People v. Heflin , 434 Mich. 482 ( 1990 )

Riley, C.J.

In these cases, consolidated for purposes of appeal, we are asked to determine whether the trial courts erred in refusing to give jury instructions on common-law and statutory involuntary manslaughter¹ and self-defense. If we conclude that the trial courts erred, then we must also decide whether the errors were harmless.

In People v Heflin, we hold that the trial court did not err in refusing to instruct the jury regarding the offense of statutory involuntary manslaughter even though it instructed the jury regarding voluntary manslaughter. We reverse the decision of the Court of Appeals and reinstate the decision of the trial court.

In People v Landrum, we would hold that the trial court did not err in failing to give, sua sponte, an instruction regarding common-law involuntary manslaughter. We also would hold that the trial court’s instruction to the jury adequately presented defendant’s theory of self-defense. Therefore, we reverse the decision óf the Court of Appeals and reinstate the decision of the trial court.

I. PACTS AND PROCEEDINGS

A. PEOPLE v HEFLIN

On August 3, 1984, defendant shot and killed his son-in-law, Rory "Rich” Petersen. The prosecutor charged defendant with first-degree murder, MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). A jury convicted defendant of second-degree murder, MCL 750.317; MSA 28.549, and felony-firearm. Defendant received a prison term of nineteen to forty years for the second-degree murder conviction and the mandatory two-year prison term for the felony-firearm conviction.

At approximately 3:30 p.m. on the afternoon of the fatal shooting, Wilma Heflin, defendant’s wife, and Marcia Petersen, defendant’s daughter and the deceased’s wife, were canning food at the defendant’s home. Rich Petersen, who had earlier dropped his wife and children off at defendant’s home, drove into defendant’s driveway to pick up Marcia and their two children, Tara and Joshua Richard. He never left his car. Marcia came outside and asked Rich to return in about an hour. Rich left immediately.

Defendant confronted Marcia about the incident and became enraged after Marcia confirmed his suspicion that Rich had just driven up his driveway. Apparently, defendant had warned Rich not to come onto defendant’s property. Defendant and his wife asserted that the animosity they felt toward Rich was premised partially on their belief that Rich physically abused Tara and Joshua.²

At the time of the confrontation between defendant and Marcia, defendant had noticed several bruises on Tara’s face and threatened to beat Marcia if he ever saw the child’s face bruised again. Marcia claims that defendant slapped her at that moment, causing her to lose her balance and fall; whereas, defendant claims that he accidentally knocked Marcia down when he reached over to pick up Tara. In either case, Marcia grabbed the children and ran home. Rich became angry after Marcia entered their home crying that defendant had hit her. Rich got into his car and drove toward defendant’s house.

Defendant testified that he noticed Rich driving down his street at approximately forty to forty-five miles per hour, honking his horn. Defendant went into the house, retrieved a loaded³ 12-gauge shotgun from behind the front door, and reappeared in the front yard. Rich stopped the car in the street and yelled, "yeah ... I beat her. What are you going to do about it?” at which point defendant testified he saw Rich reach over toward the passenger side of the car for what defendant thought was a gun.⁴ Defendant shot and killed Rich. The evidence established that he fired all five rounds from the shotgun. However, defendant only remembers shooting the gun one time. Rich was shot twice, and died almost instantaneously.

At trial, defendant admitted shooting Rich, but argued that he acted in self-defense and for the safety of his daughter and granddaughter. He also stated that he felt fearful and angry when he saw Rich approaching his house. In addition, defendant’s wife testified that Rich had threatened the Heflins on several prior occasions._

The trial judge instructed the jury regarding the charges of first- and second-degree murder, self-defense, and voluntary manslaughter, but he refused defendant’s request to instruct the jury for the offenses of statutory involuntary manslaughter, involuntary manslaughter, reckless use of a firearm, and arguably imperfect self-defense.⁵ During deliberation, the jury requested that the judge reinstruct them with regard to first- and second-degree murder and manslaughter. The judge complied. The jury convicted defendant of second-degree murder and felony-firearm.

Defendant appealed, and the Court of Appeals reversed in an unpublished per curium opinion and remanded the case for a new trial. The Court of Appeals held that the trial court committed prejudicial error in refusing to instruct the jury regarding the lesser included offense of statutory involuntary manslaughter. This Court granted leave to appeal in consolidation with People v Landrum, limited to the issue whether the trial judge must instruct the jury regarding the offense of statutory involuntary manslaughter when it also instructs the jury regarding voluntary manslaughter.⁶

B. PEOPLE v LANDRUM

A jury convicted defendant of second-degree murder, MCL 750.317; MSA 28.549, for the beating death of sixty-seven-year-old Henry Thomas on December 5, 1983. Defendant, an admitted prostitute, stated that she met Thomas at a local bar a week earlier and that he solicited her services then, but had no money. Defendant told Thomas to return when he had money. On December 5, Thomas returned to the bar and requested that the defendant accompany him to his residence. Defendant agreed after Thomas promised to pay her thirty dollars when they got to Thomas’ house. On the way to defendant’s home, they stopped off at a local liquor store to pick up some whiskey.

Defendant and Thomas drank the whiskey and danced for about an hour after they first arrived at Thomas’ house.⁷ Shortly thereafter, Thomas told defendant to take off her blouse. Defendant agreed to do so, but only after Thomas paid her the thirty dollars that they previously agreed upon. Thomas never responded. The two resumed dancing. Defendant stayed because she assumed that Thomas would eventually pay her the thirty dollars. After approximately an hour, Thomas said that he had the money and asked defendant to go into the bedroom. Defendant complied. On the way to the bedroom, Thomas pushed defendant toward the bedroom and stated that he had decided not to pay defendant, but that they would have sex anyway. Once again, defendant said that Thomas had to pay her before she would have sex with him. At this point, Thomas told defendant that she could either "fuck or fight.” Defendant got undressed and into the bed. Defendant stated that she was not afraid Thomas would kill her. She continued to protest that Thomas should pay her. Thomas disrobed and began to climb on top of defendant when she hit him on the head with the telephone receiver. Thomas started bleeding profusely. Thomas grabbed defendant as she tried to get out of the bed, and the two fell to the floor. Defendant hit Thomas with the end table. She ran into the bathroom and closed the door.

Defendant stated that Thomas tried to force his way into the bathroom. Defendant moved away from the door, allowing it to swing open. Thomas’ momentum carried him into the bathtub. Thomas pulled defendant into the bathtub and the two continued to fight. Defendant managed to get out of the bathtub. Thomas followed defendant and pushed her into the toilet, breaking the toilet seat. Defendant grabbed a bottle and beat Thomas with it several times. Next, defendant pushed Thomas back into the bathtub. Defendant grabbed the telephone receiver and continued to pummel Thomas every time he attempted to get out of the tub. Defendant stated that Thomas eventually gave up and appeared ready to fall asleep. As defendant got dressed, she heard defendant say, "[b]abe, are you still here?” Defendant replied, "[y]eah, I’m still here.” Thomas repeated the question as defendant left the apartment.

Defendant went to a friend’s house to clean Thomas’ blood off herself and change her bloodstained clothes. She also testified that she attempted to call Thomas to make sure that he felt all right. Nobody answered. The police found Thomas dead in the bathroom and the bathroom virtually painted with his blood. Thomas had two broken ribs and a broken nose. Thomas had numerous cuts on his face and forehead, and several fractured teeth. He died due to an obstruction of his upper airway by blood and debris (his fractured teeth). Defendant, on the other hand, emerged from the fight relatively unscathed. The police arrested defendant the next day. She admitted killing Thomas, but claimed she did not intend to do so and acted in self-defense.

The prosecutor charged defendant with first-degree murder. The trial judge instructed the jury with regard to second-degree murder,⁸ self-defense, and, sua sponte, voluntary manslaughter. The trial court refused to instruct the jury with regard to common-law involuntary manslaughter ("gross negligence”).

The jury found defendant guilty of second-degree murder. The Court of Appeals reversed defendant’s conviction in a published per curiam opinion. People v Landrum, 160 Mich App 159; 407 NW2d 614 (1986). This Court remanded for reconsideration in light of People v Beach, 429 Mich 450; 418 NW2d 861 (1988). The Court of Appeals again reversed in another per curium opinion. People v Landrum (On Remand), 171 Mich App 148; 429 NW2d 818 (1988). The Court of Appeals concluded that the trial court’s failure, sua sponte, to instruct with regard to common-law involuntary manslaughter failed to allow the jury to convict defendant of an offense consistent with the theory of her case. This Court granted leave to appeal in consolidation with People v Heflin,⁹ limited to the following issues: (1) whether the trial court erred in not giving, sua sponte, an instruction regarding the offense of common-law involuntary manslaughter, (2) if so, whether the error was harmless, and (3) whether the trial court’s instruction adequately presented the defendant’s claim of self-defense to the jury.

II. PRIMARY LEGAL PRINCIPLES

LESSER INCLUDED OFFENSE INSTRUCTIONS

This Court addressed the legal doctrines necessary to resolve issues involving lesser included offense instructions in People v Beach, supra at 460-465. In Beach, we reaffirmed the distinction between "necessary” and "cognate” lesser included offenses. Necessarily included lesser offenses are those in which the defendant cannot commit the greater offense without also committing the lesser offense. On the other hand, cognate lesser included offenses are those in which the lesser offense shares some common elements with the greater offense, but which may also include some elements not found in the greater offense. Id. at 461; People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975).

This distinction becomes important in determining when a trial judge must instruct the jury with regard to a particular lesser included offense. In Beach, this Court articulated the following rule:

[W]hen the lesser offense is necessarily included, rather than cognate, the evidence will always support the lesser offense if it supports the greater. However, cognate offenses require the evidence in each particular trial to be examined to determine whether the specific evidence adduced would support a conviction of the requested lesser offense.

... A Michigan defendant may request and receive necessarily included offense instructions without regard to the evidence, and a cognate lesser included offense instruction if the evidence adduced at trial would support a conviction of the requested lesser offense. [Id. at 463-465.]

It is against this backdrop that we must decide the cases before us today.

III. ANALYSIS

A. PEOPLE v HEFLIN

Defendant primarily contends that the trial court erred when it refused defendant’s requested instruction to the jury regarding the offense of statutory involuntary manslaughter when it also instructs the jury regarding voluntary manslaughter. MCL 750.329; MSA 28.561 defines statutory manslaughter as:

Any person who shall wound, maim or injure any other person by the discharge of any firearm, pointed or aimed, intentionally but without malice, at any such person, shall, if death ensue from such wounding, maiming or injury, be deemed guilty of the crime of manslaughter.

Initially, defendant argues that statutory involuntary manslaughter is a cognate lesser included offense of murder. Although previously we have held that common-law involuntary manslaughter is a cognate lesser included offense of murder, we have not specifically addressed the issue whether statutory involuntary manslaughter similarly falls within the cognate offenses to murder.¹⁰ Beach, supra at 476; People v Richardson, 409 Mich 126, 135; 293 NW2d 332 (1980); People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978); People v Paul, 395 Mich 444, 449-450; 236 NW2d 486 (1975). Today, we remove any doubt and conclude that statutory involuntary manslaughter is a cognate lesser included offense of murder.

Thus, defendant in the instant case argues that under Ora Jones, the trial court should have instructed the jury regarding the lesser offense of statutory involuntary manslaughter because the evidence would support a conviction under the statute. Defendant advances the argument that if the prosecutor does not have to establish "without malice” beyond a reasonable doubt, then the defendant does not have to disprove "without malice” to warrant an instruction regarding the statutory offense. In turn, defendant relies upon People v Doss, 406 Mich 90, 98, n 3; 276 NW2d 9 (1979), in which we recognized that the Michigan Criminal Jury Instruction 16:4:06 accurately set forth the elements of statutory involuntary manslaughter:

(1) That the deceased died on or about a date;

(2) That the death was caused by an act of the defendant;

(3) That the defendant caused the death without lawful justification or excuse;

(4) That the death resulted from the discharge of a firearm;

(5) That at, the time of such discharge, the defendant was pointing or aiming the firearm at the deceased; and

(6) That at the time of such discharge, the defendant intended to point or aim the firearm at the deceased.

Defendant argues that because the evidence supports each element of the applicable criminal jury instruction, the trial court must give the requested instruction. Defendant relies upon two Court of Appeals decisions which held that "the only proof necessary to support the charge [under MCL 750.329; MSA 28.561] was that [the] defendant intentionally pointed the gun at [the decedent] and that she died as a result of the subsequent discharge of the firearm.” People v Germain, 91 Mich App 154, 159; 284 NW2d 260 (1979), rev’d on other grounds 411 Mich 858 (1981);¹¹ People v Michael Fuqua, 146 Mich App 133, 139; 379 NW2d 396 (1985). Admittedly, if we agree with defendant and the two Court of Appeals decisions, then refusal to give the requested instruction constitutes error in the instant case.

However, even if we agreed with the defendant that he satisfied all the elements of statutory involuntary manslaughter,¹² we disagree that the trial court erred in not instructing the jury on the offense.¹³ Rather, we agree with the plaintiff that defendant misinterprets Ora Jones and that the Court of Appeals wrongly decided Germain and Michael Fuqua. Furthermore, we also disagree with the dissent that Doss is nearly indistinguishable from the instant cage. In Doss, we held that the plaintiff does not have to prove "without malice” in order to establish commission of the alleged offense. In our opinion, a significant difference exists between requiring the plaintiff to prove a negative element and a situation in which the defendant concedes that he intentionally killed the victim, but argues that he had a legal justification for doing so. In the instant case, defendant could have required the prosecutor to prove that the defendant had the requisite mens rea for murder either by not conceding as much or arguing in the alternative. He chose not to do so. Rather, he chose to concede an element in order to proceed with his sole ground for defense. He cannot now seek reversal on the basis of the trial court’s refusal to instruct the jury on an offense inconsistent with the evidence and defendant’s theory of the case. Thus, the trial court properly refused to give the requested instruction because the entire basis of defendant’s defense consisted of self-defense.

In Ora Jones, the trial judge instructed the jury with regard to murder in the second degree and voluntary manslaughter. The defendant never objected to these instructions. However, before the jury began deliberation, defense counsel requested instructions regarding the statutory offense killing or injuring a person by careless, reckless, or negligent discharge of a firearm. The trial court refused to give this instruction. This Court held that the trial judge erred in refusing to give the instruction.¹⁴ We also held that the trial court committed error requiring reversal in giving a misleading instruction regarding manslaughter because it instructed the jury regarding voluntary manslaughter, but not involuntary manslaughter. However, the defendant argues that Ora Jones stands for the proposition that anytime a trial judge instructs the jury with regard to voluntary manslaughter, it must also instruct the jury with regard to involuntary manslaughter. We do not agree.

Rather, in our opinion, a more careful analysis of Ora Jones and its progeny reveals that it cannot be construed so broadly. Rather, we draw the rule of Ora Jones more narrowly, applying it only when either party offers some evidence consistent with the requested instruction. In Ora Jones, the prosecutor argued that the defendant killed the deceased intentionally. The defendant on the other hand, contested that he accidentally killed the deceased. As the Court stated:

During both his opening statement and closing argument, defense counsel asserted the shooting was accidental. During his closing argument he also alluded to the fact that the jury might find the defendant guilty of manslaughter rather than murder in the second degree. [Id. at 385.]

Similarly, the Court stated:

The prosecutor claimed intentional shooting, the defendant maintained it was accidental. The jury was not obliged to accept either theory but could have concluded that the killing was the result of criminal negligence, e.g., involuntary manslaughter. Had the judge not instructed at all on manslaughter, there would be no reversible error, because no request for instruction on manslaughter was made. See People v Henry, 395 Mich 367; 236 NW2d 489 (1975).

Having undertaken to do so, however, it was reversible error to give a misleading instruction which recognized only the prosecution’s theory but not the defendant’s.

The defense theory was accidental shooting. The trial court’s instruction did not adequately present this to the jury. [Id. at 393-394.]

Thus, the trial judge in Ora Jones erred in not instructing the jury regarding involuntary manslaughter because defendant produced some evidence consistent with an instruction regarding involuntary manslaughter, specifically, that he accidentally killed the victim. In our opinion, the rationale of Ora Jones makes perfect sense; if the trial court instructs the jury regarding the defendant’s theory of the case, then it must do so correctly. Otherwise, an instruction only with regard to voluntary "heat of passion” manslaughter fails to convey the theory of defendant’s case to the jury, that defendant accidentally killed the deceased. People v Martin, 130 Mich App 609; 344 NW2d 17 (1983).

We find the cases which relied upon Ora Jones similarly inapplicable to the facts of the instant case. For example, in People v Richardson, supra, the defendant argued at trial that the deceased died as the result of the accidental discharge of the firearm. The trial judge instructed the jury regarding first- and second-degree murder and voluntary manslaughter. Defendant requested instructions regarding manslaughter and careless discharge of a firearm. The trial judge instructed the jury only with regard to the additional offense of voluntary manslaughter. The Richardson Court concluded that the trial court erred. As the Court stated,

In the present case the prosecutor’s theory was that the defendant, with premeditation, deliberation, and malice, intentionally killed Paul Cook. The defense case offered, in differing measures, ingredients of provocation, accident, self-defense, and "criminal” negligence of the kind that attends involuntary manslaughter. Our review of the record convinces us that there was evidence presented . . . which would have supported a conviction of involuntary manslaughter. [Id. at 136-138. Emphasis added.][¹⁵]

See also People v Arthur Jones, 419 Mich 577; 357 NW2d 837 (1984); People v West, 408 Mich 332, 343; 291 NW2d 48 (1980); People v Paul, supra; Martin, supra; People v Jones, 76 Mich App 601, 604-605; 257 NW2d 185 (1977). Cf. People v King, 98 Mich App 146; 296 NW2d 211 (1980) (some evidence of provocation is needed before it is error to refuse a request regarding voluntary manslaughter). The defendant in each of these cases presented some evidence consistent with the crime of involuntary manslaughter.

However, in the instant case, defendant never argued that he accidentally or unintentionally killed Rich Petersen. Rather, he steadfastly maintained throughout the trial that he shot and killed the victim in self-defense. In Michigan, the killing of another person in self-defense is justifiable homicide if the defendant honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm. Doss, supra at 102-103; People v Lenkevich, 394 Mich 117, 124; 229 NW2d 298 (1975); People v Giacalone, 242 Mich 16, 21-22; 217 NW 758 (1928); People v Macard, 73 Mich 15, 20; 40 NW 784 (1888); People v Pond, 8 Mich 150, 175 (1860); People v Garfield, 166 Mich App 66, 76-77; 420 NW2d 124 (1988); People v Green, 113 Mich App 699, 704; 318 NW2d 547 (1982); People v Oster, 67 Mich App 490, 501; 241 NW2d 260 (1976); People v Perez, 66 Mich App 685, 692; 239 NW2d 432 (1976); People v Shelton, 64 Mich App 154, 156-157; 235 NW2d 93 (1975).¹⁶ 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. People v Plozai (On Remand), 139 Mich App 802, 809-810; 362 NW2d 867 (1984) (the defendant admitted killing the deceased in self-defense; "[u]nlike Richardson, where the shooting was claimed to be unintended because it was accidental, defendant in the present case made no claim that his actions were anything but intentional”).

Conversely, a defendant who relies entirely upon the defense of self-defense cannot expect the trial judge to instruct the jury regarding statutory involuntary manslaughter, a crime neither supported by the evidence nor presented to the jury by the defendant or the prosecutor. People v Carter, 387 Mich 397, 422-423; 197 NW2d 57 (1972); People v Heard, 103 Mich App 571; 303 NW2d 240 (1981); People v Livingston, 63 Mich App 129, 134-135; 234 NW2d 176 (1975). A holding to the contrary defies both logic and common sense. We do not imply that a defendant may not maintain inconsistent defenses. However, a trial court need not instruct the jury on inconsistent theories when neither party produces a modicum of evidence in support of a particular theory.¹⁷ As this Court stated in Carter, "[i]n a criminal case, if there is a request to charge as to a lesser included offense, but there is no evidence of such a lesser included offense, or the facts are such that the court or the jury would be obliged to conclude that the defendant was guilty of the offense charged or not guilty, no charge as to a lesser included offense need be given.” Id. at 422-423. We agree and so hold. Otherwise, the jury conceivably could convict a defendant of a lesser crime upon the basis of factors inconsistent with and wholly unrelated to the evidence introduced at trial.

In our opinion, in promulgating the involuntary manslaughter statute, the Legislature intended to punish the intentional pointing of a firearm which results in death even though the defendant did not act with the criminal intent sufficient for conviction under common-law involuntary manslaughter. People v Maghzal, 170 Mich App 340, 345; 427 NW2d 552 (1988); People v Duggan, 115 Mich App 269, 272; 320 NW2d 241 (1982). For example, the Court of Appeals recently addressed the purpose of statutory involuntary manslaughter:

The general rule appears to be that, when a person points a gun at someone as a joke, reasonably believing the gun not to be loaded, and pulls the trigger and the gun discharges and kills the victim, he is guilty of manslaughter. 40 Am Jur 2d, Homicide, § 95, p 390. [Maghzal, supra at 345.]

In Maghzal, the defendant killed her husband when she jokingly pointed and fired a gun at him. The defendant stated that she took the clip out and thought the gun was empty. In a bench trial, the trial court considered the crime of second-degree murder, but refused the defendant’s request to consider common-law and statutory involuntary manslaughter. The Court of Appeals reversed and held, "[t]he defense theory was accidental shooting; defense counsel argued the two lesser offenses in closing argument. We rule that the factfinder must address those theories argued by defendant and which were supported by the facts.” Id. at 347. We agree with the Court of Appeals application of statutory involuntary manslaughter as applied to the facts of Maghzal.

Conversely, in the instant case, we hold that the trial judge did not err in refusing to instruct the jury regarding the offense of statutory involuntary manslaughter even though it instructed the jury regarding voluntary manslaughter. We reverse the decision of the Court of Appeals and reinstate the decision of the trial court.

S. PEOPLE v LANDRUM

Our analysis begins first with the issue whether the trial court erred in failing to instruct the jury, sua sponte, regarding common-law involuntary manslaughter in the instant case. The circuit judge instructed the jury as to second-degree murder and, sua sponte, as to voluntary manslaughter. The trial court refused to instruct the jury regarding common-law involuntary manslaughter. Defendant never objected to these instructions. Defendant concedes that if the trial judge did not instruct the jury, sua sponte, regarding voluntary manslaughter, then he would not have to instruct the jury regarding common-law involuntary manslaughter. However, defendant argues that once a trial judge instructs a jury, sua sponte, regarding voluntary manslaughter, he must also instruct the jury regarding common-law involuntary manslaughter. We disagree.

In Heflin, we concluded that even if defendant requested an instruction with regard to a cognate lesser included offense, the trial judge must only issue the lesser included offense instruction when the evidence adduced at trial would support a conviction of that crime. We relied upon Ora Jones, in which this Court held that the trial court erred in not instructing regarding involuntary manslaughter even though the defendant never requested the instruction because the trial court’s instruction did not accurately reflect defendant’s theory of the case. Ora Jones, supra at 393-394; see also Richardson, supra at 137-138; Martin, supra. We find Ora Jones equally applicable in the instant case. Thus, we must determine whether defendant introduced evidence at trial that would support a conviction of involuntary manslaughter. If she did, then the trial judge must instruct the jury regarding common-law involuntary manslaughter.¹⁸ Ora Jones, Arthur Jones, Chamblis, and Heard, supra.

Defendant’s assertion that the evidence supported the crime of involuntary manslaughter presents a narrow issue of first impression for this Court, specifically, whether Michigan will recognize the doctrine of "imperfect” or "qualified” self-defense as a means of mitigating murder to involuntary manslaughter.

Generally, other jurisdictions apply imperfect self-defense to situations in which defendant acted in self-defense, but with excessive force, or as the initial aggressor. People v Morin, 31 Mich App 301, 311, n 7; 187 NW2d 434 (1971) (Levin, J.); People v Deason, 148 Mich App 27, 31-32; 348 NW2d 72 (1985); State v Powell, 84 NJ 305, 313; 419 A2d 406 (1980); Perkins & Boyce, Criminal Law (3d ed), pp 1137-1143. Some Michigan Court of Appeals panels would limit application of the doctrine to the latter situation. People v Amos, 163 Mich App 50; 414 NW2d 147 (1987); People v Vicuna, 141 Mich App 486; 367 NW2d 887 (1985); People v Springer, 100 Mich App 418; 298 NW2d 750 (1980). In the instant case, defendant admits that she killed Thomas in self-defense, but she argues that she used excessive force and, therefore, accidentally killed Thomas.

In Michigan, " 'involuntary manslaughter is the unintentional killing of another without malice in (1) the commission of some unlawful act not amounting to a felony and not naturally tending to cause death or great bodily harm, or (2) the commission of some lawful act, negligently performed or (3) in the negligent omission to perform some legal duty.’ ” Beach, supra at 477; Richardson, supra at 135-136; People v Townes, 391 Mich 578, 590-591; 218 NW2d 136 (1974). As applied in the instant case, defendant contends that the trial court erred in not instructing the jury regarding common-law involuntary manslaughter, asserting that the second definition is implicated. " 'Involuntary manslaughter is the unintentional killing of another without malice in . . . the commission of some lawful act, negligently performed . . . .’ ”¹⁹ Beach, supra at 477. While we agree that the imperfect self-defense theory²⁰ has yet to be considered by this Court, we do not agree that adoption of the theory would require an instruction regarding common-law involuntary manslaughter in this matter.

As we stated in Heflin, supra, "the killing of another person in self-defense is justifiable homicide if the defendant honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm.” Thus, an act committed in self-defense which conforms to this definition constitutes a lawful act. However, an act committed in self-defense but with excessive force or in which defendant was the initial aggressor does not meet the elements of lawful self-defense.²¹ Therefore, by definition, "imperfect self-defense” is an unlawful act that does not fall within the definition of common-law involuntary manslaughter: a lawful act negligently performed. We would so hold.²²

Lastly, we address the issue whether the trial court’s instruction regarding self-defense adequately presented the defendant’s claim of self-defense to the jury. The trial court’s instruction complied with the criminal jury instruction that permits the use of deadly force in self-defense. CJI T&Ol.²³ Defendant never objected to this instruction. Although the jury instructions require the trial judge to instruct the jury that the defendant may use deadly force if threatened with impending death or bodily harm, they do not require the trial judge to specifically inform the jury that the defendant may use deadly force to repel a potential forcible rape.

Over a century ago, this Court equated common-law rape with the most atrocious felonies. People v Pond, supra at 181-182. One could even argue that common-law rape was the ultimate intrusion that one person forces upon another. The victim suffered the strong likelihood of irreparable physical and psychological harm. Kates & Engberg, Deadly force self-defense against rape, 15 U Cal Davis L R 873 (1982). Only an archaic system of justice would suggest that a woman cannot use deadly force to defend herself against common-law rape. Therefore, it necessarily follows that a woman who fears being raped, also fears the threat of serious bodily harm. Not surprisingly, the defendant²⁴ requests that this Court adopt a rule which would require the trial court to instruct the jury per se that a defendant may employ self-defense to repel a potential forcible rape.²⁵

However, neither party recognizes the difficulties the trial judges would have imposing such a broad rule.²⁶ The Legislature codified and expanded common-law rape into varying degrees of "criminal sexual conduct” in 1974. MCL 750.520a et seq.; MSA 28.788(1) et seq.²⁷ Unlike common-law rape, under these statutory provisions, forcible criminal sexual conduct may arise from circumstances in which the victim never had an honest and reasonable belief that his life is in imminent danger or threat of serious bodily harm. See, e.g., MCL 750.520b(l)(f)(iii), 750.520d(l)(b); MSA 28.788(2)(l)(f) (iii), 28.788(4)(l)(b). Rather than specify each and every statutory definition of criminal sexual conduct that would mandate an instruction regarding self-defense, we would hold that a person may use deadly force in self-defense to repel a criminal sexual assault when confronted with force that the person reasonably believes could result in imminent death or serious bodily harm. This instruction addresses the delicate balance between the well-established doctrine of self-defense on the one hand, and the extremely egregious and personally intrusive crime of criminal sexual conduct on the other. Accordingly, we would hold that a trial court should instruct the jury that a person may use deadly force in self-defense to repel a criminal sexual assault when confronted with force that the person reasonably believes could result in imminent death or serious bodily harm.

However, our resolution of this broader issue does not resolve the specific issue upon which this Court granted leave to appeal: "whether the trial court’s instruction adequately presented the defendant’s claim of self-defense to the jury.” Defendant never objected to the trial judge’s issuance of the criminal jury instruction. Consequently, we will only reverse the decision of the trial court if it resulted in manifest injustice. People v Kelly, 423 Mich 261; 378 NW2d 365 (1985). We would hold that it did not.

Plaintiff persuasively argues that the trial judge and counsel adequately instructed the jury that rape constitutes serious and imminent bodily injury. Defense counsel focused his voir dire inquiry upon the issue whether any potential juror had difficulty in returning a verdict of not guilty when defendant, a prostitute, used deadly force in self-defense to defend against a rapist. Most significantly, defense counsel reemphasized this point during closing arguments: ■

I asked you, ladies and gentlemen, is there any question in the minds of any one of you as to whether there could be a rape or an attempted rape of a prostitute and you all indicated by your silence that yes, there can be, and you are right. I asked you if there was any question in your mind as to whether or not rape is an act of great bodily harm. I submit to you that each of you, using your common sense, would definitely say yes. The rape of any woman, ladies and gentlemen, can cause her not only great bodily harm and mental harm, but it may last for a lifetime.

Let’s get to the meat of this thing, and I certainly don’t intend to take a great deal of time in my talking with you. There is no question but that Henry Green Thomas died and is a probability that he, himself, fell in the tub and there is also that reasonable possibility that the acts of Celestine Landrum, what she did, may have caused or contributed to the death of Henry Green Thomas. What she did, did she have a right to do? There again, I stated to you that defending herself against a rape or an attempted rape is an absolute right and if she did so in order to prevent that rape or in order to prevent great bodily harm, the Court will instruct you that then she had a right to do anything that she could do even to the point of taking a life. [Emphasis added.]

In our opinion, these statements, the conformity of the trial court’s self-defense instruction to the criminal jury instructions, the tenor of the entire trial court proceeding, and defendant’s failure to object to the issuance of these instructions, adequately presented defendant’s theory of self-defense to the jury in the instant case.²⁸ We do not believe that the instruction in the instant case resulted in the type of manifest injustice that this Court contemplated in Kelly when 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.’ ” Kelly, supra at 272; Henderson v Kibbe, 431 US 145, 154; 97 S Ct 1730; 52 L Ed 2d 203 (1976).

Accordingly, we reverse the decision of the Court of Appeals and reinstate the decision of the trial court.

In Heflin, Brickley, Boyle, and Griffin, JJ., concurred with Riley, C.J. In Landrum, Griffin, J., concurred with Riley, C.J. Brickley and Boyle, JJ., concurred in the result only.

1 MCL 750.329; MSA 28.561.

2 Defendant admitted that he considered Rich "a no-good bastard.” Defendant’s wife referred to Rich as a "leach and a sponge.” Defendant’s son, Joey Heflin, stated that defendant had previously threatened to "stop his (Rich Petersen’s) ass,” and his wife testified that some months earlier, defendant "probably would have beat him to death.” On the other hand, defendant’s wife also stated that Rich had threatened them on numerous occasions.

3 Some evidence suggested otherwise. The police found an empty box of 12-gauge shotgun shells on the bed in the guest bedroom. At the very least, this raised the inference at trial that defendant went into the house, retrieved and loaded the shotgun, and then returned outside to confront Petersen.

4 The police never found a gun in the car. In fact, Marcia testified that defendant knew Petersen did not own a gun.

5 Defendant did not expressly raise the imperfect self-defense argument. The Court of Appeals disposed of the issue on this basis. This Court denied defendant’s application for leave to appeal, which included the issue of "imperfect self-defense.” 430 Mich 890 (1988). Although defendant requested that we address this issue in his brief and at oral arguments, we decline to do so.

6 430 Mich 890 (1988).

7 Thomas had a blood-alcohol level of 0.16 percent. Defendant admitted drinking whiskey with Thomas. She also stated that she had consumed less than Thomas. However, the police never had an opportunity to test her blood-alcohol level.

8 The trial court dismissed the charged offense of first-degree murder at the close of proofs.

9 431 Mich 906 (1988).

10 For example, in Ora Jones, this Court concluded that the trial judge erred in not instructing the jury with regard to statutory involuntary manslaughter, but that the error did not require reversal because defendant never requested the instruction. Id. at 392-393. However, if the court classified the offense as a necessarily included lesser offense, then the trial judge committed error requiring reversal despite defendant’s failure to request the instruction. People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975). By not so concluding in Ora Jones, we tacitly agreed that statutory involuntary manslaughter falls within the cognate offenses to murder. See also People v Doss, 406 Mich 90, 98-99; 276 NW2d 9 (1979) (the presence of malice is the quality that distinguishes murder from manslaughter). In analogous circumstances, we recently classified the statutory offense of killing or injuring a person by careless, reckless, or negligent discharge of a firearm as a cognate lesser included offense to murder. Beach, supra at 462-463.

11 Since writing People v Germain, the author of this opinion acknowledges that on readdressing the issue sub judice she believes that her analysis in Germain was incorrect.

12 Plaintiff incorrectly concedes this point.

13 The dissent claims that we fail to acknowledge and justify our departure from previous precedent set by this Court. The dissent bases its argument upon the premise that "implicit conclusions” constitute binding precedent upon this Court. However, just as obiter dictum does not constitute binding precedent, we reject the dissent’s contention that "implicit conclusions” do so. Therefore, we see no basis for the dissent’s allegations that we have failed to "acknowledge” or "justify” a departure from prior decisions. Put simply, we have not previously decided the issue before us today, and there is no binding precedent from which we must acknowledge or justify a departure.

14 This Court also held that the trial court did not err in not giving, sua sponte, an instruction regarding the statutory offense of involuntary manslaughter, MCL 750.329; MSA 28.561. Id. at 393.

15 Even People v Rochowiak, 416 Mich 235, 243; 330 NW2d 669 (1982), which this Court recently has questioned, stated that, "Ora Jones is distinguishable as a case where the defense theory was accident.”

16 Several older decisions stated that a defendant must only "honestly” believe that his life is in imminent danger or that there is a threat of death or serious bodily harm. People v Lennon, 71 Mich 298, 300-301; 38 NW 871 (1888); People v Burkard, 374 Mich 430, 438; 132 NW2d 106 (1965); People v Deason, 148 Mich App 27, 31; 384 NW2d 72 (1985); People v Robinson, 79 Mich App 145, 156-161; 261 NW2d 544 (1977). Apparently, the dissent believes that this Court has not recently addressed the issue whether the defendant must "honestly and reasonably” or only "honestly” believe his life is in imminent danger. However, in our opinion, this Court addressed and held in Doss that a defendant must "honestly and reasonably” believe his life is in imminent danger to avail himself on the theory of self-defense. We adhere to Doss and those decisions which require both an "honest and reasonable” belief. Furthermore, if "reasonableness” is not an additional element of self-defense, then the "unreasonableness” of defendant’s beliefs should not mitigate murder to manslaughter.

17 Similarly, this Court has held that a defendant was not entitled to an instruction on self-defense when the trial court instructed the jury on murder and manslaughter because the defendant denied committing the homicide. People v Droste, 160 Mich 66, 80; 125 NW 87 (1910). See also People v Trammell, 70 Mich App 351, 355; 247 NW2d 311 (1976) (the defendant argued that he accidentally killed the victim and, therefore, the trial judge did not err in giving, sua sponte, an instruction on self-defense).

18 Additionally, we reject plaintiff’s request to overturn People v Arthur Jones, supra. In Arthur Jones, we held that the trial court erred in not instructing the jury regarding involuntary manslaughter because the defendant introduced some evidence by "accident.” Plaintiff wants this Court to adopt the position advocated by the dissent which focused upon whether the defendant requested the instruction on involuntary manslaughter. While the defendant should request the instruction regarding involuntary manslaughter under the circumstances in the instant case, this does not (üminish the trial judge’s duty to issue the requisite lesser included instruction when supported by the evidence and consistent with defendant’s theory of the case.

Conversely, we reject defendant’s contention that we should require the trial judge to instruct the jury regarding involuntary manslaughter anytime the court instructs the jury regarding voluntary manslaughter. We have recognized that voluntary and involuntary manslaughter quite often arise out of different factual scenarios. People v Townes, 391 Mich 578; 218 NW2d 136 (1974). Accordingly, the evidence adduced at trial must be the determinative factor in deciding whether to issue an instruction.

19 Defendant does not argue that the facts of the instant case fall within the "unlawful act” definition of involuntary manslaughter. Even assuming that the defendant had so argued, we would be constrained to disagree with her under the facts of the instant case. The defendant killed Thomas by repeatedly bludgeoning him to death with a telephone, a bottle, and a leg of a table. These acts either constituted a felonious act (assault with a dangerous weapon) or an act naturally tending to cause great bodily harm (assault with intent to do great bodily harm). Therefore, as we concluded in Beach, the nature of the underlying act precludes characterization of the offense in the instant case as involuntary manslaughter.

20 Our order granting leave to appeal excluded argument regarding the doctrine of imperfect self-defense. However, in light of statements made at oral argument, in addressing the first issue that we granted leave to appeal to consider, "whether the trial court erred in not giving, sua sponte, an instruction on the offense of involuntary manslaughter,” we must briefly address the doctrine of imperfect self-defense insofar as it applies to the facts of the instant case.

21 The dissent’s analogy of the instant case to People v Jackson, 390 Mich 621; 212 NW2d 918 (1973), is misplaced. Jackson involved a situation in which the defendant aimed his gun at his adversary but missed and hit an innocent bystander. Thus, Jackson involved the shooting of the bystander and not the person at which the defendant aimed. Had defendant shot his adversary in proper self-defense, and not the bystander, then he would be guilty of no crime. We justify the disparate treatment of these offenses on the ground that the defendant may have an entirely different mental pattern with regard to his intent to kill his adversary versus the bystander. On the other hand, Jackson would be analogous to the instant case if the defendant intentionally killed his adversary, but not in proper self-defense.

22 Defendant in HeBin cites several cases for the proposition that should require an instruction regarding involuntary manslaughter. People v Clark, 130 Cal App 3d 371, 381-382; 181 Cal Rptr 682 (1982); State v Denny, 27 Ariz App 354; 555 P2d 111 (1976). However, a review of these cases illustrates that in each case, the defendant not only argued self-defense, but also "accidental lulling.” Rather, the majority of jurisdictions that recognize "imperfect self-defense” use it as a method of negating the element of malice in a murder charge. These jurisdictions assimilate it with voluntary manslaughter committed in the “heat of passion” which also negates the malice element of murder. Consequently, in these jurisdictions, "imperfect self-defense” mitigates murder to voluntary manslaughter.

23 (1) One of the defenses raised in this case is that the defendant acted in lawful self-defense. The law recognizes the right of a person to use force or even to take a life in defense of his own person under certain circumstances. When a person acts in lawful self-defense, such actions are excused and the defendant is not guilty of any crime.

(2) In considering whether or not the defendant acted in lawful self-defense, you should carefully consider all of the evidence in light of the following rules:

(3) First, at the time of the act the defendant must honestly believe that he is in danger of being killed or of receiving serious bodily harm. If he so believes, he may immediately act and defend himself, even to the extent of taking human life if necessary. Although it may now turn out that the appearances were false and that he was mistaken as to the extent of the real danger, he is to be judged by the circumstances as they appeared to him at the time of the act.

(4) Second, the degree of danger which must be feared is serious bodily harm or death. A person is not justified in killing or inflicting great bodily injury upon another in order to protect himself from what appears to be slight or insignificant injury. In deciding whether at the time the defendant feared for his life or safety, you should consider all of the surrounding circumstances: [the condition of the parties, including their relative strength/whether the other party was armed with a dangerous weapon or had other means to injure the defendant/ the nature of the threat or attack of the other party/previous acts of brutality or threats of the other party of which the defendant was aware],

(5) Third, the act or acts taken by the defendant must have appeared to the defendant at the time to be immediately necessary. A person is justified in using only such an amount of force as may appear necessary at the time to defend himself from danger. In considering whether the degree of force appeared to be necessary, you should consider the excitement of the moment and what alternatives the defendant knew existed.

A defendant in a state of excitement is not held to fine distinctions of judgment about how much force is necessary for him to use to protect himself. [CJI 7:9:01.]

The jury instructions only require an "honest” belief. However, as we stated in Heflin, supra, a "defendant [must] honestly and reasonably believe[ ] that his life is in danger or that there is a threat of serious bodily harm.”

24 The Women Lawyers Association of Michigan filed an amicus curiae brief. For purposes of simplicity, we reference their arguments to defendant.

25 The plaintiff apparently concedes this, but contends that the trial court adequately instructed the jury on self-defense in the instant case.

26 The dissent apparently recognizes the problem trial judges would have in deciding which statutory provisions of criminal sexual conduct would require an instruction of a defendant’s right to use deadly force under the longstanding doctrine of self-defense. However, rather than attempt to apply the doctrine as it exists to the facts of a particular case, the dissent redefines the rule as it applies to all criminal sexual conduct. The dissent bases its decision upon the following analogy: "[t]his Court has the luxury of interpreting common-law formulations to reach a correct result. The Court can say that a tomato is a vegetable even though it is a fruit.” Post, p 557 (Levin, J.).

In other words, the dissent believes that this Court can call something that which it is not. Although nobody disagrees that "rape” is one of the most reprehensible crimes, we cannot agree with the dissent that we should create a different and special rule that would allow the use of deadly force to any and all allegations of criminal sexual conduct. While the dissent’s proposed rule may be socially appealing, we believe it sets dangerous legal precedent. For example, what happens in a case involving self-defense of another? Under traditional notions of this doctrine, the third party steps into the shoes of the individual threatened. However, under the dissent’s proposed rule, it would seem that a person who overhears a man threaten a woman with future injury if she does not consent to sexual intercourse would be justified in killing the threatening person. Although we doubt the dissent intends this result, it is the logical extension of its rule in the instant case. Of course, we suppose that just as the dissent created a special rule of self-defense to meet all the statutory crimes of criminal sexual conduct, it could also conclude that the special rules it adopts today only apply to a woman being attacked. As the dissent states, "[t]his Court can say that a tomato is a vegetable even though it is a fruit.” In our opinion, rather than altering the law in the instant case, we prefer to apply it in a consistent and workable manner, while at the same time making sure that those threatened with criminal sexual conduct have the ability to defend themselves with the amount of force necessary under the circumstances.

27 1974 PA 266.

28 We reject defendant’s contention that the prosecutor misled the jury during closing arguments when he argued that defendant did not act in self-defense, but rather murdered Thomas for money. Plaintiff argued throughout the trial that defendant beat Thomas to death because he would not pay her for having sex with him, not because she feared serious bodily harm or being raped. Defendant argued that defendant acted in self-defense. It is not surprising that the prosecutor stressed the facts which best supported his theory of the case; whereas, defendant argued those which supported her theory of the case. However, this does not mean that the jury did not receive instructions which adequately apprised them of defendant’s theory of self-defense. The trial court and defendant made sure the jury understood defendant’s right to use deadly force under the facts of the instant case.