Michael L. Perry
Age at time of incident: 16
Conviction: Felony murder of Nicole Rollie,
11, LaRhonda Rollie, 9, and Isaak Rollie, 7, on June 14, 1990
Details: Perry threw Molotov cocktails into
the Rollie family house at 1723 Jordan in Saginaw. Perry’s
co-defendant, an unnamed 13-year-old boy, had threatened the victims’
12-year-old brother Ryan. Willie Rollie, the childrens’ father, had
reported the threats to police four times. The 13-year-old made the
cocktails and kept them in his garage near the Rollie home. He said he
lit the bombs and Perry threw them into the house. The three children
died of smoke inhalation, while their parents — Willie and Cynthia —
and brother jumped from a second-floor window. The 13-year-old was
found guilty only of arson.
'Truthfully, I don't know:' Juvenile lifer who
firebombed Saginaw home admits guilt but can't remember his intentions
By Andy Hoag - Mlive.com
November 7, 2011
Michael L. Perry has admitted his guilt.
But as to why, as an intoxicated 16-year-old
searching for acceptance, he helped a 13-year-old he had just met
firebomb the Rollie family’s West Side Saginaw home, killing three
children, the former Saginaw man, serving life in prison without
parole, doesn’t have the answers.
“I don’t know,” he says to a reporter during a
meeting in a parole board interview room inside the Saginaw
Correctional Facility — a room where he never will have the chance to
plead for freedom. “Truthfully, I don’t know.”
Perry, now 38, is among 21 men who are serving life
in prison without any chance of parole for murders they committed in
Saginaw County when they were juveniles. A federal judge in Detroit is
weighing whether sentencing teens in adult courts to die behind bars
Perry doesn’t know why he and Jacinto Rico, his
friend’s sister’s boyfriend, went to 1723 Jordan, where the six
members of the Rollie family lived, early June 14, 1990.
Perry doesn’t know who lit the wicks to the Molotov
cocktails that Rico brought from his house, though Perry remembers
throwing at least one of them.
“We were out there with some bottles we had,” he
says. “One went in the house. It was both of us (who threw the
bottles), but at first it was just me.”
Eleven-year-old Nicole Rollie, 9-year-old LaRhonda
Rollie and 7-year-old Isaak Rollie all died in the arson, while their
parents, Cynthia and Willie Rollie, and their older brother, Ryan
Rollie, survived by jumping out of the second-story window.
What Perry does know — or began admitting about 11
years ago — is that he’s guilty.
Squabble over golf balls
Perry says now that he’s learned both from
psychologists who examined him and from his own self exploration that
he would “do whatever to gain acceptance.” The psychologists referred
to him as a “do or dare individual,” Perry says.
“At first I didn’t believe that, but looking back,
wow, they were right,” he says. “As I look at myself, I realize how
very immature I was. I probably acted younger than my age. I was
Perry was drinking the night of June 13 and into
the morning of June 14 when he found himself at Rico’s home. He had
seen Rico one other time but “never communicated” with him. Once they
started throwing the firebombs, Rico ran, Perry says.
“I remember him taking off running before I did,”
he says. “I didn’t realize he was gone. Once I realized he was gone, I
Perry made it back to Rico’s house before Rico did,
and Perry remembers that as strange, he says. Rico arrived, and Perry
went back to his mother’s house, where he was arrested later. He was
scared. It wasn’t until he was listening to a radio broadcast in a Bay
City juvenile detention center that he realized the prosecutors would
attempt to charge him as an adult with first-degree murder.
Saginaw County Prosecutor Michael D. Thomas says
the arson “happened in my boyhood home’s backyard.” Thomas, who does
not personally try many cases, handled the prosecution of Perry. While
Perry says he had never spoke with Rico, Thomas says “the motivation
for the firebombing was nothing more than Ryan Rollie was getting more
golf balls out of the pond (in the golf course) at the Germania (Town
and Country Club) than Rico and Perry were, and they wanted to teach
him a lesson by throwing firebombs into the house.”
Isaak Rollie, the youngest child, became
disoriented by the smoke and was caught on one of the home’s
stairways, Thomas says.
“He ended up having his body burned beyond
recognition to the point that the only way we could find out who was
dead was through dental records,” Thomas says.
The two young girls also were disoriented by the
smoke in an upstairs bedroom. They could have jumped out of a window,
just as their parents and older brother had, but they couldn’t find
it, Thomas says. Their bodies were found “2 inches away” from the
window, he says.
The mother, Cynthia Rollie, since has died. The
Saginaw News was unable to reach Willie Rollie or Ryan Rollie.
“I’ve had dreams about it,” Perry says of the
arson. “Do I think about it? All the time. There’s not a time when it
doesn’t cross my mind. It’s not something that easily can be
Old enough to know better?
Because Perry was 16 at the time of the incident,
prosecutors had to show in Saginaw County Probate Court that they
should be allowed to charge him as an adult. Prosecutors couldn’t
charge Rico as an adult because at the time, state law prevented it.
Probate Referee Dwight T. Lewis waived jurisdiction on Perry’s case
over to Circuit Court, where Perry could be tried as an adult.
Perry testified during his trial that he saw two
other people whom he didn’t know throwing the firebombs at the house,
and Rico, who was convicted of arson but acquitted of murder in
juvenile court, exercised his Fifth Amendment right to not testify
against himself. The trial ended in a hung jury, so Thomas tried him
again. This time, Perry didn’t testify, and Rico did, claiming that he
told Perry to not throw the firebombs in the house. After deliberating
for about 3.5 hours, a jury found Perry guilty of three counts each of
first-degree murder and attempted murder and a single count of arson.
Saginaw County Circuit Judge Leopold Borrello, who
presided over both trials, waited four months to sentence Perry as he
listened to testimony from psychological experts and considered other
factors before deciding whether to sentence Perry as a juvenile —
still an option in 1991 — or as an adult. The difference was one that
Borrello remembers to do this day.
If he sentenced Perry as a juvenile, Perry, 17 by
the time of the sentence, could be released by the time he was 19 or,
at the latest, 21. If he sentenced him as an adult, Perry would never
see the light of day, as life without parole was, and still is,
mandatory for first-degree murder.
“The thing was, I didn’t think he was the major
perpetrator,” Borrello says now. “He happened to be at the wrong place
at the wrong time. He went along with this little kid, who was really
the brains behind it.”
Still, Borrello decided that a possible sentence of
one or, at the most, three years did not fit the crime.
“The kid was guilty, there’s no question about
that,” the judge says. “If it would have been second-degree murder or
something like that, I would have had a lot of leeway.”
He sentenced Perry as an adult, and Perry cried.
But he didn’t really understand what was ahead of him.
'Truthfully, I don't know:' Juvenile firebomber
finds God in prison, maintains perspective on whether he should ever
Hearing the sentence, Michael L. Perry dropped his
head into his hands and wept.
“All I could think about was my family, my little
brother,” Perry, 38, says now, thinking back. “You hear natural life,
and in a way you have a concept of it, but as time passes, the whole
concept changes. I feel like I’ve went through that process twice.”
Perry, sentenced to life in prison without parole,
has gone 11 years without a “major ticket,” a significant violation in
prison, such as fighting. Before that, though, he was the same
teenager and young adult searching for acceptance.
“I had a hard time adjusting,” he says. “I tended
to get in a little bit of trouble. I felt I had to prove myself.”
What changed Perry’s behavior and attitude is
simple yet all encompassing.
“Finding God, finding myself,” Perry says. “As I
became more mature, I realized it was not about acceptance. You can’t
make people happy, and you can’t always make people accept you."
Perry says his religious beliefs have made him a
much different man than the “kid who was lost, scared, seeking
acceptance” in 1990, he says. These days, he begins working at 6:30
a.m., sweeping, mopping, dusting and picking up trash in the prison.
He obtained his General Education Development certificate in 1992 and
certifications in custodial maintenance and business education. He
spends some time reading and studying the Bible and other books
regarding biblical history or religious theology. As a church leader,
he helps conduct services.
“I’ve always tried to keep a job or some type of
educational programming going for myself,” Perry says, adding that he
also teaches GED test preparation to younger prisoners and anger
management from a biblical perspective. If Perry ever receives a
commutation or pardon, he plans to continue to try to help young
people, he says.
“I can never express how sorry I am for all that’s
happened,” he says. “I just hope that one day that I could get out
prison and be able to change somebody’s life in a positive way.”
Perry says he sent a letter to Saginaw County
Circuit Judge Leopold Borrello, who sentenced him, in 2003 that
included a letter of apology he asked the judge to forward to the
Rollie family. Perry says he received only a brief response from
Borrello in which the judge said he could not locate the Rollie
“I don’t want to try to get a hold of them
directly,” he explains. “I wouldn’t want them to be scared of me,
like, ‘How did this guy contact us?’ But I have wanted to establish
some contact with them.”
Perry also is a member of Juveniles Against
Incarceration for Life, which Perry says “tries to help bring
awareness” to legislative and court attempts to allow juvenile lifers
an opportunity for parole.
“My hope right now is that one day I do get out,”
he says. “It’s the one thing that keeps me moving forward. I don’t
ever see myself giving up, but if I end up doing life here, I’ll be
all right with Jesus Christ regardless.”
That strength has impressed his mother, Maria
Chavira, who puts “a lot of the blame” on herself, despite Perry’s
“I just can’t believe the person he’s been,” she
says. “He’s the strongest person I know. I just can’t believe that
he’s been there that long.”
Chavira and her husband, Ramiro Chavira, visit
Perry in prison, as do a pastor and his wife and another pastor from
the Flint area. Perry’s younger brother visited too, but he has since
died in a car crash.
Losing her younger son has given Maria Chavira
perspective on whether she should see her son outside of prison walls.
“Michael does deserve to be out,” she says. “I feel
for the people that this happened to; they lost their kids. We lost
our son in an accident. We more or less forgave (the driver), because
we know it was something where he knew what he was doing, yes, but it
was an accident.”
She thinks Rico, Perry’s co-defendant, was more
involved and that prosecutors “had to punish someone, so they got
Michael. They said he’s the oldest, he’s the one who’s going to get
“I truly do believe Michael should be home.”
Perry says he doesn’t compare his situation to that
of Rico, who did not return a phone message seeking comment.
“Should he have been convicted of more? Yeah,
probably,” Perry says. “Do I wish I was in his shoes and him in mine?
I don’t compare it like that. I’m accountable for what I’ve done.”
Borrello, the judge, says “the guy who started it
all went free, but I had no right to consider that necessarily” when
deciding whether to sentence Perry as an adult.
“I had no choice,” he adds. “I did what I could,
making statements (on the record), but that doesn’t help. Someday it
Perry applied for a commutation in May of last
year, but he was rejected 13 months later. He can reapply in May 2012.
He thinks he deserves an opportunity for parole.
“If I put myself in (the Rollie family’s) shoes,
what would you think? Anyone would feel that they were robbed or
deprived of justice,” he says. “At the time same time, how do you do a
juvenile like that? Do you just treat them as an outcast and just give
up on them?
“I think we do deserve an opportunity to have a
second chance. I think everybody does."
Supreme Court of Michigan
People v. Perry
PEOPLE of the State of Michigan, Plaintiff-Appellee,
Michael Lee PERRY, Defendant-Appellant.
Docket No. 107621.Calendar No. 1.
Argued Dec. 10, 1998. -- June 15, 1999
Frank J. Kelley, Attorney General, Thomas L. Casey,
Solicitor General, Michael D. Thomas, Prosecuting Attorney, and J.
Thomas Horiszny, Assistant Prosecuting Attorney, Saginaw, for the
people.State Appellate Defender (by Susan M. Meinberg), Detroit, for
the defendant-appellant.Norm Donker, President, John D. O'Hair,
Prosecuting Attorney, and Timothy A. Baughman, Chief, Research,
Training and Appeals, Detroit, for amicus curiae, Prosecuting
Attorneys Association of Michigan.
Defendant was convicted of first-degree murder and
several other offenses. At trial, his attorney requested that the
jury be instructed on the common-law offense of accessory after the
fact, but the circuit court refused to give the instruction. The
Court of Appeals affirmed. We hold that the common-law offense of
accessory after the fact is not a cognate offense of murder, and we
The crime occurred on June 14, 1990. Shortly
before dawn, two Molotov cocktails were thrown through the living room
windows of the Saginaw home of a family named Rollie. Flames and
smoke soon engulfed the house, and three young children died in the
fire. The parents and one child survived.
A thirteen-year-old juvenile named Jacinto (Jason)
Ricco was involved in starting the fire. He had a history of
taunting and threatening members of the Rollie family. In August
1989, he had stood in the street outside their house, yelling
invective that included specific mention of a firebomb. Further,
Ricco had an interest in such devices and acknowledged being in the
vicinity of the Rollie house, with the two Molotov cocktails, at the
time of the fire.1
Sixteen-year-old defendant Michael L. Perry was in
the company of Ricco and several friends at the Ricco house through
the night of June 13-14. Around the time of the fire, defendant and
Ricco left. When they returned, they were panting as though they had
been running. They were arguing about the fire. Ricco later
testified that defendant threw the devices into the Rollie home, using
a towel to keep fingerprints off the bottles.2
A second witness told the police that defendant had made such an
admission after he and Ricco returned, but the witness' testimony at
trial was inconsistent regarding whether he heard an admission from
defendant or an accusation from Ricco.
After the fire, defendant and Ricco were in a
bathroom of the Ricco house, where they were heard arguing. The
toilet flushed several times. A swab taken inside the toilet bowl
later revealed traces of the same type of fuel as the accelerant used
to start the fire. Defendant was also part of a discussion
concerning disposal of the container in which the fuel had been
stored. Later, defendant and Ricco were seen near the burning house,
watching the fire.3
Defendant was charged as an adult 4
with three counts of first-degree (felony) murder for killing three
children in the Rollie family,5
one count of burning a dwelling house (arson),6
and three counts of attempting to murder the three surviving members
of the Rollie family.7
Following a mistrial, defendant was tried again in February 1991.
Defendant did not testify or offer any proofs.
His attorney argued to the jury that defendant was not guilty. “We're
denying any involvement in it period, paragraph.” Counsel also
argued that later events could not constitute aiding and abetting the
Members of the jury, when the Court instructs you
on the aiding and abetting instruction that the prosecutor referred
to, one of the elements of aiding and abetting is that any
participation has to be done with the intent to commit the crime
before or during the commission of the crime, or participation with
knowledge that the other person has an intent to commit a certain act,
a certain offense. So that what happens afterwards not-does not
constitute aiding and abetting after the crime is complete. So that
the-it's basically irrelevant at this point what happened in the
bathroom anyway, but I'm-I don't think you can accept beyond a
reasonable doubt [another witness'] testimony that it was-one of the
voices she heard was Mr. Perry, under the circumstances as they
existed at that time.
The court instructed the jury on the elements of
the charged offenses, and on the lesser offenses of second-degree
and involuntary (gross negligence) manslaughter.9
The court told the jury that it could find defendant guilty if he
aided another in the commission of the crime.10
However, the court refused defense counsel's request for an
instruction on the common-law offense 11
of being an accessory after the fact.12
After a statutory hearing,13
the circuit court sentenced defendant as an adult,14
imposing life terms for murder 15
and ten- to twenty-year sentences for attempted murder.16
The Court of Appeals affirmed. 218 Mich.App. 520,
554 N.W.2d 362 (1996). In his lead opinion, Judge batzer, sitting by
assignment, upheld the circuit court's conclusion that accessory after
the fact is not a proper cognate offense of murder. Judge o'Connell
wrote a short concurrence, in which he expressed agreement with the
lead opinion. Judge bandstra dissented, saying that defendant should
be given a new trial, at which the jury would be instructed on
accessory after the fact.
Defendant's application for leave to appeal was
granted, limited to whether the circuit court erred in denying the
defense request for an instruction on accessory after the fact as a
cognate lesser offense of murder. 457 Mich. 870, --- N.W.2d ----
In recent years, this Court has considered the
topic of lesser offenses on several occasions. Comprehensive
discussions are found in People v. Hendricks, 446 Mich. 435, 441-451,
521 N.W.2d 546 (1994), and People v. Bailey, 451 Mich. 657, 667-676,
549 N.W.2d 325 (1996).
It is not necessary again to set forth at length
the principles outlined in Hendricks and Bailey. However, we
reaffirm our statement in Hendricks that “ ‘[c]ognate’ lesser included
offenses are those that share some common elements, and are of the
same class or category as the greater offense, but have some
additional elements not found in the greater offense.” 17
446 Mich. at 443, 521 N.W.2d 546. Applying those guides, we
concluded in Hendricks that udaa18
is not a cognate offense of armed robbery.
This analysis leads to the conclusion that udaa and
armed robbery are not of the same class or category, and that udaa is
not a possible cognate offense where the primary offense charged is
armed robbery. udaa, while a property offense, lies within a
hierarchy in line with, but below, the outer reaches of larceny.
While bearing some relationship to theft, it requires no larcenous
intent. Armed robbery also bears some secondary relationship to
larceny, but is principally directed at protection of the person.
That crime evinces a primary concern for the threat to the safety of
the individual inherent in the manner chosen by the perpetrator to
accomplish his larcenous end. Whatever distant association the two
offenses may have through their relationship to larceny is simply too
tenuous to allow us to conclude that udaa and armed robbery are of the
same class or character as required for cognate offense instruction.
[446 Mich. at 450-451, 521 N.W.2d 546.]
In light of that analysis, it inevitably follows
that the common-law offense of accessory after the fact is not in the
same class or category as murder. Plainly, the purpose of the murder
statute is to protect human life and prohibit wrongful slayings. By
contrast, an accessory after the fact is “one who, with knowledge of
the other's guilt, renders assistance to a felon in the effort to
hinder his detection, arrest, trial or punishment.” Perkins,
Criminal Law (2d ed), p. 667, quoted in People v. Lucas, 402 Mich.
302, 304, 262 N.W.2d 662 (1978). The crime of accessory after the
fact is akin to obstruction of justice. United States v. Brenson, 104
F.3d 1267 (C.A.11, 1997). Laws forbidding the obstruction of justice
clearly serve a different purpose than those that forbid the taking of
As indicated, a comparison with Hendricks is
instructive. In that case, the question was whether udaa was a
cognate offense of armed robbery in a case in which the defendant
drove away in the victim's automobile and later testified that he had
not intended to deprive her of the vehicle permanently. Here, in
contrast, the charged offense involved a murderous arson accomplished
by throwing Molotov cocktails into a home where a family slept, while
the putative offense of accessory after the fact took place shortly
afterward, at another site, for another purpose. udaa not being a
cognate offense of armed robbery, certainly the common-law offense of
accessory after the fact is not a cognate offense of murder.19
Writing in dissent, Judge bandstra focused on the
evidentiary support in this record for the conclusion that defendant
was, indeed, an accessory after the fact. In this vein, he correctly
noted that a jury is free to believe or disbelieve, in whole or in
part, any of the evidence presented. People v. Fuller, 395 Mich. 451,
453, 236 N.W.2d 58 (1975). However, evidentiary support for a
cognate instruction is not alone sufficient to require that the
instruction be given. As explained in Hendricks and Bailey, the
putative cognate offense also must be of the same class or category.20
Thus, while Judge bandstra is correct that “[i]f defendant had been
originally charged as an accessory after the fact in this case, the
evidence adduced at trial would clearly have supported a guilty
verdict with regard to that charge,” it does not follow that
“[d]efendant was entitled to the requested instruction regarding
accessory after the fact, and the trial court erred in failing to
grant that request.” 218 Mich.App. at 551-552, 554 N.W.2d 362.
Several decisions of the Court of Appeals also have
been urged upon us, as examples of sound analysis in this realm.
These include People v. Rohn, 98 Mich.App. 593, 602, 296 N.W.2d 315
(1980), People v. Usher, 196 Mich.App. 228, 231-234, 492 N.W.2d 786
(1992), People v. Kurzawa, 202 Mich.App. 462, 509 N.W.2d 816 (1993),
and People v. Cadle, 204 Mich.App. 646, 657, 516 N.W.2d 520 (1994).21
However, Rohn and Cadle are instances in which a court looked only at
whether the evidence showed that the defendant had committed the
cognate offense, omitting to consider whether it was of the same class
or category as the offense charged. As indicated above, both
analytical steps are necessary. In Usher, the defendant proposed
that accessory after the fact was a cognate offense of murder; yet
when the trial court agreed and the defendant was so convicted, he
argued on appeal that it was not a cognate offense. The panel in
Kurzawa did not face the issue we consider today. To the extent that
these decisions are inconsistent with our holding today, they are
Finally, we reject defendant's claim that he was
denied due process of law because the circuit court would not give an
instruction that accorded with his theory of the case. As noted on
page 479, the defense was simply that he was innocent of the charges
laid by the prosecutor; nothing prevented defendant from urging that
defense. Cf. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038,
35 L.Ed.2d 297 (1973), Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105,
39 L.Ed.2d 347 (1974). Defense counsel diligently cross-examined the
prosecution witnesses, and, though he declined the opportunity,
defendant likewise was free to present proofs to the jury. The only
limitation placed on defendant was that he was not permitted to select
an alternative charge, of a different class or category, to present to
the jury. That choice lay with the prosecutor, subject to the
circuit court's right to amend the information sua sponte or on proper
For the reasons set forth in this opinion, we hold
that the common-law offense of accessory after the fact is not a
cognate offense of murder, and that the circuit court did not err in
refusing to give such a cognate instruction to the jury.23
Accordingly, we affirm the judgments of the circuit court and the
Court of Appeals.
The majority decides this case under an arbitrary
rule that severely limits the ability of this state's criminal juries
to find the truth. The evidence in this case was subject to three
reasonable interpretations: that the defendant was guilty of the
charged offense, that he was not guilty of the charged offense, or
that he was not guilty of the charged offense, but guilty of the
common-law crime of accessory after the fact. The trial court's
failure to give an instruction on the cognate lesser offense of
accessory after the fact deprived the jury of the ability to agree
with one of these interpretations, potentially foreclosing its ability
to render a true verdict. Because I believe that there are neither
sound reasons nor sound reasoning behind the Court's decision today, I
A trial judge need not instruct the jury on a
cognate lesser offense unless that lesser offense is of the same
“class or category” as the charged offense. People v. Bailey, 451
Mich. 657, 668, 549 N.W.2d 325 (1996). This rule, which the majority
relies upon in the instant case, is based on the defendant's due
process right to have notice of the charges against him before he can
be convicted of them. US Const, Ams VI, XIV; Const 1963, art 1,
§ 20. While this state's cognate lesser offense doctrine has its
origin in this concern for the defendant's due process rights, it has
been inexplicably extended to those cases in which the defendant
requests the instruction in question, thus waiving his right to
notice. People v. Ora Jones, 395 Mich. 379, 387, 236 N.W.2d 461
Our recent interpretations of the cognate lesser
offense doctrine have transformed it from a rule protecting the
defendant's notice rights, into a formalistic bar serving no purpose
but to limit a criminal defendant's ability to require trial judges to
give lesser offense instructions. Today's holding is the latest of
these decisions, unmoored from the principles that underlie it. I
dissent, and propose that we make this rule of law responsive to the
purposes for which it exists.
This Court's decision in Ora Jones is the origin of
our modern lesser offense jurisprudence. Ora Jones cognate lesser
offense analysis is fundamentally flawed, however, because it is
based on the erroneous premise that a criminal defendant may not be
convicted of an uncharged lesser offense, even though the defendant
has requested instruction on that offense.
It is elementary that a defendant may not be
convicted of a crime with which he was not charged․ The reason is
apparent: The Sixth and Fourteenth Amendments give a defendant the
right to know the nature and cause of the accusation against him.
Thus, while there is comparatively little
difficulty with the necessarily included lesser offenses, the cognate
lesser included offenses are somewhat more difficult to ascertain,
conceptually as well as practically. One guide to the minimal due
process notice requirements in this area was set out in Paterno v.
Lyons, 334 U.S. 314, 68 S.Ct. 1044, 92 L.Ed. 1409 (1948), wherein the
[United States Supreme] Court said that due process notice
requirements are met if the greater charged crime and the lesser
included offense are of the same or of an overlapping nature. [Id.,
p. 388, 236 N.W.2d 461 (citations omitted).]
The Ora Jones Court never explained, however, why a
test is required to protect the defendant's due process rights, where
“defense counsel requested the trial judge to instruct the jury” on
the cognate lesser offense at issue. Id., p. 385, 236 N.W.2d 461.
We have recently recognized that “[n]otice would
always be satisfied where the defendant requests the instruction.”
People v. Hendricks, 446 Mich. 435, 443, n. 13, 521 N.W.2d 546
(1994). Despite this observation, we went on to state in Hendricks
that “it is apparent from Ora Jones that the same class or category
requirement retains its force even when it is the defendant who
requests the lesser offense instruction.” Id. But Ora Jones advanced
only one justification for requiring that a requested cognate lesser
offense be in the same class or category as the charged offense: “to
provide fair notice to the defendant that he will be required to
defend against it․” Id., p. 388, 236 N.W.2d 461. We have failed to
articulate, in Hendricks or any other case, a legitimate reason why
this requirement should “retain its force” when the stated reason for
creating it was flawed, and in fact nonexistent.
Hendricks did suggest that restrictions on the
defendant's ability to demand cognate lesser offense instructions are
“ ‘required to prevent misuse of lesser included offense instructions
by the defense.’ ” Id., p. 446, 521 N.W.2d 546, quoting People v.
Stephens, 416 Mich. 252, 262, 330 N.W.2d 675 (1982), citing United
States v. Whitaker, 144 U.S.App.D.C. 344, 447 F.2d 314 (1971).1
“In the absence of such restraint defense counsel
might be tempted to press the jury for leniency by requesting lesser
included offense instructions on every lesser crime that could
arguably be made out from any evidence that happened to be introduced
at trial. ‘An element of the mercy-dispensing power is doubtless
inherent in the jury system, and may well be a reason why a defendant
seeks a lesser included offense instruction, but it is not by itself a
permissible basis to justify such instruction.’ ” [Hendricks, supra,
p. 446, 521 N.W.2d 546, quoting People v. Steele, 429 Mich. 13, 20, n.
4, 412 N.W.2d 206 (1987), quoting Whitaker, supra, p. 349, 447 F.2d
These purported rationales are unjustified. They
show a lack of confidence in the ability of this state's trial judges
to exercise sound discretion in determining which defense theories can
be rationally supported by the evidence fairly set forth at trial.
Most important, they ignore the fundamental purpose of a trial, which
is to determine which of two or more competing versions of the facts
is actually true. By partially foreclosing the jury's ability to
find the truth, simply because of lack of faith in the trial judge's
discretion, this Court inverts its priorities.
I have been unable to discover any legitimate
justification for requiring that a cognate lesser offense be of the
“same class or category” as the charged offense, in order to grant a
We should reverse this line of cases, founded on a faulty premise,
and institute a rule that is actually based on the legitimate purposes
We have recognized that the fundamental purpose of
criminal trials is the discovery of the truth:
The object of a criminal trial is a determination
of the question whether the defendant has committed the crime charged
or some related offense on the basis of evidence presented relating to
the event or events in question at trial. Additionally,
determination of what crime, if any, a defendant is guilty of is
necessary so that the proper punishment may be imposed. In order to
achieve this end, especially in a jury trial, clarity must be
maintained regarding those crimes for which a defendant may be
convicted. [Hendricks, supra, pp. 446-447, 521 N.W.2d 546.]
We adopted the language of the United States
Supreme Court in explaining this point:
“The absence of a lesser included offense
instruction increases the risk that the jury will convict, not because
it is persuaded that the defendant is guilty of capital murder, but
simply to avoid setting the defendant free․ The goal ․, in other
words, is to eliminate the distortion of the factfinding process․”
[Id., p. 447, 447 F.2d 314, quoting Spaziano v. Florida, 468 U.S.
447, 455, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984).]
In Hendricks, our answer to this problem of “the
distortion of the factfinding process” was to artificially limit
potential instructions because of our lack of faith in the trial
judge's ability to determine proper instructions on the basis of the
evidence: “it is likely that the evidence introduced will be
‘whatever manner of evidence ․ of use in obtaining a charge on the
least punitive lesser included offense possible in order that the
jury may have the opportunity to be merciful.’ ” Id., quoting
Ettinger, In search of a reasoned approach to the lesser included
offense, 50 Brooklyn L R 191, 217 (1984). This is simply the wrong
approach to the potential problem of distorted jury fact finding.
Any evidence introduced must be relevant to the facts underlying the
charged offense and cannot be overly confusing, repetitive, or
unfairly prejudicial. MRE 401, 403. A theory that may be
rationally based on such evidence is also proper for the jury to
Even accepting as true Hendrick's statement about
the admission of “whatever manner of evidence,” it is unclear how our
method of limiting permissible defense theories is related to the
[T]he method of management adopted by this Court is
to limit instruction to those offenses that bear a sufficient
relationship to the principal charge in that they are in the same
class or category, protect the same societal interests as that
offense, and are supported by the evidence adduced at trial. [Id.]
I find no relationship whatever between our concern
that “whatever manner of evidence” will be admitted, and our remedy of
limiting requested cognate lesser offense instructions to those that
are of the same class or category as the charged offense. The proper
method of addressing the problem of distortion of the fact-finding
process is to admit relevant evidence, and then closely scrutinize the
evidence admitted to determine whether a rational view of that
evidence would support a conviction of the cognate lesser offense for
which an instruction is requested.5
Here, the trial court's refusal to instruct on the
cognate lesser offense of accessory after the fact distorted the
fact-finding process. The only substantial evidence linking the
defendant directly with the charged crime was the testimony of Ricco,
who himself was strongly implicated in the crime. More extensive
testimony was given by four other witnesses, linking the defendant to
the post-crime acts of destroying evidence and impeding investigation
of the crime. The jury could well have chosen to believe the four
witnesses to the events after the arson and disbelieved the testimony
of the codefendant regarding the arson itself. If this had been the
case, the jury could have correctly found that the defendant did not
take part in the actual firebombing and convicted him of the
reprehensible acts of trying to hide the crime.
Because the jury was not permitted to find him
guilty of being an accessory after the fact, however, and because he
was the only defendant before it accused of a horrible crime, the jury
might have chosen to convict him “ ‘not because it is persuaded that
the defendant is guilty of capital murder, but simply to avoid setting
the defendant free.’ ” Hendricks, supra, p. 447, 521 N.W.2d 546,
quoting Spaziano, supra, p. 455, 104 S.Ct. 3154. Thus, the Hendricks
rule, purportedly intended to protect the truthfinding process, may
well have prevented the jury from finding the truth in this case.
The rule articulated in Hendricks and followed in
this case is without reason and serves no purpose other than to make
it more difficult for the defendant to demand a jury instruction on a
cognate lesser offense. This case powerfully demonstrates the
arbitrary nature of the rule: a viable, potentially persuasive
defense theory, based on the testimony of prosecution witnesses, was
foreclosed because it was not of the same class or category as the
charged crime. This Court should recoil from such formalism.
A proper rule would permit the defendant to demand,
and require the trial judge to give, a jury instruction on a cognate
lesser offense where a reasonable view of the evidence would support
the jury in finding the defendant guilty of the lesser offense. The
current rule distorts the jury's fact-finding role, potentially
depriving it of the ability to reach a true verdict. Rules
propounded by this Court should bear some relationship to the purposes
underlying them. I would reverse the holding of the Court of
was tried as a juvenile and adjudicated guilty of arson, not of
said that he did not actually see Mr. Perry throw the devices-he said
he turned and ran as Mr. Perry was preparing to throw them, and then
heard “two wooshes or something, like you could tell something was
exploding, kind of lighting on fire like something like that.”
portions of the testimonial record are cited as evidence that
defendant was an accessory after the fact. For the same purpose, we
are asked to note evidence that defendant may have helped to detain
one of the other witnesses who wanted to call the fire department.
With children dying in a fire, however, steps to slow or prevent the
arrival of fire fighters could properly be treated as acts in the
commission of murder, rather than assistance after the fact.
Further, the act of flushing the accelerant down the toilet after the
bombing could also be construed as an act committed in furtherance of
the charged offenses.
600.606; MSA 27A.606.
750.316; MSA 28.548.
750.72; MSA 28.267.
750.91; MSA 28.286.
750.317; MSA 28.549.
750.321; MSA 28.553.
this regard, the court gave the instruction found in CJI2d 16.4(7), as
well as the broader language of CJI2d 8.1.
750.505; MSA 28.773.
8.6 is the standard instruction on the offense of accessory after the
fact. CJI2d 8.7 explains how aiding and abetting differs from being
an accessory after the fact.
769.1(3); MSA 28.1072(3). See MCR 6.931. Such a hearing is now
inapplicable for the offenses committed in the present case. MCL
769.1(1); MSA 28.1072(1), as amended by 1996 PA 248.
was a difficult decision-the court expressly found that neither
sentencing alternative (a juvenile disposition or concurrent
nonparolable life terms) was just.
was not sentenced for the arson conviction, since it was the felony
underlying the murders. People v. Wilder, 411 Mich. 328, 308 N.W.2d
circuit court's judgment of sentence includes a recommendation that
future Governors consider the defendant for commutation after he has
served twenty years.
principle is traceable, as noted by the dissent, to People v. Ora
Jones, 395 Mich. 379, 236 N.W.2d 461 (1975). The dissent would
overrule this part of the Jones case. We note that after oral
argument we asked the parties to brief whether we should abandon our
current approach to lesser offense instructions. The prosecution has
urged us to abandon our current approach in favor of the federal model
that does not allow cognate lesser instructions. The California
Supreme Court took such a course of action in People v. Birks, 19
Cal.4th 108, 77 Cal.Rptr.2d 848, 960 P.2d 1073 (1998). Although
several arguments in favor of adopting the federal model are
attractive, we hold that this is not the case for such a change,
largely because defendant was not entitled to an accessory after the
fact instruction under our existing cognate lesser jurisprudence. We
do, however, notify bench and bar that we are prepared in a more
appropriate case to consider adopting the federal model regarding
lesser offense instructions.
750.413; MSA 28.645.
court's authority to instruct on lesser offenses flows from M.C.L.
§ 768.32; MSA 28.1055 and the interest of both defendants and
prosecutors in seeing that juries do not return unjust verdicts when
faced with all-or-nothing choices. However, a tension sometimes
exists between this shared interest and the rights of the parties.
Specifically, the defendant has a right to notice of the charge, while
the prosecutor has the right to select the charge and avoid verdicts
on extraneous lesser offenses preferred by the defendant. In the
present case, the defendant's actions at the Ricco home, where he
apparently sought to hide evidence of the crime, are closely enough
related to the crime of setting the fire that the prosecutor could
have chosen to file an eighth count in the information, charging the
defendant as an accessory after the fact. The prosecutor, however,
did not choose that course, and defendant does not have the right to
interpose that alternative charge. Put another way, the request for
an instruction on accessory after the fact was in the nature of a
motion to amend the information, People v. Williams, 412 Mich. 711,
714, 316 N.W.2d 717 (1982), the denial of which was not an abuse of
this regard, Judge bandstra does not focus on a comparison between
murder and the common-law offense of being an accessory after the
fact. Rather he notes a similarity between the latter offense and
the act of being an accessory to a crime. 218 Mich.App. at 547, n. 1,
554 N.W.2d 362. However, being an aider and abettor is simply a theory
of prosecution, not a separate substantive offense. MCL 767.39; MSA
circuit court relied on People v. Karst, 118 Mich.App. 34, 324 N.W.2d
526 (1982), to dispose of this matter. The Court of Appeals
unanimously agreed that Karst was inapposite. 218 Mich.App. at 532,
n. 1, 546-547, 554 N.W.2d 362. However, the analysis of the Karst
panel is helpful in distinguishing aiding and abetting from accessory
after the fact, and emphasizing that the latter offense needs to be
separately charged, if it is to be placed before the jury. 118
Mich.App. at 41, 324 N.W.2d 526.
also need to address our treatment of a murder case called People v.
Rodgers, unpublished opinion per curiam, issued May 23, 1995 (Docket
No. 163255), in which the Court of Appeals reversed on the ground that
the trial court erred in refusing the defendant's request for an
instruction on accessory after the fact. In its opinion, the Court
of Appeals said that the evidence supported such an instruction, and
that the failure to instruct was not harmless error. The panel did
not write of the relationship between the charges in the information
and the offense of being an accessory after the fact. Initially, we
denied leave to appeal by a four-three vote. People v. Rodgers, 451
Mich. 894, 549 N.W.2d 321 (1996). In dissent, Justice boyle raised
the issue whether accessory after the fact is indeed a cognate
offense. 451 Mich. at 895, 549 N.W.2d 321. On reconsideration, we
remanded Rodgers to the Court of Appeals for reconsideration in light
of People v. Mateo, 453 Mich. 203, 551 N.W.2d 891 (1996), which
concerns the test for determining whether preserved nonconstitutional
error is harmless. People v. Rodgers, 453 Mich. 883, 554 N.W.2d 12
(1996). After the remand, we reversed on the ground that any error
was harmless. People v. Rodgers, 455 Mich. 868, 568 N.W.2d 81 (1997).
While our third order refers to “the lesser offense of accessory
after the fact,” that reference was dictum. Because it is
inconsistent with today's opinion, it is rejected.
light of our conclusion that the circuit court did not err, we need
not consider whether an instruction error in this case could be
characterized as harmless. Specifically, we need not address Judge
bandstra's treatment of People v. Richardson, 409 Mich. 126, 293
N.W.2d 332 (1980), and People v. Beach, 429 Mich. 450, 418 N.W.2d 861
(1988). See 218 Mich.App. at 552-556, 554 N.W.2d 362.
Stephens, the defense requested an instruction on a lesser misdemeanor
offense, though the crime charged was a felony. The Stephens Court
held that “[i]n refusing to extend the rule of Ora Jones ․ to lesser
included misdemeanors, we are in accord with both Michigan and federal
precedent.” Id., p. 263, 330 N.W.2d 675. We then held that a
requested misdemeanor offense must have an “inherent relationship” to
the charged felony, further restricting the defendant's ability to
require cognate lesser offense instructions. Id., p. 262, 330 N.W.2d
675.Hendricks further confused our cognate lesser offense
jurisprudence by imposing the “inherent relationship” misdemeanor test
of Stephens as an additional requirement of the Ora Jones rule.
Hendricks, supra, p. 444, 521 N.W.2d 546, citing Stephens, supra, p.
262, 330 N.W.2d 675, and People v. Steele, 429 Mich. 13, 412 N.W.2d
206 (1987). This “inherent relationship” test examines whether there
is a “common purpose” to the charged offense and the cognate offense,
which protects the “same societal interest.” Hendricks, supra, p.
445, 521 N.W.2d 546.The majority does not address the requirement in
today's opinion. I no longer adhere to the view that the “inherent
relationship” test is appropriate in any context. Cf. Steele, supra,
p. 19, 412 N.W.2d 206.
like Stephens, was a case in which the defendant had been charged with
a felony and requested that a lesser misdemeanor offense instruction
be given. Steele, supra, p. 17, 412 N.W.2d 206.
majority argues that this doctrine protects the prosecution's sole
duty to select and bring criminal charges. Op., p. 479, n. 19.
While it is true that the prosecutor has the sole duty and
responsibility to select and file criminal charges, this Court has the
sole duty and responsibility of overseeing the practice and procedure
in this state's “one court of justice.” Const 1963, art 6, §§ 4, 5.
The goal of this practice and procedure is largely to promote
truth-finding in our courts, and therefore trial judges must have the
ability to “ ‘eliminate the distortion of the factfinding process.’ ”
See part I(B), quoting Hendricks, supra, p. 447, 521 N.W.2d 546,
quoting Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 82
L.Ed.2d 340 (1984). Instructing the jury properly is one method of
attaining this goal.
4. We are
inconsistent in vesting the trial judge with vast discretion in
determining the admissibility of evidence under MRE 403 and other
rules, but not allowing that judge to use his discretion to determine
whether a requested charge is consistent with a rational view of that
5. I note
that the prosecutor's supplemental brief urges the Court to adopt a
rational view of the evidence standard for all lesser included
offenses, necessary and cognate alike. However, in this case, the
Court is only presented with the question whether defendant's request
for a cognate lesser included offense was improperly denied.
Therefore, my opinion and analysis is limited to cognate lesser
included offenses, since that is the only question before the Court.
WEAVER, C.J., and TAYLOR, CORRIGAN, and YOUNG, JJ.,
concur.MICHAEL F. CAVANAGH and MARILYN J. KELLY, JJ., concur with
Court of Appeals of Michigan
August 30, 1996
PEOPLE OF THE STATE OF MICHIGAN,
MICHAEL LEE PERRY, DEFENDANT-APPELLANT.
LC No. 90-3932 FC.
As Amended December 21, 1996
Before: O'Connell, P.j., and Bandstra and J.m.
Batzer,* JJ. O'connell, J. (concurring). Bandstra, J. (concurring in
part and Dissenting in part).
The opinion of the court was delivered by: Batzer
J.M. BATZER, J.
On February 21, 1991, defendant was convicted by a
jury in the Saginaw Circuit Court, Judge Leopold P. Borrello
presiding, of three counts of first-degree murder, MCL 750.316; MSA
28.548 (with the underlying felony being arson, MCL 750.72; MSA
28.267), and three counts of attempted murder, MCL 750.91; MSA 28.286.
On June 27, 1991, the circuit court ruled that defendant would be
sentenced as an adult. Defendant received life sentences for the
murder convictions and sentences of ten to twenty years for the
attempted murder convictions. Defendant appeals as of right, and we
In June of 1990, thirteen-year-old Jacinto (Jason)
Ricco lived in Saginaw, Michigan, with his mother and two sisters,
Yolanda and Miriam Amanda Ricco. For a number of years, tense
relations had existed between Jason Ricco and the Rollie family, who
lived a few houses away from the Ricco's on a different street in the
same neighborhood, though Jason's sisters socialized, played, and were
friends with the Rollie children. In August of 1989, Jason threatened
to kill some members of the Rollie household. On the same occasion,
Jason Ricco stood outside the Rollie house and yelled threats
involving a firebomb.
During the evening of June 13, 1990, adolescent
friends and acquaintances of Jason Ricco, including defendant,
gathered at the Ricco home and engaged in various recreational
activities, including underage drinking. These young people were left
overnight, unsupervised by any adult. Between 4:00 a.m. and 5:00 a.m.
on June 14, defendant and Jason Ricco left the house together, after
having stated they were going out to "cause trouble." When they ran
back into the house a few minutes later, they stated that they had set
the Rollie house on fire by throwing a firebomb, which Jason had lit
and defendant had held and thrown. Jason Ricco explained that they had
thrown the firebomb because of "a feud." Defendant and Jason argued
about whether the matches dropped by Jason near the Rollie house
should be retrieved and blamed each other for setting the fire. There
was testimony that defendant had said he threw the firebomb because
Jason told him to throw it and that Jason said he did not think the
defendant would actually do it.
The Rollie house was ablaze. Yolanda Ricco had seen
the blaze from her bedroom window and heard the screams of her
friends, the Rollie children. Yolanda Ricco was very upset about the
fire, but "someone," possibly the defendant, prevented her from
calling the fire department or leaving the house. After a friend
refused to dispose of a gasoline can for them, defendant and Ricco
talked in the bathroom about disposing of evidence, and the toilet was
flushed several times. Traces of the type of fuel that had started the
Rollie house fire were later found in the toilet.
Both Rollie parents and one child escaped from
their burning home, but the other three Rollie children were unable to
make their way out. They perished in the fire because of smoke
inhalation. The house burned to the ground.
Jason Ricco testified that at some time after 4:00
a.m. on June 14, 1990, he and defendant discussed "causing some
trouble or something." According to Ricco, the two youths went
together to the Ricco garage and retrieved two Molotov cocktail
firebombs, with the intention of throwing them somewhere, such as into
a yard. Defendant carried both bombs toward the Rollie home and stated
that he wanted to light them because of a feud between himself and a
neighbor of the Rollies. Jason Ricco was carrying matches, and
defendant had a towel so that he "wouldn't get his fingerprints on the
bottles." When they reached the Rollie home, defendant set the
firebombs down. Jason Ricco lit one of them, defendant said he was
going to throw it into the Rollie home, and Ricco told him not to.
Ricco turned, ran toward his home, and heard two "whooshes" when the
Molotov cocktails ignited, but did not see the bombs being thrown into
the Rollie house by the defendant.
Inspector Joseph Dziuban, an arson investigator for
the Saginaw Fire Department working with the Saginaw Police, opined on
the basis of burn patterns, traces of accelerants, and the location of
glass fragments from the bottles found at the scene that two firebombs
had been thrown through two different living room windows, causing the
Jason Ricco was tried in juvenile court and was
acquitted of murder, but was found guilty of arson.
Defendant first argues that the trial court erred
in failing to give the proper instruction concerning the testimony of
an undisputed accomplice. Defendant contends that the jury was thereby
grossly misled with respect to an issue crucial to its deliberations.
Defendant contends that the issue of defendant's guilt was closely
drawn, because defendant and Jason Ricco were the only two people who
knew what happened with the two firebombs immediately before they were
thrown into the Rollie house. The jury had to decide whether the
defendant's presumption of innocence had been overcome by the
testimony of the accomplice. Defendant, however, failed to raise or
preserve at trial this jury instruction issue concerning the
evaluation of accomplice testimony.
The determination whether a jury instruction is
accurate and applicable in view of all the factors present in a
particular case lies within the sound discretion of the trial court.
Williams v Coleman,
194 Mich. App. 606, 623;
488 N.W.2d 464 (1992). This Court reads
jury instructions in their entirety to determine whether error
requiring reversal of the conviction occurred. Instructions that are
somewhat imperfect are acceptable, as long as they fairly present to
the jury the issues to be tried and sufficiently protect the rights of
the defendant. People v Gaydosh,
203 Mich. App. 235, 237;
512 N.W.2d 65 (1994).
In my opinion, the trial court did not abuse its
discretion in failing to instruct the jury pursuant to CJI2d 5.4 that
Jason Ricco was an undisputed accomplice.
Rather, the trial court pursuant to CJI2d 5.5 gave
the jury the following instructions concerning a disputed accomplice:
Before you may consider what Jacinto [Jason] Ricco
said in court, you must decide whether he took part in the crime the
defendant is charged with committing. Jacinto Ricco has not admitted
taking part in the crime, but there is evidence to lead you to think
that he did. A person who knowingly and willingly accepts or
cooperates with someone else in committing the crime is called an
When you think about Jacinto Ricco's testimony,
first decide if he was an accomplice. If, after thinking about all the
evidence, you decide that he did not take part in this crime, Judge
his testimony as you Judge that of any other witness. But if you
decide that Jacinto Ricco was an accomplice, then you must consider
his testimony in the following way:
The court then gave the standard instruction
concerning accomplice testimony, CJI2d 5.6, with which the defendant
does not take issue. The prosecutor later placed on the record an
unsuccessful objection to these instructions, arguing that because
Ricco had not admitted participating in the crime with which the
defendant was charged, an instruction to use extra caution in
considering his testimony was inappropriate. Defendant now claims that
giving the jury the option to find that Ricco was not an accomplice,
and thus to disregard the cautionary instruction regarding accomplice
testimony, was an error requiring reversal of the convictions.
In People v Jensen,
162 Mich. App. 171
412 N.W.2d 681 (1987), the defendant
purchased an automobile from David Bart. In applying to the Secretary
of State for a transfer of the automobile's title, the defendant
presented a title certificate that falsely stated that no liens with
respect to the vehicle were outstanding Before the defendant's trial
for making a false application for an automobile title, Bart was
charged with forging a title and knowingly possessing a forged title.
Bart was offered an opportunity to plead to the misdemeanor of
possession of an altered title in exchange for his testimony at the
defendant's trial. At trial, Bart testified that the false statement
was not on the title certificate when he transferred it to the
defendant. The defendant testified to the contrary that when he
received the title from Bart, it had indicated that the lien had been
discharged. In Jensen, as in the instant case, the court gave the
standard criminal jury instructions concerning the testimony of a
disputed accomplice The defendant made no objection. This Court
reversed the defendant's conviction, reasoning as follows:
The trial court erred in instructing the jurors
that they were to make a factual determination of whether Bart was an
accomplice. Bart admitted on direct examination that he was originally
charged with forging a certificate of title and knowingly possessing a
forged title. He also testified that he pled guilty to possession of a
false or altered title in exchange for his testimony against
defendant, but had not yet been sentenced. Through Bart's own
admissions and his guilty plea to a reduced charge arising from the
incident, his status as an accomplice was beyond dispute. . . . Proper
instruction was especially necessary in the instant case, since Bart
testified that the title was falsified only after he gave it to the
defendant. Bart's guilty plea to possession of a false title, in
addition to undermining his credibility, directly contradicted his
trial testimony. [ Jensen, supra, p 187.]
In the instant case, Jason Ricco never admitted
participating in or encouraging the murders and attempted murders of
the Rollies. It appears that at his own trial, Ricco was convicted of
arson only. Because there was a factual dispute concerning whether
Ricco took part in the crimes that defendant was charged with
committing, i.e., murder and attempted murder, the trial court did not
abuse its discretion in instructing the jury as it did.
Defendant's failure to preserve this issue at trial
bars a finding by this Court of error requiring reversal of the
conviction In Jensen, the relief sought by the defendant was not
barred by his failure to object to the trial court's jury
instructions, because "the factual issues were 'closely drawn.'" Id.,
pp 188-189. Where "the issue is closely drawn," reversal of a
conviction may be required where a trial court fails to give a
cautionary instruction concerning accomplice testimony, even in the
absence of a request to charge. People v McCoy,
392 Mich. 231, 240;
220 N.W.2d 456 (1974). The issue of a
defendant's guilt "is 'closely drawn' if the trial is essentially a
credibility contest between the defendant and the accomplice." Jensen,
supra, p 188.
No authority cited by defendant has found the
existence of a credibility contest where, as here, the defendant
relied exclusively on the presumption of innocence to dispute an
accomplice's testimony. McCoy, supra, p 238; Jensen, supra, pp
188-189; People v Smith,
158 Mich. App. 220, 223-224;
405 N.W.2d 156 (1987); People v
125 Mich. App. 114, 116;
335 N.W.2d 919 (1983); People v Jackson,
97 Mich. App. 660, 662-666;
296 N.W.2d 135 (1980). Even accepting the
premise that defendant's reliance on his presumption of innocence was
inconsistent with Jason Ricco's testimony, it does not follow that
defendant's trial was essentially no more than a credibility contest.
Trial witnesses other than Jason Ricco clearly testified that
defendant was outside the Ricco home when the Rollie fire was set and
that defendant admitted throwing at least one firebomb into the Rollie
house In fact, Ricco's testimony added little to the evidence that
defendant committed murder and attempted murder. Because a reasonable
factfinder could have concluded, even absent Ricco's testimony, that
defendant's participation in the firebombing of the Rollie home had
been proved beyond a reasonable doubt, defendant's trial was not a
credibility contest between Ricco and defendant.
Because the factual issue in the instant case was
not closely drawn within the meaning of Jensen, supra, defendant has
not established that manifest inJustice would result from this Court's
failure to review this unpreserved issue. Failure to object to jury
instructions in the trial court waives error for purposes of appeal
unless relief is necessary to avoid manifest inJustice. MCL 768.29;
MSA 28.1052; People v Van Dorsten,
441 Mich. 540, 544-545;
494 N.W.2d 737 (1993). A miscarriage of
Justice occurs when an erroneous or omitted instruction pertains to a
basic and controlling issue in the case. People v Chatfield,
170 Mich. App. 831, 835;
428 N.W.2d 788 (1988). Defendant has
demonstrated no entitlement to review of this unpreserved issue.
Defendant next argues that jurors could have
believed that defendant participated in the suppression of evidence
following the Rollie murders and attempted murders without his having
taken part in those crimes. If properly instructed, defendant
contends, the jury could have convicted defendant as an accessory
after the fact only. Defendant asserts that because the trial court
did not give a requested instruction regarding a cognate lesser
offense that is supported by the trial record, i.e., accessory after
the fact (which is a common-law offense that may be prosecuted under
MCL 750.505; MSA 28.773), reversal is required. Defendant cites People
196 Mich. App. 228, 232;
492 N.W.2d 786 (1992), for the
proposition that accessory after the fact is a cognate lesser offense
After the jury was instructed, defense counsel
noted for the record that he had requested an instruction concerning
accessory after the fact, claiming it to be a cognate lesser offense
of murder. Defense counsel argued:
[In light of the evidence, the jury could] have a
reasonable doubt about whether or not the defendant participated in
the burning of the house, but could find that he took certain actions
back at the Ricco house by moving the gas can and participating in the
disposal of flammable liquid in the toilet, knowing that the fire had
been set, and therefore, be an accessory after the fact as a lesser
The trial court and defense counsel engaged in the
following colloquy concerning why the requested instruction had not
The Court: One, I do not believe that it is a
cognate lesser included offense to the charge. But further, in People
118 Mich. App. 34 [324 N.W.2d 526 (1982)]
at page 41, an indication is that -- that in order to instruct and to
give accessory after the fact as a lesser charge, it says such must be
charged in a separate count, and was not in this case. And cites
71 Mich. App. 609 [248 N.W.2d 636
The court believes that since the prosecutor did
not charge him with being an accessory after the fact, the Court has
given the instructions as an aider and abettor. And if the jury finds
him guilty of that, there is -- obviously, they didn't find him to be
an accessory after the fact. And I don't believe it's a lesser
included offense, and the Court did refuse to give the charge.
Mr. Thomas: It's my understanding, then, your
Honor, that the Court feels that the accessory after the fact
requested instruction is not a proper cognate offense, number one;
number two, it is not a lesser included offense?
The Court: Right.
The trial court was correct when it held that
accessory after the fact is not a cognate lesser offense of murder,
In its comprehensive Discussion of lesser offenses
in People v Hendricks,
446 Mich. 435, 447;
521 N.W.2d 546 (1994), our Supreme Court
To preserve the jury's proper function, the bounds
of possible offenses the jury may consider in a particular case must
be described. In the case of cognate lesser offenses, the method of
management adopted by this Court is to limit instruction to those
offenses that bear a sufficient relationship to the principal charge
in that they are in the same class or category, protect the same
societal interests as that offense, and are supported by the evidence
adduced at trial. Thus, not all lesser offenses that are not
necessarily included are potential candidates for consideration as
cognate crimes. [Emphasis added.]
As tested by Hendricks, I would hold that accessory
after the fact is not a cognate lesser offense of murder, because the
societal interests that are protected by making murder and accessory
after fact criminal offenses are entirely different.
The societal interests in making murder a crime and
subjecting a murderer to drastic punishment as part of that
classification are to deter the killing of human beings by other human
beings, with all the great loss and upheaval that results, and to
punish severely those who murder, in an effort to render Justice.
Murder not only unnaturally takes the life of a human being, but also
concomitantly engenders great emotional pain and leaves a great
emotional burden and sense of loss carried by the family and loved
ones of the victim. Additionally, very often there is a loss to
society of the future productive potential of the victim, both
economically and also as contributor to family and community in all of
the many and immeasurable ways that people enrich and contribute to
the lives and welfare of other people. Moreover, the law makes murder
the very gravest offense, because, without such laws, experience
teaches that the act of murder provokes retaliation from the victim's
immediate family, extended kinship groups, and friends. Retaliation in
turn provokes further retaliation and further alignment of society's
members. By drastically punishing murder, the law dispenses society's
Justice and short-circuits private vengeance, feuds, and warfare.
The purpose of making accessory after the fact a
crime is entirely different. Those who are only accessories after the
fact by definition did not participate in the killing or other
principal offense and did nothing in furtherance of it before or while
it occurred. An accessory after the fact is a person who with
knowledge of another's guilt gives assistance to that felon in an
effort to hinder the felon's detection, arrest, trial, or punishment.
People v Lucas,
402 Mich. 302;
262 N.W.2d 662 (1978); People v Williams,
117 Mich. App. 505;
324 N.W.2d 70 (1982). An accessory after
the fact aids a perpetrator in the concealment of evidence of the
crime, or in the flight or concealment of the perpetrator(s). The
purpose of making accessory after the fact a criminal offense is not
primarily to deter the commission of the principal offense. Rather,
the gravamen of accessory after the fact is that it is an interference
with society's effort to bring a perpetrator to Justice. By punishing
those who are accessories after the fact the law serves to deter
others from hindering the Justice process after the fact of the
principal crime. Thus, the purpose of making accessory after the fact
a crime is to assist society in apprehending those who have committed
crimes and to assist in preserving evidence of crimes so that
perpetrators of crimes can be brought to society's Justice. Such a
purpose, while very important and worthwhile to the welfare of
society, is not at all the same deterrence-punishment purpose served
by making murder a crime.
I believe that any language in Usher that accessory
after the fact is a cognate lesser offense of murder is dicta. In
Usher, the defendant sought an instruction with respect to accessory
after the fact before the trial court ruled on his motion for a
directed verdict with respect to murder. Then, after having prevailed
with respect to his motion for a directed verdict, and in the course
of the trial of the charge of being an accessory after the fact to
murder, the defendant pleaded guilty of being an accessory after the
fact. Thus, Usher represents nothing more than an application of the
well-established doctrine that a properly tendered and accepted
unconditional guilty plea operates as a waiver of irregularities in
the prior proceedings, absent a jurisdictional or similar defect. See
People v Crall,
444 Mich. 463;
510 N.W.2d 182 (1993); People v New,
427 Mich. 482;
398 N.W.2d 358 (1986); People v Johnson,
396 Mich. 424;
240 N.W.2d 729 (1976). Were accessory
after the fact to be considered a cognate lesser offense of murder,
the prosecutor correctly points out that in every case in which murder
is charged and there is any evidence that the defendant assisted in
the destruction of evidence or evasion of detection an instruction
with respect to being an accessory after the fact would be required. I
believe that not only would such a rule be unwise policy, but also
that such an instruction is not required because the offense of being
an accessory after the fact is not a lesser cognate offense of murder,
as tested by Hendricks.
Even assuming arguendo that accessory after the
fact can be a cognate lesser offense of murder and that defendant was
entitled to an instruction regarding accessory after the fact, under
the rule of People v Beach,
429 Mich. 450;
418 N.W.2d 861 (1988), the trial court's
failure to give such an instruction here was harmless error. If the
jury had doubts about defendant's guilt of the charged offenses,
first-degree felony murder, it could have found him guilty of the
lesser included offenses of second-degree murder or involuntary
manslaughter, with regard to which it had been instructed. Because the
jury did not do so, we can conclude that it had no reasonable doubt
concerning defendant's guilt of first-degree felony murder. Here, as
in Beach, "the intermediate charge[s] rejected by the jury . . .
necessarily . . . indicate[s] a lack of likelihood that the jury would
have adopted the lesser requested charge." Here, where the defendant
rested on the presumption of innocence, there was, as in Beach, only
"an inference built on a possibility that the jury might disbelieve
part of [the prosecution's witnesses'] testimony" relating to
defendant's participation in the firebombing of the Rollie home with
the resultant deaths and yet it might believe the testimony elicited
by the prosecution concerning the destruction of evidence and thereby
conclude that defendant was guilty only of being an accessory after
the fact. Here, as in Beach, such an inference built upon such a
possibility is not sufficient to require reversal of the convictions
because of the failure to give the requested instruction. Id., p 491.
Defendant next asserts that the trial court erred
in denying a mistrial after the prosecutor, during the course of
closing and rebuttal arguments, called the jury's attention to
defendant's silence by referring to prosecution testimony as being
undisputed. The defendant raised and preserved this issue by his trial
counsel's motion below for a mistrial, which the trial court denied.
During closing and rebuttal arguments, the
prosecutor noted that Inspector Dziuban's expert testimony regarding
the purpose of a Molotov cocktail was uncontradicted. Defendant moved
for a mistrial "based upon the repeated references by the prosecutor
to my client's failure to testify." The prosecutor responded:
In each reference where we talked about
uncontradicted evidence, we were talking about specific evidence, Mr.
Dziuban's expert testimony in this particular case. And there can be
-- they could have called testimony to be contradict [sic] that . . .
I was, in particular very careful to limit any use of the word
uncontradicted to specific testimony that, in fact the defense
could've called if they'd have wanted to other than the defendant . .
A prosecutor may not comment upon a defendant's
failure to testify. MCL 600.2159; MSA 27A.2159; People v Davis,
199 Mich. App. 502, 517;
503 N.W.2d 457 (1993); People v Guenther,
188 Mich. App. 174, 177;
469 N.W.2d 59 (1991). However, a
prosecutor's statement that certain inculpatory evidence is undisputed
does not constitute a comment regarding the defendant's failure to
testify, particularly where someone other than the defendant could
have provided contrary testimony. People v Parker,
307 Mich. 372, 376;
11 N.W.2d 924 (1943); People v Hammond,
132 Mich. 422, 429;
93 N.W. 1084 (1903); People v Martin,
44 Mich. App. 254, 257;
205 N.W.2d 96 (1972); People v Alexander,
17 Mich. App. 497, 499-500;
169 N.W.2d 652 (1969); People v Hider,
12 Mich. App. 526, 529-530;
163 N.W.2d 273 (1968). See also United
States v El-Zoubi,
993 F.2d 442, 447 (CA5, 1993); Raper v
706 F.2d 161, 164-165 (CA6, 1983).
Reversal of a conviction because of a prosecutor's
comments referring to uncontradicted prosecution testimony may be
required under certain circumstances, because the rule against such
comments "is an important corollary to the Fifth Amendment privilege
against self-incrimination." Guenther, supra, p 177.
Upon review of the record, I am satisfied that the
prosecutor's assertion that he limited his comments regarding
unrelated testimony to specific instances that were subject to
contradiction by witnesses other than defendant is correct. I find no
impropriety in the prosecutor's comments.
Defendant, born October 4, 1973, was sixteen years
old when the Rollie murders and attempted murders were committed in
June of 1990 and seventeen years old when the court sentenced him on
June 27, 1991. He argues that the primary inquiry at a sentencing
Disposition hearing is whether a juvenile is amenable to treatment as
a juvenile. Because the circuit court recognized that defendant was
clearly amenable to treatment, defendant contends it abused its
discretion in sentencing him as an adult. Defendant asserts that the
sentencing court erroneously gave disproportionate weight to the
single factor of the seriousness of the crimes. Defendant argues that
because he had no prior record and his absenteeism from school was not
egregious behavior, his prior record and character, physical and
mental maturity, and pattern of living favored sentencing as a
juvenile. If the Legislature had intended that all murderers be
sentenced as adults, it would not have provided trial courts with
discretion to sentence murderers as juveniles.
A trial court's findings of fact at a juvenile
sentencing hearing are reviewed for clear error, while the ultimate
decision whether to sentence a minor as a juvenile or as an adult is
reviewed for an abuse of discretion, using the principle of
proportionality. People v Brown,
205 Mich. App. 503, 504-505;
517 N.W.2d 806 (1994); People v Lyons (On
203 Mich. App. 465, 468;
513 N.W.2d 170 (1994); People v Passeno,
195 Mich. App. 91, 104-105;
489 N.W.2d 152 (1992).
Defendant has demonstrated no abuse of discretion
in the trial court's decision to sentence him as an adult. Numerous
experts testified at the April 30 and June 20, 1991, hearings
concerning the determination whether the defendant should be sentenced
as an adult. Department of Social Services delinquency services worker
Martha Stimson and clinical psychologist Carol Holden advised that
defendant should be sentenced as an adult, largely because of the
limited time available to rehabilitate him within the juvenile system.
Psychologist Laura Morris advised that defendant should be sentenced
as a juvenile, but opined that defendant should be "re-evaluated" for
possible "further follow up" following his twenty-first birthday.
Social worker Rhoda Ann Lindeman advised that defendant be sentenced
as a juvenile, but admitted that her Conclusion might have been
influenced by her belief that defendant was not guilty of the crimes
of which he was convicted. Evidence tended to suggest that defendant
was "more of a follower than a leader" and that, except for the
heinousness of the crimes at issue, defendant's profile was "not that
bad" and supported sentencing as a juvenile.
The trial court expressed discomfort with the
sentencing options available to it, but ultimately ruled that
defendant should be sentenced as an adult, and imposed a mandatory
sentence of life imprisonment without possibility of parole for each
of the murder convictions and a sentence often to twenty years for
each of the attempted murder convictions. The circuit court issued a
"strong recommendation . . . to the future governors of this state
that [defendant] be given serious consideration for a reprieve,
commutation, or pardon after serving twenty years in prison."
After making findings relating to the other
statutory criteria, the court indicated that what it Judged to be in
"the best interests of the public welfare and the protection of the
public security . . . in effect decided the manner in which the
defendant should be sentenced, i.e., as a juvenile or as an adult."
MCL 769.1(3); MSA 28.1072(3) provides:
A Judge of a court having jurisdiction over a
juvenile shall conduct a hearing at the juvenile's sentencing to
determine if the best interests of the juvenile and the public would
be served by placing the juvenile on probation and committing the
juvenile to a state institution or agency . . . or by imposing any
other sentence provided by law for an adult offender. The rules of
evidence do not apply to a hearing under this subjection. In making
this determination, the Judge shall consider the following criteria
giving each weight as appropriate to the circumstances:
(a) The prior record and character of the juvenile,
his or her physical and mental maturity, and his or her pattern of
(b) The seriousness and the circumstances of the
(c) Whether the offense is part of a repetitive
pattern of offenses which would lead to 1 of the following
(i) The juvenile is not amenable to treatment.
(ii) That despite the juvenile's potential for
treatment, the nature of the juvenile's delinquent behavior is likely
to disrupt the rehabilitation of the other juveniles in the treatment
(d) Whether, despite the juvenile's potential for
treatment, the nature of the juvenile's delinquent behavior is likely
to render the juvenile dangerous to the public if released at the age
(e) Whether the juvenile is more likely to be
rehabilitated by the services and facilities available in adult
programs and procedures than in juvenile programs and procedures.
(f) What is in the best interests of the public
welfare and the protection of the public security.
Language that is essentially identical to the above
statute is set forth in MCR 6.931(E)(3).
A prosecutor has the burden of establishing by a
preponderance of the evidence that the best interests of the juvenile
and the public would be served by imposition of a sentence as though
the defendant were an adult offender. MCR 6.931(E)(2); Brown, supra, p
506; Lyons, supra, p 469. A sentencing court must make specific and
detailed findings of fact in relation to each of the statutory
factors. MCL 769.1(5); MSA 28.1072(5); MCR 6.931(E)(4); People v
206 Mich. App. 658;
522 N.W.2d 910 (1994); Lyons, supra, p
In order to exercise its discretion at a juvenile
sentencing hearing properly, a court must attempt to weigh the
relevant factors in a meaningful way at the sentencing hearing.
Hazzard, supra, p 661. No single statutory criterion, such as the
seriousness of the offense, may be given preeminence over the others.
Brown, supra, p 504; People v Spearman,
195 Mich. App. 434, 448;
491 N.W.2d 606 (1992), rev'd in part on
unrelated grounds sub nom People v Rush,
443 Mich. 870,
504 N.W.2d 185 (1993), overruled in part
on unrelated grounds People v Veling,
443 Mich. 23, 43;
504 N.W.2d 456 (1993). The prosecution
must do more than demonstrate that the defendant is guilty of a
serious offense for which adult punishment is permitted. People v
199 Mich. App. 609, 619;
503 N.W.2d 89 (1993) (partial Dissent by
Murphy, J.). A court's mere statement that the offense of which a
defendant was convicted was "one of 'ultimate gravity' begs the
question whether the circumstances surrounding the offense should be
given more weight in deciding to sentence a defendant as an adult."
People v Haynes,
199 Mich. App. 593, 598;
502 N.W.2d 758 (1993).
Although defendant argues that the trial court
abused its discretion in basing its entire decision to sentence
defendant as an adult on the fact that he had been convicted of a
serious crime, the record suggests that the circuit court weighed the
seriousness and the senselessness of the Rollie murders against a
relatively unremarkable personal background lacking dramatic evidence
of redeeming virtues and simply concluded that the latter did not
outweigh the former. The sentencing court followed the explicit
dictates of MCL 769.1(3); MSA 28.1072(3) and MCR 6.931(E)(3) in giving
the seriousness and circumstances of the offense factor "weight as
appropriate to the circumstances." Defendant has not demonstrated that
the court placed more weight on the factor than was appropriate.
We find the following reasoning of this Court in
People v Black,
203 Mich. App. 428, 430-431;
513 N.W.2d 152 (1994), instructive and
applicable to the present case:
In this case and in many others like it, our
statutes create a serious quandary for the trial court. For older
juveniles guilty of crimes that carry mandatory life sentences without
any possibility of parole, trial courts are caught between . . .
underpunishing the most serious juvenile crimes or sentencing
teenagers to live out their lives in prison. It is not surprising that
perplexed Judges faced with the dilemma sometimes choose poorly. .
In this case, the trial court had before it a
seventeen-year-old girl who had been found guilty of aiding and
abetting a premeditated murder. If the trial court determined she
should be sentenced as an adult, it would have no ability to fashion a
sentence that took into account the part she played in the crime and
the role her youth played in her decision to participate. On the other
hand, if the trial court determined defendant should be sentenced as a
juvenile, it would not be able to impose an appropriate sentence for
participating in such a serious crime.
The testimony at the sentencing hearing showed that
defendant had a real chance at being rehabilitated. The testimony also
showed that she would not be subject to the juvenile Justice system
for a period sufficient to accomplish the rehabilitation. This left
the trial court with two bad alternatives: sentencing defendant as a
juvenile and thereby endanger society, or sentence defendant as an
adult and condemn a potentially salvageable child to spend the rest of
her life in prison. Under the circumstances, we cannot say that the
trial court erred in making the choice [to sentence the defendant as
Similarly, in Spearman, supra, pp 447-448, this
The [trial] court analyzed each statutory factor
and found that [defendant] had no prior record, that he was physically
but not mentally mature, and that there was nothing "terribly
negative" in his pattern of living. The court found that the offense
committed and the circumstances surrounding it were very serious and
militated toward treating [the defendant] as an adult. The court
further found that, although [the defendant] was amenable to treatment
in a juvenile setting and would not be disruptive, the period of
incarceration available if he were treated as a juvenile would be
"inadequate to be an appropriate sentence" and that the best interests
of [the defendant] and the public would therefore be served by
sentencing him as an adult.
This Court found, contrary to an argument advanced
by the defendant, that the trial court had not placed preemptive
weight on the seriousness of the defendant's crime:
At the Dispositional hearing, the trial court
indicated that, after considering all the evidence, it was convinced
that the best interests of both the public and [the defendant]
warranted sentencing him as an adult. At sentencing, the trial court
further indicated that it felt that a significant sentence was
necessary to deter [the defendant] from being involved in any crimes
like this in the future. It is therefore clear to us that the trial
court considered factors other than the seriousness of the offense.
Id., pp 448-449.
In the present case, the trial court gave the
seriousness and circumstances of defendant's crime no more weight than
was given to the factor by the trial courts in Black and Spearman.
Defendant has demonstrated no abuse of discretion in the trial court's
decision to sentence him as an adult.
/s/ James M. Batzer
O'CONNELL, J. (concurring).
I concur with Judge Batzer's opinion. I write
separately to address briefly the Dissent.
The Dissent contends that "the trial court should
have considered accessory after the fact as a cognate lesser included
offense under the facts of this case because that offense is related
to the arson murder offenses and of the same class or category as
those offenses . . . ." Post, p . In support of the Conclusion that
accessory activities are of the same class or category as arson and
murder, the Dissent asserts: "The purpose of making accessory
activities a crime is to prevent the underlying crime itself by
facilitating its detection and prosecution. Prohibitions against both
accessory activities and underlying crimes fulfill the same social
objective, i.e., preventing the underlying criminal activity. . . ."
Post, p , n 1.
I respectfully disagree. As explained by our
Supreme Court in People v Lucas, 402 Mich. 302, 304; 262 N.W.2d 662
(1978), quoting Perkins, Criminal Law (2d ed), p 667, an accessory
after the fact is "one who, with knowledge of the other's guilt,
renders assistance to a felon in the effort to hinder his detection,
arrest, trial or punishment." An accessory after the fact is punished
because he obstructs the path of Justice, rendering societal
retribution less assured. An accessory is not punished in a misguided
effort to deter another individual, the perpetrator of the underlying
crime, from committing the crime.
/s/ Peter D. O'Connell
BANDSTRA, J. (concurring in part and Dissenting in
I concur in parts I, III and IV of the majority
opinion, but Dissent from part II.
Defendant requested a jury instruction on accessory
after the fact criminal liability. The trial court denied this
request, reasoning that, under People v Karst, 118 Mich App 34; 324
NW2d 526 (1982), no accessory after the fact instruction was required
because defendant had not been separately charged with that offense.
The trial court also concluded that accessory after the fact was not a
cognate lesser included offense.
As the majority notes, (supra) footnote 1, analysis
under Karst was completely inappropriate. Under the correct legal
analysis, accessory after the fact is not a necessarily included
lesser offense because evidence showing that defendant participated in
the arson murders either as a principal or an aider and abettor would
not necessarily also show that he participated in later attempts to
conceal those offenses. People v Beach, 429 Mich 450, 460-464; 418
NW2d 861 (1988). However, the trial court should have considered
accessory after the fact as a cognate lesser included offense under
the facts of this case because that offense is related to the arson
murder offenses and of the same class or category as those offenses,
while containing elements not necessarily found in the higher
offenses. Id.; Usher, (supra) at 232-234. When an instruction on this
cognate lesser included offense was requested, the trial court should
have examined the evidence to determine whether it would support an
accessory after the fact conviction. People v Hendricks, 446 Mich 435,
442-444; 521 NW2d 546(1994); People v Pouncey, 437 Mich 382, 387; 471
NW2d 346 (1991); Beach, supra at 464.
The defense theory in this case was that Jacinto
(Jason) Ricco was the arsonist who caused the three deaths.
Defendant's trial counsel cross-examined the prosecutor's witnesses
from the neighborhood to emphasize their testimony that Jason Ricco
was a well-known neighborhood troublemaker and bully. Two witnesses
corroborated each other's testimony that, prior to the arson, they had
refused Jason Ricco's request that they assist him in blowing up a
house or throwing a fire bomb into a neighborhood back yard. One of
Jason's friends testified that Jason had told him, on the day
immediately preceding the arson, that he had thrown gasoline-filled
pop bottles at another building on the street.
There was also testimony showing that Jason Ricco's
hostility was particularly directed against the victims of the arson,
the Rollie family. Both Willie Rollie and Cynthia Rollie, the father
and mother of the children who died in the fire, testified that Jason
Ricco had repeatedly insulted their family with racial slurs, made
threats against them, and thrown things at their house. Jason's
continuing feud with the Rollies had resulted in the police being
called on a number of occasions. Sometime before the arson, neighbors
overheard Jason Ricco yelling from the street toward the Rollies' home
"I will kill you." Ryan Rollie, the victims' brother, testified that
Jason Ricco was angry with him because of an incident that occurred
the day just before the fire.
In closing argument, defense counsel contended that
the prosecutor had failed to overcome the presumption of innocence
regarding defendant's participation in the arson, especially in light
of all this evidence showing that Jason Ricco, not defendant, had the
history and motivation that might likely result in that kind of crime
against the Rollies. Defense counsel argued that, in contrast to Jason
Ricco, defendant had no history of animosity toward the Rollies nor
experience with fire bombs. Defense counsel stressed that the
testimony suggesting that defendant directly participated in the crime
was either that of Jason Ricco, who had an obvious incentive to saddle
defendant with the blame, or that of other witnesses who also had an
incentive to protect Jason or assist the prosecution and who, in any
event, had to rely solely on Jason's account of what occurred at the
scene of the arson.
On the other hand, a number of witnesses did
testify from firsthand observation that defendant engaged in
activities to cover up the crime after he and Jason Ricco returned to
the Ricco house. A number of witnesses testified that they overheard
defendant and Jason Ricco in the Rre started, flushing the toilet
repeatedly and speaking about getting rid of evidence. These accounts
were corroborated by a subsequent investigation showing that there was
residue from a flammable substance in the toilet bowl. There was
evidence that Jason Ricco had asked defendant to conceal a gasoline
can in one of the bedrooms and that defendant had done so. Finally,
witnesses testified that Jason Ricco and defendant worked together to
prevent Jason Ricco's older sister, Yolando, from immediately calling
the fire department or police about the fire.
During closing argument, defendant's counsel
acknowledged this evidence showing that defendant had, with Jason
Ricco, attempted to conceal the crime after it occurred. However, he
cautioned the jury that the court would instruct them that, even if
they believed that evidence, it would not constitute aiding and
abetting the arson. Instead, to find aiding and abetting, defense
counsel argued that "any participation has to be done . . . before or
during the commission of the crime." Consistent with that argument,
defense counsel requested an accessory after the fact instruction
reasoning that the jury could have a reasonable doubt about whether or
not the defendant participated in the burning of the house, but could
find that he took certain actions back at the Ricco house by moving
the gas can and participating in the disposal of flammable liquid in
the toilet, knowing that the fire had been set, and therefore, be an
accessory after the fact as a lesser offense.
A review of the trial transcript, as outlined
above, convinces me that a factual question was presented for the jury
regarding whether defendant assisted the commission of the arson
before, during, or after it was completed. The jury had the right "to
believe or disbelieve any or all" of the testimony presented by the
prosecution. Chamblis, supra at 420. The jury could have concluded
that the prosecution failed to overcome defendant's presumption of
innocence as to the greater offenses for which instructions were
provided (felony murder, arson, second-degree murder, involuntary
manslaughter) because of a reasonable doubt regarding defendant's
actual involvement at the scene of the arson. The jury could have
also, quite consistently, concluded that there was sufficient evidence
to convict defendant as an accessory after the fact based on the more
compelling evidence of defendant's participation in efforts to conceal
the crime at the Rollie home following the firebombing. It was not
necessary for defendant to present a "rebuttal or impeachment of the
people's evidence" on the greater offenses as a prerequisite to
requesting the accessory after the fact instruction. Id. at 422.
Instead of looking at whether there is evidence to refute the greater
charge, the analysis properly centers on whether the evidence would
support the lesser charge for which an instruction has been requested.
In determining whether the instruction should be
given, the trial court should consider whether, if the defendant had
been originally charged only on the lesser offense, the evidence
adduced at trial would have supported a guilty verdict on that charge.
If it would have, the requested instruction must be given. [ Id. at
If defendant had been originally charged as an
accessory after the fact in this case, the evidence adduced at trial
would clearly have supported a guilty verdict on that charge.
Defendant was entitled to the requested instruction on accessory after
the fact and the trial court erred in failing to grant that request.
Apparently anticipating the possibility of this
Conclusion, the prosecution argues that this was harmless error not
warranting reversal. Michigan law does recognize a harmless error
doctrine in some cases where instructions on lesser included offenses
are improperly denied, as explained by our Supreme Court in People v
Richardson, 409 Mich 126; 293 NW2d 332 (1980) and Beach, (supra) . The
majority would conclude the doctrine applies here; I disagree.
In Richardson, a defendant was convicted of
first-degree murder. The jury had also been instructed on
second-degree murder and voluntary manslaughter, but the trial court
had denied a defense request for instructions on additional lesser
offenses of involuntary manslaughter and reckless use of a firearm
causing death or injury. 409 Mich at 134. The Supreme Court determined
that there was sufficient evidence to support convictions of
involuntary manslaughter or reckless use of a firearm causing death or
injury and that, accordingly, the trial court had erred in denying the
requested instructions. Id. at 135-138. The Court further determined
that this error could not be considered harmless merely because of
"the jury's verdict of guilty on a higher offense where the option was
available to convict on some lesser offense." Id. at 139. The Court
reasoned that the three offenses about which the jury had been
instructed all involved activity that included an intent to do great
bodily harm or cause death. Id. at 140. In contrast, the two offenses
about which the defendant's request for instruction was denied
involved conduct that was careless, reckless, or criminally negligent.
Id. at 140-141. "Thus, the effect of the trial Judge's refusal to
instruct on the lesser offenses of involuntary manslaughter and
reckless use of a firearm was to foreclose the jury's option to
convict the defendant in accordance with his own testimony, evidence,
and theory." Id. at 141. Because the jury was "deprived of any option
to convict consistently with the defendant's testimony, evidence and
theory," the trial court's refusal to give the lesser offense
instructions was prejudicial error requiring reversal. Id.
In Beach, the Supreme Court again concluded that
"the existence of an intermediate charge that was rejected by the jury
does not, of course, automatically result in an application of the
[harmless error doctrine]." 429 Mich at 491. Instead, the harmless
error doctrine applies only if "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.
Defendant Beach had been convicted of conspiracy to commit armed
robbery, but was denied an instruction on conspiracy to commit larceny
in a building. The jury had been instructed on the lesser included
offense of conspiracy to commit unarmed robbery, but rejected that
charge. The Court reasoned that, in these circumstances, the trial
Judge's failure to give the instruction on conspiracy to commit
larceny in a building was harmless error:
If the jury had doubts about her 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
indication 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.]
In other words, the issue Beach tried to place
before the jury through the requested charge, i.e., whether less force
than in an armed robbery had been used, had already been placed in
issue by the instruction provided to the jury on unarmed robbery. The
jury had thus had an opportunity to consider the amount of force issue
under the instructions given and, by rejecting the unarmed robbery
option, indicated that they had decided against the defendant on that
issue. Thus, "the intermediate charge rejected by the jury . . .
indicated a lack of likelihood that the jury would have adopted the
lesser requested charge." Id. at 491.
Under either the Richardson or Beach analysis, I
would conclude that the trial court's failure to provide the requested
accessory after the fact instruction in this case was not harmless
error. As discussed earlier, defendant's theory was that there was
insufficient evidence to show he was involved with the arson murders
as a principal or as an aider and abettor and that, even if the jury
believed he had assisted in covering up the crime, that did not make
him guilty of the arson murders. The failure to provide the requested
accessory after the fact instruction thus improperly "foreclosed the
jury's option to convict the defendant in accordance with his own"
theory of defense. Richardson, (supra) .
In contrast to Beach, the jury's failure to convict
defendant of second-degree murder or involuntary manslaughter, as
charged, does not suggest in any way that the jury would have also
rejected an accessory after the fact charge had it been provided as
requested. By requesting this instruction, defendant attempted to
place at issue the time at which he became criminally involved with
the arson. That issue was not presented to the jury in its
consideration of the charges for which instructions were provided. The
differences between first-degree felony murder, second-degree murder,
and involuntary manslaughter have to do with whether a felony (arson)
was the act by which the victims had died, whether the requisite
intent was negated (because of defendant's intoxication), and
defendant's degree of culpability (for example, whether he caused the
victim's death through gross negligence instead of an intentional
act). These were separate questions, completely different from whether
defendant became criminally involved with the arson murders only after
they occurred. The jury's rejection of the intermediate charges for
which instructions were provided presents no indication whatsoever
that the jury would have also rejected the lesser requested charge on
accessory after the fact.
Our Supreme Court has recently noted the crucial
importance of providing lesser included offense instructions when they
The absence of a lesser included offense
instruction increases the risk that the jury will convict, not because
it is persuaded that the defendant is guilty of capital murder, but
simply to avoid setting the defendant free . . . . The goal . . . , in
other words, is to eliminate the distortion of the factfinding process
. . . . [ Hendricks, (supra) at 447, quoting Spaziano v Florida,
468 U.S. 447, 455;
104 S Ct 3154; 82 L Ed 2d 340 (1984).]
To illustrate this principle, the jury in the
instant case may well have concluded that the lesser charges for which
instructions were provided were not supported by the evidence, there
being little to show defendant was intoxicated and nothing to suggest
that the firebombing was the result of negligence. At the same time,
the jury could also have concluded that defendant was guilty of
assisting Jason Ricco with attempts to conceal the arson, though not
guilty of the arson itself. If these were the jury's Conclusions, the
instructions provided required a choice between two wrong
alternatives: setting defendant free or convicting him of the
intentional arson for which there was clear proof. To avoid this
"distortion of the fact-finding process," defendant was entitled to an
accessory after the fact instruction. The trial court erred requiring
reversal in failing to so charge the jury.
I would reverse and remand for a new trial.
/s/ Richard A. Bandstra
Michael L. Perry as a teen.
Michael L. Perry as Prisoner No. 217645.