People v. Jones, Docket No. 312966.

• Citation: 302 Mich.App. 434,839 N.W.2d 51
• Decision Date: 10 September 2013
• Docket Number: Docket No. 312966.
• Parties: PEOPLE v. JONES.
• Court: Court of Appeal of Michigan (US)

302 Mich.App. 434

839 N.W.2d 51

PEOPLE

v.JONES.

Docket No. 312966.

Court of Appeals of Michigan.

Submitted June 5, 2013, at Detroit.

Decided Sept. 10, 2013, at 9:05 a.m.

Held Unconstitutional

M.C.L.A. § 257.626(5)

Validity Called into Doubt

M.C.L.A. § 768.32(2)

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Kym Worthy, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training, and Appeals, for the people.

James C. Howarth, Detroit, for defendant.

Before: KIRSTEN FRANK KELLY, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.

RONAYNE KRAUSE, J.

In this prosecution for reckless driving causing death, MCL 257.626(4), the prosecution appeals by leave granted the trial court's order granting defendant's motion to instruct the jury on the lesser included offense of moving violation causing death, MCL 257.601d, contrary to the prohibition against doing so under MCL 257.626(5). The case arises from a three-vehicle collision in which defendant struck another vehicle, causing the second vehicle to strike a third, killing the driver of the second vehicle. MCL 257.626(5) states that “[i]n a prosecution under [MCL 257.622(4) for reckless driving causing death], the jury shall not be instructed regarding the crime of moving violation causing death [under MCL 257.601d].” The trial court determined that this statutory prohibition unconstitutionally infringed on the judicial power to determine court practice and procedure. As a constitutional question, we review the matter de novo. People v. Benton, 294 Mich.App. 191, 203, 817 N.W.2d 599 (2011). Because MCL 257.626(5) is unconstitutional, we affirm.

“It is a general rule of criminal law, that a jury may acquit of the principal charge, and find the prisoner guilty of an offense of lesser grade, if contained within it.” People v. McDonald, 9 Mich. 150, 153 (1861). Many crimes, today and at common law, consist of several “concentric layers” of crimes, each of which is in fact another crime with an element added or subtracted; the “rejecting of successive aggravations is a function open to juries in all cases where there is presented to them one offense in which another is inclosed” and “[n]o question has ever been made as to this right on the part of the jury....” 1 Wharton, A Treatise on Criminal Law (10th ed.), § 27, pp. 34–35. See also Hanna v. The People, 19 Mich. 316, 318 (1869). Michigan codified this principle by statute as early as 1846 in 1846 RS, ch. 161, § 16, which provided that

[u]pon an indictment for any offence, consisting of different degrees, as prescribed in this title, the jury may find the accused not guilty of the offence in the degree charged in the indictment, and may find such accused person guilty of any degree of such offence, inferior to that charged in the indictment, or of an attempt to commit such offence.

Our Supreme Court recognized that, at the time, the only crime formally divided into degrees was murder, for which no such provision was needed; consequently, the provision must “be construed as extending to all cases in which the statute has substantially, or in effect, recognized and provided for the punishment of offenses of different grades, or degrees of enormity, wherever the charge for the higher grade includes a charge for the less.” Hanna, 19 Mich. at 321–322. Our Supreme Court eventually concluded that this principle from Hanna had become inappropriately extrapolated to include cognate offenses, not only necessarily included offenses. See People v. Nyx, 479 Mich. 112, 118–121, 734 N.W.2d 548 (2007). However, Nyx affirmed the Hanna conclusion that the statutory language concerning inferior offenses referred to any offense contained within the charged offense, not just offenses within which the Legislature has formally created degrees. Nyx, 479 Mich. at 127–129, 734 N.W.2d 548.

Today, MCL 768.32 provides essentially the same rule, with the addition of one enumerated exception, contained in MCL 768.32(2), and an explicit provision for the judge at a bench trial to make the same finding. We find it unambiguous that MCL 768.32(1) embodies a venerable and important rule of common law; consequently, the Legislature is strongly presumed not to have intended any alteration to the common law by enacting it. See Bandfield v. Bandfield, 117 Mich. 80, 82, 75 N.W. 287 (1898), overruled in part on other grounds in Hosko v. Hosko, 385 Mich. 39, 187 N.W.2d 236 (1971). Of course, the Legislature can abrogate the common law, but “[w]hen it does so, it should speak in no uncertain terms.” Hoerstman Gen. Contracting, Inc. v. Hahn, 474 Mich. 66, 74, 711 N.W.2d 340 (2006).

In an earlier case, this Court determined that the previously noted exception contained in MCL 768.32(2), pertaining to certain drug offenses, is unconstitutional. People v. Binder (On Remand), 215 Mich.App. 30, 38–42, 544 N.W.2d 714 (1996). While that conclusion has never been overturned on any substantive basis, our Supreme Court subsequently vacated that portion of this Court's opinion as having been unnecessary to the resolution of the case. People v. Binder, 453 Mich. 915, 554 N.W.2d 906 (1996). No binding caselaw presently establishes whether MCL 768.32(2) is or is not constitutional.¹ Furthermore, no binding caselaw addresses whether, or to what extent, the Legislature could abrogate the longstanding rule that the trier of fact may find a defendant not guilty of a charged offense in lieu of finding the defendant guilty of a necessarily included lesser offense.

It is axiomatic that the Legislature may establish the elements of a given crime. People v. Calloway, 469 Mich. 448, 450–451, 671 N.W.2d 733 (2003). The Legislature may, within constitutional limits, therefore, alter the definition of a crime so that it becomes or ceases to be a necessarily included lesser offense of another. There is no dispute before us that moving violation causing death is, by definition, a necessarily included lesser offense of reckless driving causing death; indeed, the prosecution explicitly so agreed at oral argument. The only distinction between the two crimes is that reckless driving causing death requires the motor vehicle to be operated “in willful or wanton disregard for the safety of persons or property....” MCL 257.626(2). The Legislature could have defined a moving violation causing death in such a way that it included an element not present in reckless driving causing death, with the result that the two would be cognate offenses. However, the Legislature did not do so.

Rather, the Legislature provided that “[i]n a prosecution under [MCL 257.626(4) for reckless driving causing death], the jury shall not be instructed regarding the crime of moving violation causing death [under MCL 257.601d].” MCL 257.626(5). Significantly, this provision (1) does not change the fact that, by definition, moving violation causing death remains a necessarily included lesser offense of reckless driving causing death, (2) does not impose any restrictions on the trial court sitting as the trier of fact at a bench trial, and (3) does not even preclude the jury from finding a defendant guilty of the lesser offense.

Pursuant to Const. 1963, art. 6, § 5, “[t]he supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state.” While not present in Michigan's first constitution of 1835, an essentially identical provision is found in all of Michigan's constitutions since 1850. See McDougall v. Schanz, 461 Mich. 15, 26 n. 10, 597 N.W.2d 148 (1999). The courts therefore may “prescribe procedural rules that vindicate constitutional rights,” but may not promulgate “procedural rules contrary to legislative enactments that involve nonconstitutional substantive policies.” People v. Glass (After Remand), 464 Mich. 266, 281 n. 11, 627 N.W.2d 261 (2001). Consequently, our Supreme Court has “exclusive rule-making authority in matters of practice and procedure,” but may not “enact court rules that establish, abrogate, or modify the substantive law.” McDougall, 461 Mich. at 26–27, 597 N.W.2d 148.

In People v. Cornell, 466 Mich. 335, 353–354, 646 N.W.2d 127 (2002), our Supreme Court held that only necessarily included lesser offenses could be considered by the fact-finder and observed that this rule extended to misdemeanor offenses. Courts are not free to expand upon what crimes may be considered by the trier of fact to include what are, essentially, uncharged offenses. Cornell therefore stands for the conclusion that the Legislature sets the substantive law. Id. at 353, 646 N.W.2d 127. As noted, the Legislature can therefore define what constitutes a given offense. Pursuant to the definitions it crafts, some of those offenses may constitute necessarily included lesser offenses of other offenses. However, the Legislature is not free to dictate that the courts give instructions to the jury that conflict with substantive law. The courts are to instruct the jury on the law; this is established by statute, MCL 768.29, but also by court rule, MCR 2.513(A) and (N), and, importantly, by the simple fact that a jury not properly informed of the law cannot fulfill its duty. See, e.g., People v. Potter, 5 Mich. 1, 8–9 (1858); People v. Duncan, 462 Mich. 47, 52–53, 610 N.W.2d 551 (2000).² Correctly instructing the jury, therefore, arguably involves more than mere “substantive law;” it is in fact a fundamental requirement of the fair and proper administration of justice. See People v. Murray, 72 Mich. 10, 16, 40 N.W. 29 (1888); People v. Townes, 391 Mich. 578, 587, 218 N.W.2d 136 (1974).

It is the role of the courts to effectuate the right to a properly instructed jury; it is not the role of the Legislature to dictate to the courts the details of how to do so. Indeed, in Cornell our Supreme Court quoted, seemingly with approval, Justice Lindemer's dissent in People v. Chamblis, 395 Mich. 408, 236 N.W.2d 473 (1975),³ in which he explicitly...