PEOPLE
v.
BRAGDON
Docket No. 76899.
Michigan Court of Appeals.
Decided February 12, 1985.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Joseph T. Barberi, Prosecuting Attorney, and Leonard J. Malinowski, Assistant Attorney General, for the people.
Susan J. Smith, Assistant State Appellate Defender, for defendant on appeal.
Before: R.M. MAHER, P.J., and R.B. BURNS and R.E. ROBINSON,[*] JJ.
PER CURIAM.
Defendant was convicted following a jury trial of delivery of marijuana, MCL 333.7401, subds (1) and (2)(c); MSA 14.15(7401), subds (1) and (2)(c). The next day, January 4, 1984, the same jury convicted defendant of being a second felony offender, MCL 769.10; MSA 28.1082. *199 He was sentenced to one year in the county jail. He appeals as of right. We reverse.
It was error for the prosecutor to question the defendant by stating, "So you're guilty of the crime?" Absent a valid plea, the issue of an accused's guilt or innocence is a question for the trier of fact. As with matters of credibility, it is clear that a witness cannot express an opinion on the defendant's guilt or innocence of the charged offense. See People v Drossart, 99 Mich. App. 66; 297 NW2d 863 (1980); People v Parks, 57 Mich. App. 738; 226 NW2d 710 (1975). We find the prosecutor's question to be tantamount to a transformation of this proceeding from a jury trial to a guilty plea situation. Although the defendant had virtually admitted the existence of the elements of the offense on direct and cross-examinations, he was still entitled to have the jury decide the question of his criminal responsibility. Although we are cognizant of the overwhelming evidence of guilt presented, we find this question, coupled with the further references to defendant's admission of guilt in closing and rebuttal argument, to be so offensive to the maintenance of a sound judicial system that it cannot be considered harmless error. People v Robinson, 386 Mich. 551; 194 NW2d 709 (1972).
While the defendant, as any other witness, is sworn to testify truthfully, once the defendant has entered a plea of not guilty and invoked his right to trial by jury, the prosecution bears the burden of proving the defendant guilty beyond a reasonable doubt and may not seek to obtain a plea of guilty by directly questioning the defendant on the ultimate issue of guilt. Moreover, while defendant may have admitted the existence of the elements of the offense, it is solely within the jury function to find the facts and to determine the guilt or *200 innocence of the accused. As was stated in People v Vaughn, 409 Mich. 463, 466; 295 NW2d 354 (1980),
"Our Court has recognized the role of the jury in a criminal trial. `Because the jury is the sole judge of all the facts, it can choose, without any apparent logical basis, what to believe and what to disbelieve. What may appeal to the judge as "undisputed" need not be believed by a jury.' People v Chamblis, 395 Mich. 408, 420; 236 NW2d 473 (1975).
"Juries are not held to any rules of logic nor are they required to explain their decisions. The ability to convict or acquit another individual of a crime is a grave responsibility and an awesome power. An element of this power is the jury's capacity for leniency."
In the event that the prosecutor elects to retry the defendant on this charge, we briefly address the remaining issues. First, the trial court properly applied the objective test in finding that defendant had not been entrapped by the undercover police officer. People v Turner, 390 Mich. 7; 210 NW2d 336 (1973). That finding is not clearly erroneous and is not a ground for reversal. People v D'Angelo, 401 Mich. 167; 257 NW2d 655 (1977). Second, the trial court properly refused to give the requested instruction on the lesser misdemeanor offense of possession of marijuana. Because there was no disputed factual element differentiating the offense of delivery from the offense of possession, the third element of People v Stephens, 416 Mich. 252, 263; 330 NW2d 675 (1982), was not met. Finally, although we do not condone the procedure utilized by the trial judge in instructing the jury in defendant's trial of the habitual offender charge, a review of the record in its entirety discloses that the jury was adequately advised of its responsibilities. Moreover, counsel's failure to *201 object either to the procedure employed by the trial court or to the omission of certain instructions will generally preclude appellate review. Counsel may not sit back and harbor error to be used as an appellate parachute in the event of jury failure. People v Brocato, 17 Mich. App. 277, 305; 169 NW2d 483 (1969).
Defendant's convictions are reversed.
R.M. MAHER, P.J. (concurring in part and dissenting in part).
I agree with the majority that defendant's conviction for delivery of marijuana, MCL 333.7401, subds (1) and (2)(c); MSA 14.15(7401), subds (1) and (2)(c), must be reversed because of the prosecutor's improper questioning of defendant. I also agree that the trial court properly found the defendant had not been entrapped by the police and that reversible error did not occur under the procedure utilized by the trial court in instructing the jury for defendant's trial on the habitual offender charge. However, I do not agree that the trial court properly refused to give the requested instruction on the lesser misdemeanor offense of possession of marijuana. The majority states that "because there was no disputed factual element differentiating the offense of delivery from the offense of possession", the trial court properly declined to give the instruction under People v Stephens, 416 Mich. 252, 263; 330 NW2d 675 (1982). A close reading of Stephens shows, however, that the Supreme Court specifically declined to overrule in Stephens its decision in People v Kamin, 405 Mich. 482; 275 NW2d 777 (1979). See Stephens, 416 Mich. 258, fn 9. Therefore, the trial court and this Court are still bound by the dictates of Kamin. Kamin held that, where a defendant who is charged with delivery of a controlled substance is shown by the state's evidence *202 to have been in possession of the substance, the trial court must give a requested possession instruction. I would hold, therefore, that if defendant requests the possession instruction on retrial, the trial court must give the instruction.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment.