PEOPLE OF MI V ANGELO ROCHELLE MCMULLAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
June 2, 2009
Plaintiff-Appellee,
v
No. 281844
Genesee Circuit Court
LC No. 01-008582-FC
ANGELO ROCHELLE MCMULLAN,
Defendant-Appellant.
Advance Sheets Version
Before: Saad, C.J., and Bandstra and Hoekstra, JJ.
BANDSTRA, J. (concurring in part and dissenting in part).
I respectfully dissent from the majority’s conclusion that the trial court did not err by
failing to provide the jury the requested instruction on involuntary manslaughter as a necessarily
included lesser offense. In all other respects, I concur with the majority opinion.
The Supreme Court most recently and comprehensively articulated our standard of
review in People v Silver, 466 Mich 386; 646 NW2d 150 (2002). “[T]he failure to instruct the
jury regarding . . . a necessarily lesser included offense is error requiring reversal . . . if, after
reviewing the entire cause, the reviewing court is satisfied that the evidence presented at trial
‘clearly’ supported the lesser included instruction,” id. at 388, meaning that there was
“substantial evidence to support the requested lesser instruction” at trial. Id. at 388 n 2.
Reviewing the “entire cause,” I begin by noting that the trial court erred by considering
the request for the instruction on involuntary manslaughter under People v Ryczek, 224 Mich
106; 194 NW 609 (1923). The trial court relied on Ryczek’s description of the elements of
involuntary manslaughter and concluded that, under the facts of this case, those elements could
not be satisfied. However, as explained in People v Holtschlag, 471 Mich 1, 11; 684 NW2d 730
(2004), “Ryczek’s description of involuntary manslaughter was never meant to define the
elements of the crime of manslaughter.” (Emphasis in original.) Most notably, the trial court
here concluded that Ryczek prohibited an involuntary manslaughter instruction because the
victim was killed in the context of a felony.1 Holtschlag reasoned that, at least since People v
1
The felony was defendant’s alleged taking of money from the victim’s pockets following the
shooting. However, even if the Ryczek rule that a killing in the context of a felony could not be
involuntary manslaughter was still good law, the jury might nonetheless have properly found
(continued…)
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Aaron, 409 Mich 672; 299 NW2d 304 (1980), whether “a ‘felony’ has been committed is simply
not dispositive in determining whether either ‘murder’ or ‘manslaughter’ has been committed
and, thus, the ‘felony’ language in Ryczek’s manslaughter description is essentially irrelevant.”
Holtschlag, supra at 10.
The crucial difference between second-degree murder (of which defendant was
convicted) and involuntary manslaughter (concerning which the requested instruction was
denied) is the presence or absence of malice. “[T]he only element distinguishing murder from
manslaughter is malice. . . . [T]he elements of voluntary manslaughter are included in murder,
with murder possessing the single additional element of malice.” People v Mendoza, 468 Mich
527, 540; 664 NW2d 685 (2003).
“Malice is defined as the intent to kill, the intent to cause great bodily harm, or the intent
to do an act in wanton and willful disregard of the likelihood that the natural tendency of such
behavior is to cause death or great bodily harm.” People v Goecke, 457 Mich 442, 464; 579
NW2d 868 (1998). In contrast, the killing of another, “committed with a lesser mens rea of gross
negligence or an intent to injure, and not malice . . . is not murder, but only involuntary
manslaughter.” Holtschlag, supra at 21-22. In other words, conviction of involuntary
manslaughter rather than murder is appropriate in such a “lesser mens rea” case because “the
offender’s mental state is not sufficiently culpable to reach the traditional malice requirements.”
Mendoza, supra at 541 (quotation marks and citation omitted).
Reviewing the evidence presented at trial, I conclude that no reasonable fact-finder could
find that defendant did not shoot and kill the victim. However, the crucial question that
remained was his state of mind in doing so.2 There was ample evidence in the record from
which a reasonable fact-finder could have concluded that defendant acted without malice. He
and the victim, Jimmy Smith, had been longtime associates, using and selling controlled
substances together for 30 years. On the evening of the altercation that resulted in Smith’s death,
he and defendant were arguing about a previous transaction in which Smith claimed that
defendant had supplied him with fake Vicodin pills. Smith claimed that, as a result and in
compensation for that, Smith should not be required to pay for cocaine that defendant had
supplied to him, a proposition with which defendant vociferously disagreed. The resulting
fistfight did not settle the matter as Smith still refused to give defendant the money he thought he
was owed for the cocaine.
Defendant testified that he wanted to scare Smith into giving him the money, by
threatening him with a gun. He testified that, at the time, he had ingested rock cocaine and that
this made him feel like “a big man.” Further, he testified that, earlier in the day, he had taken a
dose of methadone, which he claimed provided a “high.” A witness, Gregory McDowell,
(…continued)
defendant guilty of involuntary manslaughter if it believed his account that he did not take
money from the victim.
2
To the extent the trial court considered the malice question at all, it merely concluded, “Well,
here, we know they’re in a fight situation. Where there’s a fight, there’s malice.” While the fact
of the altercation between defendant and the victim is relevant in determining defendant’s state
of mind at the time he brandished the gun, it does not necessarily establish malice in that regard.
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testified that he considered defendant to be under the influence of controlled substances because
he fidgeted and paced. Further, the director of a methadone treatment center confirmed that
defendant was in treatment at the time of the shooting. Defendant testified that he did not intend
to shoot Smith and that he could not recall cocking the hammer or pulling the trigger to do so.
He claimed that the gun merely “went off.”
Following the shooting, the record shows that defendant took steps to assist Smith.
Together with William Henry Russell, Jr., defendant laid Smith on the rear passenger seat of a
car and took him to the emergency room entrance of a hospital. Russell testified that defendant
had tears in his eyes at the time.
Notwithstanding all of this, a rational fact-finder could certainly have disbelieved
defendant with respect to his intent and state of mind and concluded that the malice necessary to
support a second-degree murder conviction existed at the time the gun was fired. That would be
the proper analysis if defendant claimed that there was insufficient evidence to support the
conclusion that he was guilty of second-degree murder. As the majority points out, for example,
malice can be inferred simply from the use of a deadly weapon such as occurred here and a
challenge to the second-degree murder conviction would properly be rejected. There was ample
evidence to conclude that defendant acted with malice.
However, considering the argument defendant actually raises, I conclude that the
evidence here was sufficient to allow a rational fact-finder to conclude otherwise, i.e., that
defendant acted with a “lesser mens rea” and that his “mental state [was] not sufficiently
culpable to reach the traditional malice requirements.” Holtschlag, supra at 21-22; Mendoza,
supra at 541 (quotation marks and citation omitted). Malice may be inferred from the use of a
deadly weapon, but it does not have to be. A rational fact-finder could have believed defendant
when he said that he did not intend to fire the weapon he was using merely to scare Smith, i.e.,
that he did not intend to do the act (firing the weapon) that caused Smith’s death. That
conclusion would be consistent with the long history defendant had with Smith, his attempts to
help Smith following the shooting, his apparent grief at what had occurred and especially his
corroborated accounts of being under the influence of drugs at the time the shooting occurred.
As was the case with the defendant’s “intoxication” in People v Droste, 160 Mich 66, 78-79; 125
NW 87 (1910), the fact-finder here might have concluded that, “at the moment” the gun
discharged, defendant’s drug use was sufficient “to rob his act of the necessary elements of
murder.” While Droste is an ancient precedent, its conclusion in this regard was recently cited
with approval in Mendoza, supra at 542-543. This is not to say, of course, that the jury would
have found a lack of malice; it is merely to say that, given the record, it could have. By failing to
instruct the jury on involuntary manslaughter and thus precluding that possible outcome, the trial
court erred.
I reject the prosecutor’s arguments that any error in this regard was without prejudice to
defendant. The prosecutor argues that “defendant fails to show plain error affecting his
substantial rights” because “the trial court instructed the jury on the lesser offense of voluntary
manslaughter.” Apparently, the argument is that, because the fact-finder did not find defendant
guilty of voluntary manslaughter, it would necessarily have also rejected involuntary
manslaughter if it had been instructed to consider it. That argument overlooks the fact that
voluntary manslaughter and involuntary manslaughter are different offenses with different
elements. “In contrast to the case of voluntary manslaughter . . . the absence of malice in
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involuntary manslaughter arises not because of provocation induced passion, but rather because
the offender’s mental state is not sufficiently culpable to reach the traditional malice
requirements.” Mendoza, supra at 541, quoting United States v Browner, 889 F2d 549, 553 (CA
5, 1989). The jury might well have concluded that there was no “provocation induced passion”
to support a voluntary manslaughter conviction but that defendant’s mental state nonetheless
warranted a conviction of involuntary manslaughter.
Further, I reject the prosecutor’s claim that, because the jury convicted defendant of
second-degree murder, it necessarily found that defendant acted with malice, so that “an
instruction on common law involuntary manslaughter would not have produced a different
result.” The prosecutor’s argument here is that the jury would simply have acquitted defendant if
it concluded that he acted without malice. That argument has been specifically rejected by our
Supreme Court in Silver, supra at 393 n 7:
One might argue that the jury would have acquitted defendant if it
believed his testimony. However, this is too facile. The United States Supreme
Court rejected such an argument in Keeble v United States, 412 US 205, 212-213;
93 S Ct 1993; 36 L Ed 2d 844 (1973), when it stated:
“[I]f the prosecution has not established beyond a reasonable doubt every
element of the offense charged, and if no lesser offense instruction is offered, the
jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is
entitled to a lesser offense instruction . . . precisely because he should not be
exposed to the substantial risk that the jury’s practice will diverge from theory.
Where one of the elements of the offense charged remains in doubt, but the
defendant is plainly guilty of some offense, the jury is likely to resolve its doubts
in favor of conviction.”
The facts of this case are somewhat similar to those in Silver. At issue there was the state
of mind of a defendant who had clearly and admittedly entered a residence without permission.
Id. at 392. Nonetheless, the defendant claimed that he had no intent to steal or commit any other
offense while in the dwelling. The trial court instructed the jury regarding first-degree home
invasion but denied defendant’s request for an instruction on the lesser included offense of
breaking and entering without permission. Id. at 390. The Supreme Court reasoned that “[i]f the
jurors believed defendant [acted without the appropriate criminal motive], they realistically could
not act on [that belief] unless they had an instruction that gave them that choice. Not to give
them an instruction that allowed them to agree with defendant’s view of the events in this case
undermines the reliability of the verdict.” Id. at 393.
The same is true here. Consistently with the result in Silver, I would reverse defendant’s
conviction of second-degree murder and remand the case for a new trial by a properly instructed
jury. Id. at 394.
/s/ Richard A. Bandstra
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