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A Better Partnership
September 11, 2013

COA strikes down prohibition on instructing juries on misdemeanor moving violation causing death in felony reckless driving prosecutions

The Court of Appeals has held MCL 257.626(5) unconstitutional, affirming a trial court order granting defendant's motion to instruct the jury in a felony reckless-driving-causing-death prosecution about the lesser-included offense of moving violation causing death. The felony statute contains a prohibition on providing the instruction. Judge Ronayne Krause wrote the opinion for herself and Judge Shapiro. Judge Kirsten Frank Kelly dissented.

If an appeal of the decision is not taken or won, it removes the power of prosecutors to direct the jury toward a felony vs. misdemeanor outcome through their charging decision.  Fatal car accident prosecutions (without the presence of alcohol or drugs) often involve an otherwise law-abiding defendant who did not act intentionally, coupled with the tragedy of unexpected loss of life and a potentially very sympathetic and vocal family left behind.  The result can be tremendous pressure on the prosecutor for a harsh outcome, even given the lack of intentional behavior.

In the case, People v. Thabo Jones, Mr. Jones struck a second vehicle with his, causing the second vehicle to hit a third car, killing the driver of the second car.  While there is no right under Michigan law to jury instruction on cognate offenses, the panel held there is a common law right to instruction on lesser-included ones.  The parties agreed in this case that the crime of moving violation causing death is a lesser-included offense of felony reckless driving.  The majority relied on the principle that the Legislature is presumed not to abrogate the common law unless it is explicit about doing so.  The Legislature has codified the common law at MCL 768.32(1) that a jury or judge in a bench trial may acquit on a charged offense consisting of different degrees and instead convict on a different degree. That statute enumerates an exception to this general rule pertaining to drug offenses.  The majority also noted that the Legislature could amend the elements of the two crimes to make them cognates instead of related, but it has not chosen to do so.

More importantly, the majority noted that the statute at issue, MCL 257.626(5), does not preclude a jury from finding a defendant guilty of the misdemeanor, although practically speaking that would be an unlikely outcome in the face of the statute's prohibition on instructing the jury on the lesser charge.  But without proper instruction on what the jury may do, the jury cannot fulfill its duty and justice is not served.  While the Legislature may change what is a necessarily lesser-included offense of another crime, Judge Ronayne Krause wrote, it may not require jury instructions that conflict with substantive law.  The majority opinion stated in dicta that the statute  would violate the right to trial by jury.

In her dissent, Judge Kelly wrote that she would have found the statute constitutional because MCL 257.626(5) is a change in substantive law within the power of the Legislature to enact, not a matter of procedure and practice which contravenes the substantive law on the ability to instruct and convict on lesser-included offenses. Interestingly, it is an open question whether MCL 768.32(2) is constitutional, preventing juries from convicting of lesser-degree offenses in certain drug cases.  The Court of Appeals once held that it was unconstitutional, but the Supreme Court vacated the opinion as unnecessary to resolution of the facts at issue, and the issue has never been taken up again.  Expect to see this issue litigated soon in light of the Jones case.

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