460 Mich. 55

PEOPLE v PERRY

Docket No. 107621.

Argued December 10, 1998

(Calendar No. 1).

Decided June 15, 1999.

Michael L. Perry was convicted in the Saginaw Circuit Court, Leopold P. Borrello, J., of first-degree murder, attempted murder, and arson. The trial court had instructed the jury on the elements of the charged offenses and the lesser offenses of second-degree murder and involuntary manslaughter, but refused a defense request for an instruction on being an accessory after the fact. The Court of Appeals, J. M. Batzer, J. (O’Connell, P.J., concurring, and Bandstra, J., concurring in part and dissenting in part), affirmed. 218 Mich App 520 (1996) (Docket No. 143422). The defendant appeals, limited to the issue whether the circuit court erred in denying the defense request for an instruction on accessory after the fact as a cognate lesser offense of murder.

In an opinion per curiam, signed by Chief Justice Weaver, and Justices Taylor, Corrigan, and Young, the Supreme Court held:

The common-law offense of accessory after the fact is not a cognate offense of murder; the circuit court did not err in refusing to so instruct.

1. Cognate lesser included offenses share some common elements, and are of the same class or category as the greater offense, but have some additional elements not found in the greater offense. They are of the same class or category as, or closely related to, the originally charged offense, so as to provide fair notice to the defendant that he will be required to defend against them.

2. The common-law offense of accessory after the fact is not in the same class or category as murder. The purpose of the murder statute is to protect human life and prohibit wrongful slayings. By contrast, an accessory after the fact is a person who, with knowledge of another’s guilt, renders assistance in an effort to hinder detection, arrest, trial, or punishment. While a jury is free to believe or disbelieve, in whole or in part, any of the evidence presented, evidentiary support for a cognate instruction alone is insufficient to require that the instruction be given. Although had the defendant in this case originally been charged as an accessory after the fact, and the evidence adduced at trial clearly would have *56supported a guilty verdict with regard to that charge, it does not follow that the defendant was entitled to the requested instruction regarding accessory after the fact.

Affirmed.

Justice Bkickley, joined by Justices Cavanagh and Kelly, dissenting, stated that recent interpretations of the cognate lesser offense doctrine have transformed it from a rule protecting the defendant’s notice rights, into a formalistic bar serving no purpose but to limit a criminal defendant’s ability to require trial judges to give lesser offense instructions. A proper rule would permit the defendant to demand, and require the trial judge to give, a jury instruction on a cognate lesser offense where a reasonable view of the evidence would support the jury in finding the defendant guilty of the lesser offense. The current rule distorts the jury’s fact-finding role, potentially depriving it of the ability to reach a true verdict.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and J. Thomas Horiszny, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Susan M. Meinberg) for the defendant-appellant.

Amicus Curiae:

Norm Donker, President, John D. O’Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, for Prosecuting Attorneys Association of Michigan.

Per Curiam.

Defendant was convicted of first-degree murder and several other offenses. At trial, his attorney requested that the jury be instructed on the common-law offense of accessoiy after the fact, but the circuit court refused to give the instruction. The Court of Appeals affirmed. We hold that the common-law offense of accessoiy after the fact is not a cognate offense of murder, and we likewise affirm.

*57I

The crime occurred on June 14, 1990. Shortly before dawn, two Molotov cocktails were thrown through the living room windows of the Saginaw home of a family named Rollie. Flames and smoke soon engulfed the house, and three young children died in the fire. The parents and one child survived.

A thirteen-year-old juvenile named Jacinto (Jason) Ricco was involved in starting the fire. He had a history of taunting and threatening members of the Rollie family. In August 1989, he had stood in the street outside their house, yelling invective that included specific mention of a firebomb. Further, Ricco had an interest in such devices and acknowledged being in the vicinity of the Rollie house, with the two Molotov cocktails, at the time of the fire.1

Sixteen-year-old defendant Michael L. Perry was in the company of Ricco and several friends at the Ricco house through the night of June 13-14. Around the time of the fire, defendant and Ricco left. When they returned, they were panting as though they had been running. They were arguing about the fire. Ricco later testified that defendant threw the devices into the Rollie home, using a towel to keep fingerprints off the bottles.2 A second witness told the police that defendant had made such an admission after he and Ricco returned, but the witness’ testimony at trial was *58inconsistent regarding whether he heard an admission from defendant or an accusation from Ricco.

After the fire, defendant and Ricco were in a bathroom of the Ricco house, where they were heard arguing. The toilet flushed several times. A swab taken inside the toilet bowl later revealed traces of the same type of fuel as the accelerant used to start the fire. Defendant was also part of a discussion concerning disposal of the container in which the fuel had been stored. Later, defendant and Ricco were seen near the burning house, watching the fire.3

Defendant was charged as an adult4 with three counts of first-degree (felony) murder for killing three children in the Rollie family,5 one count of burning a dwelling house (arson),6 and three counts of attempting to murder the three surviving members of the Rollie family.7 Following a mistrial, defendant was tried again in February 1991.

Defendant did not testify or offer any proofs. His attorney argued to the jury that defendant was not guilty. “We’re denying any involvement in it period, paragraph.” Counsel also argued that later events could not constitute aiding and abetting the crime:

*59Members of the jury, when the Court instructs you on the aiding and abetting instruction that the prosecutor referred to, one of the elements of aiding and abetting is that any participation has to be done with the intent to commit the crime before or during the commission of the crime, or participation with knowledge that the other person has an intent to commit a certain act, a certain offense. So that what happens afterwards not — does not constitute aiding and abetting after the crime is complete. So that the — it’s basically irrelevant at this point what happened in the bathroom anyway, but I’m — I don’t think you can accept beyond a reasonable doubt [another witness’] testimony that it was — one of the voices she heard was Mr. Perry, under the circumstances as they existed at that time.

The court instructed the jury on the elements of the charged offenses, and on the lesser offenses of second-degree murder8 and involuntary (gross negligence) manslaughter.9 The court told the jury that it could find defendant guilty if he aided another in the commission of the crime.10 However, the court refused defense counsel’s request for an instruction on the common-law offense 11 of being an accessory after the fact.12

After a statutory hearing,13 the circuit court sen-*60fenced defendant as an adult,14 imposing life terms for murder15 and ten- to twenty-year sentences for attempted murder.16

The Court of Appeals affirmed. 218 Mich App 520; 554 NW2d 362 (1996). In his lead opinion, Judge Batzer, sitting by assignment, upheld the circuit court’s conclusion that accessory after the fact is not a proper cognate offense of murder. Judge O’Connell wrote a short concurrence, in which he expressed agreement with the lead opinion. Judge Bandstra dissented, saying that defendant should be given a new trial, at which the jury would be instructed on accessory after the fact.

Defendant’s application for leave to appeal was granted, limited to whether the circuit court erred in denying the defense request for an instruction on accessory after the fact as a cognate lesser offense of murder. 457 Mich 870 (1998).

n

In recent years, this Court has considered the topic of lesser offenses on several occasions. Comprehensive discussions are found in People v Hendricks, 446 Mich 435, 441-451; 521 NW2d 546 (1994), and People v Bailey, 451 Mich 657, 667-676; 549 NW2d 325 (1996).

*61It is not necessary again to set forth at length the principles outlined in Hendricks and Bailey. However, we reaffirm our statement in Hendricks that “ ‘[c]ognate’ lesser included offenses are those that share some common elements, and are of the same class or category as the greater offense, but have some additional elements not found in the greater offense.”17 446 Mich 443. Applying those guides, we concluded in Hendricks that udaa18 is not a cognate offense of armed robbery.

This analysis leads to the conclusion that udaa and armed robbery are not of the same class or category, and that udaa is not a possible cognate offense where the primary offense charged is armed robbery. Udaa, while a property offense, lies within a hierarchy in line with, but below, the outer reaches of larceny. While bearing some relationship to theft, it requires no larcenous intent. Armed robbery also bears some secondary relationship to larceny, but is principally directed at protection of the person. That crime evinces a primary concern for the threat to the safety of the individual inherent in the manner chosen by the perpetrator to accomplish his larcenous end. Whatever distant association the two offenses may have through their relationship to lar*62ceny is simply too tenuous to allow us to conclude that udaa and armed robbery are of the same class or character as required for cognate offense instruction. [446 Mich 450-451.]

In light of that analysis, it inevitably follows that the common-law offense of accessory after the fact is not in the same class or category as murder. Plainly, the purpose of the murder statute is to protect human life and prohibit wrongful slayings. By contrast, an accessory after the fact is “one who, with knowledge of the other’s guilt, renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment.” Perkins, Criminal Law (2d ed), p 667, quoted in People v Lucas, 402 Mich 302, 304; 262 NW2d 662 (1978). The crime of accessory after the fact is akin to obstruction of justice. United States v Brenson, 104 F3d 1267 (CA 11, 1997). Laws forbidding the obstruction of justice clearly serve a different purpose than those that forbid the taking of a life.

As indicated, a comparison with Hendricks is instructive. In that case, the question was whether udaa was a cognate offense of armed robbery in a case in which the defendant drove away in the victim’s automobile and later testified that he had not intended to deprive her of the vehicle permanently. Here, in contrast, the charged offense involved a murderous arson accomplished by throwing Molotov cocktails into a home where a family slept, while the putative offense of accessory after the fact took place shortly afterward, at another site, for another purpose. Udaa not being a cognate offense of armed rob*63bery, certainly the common-law offense of accessory after the fact is not a cognate offense of murder.19

m

Writing in dissent, Judge Bandstra focused on the evidentiary support in this record for the conclusion that defendant was, indeed, an accessory after the fact. In this vein, he correctly noted that a jury is free to believe or disbelieve, in whole or in part, any of the evidence presented. People v Fuller, 395 Mich 451, 453; 236 NW2d 58 (1975). However, evidentiary support for a cognate instruction is not alone sufficient to require that the instruction be given. As explained in Hendricks and Bailey, the putative cognate offense also must be of the same class or category.20 Thus, while Judge Bandstra is correct that “[i]f defendant *64had been originally charged as an accessory after the fact in this case, the evidence adduced at trial would clearly have supported a guilty verdict with regard to that charge,” it does not follow that “[defendant was entitled to the requested instruction regarding accessory after the fact, and the trial court erred in failing to grant that request.” 218 Mich App 551-552.

Several decisions of the Court of Appeals also have been urged upon us, as examples of sound analysis in this realm. These include People v Rohn, 98 Mich App 593, 602; 296 NW2d 315 (1980), People v Usher, 196 Mich App 228, 231-234; 492 NW2d 786 (1992), People v Kurzawa, 202 Mich App 462; 509 NW2d 816 (1993), and People v Cadle, 204 Mich App 646, 657; 516 NW2d 520 (1994).21 However, Rohn and Cadle are instances in which a court looked only at whether the evidence showed that the defendant had committed the cognate offense, omitting to consider whether it was of the same class or category as the offense charged. As indicated above, both analytical steps are necessary. In Usher, the defendant proposed that accessory after the fact was a cognate offense of murder; yet when the trial court agreed and the defendant was so convicted, he argued on appeal that it was not a cognate offense. The panel in Kurzawa did not face the issue we consider today. To the extent that these decisions *65axe inconsistent with our holding today, they are overruled.22

Finally, we reject defendant’s claim that he was denied due process of law because the circuit court would not give an instruction that accorded with his theory of the case. As noted on page 58, the defense was simply that he was innocent of the charges laid by the prosecutor; nothing prevented defendant from urging that defense. Cf. Chambers v Mississippi, 410 US 284; 93 S Ct 1038; 35 L Ed 2d 297 (1973), Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974). Defense counsel diligently cross-examined the prosecution witnesses, and, though he declined the opportunity, defendant likewise was free to present proofs to the jury. The only limitation placed on defendant was that he was not permitted to select an alternative charge, of a different class or category, to present to the jury. That choice lay with the prosecu*66tor, subject to the circuit court’s right to amend the information sua sponte or on proper motion.

IV

For the reasons set forth in this opinion, we hold that the common-law offense of accessory after the fact is not a cognate offense of murder, and that the circuit court did not err in refusing to give such a cognate instruction to the jury.23 Accordingly, we affirm the judgments of the circuit court and the Court of Appeals.

Weaver, C.J., and Taylor, Corrigan, and Young, JJ., concurred.

Brickley, J.

(dissenting). The majority decides this case under an arbitrary rule that severely limits the ability of this state’s criminal juries to find the truth. The evidence in this case was subject to three reasonable interpretations: that the defendant was guilty of the charged offense, that he was not guilty of the charged offense, or that he was not guilty of the charged offense, but guilty of the common-law crime of accessory after the fact. The trial court’s failure to give an instruction on the cognate lesser offense of accessory after the fact deprived the jury of the ability to agree with one of these interpretations, potentially foreclosing its ability to render a true verdict. Because I believe that there are neither sound rea*67sons nor sound reasoning behind the Court’s decision today, I dissent.

i

A trial judge need not instruct the jury on a cognate lesser offense unless that lesser offense is of the same “class or category” as the charged offense. People v Bailey, 451 Mich 657, 668; 549 NW2d 325 (1996). This rule, which the majority relies upon in the instant case, is based on the defendant’s due process right to have notice of the charges against him before he can be convicted of them. US Const, Ams VI, XIV; Const 1963, art 1, § 20. While this state’s cognate lesser offense doctrine has its origin in this concern for the defendant’s due process rights, it has been inexplicably extended to those cases in which the defendant requests the instruction in question, thus waiving his right to notice. People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975).

Our recent interpretations of the cognate lesser offense doctrine have transformed it from a rule protecting the defendant’s notice rights, into a formalistic bar serving no purpose but to limit a criminal defendant’s ability to require trial judges to give lesser offense instructions. Today’s holding is the latest of these decisions, unmoored from the principles that underlie it. I dissent, and propose that we make this rule of law responsive to the purposes for which it exists.

A

This Court’s decision in Ora Jones is the origin of our modem lesser offense jurisprudence. Ora Jones *68cognate lesser offense analysis is fundamentally flawed, however, because it is based on the erroneous premise that a criminal defendant may not be convicted of an uncharged lesser offense, even though the defendant has requested instruction on that offense.

It is elementary that a defendant may not be convicted of a crime with which he was not charged. . . . The reason is apparent: The Sixth and Fourteenth Amendments give a defendant the right to know the nature and cause of the accusation against him.
Thus, while there is comparatively little difficulty with the necessarily included lesser offenses, the cognate lesser included offenses are somewhat more difficult to ascertain, conceptually as well as practically. One guide to the minimal due process notice requirements in this area was set out in Paterno v Lyons, 334 US 314; 68 S Ct 1044; 92 L Ed 1409 (1948), wherein the [United States Supreme] Court said that due process notice requirements are met if the greater charged crime and the lesser included offense are of the same or of an overlapping nature. [Id., p 388 (citations omitted).]

The Ora Jones Court never explained, however, why a test is required to protect the defendant’s due process rights, where “defense counsel requested the trial judge to instruct the jury” on the cognate lesser offense at issue. Id., p 385.

We have recently recognized that “[n]otice would always be satisfied where the defendant requests the instruction.” People v Hendricks, 446 Mich 435, 443, n 13; 521 NW2d 546 (1994). Despite this observation, we went on to state in Hendricks that “it is apparent from Ora Jones that the same class or category requirement retains its force even when it is the defendant who requests the lesser offense instruc*69tion.” Id. But Ora Jones advanced only one justification for requiring that a requested cognate lesser offense be in the same class or category as the charged offense: “to provide fair notice to the defendant that he will be required to defend against it . . . Id., p 388. We have failed to articulate, in Hendricks or any other case, a legitimate reason why this requirement should “retain its force” when the stated reason for creating it was flawed, and in fact nonexistent.

Hendricks did suggest that restrictions on the defendant’s ability to demand cognate lesser offense instructions are “ ‘required to prevent misuse of lesser included offense instructions by the defense.’ ” Id., p 446, quoting People v Stephens, 416 Mich 252, 262; 330 NW2d 675 (1982), citing United States v Whitaker, 144 US App DC 344; 447 F2d 314 (1971).1

“In the absence of such restraint defense counsel might be tempted to press the jury for leniency by requesting lesser included offense instructions on every lesser crime *70that could arguably be made out from any evidence that happened to be introduced at trial. ‘An element of the mercy-dispensing power is doubtless inherent in the jury system, and may well be a reason why a defendant seeks a lesser included offense instruction, but it is not by itself a permissible basis to justify such instruction.’ ” [Hendricks, supra, p 446, quoting People v Steele, 429 Mich 13, 20, n 4; 412 NW2d 206 (1987), quoting Whitaker, supra, p 349.[2]

These purported rationales are unjustified. They show a lack of confidence in the ability of this state’s trial judges to exercise sound discretion in determining which defense theories can be rationally supported by the evidence fairly set forth at trial. Most important, they ignore the fundamental purpose of a trial, which is to determine which of two or more competing versions of the facts is actually true. By partially foreclosing the juxy’s ability to find the truth, simply because of lack of faith in the trial judge’s discretion, this Court inverts its priorities.

I have been unable to discover any legitimate justification for requiring that a cognate lesser offense be of the “same class or category” as the charged offense, in order to grant a requested instruction.3 We *71should reverse this line of cases, founded on a faulty premise, and institute a rule that is actually based on the legitimate purposes underlying it.

B

We have recognized that the fundamental purpose of criminal trials is the discovery of the truth:

The object of a criminal trial is a determination of the question whether the defendant has committed the crime charged or some related offense on the basis of evidence presented relating to the event or events in question at trial. Additionally, determination of what crime, if any, a defendant is guilty of is necessary so that the proper punishment may be imposed. In order to achieve this end, especially in a jury trial, clarity must be maintained regarding those crimes for which a defendant may be convicted. [Hendricks, supra, pp 446-447.]

We adopted the language of the United States Supreme Court in explaining this point:

“The absence of a lesser included offense instruction increases the risk that the jury will convict, not because it is persuaded that the defendant is guilty of capital murder, but simply to avoid setting the defendant free. . . . The goal ... , in other words, is to eliminate the distortion of the factfinding process . . . .” [Id., p 447, quoting Spaziano v Florida, 468 US 447, 455; 104 S Ct 3154; 82 L Ed 2d 340 (1984).]

In Hendricks, our answer to this problem of “the distortion of the factfinding process” was to artificially limit potential instructions because of our lack of faith in the trial judge’s ability to determine proper instructions on the basis of the evidence: “it is likely that the evidence introduced will be ‘whatever man*72ner of evidence ... of use in obtaining a charge on the least punitive lesser included offense possible in order that the jury may have the opportunity to be merciful.’ ” Id., quoting Ettinger, In search of a reasoned approach to the lesser included offense, 50 Brooklyn L R 191, 217 (1984). This is simply the wrong approach to the potential problem of distorted jury fact finding. Any evidence introduced must be relevant to the facts underlying the charged offense and cannot be overly confusing, repetitive, or unfairly prejudicial. MRE 401, 403. A theory that may be rationally based on such evidence is also proper for the jury to consider.4

Even accepting as true Hendricks’ statement about the admission of “whatever manner of evidence,” it is unclear how our method of limiting permissible defense theories is related to the stated problem:

[T]he method of management adopted by this Court is to limit instruction to those offenses that bear a sufficient relationship to the principal charge in that they are in the same class or category, protect the same societal interests as that offense, and are supported by the evidence adduced at trial. [Id.]

I find no relationship whatever between our concern that “whatever manner of evidence” will be admitted, and our remedy of limiting requested cognate lesser offense instructions to those that are of the same class or category as the charged offense. The proper method of addressing the problem of distortion of the *73fact-finding process is to admit relevant evidence, and then closely scrutinize the evidence admitted to determine whether a rational view of that evidence would support a conviction of the cognate lesser offense for which an instruction is requested.5

c

Here, the trial court’s refusal to instruct on the cognate lesser offense of accessory after the fact distorted the fact-finding process. The only substantial evidence linking the defendant directly with the charged crime was the testimony of Ricco, who himself was strongly implicated in the crime. More extensive testimony was given by four other witnesses, linking the defendant to the post-crime acts of destroying evidence and impeding investigation of the crime. The jury could well have chosen to believe the four witnesses to the events after the arson and disbelieved the testimony of the codefendant regarding the arson itself. If this had been the case, the jury could have correctly found that the defendant did not take part in the actual firebombing and convicted him of the reprehensible acts of trying to hide the dime.

Because the jury was not permitted to find him guilty of being an accessory after the fact, however, and because he was the only defendant before it accused of a horrible crime, the jury might have cho*74sen to convict him “ ‘not because it is persuaded that the defendant is guilty of capital murder, but simply to avoid setting the defendant free.’ ” Hendricks, supra, p 447, quoting Spaziano, supra, p 455. Thus, the Hendricks rule, purportedly intended to protect the truth-finding process, may well have prevented the jury from finding the truth in this case.

n

The rule articulated in Hendricks and followed in this case is without reason and serves no purpose other than to make it more difficult for the defendant to demand a jury instruction on a cognate lesser offense. This case powerfully demonstrates the arbitrary nature of the rule: a viable, potentially persuasive defense theory, based on the testimony of prosecution witnesses, was foreclosed because it was not of the same class or category as the charged crime. This Court should recoil from such formalism.

A proper rule would permit the defendant to demand, and require the trial judge to give, a jury instruction on a cognate lesser offense where a reasonable view of the evidence would support the jury in finding the defendant guilty of the lesser offense. The current rule distorts the jury’s fact-finding role, potentially depriving it of the ability to reach a true verdict. Rules propounded by this Court should bear some relationship to the purposes underlying them. I would reverse the holding of the Court of Appeals.

Cavanagh and Kelly, JJ., concurred with Brickley, J.

People v. Perry
460 Mich. 55

Case Details

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People v. Perry
Decision Date
Jun 15, 1999
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460 Mich. 55

Jurisdiction
Michigan

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