*1 v BAKER PEOPLE May February 20, 1996, Lansing. at Decided Submitted Docket No. 176907. appeal sought. 17, 1996, at 9:30 Leave A.M. jury Circuit in the Genesee Richard A. Baker was convicted second-degree Court, Ransom, J., mur- M. of two counts of Robert occupants causing of an automobile that the death of two der for failing red with his truck after at a the defendant struck speeding and drunk. The defendant at an intersection while appealed, claiming that there was insufficient evidence of malice second-degree of murder. for convictions Appeals The Court of held: murder, of a defendant 1. In order to be convicted bodily harm, kill, great to do an have intended to to cause or must disregard the likelihood that the natural act in wanton and wilful of bodily tendency great harm. of such behavior is to cause death or only type issue, case, of intent is at evidence In this where the last drunk, driving while without some other evidence of of reckless mind, to establish that the the defendant’s state of is insufficient disregard in wanton and wilful defendant intended to do an act tendency of behavior is to cause the likelihood that the natural his great bodily or harm. death against supports the defendant convictions of 2. The evidence requires proof involuntary manslaughter, whose malice element performed disregard an act in wanton that death that the defendant bodily may great or harm ensue. entry vacated; case remanded for Convictions and sentences involuntary judgment manslaughter. of convictions of J., dissenting part, concurring in stated that Smolensk, correctly although majority recognized between the distinctions involuntary second-degree murder and man- the malice elements of slaughter, evidence in this case that there was sufficient disregard an in wanton and wilful defendant had intended to do act tendency that the natural of his behavior is to of the likelihood bodily great harm. The verdict should be cause death or affirmed. Manslaughter — Second-Degree — — Involuntary Mad Murder
Homicide Driving — Drunk ice Reckless While [May- Opinion op the Court drunk, Reckless while without some other of state of mind, driver, causing that the a fatal does not establish automo- accident, bile intended to do an act in wanton wilful of the likelihood that natural such behavior is to the driver cause death or harm such that can be con- *2 second-degree murder; solely consisting of victed evidence of reck- driving supports involuntary less while drunk a conviction of man- requires slaughter, proof for its element malice performed driver an act in wanton that death or may harm ensue. Frank J. Kelley, Thomas L. Attorney General, Casey, Busch, Arthur A. General, Solicitor Prosecut- Donald A. Kuebler, Chief, Appeals, ing Attorney, and and Research, Training. Couling,
Sheehan & P.C. P. (by Terrance Sheehan), and Shaheen & Farah Joseph Farah), (by for the defendant. P.J.,
Before: and Smolensk and D. A Johns Neff, JJ. ton,*
Neff, P.J. Defendant was convicted of two counts murder, of second-degree 750.317; MCL MSA 28.549, and sentenced to concurrent terms of fifteen to thirty years in prison, people for killing two while drunk. driving appeals Defendant his convictions and sentences as of right, we vacate his convictions and remand for proceedings consistent with this opinion.
i The essential of facts this case are not in dispute. On the night question, defendant was observed pickup speeds his truck at sixty between
* judge, sitting by Appeals assignment. Circuit the Court of limit posted zone with a hour in a seventy per miles failed to hour. Defendant thirty-five occupied by with a vehicle and collided a red light pronounced were of the victims Both the victims. Defendant can- hospital. at the local on arrival dead because evening the events not remember the accident. as a result of he sustained injuries accident, defend- after the three hours Approximately percent. was 0.18 level ant’s blood-alcohol n the trial court claims that appeal, On defendant mur- submitting charge erred of mal- because insufficient der to agree. at trial. We ice was adduced resolved in has been raised The issue People Goecke, opinion of the recent *3 authority binding is NW2d 338 Goecke 623; (1996). 547 important We find it with its result. agree and we concepts set clarity expand to on the purposes opinion. forth in that
A
sufficiency of
regarding
a claim
reviewing
When
most
evidence in
evidence, we examine the
determine whether
prosecution
to
favorable to
essential elements
could find the
trier of fact
rational
doubt. Peo
beyond a reasonable
proved
of the crime
515;
(1992),
B In order prove malice a conviction of second-degree murder, the prosecutor prove must possessed consisting
mental state
kill,
of “the
great
intent to
to cause
bodily harm, or to do an act in
disregard
wanton and willful
of the likelihood that the natural
of such behavior
is to
great
cause death or
[People Miller,
harm.”
v
App 494, 497;
198 Mich
(1993), quoting
NW2d 373
Peo
ple
Vasquez,
v
691, 694;
129 Mich
Only the last of this definition is at issue here because of the lack of evidence that defendant intended to kill or cause bodily harm.
The corresponding definition of manslaughter con tains language similar to the definition of malice applicable here:1
However,
theory
where
carelessly per-
is a lawful act
formed, “the
gross,
carelessness must
implying
have been
an
consequences;
indifference to
. ..
means wantonness
[i]t
consequences
may ensue,
an
rights
indifference
equivalent
to the
of others that is
to a
gross
criminal intent. . . .
negligence
Therefore
criminal,
is
supplies
place
and within limits
of affirmative criminal
[People Datema,
intent.”
585,
v
596;
448 Mich
The distinction between the definitions important; speak, part, subtle, is but both of wan- consequences disregard ton for one’s actions. Involuntary manslaughter second-degree murder separate indicating constitute two crimes, however, a difference between them. That difference is in the scope consequence disregarded. For malice to support second-degree a exist conviction of mur- prosecution der, the must show that the defendant performed disregard an act in wanton and wilful that the natural of the act is to cause death or great bodily prove involuntary harm. In order to man- only slaughter, prosecutor need show that the performed disregard an act in wanton may or harm In death ensue. other words, malice, murder, and therefore requires consequences for almost certain merely manslaughter an action, to follow while requires disregard possible consequences. for
c Applying the distinction to the facts of this case, question becomes whether evidence of reckless driving finding while drunk can of malice. We find such evidence to be insufficient. Analysis, Legislative al,
In the House HB 4827 et August discussing 14, 1991, amendments of the drunk 257.625; laws contained within MCL MSA average 9.2325, it is noted that the drunk driver can being drive drunk five thousand miles before only arrested, and that about one one thousand gets figures, drunk drivers ever arrested. These course, include those drunk drivers who are arrested causing fatal accidents. *5 216 Mich 687 [May
Opinion of the Court be Thus, it cannot said that the natural driving along drunk with the driving reckless behavior it, that often with goes including causing accidents, is to cause death or harm. With that in mind, no inference can be drawn to sup- reasonable port a finding of malice on the mere evidence of drunk we driving. deplore While drunk driving and acknowledge its harmful we effects, must conclude consisting solely drunk driving and the support attendant erratic driving cannot a finding of malice.
Having this conclusion, reached we are mindful that drunk along with other driving some evidence of the defendant’s of mind state can constitute sufficient evidence to support finding malice. See Goecke, supra; Miller, supra. Absent some additional proof, however, the mere evidence of drunk driving and the behavior incident thereto is enough. not
D
We
the case law
acknowledge
from other states,
by
some cited
prosecution, holding
that evidence
of mere
supports
drunkenness
a finding of malice.
See
People
statement of Justice Levin Brown,
866,
conclude,
869-871
We
however, that
opinions
those
reaching
opposite
conclusion,
such as
Virginia,
273;
Essex v
228 Va
e
MSA
rely
257.625(4);
on MCL
Finally, we do not
statute,
ouiL-causing-death
so-called
9.2325(4), the
by
suggested
in this case as
our conclusion
supra at 866-867.
Brown,
statement
Justice Levin’s
not
pros-
that this statute does
restrict
We conclude
driver with whatever
charging
from
drunk
ecutors
of the case
is warranted
the facts
charge
homicide
is a crime different from OUILcaus-
because homicide
*6
App
437
People Peach,
419;
See
v
174 Mich
ing death.
are free to
Thus, prosecutors
charge
9 (1989).
NW2d
death.
causing
with both homicide and OUIL
538;
F
we
above,
For the reasons set forth
conclude that
convictions must be vacated because the
defendant’s
prosecutor
present
failed to
sufficient evidence of
malice to
defendant’s convictions of second-
entry
judgment
murder. We remand for
of a
degree
involuntary
People manslaughter.
convictions of
See
280;
m disposition Because of our of defendant’s first issue, we need not determine whether his sentences proportionate. were
Defendant’s convictions and sentences are vacated, proceedings and this matter is remanded for consis- opinion. jurisdiction. tent with this We do not retain Johnston, D. A J., concurred. (concurring dissenting
Smolensk!, in part). majority’s I concur with the distinction manslaughter. between murder and However, I dis- by majority. sent from the result reached I believe that sufficient evidence of malice was this case.
The collision in this case occurred at the intersec- tion of Grand Traverse and Atherton Roads in Flint. proceeds Grand Traverse north and south while Ath- proceeds erton east and west. There is an 1-475exit that feeds traffic onto southbound Grand Traverse approximately three hundred to four hundred feet before Grand Traverse intersects with Atherton. Both highways Grand Traverse and Atherton are four-lane posted speed thirty-five with a limit of hour. At the time of collision, a double-headed traffic *7 signal cycled was located at the intersection red, that yellow, green and for both roads. Road conditions at dry sig- the time of the collision were and the traffic operating normally. nals were July approxi- The collision occurred on 21, 1988,at mately 11:30 P.M. when defendant’s vehicle, which was traveling sixty south on Grand Traverse at between seventy hour, failed to at a red light on Grand Traverse and broadsided the victims’ People Opinion by Smolensk!, on Atherton. Alcohol eastbound which was vehicle, at the scene of breath on defendant’s was detected the col- three hours after Approximately collision. the defendant and was taken from sample lision, a blood alcohol level defendant’s blood indicated that a test indistinguish- are far, Thus the facts percent. was 0.18 Goecke, from the facts able and, under the (1996), NW2d 338 624-625; 547 623, sufficient evi- do not constitute majority’s analysis, of malice. dence leads me of all the facts
However, an examination evi- simply case does not involve that this to conclude and the incident drunk behavior dence of that defendant’s resi- presented Evidence was thereto. approximately Traverse located on Grand dence was this Thus, viewing intersection. south of the one mile prosecution, the most favorable to light in a evidence of the inferred that at the time jury could have and, home more heading was collision area, with the he was familiar importantly, intersection at Grand the existence including at that signal and the traffic and Atherton Traverse intersection. concerning also was
Evidence collision, During of the collision. extreme force top of the victims’ up rode on vehicle defendant’s eventually overturned victims’ vehicle vehicle. The The female victim was top. on its came to rest the female victim’s road. One of on the lying found lying and also found severed completely arms testified that police officer responding The road. victim. of life from either signs not ascertain he could in a most favorable viewing this Thus, have inferred that could prosecution, to the *8 [May- Opinion by Smolensk, J. traveling speed
defendant had been at a greater even sixty seventy per than hour, by miles as estimated the witnesses.
Finally, testimony I find critical to this case the of Kerrie Kachel. At Kachel that trial, testified on the night of collision on the she was east Atherton proceeded when through she a green light at the intersection of Atherton and Grand Traverse. Kachel testified that her fiancee was following her another car and that vehicle was also beside her traveling vehicle. Kachel testified that when her vehicle was approximately three-quarters way the the through intersection, she pair saw a of headlights coming toward from a traveling her vehicle on Grand Trav- erse. Kachel testified that the vehicle at traveling speed high rate and was not stopping the red light on Grand Traverse. Kachel testified she that esti- mated the that vehicle was than traveling sixty- faster five hour on the basis of humming the of its tires, which she could even hear her though windows up, were and the suddenness with the vehicle appeared to be coming through the intersection. Kachel testified that she was afraid that the vehicle would hit her. passed Kachel testified that she through the intersection and then heard a loud crash behind her. Kachel passed testified that the vehicle within feet three of her vehicle between her vehi- cle and vehicle, her fiancee’s which was following approximately one car behind length Viewing her. this a light evidence in most favorable to prosecution, jury could have found defendant had been able to both see the red Grand Traverse and in the vehicles middle the intersection on Ath- erton. The could have further found that defend- Opinion Smolensk, stop, attempt instead continued but not ant did speeding through intersection. summarizing defendant, while evidence, Thus, *9 high extremely rate of at a intoxicated speed familiar, did not he was with which in an area light attempt an inter- and drove into a red at lawfully proceed- crossing traffic was where section light. green through ing Accord- on a intersection viewing ingly, favorable most prosecution, was sufficient evidence I believe to the and wilful did act in wanton that defendant that the natural likelihood cause death or behavior was to of such appropriately with instructed harm. The regard I in this case. would of malice to the element its verdict. affirm