On July 18, 1999, defendant became intoxicated and drove his pick-up truck in the wrong direction on a busy freeway. He collided head-on with a Jeep, killing the passenger and seriously injuring the driver.
i
Defendant says that the trial court should have granted his motion for a directed verdict
“When reviewing a trial court’s decision on a motion for a directed verdict, this Court reviews the record de novo to determine whether the evidence presented by the prosecutor, viewed in the light most favorable to the prosecutor, could persuade a rational trier of fact that the essential elements of the crime charged were proved beyond a reasonable doubt.”
People v Aldrich,
The elements of second-degree murder are “ ‘(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse.’ ”
Aldrich, supra
at 123, quoting
People v Mayhew,
Here, the prosecution showed that defendant drove after becoming seriously intoxicated. Moreover, defendant knew from a recent prior incident that if he drank, he might experience a blackout and drive recklessly and irresponsibly. Defendant contends, however, that in Goecke, supra, our Supreme Court required a subjective showing of awareness of a risk of death or great bodily harm when a defendant is severely intoxicated. Defendant’s argument mischaracterizes the analysis in Goecke. In Goecke, the Supreme Court reviewed three cases where a defen dant was charged with second-degree murder for a fatality caused by the defendant’s drunken driving. The Supreme Court declined to choose between an objective and subjective standard for determining whether the defendant was aware that his conduct carried a high risk of death or great bodily harm. The choice was unnecessary because the facts of all three cases established the requisite malice for second-degree murder under either standard. Goecke, supra at 465. However, the Court noted in dicta that a “highly unusual case” might “require a determination of the issue whether the defendant was subjectively aware of the risk created by his conduct.” Id. at 464-465, citing 2 LaFave & Scott, Substantive Criminal Law, § 7.4(b), p 205.
Defendant claims that this case is the type of unusual case requiring a determination that he was subjectively aware of the risk of his conduct. We disagree.
Goecke
did not expressly prescribe a subjective analysis for malice in cases of extreme intoxication. Quoting LaFave & Scott,
supra,
the Court recognized that, theoretically, a “highly unusual case” may require a determination whether the defendant was subjectively aware of the risk his conduct created, such as where the defendant was “ ‘more absentminded, stupid or intoxicated than the reasonable man.’ ”
Goecke, supra
at 464-465 & n 25. This is not the same as stating, as defendant suggests, that the prosecution should have been held to a higher standard of proof of intent because defendant was so severely intoxicated. If defendant’s argument is correct, it would mean that moderately intoxicated drivers could be tried for and convicted of second-degree murder while severely intoxicated drivers would be
excused because they
We also recognize that Goecke held that not every intoxicated driving case resulting in a fatality constitutes second-degree murder. However, the evidence in this case disclosed “a level of misconduct that goes beyond that of drunk driving.” Id. at 469. This is not a case where a defendant merely undertook the risk of driving after drinking. Defendant knew, from a recent prior incident, that his drinking did more than simply impair his judgment and reflexes. He knew that he might actually become so overwhelmed by the effects of alcohol that he would completely lose track of what he was doing with his vehicle. If defendant knew that drinking before driving could cause him to crash on boulders in front of a house, without any knowledge of where he was or what he was doing, he knew that another drunken driving episode could cause him to make another major mistake, one that would have tragic consequences.
Although there is no evidence regarding defendant’s behavior between his departure from Charlie Parrish’s house and the fatal collision, or regarding his state of mind just before the crash, we are satisfied that the prosecution met its burden by showing that defendant had a recent episode of an alcohol-induced blackout while driving, but that he nonetheless drank heavily while he was out with his vehicle. The trial court did not err in denying the motion for a directed verdict, and the evidence was sufficient to support defendant’s conviction.
n
Defendant claims that he was denied the effective assistance of counsel because his attorney failed to investigate and present a defense of involuntary intoxication. We disagree.
To establish ineffective assistance of counsel, a defendant must show (1) that the attorney’s performance was objectively unreasonable in light of prevailing professional norms and (2) that, but for the attorney’s error or errors, a different outcome reasonably would have resulted.
People v Carbin,
Because defendant did not move for a new trial or an evidentiary hearing pursuant to
People v Ginther,
m
Defendant claims that his dual convictions of second-degree murder and OUIL causing death violate the Double Jeopardy Clauses of the federal and state constitutions, US Const, Am V; Const 1963, art 1, § 15. This claim is based on the erroneous assumption that the double jeopardy provisions necessarily preclude conviction of both an offense and a lesser cognate offense. A dual prosecution and conviction of a higher offense and a lesser cognate offense are permissible where the Legislature intended to impose cumulative punishment for similar crimes, even if both charges are based on the same conduct.
People v Lugo,
In
People v Kulpinski,
We also find no abuse of prosecutorial discretion in the prosecution’s decision to pursue charges under both the second-degree murder statute and the OUIL causing death statute. Defendant misstates the law when he claims that he should have been charged
only under the ouil statute because it is the more specific and more recently enacted statute. The OUIL causing death statute does not merely carve out an exception to the second-degree murder statute; it enforces distinct societal norms and it includes an element not present in the second-degree murder statute.
People v Peach,
Defendant relies on
People v Patterson,
rv
Defendant claims that the trial court’s instruction on reasonable doubt was erroneous because it unconstitutionally weakened the standard for reasonable doubt by requiring the jurors to make certain their doubts are “fair.” Because this issue was not preserved with an appropriate objection at trial, we review it for plain error affecting defendant’s substantial rights.
People v Carines,
This Court has already considered and rejected the claim that the transition from CJI 3:1:04 to CJI2d 3.2 weakened the concept of reasonable doubt.
People v Snider,
v
Defendant argues that the trial court erred in admitting evidence of his June 23, 1999, drunken driving incident. A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion.
People v Manser,
MRE 404(b)(1) provides the following rules for admitting evidence that a defendant committed other crimes, wrongs, or acts:
MRE 404(b) is intended to exclude character evidence, or evidence that would lead the jury to convict a defendant on the basis of his past conduct rather than on evidence of his conduct for the instant offense.
People v Starr,
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
The Court in VanderVliet, supra at 55, set forth a four-pronged test for determining whether prior acts evidence is admissible under MRE 404(b):
First, that the evidence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting instruction to the jury.
The trial court properly admitted the evidence of defendant’s prior drunken driving incident under this four-pronged test. First, the evidence was admitted for a proper purpose. MRE 404(b) specifically allows prior acts evidence to show knowledge and absence of mistake. Here, to show that defendant possessed the requisite degree of malice for second-degree murder, the prosecution showed that defendant knew that heavy drinking could lead to a blackout, and that a blackout could lead to defendant’s driving without any understanding of what he was doing. The fact that such an episode occurred only three weeks before the charged offense was highly material to the proper purpose of showing defendant’s knowledge of the dangers of driving while intoxicated.
Regarding the second prong, the evidence was relevant. The fact that defendant had previously experienced an alcohol-induced blackout while driving made it more probable than not that he was aware this could happen to him. Regarding the third prong, the probative value outweighed the danger of unfair prejudice. The prosecution presented evidence that defendant drove the wrong way down a busy freeway at night and collided head-on with another vehicle, killing a twenty-two-year-old woman and seriously injuring a young man. Compared to this tragic incident, evidence that defendant was involved in a prior single-vehicle accident with no injury to anyone was not unduly prejudicial. Finally, regarding the fourth prong, the trial court gave an appropriate limiting instruction by stating to the jury that it “must not. . . decide that it shows that the Defendant is a bad person or that he is likely to commit crimes.” Accordingly, the trial court did not abuse its discretion in admitting evidence of the prior incident.
VI
Defendant argues that the trial court erred in excluding evidence that the decedent was not wearing a seat belt at the time of the collision. He concedes that contributory negligence is not a viable defense to a homicide charge, but maintains that the trial court should have allowed the evidence as proof that defendant’s conduct was not a substantial cause of her death. The trial court excluded the evidence because it was not relevant to any issue in the case.
Relevant evidence is evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401; Aldrich, supra at 114. Generally, all relevant evidence is admissible, unless otherwise provided by law, and evidence that is not relevant is not admissible. Aldrich, supra at 114; MRE 402. Relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” MRE 403.
In
People v Moore,
Moore
involved a defendant charged under the negligent homicide statute, MCL 750.324. Proof of that offense requires that the defendant’s conduct be a “substantial factor” in the decedent’s death.
People v Tims,
In Moore, the decedent’s death was remote from the defendant’s conduct. The decedent struck the defendant’s vehicle while it was stationary, hit his head against the window, and lost control of his car. His car then collided with a third vehicle. Moore, supra at 178-179. The defendant was prepared to offer expert testimony that if the decedent had been wearing his seat belt, he would not have lost control of his car and would not have died in the accident. Id. at 178. The Moore Court concluded that, under these circumstances, the decedent’s failure to use his seat belt was “clearly relevant” to the question whether the defendant’s negligence caused the decedent’s death. Id. at 178-179.
In contrast, the decedent’s death in the instant case was not remote from the collision. Unlike in Moore, where the facts actually showed that wearing a seat belt might have changed the outcome of the accident, the facts here do not show that the decedent could have affected the course of events by wearing a seat belt. Defendant merely argues that the decedent might have survived the collision if she had been wearing a seat belt, but this argument is purely speculative and is without evidence to support it.
Furthermore, we do not believe that the holding in
Moore
applies to second-degree murder cases. Negligent homicide requires proof that the defendant’s conduct was a “substantial” cause of the victim’s death.
Tims, supra
at 95. The issue of proximate cause is thus relevant to the defendant’s criminal liability.
Id.
However, in
People v Bailey,
In assessing criminal liability for some harm, it is not necessary that the party convicted of a crime be the sole cause of that harm, only that he be a contributory cause that was a substantial factor in producing the harm. The criminal law does not require that there be but one proximate cause of harm found. Quite the contrary, all acts that proximately cause the harm are recognized by the law. [Id. at 676.]
The Court explained that “[wjhere an independent act of a third party intervenes between the act of a criminal defendant and the harm to a victim, that act may only serve to cut off the defendant’s criminal liability where the intervening act is the sole cause of harm.” Id. at 677.
Under Bailey, evidence of the decedent’s failure to use a seat belt would be
Defendant also argues that the trial court erred in excluding evidence that Michael Pagel’s Jeep was uninsured. However, this issue is not preserved because defendant did not raise it before the trial court. In any event, Pagel’s insurance status is simply irrelevant to any issue in this case.
vn
Defendant claims that the cumulative effect of several errors denied him a fair trial. The cumulative effect of several minor errors may warrant reversal even where individual errors in the case would not. Knapp, supra at 387-388. Reversal is warranted only if the effect of the errors was so seriously prejudicial that the defendant was denied a fair trial. Id. at 388. Here, because we have not found any errors, this issue is without merit.
Affirmed.