People v. Smith

MOAA/November 2006—MDC Court
Michigan Supreme
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED MAY 23, 2007

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant/Cross-
Appellee,

v No. 130245

RANDY R. SMITH,

Defendant-Appellee/Cross-
Appellant.

BEFORE THE ENTIRE BENCH

CORRIGAN, J.

Defendant was charged with and convicted of second-degree murder, MCL

750.317, after he killed the victim with a single gunshot to the head. The trial

court denied defendant’s request to instruct the jury on statutory involuntary

manslaughter, MCL 750.329. At issue is whether the trial court should have

instructed the jury on statutory involuntary manslaughter because it is a

necessarily included lesser offense of second-degree murder. We hold that the

court correctly denied defendant’s request for the instruction. Statutory

involuntary manslaughter is not an “inferior” offense of second-degree murder
under MCL 768.32(1) because it contains elements—that the death resulted from

the discharge of a firearm and that the defendant intentionally pointed the firearm

at the victim—that are not subsumed in the elements of second-degree murder.

Thus, statutory involuntary manslaughter is not a necessarily included lesser

offense of second-degree murder. We reverse the part of the judgment of the

Court of Appeals that held to the contrary and reinstate defendant’s convictions of

second-degree murder and possession of a firearm during the commission of a

felony, MCL 750.227b. We also deny defendant’s cross-application for leave to

appeal because we are not persuaded that the questions presented should be

reviewed by this Court.

I. FACTS AND PROCEDURAL POSTURE

Defendant shot and killed a 16-year-old girl who was visiting his home.

Defendant and the victim were sitting on a couch when defendant pointed a loaded

gun at the victim’s head and told her, “Say I won’t do it.” A witness in the next

room looked away briefly and then heard a gunshot. When the witness looked

back, she saw the victim lying motionless on the floor while defendant sat on the

couch with the gun in his hand. Defendant told the witness to say that the victim

shot herself. The two then fled the house.

Defendant was charged with second-degree murder and felony-firearm.

The trial court instructed the jury on the lesser offense of common-law involuntary

manslaughter based on gross negligence. The trial court denied defendant’s

request to instruct on statutory involuntary manslaughter under MCL 750.329,

2

because it contains elements that are not included in the offense of second-degree

murder. The court explained that statutory involuntary manslaughter is therefore a

cognate offense, rather than a necessarily included lesser offense, of second-

degree murder. The jury found defendant guilty as charged of second-degree

murder and felony-firearm.

The Court of Appeals reversed defendant’s convictions and remanded for a

new trial on the basis that the trial court erred in failing to instruct the jury on

statutory involuntary manslaughter. Unpublished opinion per curiam of the Court

of Appeals, issued December 22, 2005 (Docket No. 256066). The Court of

Appeals explained that in People v Mendoza, 468 Mich 527; 664 NW2d 685

(2003), this Court held that manslaughter, both voluntary and involuntary, is a

necessarily included lesser offense of murder. Thus, under Mendoza, a defendant

who is charged with murder is entitled to an instruction on voluntary or

involuntary manslaughter if a rational view of the evidence would support it.

Although the holding in Mendoza pertained to common-law manslaughter under

MCL 750.321, the Court of Appeals here assumed, without explanation, that

Mendoza also somehow held that statutory involuntary manslaughter under MCL

750.329 is a necessarily included lesser offense of murder. The Court of Appeals

made no attempt to ascertain whether the elements of statutory involuntary

manslaughter are subsumed in the offense of second-degree murder. The Court of

Appeals also asserted, again without explanation, that Mendoza “appears to

contradict” People v Cornell, 466 Mich 335; 646 NW2d 127 (2002). In any event,

3

the Court of Appeals concluded that the trial court had “violated the mandate of

Mendoza by rejecting defendant’s requested manslaughter instruction,” and that

defendant’s convictions must therefore be reversed.

The prosecution sought leave to appeal on the instructional issue. This

Court directed the clerk to schedule oral argument regarding whether to grant the

prosecution’s application or take other peremptory action.1 474 Mich 1100

(2006). We directed the parties to address

(1) whether statutory involuntary manslaughter, MCL 750.329, is a
necessarily included lesser offense of murder; and, if so (2) whether
a rational view of the evidence in this case supports a conviction of
statutory involuntary manslaughter; and, if so (3) whether the
Oakland Circuit Court’s failure to give a jury instruction on statutory
involuntary manslaughter was harmless error. [Id.]

II. STANDARD OF REVIEW

Whether statutory involuntary manslaughter is an inferior offense of

second-degree murder under MCL 768.32 is a question of law that this Court

reviews de novo. Mendoza, supra at 531.

III. ANALYSIS

The trial court did not err in refusing to instruct the jury on statutory

involuntary manslaughter under MCL 750.329. MCL 768.32(1) provides:

Except as provided in subsection (2), upon an indictment for
an offense, consisting of different degrees, as prescribed in this
1
Defendant also filed a cross-application for leave to appeal. In the order
directing the clerk to schedule oral argument on the prosecution’s application, this
Court stated that defendant’s cross-application remains pending. 474 Mich 1100
(2006).

4

 chapter, the jury, or the judge in a trial without a jury, may find the
accused not guilty of the offense in the degree charged in the
indictment and may find the accused person guilty of a degree of
that offense inferior to that charged in the indictment, or of an
attempt to commit that offense.

In Cornell, this Court approved of the following explanation of the word “inferior”

in MCL 768.32(1):

“We believe that the word ‘inferior’ in the statute does not
refer to inferiority in the penalty associated with the offense, but,
rather, to the absence of an element that distinguishes the charged
offense from the lesser offense. The controlling factor is whether
the lesser offense can be proved by the same facts that are used to
establish the charged offense.” [Cornell, supra at 354, quoting
People v Torres (On Remand), 222 Mich App 411, 419-420; 564
NW2d 149 (1997).]

This Court then held that an “inferior” offense under MCL 768.32(1) is limited to

necessarily included lesser offenses. Cornell, supra at 353-354. In conclusion, we

held:

[A] requested instruction on a necessarily included lesser
offense is proper if the charged greater offense requires the jury to
find a disputed factual element that is not part of the lesser included
offense and a rational view of the evidence would support it. [Id. at
357.]

In Mendoza, this Court applied Cornell and concluded that common-law

voluntary manslaughter and involuntary manslaughter are necessarily included

lesser offenses of murder and thus “inferior” offenses under MCL 768.32(1).

Mendoza, supra at 533, 541. We explained that the only element distinguishing

murder from common-law manslaughter is malice, and that all the elements of

5

common-law manslaughter are completely subsumed in the offense of murder. Id.

at 540-541.

To apply the Cornell/Mendoza test, we must compare the elements of

statutory involuntary manslaughter and second-degree murder. The statutory

involuntary manslaughter statute at the time defendant killed the victim provided,

in relevant part:

Any person who shall wound, maim or injure any other
person by the discharge of any firearm, pointed or aimed,
intentionally but without malice, at any such person, shall, if death
ensue from such wounding, maiming or injury, be deemed guilty of
the crime of manslaughter. [MCL 750.329.]

The elements of statutory involuntary manslaughter are as follows: (1) a death, (2)

the death was caused by an act of the defendant, (3) the death resulted from the

discharge of a firearm, (4) at the time of the discharge, the defendant was

intentionally pointing the firearm at the victim, and (5) the defendant did not have

lawful justification or excuse for causing the death. People v Heflin, 434 Mich

482, 497; 456 NW2d 10 (1990). By contrast, the elements of second-degree

murder are as follows: (1) a death, (2) the death was caused by an act of the

defendant, (3) the defendant acted with malice, and (4) the defendant did not have

lawful justification or excuse for causing the death. People v Goecke, 457 Mich

442, 464; 579 NW2d 868 (1998).

Comparing the elements of these offenses, we conclude that statutory

involuntary manslaughter under MCL 750.329 is not a necessarily included lesser

offense of second-degree murder because it is not an “inferior” offense under

6

MCL 768.32(1). It is plain that the elements of statutory involuntary manslaughter

are not completely subsumed in the elements of second-degree murder. Statutory

involuntary manslaughter contains two elements that are not required to prove

second-degree murder: (1) that the death resulted from the discharge of a firearm

and (2) that the defendant intentionally pointed a firearm at the victim. Second-

degree murder, on the other hand, may be committed without a firearm or even

without a weapon of any kind. Because it is possible to commit second-degree

murder without first committing statutory involuntary manslaughter, statutory

involuntary manslaughter cannot be a necessarily included lesser offense of

second-degree murder. Cornell, supra at 361; People v Bearss, 463 Mich 623,

627; 625 NW2d 10 (2001).

Our holding is consistent with People v Holtschlag, 471 Mich 1, 21-22; 684

NW2d 730 (2004), where this Court held:

[I]t must be kept in mind that “the sole element distinguishing
manslaughter and murder is malice,” Mendoza at 536, and that
“involuntary manslaughter is a catch-all concept including all
manslaughter not characterized as voluntary: ‘Every unintentional
killing of a human being is involuntary manslaughter if it is neither
murder nor voluntary manslaughter nor within the scope of some
recognized justification or excuse.’” [People v Datema, 448 Mich
585, 594-595; 533 NW2d 272 (1995)]. (Citation omitted.) If a
homicide is not voluntary manslaughter or excused or justified, it is,
generally, either murder or involuntary manslaughter. If the
homicide was committed with malice, it is murder. If it was
committed with a lesser mens rea of gross negligence or an intent to
injure, and not malice, it is not murder, but only involuntary
manslaughter.

7

Holtschlag applies to common-law manslaughter, not statutory manslaughter.

Holtschlag does not, and could not, hold that every killing of a human being is

statutory involuntary manslaughter if it was committed without malice, was not

voluntary, and was not excused or justified. One who involuntarily kills a person

without malice and without excuse or justification does not necessarily commit

statutory involuntary manslaughter. Similar to our second-degree murder analysis,

statutory involuntary manslaughter contains two elements that are not required to

prove common-law involuntary manslaughter: (1) that the death resulted from the

discharge of a firearm and (2) that the defendant intentionally pointed a firearm at

the victim. Thus, just as statutory involuntary manslaughter is not included in the

offense of second-degree murder, it is not included in the offense of common-law

involuntary manslaughter. We reject defendant’s and the concurrence’s argument

that statutory involuntary manslaughter is merely but one form of common-law

involuntary manslaughter.2

Further, our conclusion that statutory involuntary manslaughter is not a

necessarily included lesser offense of second-degree murder is consistent with pre-

2
Justice Markman concedes in his concurrence that statutory involuntary
manslaughter requires proof of an element not required to prove second-degree
murder. The discussion should end there. Because all the elements of statutory
involuntary manslaughter are not completely subsumed in the elements of second-
degree murder, statutory involuntary manslaughter cannot be an inferior offense to
second-degree murder under MCL 768.32(1) and Cornell, supra at 354. Justice
Markman’s discussion of the relationship between statutory and common-law
manslaughter is thoughtful but is irrelevant to our analysis.

8

Cornell caselaw. In Heflin, supra at 497, this Court held that statutory involuntary

manslaughter is a cognate lesser offense3 of murder, not a necessarily included

lesser offense.4 MCL 768.32(1) does not permit consideration of cognate lesser

offenses. Cornell, supra at 354.

It does not matter that, in the particular case before us, a firearm was used

to commit the murder. As Cornell makes clear, when deciding whether a lesser

offense is necessarily included in the greater offense, the determination whether all

the elements of the lesser offense are included in the greater offense requires an

abstract analysis of the elements of the offenses, not the facts of the particular

case. Id. at 360-361.5 The facts are instead considered to determine whether an

instruction on a necessarily included lesser offense is proper in that particular case,

i.e., whether the charged greater offense requires the jury to find a disputed factual

element that is not part of the lesser offense and whether a rational view of the

evidence supports the instruction. Cornell, supra at 357.

3
“Cognate offenses share several elements, and are of the same class or
category as the greater offense, but the cognate lesser offense has some elements
not found in the greater offense.” Mendoza, supra at 532 n 4.

4
In Heflin, supra at 505, this Court held that the trial court did not err in
refusing to instruct the jury regarding the offense of statutory involuntary
manslaughter despite giving instructions on murder and voluntary manslaughter.

5
Justice Markman falls into the trap of comparing facts that could support a
second-degree murder conviction with the elements of statutory involuntary
manslaughter.

9

 Finally, we disagree with the Court of Appeals that Mendoza and Cornell

are inconsistent. In Mendoza, we applied the Cornell test and concluded that

common-law manslaughter under MCL 750.321, either voluntary or involuntary,

is an “inferior” offense of murder. Mendoza, supra at 540-541. We reached this

conclusion because common-law manslaughter does not contain any additional

elements beyond those required for murder. Id. The only distinction between

manslaughter and murder is the element of malice. Id. at 540. For voluntary

manslaughter, proof of adequate provocation negates the existence of malice. Id.

For involuntary manslaughter, gross negligence is a form of mens rea that is

included in the greater mens rea of murder. Id. at 540-541. Thus, we concluded

that the elements of common-law manslaughter are completely included in the

elements of murder. Id. at 541. A defendant cannot commit murder without first

satisfying the elements of common-law manslaughter. The Court of Appeals does

not explain how this holding is inconsistent with Cornell, and we do not see any

inconsistency.

IV. CONCLUSION

Because statutory involuntary manslaughter under MCL 750.329 contains

elements that are not included in second-degree murder, it is not an “inferior”

offense under MCL 768.32(1), and no instruction was permitted under Cornell.

Thus, the trial court did not err in refusing to instruct the jury on statutory

involuntary manslaughter. We reverse this aspect of the Court of Appeals

judgment and reinstate defendant’s convictions of second-degree murder and

10

felony-firearm. We deny defendant’s cross-application for leave to appeal

because we are not persuaded that the questions presented should be reviewed by

this Court.

Maura D. Corrigan
Clifford W. Taylor
Elizabeth A. Weaver
Robert P. Young, Jr.

11

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant/Cross-
Appellee,

v No. 130245

RANDY R. SMITH,

Defendant-Appellee/Cross-
Appellant.

_______________________________

MARKMAN, J. (concurring in the result only).

The majority concludes that defendant was not entitled to an instruction on

statutory involuntary manslaughter, MCL 750.329(1), on the basis that statutory

involuntary manslaughter is not an “inferior” offense of second-degree murder

under MCL 768.32(1). I respectfully disagree. In People v Holtschlag, 471 Mich

1; 684 NW2d 730 (2004), this Court concluded that common-law involuntary

manslaughter is a catch-all offense that encompasses all homicides committed

without a mens rea of malice that are not either legally justified or voluntary

manslaughter. Just as this distinction required the Court in Holtschlag to find that

a defendant who committed a homicide during a felony could be convicted of

involuntary manslaughter, I believe that it requires the Court in this case to find

that defendant was entitled to an instruction on statutory involuntary
manslaughter. However, in this case the jury convicted defendant of second-

degree murder and rejected the lesser offense of common-law involuntary

manslaughter. Because the jury concluded that defendant committed the instant

homicide possessing a mens rea of malice, I believe that the trial court’s failure to

instruct the jury on statutory involuntary manslaughter was harmless error.

Accordingly, I agree with the result reached by the majority and would reverse the

judgment of the Court of Appeals and remand this case to the trial court to

reinstate defendant’s convictions of second-degree murder and possession of a

firearm during the commission of a felony.

Defendant shot and killed a 16-year-old girl who was visiting his home.

Defendant was charged with second-degree murder and felony-firearm. The trial

court instructed the jury on common-law involuntary manslaughter, but denied

defendant’s request for an instruction on statutory involuntary manslaughter, MCL

750.329(1). Defendant was convicted by the jury of second-degree murder and

felony-firearm. The Court of Appeals reversed the judgment of conviction and

remanded for a new trial because the trial court erred in failing to instruct the jury

on statutory involuntary manslaughter.

MCL 750.329(1) and MCL 768.32(1) state respectively:

A person who wounds, maims, or injures another person by
discharging a firearm that is pointed or aimed intentionally but
without malice at another person is guilty of manslaughter if the
wounds, maiming, or injuries result in death.

* * *

2

 Except as provided in subsection (2),[1] upon an indictment for
an offense, consisting of different degrees, as prescribed in this
chapter, the jury, or the judge in a trial without a jury, may find the
accused not guilty of the offense in the degree charged in the
indictment and may find the accused person guilty of a degree of
that offense inferior to that charged in the indictment, or of an
attempt to commit that offense.

Therefore, defendant is only entitled to an instruction on statutory involuntary

manslaughter if that crime can be considered an “offense inferior to that charged

in the indictment [i.e., second-degree murder].” In People v Cornell, 466 Mich

335, 354; 646 NW2d 127 (2002), this Court defined the language “offense inferior

to that charged in the indictment” as an “‘offense [that] can be proved by the same

facts that are used to establish the charged offense.’” (Citation omitted.) In other

words, for crimes not formally divided into degrees, a defendant can be convicted

of either the charged offense or a necessarily included lesser offense of the

charged offense. This Court further concluded that, in order for a defendant to be

entitled to an instruction on a necessarily included lesser offense, it must be

supported by a “rational view of the evidence . . . .” Id. at 357.

Common-law involuntary manslaughter is a necessarily included lesser

offense of second-degree murder. People v Mendoza, 468 Mich 527, 534; 664

NW2d 685 (2003). Under the common law, “the presence of malice became both

synonymous with the absence of mitigating circumstances and the sole element

1
The provisions in subsection 2 do not apply in this case.

3

distinguishing murder from manslaughter.” Id. at 540. Therefore, this Court

concluded:

Regarding involuntary manslaughter, the lack of malice is
evidenced by involuntary manslaughter’s diminished mens rea,
which is included in murder’s greater mens rea. See People v
Datema, 448 Mich 585, 606; 533 NW2d 272 (1995), stating:

“‘[P]ains should be taken not to define [the mens rea required
for involuntary manslaughter] in terms of a wanton and wilful
disregard of a harmful consequence known to be likely to result,
because such a state of mind goes beyond negligence and comes
under the head of malice.’

“Unlike murder, involuntary manslaughter contemplates an
unintended result and thus requires something less than an intent to
do great bodily harm, an intent to kill, or the wanton and wilful
disregard of its natural consequences. [Citations omitted; emphasis
added.]”

See also United States v Browner, 889 F2d 549, 553 (CA 5,
1989), stating, “In contrast to the case of voluntary manslaughter . . .
the absence of malice in involuntary manslaughter arises not because
of provocation induced passion, but rather because the offender’s
mental state is not sufficiently culpable to reach the traditional
malice requirements.”

Thus, we conclude that the elements of involuntary
manslaughter are included in the offense of murder because
involuntary manslaughter’s mens rea is included in murder’s greater
mens rea. [Id. at 540-541 (emphasis omitted).]

This Court came to a similar conclusion in Holtschlag, supra. In

Holtschlag, the defendants were convicted of involuntary manslaughter after

placing gamma hydroxybutyric acid (GHB)2 in the drink of a 14-year-old girl who

2
GHB is sometimes known as the “date rape drug.”

4

subsequently became sick and died. The defendants argued that they could not be

convicted of involuntary manslaughter under these facts, because involuntary

manslaughter had been defined, in part, as a homicide that occurs during the

commission of an unlawful act that is not a felony.3 Because the act of placing

GHB in an unsuspecting person’s drink is a felony, the defendants argued that they

could not have committed involuntary manslaughter.

This Court undertook its analysis in Holtschlag by noting that, under the

common law, all homicides committed with a mens rea of malice constituted

murder. Holtschlag, supra at 5-6. Involuntary manslaughter was a “‘catch-all

concept including all manslaughter not characterized as voluntary: “Every

unintentional killing of a human being is involuntary manslaughter if it is neither

murder nor voluntary manslaughter nor within the scope of some recognized

justification or excuse.”’” Id. at 7, quoting Datema, supra at 594-595, quoting

Perkins & Boyce, Criminal Law (3d ed), p 105. In other words, involuntary

manslaughter is defined by what it is not-- if a homicide is not murder, voluntary

3
See People v Ryczek, 224 Mich 106, 110; 194 NW 609 (1923) (defining
involuntary manslaughter as “‘the killing of another without malice and
unintentionally, but in doing some unlawful act not amounting to a felony nor
naturally tending to cause death or great bodily harm, or in negligently doing some
act lawful in itself, or by the negligent omission to perform a legal duty’”)
(citation omitted).

5

manslaughter,4 or a justified killing, it must be involuntary manslaughter. The

traditional definition of malice included the felony-murder rule, which held that

when a homicide occurred during the commission of a felony, the intent to commit

that felony by itself established the existence of malice. Therefore, a homicide

that occurred during the commission of an unlawful act only fell within the “catch-

all” concept of involuntary manslaughter if the unlawful act was not a felony.

However, in People v Aaron, 409 Mich 672, 727-728; 299 NW2d 304 (1980), this

Court abolished the traditional felony-murder rule, holding that a homicide that

occurred during the commission of any unlawful act, including a felony,

constitutes murder only if the prosecutor demonstrates the existence of a mens rea

of malice. Because a homicide that occurs during the commission of a felony is

no longer murder per se, this Court concluded that the scope of the “catch-all”

concept of involuntary manslaughter must necessarily encompass a homicide that

occurred during the commission of a felony where the defendant acted with a

lesser mens rea. In other words, the appropriate question to be asked to

distinguish murder from involuntary manslaughter, post-Aaron, is whether the

4
Common-law voluntary manslaughter occurs when “‘the act of killing,
though intentional, [is] committed under the influence of passion or in heat of
blood, produced by an adequate or reasonable provocation, and before a
reasonable time has elapsed for the blood to cool and reason to resume its habitual
control, and is the result of the temporary excitement, by which the control of
reason was disturbed, rather than of any wickedness of heart or cruelty or
recklessness of disposition . . . .’” Mendoza, supra at 535, quoting Maher v
People, 10 Mich 212, 219 (1862).

6

homicide was committed with malice. If the homicide was committed with

malice, it is murder. If the homicide was not committed with a mens rea of

malice, and is neither legally justifiable nor voluntary manslaughter, then it must

be involuntary manslaughter. Holtschlag, supra at 11-12.

At first blush, it would appear that statutory involuntary manslaughter is not

a necessarily included lesser offense of second-degree murder. The elements of

second-degree murder are: (1) a death; (2) caused by the defendant’s act; (3) with

malice; and (4) without justification. People v Goecke, 457 Mich 442, 464; 579

NW2d 868 (1998). The elements of statutory involuntary manslaughter are: (1) a

death; (2) caused by the defendant; (3) without lawful justification or excuse; (4)

resulting from the discharge of a firearm; (5) at the time of the discharge, the

defendant was pointing or aiming the firearm at the deceased; and (6) defendant

intended to point or aim the firearm at the deceased. People v Heflin, 434 Mich

482, 497; 456 NW2d 10 (1990). As correctly noted by the majority, statutory

involuntary manslaughter requires proof of an element not required for second-

degree murder-- namely that the defendant intentionally pointed or aimed a

firearm at the victim. Because of this, the majority concludes that the elements of

statutory involuntary manslaughter are not completely subsumed by the elements

7

of second-degree murder, and thus the former is a cognate lesser offense and may

not be considered by the jury. Cornell, supra.5

In my judgment, the majority misperceives the relationship between

statutory and common-law manslaughter. According to the majority, when the

Legislature enacted the statute, it created a separate and distinct crime of

manslaughter. That is, statutory manslaughter represents a departure from the

common-law understanding of manslaughter and, therefore, the only relationship

between the two is in name. Because statutory manslaughter exists outside the

realm of the common law, the usual common-law relationship between murder

and manslaughter is inapplicable.

But the majority’s conclusion fails to give sufficient regard to the language

and context of the statute. MCL 750.329(1) defines the act of intentionally aiming

or pointing a firearm at another and, without malice, discharging that firearm and

causing the victim’s death as “manslaughter.” Yet, the latter term is nowhere

defined by the statute. However, the term “manslaughter” in the general

5
The majority also cites for support this Court’s conclusion in Heflin, that
statutory involuntary manslaughter is a cognate lesser offense of murder. Ante at
9. However, I find Heflin to be of dubious value in this regard, because the
opinion also concluded that common-law involuntary manslaughter was a cognate
lesser offense of murder, a holding that was later overruled by Mendoza. In
addition, at the time Heflin was decided, the distinction between cognate and
lesser included offenses was far less relevant, given the Court’s then-existing
precedent holding that MCL 768.32(1) applied equally to cognate and necessarily
included lesser offenses. See Cornell, supra.

8

manslaughter statute, MCL 750.321,6 has been interpreted and has always been

understood to refer to common-law manslaughter. See, e.g., Mendoza, supra;

Holtschlag, supra. Because this common-law term is not defined in MCL

750.329(1), it should be interpreted in a manner consistent with how it has been

interpreted and understood in the general manslaughter statute, absent evidence

that the Legislature intended to alter or repeal that common-law definition.

This Court has held that where “a statute dealing with the same subject

invokes a common-law term, and where there is no clear legislative intent to alter

the common law, this Court will interpret the statute as having the same meaning

as under the common law.” Ford Motor Co v Woodhaven, 475 Mich 425, 439;

716 NW2d 247 (2006), citing Pulver v Dundee Cement Co, 445 Mich 68, 75; 515

NW2d 728 (1994). Neither the majority nor the parties in this case have asserted

that the Legislature intended to replace the common-law definition of

“manslaughter” for the purposes of MCL 750.329(1). Nor could such an argument

be reasonably made because, while the Legislature could alter the common law, it

has not done so in the instant context. Nothing in the language of either MCL

750.329(1) or the general manslaughter statute demonstrates any legislative intent,

clear or otherwise, to alter or abrogate the common law. Accordingly, in the

6
MCL 750.321 states:
Manslaughter--Any person who shall commit the crime of
manslaughter shall be guilty of a felony punishable by imprisonment
(continued…)

9

absence of such intent, the term “manslaughter” set forth in MCL 750.329(1)

should be construed and understood consistently with the common-law meaning of

the term.

Once the premise that statutory manslaughter does not displace common-

law manslaughter becomes accepted, the majority’s determination that statutory

manslaughter operates outside the context of the common law becomes untenable.

The statutory form of manslaughter at issue in this case does not independently

define the term “manslaughter,” nor does it set forth a separate and distinct term of

imprisonment.7 Rather, it merely sets forth one specific form of manslaughter.

Thus, when the Legislature defined the criminal act set forth in MCL 750.329(1)

as “manslaughter,” it incorporated that criminal act into the general manslaughter

statute and its 15-year maximum term of imprisonment. Just as the term

“manslaughter” in the statute should be construed and understood in a manner

consistent with the general manslaughter statute, it should also be understood to

define the criminal act set forth in the statute as part of the general manslaughter

statute. In other words, statutory manslaughter is a specific instance of the general

(…continued)
in the state prison, not more than 15 years or by fine of not more
than 7,500 dollars, or both, at the discretion of the court.
7
Just as in MCL 750.329(1), other forms of statutory manslaughter do not
set forth separate and distinct terms of imprisonment. See, e.g., the willful killing
of an unborn quick child by means of an assault on the mother, MCL 750.322, and
the killing of an unborn quick child or mother “from use of medicine, etc., with
intent to destroy such child,” MCL 750.323.

10

crime of manslaughter set forth in MCL 750.321 and is subject to the same prison

term as any other form of manslaughter recognized at common law. On the basis

of that understanding, I believe that statutory manslaughter under MCL 750.329(1)

is simply one form of manslaughter recognized in this state and, therefore, is

subject to the 15-year maximum term set forth in MCL 750.321.

The remaining question then is how MCL 750.329(1) fits within the

common-law definition of manslaughter. In Holtschlag, supra at 21, this Court

held that “[i]f a homicide is not voluntary manslaughter or excused or justified, it

is, generally, either murder or involuntary manslaughter.” The language of MCL

750.329(1) makes clear that a homicide committed by a defendant who

intentionally points or aims a firearm at a victim is not excused or justified.

Further, the statute only applies to circumstances in which the defendant commits

the homicide lacking a mens rea of malice. Because a violation of MCL

750.329(1) cannot be voluntary manslaughter or murder, and is not excused or

justified, it must necessarily be considered involuntary manslaughter. In other

words, the statute is merely one instance of the more general crime of common-

law involuntary manslaughter. Because this crime is a necessarily included lesser

offense of second-degree murder, Mendoza, supra, the specific type of involuntary

manslaughter created by the statute must also be a necessarily included lesser

offense of second-degree murder. Further, if a defendant is charged with second-

degree murder, and the offense was committed with a firearm, the charge

necessarily includes all the elements of MCL 750.329(1). Just as the defendants in

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Holtschlag who committed a homicide that occurred during the commission of a

felony, but lacking malice, were properly convicted of common-law involuntary

manslaughter, the defendant in the instant case who claimed that he committed a

homicide while intentionally pointing or aiming a firearm at the victim, but

lacking malice, was entitled to an instruction on a specific form of common-law

involuntary manslaughter, i.e., statutory involuntary manslaughter. Accordingly, I

believe that the trial court erred by not giving the requested jury instruction.

While the trial court erred by failing to give the jury instruction, the error

was harmless, in my judgment, because the jury was, in fact, instructed on

common-law involuntary manslaughter and rejected that offense. In cases of

nonconstitutional preserved error, the defendant must show that it is more

probable than not that the failure to give the requested instruction undermined the

reliability of the verdict. People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607

(1999). Here, the jury was instructed both on second-degree murder and on

common-law involuntary manslaughter. As noted above, Holtschlag establishes

that a homicide committed without malice is involuntary manslaughter. MCL

750.329(1) only applies where the defendant intentionally points or aims a firearm

at the victim without malice. By convicting defendant of second-degree murder,

the jury necessarily determined that defendant acted with the mens rea of malice

when he shot the victim. Had the jury concluded that defendant did not commit

the instant homicide with the mens rea of malice, it would have either convicted

defendant of common-law involuntary manslaughter or acquitted him. Therefore,

12

defendant cannot demonstrate that, had the jury been instructed on a statutory

form of involuntary manslaughter, it would have determined that defendant lacked

the mens rea of malice. See, e.g., People v Gillis, 474 Mich 105, 140 n 18; 712

NW2d 419 (2006) (noting that “[g]iven the jury’s refusal to either acquit or

convict of the lesser offense [of second-degree murder], defendant has failed to

demonstrate that a ‘miscarriage of justice’ occurred when the trial court failed to

instruct on involuntary manslaughter”).

In conclusion, the Legislature’s use of the term “manslaughter” to define

the criminal act set forth in MCL 750.329(1) indicates that the statute has defined

a particular form of common-law manslaughter. Holtschlag recognized that the

sole relevant question in determining whether a homicide is murder or common-

law involuntary manslaughter is whether the homicide was committed with

malice. Where a defendant acts with a mens rea of malice, it is murder. Where a

defendant acts with a lesser mens rea, and the homicide is not voluntary

manslaughter or excused or justified, then it is common-law involuntary

manslaughter. Thus, common-law involuntary manslaughter is a catch-all offense

that encompasses all homicides committed without a mens rea of malice that are

not either legally justified or voluntary manslaughter. By its own terms, MCL

750.329(1) applies only to homicides committed with a firearm, but without a

mens rea of malice and under circumstances that are neither legally justified nor

compose the elements of voluntary manslaughter. Just as this distinction required

the Court in Holtschlag to find that a defendant who committed a homicide during

13

a felony could be convicted of involuntary manslaughter, I believe that it requires

the Court in this case to hold that defendant was entitled to an instruction on

statutory involuntary manslaughter.

However, given that the jury refused either to convict defendant of

common-law involuntary manslaughter or to acquit him, it necessarily concluded

that defendant committed the instant homicide with a mens rea of malice.

Therefore, I conclude that the trial court’s failure to instruct the jury on statutory

involuntary manslaughter was harmless error. Accordingly, I agree with the result

reached by the majority and would reverse the judgment of the Court of Appeals

and remand this case to the trial court to reinstate defendant’s convictions of

second-degree murder and felony-firearm.

Stephen J. Markman

14

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant/Cross-
Appellee,

v No. 130245

RANDY R. SMITH,

Defendant-Appellee/Cross-
Appellant.

CAVANAGH, J. (dissenting).

I agree with the majority that People v Mendoza, 468 Mich 527; 664 NW2d

685 (2003), is not inconsistent with People v Cornell, 466 Mich 335; 646 NW2d

127 (2002), because Mendoza’s holding only concerned common-law

manslaughter. Additionally, I do not question the accuracy of the majority’s

comparison of the elements of second-degree murder, MCL 750.317, and statutory

involuntary manslaughter, MCL 750.329. Nevertheless, I dissent from the

continued application of Cornell, which permits jury instructions only on

necessarily included lesser offenses of a charged offense. I reiterate my belief that

Cornell’s construction of MCL 768.32 misinterprets the statute’s plain language

and contravenes this Court’s precedent. See Mendoza, supra at 549-555

(Cavanagh, J., concurring). I maintain that the proper interpretation of MCL
750.329 allows instructions on lesser or “inferior” offenses of the crime charged if

such instructions are supported by the evidence.

The evidence presented at defendant’s trial would have supported an

instruction on statutory involuntary manslaughter. The defense approach was to

admit that defendant caused the fatality but dispute the element of intent. There

was sufficient evidence for the jury to find that defendant had intentionally aimed

a gun at the decedent, yet had shot her without malice. But without an instruction

on statutory involuntary manslaughter, the jury did not have the option to return

such a verdict. Accordingly, I would grant defendant a new trial in which the

requested instructions are given to the jury.

Michael F. Cavanagh
Marilyn Kelly

2