People v. Hawthorne

Michigan Supreme Court

Lansing, Michigan

Chief Justice: Justices:

Opinion

Opinion

Clifford W. Taylor

Chief Justice:

Clifford W. Taylor

Michael F. Cavanagh

Elizabeth A. Weaver

Justices:

Marilyn Kelly

Michael F. Cavanagh

Maura D. Corrigan

Elizabeth A. Weaver

Robert P. Young, Jr.

Marilyn Kelly

Stephen J. Markman

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

FILED APRIL 26, 2006

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 128168

FRANK JAMES HAWTHORNE,

Defendant-Appellee.

_______________________________

BEFORE THE ENTIRE BENCH

PER CURIAM.

The issue in this case is whether a court’s failure to instruct on the defense

of accident requires automatic reversal of a defendant’s conviction where accident

was a central issue in the case. We hold that the failure to instruct on this defense

requires reversal only where the defendant satisfies the standard explicated in

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

463 Mich 466, 474; 620 NW2d 13 (2000).1 In this case, defendant has not

established that the alleged error undermined the reliability of the verdict. We

therefore reverse the judgment of the Court of Appeals and reinstate defendant’s

convictions of second-degree murder, MCL 750.317; and possession of a firearm

during the commission of a felony, MCL 750.227b.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

The Court of Appeals summarized the underlying facts:

On the evening of October 18, 2002, defendant and [Dennis]

Jeffries met at an illegal gambling house and got into an argument

over a $5 bet. When the argument escalated, defendant walked out

of the room and returned with an automatic handgun. Two men tried

unsuccessfully to disarm defendant. Everyone present in the house

then ran for the exits, except for Vance Claxton, who watched the

encounter by peering around a wall. Jeffries said to defendant,

“What you going to do with the gun? We supposed to be family.

We supposed to be better than that. What, you going to shoot me?”

Jeffries then challenged defendant to a fight. When defendant

pressed the barrel of the gun into Jeffries’s chest, Jeffries grabbed

defendant’s wrist and pushed him against the wall. Claxton saw

defendant and Jeffries standing face-to-face and speaking while

Jeffries held defendant’s wrist and they waved the gun around,

pointing it in different directions. Defendant was trying to push the

gun toward Jeffries, and Jeffries was trying to push the gun away.

Claxton then looked away, and approximately two seconds later he

heard a gunshot and saw Jeffries fall to the ground.

About ten seconds after the shot, Claxton heard defendant

say, “Man, I’m sorry. You know I didn’t shoot you. The gun was

on safety. I’m sorry.” Defendant found Claxton hiding in the

bedroom and told him, “I shot Dennis by accident. Come apply

pressure to his chest.” Defendant told Claxton to call 911. With

defendant’s help, Claxton put Jeffries in a car. Claxton then drove

1

The case before us involves a preserved, nonconstitutional error. If the

defendant had failed to preserve the issue, the plain-error standard set forth in

People v Carines, 460 Mich 750; 597 NW2d 130 (1999), would govern.

2

Jeffries to the hospital. More than a month later, Jeffries died from

complications arising from the gunshot wound. [265 Mich App 47,

49-50; 692 NW2d 879 (2005).]

It is also noteworthy that before he started gambling, Jeffries had removed

a wad of $100 bills from his jacket and counted it. He then returned the money to

his jacket pocket and gambled with smaller denominations. When Jeffries’ jacket

and shirt were removed following the shooting, the money was missing from the

jacket.

Defendant was charged with first-degree premeditated murder, MCL

750.316; first-degree felony murder, MCL 750.316; and felony-firearm. The court

refused defendant’s request to read CJI2d 7.1, the standard jury instruction on

accident as a defense to murder. The court cited People v Morrin, 31 Mich App

301; 187 NW2d 434 (1971), and People v Hess, 214 Mich App 33; 543 NW2d

332 (1995), and stated that

under the authority of Hess and Morrin, if the accident occurred in

connection with some other unlawful act, because that’s the way I’m

reading those cases, then the accident defense is not available. It’s

not available in this setting. I think we talked about this in

chambers. Factually speaking, at a very minimum your client

committed a felonious assault by going into the living room, getting

a gun, bringing it into the dining room and pointing it at the victim

and threatening him.

Now, there may not have been an intent to pull the trigger.

The pulling of the trigger may have been an accident, but as I read

Hess and Morrin, you’re not entitled to the accident instruction

unless your client essentially has clean hands so to speak and was

not otherwise engaged in some other unlawful act. That’s why I

didn’t give it.

3

If the Court of Appeals says I was wrong about that, well, so

be it, but that’s the way I read those two cases.[2]

The jury found defendant guilty of second-degree murder, as a lesser

included offense of first-degree premeditated murder, and felony-firearm. The

Court of Appeals reversed the convictions, but urged this Court to review the

precedent that it believed required the reversal in light of Lukity. The Court of

Appeal stated: “Were we free to apply Lukity without regard to prior decisions of

the Supreme Court that suggest that the instructional error that occurred in this

2

The Court of Appeals did conclude that the trial court had misread these

cases, explaining:

However, neither Morrin nor Hess precludes a defendant

from receiving an instruction on accident as a defense to murder if

there is evidence that the defendant’s actions were criminally

negligent. Morrin and Hess merely explained that, for a defendant to

be completely excused from killing a person (i.e., to be acquitted of

all charges of murder, manslaughter, and careless, reckless, or

negligent discharge of a firearm causing death, etc.), the death must

be the result of an accident, and the defendant cannot have acted

with criminal negligence. Hess, supra at 38-39, held that accident is

not a defense to involuntary manslaughter, because involuntary

manslaughter is not an intent crime and accident is subsumed within

that offense. Thus, a defendant is only excused from involuntary

manslaughter if he did not act with criminal negligence. But the

defendant need not be free of criminal negligence to be excused

from a homicide charge that includes intent as one of its elements,

such as murder. Accident is a viable defense to murder even if the

defendant acted with criminal negligence. Neither Morrin nor Hess

held that a defendant cannot be excused from murder if the death

was an accident but was the result of the defendant’s criminal

negligence. [265 Mich App at 51-52.]

We agree with the Court of Appeals analysis.

4

case requires reversal, we would conclude that defendant did not establish a

miscarriage of justice and affirm his convictions.” 265 Mich App at 49.

The prosecutor filed an application for leave to appeal in this Court.

II. STANDARD OF REVIEW

The question whether the Lukity/Rodriguez standard applies to the failure to

instruct on the defense of accident is a question of law that we review de novo.

People v Young, 472 Mich 130, 135; 693 NW2d 801 (2005).

III. ANALYSIS

In finding that the trial court had erred in refusing to instruct on the defense

of accident, the Court of Appeals observed that the trial court had conceded that

“‘there may not have been an intent to pull the trigger. The pulling of the trigger

may have been an accident . . . .’” 265 Mich App at 52. The Court of Appeals

agreed with the trial court that evidence was presented to support the defense of

accident:

Defendant and Jeffries were struggling for control of the gun

when it discharged. After Jeffries was shot, defendant made

statements indicating that he was sorry and that he had fired the gun

accidentally. He also helped get medical attention for Jeffries. [Id.]

Further, the Court of Appeals opined that this Court’s decisions in People v

Lester, 406 Mich 252; 277 NW2d 633 (1979) (Lester II), and People v Ora Jones,

395 Mich 379; 236 NW2d 461 (1975), overruled on other grounds in People v

Cornell, 466 Mich 335, 357-358; 646 NW2d 127 (2002), along with several Court

5

of Appeals cases,3 mandate reversal for failure to give an accident instruction

where accident was a central issue in the case. The Court of Appeals concluded

that whether the shooting here was intentional or accidental was a central issue in

this case, and that the failure to instruct the jury with CJI2d 7.1 therefore

constituted error requiring reversal of defendant’s convictions under Lester II and

Ora Jones.

Nonetheless, the Court of Appeals urged this Court “to examine the

continued viability of Lester II and Ora Jones and their progeny in light of Lukity

and People v Carines, 460 Mich 750; 597 NW2d 130 (1999).” 265 Mich App at

56. The Court of Appeals stated:

Since Lester II and Ora Jones and their progeny were

decided, our Supreme Court has set forth specific criteria that must

be established before trial court error requires reversal. See

Carines, supra at 774. In Lukity, supra at 494, our Supreme Court

held that, to justify the reversal of a conviction in the case of

preserved, nonconstitutional error, the defendant has the burden of

establishing that the error asserted resulted in a miscarriage of justice

under a “more probable than not” standard. We conclude that

application of Lukity to the present case would result in a different

outcome than that reached in Lester II and Ora Jones and their

progeny. In those pre-Lukity decisions, the courts did not place the

burden on the defendants to establish that the errors required

reversal. We conclude that the facts presented in this case fail to

establish error requiring reversal under the Lukity standard. The jury

instructions explaining the intent element of murder made it clear

that a finding of accident would be inconsistent with a finding that

defendant possessed the intent required for murder. Accordingly,

were we not bound by Lester II and Ora Jones, we would conclude

that defendant cannot demonstrate that it is more probable than not

3

See People v Glover, 154 Mich App 22; 397 NW2d 199 (1986); People v

Newman, 107 Mich App 535; 309 NW2d 657 (1981); People v Stanley Jones, 69

Mich App 459; 245 NW2d 91 (1976).

6

that the trial court’s failure to give the instruction on accident was

outcome determinative. Lukity, supra at 496. [265 Mich App at 56-

57.]

We agree with the Court of Appeals assessment that the Lukity standard

should apply in this case. This Court has previously applied Lukity in reviewing a

trial court’s refusal to instruct on a defense theory.

In Rodriguez, supra, the trial court failed to instruct the jury regarding a

statutory tax exemption. We explained that “‘when a jury instruction is requested

on any theories or defenses and is supported by evidence, it must be given to the

jury by the trial judge.’” Rodriguez, supra at 472 (citation ommitted). Because

the statutory exemption would have applied if the jury had believed the evidence

introduced by the defendant, we concluded that the trial court had erred in failing

to give the requested instruction.

We did not, however, treat this error as subject to automatic reversal.

Rather, we considered whether the error was harmless. We explained that

“nonconstitutional preserved error is evaluated under the standard set forth in”

Lukity. Id. at 473. Under Lukity, the defendant has the burden to demonstrate that

a preserved, nonconstitutional error resulted in a miscarriage of justice. MCL

769.26 sets forth a presumption that such an error does not warrant reversal

“unless ‘after an examination of the entire cause, it shall affirmatively appear’ that

it is more probable than not that the error was outcome determinative.” Lukity,

supra at 496 (quoting MCL 769.26). “‘An error is deemed to have been “outcome

determinative” if it undermined the reliability of the verdict.’” Rodriguez, supra at

7

474, quoting People v Elston, 462 Mich 751, 756; 614 NW2d 595 (2000), quoting

People v Snyder, 462 Mich 38, 45; 609 NW2d 831 (2000).

Similarly, in People v Riddle, 467 Mich 116; 649 NW2d 30 (2002), we

applied the Lukity/Rodriguez standard to the failure to instruct on the defense

theory that the defendant was not required to retreat before exercising deadly force

in self-defense. We explained:

A criminal defendant is entitled to have a properly instructed

jury consider the evidence against him. [Rodriguez, supra at 472];

People v Mills, 450 Mich 61, 80-81; 537 NW2d 909 (1995). When a

defendant requests a jury instruction on a theory or defense that is

supported by the evidence, the trial court must give the instruction.

Rodriguez, supra at 472-473; Mills, supra at 81. However, if an

applicable instruction was not given, the defendant bears the burden

of establishing that the trial court’s failure to give the requested

instruction resulted in a miscarriage of justice. MCL 769.26;

Rodriguez, supra at 473-474; [Lukity, supra at 493-494]. [Riddle,

supra at 124-125.]

Our decisions in Rodriguez and Riddle make plain that the Lukity standard

governs an appellate court’s determination regarding whether a failure to instruct

on a defense theory requires reversal. As the Court of Appeals in this case

correctly observed, Lester II and Ora Jones and their progeny fail to adhere to the

standard set forth in Lukity and mandated by MCL 769.26. We therefore overrule

those decisions to the extent they are inconsistent with our decision in this case.4

4

We note that rules of automatic reversal are disfavored. People v Graves,

458 Mich 476, 481; 581 NW2d 229 (1998); People v Belanger, 454 Mich 571,

575; 563 NW2d 665 (1997); People v Pickens, 446 Mich 298, 346; 521 NW2d

797 (1994); People v Grant, 445 Mich 535, 543; 520 NW2d 123 (1994); People v

McCline, 442 Mich 127, 134 n 10; 499 NW2d 341 (1993); People v Mosko, 441

Mich 496, 502; 495 NW2d 534 (1992).

(continued…)

8

We can discern no principled reason why the failure to instruct on the defense of

accident should be reviewed under a different standard than the defense theories at

issue in Rodriguez and Riddle.

In deciding whether to overrule a precedent, we consider (1) whether the

earlier decision was wrongly decided and (2) whether practical, real-world

dislocations would arise from overruling the decision. Robinson v Detroit, 462

Mich 439, 464-466; 613 NW2d 307 (2000). As discussed, we believe that Lester

II and Ora Jones were wrongly decided because their holdings create essentially a

rule of automatic reversal, which is inconsistent with the text of MCL 769.26 and

our decisions in Lukity, Rodriguez, and Riddle.5

Moreover, we can discern no practical, real-world dislocations that would

arise from overruling Lester II and Ora Jones. Those decisions “have not become

(…continued)

We reject the dissent’s claim that our opinion today is inconsistent with

People v Silver, 466 Mich 386; 646 NW2d 150 (2002). The majority’s opinion in

that case did not purport to create a rule of automatic reversal. Rather, properly

read, it is a case where the majority determined that the failure to instruct the jury

regarding a necessarily lesser included offense undermined the reliability of that

defendant’s conviction.

5

See, e.g., People v Tucker, 469 Mich 903 (2003), where we stated:

The Court of Appeals correctly applied the analysis found in

People v Carines, 460 Mich 750 [597 NW2d 130] (1999), as the

plain error rule of Carines, supra, has superseded the automatic

reversal rule of People v Smith, 396 Mich 109 [240 NW2d 202]

(1976).

See, also, People v Young, 472 Mich 130, 142; 693 NW2d 801 (2005),

where we overruled the automatic reversal rule of People v McCoy, 392 Mich 231;

220 NW2d 456 (1974), because it contradicted MCL 769.26 and MCL 768.29.

9

so embedded, accepted or fundamental to society’s expectations that overruling

them would produce significant dislocations.” Robinson, supra at 466. It is

apparent that defendant did not act in reliance on Lester II and Ora Jones when he

produced an automatic handgun and pointed it at the victim. If anything, his

awareness of such decisions would have arisen only after the shooting and the

filing of charges against him. “Such after-the-fact awareness does not rise to the

level of a reliance interest because to have reliance the knowledge must be of the

sort that causes a person or entity to attempt to conform his conduct to a certain

norm before the triggering event. Such a situation does not exist here.” Robinson,

supra at 466-467.

In addition, failing to overrule Lester II and Ora Jones would produce

inconsistent rules regarding whether the failure to instruct on a defense theory

requires reversal. As we held in Rodriguez and Riddle, such an error requires

reversal only where the defendant has met the burden of establishing that the error

undermined the reliability of the verdict. The decisions in Rodriguez and Riddle

conform to the plain language of MCL 769.26, and “it is to the words of the statute

itself that a citizen first looks for guidance in directing his actions.” Robinson,

supra at 467.

Thus, if the words of the statute are clear, the actor should be

able to expect, that is, rely, that they will be carried out by all in

society, including the courts. In fact, should a court confound those

legitimate citizen expectations by misreading or misconstruing a

statute, it is that court itself that has disrupted the reliance interest.

When that happens, a subsequent court, rather than holding to the

distorted reading because of the doctrine of stare decisis, should

overrule the earlier court’s misconstruction. [Id.]

10

Applying the Lukity/Rodriguez standard to this case, we agree with the

Court of Appeals conclusion that defendant has not met his burden of

demonstrating that the failure to instruct on the accident defense undermined the

reliability of the verdict. As the Court of Appeals explained, “[t]he jury

instructions explaining the intent element of murder made it clear that a finding of

accident would be inconsistent with a finding that defendant possessed the intent

required for murder.” 265 Mich App at 57. Further, the jury was instructed

regarding the lesser offense of statutory involuntary manslaughter, MCL 750.329,6

but instead concluded that defendant was guilty of second-degree murder. If the

jury had any doubts regarding whether defendant had the requisite malice for

second-degree murder, it could have convicted him of statutory involuntary

manslaughter, which does not require a finding of malice. The jury instead found

that defendant possessed a mental state that was greater than simply intentionally

pointing a weapon at the victim.

On the facts of this case, we conclude that defendant has not met his burden

of demonstrating that the error affected the outcome of the proceedings. We

6

MCL 750.329, at the time relevant to this case, provided:

. . . Any person who shall wound, maim or injure any other

person by the discharge of any firearm, pointed or aimed,

intentionally but without malice, at any such person, shall, if death

ensue from such wounding, maiming or injury, be deemed guilty of

the crime of manslaughter.

11

therefore reverse the judgment of the Court of Appeals and reinstate defendant’s

convictions.

Clifford W. Taylor

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

12

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 128168

FRANK JAMES HAWTHORNE,

Defendant-Appellee.

_______________________________

KELLY, J. (dissenting).

The issue before the Court is whether we should disregard 30 years of

Michigan law and overrule People v Lester1 and People v Ora Jones2 in light of

People v Lukity,3 and People v Rodriguez.4 I dissent from the majority’s decision

to do so, and I would affirm the judgment of the Court of Appeals.

LESTER AND ORA JONES

Whenever the question whether there was an accident is central to a

criminal case, a court’s failure to instruct the jury on the defense of accident

1

406 Mich 252; 277 NW2d 633 (1979).

2

395 Mich 379; 236 NW2d 461 (1975), overruled on other grounds in

People v Cornell, 466 Mich 335, 357-358; 646 NW2d 127 (2002).

3

460 Mich 484; 596 NW2d 607 (1999).

4

463 Mich 466; 620 NW2d 13 (2000).

requires automatic reversal. Lester and Ora Jones established this law many years

ago, and I would not overrule it.

These two decisions recognize that a defendant is entitled to have the jury

weighing the evidence against him or her be properly instructed. They also

recognize the difficulty a defendant has in meeting a “harmless error” standard of

review in the event of an instructional mistake.

To prove that the failure to give an instruction on the defense of accident

was not harmless, the defendant must be able to prove the jury’s thought process.

Yet, it is nearly impossible for anyone not in the jury room to know how a jury

reached its verdict. Hence, it is one of the most basic tenets of our judicial system

that a court cannot attempt to journey behind a jury’s verdict or into the jury room.

Lukity, supra at 509 (Cavanagh J., dissenting).

THE FIRST PRONG OF ROBINSON

The majority’s decision in this case represents a rejection of precedent. In

Robinson v Detroit,5 we articulated a two-part test for determining when it is

proper for the Court to do so. A simplified statement of the test is this: it is proper

to overrule a decision if (1) the case was wrongly decided and (2) there has not

been extensive reliance on the decision so that striking down the precedent would

not produce practical real-world dislocations. Robinson, supra at 466.

5

462 Mich 439; 613 NW2d 307 (2000).

2

In applying this test, we first ask whether Lester and Ora Jones were

wrongly decided. The majority finds that they were. It opines that they are

inconsistent with § 26 of the Code of Criminal Procedure, MCL 769.26, and

People v Lukity and People v Rodriguez, cases decided many years later.

MCL 769.26 “controls judicial review of preserved, nonconstitutional

error.” Lukity, supra at 495. The question becomes whether Lester and Ora Jones

are inconsistent with MCL 769.26, which has remained unchanged since it became

effective in 1927. It provides:

No judgment or verdict shall be set aside or reversed or a new

trial be granted by any court of this state in any criminal case, on the

ground of misdirection of the jury, or the improper admission or

rejection of evidence, or for error as to any matter of pleading or

procedure, unless in the opinion of the court, after an examination of

the entire cause, it shall affirmatively appear that the error

complained of has resulted in a miscarriage of justice.

This statute places the burden on the defendant to prove that a miscarriage

of justice occurred. Lukity stated that what a defendant must prove is that more

probably than not a preserved nonconstitutional error influenced the outcome of

the trial. Lukity, supra at 495.

It is my belief that Lester and Ora Jones do not conflict with MCL 769.26.

Rather, they recognize that the failure to give the instruction where accident is a

central issue results in a miscarriage of justice and undermines the reliability of the

verdict. Because the error undermines the reliability of the verdict, it cannot be

harmless. People v Krueger, 466 Mich 50, 54; 643 NW2d 223 (2002). The right

to a properly instructed jury is fundamental to a criminal trial. Without the basic

3

protection provided in Lester and Ora Jones, many criminal trials in this state

would fail utterly to serve as a reliable vehicle for determining guilt. Arizona v

Fulminante, 499 US 279, 310; 111 S Ct 1246; 113 L Ed 2d 302 (1991).

THE SECOND PRONG OF ROBINSON

This Court decided Ora Jones in 1975. The rule expressed there has been

followed by numerous decisions of the Court of Appeals.6 Yet, the majority

insists that it has not become embedded or fundamental to societal expectations,

that overruling it would not produce significant real-world dislocations. Surely 30

years of reliance creates a presumption that the rule in Ora Jones has become

fundamental to our system of justice.

The majority states that “defendant did not act in reliance on Lester [] or

Ora Jones when he produced an automatic handgun and pointed it at the victim.”

Ante at 10. This characterization of the test for determining whether overruling

precedent produces significant real-world dislocations is obviously ridiculous

6

E.g., People v Swaizer, unpublished opinion per curiam of the Court of

Appeals, issued June 16, 2005 (Docket No. 253443); People v Brandt,

unpublished opinion per curiam of the Court of Appeals, issued January 16, 2001

(Docket No. 218588); People v Fugate, unpublished opinion per curiam of the

Court of Appeals, issued January 19, 1999 (Docket No. 204109); In re Evans,

unpublished opinion per curiam of the Court of Appeals, issued February 27, 1998

(Docket No. 203019); People v Glover, 154 Mich App 22; 397 NW2d 199 (1986);

People v Peery, 119 Mich App 207; 326 NW2d 451 (1982); People v Owens, 108

Mich App 600; 310 NW2d 819 (1981); People v Newman, 107 Mich App 535;

309 NW2d 657 (1981); People v Ritsema, 105 Mich App 602; 307 NW2d 380

(1981); People v Martin, 100 Mich App 447; 298 NW2d 900 (1980); People v

Morris, 99 Mich App 98; 297 NW2d 623 (1980); People v Stanley Jones, 69 Mich

App 459; 245 NW2d 91 (1976).

4

when applied to precedent of the type involved here. However, it is not far-

fetched to say that defendant knew that someone might be accidently shot during

his skirmish with Jeffries. He was entitled to rely on the fact that the judge would

tell the jury that his defense was that there had been an accident.

In addition, defense counsel had an embedded expectation that if he

presented evidence of an accident at trial, the court would instruct the jury on that

defense. But there is another major disruption to the justice system caused by the

overturining of Lester and Ora Jones: Now an innocent defendant can be

convicted if unable to carry the enormous burden of proving a different outcome

but for the judge’s failure to give an accident instruction.

In summary, Lester and Ora Jones do not contradict MCL 769.26.

Moreover, the majority cannot gainsay that dislocations will arise after 30 years of

reliance on Ora Jones by the courts of this state.

APPLICATION OF LUKITY

Notwithstanding my belief that the error involved in this case always

requires automatic reversal, the majority’s ruling in Lukity requires it.

The majority in this case was the same majority in Lukity. It states that the

failure here to instruct the jury on Frank Hawthorne’s accident defense did not

undermine the reliability of the verdict against him. It relies on the fact that the

court instructed the jury on statutory involuntary manslaughter.

The majority hypothesizes that the jury had no doubts about defendant’s

guilt of second-degree murder. Otherwise, it reasons, the jury would have

5

convicted defendant of statutory involuntary manslaughter. The majority believes

that, because the jury found that defendant’s intent was not simply to point a

weapon at the victim, the jury would have disregarded an accident defense

instruction. That is sheer guesswork.

Only four years ago, this Court rejected the very logic used by the majority

now. People v Silver, 466 Mich 386; 646 NW2d 150 (2002). 7 Silver held that it

was not harmless error for the trial court to fail to instruct the jury on a lesser

included offense. It reasoned that “[n]ot to give [the jurors] an instruction that

allowed them to agree with defendant’s view of the events . . . undermines the

reliability of the verdict” and violates MCL 768.32(1). Id. at 393. The majority

does not and cannot reconcile its opinion here with its pronouncement in Silver.8

It is undisputed that, at various points throughout the trial in this case,

defendant presented evidence that the shooting was an accident. Even so, the trial

court failed to give defendant’s requested accident instruction. As in Silver,

defendant was thereby deprived of a jury instruction on his view of the events.

7

There are several concurring and dissenting opinions in Silver. Justices

Taylor, Young, Cavanagh, and I comprised the majority. We agreed that the same

logic that the majority uses in this case is improper.

8

The majority argues that this case does not conflict with Silver because the

automatic reversal rule was not involved in Silver. The argument is unpersuasive.

In Silver, the failure to properly instruct the jury on the defendant’s version of

events was enough to undermine the jury’s verdict. That same failure to properly

instruct equally undermines the jury’s verdict in this case, making the error

anything but harmless.

6

Therefore, just as in Silver, the failure here to give the instruction undermined the

reliability of the verdict.

This is emphasized by the majority’s supposition about the rationale used

by the jury in its verdict. Such a guessing game is inconsistent with this Court’s

precedent and the general concept of fair proceedings as recognized in Lukity and

People v Carines, 460 Mich 750; 597 NW2d 130 (1999).

CONCLUSION

I would not overrule the 30 years of precedent laid down by Lester and Ora

Jones. Neither of these cases is inconsistent with MCL 769.26. Also, I would

find that defendant met his burden of showing that the trial court’s failure to

instruct the jury on the accident defense undermined the reliability of the verdict.

The Court of Appeals judgment should be affirmed.

Marilyn Kelly

Cavanagh, J., would deny leave to appeal.

Michael F. Cavanagh

7