People v. Young

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED MARCH 29, 2005

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 124811

WAYNE L. YOUNG,

Defendant-Appellant.
_______________________________

BEFORE THE ENTIRE BENCH

CORRIGAN, J.

In People v McCoy, 392 Mich 231; 220 NW2d 456 (1974),

this Court invented a new rule regarding cautionary

instructions on accomplice testimony. That rule provided

that the trial court’s failure to give a cautionary

instruction upon a defense request requires reversal of a

conviction. Moreover, reversal may be required even in the

absence of a defense request if the issue of guilt is

“closely drawn.” We reject the McCoy rule because it has

no basis in Michigan law. Indeed, it contravenes long-

standing authorities according discretion to trial courts
in deciding whether to provide a cautionary instruction on

accomplice testimony. Moreover, the McCoy rule is

inconsistent with MCL 768.29, which provides that the

failure to instruct on a point of law is not a ground for

setting aside a verdict unless the instruction is requested

by the accused, and MCR 2.516(C), which states that a party

may assign as error the failure to give an instruction only

if the party objects on the record before the jury retires

to consider the verdict.

We further clarify that an unpreserved claim of

failure to give a cautionary accomplice instruction may be

reviewed only in the same manner as other unpreserved

arguments on appeal. That is, appellate review is confined

to the plain-error test set forth in People v Grant, 445

Mich 535; 520 NW2d 123 (1994), and People v Carines, 460

Mich 750; 597 NW2d 130 (1999). We therefore affirm the

judgment of the Court of Appeals, because it reached the

correct result in affirming defendant’s convictions and

sentences.

I. UNDERLYING FACTS AND PROCEDURAL HISTORY

Defendant shot and killed two people in an execution-

style slaying while robbing a drug house in Detroit. Among

other evidence of guilt, the prosecution presented

2

testimony from two witnesses whom defendant now claims were

his accomplices, Michael Martin and Eugene Lawrence.

Martin testified that defendant came to his house and

asked him for a gun to rob someone. Martin had no gun.

Defendant then spoke on the telephone to Martin=s brother-

in-law, Lawrence. Martin did not hear their conversation.

Martin then drove defendant to Lawrence=s house. After they

arrived, defendant and Lawrence spoke in a back room away

from Martin, who again could not hear their conversation.

Lawrence testified that during this conversation,

defendant asked him for a gun because some men had

threatened him. Defendant did not mention to Lawrence any

plan to rob a drug house. Lawrence did furnish a gun to

defendant. Martin and defendant then drove back to

Martin’s home. Martin went inside his home while defendant

walked off in the direction of a nearby drug house.

Defendant later telephoned Martin, stating that he was

planning to rob a drug house. Martin hung up. Later that

day, defendant visited Martin’s home and admitted that he

had shot the two victims in the head. After defendant

left, Martin contacted Lawrence. Martin and Lawrence then

went to defendant=s home. Defendant told them that he was

angry because he had killed the victims for only six rocks

of crack cocaine. Defendant called an unknown person and

3

directed him to tell Martin where to find the gun.

Defendant eventually directed Martin and Lawrence to a

field near Martin’s home where Martin found the gun.

The police questioned Martin twice. During the second

interview, he disclosed what had happened. The police then

retrieved the murder weapon. Martin and Lawrence were

never charged with a crime in connection with the murders.

In addition to the testimony of Martin and Lawrence,

the prosecution presented other evidence of defendant’s

guilt. One witness testified that defendant had also asked

him for a gun. Another witness, Ronald Mathis, had seen

defendant in the drug house just before the murders

occurred. At that time, defendant offered to sell Mathis a

gun. Mathis then left the premises. Upon his return

approximately fifteen minutes later, Mathis discovered the

victims’ bodies and noted that defendant was gone.

Finally, a cigarette butt recovered at the murder scene

contained deoxyribonucleic acid (DNA) material that matched

defendant=s DNA.

Defendant was charged with several offenses, including

first-degree murder, MCL 750.316. The jury convicted

defendant of two counts of second-degree murder, MCL

750.317; one count of assault with intent to commit armed

robbery, MCL 750.89; one count of possession of a firearm

4

during the commission of a felony, MCL 750.227b; and one

count of possession of a firearm by a person convicted of a

felony, MCL 750.224f. Defendant was sentenced to

concurrent terms of forty-five to seventy years’

imprisonment for the second-degree murder convictions,

forty to sixty years’ imprisonment for the assault

conviction, and two to five years’ imprisonment for the

felon in possession of a firearm conviction. Those

sentences are to be served consecutively to the two-year

term of imprisonment for the felony-firearm conviction.

The Court of Appeals affirmed defendant’s convictions.1

It rejected defendant=s contention that the trial court had

erred under McCoy in failing to sua sponte provide a

cautionary instruction on accomplice testimony, concluding

that: (1) this case did not present a closely drawn

credibility contest, and (2) it was not clear that Martin

and Lawrence were accomplices.

We granted defendant’s application for leave to

appeal. 470 Mich 869 (2004), mod 471 Mich 862 (2004).

II. STANDARD OF REVIEW

Whether the McCoy rule has a basis in Michigan law and

whether it is consistent with MCL 768.29 and MCR 2.516(C)

1
Unpublished opinion per curiam, issued September 25,
2003 (Docket No. 240832).

5

are questions of law that we review de novo. Jenkins v

Patel, 471 Mich 158, 162; 684 NW2d 346 (2004). Moreover,

as discussed later in this opinion, the decision whether to

give a cautionary accomplice instruction falls within the

trial court’s sound discretion. MCL 768.29; People v

Dumas, 161 Mich 45, 48-49; 125 NW 766 (1910); People v

Wallin, 55 Mich 497, 505; 22 NW 15 (1885). We therefore

review that decision for an abuse of discretion. Finally,

where, as here, the defendant failed to preserve his claim,

our review is confined to the plain-error framework set

forth in Grant and Carines.

III. ANALYSIS

A. Legal Background

In McCoy, this Court discussed dangers that inhere in

accomplice testimony, including “'the effect of fear,

threats, hostility, motives, or hope of leniency.'” McCoy,

supra at 236, quoting 30 Am Jur 2d, Evidence, § 1148, p

323. The McCoy Court stated that in People v Jenness, 5

Mich 305, 330 (1858), this Court referred to a judge’s duty

to comment, where warranted, on the nature of accomplice

testimony. The McCoy Court acknowledged, however, that

subsequent case law reflected that the trial court had

discretion in deciding whether to provide a cautionary

accomplice instruction. See Dumas, supra.

6

 The McCoy Court also acknowledged that federal courts

have not articulated a definitive rule regarding cautionary

instructions on accomplice testimony. Indeed, the United

States Supreme Court refused to reverse a conviction on the

basis of a failure to give such an instruction in Caminetti

v United States, 242 US 470, 495; 37 S Ct 192; 61 L Ed 442

(1917). The Caminetti Court stated that “there is no

absolute rule of law preventing convictions on the

testimony of accomplices if juries believe them.” Id.

Despite these authorities, the McCoy Court invented a

novel rule: “For cases tried after the publication of this

opinion, it will be deemed reversible error . . . to fail

upon request to give a cautionary instruction concerning

accomplice testimony and, if the issue is closely drawn, it

may be reversible error to fail to give such a cautionary

instruction even in the absence of a request to charge.”

McCoy, supra at 240.

Justice Coleman dissented in McCoy. She cited MCL

768.29, which provides: “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.” She also quoted

the predecessor to MCR 2.516(C), GCR 1963, 516.2: “No party

may assign as error the giving or the failure to give an

7

instruction unless he objects thereto before the jury

retires to consider the verdict, stating specifically the

matter to which he objects and the grounds of his

objection.”

Justice Coleman noted that the articulation in

Jenness of a duty to comment on accomplice testimony

predated both the statute and the court rule. Moreover,

Jenness “was not a rigorously applied precedent.” McCoy,

supra at 248. For example, in Dumas, this Court stated:

It is the long settled rule in this State
that the credibility of an accomplice, like that
of any other witness, is a question exclusively
for the jury. And while there have been
intimations, rather than rulings, to the effect
that it is proper, or is not improper, especially
in cases where an accomplice is the sole witness
upon a material point, for the trial court to
direct the attention of the jury to the
circumstance and invite the exercise of caution
upon the part of the jury, we know of no decision
of this court in which it is held or intimated
that the failure of the court to indulge in
voluntary comment is ground for reversal. [Dumas,
supra at 48.]

The Dumas Court had also quoted from Wallin, supra,

where the trial court had refused a defense request to

instruct the jury regarding circumstances that tended to

discredit a witness. Chief Justice Cooley, writing for a

unanimous Court in Wallin, rejected the defense argument:

"We repeat that instructions respecting the
credibility of witnesses, which involve no
question of law, are not matter of right. The

8

 judge is under no obligation to comment upon the
facts; he may, if he chooses, confine himself
strictly to laying down such rules of law as must
guide the action of the jury, and leave the facts
to them without a word of comment. In many cases
this is no doubt the desirable course. And it is
always within the discretion of the judge to
adopt it." [Id. at 48-49, quoting Wallin, supra
at 505.]

Justice Coleman’s dissenting opinion in McCoy also

noted that the Court of Appeals had rejected an argument

for a cautionary accomplice instruction in People v

Sawicki, 4 Mich App 467; 145 NW2d 236 (1966), in part

because defense counsel on cross-examination had fully

explored the circumstances of the accomplice=s testimony:

In a criminal case it is not only proper but
it is the duty of counsel for defendant to place
before the jury all circumstances surrounding the
people=s witness upon the stand, as well as any
fact which would have any reasonable tendency to
affect their credibility. It is the function of
the jury to decide first if the witness is
interested, and second if the witness’ interest has
affected the credibility of his testimony. The
trial judge is not required to comment in his
instruction concerning a witness’ interest since it
bears upon the question of credibility which is
reserved to the jury. [Id. at 475 (citations
omitted).]

In light of these authorities, Justice Coleman

concluded in McCoy that neither statute nor case law

required the court to give a cautionary accomplice

instruction in the absence of a request. Moreover, the

failure to so instruct did not deny the defendant in McCoy

9

a fair trial, because “the accomplice was thoroughly cross-

examined and the jury fully aware of all facets of his

involvement. The judge correctly instructed that the

testimony of all witnesses should be considered as to

motive, prejudice, bias or interest in the outcome.”

McCoy, supra at 250.

This Court discussed the holding in McCoy in People v

Reed, 453 Mich 685; 556 NW2d 858 (1996). In Reed, a

codefendant testified in a joint trial, and the defendant

argued on appeal that a cautionary accomplice instruction

should have been given sua sponte. This Court rejected

that argument because such an instruction would have

prejudiced the codefendant.

The Court in Reed also explained that McCoy does not

require automatic reversal for failure to instruct sua

sponte in a closely drawn case. Rather, McCoy says only

that such a failure to instruct may require reversal.

Before Reed, this Court had not established standards for

determining when the failure to instruct sua sponte

requires reversal. The Reed Court concluded that reversal

was not required where the accomplice=s potential

credibility problems have been plainly presented to the

jury by other means, such as through defense counsel’s

10

cross-examination of the alleged accomplice. Reed, supra

at 693.

The Reed Court did not require reversal because the

codefendant/accomplice=s credibility problems were plainly

apparent to the jury. Defense counsel and the prosecutor

had explored credibility problems during cross-examination.

Moreover, the accomplice was not a prosecution witness, but

was a codefendant, and thus was not the beneficiary of any

favorable bargains from the prosecution.

In People v Gonzalez, 468 Mich 636; 664 NW2d 159

(2003), this Court questioned McCoy. We quoted MCL 768.29,

which provides that “[t]he 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,” and MCR 2.516(C), which states

that “[a] party may assign as error the . . . failure to

give an instruction only if the party objects on the record

. . . .” We then stated:

In this case, defendant neither requested a
cautionary accomplice instruction nor objected to
the court=s failure to give one. Therefore,
defendant is precluded from arguing that the
omitted instruction was error. MCR 2.516(C).
Furthermore, because he failed to request the
omitted instruction, defendant is not entitled to
have the verdict set aside. MCL 768.29.
Consequently, defendant=s only remaining avenue
for relief is for review under People v Grant,
445 Mich 535; 520 NW2d 123 (1994).

11

 Because defendant failed to object to the
omitted instruction, defendant=s claim of error
was forfeited. A forfeited, nonconstitutional
error may not be considered by an appellate court
unless the error was plain and it affected
defendant=s substantial rights. Grant, supra at
552-553. [Gonzalez, supra at 642-643.]

We then concluded that no error occurred because there

was no evidence that the alleged accomplice was involved in

the crime, and because the cautionary accomplice

instruction would have been inconsistent with the defense

theory at trial. Because the defendant could not

demonstrate an error, he could not establish a plain error

that affected his substantial rights, and thus he was not

entitled to relief for the forfeited claim under Grant.

B. Analysis

The rule created in McCoy has no basis in Michigan

law. The McCoy rule mandates reversal of convictions for

failing to give a cautionary accomplice instruction upon

request, and allows reversal for failing to give such an

instruction sua sponte where the issue of guilt is “closely

drawn.” But as Justice Coleman’s dissent in McCoy

demonstrates, this Court’s decisions have historically

accorded discretion to trial courts in deciding whether to

provide a cautionary accomplice instruction. The mandatory

rule invented in McCoy subverts this historical discretion.

12

 Moreover, the discretion that this Court had, before

McCoy, accorded to trial courts in this area is consistent

with our statutory law. MCL 768.29 states: “The court

shall instruct the jury as to the law applicable to the

case and in his charge make such comment on the evidence,

the testimony and character of any witnesses, as in his

opinion the interest of justice may require.” (Emphasis

added.) The phrase “as in his opinion the interest of

justice may require” vests discretion in the trial court to

decide to what extent it is appropriate to comment on

matters such as the credibility of witnesses. The McCoy

Court failed to consider this provision of MCL 768.29.

Despite these authorities, the McCoy Court chose to

invent an unfounded rule. Indeed, in People v Atkins, 397

Mich 163, 171; 243 NW2d 292 (1976), this Court acknowledged

the lack of a historical basis for the McCoy rule: “[T]he

McCoy rule under discussion was given prospective

application for the reason that it went beyond long-

established Michigan precedent to the effect that special

instructions regarding credibility was [sic] a matter

within the sound discretion of the trial court.”

Further, the first portion of the McCoy rule, i.e.,

that reversal is automatically required when the court

13

fails to give an instruction upon request, conflicts with

MCL 769.26. That provision states:

No judgment or verdict shall be set aside or
reversed or a new trial be granted by any court
of this state in any criminal case, on the ground
of misdirection of the jury, or the improper
admission or rejection of evidence, or for error
as to any matter of pleading or procedure, unless
in the opinion of the court, after an examination
of the entire cause, it shall affirmatively
appear that the error complained of has resulted
in a miscarriage of justice.

As we explained in People v Lukity, 460 Mich 484; 596

NW2d 607 (1999), in light of MCL 769.26, a defendant on

appeal must demonstrate that a preserved nonconstitutional

error was not harmless by persuading the reviewing court

that it is more probable than not that the error affected

the outcome of the proceedings. “An error is deemed to

have been ‘outcome determinative’ if it undermined the

reliability of the verdict.” People v Elston, 462 Mich

751, 766; 614 NW2d 595 (2000). See also People v

Rodriguez, 463 Mich 466, 474; 620 NW2d 13 (2000). The

McCoy mandate of automatic reversal for failing to give a

cautionary accomplice instruction upon request plainly

contradicts MCL 769.26. Accordingly, we reject the

automatic-reversal portion of the rule.

Next, the portion of the McCoy rule permitting

reversal in the absence of a defense request if the issue

14

of guilt is “closely drawn” contradicts MCL 768.29, which

states that “[t]he 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,” and MCR 2.516(C), which says that "[a] party

may assign as error the . . . failure to give an

instruction only if the party objects on the record

. . . ." As we explained in Gonzalez, an appellate court’s

review of unpreserved claims is governed by MCL 768.29 and

MCR 2.516(C).

This Court in Reed correctly observed that McCoy does

not by its own terms require automatic reversal for failure

to instruct sua sponte where the issue of credibility is

closely drawn. The McCoy Court said that reversal may be

required in the absence of a request, not that reversal is

automatic. The central flaw in this aspect of the McCoy

rule, however, is that it authorizes reversal without

regard to the plain-error analysis required by Grant and

Carines, by focusing solely on whether the issue of guilt

is closely drawn. As this Court explained in Reed,

potential credibility problems in a closely drawn case may

become plainly apparent to a jury in the absence of a

cautionary instruction.

15

 Fundamentally, it is the province of the jury to

assess the credibility of witnesses. In making that

assessment, the jury should decide whether witnesses harbor

any bias or prejudice. Dumas, supra; Wallin, supra;

Sawicki, supra. And it is the role of defense counsel,

through cross-examination of prosecution witnesses and

closing argument, to expose potential credibility problems

for the jury to consider. Id. The McCoy “closely drawn”

rule fails adequately to take account of these central

components of our system of trial by jury.

For these reasons, we hold that, as with all

unpreserved claims of error, an unpreserved claim that the

court failed to give a cautionary accomplice instruction

may be reviewed only for plain error that affects

substantial rights. An appellate court must follow the

Grant/Carines plain-error analysis, and only when the

defendant satisfies that test is reversal ever appropriate.

We discern no basis for treating this one category of

unpreserved claim any differently from other categories of

alleged error that a defendant has failed to preserve.

Moreover, in considering whether a plain error exists,

a reviewing court should be mindful of the discretion

historically accorded to trial courts in deciding whether

16

to give a cautionary accomplice instruction. Dumas, supra;

Wallin, supra.

Finally, applying the plain-error test to this case,

we conclude that defendant has not met his appellate

burden. A cautionary accomplice instruction was not

clearly or obviously required in this case. As the Court

of Appeals noted, it is not clear that Martin and Lawrence

were accomplices in any event. Moreover, the prosecution

presented evidence of guilt beyond the testimony of the

alleged accomplices, including testimony from other

witnesses and physical evidence that defendant was at the

murder scene. Further, defense counsel thoroughly cross-

examined Martin and Lawrence and challenged their testimony

during closing argument, thereby exposing their potential

credibility problems to the jury. The court also

instructed the jury to consider any bias, prejudice, or

personal interest that a witness might have. For these

reasons, defendant has not demonstrated a plain error that

affected his substantial rights.

V. CONCLUSION

We conclude that the McCoy rule has no basis in

Michigan law and is inconsistent with MCL 769.26, MCL

768.29, and MCR 2.516(C). A trial court has discretion in

deciding whether to give a cautionary accomplice

17

instruction. Also, an unpreserved claim that the court

failed to give a cautionary accomplice instruction may be

reviewed only for plain error, under the framework set

forth in Grant and Carines. Accordingly, we overrule McCoy

and affirm the judgment of the Court of Appeals.

Maura D. Corrigan
Clifford W. Taylor
Elizabeth A. Weaver
Robert P. Young, Jr.
Stephen J. Markman

18

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 124811

WAYNE L. YOUNG,

Defendant-Appellant.
_______________________________

KELLY, J. (concurring).

I would affirm the Court of Appeals decision, but I

strongly disagree with the majority’s reasoning. The

decision in People v McCoy1 should not be applied to this

case. It represents a valid rule of law that we should

retain, and the majority should not use this case as a

vehicle to abandon it.

MCCOY IS INAPPOSITE

In McCoy, we stated:

[I]t will be deemed reversible error . . .
to fail upon request to give a cautionary
instruction concerning accomplice testimony and,
if the issue is closely drawn, it may be
reversible error to fail to give such a
cautionary instruction even in the absence of a
request to charge. [McCoy, supra at 240.]

1
392 Mich 231; 220 NW2d 456 (1974).

1

 Defendant did not request a cautionary instruction in

this case. To warrant giving the instruction, as McCoy

tells us, the issue must be “closely drawn.” Id. An issue

is said to be closely drawn if a credibility contest

between the defendant and an alleged accomplice must be

resolved in order to rule on it. People v Gonzalez, 468

Mich 636, 643 n 5; 664 NW2d 159 (2003); McCoy, supra at

238-239.

This case does not involve a closely drawn issue. It

is not one in which contrary versions of the facts were

offered, leaving the jury to choose between them. Instead,

the defense proceeded under the theory that the prosecution

would be unable to prove every element of the charged

offenses.

In argument before the jury, defense counsel attacked

the story offered by the prosecution. He tried to show

that the prosecution failed to meet the requirements for

conviction. In some cases, to create a credibility contest

between a defendant and an alleged accomplice, the

defendant would have to take the stand. Other

circumstances could arise as well that would create a

credibility contest. However, because defendant in this

case did not take the stand and his credibility was not

2

otherwise put at issue, he was not entitled to the

cautionary instruction permitted by McCoy.2 Id. at 240.

I also agree with the Court of Appeals that there was

insufficient evidence to conclude that Michael Martin and

Eugene Lawrence were defendant’s accomplices. Whereas

Martin accompanied defendant on some of his travels on the

day of the murders, he never agreed to participate in the

crime. In fact, he refused to participate. Martin may not

have done enough to stop defendant, but his failure does

not make him defendant’s accomplice legally.

Lawrence provided defendant with a gun. But the

evidence suggests that Lawrence was unaware that defendant

planned to use it to commit a felony. Defendant asked

Lawrence for the gun to protect himself from a person who

had threatened him. Although insufficient evidence exists

that Lawrence was defendant’s accomplice, defense counsel

implied during closing argument that Lawrence and Martin

were defendant’s accomplices.

The facts of the McCoy case were entirely different.

There, the police arrested an individual whom they believed

had been an accomplice in a robbery. The accomplice

admitted that he and McCoy had committed the crime. Id. at

2
At oral argument in this case, defense counsel
admitted that McCoy was a “narrow case” and did not fit the
facts of this case.
3

241 (Coleman, J., dissenting.). Here, there was no such

admission. All the evidence suggested that Martin and

Lawrence were not involved in the crime. Because they were

not accomplices, the trial court did not err in failing to

give the special instruction on accomplice testimony. Id.

at 238-240.

Hence, the McCoy decision has no application to this

case, and the majority offers no justification for reaching

and overruling it here. It is as inappropriate to address

McCoy in this case as it was in People v Gonzalez, supra,

in which Justice Young wrote:

[W]e conclude that there was no evidence of
an accomplice in this case, and, therefore,
McCoy's "closely drawn" rule is not implicated.
For that reason, we do not reach the question
whether McCoy conflicts with MCL 768.29.
[Gonzalez, supra at 643 n 6.]

We should not do here what we chose not to do in Gonzalez.

MCCOY REPRESENTS A VALID RULE OF LAW3

3
Given that McCoy is inapposite, there is no need to
apply it to the facts of this case. However, because the
majority has decided to overturn McCoy, I provide a full
discussion of the rules of law laid out in that case.
Therefore, I will discuss both the requested cautionary
instructions and sua sponte instructions. I feel that both
were wisely recognized in McCoy and that both fit well
within the established framework of appellate review in
this state.

4

 The majority accuses the McCoy decision of lacking any

basis in Michigan jurisprudence and of inventing a novel

rule of law. Those claims should be examined more closely.

This Court stated long ago:

We think the credibility of an accomplice,
like that of any other witness, is exclusively a
question for the jury; and it is well settled
that a jury may convict on such testimony alone
without confirmation. There is no good sense in
always applying the same considerations in every
case to every witness who may stand in the
relation of particeps criminis. We think it is
the duty of a judge to comment upon the nature of
such testimony, as the circumstances of the case
may require; to point out the various grounds of
suspicion which may attach to it; to call their
attention to the various temptations under which
such witness may be placed, and the motives by
which he may be actuated; and any other
circumstances which go to discredit or confirm
the witness, all of which must vary with the
nature and circumstances of each particular case.
[People v Jenness, 5 Mich 305, 330 (1858).]

This was a rule of law that has been endorsed by this Court

repeatedly over the past 134 years.4 Obviously, because

McCoy represents a natural growth of that history, it is

neither novel nor lacking in legal basis.

REQUESTED CAUTIONARY INSTRUCTIONS AND

ABUSE OF DISCRETION/HARMLESS ERROR REVIEW

Not only does McCoy have substantial historical

support, it fits well within Michigan’s long established

4
See People v Schweitzer, 23 Mich 301, 305 (1871),
People v Hare, 57 Mich 505, 518; 24 NW 843 (1885), People v
Considine, 105 Mich 149, 163; 63 NW 196 (1895), and People
v Koukol, 262 Mich 529, 532-533; 247 NW 738 (1933).
5
framework of appellate review. McCoy5 holds that “it will

be deemed reversible error . . . to fail upon request to

give a cautionary instruction concerning accomplice

testimony . . . .”

The majority concludes that this rule contradicts the

review established for both abuse of discretion and

harmless error issues. It accuses McCoy of ignoring the

discretion of the trial court to instruct the jury.

The opposite is true. McCoy explicitly recognizes the

trial court’s discretion and hews to the abuse of

discretion standard. McCoy, supra at 237. Moreover, it

provides guidance to when the standard is met.

McCoy recognizes that it is an abuse of discretion for

a trial court to refuse to instruct a jury about the

inherent unreliability of accomplice testimony. Id. at

236-237. This is consistent with MCL 768.29.6 If the trial

5
Supra at 240.
6
MCL 768.29 provides:

It shall be the duty of the judge to control
all proceedings during the trial, and to limit
the introduction of evidence and the argument of
counsel to relevant and material matters, with a
view to the expeditious and effective
ascertainment of the truth regarding the matters
involved. The court shall instruct the jury as to
the law applicable to the case and in his charge
make such comment on the evidence, the testimony
and character of any witnesses, as in his opinion
the interest of justice may require. The failure
6
court fails to give an accomplice instruction, it fails to

work toward “the expeditious and effective ascertainment of

the truth regarding the matters involved.” MCL 768.29.

And it fails to make the comments on the evidence, the

testimony, and the character of witnesses that justice

requires.

As McCoy noted, accomplice testimony is fraught with

dangers. Whether because of fear, threats, or hostility

caused by government overreaching or the witness’s greed or

hopes of leniency occasioned by government deals,

accomplice testimony has severe credibility problems.

Given this inherent weakness, a skeptical approach to such

testimony “'is a mark of the fair administration of

justice.’” McCoy, supra at 236, quoting 30 Am Jur 2d,

Evidence, § 1148, p 323. Therefore, a court fails to meet

the mark of fair administration of justice when it omits a

requested accomplice instruction. Moreover, the omission

constitutes an abuse of discretion.

For the same reason, the McCoy rule does not violate

the tenets of review for harmless error. Given the

inherent unreliability of accomplice testimony, any

conviction based on such testimony, absent a proper

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.

7

instruction, will affirmatively appear to be a miscarriage

of justice. The failure to give the instruction fails to

meet the mark. We should avoid letting the standards of

the Michigan criminal justice system fall below this mark.

The inclusion of the accomplice witness instruction

ensures the fairness of the trial. Its exclusion, when it

is merited, undermines the reliability of the verdict.

Accordingly, the error cannot be harmless. People v

Krueger, 466 Mich 50, 54; 643 NW2d 223 (2002).

SUA SPONTE INSTRUCTION AND REVIEW FOR PLAIN ERROR

McCoy states that it may be error requiring reversal

to fail to give the accomplice instruction if the issue is

closely drawn, even absent a request from counsel. McCoy,

supra at 240. The majority attacks this portion of McCoy,

claiming that it contradicts the established review for

plain error. A failure to instruct when there was no

request is subject to review for plain error, the majority

reasons, because the issue was neither raised nor addressed

in the trial court.

For there to be plain error, our Court has decided,

there must first be an error. Next, the error must be

clear and obvious. Finally, it must adversely affect the

defendant’s substantial rights. People v Carines, 460 Mich

750, 763; 597 NW2d 130 (1999). To warrant reversal, the

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error must either result in the conviction of an actually

innocent defendant or it must affect the fairness,

integrity, or public reputation of the judicial

proceedings. Id. Again, the McCoy rule fits within the

confines of these principles.

The first two elements of the plain error test are

satisfied if a judge mistakenly fails to give the

cautionary accomplice instruction. The error exists, and

it is clear and obvious. The next question is whether the

error adversely affected the defendant’s substantial

rights. To determine if an error affects substantial

rights, the appellate court makes the same inquiry as when

reviewing for harmless error, except that the defendant

bears the burden of persuasion. United States v Olano, 507

US 725, 734; 113 S Ct 1770; 123 L Ed 2d 508 (1993).

The failure to give the cautionary accomplice

instruction if it is appropriate undermines the reliability

of any jury verdict. Hence, the error cannot be considered

harmless. Krueger, supra at 54. This is especially true

when the case boils down to a closely drawn credibility

contest. Without basic protections, a criminal trial

cannot reliably serve as a vehicle for properly determining

guilt. Arizona v Fulminante, 499 US 279, 310; 111 S Ct

1246; 113 L Ed 2d 302 (1991). Because this failure to

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instruct meets the harmless error standard, it also meets

the plain error standard. Olano, supra at 734.

Moreover, such closely drawn cases will likely always

meet the requirements for reversal. The omission of the

instruction would mean that the trial court failed to meet

the mark of the fair administration of justice. McCoy,

supra at 236. This failure would raise serious questions

regarding fairness, integrity, or the public reputation of

the proceedings. Carines, supra at 763.

Contrary to the majority’s conclusion, McCoy does not

contradict MCL 769.267 or MCR 2.516(C).8 MCL 769.26 and MCR

7
MCL 769.26 provides:

No judgment or verdict shall be set aside or
reversed or a new trial be granted by any court
of this state in any criminal case, on the ground
of misdirection of the jury, or the improper
admission or rejection of evidence, or for error
as to any matter of pleading or procedure, unless
in the opinion of the court, after an examination
of the entire cause, it shall affirmatively
appear that the error complained of has resulted
in a miscarriage of justice.
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MCR 2.516(C) provides:

Objections. A party may assign as error the
giving of or the failure to give an instruction
only if the party objects on the record before
the jury retires to consider the verdict (or, in
the case of instructions given after
deliberations have begun, before the jury resumes
deliberations), stating specifically the matter
to which the party objects and the grounds for
the objection. Opportunity must be given to make
the objection out of the hearing of the jury.

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2.516(C) merely require that a defendant preserve issues

for review. Those issues not preserved are subject to

review for plain error.

McCoy works within the framework of plain error

review. In overruling it, the majority abandons an

important protection.

CONCLUSION

McCoy does not apply to this case because no

credibility contest existed and there was insufficient

evidence to justify characterizing Martin and Lawrence as

accomplices. Therefore, this case provides an

inappropriate vehicle for the majority to attack McCoy.

Moreover, McCoy represents a valid rule of law that fits

well within the established rules of appellate review. It

should not be struck down.

Marilyn Kelly
Michael F. Cavanagh

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