aiding and abetting michigan law review

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Tuesday's match between Greece and the Czech Republic has huge implications poland greece betting preview goal both sides poland greece betting preview goal terms of their chances to advance to the knockout stages of the European Championship. Greece was able to come away with a draw in its opening match against Poland in Warsaw, despite playing the majority of the match a man down. Poland greece betting preview goal Polish side looked in control, and it seemed they would start the tournament off with a win, but substitute Dimitris Salpingidis found the back of the net in the 51st minute to tie the game at one. The Czech Republic was taken behind the woodshed by Russia in its first match, falling in embarrassing fashion They'll certainly need a better effort if they want to avoid being all but mathematically eliminated after their first two games. Sokratis Papastathopoulos is suspended for this one after being sent off against Poland on a controversial call, to say the least. Avraam Papadopoulos, another key defensive contributor for the Greeks, is out of the tournament with a knee injury.

Aiding and abetting michigan law review ncaa betting percentages

Aiding and abetting michigan law review

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Unfortunately, the law enforcement arm of government can build a case against a party, even an innocent party, based upon stretching the limits of circumstantial evidence, misunderstandings and the spurious statements of others. If you are the subject of a criminal investigation , or charged with a crime, it is always wise to consult with an experienced criminal defense attorney as soon as possible before talking to the police.

The police use interrogation tactics to gain information. Even those that deny any wrongdoing may be hurting themselves beyond repair by making statements to the police that:. On a case by case basis, ABDO LAW will analyze a case from every angle to determine whether or not it is in the best interests of our client to speak with the police.

Pursuant to Michigan laws, possession of illegal property drug crimes , firearms, stolen property may occur under various scenarios. Conspiracy involves an agreement between two or more persons to commit a criminal act. Proof of the actual criminal act in furtherance of the conspiracy is not necessary since the crime is complete upon forming an agreement to accomplish the crime.

Conspiracy may be charged as a misdemeanor or a felony , depending upon the circumstances. MCL Unites state of America vs. John DeLorean: In , John DeLorean, automotive engineer and manufacturer, was charged with conspiracy to obtain 55 pounds of cocaine from federal undercover agents.

The FBI surveillance video revealed that DeLorean was awkward and uneasy during the undercover operation. DeLorean told his attorney that he thought he was dealing with gangsters and was afraid for his life if he did not show an interest in the drug deal.

The video was used as a prime piece of evidence and DeLorean was acquitted based upon entrapment by federal agents. Aiding and abetting is a theory that permits vicarious liability to be imposed on accomplices to a crime. If a person knowingly assists or participates with another in committing a crime, the law holds the person responsible as an aider and abettor.

An aider and abettor faces the same punishment as the actual perpetrators as though the aider and abettor had engaged in such conduct himself. Mere Presence: Without more, mere presence at the scene of a crime is not sufficient to establish aiding and abetting. It takes one phone call to get immediate answers to your most pressing legal questions from attorneys that are endorsed by their clients and the legal community. Serving all courts in Macomb, Oakland, Wayne or St. Clair County.

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Abdo Joseph A. Practice Areas. On the evening of July 18, , Willie Espy, Sr. The house had been ransacked, and among the items missing were a large television set and a rifle. The defendant, Jerome Kelly, and Lawrence Moses,[1] were linked to the killing by witnesses who saw them approaching the house, signaling to each other before entering the house, carrying a rifle and a large knife towards the house, and running from the direction of the decedent's house with a rifle and a large knife wrapped in a bloodied sheet.

The defendant admitted to helping Moses remove the television set from the decedent's property and to having bloodstains on his pants, but denied any involvement in the killing. The prosecution proceeded on one of two theories at trial: 1 that the defendant was guilty of first-degree felony murder, or 2 that the defendant aided and abetted the felony murder.

Consistent with this, the jury instructions specified the elements of each theory as well as the broader requirements with respect to burdens of proof and the presumption of innocence. The relevant portions of the instructions follow:. The jury convicted Kelly of felony murder, MCL The Court of Appeals affirmed the conviction on March 11, , in an unpublished decision. We granted leave to appeal, instructing the parties to "include among the issues to be briefed whether the trial court's instructions were erroneous in permitting a conviction of felony murder on an aiding and abetting theory without a finding that defendant possessed an intent to murder, People v Aaron, Mich [ NW2d ] In People v Dye, Mich , ; 96 NW2d , cert den US , we enunciated the standard under which we review jury instructions.

We stated that it was improper for the appellant to extract. Numerous Court of Appeals decisions have also quite properly focused on the totality of the instructions given. See, e. See, also, United States v LaRiche, F2d , CA 6, , cert den US quoting Cupp for the proposition that particular instructions must be viewed within the context of the entire charge. Relief will be granted absent an objection only in cases of manifest injustice.

The United States Supreme Court has enunciated a similar test. It stated that "[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court. Relief will be given only when necessary to avoid manifest injustice to the defendant. We therefore decided that the malice necessary for a felony-murder conviction could not be inferred merely from the intent to commit the underlying felony.

However, we went on to state:. Read in their entirety, the jury instructions at issue clearly do not require the jury to find the malice necessary for murder from the mere intention to commit the underlying felony. The felony is a factor the jury may use to find malice.

See the italicized portions of the charge ante, pp The court stated:. A correct definition of malice was then given for a third time in the paragraph immediately preceding the one in which the language objected to was used. Specifically, the following instruction was given:. Our responsibility as a reviewing court is to balance the general correct, clear tenor of the instructions in their entirety against the potentially misleading effect of a single sentence isolated by the defendant.

Dye, Mich ; Dupie, Mich In doing so, we find that the instructions, as a whole, correctly informed the jury of the Aaron standard governing malice in felony murder and do not require the jury to have determined such malice only on the basis of the intent to commit the underlying felony. We are also aware that the trial judge was cognizant of the implications of Aaron. Where instructions on malice in other cases were found to be incorrect, the inference of malice was made an automatic result once the intent to commit the underlying felony was found.

By contrast, the case before us raises at most a possible inference. In People v Thompson, decided jointly with Aaron, the jury was instructed that if "the said defendant was perpetrating or attempting to perpetrate said assault upon the deceased, Mary Emma Hendry, with intent to rob, then it is not necessary for the state to prove a premeditated design or intent.

In People v Wright, also decided with Aaron, the jury was instructed:. In Aaron itself, the instruction authorized the jury to convict the defendant of first-degree murder "if they found that defendant killed the victim during the commission or attempted commission of an armed robbery. The aiding and abetting instructions given in this instance were not objected to at trial; therefore, the appropriate standard of review is whether manifest injustice has occurred.

Woods, Mich While the instruction given on this issue was arguably erroneous, after a careful review of the record, we find no evidence of injustice. The defendant argues that the aiding and abetting instructions given allowed the jury to convict him of felony murder on an aiding and abetting theory without explicitly requiring the jury to make a determination of his intent to aid and abet the murder.

The language under point four provides as follows:. The defendant reads this as permitting the jury to apply an objective standard of foreseeability on the issue of intent. He concludes that conviction under this language violates the Aaron requirement that malice on the part of the defendant be found before any killing can be deemed "murder.

Before discussing the defendant's contention further, it is necessary to understand the elements of an aiding and abetting charge in Michigan. The Michigan statute, MCL The requisite intent is that necessary to be convicted of the crime as a principal. Meister v People, 31 Mich 99 In this instance, under Aaron, it therefore must be shown that the aider and abettor had the intent to kill, the intent to cause great bodily harm or wantonly and willfully disregarded the likelihood of the natural tendency of his behavior to cause death or great bodily harm.

Aaron, Mich The Aaron concerns are not implicated by this standard. In Aaron, we expressed concern for co-felons who, under the old felony-murder rule became involved in an unforeseen and unagreed-to murder. We stated:. We do not address the defendant's contention that the actual instruction given does not require this level of intent to be found because the objection was not properly preserved. We review in this instance only to determine whether the defendant was subject to a manifest injustice.

Because the intent necessary for an aiding and abetting conviction is so overwhelmingly evident from the record, we find that no injustice has occurred. The entire criminal enterprise, including the robbery and the killing, was cooperative in nature. Eyewitness testimony established that Kelly and Moses signaled to each other prior to entering the house, headed in the direction of the house with a rifle and a knife, and left the house with a rifle and a knife wrapped in a bloodied sheet.

They were observed loading a television set into a van. There was also testimony by a witness that Kelly had told him that he Kelly pushed Espy down while Moses tied him up. The defendant admitted having blood on his pants. The nature of the killing itself clearly demonstrates that it was neither accidental nor done without malice.

The victim's hands were tied behind his back, and his throat was slit a number of times. Even assuming the defendant did not enter the house with the intent to murder, it is clear that he either formulated such an intent once inside the house, or at the very least became aware of his codefendant's specific intent at some point during these gruesome proceedings. Defendant's testimony was contradicted by the witnesses and unsupported by the evidence. He stated that he was walking down the street when Moses threw a rifle to him and he followed with no knowledge of what was happening.

In reviewing the record for evidence of manifest injustice to the defendant, we find none. Instead, we find the evidence of intent necessary to support an aiding and abetting conviction so overwhelming that even if the instructions are considered ambiguous no injustice is done to the defendant by allowing his conviction to stand. We find no merit in the defendant's assertion that the trial court exceeded the bounds of its discretion when it admitted the testimony of William Lester Espy, Jr.

We note as an initial matter that a specific objection to the admissibility of this testimony as improper rebuttal was not made at trial. We therefore review only to determine whether the defendant was subject to manifest injustice as a result of admitting the evidence. Not only do we find no such injustice, we find the testimony was properly admitted.

Rebuttal testimony may be used to "contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same. In this instance, the defendant's prior contact with the decedent and his son was brought up during direct examination by the defense.

Further, the defendant testified on direct examination that he had gone to the Espys' house that evening to see if Willie Espy, Jr. It is clear that this placed the relationship between the defendant and the Espys at issue. The defendant's contention that the trial court abused its discretion in allowing the prosecution to bring in evidence of his past convictions for attempted larceny in a building, attempted robbery, and larceny is clearly erroneous.

The defendant challenged the admissibility of the prior convictions by arguing that they did not clearly bear on the issue of credibility, that their effect on the jury would be too prejudicial, and that their admission might cause him to refrain from taking the stand. MRE a 2 provides that evidence of such convictions are admissible if "the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination.

The court considered the defendant's motion to suppress the prior convictions twice. The first time, on a motion in limine on September 23, , the court stated:. The trial court's decision was made after consideration of the relevant factors. The similarity of past crimes to the current case was further diminished because the defendant in effect admitted he had removed the television set, and the real issue was not the underlying theft, but his involvement in the murder.

Most importantly, the defendant took the stand, thus obviating any fear that the use of the convictions for impeachment purposes might result in his refusal to testify. We therefore determine that the admission of evidence of the prior convictions was certainly within the bounds of the trial court's discretion, and the defendant's contention otherwise is meritless.

The felony-murder instructions of the trial court accurately stated the law with respect to malice when read in their entirety. Any imperfection in the instructions given with respect to the intent necessary to be convicted of aiding and abetting a felony murder did not result in manifest injustice. The court, in allowing rebuttal evidence by the prosecutor and the use of evidence of the defendant's prior convictions for impeachment purposes, properly exercised its discretion.

I concur on the aiding and abetting issue because there was no objection to the instruction, and dissent on the felony-murder issue. I note at the outset, because of statements in the opinion of the Court, that the issues presented concern jury instructions, not the sufficiency of the evidence. There was, indeed, ample evidence from which a properly instructed jury could find that Kelly committed the offense of first-degree murder.

Kelly was convicted of first-degree murder. The prosecution proceeded on the alternative theories that Kelly was the principal assailant, primarily responsible for the death of the victim, and that, if his accomplice in the robbery, Lawrence Moses, was the principal assailant, Kelly aided and abetted Moses in the commission of the statutory offense of felony murder.

Kelly's lawyer did not object to this instruction. The instruction appears to be based on a misreading of language in an early Michigan case. After stating that because there was no objection, this Court need only review the instruction to determine whether there was "manifest injustice,"[4] the opinion of the Court, in obiter dictum, proceeds to discuss the law of aiding and abetting. The Court acknowledges that the instruction is "arguably erroneous.

The Court's statement can be read, however, as establishing a rule of law leaving no room for the trier of fact to decide whether the person charged as an aider and abettor knowingly and intentionally did so, and is not adequate for the purpose of instructing a jury. The Court says that its statement is in accord with "numerous decisions reached by the Court of Appeals over a considerable period of time.

There the Court of Appeals said that "[w]here a crime requires the existence of a specific intent, an alleged aider and abettor cannot be held as a principal unless he himself possessed the required intent or unless he aided and abetted in the perpetration of the crime knowing that the actual perpetrator had the required intent. Manifestly, it would not be enough that the person accused as an aider and abettor of murder became aware of the principal's intent to murder unless thereafter the accused aided and abetted the principal in committing the murder.

The ultimate question is whether the accused acted with intent to aid and abet the commission of the offense. Knowledge or participation is evidence that supports an inference of an intent to aid and abet, but neither knowledge nor participation, nor both, are sufficient. The statements in the majority opinion blur the difference between what constitutes sufficient evidence and how a lay jury should be instructed.

The role of evidence of knowledge and participation, in the context of jury instructions, was recently considered by the Supreme Court of California. Beeman rejected, People v Ellhamer, Cal App 2d ; 18 Cal Rptr , the proposition stated in Ellhamer and quoted in Poplar that "the criminal intent of the aider and abettor is presumed from his actions with knowledge of the actor's wrongful purpose," and a jury instruction that "[a] person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime.

The court continued that an appropriate instruction would inform the jury that a person aids and abets when acting with " 1 knowledge of the unlawful purpose of the perpetrator, and 2 the intent or purpose of committing, encouraging or facilitating the commission of the offense, 3 by act or advice aids, promotes, encourages or instigates, the commission of the crime. Knowledge of the criminal purpose of the principal is an element necessary to support a finding of an intent to aid and abet, but is not alone sufficient.

The opinion of the Court states that the concerns expressed in Aaron of holding a co-felon criminally responsible for "an unforeseen and unagreed-to murder" are "not implicated by an aiding and abetting standard which requires a finding that the co-felon [aider and abettor] acted with malice.

The unobjected-to instruction does not require a finding by the jury that Kelly either himself intended to commit murder or that he knew of his coparticipant's intent to do so. There is a world of difference between an inquiry whether Kelly intended murder and an inquiry whether a reasonable person "might have expected [murder] to happen.

Implicit in the instruction is the notion that an agreement to commit robbery is necessarily an undertaking involving a significant risk that death or grievous bodily harm will result. A juror who watches the local news might readily agree that a killing is "fairly within" a criminal plan to commit a robbery. The United States Supreme Court, however, relying in Enmund v Florida, US , ; S Ct ; 73 L Ed 2d , on statistics in the commentary accompanying the Model Penal Code showing that this assumption is wrong, held that the imposition of the death penalty on a person who aids and abets a felony in the course of which murder is committed by another, but who does not himself kill, attempt to kill, or intend to kill, is violative of the Eighth Amendment.

The Court said:. As written, the instructions reinforce the assumption, rejected in Aaron, of an experiential link between the commission of or intent to commit the offense of robbery and a resulting although not necessarily intended killing. The opinion of the Court says that "[w]hile this sentence in isolation may be inaccurate," read as a whole the murder instructions accurately stated the law.

When it comes to the law of homicide, a lay jury is like a child. Both the concepts of the law of homicide and the arcane jargon the law has, over the centuries, developed to explain them are so complex that even one experienced in the subject will generally need carefully to parse the language of the law each time he adverts to the subject.

A juror seeking to decipher the meaning of instructions on the murky conception, "malice aforethought," might well seize upon an instruction which allows him to find that elusive concept[18] on evidence that the accused had an intent to assist another in committing a robbery. The instruction relieved the jury of the task of deciding whether Kelly or his accomplice Moses was the assailant who fatally stabbed the victim a determination generally of critical importance under Aaron.

The Court's read-as-a-whole analysis makes it unnecessary for it to decide whether the instruction, which read "in isolation may be inaccurate,"[20] was or was not accurate. In my view, it is necessary to so decide because, if the instruction is inaccurate, the rule for conflicting instructions becomes applicable and, absent harmless error,[21] a new trial should be granted. In explaining why the instruction, read as a whole, is accurate, the Court misstates Aaron.

The Court says that "[r]ead in their entirety, the jury instructions at issue clearly do not require the jury to find the malice necessary for murder from the mere intention to commit the underlying felony. In Aaron, however, this Court ruled that a jury may not find the requisite intent for murder from the intent to commit the underlying felony alone. There is nothing in the instructions in the instant case that suggests that the jury must consider "facts and circumstances" other than the intent to commit the robbery.

Kelly admitted his involvement in the robbery, but denied any involvement in the killing. The Court also misreads Aaron if it is suggesting that Aaron is limited to those situations where the instruction makes the finding of the requisite intent mandatory from the intent to commit the felony. The majority distinguishes Aaron and the two companion cases decided with Aaron, in which the instructions were found to be incorrect, on the ground that there "the inference of malice was made an automatic result once the intent to commit the underlying felony was found.

Aaron was not directed only against the mandatory inference of the common-law felony-murder rule, but also against a permissible inference. It was directed against convicting an accused of murder solely on evidence of participation in another felony:. In Aaron, this Court, in so many words, said that a jury "may not find malice from the intent to commit the underlying felony alone":.

One would think that after Aaron an accused would be entitled to an instruction that the jury may not infer, solely from the commission or attempted commission of a robbery, either intent to kill, intent to do great bodily harm, or wanton and wilful disregard of the likelihood that the natural tendency of the accused's behavior is to cause death or great bodily harm.

The felony-murder instruction given in the instant case violates the dictates of Aaron in three respects. First, as just discussed, a finding that the accused committed or joined in the commission of a felony is not alone sufficient under Aaron to support an inference or conclusion that he acted with the requisite intent for murder.

Third, the jury was relieved of deciding whether Kelly acted with intent to kill, intent to cause great bodily harm, or with wanton and wilful disregard. All would probably agree that it is not reasonable to infer either intent to kill or intent to do great bodily harm solely from evidence that the accused participated in an armed robbery. To hold otherwise would mean that there would be sufficient evidence to convict of assault with intent to murder and of assault with intent to do great bodily harm less than murder on evidence alone that the accused pointed a gun and announced a holdup.

The third clause appears to have taken on a settled meaning, involving not just the threat of force, but the actual use of force. In all the cases cited by Professors LaFave and Scott in their discussion of the third clause, where the defendant's conduct was found sufficient to justify a finding of "reckless disregard for human life," the defendant had used he had not merely threatened to use force; he either intentionally propelled an object resulting in death most often a bullet or a car or, in one case, shook the victim an infant to death:[30].

One may create a high or very high risk of death by firing a gun at an area where there may be one or more persons. It does not denigrate the seriousness of robbery to recognize that while armed robbers do all too frequently fire their weapons, a killing rarely is the consequence of robbery. The data relied on by the United States Supreme Court in Enmund, discussed in Part I F , shows that it is less than "probable" that a killing will result from a robbery.

A jury cannot properly be instructed that it may, from evidence alone that the accused participated in a robbery, infer he had knowledge that his conduct would "probably" cause death or that he wantonly and wilfully disregarded the "likelihood" that the "natural" tendency of his behavior was to cause death or great bodily harm. In sum, the instruction was erroneous, and Kelly's lawyer duly objected.

The judge's "correct understanding"[34] of Aaron is of interest, but is not curative under the circumstance that he did not communicate a "correct understanding" to the jury. The jury was left to surmise whether the general instructions on the law of homicide or the objected-to incorrect instruction accurately stated the law.

Absent a claim[35] and finding of harmless error, a new trial should be ordered. Binion: Your Honor, defense would like to object to the instruction 16, I believe, at page , your Honor, which is on the inference of malice.

I think, your Honor, that the import of the Aaron Decision is that inferences such as the one I think that this instruction involves, that is, that the mere participation in any aspect of the underlying felony. In this case I guess it would be any aspect from any kind of larceny.

From that you can infer that the person had malice. I don't think your Honor, that that is what the Aaron Case permits. I would object to that particular instruction, your Honor.

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