People v. Silver

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

O pinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JUNE 25, 2002

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 117024

SHAWN JOSEPH SILVER,

Defendant-Appellant.

____________________________________

BEFORE THE ENTIRE BENCH

TAYLOR, J.

In People v Cornell, 466 Mich __; ____ NW2d ___ (2002),

we overruled contrary prior case law and explained that

pursuant to MCL 768.32(1),1 a trial court, upon request,

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

(continued...)

should instruct the jury regarding any necessarily included

lesser offense, or an attempt, (irrespective of whether the

offense is a felony or misdemeanor), 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.

We further held that the failure to instruct the jury

regarding such a necessarily lesser included offense is error

requiring reversal, and retrial with a properly instructed

jury, if, after reviewing the entire cause, the reviewing

court is satisfied that the evidence presented at trial

“clearly” supported the lesser included instruction.2

As explained below, consistent with People v Cornell, we

hold that the trial court’s failure to instruct Mr. Silver’s

jury regarding a necessarily included lesser offense was error

requiring reversal.

I

The complainant, Amber Gardner, testified that on October

12, 1997, she left her home for approximately ten to fifteen

minutes to run to the store. When she left, the doors to her

1
(...continued)

to commit that offense.

2
A offense is “clearly” supported when there is

substantial evidence to support the requested lesser

instruction. People v Cornell, supra.

2

home were closed, but unlocked. Upon returning to her home,

she heard a noise in the kitchen. When she entered the

kitchen, she saw defendant standing there. She began yelling

at him to leave. Ms. Gardner testified that as defendant was

leaving through the back door, he commented that “I was just

here to use your potty,” and then ran through the field behind

her home.

Ms. Gardner also testified that she called 911, and

Officer Robert Wesch arrived approximately three to five

minutes later. She told him what defendant said as he left

and that, at that time, she did not notice anything missing

from her home. A few days later she said she told Detective

Dennis Maurey that she believed that two to three weeks’ worth

of change, accumulated on a dresser in her bedroom and visible

through her bedroom window, was missing. Although the change

was never recovered, it was this missing change that gave the

circumstantial basis for the assertion that defendant had

entered with the intent to commit a larceny.

Defendant testified that on the day of the incident, as

he was walking in the neighborhood, he observed an elderly

woman having trouble starting her lawn mower. He offered to

help her and ended up mowing her whole yard. When he asked to

use her bathroom, she would not let him because she did not

know him. Defendant indicated his brother lived in the

3

neighborhood, so he left the woman’s home and went to his

brother’s house. However, his brother was not home. The only

other person he knew in the area was Ms. Gardner, with whom he

had a “wave back and forth” relationship because he had helped

her, about six months earlier, move some boxes into her house.

He decided to go to her house, which was about half a block

from his brother’s, to see if he could use the bathroom. When

he arrived, he knocked on the door, and, receiving no

response, he opened the door and asked if anyone was home.

Receiving no reply, he went in and used the bathroom. As he

was leaving through the back door, he heard a noise and Ms.

Gardner entered the kitchen. She yelled at him to get out.

As he was leaving, he told her that he was sorry and that he

had just used the bathroom.

On rebuttal, Ms. Gardner denied that she had ever met

defendant, that he had helped her carry boxes into her home,

or that she and defendant would exchange waves when they saw

each other.

The trial court instructed the jury regarding the charged

offense of first-degree home invasion MCL 750.110a(2),3 but

3
MCL 750.110a(2) provides in relevant part:

A person who breaks and enters a dwelling with

intent to commit a felony, larceny, or assault in

the dwelling, a person who enters a dwelling

without permission with intent to commit a felony,

(continued...)

4

denied defense counsel’s request that the jury be instructed

on the lesser included offense of breaking and entering

without permission, MCL 750.115(1).4

The trial court denied the request, indicating that it

might cause some confusion to give the requested instruction

and that if the jury believed defendant it would be duty bound

to acquit him. The jury returned a verdict of guilty of the

charged offense.

Defendant appealed, and the Court of Appeals affirmed his

3
(...continued)

larceny, or assault in the dwelling, or a person

who breaks and enters a dwelling without permission

and, at any time while he or she is entering,

present in, or exiting the dwelling, commits a

felony, larceny, or assault is guilty of home

invasion in the first degree if at any time while

the person is entering, present in, or exiting the

dwelling either of the following circumstances

exists:

(a) The person is armed with a dangerous

weapon.

(b) Another person is lawfully present in the

dwelling.

4
MCL 750.115(1) provides in pertinent part:

Any person who breaks and enters or enters

without breaking, any dwelling, house, . . .

without first obtaining permission to enter from

the owner or occupant, agent, or person having

immediate control thereof, is guilty of a

misdemeanor.

5

conviction in a divided opinion.5 All three judges of the

Court of Appeals panel determined that the trial court erred

in refusing to give the instruction because the only element

in dispute was whether defendant possessed the requisite

intent to commit larceny and there was little danger that the

jury would become confused. However, the majority, citing

People v Lukity, 460 Mich 484; 596 NW2d 607 (1999), concluded

that the error was harmless because it was not more probable

than not that a different outcome would have resulted had the

jury been given the lesser included instruction.

One judge dissented from the majority’s conclusion that

the error was harmless. The dissent noted that the jury may

have resolved any doubts it had about defendant’s intent in

favor of conviction. Further, the dissent was not convinced

that the majority’s application of Lukity was correct or that

the comparison of the tainted and untainted evidence was the

proper approach for addressing a jury instruction error.

Additionally, the dissent noted that the situation was not one

in which the jury had a choice of some other lesser offense

and had rejected it in favor of a conviction of a higher

offense.

This Court subsequently granted defendant’s application

5

Unpublished opinion per curiam, issued May 23, 2000

(Docket No. 212508).

6

for leave to appeal and ordered his case argued with People v

6

Cornell.

II

We hold that breaking and entering without permission is

a necessarily included lesser offense of first-degree home

invasion. Breaking and entering without permission requires

(1) breaking and entering or (2)entering the building (3)

without the owner’s permission. It is impossible to commit

the first-degree home invasion without first committing a

breaking and entering without permission. The two crimes are

distinguished by the intent to commit “a felony, larceny, or

assault,” once in the dwelling.

In this case the intent to commit a larceny in the house

was clearly disputed at trial. Indeed, it was defendant’s

unvarying position, unblemished by inconsistent statements,

that there was an entry without permission, but that there was

no intent to steal. The opening statement giving his theory

of the case, the cross-examination of Ms. Gardner, as well as

officer Wesch, and his closing argument were all directed to

one end: that he was wrongfully inside the house, but did not

intend to steal. The Legislature thinks such things can

happen. After all, they made it a lesser crime to be in a

6
463 Mich 958-959 (2001).

7

house without permission if there is no felonious intent.

Said plainly, the person that would be guilty of this would be

a person inside, surely with some motive, just not a criminal

motive. If the jurors believed defendant was such a person ,

they realistically could not act on it unless they had an

instruction that gave them that choice.7 Not to give them an

instruction that allowed them to agree with defendant’s view

of the events in this case undermines the reliability of the

verdict. The reason is that there was substantial evidence

supporting the lesser offense of breaking and entering without

permission. Accordingly, MCL 768.32(1) was violated.

Response to the dissents

Justice Weaver agrees that the trial court erred in

failing to give the lesser offense instruction, but concludes

7
One might argue that the jury would have acquitted

defendant if it believed his testimony. However, this is too

facile. The United States Supreme Court rejected such an

argument in Keeble v United States, 412 US 205, 212-213; 93 S

Ct 1993; 36 L Ed 2d 844 (1973), when it stated:

[I]f the prosecution has not established

beyond a reasonable doubt every element of the

offense charged, and if no lesser offense

instruction is offered, the jury must, as a

theoretical matter, return a verdict of acquittal.

But a defendant is entitled to a lesser offense

instruction . . . precisely because he should not

be exposed to the substantial risk that the jury's

practice will diverge from theory. Where one of

the elements of the offense charged remains in

doubt, but the defendant is plainly guilty of some

offense, the jury is likely to resolve its doubts

in favor of conviction.

8

the error was harmless. She finds incriminating that Silver

was found in the kitchen, not the bathroom. However, Silver

testified with the answer: he was in transit from the bathroom

to the back door in this small8 house. This is why he was in

the kitchen. Rather than being damaging to Silver’s version

of events, this fact is consistent with it.

Justice Markman’s dissent is notable in that he is the

one appellate judge out of the ten who have considered this

case who finds that the trial court did not err at all. Save

for him, all have agreed on the crucial issue that the lesser

offense was supported by a rational view of the evidence.

Justice Markman’s dissent seems to focus on what he perceives

to be the irrationality of defendant’s story itself, i.e.,

whether it would have been rational to go into someone’s house

simply to use the bathroom, rather than, in accord with

Cornell, if a rational view of the evidence supports

defendant’s story. It just must be said: maybe a gentleman

such as Justice Markman would not do this, but a less discrete

person just might. Once evidence that rationally supports a

lesser crime has been introduced, it’s believability is for

the jury to decide, not appellate judges.

On the basis of these considerations, we have concluded

that the dissents misapprehend the strength of Silver’s claim.

8
The house had approximately 720 square feet.

9

While a jury might not agree with his theory, there was

substantial evidence to support it.

Conclusion

Accordingly, Silver is entitled to a new trial. The

judgment of the Court of Appeals is reversed, as is Silver’s

conviction, and this case is remanded for a new trial with a

properly instructed jury.

YOUNG , J., concurred with TAYLOR , J.

10

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 117024

SHAWN JOSEPH SILVER,

Defendant-Appellant.

___________________________________

KELLY, J. (concurring).

I agree that it was error for the trial court to refuse

to instruct the jury on the lesser included misdemeanor

offense of breaking and entering without permission.9 I also

agree that the error was not harmless, under either the

Stephens10 test for lesser included misdemeanor instructions

or under the newly articulated Cornell11 framework that

replaces Stephens. I therefore concur in the result.

9
MCL 750.115(1).

10
People v Stephens, 416 Mich 252; 330 NW2d 675 (1982).

11
People v Cornell, 466 Mich ___; ___ NW2d ___ (2002).

 I write separately to point out that the decisions in

Cornell and Silver evidence the difficulty of applying the

rules established by the Cornell majority. The rule to be

applied in this case, pursuant to Cornell, is that a trial

court's erroneous refusal to deliver lesser included offense

instructions requires reversal only where substantial evidence

supported the instructions. In this case, there was no

evidence to contradict defendant's claim that he did not

intend to steal when he entered the house. Instead, there was

substantial evidence supporting giving instructions for

breaking and entering without permission.

This is not to say that evidence supporting a requested

instruction must always be uncontroverted to be deemed

substantial. I point out that the defendant in Cornell

advanced a more convincing case for breaking and entering

without permission than did the defendant in Silver. Mr.

Cornell broke into the "Heston house," a local attraction

because it was the boyhood home of actor Charlton Heston.

Although there was evidence to contradict his claim that he

did not intend to steal, there was also evidence supporting

his position. Moreover, the jury in Cornell believed the

defendant when he claimed that he had no intention of burning

the house, and acquitted him of the charged arson. MCL

750.73. The jury could have believed just as easily that Mr.

2

Cornell did not intend to steal anything. Mr. Cornell made an

even stronger case that the error required reversal under the

substantial evidence test than did Mr. Silver, who claimed he

only wanted to use the bathroom.

Unlike my dissenting colleagues, I believe that both

Cornell and Silver were cases of error requiring reversal,

rather than harmless error or no error at all. The Cornell

majority has created an unworkable rule that even it cannot

agree to apply in more than an arbitrary fashion. It is clear

from today's decisions that the Cornell rule leads to

arbitrary results.

CAVANAGH , J., concurred with KELLY , J.

3

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 117024

SHAWN JOSEPH SILVER,

Defendant-Appellant.

____________________________________

WEAVER, J. (concurring in part and dissenting in part).

I agree with the majority that the trial court erred in

refusing to give the requested lesser offense instruction

because breaking and entering is a necessarily included lesser

offense of first-degree home invasion, the element

differentiating the two crimes was disputed and a rational

view of the evidence would support an instruction on the

lesser offense. However, I dissent from its conclusion that

the error was not harmless because, in my opinion, the

evidence presented at trial did not clearly support a

conviction of the lesser included misdemeanor of breaking and

entering. Therefore, I would conclude that the error was

harmless and would affirm defendant’s conviction.

As we explained in People v Cornell, 466 Mich ___, ___;

___ NW2d ___ (2002),

[T]he reliability of the verdict is undermined

when the evidence “clearly” supports the lesser

included instruction, but the instruction is not

given. In other words, it is only when there is

substantial evidence to support the requested

instruction that an appellate court should reverse

the conviction. As we must consider the “entire

cause” pursuant to MCL 769.26, in analyzing this

question, we also invariably consider what evidence

has been offered to support the greater offense.

[Slip op at 37.][1]

Applying the harmless error principles we articulated in

Cornell to defendant Silver’s case, I would conclude that the

error was harmless because the evidence did not clearly

support a conviction of the lesser included misdemeanor of

breaking and entering without permission. Although defendant

stated that his intent upon entering the home was to use the

1
We also clarified that this “substantial evidence”

standard for determining whether the error is harmless differs

from the standard for determining whether the error occurred.

As we explained,

an evidentiary dispute supported by a rational view

of the evidence regarding the element that

differentiates the lesser from the greater offense

will generally require an instruction on the lesser

offense. However, more than an evidentiary dispute

regarding the element that differentiates the

lesser from the greater offense is required to

reverse a conviction; pursuant to MCL 769.26, the

entire cause must be surveyed. [Slip op at 38.]

2
bathroom,2 the evidence presented at trial overwhelmingly

showed the contrary. First, the complainant testified that

upon returning to her home, she heard a noise in the kitchen,

not the bathroom. When she entered the kitchen, she saw

defendant standing there. Defendant then fled through the

field behind her home. Second, an investigation by Officer

Wesch revealed no signs that defendant had used the bathroom.

Third, the complainant testified that she believed that

approximately two to three week’s worth of change was missing

from the top of a dresser in her bedroom. Complainant

testified that this change was visible through the bedroom

window. Fourth, complainant testified that, although she had

observed defendant in the neighborhood, she did not know him,

and he had not helped her carry boxes into her home.3

While a rational view of the evidence supporting

defendant’s “bathroom argument” might have warranted an

instruction on the lesser included offense, the borderline

nature of this argument may also be taken into consideration

in evaluating the extent to which the failure to give such

2
According to defendant, the elderly woman, whose yard

he gratuitously mowed after helping her start her lawnmower,

would not let him use her bathroom because she did not know

him, and his brother, who lived in the area, was not home.

3
This was contrary to defendant’s assertions that he had

helped complainant carry boxes into her home and that they

knew each other and would wave to each other.

3

instruction was harmful.

I believe that the misdemeanor of breaking and entering

without permission was not clearly supported by the evidence,

and that the refusal to instruct on the lesser included

offense was harmless error. Therefore, I would affirm

defendant’s conviction.4

CORRIGAN , C.J., concurred with WEAVER , J.

4
I note that the Court of Appeals remanded defendant’s

case to the trial court for resentencing because the trial

court failed to properly respond to defendant’s objections to

the accuracy of the presentence investigation report. Leave

to appeal was not sought on this determination.

4

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 117024

SHAWN JOSEPH SILVER,

Defendant-Appellant.

____________________________________

MARKMAN, J. (dissenting).

I respectfully dissent. As stated in People v Cornell,

466 Mich __; __ NW2d __ (2002), a trial court should instruct

the jury regarding a necessarily included lesser offense 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.” Here, I do not believe that the disputed issue,

the element of intent to commit a felony within the dwelling,

was supported by a rational view of the evidence.

In this case, defendant, an utter stranger to the victim,

was discovered inside the victim’s home, from which a small

amount of money was subsequently found to be missing. Upon

being discovered in the home by the victim, defendant

asserted, “I was just here to use your potty.”1 On the basis

of this evidence, and nothing more, the majority concludes

that the issue of defendant’s intent to commit a felony was

placed in dispute, and that defendant’s contention that he

lacked such intent was supported by a “rational view” of the

evidence.

I disagree. It is not the law that any theory asserted

by a defendant, no matter how preposterous, must be treated as

the equivalent of a “rational view” of the evidence, thereby

requiring an instruction. Trial courts need not suspend their

common sense in assessing what constitutes a “rational view”

of the evidence.2 Indeed, I am concerned that, while the ink

is still not yet dry on Cornell, the majority is transforming

the standard for instructions on necessarily included lesser

1
As Justice Weaver’s dissent correctly points out, the

evidence further shows that the victim testified that, upon

returning home, she heard a noise in the kitchen, not the

bathroom; money was missing from a dresser in her bedroom, not

the bathroom; and there is no evidence whatsoever that

defendant had ever used the bathroom. Contrary to the

majority’s contention, there are many forms of evidence that

might suffice to show that one has recently been in a

bathroom, e.g., fingerprints, shoeprints in or approaching the

bathroom, an unflushed toilet, a raised toilet seat, a wet

towel or basin, wet soap, and so forth. In any event, it

should not be seen as surprising that, the more incredible the

defense, the less evidence can generally be found in support

of it.

2
That, as the majority observes, it was defendant’s

“unvarying position” that he was merely in the home in order

to use the “potty” does not transform an irrational argument

into a rational one.

2

offenses by effectively reading out of the law the requirement

that there must be a “rational view” of the evidence in

support of such instructions.3 Instead, what appears

dispositive for the majority here is that there was a

“dispute,” a dispute evidenced exclusively by defendant’s

“potty” statement. The mere fact of such dispute apparently

compels an instruction, and the absence of such an instruction

requires that defendant’s conviction be reversed. However,

the additional requirement of Cornell that a “rational view”

of the evidence must exist in support of an instruction

implies that, in some circumstances, there will be no such

“rational view,” despite the existence of a genuine “dispute.”

This further implies, contrary to the majority, that not all

issues of “believability . . . [are] for the jury to decide.”

Ante at 9. The “rational view” requirement makes clear that

the trial court must bring some degree of judgment to its

responsibilities, and that neither the trial court nor the

jury need be infinitely credulous in seeking to ascertain the

truth.

Because I do not believe that the requested lesser

offense instruction here was supported by a “rational view” of

3

If the majority is not, in fact, altogether reading

this requirement out of the law in this case, it is at the

very least transforming the concept of a “rational view” of

the evidence into a “not a logically impossible view” of the

evidence.

3

the evidence,4 the trial court did not err, in my judgment, in

failing to give such an instruction. Therefore, I would

affirm defendant’s conviction.5

4
Much less is it the case that the evidence presented

here “clearly” supported the defendant’s requested

instruction, thereby compelling reversal in the absence of

such an instruction. Cornell, supra.

5
While, as the majority feels impelled to point out, I

am in the minority on this case, this tends to be true of

those who dissent. Ante at 9. More to the point, the

majority considerably overstates my isolation. First, a

review of the Court of Appeals analysis indicates that it did

not specifically analyze the “rational view” of the evidence;

instead, it focused on the fifth prong of the test in People

v Stephens, 416 Mich 252, 260; 330 NW2d 675 (1982), stating

that a requested lesser included offense instruction must not

result in undue confusion or injustice. Specifically, the

Court concluded that the trial court erred in its refusal to

instruct because “the use of similar terms in the two offenses

[would not] create confusion for the jury.” Unpublished

opinion per curiam, issued May 23, 2000 (Docket No. 212508)

at 2. Despite such a conclusion, two members of the panel

still determined that the error was harmless. Second, I note

that the chasm between myself and Justice Weaver’s dissent may

be considerably less wide than suggested by the majority; her

dissent characterizes defendant’s “bathroom argument” as one

that is of a “borderline nature,” ante at 3, and concludes

that the instructional error was harmless. Finally, I note

that the trial judge himself, who sat through the entire

trial, concluded that no lesser included instruction was

warranted in this case.

In further response to the majority, it is not merely a

“gentleman” who would not invade the home of a stranger, but

it is any person who is prepared to live by the fundamental

norms of society. Ante at 9. While the majority is correct

that the jury has a broad fact-finding role, the role has

never been without limits. No jury has a right to nullify,

nor has the jury here asserted such a right to nullify, the

fundamental rules of society by exonerating individuals

charged with serious crimes on the basis of preposterous and

irrational defenses.

4