People v. Cornell

Decision Date18 June 2002
Docket NumberDocket No. 115833, Calendar No. 2.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Adam Keith CORNELL, Defendant-Appellant.
CourtMichigan Supreme Court

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Daniel L. Sutton, Prosecuting Attorney, and William E. Molner, Assistant Attorney General, Lansing, MI, for the people.

Bruce L. Hulse, East Lansing, MI, and State Appellate Defender (by P.E. Bennett) Detroit, MI, for the defendant-appellant.

Jeffrey L. Sauter, President, Michael E. Duggan, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, Detroit, MI, for the Prosecuting Attorneys Association of Michigan.


In the case before us, we must consider two issues: (1) whether the trial court erred in refusing to give the requested misdemeanor lesser included offense instruction of breaking and entering without permission, M.C.L. § 750.115, and (2) if the trial court did err, whether the error was harmless. We hold that it was error for the trial court to refuse the requested instruction and that the error was harmless. Therefore, we affirm defendant's convictions.


Defendant Cornell was convicted by a jury in the Roscommon Circuit Court of breaking and entering with the intent to commit larceny, M.C.L. § 750.110. He was sentenced, as an habitual offender, to eight to twenty years' imprisonment.

Defendant Cornell's conviction stems from an incident occurring in mid-February, 1996, when a house owned by Thomas Becker was completely destroyed by fire.1 The fire marshal opined that the fire started in the living room/dining room area of the home and that it was not accidental. Three sets of footprints were found leading away from the home, down the hill. Police followed the prints with a tracking dog and were led to a home about two miles away, where defendant and his cousin Christopher Cornell were present. The owner of the home told police that they should be looking for Cary Prescott. Some time later, the police stopped a vehicle with Prescott, Christopher Cornell, and defendant inside. All three men gave various statements to the police regarding the incident. At defendant's trial, Christopher Cornell and Prescott testified against defendant pursuant to a plea agreement.

Defendant gave two written statements to the police, both of which were admitted into evidence. Defendant gave varying reasons in the statements for visiting the house. In one statement, defendant claimed that Prescott wanted to show him and Christopher Cornell the place where he had outrun a police dog. When they arrived at the house, Prescott began punching out windows and started the house on fire. Defendant stated that neither he nor Christopher Cornell did anything to the house. In another statement, defendant claimed that while the three of them were going for a walk, Prescott told them that there was a house in the woods that "had a lot of stuff in there that they could make a lot of money." He stated that Prescott kicked in the door, but that "there was not anything in the house to take." Prescott began punching out windows and lit some curtains on fire. Defendant denied that he lit anything on fire and stated that he did not want to be there.

Prescott testified that it was Christopher Cornell's idea to go to the house and that they went there to look around and see what was inside the house. He stated that they "hadn't really planned on taking anything. It was empty." However, during cross-examination, Prescott stated that, although he didn't plan on stealing anything, he probably would have and that he thought that perhaps he "could get a little souvenir." Prescott also stated that he tried to set a curtain on fire, but it wouldn't burn. He alleged that defendant and Christopher Cornell started the fire.

Christopher Cornell testified that he, defendant, and Prescott broke into the house to see what they could find and that they were looking for things to steal. However, they did not find anything of value to take. He also stated that Prescott broke windows and set a curtain on fire and that defendant set some mattresses on fire. In one of his written statements, Christopher indicated that Prescott had asked him and defendant if they wanted to "see something wicked" and then had led them to the house.

Defense counsel requested that the jury be instructed on the lesser included misdemeanor of breaking and entering without permission, M.C.L. § 750.115. The trial court denied the request, stating:

The Court would note for the record entering without permission is a misdemeanor. The Court takes note of the record that the defendant asserts and it was his position that there was no intent to commit a larceny and I think that the issue is squarely framed for the jury. Either there was a B and E with intent or the crime did not occur. I would not give the entering without owner's permission instruction under the circumstances of this case.

Defendant appealed, and the Court of Appeals affirmed his conviction.2 The Court of Appeals rejected defendant's argument that the trial court erred when it refused to instruct the jury on the lesser included misdemeanor. It reasoned that, in light of the evidence presented regarding defendant's intent to commit larceny, "the jury could not rationally have found that defendant lacked the intent to commit larceny when he entered the house." Op. at 145. Because the requested instruction was not supported by a rational view of the evidence, the Court of Appeals found that the trial court did not abuse its discretion in refusing to give the instruction.

One judge dissented with respect to the instructional issue. The dissent opined that there was evidence to support defendant's theory that he lacked the intent to commit a larceny. The dissenting judge explained:

Not only was there evidence supporting defendant's theory that he had no intent to commit larceny, but also the only disputed factual element was whether defendant had an intent to commit larceny, which is an element not included in the lesser misdemeanor offense. In other words, the lesser misdemeanor instruction was proper in this case because the greater offense required the jury to find that the disputed factual element, whether defendant had the intent to commit larceny, existed and this element is not required for a conviction of breaking and entering without permission. Therefore, the trial court abused its discretion in denying defendant's requested instruction of the lesser misdemeanor offense of breaking and entering without permission. [Op. at 145 (citation omitted).]

The dissent also noted that the requested instruction would not have resulted in undue confusion or some other injustice.

Defendant sought leave to appeal from this Court. This Court granted leave to appeal in this case and in People v. Silver, 466 Mich. 386, 646 N.W.2d 150 (2002), ordering that the two cases be argued and submitted together.3


Although much of our more recent case law has disregarded it, resolution of the first issue presented in this case is governed by M.C.L. § 768.32(1), which provides:

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.

MCL 768.29 requires the court to "instruct the jury as to the law applicable to the case" and indicates that "[t]he failure of the court to instruct the jury on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused."

A version of M.C.L. § 768.32 has been in existence since 1846. 1846 CL 5,952 provided:

"[U]pon an indictment for any offense, consisting of different degrees, as prescribed in this title, the jury may find the accused not guilty of the offense in the degree charged in the indictment, and may find such accused person guilty of any degree of such offense, inferior to that charged in the indictment, or of an attempt to commit such offense." [Hanna v. People, 19 Mich. 316, 320-321 (1869).]

In Hanna, the defendant was charged with assault with intent to kill. An issue before the Court was whether the trial court erred in instructing the jury that if it did not find the defendant guilty of the offense charged in the information, it might find the defendant guilty of simple assault and battery, which was a misdemeanor. In addressing the issue, this Court first discussed the general common-law rule, stating:

The general rule at common law was, that when an indictment charged an offense which included within it another less offense or one of a lower degree, the defendant, though acquitted of the higher offense, might be convicted of the less.

This rule, however, was subject to the qualification, that upon an indictment for a felony, the defendant could not be convicted of a misdemeanor. [Id., at 318.]

After explaining that the bases for the misdemeanor qualification had ceased to exist, the Court construed the 1846 version of the statute because it believed that the statute governed the case before it. The Court's analysis of the statute is enlightening. In construing the statute, Justice Christiancy, writing for the Court, stated:

I do not think this provision was intended to be restricted in its application to offenses divided by the statutes contained in this title (which included all the provisions in reference to crimes), into classes expressly designated by the name of "degrees." Thus confined, it would apply, so far as I have been able to discover, only to the single case of an indictment

To continue reading

Request your trial
176 cases
  • People v. Fletcher, Docket No. 229092.
    • United States
    • Court of Appeal of Michigan — District of US
    • May 4, 2004
    ...trial, the trial court was bound by People v. Jenkins, 395 Mich. 440, 442, 236 N.W.2d 503 (1975), overruled by People v. Cornell, 466 Mich. 335, 358, 646 N.W.2d 127 (2002), which required the trial court to always charge the jury with the necessarily lesser included offense of second-degree......
  • People v. Williams
    • United States
    • Michigan Supreme Court
    • June 14, 2006
    ...effect, applying to those cases pending on appeal in which this issue has been raised and preserved. See People v. Cornell, 466 Mich. 335, 367, 646 N.W.2d 127 (2002). However, we affirm the lower courts' decision that the 180-day-rule statute was not violated because defendant was tried wit......
  • People v. Nyx
    • United States
    • Michigan Supreme Court
    • July 18, 2007
    ...the crime of a lesser degree contains an element not within the charged offense of a greater degree. The Court of Appeals held that People v. Cornell1 forbids this We agree and hold that a defendant charged with an offense consisting of various degrees may not, consistent with MCL 768.32(1......
  • Rogers v. Klee
    • United States
    • U.S. District Court — Eastern District of Michigan
    • October 30, 2014
    ...N.W.3d 262 (1981). Under Michigan law, a jury may not be instructed on an uncharged cognate lesser offense. See People v. Cornell, 466 Mich. 335, 354, 646 N.W.2d 127 (2002) (discussing Mich. Comp. Laws § 768.32(1)). As to assault with intent to commit criminal sexual conduct involving penet......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT