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 Opinion Marilyn Kelly 

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 that the failure to instruct on this defense 

requires reversal only where the defendant satisfies 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-degree murder, MCL 750.317; and possession of a firearm 

during the commission of a felony, MCL 750.227b. 

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE 

The Court of Appeals summarized the underlying facts: 

On the evening of October 18, 2002, defendant and [Dennis] 

Jeffries met at an illegal gambling 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 present in the house 

then ran for the exits, except for Vance Claxton, 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. Defendant was trying to push the 

gun toward Jeffries, and Jeffries was trying to push the gun away. 

Claxton then looked away, and approximately two seconds later he 

heard a gunshot and saw Jeffries fall to the ground. 

About ten seconds after the shot, Claxton heard defendant 

say, “Man, I’m sorry. You know I didn’t shoot 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 involves a preserved, nonconstitutional error. If the 

defendant had failed to preserve the issue, the plain-error standard set forth in 

People v Carines, 460 Mich 750; 597 NW2d 130 (1999), would govern. 

2
 
Jeffries to the hospital. More than a month later, Jeffries died from 

complications arising from the gunshot 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 counted it. He then returned the money to 

his jacket pocket and gambled with smaller denominations. When Jeffries’ jacket 

and shirt were removed following the shooting, the money was missing from the 

jacket. 

Defendant was charged with first-degree premeditated murder, MCL 

750.316; first-degree felony murder, MCL 750.316; and felony-firearm. The court 

refused defendant’s request to read CJI2d 7.1, the standard jury instruction 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 other 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 going 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 other unlawful act. That’s why I 

didn’t give it. 

3
 
 

 

If 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-degree murder, as a lesser 

included offense of first-degree premeditated murder, 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 did conclude that the trial court had misread these 

cases, explaining: 

However, neither Morrin nor Hess precludes a defendant 

from receiving an instruction on accident as a defense to murder if 

there is evidence that the defendant’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, manslaughter, 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 manslaughter, 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 criminal negligence to be excused 

from a homicide charge that includes intent as one of its elements, 

such as murder. Accident is a viable defense to murder even if the 

defendant acted with criminal negligence. Neither Morrin nor Hess 

held that a defendant cannot be excused from murder if the death 

was an accident but was the result of the defendant’s criminal 

negligence. [265 Mich App at 51-52.] 

We agree with the Court of Appeals analysis. 

4
 
case requires reversal, we would conclude that defendant did not establish a 

miscarriage of justice and affirm his convictions.” 265 Mich App at 49. 

The prosecutor filed an application for leave to appeal in this Court. 

II. STANDARD OF REVIEW 

The question whether the Lukity/Rodriguez standard applies to the failure to 

instruct on the defense of accident is a question of law that we review de novo. 

People v Young, 472 Mich 130, 135; 693 NW2d 801 (2005). 

III. ANALYSIS 

In finding that the trial court had erred in refusing to instruct on the defense 

of accident, the Court of Appeals observed that the trial court had conceded that 

“‘there may not have been an intent to pull the trigger. 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 struggling for control of the gun 

when it discharged. After Jeffries was shot, defendant made 

statements indicating that he was sorry 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), along with several Court 

5
 
 

of 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 here was intentional or accidental was a central issue in 

this case, and that the failure 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 130 (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, the 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 establish 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 murder made it clear 

that a finding of accident would be inconsistent with a finding that 

defendant possessed the intent required for murder. Accordingly, 

were we not bound by Lester II and Ora Jones, we would conclude 

that defendant cannot demonstrate that it is more probable than not 

3

 See People v Glover, 154 Mich App 22; 397 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). 

6
 
that 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 Appeals assessment that the Lukity standard 

should apply in this case. This Court has previously applied Lukity in reviewing a 

trial court’s refusal to instruct on a defense theory. 

In Rodriguez, supra, the trial court failed to instruct the jury regarding a 

statutory tax exemption. We explained that “‘when a jury instruction is requested 

on any theories or defenses and is supported by evidence, it must be given to the 

jury by the trial judge.’” Rodriguez, supra at 472 (citation ommitted). Because 

the statutory exemption would have applied if the jury had believed the evidence 

introduced by the defendant, we concluded that the trial 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 the standard set forth in” 

Lukity. Id. at 473. Under Lukity, the defendant has the burden to demonstrate that 

a preserved, nonconstitutional error resulted in a miscarriage of justice. MCL 

769.26 sets forth a presumption that such an error does not warrant reversal 

“unless ‘after an examination of the entire cause, it shall affirmatively appear’ that 

it is more probable than not that the error was outcome 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 

7
 
 

 

 

474, 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 required to retreat before exercising deadly force 

in self-defense. We explained: 

A criminal defendant is entitled to have a properly instructed 

jury consider the evidence 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 court 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 court’s failure to give the requested 

instruction resulted in a miscarriage 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 determination regarding whether a failure to instruct 

on a defense theory requires reversal. As the Court of Appeals in this case 

correctly observed, Lester II and Ora Jones and their progeny fail 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 automatic 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...) 

8
 
 

We can discern no principled reason why the failure to instruct on the defense of 

accident should be reviewed under a different standard than 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 and (2) whether practical, real-world 

dislocations would arise from overruling the decision. Robinson v Detroit, 462 

Mich 439, 464-466; 613 NW2d 307 (2000). As discussed, we believe that Lester 

II and Ora Jones were wrongly decided because their holdings create essentially a 

rule of automatic reversal, which is inconsistent 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 (2002). 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 majority determined that the failure to instruct the jury 

regarding a necessarily lesser included offense undermined the reliability 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 automatic reversal rule of People v McCoy, 392 Mich 231; 

220 NW2d 456 (1974), because it contradicted MCL 769.26 and MCL 768.29. 

9
 
so embedded, accepted or fundamental to society’s expectations that overruling 

them would produce significant dislocations.” Robinson, supra at 466. It is 

apparent that defendant did not act in reliance on Lester II and Ora Jones when he 

produced an automatic handgun 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 after-the-fact awareness does not rise to the 

level of a reliance interest because to have reliance the knowledge must be of the 

sort that causes a person or entity to attempt to conform his conduct to a certain 

norm before the triggering event. Such a situation does not exist here.” Robinson, 

supra at 466-467. 

In addition, failing to overrule Lester II and Ora Jones would produce 

inconsistent rules regarding whether the failure 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 establishing that the error 

undermined the reliability of the 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 directing his actions.” Robinson, 

supra at 467. 

Thus, if the words of the statute 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.] 

10
 
 

Applying the Lukity/Rodriguez standard to this case, we agree with the 

Court of Appeals conclusion that defendant has not met his burden of 

demonstrating that the failure to instruct on the accident defense undermined the 

reliability of the verdict. As the Court of Appeals explained, “[t]he jury 

instructions explaining the intent element of murder made it clear that a finding of 

accident would be inconsistent 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 statutory involuntary manslaughter, MCL 750.329,6 

but instead concluded that defendant was guilty of second-degree murder. If the 

jury had any doubts regarding whether defendant had the requisite malice for 

second-degree murder, it could have convicted him of statutory involuntary 

manslaughter, which does not require a finding of malice. The jury instead found 

that defendant possessed a mental state that was greater than simply intentionally 

pointing a weapon at the victim. 

On the facts of this case, we conclude that defendant has not met his burden 

of demonstrating that the error affected the outcome of the proceedings. We 

6

 MCL 750.329, at the time relevant to this case, provided: 

. . . Any person who shall wound, maim or injure any other 

person by the discharge of any firearm, pointed or aimed, 

intentionally but without malice, at any such person, shall, if death 

ensue from such wounding, maiming or injury, be deemed guilty of 

the crime of manslaughter. 

11
 
therefore 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 Lester1

 and People v Ora Jones2 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 judgment of the Court of Appeals. 

LESTER AND ORA JONES 

Whenever the question whether 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 NW2d 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 defendant is entitled to have the jury 

weighing the evidence against him or her be properly instructed. 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 into the jury room. 

Lukity, supra at 509 (Cavanagh J., dissenting). 

THE FIRST PRONG OF ROBINSON 

The majority’s decision in this case represents 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 statement of the test is this: it is proper 

to overrule a decision if (1) the case was wrongly decided 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). 

2
 
 

In applying this test, we first ask whether Lester and Ora Jones were 

wrongly decided. The majority finds that they were. It opines that they are 

inconsistent with § 26 of the Code of Criminal Procedure, MCL 769.26, and 

People v Lukity and People v Rodriguez, cases decided many years later. 

MCL 769.26 “controls judicial review of preserved, nonconstitutional 

error.” Lukity, supra at 495. The question becomes whether Lester and Ora Jones 

are inconsistent with MCL 769.26, which has remained unchanged since it became 

effective in 1927. It provides: 

No judgment or verdict 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 jury, 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 appear 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 influenced 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 instruction where accident is a 

central issue results in a miscarriage of justice 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 instructed jury is fundamental to a criminal trial. Without the basic 

3
 
 

protection provided in Lester and Ora Jones, many criminal trials in this state 

would fail utterly to serve as a reliable vehicle for determining guilt. Arizona v 

Fulminante, 499 US 279, 310; 111 S Ct 1246; 113 L Ed 2d 302 (1991). 

THE SECOND PRONG OF ROBINSON 

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 presumption that the rule in Ora Jones has become 

fundamental to our system of justice. 

The majority states that “defendant did not act in reliance on Lester [] or 

Ora Jones when he produced an automatic handgun and pointed it at the victim.” 

Ante at 10. This characterization of the test for determining 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 Court of Appeals, issued January 16, 2001 

(Docket No. 218588); People v Fugate, unpublished opinion per curiam of the 

Court of Appeals, issued January 19, 1999 (Docket No. 204109); In re Evans, 

unpublished opinion per curiam of the Court 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 602; 307 NW2d 380 

(1981); People v Martin, 100 Mich App 447; 298 NW2d 900 (1980); People v 

Morris, 99 Mich App 98; 297 NW2d 623 (1980); People v Stanley Jones, 69 Mich 

App 459; 245 NW2d 91 (1976). 

4
 
 

when applied to precedent of the type involved here. However, it is not farfetched to say that defendant knew that someone might be accidently shot during 

his skirmish with Jeffries. He was entitled to rely on the fact that the judge would 

tell the jury that his defense was that there had been an accident. 

In addition, defense counsel had an embedded expectation that if he 

presented evidence of an accident at trial, the court would instruct the jury on that 

defense. But there is another major disruption to the justice 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 give 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. 

APPLICATION OF LUKITY 

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 defense did not 

undermine the reliability of the verdict against him. It relies on the fact that the 

court instructed the jury on statutory involuntary manslaughter. 

The majority hypothesizes that the jury had no doubts about defendant’s 

guilt of second-degree murder. Otherwise, it reasons, the jury would have 

5
 
 

convicted defendant of statutory involuntary 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 disregarded 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 jurors] an instruction that 

allowed them to agree with defendant’s view of the events . . . undermines the 

reliability of the verdict” and violates MCL 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 points throughout the trial in this case, 

defendant presented evidence that the shooting was an accident. Even so, the trial 

court failed to give defendant’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 agreed 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 instruct 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 this case, making the error 

anything but harmless. 

6
 
 

Therefore, just as in Silver, the failure here to give the instruction undermined the 

reliability of the verdict. 

This is emphasized by the 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 general concept of fair proceedings as recognized in Lukity and 

People v Carines, 460 Mich 750; 597 NW2d 130 (1999). 

CONCLUSION 

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 showing that the trial court’s failure to 

instruct the jury on the accident defense undermined the reliability of the verdict. 

The Court of Appeals judgment should be affirmed. 

 Marilyn Kelly 

Cavanagh, J., would deny leave to appeal. 

Michael F. Cavanagh 

7