People v. Hawthorne

Decision Date26 April 2006
Docket NumberDocket No. 128168.
Citation474 Mich. 174,713 N.W.2d 724
PartiesPEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. Frank James HAWTHORNE, Defendant-Appellee.
CourtMichigan Supreme Court

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Olga Agnello, Principal Attorney, Appeals, Detroit, for the people.

State Appellate Defender (by Jacqueline J. McCann), Detroit, for the defendant.


The issue in this case is whether a court's failure to instruct on the defense of accident requires automatic reversal of a defendant's conviction where accident was a central issue in the case. We hold that the failure to instruct on this defense requires reversal only where the defendant satisfies the standard explicated in People v. Lukity, 460 Mich. 484, 596 N.W.2d 607 (1999), and People v. Rodriguez, 463 Mich. 466, 474, 620 N.W.2d 13 (2000).1 In this case, defendant has not established that the alleged error undermined the reliability of the verdict. We therefore reverse the judgment of the Court of Appeals and reinstate defendant's convictions of second-degree murder, MCL 750.317; and possession of a firearm during the commission of a felony, MCL 750.227b.


The Court of Appeals summarized the underlying facts:

On the evening of October 18, 2002, defendant and [Dennis] Jeffries met at an illegal gambling house and got into an argument over a $5 bet. When the argument escalated, defendant walked out of the room and returned with an automatic handgun. Two men tried unsuccessfully to disarm defendant. Everyone present in the house then ran for the exits, except for Vance Claxton, who watched the encounter by peering around a wall. Jeffries said to defendant, "What you going to do with the gun? We supposed to be family. We supposed to be better than that. What, you going to shoot me?" Jeffries then challenged defendant to a fight. When defendant pressed the barrel of the gun into Jeffries's chest, Jeffries grabbed defendant's wrist and pushed him against the wall. Claxton saw defendant and Jeffries standing face-to-face and speaking while Jeffries held defendant's wrist and they waved the gun around, pointing it in different directions. Defendant was trying to push the gun toward Jeffries, and Jeffries was trying to push the gun away. Claxton then looked away, and approximately two seconds later he heard a gunshot and saw Jeffries fall to the ground.

About ten seconds after the shot, Claxton heard defendant say, "Man, I'm sorry. You know I didn't shoot you. The gun was on safety. I'm sorry." Defendant found Claxton hiding in the bedroom and told him, "I shot Dennis by accident. Come apply pressure to his chest." Defendant told Claxton to call 911. With defendant's help, Claxton put Jeffries in a car. Claxton then drove Jeffries to the hospital. More than a month later, Jeffries died from complications arising from the gunshot wound. [265 Mich.App. 47, 49-50, 692 N.W.2d 879 (2005).]

It is also noteworthy that before he started gambling, Jeffries had removed a wad of $100 bills from his jacket and counted it. He then returned the money to his jacket pocket and gambled with smaller denominations. When Jeffries' jacket and shirt were removed following the shooting, the money was missing from the jacket.

Defendant was charged with first-degree premeditated murder, MCL 750.316; first-degree felony murder, MCL 750.316; and felony-firearm. The court refused defendant's request to read CJI2d 7.1, the standard jury instruction on accident as a defense to murder. The court cited People v. Morrin, 31 Mich.App. 301, 187 N.W.2d 434 (1971), and People v. Hess, 214 Mich. App. 33, 543 N.W.2d 332 (1995), and stated that

under the authority of Hess and Morrin, if the accident occurred in connection with some other unlawful act, because that's the way I'm reading those cases, then the accident defense is not available. It's not available in this setting. I think we talked about this in chambers. Factually speaking, at a very minimum your client committed a felonious assault by going into the living room, getting a gun, bringing it into the dining room and pointing it at the victim and threatening him.

Now, there may not have been an intent to pull the trigger. The pulling of the trigger may have been an accident, but as I read Hess and Morrin, you're not entitled to the accident instruction unless your client essentially has clean hands so to speak and was not otherwise engaged in some other unlawful act. That's why I didn't give it.

If the Court of Appeals says I was wrong about that, well, so be it, but that's the way I read those two cases.2

The jury found defendant guilty of second-degree murder, as a lesser included offense of first-degree premeditated murder, and felony-firearm. The Court of Appeals reversed the convictions, but urged this Court to review the precedent that it believed required the reversal in light of Lukity. The Court of Appeal stated: "Were we free to apply Lukity without regard to prior decisions of the Supreme Court that suggest that the instructional error that occurred in this case requires reversal, we would conclude that defendant did not establish a miscarriage of justice and affirm his convictions." 265 Mich.App. at 49, 692 N.W.2d 879.

The prosecutor filed an application for leave to appeal in this Court.


The question whether the Lukity/Rodriguez standard applies to the failure to instruct on the defense of accident is a question of law that we review de novo. People v. Young, 472 Mich. 130, 135, 693 N.W.2d 801 (2005).


In finding that the trial court had erred in refusing to instruct on the defense of accident, the Court of Appeals observed that the trial court had conceded that "`there may not have been an intent to pull the trigger. The pulling of the trigger may have been an accident . . . .'" 265 Mich.App. at 52, 692 N.W.2d 879. The Court of Appeals agreed with the trial court that evidence was presented to support the defense of accident:

Defendant and Jeffries were struggling for control of the gun when it discharged. After Jeffries was shot, defendant made statements indicating that he was sorry and that he had fired the gun accidentally. He also helped get medical attention for Jeffries. [Id.]

Further, the Court of Appeals opined that this Court's decisions in People v. Lester, 406 Mich. 252, 277 N.W.2d 633 (1979) (Lester II), and People v. Ora Jones, 395 Mich. 379, 236 N.W.2d 461 (1975), overruled on other grounds in People v. Cornell, 466 Mich. 335, 357-358, 646 N.W.2d 127 (2002), along with several Court of Appeals cases,3 mandate reversal for failure to give an accident instruction where accident was a central issue in the case. The Court of Appeals concluded that whether the shooting here was intentional or accidental was a central issue in this case, and that the failure to instruct the jury with CJI2d 7.1 therefore constituted error requiring reversal of defendant's convictions under Lester II and Ora Jones.

Nonetheless, the Court of Appeals urged this Court "to examine the continued viability of Lester II and Ora Jones and their progeny in light of Lukity and People v. Carines, 460 Mich. 750, 597 N.W.2d 130 (1999)." 265 Mich.App. at 56, 692 N.W.2d 879. The Court of Appeals stated:

Since Lester II and Ora Jones and their progeny were decided, our Supreme Court has set forth specific criteria that must be established before trial court error requires reversal. See Carines, supra at 774, 597 N.W.2d 130. In Lukity, supra at 494, 596 N.W.2d 607, our Supreme Court held that, to justify the reversal of a conviction in the case of preserved, nonconstitutional error, the defendant has the burden of establishing that the error asserted resulted in a miscarriage of justice under a "more probable than not" standard. We conclude that application of Lukity to the present case would result in a different outcome than that reached in Lester II and Ora Jones and their progeny. In those pre-Lukity decisions, the courts did not place the burden on the defendants to establish that the errors required reversal. We conclude that the facts presented in this case fail to establish error requiring reversal under the Lukity standard. The jury instructions explaining the intent element of murder made it clear that a finding of accident would be inconsistent with a finding that defendant possessed the intent required for murder. Accordingly, were we not bound by Lester II and Ora Jones, we would conclude that defendant cannot demonstrate that it is more probable than not that the trial court's failure to give the instruction on accident was outcome determinative. Lukity, supra at 496, 596 N.W.2d 607. [265 Mich. App. at 56-57; 692 N.W.2d 879.]

We agree with the Court of Appeals assessment that the Lukity standard should apply in this case. This Court has previously applied Lukity in reviewing a trial court's refusal to instruct on a defense theory.

In Rodriguez, supra, the trial court failed to instruct the jury regarding a statutory tax exemption. We explained that "`when a jury instruction is requested on any theories or defenses and is supported by evidence, it must be given to the jury by the trial judge.'" Rodriguez, supra at 472, 620 N.W.2d 13 (citation omitted). Because the statutory exemption would have applied if the jury had believed the evidence introduced by the defendant, we concluded that the trial court had erred in failing to give the requested instruction.

We did not, however, treat this error as subject to automatic reversal. Rather, we considered whether the error was harmless. We explained that "nonconstitutional preserved error is evaluated under the standard set forth in" Lukity. Id. at 473, 620 N.W.2d 13. Under Lukity, the defendant has the burden to...

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