A case that might be voluntary m

A case that might be voluntary manslaughter based upon the facts presented. Case reversed and remanded for a new trial.

People v. Yeager, 2023 Mich. LEXIS 1130 (2023).

Opinion by the Supreme Court of Michigan

In this case, we consider whether defendant was denied the effective assistance of counsel by trial counsel's failure to request a voluntary manslaughter instruction at defendant's jury trial for the murder of her boyfriend. While we agree with the Court of Appeals that trial counsel's representation fell below an objective standard of reasonableness, we disagree with the Court of Appeals as to prejudice and instead conclude that there is a reasonable probability that this error affected the outcome of defendant's trial. For that reason, we reverse the judgment of the Court of Appeals and remand to the trial court for proceedings [*4] consistent with this opinion.

On August 27, 2017, defendant, Menayetta Yeager, and her boyfriend of approximately one year, Jonte Brooks, were seated in her minivan when defendant told Brooks that she wanted to break up. This set off a series of volatile events. Brooks, who had exhibited violent tendencies previously in the relationship, punched defendant and hit her in the face with his gun, something defendant testified he regularly carried. Brooks pulled defendant out of the vehicle by her hair and continued to hit her. Brooks then got into the driver's seat of defendant's minivan and used it to chase after her, attempting to run her over multiple times before eventually driving away in the van. Defendant called the police throughout this encounter but did not feel she had a safe place to wait for officers to arrive.

A neighbor, Labarren Borom, witnessed Brooks driving across lawns in an effort to run defendant down. After Brooks had driven away, Borom approached defendant to ask if she was okay and agreed to take defendant in his truck so defendant could follow Brooks and retrieve her van. Defendant called Brooks on his cellphone, and Brooks assured her that he would leave the van at a nearby gas station. However, Brooks never arrived at the designated gas station, and as defendant continued to demand the return of her van over the phone, Brooks repeatedly threatened to kill both defendant and Borom. Defendant and Borom ultimately pulled into a different gas station, and Brooks pulled in behind them. Brooks and defendant began to argue, and defendant got out of Borom's truck.

Defendant testified at trial that her intent was to run away from Brooks upon getting out of the truck and that Borom handed her a gun as she debarked. She then testified that she shot at Brooks two or three times out of fear. Borom's recollection of the incident was that defendant got out of his truck during her argument with Brooks, pulled out a gun, and fired multiple shots, with Brooks pulling away in the van while defendant was still shooting. Borom recalled hearing five or six shots; a gas station employee remembered hearing about 10 shots. Defendant returned to Borom's vehicle, hysterical and crying, and Borom drove her home. Police officers dispatched to the scene of the shooting found Brooks lying unresponsive in the van, crashed into a wall about five blocks away from the gas station, with a bullet wound to the chest. The police retrieved 17 shell casings from the gas station. Brooks was alive when the police arrived on the scene, but he later died at the hospital. His death was ruled a homicide. Defendant turned herself in to the police the following day.

Defendant was charged in the Wayne Circuit Court with first-degree murder, MCL 750.316(1)(a), and carrying a firearm during the commission of a felony (felony-firearm), MCL 750.227b. At trial, the jury was instructed on first-and second-degree murder and convicted defendant as charged. She was sentenced to life without parole for the murder conviction, which was to be served consecutively to the mandatory two-year felony-firearm sentence.

On appeal, the Court of Appeals remanded the case to the trial court for a Ginther1 hearing to determine whether defendant had been denied the effective assistance of counsel, limited to the question of whether trial counsel's failure to request a jury instruction on voluntary manslaughter as a lesser included offense to murder constituted ineffective assistance. People v Yeager, unpublished order of the Court of Appeals, entered November 9, 2020 (Docket No. 346074).

At [*7] the Ginther hearing, trial counsel testified that he had not requested a voluntary manslaughter instruction because he believed it to be mutually exclusive of the self-defense theory he presented at trial. The trial court concluded that, had trial counsel requested a voluntary manslaughter instruction, a reasonable juror could have found that defendant was guilty of voluntary manslaughter rather than first-degree murder. Because the trial court found that there was a reasonable likelihood that the trial outcome would have been different had trial counsel not erred by failing to ask for the voluntary manslaughter instruction, the trial court granted a new trial. The prosecution challenged this ruling, arguing that trial counsel had not been ineffective and that, in any case, defendant had not been prejudiced. The Court of Appeals reversed in an unpublished per curiam opinion. People v Yeager, unpublished per curiam opinion of the Court of Appeals, issued December 21, 2021 (Docket No. 346074), 2021 Mich. App. LEXIS 7198. Judge Beckering wrote separately, concurring in the result but opining that People v Raper, 222 Mich App 475; 563 NW2d 709 (1997), on which the majority relied, was wrongly decided. Yeager (Beckering, J., concurring), unpub op at 1, 4-7, 2021 Mich. App. LEXIS 7198. Defendant sought leave to appeal in this Court, and in lieu of granting leave, we ordered oral argument on the application. People v Yeager, 509 Mich 984; 973 N.W.2d 913 (2022).

HN1 Whether a defendant has received ineffective assistance of counsel is a mixed question of fact and constitutional law. People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011). "'A judge must first find the facts, then must decide whether those facts establish a violation of the defendant's constitutional right to the effective assistance of counsel.'" Id., quoting People v Grant, 470 Mich 477, 484; 684 NW2d 686 (2004). We review for clear error the trial court's factual findings, and "[w]e review de novo questions of constitutional law." Armstrong, 490 Mich at 289.

At trial, defendant's counsel presented a self-defense theory and did not request a voluntary manslaughter instruction, meaning that the jury was only instructed on the charges of first-and second-degree murder. Whether defendant is entitled to relief in this case turns on whether that decision constituted ineffective assistance of counsel. Criminal defendants are entitled to the assistance of counsel under both the Michigan and United States Constitutions. Const 1963, art 1, § 20; US Const, Am VI. This right guarantees the effective assistance of counsel. Strickland v Washington, 466 US 668, 686; 104 S Ct 2052; 80 L Ed 2d 674 (1984). In order to obtain a new trial because of ineffective assistance of counsel, "a defendant must show that [*9] (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's deficient performance, there is a reasonable probability that that outcome would have been different." People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" People v Ackley, 497 Mich 381, 389; 870 NW2d 858 (2015), quoting Strickland, 466 US at 694.

Generally, attorneys are given broad latitude to determine trial strategy, and there is a strong presumption that counsel's performance was born from sound strategy. Strickland, 466 US at 689-690. However, counsel's strategic decisions must be objectively reasonable. Trakhtenberg, 493 Mich at 52.

Defendant's position here is that trial counsel erred by failing to request a jury instruction on voluntary manslaughter. This Court has defined voluntary manslaughter as follows:

[I]f the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reason was disturbed, . . . then the law, out of indulgence to the frailty of human nature, . . . regards [*10] the offense as of a less heinous character than murder, and gives it the designation of manslaughter. [Maher v People, 10 Mich 212, 219 (1862).]

That is, for an act to be considered voluntary manslaughter, the defendant must kill in the heat of passion, the passion must be caused by adequate provocation, and there cannot be a lapse of time during which a reasonable person could control their passions. The provocation must be sufficient to cause the defendant to act out of passion rather than reason, but it also must be sufficient to cause a reasonable person to lose control, not just the specific defendant. People v Pouncey, 437 Mich 382, 389; 471 NW2d 346 (1991).

In People v Mendoza, 468 Mich 527, 536; 664 NW2d 685 (2003), this Court explained that manslaughter is a lesser included offense of murder. Both murder and voluntary manslaughter "require a death, caused by defendant, with either an intent to kill, an intent to commit great bodily harm, or an intent to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result." Id. at 540. The distinguishing element is malice, which in voluntary manslaughter is "negated by the presence of provocation and heat of passion." Id. Involuntary manslaughter, by contrast, contemplates a lesser degree of intent. Id. at 541. The Mendoza Court concluded that, because both voluntary and involuntary manslaughter are necessarily included lesser offenses and "inferior" to murder under MCL 768.32, "when a defendant is charged with murder, an instruction for voluntary and involuntary manslaughter must be given if supported by a rational view of the evidence." Id.

In assessing whether defendant received ineffective assistance of counsel, we first consider whether trial counsel's failure to request a voluntary manslaughter instruction was objectively unreasonable. Trial counsel's failure to request a jury instruction may constitute an unreasonably deficient level of performance. See People v Leffew, 508 Mich 625, 646; 975 NW2d 896 (2022) (holding that the defense attorneys' failure to request a defense-of-others instruction supporting their theory of the case was objectively unreasonable). We have held that a jury instruction on a necessarily included lesser offense is appropriate if "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." People v Cornell, 466 Mich 335, 357; 646 NW2d 127 (2002).

In this case, we agree with the lower courts that trial counsel's decision not to request an instruction on voluntary manslaughter was objectively unreasonable. Trial counsel's explanation for this omission at the Ginther hearing was that defendant's theory of the case was self-defense, and trial counsel "[did not] believe, in any way, [defendant] intended, as a manslaughter instruction would ask for, in any kind of way, voluntary or involuntary, to kill the deceased." In other words, trial counsel appears to have believed that arguing self-defense to a murder charge would render defendant's actions unintentional and that a manslaughter instruction would not be applicable because only manslaughter would require an intentional act. However, this reasoning is inconsistent or based on a misunderstanding of the law. Murder as mitigated by self-defense and voluntary manslaughter are not distinguished by the element of intent because both contemplate an intentional action. See People v Dupree, 486 Mich 693, 707; 788 NW2d 399 (2010) ("'A finding that a defendant acted in justifiable self-defense necessarily requires a finding that the defendant acted intentionally, but that the circumstances justified his actions.'"), quoting People v Heflin, 434 Mich 482, 503; 456 NW2d 10 (1990). Rather, the distinction between murder and voluntary manslaughter is the element of malice, which in voluntary manslaughter [*13] is "negated by the presence of provocation and heat of passion." Mendoza, 468 Mich at 540. Because trial counsel failed to appreciate the meaningful difference between the two charges, his explanation for why he failed to pursue a manslaughter instruction is legally incorrect.

Moreover, a review of the facts of this case demonstrates that the voluntary manslaughter instruction would have been supported by the evidence presented. The testimony presented at trial reflected that defendant's shooting of Brooks was the culmination of a series of events during which Brooks physically assaulted defendant, took her car and used it to attempt to run her over, and repeatedly threatened to kill defendant and Borom, the neighbor who assisted her. Defendant testified that she feared for her life. At the Ginther hearing, when asked about the moments leading up to the shooting, she explained, "I just remembered bein' scared. I don't remember details, like, walkin' towards him, or anything like that. And when I seen the video, I didn't even see myself, or remember shootin' as many times as they say I did." Borom also testified that defendant was hysterical and crying when she returned to his vehicle after the shooting. A jury could reasonably conclude that the combination of physical and verbal threats from Brooks throughout this unbroken chain of events stoked defendant's passions so that she acted out of heightened emotion rather than reason in shooting Brooks.

We do not find persuasive the argument that defendant specifically needed to act out of anger for a voluntary manslaughter instruction to be applicable. Our caselaw does not circumscribe the requisite emotional state for voluntary manslaughter in this fashion. See Maher, 10 Mich at 219 (referring to "influence of passion or in heat of blood"). Nor do our model jury instructions suggest any such requirement. Rather, the Michigan Model Criminal Jury Instruction regarding voluntary manslaughter as a lesser included offense provides:

(1) The crime of murder may be reduced to voluntary manslaughter if the defendant acted out of passion or anger brought about by adequate cause and before the defendant had a reasonable time to calm down. For manslaughter, the following two things must be present:

(2) First, when the defendant acted, [his / her] thinking must be disturbed by emotional excitement to the point that a reasonable person might have acted on impulse, without thinking [*15] twice, from passion instead of judgment. This emotional excitement must have been the result of something that would cause a reasonable person to act rashly or on impulse. The law does not say what things are enough to do this. That is for you to decide.

(3) Second, the killing itself must result from this emotional excitement. The defendant must have acted before a reasonable time had passed to calm down and return to reason. The law does not say how much time is needed. That is for you to decide. The test is whether a reasonable time passed under the circumstances of this case. [M Crim JI 16.9.]

While the model jury instruction specifically acknowledges anger as an emotional state that may serve to mitigate murder to voluntary manslaughter, the rest of the jury instruction makes clear that the defendant's thinking must have been disturbed by an undefined "emotional excitement." As Judge Beckering stated of the emotional series of events culminating in defendant's shooting of Brooks, "If ever there were a heat of passion case, this is it." Yeager (Beckering, J., concurring), unpub op at 1, 2021 Mich. App. LEXIS 7198.

Justice Zahra would hold that trial counsel's performance was not deficient, but the only rationale offered is trial counsel's Ginther hearing testimony that he believed defendant had reasonable time to calm down. Based on this, Justice Zahra concludes that whether the trial court would have given the voluntary manslaughter instruction is "speculative." This reasoning is puzzling. Trial counsel may well have believed defendant had a reasonable amount of time to calm down, but trial counsel's subjective feelings are not dispositive as to what a reasonable jury could conclude. Further, as reflected by his Ginther hearing testimony, trial counsel did not understand the relevant law—information that was not available to the trial court at the time of the trial. Justice Zahra proceeds to engage in speculation of his own, saying, "Had the trial court viewed the case similarly, it likely would have concluded that there was insufficient evidence to support a voluntary manslaughter instruction." Post at 3. But this thought experiment stands at odds with what we know the trial court thought about defendant's state of mind. In granting the motion for a new trial, the trial court said:

The Court finds as a fact, that, uhm, before the shooting, Ms. Yeager was emotionally excited.

Not only is Justice Zahra's argument speculative, it is directly contrary to the record.

Because a rational view of the evidence would support a voluntary manslaughter instruction, that instruction should have been given. Mendoza, 468 Mich at 541. However, an instruction was not requested and thus was not given. Because trial counsel's misunderstanding of the law led to the absence of a voluntary manslaughter instruction to which defendant was entitled, we conclude that trial counsel's performance fell below the objective standard of reasonableness required by Strickland.

Having determined that trial counsel's performance was constitutionally deficient, we turn to the second prong of the ineffective-assistance analysis: whether defendant was prejudiced by trial counsel's deficient performance. The trial court concluded that defendant had been prejudiced by trial counsel's performance here and was thus entitled to a new trial, but the Court of Appeals reversed this judgment and concluded that defendant could not establish prejudice because, under Raper, 222 Mich App 475, any error in failing to instruct the jury on voluntary manslaughter was harmless given that the jury rejected a verdict of second-degree murder in favor of a first-degree murder conviction. We disagree with the Court of Appeals' conclusion on this point and further hold that defendant was prejudiced by her trial counsel's deficient representation.

We first conclude that the Court of Appeals erred by determining that its decision in this case was mandated by the judgment in Raper. That case involved a defendant who was convicted of first-degree murder, carjacking, and felony-firearm. Id. at 476. The defendant confessed to shooting the victim and taking his automobile at the direction of a third individual. Id. at 477. Alongside other arguments not relevant to the case before us, the defendant argued that his trial counsel had been ineffective for failing to request jury instructions on the lesser included offenses of both voluntary and involuntary manslaughter. Id. at 483. The Raper Court disposed of this argument with little fanfare or analysis, stating:

In this case, defendant was charged with first-degree murder. The jury was Instructed on first-degree murder and second-degree murder, and found defendant guilty of first-degree murder. The jury's rejection of second-degree murder in favor of first-degree murder reflected an unwillingness to convict on a lesser included offense such as manslaughter. People v Zak, 184 Mich App 1, 16; 457 NW2d 59 (1990). [Raper, 222 Mich App at 483.]

The Court of Appeals here concluded that the trial outcome of the instant case was "identical to the situation in People v Raper[.]" Yeager (opinion of the Court), unpub op at 9, 2021 Mich. App. LEXIS 7198. Judge Beckering agreed that Raper controlled the outcome in the instant case but expressed concerns that the Court of Appeals' "holding in Raper inappropriately precludes relief to defendants for the failure to provide a voluntary manslaughter instruction in cases in which the jury chooses first-degree murder instead of second-degree murder." Yeager (Beckering, J., concurring), unpub op at 3, 2021 Mich. App. LEXIS 7198. We conclude that the Court of Appeals' reading of Raper misconstrues the existing caselaw regarding jury instructions on lesser offenses.

This Court has consistently held that whether the absence of an instruction on a lesser included offense is harmless depends on the facts and circumstances of the case at bar. In People v Beach, 429 Mich 450, 491-492; 418 NW2d 861 (1988), which involved whether a defendant who was convicted of conspiracy to commit armed robbery was entitled to have the jury instructed on the lesser included offense of conspiracy to commit larceny in a building, this Court set forth an explanation of the relevant law:

The existence of an intermediate charge that was rejected by the jury does not, of course, automatically result in an application of the [People v Ross, 73 Mich App 588; 252 NW2d 526 (1977)] analysis. For it to apply, the intermediate charge rejected by the jury would necessarily have to indicate a lack of likelihood that the jury would have adopted the lesser requested charge.

We note that our recent cases, which did not adopt or apply the harmless error analysis, are distinguishable. In People v Richardson, [409 Mich 126; 293 NW2d 332 (1980)], the Court declined to apply a harmless error analysis because the refusal to instruct was reasoned to foreclose the jury's option to convict the defendant consistently with his own testimony, evidence, and theory. Beach differs because the defense theory was alibi, and no evidence to make a theory of larceny essential to the defense was provided, that is, there was no specific denial of the use of force. There was only an alibi defense and an inference built on a possibility that the jury might disbelieve part of Turner's testimony.

In People v Rochowiak, [416 Mich 235; 330 NW2d 669 (1982)], the opinion of the Court offered qualifications regarding the finding of harmless error under such circumstances. Although we do not adopt the qualifications, we note that this case complies with the suggestions for finding harmless error.

As in Richardson, we do not hold that failure to give lesser offense instructions can never be harmless. The error may indeed be harmless in a case where it is clear that the jury was presented with a lesser offense or offenses consistent with the defendant's theory which was rejected, and made findings of fact, implicit in the verdict, which would preclude conviction of the charge upon which an instruction was refused, or where the differences between the various offenses concern factual elements, the existence of a weapon (armed or non-armed), the completion of the offense (attempt), the use of force (larceny or robbery) and not the state of mind of the defendant (murder, manslaughter, reckless use; assault with intent to murder, with intent to commit great bodily harm less than murder, felonious assault). [416 Mich 248-249. Emphasis added.]

Under Beach, then, there is no support for the notion that the existence of a rejected intermediate charge automatically renders harmless the failure to instruct on a lesser offense.3 Rather, a reviewing court must consider the specific circumstances of the case in concert with the relevant offenses and ask whether the distinctions between the particular charges suggest that a jury's rejection of an intermediate charge [*22] demonstrates that the jury would have been unlikely to select a lesser charge. The Rochowiak opinion cited in Beach noted that some distinctions between charges are implicit in the verdict, such as those that depend on factual findings, and in such cases, it can be definitively determined that the jury would not have opted for a requested lesser offense. In Beach, for example, the jury's decision to convict the defendant of conspiracy to commit armed robbery, rather than conspiracy to commit unarmed robbery, necessarily implied "a finding of a use of a weapon which indicates a greater use of force than would be the case in [the requested lesser offense of] unarmed robbery." Beach, 429 Mich at 492. However, such a conclusion is not implicit when the charges are distinguished by a legal question like the defendant's required state of mind that has not previously been placed before the jury. The question in this case, whether the jury's rejection of a second-degree murder intermediate charge in favor of a conviction of first-degree murder indicates a likelihood that the jury would not have opted to convict defendant of the lesser charge of voluntary manslaughter, requires us to consider the distinctions between these charges—distinctions centered, as explained further below, on defendant's state of mind.

The Raper Court did not cite Beach but instead relied on the Court of Appeals decision in Zak, 184 Mich App 1, which echoed this case-specific approach in reaching its conclusion that the defendant was not prejudiced by the trial court's refusal to give an instruction on manslaughter because "the failure to instruct on that requested lesser included offense is harmless if the jury's verdict reflects an unwillingness to have convicted on the offense for which instructions were not given." Id. at 16, citing Beach, 429 Mich at 491. We assume without deciding that Raper was, consistently with the rule of Beach, decided on the basis of that panel's review of the particular circumstances of that case and the jury instructions requested by the defendant. Indeed, there is no indication in Raper that the facts of the case implicated the legal distinctions between the murder charge of which the defendant was convicted and the voluntary and involuntary manslaughter instructions he sought, as the facts of this case do. The Court of Appeals here erred to the extent that it concluded that Raper created a bright-line rule under which, the absence of a voluntary manslaughter instruction is automatically considered harmless if the jury was instructed on both first-and second-degree murder and convicted the defendant of first-degree murder. We clarify that Beach's explanation of when instruction on a lesser offense is warranted is still good law and that when considering whether a jury should have been instructed on a lesser included offense, appellate courts must consider whether, in light of the proposed defense theory and the factual elements of the relevant offense, "the intermediate charge rejected by the jury would necessarily have to indicate a lack of likelihood that the jury would have adopted the lesser requested charge." Beach, 429 Mich at 491. This is consistent with the Mendoza Court's conclusion that manslaughter is a necessarily included lesser offense of murder and that manslaughter instructions must be given to the jury if supported by a rational view of the evidence. Mendoza, 468 Mich at 541.

In the instant case, the jury was instructed on first-and second-degree murder but not on voluntary manslaughter. First-and second-degree murder both include the element of malice aforethought. Id. at 534. As noted in Part III (B) of this opinion, the distinction between murder and voluntary manslaughter is whether an intentional killing was provoked in a manner that explains or justifies the killing so as to mitigate criminal responsibility. Id. at 540. We agree with defendant that the voluntary manslaughter instruction would have assisted the jury in considering defendant's state of mind at the time of the shooting in a manner not contemplated by instructions on first-and second-degree murder alone. As already discussed in reference to trial counsel's performance, defendant shot Brooks in the culmination of a prolonged series of events in which defendant was physically and verbally threatened, including when Brooks attempted to run defendant down with her own vehicle. A jury could reasonably conclude that defendant's actions were the result of provocation to a state of emotional excitement, but the jury here was not made aware of the lesser included offense of voluntary manslaughter. The jury instructions regarding first-and second-degree murder and self-defense do not encompass the distinct state of mind required for a voluntary manslaughter conviction. In the absence of instruction on the particular state of mind required for voluntary manslaughter, we cannotdefinitively conclude whether the jury would have determined that defendant's actions were provoked by inflamed passions or emotional excitement. Therefore, the absence of the lesser-included-offense instruction does not "necessarily . . . indicate a lack of likelihood that the jury would have adopted the lesser requested charge." Beach, 429 Mich at 491. Because the instructions given here did not present to the jury the differing states of mind required for murder and voluntary manslaughter, and because a reasonable jury could have found that defendant acted in the state of mind required for voluntary manslaughter, we conclude that this gap in information provided to the jury is "sufficient to undermine confidence in the outcome" of defendant's trial. Ackley, 497 Mich at 389 (quotation marks and citation omitted).

We disagree with Chief Justice Clement's contention that although the jury was not instructed on voluntary manslaughter there is no prejudice because a rejection of adequate provocation is implicit in the finding of premeditation in first-degree murder.

Chief Justice Clement asserts that premeditation and deliberation and malice excused are "terms at opposite ends of the mens rea spectrum." Post at 5. But this characterization is flawed because there is no middle-ground mens rea in second-degree murder that a jury rejects to find first-degree murder, and the element distinguishing voluntary manslaughter from murder offenses is an element outside of the mens rea spectrum.

A conviction of first-degree murder does not amount to rejection of any of the elements of second-degree murder. To the contrary, a conviction of first-degree murder requires a finding of all the elements of second-degree murder, plus an additional element. First-degree murder is defined by statute. MCL 750.316. Murder may be elevated to the first degree by certain attendant circumstances found in MCL 750.316(1)(b) or (1)(c) not relevant here, or if it is "perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing." MCL 750.316(1)(a). Premeditation is the theory of first-degree murder in this case. Therefore, the jury found each element of second-degree murder in addition to premeditation. The mens rea of second-degree murder—malice—is also present in first-degree murder and thus was not rejected by the jury. Voluntary manslaughter likewise does not require an absence of malice; rather, the presence of adequate provocation excuses malice. Because first-and second-degree murder are not distinguished by mens rea, the jury's finding of malice does not speak to what the jury might have done were it instructed on adequate provocation.

Chief Justice Clement also argues that premeditation and adequate provocation are mutually exclusive, reasoning that a defendant cannot "'think about beforehand' and 'measure and evaluate the major facets of a choice or problem,' . . . while nonetheless being '"'disturbed or obscured by passion,'"' rendering the defendant '"'liable to act rashly or without due deliberation or reflection, and from passion and lack of reason rather than from judgment[.]'"'" Post at 6 (citations omitted). This argument is logically distinguishable from that of a spectrum of mens rea. If premeditation and adequate provocation were mutually exclusive, then a finding of premeditation would require a finding of an absence of adequate provocation. But even that would not mean that there is no prejudice here. Put simply, the jury's finding of premeditation does not necessarily mean that it would have found an absence of adequate provocation had it been properly instructed.

It will always be the case that conviction of a greater offense requires rejection of lesser included offenses. If conviction of a greater offense alone were sufficient to render an instructional error harmless, failure to instruct on a lesser included offense would never result in error requiring reversal. But that is not the case. See People v Phillips, 385 Mich 30, 36; 187 NW2d 211 (1971) ("If evidence has been presented which would support a conviction of a lesser offense, refusal to give the requested instruction is reversible error . . . ."). The reason a failure to instruct on a lesser included offense results in error requiring reversal is because it is impossible to know what a jury would do if it had been properly apprised of the lesser included offense.

Beach presented a novel circumstance in which the jury had the opportunity to convict on either conspiracy to commit armed robbery or conspiracy to commit unarmed robbery, but not on conspiracy to commit larceny. The jury's rejection of the intermediate offense was what rendered the error harmless, answering the question of what the jury might have done with a choice. As discussed, the jury here was never instructed on the possible legal import of defendant's mental state in light of Brooks's physical and verbal assaults and attempts to run defendant down. The jury's rejection of second-degree murder therefore does not answer the question of what the jury might have done had it been instructed on voluntary manslaughter.

Because defendant has established both prongs of the ineffective-assistance-of-counsel analysis, we conclude that defendant is entitled to relief in the form of a new trial.

For the foregoing reasons, we conclude that trial counsel was constitutionally ineffective in failing to request a jury instruction on voluntary manslaughter and that defendant is accordingly entitled to a new trial. We reverse the judgment of the Court of Appeals and remand the case to the Wayne Circuit Court for further proceedings consistent with this opinion.