Ineffective assistance of counsel; Failure to request the jury instruction on the possessory-interest exception under MCL 750.227 (CCW); M Crim JI 11.11; People v Marrow

The court held that to qualify for the possessory-interest exception under the CCW statute, “the defendant must have a legal property interest in the land. Habitation alone is insufficient.” Because the evidence here did not support giving the jury instruction on the exception, defense counsel was not ineffective for failing to request it. Thus, the court affirmed defendant’s CCW convictions. The case arose “from the discovery of multiple firearms in defendant’s vehicle at a house that [he] was squatting in.” He argued that defense counsel was ineffective for failing to request M Crim JI 11.11, the instruction on the possessory-interest exception to the CCW statute. He claimed he was entitled to the instruction “because the house that he was squatting in was his ‘dwelling house.’ Under defendant’s interpretation of the law, the exception only requires physical possession, not lawful possession.” The court disagreed. Under Morrow, for the “exception to apply, the defendant must have a ‘possessory interest’ in the dwelling-house, place of business, or other land.” The court noted there are “exceptions to the exception” and that they all “share a common underlying principle: a person does not have a possessory interest in land if he has no right to exclude others from that land.” In this case, defendant was staying “in the house without the homeowner’s consent. Because the evidence does not support the theory that defendant carried the pistols on land that he possessed, the trial court would not have been required to” give M Crim JI 11.11 had defense counsel requested it. Further, defense “counsel focused on the argument that there was reasonable doubt whether defendant knowingly possessed the firearms.” In contrast, a “defense based on the possessory-interest exception would imply that defendant admitted that he knowingly possessed the firearms. . . . Instructing the jury on an exception that was inconsistent with the primary defense theory could confuse the jury and weaken both defenses.” Deciding to avoid this “by not requesting the instruction was a matter of sound trial strategy.” The court added that defendant failed to show prejudice.