People v. Cornell

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