People v. Rehkopf
| Decision Date | 25 June 1985 |
| Docket Number | 69819,Docket Nos. 69219 |
| Citation | 422 Mich. 198,370 N.W.2d 296 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vicki REHKOPF, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Frederick SNYDER, Defendant-Appellant. 422 Mich. 198, 370 N.W.2d 296 |
| Court | Michigan Supreme Court |
David H. Sawyer, Kent County Pros. Atty., Timothy K. McMorrow, Chief Appellate Atty., Dennis B. Leiber, Asst. Pros. Atty., Grand Rapids, for plaintiff-appellee in No. 69219.
Varnum, Riddering, Schmidt & Howlett by Dennis C. Kolenda, Catchick & Dodge by David Dodge, Grand Rapids, for defendant-appellant in No. 69219.
David H. Sawyer, Kent County Pros. Atty., Timothy K. McMorrow, Chief Appellate Atty., Grand Rapids, for plaintiff-appellee in No. 69819.
George S. Buth, Grand Rapids, for defendant-appellant in No. 69819.
The principal issue presented by these consolidated appeals concerns the elements of the statutory offense of inciting, inducing, or exhorting another person to commit murder.
Section 157b of the Penal Code provides that a person who "incites, induces or exhorts" another person to commit certain enumerated offenses, including murder, "shall be punished in the same manner as if he had committed the offense, incited induced or exhorted." 1 In each of the instant consolidated cases, the defendant was charged with violating Sec. 157b under circumstances where the contemplated murder was not committed or attempted and thus the contemplated victim was not injured.
Vicki Rehkopf was charged with inciting, inducing or exhorting an undercover police officer to murder her husband, Robert Rehkopf. Before trial, Rehkopf moved to quash, arguing that since an undercover police officer would not commit murder, a necessary element of the offense--that the intended result be likely to occur--was absent. The circuit judge denied the motion and the Court of Appeals denied leave to appeal.
John Frederick Snyder was charged with conspiracy 2 to commit murder and with inciting, inducing, or exhorting another person to murder his brother, Arnold Snyder. The conspiracy count was dismissed following the preliminary examination. A jury found Snyder guilty of violating Sec. 157b.
Before sentencing, Snyder moved that the sentence imposed be consistent with his assertion that Sec. 157b of the Penal Code does not require a mandatory life sentence on conviction of inciting, inducing, or exhorting another person to commit murder, or, if it does, that such a mandatory life sentence would constitute cruel or unusual punishment and a denial of equal protection. The circuit judge granted the motion and sentenced Snyder to fifteen to thirty years in prison. The prosecutor filed an application for leave to appeal, and the Court of Appeals peremptorily reversed and remanded for resentencing to mandatory life imprisonment.
The legislative history of Sec. 157b of the Penal Code, the circumstances that led to its enactment, and the punishment for solicitation prescribed in other jurisdictions suggest that Sec. 157b is a special kind of accomplice statute designed to enlarge the scope of accomplice liability in certain limited situations, and not a codification of the common-law offense of solicitation 3 enlarging the punishment when certain dangerous felonies and misdemeanors are involved. 4
We hold that Sec. 157b does not subject a person to criminal responsibility for utterances that do not result in the commission of the offense sought to be committed. A person who does no more than utter words seeking the commission of an offense is subject to liability only for the common-law offense of solicitation. 5
A
Section 157b is ambiguous. It appears from dictionary definitions of the words "incite," "induce," and "exhort" that "exhort," and sometimes "incite," means "to urge," while "induce," and sometimes "incite," refers to an utterance that actually moves the listener to act. 6
Taken as a whole, the phrase "incites, induces or exhorts" might--emphasizing the word "exhorts"--be read to mean "to urge," without regard to whether the listener was persuaded or, following persuasion, acted. Such a construction would, however, deny a separate literal or dictionary meaning to "induces" and perhaps make "incites" superfluous. Alternatively, the phrase might--emphasizing the word "induces"--be read to mean "to move to action," thereby requiring some causal nexus between the words uttered and their intended effect. This construction would, however, deny a separate literal or dictionary meaning to "exhorts" and, again, perhaps make "incites" superfluous.
Thus the maxim of statutory construction that every word is to be given effect 7 is not here determinative, for the maxim cuts both ways. To require a cause and effect relationship--thereby giving meaning to "induces" and "incites"--would tend to deny literal or dictionary meaning to "exhorts." Nor will it do simply to say that "incites, induces or exhorts" is a disjunctive phrase and must therefore be read at the very least to proscribe the utterance of words urging (exhorting) the commission of one or more of the enumerated offenses without regard to whether the listener was persuaded or, following persuasion, acted. Such a construction of Sec. 157b would deny a literal or dictionary meaning to "induces" and to those separate meanings of "incites" that contemplate action on the part of the listener.
Because there is no linguistic reading of "incites, induces or exhorts" that gives a literal or dictionary meaning to all three words, the phrase "incites, induces or exhorts" is ambiguous. Confronted with ambiguous language, courts generally seek to determine the construction that appears most likely to be in accord with the legislative purpose in light of all the circumstances. Indications of legislative intent or purpose are of primary concern. Ambiguity in penal statutes, moreover, requires application of the rule of lenity. 8
B
Criminal responsibility as a common-law accessory before the fact--now treated as a principal 9--required that the crime instigated "have an element of particularity." 10 Thus, general urgings to crime might subject the speaker to liability for solicitation but might fail to demonstrate a sufficient nexus to establish complicity in offenses actually committed. 11
The 1967 civil disturbance in Detroit brought to light the fact that the Penal Code did not provide an adequate means of punishing general urgings to commit life-endangering offenses. Section 157b was added 12 to the Penal Code in the wake of the civil disturbance so that a person who "incite[d], induce[d] or exhort[ed]" other persons to actually commit a life-endangering offense would be subject to the same maximum penalty as the person who committed the offense without regard to whether there was any further nexus or concert of action between the speaker and the listener/actor. Section 157b thus filled a gap in the scope of accomplice liability.
While, without regard to Sec. 157b, accomplice liability might attach at common law to a speaker whose specific urgings caused the commission of an offense, the inclusion in Sec. 157b of the word "exhorts" might indicate that such a specific causal relationship would no longer be required. After the enactment of Sec. 157b, a general urging to a crowd or gathering that in fact resulted in the commission of one or more of the enumerated offenses would subject the speaker to criminal liability as an accomplice.
C
The construction of Sec. 157b as a special kind of accomplice statute derives further support from its legislative history. The same day that Sec. 157b was enacted, the Legislature made it unlawful for a person "intending to cause or to aid or abet the institution or maintenance of a riot, to do an act or engage in conduct that urges other persons to commit acts of unlawful force or violence, or the unlawful burning or destroying of property" (emphasis supplied). 13 The maximum penalty was fixed at ten years imprisonment and a $10,000 fine. 14
While Sec. 157b applies to conduct that "incites, induces or exhorts," the riot provision applies to conduct that "urges." Reading Sec. 157b as applying to conduct that merely urges commission of a dangerous offense, without requiring that the offense actually be committed or attempted, 15 ascribes to the Legislature the intent to punish solicitation--"urg[ings]," that is "exhort[ations]"--of violent or dangerous felonies with intent to incite a riot by a lesser penalty than solicitation to commit those same felonies without the added danger of a riot.
D
After the third reading of the Senate bill that eventually became Sec. 157b, a substitute bill was offered on the floor of the Senate; it was not seconded and thus was rejected. The dissenting opinion says that the Senate's rejection of this proposed substitute "is just as consistent--if not more consistent--with an intent to focus on solicitation liability as their rejection of the House proposal [see part II E] is consistent with an intent to focus on accomplice liability" (emphasis in original). 16
The proposed substitute was addressed to accomplice liability: it defined certain conduct--including solicitation of another person to commit an offense with intent to promote or facilitate the commission of such offense--that would subject a person to criminal responsibility for "behavior of another constituting a criminal offense" (emphasis supplied). 17 The proposed substitute provided that the sentencing provisions applicable to the principal actor would be equally applicable to the accomplice, but also set up an affirmative defense of withdrawal.
The rejection of the proposed substitute is not inconsistent with the view that the Senate, in approving the bill that became Sec. 157b, was concerned with the scope of accomplice liability, particularly in the context of general...
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§ 30.02 Accomplice Liability: General Principles
...by P that was a natural and probable consequence of the criminal activity in which S intentionally assisted.[9] See People v. Rehkopf, 370 N.W.2d 296, 298 n.3 (Mich. 1985). [10] E.g., People v. Genoa, 470 N.W.2d 447 (Mich. Ct. App. 1991) (S unwittingly furnished money to X, an undercover po......
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TABLE OF CASES
...Register, People v., 457 N.E.2d 704 (N.Y. 1983), 306, 486 Regle v. State, 264 A.2d 119 (Md. Ct. Spec. App. 1970), 417 Rehkopf, People v., 370 N.W.2d 296 (Mich. 1985), 436 Reid, State v., 210 N.E.2d 142 (Ohio Ct. App. 1965), 251 Reid, State v., 679 S.E.2d 194 (S.C. Ct. App. 2009), 356, 366, ......
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§ 30.02 ACCOMPLICE LIABILITY: GENERAL PRINCIPLES
...by P that was a natural and probable consequence of the criminal activity in which S intentionally assisted.[9] . See People v. Rehkopf, 370 N.W.2d 296, 298 n.3 (Mich. 1985).[10] . E.g., People v. Genoa, 470 N.W.2d 447 (Mich. Ct. App. 1991) (S unwittingly furnished money to X, an undercover......