People of Michigan v. Menayetta Michell Yeager

• Court: Michigan Supreme Court
• Decided: July 27, 2023
• Docket: 164055
• Status: Published

Opinion

Michigan Supreme Court Lansing, Michigan

Syllabus Chief Justice: Justices: Elizabeth T. Clement Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden

This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis

PEOPLE v YEAGER

Docket No. 164055. Argued on application for leave to appeal May 10, 2023. Decided July 27, 2023.

Menayetta M. Yeager was convicted following a jury trial in the Wayne Circuit Court of first-degree murder, MCL 750.316(1)(a), and carrying a firearm during the commission of a felony, MCL 750.227b, in connection with the shooting death of her boyfriend, Jonte Brooks. In 2017, Brooks punched defendant in the face with a gun when defendant informed him, while they were sitting in defendant’s minivan, that she no longer wanted to be in a relationship with him. Brooks then pulled defendant out of the van by her hair and repeatedly hit her, after which he got back into defendant’s van and used it to chase after her, attempting to run her over before eventually driving away. A neighbor, who witnessed some of the encounter, went over to defendant and agreed to take her to try to retrieve her van. While defendant was talking on her cellphone with Brooks to make those arrangements, Brooks repeatedly threatened to kill both defendant and the neighbor. Ultimately, Brooks pulled into a gas station behind the neighbor’s vehicle, defendant got out of the neighbor’s vehicle during the continued argument with Brooks, and defendant pulled out a gun and shot at Brooks multiple times. Brooks ultimately died from a bullet wound to his chest; the police later found 17 shell casings at the gas station. At trial, the jury was instructed on first- and second-degree murder only. Defendant appealed her conviction, and the Court of Appeals remanded to the trial court for a Ginther 1 hearing to determine whether trial counsel’s failure to request an instruction on voluntary manslaughter as a lesser included offense to murder constituted ineffective assistance of counsel. On remand, trial counsel testified that he did not request a voluntary manslaughter instruction because he believed that instruction to be mutually exclusive of the self-defense theory asserted at trial. The court, Kevin Cox, J., concluded that trial counsel erred by not requesting the voluntary manslaughter instruction because, had the instruction been requested, a reasonable juror could have found defendant was guilty of voluntary manslaughter rather than first-degree murder. For that reason, the trial court granted a new trial. After remand, the prosecution cross-appealed the trial court order, arguing that trial counsel was not ineffective, and that even if he was, defendant had not been prejudiced. In a split, unpublished per curiam opinion issued on December 21, 2021 (Docket No. 346074), the Court of Appeals, O’BRIEN, P.J., and CAMERON, J. (BECKERING, J., concurring), relied on People

1 People v Ginther, 390 Mich 436 (1973). v Raper, 222 Mich App 475 (1997), to reverse the trial court order granting defendant a new trial. Defendant sought leave to appeal, and the Supreme Court ordered and heard oral argument on whether to grant defendant’s application or take other action. 509 Mich 984 (2022).

In an opinion by Justice BERNSTEIN, joined by Justices CAVANAGH, WELCH, and BOLDEN, the Supreme Court, in lieu of granting leave to appeal, held:

A voluntary manslaughter instruction would have been supported by the evidence presented in this case, and trial counsel’s decision not to request the instruction was objectively unreasonable. Because the instructions given did not present to the jury the differing states of mind required for murder and voluntary manslaughter, and because a reasonable jury could have found that defendant acted in the state of mind required for voluntary manslaughter, the failure to instruct prejudiced defendant. Accordingly, defendant was denied the effective assistance of counsel and she was entitled to a new trial.

1. The United States and Michigan Constitutions guarantee criminal defendants the effective assistance of counsel. To establish a claim of ineffective assistance of counsel and obtain a new trial, a defendant must show that (1) counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been different. While attorneys have broad latitude to determine trial strategy, a counsel’s strategic decisions must be objectively reasonable. Trial counsel’s failure to request a jury instruction may constitute an unreasonably deficient level of performance.

2. A jury instruction on a lesser included offense is appropriate if the charged 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. Manslaughter is a lesser included offense of murder. For an act to be considered voluntary manslaughter, the defendant must kill in the heat of passion, the passion must be caused by adequate provocation, and there cannot be a lapse of time during which a reasonable person could control their passions. The provocation must be sufficient to cause a reasonable person to lose control, not just the specific defendant. The distinguishing element between manslaughter and murder is malice, which in voluntary manslaughter is negated by the presence of provocation and heat of passion. Because voluntary and involuntary manslaughter are lesser included offenses of murder, when a defendant is charged with murder, an instruction for voluntary and involuntary manslaughter must be given if supported by a rational view of the evidence. In this case, trial counsel’s decision not to request an instruction on voluntary manslaughter was objectively unreasonable. Caselaw and M Crim JI 16.9 do not require a defendant to specifically act out of anger for a voluntary manslaughter instruction to be applicable. That is, while the model jury instruction specifically acknowledges anger as an emotional state that may serve to mitigate murder to voluntary manslaughter, the rest of the jury instruction makes clear that the defendant’s thinking must have been disturbed by an undefined “emotional excitement.” In this case, trial counsel’s reason for not requesting the instruction—i.e., that arguing self-defense to a murder charge would render defendant’s actions unintentional, which was inconsistent with manslaughter because that charge requires an intentional act—was based on a misunderstanding of the law. A voluntary manslaughter instruction would have been supported by the evidence presented given that defendant’s shooting of the victim was the culmination of a series of events that began with the victim physically assaulting defendant, trying to run defendant over with a vehicle, and repeatedly threatening to kill defendant and the neighbor who helped her. Under these facts, a jury could have reasonably concluded that defendant acted out of heightened emotion rather than reason in shooting the victim. Accordingly, trial counsel’s performance fell below an objective standard of reasonableness when he failed to request a voluntary manslaughter instruction to which defendant was entitled.

3. Whether the absence of an instruction on a lesser included offense is harmless—i.e., the absence did not prejudice the defendant—depends on the facts and circumstances of the case. People v Beach, 429 Mich 450 (1988), held that a jury’s rejection of an intermediate charge does not automatically render harmless the failure to instruct on a lesser offense. To determine whether the failure to instruct was harmless, a reviewing court must consider the specific circumstances of the case in concert with the relevant offenses and ask whether the distinctions between the particular charges suggest that a jury’s rejection of an intermediate charge demonstrates that the jury would have been unlikely to select a lesser charge. Some distinctions between charges are implicit in the verdict, such as those that depend on factual findings, and in such cases, it can be definitively determined that the jury would not have opted for a requested lesser offense; however, such a conclusion is not implicit when the charges are distinguished by a legal question, like the defendant’s required state of mind, which has not previously been placed before the jury. Beach’s explanation of when instruction on a lesser offense is warranted is still good law. Thus, when considering whether a jury should have been instructed on a lesser included offense, an appellate court must consider whether, in light of the proposed defense theory and the factual elements of the relevant offenses, the jury’s rejection of the intermediate charge necessarily indicates a lack of likelihood that the jury would have adopted the lesser requested charge. This is consistent with People v Mendoza, 468 Mich 527 (2003), which held that manslaughter is a lesser included offense of murder and that manslaughter instructions must be given to the jury if supported by a rational view of the evidence. In this case, defendant was prejudiced by trial counsel’s deficient performance. A voluntary manslaughter instruction would have assisted the jury in considering defendant’s state of mind at the time of the shooting in a manner not contemplated by first- and second-degree murder instructions alone. Specifically, a jury could have reasonably concluded that defendant’s actions were the result of provocation to a state of emotional excitement. Thus, defendant was prejudiced because the jury was not made aware of the lesser included offense of voluntary manslaughter. Stated differently, because the instructions given did not present to the jury the differing states of mind required for murder and voluntary manslaughter, and because a reasonable jury could have found that defendant acted in the state of mind required for voluntary manslaughter, the failure to instruct prejudiced defendant. The jury’s finding of premeditation was not an implicit rejection of adequate provocation given that there is no middle-ground mens rea in second-degree murder that a jury rejects to find first-degree murder, and the element distinguishing voluntary manslaughter from murder offenses is an element outside of the mens rea spectrum.

4. Defendant was entitled to a new trial because she established that counsel’s performance fell below an objective standard of reasonableness and that but for counsel’s deficient performance, there was a reasonable probability that the outcome would have been different. Accordingly, the Court of Appeals judgment reversing the trial court’s grant of a new trial had to be reversed. In addition, the Court of Appeals erred to the extent it determined that People v Raper, 222 Mich App 475 (1997), created a bright-line rule under which the absence of a voluntary manslaughter instruction is automatically considered harmless if the jury was instructed on both first- and second-degree murder and convicted the defendant of first-degree murder. Court of Appeals judgment reversed; case remanded for a new trial.

Chief Justice CLEMENT, joined by Justices ZAHRA and VIVIANO, dissenting, disagreed that defendant was prejudiced by trial counsel’s failure to request the voluntary manslaughter instruction. In describing the elements of premeditation and deliberation (first-degree murder) and malice excused (voluntary manslaughter), Michigan caselaw consistently places the terms at opposite ends of the mens rea spectrum. The jury’s decision here to reject a lesser offense with malice aforethought demonstrates that the jury would not have chosen to convict defendant of a killing resulting from malice that has been excused by the heat of passion. If the jury had reasonable doubts regarding whether defendant deliberated and reflected before murdering Brooks, it would have instead chosen to convict defendant of second-degree murder, which requires malice but no premeditation. This was bolstered by the jury instructions given, which made clear the jury’s decision to convict defendant of first-degree murder was an express and knowing repudiation of a finding that defendant acted rashly or in the heat of passion. Depending on the offenses charged, a jury’s verdict rejecting an intermediate charge in favor of a greater charge can reveal the jury’s legal conclusions—just as it reveals the jury’s factual findings. And just as the reviewing court can determine whether the jury’s factual finding is contradictory to the factual finding required by the erroneously excluded instruction, the reviewing court can determine whether the jury’s legal conclusion is contradictory to the legal conclusion required by the erroneously excluded instruction. The fact that the jury rejected the intermediate offense of second-degree murder and, instead, chose to convict defendant of first-degree premeditated murder, indicated that it was unlikely that the jury would have chosen to convict defendant of the lesser charge of voluntary manslaughter if the instruction had been requested and given. Chief Justice CLEMENT, who assumed without deciding that the majority was correct that defense counsel provided ineffective assistance when it failed to request a voluntary manslaughter jury instruction, would have found that defendant was not entitled to a new trial on the basis of trial counsel’s assumed error in not requesting a voluntary manslaughter instruction because defendant could not prove that the error created a reasonable probability of a different result at trial. For that reason, she would have affirmed the judgment of the Court of Appeals.

Justice ZAHRA, joined by Justice VIVIANO, dissenting, joined in full Chief Justice CLEMENT’s opinion with regard to her determination that defendant was not prejudiced by trial counsel’s failure to request a voluntary manslaughter instruction. However, he would not have assumed without deciding that the majority correctly determined that defense counsel performed deficiently in failing to request that instruction at defendant’s murder trial. The majority opinion improperly relied on defendant’s ineffective-assistance claim to expand what may qualify as the heat of passion necessary for manslaughter. Had the trial court viewed the case similarly to the way in which trial counsel did, as evidenced by his testimony at the Ginther hearing on remand, it would have likely concluded that there was insufficient evidence to support a voluntary manslaughter instruction. Trial counsel’s strategic choices should not have been second-guessed because the jury would have likely been confused by a voluntary manslaughter instruction given that defendant also pursued an arguably incompatible self-defense claim. Michigan Supreme Court Lansing, Michigan

OPINION Chief Justice: Justices: Elizabeth T. Clement Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden

FILED July 27, 2023

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 164055

MENAYETTA MICHELL YEAGER,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

BERNSTEIN, J. In this case, we consider whether defendant was denied the effective assistance of

counsel by trial counsel’s failure to request a voluntary manslaughter instruction at

defendant’s jury trial for the murder of her boyfriend. While we agree with the Court of

Appeals that trial counsel’s representation fell below an objective standard of

reasonableness, we disagree with the Court of Appeals as to prejudice and instead conclude

that there is a reasonable probability that this error affected the outcome of defendant’s trial. For that reason, we reverse the judgment of the Court of Appeals and remand to the

trial court for proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

On August 27, 2017, defendant, Menayetta Yeager, and her boyfriend of

approximately one year, Jonte Brooks, were seated in her minivan when defendant told

Brooks that she wanted to break up. This set off a series of volatile events. Brooks, who

had exhibited violent tendencies previously in the relationship, punched defendant and hit

her in the face with his gun, something defendant testified he regularly carried. Brooks

pulled defendant out of the vehicle by her hair and continued to hit her. Brooks then got

into the driver’s seat of defendant’s minivan and used it to chase after her, attempting to

run her over multiple times before eventually driving away in the van. Defendant called

the police throughout this encounter but did not feel she had a safe place to wait for officers

to arrive.

A neighbor, Labarren Borom, witnessed Brooks driving across lawns in an effort to

run defendant down. After Brooks had driven away, Borom approached defendant to ask

if she was okay and agreed to take defendant in his truck so defendant could follow Brooks

and retrieve her van. Defendant called Brooks on his cellphone, and Brooks assured her

that he would leave the van at a nearby gas station. However, Brooks never arrived at the

designated gas station, and as defendant continued to demand the return of her van over

the phone, Brooks repeatedly threatened to kill both defendant and Borom. Defendant and

Borom ultimately pulled into a different gas station, and Brooks pulled in behind them.

Brooks and defendant began to argue, and defendant got out of Borom’s truck.

2 Defendant testified at trial that her intent was to run away from Brooks upon getting

out of the truck and that Borom handed her a gun as she debarked. She then testified that

she shot at Brooks two or three times out of fear. Borom’s recollection of the incident was

that defendant got out of his truck during her argument with Brooks, pulled out a gun, and

fired multiple shots, with Brooks pulling away in the van while defendant was still

shooting. Borom recalled hearing five or six shots; a gas station employee remembered

hearing about 10 shots. Defendant returned to Borom’s vehicle, hysterical and crying, and

Borom drove her home. Police officers dispatched to the scene of the shooting found

Brooks lying unresponsive in the van, crashed into a wall about five blocks away from the

gas station, with a bullet wound to the chest. The police retrieved 17 shell casings from

the gas station. Brooks was alive when the police arrived on the scene, but he later died at

the hospital. His death was ruled a homicide. Defendant turned herself in to the police the

following day.

Defendant was charged in the Wayne Circuit Court with first-degree murder, MCL

750.316(1)(a), and carrying a firearm during the commission of a felony (felony-firearm),

MCL 750.227b. At trial, the jury was instructed on first- and second-degree murder and

convicted defendant as charged. She was sentenced to life without parole for the murder

conviction, which was to be served consecutively to the mandatory two-year felony-

firearm sentence.

On appeal, the Court of Appeals remanded the case to the trial court for a Ginther 1

hearing to determine whether defendant had been denied the effective assistance of

1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

3 counsel, limited to the question of whether trial counsel’s failure to request a jury

instruction on voluntary manslaughter as a lesser included offense to murder constituted

ineffective assistance. People v Yeager, unpublished order of the Court of Appeals, entered

November 9, 2020 (Docket No. 346074). At the Ginther hearing, trial counsel testified

that he had not requested a voluntary manslaughter instruction because he believed it to be

mutually exclusive of the self-defense theory he presented at trial. The trial court

concluded that, had trial counsel requested a voluntary manslaughter instruction, a

reasonable juror could have found that defendant was guilty of voluntary manslaughter

rather than first-degree murder. Because the trial court found that there was a reasonable

likelihood that the trial outcome would have been different had trial counsel not erred by

failing to ask for the voluntary manslaughter instruction, the trial court granted a new trial.

The prosecution challenged this ruling, arguing that trial counsel had not been ineffective

and that, in any case, defendant had not been prejudiced. The Court of Appeals reversed

in an unpublished per curiam opinion. People v Yeager, unpublished per curiam opinion

of the Court of Appeals, issued December 21, 2021 (Docket No. 346074). Judge

BECKERING wrote separately, concurring in the result but opining that People v Raper, 222

Mich App 475; 563 NW2d 709 (1997), on which the majority relied, was wrongly decided.

Yeager (BECKERING, J., concurring), unpub op at 1, 4-7. Defendant sought leave to appeal

in this Court, and in lieu of granting leave, we ordered oral argument on the application.

People v Yeager, 509 Mich 984 (2022).

4 II. STANDARD OF REVIEW

Whether a defendant has received ineffective assistance of counsel is a mixed

question of fact and constitutional law. People v Armstrong, 490 Mich 281, 289; 806

NW2d 676 (2011). “ ‘A judge must first find the facts, then must decide whether those

facts establish a violation of the defendant’s constitutional right to the effective assistance

of counsel.’ ” Id., quoting People v Grant, 470 Mich 477, 484; 684 NW2d 686 (2004).

We review for clear error the trial court’s factual findings, and “[w]e review de novo

questions of constitutional law.” Armstrong, 490 Mich at 289.

III. ANALYSIS

A. INEFFECTIVE ASSISTANCE OF COUNSEL

At trial, defendant’s counsel presented a self-defense theory and did not request a

voluntary manslaughter instruction, meaning that the jury was only instructed on the

charges of first- and second-degree murder. Whether defendant is entitled to relief in this

case turns on whether that decision constituted ineffective assistance of counsel. Criminal

defendants are entitled to the assistance of counsel under both the Michigan and United

States Constitutions. Const 1963, art 1, § 20; US Const, Am VI. This right guarantees the

effective assistance of counsel. Strickland v Washington, 466 US 668, 686; 104 S Ct 2052;

80 L Ed 2d 674 (1984). In order to obtain a new trial because of ineffective assistance of

counsel, “a defendant must show that (1) counsel’s performance fell below an objective

standard of reasonableness and (2) but for counsel’s deficient performance, there is a

reasonable probability that that outcome would have been different.” People v

Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). “ ‘A reasonable probability is a

5 probability sufficient to undermine confidence in the outcome.’ ” People v Ackley, 497

Mich 381, 389; 870 NW2d 858 (2015), quoting Strickland, 466 US at 694.

Generally, attorneys are given broad latitude to determine trial strategy, and there is

a strong presumption that counsel’s performance was born from sound strategy.

Strickland, 466 US at 689-690. However, counsel’s strategic decisions must be objectively

reasonable. Trakhtenberg, 493 Mich at 52.

B. VOLUNTARY MANSLAUGHTER

Defendant’s position here is that trial counsel erred by failing to request a jury

instruction on voluntary manslaughter. This Court has defined voluntary manslaughter as

follows:

[I]f the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reason was disturbed, . . . then the law, out of indulgence to the frailty of human nature, . . . regards the offense as of a less heinous character than murder, and gives it the designation of manslaughter. [Maher v People, 10 Mich 212, 219 (1862).]

That is, for an act to be considered voluntary manslaughter, the defendant must kill in the

heat of passion, the passion must be caused by adequate provocation, and there cannot be

a lapse of time during which a reasonable person could control their passions. The

provocation must be sufficient to cause the defendant to act out of passion rather than

reason, but it also must be sufficient to cause a reasonable person to lose control, not just

the specific defendant. People v Pouncey, 437 Mich 382, 389; 471 NW2d 346 (1991).

In People v Mendoza, 468 Mich 527, 536; 664 NW2d 685 (2003), this Court

explained that manslaughter is a lesser included offense of murder. Both murder and

6 voluntary manslaughter “require a death, caused by defendant, with either an intent to kill,

an intent to commit great bodily harm, or an intent to create a very high risk of death or

great bodily harm with knowledge that death or great bodily harm was the probable result.”

Id. at 540. The distinguishing element is malice, which in voluntary manslaughter is

“negated by the presence of provocation and heat of passion.” Id. Involuntary

manslaughter, by contrast, contemplates a lesser degree of intent. Id. at 541. The Mendoza

Court concluded that, because both voluntary and involuntary manslaughter are necessarily

included lesser offenses and “inferior” to murder under MCL 768.32, “when a defendant

is charged with murder, an instruction for voluntary and involuntary manslaughter must be

given if supported by a rational view of the evidence.” Id.

C. APPLICATION

1. COUNSEL’S PERFORMANCE

In assessing whether defendant received ineffective assistance of counsel, we first

consider whether trial counsel’s failure to request a voluntary manslaughter instruction was

objectively unreasonable. Trial counsel’s failure to request a jury instruction may

constitute an unreasonably deficient level of performance. See People v Leffew, 508 Mich

625, 646; 975 NW2d 896 (2022) (holding that the defense attorneys’ failure to request a

defense-of-others instruction supporting their theory of the case was objectively

unreasonable). We have held that a jury instruction on a necessarily included lesser offense

is appropriate if “the charged greater offense requires the jury to find a disputed factual

element that is not part of the lesser included offense and a rational view of the evidence

would support it.” People v Cornell, 466 Mich 335, 357; 646 NW2d 127 (2002).

7 In this case, we agree with the lower courts that trial counsel’s decision not to

request an instruction on voluntary manslaughter was objectively unreasonable. Trial

counsel’s explanation for this omission at the Ginther hearing was that defendant’s theory

of the case was self-defense, and trial counsel “[did not] believe, in any way, [defendant]

intended, as a manslaughter instruction would ask for, in any kind of way, voluntary or

involuntary, to kill the deceased.” In other words, trial counsel appears to have believed

that arguing self-defense to a murder charge would render defendant’s actions

unintentional and that a manslaughter instruction would not be applicable because only

manslaughter would require an intentional act. However, this reasoning is inconsistent or

based on a misunderstanding of the law. Murder as mitigated by self-defense and voluntary

manslaughter are not distinguished by the element of intent because both contemplate an

intentional action. See People v Dupree, 486 Mich 693, 707; 788 NW2d 399 (2010) (“ ‘A

finding that a defendant acted in justifiable self-defense necessarily requires a finding that

the defendant acted intentionally, but that the circumstances justified his actions.’ ”),

quoting People v Heflin, 434 Mich 482, 503; 456 NW2d 10 (1990). Rather, the distinction

between murder and voluntary manslaughter is the element of malice, which in voluntary

manslaughter is “negated by the presence of provocation and heat of passion.” Mendoza,

468 Mich at 540. Because trial counsel failed to appreciate the meaningful difference

between the two charges, his explanation for why he failed to pursue a manslaughter

instruction is legally incorrect.

Moreover, a review of the facts of this case demonstrates that the voluntary

manslaughter instruction would have been supported by the evidence presented. The

testimony presented at trial reflected that defendant’s shooting of Brooks was the

8 culmination of a series of events during which Brooks physically assaulted defendant, took

her car and used it to attempt to run her over, and repeatedly threatened to kill defendant

and Borom, the neighbor who assisted her. Defendant testified that she feared for her life.

At the Ginther hearing, when asked about the moments leading up to the shooting, she

explained, “I just remembered bein’ scared. I don’t remember details, like, walkin’ towards

him, or anything like that. And when I seen the video, I didn’t even see myself, or

remember shootin’ as many times as they say I did.” Borom also testified that defendant

was hysterical and crying when she returned to his vehicle after the shooting. A jury could

reasonably conclude that the combination of physical and verbal threats from Brooks

throughout this unbroken chain of events stoked defendant’s passions so that she acted out

of heightened emotion rather than reason in shooting Brooks.

We do not find persuasive the argument that defendant specifically needed to act

out of anger for a voluntary manslaughter instruction to be applicable. Our caselaw does

not circumscribe the requisite emotional state for voluntary manslaughter in this fashion.

See Maher, 10 Mich at 219 (referring to “influence of passion or in heat of blood”). Nor

do our model jury instructions suggest any such requirement. Rather, the Michigan Model

Criminal Jury Instruction regarding voluntary manslaughter as a lesser included offense

provides:

(1) The crime of murder may be reduced to voluntary manslaughter if the defendant acted out of passion or anger brought about by adequate cause and before the defendant had a reasonable time to calm down. For manslaughter, the following two things must be present:

(2) First, when the defendant acted, [his / her] thinking must be disturbed by emotional excitement to the point that a reasonable person might have acted on impulse, without thinking twice, from passion instead of judgment. This emotional excitement must have been the result of something

9 that would cause a reasonable person to act rashly or on impulse. The law does not say what things are enough to do this. That is for you to decide.

(3) Second, the killing itself must result from this emotional excitement. The defendant must have acted before a reasonable time had passed to calm down and return to reason. The law does not say how much time is needed. That is for you to decide. The test is whether a reasonable time passed under the circumstances of this case. [M Crim JI 16.9.]

While the model jury instruction specifically acknowledges anger as an emotional state

that may serve to mitigate murder to voluntary manslaughter, the rest of the jury instruction

makes clear that the defendant’s thinking must have been disturbed by an undefined

“emotional excitement.” As Judge BECKERING stated of the emotional series of events

culminating in defendant’s shooting of Brooks, “If ever there were a heat of passion case,

this is it.” Yeager (BECKERING, J., concurring), unpub op at 1.

Justice ZAHRA would hold that trial counsel’s performance was not deficient, but

the only rationale offered is trial counsel’s Ginther hearing testimony that he believed

defendant had reasonable time to calm down. Based on this, Justice ZAHRA concludes that

whether the trial court would have given the voluntary manslaughter instruction is

“speculative.” This reasoning is puzzling. Trial counsel may well have believed defendant

had a reasonable amount of time to calm down, but trial counsel’s subjective feelings are

not dispositive as to what a reasonable jury could conclude. Further, as reflected by his

Ginther hearing testimony, trial counsel did not understand the relevant law—information

that was not available to the trial court at the time of the trial. Justice ZAHRA proceeds to

engage in speculation of his own, saying, “Had the trial court viewed the case similarly, it

likely would have concluded that there was insufficient evidence to support a voluntary

manslaughter instruction.” Post at 3. But this thought experiment stands at odds with what

10 we know the trial court thought about defendant’s state of mind. In granting the motion

for a new trial, the trial court said:

The Court finds as a fact, that, uhm, before the shooting, Ms. Yeager was emotionally excited.

She had heighted emotions.

She was stressed.

She was not calm when she shot the gun.

Not only is Justice ZAHRA’s argument speculative, it is directly contrary to the record.

Because a rational view of the evidence would support a voluntary manslaughter

instruction, that instruction should have been given. Mendoza, 468 Mich at 541. However,

an instruction was not requested and thus was not given. Because trial counsel’s

misunderstanding of the law led to the absence of a voluntary manslaughter instruction to

which defendant was entitled, we conclude that trial counsel’s performance fell below the

objective standard of reasonableness required by Strickland.

2. PREJUDICE

Having determined that trial counsel’s performance was constitutionally deficient,

we turn to the second prong of the ineffective-assistance analysis: whether defendant was

prejudiced by trial counsel’s deficient performance. The trial court concluded that

defendant had been prejudiced by trial counsel’s performance here and was thus entitled to

a new trial, but the Court of Appeals reversed this judgment and concluded that defendant

could not establish prejudice because, under Raper, 222 Mich App 475, any error in failing

to instruct the jury on voluntary manslaughter was harmless given that the jury rejected a

verdict of second-degree murder in favor of a first-degree murder conviction. We disagree

11 with the Court of Appeals’ conclusion on this point and further hold that defendant was

prejudiced by her trial counsel’s deficient representation.

We first conclude that the Court of Appeals erred by determining that its decision

in this case was mandated by the judgment in Raper. That case involved a defendant who

was convicted of first-degree murder, carjacking, and felony-firearm. Id. at 476. The

defendant confessed to shooting the victim and taking his automobile at the direction of a

third individual. Id. at 477. Alongside other arguments not relevant to the case before us,

the defendant argued that his trial counsel had been ineffective for failing to request jury

instructions on the lesser included offenses of both voluntary and involuntary

manslaughter. Id. at 483. The Raper Court disposed of this argument with little fanfare or

analysis, stating:

In this case, defendant was charged with first-degree murder. The jury was instructed on first-degree murder and second-degree murder, and found defendant guilty of first-degree murder. The jury’s rejection of second- degree murder in favor of first-degree murder reflected an unwillingness to convict on a lesser included offense such as manslaughter. People v Zak, 184 Mich App 1, 16; 457 NW2d 59 (1990). [Raper, 222 Mich App at 483.]

The Court of Appeals here concluded that the trial outcome of the instant case was

“identical to the situation in People v Raper[.]” Yeager (opinion of the Court), unpub op

at 9. Judge BECKERING agreed that Raper controlled the outcome in the instant case but

expressed concerns that the Court of Appeals’ “holding in Raper inappropriately precludes

relief to defendants for the failure to provide a voluntary manslaughter instruction in cases

in which the jury chooses first-degree murder instead of second-degree murder.” Yeager

(BECKERING, J., concurring), unpub op at 3. We conclude that the Court of Appeals’

12 reading of Raper misconstrues the existing caselaw regarding jury instructions on lesser

offenses.

This Court has consistently held that whether the absence of an instruction on a

lesser included offense is harmless depends on the facts and circumstances of the case at

bar. In People v Beach, 429 Mich 450, 491-492; 418 NW2d 861 (1988), which involved

whether a defendant who was convicted of conspiracy to commit armed robbery was

entitled to have the jury instructed on the lesser included offense of conspiracy to commit

larceny in a building, this Court set forth an explanation of the relevant law:

The existence of an intermediate charge that was rejected by the jury does not, of course, automatically result in an application of the [People v Ross, 73 Mich App 588; 252 NW2d 526 (1977)] analysis. For it to apply, the intermediate charge rejected by the jury would necessarily have to indicate a lack of likelihood that the jury would have adopted the lesser requested charge.

We note that our recent cases, which did not adopt or apply the harmless error analysis, are distinguishable. In People v Richardson, [409 Mich 126; 293 NW2d 332 (1980)], the Court declined to apply a harmless error analysis because the refusal to instruct was reasoned to foreclose the jury’s option to convict the defendant consistently with his own testimony, evidence, and theory. Beach differs because the defense theory was alibi, and no evidence to make a theory of larceny essential to the defense was provided, that is, there was no specific denial of the use of force. There was only an alibi defense and an inference built on a possibility that the jury might disbelieve part of Turner’s testimony.

In People v Rochowiak, [416 Mich 235; 330 NW2d 669 (1982)], the opinion of the Court offered qualifications regarding the finding of harmless error under such circumstances. Although we do not adopt the qualifications, we note that this case complies with the suggestions for finding harmless error.

As in Richardson, we do not hold that failure to give lesser offense instructions can never be harmless. The error may indeed be harmless in a case where it is clear that the jury was presented with a lesser offense or offenses consistent with

13 the defendant’s theory which was rejected, and made findings of fact, implicit in the verdict, which would preclude conviction of the charge upon which an instruction was refused, or where the differences between the various offenses concern factual elements, the existence of a weapon (armed or non-armed), the completion of the offense (attempt), the use of force (larceny or robbery) and not the state of mind of the defendant (murder, manslaughter, reckless use; assault with intent to murder, with intent to commit great bodily harm less than murder, felonious assault). [416 Mich 248-249. Emphasis added.] [2]

Under Beach, then, there is no support for the notion that the existence of a rejected

intermediate charge automatically renders harmless the failure to instruct on a lesser

offense. 3 Rather, a reviewing court must consider the specific circumstances of the case in

concert with the relevant offenses and ask whether the distinctions between the particular

charges suggest that a jury’s rejection of an intermediate charge demonstrates that the jury

would have been unlikely to select a lesser charge. The Rochowiak opinion cited in Beach

noted that some distinctions between charges are implicit in the verdict, such as those that

depend on factual findings, and in such cases, it can be definitively determined that the jury

would not have opted for a requested lesser offense. In Beach, for example, the jury’s

decision to convict the defendant of conspiracy to commit armed robbery, rather than

conspiracy to commit unarmed robbery, necessarily implied “a finding of a use of a weapon

2 Final bracketed citation in original and emphasis added by Beach. 3 We acknowledge that Beach involved requests for instruction on cognate lesser offenses that were rejected by the trial court. Although this procedural posture differs from the situation here, in which trial counsel failed to request instruction on a necessarily included lesser offense, we nevertheless find the harmless-error analysis set forth in Beach instructive. We do not, however, extend Beach’s harmless-error analysis to lesser-offense instructional errors made by the trial court rather than counsel, a question left unaddressed by Beach.

14 which indicates a greater use of force than would be the case in [the requested lesser offense

of] unarmed robbery.” Beach, 429 Mich at 492. However, such a conclusion is not implicit

when the charges are distinguished by a legal question like the defendant’s required state

of mind that has not previously been placed before the jury. The question in this case,

whether the jury’s rejection of a second-degree murder intermediate charge in favor of a

conviction of first-degree murder indicates a likelihood that the jury would not have opted

to convict defendant of the lesser charge of voluntary manslaughter, requires us to consider

the distinctions between these charges—distinctions centered, as explained further below,

on defendant’s state of mind.

The Raper Court did not cite Beach but instead relied on the Court of Appeals

decision in Zak, 184 Mich App 1, which echoed this case-specific approach in reaching its

conclusion that the defendant was not prejudiced by the trial court’s refusal to give an

instruction on manslaughter because “the failure to instruct on that requested lesser

included offense is harmless if the jury’s verdict reflects an unwillingness to have convicted

on the offense for which instructions were not given.” Id. at 16, citing Beach, 429 Mich at

491. We assume without deciding that Raper was, consistently with the rule of Beach,

decided on the basis of that panel’s review of the particular circumstances of that case and

the jury instructions requested by the defendant. Indeed, there is no indication in Raper

that the facts of the case implicated the legal distinctions between the murder charge of

which the defendant was convicted and the voluntary and involuntary manslaughter

instructions he sought, as the facts of this case do. The Court of Appeals here erred to the

extent that it concluded that Raper created a bright-line rule under which the absence of a

voluntary manslaughter instruction is automatically considered harmless if the jury was

15 instructed on both first- and second-degree murder and convicted the defendant of first-

degree murder. We clarify that Beach’s explanation of when instruction on a lesser offense

is warranted is still good law and that when considering whether a jury should have been

instructed on a lesser included offense, appellate courts must consider whether, in light of

the proposed defense theory and the factual elements of the relevant offense, “the

intermediate charge rejected by the jury would necessarily have to indicate a lack of

likelihood that the jury would have adopted the lesser requested charge.” Beach, 429 Mich

at 491. This is consistent with the Mendoza Court’s conclusion that manslaughter is a

necessarily included lesser offense of murder and that manslaughter instructions must be

given to the jury if supported by a rational view of the evidence. Mendoza, 468 Mich at

541.

In the instant case, the jury was instructed on first- and second-degree murder but

not on voluntary manslaughter. First- and second-degree murder both include the element

of malice aforethought. Id. at 534. As noted in Part III(B) of this opinion, the distinction

between murder and voluntary manslaughter is whether an intentional killing was provoked

in a manner that explains or justifies the killing so as to mitigate criminal responsibility.

Id. at 540. We agree with defendant that the voluntary manslaughter instruction would

have assisted the jury in considering defendant’s state of mind at the time of the shooting

in a manner not contemplated by instructions on first- and second-degree murder alone.

As already discussed in reference to trial counsel’s performance, defendant shot Brooks in

the culmination of a prolonged series of events in which defendant was physically and

verbally threatened, including when Brooks attempted to run defendant down with her own

vehicle. A jury could reasonably conclude that defendant’s actions were the result of

16 provocation to a state of emotional excitement, but the jury here was not made aware of

the lesser included offense of voluntary manslaughter. The jury instructions regarding

first- and second-degree murder and self-defense do not encompass the distinct state of

mind required for a voluntary manslaughter conviction. In the absence of instruction on

the particular state of mind required for voluntary manslaughter, we cannot definitively

conclude whether the jury would have determined that defendant’s actions were provoked

by inflamed passions or emotional excitement. Therefore, 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. Because

the instructions given here did not present to the jury the differing states of mind required

for murder and voluntary manslaughter, and because a reasonable jury could have found

that defendant acted in the state of mind required for voluntary manslaughter, we conclude

that this gap in information provided to the jury is “sufficient to undermine confidence in

the outcome” of defendant’s trial. Ackley, 497 Mich at 389 (quotation marks and citation

omitted).

We disagree with Chief Justice CLEMENT’s contention that although the jury was

not instructed on voluntary manslaughter there is no prejudice because a rejection of

adequate provocation is implicit in the finding of premeditation in first-degree murder.

Chief Justice CLEMENT asserts that premeditation and deliberation and malice

excused are “terms at opposite ends of the mens rea spectrum.” Post at 5. But this

characterization is flawed because there is no middle-ground mens rea in second-degree

murder that a jury rejects to find first-degree murder, and the element distinguishing

17 voluntary manslaughter from murder offenses is an element outside of the mens rea

spectrum.

A conviction of first-degree murder does not amount to rejection of any of the

elements of second-degree murder. To the contrary, a conviction of first-degree murder

requires a finding of all the elements of second-degree murder, plus an additional element.

First-degree murder is defined by statute. MCL 750.316. Murder may be elevated to the

first degree by certain attendant circumstances found in MCL 750.316(1)(b) or (1)(c) not

relevant here, or if it is “perpetrated by means of poison, lying in wait, or any other willful,

deliberate, and premeditated killing.” MCL 750.316(1)(a). Premeditation is the theory of

first-degree murder in this case. Therefore, the jury found each element of second-degree

murder in addition to premeditation. The mens rea of second-degree murder—malice—is

also present in first-degree murder and thus was not rejected by the jury. Voluntary

manslaughter likewise does not require an absence of malice; rather, the presence of

adequate provocation excuses malice. Because first- and second-degree murder are not

distinguished by mens rea, the jury’s finding of malice does not speak to what the jury

might have done were it instructed on adequate provocation.

Chief Justice CLEMENT also argues that premeditation and adequate provocation are

mutually exclusive, reasoning that a defendant cannot “ ‘think about beforehand’ and

‘measure and evaluate the major facets of a choice or problem,’ . . . while nonetheless

being ‘ “ ‘disturbed or obscured by passion,’ ” ’ rendering the defendant ‘ “ ‘liable to act

rashly or without due deliberation or reflection, and from passion and lack of reason rather

than from judgment[.]’ ” ’ ” Post at 6 (citations omitted). This argument is logically

distinguishable from that of a spectrum of mens rea. If premeditation and adequate

18 provocation were mutually exclusive, then a finding of premeditation would require a

finding of an absence of adequate provocation. But even that would not mean that there is

no prejudice here. Put simply, the jury’s finding of premeditation does not necessarily

mean that it would have found an absence of adequate provocation had it been properly

instructed.

It will always be the case that conviction of a greater offense requires rejection of

lesser included offenses. If conviction of a greater offense alone were sufficient to render

an instructional error harmless, failure to instruct on a lesser included offense would never

result in error requiring reversal. But that is not the case. See People v Phillips, 385 Mich

30, 36; 187 NW2d 211 (1971) (“If evidence has been presented which would support a

conviction of a lesser offense, refusal to give the requested instruction is reversible

error . . . .”). The reason a failure to instruct on a lesser included offense results in error

requiring reversal is because it is impossible to know what a jury would do if it had been

properly apprised of the lesser included offense.

Beach presented a novel circumstance in which the jury had the opportunity to

convict on either conspiracy to commit armed robbery or conspiracy to commit unarmed

robbery, but not on conspiracy to commit larceny. The jury’s rejection of the intermediate

offense was what rendered the error harmless, answering the question of what the jury

might have done with a choice. As discussed, the jury here was never instructed on the

possible legal import of defendant’s mental state in light of Brooks’s physical and verbal

assaults and attempts to run defendant down. The jury’s rejection of second-degree murder

therefore does not answer the question of what the jury might have done had it been

instructed on voluntary manslaughter.

19 Because defendant has established both prongs of the ineffective-assistance-of-

counsel analysis, we conclude that defendant is entitled to relief in the form of a new trial.

IV. CONCLUSION

For the foregoing reasons, we conclude that trial counsel was constitutionally

ineffective in failing to request a jury instruction on voluntary manslaughter and that

defendant is accordingly entitled to a new trial. We reverse the judgment of the Court of

Appeals and remand the case to the Wayne Circuit Court for further proceedings consistent

with this opinion.

Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden

20 STATE OF MICHIGAN

CLEMENT, C. J. (dissenting). I respectfully dissent. Assuming without deciding that the majority is correct that

defense counsel performed deficiently in failing to request a voluntary manslaughter

instruction at defendant’s murder trial, I disagree that there is a reasonable probability that

this error affected the outcome of the trial. Accordingly, I would have affirmed the

judgment of the Court of Appeals.

To succeed on a claim of ineffective assistance of counsel, defendant must prove

both that defense counsel’s performance fell below an objective standard of reasonableness

and that a “reasonable probability” exists that, but for this deficient performance, “the result

of the proceeding would have been different.” People v Carbin, 463 Mich 590, 600; 623

NW2d 884 (2001). As applied to the facts of this case, the latter inquiry asks whether there

is a reasonable probability that the result of the trial would have been different had defense

counsel requested a voluntary manslaughter jury instruction.

In this case, defendant was charged with first-degree premeditated murder and the

jury was instructed on both first- and second-degree murder. The jury found defendant guilty as charged—in other words, it was unpersuaded that defendant was only guilty of

the lesser included offense of second-degree murder. Central to an analysis whether

defendant was prejudiced by the failure to instruct on voluntary manslaughter is whether

the jury’s decision to reject the intermediate offense of second-degree murder necessarily

demonstrates that the jury also would have been unwilling to convict defendant of the lesser

offense of voluntary manslaughter.

This Court previously set forth this standard to answer the prejudice question in

People v Beach, 429 Mich 450, 452; 418 NW2d 861 (1988). Just as we do here, this Court

in Beach considered when the erroneous failure to instruct the jury on a lesser included

offense results in prejudice to a defendant. There, the jury convicted the defendant of

conspiracy to commit armed robbery and rejected the lesser included offense of conspiracy

to commit unarmed robbery. Id. at 481. On appeal, the defendant successfully argued that

the trial court erred by rejecting his request to also instruct the jury regarding conspiracy

to commit larceny in a building, a separate, lesser offense that (unlike either form of

robbery) does not require the use or threat of force. Id. at 485-490. However, this Court

ultimately determined that the error did not entitle the defendant to relief, reasoning that

[i]f the jury had doubts about [the defendant’s] guilt of the charged offense or if it concluded that the defendant was not planning to use force, it could have and undoubtedly would have, found her guilty of the instructed lesser included offense of conspiracy to commit unarmed robbery, which would represent a lesser use of force. Because it did not do so, we can conclude that it had no reasonable doubt as to the defendant’s guilt of conspiracy to commit armed robbery. We believe that the jury’s decision is a reasonable 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.]

2 In other words, the jury’s rejection of the intermediate offense of conspiracy to commit

unarmed robbery demonstrated the jury’s belief that defendant not only conspired to use

force or the threat of force in the theft (i.e., conspired to commit a robbery), but conspired

to do so while armed. Because the jury chose to convict the defendant of an offense that

requires a greater use of force than the offense it rejected, it is highly unlikely that the jury

would have chosen to convict on a lesser offense that lacks force. Id. at 492. Accordingly,

the defendant suffered no prejudice from the trial court’s failure to instruct the jury

regarding the larceny offense. Id.

While holding that the defendant was not prejudiced in Beach, this Court

emphasized that a jury’s rejection of an intermediate charge does not automatically render

the erroneous failure to instruct on a lesser offense prejudicial. Id. at 491. Instead, for such

error to be prejudicial, “the intermediate charge rejected by the jury would necessarily have

to indicate a lack of likelihood that the jury would have adopted the lesser requested

charge.” Id.

Applying that standard to the case at hand, this Court is asked to determine whether

the second-degree murder charge rejected by the jury necessarily indicates a lack of

likelihood that the jury would have adopted the voluntary manslaughter charge. To answer

this question, it is necessary to first examine the three offenses at issue: first-degree

premediated murder; second-degree murder; and voluntary manslaughter. “The elements

of first-degree murder are (1) the intentional killing of a human (2) with premeditation and

deliberation.” People v Bass, 317 Mich App 241, 265-266; 893 NW2d 140 (2016)

(quotation marks and citation omitted). See also MCL 750.316(1)(a) (defining first-degree

murder as “any willful, deliberate, and premeditated killing”). “[T]o premeditate is to think

3 about beforehand; to deliberate is to measure and evaluate the major facets of a choice or

problem.” People v Oros, 502 Mich 229, 240; 917 NW2d 559 (2018) (quotation marks

and citation omitted). The existence of premeditation and deliberation can be established

“by an interval of time between the initial homicidal thought and ultimate action, which

would allow a reasonable person time to subject the nature of his or her action to a ‘second

look.’ ” Id. at 242 (citation omitted).

Next, second-degree murder does not require proof of premeditation and

deliberation; it is the catch-all for all other types of murder. See MCL 750.317. Second-

degree murder is demonstrated through proof of: “(1) a death, (2) caused by an act of the

defendant, (3) with malice, and (4) without justification or excuse.” People v Goecke, 457

Mich 442, 463-464; 579 NW2d 868 (1998). Malice can be established through proof of

(1) the intent to kill, (2) the intent to cause great bodily harm, or (3) the intent to do an act

in wanton and willful disregard of the likelihood that the natural tendency of such behavior

is to cause death or great bodily harm. Id. at 464. See also People v Dykhouse, 418 Mich

488, 495; 345 NW2d 150 (1984) (phrasing the final form of malice as “the intent to create

a very high risk of death or great bodily harm with the knowledge that death or great bodily

harm is the probable result”). Finally, voluntary manslaughter shares the same elements

as second-degree murder, except that malice “is negated by the presence of provocation

and heat of passion.” People v Mendoza, 468 Mich 527, 540; 664 NW2d 685 (2003).

Again, pursuant to Beach, the failure to instruct the jury regarding voluntary

manslaughter did not prejudice defendant so long as the jury’s decision to reject the second-

degree murder charge in favor of finding defendant guilty of premeditated, first-degree

murder necessarily indicates a lack of likelihood that the jury would have instead found

4 defendant guilty of voluntary manslaughter. See Beach, 429 Mich at 491. Incorporating

the legal standards at issue, defendant was not prejudiced if the jury’s finding that

defendant not only killed Brooks with malice aforethought (second-degree murder) but did

so with premeditation and deliberation (first-degree, premeditated murder) demonstrates

an unlikelihood that the jury would have found that defendant committed voluntary

manslaughter (second-degree murder with malice excused).

I submit that the jury’s verdict demonstrates such an unlikelihood. 1 In describing

the elements of premeditation and deliberation (first-degree murder) and malice excused

(voluntary manslaughter), Michigan caselaw consistently places the terms at opposite ends

of the mens rea spectrum. See, e.g., People v Younger, 380 Mich 678, 682; 158 NW2d

493 (1968) (“[T]he nature and quality of the act of homicide first must be examined to

determine whether it is that of an ordinary man responding to the heat of passion or that of

an ordinary man functioning with deliberation.”); People v Townes, 391 Mich 578, 590;

218 NW2d 136 (1974) (“A defendant properly convicted of voluntary manslaughter is a

person who has acted out of a temporary excitement induced by an adequate provocation

1 The Court of Appeals has previously reached the same conclusion under analogous facts in People v Zak, 184 Mich App 1; 457 NW2d 59 (1990) (although we cite this case as People v Zak, the facts and analysis relevant here were at issue in the companion case, People v Anderson, which was decided in the same opinion), and People v Raper, 222 Mich App 475; 563 NW2d 709 (1997). In both Zak and Raper, the juries were instructed on first- and second-degree murder, and the juries convicted the defendants of first-degree murder. Zak, 184 Mich App at 16; Raper, 222 Mich App at 483-484. On appeal, the defendants argued that the juries also should have been instructed regarding manslaughter, but the Court succinctly concluded in both cases that any error in failing to so instruct the juries was harmless because the juries’ rejection of second-degree murder reflected an unwillingness to convict on manslaughter charges. Zak, 184 Mich App at 16; Raper, 222 Mich App at 483-484. However, neither Zak nor Raper details how the Court reached this conclusion, somewhat limiting their usefulness here.

5 and not from deliberation and reflection that marks the crime of murder.”). Premeditation

and deliberation is inherently incompatible with malice excused. How can a defendant

“think about beforehand” and “measure and evaluate the major facets of a choice or

problem,” Oros, 502 Mich at 240-241 (quotation marks and citation omitted), while

nonetheless being “ ‘disturbed or obscured by passion,’ ” rendering the defendant “ ‘liable

to act rashly or without due deliberation or reflection, and from passion and lack of reason

rather than from judgment,’ ” People v Droste, 160 Mich 66, 79; 125 NW 87 (1910)? Like

the Beach jury’s decision rejecting an intermediate offense with a lesser amount of force

demonstrating that the jury would not have chosen to convict on an offense completely

lacking force, the jury’s decision here to reject a lesser offense with malice aforethought

demonstrates that the jury would not have chosen to convict defendant of a killing resulting

from malice that has been excused by the heat of passion. If the jury had reasonable doubts

regarding whether defendant deliberated and reflected before murdering Brooks, it would

have instead chosen to convict defendant of second-degree murder, which requires malice

but no premeditation.

Further, the jury instructions given in this case make clear that the jury’s decision

to convict defendant of first-degree murder was an express and knowing repudiation of a

finding that defendant acted rashly or in the heat of passion. In discussing the element of

premeditation and deliberation, the jury instructions provided:

Fourth, that the killing was deliberate, which means that the defendant considered the pros and cons of the killing, and thought about, and chose her actions before she did it.

There must have been real and substantial reflection for long enough to give a reasonable person a chance to think twice about the intent to kill.

6 The law does not say how much time is needed.

It is for you to decide if enough time passed, under the circumstances of this case.

The killing cannot be the result of a sudden impulse, without thought or reflection.

Fifth, that the crime was not justified, excused, or done under circumstances that reduce it to a lesser crime.

Again, in choosing to convict defendant of first-degree premeditated murder, the jury

explicitly rejected a finding that the killing was the result of a sudden impulse. Because

the jury chose the escalated mens rea of first-degree murder requiring premeditation and

rejected an intermediate mens rea of second-degree murder requiring only malice, the

jury’s verdict necessarily indicates a lack of likelihood that the jury would have instead

chosen the mens rea of voluntary manslaughter of excused malice.

In coming to the opposite conclusion, the majority differentiates between cases in

which the jury’s verdict depended on factual findings and those in which the jury’s verdict

depended on conclusions of law. Specifically, the majority reasons that in cases in which

the jury’s verdict depended on factual findings, “it can be definitively determined that the

jury would not have opted for a requested lesser offense,” but concludes that “such a

conclusion is not implicit when the charges are distinguished by a legal question like the

defendant’s required state of mind . . . .” Ante at 14-15. But the majority fails to explain

why it cannot be definitively determined that a jury would not have opted for a requested

lesser offense when a legal conclusion like mens rea is at issue. 2 Depending on the offenses

2 In its discussion of the rule of law at issue, the majority quotes Beach’s discussion of People v Rochowiak, 416 Mich 235, 248-249; 330 NW2d 669 (1982) (opinion by LEVIN, J.), a nonbinding opinion (Justice KAVANAGH concurred with Justice LEVIN’s lead opinion, while Justice WILLIAMS concurred in the result only. Chief Justice FITZGERALD concurred

7 charged, a jury’s verdict rejecting an intermediate charge in favor of a greater charge can

reveal the jury’s legal conclusions—just as it reveals the jury’s factual findings. And just

as the reviewing court can determine whether the jury’s factual finding is contradictory to

the factual finding required by the erroneously excluded instruction, the reviewing court

can determine whether the jury’s legal conclusion is contradictory to the legal conclusion

required by the erroneously excluded instruction. One could argue that the jury could have

a more limited understanding of the nuances attendant to legal conclusions, making its

decision in that regard less identifiable, but—at least in this case—that is not true. The

jury here was specifically instructed that a finding of premeditation and deliberation meant

that the killing “cannot be the result of a sudden impulse, without thought or reflection”—

which is what would have been required for the jury to find defendant guilty of voluntary

manslaughter. For example, the majority reasons that “[a] jury could reasonably conclude

that defendant’s actions were the result of provocation to a state of emotional excitement,”

ante at 16-17, but this jury—which found that “the defendant considered the pros and cons

of the killing, and thought about, and chose her actions before she did it,” “th[ought] twice

about the intent to kill,” did not act on “a sudden impulse, without thought or reflection,”

with Justice RYAN’s dissent, and two justices did not participate in the decision). Justice Levin’s lead opinion in Rochowiak listed examples of cases in which the erroneous failure to give a lesser-offense instruction could be harmless, including cases in which “the differences between the various offenses concern factual elements . . . .” Id. at 248. He then differentiated those cases from those that concern “the state of mind of the defendant . . . .” Id. at 249. But in Beach, when this Court specifically quoted this portion of Rochowiak, it expressly chose not to adopt these examples. Beach, 429 Mich at 491. Accordingly, to the extent the majority relies on this statement from Rochowiak, it is not binding.

8 and that her actions were not “justified” or “excused”—would not have reached that

conclusion.

In sum, I believe that the jury’s rejection of second-degree murder and choice to

convict defendant of first-degree premeditated murder necessarily indicates that the jury

would not have chosen to convict defendant of voluntary manslaughter. Accordingly,

assuming without deciding that the majority is correct that defense counsel rendered

deficient performance in failing to request a voluntary manslaughter jury instruction, I

would have found that defendant is not entitled to relief based on this error because she

cannot prove that the error created a reasonable probability of a different result at trial.

Instead, I would have affirmed the disposition of the Court of Appeals.

Elizabeth T. Clement Brian K. Zahra David F. Viviano

9 STATE OF MICHIGAN

ZAHRA, J. (dissenting). With one exception, I join in full Chief Justice CLEMENT’s dissenting opinion that

would affirm the jury’s verdict finding defendant, Menayetta Yeager, guilty of first-degree

premeditated murder. I would not, however, “[a]ssum[e] without deciding that the majority

is correct that defense counsel performed deficiently in failing to request a voluntary

manslaughter instruction at defendant’s murder trial.” I need not do so because “Michigan

constitutional law has long held that ‘[e]rrors which cannot possibly create any prejudice

to the rights of one charged with crime ought not to, and cannot, operate as a ground for a

new trial.’ ” 1 As Justice COOLEY explained, “[i]t is possible to be so nice in such matters

as to render a legal conviction of crime practically impossible; and while the court should

see to it on the one hand that no wrong shall be done the defendant, so on the other they

are not to set aside a conviction obtained on a fair trial . . . .” 2 “In other words, ‘[w]e

1 People v Pickens, 446 Mich 298, 313; 521 NW2d 797 (1994) (alteration in original), quoting People v Wade, 101 Mich 89, 91; 59 NW 438 (1894). 2 Strang v People, 24 Mich 1, 10 (1871). require a fair trial, not a perfect trial.’ ” 3 “Hence, under Michigan law, counsel’s

ineffective assistance must be found to have been prejudicial in order to reverse an

otherwise valid conviction.” 4

In this case, the majority opinion improperly relies on an ineffective-assistance

claim to expand what may qualify as the heat of passion necessary for voluntary

manslaughter. 5 It is entirely speculative to hold that defense counsel performed deficiently

by failing to request a jury instruction that the trial court may have declined to issue.

At the Ginther 6 hearing on remand from this Court, defendant’s trial counsel was

questioned as follows by defendant’s appellate counsel:

Q. In her testimony, did Miss Yeager describe having a reasonable time to calm down? After the assault, and the ongoing threats?

A. Yes. Well, the rudimentary answer to that question, is, yes, and I’m gonna explain to you, how.

When she gets to the gas station, she’s on the phone.

There is at least about six, seven, eight minutes before the second contact is made.

That is where she’s made contact with the other witness, he testified, at trial, which is the Samaritan.

3 Pickens, 446 Mich at 314 (alteration in original), quoting People v Beach, 429 Mich 450, 491; 418 NW2d 861 (1988). 4 Pickens, 446 Mich at 314. 5 I decline the majority’s invitation to weigh in on whether fear or terror may qualify as the heat of passion necessary to support a voluntary manslaughter instruction because doing so would build a strawman argument relating to counsel’s performance that might be erroneously relied upon in future cases. 6 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

2 Where she was able to talk to him.

And, also, too, she was in another whole vehicle, and she was now with another person, and she was in a situation of relative safety.

That truck didn’t have to stay there.

That man didn’t have to stay there.

She could have ran [sic] into the gas station.

Uh, so, the, uh, she was in another person’s vehicle.

She could have said, hey, drive to the Police station.

Drive off.

Okay?

That was the situation.

She didn’t—and then he is, too.

She didn’t have to get out of the truck.

Had the trial court viewed the case similarly, it likely would have concluded that

there was insufficient evidence to support a voluntary manslaughter instruction. See

People v Pouncey, 7 (concluding that a voluntary manslaughter instruction was not

supported when the defendant “went into the house, a safe harbor” and was not “compelled

to go back outside by anyone” before killing the victim); People v Mendoza, 8 (explaining

that a voluntary manslaughter instruction is unsupported when “a reasonable time has

elapsed for the [defendant’s] blood to cool and reason to resume its habitual control”)

7 People v Pouncey, 437 Mich 382, 392; 471 NW2d 346 (1991). 8 People v Mendoza, 468 Mich 527, 535; 664 NW2d 685 (2003).

3 (quotation marks and citation omitted). Furthermore, defense counsel should not be

second-guessed on the strategy choice to not seek a manslaughter instruction as the jury

would likely be confused because defendant was also pursuing an arguably incompatible

self-defense claim. Given the strength of the Chief Justice’s dissenting opinion in regard

to prejudice, I am not inclined to assume that a request for a jury instruction on voluntary

manslaughter would have or should have been granted in this case.

Brian K. Zahra David F. Viviano