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________________________________ Michigan Supreme Court Lansing, Michigan 48909

Chief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

Stephen J. Markman

FILED JUNE 20, 2003

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

v No. 120630 RICHARD J. MENDOZA, Defendant-Appellee.

BEFORE THE ENTIRE BENCH YOUNG, J. Defendant was charged with first-degree murder, MCL 750.316, but convicted by a jury of second-degree murder, MCL 750.317. The Court of Appeals reversed defendant’s conviction andremanded the case for a new trial, reasoning that the t ria l court erred when it declined to give an involuntarymanslaughter instruction. This Court granted leave to appeal to consider whether manslaughter is an “inferior” offense of murder under MCL 768.32(1), and if so, whether a rational viewof the evidence supported an instruction in this case. We conclude that manslaughter is an inferior offense of murder. However, an involuntary-manslaughter instruction was not appropriate in this case because a rational view of the evidence did not support it. Accordingly, we reverse the judgment of the Court of Appeals and reinstate defendant’s

convicti on. To the extent that People v Van Wyck , 402 Mich 266; 262 NW2d 638 (1978), and its progeny conflict with this opinion, they are overruled. I. F ACTS AND P ROCEDURAL H ISTORY Defendant and codefendant Ivan Tims visited the home of victim William Stockdale and Stockdale’s nephew, Thurman Chillers, with the intent to purchase marijuana. Tims initially waited outside in the car while defendant discussed the price of the drugs with Stockdale and Chillers in the house. Agreeing on a price, defendant indicated to Stockdale that he had to return to the car to get additio nal money. Whendefendant returned to the hou se, he was accompanied by Tims. Both men brandished handguns. Chillers testified that, upon entering the home, defendant instructed Tims to “shoot him.” In response, Tims al ter nately pointed his gun at Chillers and Stockdale. Stockdale, in turn, rushed at defendant, grabbed defendant’s gunand swung it downwards. Chillers ran out of t he house.

2As he ran, he saw Stockdale “tussling” with defendant. Chillers further testified that he heard one shot while he was inthe house and four or five more shots when he was outside. Inthe end, Stockdale was shot twice, once in the leg and once in the chest. The chest wound proved fatal. Defendant was charged with first-degree murder, MCL 750.316, and possession of a firearm during the commission of

a felony, MCL 750.227b. His defense was that Tims shot Stockdale. Defendant elicited testimony from various witnesses establishing that defendant was not in the house whenthe victim was fatally wounded and that the fatal bullet came from a gun traceable to Tims. At the close of proofs, defendant requested instructions for voluntary and involuntary manslaughter, MCL 750.321, and careless, reckless, or negligent discharge of a firearm, MCL 752.861. The trial court denied the requests and instructed the jury on first-degree murder, MCL 750.316, and seconddegree murder, MCL 750.317. Defendant was convicted of second-degree murder and felony-firearm. The Court of Appeals reversed defendant’s conviction and remandedthe case for a new trial. The panel tre ated the manslaughter-instructionrequests as requests for instructions

ona “cognate” lesser included offense and concluded that the trial court erred in refusing to give the involuntary3manslaughter instruction because there was evidence from which the jury could conclude that the victim’s death was unintended and occurred while defendant was e ngaged in an unlawful act not amounting to a felony. Slip op at 2. The prosecutor applied for leave to appeal. 1 We granted leave to consider whether manslaughter is an inferior offense of murder within the meaning of MCL 768.32 and, if so, whether

aninvoluntary-manslaughter instruction was supported by a rational view of the evidence. II. S TANDARD OF R EVIEW Whether manslaughter is an inferior offense of murder withinthe meaning of MCL 768.32 is a question of law that the Court reviews de novo. Weakland v Toledo Engineering Co , 467 Mich 344, 347; 656 NW2d 175 (2003). III. A NALYSIS A. MCL 768.32 MCL 768.32 governs inferior-offense instructions. Subsection 1 provides in pertinent part:

. . .[U]pon an indictment for an offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense inthe degree charged inthe indictment and may find the accused person guilty of a degree

1 Defendant did not cross-appeal to challenge the judgment of the Court of Appeals affirming the trial court’s decision not to give instructions on voluntary manslaughter or careless use of a firearm. 4of t hat offense inferior to that charged in the indictment, or of an attempt to commit that offense. We recently examined this statute in Peo ple v Cornell , 466 Mich 335; 646 NW2d 127 (2002). 2 In Cornell , the Court considered whether necessarily included lesser offenses 3 and cognate lesser included offenses 4 were “inferior” offenses under MCL 768.32. In consideration of this issue, we examined the meaning of the word “inferior”: “We believe that the word ‘inferior’ in [MCL 768.32] does not refer to inferiori ty in the penalty associated with the offense, but, rather, to the absence of an element that distinguishes the charged offense from the le sser offense. The controlling factor is whether the lesser offense canbe proved by the same facts that are used to establish the charged offense.” [ Cornell , supra at 354, quoting People v Torres (On Remand) , 222 Mich

2 The dissent criticizes the construction of MCL 768.32 set forth in Cornell , arguing that the Court should apply the dictionary definition of “inferior.” We are confident that we applied the appropriate canon of statutory construction in c onstr uing MCL 768.32 by giving “inferior offense” its common-law meaning when it was codified by the Legislature. See Pulver v Dundee Cement Co , 445 Mich 68, 75; 515 NW 2d 728 (1994)(“words and phrases that have acquireda unique meaning at common law are int erpreted as having the same meaning when used in statutes dealing with the same subject”).

3 Necessarily included lesser offenses are offenses in whichthe elements of the lesser offense are completely subsumed in the greater offense. Cornell , supra at 356.

4 Cognate offenses share several elements, andare of the same class or category as the greater offense, but the cognate lesser offense has some elements not found in the greater offense. Cornell , supra at 344. 5App 411, 419-420; 564 NW2d 149 (1997)].

Re lying on this definition of “inferior,” this Court concluded that MCL 768.32 only permitted cons idera tion of necessarily included lesser offenses. Cornell , supra at 353­ 354. Thus, we held that an inferior-offense instruction is appropriate only if the lesser offense is necessarily included inthe greater offense, meaning, all the ele ments of the lesser offense are included in the greater offense, and a ratio nal view of the evidence would support such an instruction. 5 Id. at 357.

5 The dissent criticizes the majority opinion for adopting “ob iter dictum” from Cornell to conclude that inferior offenses are limited to necessarily included lesser offenses. We disagree with this mischaracterization of Cornell ’s analysis. In Cornell , the Court was charged wit h the task of construing MCL 768.32(1), because MCL 768.32(1) governs when instructions are given for “inferior” offenses. To that end, we expressly adopted Justice C OLEMAN ’s dissent inJones , infra , whichwould foreclose consideration of cognate lesser included offenses. Cornell , supra at 353. See also Corn ell , s upra at 356 n 9, in which we state, “as we have already explained, the wor ding of MCL 768.32 also limits consideration of lesser offenses to necessarily included lesser offenses.” We then expressly held that a requested instruction on a necessarily includedlesser offense is proper if the charged greater offense req uires a jury to find a disputed factual element that is not part of the lesser offense and a rational view of the evidence would support it. Id. at 357 . Accordingly, we disagree with the dissent’s characterization of the Cornell analysis as “obiter dictum.” Rather, the Cornell discussion of the limits of MCL 768.32 was central to our construction of the statute and thus central to the resolution of the issues before the Cornell Court. 6B. M ANSLAUGHTER I S A N I NFERIOR O FFENSE O F MURDER Manslaught e r is an inferior offense of murder because manslaughter is a necess ar ily included lesser offense of murder. 1. T HE E LEMENTS O F C OMMON -L AW MURDER A ND M ANSLAUGHTER Common-law murder encompasses all killings done with malice aforethought and without justification or excuse. People v Scott , 6 Mich 287, 292-293 (1859). See also People

v

Potter , 5 Mich 1, 6 (1858)(“Murder is where a pers on of soundmemory and discretion unlawfully ki lls any reasonable creature in being, in the peace of the state, with malice prepense or aforethought, either express or implied.”). First-de gree murder is defined in MCL 750.316. 6 All

6 MCL 750.316 provides in pertinent part: (1) A person who commits any of the following is g uilt y of first degree murder and shall be punished by imprisonment for life: (a) Murder perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing. (b) Murder committed in the perpetration of, or attempt to perpetrate, arson, criminal sexual conduct in the first, se cond, or third degree, childabuse inthe first degree, a major controlled substance offense, robbery, carjacking, breaking andentering of a dwelling, home invasion in the first or se cond degree, larceny of any kind, extortion, or kidnapping. (c) A murder of a peace officer or a correct ion s 7other murders are murders in the second degree. MCL 750.317. See also People v Goecke , 457 Mich 442, 463-464; 579 NW2d 868 (1998), which enumeratedthe elements of second-degree murder

as (1) death, (2) caused by defendant’s act, (3) with malice, and (4) without justification. Manslaughter is murder without malice. See Potter , supra at 9 (noting that without malice aforethought, “a kil ling wouldbe only manslaughter, if criminal at all”). See also People v Palmer , 105 Mich 568, 576; 63 NW 656 (1895), remarking: “Manslaughter is perfectly distinguishable from murder, in this: That though the act that causes death be unlawful or willful, though attended with fatal results, yet malice, either expressed or implied, which is the very essence of murder, is to be presumed to be wanting in manslaughter.” [Quoting the trial court jury instructions.] The common law recognizes two forms of manslaughter: voluntary

officer committed while the peace officer or corrections officer is lawfully engaged in the performance of any of his or her duties as a peace officer or corrections officer, knowing that the peace officer or correcti ons o fficer is a peace officer or corrections officer engaged in the performance of his or her duty as a peac e offi cer or corrections officer. Although first-degree murder is defined by statute, the statute is understood to include the common-law definition of murder. See People v Riddle, 467 Mich 116, 125-126; 649 NW2d 30 (2002). See also People v Utter , 217 Mich 74, 86; 185 NW 830 (1921). 8andinvoluntary. People v Townes , 391 Mich 578, 589; 218 NW2d 136 (1974). Common-law voluntary manslaughter is defined as: [T]he act of killing, though intentional, [is] committed under the influence of passion or in heat of blood, produced by an adequ ate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reasonwas disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition . . . .[ Maher v People , 10 Mich 212, 219 (1862).] See also Townes , supra at 590 (“A defendant properly convicted of voluntary manslaughter is a person who has acted out of a temporary excitement induced by an adequate provocation and not from the deliberation and reflectionthat marks the crime of murder.”). Thus, to show voluntary manslaughter, one must show that the defendant killed in the heat of passion, the passionwas caused by adequate provocation, and there was not

a lapse of time during which a reasonable person could control his passions. See People v Pouncey , 437 M ich 3 82, 389; 471 NW2d346 (1991). 7 Signifi cant ly, provocation is not an element of voluntary manslau ghter. See People v Moore , 189

7 Inaddition to common-law manslaughter, the Legislature has also determined that manslaughter shall exist in several ot her circumstances. See, e.g., MCL 750.322 (the willful killing of an unborn child by injury to its mother), MCL 750.323 (the killing of a quick child by use of medicine or an instrument , and MCL 750.329 (a killing committed without malice by means of an intentionally aimed firearm). 9MichApp 315, 320; 472 NW2d1 (1991). Rather, provocation is the circumstance that negates the presence of malice. Scott , supra at 295. Involuntary manslaughter is the unintentional killing of another, without malice, during the commission of an unlawful act not amounting to a felony and not naturally tending to

cause great bodily harm; or during the commission of some la wful act, negligently performed; or in the neglige n t omission to perform a legal duty. See Townes , supra at 590. See also People v Helfin , 434 Mich 482, 507-508; 456 NW2d 10 (1990)(opinion by R ILEY , C.J.).

2. T HE S OLE E LEMENT D ISTINGUISHING M ANSLAUGHTER A ND MURDER I S M ALICE Anexamination of the historical development of homicide l aw informs this Court that manslaughter is a necessa ril y includedlesser offense of murder because the element s o f manslaughter are included in the offense of murder.

a. H OMICIDE I N E NGLISH C OMMON L AW Inearly English common law, a killing was either justifiable homicide; excusable murder committed by misadventure or accident, or in self-defense ; or capital murder, characterized by “malice aforethought” and punishable by death. See 2 Pollock and Maitland, The History of English Law (Cambridge: University Press, 1952), ch VIII, Crime and Tort, § 2, p 485. However, during the fourteenth and

10fifteenthcentur ie s, an exemption called the “benefit of clergy” was widely used as a device to mitigate mandatory deathsentences. Hall, Legal ficti ons and moral reasoning: Capital punishment and the mentally retarded defendant after Penry v Johnson, 35 Akron L R 327, 353 (2002). The “benefit of clergy” was an exemption that allowed an offender to be sentenced by the ecclesiastical courts, which did not impose capital punishment. 8 Though it was initially intendedto benefit clergy, it also benefitted persons who

c ould s atisfy its literacy test. See Kealy, Hunting the dragon: Reforming the Massachusetts murder statute , 10 B U Pub Int L J 203, 205-206 (2001). Thus, it was not long before persons other than clerics claimed the exemption, so that the “be nefit of clergy” exemption benefitted anyone who co ul d read. See Justice Harlan’s discussion in McGautha v California , 402 US 183, 197; 91 S Ct 1454; 28 L Ed 2d 711 (1971), noting that although all criminal homicides were prima facie capital cases, the “benefit of clergy” was available to almost any man who could read. In response to the exemption’s widespread availability, statutes were passed t hrou ghout the fifteenth and sixteenth

8 The “benefit of clergy” was a poli tical compromise be tween the state and the church, intended to ensure errant clerics who were convicted in the royal court were turned over to the ecclesiastical courts for sentencing. 11centuries proclaiming the exemption unavailable for homicides committedunder particularly reviled circumstances, collectively termed “murder with malice aforethought.” Moreland, The Law of Homicide (Indianapolis: The Bobbs-Merrill Co, Inc, 1952), ch 2, The Development of Malice Aforethought, p 9. The “benefit of clergy” remained available, however, for offenders convicted of less culpable homici des. Id. Thereafter, unjustified and unexcused homicide was divided into two sep arate crimes: “wilful murder of malice aforethought”, a capital offense for which the “benefit of clerg y” was unavailable, and manslaughter. Plucknett, A Concise History of the Common Law (New York: The Lawyers Co- Operative Pub Co, 1927), ch 2, The Felonies, pp 395-396. The critical diff eren ce between murder and manslaughter was the presence or absence of “malice aforethought.” Moreland, supra at 10. b. “M ALICE A FORETHOUGHT ” The phrase “malice aforethought” has evolved over the

cen turies. During the late fifteenth and early sixteenth centuries, “malice aforethought” meant that one possessed an intent to kill well in advance of the act itself. Id. at 10. Notably, the emphasis was on “aforethought,” so that the critical difference between capital and noncapital murder was the passage of time between the initial formulation of th e

12intent to kill and the act itself. Moylan, Criminal Homicide Law (Maryland Institute for Continuing Professional Education of Lawyers), ch 2, § 2.7. The term “malice” alone had little significance beyond meaning an intent to commit an unjustified and unexcusable killing. Id. The p urpose of the “malice aforethought” element was to distinguish between deliberate, calcul ated homicides and homicides committed in the heat of passion. Kealy, supra at 206. As more and more defendants claimed they lacked an intent to kill befo re the act was committed, juries and courtsincreasingly rejected this argument. The result was a caseby-case “semantic erosion” of the term “aforethought,” until “malice aforethough t” m eant nothing more than the intent to kill had to exist at the time the act was committed. Perkins & Boyce, Criminal Law (3rd ed), Murder, § 1, p 58 (“[a]s case after case came before the courts for determination . . . there came to be less and less emphasis upon the notion of a well-laid plan. And at the present day, the only requirement inthis regard is that it must not be an after thought”). There was, consequently, a parallel erosion of the distinction between capital murder, for which aforethought was required, and noncapital homicide, for which it was not. Interestingly, although the English courts grew weary of t he o ft abused “lack of aforethought” defense, it was

13nevertheless evident that there was still some interest in distinguishing between a homicide committed in “cold-blood” and one committed under circumstances that mitigated one’s culpability. To express this distinction, the focus shifted from “aforethought” to “ma lice.” Moreland, supra at 11 (“[t]he law of homicide seems thus to have now progressed from

a place where the mental element was of no importance to a place where at the beginning of the seventeenth century it had become a factor of prime importance”). Because there was a need to distinguish the most serious homicide from the rest, and because “aforethought” no longer had legal significance, mal ice evolved from being merely an intent to kill to als o evidencing the absence of mitigating circumstances. Moylan, sup ra at § 2.7. Consequently, the presence of malice became both synonymous with the absence of mitigating circumstances and the sole element distinguishing murder from manslaughter. We glean from our examination of manslaughter’s historical development that manslaughter is defined to reflect the absence of malice. Thus, the only element distinguishing murder from manslaughter is malice. 3. M ANSLAUGHTER I S A N ECESSARILY L ESSER I NCLUDED O FFENSE O F MURDER A

necessarily lesser included offense is an offense whose el ements are completely subsumed in the greater offense.

14Cornell , supra at 356. Regarding voluntary manslaughter, both murder and voluntary manslaughter require a death, caused by defendant, witheither an intent to kill, an intent to commit great bodily harm, or an intent to create a very high risk of death

or great bodily harm with knowledge that death or great bodily harm was the probable result. However, the ele men t distinguishing murder from manslaughter–malice–is negated by the presence of provocation and heat of passion. See Scott , supra at 295. Thus, we conclude, the elements of voluntary manslaughter are included in murder , wi th murder possessing the single additional element of malice. Regarding involuntary manslaughter, the lack of malice is evidenced by involuntary manslaughter’s diminished mens rea, which is included in murder’s greater mens rea. See People v Datema , 448 Mich 585, 606; 533 NW2d 272 (1995), stating: “[P]ains should be taken not to define [the mens rea required for involuntary manslaughter] in terms of a wanton and wilful disregard of a harmful conseq uenc e known to be likely to result, because sucha state of mind goes beyond neg ligence and comes under the head of malice .” Unlike murder, involuntary manslaughter contemplates an unintended result and thus requires something less than an intent to do great bodily harm, an intent to kil l, or the wanton and wilful disregardof its natural consequences. [Citations omitted; emphasis added.] See als o United States v Browner , 889 F2d 549, 553 (CA 5,

151989), stating, “In contrast to the case of vol unta ry manslaughter . . . the absence of malice in involunt ar y manslaughter arises not because of provocation induced passion, but rather because the offender’s mental state is not sufficiently culpable to reach the traditional malice requirements.” Th us, we conclude that the elements of involuntary manslaughter are included in the offense of murder because involuntary manslaughter’s mens rea is includ ed i n murder’s greater mens rea. Accordingly, w e hold the elements of voluntary and invo lu ntary manslaughter are included in the elements of murder. Thus, both forms of manslaughter are nec essarily includedlesser offenses of murder. Because voluntary and involuntary manslaughter are necessarily included lesser offenses, they are also “inferior” offenses within the scope of MCL 768.32. Consequently, when a defendant is charged with murder, an instruction for voluntary and involuntary manslaughter must be given if supported by a rational view of the evidence. Cornell , supra . 4. T ODAY ’ S H OLDING I S C ONSISTENT W ITH E ARLY M ICHIGAN C OMMON L AW Today’s holding is consistent withour courts’ historical understanding of the law of murder. Michigan courts have historically concluded that a manslaughter instruction is

16appropriate on a murder charge if a manslaughter instruction is supported by a rational view of the evidence. See, e.g., Hanna v People , 19 Mich 316, 321 (1 869)(i n consideration of MCL 768.32's similarly worded predecessor, “without this provision, the common law rule would, under the statute, dividing murder into degrees, have authorized a conviction not only for murder in the second degree, but for manslaug hte r also, under an indictment for murder in the first degree, all these being felonies included inthe charge ”)(emphasis added) . See People v Treichel , 229 Mich 303, 307-308; 200 NW 950 (1924), stating: This Court has repeatedly held, where the charge as laid includes murder in the first degree, and the proofs establish suchdegree, and no lesser degree, it is not error for the court to ins truct the j ury th at, in order to convict, murder in the first degree must be found. But this court has not held, under a charge like here laid, the court must instruct the jury to fin d mu rder in the first degree or acquit. Whether such an instruction may be given or n ot depends upon the evidence. [Emphasis in original.] [Inthis case, the] information charged murder inthe first and second degrees, and this was inclusive of manslaughter. The evidence left it openfor the jury to find defendants guilty of manslaughter. See also People v Droste , 160 Mich 66, 78-79; 125 NW 87 (1910)(concluding that the trial court was “clearly warranted” in instru cting the jury on manslaughter in a murder case because a jury could have concluded there was sufficient

17intoxicationor passion to “rob [defendant’s] act of the necessary elements of murder”); People v Andrus , 331 Mich 535, 546-547; 50 NW2d 310 (1951)(remarking that it was proper for the court to submit the less er inc luded offenses of seconddegree murder and mansl aughte r because the evidence was sufficient to support the offense). It was not until this Court overlooked MCL 7 68.32, and introduced“cognate” lesser included offenses, that the relationship between manslaughter and murder became muddled. In People v Jones , 395 Mich 379; 236 NW2d 4 61 (1975), this Court, without consideration of MCL 768.32, recognized a new category of lesser included offenses called “cognate” offenses. Cognate offenses differed from necessarily included lesser offenses in that cognate offenses share withthe higher offense se veral elements and are of the same class or category, but they contain elements not found in the highe r offense. See Cornell , supra at 344-346. Faced with a category of lesser included offenses not previously recognized inMichigan, this Court, in VanWyck , supra , concluded that manslaughter was a cognate lesser included offense of murder: We hold that manslaughter is not a necessarily includedoffense within the crime of murder but that it may none thel ess be an included offense if the e vidence adduced at trial would support a verdict of guilty for that crime.

18As we noted in People v Ora Jones, supra : “The common-law definition of lesser included offenses is that the lesser must be such that it is impossible to commit the greater without first having committed the lesser.” [Citation omitted.] * * * [Withregard to the murder/manslaughter relationship], [t]he absence of mitigating cir cums tances need not be established in order to convict one of first- or second-degree murder. Consequently, it cannot be said voluntary manslaughter is a necessarily included offense withinthe crime of murder; it is incorrect to state that it is impossible to commit first - o r second-degree murder without having first committed manslaughter. [ Van Wyck , supra at 268-269.] Notably, the Van Wyck Court failed to discuss earlier commonlaw decisions characterizing manslaughter as a lesser included offense of murder before cognate offenses were recognized. We also note that the Van Wyck Court did not give any

con side rationto the unique relationship between murder and manslaughter. For the reasons discussed above, we conclude manslaughter is a necessarily included lesser offense of murder. We further conclude that Van Wyck ’s analysis is flawed inasmuch as it is premisedona body of law recognizing cognate lesser included offenses in contravention of MCL 768.32. Accordingly, to the ext ent that Van Wyck and its progeny are inconsistent with this opinio n and our opinion in Cornell , they are expressly overruled.

19C. A N I NVOLUNTARY -M ANSLAUGHTER I NSTRUCTION W AS N OT W ARRANTED Having concluded that manslaughter is an inferior offense of murder because it is a necessarily included lesser offense, we now consider whether the trial court erred in refusing to give an involuntary-manslaughter instruction. Aninferior-offense instruction is appropriate only when

a rational view of the evidence supports a conviction for the lesser offense. Cornell , supra at 357. I n this cas e, the Court of Appeals concluded there was suf fici ent evidence to support an involuntary-manslaughter instruction. In reaching this conclusion, the Court relied on defendant’s statement to the police recounting what happened: I was at a gas s tation on Seven Mile near Hoover when Ivan pulled u p i n a gray newer model car and asked me did I want some bud. Iv an as ked me didI have half onit. I said, yes. I then got into the car with Ivan. Ivan stopped by one house, then he went to the bud house. When we got to the house, Ivan stayed in the car and I went to the house. When I got to t he fr ont door, there was a big guy coming out and motioned for me just to go onin. The guy that let me in continuedtalking to a big dark-skinned guy with a deep voice. Another guy, kind of frail [Chillers], sitting in a love seat asked me how many I needed. I responded by s ayi ng, just one back. That’s when Ivan came to the door. Ivan started talking to the guy with the deep voice. The guy that let me in then left. I started to get my stuff from the frail guy. While I’m getting my stuff, I heard some tussling. I look back and Ivan was tussling with the bi g g uy withthe deep voice. They were tussling over a handgunwith a dark barrel. While they were tussling, I heard approximately two shots. They thenfell into a corner over a chair. I then heard the frail guy holler. He had pulled out a shiny 20revolver and pointed it at Ivan and the guy he was tussling with. I then tried to knock the gun away from [Chillers]. As I was attempting to knock the gunaway from [Chillers], he pulled the trigger . I thentried to run but I tripped over Ivan . . . . [Emphasis added.] The Court of Appeals concluded that defendant’s statement that Chillers pulled the trigger when defendant tried to knock the gun away from him was sufficient to s upport an involuntary-manslaughter conviction. The Court reasoned that def end ant’s statement could support a finding that the victim’s killing was an unintended death, without malice, and not caused by any action of defendant nat ura lly tending to cause death. We disagree andconclude that defendant’s statement alone is insufficient to support an involuntary-manslaughter instruction. Defendant’s statement does not indicate that the shot fired during the struggle struck or killed the victim. In fact, during his request for an involuntary-manslaughter instruction, defendant argued that the shot fired during the struggle was the nonfatal shot to the victim’s leg. 9

9 Defense counsel argued in support of the manslaughter instruction as follows: Alternatively there’s also involuntary manslaughter, now t hat I think about it, in terms of that gun potentially accidentally [sic] going of f during the struggle over the gun at the time it’s discharged. That’s how I claim that the shot to the leg happened, when they were struggling over the gun .” [Emphasis added.] 21Therefore, because there is no evidence that the shot fired during the struggle killed the victim, and in light of the substantial evidence that the shot was not the fatal shot, we conclude a rational view of the evidence does not support an involuntary-manslaughter instruction. We further disagree with the conclusion of the Court of Appeals that an instruction for common-law involuntary manslaughter was premised on defendant’s theory of the case. Defendant’s theory throughout trial was that someone else was responsible for the victim’s death. Consider defendant’s opening statement, in which he sets forth his theory: What really occurred in this situation that you’ll see is sure, my client Mr. Mendoza and Mr. Tims went over to that location. They didn’t go over there to harm anybody. The y went over there to buy wh at M r. Stockdale and what Mr. Chillers were in the business to sell, which is marijuana

. . . * * * You’ll hear that, that Mr. Tims . . . and another perso n we re tussling over a handgun. And while they’re tussling, shot s we nt off. And my client went over there to try to prevent that from happening. And that’s when the tussle broke out. Whenmy client’s running out of that location, he gets shot by Mr. Chillers. So, it’s not my client th at’ s doing any shooting in there. It’s Mr. Chillers who’s causing all these problems and doing shooting in there .

Exper t testimony established that the leg wound was not t he fatal injury. 22* * * So, wh at ha ppened here is after my client, after he’s running away and Mr. Chillers shoots him andhe’s running to the car wounded, Mr . Tims on his own goes back up to that front door with that revolver in his hand and started shooting into the house. And that’s when Mr. Stockdale gets shot in the chest . * * * This is what I believe the evidence will show

. . . That gun was n ever in the possession of Mr. Mendoza. That gun was the one identified as being in the h ands of Mr. Tims when he went back on his own. [Emphasis added.] It is, therefore, clear that defendant’s theory was that Tims was responsible for the victim’s death. Insum, we conclude that a rational view of the evidence did not support an involuntary-manslaughter instruction. Therefore, it wa s not error for the trial court to deny the instruction. Accordingly, we reverse the judgment of the Court of Appeals. IV. C ONCLUSION Manslaughter, in both its forms, is an inferior offense of murder within the meaning o f MCL 768.32. Therefore, an instructionis warranted when a rational view of the evidence would support it. Van Wyck and its progeny are overruled to the extent the Van Wyck analysis of the relationship between manslaughter and murder holds otherwise. Inthis case, we conclude a rational view of the evidence didnot support an involuntary-manslaughter instruction. 23Therefore, the trial court did not err when it refused to give the instruction. Accordingly, we reverse the judgment of the Court of Appeals and reinstate defendant’s second-degree murder conviction. Robert P. Young, Jr. Maura D. Corrigan Elizabeth A. Weaver Clifford W. Taylor Stephen J. Markman

24___________________________________ 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. 120630 RICHARD MENDOZA, Defendant-Appellee. CAVANAGH, J. ( concurring ). This Court granted leave to appeal to determine whether MCL 768.32 permits a manslaughter instruction when a defendant has been charged with murder. Bec ause the majority has misinterpretedMCL 768.32, I must res pect fully dissent from its analysis, though I concur in its result. The majority applies obiter dictum from People v Cornell, 466 Mich 335; 646 NW2d127 (2002), to hold that an“inferior” offense, as articulated by the Legislature in 1846, is limited to a necessarily included lesser offense. 10 While I agree that manslaughter is an offense inferior to a nd necessarily includedwithin the crime of murder, I do not agree that this

10 MCL 768.32, formerly codified as tit XXX, ch 161, § 16, Rev Stat of 1846.Court should limit instructions authorized by MCL 768. 32 to

on ly those that are necessarily included in the char ge d offense. Rather, I would hold that, when requested, a jury may be instructed on lesser or “inferior” offenses of the crime cha rged, if those offenses are supported by the evidence. I The proper scope of MCL 768.32 presents a question of statutory interpretation, which we review de novo. In re MCI, 460 Mich 396, 413; 596 NW2d 164 (1999). II The relevant portion of MCL 768.32 now provides: (1) Except as provided in subsection (2), upon anindictment for an offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of th e offense in the degree charged in the indictment and may fi nd the accused person guilty of a degree of tha t offense inferior to that charged in the indictment, or of an attempt to commit that offense. [ 11 ] Relying on established doctrines of interpretation, one

11 The current subsection2 refers to controlled-substance provisions. The original statute provided: Uponan indictment for any offence, consisting of different degrees, as prescribed in this title, the jury may find the accused not guilty of the offence in the degree charged in the indictment, and may find such accused person guilty of any degree of suchoffence, inferior to that charged in the indictment, or of an atte mpt to commit such offence. [Rev Stat of 1846, tit XX X, ch 161, § 16.] 2cannot disagree that the first step in discerning legislative intent requires review of the statutory te xt ado pted by the Legislature. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). See also MCL 8.3a (“All words and phrases shall be construed andunderstood according to the common and approved usage of the language . . . .”). If unambiguous, the Legislature will be presumed to have intendedthe meaning expressed. Lorencz v Ford Motor Co, 439 Mich370, 376; 483 NW2d 844 (1992). We often refer to the dictionary to discern a statute’s plain meaning. See Wayne Co Prosecuting Attorney v Levenburg & Richmond, 406 Mich 455, 465-466; 280 N W2d 810 (1979) (dictionaries provide plain meaning). The dispositive issue presented for review is the scope of the term “inferior,” which may be defined as follows: Inferior. 1. Lower in place. 2. Lower in station, age, or rank in life. 3. Lower in exc elle nce or value; as a poem of inferior merit. 4. Subordinate; of less importance. [American Dictionary of the English Language, Noah Webster, Vol. 1, (originally published 1828, reprinted 1970). 12 ]

12 See also: Inferior. Is usually employ ed in law to designate the lower of two grades of authority, jurisdiction, or power. [Dictionary of Terms and Phrases used in American or English Jurisprudence, Vol 1, p 603 (1879).] (continued...) 3This definition has changed little since the ninet eenth century, and the meaning of an offense “inferior” to another continues to suggest a lower offense, or one that is somehow less than the charged crime. 13 Applied here, this interpretation supports a “lesser offense” approach. Inspite of this textual evidence, the majority would prefer to adopt a “necessarily included lesse r offense” interpretation, assigning a meaning to "inferio r" th at is contrary to its everyday usage, while providing no textual explanationfor its nar row construction. Instead, the majority adopts its obiter dictum from Cornell and relies on several prudential (i.e., policy-based) reasons to reject an

(...continued) Inferior. 1. Lower in position; situated below

. . . 3. Lower indeg ree, rank, importance, quality, amount, or other respect; of less value or consideration; lesser; subordinate. With to = lower than, less than, not so good or great as; unequal to . . . . [ Oxford English Dictionary (2d ed).] Inferior. . . 3. Lower in degree, rank, importance, quality, amount, or other respect; of less value or consideration . . . b. with to = lower than, less than, not so good or great as; unequal to. [ A New EnglishDictionary on Historical Principles , Murray, Oxford (1901, originally published 1888).]

13 Inferior. adj. 1. Situated under or beneath. 2. Low or lower in order, degree, or rank. 3. Low or lower in quality, status, or estimation. [ American Heritage Dictionary of the English Language , New College Edition (1981).]

4interpretation of “inferior” that conforms with its everyday usage. Foremost among the majority’s rationale may be the alleged ease with w hich the necessarily included lesser offense framework may be applied. Cornell, supra . However, I cannot agr ee tha t the majority’s framework can be applied

more simply than a “lesser offense” inquiry because each varies on the basis of the degree of specificity with which

one reviews the elements of a crime. This Court, for example, has wavered on the precise issue presented here. In People v Van Wyck , 402 Mich 266; 262 NW2d 638 (1978), this Court held that manslaughter was not a n ecessa rily included lesser offense of murder: The absence of mitigating circumstances need not be established i n or der to convict one of first- or second-degree murder. Consequently, it cannot be said that voluntar y man slaughter is a necessarily included offense within the crime of murder; it i s incorrect to state that it is impossible to commit first- or second-degree murder without having first committed manslaughter. [ Id. at 269.] As the majority correctly notes today, when viewed in general terms, “the only elem ent distinguishing murder from manslaughter is malice.” Ante at 14. Hence, manslaughter is both an “inferior” and a necessarily included lesser offense of murder; the difference between Van Wyck and the Court’s decision today results from the degree of precision employed

5by the Court in it s analysis of the elements of murder and manslaughter. Insteadof addressing such difficulties, the majority ignores this and si milar inconsistencies. For example, although“felonious assault” is not strictly a necessarily included l esser offense of “assault with intent to do great bodily harm less than murder” because the former requires the

use of a dangerous weapon, it is clearly an “inferior” charge

as prescribed by any reasonable interpretation of the statute (i.e., “inferior”), yet the majority’ s ap proach provides no

means by which to recognize this relationship . S imilarly trou bling, the crime of “assault with intent to do great bodily harm” is plainly included within the crime of “assault withintent to murder,” but our Courts have held that different degrees of ma lice (i.e., intent to do great harm

versus intent to murder) constitute cognate–not necessarily included–offenses. See, e.g., People v Norwood, unpublished opinion per curiam of the Court of Appeals, issued March 20, 2001 ( Doc ket No. 218207). In sum, the majority’s doctrine cannot logically provide the bright-line rule that it seeks, and its narrow construction is not supported by the text. III Although, I do not dispute that the meaning of MCL 768.32

6has been subject to debate lately, 14 the majority has recently acknowledgedthat, as early as 1869, this Cou rt p ermitted convictions on “inferior” offenses: [E]xtending to all cases in which the statute has substantially, or in effect, recognized and providedfor the punishment of offenses of different grades, or degrees of enormity, wherever the charge for the higher grade inc lude s a charge for the less. In this view only, canany effect be givento it, as declaratory of, or altering the commonla w. [ Hanna v People, 19 Mich 316, 322 (1869).] Before Cornell, this Court repeatedly affirmed this lesser offense approach, 15 in accord with the plain meaning of

14 Cornell, supra (noting in dicta that MCL 768.32 limits instructions to necessarily included lesser offenses and overruling, inter alia, People v Jones, 395 Mich 379; 236 NW2d 461 [1975], People v Chamblis, 395 Mich 408; 236 NW2d 473 [1975]).

15 See also People v Andrus, 3 31 Mich 535; 50 NW2d 310 (1951) (noting this Court’s treatment of MCL 768.32, which permits an instruction on lesser offenses when supporte d b y the evidence); People v Jones , 273 Mich 430; 263 NW 417 (1935) (holding that the court erred so as to require reversal when it affirmatively excluded a lesser offense from the jury’s consideration); People v Abbott , 97 Mich 484; 56 NW 862 (1893) (reversing where the court failed to instruct the jury on a lesser included offense); People v Courier, 79 Mich 366; 44 NW 571 (1890) (refusing the defendant’s request for a new trial where the court did provide the jury with a lesser included rape offense instruction); People v Prague, 72 Mich 178; 40 NW 243 (1888) (“The crime of an assault with intent to commit the crime of murder is one of a higher grade and greater enormity thanthe crime of assault with intent to do great bodily harm less than the crime of murder. It belongs to the catalogue of offenses against the lives and persons of individuals, and we think the charge was authorized by the opinion of this Court in Ha nna . . . .”); People v Warner, 53 Mich 78; 18 NW 56 8 (1884) (a conviction for simple assault may be had on any (continued...) 7the statute. In People v Jones, 395 Mich 379, 387; 236 NW2d 461 (1975), for example, this Court confirmed a case-by-case approachto inferior offense instructions, acknowledging that the strict, com mon-la w rule, which had permitted lesser offense instructions only when necessarily included in the crime charged, had been replaced by a statute that authorized

a broader range of convictions “inferior” to the crime charged. Although, the majority attempts to claim its holding has a historical foundation, it, in fact, usurps this Court’s longstanding interpretation, which accords with the statute’s plain meaning. IV The majority may claim I have done nothing but pine for the “cognate” or related-offense approach, which it expressly rejected in Cornell . To the degree that a “cognate” offense is “inferior” to the crime charged, I cannot disagree. I remaincommitted to the “lesser included offense” interpretationof “inferior” simply because it is best able to honor the statutory text, as noted above.

(...continued) informationcharging assault on an officer and resisting arrest); Campbell v People , 34 Mich 351 (1876) (“. . . under anindictment charging a specific offense it was competent for the jury to find the respondent guilty of a lesser offense included in it. The lesser offense of felonious assault is necessarily included in the offense of rape; the completed offense being the aggravation of the criminal assault.”). 8Further, it accords with the longstanding doctrine that requires courts to construe criminal statutes in favor of defendants. In United States v Wiltberger , 18 US (5 Wheat) 76, 95; 5 L Ed 31 (1820), Chief Justice Marshall noted: The rule that penal laws are to be con strued strictly, is perhaps not much less old than co nstr uctionitself. It is founded on the tenderness of the la w for the rights of individuals; and on the plain principle that the power of punishment is vested in the leg islative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment. See also People v Webb, 127 Mich 29, 32; 86 NW 406 (1901) (“Penal statutes must be strictly con strued, and words used

are to be given their popu lar , rather than a technical, meaning.”); Scalia, A Matter of Interpretation (Princeton, N.J.; Princ eton U niversity Press, 1997), p 29 (“The rule of lenity is almost as old as the common law itself, so I suppose that is validated by sheer antiquity.”) Its application here wouldgive an accused the opportunit y to request an instructionin conformity with defense theories, when supported by the evidence. V As noted, this Court today unanimously affirms that a defend ant facing a murder charge may request a manslaughter instructionif supported by the evidence. However, nothing in the record would support an involuntary-manslaughter

9convictionin this case, which requires a finding of dea th, causedby an act of defendant, with gross negligence. People

v

Datema , 448 M ich 585, 610-613; 533 NW2d 272 (1995) (Cavanagh, J., dissenting). Defendant’s statemen t to the police suggests only that he attempted to prevent the alleged gunman from shooting his friend. On the facts presented, if the jury did not believe defendant was culpable of murder beyond a reasonable doubt, the only reasonable alternative was acquittal because defendant’s statement to police indicated an attempt to save the life of another. People v Heflin, 434 Mich482, 554 n 10; 456 NW2d 10 (1990) (Levin, J., dissenting) (noting that the defense of another may justify homicide). To permit a manslaughter conviction on the evidence presented would result in a conviction against the great weight of the evidence. Therefore, I agree that the Court of Appeals op inionshould be vacated and that defendant’s convic tio n should be affirmed. VI Because the majority has adopted an interpretation of MCL 768.32 contrary to its plain text and our long-settled rules of statutory construction, I cannot join its ra tional e. However, because I agree that manslaughter is an offense “inferio r” t o murder, and because the evidence does not support a manslaughter instruction, I concur in the result

10only. Michael F. Cavanagh Marilyn Kelly

11