Opinion
No. 115081.
April 11, 2000.
On order of the Court, the delayed application for leave to appeal from the April 6, 1999 decision of the Court of Appeals and the motion to amend are considered. The motion to amend is GRANTED. The application is DENIED because we are not persuaded that the questions presented should be reviewed by this Court.
Leave to Appeal Denied April 11, 2000:
Court of Appeals No. 203519.
In my view, a denial of leave to appeal is appropriate in this case because it lacks material error. Defendant was convicted of breaking and entering with intent to commit larceny, MCL 750.110; MSA 28.305, and resisting and obstructing a police officer, MCL 750.479; MSA 28.747. Defendant and another were arrested after the Jackson police responded to a silent alarm at a party store and encountered a vehicle with numerous bags of returnable pop and beer cans. After a short vehicle chase, defendant and the driver jumped out of the still moving car, and were apprehended following the ensuing foot chase. By all accounts, defendant had been drinking and was inebriated to some extent when arrested, but the trial court refused to instruct the jury on voluntary intoxication as a defense, finding that this was inconsistent with defendant's claim not to have participated in breaking into the party store. The Court of Appeals noted that a defendant may raise inconsistent defenses, citing People v. Lemons, 454 Mich. 234, 245 (1997), but concluded that the trial court reached the right result, if for the wrong reason, because an instruction on voluntary intoxication was not supported by the evidence. I agree with the Court of Appeals, but also note that, in any event, the failure to instruct on voluntary intoxication was necessarily harmless on the basis of defendant's own uncontroverted testimony.
A court is not obligated to instruct the jury on a theory or defense unless it is supported by evidence presented at trial. People v. Mills, 450 Mich. 61, 81 (1995). Voluntary intoxication is no defense to a general intent crime such as resisting and obstructing a police officer, but it is a defense to a specific intent crime, such as breaking and entering with intent to commit larceny, to the extent that such voluntary intoxication renders a defendant incapable of entertaining the specific intent necessary to commit the offense. People v. Savoie, 419 Mich. 118, 133 (1984). Hence, the question is not whether there was evidence presented at trial that defendant was intoxicated, but rather, whether there was evidence presented at trial that defendant was so intoxicated as to be incapable of entertaining the intent to commit larceny at the time of his participation in the breaking and entering. See Mills, supra at 82-83. It is no defense for a defendant to assert that, but for his voluntary intoxication, he would not have formed the requisite intent.
By defendant's own trial testimony, he engaged in a number of goal-oriented actions and decisions immediately before and after the breaking and entering. A defense theory is not supported by evidence if it requires the jury to reject uncontested admissions by a defendant and engage in pure speculation. See People v. Bailey, 451 Mich. 657, 673-674 (1996). Here, in order for the jury to find that defendant was so intoxicated as to be incapable of forming the intent to commit larceny at the time of the breaking and entering, the jury would have had to reject defendant's own testimony regarding his abilities to form an intent immediately before and after the relevant time, and engage in utter speculation that defendant's mental capability was impaired to a greater extent at the relevant time. Hence, the Court of Appeals analyzed this correctly.
Moreover, even if we assume that evidence of some level of intoxication was sufficient to warrant an instruction on voluntary intoxication as a defense to a specific intent crime, for the same reasons that the Court of Appeals found the instruction to be unsupported, any error in refusing to give this instruction would be harmless. Under People v. Lukity, 460 Mich. 484, 495 (1999), preserved nonconstitutional error does not require reversal unless, in the context of the untainted evidence, "it is more probable than not that a different outcome would have resulted without the error." From defendant's own mouth, the jury heard that, at the time of the crime, he was capable of formulating goals and initiating actions in furtherance of those goals. There is nothing to demonstrate that, had the jury been instructed on the defense of voluntary intoxication, it would have engaged in speculation favorable to defendant or reached any different verdict than it, in fact, reached.
I concur with the statement of Justice KELLY.
Reconsideration denied June 26, 2000.
I would grant leave to appeal because the trial court erred by failing to instruct the jury on the defense of voluntary intoxication and the Court of Appeals affirmed the decision. The trial court refused to give the instruction because the defendant raised inconsistent defenses. He claimed that he did not participate in the crime or, if he did, he was too drunk to have a criminal intent. Refusal of the instruction was error, because defendant had the right to raise inconsistent defenses where each was supported by the evidence. People v. Lemons, 454 Mich. 234, 245 (1997).
There was enough evidence to support an instruction of voluntary intoxication in this case. A police officer investigating the incident testified at trial that defendant was so drunk that he "could hardly maintain his balance. . . ." Moreover, defendant jumped out of a moving vehicle. The property stolen amounted to $96 in empty beverage cans.
There was also evidence contradicting the defense of voluntary intoxication. Defendant testified that he was with the codefendant because the latter had taken defendant's car. Defendant testified that he had put on a coat before they left. When the police attempted to pull over the car, defendant ran from the police "[b]ecause a crime had been committed, and I knew it."
The above testimony presents a question of fact for the jury to decide. By no means does it eliminate defendant's right to a jury instruction on voluntary intoxication.
The concepts of a specific intent crime and voluntary intoxication as a defense to a crime are not intuitive, common-sense concepts. Defendant was charged with breaking and entering with intent to commit larceny. Members of the jury may not have realized that this is a specific intent crime and that intoxication may sometimes excuse it. The trial court's error in refusing the instruction undermined the reliability of the verdict. Hence, it was not harmless under People v. Lukity, 460 Mich. 484 (1999).
"A criminal defendant has the right to have a properly instructed jury consider the evidence against him." People v Mills, 450 Mich. 61, 80-81 (1995). Had the jurors been properly instructed, they might have found that defendant's state of intoxication negated any intent to break and enter the premises.
Leave to appeal should not be denied in this case.