lesser included offense instruction in Michigan

2002In that case, the Court phrased the issue as “whether the defendant is entitled to the benefit of both the lesser included offense instruction and an expired period of limitations on those offenses.” Id. at 454 .

2002The Spaziano Court held that the defendant was not so entitled because “[w]here no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process [of jury deliberations].” Id. at 455 .

1999Hendricks 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, quoting People v Stephens, 416 Mich 252, 262 ; 330 NW2d 675 (1982), citing United States v Whitaker, 144 US App DC 344; 447 F2d 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

1999In 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 .] 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. . . .

2002Therefore, we hold that a requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it. 11 To permit otherwise would be inconsistent with the truth-seeking function of a trial, as expressed in MCL 768.29. 12 To the extent that our prior decisions, including Jones, Chamblis, Stephens, and People v Jenkins, 395 Mich 440 ; 236 NW2d 503 (1975) 13 and their progeny conflict with our holding today, they ar

2002Therefore, we hold that a requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it. 11 To permit otherwise would be inconsistent with the truth-seeking function of a trial, as expressed in MCL 768.29. 12 To the extent that our prior decisions, including Jones, Chamblis, Stephens, and People v Jenkins, 395 Mich 440 ; 236 NW2d 503 (1975) 13 and their progeny conflict with our holding today, they ar

1999Hendricks 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, quoting People v Stephens, 416 Mich 252, 262 ; 330 NW2d 675 (1982), citing United States v Whitaker, 144 US App DC 344; 447 F2d 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

1999Hendricks 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, quoting People v Stephens, 416 Mich 252, 262 ; 330 NW2d 675 (1982), citing United States v Whitaker, 144 US App DC 344; 447 F2d 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

1986Berra v United States [ 351 US 131 ; 76 S Ct 685 ; 100 L Ed 1013 (1956)]; Sparf v United States, 156 US 51, 63-64 ; 15 S Ct 273 ; 39 L Ed 343 (1895). * * * A lesser-included offense instruction is only proper where the charged greater offense instruction requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.

1986Berra v United States [ 351 US 131 ; 76 S Ct 685 ; 100 L Ed 1013 (1956)]; Sparf v United States, 156 US 51, 63-64 ; 15 S Ct 273 ; 39 L Ed 343 (1895). * * * A lesser-included offense instruction is only proper where the charged greater offense instruction requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.

2025In Keeble v. United States, 412 U.S. 205 ; 93 S Ct 1993 ; 36 L Ed 2d 844 (1973), the Supreme Court explored the possible outcomes that might follow from giving—or failing to give—a lesser- included offense instruction.

2025In Keeble v. United States, 412 U.S. 205 ; 93 S Ct 1993 ; 36 L Ed 2d 844 (1973), the Supreme Court explored the possible outcomes that might follow from giving—or failing to give—a lesser- included offense instruction.

2024Yet even with the second-degree murder instruction (which Taylor did not request), the defense continued to seek an acquittal of all charges based on a theory of self-defense, i.e., Taylor continued pursuing an all-or-nothing defense. -9- App 92, 94; 397 NW2d 229 (1986) (“[T]he decision not to request lesser offenses was a matter of trial strategy.”); People v Nickson, 120 Mich App 681, 687 ; 327 NW2d 333 (1982) (holding that defense counsel was not ineffective by failing to request a lesser-included-offense instruction because “[t]he decision to proceed with an all or nothing defense is a leg

2024Yet even with the second-degree murder instruction (which Taylor did not request), the defense continued to seek an acquittal of all charges based on a theory of self-defense, i.e., Taylor continued pursuing an all-or-nothing defense. -9- App 92, 94; 397 NW2d 229 (1986) (“[T]he decision not to request lesser offenses was a matter of trial strategy.”); People v Nickson, 120 Mich App 681, 687 ; 327 NW2d 333 (1982) (holding that defense counsel was not ineffective by failing to request a lesser-included-offense instruction because “[t]he decision to proceed with an all or nothing defense is a leg

2023Therefore, the absence of the lesser- included-offense instruction does not “necessarily . . . indicate a lack of likelihood that the jury would have adopted the lesser requested charge.” Beach, 429 Mich at 491 .

1996Where no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process.” [Beach, supra at 480-481 , quoting Spaziano v Florida, 468 US 447, 455 ; 104 S Ct 3154 ; 82 L Ed 2d 340 (1984).] See also People v Mills, 450 Mich 61, 81-82 ; 537 NW2d 909 (1995), modified and remanded 450 Mich 1212 (1995) (A trial court is not required to provide the jury with an instruction requested by a defendant where the record is devoid of any evidence supporting such an instruction).

2017Id.; see also People v Sardy, 216 Mich App 111, 116 ; 549 NW2d 23 (1996) (the defendant failed to show that defense counsel’s declination to request a lesser included offense instruction was not a sound trial strategy), and People v Armstrong, 124 Mich App 766, 769 ; 335 NW2d 687 (1983) (“We find defense counsel’s decision not to request lesser included offense instructions to be a matter of trial strategy.”).

2017Id.; see also People v Sardy, 216 Mich App 111, 116 ; 549 NW2d 23 (1996) (the defendant failed to show that defense counsel’s declination to request a lesser included offense instruction was not a sound trial strategy), and People v Armstrong, 124 Mich App 766, 769 ; 335 NW2d 687 (1983) (“We find defense counsel’s decision not to request lesser included offense instructions to be a matter of trial strategy.”).

2006The rationale for why the traditional lesser included offense test should not be used in the compound-predicate crime scenario is instructive: [T]hat a predicate-based offense requires proof of a predicate offense does not mean that the two offenses are greater and lesser included offenses in the traditional sense. "[T]he concept of included offenses reflects a continuum of culpability.” Offenses lie on- the same continuum, and are therefore greater and lesser included offenses, when "the elements shared by the two offenses coincide in the harm to the societal interest to be protected.” People

2006The rationale for why the traditional lesser included offense test should not be used in the compound-predicate crime scenario is instructive: [T]hat a predicate-based offense requires proof of a predicate offense does not mean that the two offenses are greater and lesser included offenses in the traditional sense. "[T]he concept of included offenses reflects a continuum of culpability.” Offenses lie on- the same continuum, and are therefore greater and lesser included offenses, when "the elements shared by the two offenses coincide in the harm to the societal interest to be protected.” People

1982"If the lesser offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater.” In People v Chamblis, 395 Mich 408, 423 ; 236 NW2d 473 (1975), we set forth the standard for determining whether a lesser included offense instruction should be given upon request.

1982"If the lesser offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater.” In People v Chamblis, 395 Mich 408, 423 ; 236 NW2d 473 (1975), we set forth the standard for determining whether a lesser included offense instruction should be given upon request.

2024People v Henry, 315 Mich App 130, 148 ; 889 NW2d 1 (2016) (quotation marks and citation omitted) (“An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority.”); People v Harris, 261 Mich App 44, 50 ; 680 NW2d 17 (2004) (“An appellant’s failure to properly address the merits of his assertion of error constitutes abandonment of the issue.”).

2024People v Henry, 315 Mich App 130, 148 ; 889 NW2d 1 (2016) (quotation marks and citation omitted) (“An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority.”); People v Harris, 261 Mich App 44, 50 ; 680 NW2d 17 (2004) (“An appellant’s failure to properly address the merits of his assertion of error constitutes abandonment of the issue.”).

2023People v Payne, 285 Mich App 181, 195 ; 774 NW2d 714 (2009).

2023People v Payne, 285 Mich App 181, 195 ; 774 NW2d 714 (2009).

2021A trial court’s failure to instruct on an applicable lesser-included offense is grounds for reversal “if, after reviewing the entire cause, the reviewing court is satisfied that the evidence presented at trial ‘clearly’ supported the lesser included instruction.” People v Silver, 466 Mich 386, 388 ; 646 NW2d 150 (2002).

2021A trial court’s failure to instruct on an applicable lesser-included offense is grounds for reversal “if, after reviewing the entire cause, the reviewing court is satisfied that the evidence presented at trial ‘clearly’ supported the lesser included instruction.” People v Silver, 466 Mich 386, 388 ; 646 NW2d 150 (2002).

2020The count of assault with intent to murder and one count of felonious assault were dismissed before trial. 3 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). 4 People v Allen, unpublished order of the Court of Appeals, entered June 24, 2019 (Docket No. 342999). -2- At the Ginther hearing, Dr. Craig Hicks, an emergency medicine physician at McLaren Hospital, testified that he had treated the victim for her injuries related to the assault.

2020The count of assault with intent to murder and one count of felonious assault were dismissed before trial. 3 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). 4 People v Allen, unpublished order of the Court of Appeals, entered June 24, 2019 (Docket No. 342999). -2- At the Ginther hearing, Dr. Craig Hicks, an emergency medicine physician at McLaren Hospital, testified that he had treated the victim for her injuries related to the assault.

2020The trial court also rejected Allen’s claims that trial counsel was ineffective for failing to request a missing witness jury instruction or a lesser included offense instruction, for failing to file a Stanaway6 motion, and for failing to object to testimony that allegedly bolstered the victim’s credibility. 5 Trial counsel testified that he made this decision during trial after the prosecutor agreed to produce Dr. Hicks and Dr. Defriez. 6 People v Stanaway, 446 Mich 643 ; 521 NW2d 557 (1994). -3- III.

2020The trial court also rejected Allen’s claims that trial counsel was ineffective for failing to request a missing witness jury instruction or a lesser included offense instruction, for failing to file a Stanaway6 motion, and for failing to object to testimony that allegedly bolstered the victim’s credibility. 5 Trial counsel testified that he made this decision during trial after the prosecutor agreed to produce Dr. Hicks and Dr. Defriez. 6 People v Stanaway, 446 Mich 643 ; 521 NW2d 557 (1994). -3- III.

2020Carter, 462 Mich at 215 . -12- When the trial court indicated that it would give the lesser included offense instruction for Sherrod but not Adams, there was no objection on the record.

2020People v Silver, 463 Mich 959 (2001); People v Cornell, 463 Mich 958 (2001).

2019A defendant seeking an evidentiary hearing after conviction has the burden to demonstrate the need to develop the record, see People v Chapo, 283 Mich App 360, 369 ; 770 NW2d 68 (2009), and must do so “by affidavit or offer of proof regarding the facts to be established at a hearing,” MCR 7.211(C)(1)(a). -7- In this case, defendant failed to properly support his motion for an evidentiary hearing with regard to each of his claims of ineffective assistance other than his claim that defense counsel should have requested a lesser-included-offense instruction, which this Court granted.

2019A defendant seeking an evidentiary hearing after conviction has the burden to demonstrate the need to develop the record, see People v Chapo, 283 Mich App 360, 369 ; 770 NW2d 68 (2009), and must do so “by affidavit or offer of proof regarding the facts to be established at a hearing,” MCR 7.211(C)(1)(a). -7- In this case, defendant failed to properly support his motion for an evidentiary hearing with regard to each of his claims of ineffective assistance other than his claim that defense counsel should have requested a lesser-included-offense instruction, which this Court granted.

2017To determine whether an issue is justiciably ripe, "a court must assess whether the harm asserted has matured sufficiently to warrant judicial intervention." People v. Bosca , 310 Mich.App. 1 , 56, 871 N.W.2d 307 (2015) (quotation marks and citation omitted), held in abeyance --- Mich. ----, 872 N.W.2d 492 (2015).

2017To determine whether an issue is justiciably ripe, "a court must assess whether the harm asserted has matured sufficiently to warrant judicial intervention." People v. Bosca , 310 Mich.App. 1 , 56, 871 N.W.2d 307 (2015) (quotation marks and citation omitted), held in abeyance --- Mich. ----, 872 N.W.2d 492 (2015).

2017To determine whether an issue is justiciably ripe, "a court must assess whether the harm asserted has matured sufficiently to warrant judicial intervention." People v. Bosca , 310 Mich.App. 1 , 56, 871 N.W.2d 307 (2015) (quotation marks and citation omitted), held in abeyance --- Mich. ----, 872 N.W.2d 492 (2015).

2015Russell, 297 Mich App at 716 . -11- Defendant next argues that he was denied his Fifth Amendment right to be free from double jeopardy because defense counsel failed to argue for a lesser included offense instruction.

2015Counsel always retains the duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. [People v Trakhtenberg, 493 Mich 38, 52 ; 826 NW2d 136 (2012) (quotation marks and citations omitted).] There is no record indication that defense counsel’s investigation was less than adequate.

2015Counsel always retains the duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. [People v Trakhtenberg, 493 Mich 38, 52 ; 826 NW2d 136 (2012) (quotation marks and citations omitted).] There is no record indication that defense counsel’s investigation was less than adequate.