People v. Wilder

• Decision Date: 16 December 2011
• Docket Number: No. 137562,137562
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. DARRELL WILDER, Defendant-Appellee.
• Court: Supreme Court of Michigan

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
DARRELL WILDER, Defendant-Appellee.

No. 137562

Michigan Supreme Court Lansing, Michigan

FILED March 30, 2010
Filed: December 16, 2011

Opinion

Chief Justice:
Marilyn Kelly

Justices:
Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway

BEFORE THE ENTIRE BENCH

HATHAWAY, J.

We granted leave to appeal in this case to consider the limited issue of whether third-degree home invasion, MCL 750.110a(4), is a necessarily included lesser offense of first-degree home invasion, MCL 750.110a(2). We hold that third-degree home invasion under MCL 750.110a(4)(a) is a necessarily included lesser offense of first-degree home invasion because all the elements required to convict defendant of third-degree home invasion under that subdivision are subsumed within the elements that would have been necessary to convict defendant of first-degree home invasion. Accordingly, we reverse the Court of Appeals' judgment and reinstate defendant's convictions and sentences.

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I. Facts and Proceedings

Defendant Darrell Wilder appeared uninvited at Denise Carter's home very early in the morning on December 30, 2006. Ms. Carter recognized him as her son's cousin and opened the main door. Defendant opened the outer storm door and entered Ms. Carter's home without permission. Defendant then walked past Ms. Carter and started unplugging her television set. While doing so he stated, "Auntee, I love you, but this has nothing to do with you. [T]his is because of your son." When Ms. Carter protested, defendant lifted his shirt to display a gun in his waistband. Defendant then took the television with the help of a friend and put it into a waiting car. Ms. Carter told her grandchildren, who had also witnessed the intrusion, to call the police.

Defendant was arrested and charged, as a third-offense habitual offender,¹ with first-degree home invasion,² being a felon in possession of a firearm³ and possessing a firearm during the commission of a felony.⁴ The felon-in-possession charge was dismissed, and the case proceeded to trial on the first-degree home-invasion and felony-firearm counts. After a two-day bench trial, defendant was convicted of third-degree home invasion⁵ and felony-firearm. The trial court summarized its findings as follows:

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Now the Court heard the testimony of the complainant, and the children who were at the house. And there was no question about who the person was.
They never tried to embellish their testimony and said that he broke into the house. They never said he pulled a gun, just said that he pulled up his shirt.
They identified him because everybody knew the man, so there isn't much of an argument about identification.
I think the People have proven beyond a reasonable doubt that [sic] the crime of Home Invasion Third Degree. That he entered without permission; he walked right past her, and took property out.
And when there was any suggestion of resistance, he pulled up his shirt and showed that he was armed. And that was that.
So, the People have to show that the defendant entered without permission, for the purpose of committing a misdemeanor, taking property, or committing a felony.
That his body did go in, so he entered without the owner's permission.

Defendant appealed in the Court of Appeals, asserting, among other things, that his conviction of third-degree home invasion violated his due process rights because that crime is a cognate offense, not a necessarily included lesser offense, of the charged crime of first-degree home invasion. The Court of Appeals agreed with defendant and vacated his convictions.⁶ The Court of Appeals opined that a conviction of third-degree home invasion is based on the commission of or intent to commit a misdemeanor. In contrast, a conviction of first-degree home invasion is based on the commission of or intent to

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commit a felony, an element that it concluded is distinct from the commission of, or intent to commit, a misdemeanor.⁷ As a result, the Court of Appeals concluded that third-degree home invasion is a cognate offense of first-degree home invasion and, accordingly, the trial court could not convict defendant of the lesser crime.⁸ The prosecution applied for leave to appeal in this Court. This Court granted leave to consider the limited issue of whether third-degree home invasion is a necessarily included lesser offense of first-degree home invasion.⁹

II. Standard of Review

Whether third-degree home invasion is a necessarily included lesser offense of first-degree home invasion is a question of law that this Court reviews de novo.¹⁰Defendant additionally asserts that his due process rights under the Fourteenth Amendment were violated, which is a constitutional question that this Court also reviews de novo.¹¹

III. Analysis

The issue before us is whether third-degree home invasion is a necessarily included lesser offense of first-degree home invasion and, consequently, whether

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defendant's convictions should be reinstated. Our analysis begins with a review of the statutory basis for lesser-offense instructions. MCL 768.32(1) provides in relevant part:

Except as provided in subsection (2), upon an indictment for an offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to commit that offense. [Emphasis added.]

In People v Cornell,¹² this Court considered what constitutes an "offense inferior to that charged" within the meaning of MCL 768.32(1). In its discussion of inferior offenses, the Cornell Court opined that "'the word "inferior" in the statute does not refer to inferiority in the penalty associated with the offense, but, rather, to the absence of an element that distinguishes the charged offense from the lesser offense.'"¹³

On this basis, the Cornell Court concluded that MCL 768.32(1) permits the trier of fact to find a defendant guilty of a lesser offense if the lesser offense is necessarily included in the greater offense. A lesser offense is necessarily included in the greater offense when the elements necessary for the commission of the lesser offense are subsumed within the elements necessary for the commission of the greater offense.¹⁴

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Necessarily included lesser offenses are distinguishable from cognate offenses. Cognate offenses share several elements and are of the same class or category as the greater offense, but contain elements not found in the greater offense.¹⁵ As a result, a cognate offense is not an inferior offense under MCL 768.32(1). Accordingly, the trier of fact may not find a defendant not guilty of a charged offense but guilty of a cognate offense because the defendant would not have had notice of all the elements of the offense that he or she was required to defend against.¹⁶

In applying these principles to the present case, we must review the home invasion statutes to determine whether the elements of third-degree home invasion, MCL 750.110a(4), are subsumed within the elements of first-degree home invasion, MCL 750.110a(2).

MCL 750.110a(2) sets forth the elements of the crime of first-degree home invasion:

A person who breaks and enters a dwelling with intent to commit a felony, larceny, or assault in the dwelling, a person who enters a dwelling without permission with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or enters a

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