Opinion
No. 104217.
August 9, 1996.
Leave to Appeal Denied August 9, 1996:
Court of Appeals No. 156730.
I would grant leave to appeal.
The defendant, Ilene Y. Rousell, had an argument with her live-in boyfriend, Ardis Trezevant. She sprayed mace in his face, he took her glasses and left the apartment to talk to his friend, James Earl Hillery, in an apartment downstairs. She lit a crumbled piece of paper, placed it on his mattress, watched it start smoking and then left. On the way out of the building, she ran into Hillery and told him that he should inform Rousell's boyfriend, Ardis, that his bed was on fire.
Hillery testified as follows:
Q. On your way to the apartment do you run into anybody?
A. I ran into Irene. She told me "Earl, you tell Ardis that I set his bed on fire." So I laughed about it and I walked on downstairs. When I was going in my apartment the first apartment I seen his door was [o]pen, all the smoke was coming out.
The fire department was slow to arrive, and up to six persons died. Rousell was convicted of multiple counts of first-degree murder.
The facts, as stated by the Court of Appeals, are as follows:
This case involves the deaths of five, possibly six persons, stemming from a dispute between defendant and her boyfriend, Ardis Trezevant. During an argument, defendant sprayed Trezevant in the face with mace and Trezevant took defendant's eyeglasses. Defendant lit a piece of paper and threw it onto Trezevant's mattress, which was located in a basement unit of a four-story, forty-unit apartment building. Defendant went outside and told someone she had set Trezevant's bed on fire. The fire quickly spread throughout the building, and five persons, including a twenty-one-month-old girl, perished. A sixth person was never accounted for. [Unpublished opinion per curiam, issued June 9, 1995 (Docket No. 156730).]
I
Rousell requested instructions on voluntary and involuntary manslaughter, but later limited the request to involuntary manslaughter. The judge asked if there was any objection from the people. The prosecution responded, "No your honor," and the judge said she would give the instruction.
Later, the judge stated that she had decided not to give the instruction for the following reason:
The Court: Before the jury is brought out, the court reviewed the testimony and also the law as applies to manslaughter and the court deemed that manslaughter, involuntary manslaughter, is not supported by the facts. One of the main reasons for that the complainant's [sic] are not the persons that the evidence shows that the defendant was angry with so the angry part does not apply for this, nor any evidence of negligence and therefore this court has deemed it would be inappropriate to give the voluntary or involuntary manslaughter instruction for the jury. The court now rules it will not. I will be instructing on murder two and the lesser to arson which is the personal property as to count seven only.
The judge was confused concerning the distinction between voluntary and involuntary manslaughter. In stating that "[o]ne of the main reasons" for her decision not to instruct on involuntary manslaughter was that the complainants, by which I think she meant the decedents, were "not the persons that the evidence shows that the defendant was angry with so the angry part does not apply for this," the judge was referring to an element of voluntary manslaughter.
Voluntary manslaughter in most jurisdictions consists of an intentional homicide committed under extenuating circumstances which mitigate, though they do not justify or excuse, the killing. The principal extenuating circumstance is the fact that the defendant, when he killed the victim, was in a state of passion engendered in him by an adequate provocation (i.e., a provocation which would cause a reasonable man to lose his normal self-control). [LaFave Scott, Criminal Law (2d ed), § 7.10, p 653.]
Later the judge, in responding to a renewed request for an instruction concerning involuntary manslaughter, acknowledged that the instructions on manslaughter "were confusing," and clarified and repeated her error.
The Court: That's why these instructions are so confusing because you have to actually look at the law as it applies and the difference between murder and manslaughter in order to really make a decision as to whether that should be given. The facts here indicate an incendiary device which indicates a deliberate act, and they indicate no anger what so ever towards the complaints [sic]. And the intended, the person who created the anger wasn't even there.
I acknowledge that, in the course of her earlier statement, the judge at one point did add as a reason that there was not "any evidence of negligence," but she did not otherwise discuss or explain why there was not any evidence of negligence, or more to the point, gross negligence.
II
The Court of Appeals affirmed the convictions of first-degree murder, stating:
Involuntary manslaughter has been defined as "the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty." [ People v Richardson, 409 Mich. 126, 136; 293 N.W.2d 332 (1980) (citations omitted).]
This definition requires that the deaths to have been unintended, without malice, and not caused by an unlawful act naturally tending to cause death or great bodily harm, Defendant claims that she did not intend to hurt anyone or to set the apartment building on fire, but that she merely intended to burn an old mattress. We find this argument to fall in light of the elements of involuntary manslaughter.
In examining an argument that the involuntary manslaughter instruction should have been given, our Supreme Court in People v Beach, 429 Mich. 450, 478; 418 N.W.2d 861 (1988), concluded: "Where the evidence suggests only that the criminal act naturally tends to cause death or great bodily harm, an instruction on the lesser included offense of involuntary manslaughter is simply not justified." As found in People v Edwards, the companion case to Beach, the conduct of burning a dwelling house in which residents are sleeping is that which naturally tends to cause death or great bodily harm. In the instant case, defendant set the mattress afire sometime shortly after 11:30 P.M., when many of the residents of her apartment building are sleeping. When she started the fire, Trezevant was not in the basement apartment, but outside.
The Court of Appeals concluded its discussion of this Court's decision in People v Beach, supra at 478, with the following statement:
Under the circumstances of this case, we find that the evidence does not warrant an involuntary manslaughter instruction. Clearly defendant's conduct was such that the natural tendency is to cause death or great bodily harm. Moreover, defendant's arguments fail to convince us that she acted without malice. The trial court's refusal to instruct the jury with regard to involuntary manslaughter was not error requiring reversal.
The Court of Appeals erred in stating that "[m]oreover, defendant's arguments fail to convince us that she acted without malice." The judge and prosecutor were convinced on the basis of the evidence that Rousell did not act with malice in the sense in which the Court of Appeals used the term malice: they were convinced that Rousell did not intend to kill, and that she did not intend to do great bodily harm.
Malice, as an element of criminal homicide, is sometimes used to describe all three prongs of murder, intent to kill, intent to cause great bodily harm, and conduct the natural tendency of which is to cause death or great bodily harm. Since the Court of Appeals covered the second and third prongs in the preceding sentence, and began this sentence with the word "[m]oreover," I think it clear that the Court of Appeals was using the word "malice" as referring to the first prong, namely, the intent to kill.
The Court: Okay.
Now the state of mind which is an element of felony murder is that, and I believe when we began this trial, the lawyers informed you that actually for felony murder the three states of mind. But Mr. Less indicated he is not arguing the other two. I don't think that and he is not arguing that she intended to kill or intended to do great bodily harm; but he is arguing that she had this other state of mind. That's the only one that they presented to you to consider. That is that she knowingly created a very high risk of death, great bodily harm, knowing such death or harm was the likely result of the acts.
III
The words "the natural tendency is to cause death or great bodily harm" and "malice" were taken by the Court of Appeals from People v Beach, where this Court quoted from earlier cases a definition of "involuntary manslaughter" repeated by this Court since 1923.
See People v Ryczek, 224 Mich. 106, 110 (1923), which relied on 21 Cyc, p 760, in formulating this definition this definition. The reference is to the Encyclopedia of Law, which preceded Corpus Juris, and, of course, Corpus Juris Secundum.
"Involuntary manslaughter is the unintentional killing of another without malice in (1) the commission of some unlawful act not amounting to a felony and not naturally tending to cause death or great bodily harm, or (2) the commission of some lawful act, negligently performed or (3) in the negligent omission to perform some legal duty." [ People v Beach, supra, p 477 (emphasis in original).]
In the formulation quoted in Beach, "malice" means the first prong of murder, namely, intent to kill. Again, as set forth in n. 5 supra, the term "malice" is sometimes used to connote all three prongs of murder. Because the definition quoted in Beach excludes the second and third prongs in clause (1), but not the first prong, I think it clear that, in this definition, "without malice" excludes the first prong of murder, namely, intent to kill.
Intent to cause "great bodily harm" is the second prong.
The words "natural tendency . . . to cause death" are the third prong, namely, reckless disregard that the natural tendency of the accused's conduct is to cause death. People v Aaron, supra, p 728.
The definition of involuntary manslaughter, quoted by this Court in Beach and relied on by the Court of Appeals in this case, is in serious need of reformulation.
In footnote 11 in Beach, this Court recognized that the negative element of the absence of a felony might no longer be a requirement since People v Aaron, 409 Mich. 672 (1980), which abolished felony murder.
Neither the trial judge nor the Court of Appeals defined "gross negligence" except in negative terms. In People v Datema, 448 Mich. 585 (1995), there is an extensive discussion of "gross negligence." The Court stated:
An unlawful act committed with the intent to injure or in a grossly negligent manner that proximately causes death is involuntary manslaughter. In the former instance the defendant has consciously intended to injure in wanton disregard of the safety of others: conduct which if it causes death is (at least) involuntary manslaughter. In the latter instance, criminal liability is imposed because, although the defendant's acts are not inherently wrong, the defendant has acted or failed to act with awareness of the risk to safety and in wilful disregard of the safety of others. [ Id., p 606.]
Justice CAVANAGH, in a dissenting opinion that Chief Justice BRICKLEY and I signed, elaborated:
At different times in our discussions of the gross negligence showing specifically required for an involuntary manslaughter conviction, we have indicated that the relevant inquiry includes an assessment whether the defendant demonstrated "an indifference to consequences," an "indifference to the rights of others," "a thoughtless disregard of consequences," "the intent to do wrong and inflict some bodily injury," a "reckless disregard of the safety of others," a "culpable indifference to the safety of others," or whether the defendant was "recklessly or wantonly indifferent to the results" or failed to exercise such care as to make it "likely to prove disastrous to another." [ Id., pp 612-613.]
IV
The question whether one or another or all three prongs of the definition of murder are satisfied is generally a jury question, and should not generally be decided as a matter of law, as it was here by the trial judge and the Court of Appeals.
In the Edwards companion case decided in Beach, this Court concluded that there was no evidence that would support the speculation that the match was dropped accidently or that the fire was set merely to frighten the occupants.
In Edwards, however, there was evidence of an intention to kill. Fire officials discovered the presence of inflammable liquids at the scene. Defendant had earlier threatened to burn the building and everyone in it.
In the instant case, there is evidence that Rousell did not intend to kill anyone, or to cause great bodily harm, and sought to guard, however inadequately, against causing a conflagration that would cause death.
V
The Court of Appeals in the instant case did not accurately state this Court's decision in Beach, in that it rested its decision on only the first sentence of the following paragraph in Beach, and ignored the second and third sentences:
Where the evidence suggests only that the criminal act naturally tends to cause death or great bodily harm, an instruction on the lesser included offense of involuntary manslaughter is simply not justified. This does not mean, however, that evidence which suggests an unlawful act naturally tending to cause death or great bodily harm categorically precludes an instruction on involuntary manslaughter. That possibility depends upon the evidence adduced at trial. [ Id., p 478 (emphasis added).]
As set forth above, "the evidence adduced at trial" in this case supports giving the requested involuntary manslaughter instruction.
VI
The definition of involuntary manslaughter, employed by the Court of Appeals, is flawed. A defendant is not required to establish the absence of malice. Such a requirement improperly shifts the burden of proof on the critical element of intent to the defendant. The defendant is required rather to offer evidence of a state of mind different than that urged by the prosecutor. Confronted with the competing sets of proofs and theories, and instructions for both murder and involuntary manslaughter, the jury is the only competent authority to determine the most culpable state of mind, or whether either state of mind has been, established beyond a reasonable doubt.
Because manslaughter, voluntary or involuntary, includes an element that is not an element of murder, there needs to be evidence of the additional element before an instruction on the cognate lesser offense of manslaughter is required.
Rather than determining whether the proffered evidence could possibly support a finding of malice, the Court of Appeals should have asked whether the evidence could support a finding of any less "malicious" state of mind. If the evidence could, as it did, the jury should have been allowed to so find.
VII
Because the prosecutor did not contend that Rousell intended to kill or to inflict great bodily harm, the judge did not instruct on those elements of murder, the first and second prongs.
If the prosecutor had not conceded that Rousell did not intend to kill or to inflict great bodily harm, it would have been necessary to instruct the jury that it was for it to decide whether she so intended.
This case did not, however, go to the jury with proper instructions. The jury should have been instructed that it was for it to determine, if it believed Hillery's testimony, whether Rousell acted "with a wanton and willful disregard of the likelihood that the natural tendency of [her] behavior is to cause death," People v Aaron, supra, p 733, which would support a verdict of guilty of murder, or whether her conduct should be characterized as grossly negligent, under one of the affirmative definitions of "gross negligence" set forth in Datema, reducing the degree of the crime to involuntary manslaughter.
The judge instructed the jury that in order to convict the defendant "the prosecutor must prove beyond a reasonable doubt that the defendant had the following state of mind. That she knowingly created a very high risk of death or great bodily harm knowing that death or such harm was the likely result of her action."
Because the judge declined to instruct on involuntary manslaughter, and instructed only on the "natural tendency" third prong of murder, the jury had no alternative to convicting the defendant of first- or second-degree murder — the third prong being the same under either definition — and did not have the opportunity of coming in with the verdict on the lesser offense of involuntary manslaughter on a finding that Rousell's conduct in leaving a lighted paper on a mattress, while grossly negligent, was not wanton and wilful disregard of the likelihood that the natural tendency of her behavior was to cause death.
I recognize that many would argue that there was such a likelihood and such a natural tendency of causing death, but others would argue that, while Rousell's conduct was wanton and wilful, it was unlikely that the natural tendency of her behavior would cause death or great bodily harm.
It was a jury question even though the lighted paper was left on the bed at 11:30 P.M. To be sure, residents of the apartment building were probably sleeping at that hour. But I think it is fair to say, or at least a jury could properly find, that Rousell did not expect, or should not be deemed as a matter of law to have expected, to set the building on fire, although she acted recklessly.
The natural tendency of all reckless acts that might possibly cause death is not to cause death. That is fortunate because there is a lot of reckless conduct that fortuitously does not generally result in death.
The facts of this case differ significantly from Beach in that here, in contrast with Beach, there is some evidence from which a jury could reasonably conclude not only that Rousell did not intend to kill or to cause great bodily harm, but also that she took some precaution to avoid the fire from spreading by notifying Hillery of what she had done.
I would grant leave to appeal.
I concur in the statement of Justice LEVIN.
Reconsideration denied October 28, 1996.
I would grant reconsideration and, on reconsideration, would grant leave to appeal for the reasons earlier stated ante at 857-864.
I would grant reconsideration and, on reconsideration, would grant leave to appeal.