The Court of Appeals has recognized that excluding evidence defendant had a valid concealed pistol license (“CPL”) during his trial for felony-firearm, was an error so severe that the defendant was entitled to a new trial. In the consolidated cases of People v. Powell, defendant was charged with felony-firearm and possession with intent to deliver marijuana. The government argued that the defendant possessed the gun in furtherance of the drug crime--noting that handguns are often tools of the drug trade. Defendant argued that he was innocently present in the apartment of another individual, who possessed the drugs, and that he was carrying a handgun legally pursuant to his CPL. Further, he asserted that the CPL stregthened his defense--namely, that he legally posessed the handgun for reasons unconnected to the drug trade. The trial court initially excluded evidence that defendant had a valid CPL. After defendant was convicted, the court granted defendant’s motion for a new trial. In that holding, the trial court concluded that its previous ruling, excluding the CPL evidence, was an abuse of discretion because the evidence was both relevant and admissible. The Court reasoned that the CPL license “lent credibility” to the argument that he legally possessed the handgun and it was not merely a tool of the drug trade. As such, the Court held that the trial court was within its discretion to grant the defendant’s motion for a new trial either under MCR 2.699(A)(1)(a), which allows a court to grant a new trial whenever a defendant’s “substantial rights are materially affected [by] an . . . abuse of discretion which denied [defendant] a fair trial,” or based on the fact that the exclusion of the CPL would have require reversal on appeal. Either way, the Court affirmed the trial court’s decision to grant defendant’s motion for a new trial.
Additionally, defendant argued that, as applied, MCL 750.227b (the felony-firearm statute) violated his constitutional right to bear arms because the jury acquitted him of the underlying felony of possession with the intent to deliver marijuana. The Court disagreed and held that the statute was not unconstitutional as applied because a jury could have properly concluded that the defendant was not guilty of possession with intent to deliver pursuant to MCL 333.7401(2)(d)(iii) but that he did possess marijuana with the intent to deliver pursuant to that factor in MCL 750.227b. Moreover, the Court held that the trial court’s instruction following a note from the jury to continue its deliberations did not violate defendant’s right to be present and have counsel at a critical stage of trial. It reasoned that the jury instruction was merely administrative in nature and defendant did not object to the instruction once the trial court later raised the subject on the record. Accordingly, there was no presumption that the instruction prejudiced defendant, and the failure to object constituted “evidence that the instruction was not prejudicial.”