People v. Carines

*775 Kelly, J.

(concurring in part and dissenting in part). Although I concur with parts I and n of the majority opinion, I respectfully dissent from parts in and IV. I believe the majority properly concluded that the prosecution presented sufficient evidence to convict defendant of armed robbery and felony murder as either “a principal or an aider and abettor.” Ante at 758.

However, I dissent from the decision to extend the standard for reviewing unpreserved claims of constitutional error utilized in People v Grant 1 to the unpreserved claim of constitutional error presented in this case. Although the majority accurately recognizes that the trial court improperly instructed the jury on aiding and abetting felony murder, it errs by concluding that this error does not warrant reversal. Consequently, I would reverse the Court of Appeals decision and remand for a new trial, because failure to provide relief with regard to this issue will result in manifest injustice.

STANDARD OF REVIEW

As explained in the Court of Appeals opinion, failure to object to jury instructions constitutes waiver of any error, unless relief is necessary to avoid manifest injustice. MCL 768.29; MSA 28.1052; People v Vaughn, 447 Mich 217, 228 ; 524 NW2d 217 (1994) (opinion of Brickley, J.); People v Petrella, 424 Mich 221, 276 ; 380 NW2d 11 (1985). Manifest injustice results when an erroneous or omitted instruction pertains to a controlling or basic issue of the case. People v Nawrocki, 376 Mich 252, 260 ; 136 NW2d 922 (1965), cert den 382 *776 US 455 (1966). Consequently, when an erroneous jury instruction pertains to an essential element of a crime, a contemporaneous objection is unnecessaiy to preserve the issue for appeal. Vaughn, supra at 228-229 (opinion of Brickley, J.); 2 People v Liggett, 378 Mich 706, 714 ; 148 NW2d 784 (1967).

The majority extends the plain error doctrine advanced in Grant to unpreserved claims of constitutional error. It requires that a defendant establish the following three elements to avoid forfeiture of an *777 unpreserved claim of constitutional error: (1) an error occurred, (2) the error was plain, and (3) the plain error affected substantial rights. Ante at 763. Although the majority recognizes that the Grant 3 “holding was limited to nonconstitutional error,” it nonetheless concludes “our [Grant] reasoning made it clear that extending the [plain error] doctrine to constitutional error furthers the policy underlying the forfeiture rale.” Ante at 764.

However, in Grant, we explicitly recognized that “this preservation rule is not without exceptions.” Id. at 547. We explained that “appellate courts will consider claims of constitutional error for the first time on appeal when the alleged error could have been decisive of the outcome.” Id. Contrary to the majority’s assertion, Grant emphasized “the instant case does not involve a constitutional right.” Id. 4

*778 The case before us involves a constitutional error, an erroneous instruction concerning an essential element of the offense. Therefore, I would conclude that a contemporaneous objection to an erroneous jury instruction is not required to preserve the issue for appeal. Vaughn, supra at 228 . Defendant’s conviction should only “be affirmed if the reviewing court is satisfied that the error is harmless beyond a reasonable doubt.” People v Graves, 458 Mich 476, 482 ; 581 NW2d 229 (1998); See Neder v United States, 527 US 1 ; 119 S Ct 1827, 1837 ; 144 L Ed 2d 35 (1999). Given that “erroneous jury instructions regarding essential elements [are] reviewed for harmless error by utilizing a ‘prejudice’ standard,” this Court must assess whether a properly instructed jury might have reached a different result, had the error not occurred. Vaughn, supra at 228, 230, 238 (opinion of Brickley, J.).

FELONY MURDER INSTRUCTIONS

As recognized by the majority, defendant was convicted of felony murder “as either a principal or an aider and abettor.” Ante at 758. To convict defendant of felony murder, the prosecution was required to establish:

(1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result, (3) while committing, attempting to commit, or assisting in the commission of any of the felonies enumerated in MCL 750.316; *779 MSA 28.548.[ 5 ] [People v Nix, 453 Mich 619, 640 ; 556 NW2d 866 (1996) (Boyle, J., dissenting).]

After the trial court appropriately instructed the jury on the first element of felony murder, 6 it then stated:

The prosecution does not have to prove that [defendant], himself, killed [the victim] or participated in the killing. To prove this element the prosecution need prove only that one of the robbers killed [the victim].

By instructing the jury that the prosecution was required to prove only that one of the robbers killed the victim, the trial court blended its felony-murder instruction with an element of aiding and abetting. As noted by the majority, the elements supporting a finding of aiding and abetting felony murder are:

“ ‘(1) [felony murder] was committed by the defendant or some other person, (2) the defendant performed acts or gave encouragement that assisted the commission of [felony murder], and (3) the defendant intended the commission of [felony murder] or had knowledge that the principal intended its commission at the time he gave aid and encouragement.’ ” [Ante at 757, quoting People v Turner, 213 Mich App 558, 568 ; 540 NW2d 728 (1995).]

By instructing the jury that the victim had to be killed by defendant or another person, the trial court satisfied the first element of aiding and abetting felony murder. The trial court also satisfied the third element by instructing the jury that defendant had to *780 possess the requisite mens rea to commit felony murder. However, the court failed to properly instruct the jury on the second element of aiding and abetting felony murder by instructing the jury that “the defendant performed acts or gave encouragement that assisted the commission of [felony murder].” 7 Turner, supra at 568 . 8

The majority accurately recognizes that the trial court failed to properly instruct the jury that defendant must have “performfed] acts or give[n] encouragement that assisted] the commission of [felony minder],” the second element of aiding and abetting felony murder. Ante at 770. It also notes that, “to be guilty as an aider and abettor, a defendant must perform acts or give encouragement that assists the commission of the crime.” The majority concedes that defendant established the existence of an error regarding an essential element of aiding and abetting. However, unfortunately, it concludes that the error did not prejudice him. Id.

Without providing any supporting rationale, the majority conclusively states that “the jury would not *781 have convicted defendant without concluding that he performed acts or gave encouragement that assisted the commission of the crime.” Ante at 771. It reasons that, when viewed as a whole, the trial court’s instructions adequately protected defendant’s rights. Id. at 770-771. However, the majority attempts to support this erroneous reasoning by citing the following excerpts from the trial court’s instructions:

“If the killing was purely accidental and totally unex pected,, none of the robbers is guilty of First Degree Murder, or if the killing was an act done by one of the robbers which the others had no reason to anticipate, the other robbers are not guilty of First Degree Felony Murder.' They are guilty of an armed robbery, but not murder.

* * *

“If none of the participants intended for anyone to get killed or hurt and there was no good reason to anticipate given how things were planned and/or how they were carried out, that anyone would get killed or hurt, then any death which occurred during the course of the robbery is not a Felony Murder. If given the circumstances of planning and committing the robbery there was no good reason for participants other than the killer to anticipate a killing or a serious injury, those other participants are not guilty of a Felony Murder. If the way a robbery is planned and/or carried out gives the participants good reason to anticipate that someone might be killed or seriously injured, those participants are guilty of First Degree Felony Murder if someone does get hurt and' dies from their injuries even though it was not planned that anyone be killed or injured. [Ante at 771 (emphasis added).]

The majority acknowledges that these excerpts provided additional instructions, only, regarding the element of malice. Id. at 772. However, on the basis of them, it inexplicably concludes that “the jury could *782 not have come to those conclusions without also finding that defendant aided or encouraged the killing.” Id 9

The trial court utterly failed to instruct the jury on the second element of aiding and abetting felony murder, and the remaining instructions provided no guidance regarding this element. Consequently, I would not conclude that the jury would have found defendant guilty of the second element of aiding and abetting felony murder. Not only did the trial court fail to instruct on this element, it exacerbated its error by expressly instructing the jury that

[t]he prosecution does not have to prove that [defendant], himself, killed [the victim] or participated in the killing. To prove this element the prosecution need prove only that one of the robbers killed [the victim],

I do not conclude that this' error was harmless. The trial court failed to instruct the jury that defendant must have “performed acts or given encouragement that assisted” in the killing, and expressly instructed that defendant need not have participated in the killing. Consequently, I would conclude that defendant was prejudiced by the failure to instruct on an essential element of the crime. Although I believe that *783 there was sufficient evidence to convict defendant of felony murder, 10 a properly instructed jury might have found otherwise. See Vaughn, supra at 239 .

conclusion

The majority properly concluded that the prosecution presented sufficient evidence to convict defendant of armed robbery and felony murder. Although it accurately recognizes that the trial court improperly instructed the jury on aiding and abetting felony murder, it errs by concluding that defendant was not prejudiced by this error. In addition, I reject the majority’s unwarranted extension of the standard for reviewing unpreserved claims of constitutional error utilized in People v Grant to the unpreserved claim of constitutional error presented here. Therefore, I would reverse the Court of Appeals decision and remand for a new trial.

Cavanagh, J., concurred with Kelly, J.

445 Mich 535 ; 520 NW2d 123 (1994).

The majority contends my

position is flawed because it ignores the plain language of MCL 768.29; MSA 28.1052 and MCR 2.516(C), which require parties to preserve claims of instructional error. Although the dissent suggests that the Fourteenth Amendment may require that this Court disregard the policy underlying the preservation requirement, ... it fails to explain how our extension of the plain error rule to unpreserved claims of constitutional error violates due process. The Supreme Court surely would not have applied the plain error rule in Johnson [v United, States, 520 US 461 ; 117 S Ct 1544 ; 137 L Ed 2d 718 (1997)] if its application violates due process. Moreover, the dissent’s approach would collapse Michigan’s preservation requirement into the harmless error rule and would thus fail to further the important policy considerations underlying our preservation jurisprudence. [Ante at 767-768, n 16.]

Whereas it asserts that I ignore the “plain language of MCL 768.29; MSA 28.1052 and MCR 2.516(C),” the majority itself concedes that MCR 2.516(C) and MCL 768.29; MSA 28.1052 “do not control in this case because the alleged error is a constitutional one . . . .” Ante at 767. Because the instructional error in this case relates to an essential element, it “has long been recognized under Michigan law as unique and commanding an exception to the general rule requiring preservation.” Vaughn, supra at 229, n 5 . By permitting a jury to convict a defendant without finding every essential element, the majority would relieve “the prosecution of its constitutionally mandated burden of proving the essential elements beyond a reasonable doubt.” Id., 259-260 (Levin, J., dissenting). Contrary to the majority, I believe that we are not free to follow MCL 768.29; MSA 28.1052 and MCR 2.516(C) if they provide less protection of a defendant’s due process rights than required under the Fourteenth Amendment. Id., 261 , citing Chapman v California, 386 US 18 ; 87 S Ct 824 ; 17 L Ed 2d 705 (1967).

The majority fails to acknowledge that Grant addressed “a trial court’s failure to give a preliminary instruction before an offer of testimony on insanity . . . .” Grant, supra at 537 (emphasis added). Although this Court did not address final instructions to a jury in Grant, it noted that “final instructions to the jury are the subject of harmless-error analysis ... .” Id., 543 .

As recognized by the majority, Grant relied primarily on United States v Olano, 507 US 725 ; 113 S Ct 1770 ; 123 L Ed 2d 508 (1993), for its plain error analysis. Ante at 763. The majority also recognized that Olano premised its plain error analysis on FR Crim P 52(b), which “defines a single category of forfeited-but-reversible error." Olano, supra at 732 . However, the majority fails to acknowledge that “Michigan does not have a counterpart to FR Crim P 52(b) . . . .” See Grant, supra at 555 (Levin, J., dissenting). As noted by Justice Levin in his Grant dissent, the “adoption of the views expressed by the majority in Olano concerning the meaning of the federal plain error rule ignores the significant difference between the federal judicial power and the judicial power confided to this Court.” Id., 556. While federal rules provide federal courts with limited power to correct errors that were forfeited, the Michigan Constitution provides this Court with plenary power to correct such errors. Id., 556-557.

*778 Like Olano, Johnson, n 2 supra at 466-467, premised its plain error analysis on BTR Crim P 52(b). Consequently, the majority’s reliance on Johnson is similarly misplaced.

The majority accurately notes that “robbery” is one of the enumerated offenses under MCL 750.316; MSA 28.548.

The court stated, “The first thing which the prosecution must prove is that the victim . . . was killed during an armed robbery by one of the robbers.”

Therefore, to satisfy the second element of aiding and abetting felony murder, the trial court should have instructed the jury that “defendant performed acts or gave encouragement that assisted the commissions of”

(1) the killing of a human being, (2) with the intent to kill,.to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result, (3) while committing, attempting to commit, or assisting in the commission of [armed robbery]. [ 453 Mich 640 .]

Although the Court of Appeals appropriately reached this conclusion, it then erroneously concluded that this error did not result in manifest injustice because “the jury apparently found defendant guilty as the principal in the felony murder . . . However, this conclusion ignores the fact that the jury found defendant guilty as the “principal or an aider and abettor.”'

The majority alternatively concludes that, had defendant established a prejudicial error, it would not reverse because “the alleged error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Ante at 772, citing Johnson v United States, n 2 supra at 469-470. However, the majority asserts that its “conclusion is supported by the same reasoning that causes [it] to conclude that no prejudice occurred.” Id. Given that the reasoning supporting the majority’s prejudice conclusion is flawed, its conclusion that the prejudicial error “did not seriously affect the fairness, integrity, or public reputation of judicial proceedings” must fail on the basis of the majority’s own admission. In addition, Johnson fails to support the majority’s conclusion, because the omitted element was essentially uncontroverted at trial. Johnson, supra at 470 .

The majority purports to “review the entire record, including both the jury instructions and the evidence,” to determine prejudice. Ante at 772, n 18, citing Neder, supra. However, in Neder , the United States Supreme Court explained that a reviewing court making a harmless-error inquiry does not “ ‘become in effect a second jury to determine whether the defendant is guilty.’ ” Rather, a court must ask “whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” Id., 119 S Ct 1839 (citations omitted). Given that the evidence against defendant was circumstantial, a rational jury properly instructed could have come to a contrary finding regarding the second element of aiding and abetting felony murder. Nevertheless, contrary to Neder , the majority acts as a second jury by conclusively stating that the jury would not have convicted defendant without finding this element. Ante at 770-772.