PEOPLE v. REHKOPF

BOYLE, J.

We granted leave in these two cases to decide issues left unresolved in People v Shafou, 416 Mich. 113; 330 N.W.2d 647 (1982), and People v Formicola, 407 Mich. 293; 284 N.W.2d 334 (1979):

(1) Whether the crime of inciting, inducing, or exhorting another to commit a dangerous felony includes as a necessary element the requirement that the inciting, inducing, or exhorting have occurred under circumstances such that it was likely that same would produce the result incited, induced, or exhorted;

(2) Whether the Legislature intended the crime of incitement to commit first-degree murder, MCL 750.157b; MSA 28.354(2), to be punishable by mandatory life imprisonment;

(3) Whether a punishment of mandatory life imprisonment for inciting to murder constitutes cruel and unusual punishment or a denial of equal protection of the laws; and

(4) Whether the Court of Appeals can properly entertain a prosecutor's appeal challenging the trial judge's ruling that a statute constitutes cruel and unusual punishment.

We would hold that the crime of inciting, inducing, or exhorting the commission of an offense proscribed by MCL 750.157b; MSA 28.354(2) does not require proof of either actual incitement or of an overt act by a third party. We would further hold that life or any term of years is the prescribed penalty for incitement to commit "murder," and that such penalty is neither cruel and unusual nor a denial of equal protection. Finally, we would hold that the prosecutor may properly appeal the trial court's refusal to sentence in accordance with statutory requirements.

We therefore would affirm the denial by the trial court of the motion to quash the information in Rehkopf, and would reverse the judgment of the Court of Appeals remanding the case for resentencing in Snyder. We would remand for trial in Rehkopf, and would affirm the judgment of the trial court in Snyder.

People v Rehkopf

Defendant Vicki Rehkopf was charged with "inciting, inducing or exhorting" an undercover policeman to murder her husband, Robert Rehkopf, in violation of MCL 750.157b; MSA 28.354(2). Defendant moved to quash the information on the ground that the participation of an undercover policeman posing as a "hit-man" eliminated any likelihood that the solicited murder would occur. Kent Circuit Court Judge Robert A. Benson denied the motion, finding that the "factual impossibility" of the contemplated murder was irrelevant to defendant's liability under the incitement provision. The Court of Appeals denied leave to appeal.

We granted leave to appeal, limited to the following question:

whether the crime of inciting, inducing, or exhorting another to commit a dangerous felony includes as a necessary element the requirement that the inciting, inducing, or exhorting have occurred under circumstances that would be likely to produce the result incited, induced, or exhorted. [ 417 Mich. 1040 (1983).]

Defendant John Frederick Snyder was charged with and convicted of inciting, inducing, or exhorting the first-degree murder of his brother, Arnold Snyder, whose murder never occurred because the solicited party apparently "didn't have enough guts" to follow through with it. Before sentencing, defendant moved for a declaration that MCL 750.157b; MSA 28.354(2) did not require a mandatory life sentence for incitement to commit first-degree murder, or, if it did, that such a sentence is unconstitutional as a cruel and unusual punishment and a denial of equal protection.

Finding that a mandatory life sentence under these circumstances, where the intended victim has been neither injured nor killed, would constitute cruel and unusual punishment, Judge Benson instead gave defendant a reduced sentence of fifteen to thirty years in prison. On appeal by the prosecutor, the Court of Appeals peremptorily reversed, setting aside the fifteen- to thirty-year sentence and remanding for resentencing to mandatory life imprisonment.

We granted defendant's application for leave to appeal, limited to the following three questions:

(1) whether the Court of Appeals could properly entertain a prosecutor's appeal in this case,

(2) whether the Legislature intended the crime of incitement to commit first-degree murder, MCL 750.157b; MSA 28.354(2), to be punishable by mandatory life imprisonment, and

(3) whether a punishment of mandatory life imprisonment for inciting to murder constitutes cruel and unusual punishment or a denial of equal protection of the laws. [ 417 Mich. 1039 (1983).]

II. Definition of the Offense

MCL 750.157b; MSA 28.354(2) provides:

Any person who incites, induces or exhorts any other person to unlawfully burn any property, to murder, to kill, to wound or to commit an aggravated or felonious assault on any person or to do any act which would constitute a felony or circuit court misdemeanor, that may endanger or be likely to endanger the life of any person, or who aids and abets in any such inciting, inducing or exhorting shall be punished in the same manner as if he had committed the offense incited, induced or exhorted.

We would hold that the only conduct required to be proved on the part of a person charged under this provision is the inciting, inducing, or exhorting of a third party to commit one of the listed offenses.

This Court previously addressed the meaning of that requirement in People v Shafou, 416 Mich. 113; 330 N.W.2d 647 (1982), a decision that produced three opinions offering three varying approaches.

Chief Justice FITZGERALD, with Justices WILLIAMS and COLEMAN concurring, limited the crime to the mere inciting, inducing, or exhorting of another to commit a referenced offense, and failed to find any legislative intent "that conviction of a crime under this statute would depend on the incidental result of a third party's conduct, that is, an overt act or proof of actual incitement." 416 Mich. 122. Since it is therefore the use of words soliciting the commission of an offense that is proscribed, Justice FITZGERALD concluded that the crime was complete at the point where the defendant contacted the third party to induce commission of an offense.

Justice LEVIN, with Justice RYAN concurring, interpreted the statute as reaching only accomplice liability, therefore requiring proof that the solicited offense actually have occurred before a defendant could be convicted of inciting the commission of that offense under this provision. Justice LEVIN relied on a series of arguments in reaching this conclusion. First, the words "induce" and "incite," more so than "exhort," denote the actual bringing about of the desired result, thus injecting the statutory language with ambiguity and justifying a determination of legislative intent. 416 Mich. 126-128. Second, the "enormous potential disparity" between penalties provided under this provision and those provided at common law in Michigan and elsewhere for similar conduct "strongly suggests that the rule of lenity should be invoked and that § 157b should not be construed to be a solicitation statute." 416 Mich. 129. Third, the provision was enacted in the wake of the 1967 Detroit riots in conjunction with another provision that specifically proscribed incitement to riot, but with a lesser penalty (maximum of ten years in prison or $10,000 fine, or both). Justice LEVIN surmised that MCL 750.157b; MSA 28.354(2) was therefore intended not to reach mere solicitation, already addressed in the riot provision, but rather "to fill in the gap perceived following the 1967 riots in the reach of accomplice liability." 416 Mich. 132.

Justice LEVIN derived further support for his thesis from the legislative history of the provision, 416 Mich. 133-141, the disproportionate harshness of treating the inciter more severely than the party solicited who unsuccessfully attempts to commit the offense, 416 Mich. 141-142, and the disproportionate harshness of the penalty in comparison with punishment of solicitation in other states, 416 Mich. 142-145.

Justice KAVANAGH opted for a middle ground between Justice FITZGERALD'S "mere solicitation" and Justice LEVIN'S "accomplice liability" views of the statute, finding instead that "some overt act resulting in actual incitement of the other person" suffices to establish liability. 416 Mich. 149. Thus, while mere solicitation, without more, would fail to constitute a violation under this approach, "[t]he overt act which must be proved to establish this crime need not be the commission of the crime sought to be incited." Id. Justice KAVANAGH therefore required evidence that the other person was in fact incited, though not necessarily to the extent of completion of the solicited offense.

We would adopt Justice FITZGERALD'S view that the words "incite, induce or exhort" are essentially synonymous and that it is "conduct by which a person urges another to commit a specified crime with the intent that such a crime result" that is the focus of this offense. Therefore, liability need not "depend on the incidental result of a third party's conduct, that is, an overt act or proof of actual incitement." 416 Mich. 122. We are unable to agree with Justice LEVIN'S view that the legislative history of § 157b suggests a "successful" urging is required before liability can be imposed. First, even assuming the word "induces" was included in the provision to encompass successful urgings, there is no need to deny the other terms used — "incites" and "exhorts" — their natural and ordinary meaning, since it is certainly within the Legislature's prerogative to proscribe several forms of conduct in one statute. Accordingly, there is no "ambiguity" in the language used to justify a determination of legislative intent in the first place.

Second, the fact that a contemporaneous enactment proscribed "urging" to acts of violence with intent to cause a riot, punishable by a maximum of ten years imprisonment and a $10,000 fine, does not create the inference that § 157b was addressed to accomplice liability. The Legislature may just as likely have intended to place a ceiling on punishment for incitement to riot because of the nonspecific nature of the intent involved — not directed at a particular victim nor urging a particular crime — while implementing a sliding-scale of punishment for the traditional solicitation offense, geared to the severity of the specific crime incited. Thus, the gravity of incitement with the intent that a specific crime be committed is measured by the gravity of the crime incited, while the gravity of incitement with the intent to create a riot is fixed by the "intent to riot" as a ten-year offense.

Third, Justice LEVIN'S review of the enactment history of § 157b fails to note that, prior to adopting the bill that became the enacted version, the Senate rejected a proposed substitute bill clearly addressed to accomplice liability. 1968 Senate Journal 356. The proposed substitute provided:

SEC. 157B. A person is legally accountable for the behavior of another constituting a criminal offense if:

(A) With the intent to promote or facilitate the commission of the offense:

(1) He solicits such other person to commit the offense;

(2) He aids or abets such other person in planning or committing the offense; or

(3) Having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make; or

(B) Acting with knowledge that such other person was committing or had the purpose of committing the offense, he knowingly provided means or opportunity for the commission of the offense that substantially facilitated its commission.

(C) A person found guilty under this section shall be subject to the same sentencing provisions as apply to a person for whose criminal offense he is legally accountable.

The Senate's rejection of that proposal is just as consistent — if not more consistent — with an intent to focus on solicitation liability as their rejection of the House proposal is consistent with an intent to focus on accomplice liability (as Justice LEVIN suggests). Indeed, the language ultimately included in § 157b is closer to the description of a traditional solicitation offense than to language — such as that used in the Senate proposal above — of accomplice liability.

Finally, the fact that a solicitation construction of § 157b would result in more severe punishment of certain solicitations in Michigan than elsewhere (except Montana) is not determinative of legislative intent. Where incitement to murder is involved, for example, a rational basis exists for severe punishment. The harm threatened by incitement to murder is of course of the greatest gravity: the death of another human being. As in the case of conspiracy it can also be said that solicitation is more dangerous than a direct attempt, because it may give rise to that cooperation among criminals which is a special hazard. Deliberate conduct designed to cause or culminate in a murder yields an indication that the actor is disposed toward such activity, not alone on this occasion but on others. Indeed, the solicitor working through his agent may manifest an approach to crime more intelligent and masterful than the hireling.

The operative language "incites, induces or exhorts" in terms permits conviction upon "mere words" spoken with the requisite intent. Thus, we would reject any requirement that the solicitation result in either actual incitement or completion of the solicited offense.

III. Penalty

We would further hold that the words "murder" and "kill" in § 157b are to be interpreted according to their natural, common-law meanings and that the penalty for incitement of those crimes is therefore that provided for their statutory equivalents. Accordingly, in the case of incitement to "murder," the maximum penalty under this section is that provided for second-degree murder: life or any term of years.

The common law divided criminal homicide into two crimes, murder and manslaughter. See Perkins, Criminal Law (2d ed), p 34. Our prior decisions have consistently recognized that murder is not statutorily defined. See People v Dykhouse, 418 Mich. 488; 345 N.W.2d 150 (1984); People v Aaron, 409 Mich. 672, 715; 299 N.W.2d 304 (1980); People v Scott, 6 Mich. 287, 293 (1859).

In light of the long-standing construction of the word "murder" according to its common-law meaning, we are unwilling to conclude that the Legislature intended by § 157b to punish incitement to commit first-degree murder as a separately graded offense, particularly in instances where a murder did not in fact take place. Rather, we interpret the incitement provision as prescribing the penalty for common-law murder — life or any term of years — as the penalty to be imposed for incitement to commit "murder" irrespective of degree. In so construing the provision, we frankly acknowledge that an interpretation requiring a mandatory life sentence for the ineffectual incitement of first-degree murder raises a serious question under the cruel and unusual punishment clauses of the state and federal constitutions. We further note that, had the Legislature intended that result, language such as that used in the Model Penal Code could have been used to clearly incorporate the statutory grading of "murder" into the incitement provision:

(1) Grading Except as otherwise provided in this Section, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy. An attempt, solicitation or conspiracy to commit a [capital crime or a] felony of the first degree is a felony of the second degree. [Model Penal Code § 5.05. Emphasis added.]

Section 157b, by contrast, refers to "murder" generically, without mentioning grading.

Section 157b as so construed is not inconsistent with the incitement to riot statute, which prescribes a penalty of up to ten years imprisonment or up to a $10,000 fine, or both. MCL 752.544(1); MSA 28.790(4)(1). As suggested in Part II, a greater penalty is imposed where the offense incited "may endanger or be likely to endanger the life of any person" than where the incitement merely encourages random violence or destruction of property. At the same time, we avoid a construction requiring a mandatory life sentence, resolving doubt regarding the legislative intent in favor of the rule of lenity.

While we recognize that this limiting construction of § 157b still punishes incitement to murder more severely than does almost every other state, we are unable to conclude that the penalty provision of § 157b is on its face so grossly disproportionate to the severity of the crime as to constitute cruel or unusual punishment. People v Lorentzen, 387 Mich. 167; 194 N.W.2d 827 (1972).

Accordingly, we do not interfere with, nor pass judgment upon, the wisdom of the legislative choice to deal more harshly with persons convicted of this offense than the legislatures of other states have.

IV. Appellate Jurisdiction

Although we would conclude that the trial judge in Snyder properly sentenced the defendant under the incitement statute, we do not intend to suggest that the Court of Appeals may not entertain a challenge to the imposition of an unauthorized sentence. MCL 770.12; MSA 28.1109 as interpreted in People v Cooke, 419 Mich. 420; 355 N.W.2d 88 (1984), does not preclude appellate review of the trial court's sentence under these circumstances.

In People v Cooke, decided after the submission of the instant case, a majority of this Court held that the Legislature intended by the reenactment of MCL 770.12(1); MSA 28.1109(1) (1977 PA 34) after this Court's rulings in People v Blachura, 390 Mich. 326; 212 N.W.2d 182 (1973), and People v Pummer, 399 Mich. 326; 249 N.W.2d 78 (1976), to limit appeals by the prosecution to those situations explicitly set forth in the statute.

On April 28, 1982 the trial court found that the mandatory life penalty for first-degree murder as applied to defendant Snyder constituted cruel and unusual punishment, stating "such a sentence should shock the conscience of the Court." The prosecution does not allege that the sentence thereafter imposed shocked the conscience, nor does it urge us to address the permissible scope of prosecution appeals of an excessively lenient sentence, an issue left open in People v Coles, 417 Mich. 523, 551; 339 N.W.2d 440 (1983).

The people maintain rather that an appeal may be taken from a sentence illegal on its face, or alternatively that review is permitted by authority of the writ of superintending control. While we note that appellate sentence review does not present any double jeopardy implications, since a successful appeal of the sentence would not subject the defendant to a second trial, but only to correction of the judgment, United States v Wilson, 420 U.S. 332, 352-353; 95 S Ct 1013; 43 L Ed 2d 232 (1975), the instant case is not within "the express provisions of § 12," People v Cooke, supra, p 434. Accordingly, an appeal by the prosecution under § 12 is unavailable.

We conclude that review by the Court of Appeals was authorized instead by its jurisdiction to issue orders of superintending control under GCR 1963, 711.4. This Court has held that the superintending control order is an appropriate method for reviewing a claim that an inferior court has acted without authority, or has failed to act where it has a clear legal duty to do so. People v Flint Municipal Judge, 383 Mich. 429; 175 N.W.2d 750 (1970). Moreover, an improperly denominated pleading may be treated as a complaint for an order of superintending control in appropriate circumstances. See Falk v State Bar of Michigan, 411 Mich. 63, 86; 305 N.W.2d 201 (1981); People v Wilkins, 121 Mich. App. 813, 817; 329 N.W.2d 500 (1982).

Since People v Cooke would not here authorize an appeal, a refusal to permit review by superintending control in a context such as the instant case would produce the anomalous result that a declaration by a district or circuit court as to the validity of legislative acts would be final:

The fact that an inferior tribunal should declare a criminal statute invalid does not thereby divest the appellate courts of jurisdiction to determine the correctness of that decision. The only possible way that these decisions can be reviewed is by an appellate proceeding initiated by the prosecutor. As such, an order of superintending control, pursuant to GCR 1963, 711, is the proper vehicle to effectuate an appellate decision. [ People v Gebarowski, 47 Mich. App. 379, 382; 209 N.W.2d 543 (1973).]

Moreover, given that an appeal is not authorized in this case, there is no other "adequate remedy" for the claimed error. GCR 1963, 711.2.

Because review of this case is clearly warranted and the Court of Appeals and this Court have jurisdiction to entertain the claim at the behest of the prosecution, we would exercise our discretionary power under GCR 865.1(7) and consider the prosecution's claim of appeal in Snyder as a complaint for an order of superintending control.

V. Conclusion

We would respond to the questions raised by holding that (1) the crime of incitement to commit an offense listed in MCL 750.157b; MSA 28.354(2) is complete upon the inciting, exhorting, or urging of the conduct specified and proof of actual incitement or of an overt act by a third party is not necessary; (2) incitement to commit "murder," whether first or second degree, is punishable by life or any term of years; (3) the Court of Appeals properly entertained the prosecutor's challenge to the trial court's holding that MCL 750.157b; MSA 28.354(2) was unconstitutional.

In Rehkopf, we would affirm the trial court's denial of defendant's motion to quash. We would remand for trial.

In Snyder, we would vacate the decision of the Court of Appeals directing the trial court to sentence defendant to mandatory life imprisonment. We would affirm the judgment of the trial court.

WILLIAMS, C.J., concurred with BOYLE, J.