In People v. Burks, No. 150857, the Michigan Supreme Court granted oral argument on the application for leave to appeal to decide if it should consider whether the trial court should have instructed the jury on second-degree child abuse, rather than first-degree child abuse alone, where the defense argued the death resulted from reckless conduct.
Defendant Burks was convicted of felony murder, MCL 750.316, and first-degree child abuse, MCL 750.136b(2), for the death of his six-month-old son. At trial, defendant testified that he had accidentally rolled over on the baby, then given him CPR after the baby had difficulty breathing, then put him in the bath and given him CPR again. He testified that the baby was then breathing normally, he put the baby to bed, and only learned that the baby was dead when defendant awoke in the morning. At trial, the defendant requested a jury instruction on second-degree child abuse, but the trial court denied the request because the defendant admitted that he had intentionally struck the baby while attempting to perform CPR and therefore there was no evidence from which a jury could find that the baby’s death resulted from a reckless act. An intentional act is required for first-degree child abuse, while a reckless act will support a conviction for second-degree child abuse.
The Court of Appeals, over a dissent, held that although the trial court erred in refusing to instruct the jury regarding second-degree child abuse, that error was harmless because of the other evidence against the defendant, including recent outbursts of anger and the inconsistency of stories told to the police. Judge Markey dissented, arguing that the trial court’s failure to instruct the jury regarding second-degree child abuse was not harmless.