People v. Gillis

v Gillis PEOPLE v GILLIS (Calendar 1). 18, Argued Docket No. 127194. October No. Decided 5, April 2006. by jury Court, A. John Gillis was convicted Clair the St. Circuit Adair, J., first-degree felony murder, P James of two of counts first-degree predicate felony. invasion home as the The defendant appealed, PJ., Appeals, and the Court of and J. Cooper, Jansen, J., concurring part dissenting part), and vacated the (Meter, convictions and remanded the matter to the trial court new for a charges second-degree on Unpublished opinion per trial of murder. (Docket Appeals, August of of curiam the Court issued 245012). Appeals murders, No. The Court of concluded that the by which in an occurred automobile accident caused the defendant being police away he while was chased the several miles from dwelling attempted the the defendant had to break into departed dwelling, several minutes after the defendant from the part immediately the were of continuous of transaction and, therefore, connected to home the invasion were not commit- “in ted the Supreme of” the home invasion. The granted prosecution’s application appeal. Court the for leave to 471 Mich 958 opinion by joined by In an Justice Markman, Justices Weaver, Supreme Court held: Young, CORRIGAN, “perpetration” felony-murder statute, term MCL 750.316(l)(b), is not limited definitional elements predicate felony, during but also includes those acts that occur surrounding felony. predicate unbroken chain of events A juror reasonable from could conclude the facts elicited at trial during flight when defendant collided with the victims’ vehicle his police, gestae from that act the res of the home Further, juror invasion. reasonable could conclude that defen- escaped safety had temporary dant neither nor reached a judgment Appeals before the collision. The Court be must Appeals reversed the matter must be remanded to the Court of for consideration other issues raised the defendant. during following attempt escape 1. A murder committed attempted the commission or commission of an enumerated 474 Mich 105 predicate be- “in the of” is committed completed been until cause transaction has not the felonious escaped. defendant has gestae principle, a murder 2. the res that occurs Under surrounding the of the of commission the unbroken chain events felony perpetration predicate felony is committed “in the of” that felony complete felony-murder purposes. predicate A when for is surrounding in the there a break the chain of events has been predicate felony. determining jury a consider in 3. The factors that should predi- perpetration “in the of” the whether a defendant was still felony a the the defendant committed murder include cate when predicate felony length the of the and of time between commission murder, physical the the distance between the scene murder, predicate felony the there is and scene of the whether predicate murder some causal connection between the and the felony, continuity there of the and whether is a action between predicate felony and the murder. denying 4. did in The trial court not err the defendant’s acquittal. Viewing motion for a directed verdict of the evidence juror light prosecutor, in a a most favorable to the reasonable beyond could concluded a reasonable doubt the have gestae predicate the the of murders were within res of offense home invasion. juror 5. in the No rational could conclude this case that wrong way driving act of on two interstate defendant’s police anything highways being he as was chased was very high risk other an act that created a of death or that than great bodily probable result. did harm was the The trial court failing give involuntary manslaughter not err in an instruc- tion. joined by Cavanagh Chief Justice Justices Taylor, Kelly, agreed concurring part dissenting part, in in that a defendant longer perpetration is no “in the of” an enumerated when temporary safety, he or has reached of and that she “perpetration” may encompass beyond the ele- acts definitional felony,including predicate acts ments of the committed within felony, gestae disagreed majority’s appli- res with the of that but in test. a defendant is still cation of the Whether a homicide either a an enumerated when occurs is strength depending question of law or fact on the of the evidence. If is such that a rational fact-finder could the evidence conclude that the defendant was still felony, the court should not submit the issue to the enumerated v Gillis underlying felony asportation jury. of stolen Unless the involves being property, chased has reached whether a defendant who and, thus, longer point temporary safety engaged is no “in felony” gauged by perpetration of an enumerated should be investigation objectively assessing the state of the at the time investigation point attempted. the arrest is If the at that was hotly pursuing apprehenders not the result of the defendant crime, rather the result of a fresh from the scene of the but pursuit begun having gathered after information about the crime, underlying then defendant can be said to have temporary safety. reached a When the defendant this pursuers, began assembling pursuers case lost his and those defendant, pursuit, information to reestablish law, position temporary safety. matter of had reached a granted verdict, jury’s trial court should have a directed and the verdict should be reversed. joined by concurring Justice Justice Kelly, Cavanagh, dissenting part, concurred Chief Justice Taylor’s opinion separately but wrote to reiterate his belief that when the produced preliminary legally evidence at a examination is insuffi- support binding trial,

cient a defendant over for the defendant is entitled to automatic reversal.

Reversed and remanded. — — — Felony Perpetration. 1. Homicide Murder and Words Phrases “perpetration” felony-murder The term statute references acts the defendant that outside occur the definitional elements predicate felony during and includes acts that occur surrounding predicate felony; unbroken chain of events a attempt escape murder committed to scene predicate felony perpetration is committed in the of that (MCL 750.316[l][b]). —Felony 2. Homicide Murder. jury determining

The factors that a should consider whether a predicate felony “in defendant was still of” the length when the defendant committed a murder include the predicate felony time between the commission of the and the murder, predicate felony the distance the scene of the between and murder, the scene of the there a whether is causal connection predicate felony, between the murder and the and there whether continuity predicate felony of action between the and the murder (MCL 750.316[l][b]). 474 Mich 105 Opinion op the Court Cox, General, Casey, Thomas L. Attorney A. Michael General, Prosecuting Wendling, Michael D. Solicitor Morris, Prosecuting K. Assistant Attorney, Timothy Attorney, people. for the

Karlstrom, (by LLP P. Cooney, Timothy Flynn Dailey), Brian T. for the defendant.

Amici Curiae: III, President, Fink, Jeffrey

Stuart J. R. Dunnings, Ketchum, B. Prosecuting Attorney, and Judith Assis- Attorney, Prosecuting Attorneys for Prosecuting tant Michigan. Association of McCann, Defender, for State

Jacqueline J. Assistant Defender Office. Appellate Attorneys John R. Minock for Criminal Defense Michigan. granted appeal J. We leave consider

MARKMAN, first-degree permits whether our state’s murder statute felony-murder conviction “in the of” a second-degree first- or home invasion which the away dwelling homicide occurs several miles from the after departed several minutes defendant from dwelling. trial,

Following jury defendant was convicted of two murder, first-degree counts MCL 750.316(l)(b), degree, with home invasion the first 750.110a, predicate felony. ap- MCL as the Defendant convictions, that he no pealed asserting longer “in the of home invasion at the time of perpetration” collision that killed the victims. The automobile Appeals Court of concluded that the accident was not immediately of or “part of the continuous transaction People v Gillis invasion[,]” connected to home and, therefore, vacated the convictions and remanded for new trial charges second-degree on the murder. unpublished opinion per Gillis, curiam of the Court of (Docket Appeals, August 245012), issued No. slip op “perpetration” at 3. We conclude that encom- passes acts a defendant that occur outside the predicate felony definitional elements of the during includes acts occur the unbroken chain of surrounding felony. events Because defendant at attempting escape the time of the collision was having detection after been identified juror invasion, home a reasonable could conclude that he was still “in the of” the home inva- sion. We also conclude that the trial court did not err failing involuntary manslaughter, to instruct on sup- because no rational view of the evidence could port finding grossly that defendant acted negligent injure manner or had an intent to without Accordingly, judgment malice. we reverse the Appeals Court of and remand this case to that Court for consideration of defendant’s other issues.

I. FACTS AND PROCEDURAL HISTORY p.m. May Just 24, 2001, before 2:00 on Steven Albright pull driveway, observed a vehicle into his garage. Upon investigating, then heard a noise his he standing doorway saw defendant between the garage Albright and the sunroom. When confronted abruptly defendant, defendant closed the door and left premises. Albright house, went back into the re- handgun sought bedroom, trieved a from his confront defendant. As he went out door, of the front he driving away observed defendant in a small white car Albright then Dodge to be a Shadow. that he believed defendant and the vehicle. 911, describing called both around the block for driving After his own vehicle in an at- five minutes unsuccessful approximately vehicle, home defendant’s he returned tempt to locate time, adding that he had and called 911 a second on defendant’s large patch gray primer observed vehicle. driving Kramer was p.m., Trooper

At 1:51 Steven 1-94, he a “be on the lookout” west on when received (BOL) in a home invasion. call for a vehicle involved that “a minutes Trooper couple Kramer testified vehicle, he before 2:00 o’clock” observed defendant’s BOL east description, traveling which matched the vehicle, it on 1-94. When Kramer first observed ten from home. approximately Albright’s was miles hazy Kramer it was “a little bit also testified out” when he observed the vehicle. Kramer turned around, vehicle, next to defendant’s pulled up confirmed that both the vehicle and driver matched the in the BOL. description provided emergency lights

Kramer activated his vehicle’s to the attempted stop. pulled traffic Defendant shoul- approximately per der and slowed down to 30 miles hour, stop. driving but failed to After on the shoulder for mile, suddenly about one defendant accelerated and driving took an exit off the interstate. After on an 1-94, reentered overpass, quickly began defendant Kramer driving east the westbound lanes.1 testified chase, gave lights that he that his hoping emergency oncoming presence would alert traffic to the of defen- stayed vehicle. Defendant on the dant’s shoulder oncoming traffic, the far left lane for the what would be 1 Trooper ramp testified that the exit from 1-94 Kramer westbound clearly “Wrong Way” signs. marked with “Do Not Enter” and People v Gillis Opinion Court traveling per at around 60 to 70 miles hour.2 Still 1-94, driving wrong way on he then entered the 1-69 ramp eastbound entrance to westbound 1-94. Defendant began driving westward the eastbound lanes of 1-69. driving wrong way After on 1-69 for approximately mile, one upon defendant came a curve the road which had on guardrails both sides and no shoulder. At point, occupied by this a vehicle and Gayle Nicholas Ackerman attempted pass slowing the vehicles down in front of it by pulling into the left lane. Defendant’s vehicle and the Ackermans’ vehicle collided almost directly head on. Gayle Nicholas and Ackerman were killed instantly.3 Trooper Kramer reported accident at p.m., 2:09 18 minutes from the time of the BOL call approximately ten minutes from the time Kramer initially spotted defendant’s vehicle. Defendant was prosecuted for two counts of first-degree felony murder, predicate with the felony of home invasion in the first degree. Defendant moved to quash the information on the felony-murder charges, arguing that the crime of home complete invasion was when defendant departed Albright’s from home Albright’s and eluded pursuit. The trial court motion, denied the holding that home invasion and the accident “continuous, were uninterrupted by temporary safety action that was taken this defendant.” The trial court also denied defendant’s motion for a directed verdict of acquittal, holding prosecutor that had presented sufficient evidence to allow a juror reasonable to find defendant guilty beyond Following trial, reasonable doubt. a jury 2 “appeared generally Kramer [to he] testified that defendant interfering trying with traffic or not to interfere with traffic other than going wrong way the fact that he was on the road.” 3 injury regarding Defendant suffered a closed-head and had amnesia May the events of 2001. Mich 105 two counts of murder

defendant was convicted of possibility to life in without the prison and sentenced parole. the Acker- appealed, contending

Defendant did not occur or “perpetration mans’ deaths the home In a attempt perpetrate” split invasion. decision, majority Appeals applied People Court Thew, 78, 85-86; (1993), App NW2d that, which held to convict a defendant of mur- “ der, the murder ‘committed of a part must be with, continuous transaction otherwise [must be] “immediately underlying connected” with[] ” omitted.) (Citation felony.’ The Court of ma- Appeals jority already concluded that “defendant had escaped and, therefore, from the scene home invasion” “part Ackermans’ deaths were not immediately continuous transaction of or connected to Gillis, the home supra, slip op Judge invasion.” 3. concurred in part, who dissented METER, Thew, also but concluded that applied because defen- “engaged dant in the flight only minutes after invasion,” the home committing jury a rational could reasonably conclude that “defendant committed the ‘ attempting escape murders “while from or prevent part detection of the . . . of a continuous [and] ”’ Id., felony.” transaction with . . . the .. . at 2 slip op (METER, J., concurring in dissenting part), Thew, Smith, quoting 85-86, at v supra quoting People (1974). 184, 189; Mich 222 App 55 172 The NW2d majority also concluded that the trial court erred in in- denying request defendant’s for an instruction on voluntary manslaughter, that should prop- “[defendant erly charged fleeing eluding have been murder,” second-degree and that the matter must be Id., a charges. slip op remanded for new trial on those People v 113 Gillis for granted prosecutor’s application 4. Court This (2005). 471 Mich 958 appeal. leave II. OF REVIEW STANDARD in this case concerns The first issue whether defendant’s motion to denying trial court erred statute, felony-murder under MCL quash 750.316(l)(b). proper meaning of a statute con- a that this Court reviews de question stitutes law Law, 419, 423; v Mich 20 People novo. 591 NW2d (1999). that the trial argues While defendant court information, failing quash committed error trial, a appellate where defendant has received a fair limited to the trial denial of the review is court’s Hall, People defendant’s motion for directed verdict. v (1990). 599, 601-603; 435 Mich 460 NW2d 520 the denial of a motion for a directed verdict reviewing acquittal, light this Court reviews the evidence in order prosecution most favorable to to “deter- mine whether a rational trier of fact could have found proved essential elements the crime were v beyond People Riley (After reasonable doubt.” Remand), 135, 139-140; Mich 659 NW2d 611 (2003).

The other issue concerns whether the trial court denying erred in defendant’s for an instruc- request involuntary manslaughter. “[J]ury tion on instruc- of law are questions tions involve also reviewed 418, 427; de novo.” 473 Mich People Schaefer, (2005). a trial NW2d 774 “But court’s determination to the jury applicable whether instruction is facts the case is reviewed for an abuse of discretion.” Hawthorne, 47, 50; App 692 NW2d

114 MICH 105 474 Opinion op the Court HI. ANALYSIS A. DEFENDANT’S MOTION FOR A DIRECTED VERDICT OF ACQUITTAL pertinent part: MCL 750.316 states in (1) person any A following guilty who commits degree punished by imprison- of first murder shall be ment for life:

[*] (b) of, in attempt Murder committed or perpetrate... home in the invasion first or second .[4] degree . . . primary statute, task in construing “[0]ur is to give discern and Legislature.” effect to the intent of the Valley Ward, 230, 236; Sun Foods Co v 596 (1999). 119 “The provide NW2d words of a statute ‘the Id., most reliable evidence its intent....’” quoting Turkette, 576, 593; United States v 452 US 101 S Ct (1981). 2524; L 69 Ed 2d 246 The Court must consider plain meaning “both the of the critical phrase word or as well as ‘its placement purpose statutory ” 237, scheme.’ Sun at Valley, supra quoting Bailey States, 137, 145; 501; United 516 US 116 L S Ct 133 Ed 2d statutory “The language must be read grammatical context, understood its unless it is “perpetrate” The use of the term within context of the crime of nearly Michigan’s original murder dates back to statehood. mur statute, RS, 1, 3, 1, first-degree § der title ch defined murder as follows: perpetrated by poison All murder which shall be means of or lying wait, any wilful, premedi- or other kind of deliberate and killing, or which shall be committed or tated attempt perpetrate any arson, rape, robbery, burglary, shall be degree, punished by deemed murder of the first and shall be [Emphasis added.] death .... People v Gillis Opinion Court something clear that different was intended.” Sun language “If the of the statute is Valley, supra 237. must have intended the unambiguous, Legislature and the statute must meaning clearly expressed, be at enforced as written.” Id. 236.

To under what a second- describe circumstances murder, murder can to degree first-degree be elevated Legislature of, “in the perpetration used words to an enumerated MCL attempt perpetrate” felony. 750.316(l)(b). degree Home in the one invasion first is “Perpetrate” of these enumerated felonies. Id. is de- carry out; enact; fined “to Random as commit.” House (1997), To College Dictionary p “carry Webster’s 972. out” is defined “to effect or accomplish; complete.” as Id. at 201. Defendant argues felony “complete” that is the definitional when elements of crime have been Thus, invasion, satisfied. of a context home defendant he argues longer perpe- that was no “in the of” first-degree tration home invasion once he left Indeed, Albright’s home. defense counsel admitted un- der questioning argument oral that under his inter- statute, pretation of the if defendant had shot and killed police trying officer who was to him on the arrest home, street outside Albright’s murder still would not have been “in the of” the home inva- However, theory sion.5 defendant’s fails to account for felony the fact that commission of the not itself does render the plan complete. defendant’s criminal When act, a defendant to commit a it plans felonious is “a 5 asked, “[I]f Defense counsel was there had been a successful home invasion here and had the home and Mr. Gillis left was about to enter his police upon car and the had arrived the scene and he had shot one of the police, your view is that would not be ‘in the of the home clarifying hypothetical shooting invasion. Is that correct?” After that the home, curtilage responded, occurred outside the “I defense counsel think it can’t take there.”

116 474 Mich 105 Opinion Court legitimate that... also assumption [the defendant] from the of his crime.” planned escape scene Com (1940).6 171, 175; monwealth v 337 Pa 10 A2d Kelly, 431 The Colorado Supreme understandably Court has opined escape important is “as to the execution of [felony]” the elements of the crime Bizup as itself. (1962) 214, 218; 150 Colo P2d People, (holding the felony-murder applies rule to a murder com mitted after the met); elements of armed were Boss, 245, 251; see also 210 Cal P (1930) (holding that a murder committed an escape from the scene of an armed robbery murder because escape “[t]he robbers with the loot, by arms, means of necessarily important is as the execution of the plan gaining possession words, property”). other a felon has “carried out” or “completed” for felony-murder purposes until the felon has A escaped. murder committed during the attempt escape to is committed “in the perpetration felony, of” that because felonious transaction has yet been completed. Accordingly, “perpetration” 6 case, plan not at While issue this we also note that a defendant’s to “carry predicate felony may leading up out” the also include acts to the felony. Wayne commission of that Professor LaFave notes: killing “Where a causal connection between the and the under lying felony exists, generally killing may courts have held after, distinguished during, take sometime or from before felony yet qualify killing still as a ‘in the commission or attempted [Thew, felony.” supra 86, quoting commission of the Goddard, App 128, 135; (1984), v 352 367 NW2d quoting Scott, Law, 71, p (emphasis § & LaFave Criminal 555 supplied).] (1959) See, Nelson, e.g., 403, 411; State v 65 NM 338 P2d 301 (rejecting argument precedes the defendant’s that a murder that predicate felony felony killing cannot be murder “[i]f on the basis that gestae felony charged, is committed within the res of the whether the determinative”). felony, homicide occurred before or after the is not People v Gillis 117 the predi- the definitional elements of only includes not are re- includes those acts that felony, cate but also occur felony— such as those that quired complete to predicate felony while after the commission to To hold otherwise would attempting escape. felon is “ convict for a ‘quite impracticable make it ever any of murder committed ” State, 24, 496 NE2d 28 Eddy [enumerated felonies].’ State, 408, Ind 412 (Ind, 1986), Bissot v 53 quoting ordinary meaning, phrase In addition to its “in of” has its roots in the common law. felony English The crime of murder is derived from the “ law, common ‘all killing resulting which classified ” from the of murder.’ Fisher v [a as] commission State, 218, 248; (1999), Md A2d quoting 706 Moreland, (1952), of p The Law Homicide 42. The felony-murder adopted by and, rule was the colonies Revolution, following the American “became a statutory provisions [nearly] the common or law State, every American Rodriguez state.” SW2d (Tex 1997). states, App, including most Michigan, felony-murder premised upon statutes are felony-murder Pennsylvania.7 the 1794 statute of Penn- sylvania defined murder as perpe be committed in the

“[a]ll murder ... which shall any arson, attempt perpetrate rape, or tration [Id., Keedy, burglary....” citing History Pennsylva murder, creating degrees 97 U Pa L R 759 nia statute (1949).] 7 (murder 750.316(l)(b); See, e.g., § Cal Penal Code 189 “commit MCL of, attempt perpetrate” or to an enumerated ted in the 18-4003(d) murder); first-degree (“Any § is Idaho Code murder of, attempt perpetrate” an enumer in the or to committed murder.). first-degree ated 474 Mich 105

Michigan’s original first-degree statute, murder en- acted in used the “in the perpetration same of” language killing to describe committed course of an felony. Legislature enumerated Our has continued language, to use this changes, few over However, past years. neither the original stat- nor ute the current murder statute defines this term. common-law “Where a statute employs gen- eral offense, terms common law to describe an courts will construe the statutory by looking crime Riddle, common-law definitions.” 116, 125; Thus, NW2d in the absence legislative a clear change law, intent to the common we “apply the common it law as was understood when the crime murder was codified ....” Id. at 126. One of the first states to the scope address of “per- petration” purposes for of a felony-murder statute was Bissot, Indiana in Bissot. In the defendant shot and killed a town marshal who accosted him in the midst of burglary. argued that, defendant because the burglary elements of complete were before the shooting, the killing was not “in the perpetration of” that bur- glary. The Indiana Supreme Court opined: case, away In this take burglary elements of which it, prisoner might

surround and the plausibly contend that he had nothing homicide; committed more than excusable appears first, for it that the deceased shot at him and thus put jeopardy. his life in immediate higher It could not be most; manslaughter, than and in might such cases it be accidental, then, if held not perpetration” to be “in the burglary, charge would be excusable. If the murder committed perpetration” robbery, “in the aof forcibly feloniously, soon as the accused had fear, putting violence or person taken from the any value, another article of would be consum- mated; yet, immediately afterwards, if struggle victim, escape, release himself and he had killed his v Gillis homicide, robbery, the unconnected with degree of the higher manslaughter.... no than would be strictly, Although must construe criminal statutes we crimes, interpret closely and to the definition of adhere meaning, yet according fixed we to their technical words con- under the give to the section consideration cannot by opinion, In our appellant. for the contended struction gestae the res homicide is committed within the where of, felony charged, it is committed in the the felony, meaning the perpetrate, the within attempt or to statute; and, that the being convinced in this case the committed, that the homicide burglary charged was and burglary, we gestae the res of the committed within was perpetration of the that it committed in the must hold was meaning fair of the burglary, the true intent and within to that a construction is safe It seems to us such statute. citizen, only the and the one which the State and the carried into legislature practically can he intention think, view, according this that And we to effect. conclusion, beyond fairly in this case warrants evidence doubt, alleged was commit- that the homicide a reasonable charged in the burglary, perpetration” ted “in the [Bissot, supra 412-414.] indictment. (1879) Brown,

See, also, State v 7 Or 186, 208-209 killing committed that in the context of (noting from the scene of escape the defendants’ force or violence person takes with robbery, “[w]hen presence from his or goods person of another . . . will, robbery. [B]ut he has committed against his crime. It consti- necessarily complete the it does not the perpetrator far as to render robbery tutes so it; the act of itself to conviction for but liable liability beyond the time when may prolonged be fixed.”). is statutes, Professor on commenting felony-murder to that, in order for a murder opined

Francis Wharton felony, of a committed have been 474 Mich 105 Opinion the Court act, pursuance it have been done in of the unlawful must killing collateral to had an and not it. The must have felony, relation intimate and close connection with the it; separate, distinct, independent from and be constituting dangerous act when the itself life, killing naturally consequent must be felony.... It enough pres- is not it occurred or soon committed; ently attempted after the there legal relationship must have been such a the two between killing of, could be that it said that the occurred reason part of, felony, or as a or that it before occurred felony end, it, at an concurrent or at was and was with least it in part of an actual and material sense.... a gestae Where homicide is committed within res the felony, however, perpetration

of a it in is committed the of, attempt perpetrate, felony meaning or to a within the attempt of such statutes. That the the to commit was not far advanced does lessen the offense. And a burglar who a building, breaks into or who shoots a person who in an escape, discovers him effort to cannot punishment degree, upon avoid for murder in the first theory breaking in, the that the burglary consisted in killing. burglar may and consummated the was before A to engaged be said be in the commission of the crime of away burglary making while plunder, with the and while So, engaged securing robbery meaning it. within the of a rule that a homicide perpetration committed the robbery of degree is murder in the first is not neces- sarily concluded goods the removal of the from the presence owner; necessary the and it is not that the homicide should be at precise committed the time and robbery. burglary, the As in the case the may engaged robber be said to be in the commission of endeavoring the crime while he escape is to make away goods the taken. And a homicide committed immediately robbery, apparently purpose after a for the preventing detection, [Wharton, within the rule. (3d 126, ed), pp § Law of Homicide 184-186.] Thus, law, both the common as it was understood crime codified, when the of murder was clear People v Gillis 750.316(l)(b) lead to the same of MCL language the uninter- that occurs a murder conclusion— the commission of surrounding of events chain rupted “in the committed felony is predicate Accordingly, felony-murder purposes. felony for of” that encompasses “perpetration” that the term conclude we the predicate elements of definitional beyond acts the res acts committed within to include those felony, Brown, Bissot, supra; supra; felony. of that gestae Wharton, supra. “per- held that routinely have also

Michigan courts required elements beyond those extends petration” com- includes a murder felony and predicate prove been committed has predicate mitted after holds that a which gestae principle, The res attempted. chain of events during the unbroken murder committed “in the felony is committed surrounding predicate adopted by this Court felony, of” that 508; 52 NW2d Podolski, Podolski, defendant and two at supra armed bank accomplices committed they intercepted were escape, when attempting were of the bank.” vicinity in the “immediate police battle, an officer was killed ensuing gun During gun. expressly This Court from a fellow officer’s bullet Supreme reasoning Pennsylvania adopted 181, 190-191; v 357 Pa Moyer, Court in Commonwealth (1947), 53 A2d 736 which stated: public and sound equally with reason It is consistent attempt to commit a felon’s policy to hold when of robbery burglary in motion a chain events which or sets contemplation when have been within his were or should initiated, responsible for he be held the motion was should sequence any inevitable direct almost death which Every or act.... robber initial criminal results from the 474 Mich 105 burglar likely knows that a later act in the chain of events inaugurates he deadly will be the against use of force him on the of the selected victim. For whatever results legal follow from that natural retaliating force, use of the felon responsible. must be held Court, The quoting Wharton, then concluded that because the homicide8 occurred during gestae the res robbery, i.e., during the defendant’s attempt escape, he properly was convicted of first-degree felony Podolski, murder. supra at 517-518.9 People Aaron, Podolski 672, 727-728; was decided before (1980). Aaron, 299 NW2d 304 In held we that a homicide that occurred the commission of a only constitutes murder if the prosecutor specifically proves Thus, the existence of malice. the more precise Podolski, light Aaron, statement of is that a murder immediately robbery, “committed apparently purpose after a for the preventing detection, [felony Podolski, supra murder].” at 518. argues gestae Defendant principle longer the res is no applicable light of this Randolph, Court’s decision in 532; Mich Randolph, 648 NW2d 164 this Court addressed completed larceny the issue whether a could be “elevated” to unarmed robbery if the reaching defendant uses force before temporary safety. decision, In a divided this Court held that this approach” contrary “transactional language to the of the statute larceny and that in order for a robbery, to be elevated to unarmed taking force the felonious must contemporaneously. occur Accord ing defendant, Randolph applies by analogy to this case. The crime complete of home invasion was at the moment defendant entered the building, place and the murders took after defendant left the home and in a away. crimes, argues, several miles he were not contemporaneous and, therefore, felony-murder statute should apply. However, Randolph we believe that applicability present has no statute, context. The robbery murder unlike the unarmed statute in Randolph, “perpetration”— contains the word encompasses a word that range a broader of activities than the core elements of at issue in Randolph. Legislature responded We note that the to our decision in Randolph by amending robbery statute, 750.530, MCL to include flight circumstances where attempted flight force was used “in after larceny, attempt commission of the possession or in an to retain property.” 2004 PA 128. People 123 v Gillis Opinion of the Court The Court of Appeals, including majority both the dissenting case, opinions instant has consis- tently applied gestae principle felony-murder res for at cases least four decades. The most common of these cases define in the context “perpetration” of a murder committed an escape from the scene of an armed For robbery. example, Oliver, v 63 People 509; App (1975), Mich 234 NW2d 679 the defendant’s stopped by Michigan vehicle was State Police trooper half an hour after and away “a few miles” from the scene where the defendant had robbed a bank a teller. kidnapped During stop, traffic the defen- dant shot and killed the trooper. argued defendant that he longer was no “in the perpetration” of the robbery, armed because he being pursued by was not police at the time of the traffic stop and because of the time and distance robbery between the and the Thus, murder. according defendant, to the he had reached a place of “temporary safety” before the stop and, therefore, the robbery completed before murder. The Court of Appeals rejected argument, this holding: only trooper] away

[The was shot a few miles from the scene of the within a half an hour after its trooper] gun [The commission. had his drawn and was approaching discharged defendant’s car when Oliver his quickly sped away. revolver and then It is incredible that suggests the defendant even that he had reached a safety temporary point. at [Id. 523.] this See, also, Bowen, 12 Mich People App 440-441; (1968) (relying NW2d on the defini- dictionary “ ” tion of “perpetrate” carry through’ ‘[t]o to con- clude that a homicide committed while attempting to leave the bank was murder “it because cannot be said that the entire contemplated robbery, which would (citation escape, yet include was as carried through”) 474 Mich 105 omitted); Goree, 490, 495; App (1971) that a (holding NW2d 872 defendant who mur- police dered a officer who was to attempting arrest him for guilty armed is murder because original felony is of the “escape part getting away [and] with the contraband essential to execution of an armed robbery as the theft itself. The escape ceases to part original felony be continuous when escaping point felon reaches a of at temporary least safety or successfully [has been taken into police cus- (citations tody].”) omitted); Smith, People 55 Mich (1974) 184, 189; App 222 (stating NW2d 172 that “if a murder attempting is committed while to escape from prevent detection felony, felony murder, it is but if it only part is committed as a of a continuous with, transaction or is otherwise ‘immediately con- with, nected’ underlying felony”); People v God- dard, App 135; (1984), NW2d 367 (1988) rev’d on other grounds 429 Mich 505 (noting that Michigan’s inclusion of murders committed while attempting escape within the felony-murder rule jurisdictions”). “has been in other adopted The Court of Appeals has also applied gestae res principle murders committed “in the perpetration” of felonies other than armed robbery. People v Gimotty, 254; 216 Mich App (1996), NW2d the codefen- dant stole six a clothing dresses from he store and away the defendant sped defendant’s vehicle. The driver, vehicle was identified another who called the police and then followed vehicle until the police police joined arrived. Once the the pursuit, they identi- fied the gave defendant’s vehicle and During chase. the defendant pursuit, failed to at a red stop light and struck another A three-year-old vehicle. passenger the other vehicle died aas result of the collision. The defendant argued that the codefendant’s commission of Gillis and, he left the complete retail fraud was when store therefore, temporary that he had reached a Appeals when he into the car. The Court of safety got concluding that disagreed, sped parking

defendant out of the store’s area and onto Road, driver, Coolidge where he was observed another police phone who called the on his car and then followed police began pursuit. defendant until their Defendant high-speed police was in the midst of a chase when killed; temporary victim was he had not reached a safety. [Id. 258-259.]

See, also, Thew, supra (holding at 88 that a murder committed 20 minutes after the commission of first- degree criminal sexual conduct was of a continuous transaction and that “inculpatory inferences can be drawn that he killed the victim to prevent detection of the act of victim], sexual intercourse with and that [the the killing ‘immediately was connected’ with the act of intercourse”). sexual summarize, “perpetration”

To felony- as used in the murder statute contemplates something beyond the definitional predicate elements of the felony. Michigan courts recognized have this broader common-law mean- ing through adoption gestae” “res principle, which holds that a murder committed during the un- broken chain of surrounding predicate events is committed “in the perpetration felony.10 of” that 10 “perpetration” require The would define concurrence/dissent police pursuit following underlying either be in hot commission of the they up by or that take a chase initiated a civilian. Post at 144-146. However, any authority definition, and, fact, it fails to cite for its its rejected by See, Oliver, e.g., supra definition has been a number of courts. (rejecting at 523 as “incredible” the defendant’s assertion that he had temporary safety by driving unpursued a reached for half an committing robbery holding subsequent hour after a bank that his trooper perpetration murder of a State Police was committed “in the of” 474 Mich 105

126 Having “perpetration” encompasses concluded that beyond predicate the definitional elements of the acts jury next a felony, we must assess what factors should has, fact, consider to determine whether a murder arising taken the unbroken chain of events place the Ohio predicate felony. out As observed Court, those acts in the Supreme perpetra committed case, predicate felony “change every tion of the State, 52, and may be numerous.” Conrad v 75 Ohio St Goddard, 70; 135-136, 78 NE 957 supra that, the Court of in order to deter Appeals explained mine a particular whether murder occurred within the gestae of the predicate felony, res (1977) robbery); 494, 512; Squire, the bank State v 292 NC 234 SE2d 563 (holding robbery that the defendants had left the scene of who an armed pursuit “[o]bviously. they regarded had . . not without reached what place temporary safety” pulled their when vehicle was over police robbery); State, Lampkin officer 13 minutes after the v 808 P2d (Okla 1991) App, (holding Crim that a defendant who was observed disobeying stop sign vicinity robbery, being aof but who pursued robbery, robbery for the was still “in the of” that police high-speed collision); when he led on a chase that ended in a fatal (1972) People Salas, 812; 431; Rptr (holding 7 Cal 3d 103 Cal 500 P2d 7 defendants, who had left the scene of an armed unpursued stopped by police just leaving but were three minutes after scene, temporary safety had not reached a when one of the officer). defendants shot and killed the attempts explain nearly universal concurrence/dissent rejection “perpetration” by theorizing of its novel definition of that the meaning involving term has a different in the context of felonies asportation property. Specifically, suggests of stolen Post at 146 n 4. it engaged required that a defendant “must be in some act that is for the underlying full execution of the crime for the defendant to be considered felony.” deleted), (emphasis citing still in of that Id. Franks (Okla 1981). State, App, 636 P2d Crim Because defendant here transporting property, engaged was not stolen he “was not in some act required trooper for the full execution of a home when the invasion attempted stop However, every him.” to Id. in almost circumstance escape felony. plan Kelly, supra is of a defendant’s to commit a Thus, invasion, any felony, 175. the instant home as with other was not “fully escape. executed” until defendant effected his People v Gillis 127 [cjourts usually required killing and the have “closely time, underlying felony connected in be Adams, 926; place and State v 339 Mo causal relation.” required relationship SW2d 632 between the underlying felony homicide and the has been summarized being there connection as “whether sufficient causal felony depends and the homicide on between whether felony the defendant’s dictated his conduct which led to the Scott, Law, 71, p § & [Criminal 557.] homicide.” LaFave that, felony murder, qualify We hold to the homicide must be incident to the and associated with it as one necessary of its hazards. It is not the murder be felony. contemporaneous lapse A of time and considered, distance are factors be but are not determi- native. Wayne

Professor LaFave has also that a observed should look at jury construing four factors “in the scope (1) (2) ‘in the expression time; causation; (3) (4) place; continuity of action. 2 (2d LaFave, ed), § 14.5(f), p Substantive Criminal Law exclusive, agree 463.12While not we that these factors should in determining be considered whether there exists sufficient evidence to support felony-murder conviction.13 only factors, While Professor LaFave lists the first three he makes jury clear that a must also consider whether the murder was committed “ ” predicate felony.

within the same ‘chain of events’ as the Id. at Thus, “continuity 464-465. of action” is a distinct factor that should be by jury. See, Pierce, e.g., (Tenn, considered State v 23 SW3d 2000) (citing stating sufficiency LaFave and that “we must evaluate the [killing] closely of the evidence to determine if the . and the .. are action”). time, causation, place, continuity connected in While LaFave factors have not been considered as a whole Michigan courts, separately we note that the individual factors have been Thew, See, e.g., supra (discussing addressed a number of cases. time between the defendant’s commission of criminal sexual conduct and victim); Gimotty,supra (noting the murder of the the causal connection of retail between commission fraud and a murder committed while Oliver, attempting scene); supra the defendant from flee Mich 105 Opinion of the Court factor to be considered the jury pertains first the time between the commission of the predicate discussing factor, and the murder. In the “time” that,

Professor LaFave states beyond question even if it is clear that the crime was completed felony-murder killing, might before the the rule apply. still The most common case is that in the which killing flight. great many occurs the defendant’s A language typically modern statutes contain the — phrase flight making “or in immediate this therefrom” — absolutely language clear. But even statutes without such consistently have rather been construed to extend to im- flight mediate [Id. 464.] situations. Oliver, example,

For the Court of con- Appeals cluded that the defendant was flight still immediate from an robbery armed when he murdered a State Police trooper 30 minutes after the commission of an See, armed robbery. also, (affirming felony- Thew a murder conviction for a murder committed 20 minutes after the predicate felony). time, At the same Supreme Tennessee Court held that a that killing took place almost a month after the commission of the predicate felony was too remote in time support a conviction of felony Pierce, murder. State v 23 SW3d 2000). (Tenn, Pierce, girl- the defendant’s friend stole her parents’ vehicle Florida. The vehicle reported stolen and a nationwide bulletin was issued for the Twenty later, vehicle. days while driving vehicle, the defendant by Virginia was identified a officer, police gave who chase. When the defendant Tennessee, crossed into Virginia police officer noti- fied officers, Tennessee law enforcement who took over the pursuit. During pursuit, the defendant struck (holding driving unpursued highway defendant who was at normal speeds linking had not broken the chain of events the commission of a trooper). and the murder of a State Police v Gillis car, court killing deputy sheriff. The Tennessee police rejected prosecutor’s argument killing theft, gestae occurred within the res of the automobile concluding killing closely that “the in this case was connected taking in time to the of the vehicle.” Id. aby jury pertains

The second factor to be considered physical to the distance between scene of felony and the scene of the murder. For predicate 494, 512; in example, Squire, State 292 NC 234 SE2d (1977), the for a stopped defendants’ vehicle was traffic a Police violation North Carolina State trooper away 13 minutes after and ten miles from the scene where the defendants had robbed a bank. A codefendant, the apparent under mistaken belief that trooper investigating the the shot and robbery, trooper. Supreme killed the The North Carolina Court upheld felony-murder convictions, the defendants’ holding that,

[o]bviously, they the defendants had not reached what regarded place safety temporary pursuing as a of from shooting trooper] Thus, [the officers when the of occurred. progress shooting the was still in and the occurred degree of it and [Id. was first murder. 512-513.] time,

At the same the Virginia Supreme Court held that a killing place that took 280 miles from the of scene predicate the felony support was too remote to a con- Commonwealth, felony viction of murder. Doane v 500, 502-503; Doane, Va 237 SE2d 797 defendant stole a vehicle from a car dealership. day, next disobeyed stop sign, striking the defendant another killing vehicle driver. The accident away predicate occurred 280 miles from the scene of the felony. that, The prosecutor argued because the defen- 474 Mich 105 in vehicle at the possession

dant was still stolen time of the there was a sufficient nexus between killing, felony- and the to killing predicate support The Virginia rejected murder conviction. court this holding showing that “there is neither a argument, relationship showing causal nor a of nexus between the larceny killing ... and the accidental victim 280 [the larceny.]” miles from the scene of the Id. at 502. However, “more than a mere coincidence time for a necessary” qualify murder to as a LaFave, murder. at 465. The third supra factor be jury pertains considered to whether there is “some causal connection” between murder and the predicate felony. Id. For the defen- example, Gimotty, dant collided with the attempting victim’s vehicle while capture by police avoid after fleeing from the larceny. Likewise, Podolski, scene of a the defendant in a engaged gun police battle with the in order to avoid State, after capture robbing However, a bank. Allen (Fla 690 So 2d App, 1997), Dist Ct Florida District Court of held Appeals vehicle accident that occurred outside the context of a pursuit causally was not connected to the predicate felony. In Allen, and, the defendant a stole vehicle while driving evening, car, the vehicle that struck another killing the At accident, driver. the time of the the defendant was being not pursued by police. The Florida court that, noted while the killing was close in time and place to the commission of the predicate felony, the prosecu- tor failed to show “that the death causally was related to the grand Thus, theft.” Id. the Florida court held killing because the did not occur while the defen- dant trying escape, was “the death did a not occur as result of the perpetration grand theft.” Id. at 1335. People Gillis jury

The fourth factor that should consider pertains continuity to whether there was of action predicate felony between the and the murder. Professor “perpetration” LaFave notes that consistently [has] been construed to extend to immediate flight assessing situations. In flight sufficiently what immediate, require courts that there been have “no break events,” in the chain of important as to which a most consideration fleeing is whether the felon has reached a “place [LaFave, temporary safety.” supra at 464-465.] supra Appeals rejected Oliver, In the Court of the defendant’s claim that he had reached a “temporary safety” by driving unpursued at normal highway speeds, holding interruption that there was no robbery in the chain of events between the and the trooper stopped murder of a State Police who had defendant’s vehicle for a traffic infraction. The Okla- Appeals homa Court of Criminal reached a similar addressing bearing strong conclusion in a situation Lampkin resemblance to the State, instant case (Okla App, 1991). Lampkin, P2d Crim robbery defendant had left the scene of an armed when police disobey stop sign. officer observed him spotted vicinity defendant was of the scene of the robbery,just minutes after he had committed the crime. attempted stop, When officer a traffic the defendant high-speed only accelerated and a chase ensued. It was began after the chase that the officer learned that the suspect robbery. defendant was a in a The chase ended killing when the defendant struck another vehicle, passengers. rejected The Oklahoma court the defen- robbery “complete” dant’s assertion that the at the noting yet accident, time of the that he “had not completed started; when the chase he was yet haven, in a safe but rather was still in the 474 Mich 105

132 Opinion the Court Id. at 696. money.” stolen leaving with the process of one accident was Therefore, the because robbery, from the stemming continuing transaction mur- convicted of properly the defendant der. Id.14 conviction for contrast, there can be no

In chain act has broken the intervening an murder where killing and the crime committed the of events “between 72; Diebold, 152 Wash . . .” State attempted. or Diebold, defendant and his P In 394 drove it to a café five miles friend a vehicle and stole meal, that, he testified away. The defendant to the way On the back decided to return the vehicle. defendant lost control of larceny, scene Washing a vehicle, striking killing pedestrian. that, killing determined because ton Court Supreme café, at the stopped the defendant had took after his that, appellant held at the time drove cannot be “[i]t carelessness, of his the unfortunate victims against car commit, attempting or with committing, he was See, of, Id. at felony.” the scene a 73-74. drawing from (Fla State, 1149, 1151-1152 Dist also, 737 So 2d Lester 1999) (The defendant, driving in a vehicle he Ct App, before, car and drove night police saw a had stolen eventually disobeying signs three away stop unpursued, killing passen- another vehicle and hitting before 1981). (Okla State, App, P2d 361 Crim But see Franks v Franks, police stopped officer for a traffic the defendant was robbery. away of an armed The officer ten blocks from the scene violation stop. robbery at the time of the The defendant was unaware of the being managed arrested. While to disarm the officer and leave without disobeyed sign, striking driving unpursued, stop he the defendant was killing Oklahoma Court of Criminal another the driver. The vehicle robbery, primarily Appeals held that the accident was unrelated to grocery pursued as he left the store because the defendant “was police being at the time of the he chased car nor was 365. accident.” Id. at v Gillis gers. The Florida Appeals District Court of held that the theft of the vehicle had “completed” been the night and, therefore, before the accident that the defendant’s “reckless driving was too attenuated from the grand theft previous of the car the evening support felony- to conviction.”); Ford, murder 41; 65 Cal 2d (1966) (The P2d 132 defendant his kidnapped estranged wife and burglarized the home she living was in. After the “[driving] countryside about aim pur- without or pose,” id. at for approximately hours, four he shot and killed a police officer who attempted to disarm him. The California Supreme Court held that the defendant had “won way places his to of temporary safety” during drive, the four-hour because “there was here no direct evidence that defendant endeavoring the escape 56-57.). he when shot the . . . [officer] .” Id. at

In light of this analysis, we conclude that the trial court here did not err in denying defendant’s motion for a directed verdict of acquittal. The question relevant in the whether, instant case is viewing the in evidence light most favorable to the prosecutor, a reasonable juror could beyond conclude a reasonable doubt defendant was still the midst of escape his from the home invasion when he struck and killed the Acker- mans. After law, its review of the case and in particular Gimotty, the trial correctly court jury instructed the follows: immediately felony

Actions connected with the of home invasion in the degree, including first attempts escape or prevent detection[,] part are a continuous of the commis- felony sion or of home invasion degree.... [E]seape first part ceases to be a continuous degree of home invasion in the if first and when point the Defendant temporary safety. reaches a of at least Mich 105 determi- jury’s support at trial facts elicited “a Ackermans was the murder nation of the commission continuous Here, degree.” in the invasion first of home confronted defendant homeowner, Albright, Defen- and the sunroom. garage doorway between ob- Albright fled. abruptly the door dant closed flee from and his vehicle defendant served both juror A could reasonable of the home invasion. scene appre- his intent to avoid flight from defendant’s infer Additionally, flight he was still police. hension Trooper spotted Kramer Albright home when from the flight. abrupt ten minutes after his him approximately conclude facts, juror a reasonable could these Under nor reached a escaped had neither that defendant attempted Kramer safety Trooper when temporary Further, juror a could reasonable stop.15 the traffic away Trooper from sped that defendant had conclude the in detection of prevent Kramer order to specifically Therefore, juror a could also con- such home invasion. collided the Acker- that when defendant clude act from the that flight police, his mans’ vehicle of the home invasion. Accord- gestae of the res was in defendant’s denying did not err ingly, the trial court acquittal. motion for a directed verdict sup- factors lends further of the LaFave Application and First, addressing the time jury’s to the verdict. port subjective holding jury may consider defendant’s are not that the We safety point temporary understanding he had reached a of whether jury may Instead, merely holding all the that the consider are we including surrounding flight, in objective reasonable facts defendant’s question may The whether from this evidence. ferences that be drawn safety question point temporary for is a of fact has reached a defendant reasonably jury. Here, juror defendant’s actions could infer from the Albright spotted home him at the scene of the he had that was aware jury properly considered this inference as evidence The invasion. temporary safety. truly defendant had not reached People v Gillis

Opinion Court factors, place a reasonable could conclude that juror predicate felony the and the in the instant murders sufficiently place case were connected in time and support felony Approxi- the convictions of murder. invasion, mately ten minutes after the home defen- was spotted by Trooper dant’s vehicle Kramer. Defen- dant approximately struck and killed the Ackermans after leaving minutes scene of the home invasion. The time in completely frame this case is Pierce, 20-day unlike that in in which there gap was predicate Indeed, between killing. gap the 18-minute significantly the instant case is less time than the 30-minute interval between the bank and the stop Likewise, traffic Oliver. the distance between the home invasion murder of the does not Ackermans resemble the 280-mile between gap the theft of a vehicle killing Rather, case, Doane. in the instant defen- dant spotted by Trooper just was Kramer over ten miles Albright’s from home. Ackermans were killed within a few miles of the where defendant was first observed Albright. Accordingly, we con- clude that the scene of the murders sufficiently close in time both and distance from the scene of the home to support invasion convictions of mur- der.

Likewise, the “causal connection” and “continuity of action” also support jury’s factors conclusion that “in defendant was of” home inva- sion when murdered he the Ackermans. The common running thread through the cases a lack of finding causal not being connection is that the defendant was pursued by police when the defendant committed Doane, Allen, State, the murder. supra; supra; Franks (Okla Diebold, 636 P2d App, 1981); Crim Lester, However, case, supra; supra. the instant 474 MICH Opinion op the Court by interrupted defendant was record establishes Albright Defen- home invasion. of the in the midst Albright abruptly testified flee. to reaction was dant’s description relayed and a of defendant that he both unique description defen- characteristics immediately police after defen- to the dant’s vehicle Approximately after ten minutes fled the scene. dant spotted invasion, defendant’s vehicle was the home by Trooper Appeals concluded Kramer. The Court driving “in a normal defendant was that because by Trooper spotted the time he was manner” at “temporary point of Kramer, reached a he had stopped any safety.” not at However, defendant had Albright’s point and the where home between (the Trooper Cf. Diebold Kramer. he was observed stopped the theft had at a café between defendant killing pedestrian). Further, defendant’s person those of a inconsistent with actions were not attempting police, escape cf. Ford to detection (the driving after for four hours defendant’s aimless predicate felony demonstrated commission escape attempting at the time he shot he was speed- officer), police fact, act of and, defendant’s attempted away Trooper ing Kramer from stop suggests and a both a causal connection traffic continuity the home invasion of action between Appeals consider failed to the murders. Court recognized identified that he had been that defendant just perpetrator minutes of a home invasion testimony to infer from It is reasonable before. comply Kramer’s failed to trial that defendant away sped precisely stop and instead direction to knowledge. assumed, defendant Had because of this being stopped example, for a broken that he was for headlight highly improper turn, it an left seems or for stop unlikely and instead he have failed that would v Gillis 137 engage extremely driving reckless fol- prosecu- lowed. The evidence is consistent with theory tor’s that when defendant Kramer led on a driving wrong 1-69, chase while 1-94 and way on he did so in order to escape apprehension for the home invasion. Gimotty, As defendant’s act of colliding with the and killing Ackermans’ vehicle an couple part was of of unbroken chain events surrounding the home invasion. Because a reasonable could juror beyond conclude a reasonable doubt that the Ackermans’ murders occurred as of the res gestae invasion, of the home the trial court properly denied motion a defendant’s to direct verdict of acquittal.16

B. FAILURE TO INSTRUCT Manslaughter a necessarily is included lesser offense Mendoza, 527, of murder. People 544; v Mich 468 664 NW2d 685 a is charged “[W]hen defendant murder, an instruction for voluntary involuntary manslaughter given must be if supported by rational view of the evidence.” Id. case, at 541. In the instant requested defendant an on instruction involuntary 16 The asserts that we have created “a rule that concurrence/dissent question there is no rule and the whether defendant has reached a place temporary safety always goes jury.” to the Post at 145. However, simply “perpetration” we hold that an constitutes element of first-degree any any crime, murder. other As with element of other may court trial direct a verdict in favor of the defendant when the prosecutor justify fails to "introduce sufficient which evidence could reasonably concluding guilty beyond trier of fact in is defendant 354, People Hampton, 368; a reasonable doubt. . . .” Mich 407 285 (1979). But, juror 284 NW2d where a reasonable could find that a underlying felony defendant “in the of” the when the murder, here, question defendant committed the as is the case temporary safety whether defendant has reached a does Smith, question supra constitute for the finder of fact. at 190. MICH105 Opinion the Court 1, Mich Holtschlag, In People

manslaughter.17 (2004), noted that we 21-22; 684 NW2d and murder manslaughter distinguishing element “the sole “[i]nvoluntary man- malice,” and that Mendoza at manslaughter concept including all slaughter is a catch-all voluntary: ‘Every kill- unintentional not characterized involuntary manslaughter if it is being is ing a human voluntary manslaughter the nor within nor neither murder ” [People excuse.’ recognized justification or scope of some (1995).] 594-595; Datema, 533 NW2d omitted.) (Citation voluntary man- is not If a homicide is, generally, either justified, it slaughter excused or or involuntary manslaughter. If the homicide murder or malice, committed is murder. If it was it committed with negligence or an intent to gross rea of a lesser mens with malice, murder, only not but involun- injure, it is and tary manslaughter. either an an act done “with is defined as

“Malice” harm, or bodily kill, great intent to commit intent to an great death or very high a risk of intent to create an bodily great that death or knowledge bodily harm with Mendoza, at 540. supra result.” probable harm was the man- involuntary an entitled to Thus, defendant was if rational view of only slaughter instruction finding supported would have evidence “gross an act of deaths were caused Ackermans’ malice . . . .” injure, and not or an intent negligence at 21-22. Holtschlag, supra that it was majority concluded Appeals The Court of from trier of fact to determine for a rational “possible mindset only possessed that defendant the evidence Gillis, at 5. We slip op supra, gross negligence.” Appeals defendant’s other claims did not reach The Court of request for the trial court denied defendant’s error— that instructional death) eluding (causing first-degree fleeing instructions on voluntary manslaughter. People v Gillis

Opinion Court juror, that no rational under these disagree and hold facts, were could conclude defendant’s actions than that “create a risk of anything very high other acts knowledge harm that death great bodily death or great bodily probable harm was result.” Men- doza, Defendant, supra attempt get his 540. Kramer, entered away Trooper knowingly from 1-94 going wrong way. ramp used defendant was marked Enter” and clearly “Wrong Way” with “Do Not Further, signs. assisting another officer the chase began driving proper crossed over the median and way get Finally, on 1-94 order to in front of defendant. Trooper Kramer that he and testified defendant went on all past several vehicles both 1-94 of which 1-69, being way. were driven the correct This was not a driver, circumstance an through gross where act of negligence, accidentally wrong drove the direction on Rather, the highway. intentionally this defendant drove wrong way freeway on the and continued to do so approximately for ten colliding minutes before with the Trooper Ackermans’ vehicle. Kramer also testified that “quite he was certain oncoming [that traffic] would not have fact, [defendant’s] seen small white car ....” this fear of a head-on potential collision was Kramer’s primary reason for continuing pursuit. his In other words, by driving wrong way the on the interstate on a hazy day, “very defendant created a high risk” of a head-on a certainly collision— collision that would great bodily Further, cause “death or harm.” it would be unreasonable to conclude that defendant did not know that a serious or fatal accident was the probable result driving of on the wrong way the interstate. No rational support finding gross view of the evidence could of negligence injure or an intent to without malice.

Because the evidence does not support conclusion wrong way by that defendant drove the accident or Mich 105 manner, merely grossly negligent in a otherwise acted conclude that a rational view of the evidence does we support involuntary manslaughter an instruction. Therefore, by failing give the trial court did not err to involuntary manslaughter an instruction.18

IV CONCLUSION “perpetration” encompasses conclude that acts We a defendant that occur outside the definitional elements that occur predicate felony includes acts chain of surrounding unbroken events Thus, felony. engaged a felon “is he endeavoring escape the crime ‘while is ... [a]nd immediately [felony], ap- committed after a [murder] detection,’ parently purpose preventing for the is Smith, Podolski, 189, murder.” supra quoting omitted). In determining at 518 supra (emphasis “in whether the defendant is still of” predicate felony when the defendant commits a (1) murder, jury factors to be evaluated include: length of time of the predicate between commission (2) murder; and the the distance between the involuntary manslaughter if Even defendant was entitled an instruction, the trial court’s failure to so instruct constituted harmless analysis applicable error. Harmless error to instructional errors involving necessarily People Cornell, included lesser offenses. (2002). 335, 361; 646 NW2d 127 Such errors are deemed non- preserved, “[A] constitutional errors. Id. at 363. non-constitutional error ground is not a for reversal unless ‘after an examination of the entire cause, affirmatively appear’ probable it shall that it is more than not that People Lukity, the error was outcome determinative.” Mich 495-496; Here, charged 596 NW2d 607 defendant was with both second-degree jury first-degree first- murder. convicted of murder, greater jury’s acquit offense. Given the refusal to either offense, convict of the lesser defendant has failed to demonstrate “miscarriage justice” occurred the trial court failed to on when instruct involuntary manslaughter. People v Gillis Opinion Court scene of the and the scene of the predicate (3) murder; whether there is a causal connection be- (4) predicate felony; tween the murder and the continuity there is of action between the whether LaFave, 463, and the murder. at predicate felony supra case, Applying 464-465. these factors to instant we that the trial court did not err in denying conclude acquittal defendant’s motion to direct a verdict of because, the evidence in a viewing light most favorable prosecutor, juror to the reasonable could conclude beyond a reasonable doubt that the murders were gestae within the res of the home predicate invasion. We further conclude that the trial court did err in refusing defendant’s an request involuntary for man- slaughter instruction. we Accordingly, judg- reverse the ment of the Court of and remand Appeals this case to the Court of for Appeals consideration of defendant’s other issues.19 parties We also directed the to address the issue whether the Court Appeals separation order of remand for a trial new violated the

powers 1963, 3, power § doctrine. Const art 2. The to determine whether charge charge brought a defendant and what should be is an executive power, Williams, exclusively prosecutor. People which vests App 252-253; (2001),citing Mich 625 NW2d 132 GeneseeProsecutor (1972). Judge, 672, 683; v GeneseeCircuit 386 Mich 194 NW2d 693 judicial power discharge prosecutor’s exercise of over the duties “is prosecutor limited those activities or decisions that are unconstitutional, illegal, Morrow, App or ultra vires.” 158, 161; 542 NW2d 324 Appeals court, When Court of remanded this case to the trial it “[djefendant properly charged noted that should have been with Gillis, fleeing eluding second-degree supra, slip op murder.” usurpation 4. We do not believe that this statement constitutes a prosecutor’s Rather, powers. Appeals simply advising the Court of holding the trial court as to the new trial in accordance with its charged first-degree felony defendant could not be murder. Had Appeals purported judgment the Court of to substitute its for prosecutor by determining charges what criminal should be 474 MICH 105 Opinion C. J. Taylor,. Young, JJ., concurred with Weaver, Corrigan, J. Markman, (concurring dissenting C.J.

TAYLOR, I that a defen- majority opinion concur with part). “in the of” an enumer- longer perpetration dant is no he or she has reached a ated when I safety. agree majority also with the that temporary acts the defini- “perpetration” may encompass beyond predicate felony tional elements of the to include acts dissent, I gestae felony. committed within res of that however, majority’s application from the of this test to the facts of this case.

i straightforward. facts are Defendant was discov- by ered the homeowner after he right broke into the garage. Defendant fled the scene. The homeowner called 911 and in an attempt was unsuccessful to follow defendant, away who in his car. Ten to got fifteen later, minutes at a distance of at least ten from the miles invasion, scene of the home police spotted car matching the one the homeowner described and at- to tempted stop defendant. He did not but fled and stop, car, thereafter soon crashed into Ackermans’ result- in their ing deaths.

Defendant charged was with two counts of murder, first-degree home invasion as the enumer- felony. right ated Defendant waived to a preliminary his trial examination. Before defendant moved to quash felony-murder charges, that he arguing longer was no “in of” the home invasion when the defendant, brought against agree prosecutor we with the there separation powers implications. have been would People v Gillis Opinion Taylor, C.J. evidentiary hearing killed. An Ackermans were trooper held in which the homeowner and the who state attempted stop defendant testified. The trial court quash, finding denied the motion to “this was uninterrupted by temporary safety continuous action that was taken this Defendant.”1 prosecutor trial, case, At after rested his de- fense counsel moved for a directed verdict on the felony-murder charges, asserting that there was no nexus between the home invasion and the Acker- mans’ The trial court motion, deaths. denied the stating beyond that one could determine a reasonable defendant, doubt that attempt while in the of or perpetrate invasion, the home murdered the Ackermans. previously jury subsequently noted,

As convicted appeal, defendant of two counts of murder. On Appeals felony-murder the Court of reversed the con- split in a victions decision defendant because had al- ready escaped from the scene of the home invasion and the Ackermans’ deaths were not a of the continu- immediately ous transaction of or connected to the home invasion. 1 evidentiary hearing The trial court’s decision after the was akin to a decision whether there was sufficient evidence to bind a defendant over preliminary Appeals for trial after a examination. The Court of concluded quash granted. but, agree, given motion should have been I trial, appellate properly that defendant went to is review limited to the Yost, People trial court’s denial of his motion for directed verdict. v 468 2; (2003), Hall, citing People 124 n

Mich 659 604 NW2d v 435 Mich (1990) (an 599, 601-603; evidentiary deficiency 460 NW2d 520 at the preliminary ground vacating reversing examination is not a for subsequent conviction where the defendant received a fair trial and was error). prejudiced by Wilson, not otherwise See also 469 Mich light principle, Appeals 1018 of this the Court of erred in analyzing quash granted. whether the motion to should have been 474 MICH by Opinion Taylor, C.J.

ii 6.419(A)pro- trial, At the time of defendant’s MCR vided: prosecution’s case prosecutor

After the has rested the presents proofs, the in chief and before the defendant may, court on its initiative or on the defendant’s own must, any charged acquittal on motion direct a verdict support offense as to which the evidence is insufficient conviction. ruling on a motion for a directed verdict of

When acquittal, whether, the trial court must determine considering light in a most favorable to evidence prosecution, a rational trier fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People Hampton, (1979) (opinion 354, 368; NW2d C.J.). any is not whether there was test COLEMAN, support conviction, evidence to but whether there justify a was sufficient evidence to rational trier of beyond finding guilt fact in a reasonable doubt. Id. part: pertinent MCL 750.316 states in (1) any person following guilty A commits who degree punished imprison- of first murder and shall be ment for life:

(b) of, in perpetration attempt Murder committed or perpetrate,... home invasion first or second degree.... perpetration a defendant “in the of”

Whether is still felony an enumerated when a homicide occurs is either question depending question a of law or a of fact on the People v Gillis Opinion J.C. Taylor, presented jury.2 strength if Thus, of the evidence fact-finder couldnot the evidenceis such that a rational perpetration “in the defendant was still conclude felony,the court should not submit of” an enumerated jury. The to decide the issue as the issue to the court is I deal with such a situation a matter of law. believe we here. place implicates in

This what it means to be a of case temporary safety and a vehicle for should be establish- ing in usable for cases which a defendant takes rules majority opinion flight in in a car. I believe the its has really perhaps rule, no has created a rule established question that there rule and the defen- is no whether temporary safety always a dant has reached goes of jury. to the This uncabined rule is unwise because any meaning point temporary it obliterates that the of safety jurisprudence may had. At have least situa- underlying felony tions which enumerated does property, asportation not involvethe of stolen I believe the rule a defendant who should be as follows.Whether being point temporary safety chased has reached longer engaged and, thus, “in is no felony” gauged by objectively an enumerated assessing should be investigation the state of the at the time the attempted. investigation If arrest is at that felony purpose As stated Anno: What constitutes termination of for rule, felony-murder 58 ALR3d 857: particular may [T]he facts of a case be such that there can be no transaction, killing are so doubt whether one question jury that the not be submitted to the but should be should decided the court as matter of law. (Fla State, See, 1997), e.g., App, Allen v 690 So 2d 1332 Doane v Commonwealth, State, 500; (1977), 218 Va 237 SE2d Franks (Okla App, 1981), 636 P2d 361 Crim all cases that determined as matter longer of law that a defendant was no “in the of” a when a homicide occurred. Mich 105

146 474 by Opinion Taylor, C.J. hotly pursuing the of the apprehenders was not result crime, the rather was defendant from scene but pursuit begun having gath- the result of a fresh after crime, underlying ered information about the then the point defendant can be said to have reached a of safety. Having temporary reached a temporary the defendant no safety, longer perpetration is 3 underlying the crime. Here, question spot- there is no that defendant was by trooper attempt ted the after the victim’s to follow defendant had ended. The unlike in trooper, the officers many of the cited the had by majority,4 cases not taken 3 objection majority I have no to the four factors the cites from determining Professor LaFave for whether a defendant is still “in the time, perpetration felony, i.e., place, causation, continuity of” a action, simply shows, application but contend that their as a matter law, longer perpetration that defendant was no “in the of” the home stop trooper. invasion when defendant decided to flee rather than for the 4 many by majority I note that of the cases cited in which a defendant was determined to “in still have been of” a at, in involved situations which the homicide occurred or imme diately near, pursuit. See, e.g., the scene of the crime or aas result of a hot People Podolski, 508, 514; (1952), v Mich 332 52 NW2d 201 which escape police indicates the bank robbers were about to when the See, also, People Gimotty, App 254, 258-259; arrived. 216 Mich (1996), sped parking NW2d 39 which the defendant from the store’s lot by onto a road where he was observed another driver who called the police phone police on his car and followedthe defendant until the took pursuit. Oliver, People App 509; over the To the extent that (1975), contrary, But, NW2d to the I would not followit. I note that Oliver, majority, underlying inas most of the cases cited making away was a where defendant was with stolen goods. circumstances, i.e., Under such one of the elements of the underlying asportation property, crime involves of stolen a defendant may underlying be considered to still be “in of” the crime longer period defendant, here, afor than when a commits a crime that But, is over no later than when the defendant leaves scene. we are not required question to decide that here. v Gillis Opinion Taylor, C.J. not, so It was the homeowner had started. up the chase from handed off relay in which the baton was speak, here Rather, the defendant citizen to the constable. him trying and no one to arrest gotten away cleanly, had was, than he had to be idea where he other any had most, limitations of time only by, at an area bounded only could trooper of his vehicle. The speed and the identifying radio-conveyed the of stop make a on basis did, more than ten information, and that is what he after, from, than ten minutes the away miles and more view, person In my home invasion. reasonable aborted were, uncontrovert- only police conclude that the could in hot ibly point attempted stop, at the of the rather, in the of they investigation phase were pursuit; case, try information to to putting together bits of motorists, or which, any, many determine if nonmotorists, they observing might were be perhaps had committed a home invasion. Said person who 494; (1977), majority Squire, The cites State v 292 NC SE2d (Okla State, 694, 1991), Lampkin App, Crim 808 P2d Salas, 812; 431; (1972), support Rptr 7 Cal 3d 103 Cal 500 P2d 7 in may proposition that one still be in the of a when cases, underlying pursuit. there is no hot But in each of these crime away. money being asported Lampkin, where was In leaving process court stated that the defendant was still in the of with the money driving speed police when he was observed at a fast stolen sign. contrast, disobeying stop In the defendant here was not in driving possession any property, of stolen and he was in a normal manner Franks, police spotted supra him. I note in at when the also killing, engaged said that at the time of a the accused must he court underlying required for some act that is execution the crime for full of felony.Again, of that the defendant to be considered still engaged required full the defendant here was not in some act for the trooper attempted stop him. execution of a home invasion when the specifically court stated that the homicide “was committed Salas place safety flight before defendant had reached a while he ‘was hot Salas, contrast, supra property defen- the stolen at 823. flight, transporting not in hot and he was not dant in the case at bar was property. stolen 474 Mich 105 Opinion Taylor, C.J. another way, pursuit when hot had died ten minutes ago away, and ten miles the police were in the investi- gatory “gumshoeing” phase produce could re- now, tomorrow, sults or perhaps never. That makes all the difference and must mean that the crime of home over, i.e., invasion was had been completed, when the defendant was driving with the flow of traffic. He had gotten away-at least at that time. The criminal in such situation, if he or going she is ever a point be at temporary safety, is in one when he or she has lost the slipped chasers has into traffic unobtrusively. Said conversely, if apprehension investigatory stage does not establish that the defendant was at a temporary safety, when would the defendant be? The majority has no answer that satisfies me.

Whether a defendant has reached a tempo- rary safety should be based on what state of the investigation was at the time immediately before the eventual attempt apprehension. The question that must be asked is: the pursuers Were single-mindedly, without need of additional information, aware of whom they were after and was, where he they were unclear on these If things? they were and, here, unclear as putting together available information to reestablish pursuit, the defendant would be in a position of temporary safety.

Here, defendant, this among lost on cars highway, was, law, as a matter of in place of temporary safety. The police had lost the scent and were using techniques other to find Thus, him. he longer was no “in the perpetration Indeed, of” the crime. when defen- dant refused stop, he on moved to the new crime of fleeing eluding, and and it was “in the perpetration of” crime, that invasion, not the home that the Ackermans were killed. v Gillis Opinion by Cavanagh, J. trial circumstances, I that believe

Under such verdict on granted a directed should have court the evidence was insuf- felony-murder charges because of” the “in the ficient that defendant was Ac- Ackermans were killed. when the home invasion reversed. jury’s verdict should be cordingly, hi conclusion, Appeals properly the Court of vacated defen- convictions because felony-murder defendant’s first-degree “in the of” longer dant was no killed. I the Ackermans were home invasion when a matter of law the home invasion ended as believe safety, point temporary defendant reached a when in traffic. It was i.e., driving unpursued unnoticed and tempo- had reached this only after defendant defendant the state rary safety spotted stop trooper attempted and fled when the trooper is not an fleeing eluding defendant. Given statute, felony felony-murder under our enumerated charges murder should have been dismissed for directed verdict. of defendant’s motion result convicted of Thus, improperly defendant was murder.5

Cavanagh Taylor, C.J. Kelly, JJ., concurred with dissenting {concurring J. CAVANAGH, written Chief Justice opinion I concur with part). only my to reiterate belief separately TAYLOR. I write a preliminary the evidence produced that when binding a support insufficient to legally examination is charged Appeals agree that defendant could be I with the Court of deaths, second-degree regarding the Ackermans’ but murder felony murder. Opinion 474 Mich Cavanagh, J. trial, defendant over for the defendant is entitled to Hall, automatic reversal. See (1990) 616-629; 460 (CAVANAGH, J., NW2d 520 dissent- ing). The inquiry dependent is not on whether defendant nonetheless a fair received trial. J., concurred J.

KELLY, CAVANAGH,

Case Details

Case Name: People v. Gillis

Court Name: Michigan Supreme Court

Date Published: Apr 5, 2006

Citation: 712 N.W.2d 419

Docket Number: Docket 127194

Court Abbreviation: Mich.