lesser offense instruction in Michigan

2018Under MCL 768.32, “a lesser offense instruction is appropriate only if the lesser offense is necessarily included in the greater offense.” People v Nickens, 470 Mich 622, 626 ; 685 NW2d 657 (2004) “Necessarily included lesser offenses are offenses in which the elements of the lesser offense are completely subsumed in the greater offense.” People v Mendoza, 468 Mich 527 , 532 n 3; 664 NW2d 685 (2003).

2018Under MCL 768.32, “a lesser offense instruction is appropriate only if the lesser offense is necessarily included in the greater offense.” People v Nickens, 470 Mich 622, 626 ; 685 NW2d 657 (2004) “Necessarily included lesser offenses are offenses in which the elements of the lesser offense are completely subsumed in the greater offense.” People v Mendoza, 468 Mich 527 , 532 n 3; 664 NW2d 685 (2003).

2022People v Robinson, 154 Mich App 92, 93-94 ; 397 NW2d 229 (1986).

2022People v Robinson, 154 Mich App 92, 93-94 ; 397 NW2d 229 (1986).

2015Defendant relies on Hamed v Wayne Co, 490 Mich 1 ; 803 NW2d 237 (2011), as support for his argument.

2015Defendant relies on Hamed v Wayne Co, 490 Mich 1 ; 803 NW2d 237 (2011), as support for his argument.

2015MCL 768.32(1); People v Reese, 466 Mich 440, 446 ; 647 NW2d 498 (2002).

2015MCL 768.32(1); People v Reese, 466 Mich 440, 446 ; 647 NW2d 498 (2002).

2026“This determination requires an abstract analysis of the elements of the offenses, not the facts of the particular case.” People v Smith, 478 Mich 64, 73 ; 731 NW2d 411 (2011) (quotation marks and citation omitted).

2026“This determination requires an abstract analysis of the elements of the offenses, not the facts of the particular case.” People v Smith, 478 Mich 64, 73 ; 731 NW2d 411 (2011) (quotation marks and citation omitted).

2025That this strategy “ultimately failed does not constitute ineffective assistance of counsel.” People v Kevorkian, 248 Mich App 373, 414-415 ; 639 NW2d 291 (2001).

2025That this strategy “ultimately failed does not constitute ineffective assistance of counsel.” People v Kevorkian, 248 Mich App 373, 414-415 ; 639 NW2d 291 (2001).

2023A lesser-offense instruction is proper where “the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it.” People v McGhee, 268 Mich App 600, 607 ; 709 NW2d 595 -2- (2005) (quotation marks and citation omitted).

2023A lesser-offense instruction is proper where “the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it.” People v McGhee, 268 Mich App 600, 607 ; 709 NW2d 595 -2- (2005) (quotation marks and citation omitted).

2023Justice Levin’s lead opinion in Rochowiak listed examples of cases in which the erroneous failure to give a lesser-offense instruction could be harmless, including cases in which “the differences between the various offenses concern factual elements . . . .” Id. at 248 .

2023He then differentiated those cases from those that concern “the state of mind of the defendant . . . .” Id. at 249 .

2020People v Nickson, 120 Mich App 681, 687 ; 327 NW2d 333 (1982).

2020People v Nickson, 120 Mich App 681, 687 ; 327 NW2d 333 (1982).

2019“Even if somewhat imperfect, instructions do not create error if they fairly present to the jury the issues tried and sufficiently protect the defendant’s rights.” People v Bartlett, 231 Mich App 139, 143-144 ; 585 NW2d 341 (1998). -11- Under MCL 768.32, “a lesser offense instruction is appropriate only if the lesser offense is necessarily included in the greater offense.” People v Nickens, 470 Mich 622, 626 ; 685 NW2d 657 (2004).

2019“Even if somewhat imperfect, instructions do not create error if they fairly present to the jury the issues tried and sufficiently protect the defendant’s rights.” People v Bartlett, 231 Mich App 139, 143-144 ; 585 NW2d 341 (1998). -11- Under MCL 768.32, “a lesser offense instruction is appropriate only if the lesser offense is necessarily included in the greater offense.” People v Nickens, 470 Mich 622, 626 ; 685 NW2d 657 (2004).

2019People v Sardy, 216 Mich App 111, 116 ; 549 NW2d 23 (1996); People v Robinson, 154 Mich App 92, 93-94 ; 397 NW2d 229 (1986). 1.

2019People v Sardy, 216 Mich App 111, 116 ; 549 NW2d 23 (1996); People v Robinson, 154 Mich App 92, 93-94 ; 397 NW2d 229 (1986). 1.

2016People v Wilson, 265 Mich App 386, 396 ; 695 NW2d 351 (2005).

2016People v Wilson, 265 Mich App 386, 396 ; 695 NW2d 351 (2005).

2015Defense counsel cannot be deemed ineffective for “[f]ailing to advance a meritless argument or a futile objection.” People v Erickson, 288 Mich App 192, 201 ; 793 NW2d 120 (2010).

2015Defense counsel cannot be deemed ineffective for “[f]ailing to advance a meritless argument or a futile objection.” People v Erickson, 288 Mich App 192, 201 ; 793 NW2d 120 (2010).

2014For these reasons, we agree with the Court of Appeals dissenting opinion, which explained that “[g]iven the clear intent of the Legislature to forbid consideration of the lesser misdemeanor offense of moving violation causing death when a defendant has been charged with reckless driving causing death, a judge trying a case without a jury would surely understand that he or she could not convict the defendant of the lesser offense.”44 As a result of defendant’s charge of reckless driving causing death, MCL 257.626(5) barred an instruction on the misdemeanor lesser offense of moving 42 People v C

2014For these reasons, we agree with the Court of Appeals dissenting opinion, which explained that “[g]iven the clear intent of the Legislature to forbid consideration of the lesser misdemeanor offense of moving violation causing death when a defendant has been charged with reckless driving causing death, a judge trying a case without a jury would surely understand that he or she could not convict the defendant of the lesser offense.”44 As a result of defendant’s charge of reckless driving causing death, MCL 257.626(5) barred an instruction on the misdemeanor lesser offense of moving 42 People v C

2014For these reasons, we agree with the Court of Appeals dissenting opinion, which explained that “[g]iven the clear intent of the Legislature to forbid consideration of the lesser misdemeanor offense of moving violation causing death when a defendant has been charged with reckless driving causing death, a judge trying a case without a jury would surely understand that he or she could not convict the defendant of the lesser offense.”44 As a result of defendant’s charge of reckless driving causing death, MCL 257.626(5) barred an instruction on the misdemeanor lesser offense of moving 42 People v C

2014For these reasons, we agree with the Court of Appeals dissenting opinion, which explained that “[g]iven the clear intent of the Legislature to forbid consideration of the lesser misdemeanor offense of moving violation causing death when a defendant has been charged with reckless driving causing death, a judge trying a case without a jury would surely understand that he or she could not convict the defendant of the lesser offense.”44 As a result of defendant’s charge of reckless driving causing death, MCL 257.626(5) barred an instruction on the misdemeanor lesser offense of moving 42 People v C

2014If the language of the statute is unambiguous, the Legislature is presumed to have intended the meaning expressed.” GC Timmis & Co v Guardian Alarm Co, 468 Mich 416, 420 ; 662 NW2d 710 (2003) (citations and quotation marks omitted).

2014If the language of the statute is unambiguous, the Legislature is presumed to have intended the meaning expressed.” GC Timmis & Co v Guardian Alarm Co, 468 Mich 416, 420 ; 662 NW2d 710 (2003) (citations and quotation marks omitted).

2009This does not constitute the kind of substantial evidence necessary to support a lesser offense instruction, People v. Silver, 466 Mich. 386, 393 , 646 N.W.2d 150 (2002), and the facts certainly do not "rationally fit within the legal purview of manslaughter...." Holtschlag, supra at 16 n. 8, 684 N.W.2d 730 . [2] Again, in light of evidence that defendant demanded a loaded weapon from his wife after the physical altercation concluded, returned to the victim and maintained a dominant position over him by physically forcing the victim back into the vehicle, pointed the gun close to the victim's

2009This does not constitute the kind of substantial evidence necessary to support a lesser offense instruction, People v Silver, 466 Mich 386, 393 ; 646 NW2d 150 (2002), and the facts certainly do not “rationally fit within the legal purview of manslaughter ... .” Holtschlag, supra at 16 n 8. 2 Again, in light of evidence that defendant demanded a loaded weapon from his wife after the physical altercation concluded, returned to the victim and maintained a dominant position over him by physically forcing the victim back into the vehicle, pointed the gun close to the victim’s chest, cocked the hamm

2002Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. [8] The house had approximately 720 square feet. [9] MCL 750.115(1). [10] People v. Stephens, 416 Mich. 252 , 330 N.W.2d 675 ; 416 Mich. 252 , 330 N.W.2d 675 (1982). [11] People v. Cornell, 466 Mich. 335 , 646 N.W.2d 127 (2002). [1] We also clarified that this "substantial evidence" standard for determining whether the error is harmless differs from the standard for determining whether the error occurred.

2002Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. [8] The house had approximately 720 square feet. [9] MCL 750.115(1). [10] People v. Stephens, 416 Mich. 252 , 330 N.W.2d 675 ; 416 Mich. 252 , 330 N.W.2d 675 (1982). [11] People v. Cornell, 466 Mich. 335 , 646 N.W.2d 127 (2002). [1] We also clarified that this "substantial evidence" standard for determining whether the error is harmless differs from the standard for determining whether the error occurred.

1999Despite 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.

1983Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Keeble v United States, 412 US 205, 212-213 ; 93 S Ct 1993 ; 36 L Ed 2d 844 (1973). 11 Linkletter v Walker, 381 US 618 ; 85 S Ct 1731 ; 14 L Ed 2d 601 (1965), applied in People v Hampton, 384 Mich 669 ; 187 NW2d 404 (1971); People v Rich, 397 Mich 399 ; 245 NW2d 24 (1976); People v Young, 410 Mich 363 ; 301 NW2d 803 (1981).

1983Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Keeble v United States, 412 US 205, 212-213 ; 93 S Ct 1993 ; 36 L Ed 2d 844 (1973). 11 Linkletter v Walker, 381 US 618 ; 85 S Ct 1731 ; 14 L Ed 2d 601 (1965), applied in People v Hampton, 384 Mich 669 ; 187 NW2d 404 (1971); People v Rich, 397 Mich 399 ; 245 NW2d 24 (1976); People v Young, 410 Mich 363 ; 301 NW2d 803 (1981).

1983Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Keeble v United States, 412 US 205, 212-213 ; 93 S Ct 1993 ; 36 L Ed 2d 844 (1973). 11 Linkletter v Walker, 381 US 618 ; 85 S Ct 1731 ; 14 L Ed 2d 601 (1965), applied in People v Hampton, 384 Mich 669 ; 187 NW2d 404 (1971); People v Rich, 397 Mich 399 ; 245 NW2d 24 (1976); People v Young, 410 Mich 363 ; 301 NW2d 803 (1981).

1983Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Keeble v United States, 412 US 205, 212-213 ; 93 S Ct 1993 ; 36 L Ed 2d 844 (1973). 11 Linkletter v Walker, 381 US 618 ; 85 S Ct 1731 ; 14 L Ed 2d 601 (1965), applied in People v Hampton, 384 Mich 669 ; 187 NW2d 404 (1971); People v Rich, 397 Mich 399 ; 245 NW2d 24 (1976); People v Young, 410 Mich 363 ; 301 NW2d 803 (1981).

1983Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Keeble v United States, 412 US 205, 212-213 ; 93 S Ct 1993 ; 36 L Ed 2d 844 (1973). 11 Linkletter v Walker, 381 US 618 ; 85 S Ct 1731 ; 14 L Ed 2d 601 (1965), applied in People v Hampton, 384 Mich 669 ; 187 NW2d 404 (1971); People v Rich, 397 Mich 399 ; 245 NW2d 24 (1976); People v Young, 410 Mich 363 ; 301 NW2d 803 (1981).

1983Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Keeble v United States, 412 US 205, 212-213 ; 93 S Ct 1993 ; 36 L Ed 2d 844 (1973). 11 Linkletter v Walker, 381 US 618 ; 85 S Ct 1731 ; 14 L Ed 2d 601 (1965), applied in People v Hampton, 384 Mich 669 ; 187 NW2d 404 (1971); People v Rich, 397 Mich 399 ; 245 NW2d 24 (1976); People v Young, 410 Mich 363 ; 301 NW2d 803 (1981).

1983Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Keeble v United States, 412 US 205, 212-213 ; 93 S Ct 1993 ; 36 L Ed 2d 844 (1973). 11 Linkletter v Walker, 381 US 618 ; 85 S Ct 1731 ; 14 L Ed 2d 601 (1965), applied in People v Hampton, 384 Mich 669 ; 187 NW2d 404 (1971); People v Rich, 397 Mich 399 ; 245 NW2d 24 (1976); People v Young, 410 Mich 363 ; 301 NW2d 803 (1981).

1983Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Keeble v United States, 412 US 205, 212-213 ; 93 S Ct 1993 ; 36 L Ed 2d 844 (1973). 11 Linkletter v Walker, 381 US 618 ; 85 S Ct 1731 ; 14 L Ed 2d 601 (1965), applied in People v Hampton, 384 Mich 669 ; 187 NW2d 404 (1971); People v Rich, 397 Mich 399 ; 245 NW2d 24 (1976); People v Young, 410 Mich 363 ; 301 NW2d 803 (1981).