People v. Perry

554 N.W.2d 362, 218 Mich. App. 520

Opinions

J. M. Batzer, J.

On February 21, 1991, defendant was convicted by a jury in the Saginaw Circuit Court, Judge Leopold P. Borrello presiding, of three counts of first-degree murder, MCL 750.316; MSA 28.548 (with the underlying felony being arson, MCL 750.72; MSA 28.267), and three counts of attempted murder, MCL 750.91; MSA 28.286. On June 27, 1991, the circuit court ruled that defendant would be sentenced as an adult. Defendant received life sentences for the murder convictions and sentences of ten to twenty years for the attempted murder convictions. Defendant appeals as of right, and we now affirm.

In June of 1990, thirteen-year-old Jacinto (Jason) Ricco lived in Saginaw, Michigan, with his mother and two sisters, Yolanda and Miriam Amanda Ricco. For a number of years, tense relations had existed between Jason Ricco and the Rollie family, who lived a few houses away from the Ricco’s on a different street in the same neighborhood, though Jason’s sisters socialized, played, and were friends with the Rollie children. In August of 1989, Jason threatened to kill some members of the Rollie household. On the same occasion, Jason Ricco stood outside the Rollie house and yelled threats involving a firebomb.

During the evening of June 13, 1990, adolescent friends and acquaintances of Jason Ricco, including defendant, gathered at the Ricco home and engaged in various recreational activities, including underage drinking. These young people were left overnight, unsupervised by any adult. Between 4:00 A.M. and 5:00 A.M. on June 14, defendant and Jason Ricco left the house together, after having stated they were going out to “cause trouble.” When they ran back into the house a few minutes later, they stated that they had set the Rollie house on fire by throwing a firebomb, which Jason had lit and defendant had held and thrown. Jason Ricco explained that they had thrown the firebomb because of “a feud.” Defendant and Jason argued about whether the matches dropped by Jason near the Rollie house should be retrieved and blamed each other for setting the fire. There was testimony that defendant had said he threw the firebomb because Jason told him to throw it and that Jason said he did not think the defendant would actually do it.

The Rollie house was ablaze. Yolanda Ricco had seen the blaze from her bedroom window and heard the screams of her friends, the Rollie children. Yolanda Ricco was very upset about the fire, but “someone,” possibly the defendant, prevented her from calling the fire department or leaving the house. After a friend refused to dispose of a gasoline can for them, defendant and Ricco talked in the bathroom about disposing of evidence, and the toilet was flushed several times. Traces of the type of fuel that had started the Rollie house fire were later found in the toilet.

Both Rollie parents and one child escaped from their burning home, but the other three Rollie children were unable to make their way out. They perished in the fire because of smoke inhalation. The house burned to the ground.

Jason Ricco testified that at some time after 4:00 A.M. on June 14, 1990, he and defendant discussed “causing some trouble or something.” According to Ricco, the two youths went together to the Ricco garage and retrieved two Molotov cocktail firebombs, with the intention of throwing them somewhere, such as into a yard. Defendant carried both bombs toward the Rollie home and stated that he wanted to light them because of a feud between himself and a neighbor of the Rollies. Jason Ricco was carrying matches, and defendant had a towel so that he “wouldn’t get his fingerprints on the bottles.” When they reached the Rollie home, defendant set the firebombs down. Jason Ricco lit one of them, defendant said he was going to throw it into the Rollie home, and Ricco told him not to. Ricco turned, ran toward his home, and heard two “whooshes” when the Molotov cocktails ignited, but did not see the bombs being thrown into the Rollie house by the defendant.

Inspector Joseph Dziuban, an arson investigator for the Saginaw Fire Department working with the Saginaw Police, opined on the basis of bum patterns, traces of accelerants, and the location of glass fragments from the bottles found at the scene that two firebombs had been thrown through two different living room windows, causing the conflagration.

Jason Ricco was tried in juvenile court and was acquitted of murder, but was found guilty of arson.

I

Defendant first argues that the trial court erred in failing to give the proper instruction concerning the testimony of an undisputed accomplice. Defendant contends that the jury was thereby grossly misled with respect to an issue crucial to its deliberations. Defendant contends that the issue of defendant’s guilt was closely drawn, because defendant and Jason Ricco were the only two people who knew what happened with the two firebombs immediately before they were thrown into the Rollie house. The jury had to decide whether the defendant’s presumption of innocence had been overcome by the testimony of the accomplice. Defendant, however, failed to raise or preserve at trial this jury instruction issue concerning the evaluation of accomplice testimony.

The determination whether a jury instruction is accurate and applicable in view of all the factors present in a particular case lies within the sound discretion of the trial court. Williams v Coleman, 194 Mich App 606, 623; 488 NW2d 464 (1992). This Court reads jury instructions in their entirety to determine whether error requiring reversal of the conviction occurred. Instructions that are somewhat imperfect are acceptable, as long as they fairly present to the jury the issues to be tried and sufficiently protect the rights of the defendant. People v Gaydosh, 203 Mich App 235, 237; 512 NW2d 65 (1994).

In our opinion, the trial court did not abuse its discretion in failing to instruct the jury pursuant to CJI2d 5.4 that Jason Ricco was an undisputed accomplice.

Rather, the trial court pursuant to CJI2d 5.5 gave the jury the following instructions concerning a disputed accomplice:

Before you may consider what Jacinto [Jason] Ricco said in court, you must decide whether he took part in the crime the defendant is charged with committing. Jacinto Ricco has not admitted taking part in the crime, but there is evidence to lead you to think that he did. A person who knowingly and willingly accepts or cooperates with someone else in committing the crime is called an accomplice.

When you think about Jacinto Ricco’s testimony, first decide if he was an accomplice. If, after thinking about all the evidence, you decide that he did not take part in this crime, judge his testimony as you judge that of any other witness. But if you decide that Jacinto Ricco was an accomplice, then you must consider his testimony in the following way:

The court then gave the standard instruction concerning accomplice testimony, CJI2d 5.6, with which the defendant does not take issue. The prosecutor later placed on the record an unsuccessful objection to these instructions, arguing that because Ricco had not admitted participating in the crime with which the defendant was charged, an instruction to use extra caution in considering his testimony was inappropriate. Defendant now claims that giving the jury the option to find that Ricco was not an accomplice, and thus to disregard the cautionary instruction regarding accomplice testimony, was an error requiring reversal of the convictions.

In People v Jensen, 162 Mich App 171; 412 NW2d 681 (1987), the defendant purchased an automobile from David Bart. In applying to the Secretary of State for a transfer of the automobile’s title, the defendant presented a title certificate that falsely stated that no liens with respect to the vehicle were outstanding. Before the defendant’s trial for making a false application for an automobile title, Bart was charged with forging a title and knowingly possessing a forged title. Bart was offered an opportunity to plead to the misdemeanor of possession of an altered title in exchange for his testimony at the defendant’s trial. At trial, Bart testified that the false statement was not on the title certificate when he transferred it to the defendant. The defendant testified to the contrary that when he received the title from Bart, it had indicated that the lien had been discharged. In Jensen, as in the instant case, the court gave the standard criminal jury instructions concerning the testimony of a disputed accomplice. The defendant made no objection. This Court reversed the defendant’s conviction, reasoning as follows:

The trial court erred in instructing the jurors that they were to make a factual determination of whether Bart was an accomplice. Bart admitted on direct examination that he was originally charged with forging a certificate of title and knowingly possessing a forged title. He also testified that he pled guilty to possession of a false or altered title in exchange for his testimony against defendant, but had not yet been sentenced. Through Bart’s own admissions and his guilty plea to a reduced charge arising from the incident, his status as an accomplice was beyond dispute.. . . Proper instruction was especially necessary in the instant case, since Bart testified that the title was falsified only after he gave it to the defendant. Bart’s guilty plea to possession of a false title, in addition to undermining his credibility, directly contradicted his trial testimony. [Jensen, supra, p 187.]

In the instant case, Jason Ricco never admitted participating in or encouraging the murders and attempted murders of the Rollies. It appears that at his own trial, Ricco was convicted of arson only. Because there was a factual dispute concerning whether Ricco took part in the crimes that defendant was charged with committing, i.e., murder and attempted murder, the trial court did not abuse its discretion in instructing the jury as it did.

Defendant’s failure to preserve this issue at trial bars a finding by this Court of error requiring reversal of the conviction. In Jensen, the relief sought by the defendant was not barred by his failure to object to the trial court’s jury instructions, because “the factual issues were ‘closely drawn.’ ” Id., pp 188-189. Where “the issue is closely drawn,” reversal of a conviction may be required where a trial court fails to give a cautionary instruction concerning accomplice testimony, even in the absence of a request to charge. People v McCoy, 392 Mich 231, 240; 220 NW2d 456 (1974). The issue of a defendant’s guilt “is ‘closely drawn’ if the trial is essentially a credibility contest between the defendant and the accomplice.” Jensen, supra, p 188.

No authority cited by defendant has found the existence of a credibility contest where, as here, the defendant relied exclusively on the presumption of innocence to dispute an accomplice’s testimony. McCoy, supra, p 238; Jensen, supra, pp 188-189; People v Smith, 158 Mich App 220, 223-224; 405 NW2d 156 (1987); People v Fredericks, 125 Mich App 114, 116; 335 NW2d 919 (1983); People v Jackson, 97 Mich App 660, 662-666; 296 NW2d 135 (1980). Even accepting the premise that defendant’s reliance on his presumption of innocence was inconsistent with Jason Ricco’s testimony, it does not follow that defendant’s trial was essentially no more than a credi bility contest. Trial witnesses other than Jason Ricco clearly testified that defendant was outside the Ricco home when the Rollie fire was set and that defendant admitted throwing at least one firebomb into the Rollie house. In fact, Ricco’s testimony added little to the evidence that defendant committed murder and attempted murder. Because a reasonable factfinder could have concluded, even absent Ricco’s testimony, that defendant’s participation in the firebombing of the Rollie home had been proved beyond a reasonable doubt, defendant’s trial was not a credibility contest between Ricco and defendant.

Because the factual issue in the instant case was not closely drawn within the meaning of Jensen, supra, defendant has not established that manifest injustice would result from this Court’s failure to review this unpreserved issue. Failure to object to jury instructions in the trial court waives error for purposes of appeal unless relief is necessary to avoid manifest injustice. MCL 768.29; MSA 28.1052; People v Van Dorsten, 441 Mich 540, 544-545; 494 NW2d 737 (1993). A miscarriage of justice occurs when an erroneous or omitted instruction pertains to a basic and controlling issue in the case. People v Chatfield, 170 Mich App 831, 835; 428 NW2d 788 (1988). Defendant has demonstrated no entitlement to review of this unpreserved issue.

n

Defendant next argues that jurors could have believed that defendant participated in the suppression of evidence following the Rollie murders and attempted murders without his having taken part in those crimes. If properly instructed, defendant con tends, the jury could have convicted defendant as an accessory after the fact only. Defendant asserts that because the trial court did not give a requested instruction regarding a cognate lesser offense that is supported by the trial record, i.e., accessory after the fact (which is a common-law offense that may be prosecuted under MCL 750.505; MSA 28.773), reversal is required. Defendant cites People v Usher, 196 Mich App 228, 232; 492 NW2d 786 (1992), for the proposition that accessory after the fact is a cognate lesser offense of murder.

After the jury was instructed, defense counsel noted for the record that he had requested an instruction concerning accessory after the fact, claiming it to be a cognate lesser offense of murder. Defense counsel argued:

[In light of the evidence, the jury could] have a reasonable doubt about whether or not the defendant participated in the burning of the house, but could find that he took certain actions back at the Ricco house by moving the gas can and participating in the disposal of flammable liquid in the toilet, knowing that the fire had been set, and therefore, be an accessory after the fact as a lesser offense.

The trial court and defense counsel engaged in the following colloquy concerning why the requested instruction had not been given:

The Court: One, I do not believe that it is a cognate lesser included offense to the charge. But further, in People v Karst, 118 Mich App 34 [324 NW2d 526 (1982)] at page 41, an indication is that — that in order to instruct and to give accessory after the fact as a lesser charge, it says such must be charged in a separate count, and was not in this case. And cites People Bargy, 71 Mich App 609 [298 NW2d 626 (1976)].

The court believes that since the prosecutor did not charge him with being an accessory after the fact, the Court has given the instructions as an aider and abettor. And if the jury finds him guilty of that, there is — obviously, they didn’t find him to be an accessory after the fact. And I don’t believe it’s a lesser included offense, and the Court did refuse to give the charge.

Mr. Thomas: It’s my understanding, then, your Honor, that the Court feels that the accessory after the fact requested instruction is not a proper cognate offense, number one; number two, it is not a lesser included offense?

The Court: Right.

The trial court was correct when it held that accessory after the fact is not a cognate lesser offense of murder, Usher notwithstanding.¹

In its comprehensive discussion of lesser offenses in People v Hendricks, 446 Mich 435, 447; 521 NW2d 546 (1994), our Supreme Court states:

To preserve the jury’s proper function, the bounds of possible offenses the jury may consider in a particular case must be described. In the case of cognate lesser offenses, the method of management adopted by this Court is to limit instruction to those offenses that bear a sufficient relation ship to the principal charge in that they are in the same class or category, protect the same societal interests as that offense, and are supported by the evidence adduced at trial. Thus, not all lesser offenses that are not necessarily included are potential candidates for consideration as cognate crimes. [Emphasis added.]

As tested by Hendricks, we hold that accessory after the fact is not a cognate lesser offense of murder, because the societal interests that axe protected by making murder and accessory after the fact criminal offenses are entirely different.

The societal interests in making murder a crime and subjecting a murderer to drastic punishment are to deter the killing of human beings by other human beings, with all the great loss and upheaval that results, and to punish severely those who murder, in an effort to render justice. Murder not only unnaturally takes the life of a human being, but also concomitantly engenders great emotional pain and leaves a great emotional burden and sense of loss carried by the family and loved ones of the victim. Additionally, very often there is a loss to society of the future productive potential of the victim, both economically and also as a contributor to family and community in all of the many and immeasurable ways that people enrich and contribute to the lives and welfare of other people. Moreover, the law makes murder the very gravest offense, because, without such laws, experience teaches that the act of murder provokes retaliation from the victim’s immediate family, extended kinship groups, and friends. Retaliation in turn provokes further retaliation and further alignment of society’s members. By drastically punishing murder, the law dispenses society’s justice and short-circuits private vengeance, feuds, and warfare.

The purpose of making accessory after the fact a crime is entirely different. Those who are only accessories after the fact by definition did not participate in the killing or other principal offense and did nothing in furtherance of it before or while it occurred. An accessory after the fact is a person who with knowledge of another’s guilt gives assistance to that felon in an effort to hinder the felon’s detection, arrest, trial, or punishment. People v Lucas, 402 Mich 302; 262 NW2d 662 (1978); People v Williams, 117 Mich App 505; 324 NW2d 70 (1982). An accessory after the fact aids a perpetrator in the concealment of evidence of the crime or in the flight or concealment of the perpetrator. The purpose of making accessory after the fact a criminal offense is not primarily to deter the commission of the principal offense. Rather, the gravamen of accessory after the fact is that it is an interference with society’s effort to bring a perpetrator to justice. By punishing those who are accessories after the fact, the law serves to deter others from hindering the justice process after the fact of the principal crime. Thus, the purpose of making accessory after the fact a crime is to assist society in apprehending those who have committed crimes and to assist in preserving evidence of crimes so that perpetrators of crimes can be brought to society’s justice. Such a purpose, while very important and worthwhile to the welfare of society, is not at all the same deter rence-punishment purpose served by making murder a crime.²

We believe that any language in Usher that accessory after the fact is a cognate lesser offense of minder is dicta. In Usher, the defendant sought an instruction with respect to accessory after the fact before the trial court ruled on his motion for a directed verdict with respect to murder. Then, after having prevailed with respect to his motion for a directed verdict, and in the course of the trial on the charge of being an accessory after the fact to murder, the defendant pleaded guilty to being an accessory after the fact. Thus, Usher represents nothing more than an application of the well-established doctrine that a properly tendered and accepted unconditional guilty plea operates as a waiver of irregularities in the prior proceedings, absent a jurisdictional or similar defect. See People v Crall, 444 Mich 463; 510 NW2d 182 (1993); People v New, 427 Mich 482; 398 NW2d 358 (1986); People v Johnson, 396 Mich 424; 240 NW2d 729 (1976). Were accessory after the fact to be considered a cognate lesser offense of murder, the prosecutor correctly points out that in every case in which murder is charged and there is any evidence that the defendant assisted in the destruction of evidence or evasion of detection an instruction on accessory after the fact would be required. We believe that not only would such a rule be unwise policy, but also that such an instruction is not required because the offense of being an accessory after the fact is not a lesser cognate offense of murder, as tested by Hendricks.³

Even assuming arguendo that accessory after the fact can be a cognate lesser offense of murder and that defendant was entitled to an instruction regarding accessory after the fact, under the rule of People v Beach, 429 Mich 450; 418 NW2d 861 (1988), the trial court’s failure to give such an instruction here was harmless error. If the jury had doubts about defendant’s guilt of the charged offenses, first-degree felony murder, it could have found him guilty of the lesser included offenses of second-degree murder or involuntary manslaughter, with regard to which it had been instructed. Because the jury did not do so, we can conclude that it had no reasonable doubt concerning defendant’s guilt of first-degree felony murder.⁴ Here, as in Beach, “the intermediate charge [s] rejected by the jury . . . necessarily . . . indicate[s] a lack of likelihood that the jury would have adopted the lesser requested charge.” Here, where the defendant rested on the presumption of innocence, there was, as in Beach, only “an inference built on a possibility that the jury might disbelieve part of [the prosecution’s witnesses’] testimony” relating to defendant’s participation in the firebombing of the Rollie home with the resultant deaths and yet it might believe the testimony elicited by the prosecution concerning the destruction of evidence and thereby conclude that defendant was guilty only of being an accessoiy after the fact. Here, as in Beach, such an inference built upon such a possibility is not sufficient to require reversal of the convictions because of the failure to give the requested instruction. Id., p 491.

in

Defendant next asserts that the trial court erred in denying a mistrial after the prosecutor, during the course of closing and rebuttal arguments, called the jury’s attention to defendant’s silence by referring to prosecution testimony as being undisputed. The defendant raised and preserved this issue by his trial counsel’s motion below for a mistrial, which the trial court denied.

During closing and rebuttal arguments, the prosecutor noted that Inspector Dziuban’s expert testimony regarding the purpose of a Molotov cocktail was uncontradicted. Defendant moved for a mistrial “based upon the repeated references by the prosecu tor to my client’s failure to testify.” The prosecutor responded:

[I]n each reference where we talked about uncontradicted evidence, we were talking about specific evidence, Mr. Dziuban’s expert testimony in this particular case. And there can be — they could have called testimony to be contradict [sic] that... I was, in particular very careful to limit any use of the word uncontradicted to specific testimony that, in fact the defense could’ve called if they’d have wanted to other than the defendant....

A prosecutor may not comment upon a defendant’s failure to testify. MCL 600.2159; MSA 27A.2159; People v Davis, 199 Mich App 502, 517; 503 NW2d 457 (1993); People v Guenther, 188 Mich App 174, 177; 469 NW2d 59 (1991). However, a prosecutor’s statement that certain inculpatory evidence is undisputed does not constitute a comment regarding the defendant’s failure to testify, particularly where someone other than the defendant could have provided contrary testimony.⁵ People v Parker, 307 Mich 372, 376; 11 NW2d 924 (1943); People v Hammond, 132 Mich 422, 429; 93 NW 1084 (1903); People v Martin, 44 Mich App 254, 257; 205 NW2d 96 (1972); People v Alexander, 17 Mich App 497, 499-500; 169 NW2d 652 (1969); People v Hider, 12 Mich App 526, 529-530; 163 NW2d 273 (1968). See also United States v El-Zoubi, 993 F2d 442, 447 (CA 5, 1993); Raper v Mintzes, 706 F2d 161, 164-165 (CA 6, 1983).

Reversal of a conviction because of a prosecutor’s comments referring to uncontradicted prosecution testimony may be required under certain circumstances, because the rule against such comments “is an important corollary to the Fifth Amendment privilege against self-incrimination. ” Guenther, supra, p 177.

Upon review of the record, we are satisfied that the prosecutor’s assertion that he limited his comments regarding unrelated testimony to specific instances that were subject to contradiction by witnesses other than defendant is correct. We find no impropriety in the prosecutor’s comments.

iv

Defendant, bom October 4, 1973, was sixteen years old when the Rollie murders and attempted murders were committed in June of 1990 and seventeen years old when the court sentenced him on June 27, 1991. He argues that the primary inquiry at a sentencing disposition hearing is whether a juvenile is amenable to treatment as a juvenile. Because the circuit court recognized that defendant was clearly amenable to treatment, defendant contends it abused its discretion in sentencing him as an adult. Defendant asserts that the sentencing court erroneously gave disproportionate weight to the single factor of the seriousness of the crimes. Defendant argues that because he had no prior record and his absenteeism from school was not egregious behavior, his prior record and character, physical and mental maturity, and pattern of living favored sentencing as a juvenile. If the Legislature had intended that all murderers be sentenced as adults, it would not have provided trial courts with discretion to sentence murderers as juveniles.

A trial court’s findings of fact at a juvenile sentencing hearing are reviewed for clear error, while the ultimate decision whether to sentence a minor as a juvenile or as an adult is reviewed for an abuse of discretion, using the principle of proportionality. People v Brown, 205 Mich App 503, 504-505; 517 NW2d 806 (1994); People v Lyons (On Remand), 203 Mich App 465, 468; 513 NW2d 170 (1994); People v Passeno, 195 Mich App 91, 104-105; 489 NW2d 152 (1992).

Defendant has demonstrated no abuse of discretion in the trial court’s decision to sentence him as an adult. Numerous experts testified at the April 30 and June 20, 1991, hearings concerning the determination whether the defendant should be sentenced as an adult. Department of Social Services delinquency services worker Martha Stimson and clinical psychologist Carol Holden advised that defendant should be sentenced as an adult, largely because of the limited time available to rehabilitate him within the juvenile system. Psychologist Laura Morris advised that defendant should be sentenced as a juvenile, but opined that defendant should be “re-evaluated” for possible “further follow up” following his twenty-first birthday. Social worker Rhoda Ann Lindeman advised that defendant be sentenced as a juvenile, but admitted that her conclusion might have been influenced by her belief that defendant was not guilty of the crimes of which he was convicted. Evidence tended to suggest that defendant was “more of a follower than a leader” and that, except for the heinousness of the crimes at issue, defendant’s profile was “not that bad” and supported sentencing as a juvenile.

The trial court expressed discomfort with the sentencing options available to it, but ultimately ruled that defendant should be sentenced as an adult and imposed a mandatory sentence of life imprisonment without possibility of parole for each of the murder convictions and a sentence of ten to twenty years for each of the attempted murder convictions. The circuit court issued a “strong recommendation ... to the future governors of this state that [defendant] be given serious consideration for a reprieve, commutation, or pardon after serving twenty years in prison.”

After making findings relating to the other statutory criteria, the court indicated that what it judged to be in “the best interests of the public welfare and the protection of the public security ... in effect decide [d] the manner in which the defendant should be sentenced, i.e., as a juvenile or as an adult.”

MCL 769.1(3); MSA 28.1072(3) provides:

A judge of a court having jurisdiction over a juvenile shall conduct a hearing at the juvenile’s sentencing to determine if the best interests of the juvenile and the public would be served by placing the juvenile on probation and committing the juvenile to a state institution or agency ... or by imposing any other sentence provided by law for an adult offender. The rules of evidence do not apply to a hearing under this subjection. In making this determination, the judge shall consider the following criteria giving each weight as appropriate to the circumstances:

(a) The prior record and character of the juvenile, his or her physical and mental maturity, and his or her pattern of living.

(b) The seriousness and the circumstances of the offense.

(c) Whether the offense is part of a repetitive pattern of offenses which would lead to 1 of the following determinations:

(i) The juvenile is not amenable to treatment.

(n) That despite the juvenile’s potential for treatment, the nature of the juvenile’s delinquent behavior is likely to disrupt the rehabilitation of the other juveniles in the treatment program.

(d) Whether, despite the juvenile’s potential for treatment, the nature of the juvenile’s delinquent behavior is likely to render the juvenile dangerous to the public if released at the age of 21.

(e) Whether the juvenile is more likely to be rehabilitated by the services and facilities available in adult programs and procedures than in juvenile programs and procedures.

(f) What is in the best interests of the public welfare and the protection of the public security.

Language that is essentially identical to the above statute is set forth in MCR 6.931(E)(3).

A prosecutor has the burden of establishing by a preponderance of the evidence that the best interests of the juvenile and the public would be served by imposition of a sentence as though the defendant were an adult offender. MCR 6.931(E)(2); Brown, supra, p 506; Lyons, supra, p 469. A sentencing court must make specific and detailed findings of fact in relation to each of the statutory factors. MCL 769.1(5); MSA 28.1072(5); MCR 6.931(E)(4); People v Hazzard, 206 Mich App 658; 522 NW2d 910 (1994); Lyons, supra, p 469.

In order to exercise its discretion at a juvenile sentencing hearing properly, a court must attempt to weigh the relevant factors in a meaningful way at the sentencing hearing. Hazzard, supra, p 661. No single statutory criterion, such as the seriousness of the offense, may be given preeminence over the others. Brown, supra, p 504; People v Spearman, 195 Mich App 434, 448; 491 NW2d 606 (1992), rev’d in part on unrelated grounds sub nom People v Rush, 443 Mich (1993), overruled in part on unrelated grounds People v Veling, 443 Mich 23, 43; 504 NW2d 456 (1993). The prosecution must do more than demonstrate that the defendant is guilty of a serious offense for which adult punishment is permitted. People v Miller, 199 Mich App 609, 619; 503 NW2d 89 (1993) (partial dissent by Murphy, J.). A court’s mere statement that the offense of which a defendant was convicted was “one of ‘ultimate gravity’ begs the question whether the circumstances surrounding the offense should be given more weight in deciding to sentence a defendant as an adult.” People v Haynes, 199 Mich App 593, 598; 502 NW2d 758 (1993).

Although defendant argues that the trial court abused its discretion in basing its entire decision to sentence defendant as an adult on the fact that he had been convicted of a serious crime, the record suggests that the circuit court weighed the seriousness and the senselessness of the Rollie murders against a relatively unremarkable personal background lacking dramatic evidence of redeeming virtues and simply concluded that the latter did not outweigh the former. The sentencing court followed the explicit dictates of MCL 769.1(3); MSA 28.1072(3) and MCR 6.931(E)(3) in giving the seriousness and circumstances of the offense factor “weight as appropriate to the circumstances.” Defendant has not demonstrated that the court placed more weight on the factor than was appropriate.

We find the following reasoning of this Court in People v Black, 203 Mich App 428, 430-431; 513 NW2d 152 (1994), instructive and applicable to the present case:

In this case and in many others like it, our statutes create a serious quandary for the trial court. For older juveniles guilty of crimes that carry mandatory life sentences without any possibility of parole, trial courts are caught between ... underpunishing the most serious juvenile crimes or sentencing teenagers to live out their lives in prison. It is not surprising that perplexed judges faced with the dilemma sometimes choose poorly. . . .

In this case, the trial court had before it a seventeen-year-old girl who had been found guilty of aiding and abetting a premeditated murder. If the trial court determined she should be sentenced as an adult, it would have no ability to fashion a sentence that took into account the part she played in the crime and the role her youth played in her decision to participate. On the other hand, if the trial court determined defendant should be sentenced as a juvenile, it would not be able to impose an appropriate sentence for participating in such a serious crime.

The testimony at the sentencing hearing showed that defendant had a real chance at being rehabilitated. The testimony also showed that she would not be subject to the juvenile justice system for a period sufficient to accomplish the rehabilitation. This left the trial court with two bad alternatives: sentencing defendant as a juvenile and thereby endanger society, or sentence defendant as an adult and condemn a potentially salvageable child to spend the rest of her life in prison. Under the circumstances, we cannot say that the trial corut erred in making the choice [to sentence the defendant as an adult].

Similarly, in Spearman, supra, pp 447-448, this Court observed:

The [trial] court analyzed each statutory factor and found that [the defendant] had no prior record, that he was physically but not mentally mature, and that there was nothing “terribly negative” in his pattern of living. The court found that the offense committed and the circumstances surrounding it were very serious and militated toward treating [the defendant] as an adult. The court further found that, although [the defendant] was amenable to treatment in a juvenile setting and would not be disruptive, the period of incarceration available if he were treated as a juvenile would be “inadequate to be an appropriate sentence” and that the best interests of [the defendant] and the public would therefore be served by sentencing him as an adult.

This Court found, contrary to an argument advanced by the defendant, that the trial court had not placed preemptive weight on the seriousness of the defendant’s crime:

At the dispositional hearing, the trial court indicated that, after considering all the evidence, it was convinced that the best interests of both the public and [the defendant] warranted sentencing him as an adult. At sentencing, the trial court further indicated that it felt that a significant sentence was necessary to deter [the defendant] from being involved in any crimes like this in the future. It is therefore clear to us that the trial court considered factors other than the seriousness of the offense. [Id., pp 448-449.]

In the present case, the trial court gave the seriousness and circumstances of defendant’s crimes no more weight than was given to the factor by the trial courts in Black and Spearman. Defendant has demonstrated no abuse of discretion in the trial court’s decision to sentence him as an adult.

Affirmed.

Footnotes

1

The trial court’s reliance on Karst, supra, p 41, in support of its ruling was misplaced. This Court’s ruling in Karst was that a defendant’s rights were violated when evidence supporting an accessory after the fact conviction was used as a basis for a finding of guilt as an aider and abettor. Karst, supra, pp 38-41. As an incidental point, this Court stated that the offense of accessory after the fact “must be charged in a separate count and was not in this case.” Id., p 41. The latter rule is intended to ensure that criminal defendants have notice of the charges against them. Usher, supra, pp 231-232, 234; Bargy, supra, pp 616-617; Government of the Virgin Islands v Aquino, 378 F2d 540, 554 (CA 3, 1967). Where a defendant requests that the jury be instructed with respect to a lesser included offense, issues of notice and jurisdiction are waived. Usher, supra, p 234; People v McKinley, 168 Mich App 496, 506-508; 425 NW2d 460 (1988). In the instant case, defendant waived the protection provided by the Karst rule, and the rule was thus inapplicable.

2

We note that our holding that accessory after the fact is not a cognate lesser offense of murder when analyzed in accordance with the rule stated in Hendricks in that the two offenses are directed at very different societal interests reaches the issue that our Supreme Court declined to review by its order denying leave to appeal in People v Rodgers, 451 Mich 894 (1996). We further note that Justice Boyle, in her comments in that same order concerning why she would grant leave in Rodgers, appears to apply Hendricks in a like analysis and intimates at a conclusion similar to ours.

3

For the reasons stated in our analysis of the question of the societal interests element, we hold that accessory after the fact is not in the same “class or category” as murder. See Hendricks, supra, p 447. See also People v Bailey, 451 Mich 657; 549 NW2d 325 (1996). The only similarities between murder and accessory after the fact to murder is that there must have been a killing of a human being. To be guilty of murder, the defendant must have been a participant in the killing either as the actual killer or as an aider or abettor. See, e.g., People v Feldmann, 181 Mich App 523, 535-536; 449 NW2d 692 (1989). To be guilty of being an accessory after the fact, the defendant, by definition, was not a participant in the killing, either as the actual killer or as an aider or abettor. Thus, to be guilty of murder one has to have had a causal role in the killing. In contrast, an accessory after the fact has no causal role in the killing. Accordingly, accessory after the fact is not in the same “class or category” of offense as murder.

4

We also note that when the jury was instructed with respect to aiding and abetting, it was correctly charged by the trial court: “Even if the defendant knew that alleged crime was planned or was being committed, the mere fact that he was present when it was committed is not enough to prove that he assisted in committing it.”

5

Some authorities indicate that such comment is acceptable even if the defendant was the only person who could provide contrary testimony. People v Earl, 299 Mich 579, 582-583; 300 NW 890 (1941); People v Jacoboni, 34 Mich App 84, 86; 190 NW2d 720 (1971). Other authorities indicate the contrary. People v Payne, 131 Mich 474, 480; 91 NW 739 (1902); People v Centers, 141 Mich App 364, 378; 367 NW2d 397 (1985), vacated in part on unrelated grounds 422 Mich 951 (1985).