification of the Supreme Court’s earlier decision in [Tobey].”10 The majority

offers nothing to contradict this persuasive authority other than its unsupported

assertion that Tobey is somehow inconsistent with the language of the court rule.11

As noted earlier, the relevant language from Tobey is virtually identical to the

language of MCR 6.120 and is in no way inconsistent.

II. APPLICATION OF THE STANDARD FOR JOINDER AND SEVERANCE

Given that Tobey and MCR 6.120 are consistent with one another, they

provide a uniform standard for evaluating when joinder or severance of criminal

charges is appropriate. The majority correctly notes that, in deciding whether

severance is required, the threshold question must be whether the charged offenses

were “related.” At the time of defendant’s trial, MCR 6.120 defined a “related”

offense as either “the same conduct” or “a series of connected acts or acts

constituting part of a single scheme or plan.”12

10
People v Daughenbaugh, 193 Mich App 506, 509; 484 NW2d 690, mod in part
441 Mich 867 (1992).
11
The majority also objects to my reference to this dictum from Daughenbaugh as
“persuasive authority.” Ante at 13 n 16. However, it offers no persuasive
argument to warrant rejecting the staff comment and this language from
Daughenbaugh. My analysis of Tobey and MCR 6.120 leads to the conclusion
that the two provide consistent standards for joinder and severance. Since the staff
comment and Daughenbaugh are also consistent with this conclusion, they are
entitled to some weight in the analysis.
12
MCR 6.120(B)(1)-(2). As the majority observes, although MCR 6.120 was
amended effective January 1, 2006, this case was decided under the prior version

8
 The lower courts both concluded that the offenses in this case were

“related” under the “acts constituting part of a single scheme or plan” provision of

MCR 6.120. The trial court ruled that the offenses were part of a single scheme or

plan to commit “drug trafficking.” The Court of Appeals concluded that the

offenses were part of a single scheme or plan “to earn money by selling

cocaine.”13

The majority seemingly accepts the trial court’s interpretation of what may

comprise a single scheme or plan, while rejecting the Court of Appeals’

interpretation of the provision as “too broad[].”14 Yet the majority does not adopt

the trial court’s language that defendant had a single scheme or plan to engage in

“drug trafficking.” Instead, it concludes, similarly, that the offenses were related

because defendant had a single scheme or plan “to package cocaine for

distribution.”15

of the rule and must be analyzed accordingly. The 2006 amendment did not
significantly change the language defining “related” offenses.
13
People v Williams, unpublished opinion per curiam of the Court of Appeals,
issued October 25, 2007 (Docket No. 266807), at 2.
14
Ante at 9 n 10.
15
Ante at 9. The majority determines that the charged offenses were “plainly
‘related’” as part of an overall scheme or plan and therefore were properly joined.
Ante at 8. Yet it makes this determination in spite of several contradictory
conclusions. First, it rejects both the trial court’s and the Court of Appeals’ bases
for finding a “single scheme or plan.” See ante at 9. Second, it concludes that the
Court of Appeals construed the “single scheme or plan” language too broadly in
finding an ongoing scheme to “‘earn money’ through some criminal enterprise.”
Ante at 9 n 10. Finally, despite these contradictions, it chastises the dissent for not

9
 In doing so, the majority performs a semantic sleight of hand. It first

observes that “direct evidence indicated that [defendant] was engaging in the same

particular conduct on those dates.”16 Thus, it purports to agree with the lower

courts that defendant’s conduct constituted a single scheme or plan.

However, the majority actually places what it considers the “same

particular conduct” under the guise of the “single scheme or plan” provision of

MCR 6.120.17 As will be discussed later, there is no basis for the majority’s

“support[ing] its underlying assumption that the trial court abused its discretion”
in finding that the offenses were “related.” Ante at 8 n 6. It appears that the
majority itself believes that the trial court erred, because it does not adopt the trial
court’s finding of a single scheme to engage in “drug trafficking.” However, that
presents no barrier to it. It simply invents its own basis for holding that the
offenses are “related.”
16
Ante at 9 (emphasis added).
17
This conclusion simply reflects the majority’s disagreement with how the Tobey
Court defined “the same conduct or act.” In effect, the majority uses its
conclusion that defendant’s conduct was part of an ongoing scheme “to package
cocaine for distribution” to argue that the same conduct is involved in both
offenses. This circular reasoning does nothing to advance the majority’s
argument, because it presupposes the very conclusion it is attempting to prove.

However, joinder of the charged offenses against defendant in this case was
premised on the “single scheme or plan” part of MCR 6.120. Defendant’s conduct
was clearly not “the same conduct or act.”

It was undisputed in the lower courts that defendant’s crimes did not
involve either “the same conduct” or “a series of acts connected together.” The
majority determines that an ongoing scheme or plan to “earn money by selling
cocaine” is insufficient to deny severance under MCR 6.120. It also determines
that an ongoing scheme or plan to “package cocaine for distribution” suffices to
deny severance. I find this to be an arbitrary distinction. Moreover, I disagree
with the majority that the record contains “myriad evidence” showing that
defendant was engaged in an ongoing scheme to package cocaine for distribution.

10
conclusions that defendant’s offenses were “related.” It was not the same conduct

or part of a single scheme or plan. Thus, none of the majority’s analysis is tenable

under the court rule or Tobey.

A. The Federal Rules and Caselaw Interpreting Them

First, the provisions of the corresponding federal rules of criminal

procedure, on which the majority relies heavily to support its holding, differ

significantly from MCR 6.120. FR Crim P 8(a), which loosely tracks the

definition of “related” offenses in MCR 6.120, defines such offenses more broadly

than our court rule.18

In addition, FR Crim P 14(a), which governs severance of unrelated

offenses, is discretionary, not mandatory like MCR 6.120(B). The federal rule

also authorizes the court to sever offenses only when joinder prejudices the

defendant. Again, MCR 6.120 is inapposite because it requires a court to sever all

unrelated offenses upon a timely motion by the defendant, without requiring a

defendant to show prejudice.

Ante at 9 n 10. Nothing in the record supports or even suggests that defendant’s
two arrests were anything more than two discrete occurrences of packaging illegal
drugs. Separate, unrelated events are not “ongoing acts.” There is no evidence of
an underlying single purpose motivating defendant’s actions in each offense, aside
from the extraordinarily broad one used by the lower courts and the majority.
18
FR Crim P 8(a) allows joinder when 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.”

11
 Second, caselaw interpreting the federal rule does not support the lower

courts’ interpretation of what types of conduct can be considered a “single scheme

or plan.” For example, in United States v Saadey,19 on which the majority relies,

the defendant was charged with, among other offenses, conspiracy to violate the

Racketeer Influenced and Corrupt Organizations Act (RICO).20

The defendant was an investigator employed by the county prosecutor. In

1994 and 1995, he participated in a case-fixing conspiracy. He argued that the

counts charging him with filing false tax returns and credit applications had been

improperly joined. The Sixth Circuit Court of Appeals disagreed, concluding that

joinder had been proper because all the charges filed against him stemmed from

conduct that was part of his “common scheme to defraud.”21

Another case that the majority relies on, United States v Graham,22

provides an even more compelling illustration of the connection necessary to

establish a common scheme or plan. In Graham, the court upheld joinder of

numerous drug and firearm charges against the defendant. However, the court

based its holding on the motive underlying the defendant’s perpetration of each

19
United States v Saadey, 393 F3d 669 (CA 6, 2005).
20
18 USC 1961 et seq.
21
Saadey, supra at 678.
22
United States v Graham, 275 F3d 490 (CA 6, 2001).

12
offense, which was encapsulated in a charge of conspiracy to commit offenses

against the United States.

The defendant in Graham was a member of a local militia organization that

planned to attack government targets. He also grew and sold marijuana, the

proceeds of which he used to purchase weapons for his militia activity. Testimony

at the defendant’s trial established that each of the charged offenses was directly

related to the larger conspiracy and underlying motive for the offenses:

defendant’s distrust of government and participation in the militia organization.

The majority also relies on United States v Fortenberry.23 There, the

defendant was convicted of conspiracy to commit arson, possession of an

unregistered firearm, and transportation of an undeclared firearm on a commercial

airliner. The Fifth Circuit Court of Appeals upheld joinder of the offenses because

they involved a common plan to take revenge on persons involved in defendant’s

divorce and custody battle.

B. Requirements for Establishing a Single/Common Scheme or Plan

The underlying premise throughout these cases is that a simple string of

similar offenses, in and of itself, is not sufficient to establish a single common

scheme or plan. Rather, the cases cited by the majority all involve situations in

which each joined offense was committed with a particular motive or goal

23
United States v Fortenberry, 914 F2d 671 (CA 5, 1990).

13
underlying the defendant’s conduct.24 That common motive is what established

the common scheme or plan and made joinder appropriate.25

24
In fact, in most of the cases the majority cites, the defendant was charged with
conspiracy to commit a crime in addition to the joined offenses. The courts in
those cases typically determined that the other charged offenses were properly
joined because the defendant committed them in order to accomplish the
objectives of the underlying conspiracy.
25
Justice Corrigan’s opinion cites four cases from other states that it claims
support its analysis. It then quotes language from two of the cases that support the
conclusion that temporal proximity between offenses is not required for them to be
properly joined. See ante at 25, quoting Lessard v State, 158 P3d 698, 704 (Wy,
2007); State v Willis, 181 Vt 170, 181; 915 A2d 208 (Vt, 2006). As stated in note
5 of this opinion, I agree that temporal proximity between offenses is not required
to establish that offenses are “related” as part of a single scheme or plan. These
cases therefore fail to advance the majority’s argument.

Moreover, the majority’s broad definition of “single scheme or plan” is
inconsistent with the language and purpose of the court rule. Other jurisdictions
with similar court rules have correctly rejected such interpretations. See State v
Denton, 149 SW3d 1, 15 (Tenn, 2004) (“A larger plan or conspiracy in this
context contemplates crimes committed in furtherance of a plan that has a readily
distinguishable goal, not simply a string of similar offenses”). I acknowledge that
Tennessee’s severance rule differs from Michigan’s. Nevertheless, contrary to the
view of Justice Corrigan’s opinion, Denton is relevant here because it interpreted
the common scheme or plan clause, not the evidentiary admissibility question.
Thus, the differences between the rules were not relevant to this portion of
Denton’s analysis.

In fact, many courts consider a finding of a common motive or goal as a
precondition for establishing a single or common scheme or plan under the joinder
and severance rules. State v McCrary, 621 SW2d 266, 271 (Mo, 1981) (“We find
that the essential test in determining whether a common scheme or plan exists, in a
case involving a single defendant acting alone, is the requirement that all the
offenses charged must be ‘products of a single or continuing motive.”’) (citation
and emphasis deleted); State v Oetken, 613 NW2d 679, 688 (Iowa, 2000). Justice
Corrigan’s opinion correctly notes that McCrary and Oetken upheld joinder in
those cases. Nevertheless, they do support my conclusion that finding the
existence of a common or single scheme or plan requires more than the fact that
the offenses were similar in nature. For example, in McCrary, the defendant’s

14
 Hence, each of these cases involves situations in which the joined offenses

were either planned in advance of their commission or committed to further the

defendant’s unified goal. This interpretation is what distinguishes acts committed

as part of a “single scheme or plan” from acts that are of “the same or similar

character.”26 That these two distinct provisions are not intended to capture the

same connection between offenses is evidenced by the fact that the rules in many

jurisdictions include both.27

broader goal in committing each offense was his “plan of harassment and revenge
aimed at the Penermon family.” Id. at 272.
26
Authority from other jurisdictions discussing the proper interpretation of a
common or single scheme or plan, as opposed to conduct of the same or similar
character, supports this interpretation. Compare United States v Jawara, 474 F3d
565, 574 (CA 9, 2007) (“[S]ituations where we have determined that a ‘common
scheme or plan’ exists . . . typically involve a concrete connection between the
offenses that goes beyond mere thematic similarity.”); with McLeod v State, 581
So 2d 1144 (Ala Crim App, 1990) (finding no error in the joinder of four counts of
unlawful distribution of cocaine because all four offenses were clearly of the same
character); United States v Coleman, 22 F3d 126, 133-134 (CA 7, 1994),
abrogated on other grounds as recognized by Riley v Commonwealth, 120 SW3d
622 (Ky, 2003). Coleman interpreted the “same or similar character” language of
FR Crim P 8(a) to mean that if offenses are of a like class, although not connected
temporally or evidentially, the requisites of proper joinder should be satisfied. The
Court used an example that is instructive here: two armored car robberies
committed months apart are offenses of the same or similar character; possessing
five kilograms of cocaine and defrauding a bank, even if they occur on the same
day, are not. The Court ultimately concluded that “joinder under Rule 8(a) was
appropriate because Coleman was charged with four counts of possession of a
firearm, identical 922(g)(1) offenses which could only vary in time and location
but not in their essential elements.” Coleman, supra at 134.
27
That the court rules in some jurisdictions contain both provisions certainly
suggests that they cover different types of connections between offenses. So does
the commentary to the ABA standards. The majority apparently concedes that the

15
 The commentary to the revised American Bar Association’s Standards for

Criminal Justice supports this interpretation. It states:

[Common plan] offenses involve neither common conduct
nor interrelated proof. Instead, the relationship among offenses
(which can be physically and temporally remote) is dependent upon
the existence of a plan that ties the offenses together and
demonstrates that the objective of each offense was to contribute to
the achievement of a goal not attainable by the commission of any of
the individual offenses. A typical example of common plan offenses
is a series of separate offenses that are committed pursuant to a
conspiracy among two or more defendants. Common plan offenses
may also be committed by a defendant acting alone who commits
two or more offenses in order to achieve a unified goal.[28]

By contrast, the commentary describing offenses of the same or similar character

states, “Similar character offenses normally involve the repeated commission of

the same offense[,] often with the same modus operandi.”29

offenses in this case were of the same or similar character. Ante at 9 (“The
charges stemming from both arrests were not ‘related’ simply because they were
‘of the same or similar character.’”) (emphasis added). Given that the charges
stemming from the two arrests were for virtually the same offenses, it is difficult
to see how one could not come to this conclusion. It is on this basis that I assert
that the majority has read the “same or similar character” language into MCR
6.120. Ante at 21.

Nevertheless, the majority argues that the offenses in this case were not
“related” for this reason. I agree that under MCR 6.120 and the ABA standards,
same or similar character offenses are not “related” offenses. But this assertion
does nothing to prove the majority’s underlying point—that the offenses were part
of a single scheme or plan. I fail to see how this pronouncement, which again
presupposes its conclusion is correct, advances the majority’s argument.
28
2 ABA Standards for Criminal Justice, Commentary to Standard 13-1.2 (2d ed
1980).
29
2 ABA Standards for Criminal Justice, Commentary to Standard 13-2.1 (2d ed
1980).

16
 Michigan has not adopted the “same or similar character” language as part

of MCR 6.120. The majority implicitly does so here by denying severance of

offenses that are of the same or similar character under the misnomer of a single

scheme or plan.

Contrary to the majority’s conclusion, defendant’s acts of “packaging

cocaine for distribution” do not meet the threshold for establishing a single scheme

or plan. Unlike in Fortenberry, defendant in this case did not commit both drug

offenses as part of a plan to exact revenge. Unlike in Graham, defendant’s motive

for committing these offenses did not stem from his participation in a militia

organization based on an underlying distrust of government.

In this case, there is no evidence that defendant either planned his two drug

offenses in advance of their commission or that he had a unified goal for

committing them. The intent to engage in “drug trafficking,” or “earn money by

selling cocaine,” is the intent to engage in the conduct itself, not evidence of a

unified goal motivating the commission of the offenses.30 Labeling this conduct as

30
This conclusion is supported by the Arkansas Supreme Court’s decision in Bunn
v State, 320 Ark 516; 898 SW2d 450 (1995). There, the court reversed a
defendant’s convictions of three counts of delivery of cocaine. The reversal
resulted from the trial court’s erroneous denial of the defendant’s motion to sever
the charged offenses. The Arkansas Supreme Court held that no single scheme or
plan existed and noted that “[t]he purpose of [Arkansas’s severance rule] is to give
effect to the principle that the State cannot bolster its case against the accused by
proving that he has committed other similar offenses in the past . . . . The record is
void of any evidence that the offense charged in Count III was planned in advance
or as a part of the offenses charged in Counts I and II.” Id. at 523 (citation and
quotation marks omitted).

17
a plan to “package cocaine for distribution” is nothing more than wordplay

designed to evade this determination. Although the drug offenses in this case

involve conduct of the “same or similar character,” this similarity is not included

in the definition of “related” offenses in MCR 6.120. Thus, although joinder

under the federal rule might be appropriate,31 MCR 6.120 mandates severance

upon the defendant’s timely motion to sever.

C. The Majority’s Interpretation is an Unreasonably Broad One

The majority’s analysis, taken to its logical conclusion, would eviscerate

the mandatory severance provision in MCR 6.120 and give trial courts unfettered

discretion to deny defendants’ motions to sever. Defendants would never be

entitled to severance of any drug offenses because such offenses could always be

deemed “related.” Similarly, defendants charged with criminal sexual conduct

offenses would never be entitled to severance; their conduct always could be

deemed part of a scheme to molest victims for the defendants’ sexual gratification.

Such a broad construction of the joinder rules has been appropriately criticized.

For example, in State v Denton,32 the Tennessee Supreme Court observed that

“[t]he argument that sex crimes can be construed as part of a continuing plan or

31
Many commentators, however, have strongly criticized joinder of offenses
based solely on the grounds that they are of the same or similar character. See,
e.g., LaFave, Criminal Procedure (3d ed), §17.1(b), p 762.
32
Denton, supra at 15.

18
conspiracy merely by the fact that they are committed for sexual gratification has

previously been rejected.”

Thus, under the majority’s analysis, severance of the charged offenses

would be unnecessary regardless how far apart in time and space the offenses

occurred or the underlying motive for them. Such outcomes arguably would be

appropriate if MCR 6.120 did not require severance when the offenses are of the

“same or similar character.” The federal rule does not require it. As noted

previously, however, our rule omits such language from its definition of “related”

offenses.

Under the appropriate interpretation of MCR 6.120, defendant’s actions in

this case were insufficiently linked to be treated as “related” and part of a “single

scheme or plan.” The Tobey Court rejected the argument that the defendant had a

single scheme “to make continuous sales of drugs,” because the sales were not

multiple acts aimed at achieving the same goal. Presumably the defendant in

Tobey was just as interested in “earn[ing] money” from selling drugs as was

defendant in this case. However, Tobey expressly rejected finding a single scheme

or plan under similar circumstances. Given that Tobey and MCR 6.120 are

reconcilable, there is no basis for the majority to abandon this key holding from

Tobey.

Finally, I note that other states with more expansive joinder and severance

rules are typically far more protective of a defendant’s rights in this context than

the federal rule. These states also grant defendants a mandatory right to severance

19
of multiple offenses under certain circumstances.33 My conclusion in this case is

consistent with the broad interpretation of the right to severance that courts in

jurisdictions with similarly worded rules have adopted. Moreover, such an

interpretation of MCR 6.120 is entirely in accord with the language of the rule and

the staff comment stating that the rule is “consistent” with Tobey.

III. HARMLESS ERROR

Finally, having concluded that defendant was entitled to mandatory

severance of the charges against him, I also conclude that the failure to sever the

charges was not harmless error.34 MCL 769.26 states that a preserved

nonconstitutional error is not grounds for reversal unless it affirmatively appears

more probable than not that the error was outcome determinative.35 MCR

2.613(A) provides that an error is not grounds for disturbing a judgment unless

refusal to do so appears inconsistent with substantial justice. The statute and the

33
For example, Tenn R Crim P 14(b)(1) provides:

(1) Involving Permissive Joinder of Offenses. If two or more
offenses are joined or consolidated for trial pursuant to Rule 8(b),
the defendant has the right to a severance of the offenses unless the
offenses are part of a common scheme or plan and the evidence of
one would be admissible in the trial of the others.
34
While I am not convinced that a harmless-error analysis is appropriate here,
because I conclude that the error in this case was not harmless, I need not answer
that question.
35
People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).

20
court rule are consistent with one other and simply reflect “different articulations

of the same idea.”36

The majority concludes that, even if the denial of defendant’s motion to

sever in this case were erroneous, it would be harmless because the error was not

outcome determinative. It rests this conclusion on two bases. First, it concludes

that the evidence of each charged offense could have been introduced at the other

trial under MRE 404(b). Second, it observes that the United States Supreme Court

has held that improper joinder, by itself, does not violate the United States

Constitution.37

I believe that the trial court’s failure to sever the offenses in this case

cannot be deemed harmless. MCR 6.120 provides an unqualified, mandatory right

to severance for unrelated offenses.38 In cases where an unequivocal right has

36
People v Robinson, 386 Mich 551, 562; 194 NW2d 709 (1972).
37
Ante at 20, quoting United States v Lane, 474 US 438, 446 n 8; 106 S Ct 725; 88
L Ed 2d 814 (1986). The majority also observes that there is “‘no such thing as
misjoinder of offenses in Michigan.’” Ante at 20 n 27, quoting 2 Gillespie,
Michigan Criminal Law and Procedure (2d ed), § 17:36. Again, while technically
correct, this statement is irrelevant. MCR 6.120(A) is permissive. It allows
joinder of any and all offenses. MCR 6.120(B), by contrast, is mandatory and
requires that unrelated offenses be severed upon a timely motion to sever.
38
“Neither Tobey nor the court rule sets forth any exception to a criminal
defendant’s absolute right to severance of unrelated offenses. Both provide an
absolute right of a criminal defendant to insist on separate trials.” Daughenbaugh,
supra at 510.

21
been violated, as here, the error cannot be dismissed as harmless. Deprivation of

that right inevitably results in substantial prejudice.39

The majority’s conclusion that any error was harmless because evidence of

one offense would have been admissible in the trial for the other offenses takes too

much for granted. To succeed, this argument depends on the existence of the very

“single scheme or plan” that would establish that the offenses were “related” and

make severance unnecessary. Only once such a scheme has been shown would

evidence of other offenses be admissible under MRE 404(b).40

39

“[A defendant] has a right to be warned by the complaint and warrant
of what he is accused, and ought not to be convicted of two different
crimes, committed at different times, under one information, with
the evidence of each confounded as a whole, and used
indiscriminately to convict him of both. Such a proceeding violates
every principle of justice, and places him at the mercy of the
prosecutor; and, as, in this case, evidence not competent to prove
one of the offenses, but admissible as to the other, is used to
establish both crimes. Such a trial must necessarily be an unfair and
illegal one.” [Tobey, supra at 154, quoting People v Aikin, 66 Mich
460, 472; 33 NW 821 (1887).]
40
The majority is correct that “other acts” evidence is admissible under MRE
404(b) for purposes other than to show a defendant’s scheme or plan. However,
the prosecutor argued in the trial court for joinder, or in the alternative, to
introduce evidence of defendant’s other crimes at the separate trials, based on
defendant’s common scheme. Defendant was entitled to mandatory severance of
the offenses against him. Therefore, it is improper simply to assume that evidence
of defendant’s other crimes would be admissible for another purpose under MRE
404(b), rendering any error in failing to sever the charges harmless. Finally, even
if there were another basis for admitting the evidence under MRE 404(b), it might
nevertheless not be admissible if the court concluded that its prejudicial effect
outweighed its probative value. See MRE 403.

22
 Moreover, common sense dictates that an error cannot be harmless when a

jury convicts a defendant of an offense that it should not have been allowed to

consider. In People v Martin,41 a majority of this Court held that a trial court’s

jury instruction that erroneously allowed the jury to consider a lesser included

offense was not harmless. Martin is analogous here because, in both cases, the

jury convicted the defendant of charges it should never have been allowed to

consider. The enormity of the prejudice to a defendant in such circumstances is

clear, and this Court recognized it in Martin.

IV. CONCLUSION

I dissent from the majority’s conclusion that MCR 6.120 superseded People

v Tobey and that severance of the charged offenses in this case was not required

under the rule. I also believe that the error cannot be considered harmless under

MCL 769.26 and MCR 2.613(A). Therefore, I would reverse the Court of

Appeals judgment and remand the case to the trial court for further proceedings.

Marilyn Kelly
Michael F. Cavanagh
Diane M. Hathaway

41
People v Martin, 482 Mich 851 (2008).

23