Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JUNE 20, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 120630
RICHARD J. MENDOZA,
Defendant-Appellee.
________________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
Defendant was charged with first-degree murder, MCL
750.316, but convicted by a jury of second-degree murder, MCL
750.317. The Court of Appeals reversed defendant’s conviction
and remanded the case for a new trial, reasoning that the
trial court erred when it declined to give an involuntary
manslaughter instruction. This Court granted leave to appeal
to consider whether manslaughter is an “inferior” offense of
murder under MCL 768.32(1), and if so, whether a rational view
of the evidence supported an instruction in this case.
We conclude that manslaughter is an inferior offense of
murder. However, an involuntary-manslaughter instruction was
not appropriate in this case because a rational view of the
evidence did not support it. Accordingly, we reverse the
judgment of the Court of Appeals and reinstate defendant’s
conviction. To the extent that People v Van Wyck, 402 Mich
266; 262 NW2d 638 (1978), and its progeny conflict with this
opinion, they are overruled.
I. FACTS AND PROCEDURAL HISTORY
Defendant and codefendant Ivan Tims visited the home of
victim William Stockdale and Stockdale’s nephew, Thurman
Chillers, with the intent to purchase marijuana. Tims
initially waited outside in the car while defendant discussed
the price of the drugs with Stockdale and Chillers in the
house. Agreeing on a price, defendant indicated to Stockdale
that he had to return to the car to get additional money.
When defendant returned to the house, he was accompanied by
Tims. Both men brandished handguns.
Chillers testified that, upon entering the home,
defendant instructed Tims to “shoot him.” In response, Tims
alternately pointed his gun at Chillers and Stockdale.
Stockdale, in turn, rushed at defendant, grabbed defendant’s
gun and swung it downwards. Chillers ran out of the house.
2
As he ran, he saw Stockdale “tussling” with defendant.
Chillers further testified that he heard one shot while he was
in the house and four or five more shots when he was outside.
In the end, Stockdale was shot twice, once in the leg and once
in the chest. The chest wound proved fatal.
Defendant was charged with first-degree murder, MCL
750.316, and possession of a firearm during the commission of
a felony, MCL 750.227b. His defense was that Tims shot
Stockdale. Defendant elicited testimony from various
witnesses establishing that defendant was not in the house
when the victim was fatally wounded and that the fatal bullet
came from a gun traceable to Tims.
At the close of proofs, defendant requested instructions
for voluntary and involuntary manslaughter, MCL 750.321, and
careless, reckless, or negligent discharge of a firearm, MCL
752.861. The trial court denied the requests and instructed
the jury on first-degree murder, MCL 750.316, and second
degree murder, MCL 750.317. Defendant was convicted of
second-degree murder and felony-firearm.
The Court of Appeals reversed defendant’s conviction and
remanded the case for a new trial. The panel treated the
manslaughter-instruction requests as requests for instructions
on a “cognate” lesser included offense and concluded that the
trial court erred in refusing to give the involuntary
3
manslaughter instruction because there was evidence from which
the jury could conclude that the victim’s death was unintended
and occurred while defendant was engaged in an unlawful act
not amounting to a felony. Slip op at 2.
The prosecutor applied for leave to appeal.1 We granted
leave to consider whether manslaughter is an inferior offense
of murder within the meaning of MCL 768.32 and, if so, whether
an involuntary-manslaughter instruction was supported by a
rational view of the evidence.
II. STANDARD OF REVIEW
Whether manslaughter is an inferior offense of murder
within the meaning of MCL 768.32 is a question of law that the
Court reviews de novo. Weakland v Toledo Engineering Co, 467
Mich 344, 347; 656 NW2d 175 (2003).
III. ANALYSIS
A. MCL 768.32
MCL 768.32 governs inferior-offense instructions.
Subsection 1 provides in pertinent part:
. . .[U]pon 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
1
Defendant did not cross-appeal to challenge the judgment
of the Court of Appeals affirming the trial court’s decision
not to give instructions on voluntary manslaughter or careless
use of a firearm.
4
of that offense inferior to that charged in the
indictment, or of an attempt to commit that
offense.
We recently examined this statute in People v Cornell,
466 Mich 335; 646 NW2d 127 (2002).2 In Cornell, the Court
considered whether necessarily included lesser offenses3 and
cognate lesser included offenses4 were “inferior” offenses
under MCL 768.32. In consideration of this issue, we examined
the meaning of the word “inferior”:
“We believe that the word ‘inferior’ in [MCL
768.32] 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
2
The dissent criticizes the construction of MCL 768.32
set forth in Cornell, arguing that the Court should apply the
dictionary definition of “inferior.”
We are confident that we applied the appropriate canon of
statutory construction in construing MCL 768.32 by giving
“inferior offense” its common-law meaning when it was codified
by the Legislature. See Pulver v Dundee Cement Co, 445 Mich
68, 75; 515 NW2d 728 (1994)(“words and phrases that have
acquired a unique meaning at common law are interpreted as
having the same meaning when used in statutes dealing with the
same subject”).
3
Necessarily included lesser offenses are offenses in
which the elements of the lesser offense are completely
subsumed in the greater offense. Cornell, supra at 356.
4
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. Cornell, supra at 344.
5
App 411, 419-420; 564 NW2d 149 (1997)].
Relying on this definition of “inferior,” this Court
concluded that MCL 768.32 only permitted consideration of
necessarily included lesser offenses. Cornell, supra at 353
354. Thus, we held that an inferior-offense instruction is
appropriate only if the lesser offense is necessarily included
in the greater offense, meaning, all the elements of the
lesser offense are included in the greater offense, and a
rational view of the evidence would support such an
instruction.5 Id. at 357.
5
The dissent criticizes the majority opinion for adopting
“obiter dictum” from Cornell to conclude that inferior
offenses are limited to necessarily included lesser offenses.
We disagree with this mischaracterization of Cornell’s
analysis.
In Cornell, the Court was charged with the task of
construing MCL 768.32(1), because MCL 768.32(1) governs when
instructions are given for “inferior” offenses. To that end,
we expressly adopted Justice COLEMAN ’s dissent in Jones, infra,
which would foreclose consideration of cognate lesser included
offenses. Cornell, supra at 353. See also Cornell, supra at
356 n 9, in which we state, “as we have already explained, the
wording of MCL 768.32 also limits consideration of lesser
offenses to necessarily included lesser offenses.” We then
expressly held that a requested instruction on a necessarily
included lesser offense is proper if the charged greater
offense requires a jury to find a disputed factual element
that is not part of the lesser offense and a rational view of
the evidence would support it. Id. at 357.
Accordingly, we disagree with the dissent’s
characterization of the Cornell analysis as “obiter dictum.”
Rather, the Cornell discussion of the limits of MCL 768.32 was
central to our construction of the statute and thus central to
the resolution of the issues before the Cornell Court.
6
B. MANSLAUGHTER IS AN INFERIOR OFFENSE OF MURDER
Manslaughter is an inferior offense of murder because
manslaughter is a necessarily included lesser offense of
murder.
1. THE ELEMENTS OF COMMON -LAW MURDER AND MANSLAUGHTER
Common-law murder encompasses all killings done with
malice aforethought and without justification or excuse.
People v Scott, 6 Mich 287, 292-293 (1859). See also People
v Potter, 5 Mich 1, 6 (1858)(“Murder is where a person of
sound memory and discretion unlawfully kills any reasonable
creature in being, in the peace of the state, with malice
prepense or aforethought, either express or implied.”).
First-degree murder is defined in MCL 750.316.6 All
6
MCL 750.316 provides in pertinent part:
(1) A person who commits any of the following
is guilty of first degree murder and shall be
punished by imprisonment for life:
(a) Murder perpetrated by means of poison,
lying in wait, or any other willful, deliberate,
and premeditated killing.
(b) Murder committed in the perpetration of,
or attempt to perpetrate, arson, criminal sexual
conduct in the first, second, or third degree,
child abuse in the first degree, a major controlled
substance offense, robbery, carjacking, breaking
and entering of a dwelling, home invasion in the
first or second degree, larceny of any kind,
extortion, or kidnapping.
(c) A murder of a peace officer or a corrections
7
other murders are murders in the second degree. MCL 750.317.
See also People v Goecke, 457 Mich 442, 463-464; 579 NW2d 868
(1998), which enumerated the elements of second-degree murder
as (1) death, (2) caused by defendant’s act, (3) with malice,
and (4) without justification.
Manslaughter is murder without malice. See Potter, supra
at 9 (noting that without malice aforethought, “a killing
would be only manslaughter, if criminal at all”). See also
People v Palmer, 105 Mich 568, 576; 63 NW 656 (1895),
remarking:
“Manslaughter is perfectly distinguishable
from murder, in this: That though the act that
causes death be unlawful or willful, though
attended with fatal results, yet malice, either
expressed or implied, which is the very essence of
murder, is to be presumed to be wanting in
manslaughter.” [Quoting the trial court jury
instructions.]
The common law recognizes two forms of manslaughter: voluntary
officer committed while the peace officer or
corrections officer is lawfully engaged in the
performance of any of his or her duties as a peace
officer or corrections officer, knowing that the
peace officer or corrections officer is a peace
officer or corrections officer engaged in the
performance of his or her duty as a peace officer
or corrections officer.
Although first-degree murder is defined by statute, the
statute is understood to include the common-law definition of
murder. See People v Riddle, 467 Mich 116, 125-126; 649 NW2d
30 (2002). See also People v Utter, 217 Mich 74, 86; 185 NW
830 (1921).
8
and involuntary. People v Townes, 391 Mich 578, 589; 218 NW2d
136 (1974).
Common-law voluntary manslaughter is defined as:
[T]he 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
. . . .[Maher v People, 10 Mich 212, 219 (1862).]
See also Townes, supra at 590 (“A defendant properly convicted
of voluntary manslaughter is a person who has acted out of a
temporary excitement induced by an adequate provocation and
not from the deliberation and reflection that marks the crime
of murder.”). Thus, to show voluntary manslaughter, one must
show that the defendant killed in the heat of passion, the
passion was caused by adequate provocation, and there was not
a lapse of time during which a reasonable person could control
his passions. See People v Pouncey, 437 Mich 382, 389; 471
NW2d 346 (1991).7 Significantly, provocation is not an
element of voluntary manslaughter. See People v Moore, 189
7
In addition to common-law manslaughter, the Legislature
has also determined that manslaughter shall exist in several
other circumstances. See, e.g., MCL 750.322 (the willful
killing of an unborn child by injury to its mother), MCL
750.323 (the killing of a quick child by use of medicine or an
instrument, and MCL 750.329 (a killing committed without
malice by means of an intentionally aimed firearm).
9
Mich App 315, 320; 472 NW2d 1 (1991). Rather, provocation is
the circumstance that negates the presence of malice. Scott,
supra at 295.
Involuntary manslaughter is the unintentional killing of
another, without malice, during the commission of an unlawful
act not amounting to a felony and not naturally tending to
cause great bodily harm; or during the commission of some
lawful act, negligently performed; or in the negligent
omission to perform a legal duty. See Townes, supra at 590.
See also People v Helfin, 434 Mich 482, 507-508; 456 NW2d 10
(1990)(opinion by RILEY , C.J.).
2. THE SOLE ELEMENT DISTINGUISHING MANSLAUGHTER AND MURDER IS MALICE
An examination of the historical development of homicide
law informs this Court that manslaughter is a necessarily
included lesser offense of murder because the elements of
manslaughter are included in the offense of murder.
a. HOMICIDE IN ENGLISH COMMON LAW
In early English common law, a killing was either
justifiable homicide; excusable murder committed by
misadventure or accident, or in self-defense; or capital
murder, characterized by “malice aforethought” and punishable
by death. See 2 Pollock and Maitland, The History of English
Law (Cambridge: University Press, 1952), ch VIII, Crime and
Tort, § 2, p 485. However, during the fourteenth and
10
fifteenth centuries, an exemption called the “benefit of
clergy” was widely used as a device to mitigate mandatory
death sentences. Hall, Legal fictions and moral reasoning:
Capital punishment and the mentally retarded defendant after
Penry v Johnson, 35 Akron L R 327, 353 (2002).
The “benefit of clergy” was an exemption that allowed an
offender to be sentenced by the ecclesiastical courts, which
did not impose capital punishment.8 Though it was initially
intended to benefit clergy, it also benefitted persons who
could satisfy its literacy test. See Kealy, Hunting the
dragon: Reforming the Massachusetts murder statute, 10 B U Pub
Int L J 203, 205-206 (2001). Thus, it was not long before
persons other than clerics claimed the exemption, so that the
“benefit of clergy” exemption benefitted anyone who could
read. See Justice Harlan’s discussion in McGautha v
California, 402 US 183, 197; 91 S Ct 1454; 28 L Ed 2d 711
(1971), noting that although all criminal homicides were prima
facie capital cases, the “benefit of clergy” was available to
almost any man who could read.
In response to the exemption’s widespread availability,
statutes were passed throughout the fifteenth and sixteenth
8
The “benefit of clergy” was a political compromise
between the state and the church, intended to ensure errant
clerics who were convicted in the royal court were turned over
to the ecclesiastical courts for sentencing.
11
centuries proclaiming the exemption unavailable for homicides
committed under particularly reviled circumstances,
collectively termed “murder with malice aforethought.”
Moreland, The Law of Homicide (Indianapolis: The Bobbs-Merrill
Co, Inc, 1952), ch 2, The Development of Malice Aforethought,
p 9. The “benefit of clergy” remained available, however, for
offenders convicted of less culpable homicides. Id.
Thereafter, unjustified and unexcused homicide was divided
into two separate crimes: “wilful murder of malice
aforethought”, a capital offense for which the “benefit of
clergy” was unavailable, and manslaughter. Plucknett, A
Concise History of the Common Law (New York: The Lawyers Co-
Operative Pub Co, 1927), ch 2, The Felonies, pp 395-396. The
critical difference between murder and manslaughter was the
presence or absence of “malice aforethought.” Moreland, supra
at 10.
b. “MALICE AFORETHOUGHT ”
The phrase “malice aforethought” has evolved over the
centuries. During the late fifteenth and early sixteenth
centuries, “malice aforethought” meant that one possessed an
intent to kill well in advance of the act itself. Id. at 10.
Notably, the emphasis was on “aforethought,” so that the
critical difference between capital and noncapital murder was
the passage of time between the initial formulation of the
12
intent to kill and the act itself. Moylan, Criminal Homicide
Law (Maryland Institute for Continuing Professional Education
of Lawyers), ch 2, § 2.7. The term “malice” alone had little
significance beyond meaning an intent to commit an unjustified
and unexcusable killing. Id. The purpose of the “malice
aforethought” element was to distinguish between deliberate,
calculated homicides and homicides committed in the heat of
passion. Kealy, supra at 206.
As more and more defendants claimed they lacked an intent
to kill before the act was committed, juries and courts
increasingly rejected this argument. The result was a case
by-case “semantic erosion” of the term “aforethought,” until
“malice aforethought” meant nothing more than the intent to
kill had to exist at the time the act was committed. Perkins
& Boyce, Criminal Law (3rd ed), Murder, § 1, p 58 (“[a]s case
after case came before the courts for determination . . .
there came to be less and less emphasis upon the notion of a
well-laid plan. And at the present day, the only requirement
in this regard is that it must not be an afterthought”).
There was, consequently, a parallel erosion of the distinction
between capital murder, for which aforethought was required,
and noncapital homicide, for which it was not.
Interestingly, although the English courts grew weary of
the oft abused “lack of aforethought” defense, it was
13
nevertheless evident that there was still some interest in
distinguishing between a homicide committed in “cold-blood”
and one committed under circumstances that mitigated one’s
culpability. To express this distinction, the focus shifted
from “aforethought” to “malice.” Moreland, supra at 11
(“[t]he law of homicide seems thus to have now progressed from
a place where the mental element was of no importance to a
place where at the beginning of the seventeenth century it had
become a factor of prime importance”).
Because there was a need to distinguish the most serious
homicide from the rest, and because “aforethought” no longer
had legal significance, malice evolved from being merely an
intent to kill to also evidencing the absence of mitigating
circumstances. Moylan, supra at § 2.7. Consequently, the
presence of malice became both synonymous with the absence of
mitigating circumstances and the sole element distinguishing
murder from manslaughter.
We glean from our examination of manslaughter’s
historical development that manslaughter is defined to reflect
the absence of malice. Thus, the only element distinguishing
murder from manslaughter is malice.
3. MANSLAUGHTER IS A NECESSARILY LESSER INCLUDED OFFENSE OF MURDER
A necessarily lesser included offense is an offense whose
elements are completely subsumed in the greater offense.
14
Cornell, supra at 356.
Regarding voluntary manslaughter, both murder and
voluntary manslaughter require a death, caused by defendant,
with either an intent to kill, an intent to commit great
bodily harm, or an intent to create a very high risk of death
or great bodily harm with knowledge that death or great bodily
harm was the probable result. However, the element
distinguishing murder from manslaughter–malice–is negated by
the presence of provocation and heat of passion. See Scott,
supra at 295. Thus, we conclude, the elements of voluntary
manslaughter are included in murder, with murder possessing
the single additional element of malice.
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,
15
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.
Accordingly, we hold the elements of voluntary and
involuntary manslaughter are included in the elements of
murder. Thus, both forms of manslaughter are necessarily
included lesser offenses of murder. Because voluntary and
involuntary manslaughter are necessarily included lesser
offenses, they are also “inferior” offenses within the scope
of MCL 768.32. Consequently, when a defendant is charged with
murder, an instruction for voluntary and involuntary
manslaughter must be given if supported by a rational view of
the evidence. Cornell, supra.
4. TODAY ’S HOLDING IS CONSISTENT WITH EARLY MICHIGAN COMMON LAW
Today’s holding is consistent with our courts’ historical
understanding of the law of murder. Michigan courts have
historically concluded that a manslaughter instruction is
16
appropriate on a murder charge if a manslaughter instruction
is supported by a rational view of the evidence. See, e.g.,
Hanna v People, 19 Mich 316, 321 (1869)(in consideration of
MCL 768.32's similarly worded predecessor, “without this
provision, the common law rule would, under the statute,
dividing murder into degrees, have authorized a conviction not
only for murder in the second degree, but for manslaughter
also, under an indictment for murder in the first degree, all
these being felonies included in the charge”)(emphasis added).
See People v Treichel, 229 Mich 303, 307-308; 200 NW 950
(1924), stating:
This Court has repeatedly held, where the
charge as laid includes murder in the first degree,
and the proofs establish such degree, and no lesser
degree, it is not error for the court to instruct
the jury that, in order to convict, murder in the
first degree must be found. But this court has not
held, under a charge like here laid, the court must
instruct the jury to find murder in the first
degree or acquit. Whether such an instruction may
be given or not depends upon the evidence.
[Emphasis in original.]
[In this case, the] information charged murder
in the first and second degrees, and this was
inclusive of manslaughter. The evidence left it
open for the jury to find defendants guilty of
manslaughter.
See also People v Droste, 160 Mich 66, 78-79; 125 NW 87
(1910)(concluding that the trial court was “clearly warranted”
in instructing the jury on manslaughter in a murder case
because a jury could have concluded there was sufficient
17
intoxication or passion to “rob [defendant’s] act of the
necessary elements of murder”); People v Andrus, 331 Mich 535,
546-547; 50 NW2d 310 (1951)(remarking that it was proper for
the court to submit the lesser included offenses of second
degree murder and manslaughter because the evidence was
sufficient to support the offense).
It was not until this Court overlooked MCL 768.32, and
introduced “cognate” lesser included offenses, that the
relationship between manslaughter and murder became muddled.
In People v Jones, 395 Mich 379; 236 NW2d 461 (1975), this
Court, without consideration of MCL 768.32, recognized a new
category of lesser included offenses called “cognate”
offenses. Cognate offenses differed from necessarily included
lesser offenses in that cognate offenses share with the higher
offense several elements and are of the same class or
category, but they contain elements not found in the higher
offense. See Cornell, supra at 344-346. Faced with a
category of lesser included offenses not previously recognized
in Michigan, this Court, in Van Wyck, supra, concluded that
manslaughter was a cognate lesser included offense of murder:
We hold that manslaughter is not a necessarily
included offense within the crime of murder but
that it may nonetheless be an included offense if
the evidence adduced at trial would support a
verdict of guilty for that crime.
18
As we noted in People v Ora Jones, supra:
“The common-law definition of lesser included
offenses is that the lesser must be such that it is
impossible to commit the greater without first
having committed the lesser.” [Citation omitted.]
* * *
[With regard to the murder/manslaughter
relationship], [t]he absence of mitigating
circumstances need not be established in order to
convict one of first- or second-degree murder.
Consequently, it cannot be said voluntary
manslaughter is a necessarily included offense
within the crime of murder; it is incorrect to
state that it is impossible to commit first- or
second-degree murder without having first committed
manslaughter. [Van Wyck, supra at 268-269.]
Notably, the Van Wyck Court failed to discuss earlier common
law decisions characterizing manslaughter as a lesser included
offense of murder before cognate offenses were recognized. We
also note that the Van Wyck Court did not give any
consideration to the unique relationship between murder and
manslaughter.
For the reasons discussed above, we conclude manslaughter
is a necessarily included lesser offense of murder. We further
conclude that Van Wyck’s analysis is flawed inasmuch as it is
premised on a body of law recognizing cognate lesser included
offenses in contravention of MCL 768.32. Accordingly, to the
extent that Van Wyck and its progeny are inconsistent with
this opinion and our opinion in Cornell, they are expressly
overruled.
19
C. AN INVOLUNTARY -MANSLAUGHTER INSTRUCTION WAS NOT WARRANTED
Having concluded that manslaughter is an inferior offense
of murder because it is a necessarily included lesser offense,
we now consider whether the trial court erred in refusing to
give an involuntary-manslaughter instruction.
An inferior-offense instruction is appropriate only when
a rational view of the evidence supports a conviction for the
lesser offense. Cornell, supra at 357. In this case, the
Court of Appeals concluded there was sufficient evidence to
support an involuntary-manslaughter instruction. In reaching
this conclusion, the Court relied on defendant’s statement to
the police recounting what happened:
I was at a gas station on Seven Mile near
Hoover when Ivan pulled up in a gray newer model
car and asked me did I want some bud. Ivan asked
me did I have half on it. I said, yes. I then got
into the car with Ivan. Ivan stopped by one house,
then he went to the bud house. When we got to the
house, Ivan stayed in the car and I went to the
house. When I got to the front door, there was a
big guy coming out and motioned for me just to go
on in. The guy that let me in continued talking to
a big dark-skinned guy with a deep voice. Another
guy, kind of frail [Chillers], sitting in a love
seat asked me how many I needed. I responded by
saying, just one back. That’s when Ivan came to
the door. Ivan started talking to the guy with the
deep voice. The guy that let me in then left. I
started to get my stuff from the frail guy. While
I’m getting my stuff, I heard some tussling. I
look back and Ivan was tussling with the big guy
with the deep voice. They were tussling over a
handgun with a dark barrel. While they were
tussling, I heard approximately two shots. They
then fell into a corner over a chair. I then heard
the frail guy holler. He had pulled out a shiny
20
revolver and pointed it at Ivan and the guy he was
tussling with. I then tried to knock the gun away
from [Chillers]. As I was attempting to knock the
gun away from [Chillers], he pulled the trigger. I
then tried to run but I tripped over Ivan . . . .
[Emphasis added.]
The Court of Appeals concluded that defendant’s statement
that Chillers pulled the trigger when defendant tried to knock
the gun away from him was sufficient to support an
involuntary-manslaughter conviction. The Court reasoned that
defendant’s statement could support a finding that the
victim’s killing was an unintended death, without malice, and
not caused by any action of defendant naturally tending to
cause death.
We disagree and conclude that defendant’s statement alone
is insufficient to support an involuntary-manslaughter
instruction. Defendant’s statement does not indicate that the
shot fired during the struggle struck or killed the victim. In
fact, during his request for an involuntary-manslaughter
instruction, defendant argued that the shot fired during the
struggle was the nonfatal shot to the victim’s leg.9
9
Defense counsel argued in support of the manslaughter
instruction as follows:
Alternatively there’s also involuntary
manslaughter, now that I think about it, in terms
of that gun potentially accidentally [sic] going
off during the struggle over the gun at the time
it’s discharged. That’s how I claim that the shot
to the leg happened, when they were struggling over
the gun.” [Emphasis added.]
21
Therefore, because there is no evidence that the shot
fired during the struggle killed the victim, and in light of
the substantial evidence that the shot was not the fatal shot,
we conclude a rational view of the evidence does not support
an involuntary-manslaughter instruction.
We further disagree with the conclusion of the Court of
Appeals that an instruction for common-law involuntary
manslaughter was premised on defendant’s theory of the case.
Defendant’s theory throughout trial was that someone else was
responsible for the victim’s death. Consider defendant’s
opening statement, in which he sets forth his theory:
What really occurred in this situation that
you’ll see is sure, my client Mr. Mendoza and Mr.
Tims went over to that location. They didn’t go
over there to harm anybody. They went over there
to buy what Mr. Stockdale and what Mr. Chillers
were in the business to sell, which is marijuana
. . .
* * *
You’ll hear that, that Mr. Tims . . . and
another person were tussling over a handgun. And
while they’re tussling, shots went off. And my
client went over there to try to prevent that from
happening. And that’s when the tussle broke out.
When my client’s running out of that location, he
gets shot by Mr. Chillers.
So, it’s not my client that’s doing any
shooting in there. It’s Mr. Chillers who’s causing
all these problems and doing shooting in there.
Expert testimony established that the leg wound was not the
fatal injury.
22
* * *
So, what happened here is after my client,
after he’s running away and Mr. Chillers shoots him
and he’s running to the car wounded, Mr. Tims on
his own goes back up to that front door with that
revolver in his hand and started shooting into the
house. And that’s when Mr. Stockdale gets shot in
the chest.
* * *
This is what I believe the evidence will show
. . . That gun was never in the possession of Mr.
Mendoza. That gun was the one identified as being
in the hands of Mr. Tims when he went back on his
own. [Emphasis added.]
It is, therefore, clear that defendant’s theory was that Tims
was responsible for the victim’s death.
In sum, we conclude that a rational view of the evidence
did not support an involuntary-manslaughter instruction.
Therefore, it was not error for the trial court to deny the
instruction. Accordingly, we reverse the judgment of the
Court of Appeals.
IV. CONCLUSION
Manslaughter, in both its forms, is an inferior offense
of murder within the meaning of MCL 768.32. Therefore, an
instruction is warranted when a rational view of the evidence
would support it. Van Wyck and its progeny are overruled to
the extent the Van Wyck analysis of the relationship between
manslaughter and murder holds otherwise.
In this case, we conclude a rational view of the evidence
did not support an involuntary-manslaughter instruction.
23
Therefore, the trial court did not err when it refused to give
the instruction. Accordingly, we reverse the judgment of the
Court of Appeals and reinstate defendant’s second-degree
murder conviction.
Robert P. Young, Jr.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Stephen J. Markman
24
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 120630
RICHARD MENDOZA,
Defendant-Appellee.
___________________________________
CAVANAGH, J. (concurring).
This Court granted leave to appeal to determine whether
MCL 768.32 permits a manslaughter instruction when a defendant
has been charged with murder. Because the majority has
misinterpreted MCL 768.32, I must respectfully dissent from
its analysis, though I concur in its result.
The majority applies obiter dictum from People v Cornell,
466 Mich 335; 646 NW2d 127 (2002), to hold that an “inferior”
offense, as articulated by the Legislature in 1846, is limited
to a necessarily included lesser offense.10 While I agree that
manslaughter is an offense inferior to and necessarily
included within the crime of murder, I do not agree that this
10
MCL 768.32, formerly codified as tit XXX, ch 161, § 16,
Rev Stat of 1846.
Court should limit instructions authorized by MCL 768.32 to
only those that are necessarily included in the charged
offense. Rather, I would hold that, when requested, a jury
may be instructed on lesser or “inferior” offenses of the
crime charged, if those offenses are supported by the
evidence.
I
The proper scope of MCL 768.32 presents a question of
statutory interpretation, which we review de novo. In re MCI,
460 Mich 396, 413; 596 NW2d 164 (1999).
II
The relevant portion of MCL 768.32 now provides:
(1) Except as provided in subsection (2), 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.[11]
Relying on established doctrines of interpretation, one
11
The current subsection 2 refers to controlled-substance
provisions. The original statute provided:
Upon an indictment for any offence, consisting
of different degrees, as prescribed in this title,
the jury may find the accused not guilty of the
offence in the degree charged in the indictment,
and may find such accused person guilty of any
degree of such offence, inferior to that charged in
the indictment, or of an attempt to commit such
offence. [Rev Stat of 1846, tit XXX, ch 161,
§ 16.]
2
cannot disagree that the first step in discerning legislative
intent requires review of the statutory text adopted by the
Legislature. House Speaker v State Administrative Bd, 441
Mich 547, 567; 495 NW2d 539 (1993). See also MCL 8.3a (“All
words and phrases shall be construed and understood according
to the common and approved usage of the language . . . .”).
If unambiguous, the Legislature will be presumed to have
intended the meaning expressed. Lorencz v Ford Motor Co, 439
Mich 370, 376; 483 NW2d 844 (1992). We often refer to the
dictionary to discern a statute’s plain meaning. See Wayne Co
Prosecuting Attorney v Levenburg & Richmond, 406 Mich 455,
465-466; 280 NW2d 810 (1979) (dictionaries provide plain
meaning).
The dispositive issue presented for review is the scope
of the term “inferior,” which may be defined as follows:
Inferior. 1. Lower in place. 2. Lower in
station, age, or rank in life. 3. Lower in
excellence or value; as a poem of inferior merit.
4. Subordinate; of less importance. [American
Dictionary of the English Language, Noah Webster,
Vol. 1, (originally published 1828, reprinted
1970).12]
12
See also:
Inferior. Is usually employed in law to
designate the lower of two grades of authority,
jurisdiction, or power. [Dictionary of Terms and
Phrases used in American or English Jurisprudence,
Vol 1, p 603 (1879).]
(continued...)
3
This definition has changed little since the nineteenth
century, and the meaning of an offense “inferior” to another
continues to suggest a lower offense, or one that is somehow
less than the charged crime.13 Applied here, this
interpretation supports a “lesser offense” approach.
In spite of this textual evidence, the majority would
prefer to adopt a “necessarily included lesser offense”
interpretation, assigning a meaning to "inferior" that is
contrary to its everyday usage, while providing no textual
explanation for its narrow construction. Instead, the
majority adopts its obiter dictum from Cornell and relies on
several prudential (i.e., policy-based) reasons to reject an
(...continued)
Inferior. 1. Lower in position; situated below
. . . 3. Lower in degree, rank, importance,
quality, amount, or other respect; of less value or
consideration; lesser; subordinate. With to =
lower than, less than, not so good or great as;
unequal to . . . . [Oxford English Dictionary (2d
ed).]
Inferior. . . 3. Lower in degree, rank,
importance, quality, amount, or other respect; of
less value or consideration . . . b. with to =
lower than, less than, not so good or great as;
unequal to. [A New English Dictionary on Historical
Principles, Murray, Oxford (1901, originally
published 1888).]
13
Inferior. adj. 1. Situated under or beneath. 2. Low
or lower in order, degree, or rank. 3. Low or lower in
quality, status, or estimation. [American Heritage Dictionary
of the English Language, New College Edition (1981).]
4
interpretation of “inferior” that conforms with its everyday
usage.
Foremost among the majority’s rationale may be the
alleged ease with which the necessarily included lesser
offense framework may be applied. Cornell, supra. However,
I cannot agree that the majority’s framework can be applied
more simply than a “lesser offense” inquiry because each
varies on the basis of the degree of specificity with which
one reviews the elements of a crime. This Court, for example,
has wavered on the precise issue presented here. In People v
Van Wyck, 402 Mich 266; 262 NW2d 638 (1978), this Court held
that manslaughter was not a necessarily included lesser
offense of murder:
The absence of mitigating circumstances need
not be established in order to convict one of
first- or second-degree murder. Consequently, it
cannot be said that voluntary manslaughter is a
necessarily included offense within the crime of
murder; it is incorrect to state that it is
impossible to commit first- or second-degree murder
without having first committed manslaughter. [Id.
at 269.]
As the majority correctly notes today, when viewed in
general terms, “the only element distinguishing murder from
manslaughter is malice.” Ante at 14. Hence, manslaughter is
both an “inferior” and a necessarily included lesser offense
of murder; the difference between Van Wyck and the Court’s
decision today results from the degree of precision employed
5
by the Court in its analysis of the elements of murder and
manslaughter.
Instead of addressing such difficulties, the majority
ignores this and similar inconsistencies. For example,
although “felonious assault” is not strictly a necessarily
included lesser offense of “assault with intent to do great
bodily harm less than murder” because the former requires the
use of a dangerous weapon, it is clearly an “inferior” charge
as prescribed by any reasonable interpretation of the statute
(i.e., “inferior”), yet the majority’s approach provides no
means by which to recognize this relationship. Similarly
troubling, the crime of “assault with intent to do great
bodily harm” is plainly included within the crime of “assault
with intent to murder,” but our Courts have held that
different degrees of malice (i.e., intent to do great harm
versus intent to murder) constitute cognate–not necessarily
included–offenses. See, e.g., People v Norwood, unpublished
opinion per curiam of the Court of Appeals, issued March 20,
2001 (Docket No. 218207). In sum, the majority’s doctrine
cannot logically provide the bright-line rule that it seeks,
and its narrow construction is not supported by the text.
III
Although, I do not dispute that the meaning of MCL 768.32
6
has been subject to debate lately,14 the majority has recently
acknowledged that, as early as 1869, this Court permitted
convictions on “inferior” offenses:
[E]xtending to all cases in which the statute
has substantially, or in effect, recognized and
provided for the punishment of offenses of
different grades, or degrees of enormity, wherever
the charge for the higher grade includes a charge
for the less. In this view only, can any effect be
given to it, as declaratory of, or altering the
common law. [Hanna v People, 19 Mich 316, 322
(1869).]
Before Cornell, this Court repeatedly affirmed this
lesser offense approach,15 in accord with the plain meaning of
14
Cornell, supra (noting in dicta that MCL 768.32 limits
instructions to necessarily included lesser offenses and
overruling, inter alia, People v Jones, 395 Mich 379; 236 NW2d
461 [1975], People v Chamblis, 395 Mich 408; 236 NW2d 473
[1975]).
15
See also People v Andrus, 331 Mich 535; 50 NW2d 310
(1951) (noting this Court’s treatment of MCL 768.32, which
permits an instruction on lesser offenses when supported by
the evidence); People v Jones, 273 Mich 430; 263 NW 417 (1935)
(holding that the court erred so as to require reversal when
it affirmatively excluded a lesser offense from the jury’s
consideration); People v Abbott, 97 Mich 484; 56 NW 862 (1893)
(reversing where the court failed to instruct the jury on a
lesser included offense); People v Courier, 79 Mich 366; 44 NW
571 (1890) (refusing the defendant’s request for a new trial
where the court did provide the jury with a lesser included
rape offense instruction); People v Prague, 72 Mich 178; 40 NW
243 (1888) (“The crime of an assault with intent to commit the
crime of murder is one of a higher grade and greater enormity
than the crime of assault with intent to do great bodily harm
less than the crime of murder. It belongs to the catalogue of
offenses against the lives and persons of individuals, and we
think the charge was authorized by the opinion of this Court
in Hanna . . . .”); People v Warner, 53 Mich 78; 18 NW 568
(1884) (a conviction for simple assault may be had on any
(continued...)
7
the statute. In People v Jones, 395 Mich 379, 387; 236 NW2d
461 (1975), for example, this Court confirmed a case-by-case
approach to inferior offense instructions, acknowledging that
the strict, common-law rule, which had permitted lesser
offense instructions only when necessarily included in the
crime charged, had been replaced by a statute that authorized
a broader range of convictions “inferior” to the crime
charged. Although, the majority attempts to claim its holding
has a historical foundation, it, in fact, usurps this Court’s
longstanding interpretation, which accords with the statute’s
plain meaning.
IV
The majority may claim I have done nothing but pine for
the “cognate” or related-offense approach, which it expressly
rejected in Cornell. To the degree that a “cognate” offense
is “inferior” to the crime charged, I cannot disagree. I
remain committed to the “lesser included offense”
interpretation of “inferior” simply because it is best able to
honor the statutory text, as noted above.
(...continued)
information charging assault on an officer and resisting
arrest); Campbell v People, 34 Mich 351 (1876) (“. . . under
an indictment charging a specific offense it was competent for
the jury to find the respondent guilty of a lesser offense
included in it. The lesser offense of felonious assault is
necessarily included in the offense of rape; the completed
offense being the aggravation of the criminal assault.”).
8
Further, it accords with the longstanding doctrine that
requires courts to construe criminal statutes in favor of
defendants. In United States v Wiltberger, 18 US (5 Wheat)
76, 95; 5 L Ed 31 (1820), Chief Justice Marshall noted:
The rule that penal laws are to be construed
strictly, is perhaps not much less old than
construction itself. It is founded on the
tenderness of the law for the rights of
individuals; and on the plain principle that the
power of punishment is vested in the legislative,
not in the judicial department. It is the
legislature, not the Court, which is to define a
crime, and ordain its punishment.
See also People v Webb, 127 Mich 29, 32; 86 NW 406 (1901)
(“Penal statutes must be strictly construed, and words used
are to be given their popular, rather than a technical,
meaning.”); Scalia, A Matter of Interpretation (Princeton,
N.J.; Princeton University Press, 1997), p 29 (“The rule of
lenity is almost as old as the common law itself, so I suppose
that is validated by sheer antiquity.”) Its application here
would give an accused the opportunity to request an
instruction in conformity with defense theories, when
supported by the evidence.
V
As noted, this Court today unanimously affirms that a
defendant facing a murder charge may request a manslaughter
instruction if supported by the evidence. However, nothing in
the record would support an involuntary-manslaughter
9
conviction in this case, which requires a finding of death,
caused by an act of defendant, with gross negligence. People
v Datema, 448 Mich 585, 610-613; 533 NW2d 272 (1995)
(Cavanagh, J., dissenting). Defendant’s statement to the
police suggests only that he attempted to prevent the alleged
gunman from shooting his friend. On the facts presented, if
the jury did not believe defendant was culpable of murder
beyond a reasonable doubt, the only reasonable alternative was
acquittal because defendant’s statement to police indicated an
attempt to save the life of another. People v Heflin, 434
Mich 482, 554 n 10; 456 NW2d 10 (1990) (Levin, J., dissenting)
(noting that the defense of another may justify homicide). To
permit a manslaughter conviction on the evidence presented
would result in a conviction against the great weight of the
evidence. Therefore, I agree that the Court of Appeals
opinion should be vacated and that defendant’s conviction
should be affirmed.
VI
Because the majority has adopted an interpretation of MCL
768.32 contrary to its plain text and our long-settled rules
of statutory construction, I cannot join its rationale.
However, because I agree that manslaughter is an offense
“inferior” to murder, and because the evidence does not
support a manslaughter instruction, I concur in the result
10
only.
Michael F. Cavanagh
Marilyn Kelly
11