We granted leave to determine 1) whether the prosecution presented sufficient evidence to support defendant's convictions of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and first-degree felony murder, M.C.L. § 750.316(1)(b); M.S.A. § 28.548(1)(b), and 2) whether the trial court committed error requiring reversal when it instructed the jury regarding the elements of aiding and abetting felony murder.
First, we hold that the prosecution presented sufficient evidence to prove armed robbery and felony murder beyond a reasonable doubt. Next, we extend the plain error rule of People v. Grant, 445 Mich. 535, 520 N.W.2d 123 (1994), to claims of unpreserved, constitutional error. Although the court's failure to properly instruct on aiding and abetting felony murder was plain error, defendant has not established prejudice. Moreover, the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Accordingly, we affirm the unpublished opinion of the Court of Appeals, which affirmed defendant's convictions and sentence.
I. Underlying Facts and Procedural History
Defendant was tried before a Kent County jury for the robbery and murder of Thomas Eugene Gober in a downtown Grand Rapids parking garage. While taking trash to a dumpster outside a restaurant, prosecution witness James Warren heard a commotion coming from the parking structure across the street. He saw two people on the second story involved in a struggle. One man, subsequently identified as codefendant Victor Escobar, wore a brown or green sweater.
Warren then observed three people run from the parking structure, among them Escobar and defendant. Defendant wore a black jacket with red markings. The hood was pulled over his head.
Warren then went to the second floor of the parking structure where he found Gober lying on the floor with his throat cut. Blood had pooled around Gober's head. An autopsy revealed that Gober died from a single stab wound to the neck that severed his carotid artery.
Warren immediately called 911. Officer Mike Woronko responded. Within minutes after the crime was discovered, Woronko, armed with a description of the suspects, stopped defendant and Escobar less than half a mile from the crime scene. Defendant was wearing his jacket inside out with the hood tucked inside the collar.
The right arm and cuff area and the left and right pocket of defendant's jacket were bloodstained. The blood did not match defendant's or Escobar's blood type, but was consistent with Gober's blood type. The record established that less than one percent of the population shares the characteristics of Gober's blood. The police also found blood on Escobar's clothes, but that blood matched Escobar's blood type, not that of defendant or Gober. The police found a small amount of blood on Escobar's hands. The sample was too small to be identified. The police did recover a watch inscribed with Gober's name from Escobar.
Defendant testified in his own defense, but refused to answer any questions. Instead, he made a nonresponsive, unsupported assertion that the police had planted the blood on his jacket. Accordingly, the trial court instructed the jury to disregard defendant's testimony.
Following the presentation of proofs and closing arguments, the trial court instructed the jury on felony murder without objection:
The court further instructed the jury that defendant must have participated in the robbery during which Gober was killed, and that defendant must have possessed the requisite mental state, i.e., malice. The court further stated:
The jury found defendant guilty of armed robbery and felony murder. The trial court imposed the mandatory sentence of life without the possibility of parole.
The Court of Appeals affirmed defendant's convictions and sentence in an unpublished opinion. The Court concluded that the evidence was sufficient to prove armed robbery and felony murder. Further, because defendant failed to preserve his claim that the trial court had not properly instructed the jury on the elements of felony murder, the Court reviewed the instructional issue for a miscarriage of justice. The Court noted that the trial court
We granted defendant's application for leave to appeal to consider the question of sufficiency of the evidence and the claim of instructional error. 459 Mich. 892, 587 N.W.2d 503 (1998).
II. Sufficiency of the Evidence
A. Standard of Review
Defendant initially contends that the evidence was insufficient to support his armed robbery and felony murder convictions. People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748 (1992), articulates the standard for reviewing sufficiency claims:
"Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime." People v. Allen, 201 Mich.App. 98, 100, 505 N.W.2d 869 (1993).
B. Armed Robbery
The prosecution presented sufficient evidence to prove defendant's armed robbery conviction beyond a reasonable doubt. "The elements of armed robbery are: (1) an assault, (2) a felonious taking of property from the victim's presence or person, (3) while the defendant is armed with a weapon described in the statute." People v. Turner, 213 Mich.App. 558, 569, 540 N.W.2d 728 (1995). The prosecution here relied, in part, on an aiding and abetting theory.
In this case, the prosecution presented sufficient evidence to establish that defendant committed armed robbery, either as a principal or as an aider and abettor. The presence of the victim's blood on defendant's sleeve and in his pockets suggested that defendant himself assaulted the victim. The jury could have inferred further that defendant assisted in a felonious taking of property in light of his close association with Escobar. Defendant fled the crime scene with Escobar, who had the fruits of the robbery, the victim's inscribed
C. Felony Murder
The prosecution also adduced sufficient evidence to support defendant's felony murder conviction as either a principal or an aider and abettor.
The elements of felony murder are: (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result [i.e., malice], (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in [the statute, including armed robbery]. [Turner, supra, 213 Mich.App. at 566, 540 N.W.2d 728.]
The facts and circumstances of the killing may give rise to an inference of malice. Id. A jury may infer malice from evidence that the defendant intentionally set in motion a force likely to cause death or great bodily harm. Id. Malice may also be inferred from the use of a deadly weapon. Id., p. 567, 540 N.W.2d 728.
Here, the prosecution satisfied the first element by proving the killing of a human being, Thomas Gober. A knife wound to Gober's throat severed his carotid artery. The jury could infer that defendant inflicted the fatal wound, given the blood stains on his sleeve and in his pockets. The jury also could have inferred that defendant, if not acting as the principal, had aided and abetted the murder by participating in the underlying offense, i.e., the robbery, and that the killing was within the scope of the robbers' common plan. Warren saw Escobar in the parking structure involved in a struggle. Defendant fled the scene of the crime with Escobar and an unknown third suspect. Defendant's hood was pulled up as he ran from the parking ramp. He later turned his jacket inside out to avoid detection. These facts establish that defendant was not merely present, but an active participant in the armed robbery. The jury could thus have inferred that defendant, if not acting as a principal, aided and abetted the homicide by participating in the robbery in which the victim was killed.
The second element, malice, is also supported by the evidence. The autopsy established that a knife was used in the homicide. An inference of malice arises from the use of the knife. Moreover, by engaging in an armed robbery with his co-felons, defendant set in motion a force likely to cause death or great bodily harm. Even if defendant did not personally use the knife, the jury could have inferred that defendant acted with malice. Defendant participated in a robbery involving
Finally, the prosecution presented evidence that defendant committed or assisted in the commission of armed robbery when the victim was killed. The police retrieved the victim's watch from Escobar shortly after the crime. The jury could have inferred that defendant assisted in the robbery of Gober's watch, given his close association with Escobar, his flight from the scene, and the presence of the victim's blood on his clothes. Accordingly, the prosecution presented sufficient evidence from which a rational trier of fact could find the elements of felony murder beyond a reasonable doubt.
III. The Felony Murder Instructions
We next address defendant's contention that the trial court erroneously instructed the jury on felony murder. In considering this issue, we note two critical points. First, defendant failed to object to the court's instructions. Second, an error in omitting an element of the felony murder instructions would be an error of constitutional magnitude. See United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (the Fifth and Sixth Amendments of the United States Constitution "require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt"). Accordingly, our analysis of the alleged instructional error requires that we first address the standard of review for unpreserved claims of constitutional error.
A. The Plain Error Doctrine
This state encourages litigants "`to seek a fair and accurate trial the first time around....'" Grant, supra, 445 Mich. at 551, 520 N.W.2d 123. This Court disfavors consideration of unpreserved claims of error. In Grant, this Court discussed the standards for reviewing unpreserved claims of nonconstitutional error. We noted that a rule of automatic reversal would conflict with M.C.L. § 769.26; M.S.A. § 28.1096, which provides that judgments or verdicts shall not be reversed absent a miscarriage of justice. Grant, p. 543, 520 N.W.2d 123. We also observed that Michigan has long recognized the importance of preserving issues for appellate review. Id., pp. 546, 550-551, 520 N.W.2d 123.
In Grant, this Court examined federal authority in adopting an issue forfeiture rule for unpreserved, nonconstitutional error. We relied primarily on the United States Supreme Court's decision in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In Olano, the Supreme Court explained the plain error rule of F.R. Crim. P. 52(b), which provides: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The Olano Court emphasized that a constitutional right may be forfeited by a party's failure to timely assert that right. Id., p. 731, 113 S.Ct. 1770. To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. Id., pp. 731-734, 113 S.Ct. 1770. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. Id., p. 734, 113 S.Ct. 1770. "It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice." Id.
In Grant, we found Olano persuasive in distinguishing between Michigan's issue preservation requirement and harmless error rule. Grant, supra, 445 Mich. at 552, 520 N.W.2d 123.
B. Application of the Plain Error Rule to Unpreserved, Constitutional Error
We hold that the plain error rule discussed in Olano and Grant extends to unpreserved claims of constitutional error. Although Grant`s holding was limited to nonconstitutional error, our reasoning made it clear that extending the doctrine
We reaffirm Grant. The policy underlying the issue forfeiture rule provides no basis for distinguishing constitutional from nonconstitutional error. In both instances, requiring a contemporaneous objection provides the trial court "an opportunity to correct the error, which could thereby obviate the necessity of further legal proceedings and would be by far the best time to address a defendant's constitutional and nonconstitutional rights." Id., p. 551, 520 N.W.2d 123. Applying the Olano Grant forfeiture rule to unpreserved claims of constitutional error thus serves the important historical and policy reasons underlying the preservation requirement.
In applying the plain error rule to claims of unpreserved, constitutional error, we find instructive Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). In Johnson, the trial court had failed to submit the element of materiality to the jury in the petitioner's perjury trial. Id., pp. 463-464, 117 S.Ct. 1544. The petitioner, however, had not preserved the issue at trial. Id., p. 464, 117 S.Ct. 1544. The United States Supreme Court, in a virtually unanimous decision,
The Supreme Court determined in Johnson that, even if the third requirement had been met, it would not correct the error because it did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id., pp. 469-470, 117 S.Ct. 1544. In reaching this conclusion, the Court ruled that the evidence of materiality was overwhelming and the issue had been uncontroverted at trial and on appeal. Id., p. 470, 117 S.Ct. 1544. Johnson is persuasive in applying the plain error standard of review to constitutional error, including instances where the alleged error is the failure to instruct the jury on an element of the offense.
Because our holding in this case is inconsistent with the plurality opinion in People v. Vaughn, 447 Mich. 217, 524 N.W.2d 217 (1994), we repudiate the Vaughn plurality. In Vaughn, the defendant
We repudiate the Vaughn plurality's conclusion that litigants have no duty to preserve claims of instructional error.
Also, M.C.L. § 768.29; M.S.A. § 28.1052 provides that "[t]he failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused." Although MCR 2.516(C) and M.C.L. § 768.29; M.S.A. § 28.1052, do not control in this case because the alleged error is a constitutional one, they do provide additional support for extending the Olano/Grant forfeiture rule to unpreserved, constitutional error, including claims of instructional error.
C. Application To This Case
Having determined that the plain error rule applies to defendant's claim, we next consider whether defendant may avoid forfeiture of the alleged instructional error.
As noted above, the elements of felony murder are: 1) the killing of a human being, 2) malice, and 3) the commission, attempted commission, or assisting in the commission of one of the felonies enumerated in the statute, among them armed robbery. Turner, supra, 213 Mich.App. at 566, 540 N.W.2d 728. To establish guilt under an aiding and abetting theory, the prosecution must proffer evidence that
The trial court here instructed the jury on all three elements of felony murder. The court instructed that the prosecution must prove that the victim "was killed during an armed robbery by one of the robbers," thus satisfying the first element. The court also clearly instructed the jury regarding malice and defendant's participation in the underlying felony, i.e., robbery.
Defendant, however, assigns error to the court's instruction that "[t]he prosecution does not have to prove that Mr. Carines, himself, killed him or participated in the killing. To prove [the first] element the prosecution need prove only that one of the robbers killed Mr. Gober." Defendant argues that the instruction allowed the jury to convict him of felony murder without finding that he participated or assisted in killing the victim. The Court of Appeals accepted defendant's argument. It concluded that the trial court "blended" its felony murder instruction with an aiding and abetting instruction, and in doing so, the court failed to instruct the jury regarding the second element of aiding and abetting, i.e., that defendant must have performed acts or given encouragement that assisted the commission of the crime. Nonetheless, the Court of Appeals determined that the error did not affect the verdict because the jury "apparently" convicted defendant as a principal, given the evidence supporting such a theory.
On the specific facts presented here, the trial court erred by failing to instruct the jury on the second element of aiding and abetting. We wish to emphasize that we have never held that a defendant must participate in the actual killing to be guilty of felony murder. To the contrary, our case law establishes that, in certain circumstances, a defendant may be held responsible for the actions of a co-felon. See, e.g., Aaron, supra, 409 Mich. at 731, 299 N.W.2d 304 (liability may be established on agency principles where the felons are acting intentionally or recklessly in pursuit of a common plan); Flowers, supra, 191 Mich.App. at 177, 477 N.W.2d 473 (relying, in part, on Aaron`s discussion of vicarious liability in rejecting the defendant's argument that "he should not be held responsible for the independent, unauthorized acts [of a co-felon] of breaking and entering and shooting the decedent"); Turner, supra, 213 Mich.App. at 566-573, 540 N.W.2d 728 (relying, in part, on the agency principles discussed in Aaron in affirming the defendant's felony murder conviction).
Although felony murder may be submitted to the jury on a vicarious liability theory, the trial court in the case at bar chose to instruct the jury under a traditional aiding and abetting theory. The court properly instructed the jury on the first and third elements of aiding and abetting. The court's instructions made clear that the crime charged must have been committed by defendant or some other person, and that defendant must have had the requisite intent, i.e., malice. The court failed, however, to instruct the jury that,
Moreover, the error was plain. Our case law clearly establishes that, to be guilty as an aider and abettor, a defendant must perform acts or give encouragement that assists the commission of the crime. Defendant has thus satisfied the second criterion of the plain error test.
Defendant has failed, however, to meet his burden of persuasion regarding prejudice. The trial court's instructions, when viewed as a whole, adequately protected defendant's rights. Under the instructions given, the jury would not have convicted defendant without concluding that he performed acts or gave encouragement that assisted the commission of the crime.
The court instructed the jury that it could not find defendant guilty unless he deliberately participated in the robbery in which the victim was killed and unless he acted with malice. The court also instructed that
The court then explained once again the different ways to prove malice, and emphasized that "[j]ust because a defendant participated in a robbery during which someone was killed does not itself prove First Degree Felony Murder." The court further instructed that
These instructions, while imperfect, did not prejudice defendant.
Alternatively, even if defendant had satisfied the third requirement for avoiding forfeiture we would decline to reverse in this case because the alleged error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Johnson, 520 U.S. at 469-470, 117 S.Ct. 1544. This conclusion is supported by the same reasoning that causes us to conclude that no prejudice occurred. In light of the court's instructions and the evidence presented, the jury could not have reasonably concluded that defendant participated in the robbery and acted with malice without also concluding that he participated in the killing either as the principal or an aider and abettor. Accordingly, the United States Supreme Court's reasoning in Johnson applies here:
In summary, the prosecution presented sufficient evidence to support defendant's armed robbery and felony murder convictions. Regarding the instructional issue, we hold that the Olano/Grant forfeiture rule applies to unpreserved claims of constitutional error. Defendant cannot avoid forfeiture because he has not established that he was prejudiced by the court's plain error. Further, even if the three requirements for establishing plain error had been met, we would decline to reverse defendant's conviction because the alleged error did not seriously affect the fairness, integrity or public reputation of judicial proceedings. Accordingly, we affirm the judgment of the Court of Appeals.
WEAVER, C.J., and BRICKLEY, TAYLOR, and YOUNG, JJ., concurred with CORRIGAN, J.
Recent decisions establish that the standard for reviewing error on appeal depends upon two factors: first, whether the error is constitutional or nonconstitutional, and second, whether the error is preserved or forfeited. For the convenience of the bench and bar, we provide the following chart reflecting the current state of the law regarding the governing standards of review.
Standard of review Preserved Forfeited when error is: Nonconstitutional The defendant has the The defendant must burden of establishing a show a plain error that miscarriage of justice affected substantial under a "more probable rights. The reviewing than not" standard. court should reverse only People v. Lukity, 460 when the defendant is Mich.___, ___; N.W.2d actually innocent or the ___(1999). error seriously affected the fairness, integrity, or public reputation of judicial
proceedings. Olano, supra; Grant, supra. Constitutional If the error is not a Same standard as for structural defect that defies claims of forfeited, nonconstitutional harmless error analysis, error. the reviewing court People v. Carines, 460 must determine whether Mich. ___, ___ N.W.2d the beneficiary of the error ___ (1999). has established that it is harmless beyond a reasonable doubt. People v. Anderson (After Remand), 446 Mich. 392, 521 N.W.2d 538 (1994).
MARILYN J. KELLY, J. (concurring in part and dissenting in part).
Although I concur with parts I and II of the majority opinion, I respectfully dissent from parts III and IV. I believe the majority properly concluded that the prosecution presented sufficient evidence to convict defendant of armed robbery and felony murder as either "a principal or an aider and abettor." Op. at 136.
However, I dissent from the decision to extend the standard for reviewing unpreserved claims of constitutional error utilized in People v. Grant
Standard of Review
As explained in the Court of Appeals opinion, failure to object to jury instructions constitutes waiver of any error, unless relief is necessary to avoid manifest injustice. M.C.L. § 768.29; M.S.A. § 28.1052; People v. Vaughn, 447 Mich. 217, 228, 524 N.W.2d 217 (1994) (opinion of Brickley, J.); People v. Petrella, 424 Mich. 221, 276, 380 N.W.2d 11 (1985). Manifest injustice results when an erroneous or omitted instruction pertains to a controlling or basic issue of the case. People v. Nawrocki, 376 Mich. 252, 260, 136 N.W.2d 922 (1965), cert. den. 382 U.S. 455, 86 S.Ct. 654, 15 L.Ed.2d 521 (1966). Consequently, when an erroneous jury instruction pertains to an essential element of a crime, a contemporaneous objection is unnecessary to preserve the issue for appeal. Vaughn, supra at 228-229, 524 N.W.2d 217 (opinion of Brickley, J.)
The majority extends the plain error doctrine advanced in Grant to unpreserved claims of constitutional error. It requires that a defendant establish the following three elements to avoid forfeiture of an unpreserved claim of constitutional error: (1) an error occurred, (2) the error was plain, and (3) the plain error affected substantial rights. Op. at 138. Although the majority recognizes that the Grant
However, in Grant, we explicitly recognized that "this preservation rule is not without exceptions." Id. at 547, 520 N.W.2d 123. We explained that "appellate courts will consider claims of constitutional error for the first time on appeal when the alleged error could have been decisive of the outcome." Id. Contrary to the majority's assertion, Grant emphasized "the instant case does not involve a constitutional right." Id.
The case before us involves a constitutional error, an erroneous instruction concerning an essential element of the offense. Therefore, I would conclude that a contemporaneous objection to an erroneous jury instruction is not required to preserve the issue for appeal. Vaughn, supra at 228, 524 N.W.2d 217. Defendant's conviction should only "be affirmed if the reviewing court is satisfied that the error is harmless beyond a reasonable doubt." People v. Graves, 458 Mich. 476, 482, 581 N.W.2d 229 (1998); See Neder v. United States, ___ U.S. ___, 119 S.Ct. 1827, 1837, ___ L.Ed.2d ___ (1999). Given that "erroneous jury instructions regarding essential
Felony Murder Instructions
As recognized by the majority, defendant was convicted of felony murder "as either a principal or an aider and abettor." Op. at 136. To convict defendant of felony murder, the prosecution was required to establish:
After the trial court appropriately instructed the jury on the first element of felony murder,
By instructing the jury that the prosecution was required to prove only that one of the robbers killed the victim, the trial court blended its felony-murder instruction with an element of aiding and abetting. As noted by the majority, the elements supporting a finding of aiding and abetting felony murder are:
By instructing the jury that the victim had to be killed by defendant or another person, the trial court satisfied the first element of aiding and abetting felony murder. The trial court also satisfied the third element by instructing the jury that defendant had to possess the requisite mens rea to commit felony murder. However, the court failed to properly instruct the jury on the second element of aiding and abetting felony murder by instructing the jury that "the defendant performed acts or gave encouragement that assisted the commission of [felony murder]."
Without providing any supporting rationale, the majority conclusively states that "the jury would not have convicted defendant without concluding that he performed acts or gave encouragement that assisted the commission of the crime." Op. at 142. It reasons that, when viewed as a whole, the trial court's instructions adequately protected defendant's rights. Id., at 142. However, the majority attempts to support this erroneous reasoning by citing the following excerpts from the trial court's instructions:
* * *
The majority acknowledges that these excerpts provided additional instructions, only, regarding the element of malice. Id., at 142. However, on the basis of them, it inexplicably concludes that "the jury could not have come to these conclusions without also finding that defendant aided or encouraged the killing." Id. at 142.
The trial court utterly failed to instruct the jury on the second element of aiding and abetting felony murder, and the remaining instructions provided no guidance regarding this element. Consequently, I would not conclude that the jury would have found defendant guilty of the second element of aiding and abetting felony murder. Not only did the trial court fail to
I do not conclude that this error was harmless. The trial court failed to instruct the jury that defendant must have "performed acts or given encouragement that assisted" in the killing, and expressly instructed that defendant need not have participated in the killing. Consequently, I would conclude that defendant was prejudiced by the failure to instruct on an essential element of the crime. Although I believe that there was sufficient evidence to convict defendant of felony murder,
The majority properly concluded that the prosecution presented sufficient evidence to convict defendant of armed robbery and felony murder. Although it accurately recognizes that the trial court improperly instructed the jury on aiding and abetting felony murder, it errs by concluding that defendant was not prejudiced by this error. In addition, I reject the majority's unwarranted extension of the standard for reviewing unpreserved claims of constitutional error utilized in People v. Grant to the unpreserved claim of constitutional error presented here. Therefore, I would reverse the Court of Appeals decision and remand for a new trial.
MICHAEL F. CAVANAGH, J., concurred with MARILYN J. KELLY, J.
Like Olano, Johnson v. United States, 520 U.S. 461, 466-467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), premised its plain error analysis on F.R. Crim. P. 52(b). Consequently, the majority's reliance on Johnson is similarly misplaced.