Felony Murder, Adult Abuse as Predicate

People v Comella Jr., __ Mich App __ ; __ NW2d __(2012 WL 1889204, No.301458, decided May 24, 2012)(may ’12). Defendant’s elderly wife was admitted to the hospital a number of times for various injuries before the last incident where EMS workers responded to Defendant’s home because his wife was unconscious – she died two days later from a subdural hematoma. The ME determined homicide was the cause of death. Defendant was convicted of felony murder with vulnerable adult abuse second degree being the underlying felony. Defendant appealed arguing that the state is required to prove both vulnerable adult abuse in the first and second degree for it to be used as a predicate to felony murder. Similarly, Defendant argued that his trial counsel was ineffective for not asking for a jury instruction that stated both first and second degree must be proved by the state. The Court of Appeals disagreed, and held that the felony murder statute requires either first OR second degree to be proven – not both. The language of MCL 750.316(1)(b) states, “vulnerable adult abuse in the first and second degree under section 145n,” as being a possible predicate felony for felony murder. The defendant claims that because the statute uses “and” instead of “or” as it does in other instances, the legislature must have meant that both degrees of vulnerable adult abuse must be proven. The court chose to not take the use of “and” literally – pointing out that both first and second degree vulnerable adult abuse cannot be charged for one act as one requires intent while the other requires recklessness.