Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JUNE 18, 2002
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 115833
ADAM KEITH CORNELL,
Defendant-Appellant.
____________________________________
BEFORE THE ENTIRE BENCH
WEAVER, J.
In the case before us, we must consider two issues: (1)
whether the trial court erred in refusing to give the
requested misdemeanor lesser included offense instruction of
breaking and entering without permission, MCL 750.115, and (2)
if the trial court did err, whether the error was harmless.
We hold that it was error for the trial court to refuse the
requested instruction and that the error was harmless.
Therefore, we affirm defendant’s convictions.
I
Defendant Cornell was convicted by a jury in the
Roscommon Circuit Court of breaking and entering with the
intent to commit larceny, MCL 750.110. He was sentenced, as
an habitual offender, to eight to twenty years’ imprisonment.
Defendant Cornell’s conviction stems from an incident
occurring in mid-February, 1996, when a house owned by Thomas
Becker was completely destroyed by fire.1 The fire marshal
opined that the fire started in the living room/dining room
area of the home and that it was not accidental. Three sets
of footprints were found leading away from the home, down the
hill. Police followed the prints with a tracking dog and were
led to a home about two miles away, where defendant and his
cousin Christopher Cornell were present. The owner of the
home told police that they should be looking for Cary
Prescott. Some time later, the police stopped a vehicle with
Prescott, Christopher Cornell, and defendant inside. All
three men gave various statements to the police regarding the
incident. At defendant’s trial, Christopher Cornell and
Prescott testified against defendant pursuant to a plea
agreement.
1
The house, located in St. Helen, Michigan, was known in
the community as the “Heston house” because actor Charleton
Heston had spent time there.
2
Defendant gave two written statements to the police, both
of which were admitted into evidence. Defendant gave varying
reasons in the statements for visiting the house. In one
statement, defendant claimed that Prescott wanted to show him
and Christopher Cornell the place where he had outrun a police
dog. When they arrived at the house, Prescott began punching
out windows and started the house on fire. Defendant stated
that neither he nor Christopher Cornell did anything to the
house. In another statement, defendant claimed that while the
three of them were going for a walk, Prescott told them that
there was a house in the woods that “had a lot of stuff in
there that they could make a lot of money.” He stated that
Prescott kicked in the door, but that “there was not anything
in the house to take.” Prescott began punching out windows
and lit some curtains on fire. Defendant denied that he lit
anything on fire and stated that he did not want to be there.
Prescott testified that it was Christopher Cornell’s idea
to go to the house and that they went there to look around and
see what was inside the house. He stated that they “hadn’t
really planned on taking anything. It was empty.” However,
during cross-examination, Prescott stated that, although he
didn’t plan on stealing anything, he probably would have and
that he thought that perhaps he “could get a little souvenir.”
Prescott also stated that he tried to set a curtain on fire,
3
but it wouldn’t burn. He alleged that defendant and
Christopher Cornell started the fire.
Christopher Cornell testified that he, defendant, and
Prescott broke into the house to see what they could find and
that they were looking for things to steal. However, they did
not find anything of value to take. He also stated that
Prescott broke windows and set a curtain on fire and that
defendant set some mattresses on fire. In one of his written
statements, Christopher indicated that Prescott had asked him
and defendant if they wanted to “see something wicked” and
then had led them to the house.
Defense counsel requested that the jury be instructed on
the lesser included misdemeanor of breaking and entering
without permission, MCL 750.115. The trial court denied the
request, stating:
The Court would note for the record entering
without permission is a misdemeanor. The Court
takes note of the record that the defendant asserts
and it was his position that there was no intent to
commit a larceny and I think that the issue is
squarely framed for the jury. Either there was a B
and E with intent or the crime did not occur. I
would not give the entering without owner’s
permission instruction under the circumstances of
this case.
Defendant appealed, and the Court of Appeals affirmed his
conviction.2 The Court of Appeals rejected defendant’s
2
Unpublished opinion per curiam, issued November 2, 1999
(Docket No. 211215).
4
argument that the trial court erred when it refused to
instruct the jury on the lesser included misdemeanor. It
reasoned that, in light of the evidence presented regarding
defendant’s intent to commit larceny, “the jury could not
rationally have found that defendant lacked the intent to
commit larceny when he entered the house.” Slip op at 3.
Because the requested instruction was not supported by a
rational view of the evidence, the Court of Appeals found that
the trial court did not abuse its discretion in refusing to
give the instruction.
One judge dissented with respect to the instructional
issue. The dissent opined that there was evidence to support
defendant’s theory that he lacked the intent to commit a
larceny. The dissenting judge explained:
Not only was there evidence supporting
defendant’s theory that he had no intent to commit
larceny, but also the only disputed factual element
was whether defendant had an intent to commit
larceny, which is an element not included in the
lesser misdemeanor offense. In other words, the
lesser misdemeanor instruction was proper in this
case because the greater offense required the jury
to find that the disputed factual element, whether
defendant had the intent to commit larceny, existed
and this element is not required for a conviction
of breaking and entering without permission.
Therefore, the trial court abused its discretion in
denying defendant’s requested instruction of the
lesser misdemeanor offense of breaking and entering
without permission. [Slip op at 2 (citation
omitted).]
5
The dissent also noted that the requested instruction would
not have resulted in undue confusion or some other injustice.
Defendant sought leave to appeal from this Court. This
Court granted leave to appeal in this case and in People v
Silver, 466 Mich ___; ___ NW2d ___ (2002), ordering that the
two cases be argued and submitted together.3
II
Although much of our more recent case law has disregarded
it, resolution of the first issue presented in this case is
governed by MCL 768.32(1), which provides:
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.
MCL 768.29 requires the court to “instruct the jury as to the
3
463 Mich 958-959 (2001). The grant order limited the
appeal to the following issues:
[W]hether (1) the trial court erred in
refusing to give the requested misdemeanor lesser
included offense instruction, and (2) if so,
whether the error was harmless. In addressing the
harmless error issue, the parties shall discuss the
applicability of People v Richardson, 409 Mich 126
(1980), People v Beach, 429 Mich 450 (1988), People
v Mosko, 441 Mich 496 (1992), People v Lukity, 460
Mich 484 (1999), People v Snyder, 462 Mich 38
(2000), and People v Elston, 462 Mich 751 (2000).
6
law applicable to the case” and indicates that “[t]he failure
of the court to instruct the jury on any point of law shall
not be ground for setting aside the verdict of the jury unless
such instruction is requested by the accused.”
A version of MCL 768.32 has been in existence since 1846.
1846 CL 5,952 provided:
“[U]pon an indictment for any offense,
consisting of different degrees, as prescribed in
this title, the jury may find the accused not
guilty of the offense in the degree charged in the
indictment, and may find such accused person guilty
of any degree of such offense, inferior to that
charged in the indictment, or of an attempt to
commit such offense.” [Hanna v People, 19 Mich 316,
320-321 (1869).]
In Hanna, the defendant was charged with assault with
intent to kill. An issue before the Court was whether the
trial court erred in instructing the jury that if it did not
find the defendant guilty of the offense charged in the
information, it might find the defendant guilty of simple
assault and battery, which was a misdemeanor. In addressing
the issue, this Court first discussed the general common-law
rule, stating:
The general rule at common law was, that when
an indictment charged an offense which included
within it another less offense or one of a lower
degree, the defendant, though acquitted of the
higher offense, might be convicted of the less.
This rule, however, was subject to the
qualification, that upon an indictment for a
felony, the defendant could not be convicted of a
misdemeanor. [Id., 318.]
7
After explaining that the bases for the misdemeanor
qualification had ceased to exist, the Court construed the
1846 version of the statute because it believed that the
statute governed the case before it. The Court’s analysis of
the statute is enlightening. In construing the statute,
Justice Christiancy, writing for the Court, stated:
I do not think this provision was intended to
be restricted in its application to offenses
divided by the statutes contained in this title
(which included all the provisions in reference to
crimes), into classes expressly designated by the
name of “degrees.” Thus confined, it would apply,
so far as I have been able to discover, only to the
single case of an indictment for murder in the
first degree, and would not even include
manslaughter as a lower degree of the offense, but
only murder in the second degree; since murder is
the only offense divided by the statute into
classes expressly designated as “degrees.” Beside,
if thus restricted to the crime of murder, it can
apply only to that very class of cases in which it
was not needed, either as declaratory of, or as
amending the common law; since, without the
provision, the common law by the narrowest
application ever adopted, had already fully
provided for the case; as no one can doubt that
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 offenses being felonies included in the
charge. But, if this is not clear enough in
itself, the statute has put this view in the
clearest possible light; by expressly providing in
the next section (Sec 3, Ch 153, Rev Stat of 1846),
after dividing murder into degrees, for a
conviction of murder in the second degree upon a
charge of murder in the first, though it is silent
as to a verdict of manslaughter in such a case.
If, therefore, section sixteen of chapter 161,
above quoted at length, is not to be applied to any
8
offenses not divided into degrees eo nomine, then
it can have no application or effect whatever, and
must have been inserted in the statute for no
purpose or object. Such a construction is
inadmissible, if the provision will admit of any
other.
Whatever may have been the proper construction
of this provision under the Revised Statutes of New
York, where it is preceded by very different
provisions, it must, I think, in the connection in
which it is found in our revision, be construed as
extending 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.[4] [Id., 321-322.]
The Court further noted that the circuit courts had
consistently construed the statute as removing the misdemeanor
restriction of the common-law rule and authorizing a
conviction “for any substantive offense included in the
offense charged, without reference to the fact that one was a
felony and the other a misdemeanor . . . .” Id., 323.
On the basis of its analysis of the statute, the Court
concluded that because the assault statute provided for
“assaults of various kinds and degrees of enormity, depending
upon the intent with which, and the circumstances under which
4
In 1861, this Court explained, “It is a general rule of
criminal law, that a jury may acquit of the principal charge,
and find the prisoner guilty of an offense of lesser grade, if
contained within it.” People v McDonald, 9 Mich 150, 153
(1861).
9
the assault may have been made,” an indictment for any of the
higher grades of assault must include the inferior degree of
simple assault, and the defendant could be convicted of the
included offense. Id., 322-323. The Court rejected the
defendant’s argument that he could not be prosecuted by
information because he had never been examined on a charge of
a misdemeanor; because the misdemeanor was included in the
charge of the felony, an examination upon the higher offense
was an examination upon the lesser offense included within it.
Beginning with a series of cases released in 1975, this
Court’s analysis moved away from MCL 768.32 and the
construction that the statute had been given by the Hanna
Court. The two most noteworthy cases in this series are
People v Jones, 395 Mich 379; 236 NW2d 461 (1975), and People
v Chamblis, 395 Mich 408; 236 NW2d 473 (1975).
In Jones, the defendant, upon retrial, was charged with
second-degree murder and convicted of that offense. The trial
court instructed the jury on second-degree murder and
voluntary manslaughter. However, the trial court refused
defense counsel’s request that the jury be instructed on the
statutory offense of killing or injuring a person by careless,
reckless, or negligent discharge of a firearm.
In analyzing whether this was a lesser included offense
on which the jury should have been instructed, this Court
10
first opined that the law of lesser included offenses in
Michigan had not been clear or consistent. It noted that the
common law had defined lesser included offense to mean
necessarily included lesser offenses—that is, the lesser
offense “must be such that it is impossible to commit the
greater without first having committed the lesser.” Id., 387.
However, it then explained, without citation of any Michigan
authority, that this definition was conceded to be “unduly
restrictive” and that most jurisdictions, including Michigan,
“have statutes that are broadly construed to permit conviction
of ‘cognate’ or allied offenses of the same nature under a
sufficient charge.” Id. This Court explained that these
“lesser offenses are related and hence ‘cognate’ in the sense
that they share several elements, and are of the same class or
category, but may contain some elements not found in the
higher offense.” Id.
Further, applying this analysis to the case before it,
the Jones Court concluded that reckless discharge of a firearm
causing death may be a lesser included offense of second
degree murder. Examination of the two offenses demonstrated
“the overlapping of certain elements and common statutory
purpose.” Id., 389. Thus, the two offenses were cognate.
The Court then reasoned that while, in the case of a
necessarily included lesser offense, the evidence would always
11
support the lesser if it supports the greater, in the case of
a cognate lesser offense, the evidence “must be examined to
determine whether that evidence would support a conviction of
the lesser offense.” Id., 390. Because the evidence would
have supported a guilty verdict on the offense of careless,
reckless, or negligent discharge of a firearm causing death,
the Court concluded that the trial court should have given the
requested instruction.
Justice Coleman dissented from the majority opinion in
Jones because she disagreed with the theory of lesser included
offenses adopted by the majority. She explained that it would
blur the lines of responsibility in the criminal justice
process, reasoning:
The “cognate,” “related,” or “allied” lesser
offense (it is not in reality “included”) theory as
here presented conjures up visions of increased
rather than diminished confusion.
It invites appeals because of its
formlessness. It blurs the roles of prosecutor,
judge and defense counsel. If not contrary to our
statutes, it adds a new act or section to the
existing legislation.
It threatens due process as to defendant and
fundamental fairness as to the people in the
preparation and presentation of the case.
Unless the tendencies of past history are
altered, we can anticipate in some cases a result
the opposite of that desired by my colleagues.
Considering the number of offenses by our
definition “related” or “allied” to this or other
12
major crimes, juries presented with foreseeable
smorgasbords of possibilities conceivably will
return unjustifiable verdicts of guilty.
In my opinion, the theory adopted today
neither promotes the efficient and careful
operation of the criminal justice system nor is
likely to result in a fairer trial for the
defendant. [Id., 406.]
In explaining the reasons for her disagreement with the
majority’s theory, Justice Coleman noted that the decision to
charge a person with a crime was the prosecutor’s
responsibility and that the Court had held that courts may not
interfere with that process. She explained that after the
crime was charged and a trial held, MCL 768.32 permits the
jury to consider other offenses. However, the statute did not
leave the jury free to convict for any felony or misdemeanor;
only degrees or an attempt of the offense charged could be
considered. Thus, as Justice Coleman construed the statute,
MCL 768.32 only permits consideration of necessarily included
lesser offenses. Further, which necessarily included lesser
offenses warrant jury instructions should be determined in
reference to the offense charged and the evidence presented.
Analyzing the case before the Court, Justice Coleman concluded
that the offense of careless, reckless, or negligent discharge
of firearms was not a degree of murder within the meaning of
MCL 768.32.
13
In Chamblis, an opinion that was decided the same day as
Jones, the defendant was charged with armed robbery. “Over
defense counsel’s objection, the jury was instructed on the
lesser included offenses of unarmed robbery and larceny from
the person.” Chamblis, supra at 413-414. The jury convicted
the defendant of the larceny offense. On appeal, the
defendant challenged the trial court’s decision to give the
lesser included offense instructions. The Court first noted
that unarmed robbery was a necessarily included lesser offense
of armed robbery. Therefore, if there was evidence to allow
the case to go to the jury on the armed robbery charge, there
necessarily was evidence to support a charge of unarmed
robbery. The Court then considered the larceny offense. The
Court appeared to conclude that larceny from a person was a
necessarily included lesser offense of robbery. However, it
also considered whether the larceny offense was supported by
the evidence adduced at trial, concluding that it was.
The Chamblis Court then discussed the problem of
compromise verdicts and reinstated the common-law restriction
on misdemeanor offenses. Recognizing the position taken by
the Hanna Court, the Chamblis Court stated:
While the technical reasons that existed for
the common law rule have disappeared, we see strong
policy reasons which still support that common law
qualification on the doctrine of conviction of
lesser included offenses. “There would be a great
difference between a conviction for manslaughter
14
under an indictment for second degree murder, and a
conviction for disturbing the peace under the same
charge. Does not the policy against harassment and
a continual siege of accusations and charges seem
to have some application?” Comment, 57 Nw U L R
62, 73 (1962). We answer in the affirmative.
We are convinced that the cause of justice is
not well served by convicting of assault and
battery a defendant charged with murder. As a
matter of policy people who commit serious crimes
should be punished for those offenses, and those
who did not commit such serious crimes should not
be tried for those crimes only to be found guilty
of a much lower offense. In the example cited, if
the most serious offense for which a jury feels
conviction is justified is assault and battery, the
original charge of murder appears to bear no
realistic relationship to the offense committed,
and no good purpose would be served by allowing
such instruction.
* * *
We are establishing a rule today, as a matter
of policy, limiting the extent of compromise
allowable to a jury in deciding whether to convict
of a lesser included offense. In any case wherein
the charged offense is punishable by incarceration
for more than two years, the court, whether or not
requested, may not instruct on the lesser included
offenses for which the maximum allowable
incarceration period is one year or less. [Id.,
[5]
428-429.]
Justice Lindemer dissented. In discussing MCL 768.32 and
MCL 768.29, he stated:
As has been demonstrated, the informed choice
of defense counsel to restrict attention to the
principal charge has not been foreclosed by the
5
People v Cazal, 412 Mich 680, 683; 316 NW2d 705 (1982),
limited the Chamblis misdemeanor cutoff rule to jury trials.
In contrast, we hold in the present case that MCL 768.32(1)
applies in both bench and jury trials.
15
majority’s cases; neither is it prohibited by
statute. [MCL 768.32] simply speaks to the
possibility that the jury may find the accused not
guilty of an offense in the degree charged in the
indictment while still allowing a guilty verdict of
any inferior degree of such offense. It does not
speak to instructions on lesser included offenses.
[MCL 768.29] says that the court shall instruct the
jury as to the law applicable to the case, but does
not mandate what law is applicable to the case.
[Id., 433.]
Justice Lindemer also disagreed with the majority’s
“discussion of instructions on lesser included cognate
offenses,” its “rule cutting off lesser included offense
instructions for which the maximum allowable incarceration
period is one year or less when the charged offense is
punishable by incarceration for more than two years, and to
the policy limitation on the extent of compromise allowable.”
Id.
Justice Coleman concurred in part and dissented in part.
She concurred in the reinstatement of the defendant’s
convictions and agreed that unarmed robbery was a necessarily
included lesser offense of armed robbery. However, she
reluctantly agreed with Justice Lindemer’s analysis of the
majority opinion concerning the cutting off of included
offense instructions according to penalty, stating:
I agree with him because I believe him to be
right. The reluctance is born of the foreseeably
lengthened “laundry list” of offenses and jurors
who would be required to absorb possibly dozens of
16
pages of instructions regarding the many offenses
possible under the “cognate”, “related” or “allied”
offense theory of Jones. [Id., 431.]
In People v Stephens, 416 Mich 252, 255; 330 NW2d 675
(1982), this Court overruled the misdemeanor cutoff rule
articulated in Chamblis, holding:
[T]he policies behind the Chamblis rule would
be better served by a more flexible approach to
lesser included offense instructions on
misdemeanors. Whenever an adequate request for an
appropriate instruction is supported by a rational
view of the evidence adduced at trial, the trial
judge shall give the requested instruction unless
to do so would result in a violation of due
process, undue confusion, or some other injustice.
The situation in Stephens is remarkably similar to that
presented in the case before us. The defendant was charged
with breaking and entering with intent to commit a felony or
larceny. The defendant did not dispute the allegation of
breaking and entering a doctor’s office. The defendant’s
theory was that he lacked the requisite intent to commit
larceny. Defense counsel requested that the jury be
instructed on the lesser included misdemeanor of entering
without permission. The trial judge felt compelled by
Chamblis to deny the request.
The Stephens Court reasoned that the possibility of a
compromised verdict did not justify an arbitrary limitation
according the maximum term of confinement. It noted that from
the defendant’s point of view, an instruction on a lesser
17
included misdemeanor offense might further a just result by
precluding a felony conviction unsupported by the jury’s
belief of guilt beyond a reasonable doubt. While the goal of
avoiding jury confusion was an important one, the Court
believed that the restrictions it imposed on misdemeanor
instructions would alleviate this problem by limiting the
number of such lesser included offense instructions.
Moreover, its requirement that all lesser included offense
instructions be rationally supported by the evidence would
help to alleviate juror confusion by also limiting the number
of instructions given. Id., 260.
The Court articulated a five-part test for determining
when lesser included misdemeanor instructions should be given.
This test was derived from United States v Whitaker, 144 US
App DC 344; 447 F2d 314 (1971). First, there must be a proper
request for the instruction. Stephens, supra at 261. Second,
“there must be an appropriate relationship between the charged
offense and the requested misdemeanor.” Id., 262. In other
words, the Court explained, there must be an inherent
relationship between the greater and lesser offense:
“[T]hey must relate to the protection of the
same interests, and must be so related that in the
general nature of these crimes, though not
necessarily invariably, proof of the lesser offense
is necessarily presented as part of the showing of
the commission of the greater offense.” [Id.,
18
quoting Whitaker, supra at 319.][6]
Third, the requested misdemeanor must be supported by a
rational view of the evidence adduced at trial. Not only must
there be some evidence that would support a conviction on the
lesser offense, but
“proof on the element or elements differentiating
the two crimes must be sufficiently in dispute so
that the jury may consistently find the defendant
innocent of the greater and guilty of the lesser
included offense.” [Id., 263., quoting Whitaker,
supra at 317.]
Stated another way,
“[a] lesser-included offense instruction is only
proper where the charged greater offense requires
the jury to find a disputed factual element which
is not required for conviction of the lesser
included offense.” [Id. (citations omitted).]
In discussing this element, the Court expressly refused to
extend the rule of Jones. Id., 264. Fourth, if the
prosecutor requests the instruction, the defendant must have
adequate notice of it as one of the charges against which he
6
This Court further clarified the second element in
People v Steele, 429 Mich 13, 19; 412 NW2d 206 (1987),
stating:
The second condition requires that an
“appropriate relationship” exist between the
charged offense and the requested misdemeanor.
This “appropriate” or “inherent” relationship has a
two-part inquiry. First, the greater and lesser
offenses must both relate to the protection of the
same interests. Second, they must be related in an
evidentiary manner, so that, generally, proof of
the misdemeanor is necessarily presented as part of
the proof of the greater charged offense.
19
must defend. Id. Fifth, the requested instructions must not
cause undue confusion or some other injustice. Id. The Court
also noted that a trial court’s decision to grant or deny a
requested lesser included misdemeanor instruction would only
be reversed upon a finding of an abuse of discretion. Id.,
265.
As the preceding discussion illustrates, many of our more
recent decisions concerning lesser included offenses have
disregarded the statute and much of the older case law.
Having done so, we now must decide how to reconcile these
divergent approaches to lesser included offense instructions.
As this Court has recognized, matters of substantive law are
left to the Legislature. People v Glass (After Remand), 464
Mich 266, 281; 627 NW2d 261 (2001); McDougall v Schanz, 461
Mich 15, 27; 597 NW2d 148 (1999). Determining what charges a
jury may consider does not concern merely the “judicial
dispatch of litigation.” Id., 30. Rather, the statute
concerns a matter of substantive law. As this Court has
noted,
[t]he measure of control exercised in connection
with the prevention and detection of crime and
prosecution and punishment of criminals is set
forth in the statutes of the State pertaining
thereto, particularly the penal code and the code
of criminal procedure. The powers of the courts
with reference to such matters are derived from the
statutes. [People v Piasecki, 333 Mich 122, 143; 52
NW2d 626 (1952).]
20
Therefore, in our opinion, it is necessary to return to the
statute and the construction it was given by the Hanna Court
and by Justice Coleman in her dissent in Jones.
In pertinent part, the statute provides that the jury
“may find the accused person guilty of a degree of that
offense inferior to that charged in the indictment.” MCL
768.32(1). As the Hanna Court explained, the provision was
not intended to be limited only to those expressly divided
into “degrees,” but was intended to extend to all cases in
which different grades of offenses or degrees of enormity had
been recognized. Moreover the statute removed the common-law
misdemeanor restriction. Thus, application of the statute is
neither limited to those crimes expressly divided into degrees
nor to lesser included felonies.
Moreover, Justice Coleman opined that MCL 768.32 only
permitted consideration of necessarily included lesser
offenses, not cognate lesser offenses. The language of the
statute supports this conclusion. The statute permits the
jury to convict a defendant of a degree of “that offense
inferior to that charged in the indictment.” The language of
the statute only permits consideration of a degree of those
offenses that are inferior to the greater offense charged.7
7
We note that MCL 768.32(1), which is quoted in its
entirety on page 11, also permits instruction on an attempt to
(continued...)
21
In People v Torres (On Remand), 222 Mich App 411; 564 NW2d 149
(1997), the Court of Appeals considered the meaning of the
word “inferior,” as used in MCL 768.32. The Court stated:
[W]e conclude that under MCL 768.32(1), an
offense may be inferior to another even if the
penalties for both offenses are identical. We
believe that the word “inferior” in the statute
does not refer to inferiority in the penalty
associated with the offense, but, rather, to the
absence of an element that distinguishes the
charged offense from the lesser offense. The
controlling factor is whether the lesser offense
can be proved by the same facts that are used to
establish the charged offense. As the Membres
Court[8] noted, the defendant’s due process notice
rights are not violated because all the elements of
the lesser offense have already been alleged by
charging the defendant with the greater offense.
[Id., 419-420.]
This would foreclose consideration of cognate lesser offenses,
which are only “related” or of the same “class or category” as
the greater offense and may contain some elements not found in
the greater offense.
Justice Coleman further explained that in determining
whether a necessarily included lesser offense instruction or
an attempt instruction should be given, one must also consider
whether the evidence presented supported such an instruction.
Before the Jones and Chamblis decisions, this had been a
7
(...continued)
commit such offense. However, that aspect of the statute is
not at issue in the present cases.
8
People v Membres, 34 Mich App 224; 191 NW2d 66 (1971).
22
consideration. For example, in People v Repke, 103 Mich 459,
470-471; 61 NW 861 (1895), the Court concluded that it was
proper for the trial court to instruct the jury that it must
find the defendant guilty of first-degree murder or acquit him
because there was “no evidence warranting a different
direction, and no circumstances which would lessen the
degree.” In People v Onesto, 203 Mich 490, 496; 170 NW 38
(1918), the Court held that “[u]nless the proofs showed that
the jury would have been justified in convicting [codefendant]
Damico of an offense of lesser grade, there was no occasion
for the court to instruct them in regard to it.” In People v
Patskan, 387 Mich 701, 713; 199 NW2d 458 (1972), the Court
concluded that “the trial court would not have committed error
in refusing to give instructions on attempted assault with
intent to rob being armed.” Quoting from Gillespie’s Michigan
Criminal Law & Procedure, the Court noted that “it is not
error to omit an instruction on such lesser offenses, where
the evidence tends only to prove the greater . . . .” Id.,
711. See also, People v Netzel, 295 Mich 353; 294 NW 708
(1940); People v Kolodzieski, 237 Mich 654; 212 NW 958 (1927).
Additionally, Sansone v United States, 380 US 343; 85 S
Ct 1004; 13 L Ed 2d 882 (1965), is instructive on this point.
Similar to MCL 768.32, Rule 31(c) of the Federal Rules of
Criminal Procedure provides that a “defendant may be found
23
guilty of an offense necessarily included in the offense
charged or of an attempt to commit either the offense charged
or an offense necessarily included therein if the attempt is
9
an offense.” In explaining when instructions should be
given under the rule, the Sansone Court stated:
Thus, “(i)n a case where some of the elements
of the crime charged themselves constitute a lesser
crime, the defendant, if the evidence justifie(s)
it . . . (is) entitled to an instruction which
would permit a finding of guilt of the lesser
offense.” But a lesser-offense charge is not
proper where, on the evidence presented, the
factual issues to be resolved by the jury are the
same as to both the lesser and the greater
offenses. In other words, the lesser offense must
be included within but not, on the facts of the
case, be completely encompassed by the greater. A
lesser-included offense instruction is only proper
where the charged greater offense requires the jury
to find a disputed factual element which is not
required for a conviction of the lesser-included
offense. [Id., 349-350 (citations omitted).][10]
9
While MCL 768.32 does not use the same phrasing as F R
Crim P 31(c), which refers to “an offense necessarily included
in the offense charged,” as we have already explained, the
wording of MCL 768.32 also limits consideration of lesser
offenses to necessarily included lesser offenses.
10
This analysis is consistent with Sparf v United States,
156 US 51, 63-64; 15 S Ct 273; 39 L Ed 343 (1895), in which
the Court stated:
The court below assumed, and correctly, that
section 1035 of the Revised Statutes did not
authorize a jury in a criminal case to find the
defendant guilty of a less offense than the one
charged, unless the evidence justified them in so
doing. Congress did not intend to invest juries in
criminal cases with power to arbitrarily disregard
the evidence and the principles of law applicable
(continued...)
24
We believe that this analysis is consistent with our prior
case law and equally applicable to MCL 768.32. Therefore, we
hold that a requested instruction on a necessarily included
lesser offense is proper if the charged greater offense
requires the jury to find a disputed factual element that is
not part of the lesser included offense and a rational view of
the evidence would support it.11 To permit otherwise would be
10
(...continued)
to the case on trial. The only object of that
section was to enable the jury, in case the
defendant was not shown to be guilty of the
particular crime charged, and if the evidence
permitted them to do so, to find him guilty of a
lesser offense necessarily included in the one
charged, or of the offense of attempting to commit
the one charged. Upon a careful scrutiny of the
evidence, we cannot find any ground whatever upon
which the jury could properly have reached the
conclusion that the defendant Hanson was only
guilty of an offense included in the one charged,
or of a mere attempt to commit the offense charged.
11
Justice Ryan’s dissent in People v Kamin, 405 Mich 482;
275 NW2d 777 (1979), demonstrates this principle in action.
In People v Cargill, one of the companion cases to Kamin, the
defendant was charged with armed robbery. Defense counsel
requested that the jury be instructed on unarmed robbery,
among other lesser included offenses. The undisputed evidence
established that the men who robbed the store were armed with
a sawed-off shotgun and that they took the money with force or
threat of violence. The defendant’s defense was alibi. The
only question that the jury was required to resolve was
whether defendant was one of the men present when the crime
was committed. It was not required to resolve a dispute about
whether the men were armed. Thus, the factual issue was the
same with respect to both the lesser and greater offenses, and
there was “no evidence which would justify the jury in
concluding that the greater offense was not committed and the
lesser included offenses were committed.” Id., 516.
(continued...)
25
inconsistent with the truth-seeking function of a trial, as
expressed in MCL 768.29.12 To the extent that our prior
decisions, including Jones, Chamblis, Stephens, and People v
Jenkins, 395 Mich 440; 236 NW2d 503 (1975)13 and their progeny
conflict with our holding today, they are overruled.14
11
(...continued)
Therefore, Justice Ryan would have affirmed the defendant’s
conviction.
12
MCL 768.29 states in pertinent part, “It shall be the
duty of the judge to control all proceedings during the trial,
and to limit the introduction of evidence and the argument of
counsel to relevant and material matters, with a view to the
expeditious and effective ascertainment of the truth regarding
the matters involved.” (Emphasis added.)
13
Jenkins held that in a case involving a charge of
first-degree murder, the trial court is always required to
instruct the jury on the necessarily lesser-included offense
of second-degree murder, even where such an instruction is not
requested or is objected to. In light of our holding that a
requested instruction on a necessarily included offense must
be supported by the evidence, an instruction on second-degree
murder, as a necessarily included lesser included offense of
first-degree murder, is not automatically required. Rather,
such an instruction will be proper if the intent element
differentiating the two offenses is disputed and the evidence
would support a conviction of second-degree murder. However,
given that in many cases involving first-degree murder, the
intent element is disputed, we suspect that more often than
not, an instruction on second-degree murder will be proper.
14
The doctrine of stare decisis, which furthers the
interests of stability and continuity in the judicial process,
does not tie us to the decisions in Jones, Chamblis, Stevens,
and Jenkins. Stare decisis should not be invoked to prevent
the Court from overruling wrongly decided cases or erroneous
decisions determining the meaning of statutes. See Robinson
v Detroit, 462 Mich 439, 463-468; 613 NW2d 307 (2000). The
decisions we overrule today blatantly disregarded MCL 768.32
as well as previous case law. The interests in the
(continued...)
26
The dissent claims that MCL 768.32(1) is consistent with
the Stephens test and that we have merely adopted a “watered
down” version of the Stephens test. We respectfully disagree.
A proper interpretation of MCL 768.32(1) renders some elements
of the Stephens test irrelevant and unnecessary. First, the
concern regarding notice to a defendant is irrelevant because
the principal charge contains all the elements of the
necessarily lesser included offense; thus defendant is already
on notice. Second, the concern regarding jury confusion is
minimized to the extent that MCL 768.32(1) precludes cognate
lesser misdemeanors and only permits necessarily included
lesser misdemeanors if supported by a rational view of the
evidence. Additionally, an “inherent relationship” between
the charged offense and the requested misdemeanor is not a
concern because MCL 768.32(1) does not permit cognate lesser
instructions.
Having clarified the proper analysis for determining when
a lesser included instruction must be given, we now turn to
14
(...continued)
“evenhanded, predictable, consistent development of legal
principles” and the “integrity of the judicial process”
require that we rectify the conflict our case law has created.
[Id., 463.] The dissent is mistaken in claiming that we have
not even given “lip-service” to the principle of stare
decisis. Slip op at 12. To the contrary, we have considered
it and find that overruling the previous cases of this Court
that ignored a statute to be warranted.
27
the case before us.15
Defendant Cornell was charged with breaking and entering
with intent to commit larceny. MCL 750.110 provides:
A person who breaks and enters, with intent to
commit a felony or a larceny therein, a tent,
hotel, office, store, shop, warehouse, barn,
15
We note that the rules regarding lesser included
offenses are different when a defendant is charged with a
major controlled substance offense. MCL 768.32(2) states:
Upon an indictment for an offense specified in
section 7401(2)(a)(i) or (ii) or section
7403(2)(a)(i) or (ii) of the public health code,
Act No. 368 of the Public Acts of 1978, being
sections 333.7401 and 333.7403 of the Michigan
Compiled Laws, or conspiracy to commit 1 or more of
these offenses, the jury, or judge in a trial
without a jury, may find the accused not guilty of
the offense in the degree charged in the indictment
but may find the accused guilty of a degree of that
offense inferior to that charged in the indictment
only if the lesser included offense is a major
controlled substance offense. A jury shall not be
instructed as to other lesser included offenses
involving the same controlled substance nor as to
an attempt to commit either a major controlled
substance offense or a lesser included offense
involving the same controlled substance. The jury
shall be instructed to return a verdict of not
guilty of an offense involving the controlled
substance at issue if it finds that the evidence
does not establish the defendant's guilt as to the
commission of a major controlled substance offense
involving that controlled substance. A judge in a
trial without a jury shall find the defendant not
guilty of an offense involving the controlled
substance at issue if the judge finds that the
evidence does not establish the defendant's guilt
as to the commission of a major controlled
substance offense involving that controlled
substance. [Emphasis added.]
28
granary, factory or other building, structure,
boat, ship, or railroad car is guilty of a felony,
punishable by imprisonment for not more than 10
years.
Defendant Cornell requested that the jury also be instructed
on the offense of breaking and entering without permission.
MCL 750.115(1) provides in pertinent part:
Any person who breaks and enters or enters
without breaking, any dwelling, house, tent, hotel,
office, store, shop, warehouse, barn, granary,
factory or other building, boat, ship, railroad car
or structure used or kept for public or private
use, or any private apartment therein, or any
cottage, clubhouse, boat house, hunting or fishing
lodge, garage or the out-buildings belonging
thereto, any ice shanty with a value of $100.00 or
more, or any other structure whether occupied or
unoccupied, without first obtaining permission to
enter from the owner or occupant, agent, or person
having immediate control thereof, is guilty of a
misdemeanor.
We hold that breaking and entering without permission is
a necessarily included lesser offense of breaking and entering
with the intent to commit a felony. The elements of breaking
and entering with intent to commit larceny are: (1) the
defendant broke into a building, (2) the defendant entered the
building, and (3) at the time of the breaking and entering,
the defendant intended to commit a larceny therein. People v
Toole, 227 Mich App 656, 658; 576 NW2d 441 (1998). 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 greater offense
29
without first committing the lesser offense.
Moreover, a conviction of the greater offense requires
the jury to find a disputed factual element—the intent to
commit larceny—which is not part of the lesser offense. The
evidence presented at trial offered conflicting reasons about
why defendant, Prescott, and Christopher Cornell went to the
home and whether they intended to steal anything. There was
testimony that Prescott wanted to show Christopher and
defendant where he had outrun a police dog or that he wanted
to show them “a wicked place.” There was also testimony that
the three just went there to look around. Finally, there was
testimony that the three went to the house hoping to find
things of value to steal. Thus, intent to commit larceny—the
factual element differentiating the greater offense from the
lesser offense—was in dispute. Because there was evidence to
support a finding that defendant lacked the intent to commit
larceny, the trial court erred in refusing to give the
requested misdemeanor lesser offense instruction of breaking
and entering without permission.
III
This Court has made it clear that harmless error analysis
is applicable to instructional errors involving necessarily
included lesser offenses:
Properly understood, the doctrine of harmless
error is perfectly consonant with the purpose and
30
function of an appellate court. Our constitutional
mission, as the highest branch of the one court of
justice, is to correct errors that have deprived a
litigant of a fair trial or have otherwise
interfered significantly with the trial’s search
for truth and a just verdict. With few exceptions,
the judgment of a trial court may not be set aside
on the ground of error unless there is a
determination that the error was not harmless. We
see no reason to exclude from this rule errors
involving a failure to provide a requested
instruction on a necessarily included offense.
[People v Mosko, 441 Mich 496, 503; 495 NW2d 534
(1992).]
Therefore, having concluded that the trial court erred in
refusing to give the requested instruction, we now must
consider whether the error was harmless.
MCL 769.26 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 any 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 resulted in a miscarriage
of justice. [Emphasis added.]
Further, MCR 2.613(A) states:
Harmless Error. An error in the admission or
the exclusion of evidence, an error in a ruling or
order, or an error or defect in anything done or
omitted by the court or by the parties is not
ground for granting a new trial, for setting aside
a verdict, or for vacating, modifying, or otherwise
disturbing a judgment or order, unless refusal to
take this action appears to the court inconsistent
with substantial justice.
Application of these provisions, as developed in this Court’s
31
harmless error jurisprudence, requires error to be classified
as constitutional or nonconstitutional and as preserved or
unpreserved. If the error is constitutional, it must be
further classified as structural or nonstructural. People v
Carines, 460 Mich 750; 597 NW2d 130 (1999); People v Lukity,
460 Mich 484; 596 NW2d 607 (1999).16
We are satisfied that the present case concerns
nonconstitutional error that has been preserved by
defendant’s request for the lesser included misdemeanor
instruction.17 A preserved, nonconstitutional error is not a
16
Constitutional errors that are structural in nature are
subject to automatic reversal. People v Anderson (After
Remand), 446 Mich 392, 405; 521 NW2d 538 (1994). If a case
involves nonstructural, preserved constitutional error, an
appellate court should reverse unless the prosecution can show
that the error was harmless beyond a reasonable doubt.
Carines, supra at 774. If the constitutional error is not
preserved, it is reviewed for plain error. Id.
In cases involving preserved, nonconstitutional errors,
the defendant must establish that it is more probable than not
that the error undermined reliability in the verdict. Id.;
Lukity, supra at 495. Unpreserved, nonconstitutional errors
are reviewed for plain error. Carines, supra at 774.
17
One Sixth Circuit case has characterized the failure
to instruct on a lesser included offense as “intrinsically
harmful structural error” requiring reversal. United States
v Monger, 185 F3d 574, 578 (CA 6, 1999). Further, some older
Michigan case law has suggested that the failure to instruct
is automatically error requiring reversal. See, e.g., People
v Van Smith, 388 Mich 457, 461-462; 203 NW2d 94 (1972).
However, we disagree with these assessments.
Structural error is a concept that has typically been
applied to errors of constitutional magnitude, not to
(continued...)
32
ground for 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.”
Id., 495-496. Stated another way, the analysis focuses on
whether the error undermined reliability in the verdict. Id.,
495; see also People v Elston, 462 Mich 751, 766; 614 NW2d 595
(2000); People v Snyder, 462 Mich 38, 45; 609 NW2d 831 (2000).
Therefore, to prevail, defendant must demonstrate that it is
more probable than not that the failure to give the requested
lesser included misdemeanor instruction undermined reliability
17
(...continued)
statutory errors as in this case. See, e.g., People v
Breverman, 19 Cal 4th 142, 165; 77 Cal Rptr 2d 870; 960 P2d
1094 (1998) (holding that “the failure to instruct sua sponte
on a lesser included offense in a noncapital case is, at most,
an error of California law alone, and is thus subject only to
state standards of reversibility”) and Neder v United States,
527 US 1; 119 S Ct 1827; 144 L Ed 2d 35 (1999).
In Neder, the Court determined that the failure to
instruct the jury on an element of the offense for which the
defendant was convicted, was not a “structural” error subject
to automatic reversal. The Court opined that the error
differed from the limited class of cases in which it had found
structural error, stating,
Unlike such defects as the complete
deprivation of counsel or trial before a biased
judge, an instruction that omits an element of the
offense does not necessarily render a criminal
trial fundamentally unfair or an unreliable vehicle
for determining guilt or innocence. [Id., 9.]
33
in the verdict. Carines, supra at 774; Lukity, supra at 495.18
People v Rodriguez, 463 Mich 466; 620 NW2d 13 (2000)
provides further guidance concerning how these principles are
applied in cases involving instructional errors. In
Rodriguez, the defendant was convicted of evading the use tax.
The trial court refused to instruct the jury regarding a
statutory exemption to the use tax, finding the provision
inapplicable to the defendant. Id., 469. This Court
concluded that the statutory exemption would apply if the
evidence introduced by the defendant were believed by the
jury; thus, the instruction should have been given. Id., 474.
We then considered whether the error was “outcome
determinative” because it undermined the reliability of the
verdict. In concluding that the error was not harmless, we
stated:
The jury received no instruction on an
exception to the use tax statute that was crucial
to the defendant's defense and was clearly
supported by the evidence. There is no question
that the error undermined the reliability of the
verdict, and thus was “outcome determinative” under
18
Lukity involved an evidentiary error and further
explained that the effect of an evidentiary error “is
evaluated by assessing it in the context of the untainted
evidence to determine whether it is more probable than not
that a different outcome would have resulted without the
error.” Id., 495. However, one cannot compare the “tainted”
with the “untainted” evidence when the only error asserted is
an instructional error. Nevertheless, pursuant to MCL 769.26,
we review the “entire cause” to determine whether the error
undermined the reliability of the verdict.
34
Lukity and Elston. [Id., 474 (emphasis added).]
Thus, pursuant to Rodriguez, the 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.19 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.
Also, it is important to note that this “substantial
evidence” standard for determining whether reversal is
required on the basis of an instructional error differs from
the standard for determining whether the error occurred. As
discussed, 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
19
We note that no intermediate lesser instructions were
given in this case. If other lesser instructions had been
given and been rejected by the jury, consideration of the
“entire cause” would likely lead us to conclude that the error
did not undermine the reliability of the verdict. See, e.g.,
People v Beach, 429 Mich 450; 418 NW2d 861 (1988), NW2d 526
(1977); People v Mosko, 441 Mich 496; 495 NW2d 534 (1992).
35
conviction; pursuant to MCL 769.26, the “entire cause” must be
surveyed.20
Applying these harmless error principles to defendant
Cornell’s case, we conclude that the error was harmless
because the evidence did not clearly support a conviction for
the lesser included misdemeanor of breaking and entering
without permission. It was defendant’s position at trial that
he broke into the house, but had no intent to steal or commit
any other felony. However, in a statement that was admitted
into evidence, defendant explained that he, Prescott, and
Christopher Cornell went for a walk, during which Prescott
stated that “there was a house back in the woods and they had
a lot of stuff in there that they could make a lot of money.”
Christopher Cornell confirmed that he, defendant, and Prescott
broke into the house to see what they could find, and that
they were “looking for things to steal.” Prescott stated
that, although he had not planned on taking anything, he would
have done so and thought that he “could get a little
souvenir.” Conversely, there is little evidence in the record
to support defendant’s assertion that they just went into the
20
We note that substantial evidence in support of one
offense does not necessarily preclude there also being
substantial evidence in support of the other offense. While
not true of the present case, there may be cases where both
the lesser and the greater offenses are supported by
substantial evidence. Of course, each case must be evaluated
on its own merits.
36
house to look around. Thus, we cannot conclude that the
evidence clearly supports the lesser included misdemeanor
instruction of breaking entering without permission.
Therefore, we conclude that defendant Cornell failed to
satisfy his burden of showing that it was more probable than
not that the failure to provide the requested instruction
undermined the reliability of the verdict and that the error
in this case was harmless.
IV
We conclude that the trial court erred in refusing to
give the requested misdemeanor lesser included offense
instruction of breaking and entering without permission. The
offense was necessarily included in the greater offenses with
which the defendant was charged, and conviction of the greater
offenses required the jury to find a disputed factual element,
namely, the intent to commit larceny, which was not part of
the lesser included offense. However, because the lesser
included instruction was not clearly supported by the
evidence, defendant failed to establish that it is more
probable than not that a different outcome would have resulted
had the lesser offense instruction been given. Therefore, the
error was harmless and defendant’s conviction is affirmed. To
the extent that our prior decisions, including Jones,
Chamblis, Stephens, and Jenkins, conflict with our holding
37
today, they are overruled. Our decision in this case is to be
given limited retroactive effect, applying to those cases
pending on appeal in which the issue has been raised and
preserved.21
CORRIGAN , C.J., and TAYLOR , YOUNG, and MARKMAN , JJ.,
concurred with WEAVER , J.
21
See, e.g., Lowe v Estate Motors Ltd, 428 Mich 439, 475;
410 NW2d 706 (1987); Murray v Beyer Mem Hosp, 409 Mich 217,
221-223; 293 NW2d 341 (1980).
38
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. 115833
ADAM KEITH CORNELL,
Defendant-Appellant.
___________________________________
KELLY, J. (dissenting).
I agree with the majority that it was an abuse of the
trial court's discretion to refuse to deliver the lesser
included offense instructions for breaking and entering
without permission. MCL 750.115. However, I disagree with
the majority's overruling of this Court's longstanding
precedent in rendering its decision.
I would retain and follow that precedent, adhering to the
five-part test for lesser included misdemeanor instructions
announced in People v Stephens1 and consistent with MCL
1
416 Mich 252; 330 NW2d 675 (1985).
768.32(1). Moreover, I would find that defendant was deprived
of lesser included offense instructions critical to his
defense, which was that he entered the house to look around,
not to steal. Because credible evidence was admitted that
supported that defense, the failure to give the instruction
was not harmless error. The majority asserted as much in
People v Rodriguez, 463 Mich 466, 474; 620 NW2d 13 (2000).
I. Lesser-Included Misdemeanor Offenses
Neither party to this case disputed that Stephens is
controlling authority, and neither advocated that Stephens be
overruled. Under Stephens, whenever the following conditions
are met, the trial judge must give an instruction to the jury
on a lesser included misdemeanor: (1) the defendant makes a
proper request, or (2) where the prosecutor requests the
instructions, the defense has had adequate notice, and (3)
there is an "inherent relationship" between the charged
offense and the requested misdemeanor, (4) the misdemeanor is
supported by a rational view of the evidence admitted at
trial, and (5) the requested instructions do not "result in
undue confusion or some other injustice." Stephens, supra at
261-264.
The Stephens test is consistent with MCL 768.32(1), which
reads:
Except as provided in subsection (2)
[regarding controlled substance offenses], upon an
2
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.
The majority announces the rule "that a requested
instruction on a necessarily included lesser offense is proper
if the charged greater offense requires the jury to find a
disputed factual element that is not part of the lesser
included offense and a rational view of the evidence would
support it." Slip op, p 26. It asserts that its rule better
conforms to MCL 768.32(1) than does Stephens. I disagree.
The rule that the majority articulates is merely a
watered-down version of the Stephens test.2 Both require that
the element distinguishing the lesser misdemeanor from the
charged offense be at issue. Both require that the lesser
2
The majority's holding is not limited to overruling the
Stephens test for lesser included misdemeanor offenses. Its
real reach is the creation of a blanket rule for all lessor
offense instructions, including cognate lesser offenses and
necessarily included felony offenses. The rule imposes a high
burden for proving error requiring reversal in lesser included
felony cases and completely precludes the delivery of cognate
lesser offense instructions. But the majority devotes no
direct discussion to this dramatic change in Michigan law.
See People v Mosko, 441 Mich 496, 500-501; 495 NW2d 534 (1992)
(failure to give a requested instruction on a necessarily
included lesser felony is error requiring reversal); People v
Beach, 429 Mich 450, 453, 461-465; 418 NW2d 861 (1988)
(cognate lesser offense instructions must be delivered when
supported by the evidence).
3
offense be supported by a rational view of the evidence.
However, the rule articulated today omits the safeguards of
notice to the defendant and protections against undue jury
confusion. Although I recognize that these safeguards are not
explicitly required by MCL 768.32(1), neither is the
evidentiary requirement to which the majority clings.3
Wisely, the Stephens Court recognized that unrestricted
misdemeanor instructions might result in compromise verdicts
and convictions for misdemeanor offenses unsupported by the
evidence. It recognized, also, that the one-year cutoff rule
established in People v Chamblis4 is overly simplistic. The
Stephens Court unanimously set forth a well-reasoned framework
for deciding what lesser included misdemeanor instructions
must be delivered to a jury.
When the majority discusses earlier interpretations of
MCL 768.32(1), those more consistent with its view that lesser
instructions always must be supported by the evidence, it
refers to the statute's "construction." Slip op, p 10. It
reverts to the decision in People v Hanna,5 which devotes much
of its analysis to rejecting MCL 768.32(1)'s reference to
3
Neither notice nor jury confusion is at issue here, but
the majority dismisses these basic procedural requirements
without discussion.
4
395 Mich 408, 428-429; 236 NW2d 473 (1975).
5
19 Mich 316 (1869).
4
"degree offenses." Hanna illustrates that MCL 768.32(1) does
not provide a clear mandate that this Court must apply. In
readopting Hanna, the majority does not return to a statutory
mandate that was disregarded by this Court in Stephens.
Rather, it reverts to a construction of the statute long ago
abandoned by this Court as unworkable.
While recognizing that the law concerning lesser included
offenses in Michigan has "not been clear or consistent," the
majority has done nothing to promote consistency. I would
adhere to this Court's precedent in Stephens, as well as other
precedent unnecessarily overruled by today's decision.6
II. The Harmful Error
Analyzing the instant case under Stephens, defendant
satisfied requirements (1), (3), and (5). Requirement (2) is
inapplicable. The only question concerns requirement (4),
whether the instructions were supported by a rational view of
the evidence. To satisfy that requirement, the element of
defendant's intent to commit larceny must have been enough in
dispute that the jury could find him innocent of breaking and
entering with intent to commit larceny and guilty of breaking
and entering without permission. See id. at 263.
6
In addition to Stephens, the majority overrules People
v Jenkins, 395 Mich 440; 236 NW2d 503 (1975), People v
Chamblis, supra, People v Jones, 395 Mich 379; 236 NW2d 461
(1975), and their extensive progeny.
5
Defendant's entire defense was that he did not intend to
steal anything from the house. Although his position was not
compelling, there was some evidence to support it in addition
to his own conflicting statements to police, which the
prosecution put in evidence. In his first written statement
to police, defendant repeatedly emphasized that he never
intended to steal anything from the house. The prosecution's
witnesses gave statements to police and testified at trial at
least arguably consistent with the defense.
The credibility of the evidence must be evaluated by the
jury. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748
(1992). The trial court usurped the jury's role when it
refused to give instructions that were supported by a rational
view of the evidence. This was an abuse of the trial court's
discretion.
The majority agrees that the instructions should have
been delivered. The point of contention is whether the trial
court's error was harmless. The majority applies the harmless
error test with little discussion about whether the error was
constitutional in nature. Defendant argues that it was, and
he makes a strong case. An instructional error may rise to
the level of a constitutional error by violating a defendant's
right to due process. See People v Carines, 460 Mich 751,
761; 597 NW2d 130 (1999); see also United States v Gaudin, 515
6
US 506, 510; 115 S Ct 2310; 132 L Ed 2d 444 (1995). An
example is where the trial court omits from the instructions
an element of the charged offense. Carines, supra; People v
Duncan, 462 Mich 47, 52; 610 NW2d 551 (2000).
Here, the judge denied the jury an opportunity to
consider defendant's theory of the case. This deprived
defendant of his right to a fair trial, an error
constitutional in nature. Hence, it is the burden of the
prosecution to prove that the error was harmless. Carines,
supra at 774.
I believe that the instructional error in this case was
not harmless, even when analyzed as nonconstitutional error.
It is well established that, where a court fails to give
lesser included offense instructions, the error is harmless if
the jury rejects an option to convict of another reduced
offense. In People v Beach,7 the Court endorsed this test,
which is found in People v Ross, 73 Mich App 588; 252 NW2d 526
(1977).8 However, where the trial court failed to instruct
7
429 Mich 450; 418 NW2d 861 (1988).
8
The Beach Court modified the holding in People v
Richardson, 409 Mich 126; 293 NW2d 332 (1980), to the extent
that it was inconsistent with Ross. The Richardson Court had
held that it is not harmless error to refuse to instruct on a
lesser included offense of involuntary manslaughter and
reckless use of a firearm. It reasoned that "[t]he jury
was . . . denied the freedom to act according to the evidence,
and moreover was deprived of any option to convict
(continued...)
7
the jury regarding the only requested lesser included
misdemeanor offense, the Ross test cannot be applied.
In Mosko, this Court extended the harmless error test
articulated in Beach, first considering whether the jury had
rejected an instructed lesser included offense to convict the
defendant of the charged offense. Id. at 501-502. However,
the Mosko Court could not apply the "intermediate charge"
analysis on the facts of that case.9 Instead, it concluded
that the error was harmless because the distinguishing factor
between the charged offense and the uninstructed offense was
not disputed at trial. Id. at 505-506. Thus, when a jury
does not reject a lesser offense, the failure to deliver
requested instructions is not harmless when the distinguishing
element is at issue.
This Court's regular application of harmless error
8
(...continued)
consistently with the defendant's testimony . . . ." Id. at
141. It reached that conclusion even though the jury was
instructed on first-degree murder, second-degree murder and
voluntary manslaughter, and returned a guilty verdict on
first-degree murder. Id. at 134-135.
9
The defendant in Mosko was convicted of first-degree
criminal sexual conduct although the jury was given
instructions for second-degree criminal sexual conduct.
However, first-degree criminal sexual conduct is a penetration
offense, whereas second-degree criminal sexual conduct is a
contact offense. The jury was not instructed on third-degree
criminal sexual conduct, a penetration offense. Thus, its
rejection of second-degree criminal sexual conduct shed no
light on whether it would have convicted the defendant of
third-degree criminal sexual conduct. See id. at 497, 505.
8
analysis to evidentiary issues is also instructive. In People
v Lukity,10 a majority held that, in cases of preserved
nonconstitutional error, the defendant bears the burden of
proof. The defendant must show that the outcome of the trial
would more probably than not have been different, but for the
evidentiary error. Id. at 496-497. This Court applied the
Lukity standard to evidentiary error in People v Elston, 462
Mich 751; 614 NW2d 595 (2000), and People v Snyder, 462 Mich
38; 609 NW2d 831 (2000). There, whether the error was outcome
determinative was held to depend on whether it undermined the
reliability of the verdict. Elston, supra at 766; Snyder,
supra at 45.
The majority recently addressed an instructional error in
Rodriguez, although not in the context of lesser included
offenses.11 It concluded that the error was not harmless
because "[t]here was no question that [it] undermined the
reliability of the verdict, and thus was 'outcome
determinative' under Lukity and Elston." Rodriguez, supra
474. It was significant that the jury had received no
instruction on law that was "crucial to the defendant's
defense and [the instruction] was clearly supported by the
10
460 Mich 484; 596 NW2d 607 (1999).
11
The instruction under review in Rodriguez concerned a
statutory exception to culpability for failing to pay taxes.
Id. at 468-469.
9
evidence." Id.
After applying the rule of harmless error that has
emerged from this Court's precedent, I conclude that the error
in this case was not harmless. The fact that substantial
evidence supported defendant's conviction must be regarded as
irrelevant under the circumstances of this case, where there
was evidence to support the lesser offense. Moreover,
defendant admitted to the lesser offense in this case. The
jury was put in the position either of convicting on the
higher charge or seeing the admitted crime go unpunished. By
being denied jury instructions on the lesser included
misdemeanor, defendant was denied the opportunity to present
his defense to the jury. The error was crucial in this case
and cannot be considered harmless.
The jury here, like the jury in Richardson, was unable to
match defendant's statements and theory of defense with a
verdict option. Unlike Richardson and Beach, there was no
indication that it would have rejected the lesser included
offense, had it been given the opportunity.12 Moreover, unlike
in Mosko, the distinguishing element between defendant's
12
In fact, the circumstances suggest the opposite. When
it acquitted defendant of the arson charge, the jury rejected
the prosecution's claim that defendant intended to burn the
house. Defendant admitted being in the house, but denied
either setting the fire or intending to steal anything. It is
possible that the jury would have believed him on both counts.
10
charged offense and the requested lesser included offense was
very much in dispute.13 Therefore, the reliability of the
verdict was undermined and the error was not harmless.
Defendant is entitled to a new trial.
The majority takes the word "clearly" from the Rodriguez
requirement that the lesser offense be "clearly supported by
the evidence,"14 and applies it to require substantial evidence
supporting the lesser offense. Slip op, pp 35-36. In so
doing, it expands Rodriguez to impose an unduly harsh burden
on a defendant.
When a criminal defendant is denied the opportunity to
present his defense to the jury, it should not matter that the
evidence supporting the defense is not substantial. The error
is significant if the lesser offense is supported by any
credible evidence. It must clearly support the lesser offense
in that it must be more than a bare trace of evidence; it must
be something concrete on which a jury could base its verdict.
The majority's expansion of Rodriguez takes the power to
13
In many if not most cases of breaking and entering, a
defendant's claim that he entered without any malicious intent
is suspect. However, the house in this case is the "Heston
house," the one-time home of famed actor Charlton Heston.
Certainly, one could conclude that such a house would be an
attractive local curiosity. Defendant's testimony that he
went to the house only to look around was both corroborated
and contradicted by his companions.
14
Id. at 474.
11
decide a defendant's guilt or innocence, consistent with the
evidence before it, out of the hands of the jury.
III. Other Lesser Offenses
The majority strays beyond the matter at hand, lesser
included misdemeanor offenses, to overrule precedent not even
controlling in the instant case. It devotes pages of
discussion to cognate lesser offenses, and its holding clearly
applies to necessarily included felony offenses.
Not only do I disagree with the reasoning and the result,
I also oppose the majority's wholesale overruling of the
precedent of this Court. In defiance of stare decisis, the
majority contributes to a constant state of flux in Michigan
law. Here, the majority fails even to give lip service to the
principle of stare decisis, instead dismissing this Court's
precedent as "wrongly decided."
IV. Conclusion
The trial court abused its discretion by refusing to
deliver the lesser included misdemeanor instructions for
breaking and entering without permission. Those instructions
should be given in every case where a defendant has offered
some credible evidence to support a lesser included
misdemeanor offense. Moreover, I would not stray from the
well established and long recognized precedent of this Court
that conforms with the legislative mandate of MCL 768.32(1).
12
Applying that precedent, I would find the error in this case
was not harmless, and I would grant defendant a new trial.
CAVANAGH , J., concurred with KELLY , J.
13