Order Michigan Supreme Court
Lansing, Michigan
May 5, 2006 Clifford W. Taylor,
Chief Justice
Michael F. Cavanagh
128774 Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellee,
v SC: 128774
COA: 251454
Oakland CC: 2002-184922-FC
THOMAS C. WALLS,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the April 7, 2005
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
CORRIGAN, J., concurs and states as follows:
I concur in the denial of leave to appeal. The Court of Appeals majority correctly
held that felonious assault, MCL 750.82, is not a necessarily included lesser offense of
assault with intent to rob while armed, MCL 750.89. As the majority explained,
felonious assault requires the possession of a dangerous weapon, whereas assault with
intent to rob while armed allows conviction where the offender merely has “any article
used or fashioned in a manner to lead a person so assaulted reasonably to believe it to be
a dangerous weapon . . . .” MCL 750.89.
The Court of Appeals majority thus concluded that the offense of felonious assault
contains an element that is not contained in the offense of assault with intent to rob while
armed. Therefore, because the elements of felonious assault are not completely
subsumed in the greater offense, felonious assault is a cognate offense and no instruction
was permitted under People v Cornell, 466 Mich 335 (2002).1
1
I respectfully disagree with our dissenting colleague’s analysis. She invents an
“alternative elements” rationale to support her assertion that the elements of felonious
assault and assault with intent to rob while armed are the same. She notes that assault
with intent to rob while armed may be proven where the defendant was armed with either
a dangerous weapon or “any article used or fashioned in a manner to lead a person so
assaulted reasonably to believe it to be a dangerous weapon . . . .” MCL 750.89.
2
I respectfully disagree with some of the views expressed in the concurring judge’s
opinion in the Court of Appeals. Specifically, the concurrence seemed to suggest that a
court must analyze the facts of a particular case to determine whether an offense is
necessarily included. Because defendant here did possess a weapon, the concurrence
opined that felonious assault was a necessarily included lesser offense in this case.
I believe the assumption underlying the concurring judge’s analysis is incorrect.
The question whether a lesser offense is necessarily included is resolved solely by
reference to the elements of the offenses. See People v Mendoza, 468 Mich 527, 532 n 3
(2003) (“Necessarily included lesser offenses are offenses in which the elements of the
lesser offense are completely subsumed in the greater offense”). (Emphasis added.) The
facts of a specific case are not considered until after the determination whether an offense
is necessarily included is made, and then only for the purpose of determining whether the
lesser offense instruction is warranted in that case. See Cornell, supra, 466 Mich 358 n
13; Mendoza, supra.
Therefore, a court should endeavor to avoid conflating two separate analytical
steps: (1) the court must first determine whether an offense is necessarily included, which
requires a comparison of the elements of the offenses, and (2) once it is established that
the offense is necessarily included, the court must then determine whether an instruction
is warranted on the facts of a particular case, by examining whether “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.” Cornell, supra,
466 Mich 357.
Because the Court of Appeals majority correctly analyzed this issue, I concur in
the denial of leave to appeal.
CAVANAGH, J., would grant leave to appeal.
The dissent’s analysis fails to rebut the conclusion that felonious assault is a
cognate offense of assault with intent to rob while armed. While it is certainly possible to
prove assault with intent to rob while armed by adducing evidence that the defendant was
armed with a dangerous weapon, it is also possible to prove that offense where the
defendant was not armed with a dangerous weapon. By contrast, the plain text of the
felonious assault statute requires proof that the defendant was armed with a dangerous
weapon. Thus, the elements of felonious assault are not completely subsumed in the
greater offense, and it is possible to commit the greater offense without having first
committed the lesser. Thus, under our decisions in Cornell, supra at 356, and People v
Mendoza, 468 Mich 527, 532 n 3 (2003), felonious assault is a cognate offense of assault
with intent to rob while armed, and no instruction on felonious assault was permitted.
3
KELLY, J., dissents and states as follows:
I write to indicate why I would grant leave to appeal. Also, I respond to the
concurring statement of my colleague that misconstrues the elements of assault with
intent to rob and steal while armed. MCL 750.89. The effect of the concurrence could
confuse the bench and bar when similar questions arise in the future. Lastly, I point out
that both the concurrence and the order provide no rationale for their decision to deny
leave to appeal. I find the decision inexplicable.
MCL 750.89 provides:
Assault with intent to rob and steal being armed—Any person, being
armed with a dangerous weapon, or any article used or fashioned in a
manner to lead a person so assaulted reasonably to believe it to be a
dangerous weapon, who shall assault another with intent to rob and steal
shall be guilty of a felony, punishable by imprisonment in the state prison
for life, or for any term of years. [Emphasis added.]
This statute is unusual because it provides alternative elements: The accused must
either (1) have possessed a dangerous weapon or (2) have been in possession of an article
used or fashioned in a manner to lead a person reasonably to believe it was a dangerous
weapon. MCL 750.89.2 Appellant asks us to decide the effect on this statute of the
holdings in People v Cornell3 and People v Mendoza.4 Given that this Court has never
addressed the question, it would be helpful to do so now.
The concurrence pays no attention to the fact that the crime in question has
alternative elements. Instead, it reads “being armed with a dangerous weapon, or”
completely out of the statute. It is well accepted that courts should not render a part of a
statute nugatory. Wherever possible, every word should be given meaning. People v
Warren, 462 Mich 415, 429 n 24 (2000). The concurrence violates this rule of statutory
construction without explanation.
2
The concurrence accuses me of inventing the rationale that there are alternative
elements. I have merely read the statute as written. By its use of this language, the
Legislature created alternative elements to this crime. The concurrence and the majority
fail to recognize this and, in doing so, they fail to give effect to the Legislature’s intent.
3
466 Mich 335 (2002).
4
468 Mich 527 (2003).
4
Once it is clear that the concurrence is not properly reading the statute, its
criticisms of the Court of Appeals concurrence disintegrate. Judge Donofrio appropriately
recognized that the statute contains alternative elements. His subsequent analysis is
based on that fact. Because his reading of it raises interesting and important issues under
Cornell, the Court should grant leave to appeal in order to resolve them.
In the case of an alleged assault with intent to rob and steal while armed, the
prosecution may attempt to prove that a dangerous weapon was used. Then, the elements
of that crime and the crime of felonious assault are the same. But in a case that involves
an article that the accused is alleged to have pretended was a dangerous weapon, the
elements of the two crimes are not the same.5 It is the former situation that the Court is
called on to address in this case. And it is this concern that Judge Donofrio discussed in
his opinion.
Therefore, I dissent from the majority’s refusal to grant leave to appeal and from
the concurrence’s undue criticism of Judge Donofrio’s opinion. The Court should
address his well-stated concerns.
5
In the majority of cases, the prosecution will prove assault with intent to rob and steal
while armed by demonstrating that the defendant used a dangerous weapon. Nothing in
Cornell precludes most defendants from obtaining a jury instruction on felonious assault
simply because there are cases where the prosecution need not prove the use of a
dangerous weapon. I see no reason why this minority of cases should rob the majority of
cases in which the elements will be completely subsumed of the necessary lesser included
offense instruction. Cornell offers these protections in all other cases where the elements
are completely subsumed. Instead of avoiding the unusual issue presented by these
alternative elements to the crime, this Court should pay respect to the language chosen by
the Legislature. It should decide the effects of that language under Cornell.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 5, 2006 _________________________________________
l0502 Clerk