Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  November 3, 2010                                                                          Marilyn Kelly,
                                                                                                Chief Justice

  139209                                                                             Michael F. Cavanagh
                                                                                       Maura D. Corrigan
                                                                                      Robert P. Young, Jr.
                                                                                      Stephen J. Markman
  PEOPLE OF THE STATE OF MICHIGAN                                                     Diane M. Hathaway
            Plaintiff-Appellee,                                                      Alton Thomas Davis,
                                                                                                     Justices
  v                                                        SC: 139209
                                                           COA: 281844
                                                           Genesee CC: 01-008582-FC
  ANGELO ROCHELLE MCMULLAN,
             Defendant-Appellant.
  _________________________________________/

         On order of the Court, leave to appeal having been granted, and the briefs and oral
  arguments of the parties having been considered by the Court, we hereby AFFIRM the
  June 2, 2009 judgment of the Court of Appeals. Because a rational view of the evidence
  did not support an instruction of involuntary manslaughter when considering the
  particular facts of this case, the trial court did not err in denying defendant’s request for
  the court to instruct the jury regarding involuntary manslaughter. However, we take this
  opportunity to clarify the opinion of the Court of Appeals.

         As the Court of Appeals correctly noted, if a criminal defendant is charged with
  murder, the trial court should instruct the jury on involuntary manslaughter if the
  instruction is supported by a rational view of the evidence. 1 Reversal of a trial court’s
  jury instruction decision is appropriate only where the offense was clearly supported by
  the evidence; an offense is clearly supported where there is substantial evidence to
  support it. 2 An appellate court must therefore review all of the evidence irrespective of
  who produced it to determine whether it provides a rational view to support an instruction
  on the lesser charge.

         Here, the reasoning of the Court of Appeals relied too heavily on the prosecutor’s
  evidence, accepting as fact evidence that defendant disputed. Specifically, the Court of
  Appeals assumed as fact two disputed issues: First, that defendant pushed the victim into
  the car and then shot the victim; defendant contends that he and the victim were engaged
  in a struggle at the car door when he discharged the weapon. Second, that defendant
  robbed the victim after the fact, which defendant denies. Even though the Court of
  Appeals majority partially erred to the extent that it accepted these contentions as proven
  fact, even absent these additional questions of fact, the lower courts properly concluded
  that a rational view of the evidence in this case does not support an instruction on
  involuntary manslaughter.



  1
      People v Mendoza, 468 Mich 527, 541 (2003).
  2
      People v Silver, 466 Mich 386, 388 (2002); Mendoza, 468 Mich at 545.
                                                                                           2

       The facts inescapably show that defendant acted with malice because, at a
minimum, he “inten[ded] to do an act in wanton and wilful disregard of the likelihood that
the natural tendency of [his] behavior is to cause death or great bodily harm,” 3 and did
not act with an intent merely to injure or with non-malicious gross negligence—the two
recognized types of involuntary manslaughter. 4 Defendant admitted that, after a physical
altercation with the victim, he left to obtain a loaded gun in order to threaten or scare the
victim. Some evidence further showed that, when the defendant returned, the victim was
shot in the chest when defendant and the victim again began to struggle at the victim’s
car. Defendant does not dispute that the gun was in his hand when it was cocked and
then fired. The evidence indisputably established that the firearm had to be specifically
cocked in order to fire. In particular, defendant conceded that the weapon is “designed to
prevent it from firing unless you want it to fire.” Based on this chain of events, and for
the reasons otherwise stated by the Court of Appeals, we conclude that defendant’s
actions constitute a malicious series of intentional acts; they do not demonstrate a grossly
negligent handling of a firearm that inadvertently caused death. Therefore, the trial court
did not err in denying defendant’s request for the jury to be instructed on involuntary
manslaughter.

         KELLY, C.J. (dissenting).

      I would reverse the Court of Appeals decision. I believe that the dissent correctly
concluded that defendant’s conviction must be reversed because there was substantial
evidence to support an instruction on involuntary manslaughter:

                A rational fact-finder could have believed defendant when he said
         that he did not intend to fire the weapon he was using merely to scare
         Smith, i.e., that he did not intend to do the act (firing the weapon) that
         caused Smith’s death. That conclusion would be consistent with the long
         history defendant had with Smith, his attempts to help Smith following the
         shooting, his apparent grief at what had occurred and especially his




3
    People v Goecke, 457 Mich 442, 464 (1998).
4
    See People v Holtschlag, 471 Mich 1, 21-22 (2004).
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        corroborated accounts of being under the influence of drugs at the time the
        shooting occurred. As was the case with the defendant’s “intoxication” in
        People v Droste, 160 Mich 66, 78-79; 125 NW 87 (1910), the fact-finder
        here might have concluded that, “at the moment” the gun discharged,
        defendant’s drug use was sufficient “to rob his act of the necessary
        elements of murder.”[ 5]

        CAVANAGH, J., joins the statement of KELLY, C.J.




5
    People v McMullan, 284 Mich App 149, 162-163 (2009) (BANDSTRA, J., dissenting).

Although this Court has recognized that the Legislature has generally abolished the
defense of voluntary intoxication, see People v Nickens, 470 Mich 622, 631 n 7 (2004),
the actions occurring in this case occurred before MCL 768.37 went into effect.
Accordingly, we need not consider any possible effect of MCL 768.37 on Droste.



                          I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          November 3, 2010                    _________________________________________
         1027                                                                 Clerk
