Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion
Opinion
Clifford W. Taylor
Chief Justice:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Justices:
Marilyn Kelly
Michael F. Cavanagh
Maura D. Corrigan
Elizabeth A. Weaver
Robert P. Young, Jr.
Marilyn Kelly
Stephen J. Markman
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED APRIL 26, 2006
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 128168
FRANK JAMES HAWTHORNE,
Defendant-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
PER CURIAM.
The issue in this case is whether a court’s failure to instruct on the defense
of accident requires automatic reversal of a defendant’s conviction where accident
was a central issue in the case. We hold that the failure to instruct on this defense
requires reversal only where the defendant satisfies the standard explicated in
People v Lukity, 460 Mich 484; 596 NW2d 607 (1999), and People v Rodriguez,
463 Mich 466, 474; 620 NW2d 13 (2000).1 In this case, defendant has not
established that the alleged error undermined the reliability of the verdict. We
therefore reverse the judgment of the Court of Appeals and reinstate defendant’s
convictions of second-degree murder, MCL 750.317; and possession of a firearm
during the commission of a felony, MCL 750.227b.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
The Court of Appeals summarized the underlying facts:
On the evening of October 18, 2002, defendant and [Dennis]
Jeffries met at an illegal gambling house and got into an argument
over a $5 bet. When the argument escalated, defendant walked out
of the room and returned with an automatic handgun. Two men tried
unsuccessfully to disarm defendant. Everyone present in the house
then ran for the exits, except for Vance Claxton, who watched the
encounter by peering around a wall. Jeffries said to defendant,
“What you going to do with the gun? We supposed to be family.
We supposed to be better than that. What, you going to shoot me?”
Jeffries then challenged defendant to a fight. When defendant
pressed the barrel of the gun into Jeffries’s chest, Jeffries grabbed
defendant’s wrist and pushed him against the wall. Claxton saw
defendant and Jeffries standing face-to-face and speaking while
Jeffries held defendant’s wrist and they waved the gun around,
pointing it in different directions. Defendant was trying to push the
gun toward Jeffries, and Jeffries was trying to push the gun away.
Claxton then looked away, and approximately two seconds later he
heard a gunshot and saw Jeffries fall to the ground.
About ten seconds after the shot, Claxton heard defendant
say, “Man, I’m sorry. You know I didn’t shoot you. The gun was
on safety. I’m sorry.” Defendant found Claxton hiding in the
bedroom and told him, “I shot Dennis by accident. Come apply
pressure to his chest.” Defendant told Claxton to call 911. With
defendant’s help, Claxton put Jeffries in a car. Claxton then drove
1
The case before us involves a preserved, nonconstitutional error. If the
defendant had failed to preserve the issue, the plain-error standard set forth in
People v Carines, 460 Mich 750; 597 NW2d 130 (1999), would govern.
2
Jeffries to the hospital. More than a month later, Jeffries died from
complications arising from the gunshot wound. [265 Mich App 47,
49-50; 692 NW2d 879 (2005).]
It is also noteworthy that before he started gambling, Jeffries had removed
a wad of $100 bills from his jacket and counted it. He then returned the money to
his jacket pocket and gambled with smaller denominations. When Jeffries’ jacket
and shirt were removed following the shooting, the money was missing from the
jacket.
Defendant was charged with first-degree premeditated murder, MCL
750.316; first-degree felony murder, MCL 750.316; and felony-firearm. The court
refused defendant’s request to read CJI2d 7.1, the standard jury instruction on
accident as a defense to murder. The court cited People v Morrin, 31 Mich App
301; 187 NW2d 434 (1971), and People v Hess, 214 Mich App 33; 543 NW2d
332 (1995), and stated that
under the authority of Hess and Morrin, if the accident occurred in
connection with some other unlawful act, because that’s the way I’m
reading those cases, then the accident defense is not available. It’s
not available in this setting. I think we talked about this in
chambers. Factually speaking, at a very minimum your client
committed a felonious assault by going into the living room, getting
a gun, bringing it into the dining room and pointing it at the victim
and threatening him.
Now, there may not have been an intent to pull the trigger.
The pulling of the trigger may have been an accident, but as I read
Hess and Morrin, you’re not entitled to the accident instruction
unless your client essentially has clean hands so to speak and was
not otherwise engaged in some other unlawful act. That’s why I
didn’t give it.
3
If the Court of Appeals says I was wrong about that, well, so
be it, but that’s the way I read those two cases.[2]
The jury found defendant guilty of second-degree murder, as a lesser
included offense of first-degree premeditated murder, and felony-firearm. The
Court of Appeals reversed the convictions, but urged this Court to review the
precedent that it believed required the reversal in light of Lukity. The Court of
Appeal stated: “Were we free to apply Lukity without regard to prior decisions of
the Supreme Court that suggest that the instructional error that occurred in this
2
The Court of Appeals did conclude that the trial court had misread these
cases, explaining:
However, neither Morrin nor Hess precludes a defendant
from receiving an instruction on accident as a defense to murder if
there is evidence that the defendant’s actions were criminally
negligent. Morrin and Hess merely explained that, for a defendant to
be completely excused from killing a person (i.e., to be acquitted of
all charges of murder, manslaughter, and careless, reckless, or
negligent discharge of a firearm causing death, etc.), the death must
be the result of an accident, and the defendant cannot have acted
with criminal negligence. Hess, supra at 38-39, held that accident is
not a defense to involuntary manslaughter, because involuntary
manslaughter is not an intent crime and accident is subsumed within
that offense. Thus, a defendant is only excused from involuntary
manslaughter if he did not act with criminal negligence. But the
defendant need not be free of criminal negligence to be excused
from a homicide charge that includes intent as one of its elements,
such as murder. Accident is a viable defense to murder even if the
defendant acted with criminal negligence. Neither Morrin nor Hess
held that a defendant cannot be excused from murder if the death
was an accident but was the result of the defendant’s criminal
negligence. [265 Mich App at 51-52.]
We agree with the Court of Appeals analysis.
4
case requires reversal, we would conclude that defendant did not establish a
miscarriage of justice and affirm his convictions.” 265 Mich App at 49.
The prosecutor filed an application for leave to appeal in this Court.
II. STANDARD OF REVIEW
The question whether the Lukity/Rodriguez standard applies to the failure to
instruct on the defense of accident is a question of law that we review de novo.
People v Young, 472 Mich 130, 135; 693 NW2d 801 (2005).
III. ANALYSIS
In finding that the trial court had erred in refusing to instruct on the defense
of accident, the Court of Appeals observed that the trial court had conceded that
“‘there may not have been an intent to pull the trigger. The pulling of the trigger
may have been an accident . . . .’” 265 Mich App at 52. The Court of Appeals
agreed with the trial court that evidence was presented to support the defense of
accident:
Defendant and Jeffries were struggling for control of the gun
when it discharged. After Jeffries was shot, defendant made
statements indicating that he was sorry and that he had fired the gun
accidentally. He also helped get medical attention for Jeffries. [Id.]
Further, the Court of Appeals opined that this Court’s decisions in People v
Lester, 406 Mich 252; 277 NW2d 633 (1979) (Lester II), and People v Ora Jones,
395 Mich 379; 236 NW2d 461 (1975), overruled on other grounds in People v
Cornell, 466 Mich 335, 357-358; 646 NW2d 127 (2002), along with several Court
5
of Appeals cases,3 mandate reversal for failure to give an accident instruction
where accident was a central issue in the case. The Court of Appeals concluded
that whether the shooting here was intentional or accidental was a central issue in
this case, and that the failure to instruct the jury with CJI2d 7.1 therefore
constituted error requiring reversal of defendant’s convictions under Lester II and
Ora Jones.
Nonetheless, the Court of Appeals urged this Court “to examine the
continued viability of Lester II and Ora Jones and their progeny in light of Lukity
and People v Carines, 460 Mich 750; 597 NW2d 130 (1999).” 265 Mich App at
56. The Court of Appeals stated:
Since Lester II and Ora Jones and their progeny were
decided, our Supreme Court has set forth specific criteria that must
be established before trial court error requires reversal. See
Carines, supra at 774. In Lukity, supra at 494, our Supreme Court
held that, to justify the reversal of a conviction in the case of
preserved, nonconstitutional error, the defendant has the burden of
establishing that the error asserted resulted in a miscarriage of justice
under a “more probable than not” standard. We conclude that
application of Lukity to the present case would result in a different
outcome than that reached in Lester II and Ora Jones and their
progeny. In those pre-Lukity decisions, the courts did not place the
burden on the defendants to establish that the errors required
reversal. We conclude that the facts presented in this case fail to
establish error requiring reversal under the Lukity standard. The jury
instructions explaining the intent element of murder made it clear
that a finding of accident would be inconsistent with a finding that
defendant possessed the intent required for murder. Accordingly,
were we not bound by Lester II and Ora Jones, we would conclude
that defendant cannot demonstrate that it is more probable than not
3
See People v Glover, 154 Mich App 22; 397 NW2d 199 (1986); People v
Newman, 107 Mich App 535; 309 NW2d 657 (1981); People v Stanley Jones, 69
Mich App 459; 245 NW2d 91 (1976).
6
that the trial court’s failure to give the instruction on accident was
outcome determinative. Lukity, supra at 496. [265 Mich App at 56-
57.]
We agree with the Court of Appeals assessment that the Lukity standard
should apply in this case. This Court has previously applied Lukity in reviewing a
trial court’s refusal to instruct on a defense theory.
In Rodriguez, supra, the trial court failed to instruct the jury regarding a
statutory tax exemption. We explained that “‘when a jury instruction is requested
on any theories or defenses and is supported by evidence, it must be given to the
jury by the trial judge.’” Rodriguez, supra at 472 (citation ommitted). Because
the statutory exemption would have applied if the jury had believed the evidence
introduced by the defendant, we concluded that the trial court had erred in failing
to give the requested instruction.
We did not, however, treat this error as subject to automatic reversal.
Rather, we considered whether the error was harmless. We explained that
“nonconstitutional preserved error is evaluated under the standard set forth in”
Lukity. Id. at 473. Under Lukity, the defendant has the burden to demonstrate that
a preserved, nonconstitutional error resulted in a miscarriage of justice. MCL
769.26 sets forth a presumption that such an error does not warrant reversal
“unless ‘after an examination of the entire cause, it shall affirmatively appear’ that
it is more probable than not that the error was outcome determinative.” Lukity,
supra at 496 (quoting MCL 769.26). “‘An error is deemed to have been “outcome
determinative” if it undermined the reliability of the verdict.’” Rodriguez, supra at
7
474, quoting People v Elston, 462 Mich 751, 756; 614 NW2d 595 (2000), quoting
People v Snyder, 462 Mich 38, 45; 609 NW2d 831 (2000).
Similarly, in People v Riddle, 467 Mich 116; 649 NW2d 30 (2002), we
applied the Lukity/Rodriguez standard to the failure to instruct on the defense
theory that the defendant was not required to retreat before exercising deadly force
in self-defense. We explained:
A criminal defendant is entitled to have a properly instructed
jury consider the evidence against him. [Rodriguez, supra at 472];
People v Mills, 450 Mich 61, 80-81; 537 NW2d 909 (1995). When a
defendant requests a jury instruction on a theory or defense that is
supported by the evidence, the trial court must give the instruction.
Rodriguez, supra at 472-473; Mills, supra at 81. However, if an
applicable instruction was not given, the defendant bears the burden
of establishing that the trial court’s failure to give the requested
instruction resulted in a miscarriage of justice. MCL 769.26;
Rodriguez, supra at 473-474; [Lukity, supra at 493-494]. [Riddle,
supra at 124-125.]
Our decisions in Rodriguez and Riddle make plain that the Lukity standard
governs an appellate court’s determination regarding whether a failure to instruct
on a defense theory requires reversal. As the Court of Appeals in this case
correctly observed, Lester II and Ora Jones and their progeny fail to adhere to the
standard set forth in Lukity and mandated by MCL 769.26. We therefore overrule
those decisions to the extent they are inconsistent with our decision in this case.4
4
We note that rules of automatic reversal are disfavored. People v Graves,
458 Mich 476, 481; 581 NW2d 229 (1998); People v Belanger, 454 Mich 571,
575; 563 NW2d 665 (1997); People v Pickens, 446 Mich 298, 346; 521 NW2d
797 (1994); People v Grant, 445 Mich 535, 543; 520 NW2d 123 (1994); People v
McCline, 442 Mich 127, 134 n 10; 499 NW2d 341 (1993); People v Mosko, 441
Mich 496, 502; 495 NW2d 534 (1992).
(continued…)
8
We can discern no principled reason why the failure to instruct on the defense of
accident should be reviewed under a different standard than the defense theories at
issue in Rodriguez and Riddle.
In deciding whether to overrule a precedent, we consider (1) whether the
earlier decision was wrongly decided and (2) whether practical, real-world
dislocations would arise from overruling the decision. Robinson v Detroit, 462
Mich 439, 464-466; 613 NW2d 307 (2000). As discussed, we believe that Lester
II and Ora Jones were wrongly decided because their holdings create essentially a
rule of automatic reversal, which is inconsistent with the text of MCL 769.26 and
our decisions in Lukity, Rodriguez, and Riddle.5
Moreover, we can discern no practical, real-world dislocations that would
arise from overruling Lester II and Ora Jones. Those decisions “have not become
(…continued)
We reject the dissent’s claim that our opinion today is inconsistent with
People v Silver, 466 Mich 386; 646 NW2d 150 (2002). The majority’s opinion in
that case did not purport to create a rule of automatic reversal. Rather, properly
read, it is a case where the majority determined that the failure to instruct the jury
regarding a necessarily lesser included offense undermined the reliability of that
defendant’s conviction.
5
See, e.g., People v Tucker, 469 Mich 903 (2003), where we stated:
The Court of Appeals correctly applied the analysis found in
People v Carines, 460 Mich 750 [597 NW2d 130] (1999), as the
plain error rule of Carines, supra, has superseded the automatic
reversal rule of People v Smith, 396 Mich 109 [240 NW2d 202]
(1976).
See, also, People v Young, 472 Mich 130, 142; 693 NW2d 801 (2005),
where we overruled the automatic reversal rule of People v McCoy, 392 Mich 231;
220 NW2d 456 (1974), because it contradicted MCL 769.26 and MCL 768.29.
9
so embedded, accepted or fundamental to society’s expectations that overruling
them would produce significant dislocations.” Robinson, supra at 466. It is
apparent that defendant did not act in reliance on Lester II and Ora Jones when he
produced an automatic handgun and pointed it at the victim. If anything, his
awareness of such decisions would have arisen only after the shooting and the
filing of charges against him. “Such after-the-fact awareness does not rise to the
level of a reliance interest because to have reliance the knowledge must be of the
sort that causes a person or entity to attempt to conform his conduct to a certain
norm before the triggering event. Such a situation does not exist here.” Robinson,
supra at 466-467.
In addition, failing to overrule Lester II and Ora Jones would produce
inconsistent rules regarding whether the failure to instruct on a defense theory
requires reversal. As we held in Rodriguez and Riddle, such an error requires
reversal only where the defendant has met the burden of establishing that the error
undermined the reliability of the verdict. The decisions in Rodriguez and Riddle
conform to the plain language of MCL 769.26, and “it is to the words of the statute
itself that a citizen first looks for guidance in directing his actions.” Robinson,
supra at 467.
Thus, if the words of the statute are clear, the actor should be
able to expect, that is, rely, that they will be carried out by all in
society, including the courts. In fact, should a court confound those
legitimate citizen expectations by misreading or misconstruing a
statute, it is that court itself that has disrupted the reliance interest.
When that happens, a subsequent court, rather than holding to the
distorted reading because of the doctrine of stare decisis, should
overrule the earlier court’s misconstruction. [Id.]
10
Applying the Lukity/Rodriguez standard to this case, we agree with the
Court of Appeals conclusion that defendant has not met his burden of
demonstrating that the failure to instruct on the accident defense undermined the
reliability of the verdict. As the Court of Appeals explained, “[t]he jury
instructions explaining the intent element of murder made it clear that a finding of
accident would be inconsistent with a finding that defendant possessed the intent
required for murder.” 265 Mich App at 57. Further, the jury was instructed
regarding the lesser offense of statutory involuntary manslaughter, MCL 750.329,6
but instead concluded that defendant was guilty of second-degree murder. If the
jury had any doubts regarding whether defendant had the requisite malice for
second-degree murder, it could have convicted him of statutory involuntary
manslaughter, which does not require a finding of malice. The jury instead found
that defendant possessed a mental state that was greater than simply intentionally
pointing a weapon at the victim.
On the facts of this case, we conclude that defendant has not met his burden
of demonstrating that the error affected the outcome of the proceedings. We
6
MCL 750.329, at the time relevant to this case, provided:
. . . 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.
11
therefore reverse the judgment of the Court of Appeals and reinstate defendant’s
convictions.
Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
12
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 128168
FRANK JAMES HAWTHORNE,
Defendant-Appellee.
_______________________________
KELLY, J. (dissenting).
The issue before the Court is whether we should disregard 30 years of
Michigan law and overrule People v Lester1 and People v Ora Jones2 in light of
People v Lukity,3 and People v Rodriguez.4 I dissent from the majority’s decision
to do so, and I would affirm the judgment of the Court of Appeals.
LESTER AND ORA JONES
Whenever the question whether there was an accident is central to a
criminal case, a court’s failure to instruct the jury on the defense of accident
1
406 Mich 252; 277 NW2d 633 (1979).
2
395 Mich 379; 236 NW2d 461 (1975), overruled on other grounds in
People v Cornell, 466 Mich 335, 357-358; 646 NW2d 127 (2002).
3
460 Mich 484; 596 NW2d 607 (1999).
4
463 Mich 466; 620 NW2d 13 (2000).
requires automatic reversal. Lester and Ora Jones established this law many years
ago, and I would not overrule it.
These two decisions recognize that a defendant is entitled to have the jury
weighing the evidence against him or her be properly instructed. They also
recognize the difficulty a defendant has in meeting a “harmless error” standard of
review in the event of an instructional mistake.
To prove that the failure to give an instruction on the defense of accident
was not harmless, the defendant must be able to prove the jury’s thought process.
Yet, it is nearly impossible for anyone not in the jury room to know how a jury
reached its verdict. Hence, it is one of the most basic tenets of our judicial system
that a court cannot attempt to journey behind a jury’s verdict or into the jury room.
Lukity, supra at 509 (Cavanagh J., dissenting).
THE FIRST PRONG OF ROBINSON
The majority’s decision in this case represents a rejection of precedent. In
Robinson v Detroit,5 we articulated a two-part test for determining when it is
proper for the Court to do so. A simplified statement of the test is this: it is proper
to overrule a decision if (1) the case was wrongly decided and (2) there has not
been extensive reliance on the decision so that striking down the precedent would
not produce practical real-world dislocations. Robinson, supra at 466.
5
462 Mich 439; 613 NW2d 307 (2000).
2
In applying this test, we first ask whether Lester and Ora Jones were
wrongly decided. The majority finds that they were. It opines that they are
inconsistent with § 26 of the Code of Criminal Procedure, MCL 769.26, and
People v Lukity and People v Rodriguez, cases decided many years later.
MCL 769.26 “controls judicial review of preserved, nonconstitutional
error.” Lukity, supra at 495. The question becomes whether Lester and Ora Jones
are inconsistent with MCL 769.26, which has remained unchanged since it became
effective in 1927. It provides:
No judgment or verdict shall be set aside or reversed or a new
trial be granted by any court of this state in any criminal case, on the
ground of misdirection of the jury, or the improper admission or
rejection of evidence, or for error as to any matter of pleading or
procedure, unless in the opinion of the court, after an examination of
the entire cause, it shall affirmatively appear that the error
complained of has resulted in a miscarriage of justice.
This statute places the burden on the defendant to prove that a miscarriage
of justice occurred. Lukity stated that what a defendant must prove is that more
probably than not a preserved nonconstitutional error influenced the outcome of
the trial. Lukity, supra at 495.
It is my belief that Lester and Ora Jones do not conflict with MCL 769.26.
Rather, they recognize that the failure to give the instruction where accident is a
central issue results in a miscarriage of justice and undermines the reliability of the
verdict. Because the error undermines the reliability of the verdict, it cannot be
harmless. People v Krueger, 466 Mich 50, 54; 643 NW2d 223 (2002). The right
to a properly instructed jury is fundamental to a criminal trial. Without the basic
3
protection provided in Lester and Ora Jones, many criminal trials in this state
would fail utterly to serve as a reliable vehicle for determining guilt. Arizona v
Fulminante, 499 US 279, 310; 111 S Ct 1246; 113 L Ed 2d 302 (1991).
THE SECOND PRONG OF ROBINSON
This Court decided Ora Jones in 1975. The rule expressed there has been
followed by numerous decisions of the Court of Appeals.6 Yet, the majority
insists that it has not become embedded or fundamental to societal expectations,
that overruling it would not produce significant real-world dislocations. Surely 30
years of reliance creates a presumption that the rule in Ora Jones has become
fundamental to our system of justice.
The majority states that “defendant did not act in reliance on Lester [] or
Ora Jones when he produced an automatic handgun and pointed it at the victim.”
Ante at 10. This characterization of the test for determining whether overruling
precedent produces significant real-world dislocations is obviously ridiculous
6
E.g., People v Swaizer, unpublished opinion per curiam of the Court of
Appeals, issued June 16, 2005 (Docket No. 253443); People v Brandt,
unpublished opinion per curiam of the Court of Appeals, issued January 16, 2001
(Docket No. 218588); People v Fugate, unpublished opinion per curiam of the
Court of Appeals, issued January 19, 1999 (Docket No. 204109); In re Evans,
unpublished opinion per curiam of the Court of Appeals, issued February 27, 1998
(Docket No. 203019); People v Glover, 154 Mich App 22; 397 NW2d 199 (1986);
People v Peery, 119 Mich App 207; 326 NW2d 451 (1982); People v Owens, 108
Mich App 600; 310 NW2d 819 (1981); People v Newman, 107 Mich App 535;
309 NW2d 657 (1981); People v Ritsema, 105 Mich App 602; 307 NW2d 380
(1981); People v Martin, 100 Mich App 447; 298 NW2d 900 (1980); People v
Morris, 99 Mich App 98; 297 NW2d 623 (1980); People v Stanley Jones, 69 Mich
App 459; 245 NW2d 91 (1976).
4
when applied to precedent of the type involved here. However, it is not far-
fetched to say that defendant knew that someone might be accidently shot during
his skirmish with Jeffries. He was entitled to rely on the fact that the judge would
tell the jury that his defense was that there had been an accident.
In addition, defense counsel had an embedded expectation that if he
presented evidence of an accident at trial, the court would instruct the jury on that
defense. But there is another major disruption to the justice system caused by the
overturining of Lester and Ora Jones: Now an innocent defendant can be
convicted if unable to carry the enormous burden of proving a different outcome
but for the judge’s failure to give an accident instruction.
In summary, Lester and Ora Jones do not contradict MCL 769.26.
Moreover, the majority cannot gainsay that dislocations will arise after 30 years of
reliance on Ora Jones by the courts of this state.
APPLICATION OF LUKITY
Notwithstanding my belief that the error involved in this case always
requires automatic reversal, the majority’s ruling in Lukity requires it.
The majority in this case was the same majority in Lukity. It states that the
failure here to instruct the jury on Frank Hawthorne’s accident defense did not
undermine the reliability of the verdict against him. It relies on the fact that the
court instructed the jury on statutory involuntary manslaughter.
The majority hypothesizes that the jury had no doubts about defendant’s
guilt of second-degree murder. Otherwise, it reasons, the jury would have
5
convicted defendant of statutory involuntary manslaughter. The majority believes
that, because the jury found that defendant’s intent was not simply to point a
weapon at the victim, the jury would have disregarded an accident defense
instruction. That is sheer guesswork.
Only four years ago, this Court rejected the very logic used by the majority
now. People v Silver, 466 Mich 386; 646 NW2d 150 (2002). 7 Silver held that it
was not harmless error for the trial court to fail to instruct the jury on a lesser
included offense. It reasoned that “[n]ot to give [the jurors] an instruction that
allowed them to agree with defendant’s view of the events . . . undermines the
reliability of the verdict” and violates MCL 768.32(1). Id. at 393. The majority
does not and cannot reconcile its opinion here with its pronouncement in Silver.8
It is undisputed that, at various points throughout the trial in this case,
defendant presented evidence that the shooting was an accident. Even so, the trial
court failed to give defendant’s requested accident instruction. As in Silver,
defendant was thereby deprived of a jury instruction on his view of the events.
7
There are several concurring and dissenting opinions in Silver. Justices
Taylor, Young, Cavanagh, and I comprised the majority. We agreed that the same
logic that the majority uses in this case is improper.
8
The majority argues that this case does not conflict with Silver because the
automatic reversal rule was not involved in Silver. The argument is unpersuasive.
In Silver, the failure to properly instruct the jury on the defendant’s version of
events was enough to undermine the jury’s verdict. That same failure to properly
instruct equally undermines the jury’s verdict in this case, making the error
anything but harmless.
6
Therefore, just as in Silver, the failure here to give the instruction undermined the
reliability of the verdict.
This is emphasized by the majority’s supposition about the rationale used
by the jury in its verdict. Such a guessing game is inconsistent with this Court’s
precedent and the general concept of fair proceedings as recognized in Lukity and
People v Carines, 460 Mich 750; 597 NW2d 130 (1999).
CONCLUSION
I would not overrule the 30 years of precedent laid down by Lester and Ora
Jones. Neither of these cases is inconsistent with MCL 769.26. Also, I would
find that defendant met his burden of showing that the trial court’s failure to
instruct the jury on the accident defense undermined the reliability of the verdict.
The Court of Appeals judgment should be affirmed.
Marilyn Kelly
Cavanagh, J., would deny leave to appeal.
Michael F. Cavanagh
7