Amendment of information; MCR 6.112(H); Due process; Felony-firearm; MCL 750.227b; AWIM; MCL 750.83; Jury instructions; Mitigating circumstances; M Crim JI 17.4; Voluntary manslaughter; Lesser included offenses; People v Mendoza; Heat of passion; Adequate provocation; People v Joesel; Harmless error; People v Yeager; AWIGBH; Ineffective assistance of counsel; Strickland v Washington

The court held that the trial court did not err by allowing the information to be amended during trial, but erred by refusing to instruct the jury on mitigating circumstances and by failing to instruct on voluntary manslaughter. Defendant-Lewis was convicted of second-degree murder, AWIM, and felony-firearm after he fired into a melee involving his father, a friend, and three other people. The prosecution amended the information during trial to add felony-firearm counts tied to the AWIM charges, and the trial court instructed on second-degree murder, AWIM, felony-firearm, involuntary manslaughter, and transferred intent, but refused a requested mitigating-circumstances instruction. On appeal, the court first held that the amendment did not unfairly surprise defendant because the added felony-firearm counts concerned the “same conduct underlying the AWIM charges” and arose from the “same date and time,” location, witnesses, and victims. The court next held that the mitigating-circumstances instruction should have been given because the testimony and video evidence supported a finding that defendant acted in the heat of passion while the fight remained ongoing, and that “ordinary people, of fair average disposition” could have acted rashly under the circumstances. It also held that a voluntary-manslaughter instruction should have been given because the same circumstances underlying the AWIM charges also led to the death, so the two instructions “rise or fall together.” The court concluded the instructional errors were not harmless because it was “impossible to know” what the jury would have done if properly instructed on the lesser included offense and on mitigating circumstances. It also noted that a rational view of the evidence would have supported an AWIGBH instruction, but defendant was not entitled to relief on that ineffective-assistance claim because the record did not establish that counsel’s failure to request it was not trial strategy. Vacated and remanded for a new trial.