Angelo McMullan admits that he shot his friend, Jimmy Smith, after the two fought over a drug deal. The fight began as a physical altercation. When McMullan was unable to collect money from Smith that he believed Smith owed him, he retrieved a gun and returned to continue the argument with Smith. A witness testified that McMullan pushed Smith into a vehicle and then shot him; after shooting Smith, the witness testified, McMullan searched Smith’s pockets and removed the cash that he found. McMullan testified that he was threatening Smith with the weapon while Smith was seated in a vehicle, and that he shot Smith as Smith was exiting the vehicle. McMullan denied searching Smith’s pockets or removing cash. McMullan also testified that, on the day of the shooting, he had been using drugs. After the shooting, McMullan drove Smith to the hospital, where he died. McMullan was arrested and charged with murder, felon in possession of a firearm, and felony-firearm.
At trial, McMullan admitted that he shot Smith, but argued that he had only intended to threaten him. The trial court refused defense counsel’s request for an involuntary manslaughter instruction. An involuntary manslaughter instruction is warranted in a murder case if the instruction is supported by a rational view of the evidence. A defendant is guilty of involuntary manslaughter if he commits an unintentional killing due to gross negligence or with an intent to injure, and not because of malice. Relying on People v Ryczek, 224 Mich 106 (1923), the trial court ruled that there is necessarily malice in a case like this one where the victim and the defendant were involved in a fight, particularly when, as here, the evidence tended to show that the gun was pointed at the victim at a close range. The trial court instructed the jury on the elements of first-degree murder, second-degree murder, and voluntary manslaughter, as well as on the elements of the other charged offenses. The jury convicted McMullan of second-degree murder, felon in possession of a firearm, and felony-firearm. The trial court sentenced McMullan, as a fourth-offense habitual offender, to 30 to 75 years in prison for the second-degree murder conviction, 5 to 15 years in prison for the felon in possession of a firearm conviction, and two years in prison for the felony-firearm conviction.
McMullan appealed, and the Court of Appeals affirmed in a split, published opinion. The majority agreed with the trial court that the evidence supported a finding of malice, and not gross negligence. The fact that McMullan testified that he did not intend to kill Smith, that he took Smith to the hospital, and that he was remorseful, did not justify giving the lesser instruction, the Court of Appeals held. “Once defendant saw the gruesome result of his act, he may have regretted his conduct, but this does not alter the fact that his actions denote malice.” The dissenting judge concluded that the trial court erred in relying on the standard set forth in Ryczek, and that there was ample evidence in the record from with a reasonable juror could conclude that McMullan acted without malice. The dissenting judge would have vacated McMullan’s conviction and remanded the case for a new trial before a properly instructed jury. McMullan appeals.