Summary
reversing a conviction for first-degree murder after the defendant unloaded several rounds of a handgun on her unarmed ex-boyfriend who was driving by a public gas station, after the defendant followed the victim in a car and waited at the gas station to meet the victim, in the context of domestic violence on the part of the victim; reasoning that failing to request a voluntary manslaughter instruction for heat of passion, instead of a self-defense theory, was equivalent to the defendant having no counsel at all
Summary of this case from People v. LemonsOpinion
No. 164055
07-27-2023
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Menayetta Michell YEAGER, Defendant-Appellant.
Kevin Cox, J. Dana Nessel, Attorney General, Ann M. Sherman, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jon P. Wojtala, Chief of Research, Training, and Appeals, Trenton, and Deborah K. Blair, Assistant Prosecuting Attorney, for the people. State Appellate Defender (by Adrienne N. Young and Garrett Burton) for defendant.
Kevin Cox, J.
Dana Nessel, Attorney General, Ann M. Sherman, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jon P. Wojtala, Chief of Research, Training, and Appeals, Trenton, and Deborah K. Blair, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Adrienne N. Young and Garrett Burton) for defendant.
BEFORE THE ENTIRE BENCH
OPINION
Bernstein, J.
484In this case, we consider whether defendant was denied the effective assistance of counsel by trial counsel’s failure to request a voluntary manslaughter instruction at defendant’s jury trial for the murder of her boyfriend. While we agree with the Court of Appeals that trial counsel’s representation fell below an objective standard of reasonableness, we disagree with the Court of Appeals as to prejudice and instead conclude that there is a reasonable probability that this error affected the outcome of defendant’s trial. For that reason, we reverse the judgment of the Court of Appeals and remand to the trial court for proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL HISTORY
On August 27, 2017, defendant, Menayetta Yeager, and her boyfriend of approximately one year, Jonte Brooks, were seated in her minivan when defendant told Brooks that she wanted to break up. This set off a series of volatile events. Brooks, who had exhibited violent tendencies previ- ously in the relationship, punched defendant and hit her in the face with his gun, something defendant testified he regularly carried. Brooks pulled defendant out of the vehicle by her hair and continued to hit her. Brooks then got into the driver’s seat of defendant’s minivan and used it to chase after her, attempting to run her over multiple 485times before eventually driving away in the van. Defendant called the police throughout this encounter but did not feel she had a safe place to wait for officers to arrive.
A neighbor, Labarren Borom, witnessed Brooks driving across lawns in an effort to run defendant down. After Brooks had driven away, Borom approached defendant to ask if she was okay and agreed to take defendant in his truck so defendant could follow Brooks and retrieve her van. Defendant called Brooks on his cellphone, and Brooks assured her that he would leave the van at a nearby gas station. However, Brooks never arrived at the designated gas station, and as defendant continued to demand the return of her van over the phone, Brooks repeatedly threatened to kill both defendant and Borom. Defendant and Borom ultimately pulled into a different gas station, and Brooks pulled in behind them. Brooks and defendant began to argue, and defendant got out of Borom’s truck.
Defendant testified at trial that her intent was to run away from Brooks upon getting out of the truck and that Borom handed her a gun as she debarked. She then testified that she shot at Brooks two or three times out of fear. Borom’s recollection of the incident was that defendant got out of his truck during her argument with Brooks, pulled out a gun, and fired multiple shots, with Brooks pulling away in the van while defendant was still shooting. Borom recalled hearing five or six shots; a gas station employee remembered hearing about 10 shots. Defendant returned to Borom’s vehicle, hysterical and crying, and Borom drove her home. Police officers dispatched to the scene of the shooting found Brooks lying unresponsive in the van, crashed into a wall about five blocks away 486from the gas station, with a bullet wound to the chest. The police retrieved 17 shell casings from the gas station. Brooks was alive when the police arrived on the scene, but he later died at the hospital. His death was ruled a homicide. Defendant turned herself in to the police the following day.
Defendant was charged in the Wayne Circuit Court with first-degree murder, MCL 750.316(1)(a), and carrying a firearm during the commission of a felony (felony-firearm), MCL 750.227b. At trial, the jury was instructed on first- and second-degree murder and convicted defendant as charged. She was sentenced to life without parole for the murder conviction, which was to be served consecutively to the mandatory two-year felony-firearm sentence.
On appeal, the Court of Appeals remanded the case to the trial court for a Ginther hearing to determine whether defendant had been denied the effective assistance of counsel, limited to the question of whether trial counsel’s failure to request a jury instruction on voluntary manslaughter as. a lesser included offense to murder constituted ineffective assistance. People v Yeager, unpublished order of the Court of Appeals, entered November 9, 2020 (Docket No. 346074). At the Ginther hearing, trial counsel testified that he had not requested a voluntary manslaughter instruction because he believed it to be mutually exclusive of the self-defense theory he presented at trial. The trial court concluded that, had trial counsel requested a voluntary manslaughter instruction, a reasonable juror could have found that defendant was guilty of voluntary manslaughter rather than first-degree murder. Because the trial court found that there was a 487reasonable likelihood that the trial outcome would have been different had trial counsel not erred by failing to ask for the voluntary manslaughter instruction, the trial court granted a new trial. The prosecution challenged this ruling, arguing that trial counsel had not been ineffective and that, in any case, defendant had not been prejudiced. The Court of Appeals reversed in an unpublished per curiam opinion. People v Yeager, unpublished per curiam opinion of the Court of Appeals, issued December 21, 2021, 2021 WL 6067087 (Docket No. 346074). Judge Beckering wrote separately, concurring in the result but opining that People v Raper, 222 Mich App 475, 563 N.W.2d 709 (1997), on which the majority relied, was wrongly decided. Yeager (Beckering, J., concurring), unpub. op. at 1, 4-7. Defendant sought leave to appeal in this Court, and in lieu of granting leave, we ordered oral argument on the application. People v Yeager, 509 Mich. 984, 973 N.W.2d 913 (2022).
People v Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973).
In its discussion of the rule of law at issue, the majority quotes Beach’s discussion of People v Rochowiak, 416 Mich. 235, 248-249, 330 N.W.2d 669 (1982) (opinion by Levin, J.), a nonbinding opinion (Justice Kavanagh concurred with Justice Levin’s lead opinion, while Justice Williams concurred in the result only. Chief Justice Fitzgerald concurred with Justice Ryan’s dissent, and two justices did not participate in the decision). Justice Levin’s lead opinion in Rochowiak listed examples of cases in which the erroneous failure to give a lesser-offense instruction could be harmless, including cases in which "the differences between the various offenses concern factual elements …." Id. at 248, 330 N.W.2d 669. He then differentiated those cases from those that concern "the state of mind of the defendant …." Id. at 249, 330 N.W.2d 669. But in Beach, when this Court specifically quoted this portion of Rochowiak, it expressly chose not to adopt these examples. Beach, 429 Mich. at 491, 418 N.W.2d 861. Accordingly, to the extent the majority relies on this statement from Rochowiak, it is not binding.
Strang v People, 24 Mich. 1, 10 (1871).
II. STANDARD OF REVIEW
[1–3] Whether a defendant has received ineffective assistance of counsel is a mixed question of fact and constitutional law. People v Armstrong, 490 Mich. 281, 289, 806 N.W.2d 676 (2011). ‘"A judge must first find the facts, then must decide whether those facts establish a violation of the defendant’s constitutional right to the effective assistance of counsel.’" Id., quoting People v Grant, 470 Mich. 477, 484, 684 N.W.2d 686 (2004). We review for clear error the trial court’s factual findings, and "[w]e review de novo questions of constitutional law." Armstrong, 490 Mich. at 289, 806 N.W.2d 676.
488III. ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
[4, 5] At trial, defendant’s counsel presented a self-defense theory and did not request a voluntary manslaughter instruction, meaning that the jury was only instructed on the charges of first- and second-degree murder. Whether defendant is entitled to relief in this case turns on whether that decision constituted ineffective assistance of counsel. Criminal defendants are entitled to the assistance of counsel under both the Michigan and United States Constitutions. Const. 1963, art. 1, § 20; U.S. Const., Am. VI. This right guarantees the effective assistance of counsel. Strickland v Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). In order to obtain a new trial because of ineffective assistance of counsel, "a defendant must show that (1) counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability that that outcome would have been different." People v Trakhtenberg, 493 Mich. 38, 51, 826 N.W.2d 136 (2012). "‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’" People v Ackley, 497 Mich. 381, 389, 870 N.W.2d 858 (2015), quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
[6] Generally, attorneys are given broad latitude to determine trial strategy, and there is a strong presumption that counsel’s performance was born from sound strategy. Strickland, 466 U.S. at 689-690, 104 S.Ct. 2052. However, counsel’s strategic decisions must be objectively reasonable. Trakhtenberg, 493 Mich. at 52, 826 N.W.2d 136. 489B. VOLUNTARY MANSLAUGHTER
[7, 8] Defendant’s position here is that trial counsel erred by failing to request a jury instruction on voluntary manslaughter. This Court has defined voluntary manslaughter as follows:
[I]f the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate 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 reason was disturbed, … then the law, out of indulgence to the frailty of human nature, … regards the offense as of a less heinous character than murder, and gives it the designation of manslaughter. [Maher v People, 10 Mich. 212, 219 (1862).]
That is, for an act to be considered voluntary manslaughter, the defendant must kill in the heat of passion, the passion must be caused by adequate provocation, and there cannot be a lapse of time during which a reasonable person could control their passions. The provocation must be sufficient to cause the defendant to act out of passion rather than reason, but it also must be sufficient to cause a reasonable person to lose control, not just the specific defendant. People v Pouncey, 437 Mich. 382, 389, 471 N.W.2d 346 (1991).
[9, 10] In People v Mendoza, 468 Mich. 527, 536, 664 N.W.2d 685 (2003), this Court explained that manslaughter is a lesser included offense of murder. Both murder and voluntary manslaughter "require a death, caused by defendant, with either 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." Id. at 540, 664 N.W.2d 685. The distinguishing element is 490malice, which in voluntary manslaughter is "negated by the presence of provocation and heat of passion." Id. Involuntary manslaughter, by contrast, contemplates a lesser degree of intent. Id. at 541, 664 N.W.2d 685. The Mendoza Court concluded that, because both voluntary and involuntary manslaughter are necessarily included lesser offenses and "inferior" to murder under MCL 768.32, "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." Id.
C. APPLICATION
1. COUNSEL’S PERFORMANCE
[11] In assessing whether defendant received ineffective assistance of counsel, we first consider whether trial counsel’s failure to request a voluntary manslaughter instruction was objectively unreasonable. Trial counsel’s failure to request a jury instruction may constitute an unreasonably deficient level of performance. See People v Leffew, 508 Mich. 625, 646, 975 N.W.2d 896 (2022) (holding that the defense attorneys’ failure to request a defense-of-others instruction supporting their theory of the case was objectively unreasonable). We have held that a jury instruction on a necessarily included lesser offense is appropriate if "the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it." People v Cornell, 466 Mich. 335, 357, 646 N.W.2d 127 (2002).
[12, 13] In this case, we agree with the lower courts that trial counsel’s decision not to request an instruction on voluntary manslaughter was objectively unreasonable. 491Trial counsel’s explanation for this omission at the Ginther hearing was that defendant’s theory of the case was self-defense, and trial counsel "[did not] believe, in any way, [defendant] intended, as a manslaughter instruction would ask for, in any kind of way, voluntary or involuntary, to kill the deceased." In other words, trial counsel appears to have believed that arguing self-defense to a murder charge would render defendant’s actions unintentional and that a manslaughter instruction would not be applicable because only manslaughter would require an intentional act. However, this reasoning is inconsistent or based on a misunderstanding of the law. Murder as mitigated by self-defense and voluntary manslaughter are not distinguished by the element of intent because both contemplate an intentional action. See People v Dupree, 486 Mich. 693, 707, 788 N.W.2d 399 (2010) ("‘A finding that a defendant acted in justifiable self-defense necessarily requires a finding that the defendant acted intentionally, but that the circumstances justified his actions.’"), quoting People v Heflin, 434 Mich. 482, 503, 456 N.W.2d 10 (1990). Rather, the distinction between murder and voluntary manslaughter is the element of malice, which in voluntary manslaughter is "negated by the presence of provocation and heat of passion." Mendoza, 468 Mich. at 540, 664 N.W.2d 685. Because trial counsel failed to appreciate the meaningful difference between the two charges, his explanation for why he failed to pursue a manslaughter instruction is legally incorrect.
Moreover, a review of the facts of this case demonstrates that the voluntary manslaughter instruction would have been supported by the evidence presented. The testimony presented at trial reflected that defendant’s shooting of Brooks was the culmination of a series of events during which Brooks physically as saulted492 defendant, took her car and used it to attempt to run her over, and repeatedly threatened to kill defendant and Borom, the neighbor who assisted her. Defendant testified that she feared for her life. At the Ginther hearing, when asked about the moments leading up to the shooting, she explained, "I just remembered bein’ scared. I don’t remember details, like, walkin’ towards him, or anything like that. And when I seen the video, I didn’t even see myself, or remember shootin’ as many times as they say I did." Borom also testified that defendant was hysterical and crying when she returned to his vehicle after the shooting. A jury could reasonably conclude that the combination of physical and verbal threats from Brooks throughout this unbroken chain of events stoked defendant’s passions so that she acted out of heightened emotion rather than reason in shooting Brooks.
[14] We do not find persuasive the argument that defendant specifically needed to act out of anger for a voluntary manslaughter instruction to be applicable. Our caselaw does not circumscribe the requisite emotional state for voluntary manslaughter in this fashion. See Maher, 10 Mich. at 219 (referring to "influence of passion or in heat of blood"). Nor do our model jury instructions suggest any such requirement. Rather, the Michigan Model Criminal Jury Instruction regarding voluntary manslaughter as a lesser included offense provides:
(1) The crime of murder may be reduced to voluntary manslaughter if the defendant acted out of passion or anger brought about by adequate cause and before the defendant had a reasonable time to calm down. For manslaughter, the following two things must be present:
(2) First, when the defendant acted, [his / her] thinking must be disturbed by emotional excitement to the point that a reasonable person might have acted on 493impulse, without thinking twice, from passion instead of judgment. This emotional excitement must have been the result of something that would cause a reasonable person to act rashly or on impulse. The law does not say what things are enough to do this. That is for you to decide.
(3) Second, the killing itself must result from this emotional excitement. The defendant must have acted before a reasonable time had passed to calm down and return to reason. The law does not say how much time is needed. That is for you to decide. The test is whether a reasonable time passed under the circumstances of this case. [M. Crim. JI 16.9.]
While the model jury instruction specifically acknowledges anger as an emotional state that may serve to mitigate murder to voluntary manslaughter, the rest of the jury instruction makes clear that the defendant’s thinking must have been disturbed by an undefined "emotional excitement." As Judge Beckering stated of the emotional series of events culminating in defendant’s shooting of Brooks, "If ever there were a heat of passion case, this is it." Yeager (Beckering, J., concurring), unpub. op. at 1.
Justice Zahra would hold that trial counsel’s performance was not deficient, but the only rationale offered is trial counsel’s Ginther hearing testimony that he believed defendant had reasonable time to calm down. Based on this, Justice Zahra concludes that whether the trial court would have given the voluntary manslaughter instruction is "speculative." This reasoning is puzzling. Trial counsel may well have believed defendant had a reasonable amount of time to calm down, but trial counsel’s subjective feelings are not dispositive as to what a reasonable jury could conclude. Further, as reflected by his Ginther hearing testimony, trial counsel did not understand the relevant law—494information that was not available to the trial court at the time of the trial. Justice Zahra proceeds to engage in speculation of his own, saying, "Had the trial court viewed the case similarly, it likely would have concluded that there was insufficient evidence to support a voluntary manslaughter instruction." Post at 509. But this thought experiment stands at odds with what we know the trial court thought about defendant’s state of mind. In granting the motion for a new trial, the trial court said:
The Court finds as a fact, that, uhm, before the shooting, Ms. Yeager was emotionally excited.
She had heighted emotions.
She was stressed.
She was not calm when she shot the gun.
Not only is Justice Zahra’s argument speculative, it is directly contrary to the record.
Because a rational view of the evidence would support a voluntary manslaughter instruction, that instruction should have been given. Mendoza, 468 Mich. at 541, 664 N.W.2d 685. However, an instruction was not requested and thus was not given. Because trial counsel’s misunderstanding of the law led to the absence of a voluntary manslaughter instruction to which defendant was entitled, we conclude that trial counsel’s performance fell below the objective standard of reasonableness required by Strickland.
2. PREJUDICE
Having determined that trial counsel’s performance was constitutionally deficient, we turn to the second prong of the ineffective-assistance analysis: whether defendant was prejudiced by trial counsel’s deficient performance. The trial court concluded that defendant 495had been prejudiced by trial counsel’s performance here and was thus entitled to a new trial, but the Court of Appeals reversed this judgment and concluded that defendant could not establish prejudice because, under Raper, 222 Mich App 475, 563 N.W.2d 709, any error in failing to instruct the jury on voluntary manslaughter was harmless given that the jury rejected a verdict of second-degree murder in favor of a first-degree murder conviction. We disagree with the Court of Appeals’ conclusion on this point and further hold that defendant was prejudiced by her trial counsel’s deficient representation.
We first conclude that the Court of Appeals erred by determining that its decision in this case was mandated by the judgment in Raper. That case involved a defendant who was convicted of first-degree murder, carjacking, and felony-firearm. Id. at 476, 563 N.W.2d 709. The defendant confessed to shooting the victim and taking his automobile at the direction of a third individual. Id. at 477, 563 N.W.2d 709. Alongside other arguments not relevant to the case before us, the defendant argued that his trial counsel had been ineffective for failing to request jury instructions on the lesser included offenses of both voluntary and involuntary manslaughter. Id. at 483, 563 N.W.2d 709. The Raper Court disposed of this argument with little fanfare or analysis, stating:
In this case, defendant was charged with first-degree murder. The jury was instructed on first-degree murder and second-degree murder, and found defendant guilty of first-degree murder. The jury’s rejection of second-degree murder in favor of first-degree murder reflected an unwillingness to convict on a lesser included offense such as manslaughter. People v Zak, 184 Mich App 1, 16, 457 N.W.2d 59 (1990). [Raper, 222 Mich App at 483, 563 N.W.2d 709.]
496The Court of Appeals here concluded that the trial outcome of the instant case was "identical to the situation in People v Raper[.]" Yeager (opinion of the Court), unpub. op. at 9. Judge Beckering agreed that Raper controlled the outcome in the instant case but expressed concerns that the Court of Appeals’ "holding in Raper inappropriately precludes relief to defendants for the failure to provide a voluntary manslaughter instruction in cases in which the jury chooses first-degree murder instead of second-degree murder." Yeager (Beckering, J., concurring), unpub. op. at 3. We conclude that the Court of Appeals’ reading of Raper misconstrues the existing caselaw regarding jury instructions on lesser offenses.
[15] This Court has consistently held that whether the absence of an instruction on a lesser included offense is harmless depends on the facts and circumstances of the case at bar. In People v Beach, 429 Mich. 450, 491-492, 418 N.W.2d 861 (1988), which involved whether a defendant who was convicted of conspiracy to commit armed robbery was entitled to have the jury instructed on the lesser included offense of conspiracy to commit larceny in a building, this Court set forth an explanation of the relevant law:
The existence of an intermediate charge that was rejected by the jury does not, of course, automatically result in an application of the [People v Ross, 73 Mich App 588, 252 N.W.2d 526 (1977)] analysis. For it to apply, the intermediate charge rejected by the jury would necessarily have to indicate a lack of likelihood that the jury would have adopted the lesser requested charge. We note that our recent cases, which did not adopt or apply the harmless error analysis, are distinguishable. In People v Richardson, [409 Mich. 126, 293 N.W.2d 332 (1980)], the Court de
clined to apply a harmless error analysis because the refusal to instruct was reasoned to 497foreclose the jury’s option to convict the defendant consistently with his own testimony, evidence, and theory. Beach differs because the defense theory was alibi, and no evidence to make a theory of larceny essential to the defense was provided, that is, there was no specific denial of the use of force. There was only an alibi defense and an inference built on a possibility that the jury might disbelieve part of Turner’s testimony.
In People v Rochowiak, [416 Mich. 235, 330 N.W.2d 669 (1982)], the opinion of the Court offered qualifications regarding the finding of harmless error under such circumstances. Although we do not adopt the qualifications, we note that this case complies with the suggestions for finding harmless error.
As in Richardson, we do not hold that failure to give lesser offense instructions can never be harmless. The error may indeed be harmless in a case where it is clear that the jury was presented with a lesser offense or offenses consistent with the defendant’s theory which was rejected, and made findings of fact, implicit in the verdict, which would preclude conviction of the charge upon which an instruction was refused, or where the differences between the various offenses concern factual elements, the existence of a weapon (armed or non-armed), the completion of the offense (attempt), the use of force (larceny or robbery) and not the state of mind of the defendant (murder, manslaughter, reckless use; assault with intent to murder, with intent to commit great bodily harm less than murder, felonious assault). [416 Mich at 248-249, 330 N.W.2d 669. Emphasis added.]
Final bracketed citation in original and emphasis added by Beach.
Pickens, 446 Mich. at 314, 521 N.W.2d 797 (alteration in original), quoting People v Beach, 429 Mich. 450, 491, 418 N.W.2d 861 (1988).
[16] Under Beach, then, there is no support for the notion that the existence of a rejected intermediate charge automatically renders harmless the failure to instruct on a lesser offense. Rather, a reviewing could; must 498consider the specific circumstances of the case in concert with the relevant offenses and ask whether the distinctions between the particular charges suggest that a jury’s rejection of an intermediate charge demonstrates that the jury would have been unlikely to select a lesser charge. The Rochowiak opinion cited in Beach noted that some distinctions between charges are implicit in the verdict, such as those that depend on factual findings, and in such cases, it can be definitively determined that the jury would not have opted for a requested lesser offense. In Beach, for example, the jury’s decision to convict the defendant of conspiracy to commit armed robbery, rather than conspiracy to commit unarmed robbery, necessarily implied "a finding of a use of a weapon which indicates a greater use of force than would be the case in [the requested lesser offense of] unarmed robbery." Beach, 429 Mich. at 492, 418 N.W.2d 861. However, such a conclusion is not implicit when the charges are distinguished by a legal question like the defen- dant’s required state of mind that has not previously been placed before the jury. The question in this case, whether the jury’s rejection of a second-degree murder intermediate charge in favor of a conviction of first-degree murder indicates a likelihood that the jury would not have opted to convict defendant of the lesser charge of voluntary manslaughter, requires us to consider the distinctions between these charges—distinctions centered, as explained further below, on defendant’s state of mind.
We acknowledge that Beach involved requests for instruction on cognate lesser offenses that were rejected by the trial court. Although this procedural posture differs from the situation here, in which trial counsel failed to request instruction on a necessarily included lesser offense, we nevertheless find the harmless-error analysis set forth in Beach instructive. We do not, however, extend Beach’s harmless-error analysis to lesser-offense instructional errors made by the trial court rather than counsel, a question left unaddressed by Beach.
Pickens, 446 Mich. at 314, 521 N.W.2d 797.
[17] 499The Raper Court did not cite Beach but instead relied on the Court of Appeals decision in Zak, 184 Mich App 1, 457 N.W.2d 59, which echoed this case-specific approach in reaching its conclusion that the defendant was not prejudiced by the trial court’s refusal to give an instruction on manslaughter because "the failure to instruct on that requested lesser included offense is harmless if the jury’s verdict reflects an unwillingness to have convicted on the offense for which instructions were not given." Id. at 16, 457 N.W.2d 59, citing Beach, 429 Mich. at 491, 418 N.W.2d 861. We assume without deciding that Raper was, consistently with the rule of Beach, decided on the basis of that panel’s review of the particular circumstances of that case and the jury instructions requested by the defendant. Indeed, there is no indication in Raper that the facts of the case implicated the legal distinctions between the murder charge of which the defendant was convicted and the voluntary and involuntary manslaughter instructions he sought, as the facts of this case do. The Court of Appeals here erred to the extent that it concluded that Raper created a bright-line rule under which the absence of a voluntary manslaughter instruction is automatically considered harmless if the jury was instructed on both first- and second-degree murder and convicted the defendant of first-degree murder. We clarify that Beach’s explanation of when instruction on a lesser offense is warranted is still good law and that when considering whether a jury should have been instructed on a lesser included offense, appellate courts must consider whether, in light of the proposed defense theory and the factual elements of the relevant offense, "the intermediate charge rejected by the jury would necessarily have to indicate a lack of likelihood that the jury would have adopted the lesser requested charge." Beach, 429 Mich. at 491, 418 N.W.2d 861. This is consistent with the Mendoza 500Court’s conclusion that manslaughter is a necessarily included lesser offense of murder and that manslaughter instructions must be given to the jury if supported by a rational view of the evidence. Mendoza, 468 Mich. at 541, 664 N.W.2d 685.
[18–20] In the instant case, the jury was instructed on first- and second-degree murder but not on voluntary manslaughter. First- and second-degree murder both include the element of malice aforethought. Id. at 534, 664 N.W.2d 685. As noted in Part 0) of this opinion, the distinction between murder and voluntary manslaughter is whether an intentional killing was provoked in a manner that explains or justifies the killing so as to mitigate criminal responsibility. Id. at 540, 664 N.W.2d 685. We agree with defendant that the voluntary manslaughter instruction would have assisted the jury in considering defendant’s state of mind at the time of the shooting in a manner not contemplated by instructions on first- and second-degree murder alone. As already discussed in reference to trial counsel’s performance, defendant shot Brooks in the culmination of a prolonged series of events in which defendant was physically and verbally threatened, including when Brooks attempted to run defendant down with her own vehicle. A jury could reasonably conclude that defendant’s actions were the result of provocation to a state of emotional excitement, but the jury here was not made aware of the lesser included offense of voluntary manslaughter. The jury instructions regarding first- and second-degree murder and self-defense do not encompass the distinct state of mind required for a voluntary manslaughter conviction. In the absence of instruction on the particular state of mind required for voluntary manslaughter, we cannot definitively conclude whether the jury would have determined that defendant’s actions were provoked by inflamed passions or emotional excitement. 501Therefore, the absence of the lesser-included-offense instruction does not "necessarily … indicate a lack of likelihood that the jury would have adopted the lesser requested charge." Beach, 429 Mich. at 491, 418 N.W.2d 861. Because the instructions given here did not present to the jury the differing states of mind required for murder and voluntary manslaughter, and because a reasonable jury could have found that defendant acted in the state of mind required for voluntary manslaughter, we conclude that this gap in information provided to the jury is "sufficient to undermine confidence in the outcome" of defendant’s trial. Ackley, 497 Mich. at 389, 870 N.W.2d 858 (quotation marks and citation omitted).
We disagree with Chief Justice Clement’s contention that although the jury was not instructed on voluntary manslaughter there is no prejudice because a rejection of adequate provocation is implicit in the finding of premeditation in first-degree murder.
Chief Justice Clement asserts that premeditation and deliberation and malice excused are "terms at opposite ends of the mens rea spectrum." Post at 506. But this characterization is flawed because there is no middle-ground mens rea in second-degree murder that a jury rejects to find first-degree murder, and the element distinguishing voluntary manslaughter from murder offenses is an element outside of the mens rea spectrum.
[21] A conviction of first-degree murder does not amount to rejection of any of the elements of second-degree murder. To the contrary, a conviction of first-degree murder requires a finding of all the elements of second-degree murder, plus an additional element. First-degree murder is defined by statute. MCL 750.316. Murder may be elevated to the first degree by certain attendant circumstances found in MCL 750.316(1)(b) 502or (1)(c) not relevant here, or if it is "perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing." MCL 750.316(1)(a). Premeditation is the theory of first-degree murder in this case. Therefore, the jury found each element of second-degree murder in addition to premeditation. The mens rea of second-degree murder—malice—is also present in first-degree murder and thus was not rejected by the jury. Voluntary manslaughter likewise does not require an absence of malice; rather, the presence of adequate provocation excuses malice. Because first- and second-degree murder are not distinguished by mens rea, the jury’s finding of malice does not speak to what the jury might have done were it instructed on adequate provocation.
Chief Justice Clement also argues that premeditation and adequate provocation are mutually exclusive, reasoning that a defendant cannot "‘think about beforehand’ and ‘measure and evaluate the major facets of a choice or problem,’ … while nonetheless being ‘"‘disturbed or obscured by passion,’"’ rendering the defendant ‘"‘liable to act rashly or without due deliberation or reflection, and from passion and lack of reason rather than from judgment[.]’"’" Post at 506 (citations omitted). This argument is logically distinguishable from that of a spectrum of mens rea. If premeditation and adequate provocation were mutually exclusive, then a finding of premeditation would require a finding of an absence of adequate provocation. But even that would not mean that there is no prejudice here. Put simply, the jury’s finding of premeditation does not necessarily mean that it would have found an absence of adequate provocation had it been properly instructed.
503It will always be the case that conviction of a greater offense requires rejection of lesser included offenses. If conviction of a greater offense alone were sufficient to render an instructional error harmless, failure to instruct on a lesser included offense would never result in error requiring reversal. But that is not the case. See People v Phillips, 385 Mich. 30, 36, 187 N.W.2d 211 (1971) ("If evidence has been presented which would support a conviction of a lesser offense, refusal to give the requested instruction is reversible error …."). The reason a failure to instruct on a lesser included offense results in error requiring reversal is because it is impossible to know what a jury would do if it had been properly apprised of the lesser included offense.
Beach presented a novel circumstance in which the jury had the opportunity to convict on either conspiracy to commit armed robbery or conspiracy to commit unarmed robbery, but not on conspiracy to commit larceny. The jury’s rejection of the intermediate offense was what rendered the error harmless, answering the question of what the jury might have done with a choice. As discussed, the jury here was never instructed on the possible legal import of defendant’s mental state in light of Brooks’s physical and verbal assaults and attempts to run defendant down. The jury’s rejection of second-degree murder therefore does not answer the question of what the jury might have done had it been instructed on voluntary manslaughter.
Because defendant has established both prongs of the ineffective-assistance-of-counsel analysis, we conclude that defendant is entitled to relief in the form of a new trial.
504IV. CONCLUSION
For the foregoing reasons, we conclude that trial counsel was constitutionally ineffective in failing to request a jury instruction on voluntary manslaughter and that defendant is accordingly entitled to a new trial. We reverse the judgment of the Court of Appeals and remand the case to the Wayne Circuit Court for further proceedings consistent with this opinion.
Cavanagh, Welch, and Bolden, JJ., concurred with Bernstein, J.
Clement, C. J. (dissenting).
I respectfully dissent. Assuming without deciding that the majority is correct that defense counsel performed deficiently in failing to request a voluntary manslaughter instruction at defendant’s murder trial, I disagree that there is a reasonable probability that this error affected the outcome of the trial. Accordingly, I would have affirmed the judgment of the Court of Appeals.
To succeed on a claim of ineffective assistance of counsel, defendant must prove both that defense counsel’s performance fell below an objective standard of reasonableness and that a "reasonable probability" exists that, but for this deficient performance, "the result of the proceeding would have been different." People v Carbin, 463 Mich. 590, 600, 623 N.W.2d 884 (2001). As applied to the facts of this case, the latter inquiry asks whether there is a reasonable probability that the result of the trial would have been different had defense counsel requested a voluntary manslaughter jury instruction.
In this case, defendant was charged with first-degree premeditated murder and the jury was instructed on both first- and second-degree murder. The 505jury found defendant guilty as charged—in other words, it was unpersuaded that defendant was only guilty of the lesser included offense of second-degree murder. Central to an analysis whether defendant was prejudiced by the failure to instruct on voluntary manslaughter is whether the jury’s decision to reject the intermediate offense of second-degree murder necessarily demonstrates that the jury also would have been unwilling to convict defendant of the lesser offense of voluntary manslaughter.
This Court previously set forth this standard to answer the prejudice question in People v Beach, 429 Mich. 450, 452, 418 N.W.2d 861 (1988). Just as we do here, this Court in Beach considered when the erroneous failure to instruct the jury on a lesser included offense results in prejudice to a defendant. There, the jury convicted the defendant of conspiracy to commit armed robbery and rejected the lesser included offense of conspiracy to commit unarmed robbery. Id. at 481, 418 N.W.2d 861. On appeal, the defendant successfully argued that the trial court erred by rejecting his request to also instruct the jury regarding conspiracy to commit larceny in a building, a separate, lesser offense that (unlike either form of robbery) does not require the use or threat of force. Id. at 485-490, 418 N.W.2d 861. However, this Court ultimately determined that the error did not entitle the defendant to relief, reasoning that
[i]f the jury had doubts about [the defendant’s] guilt of the charged offense or if it concluded that the defendant was not planning to use force, it could have and undoubtedly would have, found her guilty of the instructed lesser included offense of conspiracy to commit unarmed robbery, which would represent a lesser use of force. Because it did not do so, we can conclude that it had no reasonable doubt as to the defendant’s guilt of conspiracy to commit armed robbery. We believe that the jury’s decision is a reasonable 506indication that the failure to give an instruction on the lesser included offense of conspiracy to commit larceny in a building was not prejudicial to the defendant. [Id. at 490-491, 418 N.W.2d 861.]
In other words, the jury’s rejection of the intermediate offense of conspiracy to commit unarmed robbery demonstrated the jury’s belief that defendant not only conspired to use force or the threat of force in the theft (i.e., conspired to commit a robbery), but conspired to do so while armed. Because the jury chose to convict the defendant of an offense that requires a greater use of force than the offense it rejected, it is highly unlikely that the jury would have chosen to convict on a lesser offense that lacks force. Id. at 492, 418 N.W.2d 861. Accordingly, the defendant suffered no prejudice from the trial court’s failure to instruct the jury regarding the larceny offense. Id.
While holding that the defendant was not prejudiced in Beach, this Court emphasized that a jury’s rejection of an intermediate charge does not automatically render the erroneous failure to instruct on a lesser offense prejudicial. Id. at 491, 418 N.W.2d 861. Instead, for such error to be prejudicial, "the intermediate charge rejected by the jury would necessarily have to indicate a lack of likelihood that the jury would have adopted the lesser requested charge." Id. Applying that standard to the case at hand, this Court is asked to determine whether the second-degree murder charge rejected by the jury necessarily indicates a lack of likelihood that the jury would have adopted the voluntary manslaughter charge. To answer this question, it is necessary to first examine the three offenses at issue: first-degree premeditated murder; second-degree murder; and voluntary manslaughter. "The elements of first-degree murder are (1) the 507intentional killing of a human (2) with premeditation and deliberation." People v Bass, 317 Mich App 241, 265-266, 893 N.W.2d 140 (2016) (quotation marks and citation omitted). See also MCL 750.316(1)(a) (defining first-degree murder as "any willful, deliberate, and premeditated killing"). "[T]o premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem." People v Oros, 502 Mich. 229, 240, 917 N.W.2d 559 (2018) (quotation marks and citation omitted). The existence of premeditation and deliberation can be established "by an interval of time between the initial homicidal thought and ultimate action, which would allow a reasonable person time to subject the nature of his or her action to a ‘second look.’" Id. at 242, 917 N.W.2d 559 (citation omitted).
Next, second-degree murder does not require proof of premeditation and deliberation; it is the catch-all for all other types of murder. See MCL 750.317. Second-degree murder is demonstrated through proof of: "(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse." People v Goecke, 457 Mich. 442, 463-464, 579 N.W.2d 868 (1998). Malice can be established through proof of (1) the intent to kill, (2) the intent to cause great bodily harm, or (3) the intent to do an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm. Id. at 464, 579 N.W.2d 868. See also People v Dykhouse, 418 Mich. 488, 495, 345 N.W.2d 150 (1984) (phrasing the final form of malice as "the intent to create a very high risk of death or great bodily harm with the knowledge that death or great bodily harm is the probable result"). Finally, voluntary manslaughter shares the same elements as second-degree murder, except that 508malice "is negated by the presence of provocation and heat of passion." People v Mendoza, 468 Mich. 527, 540, 664 N.W.2d 685 (2003).
Again, pursuant to Beach, the failure to instruct the jury regarding voluntary manslaughter did not prejudice defendant so long as the jury’s decision to reject the second-degree murder charge in favor of finding defendant guilty of premeditated, first-degree murder necessarily indicates a lack of likelihood that the jury would have instead found defendant guilty of voluntary manslaughter. See Beach, 429 Mich. at 491, 418 N.W.2d 861. Incorporating the legal standards at issue, defendant was not prejudiced if the jury’s finding that defendant not only killed Brooks with malice aforethought (second-degree murder) but did so with premeditation and deliberation (first-degree, premeditated murder) demonstrates an unlikelihood that the jury would have found that defendant committed voluntary manslaughter (second-degree murder with malice excused).
I submit that the jury’s verdict demonstrates such an unlikelihood. In describing the elements of premeditation and deliberation (first-degree murder) and 509malice excused (voluntary manslaughter), Michigan caselaw consistently places the terms at opposite ends of the mens rea spectrum. See, e.g., People v Younger, 380 Mich. 678, 682, 158 N.W.2d 493 (1968) ("[T]he nature and quality of the act of homicide first must be examined to determine whether it is that of an ordinary man responding to the heat of passion or that of an ordinary man functioning with deliberation."); People v Townes, 391 Mich. 578, 590, 218 N.W.2d 136 (1974) ("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 deliberation and reflection that marks the crime of murder."). Premeditation and deliberation is inherently incompatible with malice excused. How can a defendant "think about beforehand" and "measure and evaluate the major facets of a choice or problem," Oros, 502 Mich. at 240-241, 917 N.W.2d 559 (quotation marks and citation omitted), while nonetheless being "‘disturbed or obscured by passion,’" rendering the defendant "‘liable to act rashly or without due deliberation or reflection, and from passion and lack of reason rather than from judgment,’" People v Droste, 160 Mich. 66, 79, 125 N.W. 87 (1910)? Like the Beach jury’s decision rejecting an intermediate offense with a lesser amount of force demonstrating that the jury would not have chosen to convict on an offense completely lacking force, the jury’s decision here to reject a lesser offense with malice aforethought demonstrates that the jury would not have chosen to convict defendant of a killing resulting from malice that has been excused by the heat of passion. If the jury had reasonable doubts regarding whether defendant deliberated 510and reflected before murdering Brooks, it would have instead chosen to convict defendant of second-degree murder, which requires malice but no premeditation.
The Court of Appeals has previously reached the same conclusion under analogous facts in People v Zak, 184 Mich App 1, 457 N.W.2d 59 (1990) (although we cite this case as People v Zak, the facts and analysis relevant here were at issue in the companion case, People v Anderson, which was decided in the same opinion), and People v Raper, 222 Mich App 475, 563 N.W.2d 709 (1997). In both Zak and Raper, the juries were instructed on first- and second-degree murder, and the juries convicted the defendants of first-degree murder. Zak, 184 Mich App at 16, 457 N.W.2d 59; Raper, 222 Mich App at 483-484, 563 N.W.2d 709. On appeal, the defendants argued that the juries also should have been instructed regarding manslaughter, but the Court succinctly concluded in both cases that any error in failing to so instruct the juries was harmless because the juries’ rejection of second-degree murder reflected an unwillingness to convict on manslaughter charges. Zak, 184 Mich App at 16, 457 N.W.2d 59; Raper, 222 Mich App at 483-484, 563 N.W.2d 709. However, neither Zak nor Raper details how the Court reached this conclusion, somewhat limiting their usefulness here.
People v Pickens, 446 Mich. 298, 313, 521 N.W.2d 797 (1994) (alteration in original), quoting People v Wade, 101 Mich. 89, 91, 59 N.W. 438 (1894).
Further, the jury instructions given in this case make clear that the jury’s decision to convict defendant of first-degree murder was an express and knowing repudiation of a finding that defendant acted rashly or in the heat of passion. In discussing the element of premeditation and deliberation, the jury instructions provided:
Fourth, that the killing was deliberate, which means that the defendant considered the pros and cons of the killing, and thought about, and chose her actions before she did it.
There must have been real and substantial reflection for long enough to give a reasonable person a chance to think twice about the intent to kill.
The law does not say how much time is needed.
It is for you to decide if enough time passed, under the circumstances of this case.
The killing cannot be the result of a sudden impulse, without thought or reflection.
Fifth, that the crime was not justified, excused, or done under circumstances that reduce it to a lesser crime.
Again, in choosing to convict defendant of first-degree premeditated murder, the jury explicitly rejected a finding that the killing was the result of a sudden impulse. Because the jury chose the escalated mens rea of first-degree murder requiring premeditation and rejected an intermediate mens rea of second-degree murder requiring only malice, the jury’s verdict necessarily indicates a lack of likelihood that the jury would have instead chosen the mens rea of voluntary manslaughter of excused malice.
511In coming to the opposite conclusion, the majority differentiates between cases in which the jury’s verdict depended on factual findings and those in which the jury’s verdict depended on conclusions of law. Specifically, the majority reasons that in cases in which the jury’s verdict depended on factual findings, "it can be definitively determined that the jury would not have opted for a requested lesser offense," but concludes that "such a conclusion is not implicit when the charges are distinguished by a legal question like the defendant’s required state of mind …." Ante at 500–01. But the majority fails to explain why it cannot be definitively determined that a jury would not have opted for a requested lesser offense when a legal conclusion like mens rea is at issue.2a Depending on the offenses charged, a jury’s verdict rejecting an intermediate charge in favor of a greater charge can reveal the jury’s legal conclusions—just as it reveals the jury’s factual findings. And just as the reviewing court can determine whether the jury’s factual finding is contradictory to the factual finding required by the erroneously excluded instruction, the reviewing court can determine whether the jury’s legal conclusion is contradictory512 to the legal conclusion required by the erroneously excluded instruction. One could argue that the jury could have a more limited understanding of the nuances attendant to legal conclusions, making its decision in that regard less identifiable, but—at least in this case—that is not true. The jury here was specifically instructed that a finding of premeditation and deliberation meant that the killing "cannot be the result of a sudden impulse, without thought or reflection"—which is what would have been required for the jury to find defendant guilty of voluntary manslaughter. For example, the majority reasons that "[a] jury could reasonably conclude that defendant’s actions were the result of provocation to a state of emotional excitement," ante at 502, but this jury—which found that "the defendant considered the pros and cons of the killing, and thought about, and chose her actions before she did it," "th[ought] twice about the intent to kill," did not act on "a sudden impulse, without thought or reflection," and that her actions were not "justified" or "excused"—would not have reached that conclusion.
In sum, I believe that the jury’s rejection of second-degree murder and choice to convict defendant of first-degree premeditated murder necessarily indicates that the jury would not have chosen to convict defendant of voluntary manslaughter. Accordingly, assuming without deciding that the majority is correct that defense counsel rendered deficient performance in failing to request a voluntary manslaughter jury instruction, I would have found that defendant is not entitled to relief based on this error because she cannot prove that the error created a reasonable probability of a different result at trial. Instead, I would have affirmed the disposition of the Court of Appeals.
Brian K. Zahra, David F. Viviano, JJ., agrees.
Zahra, J. (dissenting).
513With one exception, I join in full Chief Justice Clement’s dissenting opinion that would affirm the jury’s verdict finding defendant, Menayetta Yeager, guilty of first-degree premeditated murder. I would not, however, "[a]ssum[e] without deciding that the majority is correct that defense counsel performed deficiently in failing to request a voluntary manslaughter instruction at defendant’s murder trial." I need not do so because "Michigan constitutional law has long held that ‘[e]rrors which cannot possibly create any prejudice to the rights of one charged with crime ought not to, and cannot, operate as a ground for a new trial.’"1b As Justice Cooley explained, "[i]t is possible to be so nice in such matters as to render a legal conviction of crime practically impossible; and while the court should see to it on the one hand that no wrong shall be done the defendant, so on the other they are not to set aside a conviction obtained on a fair trial …."2b "In other words, ‘[w]e require a fair trial, not a perfect trial.’"3b "Hence, under Michigan law, counsel’s ineffective assistance must be found to have been prejudicial in order to reverse an otherwise valid conviction."4b
In this case, the majority opinion improperly relies on an ineffective-assistance claim to expand what may qualify as the heat of passion necessary for voluntary 514manslaughter. It is entirely speculative to hold that defense counsel performed deficiently by failing to request a jury instruction that the trial court may have declined to issue.
I decline the majority’s invitation to weigh in on whether fear or terror may qualify as the heat of passion necessary to support a voluntary manslaughter instruction because doing so would build a strawman argument relating to counsel’s performance that might be erroneously relied upon in future cases.
At the Ginther hearing on remand from this Court, defendant’s trial counsel was questioned as follows by defendant’s appellate counsel:
People v Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973).
Q. In her testimony, did Miss Yeager describe having a reasonable time to calm down? After the assault, and the ongoing threats? A. Yes. Well, the rudimentary answer to that question, is, yes, and I’m gonna explain to you, how.
When she gets to the gas station, she’s on the phone.
There is at least about six, seven, eight minutes before the second contact is made.
That is where she’s made contact with the other witness, he testified, at trial, which is the Samaritan.
Where she was able to talk to him.
And, also, too, she was in another whole vehicle, and she was now with another person, and she was in a situation of relative safety.
That truck didn’t have to stay there.
That man didn’t have to stay there.
She could have ran [sic] into the gas station.
Uh, so, the, uh, she was in another person’s vehicle.
She could have said, hey, drive to the Police station.
Drive off.
515Okay?
That was the situation.
That was the situation.
She didn’t—and then he is, too.
She didn’t have to get out of the truck.
Had the trial court viewed the case similarly, it likely would have concluded that there was insufficient evidence to support a voluntary manslaughter instruction. See People v Pouncey, (concluding that a voluntary manslaughter instruction was not supported when the defendant "went into the house, a safe harbor" and was not "compelled to go back outside by anyone" before killing the victim); People v Mendoza, (explaining that a voluntary manslaughter instruction is unsupported when "a reasonable time has elapsed for the [defendant’s] blood to cool and reason to resume its habitual control") (quotation marks and citation omitted). Furthermore, defense counsel should not be second-guessed on the strategy choice to not seek a manslaughter instruction as the jury would likely be confused because defendant was also pursuing an arguably incompatible self-defense claim. Given the strength of the Chief Justice’s dissenting opinion in regard to prejudice, I am not inclined to assume that a request for a jury instruction on voluntary manslaughter would have or should have been granted in this case.
People v Pouncey, 437 Mich. 382, 392, 471 N.W.2d 346 (1991).
People v Mendoza, 468 Mich. 527, 535, 664 N.W.2d 685 (2003).
David F. Viviano, J., agrees.