PEOPLE OF MI V GRANT WILLIAM CZUJ
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 23, 2008
Plaintiff-Appellee,
v
No. 276581
Livingston Circuit Court
LC No. 06-015829-FH
GRANT WILLIAM CZUJ,
Defendant-Appellant.
Before: Cavanagh, P.J., and Jansen and Kelly, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of operating a water vessel under
the influence of liquor and causing death, MCL 324.80176(4) (“OUIL causing death”), negligent
homicide, MCL 324.80172, operating a water vessel under the influence of liquor and causing a
serious impairment of a body function, MCL 324.80176(5) (“OUIL causing serious
impairment”), and negligent crippling, MCL 324.80172. The trial court sentenced defendant to
100 months to 15 years for the OUIL causing death conviction, 40 months to five years for the
OUIL causing serious impairment conviction, and 16 months to two years for the negligent
homicide and negligent crippling convictions. We affirm.
I. Basic Facts
Defendant drove his speedboat from Strawberry Lake to Zukey Lake1 around midnight
one night. Devil’s Basin, in which a wake is not permitted, connects the two lakes. As
defendant exited Devil’s Basin and entered Zukey Lake, he accelerated, reaching a speed of less
than 20 miles an hour to 40 miles an hour, as estimated by eyewitnesses and expert witnesses.
Defendant approached a speedboat and a pontoon boat that were tied together and drifting on a
sandbar. Defendant’s boat struck the two boats, and one of the occupants of the boats was
thrown into the water and died of multiple blunt force injuries and drowning. Another occupant
of the boats sustained severe injuries, and several others sustained minor injuries.
Witnesses reported that the moon was full and bright on the night of the accident and that
the skies were clear. Testimony varied regarding whether the lights of the two boats were
1
Zukey Lake is misspelled throughout the trial transcripts as “Zuki Lake.”
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illuminated. Some reported that the pontoon boat had its navigational lights on. However, some
witnesses recalled that the pontoon boat did not have any lights on, and the driver of the pontoon
boat explained that he had been experiencing battery trouble and had turned off the navigational
lights about five minutes before the accident. Some witnesses reported that the speedboat had its
navigational lights on, but one asserted that these lights were not on. Several witnesses recalled
that the blue interior ground lights of the speedboat were on, and one witness recalled that the
speedboat’s spotlight was illuminated.
Defendant admitted to a police officer that he had drunk six beers within a four to five
hour period, and two of his passengers estimated that he had drunk between four and eight beers.
Two of defendant’s passengers believed that defendant was drunk, but one of them claimed that
he was not concerned about defendant’s driving. Another passenger told defendant to slow
down, and one passenger saw the two other boats and yelled to defendant right before they struck
them. Defendant told a nurse at the hospital that he had looked away from the water to pick up
some compact discs, and when he looked back at the water, he struck the boats. Defendant’s
blood alcohol content (BAC) almost three hours after the accident was .084 grams per 100
milliliters. Using retrograde extrapolation, an expert witness opined that defendant’s BAC was
between .103 and .119 at the time of the accident.
II. Admission of Evidence of Prior Arrest
Defendant argues that the trial court abused its discretion in admitting evidence that he
had previously been arrested for OUIL. We agree that the trial court improperly admitted this
evidence, but reversal is not warranted because the error was harmless.
We review a trial court’s decision regarding whether to admit evidence for an abuse of
discretion. People v Katt, 468 Mich 272, 278; 662 NW2d 12 (2003). An abuse of discretion
occurs when the court chooses an outcome that falls outside the range of principled outcomes.
People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). However, the decision whether
to admit evidence often involves a preliminary question of law, which we review de novo. Katt,
supra at 278.
Pursuant to MRE 404(b), a prosecutor may not introduce evidence of other crimes,
wrongs, or acts for the purpose of proving a defendant’s character or propensity for criminal
behavior. People v VanderVliet, 444 Mich 52, 74; 508 NW2d 114 (1993), mod 445 Mich 1205
(1994). However, such evidence may be admissible for another purpose, 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.” MRE 404(b)(1). To be admissible, evidence of other acts must be offered for a purpose
other than character or propensity, it must be relevant, and its probative value may not be
substantially outweighed by the danger of unfair prejudice. People v Knox, 469 Mich 502, 509;
674 NW2d 366 (2004); VanderVliet, supra at 74-75.
Officer James Steinaway, who was dispatched to the lake after the accident, did not
administer any field sobriety tests on defendant; rather, he asserted that he obtained a search
warrant to draw defendant’s blood because defendant had sustained a head injury. Outside the
presence of the jury, the prosecutor sought to introduce evidence that, during a prior arrest in
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which Steinaway was the arresting officer, defendant had consented to a blood test and changed
his mind upon arriving at the hospital, requiring Steinaway to obtain a search warrant. The
prosecutor asserted that defendant had opened the door to this questioning when he asked
Steinaway about his failure to advise defendant of his chemical test rights before the blood test
and about obtaining a search warrant. The trial court granted the prosecutor’s request, the
prosecutor asked Steinaway whether he had arrested defendant in 2004 for OUIL, and Steinaway
responded affirmatively. Steinaway stated that his previous experience with defendant did not
factor into his decision to obtain a search warrant in the instant case, but it did impact his
decision “a little bit.”
Evidence of defendant’s prior OUIL arrest was offered to show that defendant had a
pattern of consenting to a blood test and later withdrawing that consent upon arriving at the
hospital. Although this may be akin to proof of a plan or system in doing an act, defendant’s
withdrawal of consent to a chemical test is not an element of OUIL causing death or OUIL
causing substantial impairment, and it is not material to the commission of any of the crimes
charged. Therefore, it was not offered for a proper purpose pursuant to MRE 404(b)(1), and the
trial court improperly admitted this evidence. However, an error in the admission of evidence is
not grounds for vacating a verdict unless substantial justice requires it. MCL 769.26; MCR
2.613(A); People v Whittaker, 465 Mich 422, 427; 635 NW2d 687 (2001). A preserved
nonconstitutional error such as this one is not harmless if it affected “the reliability of the verdict
in light of the weight of the untainted evidence.” People v Albers, 258 Mich App 578, 590; 672
NW2d 336 (2003). “The error is presumed to be harmless, and the defendant bears the burden of
showing that the error resulted in a miscarriage of justice.” Id., applying People v Lukity, 460
Mich 484, 493-494; 596 NW2d 607 (1999).
MCL 324.80176(4) prohibits a person from operating a water vessel while under the
influence of intoxicating liquor or controlled substances or while his BAC is greater than or
equal to .10 grams per 100 milliliters of blood. The evidence showed that defendant consumed
between four and eight beers, his eyes were glassy, he smelled of intoxicants, he was slurring his
speech, two of his passengers believed he was drunk, and his BAC was estimated at greater than
.10 grams per 100 milliliters. Therefore, there was considerable admissible evidence that
defendant was under the influence of intoxicating liquor and his BAC was greater than .10 grams
per 100 milliliters of blood, contrary to MCL 324.80176(4) and (5). Negligent crippling or
homicide, MCL 324.80172, prohibits one from operating a water vessel at “at an immoderate
rate of speed or in a careless, reckless, or negligent manner.” The evidence showed that
defendant was operating his boat at speeds estimated at between less than 20 miles an hour and
40 miles an hour at midnight, one of his passengers advised him to slow down, and he was
looking in his boat for compact discs instead of at the water. Thus, there was extensive
admissible evidence that defendant was operating his boat at in immoderate speed or in a
careless, reckless, or negligent manner. In light of this evidence, we conclude that admission of
evidence of defendant’s prior arrest was harmless, and substantial justice does not require
vacating defendant’s convictions. See Whittaker, supra at 427; Albers, supra at 590.
Defendant also challenges the admission of evidence of his intoxication on prior
occasions and evidence that he had previously driven his boat into a dock, as taken together with
the evidence of his prior arrest. Defendant does not include any mention of these arguments in
the “statement of questions presented” section of his brief on appeal as required by MCR
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7.212(C)(5). Therefore, these issues are deemed waived and not subject to appellate review.
MCR 7.212(C)(5); People v Mackle, 241 Mich App 583, 604 n 4; 617 NW2d 339 (2000).
Further, the witness who was asked whether defendant had run into a dock denied that he had
any knowledge of such an incident. In any event, as discussed, supra, there was extensive
admissible evidence to support defendant’s convictions, and admission of defendant’s prior
intoxication was harmless. See Whittaker, supra at 427; Albers, supra at 590.
III. Mistrial
Defendant contends that the trial court abused its discretion in failing to grant his motion
for a mistrial where the prosecutor commented on the fact that defendant had not testified on his
own behalf. We disagree. A trial court’s decision regarding a motion for a mistrial is reviewed
for an abuse of discretion. People v Bauder, 269 Mich App 174, 194; 712 NW2d 506 (2005).
“A trial court should grant a mistrial only for an irregularity that is prejudicial to the
rights of the defendant and impairs his ability to get a fair trial.” Bauder, supra at 194 (internal
quotation marks and citation omitted). A mistrial should only be granted when nothing else will
remove the prejudicial effect of an error. People v Horn, ___ Mich App ___, ___; ___ NW2d
___ (Docket No. 274130, issued May 15, 2008), slip op at 3. When defense counsel asked one
of his witnesses whether defendant saw a boat that he passed before the accident, the witness
responded, “Apparently,” and explained that defendant had gone around the boat. The
prosecutor objected, arguing that the testimony was speculative. Defense counsel replied that
witnesses from this boat had testified that they saw defendant’s boat go around their boat. The
prosecutor responded, “And there’s no indication from the witnesses that—the Defendant has not
testified. We can’t speculate as to whether he saw it or not without that. It’s pure speculation.”
During the ensuing bench conference, defense counsel moved for a mistrial, and the trial court
admonished the prosecutor. The trial court sustained the prosecutor’s objection and made a note
of defense counsel’s motion for a mistrial. Although the trial court did not explicitly rule on the
motion for a mistrial, it instructed defense counsel to ask his next question and continued with
the trial. No further mention was made of the prosecutor’s comment.
It is well established that “[a] prosecutor may not comment upon a defendant’s failure to
testify.” People v Perry, 218 Mich App 520, 538; 554 NW2d 362 (1996) (citations omitted);
MCL 600.2159. Although the prosecutor’s comment in the instant case was improper, whether it
necessitates the declaring of a mistrial is a question within the trial court’s discretion. People v
Jansson, 116 Mich App 674, 690; 323 NW2d 508 (1982). Although defendant did not request a
curative instruction, the trial court properly instructed the jury that defendant had an absolute
right not to testify, that they may not consider the fact that defendant did not testify, and that his
decision not to testify may not affect their verdict. The trial court also instructed the jury that the
attorneys’ statements and arguments were not evidence. Jury “instructions are presumed to cure
most errors.” Horn, supra at 3. Defendant has not demonstrated that a mistrial would have been
the only method available to remove any prejudicial effect of this error or that the jury
instructions were not followed. While we do not condone the prosecutor’s commenting on
defendant’s failure to testify, defendant has failed to demonstrate that his rights were prejudiced
by the prosecutor’s isolated comment or that he did not receive a fair trial. The trial court did not
abuse its discretion in failing to grant defendant’s motion for a mistrial.
IV. Peremptory Challenges
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Defendant asserts that the trial court abused its discretion in denying his request for
additional peremptory challenges. We disagree. We review a trial court’s decision regarding a
request for additional peremptory challenges for an abuse of discretion. People v Howard, 226
Mich App 528, 536; 575 NW2d 16 (1997).
A criminal defendant has the right to be tried before a fair and impartial jury. People v
Budzyn, 456 Mich 77, 88; 566 NW2d 229 (1997). MCR 6.412(E)(2) provides, in relevant part:
“On a showing of good cause, the court may grant one or more of the parties an increased
number of peremptory challenges.” Before jury selection began, defense counsel requested
additional peremptory challenges, based on the wide publicity that this case had received and the
fact that an alcohol-related death had occurred. The trial court denied this request, explaining
that it had called additional prospective jurors and that challenges for cause were available to
address the concerns expressed by defense counsel. On appeal, defendant identifies six
veniremembers whom he claims responded tentatively to questions regarding whether they could
be fair and impartial. Defendant asserts that these tentative responses came from veniremembers
he “normally would have peremptorily challenged, but for the limited number of challenges
available.” Of these six veniremembers, only three, veniremembers 75, 113, and 139, were
impaneled on the jury.2 However, defendant does not articulate how these three jurors
demonstrated that they were unable to be fair or impartial.
Veniremember 113 worked with the news department of a local radio station, and his
father knew the family of the deceased victim and had worked with some of them. In response
to the trial court’s question about whether he believed the information he received would
influence his ability to be fair and impartial, veniremember 113 replied that he did not believe it
would. When the trial court asked him whether he believed that he would be able to render a
verdict based solely on the evidence presented in court and the law as instructed, he responded
that he believed he could. Veniremember 139 received information about the case through the
media and had been the coach of the opposing baseball team of one of the witnesses.
Veniremember 139 asserted that he understood that this information was not evidence and that
he should not consider this information as a juror. When asked if he believed that he could be
fair and impartial, he responded affirmatively. Veniremember 75 knew about the case from local
media as well, and she asserted that she believed she would be fair and impartial and responded
that she understood that the news was not evidence and might not be true. Veniremember 75
replied that she thought she would be able to base her verdict solely on the evidence admitted at
trial and the law as instructed.
Defendant does not address the good cause requirement of MCR 6.412(E)(2); rather, he
merely argues that the veniremembers expressed a “tentative ability to be fair and impartial.”
Good cause has not been defined in this context, but in People v King, 215 Mich App 301, 304;
544 NW2d 765 (1996), this Court found that pretrial publicity did not constitute good cause
where the trial court had not erroneously concluded that such publicity was not unfairly biased
2
Defense counsel exercised peremptory challenges to excuse veniremembers 66 and 96. With
respect to veniremember 116, defense counsel challenged him for cause, and the trial court
excused him.
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against the defendant. Similarly, in the instant case, there is no evidence that the publicity was
unfairly biased against defendant. None of the veniremembers identified by defendant expressed
opinions regarding defendant’s guilt, and we disagree with defendant’s characterization of the
veniremembers’ statements regarding their ability to be fair and impartial as tentative. The trial
court asked them if they believed they could be fair and impartial, and they all replied that they
believed they could. Therefore, good cause has not been demonstrated and the trial court did not
abuse its discretion in denying defendant’s request for additional peremptory challenges.
V. Excusing Jurors for Cause
Defendant argues that the trial court abused its discretion in excusing two veniremembers
for cause. We disagree.
We review for an abuse of discretion a trial court’s ruling regarding a challenge for cause.
People v Williams, 241 Mich App 519, 521; 616 NW2d 710 (2000). However, “once a party
shows that a prospective juror falls within the parameters of one of the grounds enumerated in
MCR 2.511(D), the trial court is without discretion to retain that juror, who must be excused for
cause.” People v Eccles, 260 Mich App 379, 383; 677 NW2d 76 (2004). We review questions
of law, including those involving the interpretation of a court rule, de novo. People v Kimble,
470 Mich 305, 308-309; 684 NW2d 669 (2004).
Veniremember 34 disclosed that he had a 2004 DUI conviction from “up north,” but he
was unsure which county. Veniremember 32 disclosed that, ten years before the trial, he had
received a drunk driving ticket in Westland and had a conviction related to refusing a
Breathalyzer test. MCR 2.511(D)(10) provides, in pertinent part, that it is a ground to challenge
a veniremember for cause if he or she is “or has complained of or has been accused by that party
in a criminal prosecution.” This constitutes a challenge of juror bias, and it “raises a question
concerning that person’s capacity to render a fair and impartial verdict in a criminal matter.”
Eccles, supra at 382-383 (internal quotation marks and citation omitted). In the instant case, the
prosecution challenged veniremembers 32 and 34 for cause because of their prior convictions,
and the trial court granted this challenge.
In Eccles, our Court held that the phrase “party in a criminal prosecution,” as used in
former MCR 2.511(11),3 includes a county prosecutor. Id. at 381-383. As this Court explained
in Eccles, supra at 383-384:
Unlike cases initiated in the civil arena, where any number of individual attorneys
may be chosen to represent a particular party, it is the prosecuting attorney who
represents the people in each and every criminal prosecution. This “oneness” of
party and attorney explains the different language employed by the rule for
criminal, as opposed to civil, actions and, when viewed in conjunction with the
purpose underlying a challenge for cause as discussed above, militates against the
argument advanced by defendant.
3
MCR 2.511 was amended, and former MCR 2.511(D)(11) is identical to MCR 2.511(D)(10).
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Accordingly, the Livingston County Prosecutor’s Office was not the challenging party. Rather,
it was the attorney representing the challenging party, the People of the state of Michigan.
Defendant attempts to distinguish Eccles on the basis that prosecutors of the same county had
prosecuted the defendant and the excused veniremembers, whereas the excused veniremembers
in the instant case were not prosecuted by Livingston County. Because the lower court record
does not indicate what entity, i.e., city or county, prosecuted veniremembers 32 and 34, we are
unable to determine whether the People of the state of Michigan was the party who had
previously accused veniremembers 32 and 34 and evaluate defendant’s argument.
In any event, we defer to the trial court’s superior ability to assess a veniremember’s
demeanor in deciding whether the veniremember would be impartial. Williams, supra at 522.
The trial court questioned veniremember 32 about his conviction and whether he had any bias or
prejudice toward either party, and the veniremember stated that he did not. However, he also
stated that he had “a little problem” with the .08 BAC limit because a person who consumes one
drink has “an awful good chance” of being charged with an alcohol-related offense. The
prosecutor questioned veniremember 34 about his conviction. The trial court had the opportunity
to observe the demeanor of both veniremembers when they answered questions, and it has
discretion in determining whether a veniremember falls within one of the grounds enumerated in
MCR 2.511(D). See Eccles, supra at 383; Williams, supra at 521.
Further, defendant does not argue that this alleged error deprived him of a fair and
impartial jury, and there is no indication that the seated jurors were not fair and impartial. When
a criminal defendant has obtained a fair and impartial jury, he has no valid ground for complaint.
People v Sharbnow, 174 Mich App 94, 102; 435 NW2d 772 (1989); People v Badour, 167 Mich
App 186, 190; 421 NW2d 624 (1988), rev’d on other grounds sub nom 434 Mich 691 (1990).
The trial court’s decision to grant the prosecutor’s challenges for cause falls within the principled
range of outcomes and does not constitute an abuse of discretion. See Babcock, supra at 269.
VI. Causation
A. Motion for Directed Verdict
Defendant contends that the trial court erred in denying his motion for a directed verdict
because the conduct of the driver of the pontoon boat constituted an intervening, superseding
cause. We disagree.
When reviewing a trial court’s ruling on a motion for a directed verdict of acquittal, we
review the record de novo to determine whether the evidence the prosecutor presented, viewed in
the light most favorable to the prosecutor, could convince a rational trier of fact that the essential
elements of the crime were proven beyond a reasonable doubt. People v Martin, 271 Mich App
280, 319-320; 721 NW2d 815 (2006).
Causation generally requires factual cause and proximate cause. People v Schaefer, 473
Mich 418, 435; 703 NW2d 774 (2005), mod on other grounds 475 Mich 316, 334; 715 NW2d
822 (2006). Factual causation means that the result would not have occurred but for the
defendant’s conduct. Schaefer, supra at 435-436. For defendant’s conduct to constitute a
proximate cause, the death and substantial impairment must be direct and natural results of
defendant’s acts. Id. at 436. We must therefore determine “whether there was an intervening
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cause that superseded the defendant’s conduct such that the causal link between the defendant’s
conduct and the victim[s’] injur[ies] was broken.” Id. at 436-437. For an intervening cause to
constitute a superseding cause, it cannot be reasonably foreseeable based on an objective
standard of reasonableness. Id. at 437. “If, however, the intervening act by the victim or a third
party was not reasonably foreseeable—e.g., gross negligence or intentional misconduct—then
generally the causal link is severed and the defendant’s conduct is not regarded as a proximate
cause of the victim’s injury or death.” Id. at 437-438.
Defendant claims that the failure of the pontoon boat’s driver to turn on his lights,
combined with his admitted consumption of alcohol and drifting in a navigable channel,
constituted gross negligence that warranted the granting of a directed verdict of acquittal. In the
criminal context, gross negligence has been defined as “wantonness and disregard of the
consequences which may ensue, and indifference to the rights of others that is equivalent to a
criminal intent.” Id. at 438 (internal quotation marks and citation omitted). The testimony
varied greatly regarding whether the lights of the pontoon boat and the speedboat were
illuminated. Viewing the evidence in a light most favorable to the prosecution, as we are
required to do, leads to a conclusion that the lights of the pontoon boat and speedboat were all
illuminated at the time of the collision. Martin, supra at 319-320. Therefore, we do not even
reach the question regarding whether it was reasonably foreseeable that the pontoon boat would
be drifting without its lights on.
Although defendant asserts that the consumption of alcohol by the driver of the pontoon
boat and the drifting of the two boats in a navigable channel constituted gross negligence when
combined with the driver’s failure to turn on the pontoon boat’s lights, defendant has not
presented any authority to support the argument that these additional factors constituted gross
negligence on an independent basis. An appellant may not simply announce a position or assert
an error and leave it to us to “discover and rationalize the basis for his claims, or unravel and
elaborate for him his arguments, and then search for authority either to sustain or reject his
position.” People v Kevorkian, 248 Mich App 373, 388-389; 639 NW2d 291 (2001), quoting
Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). We conclude that the trial court
properly denied defendant’s motion for a directed verdict.
B. Jury Instruction
Defendant claims that the trial court erred in failing to properly instruct the jury that, if
they concluded that the failure to maintain proper navigational lighting was an intervening,
superseding cause, they were required to acquit defendant. However, defendant expressly
waived review of this issue. See People v Carter, 462 Mich 206, 215-216; 612 NW2d 144
(2000); People v Matuszak, 263 Mich App 42, 57; 687 NW2d 342 (2004). After reading the jury
instructions, the trial court asked if there was “[a]nything regarding the instructions that were
read.” Defense counsel replied, “I’m satisfied.” Before closing arguments, defense counsel
requested a definition of slight negligence and requested a homicide instruction as a lesserincluded offense of OUIL causing serious impairment. However, he did not object to the
instructions as given or express any concerns on the record regarding the proximate cause or
intervening, superseding cause instructions. Further, the instructions as given were based on the
instructions defendant submitted to the trial court, which did not contain the statement that if the
jury concluded that the failure to maintain proper navigational lighting was an intervening,
superseding cause, they were required to acquit defendant.
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In any event, the trial court instructed the jury that they must determine whether one
victim’s death, and the other victim’s serious injury, were direct and natural results of
defendant’s operation of the boat and whether an intervening cause may have superseded and
severed the causal link.4 The instructions as given are an accurate description of proximate
cause, as explained in Schaefer, supra at 436-438. Given that this Court reads jury instructions
as a whole and the instructions as given “fairly presented the issues to be tried and sufficiently
protected . . . defendant’s rights,” reversal is not warranted. People v Kurr, 253 Mich App 317,
327; 654 NW2d 651 (2002).
VII. Double Jeopardy
Defendant challenges his convictions of negligent homicide and negligent crippling,
claiming that they violate the Double Jeopardy Clause of the Michigan Constitution. See Const
1963, art 1, § 15. We disagree. We review constitutional issues, including double jeopardy
issues, de novo. People v Smith, 478 Mich 292, 298; 733 NW2d 351 (2007).
The Michigan Constitution contains a double jeopardy provision that provides “‘three
related protections: (1) it protects against a second prosecution for the same offense after
acquittal; (2) it protects against a second prosecution for the same offense after conviction; and
(3) it protects against multiple punishments for the same offense.’” Smith, supra at 299, quoting
People v Nutt, 469 Mich 565, 574; 677 NW2d 1 (2004). Defendant argues that his negligent
homicide conviction constitutes a multiple punishment in addition to his OUIL causing death
conviction and that his negligent crippling conviction constitutes a multiple punishment in
addition to his OUIL causing serious impairment conviction. In People v Robideau, 419 Mich
458, 486; 355 NW2d 592 (1984), our Supreme Court rejected the Blockburger same-elements
4
For example, the trial court instructed the jury on proximate causation with respect to the OUIL
causing death charge as follows:
Proximate cause, if factual cause is established it must then be determined
whether the Defendant’s operation of the vessel was a proximate cause. In doing
so one must inquire whether the victim’s death was a direct and natural result of
the Defendant’s operation of the vessel and whether an intervening cause may
have superceded [sic] and thus severed the causal link. While an act of God, or
the gross negligence or intentional misconduct by the victim or a third party will
generally be considered a superceding [sic] cause, ordinary negligence by the
victim or a third party will not be regarded as a superceding [sic] cause because
ordinary negligence is reasonably foreseeable.
Gross negligence means
wantonness and disregard of the consequence which may ensue an [sic]
indifference to the rights of others that is equivalent to a criminal intent.
Intentional misconduct which is reasonably foreseeable is not a superceding [sic]
cause.
The trial court’s proximate cause instructions with respect to the negligent homicide, OUIL
causing serious impairment, and negligent crippling, charges are almost identical.
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test,5 instead holding that the subject, language, and history of the statutes should be used to
determine legislative intent. However, in Smith, supra at 315-316, 323-324, the Court explicitly
overruled Robideau and adopted the Blockburger same-elements test. Therefore, if the
Legislature has not clearly expressed an intent to impose multiple punishments, we must
determine whether the two offenses each require proof of an element that the other does not.
People v Chambers, 277 Mich App 1, 5; 742 NW2d 610 (2007).
Defendant contends that Robideau applies in the instant case because Smith was released
after defendant was convicted and sentenced. Generally, judicial decisions are given retroactive
effect. People v Parker, 267 Mich App 319, 326; 704 NW2d 734 (2005). In determining
whether retroactive application is appropriate, the threshold question is whether “the decision
clearly establish[es] a new principle of law[.]” Id. at 326-327 (internal quotation marks and
citation omitted; alterations in original). With respect to criminal decisions, our courts must
consider “(1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the
effect on the administration of justice.” Id. at 326 (internal quotation marks and citation
omitted). Prospective application is appropriate when the decision “overrules settled precedent
or decides an issue of first impression whose resolution was not clearly foreshadowed.” Id. at
327 (internal quotation marks and citation omitted).
In overruling Robideau, the Smith Court stated:
Robideau’s creation of a new rule to determine whether two statutory
offenses constitute the “same offense” for double jeopardy purposes was
predicated on the Court’s conclusions in previous cases that: (1) Michigan’s
Double Jeopardy Clause afforded greater protections than the Double Jeopardy
Clause of the United States Constitution; and (2) the Blockburger test did not
account for Michigan’s then-current recognition of “cognate” lesser included
offenses as “lesser offenses” under a fact-driven analysis. This conclusion that
the Michigan Constitution affords greater protection than the Fifth Amendment
has no basis in the language of Const 1963, art 1, § 15, the common
understanding of that language by the ratifiers, or under Michigan caselaw as it
existed at the time of ratification. Further, the concern expressed by the Court
that Blockburger does not account for cognate lesser included offenses is no
longer pertinent in light of People v Cornell, 466 Mich 335, 353; 646 NW2d 127
(2002). Finally, nothing in the language of the constitution indicates that the
ratifiers intended to give the term “same offense” a different meaning in the
context of the “multiple punishments” strand of double jeopardy than it has in the
context of the “successive prosecutions” strand. In the absence of any evidence
that the term “same offense” was intended by the ratifiers to include criminal
offenses that do not share the same elements, we feel compelled to overrule
Robideau and preceding decisions that are predicated on the same error of law,
and to hold instead that Blockburger sets forth the appropriate test to determine
5
Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932).
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whether multiple punishments are barred by Const 1963, art 1, § 15. [Smith,
supra at 314-315 (citations omitted).]
The Smith Court did not establish a new principle of law. Rather, it adopted the Blockburger
same-elements test, which is a well-established principle that had already been applied by our
Supreme Court in Nutt, supra at 591-592, in the context of successive prosecutions with respect
to double jeopardy. Smith, supra at 315. Further, the Smith Court stated that it was overruling
Robideau and prior decisions because they were predicated on an error of law. Id. We therefore
apply Smith retroactively.
Given that the Legislature has not clearly expressed an intent to impose multiple
punishments with respect to the instant convictions, we must determine whether the offenses
each require proof of an element that the other does not. Chambers, supra at 5. MCL
324.80176(4) prohibits a person from operating a water vessel while under the influence of
intoxicating liquor or controlled substances or while his BAC is greater than or equal to .10
grams per 100 milliliters of blood and causing death. Similarly, MCL 324.80176(5) prohibits a
person from operating a water vessel while under the influence of intoxicating liquor or
controlled substances or while his BAC is greater than or equal to .10 grams per 100 milliliters of
blood and causing a serious impairment of body function. Negligent crippling or homicide,
MCL 324.80172, prohibits one from operating a water vessel at “at an immoderate rate of speed
or in a careless, reckless, or negligent manner.” Given that § 80176 does not contain any
elements of operation with respect to speed or a careless, reckless, or negligent manner, and
§ 80172 does not contain any elements regarding BAC or the influence of intoxicating liquor or
controlled substances, each section contains an element that the other does not. Accordingly, we
conclude that OUIL causing death and negligent homicide are not the same offense pursuant to
Const 1963, art 1, § 15 and that the trial court properly punished defendant separately for each
offense. We similarly conclude that OUIL causing serious impairment and negligent crippling
are not the same offense and that the trial court properly punished defendant separately for these
offenses as well.
VIII. Sentencing
Defendant claims that the trial court erred in assigning 20 points for prior record variable
PRV 7. We disagree.
If there is evidence in the record to support the scoring of a particular variable, a
sentencing court has discretion in determining the number of points to assign under the
sentencing guidelines, and “[s]coring decisions for which there is any evidence in support will be
upheld.” People v Endres, 269 Mich App 414, 417; 711 NW2d 398 (2006). We review de novo
questions of law, including the construction of the statutory sentencing guidelines. People v
Mack, 265 Mich App 122, 125; 695 NW2d 342 (2005).
Pursuant to MCL 777.57(1)(a), 20 points is an appropriate score for PRV 7 if “[t]he
offender has 2 or more subsequent or concurrent convictions.” Given our resolution of
defendant’s double jeopardy challenge, defendant has 3 convictions that are concurrent to the
scored offense, and the trial court properly assigned 20 points for PRV 7.
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Affirmed.
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
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