The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 1, 2024
Plaintiff-Appellee,
v No. 365040
Kent Circuit Court
DERRICK DARNELL ARCHIE-MORRIS, JR., LC No. 21-002851-FC
Defendant-Appellant.
Before: CAMERON, P.J., and M. J. KELLY and YATES, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of felon in possession of a firearm
(felon-in-possession), MCL 750.224f; carrying a concealed weapon, MCL 750.227; and two
counts of possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b(1). The circuit court sentenced defendant as a third-offense habitual offender, MCL
769.11, to serve concurrent terms of 24 to 120 months’ imprisonment for his felon-in-possession
and carrying a concealed weapon convictions. He was also sentenced to concurrent terms of 24
months’ imprisonment, consecutive to his other sentences, for each felony-firearm count. We
affirm.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
This case stems from the fatal shooting of Giovanni Alvelo in November 2020. Jaylen
Ruffin, a friend of defendant’s, was initially the main suspect in the shooting because he and Alvelo
were known to run in rival gangs. Police later became aware that defendant was also involved in
the shooting based a proffer statement that defendant provided to the prosecution in exchange for
use immunity. Defendant was subsequently arrested and charged with open murder, MCL
750.316;1 discharging a firearm from a vehicle causing death, MCL 750.234a(1)(d); felon-in-
possession, carrying a concealed weapon, and two counts of felony-firearm.
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The prosecution later moved to dismiss this charge.
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Portions of defendant’s proffer statement were admitted at defendant’s preliminary
examination. The case was bound over to the circuit court where defendant moved to quash the
bindover and dismiss the information or to remand the matter to the district court. According to
defendant, the district court’s decision to bind the case over was made on the basis of inadmissible
evidence, namely, statements defendant made during his proffer interview. The circuit court
concluded that defendant did not breach the terms of his proffer agreement and, therefore, his
proffer statements were inadmissible. The circuit court quashed the bindover and remanded the
case to the district court, but did not dismiss the charges against defendant. Additional evidence
was presented at a second preliminary examination and the case was again bound over to the circuit
court.
At trial, defendant testified on his own behalf, admitting that he fired the fatal shot. He
asserted that he fired his gun in self-defense after Alvelo shot at the car he was in. The jury
acquitted defendant for the offense of discharging a firearm from a vehicle causing death, but
convicted him of the remaining charges. This appeal followed.
II. MOTION TO QUASH
Defendant first argues that the circuit court erred by failing to dismiss the charges against
him. We disagree.
A. STANDARD OF REVIEW
“A circuit court’s decision to grant or deny a motion to quash charges is reviewed de novo
to determine if the district court abused its discretion in binding over a defendant for trial.” People
v Jenkins, 244 Mich App 1, 14; 624 NW2d 457 (2000). “[A]n abuse of discretion occurs when
the decision results in an outcome falling outside the range of principled outcomes.” People v
Carnicom, 272 Mich App 614, 617; 727 NW2d 399 (2006) (citation omitted). “A district court
must bind over a defendant for trial when the prosecutor presents competent evidence constituting
probable cause to believe that a felony was committed and that the defendant committed the
offense.” Jenkins, 244 Mich App at 14, citing MCL 766.13. “A district court’s finding of probable
cause will not be disturbed unless the determination is wholly unjustified by the record.” Jenkins,
244 Mich App at 14.
B. LAW AND ANALYSIS
The “purpose of [a] preliminary examination is to admit evidence on each element of a
crime and to establish probable cause to believe that the defendant committed that crime.” People
v Olney, 333 Mich App 575, 582; 963 NW2d 383 (2020). Therefore, “[a]t a preliminary
examination, the prosecution must present evidence establishing that the defendant committed the
charged offense, and the district court must find that probable cause exists to bind over a defendant
for trial.” People v Fairey, 325 Mich App 645, 648-649; 928 NW2d 705 (2018). “To satisfy this
burden, the prosecution must present evidence of each and every element of the charged offense,
or enough evidence from which an element may be inferred.” Id. at 649. Notably, “[i]dentity is
an essential element of every crime[,]” and, therefore, “to warrant a bindover, the prosecution must
produce evidence that a crime was committed and that probable cause exists to believe that the
charged defendant committed it.” Id. “Probable cause is established if the evidence would
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persuade a careful and reasonable person to believe in the defendant’s guilt.” Id. “Evidence
supporting that the defendant perpetrated the crime may be circumstantial[.]” Id. However, it
must be legally admissible and should “demonstrate reasonable grounds to suspect the defendant’s
personal guilt.” Id. “[I]f it appears to the district court that there is probable cause to believe that
a felony was committed and that the defendant committed it, the court must bind the defendant
over for trial.” People v Waltonen, 272 Mich App 678, 684; 728 NW2d 881 (2006), citing MCL
766.13 and MCR 6.110(E).
In his motion to quash, defendant argued the prosecution improperly used his proffer
statement against him during the first preliminary examination. He thus requested that the circuit
court “quash the bindover and dismiss the information or remand to the district court.” (Emphasis
added.) Now on appeal, defendant argues that the remand was in error and, instead, the circuit
court should have dismissed the charges entirely. “[A] party may not harbor error at trial and then
use that error as an appellate parachute[.]” People v Szalma, 487 Mich 708, 726; 790 NW2d 662
(2010). Because defendant’s relief sought included the option to remand the case to the district
court, his present argument assigning error to the remand is an appellate parachute which we
decline to examine on appeal.
But, even if we did consider defendant’s argument, it lacks merit. MCR 6.110(H) provides:
“If, on proper motion, the trial court finds a violation of subrule (C), (D), (E), or (F), it must either
dismiss the information or remand the case to the district court for further proceedings.” (Emphasis
added). Here, the circuit court remanded the case because it concluded that the district court had
used inadmissible evidence to bind defendant over for trial, which implicated subrule (E) of MCR
6.110. It was therefore well within the circuit court’s discretion to remand the case to the district
court for another preliminary examination.
III. INCONSISTENT JURY VERDICTS
Defendant next argues that the jury rendered impermissible, inconsistent verdicts. He
believes the felony-firearm convictions are invalid because he was acquitted of the underlying
felony of discharging a firearm from a vehicle causing death. We disagree.
A. STANDARD OF REVIEW
“This Court reviews de novo questions regarding inconsistent verdicts, which are
constitutional issues.” People v Russell, 297 Mich App 707, 722; 825 NW2d 623 (2012).
B. LAW AND ANALYSIS
Jury verdicts are “considered inconsistent when the verdicts cannot rationally be
reconciled.” People v Montague, 338 Mich App 29, 51; 979 NW2d 406 (2021) (quotation marks
and citation omitted). Our Supreme Court has recognized that “jury verdicts rendered on several
counts of a multicount indictment need not necessarily be consistent.” People v Vaughn, 409 Mich
463, 465-466; 295 NW2d 354 (1980). This is because “[j]uries are not held to any rules of logic
nor are they required to explain their decisions.” Id. at 466. Accordingly, “inconsistent verdicts
within a single jury trial are permissible and do not require reversal[]” absent a showing “that the
jury was confused, that they misunderstood the instructions, or that [they] engaged in an
impermissible compromise.” People v Putman, 309 Mich App 240, 251; 870 NW2d 593 (2015).
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Our Supreme Court has examined inconsistent verdicts specifically in the context of
felony-firearm convictions, concluding that a jury conviction of felony-firearm accompanied by
an acquittal of the underlying felony does not invalidate the felony-firearm conviction. People v
Lewis, 415 Mich 443, 448; 330 NW2d 16 (1982). The Lewis defendants sought to have their
felony-firearm convictions reversed, arguing that the language of MCL 750.227b rendered a
conviction of the underlying felony a prerequisite for imposition of a sentence for felony-firearm.
Id. at 453. In rejecting this argument, our Supreme Court noted that the Legislature made the
“commission or the attempt to commit a felony[,] not a conviction of a felony[,] an element of
felony-firearm.” Id. It concluded:
It would not be consistent with the legislative purpose in enacting the felony-
firearm statute to conclude that it intended that a felony-firearm conviction be set
aside and no punishment at all be imposed in a case where the jury, extending
leniency or compromising, failed to convict of the underlying felony, but did
convict of felony-firearm. [Id. at 454.]
In addition, this Court has held that, “in the compound-felony setting, the jury is fully
instructed on the elements of both offenses and is therefore aware that conviction of a compound
felony is logically inconsistent with acquittal of the predicate felony.” People v McKewen, 326
Mich App 342, 354; 926 NW2d 888 (2018). Accordingly, if jurors “nevertheless choose to enter
inconsistent verdicts, they may do so, and that conviction will stand.” Id.
Here, the jury convicted defendant of felony-firearm, but acquitted him of the underlying
felony. While defendant believes such an inconsistent verdict should not be permitted, our
jurisprudence has made clear that inconsistent verdicts in the context of felony-firearm convictions
do not invalidate those convictions. Lewis, 415 Mich at 446. Defendant also fails to provide
evidence that the jury was confused, misunderstood the instructions, or engaged in impermissible
compromise that would render this otherwise valid verdict improper. See Putman, 309 Mich App
at 251. Instead, defendant asserts that our Supreme Court’s holding in Lewis should be
reexamined, arguing it is illogical. But, “[t]his Court is bound to follow decisions of our Supreme
Court[,]” People v Strickland, 293 Mich App 393, 402; 810 NW2d 660 (2011), and “only [our]
Supreme Court has the authority to overrule its own decisions.” People v Crockran, 292 Mich
App 253, 256; 808 NW2d 499 (2011). Thus, we reject defendant’s request to do so in this appeal.
IV. DOUBLE JEOPARDY
Defendant lastly argues that his convictions of felon-in-possession and felony-firearm
stemming from the same gun possession violate the Double Jeopardy Clauses of the United States
and Michigan Constitutions. We disagree.
A. STANDARD OF REVIEW
“A challenge under the double jeopardy clauses of the federal and state constitutions
presents a question of law that this Court reviews de novo.” People v Calloway, 469 Mich 448,
450; 671 NW2d 733 (2003).
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B. LAW AND ANALYSIS
The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution
provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or
limb[.]” US Const, Am V. The Michigan Constitution similarly provides that no person shall “be
subject for the same offense to be twice put in jeopardy.” Const 1963, art 1, § 15. Our Supreme
Court has interpreted the Michigan Constitution’s Double Jeopardy Clause “consistently with the
federal provision.” People v Wafer, 509 Mich 31, 37; 983 NW2d 315 (2022). “The double
jeopardy clauses of the United States and Michigan constitutions protect against governmental
abuses for both (1) multiple prosecutions for the same offense after a conviction or acquittal and
(2) multiple punishments for the same offense.” Calloway, 469 Mich at 450. Defendant’s claim
involves the latter circumstance—multiple punishments stemming from the same offense.
Michigan caselaw has extensively considered whether convictions for felony-firearm and
felon-in-possession constitute multiple punishments arising from the same offense. See, e.g.,
Wafer, 509 Mich at 39; People v Mitchell, 456 Mich 693, 695; 575 NW2d 283 (1998). Indeed,
this Court has conclusively held “that the Legislature clearly intended to permit a defendant
charged with felon in possession to be properly charged with an additional felony-firearm count.”
People v Dillard, 246 Mich App 163, 167-168; 631 NW2d 755 (2001). On appeal, defendant asks
us to contradict this express holding, which we cannot do. People v Bennett, 344 Mich App 12,
21; 999 NW2d 827 (2022) (“This Court is bound to follow its own published opinions under the
rule of stare decisis[.]”); MCR 7.215(C)(2) and (J)(1). As such, this argument is meritless.
Affirmed.
/s/ Thomas C. Cameron
/s/ Michael J. Kelly
/s/ Christopher P. Yates
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