People v. Perry
| Decision Date | 15 June 1999 |
| Docket Number | No. 1,Docket No. 107621,1 |
| Citation | 460 Mich. 55,594 N.W.2d 477 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Lee PERRY, Defendant-Appellant. Calendar |
| Court | Michigan Supreme Court |
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and J. Thomas Horiszny, Assistant Prosecuting Attorney, Saginaw, for the people.
State Appellate Defender (by Susan M. Meinberg), Detroit, for the defendant-appellant.
Norm Donker, President, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, Detroit, for amicus curiae, Prosecuting Attorneys Association of Michigan.
Defendant was convicted of first-degree murder and several other offenses. At trial, his attorney requested that the jury be instructed on the common-law offense of accessory after the fact, but the circuit court refused to give the instruction. The Court of Appeals affirmed. We hold that the common-law offense of accessory after the fact is not a cognate offense of murder, and we likewise affirm.
The crime occurred on June 14, 1990. Shortly before dawn, two Molotov cocktails were thrown through the living room windows of the Saginaw home of a family named Rollie. Flames and smoke soon engulfed the house, and three young children died in the fire. The parents and one child survived.
A thirteen-year-old juvenile named Jacinto (Jason) Ricco was involved in starting the fire. He had a history of taunting and threatening members of the Rollie family. In August 1989, he had stood in the street outside their house, yelling invective that included specific mention of a firebomb. Further, Ricco had an interest in such devices and acknowledged being in the vicinity of the Rollie house, with the two Molotov cocktails, at the time of the fire. 1
Sixteen-year-old defendant Michael L. Perry was in the company of Ricco and several friends at the Ricco house through the night of June 13-14. Around the time of the fire, defendant and Ricco left. When they returned, they were panting as though they had been running. They were arguing about the fire. Ricco later testified that defendant threw the devices into the Rollie home, using a towel to keep fingerprints off the bottles. 2 A second witness told the police that defendant had made such an admission after he and Ricco returned, but the witness' testimony at trial was inconsistent regarding whether he heard an admission from defendant or an accusation from Ricco.
After the fire, defendant and Ricco were in a bathroom of the Ricco house, where they were heard arguing. The toilet flushed several times. A swab taken inside the toilet bowl later revealed traces of the same type of fuel as the accelerant used to start the fire. Defendant was also part of a discussion concerning disposal of the container in which the fuel had been stored. Later, defendant and Ricco were seen near the burning house, watching the fire. 3
Defendant was charged as an adult 4 with three counts of first-degree (felony) murder for killing three children in the Rollie family, 5 one count of burning a dwelling house (arson), 6 and three counts of attempting to murder the three surviving members of the Rollie family. 7 Following a mistrial, defendant was tried again in February 1991.
Defendant did not testify or offer any proofs. His attorney argued to the jury that defendant was not guilty. "We're denying any involvement in it period, paragraph." Counsel also argued that later events could not constitute aiding and abetting the crime:
Members of the jury, when the Court instructs you on the aiding and abetting instruction that the prosecutor referred to, one of the elements of aiding and abetting is that any participation has to be done with the intent to commit the crime before or during the commission of the crime, or participation with knowledge that the other person has an intent to commit a certain act, a certain offense. So that what happens afterwards not--does not constitute aiding and abetting after the crime is complete. So that the--it's basically irrelevant at this point what happened in the bathroom anyway, but I'm--I don't think you can accept beyond a reasonable doubt [another witness'] testimony that it was--one of the voices she heard was Mr. Perry, under the circumstances as they existed at that time.
The court instructed the jury on the elements of the charged offenses, and on the lesser offenses of second-degree murder 8 and involuntary (gross negligence) manslaughter. 9 The court told the jury that it could find defendant guilty if he aided another in the commission of the crime. 10 However, the court refused defense counsel's request for an instruction on the common-law offense 11 of being an accessory after the fact. 12
After a statutory hearing, 13 the circuit court sentenced defendant as an adult, 14 imposing life terms for murder 15 and ten- to twenty-year sentences for attempted murder. 16
The Court of Appeals affirmed. 218 Mich.App. 520, 554 N.W.2d 362 (1996). In his lead opinion, Judge BATZER, sitting by assignment, upheld the circuit court's conclusion that accessory after the fact is not a proper cognate offense of murder. Judge O'CONNELL wrote a short concurrence, in which he expressed agreement with the lead opinion. Judge BANDSTRA dissented, saying that defendant should be given a new trial, at which the jury would be instructed on accessory after the fact.
Defendant's application for leave to appeal was granted, limited to whether the circuit court erred in denying the defense request for an instruction on accessory after the fact as a cognate lesser offense of murder. 457 Mich. 870, --- N.W.2d ---- (1998).
In recent years, this Court has considered the topic of lesser offenses on several occasions. Comprehensive discussions are found in People v. Hendricks, 446 Mich. 435, 441-451, 521 N.W.2d 546 (1994), and People v. Bailey, 451 Mich. 657, 667-676, 549 N.W.2d 325 (1996).
It is not necessary again to set forth at length the principles outlined in Hendricks and Bailey. However, we reaffirm our statement in Hendricks that " '[c]ognate' lesser included offenses are those that share some common elements, and are of the same class or category as the greater offense, but have some additional elements not found in the greater offense." 17 446 Mich. at 443, 521 N.W.2d 546. Applying those guides, we concluded in Hendricks that UDAA 18 is not a cognate offense of armed robbery.
This analysis leads to the conclusion that UDAA and armed robbery are not of the same class or category, and that UDAA is not a possible cognate offense where the primary offense charged is armed robbery. UDAA, while a property offense, lies within a hierarchy in line with, but below, the outer reaches of larceny. While bearing some relationship to theft, it requires no larcenous intent. Armed robbery also bears some secondary relationship to larceny, but is principally directed at protection of the person. That crime evinces a primary concern for the threat to the safety of the individual inherent in the manner chosen by the perpetrator to accomplish his larcenous end. Whatever distant association the two offenses may have through their relationship to larceny is simply too tenuous to allow us to conclude that UDAA and armed robbery are of the same class or character as required for cognate offense instruction. [446 Mich. at 450-451, 521 N.W.2d 546.]
In light of that analysis, it inevitably follows that the common-law offense of accessory after the fact is not in the same class or category as murder. Plainly, the purpose of the murder statute is to protect human life and prohibit wrongful slayings. By contrast, an accessory after the fact is "one who, with knowledge of the other's guilt, renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment." Perkins, Criminal Law (2d ed), p. 667, quoted in People v. Lucas, 402 Mich. 302, 304, 262 N.W.2d 662 (1978). The crime of accessory after the fact is akin to obstruction of justice. United States v. Brenson, 104 F.3d 1267 (C.A.11, 1997). Laws forbidding the obstruction of justice clearly serve a different purpose than those that forbid the taking of a life.
As indicated, a comparison with Hendricks is instructive. In that case, the question was whether UDAA was a cognate offense of armed robbery in a case in which the defendant drove away in the victim's automobile and later testified that he had not intended to deprive her of the vehicle permanently. Here, in contrast, the charged offense involved a murderous arson accomplished by throwing Molotov cocktails into a home where a family slept, while the putative offense of accessory after the fact took place shortly afterward, at another site, for another purpose. UDAA not being a cognate offense of armed robbery, certainly the common-law offense of accessory after the fact is not a cognate offense of murder. 19
Writing in dissent, Judge BANDSTRA focused on the evidentiary support in this record for the conclusion that defendant was, indeed, an accessory after the fact. In this vein, he correctly noted that a jury is free to believe or disbelieve, in whole or in part, any of the evidence presented. People v. Fuller, 395 Mich. 451, 453, 236 N.W.2d 58 (1975). However, evidentiary support for a cognate instruction is not alone sufficient to require that the instruction be given. As explained in Hendricks and Bailey, the putative cognate offense also must be of the same class or category. 20 Thus, while Judge BANDSTRA is correct that "[i]f defendant had been originally charged as an accessory after the fact in this case, the evidence adduced at trial would clearly have supported a guilty verdict with regard to that charge," it does not follow that "[d]efendant was entitled to the requested instruction regarding...
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