People v. Carines , 460 Mich. 750 ( 1999 )

597 N.W.2d 130 (1999) 460 Mich. 750

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Mario Estuardo CARINES, Defendant-Appellant.

Docket No. 110218, Calendar No. 3.

Supreme Court of Michigan.

Argued April 7, 1999. Decided July 27, 1999.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and Vicki L. Seidl, Assistant Prosecuting Attorney, Grand Rapids, for the people.

State Appellate Defender (by Desiree M. Ferguson), Detroit, for the defendant.

Elwood Brown, President, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, Detroit, for Prosecuting Attorneys Association of Michigan.

Opinion

CORRIGAN, J.

We granted leave to determine 1) whether the prosecution presented sufficient evidence to support defendant's convictions of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and first-degree felony murder, M.C.L. § 750.316(1)(b); M.S.A. § 28.548(1)(b), and 2) whether the trial court committed error requiring reversal when it instructed the jury regarding the elements of aiding and abetting felony murder.

First, we hold that the prosecution presented sufficient evidence to prove armed robbery and felony murder beyond a reasonable doubt. Next, we extend the plain error rule of People v. Grant, 445 Mich. 535, 520 N.W.2d 123 (1994), to claims of unpreserved, constitutional error. Although the court's failure to properly instruct on aiding and abetting felony murder was plain error, defendant has not established prejudice. Moreover, the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Accordingly, we affirm the unpublished opinion of the Court of Appeals, which affirmed defendant's convictions and sentence.^[1]

I. Underlying Facts and Procedural History

Defendant was tried before a Kent County jury for the robbery and murder of Thomas Eugene Gober in a downtown Grand Rapids parking garage. While taking trash to a dumpster outside a restaurant, prosecution witness James Warren heard a commotion coming from the parking structure across the street. He saw two people on the second story involved in a struggle. One man, subsequently identified as codefendant Victor Escobar, wore a brown or green sweater.^[2] He was holding a third person whom Warren could not see. When Warren yelled, the men ran.

Warren then observed three people run from the parking structure, among them Escobar and defendant. Defendant wore a black jacket with red markings. The hood was pulled over his head.^[3] Latisha Washington, an employee of the parking garage, likewise saw the three men run from the structure. She confirmed that one man had been wearing a black hooded jacket with red markings.

Warren then went to the second floor of the parking structure where he found Gober lying on the floor with his throat cut. Blood had pooled around Gober's head. An autopsy revealed that Gober died from a single stab wound to the neck that severed his carotid artery.

Warren immediately called 911. Officer Mike Woronko responded. Within minutes after the crime was discovered, Woronko, armed with a description of the suspects, stopped defendant and Escobar less than half a mile from the crime scene. Defendant was wearing his jacket inside out with the hood tucked inside the collar. Warren and Washington later identified defendant by his distinctive jacket.

The right arm and cuff area and the left and right pocket of defendant's jacket were bloodstained. The blood did not match defendant's or Escobar's blood type, but was consistent with Gober's blood type. The record established that less than one percent of the population shares the characteristics of Gober's blood. The police also found blood on Escobar's clothes, but that blood matched Escobar's blood type, not that of defendant or Gober. The police found a small amount of blood on Escobar's hands. The sample was too small to be identified. The police did recover a watch inscribed with Gober's name from Escobar.

Defendant testified in his own defense, but refused to answer any questions. Instead, he made a nonresponsive, unsupported assertion that the police had planted the blood on his jacket. Accordingly, the trial court instructed the jury to disregard defendant's testimony.

Following the presentation of proofs and closing arguments, the trial court instructed the jury on felony murder without objection:

The first thing which the prosecution must prove is that the victim, Mr. Gober, was killed during an armed robbery by one of the robbers. The prosecution does not have to prove that Mr. Carines, himself, killed him or participated in the killing. To prove this element the prosecution need prove only that one of the robbers killed Mr. Gober. [Emphasis added.]

The court further instructed the jury that defendant must have participated in the robbery during which Gober was killed, and that defendant must have possessed the requisite mental state, i.e., malice. The court further stated:

Just because a defendant participated in a robbery during which someone was killed does not itself prove [felony murder]. However, in many circumstances committed [sic] a robbery, particularly one involving violence and/or the use of a weapon, can indicate an intention to kill, an intention to cause great bodily harm, or the knowing creation of a very high risk of death or great bodily harm, knowing that death or such harm was the likely result of his actions. You may infer that a defendant had the necessary intent from evidence that the defendant set in motion, a force, likely to cause death or great bodily harm.... If none of the participants intended for anyone to get killed or hurt and there was no good reason to anticipate given how things were planned and/or how they were carried out, that anyone would get killed or hurt, then any death which occurred during the course of the robbery is not a Felony Murder. If given the circumstances of planning and committing the robbery there was no good reason for participants other than the killer to anticipate a killing or a serious injury, those other participants are not guilty of a Felony Murder.

The jury found defendant guilty of armed robbery and felony murder. The trial court imposed the mandatory sentence of life without the possibility of parole.^[4]

The Court of Appeals affirmed defendant's convictions and sentence in an unpublished opinion. The Court concluded that the evidence was sufficient to prove armed robbery and felony murder. Further, because defendant failed to preserve his claim that the trial court had not properly instructed the jury on the elements of felony murder, the Court reviewed the instructional issue for a miscarriage of justice. The Court noted that the trial court appeared to have "blended an aiding and abetting element into the felony murder instructions without giving a separate instruction on aiding and abetting felony murder," and failed to instruct the jury on the second element of aiding and abetting, i.e., that defendant must have performed acts or given aid or encouragement that assisted in the crime. The Court concluded, however, that "the jury apparently found defendant guilty as the principal in the felony murder" because "the evidence at trial supported the theory that defendant was the individual who stabbed the victim." Thus, the Court of Appeals determined, "the aiding and abetting instructions for felony murder did not affect the jury's verdict."

We granted defendant's application for leave to appeal to consider the question of sufficiency of the evidence and the claim of instructional error. 459 Mich. 892, 587 N.W.2d 503 (1998).

II. Sufficiency of the Evidence

A. Standard of Review

Defendant initially contends that the evidence was insufficient to support his armed robbery and felony murder convictions. People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748 (1992), articulates the standard for reviewing sufficiency claims:

[W]hen determining whether sufficient evidence has been presented to sustain a conviction, a court must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.

"Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime." People v. Allen, 201 Mich.App. 98, 100, 505 N.W.2d 869 (1993).

B. Armed Robbery

The prosecution presented sufficient evidence to prove defendant's armed robbery conviction beyond a reasonable doubt. "The elements of armed robbery are: (1) an assault, (2) a felonious taking of property from the victim's presence or person, (3) while the defendant is armed with a weapon described in the statute." People v. Turner, 213 Mich.App. 558, 569, 540 N.W.2d 728 (1995). The prosecution here relied, in part, on an aiding and abetting theory.

"Aiding and abetting" describes all forms of assistance rendered to the perpetrator of a crime and comprehends all words or deeds that might support, encourage, or incite the commission of a crime.... To support a finding that a defendant aided and abetted a crime, the prosecutor must show that (1) the crime charged was committed by the defendant or some other person, (2) the defendant performed acts or gave encouragement that assisted the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time he gave aid and encouragement. An aider and abettor's state of mind may be inferred from all the facts and circumstances. Factors that may be considered include a close association between the defendant and the principal, the defendant's participation in the planning or execution of the crime, and evidence of flight after the crime. [Turner, supra, 213 Mich.App. at 568-569, 540 N.W.2d 728 (citations omitted).]

In this case, the prosecution presented sufficient evidence to establish that defendant committed armed robbery, either as a principal or as an aider and abettor. The presence of the victim's blood on defendant's sleeve and in his pockets suggested that defendant himself assaulted the victim. The jury could have inferred further that defendant assisted in a felonious taking of property in light of his close association with Escobar. Defendant fled the crime scene with Escobar, who had the fruits of the robbery, the victim's inscribed watch, on his person. Finally, the jury could have concluded that defendant had been armed with a dangerous weapon. The autopsy established that the victim died from a stab wound to the neck. Given the presence of the victim's blood on defendant's clothes, and the absence of the victim's blood on Escobar's clothes, the jury rationally could have inferred that defendant had used a knife during the robbery. Accordingly, the prosecution presented sufficient evidence to prove armed robbery beyond a reasonable doubt.

C. Felony Murder

The prosecution also adduced sufficient evidence to support defendant's felony murder conviction as either a principal or an aider and abettor.

The elements of felony murder are: (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result [i.e., malice], (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in [the statute, including armed robbery]. [Turner, supra, 213 Mich.App. at 566, 540 N.W.2d 728.]

The facts and circumstances of the killing may give rise to an inference of malice. Id. A jury may infer malice from evidence that the defendant intentionally set in motion a force likely to cause death or great bodily harm. Id. Malice may also be inferred from the use of a deadly weapon. Id., p. 567, 540 N.W.2d 728.

"In situations involving the vicarious liability of cofelons, the individual liability of each felon must be shown. It is fundamentally unfair and in violation of basic principles of individual criminal culpability to hold one felon liable for an unforeseen death that did not result from actions agreed upon by the participants. In cases where the felons are acting intentionally or recklessly in pursuit of a common plan, liability may be established on agency principles. If the homicide is not within the scope of the main purpose of the conspiracy, those not participating are not criminally liable." [Id., pp. 566-567, 540 N.W.2d 728, quoting People v. Flowers, 191 Mich. App. 169, 178, 477 N.W.2d 473 (1991) (citations omitted).]

See also People v. Aaron, 409 Mich. 672, 731, 299 N.W.2d 304 (1980).

Here, the prosecution satisfied the first element by proving the killing of a human being, Thomas Gober. A knife wound to Gober's throat severed his carotid artery. The jury could infer that defendant inflicted the fatal wound, given the blood stains on his sleeve and in his pockets. The jury also could have inferred that defendant, if not acting as the principal, had aided and abetted the murder by participating in the underlying offense, i.e., the robbery, and that the killing was within the scope of the robbers' common plan. Warren saw Escobar in the parking structure involved in a struggle. Defendant fled the scene of the crime with Escobar and an unknown third suspect. Defendant's hood was pulled up as he ran from the parking ramp. He later turned his jacket inside out to avoid detection. These facts establish that defendant was not merely present, but an active participant in the armed robbery. The jury could thus have inferred that defendant, if not acting as a principal, aided and abetted the homicide by participating in the robbery in which the victim was killed.

The second element, malice, is also supported by the evidence. The autopsy established that a knife was used in the homicide. An inference of malice arises from the use of the knife. Moreover, by engaging in an armed robbery with his co-felons, defendant set in motion a force likely to cause death or great bodily harm. Even if defendant did not personally use the knife, the jury could have inferred that defendant acted with malice. Defendant participated in a robbery involving the use of a knife, acting in wanton and wilful disregard of the possibility that death or great bodily harm would result. See People v. Kelly, 423 Mich. 261, 273, 378 N.W.2d 365 (1985).^[5] The use of a knife in an isolated parking structure to rob the victim supported the finding of malice. Even if defendant had not intended to kill the victim when he entered the parking garage, the nature of the killing established that it was neither accidental nor done without malice. Defendant at the very least became aware of his cohort's intent during the events in question. See id., p. 280, 378 N.W.2d 365.

Finally, the prosecution presented evidence that defendant committed or assisted in the commission of armed robbery when the victim was killed. The police retrieved the victim's watch from Escobar shortly after the crime. The jury could have inferred that defendant assisted in the robbery of Gober's watch, given his close association with Escobar, his flight from the scene, and the presence of the victim's blood on his clothes. Accordingly, the prosecution presented sufficient evidence from which a rational trier of fact could find the elements of felony murder beyond a reasonable doubt.

III. The Felony Murder Instructions

We next address defendant's contention that the trial court erroneously instructed the jury on felony murder. In considering this issue, we note two critical points. First, defendant failed to object to the court's instructions. Second, an error in omitting an element of the felony murder instructions would be an error of constitutional magnitude. See United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (the Fifth and Sixth Amendments of the United States Constitution "require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt"). Accordingly, our analysis of the alleged instructional error requires that we first address the standard of review for unpreserved claims of constitutional error.

A. The Plain Error Doctrine

This state encourages litigants "``to seek a fair and accurate trial the first time around....'" Grant, supra, 445 Mich. at 551, 520 N.W.2d 123. This Court disfavors consideration of unpreserved claims of error. In Grant, this Court discussed the standards for reviewing unpreserved claims of nonconstitutional error. We noted that a rule of automatic reversal would conflict with M.C.L. § 769.26; M.S.A. § 28.1096, which provides that judgments or verdicts shall not be reversed absent a miscarriage of justice. Grant, p. 543, 520 N.W.2d 123. We also observed that Michigan has long recognized the importance of preserving issues for appellate review. Id., pp. 546, 550-551, 520 N.W.2d 123.^[6] The United States Supreme Court has acknowledged the importance of this policy and the right of the various states to impose preservation requirements. Id., pp. 546-547, 551, 520 N.W.2d 123, citing United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985); Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944). Trial is "by far the best time to address a defendant's constitutional and nonconstitutional rights." Grant, supra, 445 Mich. at 551, 520 N.W.2d 123 (emphasis added). "Indeed, the United States Supreme Court has recognized a state's right to develop procedural rules that lead to issue forfeiture[^[7]] even where the procedural rules implicate constitutional protections if the rules serve a legitimate state interest." Id., pp. 546-547, 520 N.W.2d 123.

In Grant, this Court examined federal authority in adopting an issue forfeiture rule for unpreserved, nonconstitutional error. We relied primarily on the United States Supreme Court's decision in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In Olano, the Supreme Court explained the plain error rule of F.R. Crim. P. 52(b), which provides: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The Olano Court emphasized that a constitutional right may be forfeited by a party's failure to timely assert that right. Id., p. 731, 113 S.Ct. 1770. To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. Id., pp. 731-734, 113 S.Ct. 1770. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. Id., p. 734, 113 S.Ct. 1770. "It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice." Id.^[8] Finally, once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error "``seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings' independent of the defendant's innocence." Id., pp. 736-737, 113 S.Ct. 1770.

In Grant, we found Olano persuasive in distinguishing between Michigan's issue preservation requirement and harmless error rule. Grant, supra, 445 Mich. at 552, 520 N.W.2d 123.^[9] Accordingly, we applied the factors set forth in Olano to the question of nonconstitutional error presented in Grant. Id., pp. 552-554, 520 N.W.2d 123. We found that plain error occurred, but that it was not decisive of the outcome. Id.

B. Application of the Plain Error Rule to Unpreserved, Constitutional Error

We hold that the plain error rule discussed in Olano and Grant extends to unpreserved claims of constitutional error. Although Grant``s holding was limited to nonconstitutional error, our reasoning made it clear that extending the doctrine to constitutional error furthers the policy underlying the forfeiture rule. In discussing Olano, we noted in Grant that "the specific language of the federal rules themselves, and of the Olano majority's formulation from earlier precedent, make no distinction between constitutional and nonconstitutional error." Id., p. 550, 520 N.W.2d 123. Thus, "it is the forfeiture aspect and not the actual constitutional status that drives the federal standard." Id.

We reaffirm Grant. The policy underlying the issue forfeiture rule provides no basis for distinguishing constitutional from nonconstitutional error. In both instances, requiring a contemporaneous objection provides the trial court "an opportunity to correct the error, which could thereby obviate the necessity of further legal proceedings and would be by far the best time to address a defendant's constitutional and nonconstitutional rights." Id., p. 551, 520 N.W.2d 123. Applying the Olano Grant forfeiture rule to unpreserved claims of constitutional error thus serves the important historical and policy reasons underlying the preservation requirement.

In applying the plain error rule to claims of unpreserved, constitutional error, we find instructive Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). In Johnson, the trial court had failed to submit the element of materiality to the jury in the petitioner's perjury trial. Id., pp. 463-464, 117 S.Ct. 1544. The petitioner, however, had not preserved the issue at trial. Id., p. 464, 117 S.Ct. 1544. The United States Supreme Court, in a virtually unanimous decision,^[10] applied the plain error doctrine to the petitioner's claim of instructional error. Id., pp. 465-470, 117 S.Ct. 1544. The Court concluded that the first two requirements for avoiding forfeiture were met, i.e., plain error occurred. Id., pp. 465-468, 117 S.Ct. 1544.^[11] The Court, however, declined to decide whether the petitioner had satisfied the third requirement, i.e., that the error affected substantial rights. Id., pp. 468-469, 117 S.Ct. 1544. Nevertheless, the Court questioned the petitioner's claim that the error was so serious as to defy harmless-error analysis, noting that so-called "structural errors" are found in a very limited class of cases. Id.^[12]

The Supreme Court determined in Johnson that, even if the third requirement had been met, it would not correct the error because it did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id., pp. 469-470, 117 S.Ct. 1544. In reaching this conclusion, the Court ruled that the evidence of materiality was overwhelming and the issue had been uncontroverted at trial and on appeal. Id., p. 470, 117 S.Ct. 1544. Johnson is persuasive in applying the plain error standard of review to constitutional error, including instances where the alleged error is the failure to instruct the jury on an element of the offense.^[13]

Because our holding in this case is inconsistent with the plurality opinion in People v. Vaughn, 447 Mich. 217, 524 N.W.2d 217 (1994), we repudiate the Vaughn plurality. In Vaughn, the defendant claimed that the trial court had failed adequately to instruct the jury on the essential element of asportation in his kidnaping trial. Id., p. 224, 524 N.W.2d 217. The plurality declined to apply the Grant plain error rule, stating that it is "well established in our jurisprudence that where an erroneous jury instruction pertains to an essential element of an offense, a contemporaneous objection to the instruction is not required to preserve the issue for appeal." Id., p. 228, 524 N.W.2d 217.^[14] It therefore concluded that the defendant's failure to object to the instructions did not preclude appellate review. Id., p. 229, 524 N.W.2d 217. Applying a harmless error standard, the plurality concluded that the instructional error was harmless. Id., pp. 235-239, 524 N.W.2d 217.

We repudiate the Vaughn plurality's conclusion that litigants have no duty to preserve claims of instructional error.^[15] The policy underlying Michigan's preservation requirement governs all issues. Moreover, Vaughn failed to acknowledge that preservation of instructional error is required both by our court rules and by statute. MCR 2.516(C) states:

A party may assign as error the giving of or the failure to give an instruction only if the party objects on the record before the jury retires to consider the verdict (or, in the case of instructions given after deliberations have begun, before the jury resumes deliberations), stating specifically the matter to which the party objects and the grounds for the objection.

Also, M.C.L. § 768.29; M.S.A. § 28.1052 provides that "[t]he failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused." Although MCR 2.516(C) and M.C.L. § 768.29; M.S.A. § 28.1052, do not control in this case because the alleged error is a constitutional one, they do provide additional support for extending the Olano/Grant forfeiture rule to unpreserved, constitutional error, including claims of instructional error.^[16]

C. Application To This Case

Having determined that the plain error rule applies to defendant's claim, we next consider whether defendant may avoid forfeiture of the alleged instructional error. Defendant has met the first requirement, i.e., the existence of an error, because the court's felony murder instructions were erroneous.

As noted above, the elements of felony murder are: 1) the killing of a human being, 2) malice, and 3) the commission, attempted commission, or assisting in the commission of one of the felonies enumerated in the statute, among them armed robbery. Turner, supra, 213 Mich.App. at 566, 540 N.W.2d 728. To establish guilt under an aiding and abetting theory, the prosecution must proffer evidence that

(1) the crime charged was committed by the defendant or some other person, (2) the defendant performed acts or gave encouragement that assisted the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time he gave aid and encouragement. [Id., p. 568, 540 N.W.2d 728.]

The trial court here instructed the jury on all three elements of felony murder. The court instructed that the prosecution must prove that the victim "was killed during an armed robbery by one of the robbers," thus satisfying the first element. The court also clearly instructed the jury regarding malice and defendant's participation in the underlying felony, i.e., robbery.

Defendant, however, assigns error to the court's instruction that "[t]he prosecution does not have to prove that Mr. Carines, himself, killed him or participated in the killing. To prove [the first] element the prosecution need prove only that one of the robbers killed Mr. Gober." Defendant argues that the instruction allowed the jury to convict him of felony murder without finding that he participated or assisted in killing the victim. The Court of Appeals accepted defendant's argument. It concluded that the trial court "blended" its felony murder instruction with an aiding and abetting instruction, and in doing so, the court failed to instruct the jury regarding the second element of aiding and abetting, i.e., that defendant must have performed acts or given encouragement that assisted the commission of the crime. Nonetheless, the Court of Appeals determined that the error did not affect the verdict because the jury "apparently" convicted defendant as a principal, given the evidence supporting such a theory.

On the specific facts presented here, the trial court erred by failing to instruct the jury on the second element of aiding and abetting. We wish to emphasize that we have never held that a defendant must participate in the actual killing to be guilty of felony murder. To the contrary, our case law establishes that, in certain circumstances, a defendant may be held responsible for the actions of a co-felon. See, e.g., Aaron, supra, 409 Mich. at 731, 299 N.W.2d 304 (liability may be established on agency principles where the felons are acting intentionally or recklessly in pursuit of a common plan); Flowers, supra, 191 Mich.App. at 177, 477 N.W.2d 473 (relying, in part, on Aaron``s discussion of vicarious liability in rejecting the defendant's argument that "he should not be held responsible for the independent, unauthorized acts [of a co-felon] of breaking and entering and shooting the decedent"); Turner, supra, 213 Mich.App. at 566-573, 540 N.W.2d 728 (relying, in part, on the agency principles discussed in Aaron in affirming the defendant's felony murder conviction).

Although felony murder may be submitted to the jury on a vicarious liability theory, the trial court in the case at bar chose to instruct the jury under a traditional aiding and abetting theory. The court properly instructed the jury on the first and third elements of aiding and abetting. The court's instructions made clear that the crime charged must have been committed by defendant or some other person, and that defendant must have had the requisite intent, i.e., malice. The court failed, however, to instruct the jury that, to be guilty under a traditional aiding and abetting theory, defendant must have performed acts or given encouragement that assisted the commission of the crime. Once the court began to instruct on such a theory, it should have provided a complete instruction on the aiding and abetting requirements. Defendant has thus established the existence of an error.^[17]

Moreover, the error was plain. Our case law clearly establishes that, to be guilty as an aider and abettor, a defendant must perform acts or give encouragement that assists the commission of the crime. Defendant has thus satisfied the second criterion of the plain error test.

Defendant has failed, however, to meet his burden of persuasion regarding prejudice. The trial court's instructions, when viewed as a whole, adequately protected defendant's rights. Under the instructions given, the jury would not have convicted defendant without concluding that he performed acts or gave encouragement that assisted the commission of the crime.

The court instructed the jury that it could not find defendant guilty unless he deliberately participated in the robbery in which the victim was killed and unless he acted with malice. The court also instructed that

[i]f the killing was purely accidental and totally unexpected, none of the robbers is guilty of First Degree Murder, or if the killing was an act done by one of the robbers which the others had no reason to anticipate, the other robbers are not guilty of First Degree Felony Murder. They are guilty of an armed robbery, but not murder.

The court then explained once again the different ways to prove malice, and emphasized that "[j]ust because a defendant participated in a robbery during which someone was killed does not itself prove First Degree Felony Murder." The court further instructed that

[i]f none of the participants intended for anyone to get killed or hurt and there was no good reason to anticipate given how things were planned and/or how they were carried out, that anyone would get killed or hurt, then any death which occurred during the course of the robbery is not a Felony Murder. If given the circumstances of planning and committing the robbery there was no good reason for participants other than the killer to anticipate a killing or a serious injury, those other participants are not guilty of a Felony Murder. If the way a robbery is planned and/or carried out gives the participants good reason to anticipate that someone might be killed or seriously injured, those participants are guilty of First Degree Felony Murder if someone does get hurt and dies from their injuries even though it was not planned that anyone be killed or injured.

These instructions, while imperfect, did not prejudice defendant.^[18] The court instructed the jury regarding the element of malice and further made clear that defendant must have participated in the underlying offense. The jury presumably followed the trial court's instructions and found defendant guilty only after concluding that he participated in the robbery and acted with malice. Given the evidence in this case, the jury could not have come to those conclusions without also finding that defendant aided or encouraged the killing. The key evidence tying defendant to the robbery, i.e., the blood on his jacket, tied him even more convincingly to the murder.^[19] Defendant has therefore failed to show that the court's error affected the outcome at trial. Accordingly, defendant forfeited the claim of error by not timely objecting to the jury instruction. Grant, p. 553, 520 N.W.2d 123.

Alternatively, even if defendant had satisfied the third requirement for avoiding forfeiture we would decline to reverse in this case because the alleged error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Johnson, 520 U.S. at 469-470, 117 S.Ct. 1544. This conclusion is supported by the same reasoning that causes us to conclude that no prejudice occurred. In light of the court's instructions and the evidence presented, the jury could not have reasonably concluded that defendant participated in the robbery and acted with malice without also concluding that he participated in the killing either as the principal or an aider and abettor. Accordingly, the United States Supreme Court's reasoning in Johnson applies here:

On this record there is no basis for concluding that the error "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." Indeed, it would be the reversal of a conviction such as this which would have that effect. "Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it." R. Traynor, The Riddle of Harmless Error 50 (1970). [Johnson, supra, 520 U.S. at 470, 117 S.Ct. 1544.]

IV. Conclusion

In summary, the prosecution presented sufficient evidence to support defendant's armed robbery and felony murder convictions. Regarding the instructional issue, we hold that the Olano/Grant forfeiture rule applies to unpreserved claims of constitutional error. Defendant cannot avoid forfeiture because he has not established that he was prejudiced by the court's plain error. Further, even if the three requirements for establishing plain error had been met, we would decline to reverse defendant's conviction because the alleged error did not seriously affect the fairness, integrity or public reputation of judicial proceedings. Accordingly, we affirm the judgment of the Court of Appeals.

WEAVER, C.J., and BRICKLEY, TAYLOR, and YOUNG, JJ., concurred with CORRIGAN, J.

Appendix

Recent decisions establish that the standard for reviewing error on appeal depends upon two factors: first, whether the error is constitutional or nonconstitutional, and second, whether the error is preserved or forfeited. For the convenience of the bench and bar, we provide the following chart reflecting the current state of the law regarding the governing standards of review.

Standard of review              Preserved                     Forfeited
when error is:
Nonconstitutional               The defendant has the          The defendant must
burden of establishing a       show a plain error that
miscarriage of justice         affected substantial
under a "more probable         rights. The reviewing
than not" standard.            court should reverse only
People v. Lukity, 460 when the defendant is
Mich.___, ___; N.W.2d          actually innocent or the
___(1999).                     error seriously affected
the fairness, integrity, or
public reputation of judicial

proceedings. Olano,
supra; Grant, supra.
Constitutional             If the error is not a               Same standard as for
structural defect that defies       claims of forfeited, nonconstitutional
harmless error analysis,            error.
the reviewing court                 People v. Carines, 460
must determine whether              Mich. ___, ___ N.W.2d
the beneficiary of the error        ___ (1999).
has established that
it is harmless beyond a
reasonable doubt. People
v. Anderson (After
Remand), 446 Mich. 392,
521 N.W.2d 538 (1994).

MARILYN J. KELLY, J. (concurring in part and dissenting in part).

Although I concur with parts I and II of the majority opinion, I respectfully dissent from parts III and IV. I believe the majority properly concluded that the prosecution presented sufficient evidence to convict defendant of armed robbery and felony murder as either "a principal or an aider and abettor." Op. at 136.

However, I dissent from the decision to extend the standard for reviewing unpreserved claims of constitutional error utilized in People v. Grant^[1] to the unpreserved claim of constitutional error presented in this case. Although the majority accurately recognizes that the trial court improperly instructed the jury on aiding and abetting felony murder, it errs by concluding that this error does not warrant reversal. Consequently, I would reverse the Court of Appeals decision and remand for a new trial, because failure to provide relief with regard to this issue will result in manifest injustice.

Standard of Review

As explained in the Court of Appeals opinion, failure to object to jury instructions constitutes waiver of any error, unless relief is necessary to avoid manifest injustice. M.C.L. § 768.29; M.S.A. § 28.1052; People v. Vaughn, 447 Mich. 217, 228, 524 N.W.2d 217 (1994) (opinion of Brickley, J.); People v. Petrella, 424 Mich. 221, 276, 380 N.W.2d 11 (1985). Manifest injustice results when an erroneous or omitted instruction pertains to a controlling or basic issue of the case. People v. Nawrocki, 376 Mich. 252, 260, 136 N.W.2d 922 (1965), cert. den. 382 U.S. 455, 86 S.Ct. 654, 15 L.Ed.2d 521 (1966). Consequently, when an erroneous jury instruction pertains to an essential element of a crime, a contemporaneous objection is unnecessary to preserve the issue for appeal. Vaughn, supra at 228-229, 524 N.W.2d 217 (opinion of Brickley, J.)^[2]; People v. Liggett, 378 Mich. 706, 714, 148 N.W.2d 784 (1967).

The majority extends the plain error doctrine advanced in Grant to unpreserved claims of constitutional error. It requires that a defendant establish the following three elements to avoid forfeiture of an unpreserved claim of constitutional error: (1) an error occurred, (2) the error was plain, and (3) the plain error affected substantial rights. Op. at 138. Although the majority recognizes that the Grant^[3] "holding was limited to nonconstitutional error," it nonetheless concludes "our [Grant] reasoning made it clear that extending the [plain error] doctrine to constitutional error furthers the policy underlying the forfeiture rule." Op. at 138-39.

However, in Grant, we explicitly recognized that "this preservation rule is not without exceptions." Id. at 547, 520 N.W.2d 123. We explained that "appellate courts will consider claims of constitutional error for the first time on appeal when the alleged error could have been decisive of the outcome." Id. Contrary to the majority's assertion, Grant emphasized "the instant case does not involve a constitutional right." Id.^[4]

The case before us involves a constitutional error, an erroneous instruction concerning an essential element of the offense. Therefore, I would conclude that a contemporaneous objection to an erroneous jury instruction is not required to preserve the issue for appeal. Vaughn, supra at 228, 524 N.W.2d 217. Defendant's conviction should only "be affirmed if the reviewing court is satisfied that the error is harmless beyond a reasonable doubt." People v. Graves, 458 Mich. 476, 482, 581 N.W.2d 229 (1998); See Neder v. United States, ___ U.S. ___, 119 S. Ct. 1827, 1837, ___ L.Ed.2d ___ (1999). Given that "erroneous jury instructions regarding essential elements [are] reviewed for harmless error by utilizing a ``prejudice' standard, this Court must assess whether a properly instructed jury might have reached a different result, had the error not occurred." Vaughn, supra at 228, 230, 238, 524 N.W.2d 217 (opinion of Brickley, J.).

Felony Murder Instructions

As recognized by the majority, defendant was convicted of felony murder "as either a principal or an aider and abettor." Op. at 136. To convict defendant of felony murder, the prosecution was required to establish:

(1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result, (3) while committing, attempting to commit, or assisting in the commission of any of the felonies enumerated in M.C.L. § 750.316; M.S.A. § 28.548.[^[5]] [People v. Nix, 453 Mich. 619, 640, 556 N.W.2d 866 (1996)(Boyle, J., dissenting).]

After the trial court appropriately instructed the jury on the first element of felony murder,^[6] it then stated:

The prosecution does not have to prove that [defendant], himself, killed [the victim] or participated in the killing. To prove this element the prosecution need prove only that one of the robbers killed [the victim].

By instructing the jury that the prosecution was required to prove only that one of the robbers killed the victim, the trial court blended its felony-murder instruction with an element of aiding and abetting. As noted by the majority, the elements supporting a finding of aiding and abetting felony murder are:

"(1) [felony murder] was committed by the defendant or some other person, (2) the defendant performed acts or gave encouragement that assisted the commission of [felony murder], and (3) the defendant intended the commission of [felony murder] or had knowledge that the principal intended its commission at the time he gave aid and encouragement." [Op. at 135, quoting People v. Turner, 213 Mich.App. 558, 568, 540 N.W.2d 728 (1995).]

By instructing the jury that the victim had to be killed by defendant or another person, the trial court satisfied the first element of aiding and abetting felony murder. The trial court also satisfied the third element by instructing the jury that defendant had to possess the requisite mens rea to commit felony murder. However, the court failed to properly instruct the jury on the second element of aiding and abetting felony murder by instructing the jury that "the defendant performed acts or gave encouragement that assisted the commission of [felony murder]."^[7]Turner, supra at 568, 540 N.W.2d 728.^[8]

The majority accurately recognizes that the trial court failed to properly instruct the jury that defendant must have "performed acts or given encouragement that assisted the commission of [felony murder]," the second element of aiding and abetting felony murder. Op. at 142. It also notes that, "to be guilty as an aider and abettor, a defendant must perform acts or give encouragement that assists the commission of the crime." The majority concedes that defendant established the existence of an error regarding an essential element of aiding and abetting. However, unfortunately, it concludes that the error did not prejudice him. Id.

Without providing any supporting rationale, the majority conclusively states that "the jury would not have convicted defendant without concluding that he performed acts or gave encouragement that assisted the commission of the crime." Op. at 142. It reasons that, when viewed as a whole, the trial court's instructions adequately protected defendant's rights. Id., at 142. However, the majority attempts to support this erroneous reasoning by citing the following excerpts from the trial court's instructions:

If the killing was purely accidental and totally unexpected, none of the robbers is guilty of First Degree Murder, or if the killing was an act done by one of the robbers which the others had no reason to anticipate, the other robbers are not guilty of First Degree Felony Murder. They are guilty of an armed robbery, but not murder.

* * *

If none of the participants intended for anyone to get killed or hurt and there was no good reason to anticipate given how things were planned and/or how they were carried out, that anyone would get killed or hurt, then any death which occurred during the course of the robbery is not a Felony Murder. If given the circumstances of planning and committing the robbery there was no good reason for participants other than the killer to anticipate a killing or a serious injury, those other participants are not guilty of a Felony Murder. If the way a robbery is planned and/or carried out gives the participants good reason to anticipate that someone might be killed or seriously injured, those participants are guilty of First Degree Felony Murder if someone does get hurt and dies from their injuries even though it was not planned that anyone be killed or injured. [Op. at 142 (emphasis added).]

The majority acknowledges that these excerpts provided additional instructions, only, regarding the element of malice. Id., at 142. However, on the basis of them, it inexplicably concludes that "the jury could not have come to these conclusions without also finding that defendant aided or encouraged the killing." Id. at 142.^[9]

The trial court utterly failed to instruct the jury on the second element of aiding and abetting felony murder, and the remaining instructions provided no guidance regarding this element. Consequently, I would not conclude that the jury would have found defendant guilty of the second element of aiding and abetting felony murder. Not only did the trial court fail to instruct on this element, it exacerbated its error by expressly instructing the jury that

[t]he prosecution does not have to prove that [defendant], himself, killed [the victim] or participated in the killing. To prove this element the prosecution need prove only that one of the robbers killed [the victim].

I do not conclude that this error was harmless. The trial court failed to instruct the jury that defendant must have "performed acts or given encouragement that assisted" in the killing, and expressly instructed that defendant need not have participated in the killing. Consequently, I would conclude that defendant was prejudiced by the failure to instruct on an essential element of the crime. Although I believe that there was sufficient evidence to convict defendant of felony murder,^[10] a properly instructed jury might have found otherwise. See Vaughn, supra at 239, 524 N.W.2d 217.

Conclusion

The majority properly concluded that the prosecution presented sufficient evidence to convict defendant of armed robbery and felony murder. Although it accurately recognizes that the trial court improperly instructed the jury on aiding and abetting felony murder, it errs by concluding that defendant was not prejudiced by this error. In addition, I reject the majority's unwarranted extension of the standard for reviewing unpreserved claims of constitutional error utilized in People v. Grant to the unpreserved claim of constitutional error presented here. Therefore, I would reverse the Court of Appeals decision and remand for a new trial.

MICHAEL F. CAVANAGH, J., concurred with MARILYN J. KELLY, J.

NOTES

[1] Unpublished opinion per curiam, issued April 25, 1997 (Docket No. 182792).

[2] Escobar was separately tried and convicted of felony murder and armed robbery.

[3] Warren's view of the events in the parking structure was partially obstructed. He testified that defendant was not one of the men he observed on the second floor. A third suspect in the robbery-murder was never apprehended.

[4] The court declined to sentence defendant on the armed robbery conviction because it apparently believed that the felony murder conviction subsumed the armed robbery conviction for double jeopardy purposes. We do not address the propriety of this decision since it has not been raised on appeal.

[5] "The felony is a factor the jury may use to find malice," although malice may not be inferred merely from the intent to commit the underlying felony. Id., p. 273.

[6] We noted in Grant that issue preservation and harmless error rules reduce the cost to society that arises from the reversal of convictions:

"The reversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already taken place; victims may be asked to relive their disturbing experiences. The ``[p]assage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible.' Thus, while reversal ``may, in theory, entitle the defendant only to retrial, in practice it may reward the accused with complete freedom from prosecution,' and thereby ``cost the society the right to punish admitted offenders.' " [Id., p. 551, 520 N.W.2d 123, quoting United States v. Mechanik, 475 U.S. 66, 72, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986).]

[7] "Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ``intentional relinquishment or abandonment of a known right.'" United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

[8] The Court left open the possibility of a special category of errors, yet to be defined, in which prejudice is presumed or that may be corrected regardless of the effect on the outcome. Id., p. 735, 113 S.Ct. 1770.

[9] In this regard, see also United States v. Thame, 846 F.2d 200, 207 (C.A.3, 1988) (applying a mere harmless error analysis rather than the plain error rule to unpreserved, constitutional error "collapses the plain error and harmless error doctrines into one and ``threatens to render meaningless the contemporaneous-objection requirement in the context of constitutional error'"). Similarly, Michigan's preservation requirement would have no meaning if we applied the same harmless error rule to both preserved and unpreserved constitutional error.

[10] Justice Scalia joined all but two sections of the opinion.

[11] The Court rejected the petitioner's claim that the error was "structural" and fell outside the scope of the plain error rule, noting that "the seriousness of the error claimed does not remove consideration of it from the ambit of the [rule]." Id., p. 466, 117 S.Ct. 1544.

[12] The Court recently answered the question left open by Johnson, supra, in Neder v. United States, 527 U.S.___, 119 S.Ct. 1827, ___. L.Ed.2d ___ (1999), holding that an instructional error involving the omission of an element of an offense is subject to harmless-error analysis.

[13] We also note that several lower federal courts have applied the plain error rule to unpreserved, constitutional error. See, e.g., United States v. Whiting, 28 F.3d 1296 (C.A.I, 1994); United States v. Brown, 307 U.S. App DC 60, 26 F.3d 1124 (1994); United States v. Jarvis, 7 F.3d 404 (C.A.4, 1993); Thame, n. 9 supra, 846 F.2d 200.

[14] The plurality relied in part on several pre Grant decisions of both this Court and the Court of Appeals to support its view of the preservation requirement. See People v. Liggett, 378 Mich. 706, 714, 148 N.W.2d 784 (1967); People v. Allen, 109 Mich.App. 147, 159, 311 N.W.2d 734 (1981); People v. Ashford, 91 Mich.App. 693, 697, 283 N.W.2d 830 (1979); People v. Price, 21 Mich.App. 694, 697-698, 176 N.W.2d 426 (1970); see also People v. Guillett, 342 Mich. 1, 7, 69 N.W.2d 140 (1955); People v. MacPherson, 323 Mich. 438, 446-453, 35 N.W.2d 376 (1949); People v. Yarborough, 131 Mich.App. 579, 580, 345 N.W.2d 650 (1983); People v. Peoples, 75 Mich.App. 616, 620, 255 N.W.2d 707 (1977). Continued adherence to that approach to issue preservation is inappropriate.

[15] The plurality opinion is not precedent because a majority did not agree on the ground for the decision. People v. Anderson, 389 Mich. 155, 170, 205 N.W.2d 461 (1973).

[16] The dissent would follow Vaughn and apply a simple harmless error rule because it believes a contemporaneous objection is not required when the erroneous instruction concerns an essential element of the offense. This position is flawed because it ignores the plain language of M.C.L. § 768.29; M.S.A. § 28.1052 and MCR 2.516(C), which require parties to preserve claims of instructional error. Although the dissent suggests that the Fourteenth Amendment may require that this Court disregard the policy underlying the preservation requirement, Op. at 144, n. 2, it fails to explain how our extension of the plain error rule to unpreserved claims of constitutional error violates due process. The Supreme Court surely would not have applied the plain error rule in Johnson if its application violates due process. Moreover, the dissent's approach would collapse Michigan's preservation requirement into the harmless error rule and would thus fail to further the important policy considerations underlying our preservation jurisprudence. By contrast, our adoption of the federal plain error rule encourages litigants to preserve claims of error at trial.

[17] Our holding is controlled by the trial court's decision to instruct the jury on a traditional aiding and abetting theory. Our decision should not be interpreted as imposing a general requirement that a defendant must participate in the killing in order to be guilty of felony murder.

[18] In determining prejudice, we review the entire record, including both the jury instructions and the evidence. Cf. Neder, n. 12 supra.

[19] This evidence is not merely probative of defendant's guilt as a principal, but would also support an inference that he aided and abetted codefendant in killing the victim.

[1] 445 Mich. 535, 520 N.W.2d 123 (1994).

[2] The majority contends my

position is flawed because it ignores the plain language of M.C.L. § 768.29; M.S.A. § 28.1052 and MCR 2.516(C), which require parties to preserve claims of instructional error. Although the dissent suggests that the Fourteenth Amendment may require that this Court disregard the policy underlying the preservation requirement,... it fails to explain how our extension of the plain error rule to unpreserved claims of constitutional error violates due process. The Supreme Court surely would not have applied the plain error rule in Johnson if its application violates due process. Moreover, the dissent's approach would collapse Michigan's preservation requirement into the harmless error rule and would thus fail to further the important policy considerations underlying our preservation jurisprudence. [Op. at 140, n. 16.]

Whereas it asserts that I ignore the "plain language of M.C.L. § 768.29; M.S.A. § 28.1052 and MCR 2.516(C)," the majority itself concedes that MCR 2.516(C) and M.C.L. § 768.29; M.S.A. § 2.1052 "do not control in this case because the alleged error is a constitutional one...." Op. at 140. Because the instructional error in this case relates to an essential element, it "has long been recognized under Michigan law as unique and commanding an exception to the general rule requiring preservation." Vaughn, supra at 229, n. 5, 524 N.W.2d 217. By permitting a jury to convict a defendant without finding every essential element, the majority would relieve "the prosecution of its constitutionally mandated burden of proving the essential elements beyond a reasonable doubt." Id., at 259-260, 524 N.W.2d 217 (Levin, J., dissenting). Contrary to the majority, I believe that we are not free to follow M.C.L. § 768.29; M.S.A. § 28.1052 and MCR 2.516(C) if they provide less protection of a defendant's due process rights than required under the Fourteenth Amendment. Id., at 261, 524 N.W.2d 217, citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

[3] The majority fails to acknowledge that Grant addressed "a trial court's failure to give a preliminary instruction before an offer of testimony on insanity...." Grant, supra at 537, 520 N.W.2d 123 (emphasis added). Although this Court did not address final instructions to a jury in Grant, it noted that "final instructions to the jury are the subject of harmless-error analysis...." Id., at 543, 520 N.W.2d 123.

[4] As recognized by the majority, Grant relied primarily on Unites States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), for its plain error analysis. Op. at 138. The majority also recognized that Olano premised its plain error analysis on F.R. Crim. P. 52(b), which "defines a single category of forfeited-but-reversible error." Olano, supra at 732, 113 S.Ct. 1770. However, the majority fails to acknowledge that "Michigan does not have a counterpart to F.R. Crim. P. 52(b)...." See Grant, supra at 555, 520 N.W.2d 123 (Levin, J., dissenting). As noted by Justice Levin in his Grant dissent, the "adoption of the views expressed by the majority in Olano concerning the meaning of the federal plain error rule ignores the significant difference between the federal judicial power and the judicial power confided to this Court." Id., at 556, 520 N.W.2d 123. While federal rules provide federal courts with limited power to correct errors that were forfeited, the Michigan Constitution provides this Court with plenary power to correct such errors. Id., 556-557, 520 N.W.2d 123.

Like Olano, Johnson v. United States, 520 U.S. 461, 466-467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), premised its plain error analysis on F.R. Crim. P. 52(b). Consequently, the majority's reliance on Johnson is similarly misplaced.

[5] The majority accurately notes that "robbery" is one of the enumerated offenses under M.C.L. § 750.316; M.S.A. § 28.548.

[6] The court stated, "The first thing which the prosecution must prove is that the victim ... was killed during an armed robbery by one of the robbers."

[7] Therefore, to satisfy the second element of aiding and abetting felony murder, the trial court should have instructed the jury that "defendant performed acts or gave encouragement that assisted the commissions of"

(1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result, (3) while committing, attempting to commit, or assisting in the commission of [armed robbery]. [453 Mich. at 640, 556 N.W.2d 866.]

[8] Although the Court of Appeals appropriately reached this conclusion, it then erroneously concluded that this error did not result in manifest injustice because "the jury apparently found defendant guilty as the principal in the felony murder...." However, this conclusion ignores the fact that the jury found defendant guilty as the "principal or an aider and abettor."

[9] The majority alternatively concludes that, had defendant established a prejudicial error, it would not reverse because "the alleged error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings." Op. at 143, citing Johnson v. United States, n. 4 supra at 469-470, 117 S.Ct. 1544. However, the majority asserts that its "conclusion is supported by the same reasoning that causes [it] to conclude that no prejudice occurred." Id. Given that the reasoning supporting the majority's prejudice conclusion is flawed, its conclusion that the prejudicial error "did not seriously affect the fairness, integrity, or public reputation of judicial proceedings" must fail on the basis of the majority's own admission. In addition, Johnson fails to support the majority's conclusion, because the omitted element was essentially uncontroverted at trial. Johnson, supra at 470, 117 S.Ct. 1544.

[10] The majority purports to "review the entire record, including both the jury instructions and the evidence," to determine prejudice. Op. at 142, n. 18, citing Neder, supra. However, in Neder, the United States Supreme Court explained that a reviewing court making a harmless-error inquiry does not "``become in effect a second jury to determine whether the defendant is guilty.' "Rather, a court must ask "whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element." Id., 119 S.Ct. at 1839 (citations omitted). Given that the evidence against defendant was circumstantial, a rational jury properly instructed could have come to a contrary finding regarding the second element of aiding and abetting felony murder. Nevertheless, contrary to Neder, the majority acts as a second jury by conclusively stating that the jury would not have convicted defendant without finding this element. Op. at 142.