# Opinion Chief Justice: Clifford W. Taylor Justices: Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED APRIL 26, 2006 PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

v No. 128168 FRANK JAMES HAWTHORNE, Defendant-Appellee.

________________ _______________ BEFORE THE ENTIRE BENCH PER CURIAM. The issue in this case is whether a court’s failure to instruct on the defense of accident requires automatic reversal of a defendant’s conviction where accident was a central issue in the case. We hold th at the failure to instru ct on this defense requires reversal only where the defendant sa tisfies the standard explicated in People v Lukity , 460 Mich 484; 596 NW2d 607 (1999), and People v Rodriguez ,463 Mich 466, 474; 620 NW2d 13 (2000). 1 In this case, defendant has not established that the alleged error undermined the reliability of the verdict. We therefore reverse the judgment of the Court of Appeals and reinstate defendant’s convictions of second-deg ree murder, MCL 750.317; and possession of a firearm during the commission of a felony, MCL 750.227b.
I. F ACTUAL B ACKGROUND AND P ROCEDURAL P OSTURE The Court of Appeals summ arized the underlying facts: On the evening of October 18, 2002, defendant and [Dennis] Jeffries met at an illegal gambli ng house and got into an argument over a $5 bet. When the argument escalated, defendant walked out of the room and returned with an automatic handgun. Two men tried unsuccessfully to disarm defendant. Everyone presen t in the house then ran for the exits , except for Vance Clax ton, who watched the encounter by peering around a wall. Jeffries said to defendant, “What you going to do with the gun? We supposed to be family. We supposed to be better than that . What, you going to shoot me?” Jeffries then challenged defendant to a fight. When defendant pressed the barrel of the gun into Jeffries’s chest, Jeffries grabbed defendant’s wrist and pushed him against the wall. Claxton saw defendant and Jeffries standing face-to-face and speaking while Jeffries held defendant’s wrist and they waved the gun around, pointing it in different directions. D efendant was trying to push the gun toward Jeffries, and Jeffries wa s trying to push the gun away. Claxton then looked away, and appr oximately two seconds later he heard a gunshot and saw J effries fall to the ground. About ten seconds after the shot, Claxton heard defendant say, “Man, I’m sorry. You know I didn’t sh oot you. The gun was on safety. I’m sorry.” Defendant found Claxton hiding in the bedroom and told him, “I shot Dennis by accident. Come apply pressure to his chest.” Defendant told Claxton to call 911. With defendant’s help, Claxton put Jeffries in a car. Claxton then drove

1 The case before us invo lves a preserved, noncons titutional error. If the defendant had failed to pres erve the issue, the plain-erro r standard set forth in People v Carines , 460 Mich 750; 597 NW2d 130 (1999), would govern.
2Jeffries to the hospital. More than a month lat er, Jeffries died from complications arising from the gunsh ot wound. [265 Mich App 47, 49-50; 692 NW2d 879 (2005).] It is also noteworthy that before he started gambling, Jeffries had removed a wad of $100 bills from his jacket and c ounted it. He then returned the money to his jacket pocket and gambled with smalle r denominations. Wh en Jeffries’ jacket and shirt were removed following the sh ooting, the money was missing from the jacket. Defendant was charged with firs t-degree premeditated murder, MCL 750.316; first-degree felon y murder, MCL 750.316; and felony-firearm. The court refused defendant’s request to read CJI2d 7.1, the stan dard jury in struction on accident as a defense to murder. The court cited People v Morrin , 31 Mich App 301; 187 NW2d 434 (1971), and People v Hess , 214 Mich App 33; 543 NW2d 332 (1995), and stated that under the authority of Hess and Morrin , if the accident occurred in connection with some ot her unlawful act, because that’s the way I’m reading those cases, then the accident defense is not available. It’s not available in this setting. I think we talked about this in chambers. Factually speaking, at a very minimum your client committed a felonious assault by goi ng into the living room, getting a gun, bringing it into the dining room and pointing it at the victim and threatening him. Now, there may not have been an intent to pull the trigger. The pulling of the trigger may have been an accident, but as I read Hess and Morrin , you’re not entitled to the accident instruction unless your client essentially has clean hands so to speak and was not otherwise engaged in some ot her unlawful act. That’s why I didn’t give it.

3If the Court of Appeals says I was wrong about that, well, so be it, but that’s the way I read those two cases. [2] The jury found defendant guilty of second-deg ree murder, as a lesser included offense of first-degree premeditated murd er, and felony-firearm. The Court of Appeals reversed the convictions, but urged this Court to review the precedent that it believed required the reversal in light of Lukity . The Court of Appeal stated: “Were we free to apply Lukity without regard to prior decisions of the Supreme Court that suggest that the instructional error that occurred in this

2 The Court of Appeals di d conclude that the tria l court had misread these cases, explaining: However, neither Morrin nor Hess precludes a defendant from receiving an instruc tion on accident as a defense to murder if there is evidence that the defenda nt’s actions were criminally negligent . Morrin and Hess merely explained that , for a defendant to be completely excused from killing a person (i.e ., to be acquitted of all charges of murder, mansla ughter, and careless, reckless, or negligent discharge of a firearm causing death, etc.), the death must be the result of an accident, and the defendant cannot have acted with criminal negligence. Hess, supra at 38-39, held that accident is not a defense to involuntary ma nslaughter, because involuntary manslaughter is not an intent crime and accident is subsumed within that offense. Thus, a defendant is only excused from involuntary manslaughter if he did not act with criminal negligence. But the defendant need not be free of cri minal negligence to be excused from a homicide charge that includes intent as one of its elements, such as murder. Accident is a viab le defense to mu rder even if the defendant acted with cri minal negligence. Neither Morrin nor Hess held that a defendant cannot be excused from murder if the death was an accident but was the resu lt of the defendant’s criminal negligence. [265 Mich App at 51-52.] We agree with the Court of Appeals analysis.
4case requires reversal, we w ould conclude that defenda nt did not establish a miscarriage of justice and affirm his convictions.” 265 Mich App at 49. The prosecutor filed an application fo r leave to appeal in this Court.
II. S TANDARD OF R EVIEW The question whether the Lukity / Rodriguez standard applies to the failure to instruct on the defense of acci dent is a question of law that we review de novo. People v Young , 472 Mich 130, 135; 693 NW2d 801 (2005).
III. A NALYSIS In finding that the trial court had erred in refusing to inst ruct on the defense of accident, the Court of Appeals observed that the trial court had conceded that “‘there may not have b een an intent to pull the trigg er. The pulling of the trigger may have been an accident . . . .’” 265 Mich App at 52. The Court of Appeals agreed with the trial court that evidence was presented to support the defense of accident: Defendant and Jeffries were stru ggling for control of the gun when it discharged. After Jeffries was shot, defendant made statements indicating that he was so rry and that he had fired the gun accidentally. He also helped get medical attention for Jeffries. [ Id. ]
Further, the Court of Appeals opined that this Court’s decisions in People v
Lester , 406 Mich 252; 277 NW2d 633 (1979) ( Lester II ), and People v Ora Jones , 395 Mich 379; 236 NW2d 461 (1975), overruled on other grounds in People v Cornell , 466 Mich 335, 357-358; 646 NW2d 127 (2002), al ong with several Court

5of Appeals cases, 3 mandate reversal for failure to give an accident instruction where accident was a central issue in the case. The Court of Appeals concluded that whether the shooting h ere was intentional or accidental was a central issue in this case, and that the fa ilure to instruct the jury with CJI2d 7.1 therefore constituted error requiring reversal of defendant’s convictions under Lester II and
Ora Jones

. Nonetheless, the Court of Appeals urged this Court “to examine the continued viability of Lester II and Ora Jones and their progeny in light of Lukity and People v Carines , 460 Mich 750; 597 NW2d 13 0 (1999).” 265 Mich App at
56. The Court of Appeals stated: Since Lester II and Ora Jones and their progeny were decided, our Supreme Court has set forth specific criteria that must be established before trial court error requires reversal. See Carines , supra at 774. In Lukity , supra at 494, our Supreme Court held that, to justify the reversal of a conviction in the case of preserved, nonconstitutional error, th e defendant has the burden of establishing that the error asserted resulted in a miscarriage of justice under a “more probable than not” standard. We conclude that application of Lukity to the present case would result in a different outcome than that reached in Lester II and Ora Jones and their progeny. In those pre- Lukity decisions, the courts did not place the burden on the defendants to esta blish that the errors required reversal. We conclude that the facts presented in this case fail to establish error requiring reversal under the Lukity standard. The jury instructions explaining the intent element of murd er made it clear that a finding of accident would be inconsistent with a finding that defendant possessed the intent requi red for murder. Accordingly, were we not bound by Lester II and Ora Jones , we would conclude that defendant cannot demonstrate th at it is more prob able than not

3 See People v Glover , 154 Mich App 22; 39 7 NW2d 199 (1986); People v Newman , 107 Mich App 535; 309 NW2d 657 (1981); People v Stanley Jones , 69 Mich App 459; 245 NW2d 91 (1976).
6that the trial court’s failure to give the instruction on accident was outcome determinative. Lukity , supra at 496. [265 Mich App at 56

- 57.] We agree with the Court of Ap peals assessment that the Lukity standard should apply in this case. Th is Court has previously applied Lukity in reviewing a trial court’s refusal to inst ruct on a defense theory.
In Rodriguez , supra , the trial court failed to in struct the jury regarding a statutory tax exemption. We explained th at “‘when a jury inst ruction is requested on any theories or defenses and is supported by evidence, it must be given to the jury by the tr ial judge.’” Rodriguez, supra at 472 (citation o mmitted). Because the statutory exemption would have applie d if the jury had believed the evidence introduced by the defendant , we concluded that the tr ial court had erred in failing to give the requested instruction. We did not, however, treat this error as subject to automatic reversal. Rather, we considered whether the error was harmless. We explained that “nonconstitutional preserved error is evaluated under th e standard set forth in” Lukity

. Id . at 473. Under Lukity , the defendant has the burd en to demonstrate that a preserved, nonconstitutiona l error resulted in a mis carriage of justice. MCL 769.26 sets forth a presum ption that such an erro r does not w arrant reversal “unless ‘after an examination of the enti re cause, it shall affirm atively appear’ that it is more probable than not that the error was ou tcome determinative.” Lukity , supra at 496 (quoting MCL 769.26) . “‘An error is deemed to have been “outcome determinative” if it undermined the reliability of the verdict.’” Rodriguez , supra at

7474, quoting People v Elston, 462 Mich 751, 756; 614 NW2d 595 (2000), quoting People v Snyder , 462 Mich 38, 45; 609 NW2d 831 (2000). Similarly, in People v Riddle , 467 Mich 116; 649 NW2d 30 (2002), we applied the Lukity / Rodriguez standard to the failure to instruct on the defense theory that the defendant was not requi red to retreat before ex ercising deadly force in self-defense. We explained: A criminal defendant is entitled to have a properl y instructed jury consider the evid ence against him. [ Rodriguez, supra at 472]; People v Mills , 450 Mich 61, 80-81; 537 NW2d 909 (1995). When a defendant requests a jury instruction on a theory or defense that is supported by the evidence, the trial c ourt must give the instruction. Rodriguez , supra at 472-473; Mills , supra at 81. However, if an applicable instruction was not given, the defendant bears the burden of establishing that the trial cour t’s failure to give the requested instruction resulted in a miscarri age of justice. MCL 769.26; Rodriguez , supra at 473-474; [ Lukity , supra at 493-494]. [ Riddle, supra at 124-125.] Our decisions in Rodriguez and Riddle make plain that the Lukity standard governs an appellate court’s determinati on regarding whether a failure to instruct on a defense theory requires reversal. As the Court of App eals in this case correctly observed, Lester II and Ora Jones and their progeny fa il to adhere to the standard set forth in Lukity and mandated by MCL 769.26. We therefore overrule those decisions to the extent they are inconsistent with our decision in this case. 4

4 We note that rules of auto matic reversal are disfavored. People v Graves , 458 Mich 476, 481; 581 NW2d 229 (1998); People v Belanger , 454 Mich 571, 575; 563 NW2d 665 (1997); People v Pickens , 446 Mich 298, 346; 521 NW2d 797 (1994); People v Grant , 445 Mich 535, 543; 520 NW2d 123 (1994); People v McCline , 442 Mich 127, 134 n 10; 499 NW2d 341 (1993); People v Mosko , 441 Mich 496, 502; 495 NW2d 534 (1992). (continued...) 8We can discern no principled reason why the failure to in struct on the defense of accident should be revi ewed under a different standard th an the defense theories at issue in Rodriguez and Riddle

. In deciding whether to overrule a precedent, we consider (1) whether the earlier decision was wrongly decided an d (2) whether practical, real-world dislocations would arise fro m overruling the decision. Robinson v Detroit , 462 Mich 439, 464-466; 613 NW2d 307 (2000). As disc ussed, we believe that Lester
II

and Ora Jones were wrongly decided because their holdings create essentially a rule of automatic reversal, which is inc onsistent with the text of MCL 769.26 and our decisions in Lukity, Rodriguez , and Riddle

. 5 Moreover, we can discern no practical, real-world dislocations that would arise from overruling Lester II and Ora Jones . Those decisions “have not become

(...continued) We reject the dissent’s claim that our opinion today is inconsistent with People v Silver, 466 Mich 386; 646 NW2d 150 (20 02). The majority’s opinion in that case did not purport to create a rule of automatic reversal. Rather, properly read, it is a case where the major ity determined that the fa ilure to instru ct the jury regarding a necessarily lesser included offe nse undermined the re liability of that defendant’s conviction.

5 See, e.g., People v Tucker , 469 Mich 903 (2003), where we stated: The Court of Appeals correctly applied the analysis found in People v Carines , 460 Mich 750 [597 NW2d 130] (1999), as the plain error rule of Carines, supra , has superseded the automatic reversal rule of People v Smith , 396 Mich 109 [240 NW2d 202] (1976). See, also, People v Young, 472 Mich 130, 142; 693 NW2d 801 (2005), where we overruled the auto matic reversal rule of People v McCoy , 392 Mich 231; 220 NW2d 456 (1974), because it cont radicted MCL 769.26 and MCL 768.29.
9so embedded, accepted or fund amental to society’s exp ectations that overruling them would produce signi ficant dislocations.” Robinson , supra at 466. It is apparent that defendant di d not act in reliance on Lester II and Ora Jones when he produced an automatic han dgun and pointed it at the victim. If anything, his awareness of such decisions would have arisen only after the shooting and the filing of charges against him. “Such aft er-the-fact awareness does not rise to the level of a reliance interest because to have reliance the knowledg e must be of the sort that causes a person or entity to attempt to confor m his conduct to a certain norm before the triggering event. Such a situati on does not ex ist here.” Robinson , supra at 466-467. In addition, failing to overrule Lester II and Ora Jones would produce inconsistent rules regardin g whether the failu re to instruct on a defense theory requires reversal. As we held in Rodriguez and Riddle , such an error requires reversal only where the defendant has met the burden of es tablishing that the error undermined the reliability of th e verdict. The decisions in Rodriguez and Riddle conform to the plain language of MCL 769.26 , and “it is to the words of the statute itself that a citizen first looks for guidance in directin g his actions.” Robinson , supra at 467. Thus, if the words of the statut e are clear, the actor should be able to expect, that is, rely, that they will be carried out by all in society, including the courts. In fact, should a court confound those legitimate citizen expectations by misreading or misconstruing a statute, it is that court itself that has disrupted the reliance interest. When that happens, a subsequent court, rather than holding to the distorted reading because of the doctrine of stare decisis, should overrule the earlier court’s misconstruction. [ Id .] 10Applying the Lukity / Rodriguez standard to this cas e, we agree with the Court of Appeals conclusion that d efendant has not met his burden of demonstrating that the failu re to instruct on the accide nt defense undermined the reliability of the verdict. As the Court of Appeal s explained, “[t]he jury instructions explaining the intent element of murder made it cle ar that a finding of accident would be inc onsistent with a finding that defendant possessed the intent required for murder.” 265 Mich App at 57. Further, the jury was instructed regarding the lesser offense of statutor y involuntary mansla ughter, MCL 750.329, 6
but instead concluded that defendant was guilty of second-deg ree murder. If the jury had any doubts regard ing whether defendant had the requisite malice for second-degree murder, it could have convicted him of statutory involuntary manslaughter, which does not require a findi ng of malice. The jury instead found that defendant possessed a mental state that was greater than si mply intentionally pointing a weapon at the victim. On the facts of this case, we conclude that defendant ha s not met his burden of demonstrating that the error affected the outcome of the proceedings. We

6 MCL 750.329, at the time rele vant to this case, provided: . . . Any person who shall woun d, maim or injure any other person by the discharge of a ny firearm, pointed or aimed, intentionally but without malice, at any such person, shall, if death ensue from such wounding, maiming or injury, be d eemed guilty of the crime of manslaughter.

11therefore reverse the judgment of the Court of Appeals and reinstate defendant’s convictions. Clifford W. Taylor Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

12________________ _______________ v S T A T E O F M I C H I G A N
SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
No. 128168 FRANK JAMES HAWTHORNE, Defendant-Appellee.

KELLY, J. ( dissenting ). The issue before the Court is whether we should disregard 30 years of Michigan law and overrule People v Lester 1 and People v Ora Jones 2 in light of People v Lukity, 3 and People v Rodriguez. 4 I dissent from the majority’s decision to do so, and I would affirm the judgm ent of the Court of Appeals.
L ESTER AND O RA J ONES Whenever the question wh ether there was an accident is central to a criminal case, a court’s failure to instruct the jury on the defense of accident

1 406 Mich 252; 277 NW2d 633 (1979).

2 395 Mich 379; 236 NW 2d 461 (1975), overruled on other grounds in People v Cornell, 466 Mich 335, 357-358; 646 NW2d 127 (2002).

3 460 Mich 484; 596 NW2d 607 (1999).

4 463 Mich 466; 620 NW2d 13 (2000).requires automatic reversal. Lester and Ora Jones established this law many years ago, and I would not overrule it. These two decisions recognize that a d efendant is entitled to have the jury weighing the evidence against him or he r be properly instru cted. They also recognize the difficulty a defendant has in meeting a “harmless error” standard of review in the event of an instructional mistake. To prove that the failure to give an instruction on the defense of accident was not harmless, the defendant must be able to prove the jury’s thought process. Yet, it is nearly impossible for anyone not in the jury room to know how a jury reached its verdict. Hence, it is one of the most basic tenets of our judicial system that a court cannot attempt to journey behind a jury’s verdict or in to the jury room. Lukity, supra at 509 (Cavanagh J., dissenting).
T HE F IRST P RONG OF R OBINSON The majority’s decision in this case rep resents a rejection of precedent. In Robinson v Detroit , 5 we articulated a two-part test for determining when it is proper for the Court to do so. A simplified st atement of the test is this: it is proper to overrule a decision if (1) the case was wrongly d ecided and (2) there has not been extensive reliance on the decision so that striking down the precedent would not produce practical real -world dislocations. Robinson, supra at 466.

5 462 Mich 439; 613 NW2d 307 (2000).

2In applying this test , we first ask whether Lester and Ora Jones were wrongly decided. The majority finds th at they were. It opines that they are inconsistent with § 26 of the Code of Criminal Pr ocedure, MCL 769.26, and People v Lukity and People v Rodriguez, cases decided many years later. MCL 769.26 “controls j udicial review of preserved, nonconstitutional
error.” Lukity, supra at 495. The question becomes whether Lester and Ora Jones are inconsistent with MCL 769.26, whic h has remained unchang ed since it became effective in 1927. It provides: No judgment or verdic t shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the ju ry, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively a ppear that the error complained of has resulted in a miscarriage of justice. This statute places the burden on the defendant to prove that a miscarriage of justice occurred. Lukity stated that what a defendant must prove is that more probably than not a preserved nonconstitutional error in fluenced the outcome of the trial. Lukity, supra at 495. It is my belief that Lester and Ora Jones do not conflict with MCL 769.26. Rather, they recognize that the failure to give the inst ruction where accident is a central issue results in a miscarriage of ju stice and undermines the reliability of the verdict. Because the error undermines the reliability of the verdict, it cannot be harmless. People v Krueger, 466 Mich 50, 54; 643 NW2d 223 (2002). The right to a properly instruct ed jury is fundamental to a cri minal trial. Without the basic

3protection provided in Lester and Ora Jones , many criminal trials in this state would fail utterly to serve as a re liable vehicle for determining guilt. Arizona v Fulminante , 499 US 279, 310; 111 S Ct 1246; 113 L Ed 2d 302 (1991).
T HE S ECOND P RONG OF R OBINSON This Court decided Ora Jones in 1975. The rule expressed there has been followed by numerous decisions of the Court of Appeals. 6 Yet, the majority insists that it has not become embedded or fundamental to societal expectations, that overruling it would not produce significant real-world dislocations. Surely 30 years of reliance creates a pres umption that the rule in Ora Jones has become fundamental to our syst em of justice. The majority states that “defenda nt did not act in reliance on Lester [] or
Ora Jones when he produced an automatic handg un and pointed it at the victim.”
Ante at 10. This characteriza tion of the test for det ermining whether overruling precedent produces significant real-world dislocations is obviously ridiculous

6 E.g., People v Swaizer , unpublished opinion per curiam of the Court of Appeals, issued June 16, 2005 (Docket No. 253443); People v Brandt , unpublished opinion per curiam of the C ourt of Appeals, issu ed January 16, 2001 (Docket No. 218588); People v Fugate , unpublished opinion per curiam of the Court of Appeals, issued Janu ary 19, 1999 (Doc ket No. 204109); In re Evans , unpublished opinion per curiam of the Cour t of Appeals, issued February 27, 1998 (Docket No. 203019); People v Glover , 154 Mich App 22; 397 NW2d 199 (1986); People v Peery , 119 Mich App 207; 326 NW2d 451 (1982); People v Owens , 108 Mich App 600; 310 NW2d 819 (1981); People v Newman , 107 Mich App 535; 309 NW2d 657 (1981); People v Ritsema , 105 Mich App 60 2; 307 NW2d 380 (1981); People v Martin , 100 Mich App 447; 298 NW2d 900 (1980); People v Morris , 99 Mich App 98; 2 97 NW2d 623 (1980); People v Stanley Jones , 69 Mich App 459; 245 NW2d 91 (1976).

4when applied to precedent of the type involved here. Ho wever, it is not far

fetched to say that defenda nt knew that someone might be accidently shot during his skirmish with Jeffries. He was entitle d to rely on the fact that the judge would tell the jury that his defense was th at there had been an accident. In addition, defense co unsel had an embedded ex pectation that if he presented evidence of an accident at trial, the court w ould instruct the jury on that defense. But there is anoth er major disruption to the ju stice system caused by the overturining of Lester and Ora Jones : Now an innocent defendant can be convicted if unable to carry the enormous burden of proving a different outcome but for the judge’s failure to gi ve an accident instruction. In summary, Lester and Ora Jones do not contradict MCL 769.26

. Moreover, the majority cannot gainsay that dislocations will arise after 30 years of reliance on Ora Jones by the courts of this state.
A PPLICATION OF L UKITY Notwithstanding my belief that the error involved in this case always requires automatic reversal, the majority’s ruling in Lukity requires it. The majority in this case was the same majority in Lukity. It states that the failure here to instruct the jury on Frank Hawthorne’s accident defen se did not undermine the reliability of the verdict against him. It relies on the fact that the court instructed the jury on stat utory involuntary manslaughter. The majority hypothesizes that the jury had no doubts about defendant’s guilt of second-degree murd er. Otherwise, it reasons , the jury would have

5convicted defendant of statutory involunt ary manslaughter. The majority believes that, because the jury found that defendant’s intent was not simply to point a weapon at the victim, the jury would have disregard ed an accident defense instruction. That is sheer guesswork. Only four years ago, this Court rejected the very logic used by the majority

now. People v Silver , 466 Mich 386; 646 NW2d 150 (2002). 7 Silver held that it was not harmless error for the trial court to fail to instruct the jury on a lesser included offense. It reasoned that “[n]ot to give [the ju rors] an instruction that allowed them to agree with defendant’s vi ew of the events . . . undermines the reliability of the verdict” a nd violates MC L 768.32(1). Id. at 393. The majority does not and cannot reconcile its opinion here with its pronouncement in Silver

. 8 It is undisputed that, at various poin ts throughout the tr ial in this case, defendant presented evidence th at the shooting was an acci dent. Even so, the trial court failed to give defen dant’s requested accident instruction. As in Silver, defendant was thereby deprived of a jury instruction on his view of the events.

7 There are several concurring and dissenting opinions in Silver. Justices Taylor, Young, Cavanagh, and I comprised the majority. We ag reed that the same logic that the majority uses in this case is improper.

8 The majority argues that this case does not conflict with Silver because the automatic reversal rule was not involved in Silver . The argument is unpersuasive. In Silver , the failure to properly in struct the jury on the defendant’s version of events was enough to undermine the jury’s verdict. That same failure to properly instruct equally undermines the jury’s verdict in th is case, making the error anything but harmless.

6Therefore, just as in Silver, the failure here to give th e instruction undermined the reliability of the verdict. This is emphasized by th e majority’s supposition about the rationale used by the jury in its verdict. Such a guessing game is inconsistent with this Court’s precedent and the ge neral concept of fair pro ceedings as recognized in Lukity and People v Carines, 460 Mich 750; 59 7 NW2d 130 (1999).
C ONCLUSION I would not overrule the 30 years of precedent laid down by Lester and Ora
Jones. Neither of these cases is inconsistent with MCL 769.26. Also, I would find that defendant met his burden of show ing that the trial court’s failure to instruct the jury on the accident defense undermined the reliability of the verdict. The Court of Appeals judg ment should be affirmed. Marilyn Kelly Cavanagh, J., would deny leave to appeal. Michael F. Cavanagh

7