PEOPLE OF MI V CHAVEZ DUJUAN HALL
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
May 29, 2003
9:10 a.m.
No. 223182
Calhoun Circuit Court
LC No. 99-001205-FC
ON REMAND
Plaintiff-Appellee,
v
CHAVEZ DUJUAN HALL,
Defendant-Appellant.
Updated Copy
July 7, 2003
Before: Neff, P.J., and Murphy and Wilder, JJ.
WILDER, J.
This case is before this Court on remand from our Supreme Court "for reconsideration in
light of" People v Cornell, 466 Mich 335; 646 NW2d 127 (2002). 467 Mich 888 (2002). On
reconsideration, we affirm.
I. Facts and Proceedings
Defendant appealed as of right his jury-trial convictions of first-degree felony murder,
MCL 750.316; arson of real property, MCL 750.73; assault with intent to rob while armed, MCL
750.89; and first-degree criminal sexual conduct (CSC), MCL 750.520b(1)(c). In his appeal,
defendant asserted that his statement to the police was coerced and was not voluntary, that the
trial court erred in failing to instruct the jury on the crime of second-degree murder, and that his
convictions of felony murder and assault with intent to rob while armed constituted a violation of
double jeopardy, US Const, Am V; Const 1963, art 1, § 15.
We affirmed in part, determining that the trial court did not clearly err in ruling that
defendant's statement was voluntary and that double jeopardy did not impede defendant's
convictions of both felony murder and assault with intent to rob while armed. People v Hall, 249
Mich App 262, 269, 272-273; 643 NW2d 253 (2002). In addition, we reversed defendant's
conviction of first-degree felony murder and remanded to the trial court for entry of a conviction
of second-degree murder and resentencing on that conviction. In our previous opinion, we noted
that defense counsel had agreed that the jury should not be instructed on the lesser included
offense of second-degree murder and, thus, appeared to waive any error by the trial court's
-1-
"failure" in this regard. Id. at 270-271, citing People v Carter, 462 Mich 206, 215-218; 612
NW2d 144 (2000). We concluded that despite this apparent waiver, nevertheless, we were
bound by People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975), under which the trial court's
failure to instruct the jury on second-degree murder required reversal of defendant's first-degree
murder conviction. Hall, supra at 271-272. We also invited the Supreme Court to consider the
viability of Jenkins under these facts. Id. at 271-272. Both parties sought leave to appeal, and
the Supreme Court denied defendant's application and remanded the case for reconsideration in
response to the prosecutor's application.
II. Analysis
In Cornell, supra at 357, the Supreme Court held that "a requested instruction on a
necessarily included lesser offense is proper if the charged greater offense requires the jury to
find a disputed factual element that is not part of the lesser included offense and a rational view
of the evidence would support it." The Cornell Court overruled Jenkins to the extent that it
conflicts with this holding. Id. at 358. Specifically, while Jenkins required the trial court to
always instruct the jury on the necessarily included lesser offense of second-degree murder, even
when this instruction is not requested or is objected to, the trial court is no longer automatically
required to provide an instruction on second-degree murder when it is unsupported by the
evidence, consistent with the truth-seeking function of a trial as expressed in MCL 768.29.
Cornell, supra at 357-358 & n 13. The Court also concluded that where a trial court erroneously
refuses to give a requested instruction on a necessarily included lesser offense, a harmless-error
analysis applies to the instructional error. Id. at 362-363.
Applying Cornell to the facts of this case, because the trial court was not automatically
required to instruct the jury on second-degree murder, we find no error in the trial court's failure
to do so. At the close of the prosecution's case, defendant moved for a directed verdict with
regard to all counts. The trial court granted defendant's motion for a directed verdict on the
open-murder count, and after doing so, acknowledged sua sponte that, on the basis of the
evidence, it was possible for the prosecution to argue that defendant created a condition that had
a very high probability of resulting in death or great bodily harm, i.e., the burning of the building,
thus supporting an instruction to the jury on the crime of second-degree murder. However, the
trial court inquired of counsel whether, when the open-murder charge had been dismissed, it was
appropriate to instruct the jury on second-degree murder. The prosecution suggested that the trial
court should not instruct the jury on second-degree murder, and the trial court agreed that this
was the better course of action. Defendant also expressly agreed with this approach, suggesting
that the prosecution should not be permitted to present both a premeditated-murder theory and a
felony-murder theory to the jury.1
1
Although defendant asserts on appeal that defense counsel did not object to the trial court's
failure to instruct on second-degree murder, we conclude from the record that defense counsel
affirmatively agreed with this decision. Because this is a critical distinction that is important to
our analysis, we quote the relevant discussion from the transcript of the proceedings:
(continued…)
-2-
As the Supreme Court noted in Carter, supra at 214-215:
The rule that issues for appeal must be preserved in the record by notation
of objection is a sound one. People v Carines, 460 Mich 750, 762-765; 597
NW2d 130 (1999). Counsel may not harbor error as an appellate parachute.
People v Pollick, 448 Mich 376, 387; 531 NW2d 159 (1995), quoting People v
Hardin, 421 Mich 296, 322-323; 365 NW2d 101 (1984). "Deviation from a legal
rule is 'error' unless the rule has been waived." United States v Olano, 507 US
725, 732-733; 113 S Ct 1770; 123 L Ed 2d 508 (1993).
* * *
Waiver has been defined as "the 'intentional relinquishment or
abandonment of a known right.'" Carines, supra at 762 n 7, quoting Olano, supra
at 733. It differs from forfeiture, which has been explained as "the failure to make
the timely assertion of a right." Id. "One who waives his rights under a rule may
not then seek appellate review of a claimed deprivation of those rights, for his
waiver has extinguished any error." United States v Griffin, 84 F3d 912, 924 (CA
7, 1996), citing Olano, supra at 733-734.
(…continued)
The Court: . . . Now I don't know—and this frankly I've never been
confronted with before—if there is clearly insufficient evidence to instruct on first
degree murder. When the charge is open murder can I and should I instruct on
second degree murder only for Count 1?
Mr. Wallace [the assistant prosecutor]: I guess, your Honor, from the
People's perspective, I would say yes you can. But we would be willing to say
that you should not at all.
The Court: I think that's the better course of action, Mr. Wallace, I really
do. What's your thought, Mr. Eagan, to the contrary?
Mr. Eagan [defense counsel]: No, your Honor. I agree that it's—I think
the elements are the same and that at some point there has to be a selection or an
election by the [p]rosecution under which theory they're gonna [sic] go to the jury.
It is apparent from the transcript of the proceedings that defense counsel, perhaps as a matter of
strategy, agreed that the trial court should not instruct the jury on the crime of second-degree
murder.
-3-
Here, it is clear that defendant waived any right he might have had to have the jury
instructed on second-degree murder. Because defendant waived this right, there is no error to
review. Carter, supra at 219; People v Riley, 465 Mich 442, 449; 636 NW2d 514 (2001); People
v Tate, 244 Mich App 553, 559; 624 NW2d 524 (2001).
Affirmed.
/s/ Kurtis T. Wilder
/s/ Janet T. Neff
/s/ William B. Murphy
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
