People v. Fyda

• Decision Date: 18 May 2010
• Docket Number: Docket No. 288421.
• Citation: 793 N.W.2d 712,288 Mich.App. 446
• Parties: PEOPLE v. FYDA.
• Court: Court of Appeal of Michigan — District of US

288 Mich.App. 446

793 N.W.2d 712

PEOPLE

v.FYDA.

Docket No. 288421.

Court of Appeals of Michigan.

Submitted April 6, 2010, at Detroit.

Decided May 18, 2010, at 9:00 a.m.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General,Michael D. Wendling, Prosecuting Attorney, and Timothy K. Morris, Chief of Appeals, for the people.

Robin M. Lerg, Troy, for defendant.

Before: WHITBECK, P.J., and METER and FORT HOOD, JJ.

PER CURIAM.

Defendant, Theodore Fyda, appeals as of right his jury conviction of solicitation of murder ¹ and possession of a firearm during the commission of a felony (felony-firearm).² The trial court sentenced Fydato serve 7 to 15 years in prison for the solicitation conviction, consecutively to 2 years in prison for the felony-firearm conviction. We affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

After a 10-year marriage, Fyda and Deborah Cunnellon were divorced in October 2005. Fyda met with his friend, Robert Friederichs, regularly over the course of the subsequent 1 1/2 to 2 years and complained about his divorce. Fyda also often spoke of his desire to kill Cunnellon. Friederichs initially believed that Fyda was just "blowing off steam," but he became concerned when Fyda became more aggressive in his statements after Cunnellon filed a motion seeking to recover $5,900 related to mortgage payments. The motion was scheduled to be heard in October 2007. Friederichs believed that Cunnellon was in danger and contacted local law enforcement officials. Friederichs then worked with the law enforcement officials to arrange a meeting between Fyda and an undercover officer who would be posing as a killer for hire. At this meeting, Fyda asked the officer to "pop" Cunnellon and provided the officer with the following items: a handgun that Fyda portrayed as not traceable, pictures of Cunnellon and her car, Cunnellon's work address, and a $200 down payment on a negotiated contract price of $700. Fyda was arrested at the conclusion of the meeting.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

A. STANDARD OF REVIEW

Fyda argues that his trial counsel was ineffective for failing to object to the trial court's jury instructions regarding the solicitation-of-murder charge. We review de novo the constitutional question whether an attorney'sineffective assistance deprived a defendant of his or her Sixth Amendment ³ right to counsel.⁴ Because the trial court did not conduct an evidentiary hearing, our review of Fyda's challenge to the effectiveness of defense counsel is limited to mistakes apparent on the record. ⁵

B. ANALYSIS

To establish a claim of ineffective assistance of counsel a defendant must show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense.⁶ A counsel's performance was deficient if it fell below an objective standard of professional reasonableness.⁷ The performance prejudiced the defense if it is reasonably probable that, but for counsel's error, the result of the proceeding would have been different.⁸

The jury found Fyda guilty of solicitation to commit murder pursuant to MCL 750.157b(2), which provides: "A person who solicits another person to commit murder, or who solicits another person to do or omit to do an act which if completed would constitute murder, is guilty of a felony punishable by imprisonment for life or any term of years." The statute defines solicit as "to offer to give, promise to give, or give any money, services, or anything of value, or to forgive or promise to forgive a debt or obligation." ⁹ "Solicitation to commit murder is a specific intent crime that requires proofthat the defendant intended that a murder would in fact be committed." ¹⁰ The statute, however, does not define murder or differentiate between degrees of murder.

The trial court's jury instructions regarding the solicitation-of-murder charge were as follows:

First, that the defendant through words or actions offered, promised, or gave money or anything of value to another person.

Second, that the defendant intended that what he said or did would cause murder to be committed. The crime of murder occurs when:

First, an individual causes the death of another person.

Second, that the individual's state of mind at the time of the killing would have been either, one, an intent to kill, or two, an intent to do great bodily harm to another person, or three, an intent to do an act that would create a very high risk of death or great bodily harm knowing that death or great bodily harm would be the likely outcome.

The prosecutor does not have to prove that ... the person the defendant solicited actually committed, attempted to commit, or intended to commit murder.

Fyda argues that the trial court's jury instructions defined murder consistently with second-degree murder so that the jury was given the opportunity to convict him without proof that he premeditated and deliberated the solicited murder. More specifically, Fyda argues that because Michigan statutory law does not define the term "murder," it is defined by reference to the common law.¹¹ And the historical common-law definition of 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 oraforethought, either express or implied.' " ¹² In other words, "malice aforethought is the 'grand criterion' which elevates a homicide ... to murder." ¹³ Fyda asserts that "malice aforethought" is synonymous with premeditationand thus implies first-degree murder only.

Contrary to Fyda's assertion, the Michigan Supreme Court has clearly held that malice aforethought, or simply "malice," ¹⁴ "is the intention to kill, the intention to do great bodily harm, or the wanton and willful disregard of the likelihood that the natural tendency of defendant's behavior is to cause death or great bodily harm." ¹⁵ These three mental states correspond to three of the four types of murder recognized at common law: "(1) intent-to-kill murder; (2) intent-to-do-serious-bodily-injury murder; [and] (3) depraved-heart murder [wanton and willful disregard that the natural tendency of the defendant's behavior is to cause death or great bodily harm]." ¹⁶ Thus, Fyda's argument that "malice aforethought" is synonymous with premeditation and thus implies first-degree murder only is without merit.

However, we conclude that the crime of solicitation to commit murder does not include solicitation to inflictgreat bodily harm or to act with a wanton and willful disregard of the likelihood that the natural tendency of one's behavior is to cause death or great bodily harm.

In People v. Taylor,¹⁷ the Michigan Supreme Court considered the intent required to support a finding that a defendant committed assault with intent to commit murder. MCL 750.83 provides that "[a]ny person who shall assault another with intent to commit the crime of murder, shall be guilty of a felony, punishable by imprisonment in the state prison for life or any number of years." But like the statute prohibiting solicitation to commit murder, the statute prohibiting assault with intent to commit murder does not define murder. Therefore, the Taylor Court first acknowledged that there generally are "several intents which can support a murder conviction. There can be an intent to kill, an intent to inflict great bodily harm, or a wanton and wilful disregard of the likelihood that the natural tendency of the actor's behavior is to cause death or great bodily harm." ¹⁸ But citing Maher v. People,¹⁹ the Taylor Court concluded that in the context of assault with intent to commit murder, "it is necessary to find that there was an actual intent to kill." ²⁰

In Maher, the Court considered whether the evidence supported the charge of assault with intent to commit murder and explained that the answer

must depend upon the question whether the proposed evidence would have tended to reduce the killing—had death ensued—from murder to manslaughter, or rather, to have given it the character of manslaughter instead of murder[.] Ifthe homicide—in case death had ensued—would have beenbut manslaughter, then defendant could not be guilty of the assault with intent to murder, but only of a simple assault and battery. The question therefore involves essentially the same principles as where evidence is offered for a similar purpose in a prosecution for murder; except that, in some cases of murder, an actual intention to kill need not exist; but in a prosecution for an assault with intent to murder, the actual intention to kill must be found, and that under circumstances which would make the killing murder.^[21]

Citing Taylor, this Court in People v. Cochran clarified that

[s]pecific intent to kill is the only form of malice which supports the conviction of assault with intent to commit murder. Intent to inflict great bodily harm or wanton and wilful disregard of the recklessness of one's conduct is insufficient to support a conviction for assault with intent to commit murder.^[22]

Similarly, this Court in People v. Lipps stated:

Because the offense is a specific intent crime, a defendant cannot be found guilty of it if conditions were such as to preclude the forming of the necessary intent.... [I]f a defendant would have been guilty of manslaughter had the assault resulted in death (due to an absence of malice), there can be no conviction of assault with intent to murder.^[23]

Although these cases dealt with the crime of assault with intent to commit murder, the same rationale applies here. As stated, "[s]olicitation to commit murder is a specific intent crime that requires proof that the defendant intended that a murder would in fact becommitted." ²⁴ Therefore, we conclude that a defendant cannot be found guilty of solicitation to commit murder without a finding of the necessary specific intent. That is, it is necessary to find that there was an actual intent to kill. Intent to inflict great bodily harm or wanton and wilful disregard of...