Defendant, Theodore Fyda, appeals as of right his jury conviction of solicitation of murder
I. BASIC FACTS AND PROCEDURAL HISTORY
After a 10-year marriage, Fyda and Deborah Cunnellon were divorced in October 2005. Fyda met with his friend, Robert Friederichs, regularly over the course of the subsequent IV2 to 2 years and complained about his divorce. Fyda also often spoke of his desire to kill Cunnellon. Friederichs initially believed that Fyda was just “blowing off steam,” but he became concerned when Fyda became more aggressive in his statements after Cunnellon filed a motion seeking to recover $5,900 related to mortgage payments. The motion was scheduled to be heard in October 2007. Friederichs believed that Cunnellon was in danger and contacted local law enforcement officials. Friederichs then worked with the law enforcement officials to arrange a meeting between Fyda and an undercover officer who would be posing as a killer for hire. At this meeting, Fyda asked the officer to “pop” Cunnellon and provided the officer with the following items: a handgun that Fyda portrayed as not traceable, pictures of Cunnellon and her car, Cunnellon’s work address, and a $200 down payment on a negotiated contract price of $700. Fyda was arrested at the conclusion of the meeting.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
A. STANDARD OF REVIEW
Fyda argues that his trial counsel was ineffective for failing to object to the trial court’s jury instructions regarding the solicitation-of-murder charge. We review de novo the constitutional question whether an attor
B. ANALYSIS
To establish a claim of ineffective assistance of counsel a defendant must show that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the defense.
The jury found Fyda guilty of solicitation to commit murder pursuant to MCL 750.157b(2), which provides: “A person who solicits another person to commit murder, or who solicits another person to do or omit to do an act which if completed would constitute murder, is guilty of a felony punishable by imprisonment for life or any term of years.” The statute defines solicit as “to offer to give, promise to give, or give any money, services, or anything of value, or to forgive or promise to forgive a debt or obligation.”
The trial court’s jury instructions regarding the solicitation-of-murder charge were as follows:
First, that the defendant through words or actions offered, promised, or gave money or anything of value to another person.
Second, that the defendant intended that what he said or did would cause murder to be committed. The crime of murder occurs when:
First, an individual causes the death of another person.
Second, that the individual’s state of mind at the time of the killing would have been either, one, an intent to kill, or two, an intent to do great bodily harm to another person, or three, an intent to do an act that would create a very high risk of death or great bodily harm knowing that death or great bodily harm would be the likely outcome.
The prosecutor does not have to prove that... the person the defendant solicited actually committed, attempted to commit, or intended to commit murder.
Fyda argues that the trial court’s jury instructions defined murder consistently with second-degree murder so that the jury was given the opportunity to convict him without proof that he premeditated and deliberated the solicited murder. More specifically, Fyda argues that because Michigan statutory law does not define the term “murder,” it is defined by reference to the common law.
Contrary to Fyda’s assertion, the Michigan Supreme Court has clearly held that malice aforethought, or simply “malice,”
However, we conclude that the crime of solicitation to commit murder does not include solicitation to inflict
In People v Taylor,
In Maher, the Court considered whether the evidence supported the charge of assault with intent to commit murder and explained that the answer
must depend upon the question whether the proposed evidence would have tended to reduce the killing — had death ensued — from murder to manslaughter, or rather, to have given it the character of manslaughter instead of murderf] If the homicide — in case death had ensued — would have been*454 but manslaughter, then defendant could not be guilty of the assault with intent to murder, but only of a simple assault and battery. The question therefore involves essentially the same principles as where evidence is offered for a similar purpose in a prosecution for murder; except that, in some cases of murder, an actual intention to kill need not exist; but in a prosecution for an assault with intent to murder, the actual intention to kill must be found, and that under circumstances which would make the killing murder.[21 ]
Citing Taylor, this Court in People v Cochran clarified that
[sjpecific intent to kill is the only form of malice which supports the conviction of assault with intent to commit murder. Intent to inflict great bodily harm or wanton and wilful disregard of the recklessness of one’s conduct is insufficient to support a conviction for assault with intent to commit murder.[22 ]
Similarly, this Court in People v Lipps stated:
Because the offense is a specific intent crime, a defendant cannot be found guilty of it if conditions were such as to preclude the forming of the necessary intent.... [I]f a defendant would have been guilty of manslaughter had the assault resulted in death (due to an absence of malice), there can be no conviction of assault with intent to murder.[23 ]
Although these cases dealt with the crime of assault with intent to commit murder, the same rationale applies here. As stated, “[solicitation to commit murder is a specific intent crime that requires proof that the defendant intended that a murder would in fact be
Accordingly, we conclude that the trial court’s instructions to the jury on the elements of solicitation to commit murder were incorrect and that defense counsel should have objected. However, we also conclude that this error did not influence the outcome of the trial. There was consistent testimony that Fyda requested that Cunnellon, whom he identified with pictures, be killed with a handgun that Fyda supplied, using time and location information that Fyda supplied, for a price that Fyda partially paid. These events indicate a level of prior planning that connoted premeditation. Thus, it
III. ENTRAPMENT
A. STANDARD OF REVIEW
Fyda argues that the trial court incorrectly concluded that the police did not entrap him. Fyda argues that the police exploited a friendship between Fyda and Friederichs, a longstanding police informant, to induce Fyda into soliciting the officer to kill Cunnellon.
Whether entrapment occurred is determined by considering the facts of each case and is a question of law for this Court to decide de novo.
B. ANALYSIS
Entrapment occurs if (1) the police engage in impermissible conduct that would induce an otherwise law-abiding person to commit a crime in similar circumstances or (2) the police engage in conduct so reprehensible that the court cannot tolerate it.
(1) whether there existed appeals to the defendant’s sympathy as a friend, (2) whether the defendant had been known to commit the crime with which he was charged, (3) whether there were any long time lapses between the investigation and the arrest, (4) whether there existed any inducements that would make the commission of a crime unusually attractive to a hypothetical law-abiding citizen, (5) whether there were offers of excessive consideration or other enticement, (6) whether there was a guarantee that the acts alleged as crimes were not illegal, (7) whether, and to what extent, any government pressure existed, (8) whether there existed sexual favors, (9) whether there were any threats of arrest, (10) whether there existed any government procedures that tended to escalate the criminal culpability of the defendant, (11) whether there was police control over any informant, and (12) whether the investigation was targeted.
Friederichs testified that he felt a sense of urgency after Fyda reiterated his desire to kill Cunnellon following her initiation of postjudgment proceedings in October 2007. It was then that he approached the police. The undercover officer who dealt with Friederichs stated that Friederichs told the officer that Fyda “made mention of a stolen gun” and paying $500 to the “would-be murderer,” and that Fyda told Friederichs that if the subject was again brought up, Friederichs should inform Fyda that he found someone interested in being hired. Eventually, Friederichs facilitated the scheduling of a meeting between Fyda and the officer.
The officer testified that as he talked with Fyda alone on October 22, 2007, Fyda spoke of preferring a man
We conclude that the police did not exploit the long-existing friendship between Fyda and Friederichs to manufacture a crime. They were involved only because Friederichs brought to their attention Fyda’s threats and desire to hire someone to harm Cunnellon. The police did not approach or use Friederichs because of his friendship with Fyda. Instead, Friederichs approached the police because of his concern that Fyda’s threats against Cunnellon had been exacerbated by circumstances. There is no indication that Friederichs appealed to any sense of sympathy Fyda might have had for him or that the police instigated procedures that would have likely escalated Fyda’s culpability. While Fyda was the target of the investigation, he was made so by his own actions. Further, the police were only involved with Fyda for five days after Friederichs contacted them, with no lapses in time between the investigation and the arrest.
Fyda argues that he was offered an inducement that would make the commission of this crime unusually attractive to a law-abiding citizen. Specifically, Fyda asserts that an affordable $700 price was his improper inducement. The officer stated that Friederichs told him that Fyda offered to provide a stolen gun and $500 to have Cunnellon murdered. The officer described Fyda as being hesitant at their meeting about the initial $1,000 demand that the officer made, but stated that
Fyda also argues that Friederichs was motivated by personal benefit; that is, in return for acting as a confidential informant for the police, Friederichs received favorable resolution of outstanding unpaid traffic tickets that could have resulted in significant jail time for Friederichs. Friederichs acknowledged that his possible jailing coincided with and influenced his concern in reporting Fyda. However, Friederichs also said that he was motivated by his desire to save Cunnellon’s life and that he felt a sense of urgency after seeing Fyda’s reaction to the postdivorce hearing regarding the mortgage payments. Additionally, no matter what motivated Friederichs or the extent of inducement provided to him, the facts remain that Fyda had been plainly and specifically speaking to him about finding someone to murder Cunnellon and that Fyda had an independent meeting with the officer at which he freely made the same request.
Fyda further argues that a degree of governmental pressure was placed on him through Friederichs, who was motivated to stay out of jail and was not sufficiently supervised by the police. As discussed above, there was no evidence that Friederichs’s admitted desire to stay out of jail somehow pressured Fyda to solicit the murder of Cunnellon. The fact that more direct supervision through documenting Fyda’s conversations with Friederichs was possible (for example, audio recordings), does not mean that Friederichs was operating without supervision. In fact, the officer involved testified that he gave Friederichs specific instructions on how to approach and talk to Fyda. The officer also
In sum, the police actions were “insufficient to induce or instigate the commission of a crime by the average person, similarly situated to [defendant], who [was] not ready and willing to commit it.”
IV PROSECUTORIAL MISCONDUCT
A. STANDARD OF REVIEW
Fyda argues that the prosecutor committed misconduct by denigrating the defense and improperly shifting the burden of proof. Fyda preserved his burden-shifting argument when his defense counsel objected on the record;
We generally review de novo claims of prosecutorial misconduct on a case-by-case basis, in the context of the issues raised at trial, to determine whether a defendant was denied a fair and impartial trial.
B. DENIGRATING THE DEFENSE
Fyda argues that the prosecutor’s remarks characterizing the defense as “a defense of distraction” impermissibly denigrated the defense by suggesting that defense counsel was being disingenuous in questioning Friederichs’s credibility.
A prosecutor is afforded great latitude regarding his or her arguments and conduct at trial.
When the prosecutor argues that the defense counsel himself is intentionally trying to mislead the jury, he is in effect stating that defense counsel does not believe his own client. This argument undermines the defendant’s presumption of innocence. Such an argument impermissibly shifts the focus from the evidence itself to the defense counsel’s personality![42 ]
Fyda argued throughout the trial that Friederichs could not be believed and had manipulated Fyda into
Fyda has not demonstrated any plain error that resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial proceedings.
C. SHIFTING THE BURDEN OF PROOF
Fyda also argues that the prosecutor impermissibly shifted the burden of proof onto Fyda during closing arguments by suggesting that Fyda had to prove a defense to the charges. During rebuttal closing remarks, the prosecutor commented:
And when you think about the arguments that the defense has raised in this case, these defenses of distraction, ask yourself: How many times, how many times*463 during this case, during this closing argument, how much time was spent criticizing or name-calling Robert Friederichs? How much time did the defense defend what the defendant did? You never heard any argument during closing argument that, gees, defendant never presented a gun. Defendant never asked [the officer] to murder his wife. My client never provided the pictures. You never heard any of that. There’s been no defense to the crime itself. Only the defenses of distraction.
The trial court stated that it was “alarmed” by the prosecutor’s use of the word “defend,” then ruled as follows:
I felt that it was not in the context of her argument... presented in such a way that would be misleading to the jury and/or, or that would do anything more than perhaps compound a possible difficulty in, in instructing the jury . .. when they already have had several references by the court properly, so to point out to them that the defendant does not have any of that burden, that in effect [defense counsel], correctly so in his arguments, suggested ... he didn’t even have to do anything, he could take off and go and have lunch, I don’t remember exactly what words, but all of that gives, you know, the court at least the comfort to suggest that the jury has had sufficient instructions to understand that the burden, none of that burden is ... on the defendant; that the entire burden is on the prosecutor. Although the prosecutor... used that word, and I’m — really apologize because I can’t remember precisely whether it was defend or defense, but it was, you know, a, a form of the word defend that, that caught my attention, but as I’ve already indicated in the context, in my resolution in my own mind at that time, I do not find that in the law it creates any error that would cause the court to, to modify or, or, or, or give a different instruction before the jury returns.
A prosecutor may not imply in closing argument that the defendant must prove something or present a reasonable explanation for damaging evidence because
Although we conclude that the prosecutor’s remarks did not impermissibly shift the burden to Fyda to demonstrate his innocence, we share the trial court’s unease with those remarks. The statement, “There’s been no defense to the crime itself. Only the defenses of distraction,” appears to suggest that Fyda has a burden to provide a “defense to the crime” charged. However, the remark must be considered in the context of the whole closing arguments and in consideration of Fyda’s arguments.
We affirm.
MCL 750.157b(2).
MCL 750.227b.
US Const, Am VI.
People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
People v Nantelle, 215 Mich App 77, 87; 544 NW2d 667 (1996).
People v Taylor, 275 Mich App 177, 186; 737 NW2d 790 (2007).
People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007).
Id.
MCL 750.157b(1).
People v Crawford, 232 Mich App 608, 616; 591 NW2d 669 (1998).
People v Aaron, 409 Mich 672, 713-715; 299 NW2d 304 (1980).
Id. at 713, quoting People v Potter, 5 Mich 1, 6 (1858).
Aaron, 409 Mich at 714, quoting 4 Blackstone, Commentaries (Hammond ed, 1898), p 198; see also People v Turner, 213 Mich App 558, 566; 540 NW2d 728 (1995).
Aaron, 409 Mich at 714 n 101.
Id. at 728; see also People v Neal, 201 Mich App 650, 654; 506 NW2d 618 (1993). The Aurore Court held “that malice is an essential element of any murder, as that term is judicially defined .. . .” Aaron, 409 Mich at 728.
Aaron, 409 Mich at 714 (citation and quotation marks omitted; paragraph structure altered). The fourth recognized type of murder at common law was felony murder predicated on the felony-murder doctrine. Id. However, Aaron abrogated the common-law felony-murder doctrine. Id. at 733.
People v Taylor, 422 Mich 554; 375 NW2d 1 (1985).
Id. at 567, citing Aaron, 409 Mich at 722.
Maher v People, 10 Mich 212 (1862).
Taylor, 422 Mich at 567.
Maher, 10 Mich at 216-217.
People v Cochran, 155 Mich App 191, 193-194; 399 NW2d 44 (1986) (citations omitted).
People v Lipps, 167 Mich App 99, 106; 421 NW2d 586 (1988) (citations omitted).
Crawford, 232 Mich App at 616.
Accord People v Knasiak, unpublished opinion per curiam of the Court of Appeals, issued July 2, 1999 (Docket No. 203826), p 5 (concluding that there is no such offense as solicitation to commit second-degree murder).
Solicitation ... involves actual advance planning and foreknowledge, as is reflected by the solicitor’s deciding to have some criminal act performed by a third party on the solicitor’s behest, searching out an individual to engage in a criminal act, and acting to engage the third party to commit the criminal act. Further, the solicitation statute .. . punishes the actual advance planning and the acts taken in preparation for committing the substantive-criminal acts and not the carrying out of the planned criminal acts.. .. [T]he planning involved in solicitation connotes premeditation and deliberation. Accordingly, solicitation of murder shares the elements of premeditation and deliberation with first-degree murder. As such, solicitation of murder is inconsistent with second-degree murder for the same reason that conspiracy is inconsistent with second-degree murder, that being that “one does not ‘plan’ to commit an ‘unplanned’ substantive crime.” [Id. at 5-6 (citations omitted).]
See Taylor, 275 Mich App at 186.
People v Milstead, 250 Mich App 391, 397; 648 NW2d 648 (2002).
Id.
Id.
People v Sexton, 250 Mich App 211, 217; 646 NW2d 875 (2002).
People v Fabiano, 192 Mich App 523, 529; 482 NW2d 467 (1992).
People v Johnson, 466 Mich 491, 498-499; 647 NW2d 480 (2002).
People v Juillet, 439 Mich 34, 55; 475 NW2d 786 (1991) (opinion by Brickley, J.)(citation, quotation marks, and emphasis omitted).
Sexton, 250 Mich App at 220 (citation and quotation marks omitted).
Brown v Loveman, 260 Mich App 576, 599; 680 NW2d 432 (2004) (stating that to preserve an issue for appeal, it must be raised by a party and addressed by the trial court).
People v Carter, 462 Mich 206, 216; 612 NW2d 144 (2000) (stating that defense counsel’s failure to object qualifies as a forfeiture).
People v Brown, 267 Mich App 141, 152; 703 NW2d 230 (2005).
People v Odom, 276 Mich App 407, 413; 740 NW2d 557 (2007); People v Barber, 255 Mich App 288, 296; 659 NW2d 674 (2003).
Odom, 276 Mich App at 413.
People v Unger, 278 Mich App 210, 236; 749 NW2d 272 (2008).
Id.
People v Wise, 134 Mich App 82, 102; 351 NW2d 255 (1984) (citation omitted).
People v Reid, 233 Mich App 457, 477; 592 NW2d 767 (1999).
See People v McGhee, 268 Mich App 600, 635; 709 NW2d 595 (2005).
See People v Dobek, 274 Mich App 58, 64; 732 NW2d 546 (2007).
People v Jones, 468 Mich 345, 354; 662 NW2d 376 (2003).
Odom, 276 Mich App at 413.
People v Green, 131 Mich App 232, 237; 345 NW2d 676 (1983).
People v Abraham, 256 Mich App 265, 273; 662 NW2d 836 (2003),
People v Callon, 256 Mich App 312, 331; 662 NW2d 501 (2003).
Green, 131 Mich App at 237.
People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004).
See Callon, 256 Mich App at 331.
See McGhee, 268 Mich App at 634-635.
Unger, 278 Mich App at 235.