                                                                                       Michigan Supreme Court
                                                                                             Lansing, Michigan




Syllabus
                                                                Chief Justice:         Justices:
                                                                Robert P. Young, Jr.   Michael F. Cavanagh
                                                                                       Stephen J. Markman
                                                                                       Mary Beth Kelly
                                                                                       Brian K. Zahra
                                                                                       Bridget M. McCormack
                                                                                       David F. Viviano
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.               Corbin R. Davis


                                            PEOPLE v JONES

       Docket No. 147735. Argued October 9, 2014 (Calendar No. 6). Decided December 23, 2014.

               Thabo Jones was charged in the 36th District Court with reckless driving causing death in
       violation of MCL 257.626(4). The court, Cylenthia L. Miller, J., bound defendant over to the
       Wayne Circuit Court following a preliminary examination. In a pretrial motion, defendant
       requested that the circuit court instruct the jury on the lesser included offense of moving
       violation causing death, MCL 257.601d, although MCL 257.626(5) specifically prohibits giving
       this instruction when the charged offense is reckless driving causing death. The circuit court,
       Richard M. Skutt, J., granted the motion, concluding that MCL 257.626(5) unconstitutionally
       infringed the judiciary’s authority to establish court practice and procedure. The Court of
       Appeals, RONAYNE KRAUSE and SHAPIRO, JJ. (K. F. KELLY, J., dissenting), affirmed. 302 Mich
       App 434 (2013). The Supreme Court granted the prosecutor’s interlocutory application for leave
       to appeal. 495 Mich 905 (2013).

             In an opinion by Justice KELLY, joined by Chief Justice YOUNG and Justices MARKMAN,
       ZAHRA, and MCCORMACK, the Supreme Court held:

               The circuit court erred by granting defendant’s request to instruct the jury on moving
       violation causing death. The Legislature acted within its constitutional authority by creating a
       substantive exception that prohibited the jury’s consideration of that lesser offense when the
       charged offense is reckless driving causing death.

               1. MCL 768.32(1) sets forth the general rule that a defendant is entitled to have the jury
       instructed on necessarily included lesser offenses. MCL 257.626(5) sets forth a clear exception
       to this general rule: when a defendant is charged with reckless driving causing death, the jury
       shall not be instructed regarding the crime of moving violation causing death. Under People v
       Cornell, 466 Mich 335 (2002), this legislative modification did not impermissibly infringe the
       Supreme Court’s constitutional authority to enact rules governing practice and procedure
       because determining what charges a jury may consider concerned a matter of substantive law.

              2. Defendant did not have a Sixth Amendment right to have the jury instructed on
       moving violation causing death. While the United States Supreme Court has ruled that the jury
       must have the opportunity to convict on a lesser included offense in capital cases, it has
       expressly declined to rule on whether there is a constitutional entitlement to have the jury
       consider lesser included offenses in cases involving noncapital offenses. The fact that
MCL 257.626(5) is silent in the context of a judge sitting as finder of fact did not alter this
conclusion. Given the clear intent of the Legislature to forbid consideration of the lesser
misdemeanor offense of moving violation causing death when a defendant has been charged with
reckless driving causing death, a judge trying a case without a jury would understand that the
defendant could not be convicted of the lesser offense.

       Justice VIVIANO, concurring in the result, would have decided the case on the
nonconstitutional ground that the offense of moving violation causing death, which may only be
committed by a person operating a motor vehicle, is not a necessarily included lesser offense of
reckless driving causing death, which may be committed in a non-motor vehicle.

       Court of Appeals judgment reversed; case remanded to the circuit court for further
proceedings.

        Justice CAVANAGH, dissenting, would have affirmed on the basis of his views that jury
instructions are procedural rather than substantive, that MCL 257.626(5) violates the
constitutional separation-of-powers doctrine because it conflicts with MCR 2.512(B)(2), and that
MCL 257.626(5) violates defendants’ Sixth Amendment rights by limiting their ability to present
their theory of the case and by effectively punishing them for exercising their right to a trial by
jury.




                                    ©2014 State of Michigan
                                                                              Michigan Supreme Court
                                                                                    Lansing, Michigan




Opinion
                                                        Chief Justice:          Justices:
                                                        Robert P. Young, Jr. Michael F. Cavanagh
                                                                             Stephen J. Markman
                                                                             Mary Beth Kelly
                                                                             Brian K. Zahra
                                                                             Bridget M. McCormack
                                                                             David F. Viviano

                                                              FILED DECEMBER 23, 2014

                             STATE OF MICHIGAN

                                      SUPREME COURT


 PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellant,

 v                                                               No. 147735

 THABO JONES,

               Defendant-Appellee.


 BEFORE THE ENTIRE BENCH

 KELLY, J.
         This interlocutory appeal concerns whether a defendant charged with reckless

 driving causing death1 is entitled to a jury instruction on the misdemeanor lesser offense

 of moving violation causing death,2 notwithstanding the Legislature’s prohibition against

 such an instruction.3 Ordinarily, statutory law entitles criminal defendants to instructions


 1
     MCL 257.626(4).
 2
     MCL 257.601d.
 3
     MCL 257.626(5).
on necessarily included lesser offenses when the facts at issue warrant such instructions.4

Here, because the Legislature specifically created an exception prohibiting an instruction

on moving violation causing death where the charged offense is reckless driving causing

death, and because the Legislature did not exceed its constitutional authority in doing so,

we hold that it was error for the circuit court to grant the defendant’s request to instruct

the jury on moving violation causing death.

        We therefore reverse the judgment of the Court of Appeals and remand this case to

the Wayne Circuit Court for further proceedings consistent with this opinion.

Specifically, on remand, the circuit court shall enter an order vacating its ruling granting

defendant’s request to instruct the jury on the misdemeanor lesser offense of moving

violation causing death. In light of the clear legislative dictates of MCL 257.626(5), the

circuit court is precluded from granting defendant’s request and providing such a jury

instruction.

                       I. FACTS AND PROCEDURAL HISTORY

        On the afternoon of March 2, 2012, defendant was driving his automobile at

approximately 80 mph on a road with a posted speed limit of 35 mph. While changing

lanes, defendant collided with another vehicle, which, in turn, struck a third vehicle that

had been parked on the side of the road. The driver of the second vehicle was killed in

the collision. Consequently, defendant was charged with reckless driving causing death

under MCL 257.626(4).



4
    MCL 768.32(1); People v Cornell, 466 Mich 335; 646 NW2d 127 (2002).



                                              2
         Prior to trial, defense counsel filed a motion in limine, requesting that the circuit

court instruct the jury on the misdemeanor lesser offense of committing a moving

violation causing death. Despite the explicit prohibition in MCL 257.626(5) against such

an instruction, the circuit court granted the motion, concluding that moving violation

causing death is a necessarily included lesser offense of reckless driving causing death

and, therefore, MCL 257.626(5) violates the doctrine of separation of powers under

Const 1963, art 3, § 2.

         The prosecution appealed, and the Court of Appeals affirmed in a split published

opinion. The majority held that MCL 257.626(5) is constitutionally infirm because it

violates both the separation of powers and a criminal defendant’s fundamental due

process right to a trial by jury.5      Noting the general rule that a jury may acquit a

defendant of the charged offense and instead find him guilty of a lesser offense, the

majority first concluded that it is a violation of the separation of powers for the

Legislature to prohibit the courts from instructing the jury on a necessarily included

lesser offense. Because MCL 257.626(5) impermissibly precludes an instruction on

moving violation causing death, which “by definition” is a necessarily included lesser

offense of reckless driving causing death, the majority held the statutory prohibition to be

unconstitutional.6 The majority explained that because the Legislature’s sole function is

to create substantive law whereas the Supreme Court has exclusive rulemaking authority

in matters of practice and procedure, effectuating the right to a properly instructed jury is

5
    People v Jones, 302 Mich App 434; 839 NW2d 51 (2013).
6
    Id. at 439.



                                               3
exclusively within the domain of the judiciary.7 Therefore, by prohibiting courts from

instructing juries on the necessarily included lesser offense of moving violation causing

death, the Legislature, via MCL 257.626(5), unconstitutionally infringed the judiciary’s

authority to establish court practice and procedure.8

          Alternatively, the majority concluded that MCL 257.626(5) could likewise be

invalidated as an unconstitutional deprivation of a defendant’s right to a trial by a

properly instructed jury. The majority observed that although MCL 257.626(5) plainly

prevents the court from instructing the jury on the lesser offense of moving violation

causing death, the statute does not bar or otherwise restrict a judge sitting as fact-finder

from finding a defendant guilty of that lesser offense. The majority reasoned that, had

the Legislature intended to limit a judge’s consideration of moving violation causing

death, it could have easily included language to that effect. Because a criminal defendant

has no right to a bench trial unless the prosecutor and judge agree,9 MCL 257.626(5)

places a criminal defendant in the position of compromising one right in favor of another,

namely, a criminal defendant must relinquish his constitutional right to a trial by jury in

order to permit the fact-finder to consider the lesser offense of moving violation causing

death.10



7
    Id. at 441, 442, citing People v Cornell, 466 Mich 335, 349; 646 NW2d 127 (2002).
8
    Id. at 440, citing McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999).
9
    See MCL 763.3 and MCR 6.401.
10
     Id. at 443.



                                             4
         We granted the prosecution’s interlocutory application for leave to appeal,

directing the parties to brief the following issues:

         (1) whether a legislative provision barring consideration of a necessarily
         included lesser offense violates the separation of powers doctrine, Const
         1963, art 3, § 2; (2) whether MCL 257.626(5) violates a defendant’s right to
         a jury trial by foreclosing a jury instruction on a lesser offense; and (3)
         whether MCL 257.601d is a necessarily included lesser offense of MCL
         257.626(4).[11]

                               II. STANDARD OF REVIEW

         The prosecution contends that the circuit court erred by granting defendant’s

request to instruct the jury on the misdemeanor lesser offense of moving violation

causing death. We review de novo a claim of instructional error involving a question of

law.12 However, a circuit court’s decision as to whether a requested lesser-included-

offense instruction is applicable under the facts of a particular case will only be reversed

upon a finding of an abuse of discretion.13 An abuse of discretion occurs when the circuit

court chooses an outcome that falls outside the range of principled outcomes.14 Before

addressing any alleged instructional error by the circuit court, however, we first consider

whether a defendant is entitled to a jury instruction on the offense of moving violation




11
     People v Jones, 495 Mich 905 (2014).
12
     People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006).
13
     Cornell, 466 Mich at 352-353.
14
     People v Musser, 494 Mich 337, 348; 835 NW2d 319 (2013).



                                               5
causing death despite the statutory prohibition set forth in MCL 257.626(5). We review

this and other questions of law de novo.15

                                      III. ANALYSIS

         In determining whether the circuit court erred by granting the request to instruct

the jury on the misdemeanor lesser offense of moving violation causing death, we begin

by reviewing the common law and statutory basis for lesser offense instructions, after

which we will address the extent to which this review affects the construction of the

reckless driving causing death and moving violation causing death provisions.16

         A. PROPRIETY OF LESSER-INCLUDED-OFFENSE INSTRUCTIONS

         At common law, the general rule of lesser included offenses was that

         when an indictment charged an offense which included within it another
         less offense or one of a lower degree, the defendant, though acquitted of the
         higher offense, might be convicted of the less.

                This rule, however, was subject to the qualification, that upon an
         indictment for a felony, the defendant could not be convicted of a
         misdemeanor.[17]



15
     People v Kowalski, 489 Mich 488, 497; 803 NW2d 200 (2011).
16
   Because both parties have conceded that moving violation causing death is, in fact, a
necessarily included lesser offense of reckless driving causing death—as opposed to a
cognate offense—we will proceed on this assumption, analyzing this case in light of that
concession. We note, however, that even if moving violation causing death does not
constitute a necessarily included lesser offense of reckless driving causing death, the
result would nevertheless the same because, as will be discussed later in the opinion,
MCL 768.32(1) does not permit cognate lesser offense instructions. See People v
Cornell, 466 Mich 335, 359; 646 NW2d 127 (2002).
17
     Hanna v People, 19 Mich 316, 318 (1869).



                                              6
This common-law rule has since been legislatively modified18 and appears in what is now

MCL 768.32(1), which provides as follows:

             Except as provided in subsection (2), upon an indictment for an
      offense, consisting of different degrees, as prescribed in this chapter, the
      jury, or the judge in a trial without a jury, may find the accused not guilty
      of the offense in the degree charged in the indictment and may find the
      accused person guilty of a degree of that offense inferior to that charged in
      the indictment, or of an attempt to commit that offense.[19]

18
   Significantly, no longer does the rule preclude a misdemeanor from constituting a
lesser included offense of a felony but instead authorizes a conviction “for any
substantive offense included in the offense charged, without reference to the fact that one
was a felony and the other a misdemeanor . . . .” Hanna, 19 Mich at 322.
19
  We note that when the charged offense involves a major controlled substance, the rules
pertaining to lesser included offenses are different. MCL 768.32(2) states:

              (2) Upon an indictment for an offense specified in section
      7401(2)(a)(i) or (ii) or section 7403(2)(a)(i) or (ii) of the public health code,
      Act No. 368 of the Public Acts of 1978, being sections 333.7401 and
      333.7403 of the Michigan Compiled Laws, or conspiracy to commit 1 or
      more of these offenses, the jury, or judge in a trial without a jury, may find
      the accused not guilty of the offense in the degree charged in the indictment
      but may find the accused guilty of a degree of that offense inferior to that
      charged in the indictment only if the lesser included offense is a major
      controlled substance offense. A jury shall not be instructed as to other
      lesser included offenses involving the same controlled substance nor as to
      an attempt to commit either a major controlled substance offense or a lesser
      included offense involving the same controlled substance. The jury shall be
      instructed to return a verdict of not guilty of an offense involving the
      controlled substance at issue if it finds that the evidence does not establish
      the defendant’s guilt as to the commission of a major controlled substance
      offense involving that controlled substance. A judge in a trial without a jury
      shall find the defendant not guilty of an offense involving the controlled
      substance at issue if the judge finds that the evidence does not establish the
      defendant’s guilt as to the commission of a major controlled substance
      offense involving that controlled substance.

In People v Binder (On Remand), 215 Mich App 30; 544 NW2d 714 (1996), the Court of
Appeals held unconstitutional the provisions of MCL 768.32(2) that limit consideration


                                             7
Reduced to its simplest terms, when a defendant is charged with an offense “consisting of

different degrees,” the factfinder may, consistent with the statutory text, acquit the

defendant of the charged offense and find him of her “guilty of a degree of that offense

inferior to that charged in the indictment . . . .”

         In People v Cornell,20 this Court considered what crimes constitute lesser or

“inferior” offenses within the meaning of MCL 768.32(1). After reviewing the dissonant

approaches      to   lesser-included-offense     instructions   articulated   throughout   our

jurisprudence, this Court noted that “the word ‘inferior’ in the statute does not refer to

inferiority in the penalty associated with the offense, but, rather, to the absence of an

element that distinguishes the charged offense from the lesser offense.”21 On this basis,

this Court concluded that a defendant is entitled to a lesser offense instruction only if that

lesser offense is necessarily included in the greater offense; that is, the offense must be

committed as part of the greater offense insofar as it would be “impossible to commit the

greater offense without first committing the lesser offense.”22 Cornell thus interpreted the

legislative prerogative contained in MCL 768.32(1)—that an included-inferior-offense

instruction may be appropriate upon request—as limited to necessarily included lesser


of the lesser offense and jury instruction in cases involving a major controlled substance
offense as a violation of the separation of powers doctrine. This Court, however, vacated
that portion of the Court of Appeals opinion as unnecessary to the resolution of that case.
People v Binder, 453 Mich 915 (1996).
20
     466 Mich 335.
21
 Id. at 354, quoting People v Torres (On Remand), 222 Mich App 411, 419-420; 564
NW2d 149 (1997) (citation and quotation marks omitted).
22
     Id. at 361; People v Hendricks, 446 Mich 435; 521 NW2d 546 (1994).


                                                8
offenses only; it foreclosed consideration of cognate lesser offenses, which, in the

absence of adequate notice, may violate a defendant’s fundamental due process rights.23

Under Cornell, then, the rule of lesser included offenses is simple: pursuant to MCL

768.32(1), the court must first determine whether an offense is necessarily included,

which requires a comparison of the elements of the offenses, and if so, the court must

then determine whether an instruction is warranted on the facts of a particular case by

examining whether “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 [the instruction].”24

         As a corollary of this conclusion, Cornell returned MCL 768.32(1) to its original

construction as given by this Court in Hanna: consideration of cognate lesser offenses is

not permitted and the right to an instruction on a necessarily included lesser offense turns

on whether “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




23
   See Cornell, 466 Mich at 353-355. Indeed, “cognate” lesser offenses are those that
share some common elements, and are of the same class or category as the greater
offense, but likewise contain additional elements not found in the greater offense. See
also Hendricks, 446 Mich at 443. Accordingly, failure to provide a defendant with
adequate notice that he is being charged with a cognate offense may deprive the
defendant of the opportunity to defend himself, since he would not have had notice of all
the elements of the offense against which he was required to defend. In contrast, a
defendant always has adequate notice that he might be charged with necessarily included
lesser offenses, which contain no additional elements beyond those contained in the
principal charge.
24
     Cornell, 466 Mich at 357.



                                               9
would support [the instruction].”25 In so doing, this Court noted the separation of powers

concerns inherent in its earlier caselaw permitting instructions on cognate offenses: to

interpret MCL 768.32(1) as permitting instruction on cognate offenses is not a proper

exercise of Supreme Court authority to determine rules of practice and procedure. While

this Court exclusively retains the authority and duty to prescribe general rules that

“establish, modify, amend, and simplify the practice and procedure in all courts of this

state,”26 it cannot be disputed that “enact[ing] court rules that establish, abrogate, or

modify the substantive law”27 transcends the limits of that authority. Indeed, “matters of

substantive law are left to the Legislature.”28 And because “[d]etermining what charges a

jury may consider does not concern merely the ‘judicial dispatch of litigation,’ ”29

MCL 768.32(1) thus concerns a matter of substantive law and, consequently, courts may

not promulgate procedural rules contrary to statutory law governing lesser-included-

offense instructions, but are instead required to adhere to the legislative dictates.




25
     Id. at 357.
26
     Const 1963, art 6, § 5.
27
     McDougall, 461 Mich at 27.
28
  Cornell, 466 Mich at 353. See also People v Glass (After Remand), 464 Mich 266,
281; 627 NW2d 261 (2001); McDougall, 461 Mich at 27.
29
     Cornell, 466 Mich at 353, quoting McDougall, 461 Mich at 30.



                                              10
       B. RECKLESS DRIVING CAUSING DEATH AND MOVING VIOLATION

                                     CAUSING DEATH

         Defendant was charged with reckless driving causing death pursuant to MCL

257.626(4). The reckless driving statute, MCL 257.626, provides in relevant part as

follows:

                (2) Except as otherwise provided in this section, a person who
         operates a vehicle upon a highway or a frozen public lake, stream, or pond
         or other place open to the general public, including, but not limited to, an
         area designated for the parking of motor vehicles, in willful or wanton
         disregard for the safety of persons or property is guilty of a misdemeanor
         punishable by imprisonment for not more than 93 days or a fine of not more
         than $500.00, or both.

                                               * * *

                (4) Beginning October 31, 2010,[30] a person who operates a vehicle
         in violation of subsection (2) and by the operation of that vehicle causes the
         death of another person is guilty of a felony punishable by imprisonment
         for not more than 15 years or a fine of not less than $2,500.00 or more than
         $10,000.00, or both. The judgment of sentence may impose the sanction
         permitted under section 625n. If the vehicle is not ordered forfeited under
         section 625n, the court shall order vehicle immobilization under section
         904d in the judgment of sentence.

                (5) In a prosecution under subsection (4), the jury shall not be
         instructed regarding the crime of moving violation causing death.

Taken together, then, these provisions demonstrate the Legislature’s intent that a person

is guilty of reckless driving causing death, a 15-year felony, if that person “operates a

vehicle . . . [in willful or wanton disregard for the safety of persons or property] and by

the operation of that vehicle causes the death of another person. . . .” Moreover, in a


30
     As stated, defendant’s alleged offense occurred on March 2, 2012.



                                              11
prosecution for reckless driving causing death, “the jury shall not be instructed regarding

the crime of moving violation causing death.”

        Despite these plain legislative dictates, the circuit court granted defendant’s

request that the jury be instructed on the misdemeanor lesser offense of moving violation

causing death, which, in turn, provides as follows:

               (1) A person who commits a moving violation that causes the death
        of another person is guilty of a misdemeanor punishable by imprisonment
        for not more than 1 year or a fine of not more than $2,000.00, or both.

                                          * * *

               (3) This section does not prohibit the person from being charged
        with, convicted of, or punished for any other violation of law.

               (4) As used in this section, “moving violation” means an act or
        omission prohibited under this act or a local ordinance substantially
        corresponding to this act that involves the operation of a motor vehicle, and
        for which a fine may be assessed.[31]

                                   IV. APPLICATION

        Assuming, based on the record concession, that moving violation causing death

indeed constitutes a necessarily included lesser offense of reckless driving causing death,

we nevertheless conclude that the circuit court erred in granting the request that the jury

be instructed on the misdemeanor lesser offense of moving violation causing death.

MCL 768.32(1) sets forth the general rule that a defendant is entitled to have the jury

instructed on necessarily included lesser offenses. MCL 257.626(5), in turn, sets forth a

clear exception to this general rule: when a defendant is charged with reckless driving



31
     MCL 257.601d.



                                             12
causing death, “the jury shall not be instructed regarding the crime of moving violation

causing death.” As Cornell indicates, MCL 768.32(1) reflects both the Legislature’s

abolition of the common-law misdemeanor restriction as well as its proscription against

consideration of cognate lesser offenses.32 As Cornell further indicates, this legislative

modification does not impermissibly infringe this Court’s constitutional authority to enact

rules governing practice and procedure, because “[d]etermining what charges a jury may

consider . . . concerns a matter of substantive law.”33 Just as modifying the common-law

rule is a permissible exercise of legislative authority under Cornell, we conclude that, by

extension, so too is creating a substantive exception to that rule.34

           Notwithstanding this Court’s explicit statements to the contrary, the Court of

Appeals interprets Cornell to “support” its conclusion that “determining what instructions

should be given to the jury is exclusively within the judiciary’s role.”35 The Court of

Appeals opinion similarly asserts that “[c]orrectly instructing the jury . . . is a

fundamental requirement of fair and proper administration of justice.”36 Yet the two

cases upon which the Court of Appeals relies in support of this proposition—People v

32
     Id. at 354.
33
     Id. at 353.
34
  Indeed, we note that, as a substantive exception to the rule the Legislature articulated in
MCL 768.32(1), MCL 257.626(5) has the effect of reestablishing the common-law rule
with regard to the crimes of reckless driving causing death (a felony) and moving
violation causing death (a misdemeanor). See Hanna, 19 Mich at 318 (“[U]pon an
indictment for a felony, the defendant could not be convicted of a misdemeanor.”).
35
     Jones, 302 Mich App at 442.
36
     Id. at 441.



                                              13
Murray and People v Townes37—contain no such language nor do they somehow suggest

that a criminal defendant has an unfettered right to have the jury instructed on a lesser

included offense or that such instructions are within the exclusive domain of the

judiciary. At most, these cases merely reaffirm the unexceptional legal premise that a

judge has a duty to accurately instruct the jury regarding the “law applicable to the

facts,”38 irrespective of whether a proper request for or objection to those instructions has

been made. Contrary to the Court of Appeals’ assertion, MCL 257.626(5) is not a matter

of practice and procedure, and, consequently, there can be no violation of separation of

powers simply because a necessarily included lesser offense exists and the Legislature

has acted within its constitutional authority by creating a substantive exception that

prohibits or otherwise limits the jury’s consideration of that lesser offense.

         Nevertheless, defendant also argues that his Sixth Amendment right to a jury trial

requires an instruction on moving violation causing death. However, the United States

Supreme Court has not identified any requirement that a jury must consider lesser

included offenses when deciding whether to convict on the charged offense. While the

United States Supreme Court has ruled that, in a capital case, the jury must have the

opportunity to convict on a lesser included offense,39 this holding has been limited to




37
  People v Murray, 72 Mich 10, 16; 40 NW 29 (1888); People v Townes, 391 Mich 578,
587; 218 NW2d 136 (1974).
38
     Murray, 72 Mich at 16.
39
     Beck v Alabama, 447 US 625, 638; 100 S Ct 2382; 65 L Ed 2d 392 (1980).



                                             14
capital offenses.40 Except within this limited circumstance, the United States Supreme

Court has expressly declined to rule on whether there is a constitutional entitlement to

have the jury consider lesser included offenses.

        Neither does the fact that MCL 257.626(5) is silent in the context of a judge sitting

as finder of fact at a bench trial alter our conclusion. As stated, the Legislature made a

policy decision that the jury may not be instructed on the lesser offense of moving

violation causing death when the defendant is on trial for reckless driving causing death.

The trial judge has a duty to instruct the jury “as to the law applicable to the case,”41

including lesser included offenses, and MCL 257.626(5) presents one such law applicable

to the charge of reckless driving causing death. Furthermore, there is logical connection

between the jury being instructed “as to the law applicable to the case,” MCL 768.29, and

the jury finding guilt based on those instructions. That is, by precluding the jury from

being instructed on the crime of moving violation causing death, the Legislature was

essentially precluding the jury from convicting a criminal defendant of that lesser offense.




40
  Id. at 638 n 14. We recognize that defendant structures his constitutional argument as a
violation of his Sixth Amendment right to a trial by jury whereas Beck dealt with
violations of the Eighth Amendment and the Due Process Clause of the Fourteenth
Amendment. See Smith v Spisak, 558 US 139, 159; 130 S Ct 676; 175 L Ed 2d 595
(2010) (“Our concern in Beck was that presenting the jury with only two options—death
or no punishment—introduced a risk of arbitrariness and error into the deliberative
process that the Constitution could not abide in the capital context.”). However,
defendant’s failure to support his Sixth Amendment argument with citation to helpful
authority deprives us of any meaningful opportunity to assess whether the constitutional
entitlement announced in Beck should be extended to the noncapital context.
41
     MCL 768.29.



                                             15
         While jurors are not presumed to know the law applicable to a case, Michigan law

presumes that a trial judge sitting as finder of fact is “aware of lesser-included offenses

without the need for instruction.”42 Conversely, the judge must also be aware when (as

here) it is not appropriate to consider lesser included offenses.43        As a result, the

Legislature did not need to provide an explicit limitation on a judge acting as the finder of

fact when enacting its exception to the general rule governing lesser included offenses.

To interpret MCL 257.626(5) as precluding the lesser offense instruction in either a jury

trial or bench trial is therefore consistent with the general purpose of MCL 257.626(5): to

eliminate the possibility that a defendant charged with reckless driving causing could be

convicted of moving violation causing death. For these reasons, we agree with the Court

of Appeals dissenting opinion, which explained that “[g]iven the clear intent of the

Legislature to forbid consideration of the lesser misdemeanor offense of moving violation

causing death when a defendant has been charged with reckless driving causing death, a

judge trying a case without a jury would surely understand that he or she could not

convict the defendant of the lesser offense.”44

         As a result of defendant’s charge of reckless driving causing death,

MCL 257.626(5) barred an instruction on the misdemeanor lesser offense of moving


42
     People v Cazal, 412 Mich 680, 686-687; 316 NW2d 705 (1982).
43
  Cf. People v Ellis, 468 Mich 25, 28; 658 NW2d 142 (2003) (noting that a judge may
not “reward[] a defendant for waiving a jury trial by ‘finding’ him not guilty of a charge
for which an acquittal is inconsistent with the court’s factual findings” and convicting
him of a lesser offense).
44
     People v Jones, 302 Mich App at 449 (K.F. KELLY, J., dissenting).



                                             16
violation causing death. This legislative enactment does not run afoul of the separation

of powers because, consistent with Cornell, MCL 257.626(5) is a substantive rule of law

and is thus within the domain of the Legislature.45 Because defendant was statutorily

precluded from having the jury consider the lesser offense of moving violation causing

death, we therefore hold that the circuit court erred by granting the requested instruction.

                                    V. CONCLUSION

       We conclude that the circuit court erred by granting defendant’s request that the

jury be instructed on moving violation causing death. Defendant was charged with the

greater offense of reckless driving causing death and, as such, was precluded under MCL

257.626(5) from receiving an instruction on the misdemeanor lesser offense of moving

violation causing death. We therefore reverse the judgment of the Court of Appeals and

remand this case to the circuit court for further proceedings, including entry of an order

vacating its ruling granting defendant’s request to instruct the jury on the misdemeanor

lesser offense of moving violation causing death.
                                                         Mary Beth Kelly
                                                         Robert P. Young, Jr.
                                                         Stephen J. Markman
                                                         Brian K. Zahra
                                                         Bridget M. McCormack

45
   Although the defendant in this case challenges the propriety of MCL 257.626(5), the
limitation on the lesser offense limits prosecutorial discretion as well: the Legislature
chose, when enacting MCL 257.626(5), to require a prosecutor who charges a defendant
with reckless driving causing death to pursue an all-or-nothing strategy. That is, if the
prosecutor has a reasonable, but marginal case that the defendant acted “in willful or
wanton disregard for the safety of persons or property,” the prosecutor cannot argue in
the alternative that the jury must at least convict the defendant on the moving violation
causing death offense to achieve some conviction. We respect this policy decision of the
Legislature.



                                             17
                               STATE OF MICHIGAN

                                        SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

                 Plaintiff-Appellant,

v                                                               No. 147735

THABO JONES,

                 Defendant-Appellee.


VIVIANO, J. (concurring in the result).
          I concur in the result because I agree with the majority that we should reverse the

judgment of the Court of Appeals and remand this case to the Wayne Circuit Court to

enter an order vacating its ruling granting defendant’s request to instruct the jury on the

offense of moving violation causing death. However, I write separately because I believe

that the same result can be reached by deciding this case on a nonconstitutional ground.

          This Court’s order granting leave to appeal in this case asked the parties to address

constitutional issues regarding the separation of powers and the right to a jury trial.1

However, we also asked the parties to address “whether MCL 257.601d [moving

violation causing death] is a necessarily included lesser offense of MCL 257.626(4)

[reckless driving causing death].”2 The majority opinion declines to address that issue

because both parties conceded that moving violation causing death is a necessarily

1
    People v Jones, 495 Mich 905 (2014).
2
    Id.
included lesser offense of reckless driving causing death.       Despite this concession,

however, I would decline to reach the constitutional issues3 and instead decide, as a

matter of law, that moving violation causing death is not a necessarily included lesser

offense of reckless driving causing death.4

       In determining whether an offense is a necessarily included lesser offense of a

greater offense, the issue requires the Court to determine whether the greater offense at

issue always includes the lesser offense at issue.5 In other words, the question is whether

all of the elements of moving violation causing death are subsumed into reckless driving




3
  Madugula v Taub, 496 Mich 685, 696; 853 NW2d 75 (2014), quoting Lisee v Secretary,
388 Mich 32, 40; 199 NW2d 188 (1972), quoting People v Quider, 172 Mich 280, 288-
289; 137 NW 546 (1912) (“ ‘[I]t is well settled in Michigan that “[c]onstitutional
questions will not be passed upon when other decisive questions are raised by the record
which dispose of the case.” ’ ”); see also Lichtman v Detroit, 75 Mich App 731, 734-735;
255 NW2d 731 (1977), citing Neese v Southern R Co, 350 US 77, 78; 76 S Ct 131; 100 L
Ed 60 (1955) (“A decision should have been made on nonconstitutional grounds, even
though not raised by the parties.”).
4
   People v Wilder, 485 Mich 35, 40; 780 NW2d 265 (2010) (stating that the
determination whether an offense is a lesser included offense is a question of law subject
to review de novo).
5
  See People v Nickens, 470 Mich 622, 629-630; 685 NW2d 657 (2004); see also People
v Walls, 474 Mich 1142 (2006) (CORRIGAN, J., concurring), citing People v Cornell, 466
Mich 335, 357, 358 n 13; 646 NW2d 127 (2002) and People v Mendoza, 468 Mich 527,
532 n 3; 664 NW2d 685 (2003) (stating that “the court must first determine whether an
offense is necessarily included,” which is resolved solely by a comparison of the
elements of the offenses, and that “once it is established that the offense is necessarily
included, the court must then determine whether an instruction is warranted on the facts
of a particular case, by examining whether ‘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’ ”).



                                              2
causing death such that it is impossible for a person to commit reckless driving causing

death without first committing moving violation causing death.6

         The reckless driving causing death statute applies to “a person who operates a

vehicle.”7 However, moving violation causing death applies to “[a] person who commits

a moving violation,” which requires “an act or omission prohibited under this act or a

local ordinance substantially corresponding to this act that involves the operation of a

motor vehicle[.]”8 This may seem like a distinction without a difference upon first

glance. But I believe the Legislature’s use of the words “motor vehicle” and “vehicle” is

significant given that the Michigan Vehicle Code has assigned distinct definitions to the

two terms.

         MCL 257.79 defines “vehicle,” in pertinent part, as follows:

                 “Vehicle” means every device in, upon, or by which any person or
         property is or may be transported or drawn upon a highway, except devices
         exclusively moved by human power or used exclusively upon stationary
         rails or tracks . . . .

Whereas MCL 257.33 defines “motor vehicle” as follows:

               “Motor vehicle” means every vehicle that is self-propelled, but for
         purposes of chapter 4 of this act[9] motor vehicle does not include industrial

6
  See Nickens, 470 Mich at 630; Cornell, 466 Mich at 345, 361 (stating that to be a
necessarily included lesser offense “the lesser offense must be such that it is impossible
to commit the greater without first having committed the lesser”) (quotation marks and
citation omitted).
7
    MCL 257.626.
8
    MCL 257.601d.
9
    Chapter 4 of the Michigan Vehicle Code pertains to civil liability.



                                               3
         equipment such as a forklift, a front-end loader, or other construction
         equipment that is not subject to registration under this act. Motor vehicle
         does not include an electric patrol vehicle being operated in compliance
         with the electric patrol vehicle act. Motor vehicle does not include an
         electric personal assistive mobility device. Motor vehicle does not include
         an electric carriage.

         Thus, by its terms, a “motor vehicle” is more narrowly defined as a “vehicle” with

the distinct feature of being self-propelled. Arguably, then, a person could operate10 a

“vehicle” in violation of the reckless driving causing death statute, but not violate the

moving violation causing death statute if the vehicle involved was not specifically a

“motor vehicle.” But this distinction raises the question—what types of vehicles could a

person operate in violation of the reckless driving causing death statute that are not motor

vehicles?

         According to my review of the Michigan Vehicle Code, a “vehicle” for purposes

of the reckless driving causing death statute could be a “person riding an animal,” “an

animal-drawn vehicle,”11 or an “electric carriage.”12 And while those devices are vehicles


10
  “Operate” or “operating” means, in pertinent part, “[b]eing in actual physical control of
a vehicle.” MCL 257.35a(a).
11
     MCL 257.604 states:

                A person riding an animal or driving an animal-drawn vehicle upon
         a roadway shall be granted all of the rights and shall be subject to all the
         duties, criminal penalties, and civil sanctions applicable to the driver of a
         vehicle by this chapter, except those provisions of this chapter which by
         their very nature may not have application.
12
  The Michigan Vehicle Code defines “electric carriage” as “a horse-drawn carriage that
has been retrofitted to be propelled by an electric motor instead of by a horse and that is
used to provide taxi service.” MCL 257.13d. And, as quoted above, the definition of
“motor vehicle” specifically states, “Motor vehicle does not include an electric carriage.”



                                              4
under the act, they are obviously not “motor vehicles.” Thus, while it could be possible

for a person to be charged with reckless driving causing death for recklessly driving a

horse-drawn carriage, it would be impossible for that person to be found guilty of moving

violation causing death because a horse-drawn carriage is not a motor vehicle. In other

words, the offense of moving violation causing death is not a necessarily included lesser

offense of reckless driving causing death because it is possible to commit reckless driving

causing death without first committing a moving violation causing death—if you are

operating a “vehicle” that is not also a “motor vehicle.”13

         I am fully aware that the circumstances under which a person may commit

reckless driving causing death using such a non-motor vehicle will be rare, but the rarity

of that potential occurrence does not change the legal analysis. An offense is either

always considered a necessarily included lesser offense or it is not.14 And applying

principles of statutory interpretation,15 I believe the Legislature’s use of different

13
     Nickens, 470 Mich at 628, 630; Cornell, 466 Mich at 345, 361.
14
   See Nickens, 470 Mich at 630 (“In every instance where an actor commits CSC-I
involving personal injury and uses force or coercion to accomplish sexual penetration, the
actor first commits an attempted-battery assault with the intent to commit CSC involving
sexual penetration.”) (emphasis added); People v Veling, 443 Mich 23, 36; 504 NW2d
456 (1993) (“[I]f the lesser offense is one that is necessarily included in the charged
offense, the evidence always supports the lesser offense if it supports the greater.”)
(emphasis added).
15
   In re MKK, 286 Mich App 546, 556-557; 781 NW2d 132 (2009) (stating that our
Legislature is presumed to be aware of the consequences of its use of statutory language
as well as its effect on existing laws); see also Carson City Hosp v Dep’t of Community
Health, 253 Mich App 444, 447-448; 656 NW2d 366 (2002) (“When the Legislature
enacts laws, it is presumed to know the rules of statutory construction and therefore its
use or omission of language is generally presumed to be intentional.”).



                                             5
terminology to describe the elements of each offense dictates the conclusion that the

offense of moving violation causing death is not a necessarily included lesser offense of

reckless driving causing death because all of the elements of moving violation causing

death are not subsumed into reckless driving causing death such that it is impossible for a

person to commit reckless driving causing death without first committing moving

violation causing death. Accordingly, because it would instead be a cognate lesser

offense,16 defendant was not entitled to an instruction on the offense of moving violation

causing death irrespective of the Legislature’s statutory prohibition.17 Therefore, I would

dispose of the case on this nonconstitutional ground.18


                                                          David F. Viviano




16
  Cornell, 466 Mich at 345, 355 (stating that a cognate lesser offense is one that is of the
same class or category and shares elements with the charged offense, but may contain
elements not found in the higher offense).
17
     MCL 257.626(5).
18
     MCL 768.32(1); Cornell, 466 Mich at 359.



                                             6
                             STATE OF MICHIGAN

                                     SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellant,

v                                                            No. 147735

THABO JONES,

              Defendant-Appellee.


CAVANAGH, J. (dissenting).
       The majority holds that jury instructions on lesser included offenses “concern a

matter of substantive law,” and, therefore, the Legislature’s decision to bar instruction on

the lesser included offense of moving violation causing death, MCL 257.601d(1), within

MCL 257.626(5), is a permissible exercise of legislative power and does not offend the

separation-of-powers doctrine. I continue to disagree with the majority’s test regarding

the difference between substantive and procedural law, and I disagree that lesser-

included-offense instructions are a matter of substantive law. See McDougall v Schanz,

461 Mich 15, 60-61; 597 NW2d 148 (1999) (CAVANAGH, J., dissenting). Further, I

believe that MCL 257.626(5) deprives a defendant of the ability to present his theory of

the case and disadvantages a defendant who chooses to exercise his right to a jury trial in

violation of the Sixth Amendment. Therefore, I must respectfully dissent.

                             I. SEPARATION OF POWERS

       The majority’s separation-of-powers test was established in McDougall, where it

held that a law only impinges on the Court’s power to govern “practice and procedure”
under Const 1963, art 6, § 5, when “no clear legislative policy consideration other than

judicial dispatch of litigation can be identified.” McDougall, 461 Mich at 30, quoting

Kirby v Larson, 400 Mich 585, 598; 256 NW2d 400 (1977) (opinion of WILLIAMS, J.)

(quotation marks omitted). In doing so, the McDougall majority overruled Perin v

Peuler, (On Rehearing), 373 Mich 531; 130 NW2d 4 (1964), criticizing Perin’s rule as

overly broad.

       However, I continue to believe that Perin properly applied Const 1963, art 6, § 5.

As I explained in McDougall, 461 Mich at 41-42 (CAVANAGH, J., dissenting), the

separation-of-powers doctrine can be traced to the first Michigan Constitution, “which

even predated our statehood.” We have long held that when a court rule and a statute

conflict, the court rule shall control absent the Court’s acquiescence. See e.g., Byrne v

Gypsum Plaster & Stucco Co, 141 Mich 62, 63-34; 104 NW 410 (1905); Berman v

Psiharis, 325 Mich 528, 533; 39 NW2d 58 (1949); In re Koss Estate, 340 Mich 185, 189-

190; 65 NW2d 316 (1954). As Perin correctly explained, “[t]he function of enacting and

amending judicial rules of practice and procedure has been committed exclusively to this

Court[,] a function with which the legislature may not meddle or interfere save as the

Court may acquiesce and adopt for retention at judicial will.” Perin, 373 Mich at 541

(citations omitted). Thus, unless this Court acquiesces to the Legislature’s decisions to

regulate court procedures, this Court’s power to regulate its own matters will always

trump any legislatively prescribed rules.

       Supplementing Perin’s analysis, when one considers the definitions of

“substantive law” and “procedural law,” it becomes clear that lesser-included-offense

instructions are procedural rather than substantive law, and, therefore, within the Court’s


                                            2
constitutionally prescribed powers under art 6, § 5. “Substantive law” is defined as “[t]he

part of law that creates, defines, and regulates the rights, duties, and powers of parties,”

Black’s Law Dictionary (8th ed); whereas, “procedural law” is defined as “[t]he rules that

prescribe the steps for having a right or duty judicially enforced, as opposed to the law

that defines the specific rights and duties themselves.” Id. Indeed, our caselaw supports

these distinctions between substantive and procedural law. For example, Phelps v Wayne

Circuit Judge, 225 Mich 514, 517-518; 196 NW 195 (1923), determined a statute to be

procedural and explained that “[t]he contingent right given by the statute is not

substantive law, but a rule of procedure relating only to the remedy. Its purpose and

character class it as adjective law, which deals with methods for maintenance and

enforcement of primary rights or to redress their invasion.” Similarly, Chandler Motor

Sales Co v Dertien, 229 Mich 630, 634; 201 NW 954 (1925), explained that a procedural

law “is one of practice. It relates to the method of applying a remedy and not to the

substantive law (citation and quotation marks omitted).”

       Lesser-included-offense instructions determine the method by which the

substantive law—i.e. crimes—are applied in a criminal case. They do not, however,

determine what is or is not a crime, and they do not define the rights and duties of

members of society. Instead, they help prescribe the steps that a jury follows in reaching

its verdict by informing the jury of their options under the existing substantive law. In

other words, lesser-included-offense instructions inform the jury of the applicable crimes

the jury may consider. Another way to approach the issue is to consider a jury’s verdict

the “remedy” in a criminal trial. Just like the outcome of a civil case is a remedy, the

outcome in a criminal case is the verdict. See Chandler Motor Sales Co, 229 Mich at


                                             3
634. Stated another way, lesser-included-offense instructions consider the methods for

redressing a criminal defendant’s potential “invasion,” see Phelps, 225 Mich at 517-518,

by prescribing the steps for determining a criminal sentence. Likewise, lesser-included-

offense instructions do not determine what remedy is available, or whether a remedy is

available, but instead inform the method of choosing and applying the “remedy” by

providing varied options to the jury. And while the bar in MCL 257.626(5) on jury

instruction in this case could arguably define the substantive rights of a defendant, the

rights being defined are those within the context of a trial: they are the procedural rights

a criminal defendant is afforded, and not the rights and obligations of the defendant as it

relates to his membership in society.

       Having established that lesser-included-offense instructions are indeed procedural,

and, thus, within the purview of the court, the Legislature’s action is only impermissible

if the law conflicts with a court rule.          I believe that there is such a conflict.

MCR 2.512(B)(2) requires that the court “shall instruct the jury on the applicable law, the

issues presented by the case, and, if a party requests as provided in [another subrule], that

party’s theory of the case.” In my view, MCR 2.512(B)(2) directs that the court instruct

the jury regarding lesser included offenses because lesser included offenses for which a

defendant is potentially culpable is part of the “applicable law.” In addition, as discussed

later in this opinion, jury instructions, including lesser-included-offense instructions, are

integral to a defendant’s ability to present his theory of the case. Therefore, in my mind,

MCL 257.626(5) irreconcilably conflicts with MCR 2.512(B)(2). The court rule must

control unless this Court acquiesces or adopts the statute’s rule—we have done neither.




                                             4
Therefore, MCL 257.626(5) impermissibly infringes this Court’s sole authority to adopt

rules and procedures and thus violates the separation-of-powers doctrine.

       To the contrary, the majority holds that lesser-included-offense instructions are a

matter of substantive law and, thus, the Legislature’s regulation of such instructions does

not offend the separation-of-powers doctrine. However, the majority merely cites a

single statement in People v Cornell, 466 Mich 335, 353; 646 NW2d 127 (2002), that

“[d]etermining what charges a jury may consider . . . concerns a matter of substantive

law.” Yet Cornell provided little analysis to support this bold pronouncement, simply

citing the following passage from People v Piasecki, 333 Mich 122, 143; 52 NW2d 626

(1952):

       The measure of control exercised in connection with the prevention and
       detection of crime and prosecution and punishment of criminals is set forth
       in the statutes of the State pertaining thereto, particularly the penal code and
       the code of criminal procedure. The powers of the courts with reference to
       such matters are derived from the statutes.

When read in context, it is clear that Piasecki defined jurisdictional powers of the Court

as granted by the Legislature. Importantly, Piasecki did not involve a situation in which

the Legislature attempted to intrude on powers constitutionally granted to the courts

under Const 1963, art 6, § 5. Thus, Cornell’s citation to Piasecki to support its assertion

was incorrect, as the following passage from Piasecki makes clear:

              Appellant’s argument does not rest on the theory of an improper
       usurpation of judicial authority but on the claim that if the jurisdiction of
       the court in the criminal case has attached there may be no interference with
       such jurisdiction.

                                           * * *




                                              5
              We are not dealing with a situation in which the legislature has
       undertaken to interfere with the exercise of strictly judicial prerogatives in
       the trial of cases . . . . Such decisions are not in point in the instant
       controversy. We are concerned here with the power of the legislature to
       create substantive rights and to provide for the protection thereof in matters
       that are clearly within the scope of the police power of the State. [Id. at
       147-148 (emphasis added) (citations omitted).]

It is clear that Piasecki’s discussion regarding the court’s power was describing those

jurisdictional powers granted to the courts by the Legislature, not those powers that are

inherent in the courts by virtue of Michigan’s Constitution.         Thus, in my opinion,

Cornell’s fleeting statement was incorrect, and the majority’s reliance on it is likewise

improper.

       Moreover, in McDougall and subsequent cases, including this one, the majority

continues to apply an overbroad test that risks making this Court’s ability to govern

judicial matters all but an illusion. As previously stated, the majority considers whether

“no clear legislative policy consideration other than judicial dispatch of litigation can be

identified.”   McDougall, 461 Mich at 30 (citation and quotation marks omitted).

However, the pitfalls of the majority’s test become clear when one considers that a policy

reason can be found for nearly any legislative enactment affecting the procedures of the

courts. Under the majority’s test, arguably the Legislature could amend the voir dire

process to attempt to ensure better jury selections, or even attempt to dictate the structure

of a trial for the purposes of efficiency. I am hesitant to believe that the Legislature acts

purely arbitrarily, without policy considerations in mind. In other words, irrespective of

whether the Legislature acts within the confines of its power, every law passed by the

Legislature, whether constitutional or not, is the result of a policy decision. It would

seem, therefore, that unless the Legislature acts arbitrarily, with no policy goal in mind,


                                             6
every law involves a “legislative policy consideration.” Therefore, I believe that the mere

existence of legislative policy goals is not sufficient to avoid separation-of-powers

concerns.

                             II. RIGHT TO A JURY TRIAL

       In addition to violating the separation-of-powers doctrine, MCL 257.626(5)

gravely implicates the constitutional right to a trial by jury in two ways. First, more

broadly, lesser-included-offense instructions ensure that a jury makes an informed

decision and a defendant is able to present the theory of his case.                 Second,

MCL 257.626(5) punishes a defendant for exercising his right to a trial by jury.

       First, the Sixth Amendment requires that the state afford a defendant a jury trial at

the defendant’s request in “serious criminal cases.” Duncan v Louisiana, 391 US 145,

156; 88 S Ct 1444; 20 L Ed 2d 491 (1986). See, also, People v Duncan, 462 Mich 47,

53; 610 NW2d 551 (2000). Also, the court’s failure to instruct a jury on the elements of

an offense “deprive[s] defendants of ‘basic protections’ without which ‘a criminal trial

cannot reliably serve its function as a vehicle for determination of guilt or innocence . . .

and no criminal punishment may be regarded as fundamentally fair.’ ” Neder v United

States, 527 US 1, 8-9; 119 S Ct 1827; 144 L Ed 2d 35 (1999), quoting Rose v Clark, 478

US 570, 577-578; 106 S Ct 3101; 92 L Ed 2d 460 (1986). The court must inform the jury

of the law by which its verdict must be controlled; otherwise, the jury is deprived of a

tool essential to its decision-making process. See Duncan, 462 Mich at 52-53.

       As noted, we have held that the failure to instruct on an element of a crime

undermines the reliability of a verdict. Id. at 54. Similarly, the failure to instruct on a




                                             7
lesser included offense undermines the reliability of a jury’s verdict. When credible

evidence exists to support such an instruction, the failure to provide it denies the jury the

opportunity to consider the defendant’s theory of the case and deprives a defendant of his

right to a fair trial. See People v Rodriguez, 463 Mich 466, 474; 620 NW2d 13 (2000);

Cornell, 466 Mich at 375 (KELLY, J., dissenting). Indeed, instructions on lesser included

offenses mitigate “the risk that a defendant might otherwise be convicted of a crime more

serious than that which the jury believes he committed simply because the jury wishes to

avoid setting him free.” Vujosevic v Rafferty, 844 F2d 1023, 1027 (CA 3, 1988), citing

Keeble v United States, 412 US 205, 212, 213; 93 S Ct 1993; 36 L Ed 2d 844 (1973).

Therefore, these instructions are important to ensure that a defendant is only convicted of

the crime he actually committed.

       Because this Court has concluded that lesser-included-offense instructions are a

necessary part of ensuring reliable verdicts and, thus, protecting a defendant’s Sixth

Amendment right to a jury trial, why would we sanction a law as constitutional when it

curtails constitutional guarantees?        Notably, this Court would invalidate as

unconstitutional any law that sought to curtail a defendant’s right to an attorney under the

Fifth or Sixth Amendment. Similarly, the Court would invalidate any law that sought to

reduce the protections of the Fourth Amendment against search and seizure in order to

aid police. It must follow that any law which impinges on a defendant’s right to a jury

trial must, similarly, be found unconstitutional.      Therefore, in my mind, any law,

including MCL 257.626(5), that bars a jury from hearing and considering lesser included

offenses violates a criminal defendant’s Sixth Amendment right to a jury trial.




                                             8
       But the constitutional concerns with MCL 257.626(5) do not stop there.             In

addition to its impact on a jury’s ability to render informed decisions, it also

impermissibly punishes a defendant for exercising his right to a jury trial.

MCL 257.626(5) states, “In a prosecution under [reckless driving causing death], the jury

shall not be instructed regarding the crime of moving violation causing death.” Emphasis

added. MCL 257.626(5), by its plain language, only restricts a jury’s ability to be

instructed on the lesser included offense of moving violation causing death. However, it

is silent regarding bench trials and, thus, does not preclude the consideration of the lesser

included offense if the defendant chooses to forgo the right to a jury trial.1 The effect of

this statute is that a defendant who exercises his right to a jury trial is placed at a

disadvantage because the lesser included offense of moving violation causing death is not

available. This places defendants between a rock and a hard place as they are forced to


1
   The majority ignores its own textualist approach when it states, “To interpret
MCL 257.626(5) as precluding the lesser offense instruction in either a jury trial or bench
trial is . . . consistent with the general purposes of MCL 275.626(5).” However, this
approach ignores that “[w]hen construing a statute, the Court’s primary obligation is to
ascertain the legislative intent that may be reasonably inferred from the words expressed
in the statute. If the language of the statute is unambiguous, the Legislature is presumed
to have intended the meaning expressed.” GC Timmis & Co v Guardian Alarm Co, 468
Mich 416, 420; 662 NW2d 710 (2003) (citations and quotation marks omitted). The
language of MCL 257.626(5) is clear, and it only precludes the jury’s consideration of
lesser-included-offense instructions. Had the Legislature intended the meaning that the
majority gives MCL 257.626(5), it would have included language similar to that in
MCL 768.32(2), which states that “the jury, or judge in a trial without a jury, may find
the accused not guilty of the offense in the degree charged in the indictment but may find
the accused guilty of a degree of that offense inferior to that charged in the indictment
only if the lesser included offense is a major controlled substance offense.” Emphasis
added. Therefore, the Legislature knows how to preclude lesser included offense
considerations in both jury and bench trials, but chose not to do so in MCL 257.626(5).



                                             9
choose whether to exercise their constitutional right to a jury trial or to have considered

the lesser offense of moving violation causing death, a misdemeanor, instead of reckless

driving causing death, a 15-year felony. See MCL 257.601d(1), MCL 257.626(4).

       Further, MCL 763.3(1) allows a prosecutor, in effect, to preclude any

consideration of the lesser included offense of moving violation causing death.

MCL 763.3(1) states that, “In all criminal cases arising in the courts of this state the

defendant may, with the consent of the prosecutor and approval by the court, waive a

determination of the facts by a jury and elect to be tried before the court without a jury.”

Emphasis added. See, also, People v Kirby, 440 Mich 485, 487; 487 NW2d 404 (1992).

Therefore, a defendant may not elect a bench trial without the prosecutor and the court’s

consent. This grants the prosecutor a significant strategic advantage to preclude the

consideration of a charge that, as has been explained, is necessary to a defendant’s ability

to present his theory of his case.

       “The right [to a jury trial] includes, of course, as its most important element, the

right to have the jury, rather than the judge, reach the requisite finding of ‘guilty.’ ”

Sullivan v Louisiana, 508 US 275, 277; 113 S Ct 2078; 124 L Ed 2d 182 (1993). “What

the factfinder must determine to return a verdict of guilty is prescribed by the Due

Process Clause. The prosecution bears the burden of proving all elements of the offense

and must persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to

establish each of those elements.” Id. at 277-278 (citations omitted). The ultimate effect

of MCL 257.626(5) and MCL 763.3(1) is that a defendant may never be able to have the

lesser included offense of moving violation causing death considered in a criminal trial.

The result is a chilling effect on a defendant’s constitutional right to trial by jury. In my


                                             10
view, MCL 257.626(5) violates a defendant’s right to jury trial and is, therefore,

unconstitutional.

                                   III. CONCLUSION

       Because I believe that jury instructions are procedural rather than substantive, and

because   MCL       257.626(5)   conflicts   with   MCR   2.512(B)(2),   I   believe   that

MCL 257.626(5) is an unconstitutional violation of the separation-of-powers doctrine.

Further, because MCL 257.626(5) limits a defendant’s ability to present the theory of his

case to a jury and effectively punishes a defendant for exercising his Sixth Amendment

right to a trial by jury, MCL 257.626(5) is also unconstitutional under the Sixth

Amendment. Accordingly, I would affirm the Court of Appeals holding that the circuit

court properly granted defendant’s request that the jury be instructed on the lesser

included offense of moving violation causing death.


                                                        Michael F. Cavanagh




                                             11
