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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v JOHN ALBERT GILLIS, Defendant-Appellee. _______________________________ BEFORE THE ENTIRE BENCH MARKMAN, J.

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED APRIL 5, 2006

No. 127194

We granted leave to appeal to consider whether our state's first-degree murder statute permits a felony-murder conviction "in the perpetration of" a firstor second-degree home invasion in which the homicide occurs several miles away from the dwelling and several minutes after defendant departed from the dwelling. Following a jury trial, defendant was convicted of two counts of first degree felony murder, MCL 750.316(1)(b), with home invasion in the first degree, MCL 750.110a, as the predicate felony. Defendant appealed the convictions, asserting that he was no longer "in the perpetration" of home invasion at the time of the automobile collision that killed the victims. The Court of Appeals

concluded that the accident was not "part of the continuous transaction of or immediately connected to the home invasion[,]" and, therefore, vacated the convictions and remanded for a new trial on the charges of second-degree murder. People v Gillis, unpublished opinion per curiam of the Court of Appeals, issued August 17, 2004 (Docket No. 245012), slip op at 3. We conclude that

"perpetration" encompasses acts by a defendant that occur outside the definitional elements of the predicate felony and includes acts that occur during the unbroken chain of events surrounding that felony. Because defendant at the time of the collision was attempting to escape detection after having been identified during the home invasion, a reasonable juror could conclude that he was still "in the perpetration of" the home invasion. We also conclude that the trial court did not err in failing to instruct on involuntary manslaughter, because no rational view of the evidence could support a finding that defendant acted in a grossly negligent manner or had an intent to injure without malice. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to that Court for consideration of defendant's other issues. I. FACTS AND PROCEDURAL HISTORY Just before 2:00 p.m. on May 24, 2001, Steven Albright observed a vehicle pull into his driveway, and then heard a noise in his garage. Upon investigating, he saw defendant standing in the doorway between the garage and the sunroom. When Albright confronted defendant, defendant closed the door and abruptly left the premises. Albright went back into the house, retrieved a handgun from his
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bedroom, and sought to confront defendant. As he went out of the front door, he observed defendant driving away in a small white car that he believed to be a Dodge Shadow. Albright then called 911, describing both defendant and the vehicle. After driving his own vehicle around the block for approximately five minutes in an unsuccessful attempt to locate defendant's vehicle, he returned home and called 911 a second time, adding that he had observed a large patch of gray primer on defendant's vehicle. At 1:51 p.m., Trooper Steven Kramer was driving west on I-94, when he received a "be on the lookout" (BOL) call for a vehicle involved in a home invasion. Trooper Kramer testified that "a couple minutes before 2:00 o'clock" he observed defendant's vehicle, which matched the BOL description, traveling east on I-94. When Kramer first observed the vehicle, it was approximately ten miles from Albright's home. Kramer also testified that it was "a little bit hazy out" when he observed the vehicle. Kramer turned around, pulled up next to

defendant's vehicle, and confirmed that both the vehicle and the driver matched the description provided in the BOL. Kramer activated his vehicle's emergency lights and attempted a traffic stop. Defendant pulled to the shoulder and slowed down to approximately 30 miles per hour, but failed to stop. After driving on the shoulder for about one mile, defendant suddenly accelerated and took an exit off the interstate. After driving on an overpass, defendant quickly reentered I-94, and began driving east in

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the westbound lanes.1

Kramer testified that he gave chase, hoping that his

emergency lights would alert oncoming traffic to the presence of defendant's vehicle. Defendant stayed on the shoulder of what would be the far left lane for the oncoming traffic, traveling at around 60 to 70 miles per hour.2 Still driving the wrong way on I-94, he then entered the I-69 eastbound entrance ramp to westbound I-94. Defendant began driving westward in the eastbound lanes of I 69. After driving the wrong way on I-69 for approximately one mile, defendant came upon a curve in the road which had guardrails on both sides and no shoulder. At this point, a vehicle occupied by Nicholas and Gayle Ackerman attempted to pass the vehicles slowing down in front of it by pulling into the left lane. Defendant's vehicle and the Ackermans' vehicle collided almost directly head on. Nicholas and Gayle Ackerman were killed instantly.3 Trooper Kramer reported the accident at 2:09 p.m., 18 minutes from the time of the BOL call and approximately ten minutes from the time Kramer initially spotted defendant's vehicle. Defendant was prosecuted for two counts of first-degree felony murder, with the predicate felony of home invasion in the first degree. Defendant moved

Trooper Kramer testified that the exit ramp from westbound I-94 was clearly marked with "Do Not Enter" and "Wrong Way" signs. Kramer testified that defendant "appeared not [to be] generally interfering with traffic or not trying to interfere with traffic other than the fact that he was going the wrong way on the road." Defendant suffered a closed-head injury and had amnesia regarding the events of May 21, 2001.
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to quash the information on the felony-murder charges, arguing that the crime of home invasion was complete when defendant departed from Albright's home and eluded Albright's pursuit. The trial court denied the motion, holding that the home invasion and the accident were "continuous, uninterrupted by temporary safety action that was taken by this defendant." The trial court also denied

defendant's motion for a directed verdict of acquittal, holding that the prosecutor had presented sufficient evidence to allow a reasonable juror to find defendant guilty beyond a reasonable doubt. Following a jury trial, defendant was convicted of two counts of felony murder and sentenced to life in prison without the possibility of parole. Defendant appealed, contending that the Ackermans' deaths did not occur during the "perpetration or attempt to perpetrate" the home invasion. In a split decision, the Court of Appeals majority applied People v Thew, 201 Mich App 78, 85-86; 506 NW2d 547 (1993), which held that, to convict a defendant of felony murder, the murder must be "`committed as a part of a continuous transaction with, or [must be] otherwise "immediately connected" with[] the underlying felony.'" (Citation omitted.) The Court of Appeals majority concluded that

"defendant had already escaped from the scene of the home invasion" and, therefore, that the Ackermans' deaths were not "part of the continuous transaction of or immediately connected to the home invasion." Gillis, supra, slip op at 3. Judge Meter, who concurred in part and dissented in part, also applied Thew, but concluded that because defendant was "engaged in the flight only minutes after
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committing the home invasion," a rational jury could reasonably conclude that "defendant committed the murders `"while attempting to escape from or prevent detection of the felony . . . [and] as part of a continuous transaction with . . . the . . . felony."'" Id., slip op at 2 (Meter, J., concurring in part and dissenting in part), quoting Thew, supra at 85-86, quoting People v Smith, 55 Mich App 184, 189; 222 NW2d 172 (1974). The majority also concluded that the trial court erred in denying defendant's request for an instruction on involuntary manslaughter, that "[d]efendant should properly have been charged with fleeing and eluding and second-degree murder," and that the matter must be remanded for a new trial on those charges. Id., slip op at 4. This Court granted the prosecutor's application for leave to appeal. 471 Mich 958 (2005). II. STANDARD OF REVIEW The first issue in this case concerns whether the trial court erred in denying defendant's motion to quash under the felony-murder statute, MCL 750.316(1)(b). The proper meaning of a statute constitutes a question of law that this Court reviews de novo. People v Law, 459 Mich 419, 423; 591 NW2d 20 (1999). While defendant argues that the trial court committed error by failing to quash the information, where a defendant has received a fair trial, appellate review is limited to the trial court's denial of the defendant's motion for directed verdict. People v Hall, 435 Mich 599, 601-603; 460 NW2d 520 (1990). In reviewing the denial of a motion for a directed verdict of acquittal, this Court reviews the evidence in a light most favorable to the prosecution in order to "determine whether a rational trier of
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fact could have found that the essential elements of the crime were proved beyond a reasonable doubt." People v Riley (After Remand), 468 Mich 135, 139-140; 659 NW2d 611 (2003). The other issue concerns whether the trial court erred in denying defendant's request for an instruction on involuntary manslaughter. "[J]ury

instructions that involve questions of law are also reviewed de novo." People v Schaefer, 473 Mich 418, 427; 703 NW2d 774 (2005). "But a trial court's

determination whether a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion." People v Hawthorne, 265 Mich App 47, 50; 692 NW2d 879 (2005). III. ANALYSIS A. DEFENDANT'S MOTION FOR A DIRECTED VERDICT OF ACQUITTAL MCL 750.316 states in pertinent part: (1) A person who commits any of the following is guilty of first degree murder and shall be punished by imprisonment for life: * * * (b) Murder committed in the perpetration of, or attempt to perpetrate . . . home invasion in the first or second degree . . . .[4] The use of the term "perpetrate" within the context of the crime of felony murder dates back nearly to statehood. Michigan's original murder statute, 1838 RS, part 4, title 1, ch 3,

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