*1 224 PEOPLE v GRAVES July May 8, 1997, Lansing. Decided Docket No. 190061. Submitted appeal sought. at 9:05 A.M. Leave to Graves, Jr., by jury in Ronald K. was convicted a the Oakland Circuit Templin, J., voluntary posses- Court, manslaughter Robert L. and during felony. a firearm of a The defendant sion of commission appealed, right trial, claiming a fair that he was denied the and requiring reversal, court committed error when it submit- trial jury charge first-degree, premeditated ted to the murder that supported by was not the evidence. Appeals The Court of held: There was insufficient evidence to establish and first-degree People Vail, deliberation as elements of may prejudice presumed Mich 460 which held that actual be compromise jury possibility the mere of a verdict when a con- unsupported by proofs, charge siders that is constrains the Appeals Court of to reverse the defendant’s convictions and Appeals remand the case for a new trial. Were the Court of not so constrained, reject position it would the unrealistic that actual prejudice may presumed when the is asked to consider a supported by murder that is not the evidence charge manslaughter supported by evidence, and a that is properly instructed, and for which and the convicts manslaughter. Furthermore, the defendant of trial court’s error was harmless inasmuch as the defendant failed to establish rea- probability sonable that the error affected the outcome of the trial. Reversed and remanded for a new trial. J., concurring only, in the result stated that Vail was Fitzgerald,
correctly decided. Kelley, Attorney General, Frank J. Thomas L. Casey, Gorcyca, David General, Prosecuting Solicitor Kathryn Barnes, G. Attorney, and Assistant Prosecut- Attorney, people. ing Appellate
State Defender (by Ralph C. Simpson), appeal. for the defendant on P.J., Before: and Griffin Bandstra, Fitzgerald, *2 JJ. Following J. trial, defendant was
Griffin, voluntary convicted of MCL manslaughter, 750.321; 28.553, MSA and possessing during firearm the com- mission of a felony, 750.227b; MCL MSA 28.424(2). Defendant was sentenced years’ to five to fifteen imprisonment for the manslaughter conviction, to be consecutively years’ served imprisonment to two felony-firearm the appeals conviction. Defendant as of right. appeal,
On defendant contends that his conviction voluntary manslaughter should reversed because the trial court committed error requiring reversal submitting a first-degree mur- der charge that the evidence did support. not Defend- ant claims that he was denied right his to a fair trial even though jury rendered a verdict of not guilty with regard to the We disagree with argument. defendant’s However, we reverse because we compelled are to do so on the authority basis of People Vail, 460, v 393 Mich 464; 227 NW2d (1975). 535
In reviewing
sufficiency
of the evidence in a
criminal case, we must view the evidence in a light
most
prosecution
favorable to the
and determine
whether a rational
trier of fact could find that
essential elements
proved beyond
of the crime were
People Herbert,
reasonable doubt.
v
444
Mich
473;
Viewing find evidence to prosecution, insufficient and delibera- establish the elements shooting, tion. There were no witnesses to the only weapon was never found. The direct evi- *3 shooting dence defendant to the was defend- linking when that, inspired ant’s confession because of fear him just gunpoint the man who had robbed turned approach vehicle, defendant’s defendant again car win- gun through crouched down and fired his his prior relationship evidence of a dow. There was no victim, and the or that the victim between defendant anyone defendant’s intended target. or else was a reasonable factfinder circumstances, Under these could not find or conclude defend- firing ant had time to take a “second look” before his weapon. denying the trial court erred in Accordingly, regard defendant’s motion for a directed verdict with to the of permitted
Because the was to consider proofs, we must reverse charge unwarranted v trial, People Vail, and remand this case for a new supra. However, were we not Supreme bound our Vail, Court’s holding join majority would of jurisdictions other in rejecting the harsh and unrealis- position prejudice may tic that actual presumed by “possibility the mere of a compromise verdict” when a charge considers that is unsupported by the proofs. See, e.g., Howard v States, United 128 US 336, 343; DC 389 F2d 287 State v Ward, 569 SW2d 341, 343 (Mo App, 1978). Indeed, the holding in flatly Vail contradicts general that, rule . . . where a crime is divided
“[t]he
into
degrees,
instructing
if the court commits error in
as
higher degree
crime,
they
of such
return a ver-
guilty
degree
they
dict of
prop-
of a lower
as to which
were
erly instructed,
complain.”
the defendant
cannot
[State
Schaefer,
649, 654;
W
170 Va
quoting
upon manslaughter
verdict as a result of a settlement
positions.
different
enough
Whether or not
there was
evi-
justify
dence to
degree
submission
of the first
murder
jurisdictions
adopted
majority
The
that have
rule include Ala
bama, Arizona, Arkansas, California, Delaware, Florida, Georgia, Indiana,
*4
Kentucky, Maine, Massachusetts, Mississippi, Missouri, Montana, North
Carolina,
Mexico, Oregon,
Island, Tennessee, Utah, Vermont,
New
Rhode
Virginia.
English,
and West
Id. See also State v
233 Or
charge relevant is not v Chris- jury compromised reaching its result. on [State J., tener, (1976) (Schreiber, 55, 78; 362 A2d 71 NJ concurring).] jury compro-
Additionally, speculating whether charge affected whether the unwarranted mised, or compromise such ... no than We see
gives
far less credit
it deserves.
theory upon
conclusion that the
which to base a realistic
of,
compromised
or was
might
its views because
have
by,
of the first-
misled
the mere submission
confused and
supra
[Howard,
at
degree charge for its consideration.
343.]
acquit
enough to
where the
has sense
Indeed,
murder
an unwarranted
defendant of
jury,
manslaughter,
[its]
. .
.
“convict[] [him] of
ability
and to
to discriminate
verdict,
[its]
showed
correctly
given
apply
[it]
the law as
the facts to
Further, we note that the
rule
our “harmless error”
issue is harmless under
his burden of
has not sustained
because defendant
probability
proving
that there is “a reasonable
People v
the trial.”
error affected the outcome of
243;
For these we the Supreme Court to minority adopted overrule the view in Vail4 and adopt persuasive position by majority embraced of jurisdictions. other In of disposition, view our need not address the remaining appeal. issues on
Reversed and remanded for a new trial. We do not jurisdiction. retain P.J., concurred.
Bandstra, J. I (concurring). concur in result Fitzgerald, only, write separately emphasize I that do not agree majority’s analysis with the People Vail, NW2d 535 I (1975), because believe correctly Vail was decided. 769.26; MCL MSA 28.1096 states as follows: judgment No or verdict shall set aside or reversed or a new by granted any any case,
trial be court of this state in criminal on ground jury, improper of misdirection of the or the admission rejection evidence, any pleading or or for as to error matter procedure, opinion court, or unless in the of the an examina- after cause, affirmatively appear tion of the entire it shall that the error complained miscarriage justice. of has resulted 2.613(A) MCR states as follows: evidence, An error in the admission or the exclusion of an error order, ruling anything in a an or or error or defect in or done omit- parties ground granting ted or court not for a new trial, setting verdict, modifying, vacating, aside a for or or other- disturbing judgment order, wise or unless refusal to take this appears justice. action to the court inconsistent with substantial 4 Only Nebraska, York, Jersey, and, arguably, New New Colorado and having adopted holding Oklahoma are cited in the ALR annotation as similar to Vail.