People v. Mendoza

Michigan Supreme Court

Lansing, Michigan 48909

____________________________________________________________________________________________

C h i e f J u s ti c e J u s t ic e s

Maura D. Corrigan Michael F. Cavanagh

Opinion

Elizabeth A. Weaver

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JUNE 20, 2003

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 120630

RICHARD J. MENDOZA,

Defendant-Appellee.

________________________________

BEFORE THE ENTIRE BENCH

YOUNG, J.

Defendant was charged with first-degree murder, MCL

750.316, but convicted by a jury of second-degree murder, MCL

750.317. The Court of Appeals reversed defendant’s conviction

and remanded the case for a new trial, reasoning that the

trial court erred when it declined to give an involuntary­

manslaughter instruction. This Court granted leave to appeal

to consider whether manslaughter is an “inferior” offense of

murder under MCL 768.32(1), and if so, whether a rational view

of the evidence supported an instruction in this case.

We conclude that manslaughter is an inferior offense of

murder. However, an involuntary-manslaughter instruction was

not appropriate in this case because a rational view of the

evidence did not support it. Accordingly, we reverse the

judgment of the Court of Appeals and reinstate defendant’s

conviction. To the extent that People v Van Wyck, 402 Mich

266; 262 NW2d 638 (1978), and its progeny conflict with this

opinion, they are overruled.

I. FACTS AND PROCEDURAL HISTORY

Defendant and codefendant Ivan Tims visited the home of

victim William Stockdale and Stockdale’s nephew, Thurman

Chillers, with the intent to purchase marijuana. Tims

initially waited outside in the car while defendant discussed

the price of the drugs with Stockdale and Chillers in the

house. Agreeing on a price, defendant indicated to Stockdale

that he had to return to the car to get additional money.

When defendant returned to the house, he was accompanied by

Tims. Both men brandished handguns.

Chillers testified that, upon entering the home,

defendant instructed Tims to “shoot him.” In response, Tims

alternately pointed his gun at Chillers and Stockdale.

Stockdale, in turn, rushed at defendant, grabbed defendant’s

gun and swung it downwards. Chillers ran out of the house.

2

As he ran, he saw Stockdale “tussling” with defendant.

Chillers further testified that he heard one shot while he was

in the house and four or five more shots when he was outside.

In the end, Stockdale was shot twice, once in the leg and once

in the chest. The chest wound proved fatal.

Defendant was charged with first-degree murder, MCL

750.316, and possession of a firearm during the commission of

a felony, MCL 750.227b. His defense was that Tims shot

Stockdale. Defendant elicited testimony from various

witnesses establishing that defendant was not in the house

when the victim was fatally wounded and that the fatal bullet

came from a gun traceable to Tims.

At the close of proofs, defendant requested instructions

for voluntary and involuntary manslaughter, MCL 750.321, and

careless, reckless, or negligent discharge of a firearm, MCL

752.861. The trial court denied the requests and instructed

the jury on first-degree murder, MCL 750.316, and second­

degree murder, MCL 750.317. Defendant was convicted of

second-degree murder and felony-firearm.

The Court of Appeals reversed defendant’s conviction and

remanded the case for a new trial. The panel treated the

manslaughter-instruction requests as requests for instructions

on a “cognate” lesser included offense and concluded that the

trial court erred in refusing to give the involuntary­

3

manslaughter instruction because there was evidence from which

the jury could conclude that the victim’s death was unintended

and occurred while defendant was engaged in an unlawful act

not amounting to a felony. Slip op at 2.

The prosecutor applied for leave to appeal.1 We granted

leave to consider whether manslaughter is an inferior offense

of murder within the meaning of MCL 768.32 and, if so, whether

an involuntary-manslaughter instruction was supported by a

rational view of the evidence.

II. STANDARD OF REVIEW

Whether manslaughter is an inferior offense of murder

within the meaning of MCL 768.32 is a question of law that the

Court reviews de novo. Weakland v Toledo Engineering Co, 467

Mich 344, 347; 656 NW2d 175 (2003).

III. ANALYSIS

A. MCL 768.32

MCL 768.32 governs inferior-offense instructions.

Subsection 1 provides in pertinent part:

. . .[U]pon an indictment for an offense,

consisting of different degrees, as prescribed in

this chapter, the jury, or the judge in a trial

without a jury, may find the accused not guilty of

the offense in the degree charged in the indictment

and may find the accused person guilty of a degree

1

Defendant did not cross-appeal to challenge the judgment

of the Court of Appeals affirming the trial court’s decision

not to give instructions on voluntary manslaughter or careless

use of a firearm.

4

of that offense inferior to that charged in the

indictment, or of an attempt to commit that

offense.

We recently examined this statute in People v Cornell,

466 Mich 335; 646 NW2d 127 (2002).2 In Cornell, the Court

considered whether necessarily included lesser offenses3 and

cognate lesser included offenses4 were “inferior” offenses

under MCL 768.32. In consideration of this issue, we examined

the meaning of the word “inferior”:

“We believe that the word ‘inferior’ in [MCL

768.32] does not refer to inferiority in the

penalty associated with the offense, but, rather,

to the absence of an element that distinguishes the

charged offense from the lesser offense. The

controlling factor is whether the lesser offense

can be proved by the same facts that are used to

establish the charged offense.” [Cornell, supra at

354, quoting People v Torres (On Remand), 222 Mich

2

The dissent criticizes the construction of MCL 768.32

set forth in Cornell, arguing that the Court should apply the

dictionary definition of “inferior.”

We are confident that we applied the appropriate canon of

statutory construction in construing MCL 768.32 by giving

“inferior offense” its common-law meaning when it was codified

by the Legislature. See Pulver v Dundee Cement Co, 445 Mich

68, 75; 515 NW2d 728 (1994)(“words and phrases that have

acquired a unique meaning at common law are interpreted as

having the same meaning when used in statutes dealing with the

same subject”).

3

Necessarily included lesser offenses are offenses in

which the elements of the lesser offense are completely

subsumed in the greater offense. Cornell, supra at 356.

4

Cognate offenses share several elements, and are of the

same class or category as the greater offense, but the cognate

lesser offense has some elements not found in the greater

offense. Cornell, supra at 344.

5

App 411, 419-420; 564 NW2d 149 (1997)].

Relying on this definition of “inferior,” this Court

concluded that MCL 768.32 only permitted consideration of

necessarily included lesser offenses. Cornell, supra at 353­

354. Thus, we held that an inferior-offense instruction is

appropriate only if the lesser offense is necessarily included

in the greater offense, meaning, all the elements of the

lesser offense are included in the greater offense, and a

rational view of the evidence would support such an

instruction.5 Id. at 357.

5

The dissent criticizes the majority opinion for adopting

“obiter dictum” from Cornell to conclude that inferior

offenses are limited to necessarily included lesser offenses.

We disagree with this mischaracterization of Cornell’s

analysis.

In Cornell, the Court was charged with the task of

construing MCL 768.32(1), because MCL 768.32(1) governs when

instructions are given for “inferior” offenses. To that end,

we expressly adopted Justice COLEMAN ’s dissent in Jones, infra,

which would foreclose consideration of cognate lesser included

offenses. Cornell, supra at 353. See also Cornell, supra at

356 n 9, in which we state, “as we have already explained, the

wording of MCL 768.32 also limits consideration of lesser

offenses to necessarily included lesser offenses.” We then

expressly held that a requested instruction on a necessarily

included lesser offense is proper if the charged greater

offense requires a jury to find a disputed factual element

that is not part of the lesser offense and a rational view of

the evidence would support it. Id. at 357.

Accordingly, we disagree with the dissent’s

characterization of the Cornell analysis as “obiter dictum.”

Rather, the Cornell discussion of the limits of MCL 768.32 was

central to our construction of the statute and thus central to

the resolution of the issues before the Cornell Court.

6

B. MANSLAUGHTER IS AN INFERIOR OFFENSE OF MURDER

Manslaughter is an inferior offense of murder because

manslaughter is a necessarily included lesser offense of

murder.

1. THE ELEMENTS OF COMMON -LAW MURDER AND MANSLAUGHTER

Common-law murder encompasses all killings done with

malice aforethought and without justification or excuse.

People v Scott, 6 Mich 287, 292-293 (1859). See also People

v Potter, 5 Mich 1, 6 (1858)(“Murder is where a person of

sound memory and discretion unlawfully kills any reasonable

creature in being, in the peace of the state, with malice

prepense or aforethought, either express or implied.”).

First-degree murder is defined in MCL 750.316.6 All

6

MCL 750.316 provides in pertinent part:

(1) A person who commits any of the following

is guilty of first degree murder and shall be

punished by imprisonment for life:

(a) Murder perpetrated by means of poison,

lying in wait, or any other willful, deliberate,

and premeditated killing.

(b) Murder committed in the perpetration of,

or attempt to perpetrate, arson, criminal sexual

conduct in the first, second, or third degree,

child abuse in the first degree, a major controlled

substance offense, robbery, carjacking, breaking

and entering of a dwelling, home invasion in the

first or second degree, larceny of any kind,

extortion, or kidnapping.

(c) A murder of a peace officer or a corrections

7

other murders are murders in the second degree. MCL 750.317.

See also People v Goecke, 457 Mich 442, 463-464; 579 NW2d 868

(1998), which enumerated the elements of second-degree murder

as (1) death, (2) caused by defendant’s act, (3) with malice,

and (4) without justification.

Manslaughter is murder without malice. See Potter, supra

at 9 (noting that without malice aforethought, “a killing

would be only manslaughter, if criminal at all”). See also

People v Palmer, 105 Mich 568, 576; 63 NW 656 (1895),

remarking:

“Manslaughter is perfectly distinguishable

from murder, in this: That though the act that

causes death be unlawful or willful, though

attended with fatal results, yet malice, either

expressed or implied, which is the very essence of

murder, is to be presumed to be wanting in

manslaughter.” [Quoting the trial court jury

instructions.]

The common law recognizes two forms of manslaughter: voluntary

officer committed while the peace officer or

corrections officer is lawfully engaged in the

performance of any of his or her duties as a peace

officer or corrections officer, knowing that the

peace officer or corrections officer is a peace

officer or corrections officer engaged in the

performance of his or her duty as a peace officer

or corrections officer.

Although first-degree murder is defined by statute, the

statute is understood to include the common-law definition of

murder. See People v Riddle, 467 Mich 116, 125-126; 649 NW2d

30 (2002). See also People v Utter, 217 Mich 74, 86; 185 NW

830 (1921).

8

and involuntary. People v Townes, 391 Mich 578, 589; 218 NW2d

136 (1974).

Common-law voluntary manslaughter is defined as:

[T]he act of killing, though intentional, [is]

committed under the influence of passion or in heat

of blood, produced by an adequate or reasonable

provocation, and before a reasonable time has

elapsed for the blood to cool and reason to resume

its habitual control, and is the result of the

temporary excitement, by which the control of

reason was disturbed, rather than of any wickedness

of heart or cruelty or recklessness of disposition

. . . .[Maher v People, 10 Mich 212, 219 (1862).]

See also Townes, supra at 590 (“A defendant properly convicted

of voluntary manslaughter is a person who has acted out of a

temporary excitement induced by an adequate provocation and

not from the deliberation and reflection that marks the crime

of murder.”). Thus, to show voluntary manslaughter, one must

show that the defendant killed in the heat of passion, the

passion was caused by adequate provocation, and there was not

a lapse of time during which a reasonable person could control

his passions. See People v Pouncey, 437 Mich 382, 389; 471

NW2d 346 (1991).7 Significantly, provocation is not an

element of voluntary manslaughter. See People v Moore, 189

7

In addition to common-law manslaughter, the Legislature

has also determined that manslaughter shall exist in several

other circumstances. See, e.g., MCL 750.322 (the willful

killing of an unborn child by injury to its mother), MCL

750.323 (the killing of a quick child by use of medicine or an

instrument, and MCL 750.329 (a killing committed without

malice by means of an intentionally aimed firearm).

9

Mich App 315, 320; 472 NW2d 1 (1991). Rather, provocation is

the circumstance that negates the presence of malice. Scott,

supra at 295.

Involuntary manslaughter is the unintentional killing of

another, without malice, during the commission of an unlawful

act not amounting to a felony and not naturally tending to

cause great bodily harm; or during the commission of some

lawful act, negligently performed; or in the negligent

omission to perform a legal duty. See Townes, supra at 590.

See also People v Helfin, 434 Mich 482, 507-508; 456 NW2d 10

(1990)(opinion by RILEY , C.J.).

2. THE SOLE ELEMENT DISTINGUISHING MANSLAUGHTER AND MURDER IS MALICE

An examination of the historical development of homicide

law informs this Court that manslaughter is a necessarily

included lesser offense of murder because the elements of

manslaughter are included in the offense of murder.

a. HOMICIDE IN ENGLISH COMMON LAW

In early English common law, a killing was either

justifiable homicide; excusable murder committed by

misadventure or accident, or in self-defense; or capital

murder, characterized by “malice aforethought” and punishable

by death. See 2 Pollock and Maitland, The History of English

Law (Cambridge: University Press, 1952), ch VIII, Crime and

Tort, § 2, p 485. However, during the fourteenth and

10

fifteenth centuries, an exemption called the “benefit of

clergy” was widely used as a device to mitigate mandatory

death sentences. Hall, Legal fictions and moral reasoning:

Capital punishment and the mentally retarded defendant after

Penry v Johnson, 35 Akron L R 327, 353 (2002).

The “benefit of clergy” was an exemption that allowed an

offender to be sentenced by the ecclesiastical courts, which

did not impose capital punishment.8 Though it was initially

intended to benefit clergy, it also benefitted persons who

could satisfy its literacy test. See Kealy, Hunting the

dragon: Reforming the Massachusetts murder statute, 10 B U Pub

Int L J 203, 205-206 (2001). Thus, it was not long before

persons other than clerics claimed the exemption, so that the

“benefit of clergy” exemption benefitted anyone who could

read. See Justice Harlan’s discussion in McGautha v

California, 402 US 183, 197; 91 S Ct 1454; 28 L Ed 2d 711

(1971), noting that although all criminal homicides were prima

facie capital cases, the “benefit of clergy” was available to

almost any man who could read.

In response to the exemption’s widespread availability,

statutes were passed throughout the fifteenth and sixteenth

8

The “benefit of clergy” was a political compromise

between the state and the church, intended to ensure errant

clerics who were convicted in the royal court were turned over

to the ecclesiastical courts for sentencing.

11

centuries proclaiming the exemption unavailable for homicides

committed under particularly reviled circumstances,

collectively termed “murder with malice aforethought.”

Moreland, The Law of Homicide (Indianapolis: The Bobbs-Merrill

Co, Inc, 1952), ch 2, The Development of Malice Aforethought,

p 9. The “benefit of clergy” remained available, however, for

offenders convicted of less culpable homicides. Id.

Thereafter, unjustified and unexcused homicide was divided

into two separate crimes: “wilful murder of malice

aforethought”, a capital offense for which the “benefit of

clergy” was unavailable, and manslaughter. Plucknett, A

Concise History of the Common Law (New York: The Lawyers Co-

Operative Pub Co, 1927), ch 2, The Felonies, pp 395-396. The

critical difference between murder and manslaughter was the

presence or absence of “malice aforethought.” Moreland, supra

at 10.

b. “MALICE AFORETHOUGHT ”

The phrase “malice aforethought” has evolved over the

centuries. During the late fifteenth and early sixteenth

centuries, “malice aforethought” meant that one possessed an

intent to kill well in advance of the act itself. Id. at 10.

Notably, the emphasis was on “aforethought,” so that the

critical difference between capital and noncapital murder was

the passage of time between the initial formulation of the

12

intent to kill and the act itself. Moylan, Criminal Homicide

Law (Maryland Institute for Continuing Professional Education

of Lawyers), ch 2, § 2.7. The term “malice” alone had little

significance beyond meaning an intent to commit an unjustified

and unexcusable killing. Id. The purpose of the “malice

aforethought” element was to distinguish between deliberate,

calculated homicides and homicides committed in the heat of

passion. Kealy, supra at 206.

As more and more defendants claimed they lacked an intent

to kill before the act was committed, juries and courts

increasingly rejected this argument. The result was a case­

by-case “semantic erosion” of the term “aforethought,” until

“malice aforethought” meant nothing more than the intent to

kill had to exist at the time the act was committed. Perkins

& Boyce, Criminal Law (3rd ed), Murder, § 1, p 58 (“[a]s case

after case came before the courts for determination . . .

there came to be less and less emphasis upon the notion of a

well-laid plan. And at the present day, the only requirement

in this regard is that it must not be an afterthought”).

There was, consequently, a parallel erosion of the distinction

between capital murder, for which aforethought was required,

and noncapital homicide, for which it was not.

Interestingly, although the English courts grew weary of

the oft abused “lack of aforethought” defense, it was

13

nevertheless evident that there was still some interest in

distinguishing between a homicide committed in “cold-blood”

and one committed under circumstances that mitigated one’s

culpability. To express this distinction, the focus shifted

from “aforethought” to “malice.” Moreland, supra at 11

(“[t]he law of homicide seems thus to have now progressed from

a place where the mental element was of no importance to a

place where at the beginning of the seventeenth century it had

become a factor of prime importance”).

Because there was a need to distinguish the most serious

homicide from the rest, and because “aforethought” no longer

had legal significance, malice evolved from being merely an

intent to kill to also evidencing the absence of mitigating

circumstances. Moylan, supra at § 2.7. Consequently, the

presence of malice became both synonymous with the absence of

mitigating circumstances and the sole element distinguishing

murder from manslaughter.

We glean from our examination of manslaughter’s

historical development that manslaughter is defined to reflect

the absence of malice. Thus, the only element distinguishing

murder from manslaughter is malice.

3. MANSLAUGHTER IS A NECESSARILY LESSER INCLUDED OFFENSE OF MURDER

A necessarily lesser included offense is an offense whose

elements are completely subsumed in the greater offense.

14

Cornell, supra at 356.

Regarding voluntary manslaughter, both murder and

voluntary manslaughter require a death, caused by defendant,

with either an intent to kill, an intent to commit great

bodily harm, or an intent to create a very high risk of death

or great bodily harm with knowledge that death or great bodily

harm was the probable result. However, the element

distinguishing murder from manslaughter–malice–is negated by

the presence of provocation and heat of passion. See Scott,

supra at 295. Thus, we conclude, the elements of voluntary

manslaughter are included in murder, with murder possessing

the single additional element of malice.

Regarding involuntary manslaughter, the lack of malice is

evidenced by involuntary manslaughter’s diminished mens rea,

which is included in murder’s greater mens rea. See People v

Datema, 448 Mich 585, 606; 533 NW2d 272 (1995), stating:

“[P]ains should be taken not to define [the

mens rea required for involuntary manslaughter] in

terms of a wanton and wilful disregard of a harmful

consequence known to be likely to result, because

such a state of mind goes beyond negligence and

comes under the head of malice.”

Unlike murder, involuntary manslaughter

contemplates an unintended result and thus requires

something less than an intent to do great bodily

harm, an intent to kill, or the wanton and wilful

disregard of its natural consequences. [Citations

omitted; emphasis added.]

See also United States v Browner, 889 F2d 549, 553 (CA 5,

15

1989), stating, “In contrast to the case of voluntary

manslaughter . . . the absence of malice in involuntary

manslaughter arises not because of provocation induced

passion, but rather because the offender’s mental state is not

sufficiently culpable to reach the traditional malice

requirements.”

Thus, we conclude that the elements of involuntary

manslaughter are included in the offense of murder because

involuntary manslaughter’s mens rea is included in murder’s

greater mens rea.

Accordingly, we hold the elements of voluntary and

involuntary manslaughter are included in the elements of

murder. Thus, both forms of manslaughter are necessarily

included lesser offenses of murder. Because voluntary and

involuntary manslaughter are necessarily included lesser

offenses, they are also “inferior” offenses within the scope

of MCL 768.32. Consequently, when a defendant is charged with

murder, an instruction for voluntary and involuntary

manslaughter must be given if supported by a rational view of

the evidence. Cornell, supra.

4. TODAY ’S HOLDING IS CONSISTENT WITH EARLY MICHIGAN COMMON LAW

Today’s holding is consistent with our courts’ historical

understanding of the law of murder. Michigan courts have

historically concluded that a manslaughter instruction is

16

appropriate on a murder charge if a manslaughter instruction

is supported by a rational view of the evidence. See, e.g.,

Hanna v People, 19 Mich 316, 321 (1869)(in consideration of

MCL 768.32's similarly worded predecessor, “without this

provision, the common law rule would, under the statute,

dividing murder into degrees, have authorized a conviction not

only for murder in the second degree, but for manslaughter

also, under an indictment for murder in the first degree, all

these being felonies included in the charge”)(emphasis added).

See People v Treichel, 229 Mich 303, 307-308; 200 NW 950

(1924), stating:

This Court has repeatedly held, where the

charge as laid includes murder in the first degree,

and the proofs establish such degree, and no lesser

degree, it is not error for the court to instruct

the jury that, in order to convict, murder in the

first degree must be found. But this court has not

held, under a charge like here laid, the court must

instruct the jury to find murder in the first

degree or acquit. Whether such an instruction may

be given or not depends upon the evidence.

[Emphasis in original.]

[In this case, the] information charged murder

in the first and second degrees, and this was

inclusive of manslaughter. The evidence left it

open for the jury to find defendants guilty of

manslaughter.

See also People v Droste, 160 Mich 66, 78-79; 125 NW 87

(1910)(concluding that the trial court was “clearly warranted”

in instructing the jury on manslaughter in a murder case

because a jury could have concluded there was sufficient

17

intoxication or passion to “rob [defendant’s] act of the

necessary elements of murder”); People v Andrus, 331 Mich 535,

546-547; 50 NW2d 310 (1951)(remarking that it was proper for

the court to submit the lesser included offenses of second­

degree murder and manslaughter because the evidence was

sufficient to support the offense).

It was not until this Court overlooked MCL 768.32, and

introduced “cognate” lesser included offenses, that the

relationship between manslaughter and murder became muddled.

In People v Jones, 395 Mich 379; 236 NW2d 461 (1975), this

Court, without consideration of MCL 768.32, recognized a new

category of lesser included offenses called “cognate”

offenses. Cognate offenses differed from necessarily included

lesser offenses in that cognate offenses share with the higher

offense several elements and are of the same class or

category, but they contain elements not found in the higher

offense. See Cornell, supra at 344-346. Faced with a

category of lesser included offenses not previously recognized

in Michigan, this Court, in Van Wyck, supra, concluded that

manslaughter was a cognate lesser included offense of murder:

We hold that manslaughter is not a necessarily

included offense within the crime of murder but

that it may nonetheless be an included offense if

the evidence adduced at trial would support a

verdict of guilty for that crime.

18

As we noted in People v Ora Jones, supra:

“The common-law definition of lesser included

offenses is that the lesser must be such that it is

impossible to commit the greater without first

having committed the lesser.” [Citation omitted.]

* * *

[With regard to the murder/manslaughter

relationship], [t]he absence of mitigating

circumstances need not be established in order to

convict one of first- or second-degree murder.

Consequently, it cannot be said voluntary

manslaughter is a necessarily included offense

within the crime of murder; it is incorrect to

state that it is impossible to commit first- or

second-degree murder without having first committed

manslaughter. [Van Wyck, supra at 268-269.]

Notably, the Van Wyck Court failed to discuss earlier common­

law decisions characterizing manslaughter as a lesser included

offense of murder before cognate offenses were recognized. We

also note that the Van Wyck Court did not give any

consideration to the unique relationship between murder and

manslaughter.

For the reasons discussed above, we conclude manslaughter

is a necessarily included lesser offense of murder. We further

conclude that Van Wyck’s analysis is flawed inasmuch as it is

premised on a body of law recognizing cognate lesser included

offenses in contravention of MCL 768.32. Accordingly, to the

extent that Van Wyck and its progeny are inconsistent with

this opinion and our opinion in Cornell, they are expressly

overruled.

19

C. AN INVOLUNTARY -MANSLAUGHTER INSTRUCTION WAS NOT WARRANTED

Having concluded that manslaughter is an inferior offense

of murder because it is a necessarily included lesser offense,

we now consider whether the trial court erred in refusing to

give an involuntary-manslaughter instruction.

An inferior-offense instruction is appropriate only when

a rational view of the evidence supports a conviction for the

lesser offense. Cornell, supra at 357. In this case, the

Court of Appeals concluded there was sufficient evidence to

support an involuntary-manslaughter instruction. In reaching

this conclusion, the Court relied on defendant’s statement to

the police recounting what happened:

I was at a gas station on Seven Mile near

Hoover when Ivan pulled up in a gray newer model

car and asked me did I want some bud. Ivan asked

me did I have half on it. I said, yes. I then got

into the car with Ivan. Ivan stopped by one house,

then he went to the bud house. When we got to the

house, Ivan stayed in the car and I went to the

house. When I got to the front door, there was a

big guy coming out and motioned for me just to go

on in. The guy that let me in continued talking to

a big dark-skinned guy with a deep voice. Another

guy, kind of frail [Chillers], sitting in a love

seat asked me how many I needed. I responded by

saying, just one back. That’s when Ivan came to

the door. Ivan started talking to the guy with the

deep voice. The guy that let me in then left. I

started to get my stuff from the frail guy. While

I’m getting my stuff, I heard some tussling. I

look back and Ivan was tussling with the big guy

with the deep voice. They were tussling over a

handgun with a dark barrel. While they were

tussling, I heard approximately two shots. They

then fell into a corner over a chair. I then heard

the frail guy holler. He had pulled out a shiny

20

revolver and pointed it at Ivan and the guy he was

tussling with. I then tried to knock the gun away

from [Chillers]. As I was attempting to knock the

gun away from [Chillers], he pulled the trigger. I

then tried to run but I tripped over Ivan . . . .

[Emphasis added.]

The Court of Appeals concluded that defendant’s statement

that Chillers pulled the trigger when defendant tried to knock

the gun away from him was sufficient to support an

involuntary-manslaughter conviction. The Court reasoned that

defendant’s statement could support a finding that the

victim’s killing was an unintended death, without malice, and

not caused by any action of defendant naturally tending to

cause death.

We disagree and conclude that defendant’s statement alone

is insufficient to support an involuntary-manslaughter

instruction. Defendant’s statement does not indicate that the

shot fired during the struggle struck or killed the victim. In

fact, during his request for an involuntary-manslaughter

instruction, defendant argued that the shot fired during the

struggle was the nonfatal shot to the victim’s leg.9

9

Defense counsel argued in support of the manslaughter

instruction as follows:

Alternatively there’s also involuntary

manslaughter, now that I think about it, in terms

of that gun potentially accidentally [sic] going

off during the struggle over the gun at the time

it’s discharged. That’s how I claim that the shot

to the leg happened, when they were struggling over

the gun.” [Emphasis added.]

21

Therefore, because there is no evidence that the shot

fired during the struggle killed the victim, and in light of

the substantial evidence that the shot was not the fatal shot,

we conclude a rational view of the evidence does not support

an involuntary-manslaughter instruction.

We further disagree with the conclusion of the Court of

Appeals that an instruction for common-law involuntary

manslaughter was premised on defendant’s theory of the case.

Defendant’s theory throughout trial was that someone else was

responsible for the victim’s death. Consider defendant’s

opening statement, in which he sets forth his theory:

What really occurred in this situation that

you’ll see is sure, my client Mr. Mendoza and Mr.

Tims went over to that location. They didn’t go

over there to harm anybody. They went over there

to buy what Mr. Stockdale and what Mr. Chillers

were in the business to sell, which is marijuana

. . .

* * *

You’ll hear that, that Mr. Tims . . . and

another person were tussling over a handgun. And

while they’re tussling, shots went off. And my

client went over there to try to prevent that from

happening. And that’s when the tussle broke out.

When my client’s running out of that location, he

gets shot by Mr. Chillers.

So, it’s not my client that’s doing any

shooting in there. It’s Mr. Chillers who’s causing

all these problems and doing shooting in there.

Expert testimony established that the leg wound was not the

fatal injury.

22

* * *

So, what happened here is after my client,

after he’s running away and Mr. Chillers shoots him

and he’s running to the car wounded, Mr. Tims on

his own goes back up to that front door with that

revolver in his hand and started shooting into the

house. And that’s when Mr. Stockdale gets shot in

the chest.

* * *

This is what I believe the evidence will show

. . . That gun was never in the possession of Mr.

Mendoza. That gun was the one identified as being

in the hands of Mr. Tims when he went back on his

own. [Emphasis added.]

It is, therefore, clear that defendant’s theory was that Tims

was responsible for the victim’s death.

In sum, we conclude that a rational view of the evidence

did not support an involuntary-manslaughter instruction.

Therefore, it was not error for the trial court to deny the

instruction. Accordingly, we reverse the judgment of the

Court of Appeals.

IV. CONCLUSION

Manslaughter, in both its forms, is an inferior offense

of murder within the meaning of MCL 768.32. Therefore, an

instruction is warranted when a rational view of the evidence

would support it. Van Wyck and its progeny are overruled to

the extent the Van Wyck analysis of the relationship between

manslaughter and murder holds otherwise.

In this case, we conclude a rational view of the evidence

did not support an involuntary-manslaughter instruction.

23

Therefore, the trial court did not err when it refused to give

the instruction. Accordingly, we reverse the judgment of the

Court of Appeals and reinstate defendant’s second-degree

murder conviction.

Robert P. Young, Jr.

Maura D. Corrigan

Elizabeth A. Weaver

Clifford W. Taylor

Stephen J. Markman

24

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

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 120630

RICHARD MENDOZA,

Defendant-Appellee.

___________________________________

CAVANAGH, J. (concurring).

This Court granted leave to appeal to determine whether

MCL 768.32 permits a manslaughter instruction when a defendant

has been charged with murder. Because the majority has

misinterpreted MCL 768.32, I must respectfully dissent from

its analysis, though I concur in its result.

The majority applies obiter dictum from People v Cornell,

466 Mich 335; 646 NW2d 127 (2002), to hold that an “inferior”

offense, as articulated by the Legislature in 1846, is limited

to a necessarily included lesser offense.10 While I agree that

manslaughter is an offense inferior to and necessarily

included within the crime of murder, I do not agree that this

10

MCL 768.32, formerly codified as tit XXX, ch 161, § 16,

Rev Stat of 1846.

Court should limit instructions authorized by MCL 768.32 to

only those that are necessarily included in the charged

offense. Rather, I would hold that, when requested, a jury

may be instructed on lesser or “inferior” offenses of the

crime charged, if those offenses are supported by the

evidence.

I

The proper scope of MCL 768.32 presents a question of

statutory interpretation, which we review de novo. In re MCI,

460 Mich 396, 413; 596 NW2d 164 (1999).

II

The relevant portion of MCL 768.32 now provides:

(1) Except as provided in subsection (2), upon

an indictment for an offense, consisting of

different degrees, as prescribed in this chapter,

the jury, or the judge in a trial without a jury,

may find the accused not guilty of the offense in

the degree charged in the indictment and may find

the accused person guilty of a degree of that

offense inferior to that charged in the indictment,

or of an attempt to commit that offense.[11]

Relying on established doctrines of interpretation, one

11

The current subsection 2 refers to controlled-substance

provisions. The original statute provided:

Upon an indictment for any offence, consisting

of different degrees, as prescribed in this title,

the jury may find the accused not guilty of the

offence in the degree charged in the indictment,

and may find such accused person guilty of any

degree of such offence, inferior to that charged in

the indictment, or of an attempt to commit such

offence. [Rev Stat of 1846, tit XXX, ch 161,

§ 16.]

2

cannot disagree that the first step in discerning legislative

intent requires review of the statutory text adopted by the

Legislature. House Speaker v State Administrative Bd, 441

Mich 547, 567; 495 NW2d 539 (1993). See also MCL 8.3a (“All

words and phrases shall be construed and understood according

to the common and approved usage of the language . . . .”).

If unambiguous, the Legislature will be presumed to have

intended the meaning expressed. Lorencz v Ford Motor Co, 439

Mich 370, 376; 483 NW2d 844 (1992). We often refer to the

dictionary to discern a statute’s plain meaning. See Wayne Co

Prosecuting Attorney v Levenburg & Richmond, 406 Mich 455,

465-466; 280 NW2d 810 (1979) (dictionaries provide plain

meaning).

The dispositive issue presented for review is the scope

of the term “inferior,” which may be defined as follows:

Inferior. 1. Lower in place. 2. Lower in

station, age, or rank in life. 3. Lower in

excellence or value; as a poem of inferior merit.

4. Subordinate; of less importance. [American

Dictionary of the English Language, Noah Webster,

Vol. 1, (originally published 1828, reprinted

1970).12]

12

See also:

Inferior. Is usually employed in law to

designate the lower of two grades of authority,

jurisdiction, or power. [Dictionary of Terms and

Phrases used in American or English Jurisprudence,

Vol 1, p 603 (1879).]

(continued...)

3

This definition has changed little since the nineteenth

century, and the meaning of an offense “inferior” to another

continues to suggest a lower offense, or one that is somehow

less than the charged crime.13 Applied here, this

interpretation supports a “lesser offense” approach.

In spite of this textual evidence, the majority would

prefer to adopt a “necessarily included lesser offense”

interpretation, assigning a meaning to "inferior" that is

contrary to its everyday usage, while providing no textual

explanation for its narrow construction. Instead, the

majority adopts its obiter dictum from Cornell and relies on

several prudential (i.e., policy-based) reasons to reject an

(...continued)

Inferior. 1. Lower in position; situated below

. . . 3. Lower in degree, rank, importance,

quality, amount, or other respect; of less value or

consideration; lesser; subordinate. With to =

lower than, less than, not so good or great as;

unequal to . . . . [Oxford English Dictionary (2d

ed).]

Inferior. . . 3. Lower in degree, rank,

importance, quality, amount, or other respect; of

less value or consideration . . . b. with to =

lower than, less than, not so good or great as;

unequal to. [A New English Dictionary on Historical

Principles, Murray, Oxford (1901, originally

published 1888).]

13

Inferior. adj. 1. Situated under or beneath. 2. Low

or lower in order, degree, or rank. 3. Low or lower in

quality, status, or estimation. [American Heritage Dictionary

of the English Language, New College Edition (1981).]

4

interpretation of “inferior” that conforms with its everyday

usage.

Foremost among the majority’s rationale may be the

alleged ease with which the necessarily included lesser

offense framework may be applied. Cornell, supra. However,

I cannot agree that the majority’s framework can be applied

more simply than a “lesser offense” inquiry because each

varies on the basis of the degree of specificity with which

one reviews the elements of a crime. This Court, for example,

has wavered on the precise issue presented here. In People v

Van Wyck, 402 Mich 266; 262 NW2d 638 (1978), this Court held

that manslaughter was not a necessarily included lesser

offense of murder:

The absence of mitigating circumstances need

not be established in order to convict one of

first- or second-degree murder. Consequently, it

cannot be said that voluntary manslaughter is a

necessarily included offense within the crime of

murder; it is incorrect to state that it is

impossible to commit first- or second-degree murder

without having first committed manslaughter. [Id.

at 269.]

As the majority correctly notes today, when viewed in

general terms, “the only element distinguishing murder from

manslaughter is malice.” Ante at 14. Hence, manslaughter is

both an “inferior” and a necessarily included lesser offense

of murder; the difference between Van Wyck and the Court’s

decision today results from the degree of precision employed

5

by the Court in its analysis of the elements of murder and

manslaughter.

Instead of addressing such difficulties, the majority

ignores this and similar inconsistencies. For example,

although “felonious assault” is not strictly a necessarily

included lesser offense of “assault with intent to do great

bodily harm less than murder” because the former requires the

use of a dangerous weapon, it is clearly an “inferior” charge

as prescribed by any reasonable interpretation of the statute

(i.e., “inferior”), yet the majority’s approach provides no

means by which to recognize this relationship. Similarly

troubling, the crime of “assault with intent to do great

bodily harm” is plainly included within the crime of “assault

with intent to murder,” but our Courts have held that

different degrees of malice (i.e., intent to do great harm

versus intent to murder) constitute cognate–not necessarily

included–offenses. See, e.g., People v Norwood, unpublished

opinion per curiam of the Court of Appeals, issued March 20,

2001 (Docket No. 218207). In sum, the majority’s doctrine

cannot logically provide the bright-line rule that it seeks,

and its narrow construction is not supported by the text.

III

Although, I do not dispute that the meaning of MCL 768.32

6

has been subject to debate lately,14 the majority has recently

acknowledged that, as early as 1869, this Court permitted

convictions on “inferior” offenses:

[E]xtending to all cases in which the statute

has substantially, or in effect, recognized and

provided for the punishment of offenses of

different grades, or degrees of enormity, wherever

the charge for the higher grade includes a charge

for the less. In this view only, can any effect be

given to it, as declaratory of, or altering the

common law. [Hanna v People, 19 Mich 316, 322

(1869).]

Before Cornell, this Court repeatedly affirmed this

lesser offense approach,15 in accord with the plain meaning of

14

Cornell, supra (noting in dicta that MCL 768.32 limits

instructions to necessarily included lesser offenses and

overruling, inter alia, People v Jones, 395 Mich 379; 236 NW2d

461 [1975], People v Chamblis, 395 Mich 408; 236 NW2d 473

[1975]).

15

See also People v Andrus, 331 Mich 535; 50 NW2d 310

(1951) (noting this Court’s treatment of MCL 768.32, which

permits an instruction on lesser offenses when supported by

the evidence); People v Jones, 273 Mich 430; 263 NW 417 (1935)

(holding that the court erred so as to require reversal when

it affirmatively excluded a lesser offense from the jury’s

consideration); People v Abbott, 97 Mich 484; 56 NW 862 (1893)

(reversing where the court failed to instruct the jury on a

lesser included offense); People v Courier, 79 Mich 366; 44 NW

571 (1890) (refusing the defendant’s request for a new trial

where the court did provide the jury with a lesser included

rape offense instruction); People v Prague, 72 Mich 178; 40 NW

243 (1888) (“The crime of an assault with intent to commit the

crime of murder is one of a higher grade and greater enormity

than the crime of assault with intent to do great bodily harm

less than the crime of murder. It belongs to the catalogue of

offenses against the lives and persons of individuals, and we

think the charge was authorized by the opinion of this Court

in Hanna . . . .”); People v Warner, 53 Mich 78; 18 NW 568

(1884) (a conviction for simple assault may be had on any

(continued...)

7

the statute. In People v Jones, 395 Mich 379, 387; 236 NW2d

461 (1975), for example, this Court confirmed a case-by-case

approach to inferior offense instructions, acknowledging that

the strict, common-law rule, which had permitted lesser

offense instructions only when necessarily included in the

crime charged, had been replaced by a statute that authorized

a broader range of convictions “inferior” to the crime

charged. Although, the majority attempts to claim its holding

has a historical foundation, it, in fact, usurps this Court’s

longstanding interpretation, which accords with the statute’s

plain meaning.

IV

The majority may claim I have done nothing but pine for

the “cognate” or related-offense approach, which it expressly

rejected in Cornell. To the degree that a “cognate” offense

is “inferior” to the crime charged, I cannot disagree. I

remain committed to the “lesser included offense”

interpretation of “inferior” simply because it is best able to

honor the statutory text, as noted above.

(...continued)

information charging assault on an officer and resisting

arrest); Campbell v People, 34 Mich 351 (1876) (“. . . under

an indictment charging a specific offense it was competent for

the jury to find the respondent guilty of a lesser offense

included in it. The lesser offense of felonious assault is

necessarily included in the offense of rape; the completed

offense being the aggravation of the criminal assault.”).

8

Further, it accords with the longstanding doctrine that

requires courts to construe criminal statutes in favor of

defendants. In United States v Wiltberger, 18 US (5 Wheat)

76, 95; 5 L Ed 31 (1820), Chief Justice Marshall noted:

The rule that penal laws are to be construed

strictly, is perhaps not much less old than

construction itself. It is founded on the

tenderness of the law for the rights of

individuals; and on the plain principle that the

power of punishment is vested in the legislative,

not in the judicial department. It is the

legislature, not the Court, which is to define a

crime, and ordain its punishment.

See also People v Webb, 127 Mich 29, 32; 86 NW 406 (1901)

(“Penal statutes must be strictly construed, and words used

are to be given their popular, rather than a technical,

meaning.”); Scalia, A Matter of Interpretation (Princeton,

N.J.; Princeton University Press, 1997), p 29 (“The rule of

lenity is almost as old as the common law itself, so I suppose

that is validated by sheer antiquity.”) Its application here

would give an accused the opportunity to request an

instruction in conformity with defense theories, when

supported by the evidence.

V

As noted, this Court today unanimously affirms that a

defendant facing a murder charge may request a manslaughter

instruction if supported by the evidence. However, nothing in

the record would support an involuntary-manslaughter

9

conviction in this case, which requires a finding of death,

caused by an act of defendant, with gross negligence. People

v Datema, 448 Mich 585, 610-613; 533 NW2d 272 (1995)

(Cavanagh, J., dissenting). Defendant’s statement to the

police suggests only that he attempted to prevent the alleged

gunman from shooting his friend. On the facts presented, if

the jury did not believe defendant was culpable of murder

beyond a reasonable doubt, the only reasonable alternative was

acquittal because defendant’s statement to police indicated an

attempt to save the life of another. People v Heflin, 434

Mich 482, 554 n 10; 456 NW2d 10 (1990) (Levin, J., dissenting)

(noting that the defense of another may justify homicide). To

permit a manslaughter conviction on the evidence presented

would result in a conviction against the great weight of the

evidence. Therefore, I agree that the Court of Appeals

opinion should be vacated and that defendant’s conviction

should be affirmed.

VI

Because the majority has adopted an interpretation of MCL

768.32 contrary to its plain text and our long-settled rules

of statutory construction, I cannot join its rationale.

However, because I agree that manslaughter is an offense

“inferior” to murder, and because the evidence does not

support a manslaughter instruction, I concur in the result

10

only.

Michael F. Cavanagh

Marilyn Kelly

11