People v Bailey ( 1996 )

Boyle, J.

We are asked to decide if the trial court erred in refusing defendant’s request to provide the jury with an instruction on assault with intent to do great bodily harm less than murder¹ as a cognate lesser included offense of the principal charge of second-degree murder.² We hold that the trial court properly refused to give that instruction. No evidence was presented at trial that any alleged act following defendant’s assault of the decedent constituted an independent intervening cause, cutting off defendant’s criminal liability for the death of the decedent. Evidence that defendant proximately caused decedent’s death thus stood uncontroverted. At best, defendant only introduced evidence that there may have been a second, contributory cause of death in addition to the defendant’s admitted attack on the decedent with a baseball bat. Consequently, because there was no evidentiary basis for separating a death resulting from defendant’s intentional act from the theory that defendant committed only an intentional act of assault with intent to commit great bodily harm, the defendant failed to meet the requirement for cognate lesser included offense instruction that the evidence adduced at trial support the requested lesser offense. People v Beach, 429 Mich 450, 464; 418 NW2d 861 (1988). We reverse the decision of the Court of Appeals and remand to that Court for consideration of the remaining issues raised by the defendant in the Court of Appeals, but not addressed in its opinion.

i

A

This appeal arises from an incident that occurred on July 15, 1991, in the City of Detroit. Although somewhat differing accounts of the events were presented at trial, for present purposes, we rely primarily on the account of the incident provided by defendant. Richard Bailey testified that on the date noted above, he encountered the decedent, Charles Peoples, on the front porch of the apartment building where both resided when defendant was taking his dog for a walk. Defendant chastised Peoples for drinking beer on the front porch, an activity that had recently been prohibited by the owner of the building.³ Peoples responded that Bailey had no business telling him what to do.

Defendant further testified that he then proceeded off the porch and across the street with his dog. At that time, defendant noticed his brother and sister-in-law driving up the alley. Defendant continued across the street, and upon turning to return to the apartment building, noticed his brother standing outside his car, with a baseball bat in his hands. Defendant also observed that his brother and Peoples, who was on the sidewalk on the passenger side of the car, were shouting at each other, although he could not tell what the discussion was about.⁴ When Peoples stepped back a couple of steps, defendant’s brother tossed the baseball bat in the back seat of his car. At that point, Peoples returned to his seat on the porch.

Bailey testified that he interpreted the events he observed as continued acts of harassment of his family by Peoples. Bailey alleged that throughout the three-week period that he had known the decedent, Peoples had continually harassed and made negative comments to Bailey and his family. Responding to the confrontation he witnessed between Peoples and his brother, Bailey walked back across the street, dropped his dog’s leash in front of his brother, and retrieved his brother’s baseball bat from the car. Bailey then proceeded around the car to where Peoples was seated, yelled at Peoples, “I’m tired of you fucking with my family. I’m tired of you just doing what you can do,” and struck Peoples in the left knee with the baseball bat. Peoples then stood up, which Bailey interpreted as a sign that Peoples was going to retaliate. Bailey reacted by striking Peoples again with the bat, this time hitting him on his left side. Peoples then walked to the side rail of the porch, grasped it in both hands, and asked Martha Anderson, a woman who lived with him and who was present on the porch during the course of these events, to let him in the door of the apartment building. Anderson let Peoples inside.

Although no witnesses observed Peoples immediately after entering the apartment building, it is uncontroverted that Peoples made his way up to the third floor. Defendant presented the testimony of Helen Noble, a resident of the apartment building who lived with defendant Bailey, who testified that she observed Peoples staggering down the third-floor hallway of the apartment for a few seconds and then saw him fall on his face. Noble further, stated that she summoned Gerald Coutier, another resident of the building, to the spot where Peoples had collapsed and then departed for work.

At trial, Coutier testified that when he first observed Peoples lying in the third-floor hallway, he asked Peoples if he was “okay,” to which Peoples responded affirmatively and said he was just going to his brother’s apartment.⁵ Coutier testified that he observed a cut above Peoples’ left eye, and told Peopies he might need some stitches. Peoples repeated his previous response, and Coutier went to his apartment.

Coutier testified that after his initial encounter, he passed by Peoples on two additional occasions. The final time he observed Charles Peoples lying in the hall, Coutier testified that Peoples’ brother, William, and Martha Anderson were also present. On this occasion, Coutier testified that he observed William kick Peoples two times on the left side, wearing a pair of blunt-toed dress shoes, both times stating “Come on, get up.” Coutier stated that when kicked, Peoples’ body rolled up and back. On rebuttal, Anderson testified that she had summoned William Peoples to the hallway, that William came into the hallway without shoes on, and that William never kicked the decedent.⁶

The parties stipulated to the Wayne County medical examiner’s report, which was read into the record:

“I hereby certify that on the 16th day of July in the year 1991, at the Wayne County Medical Examiner’s Office, in accordance with the provisions of law, there was made an examination of the body and personal inquiry into the cause and manner of the death of Charles Peoples, a 45-year old white male who died at Detroit Receiving Hospital, Detroit, Michigan on the 15th day of July in the year 1991. It is my opinion that the decedent died of blunt force injuries sustained as a victim of assault. There was a purple contusion on the left side of the back, back of the left leg, and a laceration of the forehead. The internal examination showed left rib fractures involving 10 to 12, ruptured spleen with capsular hematoma and hemoperitonium [sic]. The manner of death is homicide.”

B

Defendant Bailey was charged with second-degree murder and tried before a jury. In addition to receiving instruction on the elements of the principal charge, the jury was instructed on the lesser included offense of voluntary manslaughter and with regard to the requisite factual finding to conclude that defendant’s act caused decedent’s death. The trial court refused defendant’s request that the jury be instructed on the lesser included offense of assault with intent to do great bodily harm less than murder.

During closing argument, defense counsel asserted that the jury lacked sufficient evidence to conclude that defendant’s admitted blows with the baseball bat caused decedent’s death. He also acknowledged that the jury lacked testimony about whether the kicks allegedly administered by decedent’s brother could have caused the injuries reported by the medical examiner. Nonetheless, counsel further argued that the kicks acted as an intervening cause of death.⁷ The jury returned a verdict finding defendant guilty of voluntary manslaughter.

Defendant appealed his conviction as of right in the Court of Appeals, arguing that the trial court had erred in refusing to instruct the jury on assault with intent to do great bodily harm less than murder and that reversal was required. The Court of Appeals reversed, citing this Court’s order peremptorily reversing the Court of Appeals and remanding the case for a new trial in People v Boles, 420 Mich 851 (1984), rev’g 127 Mich App 759; 339 NW2d 249 (1983).⁸ In Boles, we opined that the trial judge had erred in refusing to give a requested instruction on assault with intent to do great bodily harm less than murder as a lesser included offense of second-degree murder, even though the Court of Appeals had found that the defense theory “conceded that defendant had killed the deceased with a knife.” Boles, 127 Mich App 771. Explaining that it felt constrained by Boles, the Court of Appeals urged this Court, “in reviewing this case, to explain ‘how and why, where a defendant admits acting with felonious intent and does not dispute death as a result, a jury must be permitted to find nonculpability for such death.’ ” 207 Mich App 8, 12; 523 NW2d 798 (1994) (citation omitted). We granted the prosecutor’s application for leave to appeal. 449 Mich 852 (1995).

n

A

Initially adopted as an interim measure until a court rule could be promulgated, People v Henry, 395 Mich 367, 374; 236 NW2d 489 (1975), the formula for instruction on lesser included offenses first articulated by this Court in a series of cases in 1975 continues to provide the basis for guidance regarding the propriety of such instruction.⁹ Those foundational rules, however, have been developed and refined by this Court through a number of opinions over the past twenty years. See, e.g., People v Stephens, 416 Mich 252; 330 NW2d 675 (1982); Beach, supra, People v Pouncey, 437 Mich 382; 471 NW2d 346 (1991); People v Hendricks, 446 Mich 435; 521 NW2d 546 (1994). Although the prosecution again urges us to adopt a rational view of the evidence approach to included offenses consistent with federal practice, Sansone v United States, 380 US 343, 349-350; 85 S Ct 1004; 13 L Ed 2d 882 (1965), see Hendricks, supra at 442-443, n 12, we approach resolution of this case by applying the common-law method of analyzing the specific question before us within the bounds of our case law.

When reviewing the propriety of a requested lesser included offense instruction, we first determine if the lesser offense is necessarily included in the greater charge, or if it is a cognate lesser included offense. Necessarily included lesser offenses “must be such that it is impossible to commit the greater without first having committed the lesser.” People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975). Cognate lesser included offenses “are related and hence ‘cognate’ in the sense that they share several elements, and are of the same class or category, but may contain some elements not found in the higher offense.” Id.

The distinction between necessarily included and cognate lesser offenses is important to a trial court determining whether to grant a properly requested lesser offense instruction, because it is only in the area of cognate lesser included offenses that the evidence adduced at trial need be reviewed to determine if it would support a conviction of the cognate offense. Beach, supra at 463-464. Before a cognate offense instruction is given, it is also necessary that the lesser offense be of the same class or category as the principal charge. Hendricks, supra at 444. If no reasonable jury could find a cognate offense because of the absence of evidence, “then the [trial] judge should not give the requested instruction.” Pouncey, supra at 387.

B

Defendant correctly characterizes the offense of assault with intent to do great bodily harm less than murder as a cognate lesser included offense of the principal charge of second-degree murder. The greater offense of second-degree murder can be committed without committing assault with intent to do great bodily harm less than murder, and both crimes are serious offenses against the person.

The elements of assault with intent to do great bodily harm less than murder are (1) an assault, i.e., “an attempt or offer with force and violence to do corporal hurt to another” coupled with (2) a specific intent to do great bodily harm less than murder. People v Smith, 217 Mich 669, 673; 187 NW 304 (1922). Commission of the crime is punishable by imprisonment for not more than ten years, or a fine not in excess of $5,000. MCL 750.84; MSA 28.279. Second-degree murder is a general intent crime, People v Langworthy, 416 Mich 630, 645-651; 331 NW2d 171 (1982), that encompasses all murder other than first-degree murder and is punishable by imprisonment for life, or any term of years. MCL 750.317; MSA 28.549. The elements of second-degree, or common-law, murder are “(1) a death, (2) caused by an act of the defendant, (3) absent circumstances of justification, excuse, or mitigation, (4) done with an intent to kill, an intent to inflict great bodily harm, or an intent to create a very high risk of death with the knowledge that the act probably will cause death or great bodily harm.” People v Dykhouse, 418 Mich 488, 508-509; 345 NW2d 150 (1984). While the mens rea of intent to inflict great bodily harm that is necessary for the lesser offense requested in the instant case is sufficient to meet the required mens rea for second-degree murder, the greater crime can also be committed with different mental states than intent to inflict great bodily harm. Therefore, the greater offense of second-degree murder can be committed without committing the lesser offense of assault with intent to do great bodily harm less than murder, dictating that the lesser offense be classified as cognate.

c

As Chief Justice Brickley’s analysis in Beach explains, when a cognate offense instruction is requested, the evidence adduced at trial must be examined to determine if it would support conviction of the lesser offense. Beach, supra at 463-464. In People v Chamblis, 395 Mich 408, 419-425; 236 NW2d 473 (1975), in the context of lesser included offenses, this Court rejected an inquiry into the evidence adduced at trial that would direct a trial court to determine if “there is evidence which would justify the jury in concluding that the greater offense was not committed and a lesser included offense was committed.” Id. at 419 (emphasis in original, citation omitted). The Chamblis Court, instead favored allowing greater jury discretion to bring in any verdict it deemed just by inquiring simply whether the evidence adduced at trial would support a guilty verdict on the lesser charge, had defendant only been charged on the lesser offense. Id. at 423.

More recently however, in Beach, Pouncey, and Hendricks, we have explained that in the context of cognate offenses, the jury’s mercy-dispensing power is not unlimited.

[U]nless there is some evidentiary protection against an appeal to the jury’s mercy-dispensing power, it is likely that the evidence introduced will be “whatever manner of evidence ... of use in obtaining a charge on the least punitive lesser included offense possible in order that the jury may have the opportunity to be merciful.” ... If the jury’s mercy-dispensing power is unrestrained, attention to the factfinding duty may be diverted, and the jury may assume the punishment prerogative of the court. [Hendricks, supra at 447.]

As we clarified in our examination of the same class or category requirement in Hendricks and the evidentiary issue in Beach and Pouncey, our included-offense precedent is not an invitation for a court to abdicate its duty. More specifically, it is neither necessary nor sound policy to require the trial court to blind itself to uncontroverted proof of an element of the greater crime that would necessarily raise a defendant’s culpability to that of the more serious crime, if all elements common to the two offenses were found to be proven beyond a reasonable doubt. Where a defendant admits activity that, as a matter of law, constitutes proof of the distinguishing element, the basis for instruction on the lesser crime evaporates.¹⁰

By necessary implication, the crime of assault with intent to do great bodily harm less than murder presupposes that the assailant’s act has not caused the death of the victim. If such harm has occurred, and the defendant’s admitted act constitutes a legally cognizable cause of the death, instruction of the jury regarding crimes not intended to punish acts causing such an egregious result are logically precluded. At the point a court has before it uncontested evidence that a criminal homicide has been caused by a defendant’s acts, there is no justification for instruction on merely assaultive offenses.¹¹ If a lesser cognate instruction is to be justified in such an instance, there must be some evidentiary basis for the jury to conclude that the causation chain leading from the greater harm back to defendant’s admitted acts has been broken by an independent, intervening cause.

D

In People v Edwards, the companion case to People v Beach, supra, we considered the propriety of instruction on the offense of involuntary manslaughter as a cognate lesser included offense of the principal charge of first-degree murder. In Edwards, a resident of a unit of an apartment building perished in a fire that originated on the front porch of the building. Evidence was presented that the defendant had argued several days before the fire with another resident, at which time the defendant threatened to bum the building down. The defendant admitted to several friends that he had set fire to the apartment building, and traces of gasoline were found on the shirt the defendant wore on the night of the fire. The defendant presented “virtually” no defense. Id. at 453-454.

In his appeal from his first-degree murder conviction, the defendant argued that an instruction on involuntary manslaughter was justified by the evidence of the location where the fire started. He asserted that the evidence that the fire started on the porch could lead the jury to infer that whoever set the fire acted without malice, but rather in an unintentional, grossly negligent manner. Such inference, the defendant concluded, would support conviction of the lesser included offense of involuntary manslaughter. Id. at 455.

In an opinion by Chief Justice BRICKLEY, a majority of the Court rejected the defendant’s argument, and found there was no evidence adduced at trial supporting a conviction of involuntary manslaughter. The form of involuntary manslaughter at issue in Edwards included, inter alia, the negative elements of a defendant acting without malice, and committing an unlawful act not naturally tending to cause death or great bodily harm. Id. at 477. No evidence had been presented by the defendant, however, tending to negate either the existence of malice, or that the criminal act of setting the fire naturally tended to cause death or great bodily harm. All that was available to the jury was the opportunity to reject the uncontested evidence of a wilful and malicious act of arson, which naturally tends to cause death or great bodily harm, and engage in “pure speculation” that the defendant accidentally started the fire. We found the lack of evidentiary support for the defendant’s contentions violative of the requirement that “[t]here must be some evidence on the record to support the elements of the requested lesser included (cognate) offense. . . . [T]here is no way of separating uncontested evidence of an intentional act of arson from a theory of unintentional death.” Id. at 480.

We contrasted the lack of evidence supporting Edwards' theory with People v Boeder, 79 Mich App 595; 262 NW2d 872 (1977), in which a lesser included offense instruction was justified by the evidence. In Roeder, the defendant, charged in the death of her two children with felony murder, presented evidence that she may have started the fire that killed her children by emptying an ashtray into a wastebasket, and that she attempted to rescue the decedents. “The defendant’s testimony tended to negate both malice and the existence of an act naturally tending to cause death or great bodily harm.” Beach, supra at 478. We concluded:

Where the evidence suggests only that the criminal act naturally tends to cause death or great bodily harm, an instruction on the lesser included offense of involuntary manslaughter is simply not justified. [Id.]

In the present case, as in Beach, we must determine if the defendant has done more than merely invite the jury to engage in “pure speculation” that defendant’s admitted blow to the decedent’s side was not a legally proximate cause of decedent’s death. In order for instruction on the lesser offense of assault with intent to do great bodily harm less than murder to be justified by the evidence, there must be some evidentiary basis on the record for the jury to conclude, first, that the defendant did not cause decedent’s death, and, second, that defendant did not act with malice. Like the defendant in Beach, defendant in this case presented no evidence that his acts did not cause the victim’s death. Further, while his testimony may have negated the “intent to kill” prong of malice, it did not create an issue of fact with respect to the nonexistence of an act naturally tending to cause death or great bodily harm. Beach, supra at 477. Where there is no such evidence on the record, the defendant has caused a greater harm for which instruction on the lesser crime is inappropriate. Disposition of the present case turns then, on a determination whether defendant’s evidence of alleged kicks, administered by decedent’s brother while decedent lay collapsed in the hallway as a result of the blow inflicted by the defendant, was sufficient to create an issue of fact regarding malice, to suggest a proximate cause of decedent’s death, and to permit the factfinder to conclude that an independent, intervening cause cut off defendant’s criminal liability for decedent’s death. Instruction on the lesser offense without such evidence would be a distortion of the desired rationality of the fact-finding process that we rejected in Beach.

“The element [this] Court . . . found essential to a fair trial was not simply a lesser included offense instruction in the abstract, but the enhanced rationality and reliability the existence of the instruction introduced into the jury’s deliberations. Where no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process.” [Beach, supra at 480-481, quoting Spaziano v Florida, 468 US 447, 455; 104 S Ct 3154; 82 L Ed 2d 340 (1984).]

See also People v Mills, 450 Mich 61, 81-82; 537 NW2d 909 (1995), modified and remanded 450 Mich 1212 (1995) (A trial court is not required to provide the jury with an instruction requested by a defendant where the record is devoid of any evidence supporting such an instruction).

The dissent’s reading of Ora Jones disregards the clarification and evolution of the cognate law of lesser included offenses since 1975 and overlooks the fact that in Ora Jones, there was evidentiary support for the cognate offense. Moreover, contrary to Chief Justice Brickley’s analysis in Beach, the dissent analyzes the evidentiary issue as if the question were merely whether the evidence was sufficient to support the verdict in the face of a challenge to insufficiency, rather than whether the offense requested would promote rationality in the deliberative process. Where a defendant admits felonious intent and does not furnish a basis for a reasonable jury to find that the act was not the cause of death, People v Pouncey, supra, the jury should not be charged with cognate offenses that permit a finding of nonculpability for the death.

E

In assessing criminal liability for some harm, it is not necessary that the party convicted of a crime be the sole cause of that harm, only that he be a contributory cause that was a substantial factor in producing the harm. The criminal law does not require that there be but one proximate cause of harm found. Quite the contrary, all acts that proximately cause the harm are recognized by the law.

If a certain act was a substantial factor in bringing about the loss of human life, it is not prevented from being a proximate cause of this result by proof of the fact that it alone would not have resulted in death, nor by proof that another contributory cause would have been fatal even without the aid of this act. [Perkins & Boyce, Criminal Law (3d ed), p 783.]

In Holsemback v State, 443 So 2d 1371, 1381-1382 (Ala Crim App, 1983), the Court of Criminal Appeals of Alabama considered the separate arguments of two defendants, each of whom had inflicted knife wounds on and had been convicted of the murder of a single decedent. Each defendant argued that because the other had been convicted of the crime, and they had not acted in concert, they could not be convicted of murder. In rejecting the defendants’ contentions, the court observed that “[t]o render a defendant guilty, it is not necessary that the blow given by him, or his wrongful act, was the sole cause of death. Even if the blow or act was only a partial cause accelerating death, the defendant is nevertheless guilty.” Id. at 1382 (citation omitted). The court analyzed the issue presented through quotation from Wharton, Homicide, § 44 (1907):

“Two persons acting independently may contribute to the death of another, so that each will be guilty of the homicide .... And where a fight occurred between two persons, and a third took part in it in favor of one of them, and both inflicted injuries upon the other by blows and kicks, and the latter died, the cause of death being a rupture of an artery in the head caused by the blows or lacks received from them, both are to be regarded as equally guilty of causing death.” [Holsemback at 1381.]

See also United States v Hamilton, 182 F Supp 548, 550-551 (D DC, 1960).

Where an independent act of a third party intervenes between the act of a criminal defendant and the harm to a victim, that act may only serve to cut off the defendant’s criminal liability where the intervening act is the sole cause of harm. Perkins & Boyce, supra at 784; People v Elder, 100 Mich 515; 59 NW 237 (1894) (The trial court erroneously instructed the jury that it could find the defendant guilty of manslaughter for knocking the decedent to the ground and putting him in a position in which he could be kicked by a third party, even if the kick was the sole cause of death and there was no concert of action between the assailants).

If the deceased died of the combined effect of a wound inflicted with malice and of a disease disconnected from the wound, the accused is guilty. An intervening cause must be the efficient cause of death, or at least more than a contributing cause, before the accused in [sic] not guilty for such reason. [Houston v State, 70 So 2d 338, 339 (Miss, 1954).]

For the same reason, the contributory negligence of a decedent will not exonerate a defendant of criminal responsibility, where the defendant’s negligence is a proximate cause of the decedent’s death, People v Tims, 449 Mich 83; 534 NW2d 675 (1995). These classic principles dictate that the defendant was not entitled to an instruction on assault with intent to murder absent a factual foundation for a finding by the jury that the intervening act was the sole cause of the harm.

The present case may be analogized to those cases in which a defendant claims that his criminal liability for inflicting a nonmortal injury on a victim should be relieved as a result of negligent medical treatment interceding between the injury and the decedent’s death. In those cases, it is only where there is evidence that the medical treatment was grossly negligent that such treatment may be considered as an intervening cause of death, cutting off the defendant’s liability.

Defendant cannot exonerate himself from criminal liability by showing that under a different or more skilful treatment the doctor might have saved the life of the deceased and thereby have avoided the natural consequences flowing from the wounds. Defendant was not entitled to go to the jury upon the theory claimed unless the medical treatment was so grossly erroneous or unskilful as to have been the cause of the death, for it is no defense to show that other or different medical treatment might or would have prevented the natural consequences flowing from the wounds. [People v Townsend, 214 Mich 267, 279; 183 NW 177 (1921) (emphasis added).]

In the medical treatment setting, evidence of grossly negligent treatment constitutes evidence of a sole, intervening cause of death. Anything less than that constitutes, at most, merely a contributory cause of death, in addition to the defendant’s conduct. Similarly, in the present case, in order to justify submitting to the jury the issue whether defendant should be convicted of assault with intent to do great bodily harm less than murder, the record must contain some evidence that an injury inflicted on the decedent after the defendant’s attack constituted a sole, intervening cause of death. Defendant relies on the evidence of kicks administered by decedent’s brother as sufficient for this purpose.¹²

F

We find that defendant failed to introduce evidence that defendant’s acts were not a legally recognizable cause of decedent’s death. We thus hold that instruction on the lesser included offense of assault with intent to do great bodily harm less than murder was unwarranted.

Defendant acknowledged, and in fact testified, that he inflicted a blow to decedent’s left side with a baseball bat, and that decedent received assistance to enter the apartment building after being struck. After the blow was received, and before any alleged intervening assault on the decedent, defendant’s witness testified that she saw the decedent collapse in the apartment building hallway. The stipulated findings of the medical examiner, that “decedent died of blunt force injuries,” are consistent with the injuries admittedly inflicted on the decedent by the defendant. While defendant presented testimony of independent kicks administered to the decedent by his brother, the defendant failed to introduce evidence from which the jury could rationally find that the decedent died solely as a result of the second assault. Dispositively, defendant presented no evidence of the injuries that could have resulted from those kicks. Instead, defendant merely presented evidence of a possible additional, contributory cause of the decedent’s death.

At the time of jury deliberation, there was an evidentiary void precluding defendant’s lesser included offense instruction. The jury had been presented with an admission by the defendant that he had inflicted blunt-force injuries on the defendant, consistent with the injuries that caused death, and that the blows administered by the defendant caused serious injuries leading to decedent’s collapse shortly before death.¹³ The jury also had before it contested evidence of a second blunt-force injury, administered after the decedent had been seriously injured by the defendant, that the jury could infer may have contributed to decedent’s death. Contribution to death by the second injury, however, is not enough to cut off defendant’s criminal liability for the death that occurred. Even if defendant’s act alone would not have resulted in death, his action stood, uncontested, as a legally cognizable factor in bringing about the harm unless there was some evidence that the second alleged assault was the sole cause of death. Although defense counsel argued in his closing statement that the alleged kicks represented possible evidence of an independent intervening cause, and that the jury had insufficient evidence that either assault could have caused the injury leading to death, opening and closing statements are not evidence, and suggestion of defendant’s theory in such statements “does not provide the supportive evidence needed to warrant a jury instruction of the same.” Mills, supra at 82, n 15.¹⁴ The jury was left to engage in “pure speculation” that only the kicks from the decedent’s brother, inflicted in front of witnesses while his brother was exhorting the decedent to “come on, get up,” caused the decedent’s death. Such speculation, unsupported by any evidence on the record, fails to meet the requirements for cognate lesser included offense instruction. There was simply no way for the jury to separate the uncontested evidence of defendant’s assault and decedent’s condition as a result from defendant’s theory of death solely resulting from an independent cause. Defendant’s denial of a specific intent to cause death did not constitute evidence negating the malice necessary for second-degree murder, and defendant offered no evidence that his acts were not the proximate cause of death. As in Beach, supra at 480, a disbelief of the evidence regarding cause of death “leaves no evidence at all — only speculation.”

in

Defendant failed to present any evidence that his assault of the decedent with a baseball bat did not constitute a proximate cause of decedent’s death. Because defendant’s act stood uncontested as a cause of such harm, the defendant failed to present evidence warranting instruction on the lesser included offense of assault with intent to commit serious bodily harm less than murder, an assaultive offense inappropriate where defendant’s acts caused the death of another. We therefore reverse the decision of the Court of Appeals, and remand to that Court for consideration of the remaining issues raised by the defendant in the Court of Appeals, but not addressed in its opinion.¹⁵

Riley, Mallett, and Weaver, JJ., concurred with Boyle, J.

1 MCL 750.84; MSA 28.279.

2 MCL 750.317; MSA 28.549.

3 Defendant testified that the building owner had asked him to keep an eye out to make sure there was compliance with the rule.

4 Defendant’s brother testified that Peoples had approached the car and asked if they wanted to go smoke some cocaine with him.

5 Charles Peoples’ brother resided in an apartment on the third floor.

6 William Peoples died later on the same day as the incident before us from unrelated causes.

7 In his closing argument, defense counsel stated, in pertinent part:

[Defendant] did it hard enough, apparently, to do some damage, obviously. Now, you have in evidence also, you don’t have any testimony for that but what you have is a report.

You don’t have any testimony as to whether or not the kicking could have caused in this particular case the rupture of the spleen.

You don’t have that testimony. You don’t have testimony about whether or not the kicking could have caused injury, fractures to the ten to twelfth ribs.

And based upon what is said here, unless you have some other knowledge, you don’t really know what capsillary hematoma or what hemoperiteneum [sic] is.

What you [have] then is not enough to say that it was by the bat that the — the bat was the instrument. And it was not [by] the bat that the deceased met his death. There was, we submit to you, an intervening cause here, something that happened after that, the kicking, that in effect, while the person was in a bad shape, in effect, caused the death.

8 207 Mich App 8; 523 NW2d 798 (1994).

9 Statutory authorization for allowing a trier of fact to convict a defendant of lesser degrees of an offense charged, except where the defendant is charged with certain drug offenses, is provided by MCL 768.32; MSA 28.1055.

10 The dissent argues that our decision allows “the trial judge to usurp the jury’s determination of all essential elements of the offense” because “the jury could choose to believe or disbelieve any or all the evidence.” Post at 688. This indictment is incorrect for two reasons. First, defendant presented no evidence to permit the jury to conclude that he did not act with malice or that his act was not the factual and legal cause of decedent’s death. Second, simply because the jury has the power to dispense mercy and reach conclusions contrary to the weight of the evidence does not mean it has the right to do so. The jury “has the power to acquit on bad grounds, because the government is not allowed to appeal from an acquittal by a jury. But jury nullification [like the jury’s ability to convict a defendant of a lesser crime than the evidence proves] is just a power, not also a right . . . .” United States v Kerley, 838 F2d 932, 938 (CA 7, 1988) (emphasis added).

11 Even if the test were sufficiency of the evidence to support the verdict, the only reason defendant could not prevail on the claim is tautological. Having asked for the instruction, where the evidence is more than sufficient to show he committed it, defendant will not be heard to say he did not. In point of fact and law, the evidence is supportive of the verdict in that it demonstrates defendant is guilty of at least the offense for which he was convicted; it does not support the verdict.

12 Although the trial court instructed the jury on the element of causation, we do not find such instruction to be dispositive of the issue whether evidence of a superseding cause was presented at trial.

13 Witness Gerald Coutier testified that he thought the decedent was intoxicated when Coutier observed him in the apartment building hallway, but acknowledged on cross-examination that his conclusion was based solely upon seeing the decedent collapsed in the hallway. Defense counsel acknowledged at sentencing that there was “ [absolutely nothing to indicate [the decedent] was intoxicated.”

14 Defense counsel’s argument at closing, in which he acknowledged that the blows inflicted by the defendant were hard enough to “do some damage” and that the decedent was “in bad shape” at the time he was kicked, are arguably consistent with our conclusion that defendant’s actions constituted a proximate cause of decedent’s death.

15 To the extent our holding in this case is inconsistent with our holding in Boles, supra, we overrule that holding.