Michigan Court of Appeals Holds No Unanimous Jury Instruction Required for Alternate Theories in Proving Same Element of Crime

On April 24th, 2014, the Michigan Court of Appeals held in a criminal case that no unanimity instruction is required where the prosecution presents alternate theories in attempting to prove the same element of a crime.

In People v Chelmicki, Docket No. 313708, the Michigan Court of Appeals addressed an appeal in a criminal case that alleged several errors in the trial court.  From the Court's opinion:

Defendant Eric Michael Chelmicki was convicted by a jury of domestic assault, MCL 750.81(2), and unlawful imprisonment, MCL 750.349b. He was sentenced to 26 days imprisonment for the domestic assault conviction and to 50 months to 15 years’ imprisonment for the unlawful imprisonment conviction. Following this Court’s remand for rescoring of an offense variable, defendant was resentenced to the same term. He appeals as of right. We affirm. 

Defendant and the victim were in a dating relationship and lived together in an apartment. On the evening these crimes occurred, they were drinking alcohol and an argument started over an eviction notice the victim received earlier that day. Defendant became increasingly upset and began to yell. The victim attempted to remove herself from the situation by walking outside onto the balcony of the apartment. Though the victim had trouble at trial recalling the events of the night, she testified that at some point she tried to climb down the fire escape attached to the balcony, however defendant came outside, grabbed her by her coat and dragged her back into the apartment. The victim recalled that she had broken blood vessels in her wrists after the assault. The victim’s neighbors, who lived in the apartment below, witnessed some of the events, and also testified that while on the balcony, the victim told them that defendant had turned the apartment stove’s gas burners on and was attempting to [']blow up['] the apartment complex. The neighbors called the police. When officers arrived, they kicked in the door to the apartment, however defendant had jumped out the bedroom window. One officer testified that upon entering the apartment, the victim, who was visibly upset and crying, told the officers that defendant had put a gun to her head. Defendant was subsequently located and arrested. Police recovered a BB gun from the apartment . . . 

Defendant next argues that the trial court erred in instructing the jury with respect to unlawful imprisonment because the instruction, which gave jurors the option to convict based either on defendant’s restraint of the victim by means of a weapon or dangerous instrument, or on defendant’s restraint of the victim in order to facilitate the commission of another felony, violated his [']absolute constitutional right to be convicted only upon a unanimous jury verdict.['] Defendant also argues that he was denied the effective assistance of counsel because his trial counsel failed to request a unanimity instruction. 

Michigan law provides criminal defendants the right to a unanimous jury verdict. MCR 6.410(B). [']In order to protect a defendant’s right to a unanimous verdict, it is the duty of the trial court to properly instruct the jury regarding the unanimity requirement.['] People v Cooks, 446 Mich 503, 511; 521 NW2d 275 (1994). Typically, the trial court fulfills that duty by providing the jury with a general instruction on unanimity. Id. at 512. However, a specific unanimity instruction may be required in cases where [']more than one act is presented as evidence of the actus reus of a single criminal offense['] and each act is established through materially distinguishable evidence that would lead to juror confusion. Id. at 512-513. Defendant, relying on Cooks, argues that a more specific unanimity instruction was required in this case because [']discrete, specific acts were committed,['] each of which was claimed to satisfy all the elements of the unlawful imprisonment charge. We disagree. 

This Court held that ['][w]hen a statute lists alternative means of committing an offense which in and of themselves do not constitute separate and distinct offenses, jury unanimity is not required with regard to the alternate theory.['] People v Johnson, 187 Mich App 621, 629-630; 468 NW2d 307 (1991). Our Supreme Court has found that cases where [']more than one act is presented as evidence of the actus reus of a single criminal offense['] to be [']analytically distinct['] from cases like the one before us today, in which defendant may be properly convicted on multiple theories that represent the same element of the offence. Cooks, 446 Mich at 515. 

Here, defendant was charged with one count of unlawful imprisonment, which expressly provides alternative theories under which a defendant may be convicted. The alternate theories each relate to a single element of the offense, and are merely different ways of meeting that element. Accordingly, defendant was properly convicted of unlawful imprisonment even if some jurors believed he restrained the victim by means of a weapon, and the rest of the jurors believed he restrained the victim in order to facilitate the commission of the felony of arson (preparation to burn). No specific unanimity instruction was required, and it necessarily follows that defendant’s claim of ineffective assistance of counsel must fail because defense counsel is not required to make a meritless request or objection. People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000); see also People v Pickens, 446 Mich 298, 303; 521 NW2d 797 (1994) (to prevail on a claim for ineffective assistance of counsel, defendant must first establish that his counsel’s representation fell [']below an objective standard of reasonableness under prevailing professional norms[']).