*1
People y
i
Robinson
PEOPLE v ROBINSON
(Calendar
8).
Argued
20,
Decided
126379.
October
No.
Docket No.
May
2006.
following
Wayne
trial in the
M. Robinson was convicted
a bench
Kevin
Court,
J.,
second-degree
Ryan,
Daniel E
of
murder. The
Circuit
codefendant,
aiding
abetting theory. A
conviction
under an
and
was
Pannell,
by jury
first-degree murder. The
Samuel
was convicted
of
RJ.,
JJ.,
Appeals,
Court of
and C. L.
Cooper
Murphy,
Levin,
murder,
second-degree
reduced
reversed the defendant’s conviction of
charge
the defendant was convicted to assault with
on which
murder,
great bodily
and remanded for
intent to do
harm less than
curiam,
29,2004
resentencing. Unpublished opinion per
April
issued
(Docket
237036).
Appeals
trial
No.
The Court of
held that the
court
second-degree
improperly
the defendant of
murder because
convicted
defendant,
to the
there was no evidence that
who went
victim’s
victim,
intending
aggravated
of the
home
to commit an
assault
was
of
to kill the
The
aware
or shared
codefendant’s intent
victim.
Supreme
granted
prosecution’s application
for leave to
Court
appeal.
conclusion of the that who i abet, counsel, procure or the commission of a crime is liable for crime, probable consequences as well as the natural and findings support that crime. the trial court’s do not imposition of criminal murder abetting theory. under an An evenhanded review of *2 findings support the trial court’s does not the conclusion that probable consequence the victim’s death was a natural and of beating shooting because the death was not foreseen or agreed by findings the defendant. The trial court’s that the injuries during did beating, victim not die from inflicted the kill, that the defendant did not intend to and that the defendant did not that know his codefendant would shoot and kill the support finding victim do not a that this death was the natural probable consequence beating. and of this It is also insufficient under MCL second-degree 767.39 to convict the defendant of murder because there is no connection in this case between the great bodily intent to cause harm and an act that effectuated that judgment intent and caused the death. The оf the Court of Appeals should be affirmed. dissenting, Justice Appeals would affirm the Court of Kelly, decision to second-degree reverse the defendant’s murder con- resentencing viction and remand for charge. on a reduced There establishing was no evidence that the defendant was aware of or shared his codefendant’s intent to kill. An aider and abettor must the principal. have same criminal intent as the A defen- dant cannot be convicted of murder under the theory aiding of and if the defendant did not intend the act that caused the death. only The defendant intended to beat victim, beating the and the was not the cause of death. The trial findings support only court’s of fact a conviction of assault with great bodily intent to do harm less than murder. The victim’s death enterprise was not within the common of the defendant majority posits and his codefendant. The theory an alternative culpability imposes liability beyond of that criminal the natural probable consequences and of a crime the commission of which person abets, thereby extending a aids and the reach of MCL beyond statutory language. 767.39 Ajding Abetting. — Criminal Law and necessary The three elements for a conviction under an and (1) abetting theory charged are the crime was committed (2) person, defendant or performed some other the defendant acts gave encouragement or crime, that assisted the commission of the (3) the defendant intended the commission of the crime or had knowledge principal that the intended its commission at the time v Robinson Opinion of the Court encouragement; hable gave a defendant is aid and as for the to aid or abet as well the defendant intends for the crime crime; prosecution consequences of that natural the commission prove aided or abetted that the defendant must commission intended to aid the and that the defendant an offense offense, principal charged intended to commit the knew charged or, alternatively, a charged offense was offense probable consequence commission of the of the natural and 767.39). (MCL intended offense Casey, Attorney General, L. Cox, Thomas A. Michael Prosecuting Kym Worthy, Attor- General, L. Solicitor ney, Timothy Baughman, Research, Train- A. Chief ing, Appeals, Larry Roberts, Assistant Pros- L.
ecuting Attorney, people. for the defendant.
Neil J. Leithauser codefendant, Samuel Defendant and a YOUNG, aggravated assault, and Pannell Pannell, committed an victim, Bernard Thomas. After and killed the shot *3 defendant of trial, the trial court convicted bench second-degree under an murder theory. Appeals trial The reversed the court’s Court judgment, it concluded that there was insuffi- because or aware of cient evidence that defendant shared was intent to kill. Pannell’s Michigan law, that under a defendant who
We hold
procure
aid, abet, counsel, or
the commission
intends to
the natural
crime,
for that crime as well as
of a
is liable
probable consequences
case,
of that crime. In this
of an
committed and aided the commission
defendant
aggravated
the natural and
assault. One of
consequences
Therefore,
a crime
death.
of such
properly
defendant of second-
trial court
convicted
judgment
degree
of the Court of
murder. Wereverse
Appeals
conviction of second-
and reinstate defendant’s
degree murder.
FACTSAND PROCEDURALHISTORY According to the trial, evidence adduced at defendant and Pannell victim, went to the house of the Bernard Thomas, with the stated intent to “f*** him up.” Under direction, Pannell’s defendant drove himself and Pan- nell to the victim’s house. Pannell knocked on the victim’s door. When the victim opened door, defen- dant struck him. As the victim fell ground, to the defendant struck the victim again. Pannell began to kick the victim. Defendant told Pannell that “that was enough,” and walked back to the car. When defendant car, reached his he single heard a gunshot.1 Following trial, a bench the trial court found defen- dant guilty of second-degree murder “on the prong of great bodily only.”2 harm Specifically, the court found that defendant drove Pannell to the victim’s house with the intent to physically attack the victim. The court also found that once at home, the victim’s initi- ated the victim, attack on the and that defendant’s attack enabled Pannell “get the upper-hand” on the victim. The court sentenced defendant to a term of 71 months to 15 years.
The Court of Appeals reversed defendant’s murder conviction, holding that there was insufficient evidence to support defendant’s murder convic- tion.3 The Court held that the trial court improperly convicted defendant of second-degree murder because there was no evidence establishing that defendant was aware of or shared Pannell’s intent to kill the victim. parties stipulated gunshot that the victim died from a wound. Defendant stated only he, that he did not shoot the victim and that Pannell, and the victim were at the victim’s house. *4 2 jury first-degree A convicted Pannell of murder. 3 Unpublished opinion per Appeals, April curiam of the Court of issued (Docket 237036). 29, 2004 No. 5 People v Robinson Opinion the Court application prosecution’s granted This Court directing parties appeal, address the to leave to liability accomplice re- the mens rea and elements abetting aiding support quired a conviction second-degreemurder.4 OF REVIEW
STANDARD aiding requirements stat- of the question de Court reviews of law that this ute5 are a acquired phrases “[W]ords that have novo.6 interpreted meaning unique as law are at common dealing meaning having used statutes the same when evaluating subject.”7 defendant’s the same with sufficiency regarding evidence, this of the claim light most favorable the evidence in a Court reviews any prosecutor trier of fact to determine whether the crime were elements of find the essential could Findings proven beyond of fact a reasonable doubt.8 they may are unless not be set aside the trial court clearly erroneous.9
ANALYSIS
under our
case involves
This
provides:
abetting statute,
767.39,which
MCL
offense,
commission of an
Every person concerned
constituting the
directly
act
commits the
whether he
counsels, aids,
in its commis-
procures,
or abets
offense or
4
(2005).
6
(2005).
418, 427;
Schaefer,
People
Mich
sion hereafter be tried and on punished directly convictiоn shall be as if he had commit- ted such offense.
Unlike conspiracy10 felony murder, which also allow the state to punish person a for the acts of another, aiding abetting is separate not a substan Rather, tive offense. an “being aider and abettor is simply theory a of prosecution”12 that permits the imposition of accomplices. vicarious for recently
This Court described the three elements a necessary for conviction under an aiding and abetting
theory: “(1) charged the crime was committed the defendant (2)
or some person; other performed defendant acts or gave encouragement that assisted the commission of the (3) crime; and the defendant intended the commission of the crime knowledge or had principal intended its commission at the gave [the time that defendant] aid and ”[13] encouragement. The primary dispute in this case involves the third element. Under the Court of Appeals analysis, the third element would require prosecutor prove beyond reasonable that a doubt intended to commit offense, identical here homicide, as the accomplice or, alternatively, that a defendant knew that the accom- plice intended to commit the homicide. We reaffirm that evidence of defendant’s specific intent to commit a crime or knowledge of the accomplice’s intent consti- tutes sufficient mens rea to convict under our aiding
10 MCL 750.157a.
750.316(l)(b).
MCL
12People Perry,
20;
v
460 Mich
63 n
Principals charged the crime or else be aware of the intent commit degree in the first to commit principal of the “guilty of crime.15But accessories before the fact were reasonably consequences might all incidental which Thus, at wrong.”16 to result from the intended expected law, guilty one could be of the natural common the intended crime or the consequences of itself, the actor depending intended crime on whether “accessory in or an principal degree was a the second Michigan’s aiding before the fact.” statute substantively unchanged been in force and since has 14 (15th ed), p 181. Wharton’s Criminal Law (3d Perkins, ed), pp Criminal 741-743. Law 16Id. at 745. Mich 1 Opinion of the Court statute, 77, 19, § The 1855 PA
mid-1800s.17
which
statute,
nearly
is
identical to the current
stated:
accessory
fact,
The distinction between an
before the
principal,
principals
a
and between
in the
first
degree
felony,
abrogated;
second
cases of
and all
persons
felony
concerned in the
commission of
whether
they directly
constituting
offence,
commit the act
or aid
commission,
though
present, may
and ahet
in its
not
indicted,
punished,
principéis,
hereafter he
tried and
as
as
misdemeanor![18]
in the case of a
a statute employs general
terms,
When
common-law
courts will
the statute
interpret
by looking to common-
definitions,
law
absent clear
intent
legislative
change
the common
previously
law.19As this Court has
indi-
cated,
and abetting
legislative
statute was a
abolition of the common-law
prin-
distinctions between
cipals
Beyond that,
and accessories.20
there has been
little
from
case law
this Court interpreting
language
of this statute.21
we note that
therе is no
in the
language
statute that demonstrates a legislative
Legislature
language
present form,
amended the
to its
“procures, counsels, aids,
substitutes
which
or abets” for “aid and abet.”
change
meaning
This
did not affect the
of the statute because the
“[h]elp, assist,
common-law definition of “aid and abet” is to
or facilitate
crime, promote
thereof,
accomplishment
help
the commission of a
advancing
bringing
about,
counsel,
encourage,
or
it
or
or incite as to its
*7
(5th ed),
Dictionary
p
Legislature
commission.” Black’s Law
63. The
merely
synonymous
added terms that were
with the
defini
common-law
tion of “aid and abet.”
18
(same);
(same);
See also 1857 CL 6065
1897 CL 11930
1915 CL 15757
(same
(changing
“offence”);
175, VII,
“c”
in
§
to “s”
1927 PA
ch
39
as
767.39);
(same);
(same);
MCL
1929 CL 17253
1948 CL 767.39
and 1970
(same).
CL 767.39
19
Riddle,
(2002).
People
116, 125-126;
v
467 Mich
649
30
NW2d
20
(1973).
People Palmer,
370, 378;
v
392 Mich
NATURAL AND PROBABLE CONSEQUENCES
theory,
natural and probable consequences
Under the
any thing
can be no criminal
for
responsibility
“[t]here
fairly
enterprise,
not
within the common
and which
if the
should arise
might
expected
happen
to
occasion
any
one to do it.”24 In
the defendant and
Knapp,
engaged
other men
in sexual intercourse with
several
(3d
Perkins,
ed), pp
Criminal Law
741-743.
Kelly
holding
“improperly
misapprehends
Id. at 745. Justice
our
as
statute,
extend[ing]
Michigan’s aiding
abetting
MCL
the reach of
Legislature
767.39.” Post at 20. When the
first codified
1855,
express
abrogate
intent
statute in
it reflected an
principals
distinction between
and accessories.
common-law
language reflecting
regards,
Legislature
all other
did not utilize
accessory
abrogate
intent
the common-law theories under which an
theory
criminally
principal.
held
hable for the acts of a
One such
can be
probable consequences”
predicated
of a
on the “natural and
Perkins, supra.
planned criminal act.
People Knapp,
*8
the victim. After the defendant one of the men a second-story jury threw the woman from window. A manslaughter. convicted the defendant of This Court reasoned that because there was no evidence that window, defendant the jury threw victim out the him must have held accountable for the aсtions of the other men. Knapp Court reversed defendant’s convic- manslaughter
tion for
because there
no
proof
was
a part
woman’s death was
of the “common enter-
prise”
prostitution because one would not
it
expect
“to
if the
happen
occasion should arise to do it.”25
Therefore,
the defendant could not be held to
accomplice
manslaughter.
to the
Similarly,
People Chapman,
v
this Court held that
“
a defendant
‘responsible criminally
was
for what of
wrong
directly
flows
from his
inten-
corrupt
”26
tions . . . .’ Chapman involved a defendant
paid
who
another man
to commit adultery with the defen-
$25
dant’s wife so the defendant could divorce her. The
through
watched
a hole in the wall as the
other man raped his wife. This Court held that
jury
properly convicted the defendant of rape under an
accomplice theory
because that crime di-
rectly flowed from the original
intention
aid
corrupt
adultery.27
People Foley,
553, 556;
Id. at 115. See also
59 Mich
purpose.”) (emphasis
(1886)
280, 286;
(quoting Bishop,
Opinion of the Court during rage. into a Defen- lated the assault murderous argues dant that he should not be held liable for the murder because he left the scene of the assault after telling enough.” disagree. Pannell, “That’s Defen- We angry dant was aware that Pannell was with the victim even Defendant before assault. escalated situa- by driving agreeing house, tion Pannell to the victim’s join assaulting initiating victim, Pannell in nothing protect the attack. He did Thomas and he did nothing to defuse the situation in which Thomas was ultimately Pannell. killed A “natural and consequence” leaving enraged Pannell alone with ultimately the victim is that Pannell would murder the serendipitously victim. That defendant left the scene crime moments before Thomas’s murder not does respon- under these circumstances exonerate him from sibility for the crime. *10 victim,
The fact that Pannell shot the rather than death, him to beat does not alter this conclusion. It assault, cannоt be that a defendant can initiate an leave already principal victim, infuriated alone with escape liability and then for the murder of that victim simply principal because the shot the death, victim to person, criminally responsible the former is for its results. If he contem- plated result, answerable, though produced he is it is in a manner he ’ ” contemplate.” 27, quoting Chapman, supra did not Post at at 286 (citations omitted) added). (emphasis Kelly argues contemplated Justice that because defendant never shooting victim, Pannell’s he cannot be held answerable under the shooting. disagree. Here, law for that We defendant set into motion the physical perpetrated by violent assault of the victim himself and Pannell. clearly “contemplated” The evidence demonstrates that defendant caus- ing great bodily potential consequences harm to the victim. One of the great causing bodily harm that is the ultimate result could be the death produced by victim. That the death in this case was Pannell’s shooting injuries beating of the victim rather than because of sustained responsibility. the victim does not absolve defendant from his criminal People v Robinson Opinion of the Court victim instead of death. Like the kicking to defen- dant in Chapman, accomplice rape, whose used as seduction, to opposed accomplish to their common criminal purpose, criminally the defendant liable as the crime long as is within the natural and consequences of the intended crime. assaultive
INTENDED OFFENSES The Court of Appeals panel this case focused on cases that reflect the intended theory, offenses such as v People to hold that an aider or abettor must have the Kelly31 identical criminal intent as in- Kelly principal.32 volved a murder that during occurred the course of an armed robbery. jury convicted the defendant as either a principal or an aider and felony abettor of the murder. The Kelly Court affirmed his conviction. analyzing and abetting charge, this Court cited Meister v for the proposition that “[t]he People33 intent requisite is that necessary be convicted of the crime aas principal.”34
Under
Kelly, defendant
is liable for the offense the
intended to commit or intended to aid and
abet.
the Court of Appeals panel in this case
went further than Kelly,
required
accomplice
have the identical intent as the
This narrow
principal.35
261;
423 Mich
construction felony Under v aiding abetting and murder. conviction, Aaron, felony pros- a to sustain murder had the prove must that each defendant neces- ecution malice to be convicted of murder.36 Aaron makes sary felony that one and abets a murder must clear who aids felony malice to be convicted of requisite have murder, need not have the same malice as the but This extends to other crimes: shar- principal. principle intent as the allows for accom- ing principal same liability. sharing the identical intent is plice imposition accomplice not a to the liabil- prerequisite earlier. ity principles under the common-law discussed In Appeals Kelly. The Court of misread accordance incorporated with the common-law in the principles statute, Kelly simply proposition that, stands for the at minimum, aider and for the abettor is liable crime he or she had the intent to commit. Even under the theory, intended offense the defendant’s conviction The intent necessary must stand. for kill, murder the intent the intent to great inflict harm, or the bodily disregard willful wanton for case, death judge whether will result.37 specifically found intended to inflict harm, great bodily which is sufficient to convict him of second-degree murder. are approaches two outlined above not in con- Instead,
flict.
they merely represent
two different tests
aiding
abetting
under an
theory.38
tests,
Under these two
a defendant
is liable for the
(1980).
Aaron,
672, 731;
People v
409 Mich
CONCLUSION hold that a We defendant must possess the criminal aid, abet, intent procure, or counsel the commission of an A offense. criminally liable for the offenses the defendant specifically intends to aid or abet, of, or has knowledge as well as those crimes that are the natural and consequences of the of- fense he Therefore, intends to aid or abet. prosecu- tor must prove beyond a reasonable doubt that defendant aided or abetted the commission of an offense and that the defendant intended to aid the charged offense, principal knew the intended to commit offense, charged or, alternatively, the charged of- fense was a natural and probable consequence commission of the intended offense.
Under prong either of the aiding abetting analy- sis, defendant was properly convicted. Because the intending This includes both to commit the crime knowledge someone with that he or she intends to commit the crime. Kelly failWe to see how Justice can conclude that we concluded that defendant was aware of or shared Pannell’s intent to kill. On the contrary, explicitly holding we have based our on the fact that defen great bodily dant’s intent to inflict harm is sufficient to maintain his resulting conviction for the death victim. Mich 1 Opinion Dissenting Cavanagh, J. reversing erred in defendant’s convic- Appeals
Court of murder, judgment we reverse the tion of and reinstate defendant’s Appeals of the Court conviction.
Taylor, C.J., Markman, Weaver, Corrigan, JJ., concurred J. YOUNG, with majori- I (dissenting). agree with
CAVANAGH, *13 law, that ty’s Michigan conclusion under defendant aid, abet, counsel, procure who intends or crime, commission of a crime is liable for that as well as the natural of that probable consequences But the majority’s sweeping application crime. of this principle prevents to the facts of this case me from fully embracing interpretation of MCL 767.39.1 I Specifically, today’s believe that decision sets a dan- gerous precedent applied how MCL 767.39 will be future, and it stretches aider and abettor beyond any Accordingly, defensible bounds. I must respectfully dissent. nutshell,
In a the majority opines that defendant and codefendant, Pannell, aggra- his Sаmuel committed an Next, vated the majority posits assault. that “one of” the natural and probable consequences aggra- Thus, vated assault is death. reasons that trial properly court convicted defendant of second- murder, degree MCL under an 750.317, abetting theory, But, MCL 767.39. as Justice KELLY provides: 767.39 MCL Every person offense, concerned the commission of an directly constituting whether he commits the act the offense or counsels, aids, procures, may or in its abets commission hereafter prosecuted, indicted, punished tried and on conviction shall be directly ifas he had committed such offense. People y Robinson Dissenting Opinion by Cavanagh, in her dissent, *14 omitted).
But even under the majority’s interpretation of MCL 767.39, these same factual findings do not support a second-degree murder Here, conviction. an evenhanded review of the trial court’s findings does not support the conclusion that this death was a natural and probable consequence of this beating because the shooting death was not foreseen and not agreеd to. Accordingly, even if I prepared were to accept the majority’s interpretation of 767.39, MCL majority’s the application of its inter- pretation logic defies and well-established principles of our criminal law. Dissenting Opinion Cavanagh, rationale that defen- majority’s example,
For
proper
murder conviction was
second-degree
dant’s
natural
conse-
probable
“one of” the
because
that
beating
saying
a
is death is akin
of
quences
because, in
a
general,
was proper
defendant’s conviction
of
consequence
the natural and
might
death
be
utterly
rationale
beating.
this
some abstract
on which our
destroys
principles
one of the most basic
criminal
there can be no
grounded:
criminal
law is
See,
culpability.
e.g., People
individual
liability without
672, 708;
Aaron,
Mich
Alternatively, could be read as opinion rationale to reach its result: because using following probable consequence a death is the natural and always beating, of a defendant’s conviction abetting theory. murder was under an proper destroys prin- But this rationale likewise bedrock criminal there can be no criminal ciple of law Aaron, See culpability. supra without individual Moreover, because it at this rationale ludicrous 708. *15 v Robinson Dissenting Opinion by Cavanagh, J. flies the face of common experience a knowledge; death does not always result from a beating.
In any event, regardless of whether the majority can opinion fairly read to employ a “may be” or an “always” rationale, I join cannot today’s decision. In my view, the majority’s opinion is at odds with the way our law views criminal liability and disregards the trial court’s factual findings that the death in this case was not the natural and probable consequence of the assis- tance defendant provided. so, In doing the majority’s application of its interpretation of MCL impru- 767.39 dently extends the scope of aider and abettor liability. Here, I believe that defendant’s conduct was deplorable and criminal. I agree And with the majority that facts of this case do not “absolve defendant from his criminal Ante at responsibility.” n 30. But on the basis the trial court’s actual findings fact, which are not clearly erroneous, I simply disagree that defen- dant criminally responsible for second-degree murder under an theory.
Additionally, I disagree with the majority’s alternative basis for reversing the Court of Appeаls judgment and reinstating defendant’s conviction of second-degree mur- der under an aiding and abetting theory merely because defendant was found to have possessed general intent to great cause bodily harm. For reasons similar to those noted earlier in opinion, it is insufficient under MCL 767.39 to convict defendant of second-degree murder “\o]ne because the potential consequences of causing great bodily harm is that the ultimate result could be added). death of the victim.” Ante at 12 n 30 (emphasis Moreover, even though defendant was found to have possessed intent great harm, cause bodily the trial court’s factual findings do not support defendant’s convic- second-degree tion of murder. [May- Dissenting Opinion Kelly,
Granted, requirement the malice *16 the intent to defendant has the murder is satisfied where Goecke, Mich bodily People harm. great cause the trial But, light of 463-464; 579 NW2d not been fact, causation has findings other court’s inflicted with injuries the in this case because established harm not the cause great bodily were the intent to cause that the words, largely it irrelevant In other of death. had generally defendant may have found that trial court defendant’s bodily harm and that great the intent to cause hand ultimately get upper the allowed Pannell to actions found that the assault with the trial court also because in injuries result bodily harm did not great intent to cause finding latter such, the trial court’s that caused death. As connection between necessary make the criminal fails to an act that bodily harm and great the intent to cause I Again, the death. intent and caused effectuated and deplorable that defendant’s conduct was believe of fact are not findings criminal. But the trial court’s and, thus, that defendant’s require erroneous clearly aiding an and murder conviction under second-degree Thus, disagree I with abetting theory be reversed. reversing the Court of alternative basis for majority’s judgment as well. Appeals sum, death was not the natural In because this beating of this and defendant’s probable consequence death, criminally did not cause this intent and actions murder second-degree cаnnot convicted of defendant Therefore, I would aiding abetting theory. under judgment Appeals. affirm the of the Court decision, KELLY, (dissenting). major- J. With this Michigan’s aiding the reach of extends ity improperly include a statute, MCL 767.39. It will now req- without finding rationale for criminal intent. uisite element of v Robinson Dissenting Opinion Kelly,
I agree Appeals the Court of in this with decision A case. defendant cannot be convicted of murder an aiding abetting theory under where not intend act that did causes the death. case, In only defendant Robinson intended to beat and the victim, beating was not the of death. cause order to convict and abetting Robinson murder, append to the language must statute. currently
It states:
Every offense, person concerned in the commission of an directly he constituting whether the act commits procures, aids, counsels, offense or or abets in its commis- may indicted, prosecuted, sion hereafter be tried and on punished shall be if directly conviction as he had commit- *17 ted [MCL 767.39.] such offense.
The to effectively adds it the “as phrase well as the and probable nаtural consequences any of such Reading crime.” into a language statute reach a to result not intended by Legislature the is an abuse of power. this Court’s
PROPER STANDARD FOR REVIEW OF FACTS I concur in the majority opinion’s “Facts Proce- dural History” except to the extent that it picks and among chooses the trial findings relating court’s of fact to evidence of defendant’s intent. There no was evi- establishing dence that Robinson was aware of or shared codefendant Instead, intent to Pannell’s kill. the trial findings court’s support only conviction of as- sault with intent to great bodily do harm less than murder. MCL 750.84.
In fact, the trial judge’s findings actually preclude conviction second-degree Robinson’s of One murder. 1Mich by Dissenting Opinion Kelly, was determinations pertinent most judge’s Pannell’s intent know of not share or did Robinson kill. thor- Appeals the Court of 18-page opinion, In its and cor- findings factual judge’s reviewed oughly con- improperly had been that Robinson rectly held It observed: second-degree murder. victed findings that judge’s factual The (cid:127) “only he “understood” was “agreed” and Robinson victim, and uр” the there to beat (cid:127) [Robin- shooting beyond scope of what “was happen; to have son] had intended (cid:127) only, bodily great harm to inflict Robinson intended murder, second-degree as an require that his conviction abettor, be reversed. aider recognize that since the death of judge did not during injuries from inflicted victim did not result the intent Robinson with physical assault committed .to bodily only, could not be found great harm Robinson inflict of the second-degree murder because the victim guilty of to die.” judge put “happened it] [as assault physical [sic] he convicted of properly could Robinson only aid to provided if he an aider and abettor murder as aid killing with the intent so in the victim Pannell victim, sharing or of Pannell’s killing aware Pannell Robinson, opinion per [People unpublished intent to kill. 29, Appeals, April issued the Court of curiam of (Docket 237036), (emphasis origi- slip op at No. nal).] defer to Court, Appeals, the Court of should like This *18 only fact, setting them aside findings of the trial court’s erroneous. they clearly if are observed, finder of “Another of Apрeals As the Court have assessed fact, judge, might or another jury a differ- and the other evidence credibility Robinson’s People v Robinson Dissenting Opinion by Kelly, J. ently [finding sufficient evidence to a support convic- second-degree Id., tion of at slip op murder].” 4. But did not. The judge trial court’s factual determina- simply necessary tions do not include the element of shared or known intent support using murder conviction an aiding abetting theory. Facts are indeed things,”1 “stubborn and we are not of fact here. finders Like the Court of Appeals, we normally apply only the law to the as by facts found trial court. The rule is that findings may those not be they set aside unless are clearly erroneous. MCR 2.613(C). Thus, this Court’s review of the factual record is limited. But the this case is not following the rule.
“NATURALAND PROBABLE CONSEQUENCES” CANNOT
SUBSTITUTE FOR REQUISITE INTENT UNDER AN
AIDING AND ABETTING THEORYOF PROSECUTION
out,
As the majority correctly points
abetting is not a separate substantive
It
offense.
simply a theory
prosecution
that permits imposing
vicarious
on
if
accomplices
they share or have
knowledge of the principal’s intent.2
things;
may
wishes,
“Facts are stubborn
and whatever
be оur
our
inclinations,
passion, they
or the dictates of our
cannot alter the state of
Adams, “Argument
facts and evidence.” John
in Defense of the Soldiers
Trials,”
1770, quoted
in the Boston Massacre
December
at The Quota
(ac
Page, <http://www.quotationspage.com/quote/3235.html>
tions
2006).
April
cessed
Aaron,
672;
(1980),
See
24 475 by Dissenting Opinion Kelly, J. “evidence of a shared majority asserts that accomplice intent to commit the crime of specific to under our way the exclusive establish [not] The majority statute.” Ante at 7. theory of that extends argues culpability an alternative probable the “natural and liability beyond criminal Ante person of the crime a aids or abets. consequences” dissent, notes in his what at 9. As Justice CAVANAGH here, majority’s rаtionale, “is matters even under the natural and con whether this death was in beating.” (emphasis of this Ante at 18 sequence the death Instead, by would have original). naturally beating, contrary from the to gunshot flow trial that Robinson intended judge’s specific finding great bodily to inflict harm alone. in a new People Knapp4 granted The defendant was not of the “part trial because the victim’s death was prostitution ‘common because one would enterprise’ if expect happen not it ‘to the occasion should arise to ”5 a at quoting [throw window].’ victim out Ante supra at 115. the “common enter- Knapp, fact, in In prise” Knapp. prosecuted was core issue murder, in enterprise” Knapp rape “common was prostitution. not prosecution
The evidence for the tends to show that the was, accident, story upper in the of a deceased before the defendant, building belonging paint shop, and used as a Howell, young company with him and several other bodily great cause death or harm.” The Court further held “that the issue always jury.” at 733. of malice must be submitted Id. authority proposition I can find no for the that a defendant can be potential hypothetical held hable for all the or results of an intended act. my Appeals example page opinion. on 28 of See Court of 5 Knapp, upper-story from an window. the victim fell or was thrown injury. leg She broke her and died as a result of that People v Robinson Dissenting Opinion by Kelly, men, her; and that they had sexual intercourse with by forcible, prosecution this was claimed to have been will, against forcibly her and that she had been taken added).] (emphasis at 113 purpose. [Id. there purpose The defense claimed that there was no common Rather, or all. the death either acciden- offense at “was tal, or act in had [the defendant] caused some which no Id. at 114. part.” *20 only manslaughter
The could have been conviction portions charge, permit- [trial court’s] under certain of the ting jury injury find it in in to case the was caused attempt persons paint shop of the in various assembled [Id.] to avoid arrest.
Thе to jury guilty was able find manslaughter charge because court’s allowed it to “ he, along others, find that with the was in an ‘engaged ” morals, act against public unlawful.’ Id. at 115. “ And, ‘in exposure, [they] that order to avoid arrest or threw her out of the window ....’” Id.
On appeal, approve this Court did not of the trial court’s to the charge jury: rulings practically The these was to hold that effect of
parties wrong purpose who have combined in a must be only way escaping not to combine in some presumed, arrest, but also to be so bound to each other as to be far responsible severally every by any act done them for during escape. to maintain such a doctrine. It is impossible
It is undoubtedly possible parties for to in order to combine effectual, escape agreement make an no but such can lawfully original be inferred from a combination to do the wrong. responsibility anything There no can be criminal for fairly enterprise, might which not within the common expected happen anyone to occasion should arisе to if added).] (emphasis [Id. it. do Dissenting Opinion Kelly, that hand, the trial court found
In the case at There was was to beat the victim. enterprise common kill went to the victim. Robinson enterprise no common Robinson, supra, slip to beat the victim. along “only up” words, “it 8, 11, and 13. In was at Robinson’s op to f*** him going between us that we were understood matter, someone neces- up.” practical :P**mg up As a them alive. In the context of this sarily leaving entails in an case,6 likely “put [the victim] it most means extremely impossible difficult or situation.”7 8Offensive is, it not used to mean “to kill.” We have as word kill,” as many slang other words mean “to such off,” “ice,” off,” “waste,” out,” “knock “rub “bump trial it Applying judge’s findings, “whack.” factual victim, to harm the not agreed is clear that Robinson kill him. cites which this People Chapman,8 “ ‘responsible criminally
Court held that a defendant is wrong directly corrupt for what of flows from his intentions....’” ante at 10. The more complete See citation contained in is: Chapman
“Every criminally wrong responsible man is for what of *21 directly intentions; corrupt from but no man flows his 6 29, majority mistakenly stating In its footnote cites me as that the cannot, any context, likely word “in be used to mean actions that are fact, killing.” discussing I result in a Ante at 11. In am the word “in the context of this case.” 7 extremely vulgar Apart from its first two definitions as an obscene or intercourse, put “f***” To verb for sexual word also means “3.... extremely impossible an difficult or situation.... 4.... To break or destroy.... with, play 5.... To defraud.... 6.... To to tinker. (accessed 2006). 19, <http://en.wiktionary.Org/wiki/f***> April And “2. unfairly harshly,” College Dictionary to treat or Random House Webster’s (2d ed). (2001), ruin,” Dictionary damage “2. or Color When or Oxford synonymously “destroy” “damage,” used with the reference nor mally physical object, person. a is to a not to 8 omitted). (1886) (citation 280, 286; NW v Robinson by Dissenting Opinion Kelly, J. intending wrong responsible independent is act wrong by person committed If one another. sets motion physical power person, of another the former is crimi- nally result, guilty for contemplated its results. he he If answerable, though produced is it is in a manner he did not contemplate.” [Chapman, supra quoting Bishop, at (7th ed) added).] (emphasis Criminal Law case, specifically trial court found thаt Robinson did not intend result, or contemplate fatal shooting Pannell’s of the victim. Because Robinson did not kill, share Pannell’s intent to he cannot be held answerable under the law for the fact that Pannell fatally shot the victim. The enterprise common awas beating. The victim, fact that Pannell shot the rather than him death, beat dispositive.
The framework by established Knapp Chapman continues to be sound law. It simply support does not the majority’s conclusion that the victim’s death in this case is “clearly within the common enterprise the defendant aided because a homicide ‘might expected to happen if the occasion should arise’ within the common enterprise of committing an aggravated as- sault.” Ante at 11.
The victim’s death here was not within Robinson and Pannell’s common enterprise; a by gun homicide is not probable natural and consequence of an intended assault battery. majority The is mistaken in con- cluding otherwise. It errs determining that unintended result of an intentional act was a “natural probable consequence” for which a defendant may be held criminally liable.9 states, majority judgment, “In our a natural and consequence plan may of a to assault someone is that one of the actors case,
well escalate the assault into a murder.” Ante at 11. In this probable consequence’ leaving “[a] believes that ‘natural and *22 1Mich 475
28 by Dissenting Opinion Kelly, J. following in the Appeals explained Court of As the knowledge of must share or have example, a defendant intent. criminal principal’s bank, walking to the and one Suppose persons two are And, they carry after asks the other to his briefcase. bank, opens it at the the owner of the briefcase arrive provided doubt aid up the bank. His friend no and holds bank, by holding up accompanying and assistance briefcase, subject not carrying the but is the thief and provided unless he as an aider and abettor assisting the intention of so the owner assistance with bank, holding up while either shar- the briefcase [Robinson, supra, slip ing or aware of his criminal intent. op 12-13.] at criminal
An
must have the same
aider
abettor
incorrectly faults
principal.
intent as the
The
v
on
Appeals
People Kelly10
the Court of
discussion
11
reliance on
point.
Appeals
Kelly
The Court of
misplaced.
Kelly
Court wrote:
not
728;
409 Mich
Aaron,
NW2d
(1980),this Court held that
kill,
great
the intention to do
“malice is the intention to
bodily harm,
disregard
or the
and willful
wanton
tendency
likelihoodthat the natural
of defendant’s behav-
great bodilyharm.
further hold
ior is to cause death or
We
enraged Pannell alone
the victim is that Pannell would ulti-
with
mately murder the victim.” Ante at 12.
261;
We therefore decided that the malice felony-murder merely conviction could not be inferred from felony. However, underlying intent to commit the we on went to state:
“The perpetra- facts and circumstances involved in the felony may kill, tion of a evidence an intent to an intent to great bodily harm, cause or a disregard wanton and willful of the tendency likelihood that the natural of defendant’s great bodily harm; however, behavior is to cause death or jury the conclusion must be left to the to infer from all the Id., [Emphasis pp evidence. [Kelly,supra 728-729.]” added. 272-273.] at
The finder of fact here concluded that defendant did requisite not have the intent kill the victim. Absent proof requisite intent, of the defendant’s conviction of second-degree murder must be reversed.
CONCLUSION
I agree with and completely support
the Court of
Appeals opinion
this matter.
I would affirm the
panel’s decision to reverse Robinson’s conviction of
I
murder. would reduce the charge of
which Robinson was convicted to assault with intent to
do great bodily harm less than murder and remand for
resentencing on that reduced charge.
notes
such an approach completely
the trial
ignores
findings
court’s
of fact.
example,
For
the trial court specifically found that
only
defendant
intended to
up
beat
the victim. Fur-
ther, the trial court found that the victim did not die
from
beating;
rather,
the victim died from a
gunshot wound after being
by
shot
Impor-
Pannell.
tantly,
the trial court also found that defendant did
not
intend for or know that Pannell was
going
shoot and kill
Therefore,
the victim.
the trial court’s
findings do not support
the imposition of criminal
liability for second-degree murder under an aiding
and abetting theory based on how MCL 767.39 has
been traditionally
interpreted.
See, e.g.,
Carines,
(1999)
750, 757;