People v. Perry

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 accessoiy 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 accessoiy after the fact is not a cognate offense of murder, and we likewise affirm.

I

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.

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. 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.

Defendant was charged as an adult with three counts of first-degree (felony) murder for killing three children in the Rollie family, one count of burning a dwelling house (arson), and three counts of attempting to murder the three surviving members of the Rollie family. 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 and involuntary (gross negligence) manslaughter. The court told the jury that it could find defendant guilty if he aided another in the commission of the crime. However, the court refused defense counsel’s request for an instruction on the common-law offense of being an accessory after the fact.

After a statutory hearing, the circuit court sen-fenced defendant as an adult, imposing life terms for murder and ten- to twenty-year sentences for attempted murder.

The Court of Appeals affirmed. 218 Mich App 520; 554 NW2d 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 (1998).

n

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 NW2d 546 (1994), and People v Bailey, 451 Mich 657, 667-676; 549 NW2d 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.” 446 Mich 443. Applying those guides, we concluded in Hendricks that udaa 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 450-451.]

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 NW2d 662 (1978). The crime of accessory after the fact is akin to obstruction of justice. United States v Brenson, 104 F3d 1267 (CA 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.

m

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 NW2d 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. 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 “[defendant was entitled to the requested instruction regarding accessory after the fact, and the trial court erred in failing to grant that request.” 218 Mich App 551-552.

Several decisions of the Court of Appeals also have been urged upon us, as examples of sound analysis in this realm. These include People v Rohn, 98 Mich App 593, 602; 296 NW2d 315 (1980), People v Usher, 196 Mich App 228, 231-234; 492 NW2d 786 (1992), People v Kurzawa, 202 Mich App 462; 509 NW2d 816 (1993), and People v Cadle, 204 Mich App 646, 657; 516 NW2d 520 (1994). However, Rohn and Cadle are instances in which a court looked only at whether the evidence showed that the defendant had committed the cognate offense, omitting to consider whether it was of the same class or category as the offense charged. As indicated above, both analytical steps are necessary. In Usher, the defendant proposed that accessory after the fact was a cognate offense of murder; yet when the trial court agreed and the defendant was so convicted, he argued on appeal that it was not a cognate offense. The panel in Kurzawa did not face the issue we consider today. To the extent that these decisions axe inconsistent with our holding today, they are overruled.

Finally, we reject defendant’s claim that he was denied due process of law because the circuit court would not give an instruction that accorded with his theory of the case. As noted on page 58, the defense was simply that he was innocent of the charges laid by the prosecutor; nothing prevented defendant from urging that defense. Cf. Chambers v Mississippi, 410 US 284; 93 S Ct 1038; 35 L Ed 2d 297 (1973), Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974). Defense counsel diligently cross-examined the prosecution witnesses, and, though he declined the opportunity, defendant likewise was free to present proofs to the jury. The only limitation placed on defendant was that he was not permitted to select an alternative charge, of a different class or category, to present to the jury. That choice lay with the prosecutor, subject to the circuit court’s right to amend the information sua sponte or on proper motion.

IV

For the reasons set forth in this opinion, we hold that the common-law offense of accessory after the fact is not a cognate offense of murder, and that the circuit court did not err in refusing to give such a cognate instruction to the jury. Accordingly, we affirm the judgments of the circuit court and the Court of Appeals.

Weaver, C.J., and Taylor, Corrigan, and Young, JJ., concurred.

Ricco was tried as a juvenile and adjudicated guilty of arson, not of murder.

Ricco said that he did not actually see Mr. Perry throw the devices— he said he turned and ran as Mr. Perry was preparing to throw them, and then heard “two wooshes or something, like you could tell something was exploding, kind of lighting on fire like something like that.”

These portions of the testimonial record are cited as evidence that defendant was an accessory after the fact. For the same purpose, we are asked to note evidence that defendant may have helped to detain one of the other witnesses who wanted to call the fire department. With children dying in a fire, however, steps to slow or prevent the arrival of fire fighters could properly be treated as acts in the commission of murder, rather than assistance after the fact. Further, the act of flushing the accelerant down the toilet after the bombing could also be construed as an act committed in furtherance of the charged offenses.

MCL 600.606; MSA 27A.606.

MCL 750.316; MSA 28.548.

MCL 750.72; MSA 28.267.

MCL 750.91; MSA 28.286.

MCL 750.317; MSA 28.549.

MCL 750.321; MSA 28.553.

In this regard, the court gave the instruction found in CJI2d 16.4(7), as well as the broader language of CJI2d 8.1.

MCL 750.505; MSA 28.773.

CJI2d 8.6 is the standard instruction on the offense of accessory after the fact. CJI2d 8.7 explains how aiding and abetting differs from being an accessory after the fact.

MCL 769.1(3); MSA 28.1072(3). See MCR 6.931. Such a hearing is now inapplicable for the offenses committed in the present case. MCL 769.1(1); MSA 28.1072(1), as amended by 1996 PA 248.

This was a difficult decision — the court expressly found that neither sentencing alternative (a juvenile disposition or concurrent nonparolable life terms) was just.

Defendant was not sentenced for the arson conviction, since it was the felony underlying the murders. People v Wilder, 411 Mich 328; 308 NW2d 112 (1981).

The circuit court’s judgment of sentence includes a recommendation that future Governors consider the defendant for commutation after he has served twenty years.

This principle is traceable, as noted by the dissent, to People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). The dissent would overrule this part of the Jones case. We note that after oral argument we asked the parties to brief whether we should abandon our current approach to lesser offense instructions. The prosecution has urged us to abandon our current approach in favor of the federal model that does not allow cognate lesser instructions. The California Supreme Court took such a course of action in People v Birks, 19 Cal 4th 108; 960 P2d 1073 (1998). Although several arguments in favor of adopting the federal model are attractive, we hold that this is not the case for such a change, largely because defendant was not entitled to an accessory after the fact instruction under our existing cognate lesser jurisprudence. We do, however, notify bench and bar that we are prepared in a more appropriate case to consider adopting the federal model regarding lesser offense instructions.

MCL 750.413; MSA 28.645.

A court’s authority to instruct on lesser offenses flows from MCL 768.32; MSA 28.1055 and the interest of both defendants and prosecutors in seeing that juries do not return upjust verdicts when faced with all-or-nothing choices. However, a tension sometimes exists between this shared interest and the rights of the parties. Specifically, the defendant has a right to notice of the charge, while the prosecutor has the right to select the charge and avoid verdicts on extraneous lesser offenses preferred by the defendant. In the present case, the defendant’s actions at the Ricco home, where he apparently sought to hide evidence of the crime, are closely enough related to the crime of setting the fire that the prosecutor could have chosen to file an eighth count in the information, charging the defendant as an accessory after the fact. The prosecutor, however, did not choose that course, and defendant does not have the right to interpose that alternative charge. Put another way, the request for an instruction on accessory after the fact was in the nature of a motion to amend the information, People v Williams, 412 Mich 711, 714; 316 NW2d 717 (1982), the denial of which was not an abuse of discretion.

In this regard, Judge Bandstra does not focus on a comparison between murder and the common-law offense of being an accessory after the fact. Rather he notes a similarity between the latter offense and the act of being an accessory to a crime. 218 Mich App 547, n 1. However, being an aider and abettor is simply a theory of prosecution, not a separate substantive offense. MCL 767.39; MSA 28.979.

The circuit court relied on People v Karst, 118 Mich App 34; 324 NW2d 526 (1982), to dispose of this matter. The Court of Appeals unanimously agreed that Karst was inapposite. 218 Mich App 532, n 1, 546-547. However, the analysis of the Karst panel is helpful in distinguishing aiding and abetting from accessory after the fact, and emphasizing that the latter offense needs to be separately charged, if it is to be placed before the jury. 118 Mich App 41.

We also need to address our treatment of a murder case called People v Rodgers, unpublished opinion per curiam, issued May 23, 1995 (Docket No. 163255), in which the Court of Appeals reversed on the ground that the trial court erred in refusing the defendant’s request for an instruction on accessory after the fact. In its opinion, the Court of Appeals said that the evidence supported such an instruction, and that the failure to instruct was not harmless error. The panel did not write of the relationship between the charges in the information and the offense of being an accessory after the fact. Initially, we denied leave to appeal by a four-three vote. People v Rodgers, 451 Mich 894 (1996). In dissent, Justice Boyle raised the issue whether accessory after the fact is indeed a cognate offense. 451 Mich 895. On reconsideration, we remanded Rodgers to the Court of Appeals for reconsideration in light of People v Mateo, 453 Mich 203; 551 NW2d 891 (1996), which concerns the test for determining whether preserved nonconstitutional error is harmless. People v Rodgers, 453 Mich 883 (1996). After the remand, we reversed on the ground that any error was harmless. People v Rodgers, 455 Mich 868 (1997). While our third order refers to “the lesser offense of accessory after the fact,” that reference was dictum. Because it is inconsistent with today’s opinion, it is rejected.

In light of our conclusion that the circuit court did not err, we need not consider whether an instruction error in this case could be characterized as harmless. Specifically, we need not address Judge Bandstra’s treatment of People v Richardson, 409 Mich 126; 293 NW2d 332 (1980), and People v Beach, 429 Mich 450; 418 NW2d 861 (1988). See 218 Mich App 552-556.