People v. Perry

¶1(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.

¶2i

¶3A 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).

¶4Our 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.

¶5A

¶6This Court’s decision in Ora Jonesis 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).]

¶7The Ora JonesCourt 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.

¶8We 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 Hendricksthat “it is apparent from Ora Jonesthat 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 Jonesadvanced 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 Hendricksor 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.

¶9Hendricksdid 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]

¶10These 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.

¶11I 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.

¶12B

¶13We 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.]

¶14We 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).]

¶15In 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

¶16Even 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.]

¶17I 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

¶18c

¶19Here, 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.

¶20Because 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 Hendricksrule, purportedly intended to protect the truth-finding process, may well have prevented the jury from finding the truth in this case.

¶21n

¶22The rule articulated in Hendricksand 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.

¶23A 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.