PEOPLE OF MI V ERICK LIMMER
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 23, 2004
PEOPLE OF THE STATE MICHIGAN,
Plaintiff-Appellant,
v
No. 123553
NICHOLAS E. HOLTSCHLAG,
Defendant-Appellee.
_______________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 123554
JOSHUA M. COLE,
Defendant-Appellee.
_______________________________
PEOPLE OF THE STATE MICHIGAN,
Plaintiff-Appellant,
v
DANIEL BRAYMAN,
Defendant-Appellee.
_______________________________
No. 123555
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 123556
ERICK LIMMER,
Defendant-Appellee.
________________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to determine if a defendant may be
convicted of involuntary manslaughter for a homicide that
occurred during the commission of a felony and for which
the prosecutor proceeded under a “gross negligence” mens
rea theory.
we
reverse
We hold in the affirmative and, accordingly,
the
decision
of
the
Court
of
Appeals
and
reinstate defendant Limmer’s conviction of accessory after
the
fact
to
involuntary
manslaughter
and
the
remaining
defendants’ involuntary manslaughter convictions.
I. FACTS
On January 16, 1999, a get-together took place at the
home of defendant Erick Limmer.
Along with Limmer, the
other defendants, Joshua Cole, Daniel Brayman, and Nicholas
Holtschlag, were watching television, drinking alcohol, and
smoking marijuana with three fourteen-year-old girls.
At
least one of the defendants put gamma hydroxybutrate or
2
gamma hydroxybutyric acid (both known as GHB) in the girls’
drinks.1
hours,
Two of the girls became sick and, after several
were
taken
to
the
Samantha Reid, died.
hospital.
One
of
the
girls,
The other slipped into a coma but
eventually recovered.
Defendants
Brayman,
Holtschlag,
and
Cole
were
convicted of involuntary manslaughter and two counts each
of
mixing
felony.
a
harmful
substance
in
a
drink,
which
is
a
Defendant Limmer was convicted of accessory after
the fact to manslaughter, mixing a harmful substance in a
drink, delivery or manufacture of marijuana, and possession
of GHB.
Defendants
and
appealed,
the
of
Court
involuntary
negligence
Appeals
manslaughter
theory,
the
the
appeals
stated
that
conviction
prosecutor
were
had
consolidated,
to
under
to
support
a
establish
an
gross
that
defendants performed a lawful act in a grossly negligent
manner.2
Because mixing a harmful substance in the girls’
drinks was an unlawful act that is a felony, the Court
vacated
1
the
involuntary
manslaughter
convictions
and
GHB is sometimes known as the “date rape drug.”
2
Unpublished opinion per curiam, issued March 27, 2003
(Docket Nos. 226715, 227941, 227942 and 241661).
3
accessory after the fact conviction.
II. STANDARD
Determining
the
REVIEW
OF
elements
of
common-law
manslaughter is a question of law.
law de novo.
involuntary
We review questions of
People v Riddle, 467 Mich 116, 124; 649 NW2d
30 (2002).
III. ANALYSIS
There
case.
are
primarily
two
issues
to
address
in
this
The first concerns the defendants’ contention that
they
cannot
because
be
the
commission
convicted
homicide
of
a
of
at
felony
involuntary
issue
and
manslaughter
occurred
involuntary
during
the
manslaughter,
defendants argue, is, in part, defined by this Court as the
killing of another during the commission of an unlawful act
that
is
not
a
felony.
The
second
issue
concerns
defendants’ contention that to be convicted of involuntary
manslaughter under a gross negligence theory, which was the
theory under which the prosecutor proceeded at trial, the
homicide
lawful
must
act,
have
and
in
occurred
this
during
case
it
the
commission
occurred
during
of
a
the
commission of an unlawful (felonious) act.
A. IS
MANSLAUGHTER PRECLUDED BECAUSE OF A
“FELONY”?
Regarding the first issue, some insight into the early
common-law
history
of
the
crime
4
of
manslaughter
and,
particularly, its development alongside the felony-murder
doctrine,
is
necessary.
Under
Lord
Coke’s
traditional
“felony-murder” doctrine, a homicide that occurred during
the commission of an unlawful act was “murder” punishable
by death.
See People v Aaron, 409 Mich 672, 692; 299 NW2d
304 (1980), in which this Court thoroughly articulated the
elusive history of the felony-murder doctrine.
The premise
behind the traditional felony-murder doctrine was the idea
that
the
intention
to
perpetrate
the
unlawful
act
sufficiently showed the existence of malice aforethought—
the requisite mens rea for murder.3
Id. at 717.
This was
considered true whatever the nature of the underlying crime
may
have
been.
Id.
at
692.
Lord
Coke’s
traditional
doctrine was heavily criticized for the harsh results it
engendered,
and
it
was
severely
3
limited
even
in
early
“Mens rea” is a term of art referring to the “state
of mind that the prosecutor, to secure a conviction, must
prove that a defendant had when committing a crime.”
Black’s Law Dictionary (7th ed).
“Malice” is defined as:
“1. The intent, without justification or excuse, to commit
a wrongful act. 2. Reckless disregard of the law or of a
person’s legal rights. 3. Ill will; wickedness of heart.”
Id.
“Malice aforethought,” which is the type of malice
specifically related to the crime of murder, is defined as
“encompassing any one of the following: (1) the intent to
kill, (2) the intent to inflict grievous bodily harm, (3)
extremely reckless indifference to the value of human life
(the so-called ‘abandoned and malignant heart’), or (4) the
intent to commit a felony (which leads to culpability under
the felony-murder rule).” Id.
5
common-law history.
Id. at 693-699.
One of the earliest
limitations on the traditional doctrine was limiting its
application
to
those
homicides
that
occurred
during
the
commission of a felony or during the commission of an act
that was intended to inflict great bodily injury.
Id. at
696-697.
Additionally, in the early days of the English common
law, the crime of “manslaughter” was developed.
of
manslaughter
in
common-law crime.
Michigan
is
adopted
from
The crime
that
early
See People v Datema, 448 Mich 585, 594;
533 NW2d 272 (1995): “‘The law of manslaughter as it exists
today has been adopted from the old English common law.’”
(Citation omitted).
Whereas, as noted above, malice is the
mens rea required for murder, manslaughter requires a less
culpable
mens
rea.
“‘Manslaughter
is
the
unlawful
and
felonious killing of another without malice, either express
or implied.’”
People v Austin, 221 Mich 635, 643; 192 NW
590 (1923) (citation omitted).
Involuntary manslaughter
has, first and foremost, always been considered the “catchall” homicide crime.
Thus, in Datema, supra at 594-595, we
explained, quoting Perkins & Boyce, Criminal Law (3d ed), p
105,
that
concept
“[i]nvoluntary
including
all
manslaughter
manslaughter
not
is
a
catch-all
characterized
as
voluntary: ‘Every unintentional killing of a human being is
6
involuntary
voluntary
manslaughter
manslaughter
if
it
nor
is
neither
within
the
recognized justification or excuse.’”
crime
of
involuntary
murder
scope
of
nor
some
Thus, the catch-all
manslaughter
is
typically
characterized in terms of what it is not, and ascertaining
whether
a
homicide
essentially
is
involuntary
questioning
first
manslaughter
whether
it
is
requires
murder,
voluntary manslaughter, or a justified or excused homicide.
If it is none of those, then the homicide, generally, is
involuntary manslaughter.
In
attempting
to
describe
the
catch-all
crime
of
involuntary manslaughter in terms of what it is, as opposed
to what it is not, it made sense, starting in the days of
early common law, to refer to those homicides that occurred
during
the
commission
of
an
unlawful
intended to cause great bodily injury.
act
that
was
not
This is because, as
already explained, under traditional common law, a homicide
that occurred during the commission of an unlawful act that
was
intended
murder.
to
cause
great
bodily
injury
constituted
Thus, as early as 1886, this Court elucidated the
difference between murder and manslaughter in the following
manner:
If an act is unlawful, or is such as duty
does not demand, and of a tendency directly
dangerous to life, however unintended, it will be
7
murder. But if the act, though dangerous, is not
directly so [i.e., is not directly dangerous to
life], yet sufficiently dangerous to come under
condemnation of the law [i.e., yet it is
unlawful], and death unintended results from it,
the offense is manslaughter; or if it is one of a
nature to be lawful properly performed, and it is
performed improperly, and death comes from it
unexpectedly, the offense still is manslaughter.
[People v Stubenvoll, 62 Mich 329, 340; 28 NW 883
(1886) (quoting 2 Bishop, Criminal Law, §
689).][4]
In 1923, in recognition of the felony-murder doctrine,
which was by then widely accepted, this Court presented a
somewhat
modified
characterization,
version
stating
of
that
Stubenvoll’s
manslaughter
manslaughter
is
“‘the
killing of another without malice and unintentionally, but
in doing some unlawful act not amounting to a felony nor
naturally tending to cause death or great bodily harm, or
in negligently doing some act lawful in itself, or by the
4
In Stubenvoll, the distinction between murder and
manslaughter was premised on the nature of the danger posed
by the unlawful act rather than the categorization of the
unlawful act as being a felony or non felony.
This is
likely because it was before the “felony-murder” doctrine
had gained widespread acceptance.
In any case, the Court
in Stubenvoll recognized the necessity to prove malice in
order to convict of murder. Stubenvoll, supra at 332.
Thus, it is apparent that by holding that a homicide
occurring during the commission of an unlawful act that
directly tends to cause death is murder, the Court was, in
effect, acknowledging that the existence of malice is
sufficiently demonstrated if the defendant commits an
unlawful act that tends to directly cause danger to human
life.
As already noted, this is the same premise
underlying the “felony-murder” doctrine.
8
negligent omission to perform a legal duty.’”
Ryczek,
People v
224 Mich 106, 110; 194 NW 609 (1923) (citation
omitted).
Until this Court issued Aaron, Ryczek’s description of
the
catch-all
crime
of
involuntary
manslaughter
as
consisting of those homicides occurring without malice and
unintentionally,
but
in
doing
some
unlawful
act
not
amounting to a felony nor naturally tending to cause death
or
great
bodily
harm,
was
more
or
less
apt.
This
is
because, generally, a homicide that occurred with malice or
intentionally or in committing a felony or in committing an
unlawful act naturally tending to cause death constituted
murder.
However,
traditional
in
Aaron,
felony-murder
we
formally
doctrine
in
abolished
Michigan
and
the
held
that a homicide that occurred during the commission of any
crime, including a felony, constitutes murder only if the
prosecutor
specifically
Aaron, supra at 727-728.
proves
the
existence
of
malice.
In other words, we held that the
intent to commit the underlying felony by itself no longer
sufficiently shows the existence of malice. Id.
Since this Court’s 1980 abrogation of the common-law
felony-murder rule in Aaron, it is no longer the case that
a homicide that occurs during the commission of a felony
is, generally, murder per se and, thus, it is no longer apt
9
to describe the catch-all crime of involuntary manslaughter
as encompassing crimes that occur during the commission of
an unlawful act that is not a felony.
However, the premise
of the Aaron decision was the rule that a crime is only
murder
if
the
Aaron,
supra
prosecutor
at
726-727,
proves
malice.
“‘Both
murder
We
and
stated
in
manslaughter
deal with the wrongful killing of another person. . . . To
hold that in all cases it is murder if a killing occurs in
the commission of any felony would take from the jury the
essential question of malice.’”
(Citation omitted.)
the
existed,
jury
concludes
murder . . .
.”
relied
the
on
distinguishing
that
malice
they
Id. at 730 (emphasis added).
long-standing
characteristic
find
Thus, Aaron
principle
between
can
“If
that
murder
the
and
manslaughter is malice. This point was made by this Court
as long ago as 1923, when we stated, “[h]omicide is the
killing of a human being by a human being.
either
murder
or
manslaughter
.
.
.
.
It . . . is
To
constitute
murder, the killing must have been perpetrated with malice
aforethought, either express or implied.”
644.
of
Austen, supra at
“‘Manslaughter is the unlawful and felonious killing
another
without
malice,
either
10
express
or
implied.’”
Id. at 643 (citation omitted).5
This point was recently
reiterated by this Court in People v Mendoza, 468 Mich 527,
536; 664 NW2d 685 (2003), in which we stated, “the sole
element distinguishing manslaughter and murder is malice.”
(Emphasis added.)
Thus, it becomes clear that any post-Aaron deficiency
in Ryczek’s description of involuntary manslaughter is not
that
the
unlawful
description
acts
that
fails
are
now
to
felonies,
expressly
but
rather
reference
that
the
description continues to reference unlawful acts that are
not felonies.
determining
This is because the relevant question in
whether
a
homicide
is
murder
or
involuntary
manslaughter is whether it occurred with malice, and not
whether it occurred during the commission of an unlawful
act—felony
or
not.
For
this
reason,
defendants
cannot
opportunistically rely on Ryczek’s pre-Aaron description of
the catch-all crime of involuntary manslaughter to argue
that, because the homicide at issue occurred during the
5
See also People v Potter, 5 Mich 1, 6-9 (1858):
“Murder is where a person of sound memory and discretion
unlawfully
kills
[another]
with
malice
prepense
or
aforethought, either express or implied. . . . [M]alice
aforethought is as much an essential ingredient of murder
in the second degree, as in that of the first. Without
this, the killing would be only manslaughter, if criminal
at all.”
11
commission
of
manslaughter.
a
felony,
they
cannot
be
guilty
of
That a “felony” has been committed is simply
not dispositive in determining whether either “murder” or
“manslaughter” has been committed and, thus, the “felony”
language
in
Ryczek’s
manslaughter
description
is
essentially irrelevant.6
Defendants argue that, if we hold that a homicide that
occurs during the commission of a felony may constitute
manslaughter, we nonetheless may not apply the holding in
this case because to do so would violate the constitutional
provision against ex post facto laws.
See US Const, art I,
§ 10, cl 1: “No State shall . . . pass any . . . ex post
facto Law . . . .”
In Bouie v Columbia, 378 US 347, 353;
84 S Ct 1697; 12 L Ed 2d 894 (1964), the United States
Supreme Court explained that an ex post facto law is one
“‘that makes an action done before the passing of the law,
and which was innocent when done, criminal; and punishes
such action . . . .’”
(Citation omitted).
with
a
defendants
because
homicide
6
committed
We disagree
during
the
We note, however, that while the commission of a
felony is not dispositive in determining whether a “murder”
has been committed because, pursuant to Aaron, evidence of
a felony is no longer sufficient proof in itself of malice,
the fact that the defendant committed a felony may still be
relevant, even if not dispositive, evidence that the
defendant acted with malice. See Aaron, supra at 729-730.
12
course of a felony could never have been considered an
“innocent” homicide merely because it occurred during the
commission of a felony.
defendants’
argument
in
On the contrary, espousing the
this
case—that
a
homicide
that
occurs during the course of a felony cannot, as a matter of
law, be manslaughter—leads to the conclusion then that the
homicide (unless justified or excused) is instead murder.
It
does
not
lead
to
a
conclusion
innocent, i.e., a non offense.
case
does
not
criminalize
that
the
homicide
is
Thus, our decision in this
that
which
was,
before
this
decision, “innocent.”
Moreover,
Ryczek’s
description
of
involuntary
manslaughter was never meant to define the elements of the
crime of manslaughter.
Rather, it was meant to provide
guidance to the courts in understanding the circumstances
under which the catch-all crime of manslaughter may occur.
Therefore, it has never been held by this Court that the
prosecutor
must
specifically
prove
that
the
homicide
occurred during the commission of an unlawful act that was
not a felony in order to prove a manslaughter charge.
the
contrary,
this
Court
has
implicitly
and
On
expressly
recognized in a number of cases, some decided even before
Aaron,
that
while
a
homicide
occurring
during
the
commission of a felony could (pursuant to the felony-murder
13
doctrine)
constitute
murder,
the
homicide
also
could
constitute manslaughter—this despite the “felony” language
in Ryczek’s manslaughter description that, during the preAaron days, actually had significance.
In People v Pavlic, 227 Mich 562; 199 NW 373 (1924),
this
Court
considered
whether
a
defendant
could
be
convicted of manslaughter for a homicide that resulted from
the commission of a felony.
drinking
liquor
sold
by
In Pavlic, a man died after
the
defendant.
At
selling intoxicating liquor was a felony.
the
time,
Notwithstanding
the description of involuntary manslaughter given by this
Court in Ryczek just one year before—which description, as
noted, refers to manslaughter as “‘the killing of another .
. . in doing some unlawful act not amounting to a felony,’”
Ryczek, supra at 110 (citation omitted)—Pavlic held that
the
homicide
at
issue
could
“constitute
manslaughter
if
performed under such circumstances as to supply the intent
to do wrong and inflict some bodily injury.”
at 566.
Pavlic, supra
The reason the Pavlic Court so held was because
selling intoxicating liquor is only a “malum prohibitum”
felony and not a “malum in se” felony.7
7
Id. at 566-567.
A “malum prohibitum” act is one that “is a crime
merely because it is prohibited by statute, although the
(continued…)
14
This may appear to be grounds to distinguish Pavlic from
this
case,
but
the
essential
point
is
that
Pavlic
recognized that a homicide occurring during the commission
of a “felony” could be manslaughter.
Moreover, in so holding, the Pavlic Court noted that
the
important
consideration
in
determining
whether
a
homicide is murder or simply manslaughter in “felony” cases
is whether the felony is one that is “in itself directly
and
naturally
dangerous
to
life.”
Id.
at
565.
The
implication is that the Pavlic Court understood that the
important
question
malice.
If
the
is
whether
defendant
the
defendant
committed
a
acted
felony
with
that
is
directly and naturally dangerous to life, then he acted
with malice and, therefore, could be convicted of murder.
If not, then a manslaughter conviction might be proper.
Thus, even in 1924, one year after Ryczek and fifty-six
years before Aaron, this Court impliedly acknowledged that,
despite
the
language
in
murder
and
commission
Ryczek,
the
manslaughter
of
a
felony
and
distinguishing
is
malice
and,
the
element
“felony”
between
therefore,
the
killing of another in doing some unlawful act that amounts
(…continued)
act itself is not necessarily immoral.”
Black’s Law
Dictionary, supra. A “malum in se” act is a crime “that is
inherently immoral . . . .” Id.
15
to a felony may constitute manslaughter rather than murder,
depending on the facts of the case.
In People v Treichel, 229 Mich 303; 200 NW 950 (1924),
an
elderly
gentleman
was
commission of a robbery.
the
suspects
were
tied
to
a
bed
during
the
He was eventually found dead, and
charged
with
first-
and
second-degree
murder and manslaughter and were convicted of manslaughter.
The defendants appealed, arguing that they should have been
charged
only
with
first-degree
murder
because
the
death
“was occasioned by act committed in the perpetration of a
burglary . . . .”
Id. at 308.
The defendants contended
that they should have been either convicted of first-degree
murder or acquitted, much as the instant defendants seem to
be
arguing.
The
Treichel
Court,
in
affirming
the
defendants’ manslaughter convictions, stated:
Conceding the verdict might have been for
murder in the first degree, because death was
occasioned by act committed in the perpetration
of a burglary, was such a verdict the only one
permissible?
We cannot so hold.
We think the
evidence left the question of degree and the
included crime of manslaughter to the jury and
the court avoided instead of committed error in
so submitting it. Id.
Thus, in Treichel, again just one year after Ryczek,
this
Court
affirmed
a
manslaughter
conviction
for
a
homicide that occurred during the commission of a felony
despite the “felony” language in Ryczek.
16
Presumably, if
the Court intended to preclude such convictions by virtue
of Ryczek’s “felony” language, it would not have affirmed
the
convictions
agreed
with
the
in
Treichel,
defendants
but,
that
instead,
they
would
should
have
have
been
either convicted of first-degree murder or acquitted.
In People v Andrus, 331 Mich 535; 50 NW2d 310 (1951),
the defendants burglarized a store and, while doing so,
inflicted severe wounds on the owner of the store, who
eventually
charged
died.
with
manslaughter
and
As
in
firstwere
Treichel,
and
the
defendants
second-degree
convicted
of
murder
manslaughter.
were
and
The
defendants appealed, arguing that the manslaughter charge
and
convictions
constituted
error.
Again,
despite
the
“felony” language of Ryczek and the felony-murder doctrine,
this Court affirmed the manslaughter convictions in Andrus.
In doing so, the Court acknowledged that the pivotal issue
is the existence of malice:
from
which
felonious
the
intent
jury
as
“[W]here there is testimony
might
is
find
the
necessary
to
absence
of
constitute
such
a
murder
[i.e., malice], an instruction that they might convict of
manslaughter should be given.”
Id. at 546.
In People v Carter, 387 Mich 397; 197 NW2d 57 (1972),
defendants stole a car in order to rob a bank and, in doing
so, put the owner of the car in its trunk.
17
The victim died
as a result, and all three defendants were convicted of
first-degree
murder.
In
that
case,
the
defendants
appealed, arguing that the jury should have been instructed
on
manslaughter
as
well
as
murder.
This
Court,
notwithstanding the “felony” language in
Ryczek,
agreed,
vacated the defendants’ convictions, and remanded for a new
trial.
Simply put, case law demonstrates that the “felony”
language in Ryczek’s description of manslaughter does not
have the meaning ascribed to it that defendants would like
to have.
That is, this language does not mean, as was
impliedly
acknowledged
as
long
ago
as
1924
and
was
impliedly reaffirmed as recently as 2003, that a defendant
may
not
be
convicted
of
manslaughter
if
occurred during the commission of a felony.
the
homicide
The pertinent
question in distinguishing manslaughter from murder is, as
was made absolutely clear in Mendoza, whether the defendant
acted with malice.
If not, then a manslaughter conviction
may be proper despite the fact that the death resulted from
the commission of an underlying felony.
We believe that,
in light of the long history of relevant case law and the
fact that the homicide in question would never have been an
“innocent” homicide, there is no ex post facto violation in
affirming Limmer’s conviction of accessory after the fact
18
to involuntary manslaughter and the remaining defendants’
involuntary manslaughter convictions.8
B. UNLAWFUL-ACT
MANSLAUGHTER AND GROSS NEGLIGENCE
Defendants likewise argue that their convictions of
manslaughter cannot be sustained because “gross negligence”
manslaughter, which is the mens rea that the prosecutor in
this case argued that defendants possessed, requires that a
8
We note that this Court’s order in People v Rode, 449
Mich 912 (1995), in which we affirmed the defendant’s
convictions
of
second-degree
murder
and
denied
the
defendant an instruction on manslaughter because the deaths
occurred during the commission of a felony, has already
been impliedly overruled by Mendoza, in which we held that
manslaughter is a necessarily included lesser offense of
murder.
Mendoza, supra at 548.
Thus, we held in Mendoza
that if a defendant is charged with murder, the jury, upon
the defendant’s request, must also be instructed on
manslaughter if a rational view of the evidence supports
such an instruction.
Id.
Defendants attempt to explain
their position under Mendoza by arguing that, because
Ryczek refers to unlawful acts that are not felonies, a
rational view of the evidence will never support an
instruction on manslaughter in a case based on the
commission of a felony. However, the “rational view of the
evidence” proviso in Mendoza concerns whether the facts of
the specific case rationally fit within the legal purview
of manslaughter—the language is not meant to nullify
Mendoza’s statement concerning the legal elements of
manslaughter: i.e., that “the sole element distinguishing
manslaughter and murder is malice” and that manslaughter is
an unintended homicide with a diminished mens rea.
Mendoza, supra at 536, 541.
Accordingly, as clearly
explained in Mendoza, determining whether a rational view
of the evidence may support a manslaughter conviction
requires considering whether a rational jury could conclude
that the defendant did not act with malice, and not whether
death resulted from the commission of a felony.
19
lawful act have been committed, whereas the act committed
in this case, pouring GHB into Samantha Reid’s drink, was
clearly
unlawful.
defendants
again
In
refer
support
to
Ryczek,
of
this
wherein
contention,
this
Court
described manslaughter as:
the killing of another without malice and
unintentionally, but in doing some unlawful act
not amounting to a felony nor naturally tending
to cause death or great bodily harm, or in
negligently doing some act lawful in itself, or
by the negligent omission to perform a legal
duty.
[Ryczek, supra at 110, citation omitted,
emphasis added).]
Defendants’ argument has no merit.
In Datema, supra
at 596, this Court explained that Ryczek “sets forth three
different theories giving rise to involuntary manslaughter
liability.
These theories are not mutually exclusive, and,
under the proper circumstances, multiple theories may be
appropriate.”
Thus, it is possible to determine, on the
basis
specific
of
the
facts
at
issue,
that
the
act
committed by the defendant that resulted in death was, for
instance, not only unlawful, but also committed with a mens
rea of gross negligence.
In People v Townsend, 214 Mich 267, 273-274; 183 NW
177
(1921),
regarding
this
the
Court
proofs
provided
necessary
some
to
early
guidance
demonstrate
the
“unlawful-act” theory of involuntary manslaughter and the
20
“lawful-act” theory.
Townsend provides:
The
distinction
between
involuntary
manslaughter committed while perpetrating an
unlawful act not amounting to a felony and the
offense arising out of some negligence or fault
in doing a lawful act in a grossly negligent
manner and from which death results must be kept
in mind upon the question of pleading.
In the
former case it is sufficient to allege the
unlawful act with sufficient particularity to
identify it and then to charge that as a
consequence the defendant caused the death of the
deceased, and there is no need to aver in detail
the specific acts of the accused; but in case of
manslaughter committed through gross or culpable
negligence while doing a lawful act the duty
which was neglected or improperly performed must
be charged as well as the acts of the accused
constituting failure to perform or improper
performance. [Id. at 372-274.]
This statement in Townsend essentially means that if
the defendant committed an unlawful act that resulted in
death, it is sufficient to allege the commission of the
unlawful
act
and
the
resulting
death;
whereas,
if
the
defendant committed a lawful act resulting in death, the
prosecutor must specifically allege the manner in which the
defendant’s
actions
were
grossly
or
culpably
negligent.
That is, under Townsend, lawful-act manslaughter requires
that
the
defendant
negligence;
whereas
acted
with
unlawful-act
a
mens
rea
of
manslaughter
culpable
does
not
require that the defendant acted with a specific mens rea—
all that is required is that the defendant committed the
unlawful act.
21
In
Pavlic,
whether
a
this
defendant
manslaughter
for
a
Court
can
death
considered,
be
as
convicted
resulting
noted
of
after
above,
involuntary
the
defendant
committed the unlawful act of selling intoxicating liquor.
The Court explained that a manslaughter conviction may be
appropriate, but that, because this unlawful act is only
malum
prohibitum
rather
than
malum
in
se,
it
is
only
appropriate if the prosecutor specifically proves that the
defendant
acted
essentially
with
equated
a
culpable
malum
mens
prohibitum
rea.
The
Court
unlawful
acts
with
lawful acts, stating
The
act
of
selling
or
furnishing
intoxicating liquor in violation of the statute
is what the law terms an act malum prohibitum, a
crime existing only by reason of statutory
prohibition.
An unlawful act of this character
which
unintentionally
causes
the
death
of
another, is not in itself a sufficient basis for
a charge of involuntary manslaughter.9 But the
commission of such an [malum prohibitum] unlawful
act will constitute manslaughter if performed
under such circumstances as to supply the intent
9
The corollary of this assertion is that an unlawful
act which is not malum prohibitum, but is rather malum in
se, is “in itself” a sufficient basis for a charge of
involuntary manslaughter. This is essentially the position
taken in Townsend, supra, that (malum in se) unlawful-act
manslaughter does not require that defendant acted with a
specific mens rea—all that is required is that defendant
committed the (malum in se) unlawful act and that death
resulted therefrom.
22
to do wrong and inflict some bodily injury. . . .
The rule is well stated in Thiede v. State, 1096
Neb 48 (182 N.W. 570 [1921]), as follows:
“We
believe the rule to be that though the act made
unlawful by statute is an act merely malum
prohibitum and is ordinarily insufficient, still
when such an act is accompanied by negligence or
further wrong so as to be in its nature,
dangerous, or as to manifest a reckless disregard
for the safety of others, then it may be
sufficient
to
supply
the
wrongful
intent
essential to criminal homicide [and] when such an
act results in the death of another, may
constitute involuntary manslaughter.”
[Pavlic,
supra at 566.]
Thus, similar to Townsend, what may be gleaned from
Pavlic is that, traditionally, commission of a malum in se
unlawful
act
that
results
in
an
unintended
death
is
sufficient in itself to constitute manslaughter; whereas an
unintended death resulting from either a lawful act or a
malum prohibitum unlawful act requires specific proof of a
culpable
mens
inflict
rea,
bodily
which
injury
or
may
of
consist
gross
of
an
negligence
intent
showing
to
a
reckless disregard for the safety of another.
In
a
more
recent
case,
Datema,
this
Court
again
addressed the mens rea necessary to sustain a manslaughter
conviction.
malum
Citing Pavlic, we held that where an act is
prohibitum
unlawful
or
lawful,
a
mens
rea
of
“criminal negligence” is required to prove manslaughter,
and
this
requirement
is
met
if
the
defendant
either
intended to inflict some bodily injury on another or if the
23
defendant acted carelessly in such a manner that manifests
a reckless disregard for another’s life-that is, if the
defendant acted with gross negligence.
598-599.
Datema, supra at
“Gross negligence is only necessary if an intent
to injure cannot be established.”
Regarding
malum
in
se
Id. at 605.10
unlawful-act
manslaughter,
Datema first noted that under traditional common law (as
expressed in Townsend and Pavlic), “[w]hen an unintentional
killing occurred during the commission of [a malum in se
unlawful] act . . , the commission of the underlying malum
in
se
[act]
supplied
the
manslaughter.”
Id. at 599-600.
“[u]nlike
second
mens
the
and
third
rea
for
involuntary
Further, Datema noted that
theories
of
involuntary
manslaughter liability, the [unlawful act] rule does not
require negligence.”
Id. at 600.
The defendant in Datema argued that, just as Aaron
held that proof that a defendant committed the underlying
felony is no longer sufficient to show malice and thus
constitute murder, proof that the defendant committed the
10
Thus, in fact, Datema makes clear that it is not the
case, as defendants seem to assert, that lawful-act
manslaughter requires that the prosecutor prove that the
defendant acted with “gross negligence.”
The prosecutor
may prove lawful-act manslaughter by demonstrating that the
defendant acted with either gross negligence or with an
intent to injure.
24
underlying malum in se unlawful act should no longer “in
itself”
be
sufficient
declined
to
address
unlawful
act
battery,
itself
that
to
constitute
this
the
showed
issue
manslaughter.
in
We
Datema
because
the
defendant
committed,
assault
and
that
defendant
the
acted
with
a
specific intent to injure and, thus, the defendant acted
with
a
concluded
culpable
that
involuntary
committed
negligent
manslaughter
the
defendant
manslaughter
with
the
manner
mens
properly
because
intent
that
was
rea.
to
“[a]n
injure
proximately
involuntary manslaughter.”
or
Thus,
Datema
convicted
unlawful
in
causes
a
of
act
grossly
death
is
Id. at 606.
We, too, need not consider whether the prosecutor was
required in this case to specifically prove that defendants
acted
with
a
culpable
mens
rea
or
whether
proof
that
defendants committed the malum in se unlawful act itself
furnishes
a
sufficient
mens
rea
for
involuntary
manslaughter11 because, in either case, the prosecutor did
prove that defendants acted with a culpable mens rea of
gross negligence.
Pursuant to Datema, if the prosecutor
11
We note, however, that were we to hold that the
prosecutor was not required to specifically prove a mens
rea, defendants would not be entitled to relief on the
basis that the prosecutor, in proving a mens rea of gross
negligence, proved more than was required.
25
proves that defendants committed “[a]n unlawful act . . .
with the intent to injure or in a grossly negligent manner
that
proximately
cause[d]
death,”
id.,
an
manslaughter conviction may be appropriate.
prosecutor
did
not
negligence theory.
err
in
involuntary
Therefore, the
proceeding
under
a
gross
Moreover, it is apparent that, at the
very least, the prosecutor sufficiently proved its case.
Defendants
may
not
seek
relief
on
the
basis
that
the
prosecutor may have “over-proved” its case by demonstrating
that defendants acted with a mens rea of gross negligence.
IV. CONCLUSION
To
summarize,
the
language
in
Ryczek
regarding
the
commission of an “unlawful act not amounting to a felony”
does not mean that a defendant may not be convicted of
involuntary
manslaughter
for
an
unintentional
resulting from the commission of a felony.
the
reference
to
an
“unlawful
act
not
death
Disregarding
amounting
to
a
felony,” Ryczek’s description of involuntary manslaughter
remains a useful tool in discerning the circumstances under
which
involuntary
manslaughter
may
occur.
However,
we
emphasize that Ryczek’s description is just that—a useful
tool, and not a definitive statement regarding the elements
of involuntary manslaughter.
kept
in
mind
that
“the
More importantly, it must be
sole
26
element
distinguishing
manslaughter and murder is malice,” Mendoza at 536, and
that
“[i]nvoluntary
manslaughter
is
a
catch-all
concept
including all manslaughter not characterized as voluntary:
‘Every
unintentional
involuntary
killing
manslaughter
voluntary
manslaughter
recognized
if
justification
594-595.
nor
of
it
a
is
neither
within
or
human
the
excuse.’”
being
is
murder
nor
scope
of
Datema,
some
supra
at
If a homicide is not voluntary manslaughter or
excused or justified, it is, generally, either murder or
involuntary manslaughter.12
If the homicide was committed
with malice, it is murder.13
If it was committed with a
lesser mens rea of gross negligence or an intent to injure,
and not malice, it is not murder, but only involuntary
manslaughter.
Defendants in this case purposefully committed a malum
in
se
unlawful
act
when
they
poured
GHB
into
Reid’s drink and, in doing so, caused her death.
was
not
voluntary
manslaughter
or
excused
or
Samantha
Her death
justified.
12
Statutory exceptions to the common-law catch-all
crime of manslaughter exist. For instance, see MCL 750.324
and 750.325, regarding the crime of “negligent homicide.”
13
Of course, if a defendant commits murder, he has
essentially
also
committed
manslaughter
because
manslaughter is a necessarily included lesser offense of
murder. Mendoza, supra at 548.
27
Whether
or
not
defendants
acted
with
malice,
the
jury
found, in either case, that they acted with a diminished
mens
rea
of
gross
negligence
conviction of manslaughter.
purposeful,
willful,
sufficient
to
sustain
a
In short, defendants, by their
reckless,
and
unlawful
behavior,
unintentionally killed another person, and this is exactly
the type of homicide that fits within the parameters of
involuntary
manslaughter.
Therefore,
we
overrule
the
judgment of the Court of Appeals and reinstate defendant
Limmer’s
conviction
involuntary
of
manslaughter
accessory
and
the
after
the
remaining
to
defendants’
involuntary manslaughter convictions.
Stephen J. Markman
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
28
fact
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 123553
NICHOLAS E. HOLTSCHLAG,
Defendant-Appellee.
_________________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 123554
JOSHUA M. COLE,
Defendant-Appellee.
________________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 123555
DANIEL BRAYMAN,
Defendant-Appellee.
________________________________
1
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 123556
ERICK LIMMER,
Defendant-Appellee.
_______________________________
CAVANAGH, J. (concurring in the result only).
I
concur
in
the
result
reached
by
the
majority;
however, I write separately because I disagree with the
majority’s rationale.
Unlike the majority, I believe that
a defendant can be convicted of involuntary manslaughter
when
the
committed
act
is
a
felony,
but
only
when
the
felony does not naturally tend to cause death or great
bodily harm.1
The manslaughter statute, MCL 750.321, provides the
following:
“Any
manslaughter
shall
person
be
who
guilty
shall
commit
the
crime
of
of
felony
punishable
by
a
imprisonment in the state prison, not more than 15 years or
by fine of not more than 7,500 dollars, or both, at the
1
Although I still believe that “[g]ross negligence
should be recognized as the mens rea standard for all
common-law forms of involuntary manslaughter,” as expressed
in my dissent in People v Datema, 448 Mich 585, 609; 533
NW2d 272 (1995), this interpretation of the law was not
shared by a majority of this Court.
2
discretion of the court.”
statute
between
voluntary
No distinction is made in the
manslaughter
and
involuntary
manslaughter.2
Because the statute at issue, MCL 750.321, does not
define
manslaughter,
used.
People v Townes, 391 Mich 578, 588; 218 NW2d 136
(1974).
the
Involuntary
common-law
manslaughter
definition
is
defined
must
as
be
“‘the
killing of another without malice and unintentionally, but
in doing some unlawful act not amounting to a felony nor
naturally tending to cause death or great bodily harm, or
in negligently doing some act lawful in itself, or by the
negligent omission to perform a legal duty.’”
People v
Herron, 464 Mich 593, 604; 628 NW2d 528 (2001), quoting
People v Ryczek, 224 Mich 106, 110; 194 NW 609 (1923).
I disagree with the majority’s claim that this Court
did not provide a definition in Ryczek but merely offered
“guidance” and “a useful tool.”
this claim to be disingenuous.
Ante at 13, 26.
I find
This Court in Ryczek, supra
at 109, stated that the term “involuntary manslaughter” is
“well defined” and then went on to provide the definition.
This
Court
in
Herron,
supra
2
at
604,
stated
that
“the
“There is but one offense of manslaughter in this
State.”
People v Rogulski, 181 Mich 481, 494; 148 NW 189
(1914).
3
definition
[of
involuntary
common law. . . .
manslaughter]
is
left
Further,
the
This Court has defined the common-law
offense of involuntary manslaughter as . . . .”
added.)
to
in
Townes,
supra
at
590,
(Emphasis
this
Court
similarly stated that in Ryczek, “the Court approved the
following definition of involuntary manslaughter . . . .”
(Emphasis
added.)
characterize
the
While
the
definition
majority
as
a
now
chooses
descriptive
tool,
to
I
believe it is clear that the Ryczek definition is, in fact,
a definition.
I
believe
a
proper
reading
of
the
definition
of
involuntary manslaughter dictates that a person cannot be
convicted
of
involuntary
manslaughter
when
he
commits
a
felony that naturally tends to cause death or great bodily
harm.
If the defendant commits a felony that does not
naturally tend to cause death or great bodily harm, such as
larceny
of
an
ornamental
tree,
MCL
750.367,
he
can
be
convicted of involuntary manslaughter if death to a person
results.
This conclusion is consistent with this Court’s
prior decisions.
This Court has previously rejected the argument that a
defendant cannot be convicted of involuntary manslaughter
merely because the act committed was a felony.
See, e.g.,
People v Carter, 387 Mich 397, 422; 197 NW2d 57 (1972);
4
People v Pavlic, 227 Mich 562, 565-567; 199 NW 373 (1924).
In Pavlic, a man died after drinking liquor sold by the
defendant.
felony.
At the time, selling intoxicating liquor was a
This Court stated that violating the liquor law is
only criminal because it is prohibited by statute; it is a
malum prohibitum act.3
“It is not inherently criminal.
Notwithstanding the fact that the statute has declared it
to be a felony it is an act not in itself directly and
naturally dangerous to life.”
Id. at 565.
The commission
of a malum prohibitum act “will constitute manslaughter if
performed under such circumstances as to supply the intent
to do wrong and inflict some bodily injury.”
Id. at 566.
Selling intoxicating liquor was insufficient to support the
manslaughter conviction in Pavlic because the defendant did
not
possess
an
intent
to
inflict
injury
disregard for the safety of the victim.
circumstances
had
been
different,
for
or
a
reckless
However, if the
example,
if
the
liquor had contained certain poisonous ingredients that the
defendant had known about, the defendant would have been
guilty of involuntary manslaughter.
3
Id. at 567.
“An act is malum prohibitum if it is an ‘act which is
not inherently immoral, but becomes so because its
commission is expressly forbidden by positive law . . . .’”
Datema, supra at 597 n 13, quoting Black’s Law Dictionary
(6th ed).
5
My
reasoning
is
consistent
with
past
opinions
and
orders of this Court, and does not require a finding, as
the majority now does, that this Court’s order in People v
Rode, 449 Mich 912 (1995), was impliedly overruled by this
Court’s opinion in People v Mendoza, 468 Mich 527, 534; 664
NW2d 685 (2003).
reinstated
the
In Rode, this Court’s order peremptorily
defendant’s
convictions
of
second-degree
murder and felony-firearm possession on the basis of the
reasoning of the dissenting judge in the Court of Appeals.
The dissenting judge argued:
Because shooting at the other vehicle full
of people was “an unlawful act” amounting to “a
felony and would naturally tend to cause death or
great bodily harm,” it was not conduct within the
definition of involuntary manslaughter for a
killing committed “in doing some unlawful act not
amounting to a felony nor naturally tending to
cause death or great bodily harm . . . .” [Rode,
supra at 914 (LEVIN, J., dissenting, citing JANSEN,
J., concurring in part and dissenting in part,
unpublished opinion per curiam, issued March 3,
1995 [Docket No. 179942]).]
In
essence,
this
Court
adopted
the
dissenting
judge’s
statement that shooting at a car full of people is not
involuntary
manslaughter
because
that
act
constitutes
a
felony that would naturally tend to cause death or great
bodily harm.
Further, in Datema, supra at 597, this Court
stated, “where a defendant commits an unlawful act that is
malum prohibitum or a lawful act executed negligently that
6
causes death, involuntary manslaughter may be premised on
criminal negligence.”
While this Court was considering the
misdemeanor-manslaughter
rule
in
Datema,
the
general
principles articulated are relevant to the issue at hand.
Finally, the underlying felony in this case–mixing a
harmful substance in a drink—does not naturally tend to
cause
death
or
great
bodily
harm.4
There
are
numerous
harmful substances that could be mixed into a drink that
would not naturally lead to death or great bodily harm.
Unfortunately, GHB (gamma hydroxybutrate) was mixed in the
girls’ drinks in amounts that led to one girl’s death, but
that does not mean that defendants’ underlying felony is
one that naturally tends to cause death or great bodily
harm.5
Therefore, I believe that the prosecutor had to
4
MCL 750.436(1) states, in pertinent part, “A person
shall not . . . (a) [w]illfully mingle a poison or harmful
substance with a food, drink, nonprescription medicine, or
pharmaceutical product . . . knowing or having reason to
know that the food, drink, nonprescription medicine,
pharmaceutical product, or water may be ingested or used by
a person to his or her injury.”
5
GHB can have a range of effects from memory loss to
death.
In low doses, the drug can reduce inhibitions,
which is presumably why the drug was mixed in the girls’
drinks. See United States Drug Enforcement Administration,
<www.dea.gov> (accessed July 7, 2004); Executive Office of
the President, Office of National Drug Control Policy,
<www.whitehousedrugpolicy.gov> (accessed July 7, 2004).
(continued…)
7
specifically allege and prove, as he did, that defendants
were grossly negligent.
Therefore, while I agree with the result reached by
the
majority,
I
disagree
with
the
majority’s
rationale.
Accordingly, I concur in the result only.
Michael F. Cavanagh
Marilyn Kelly
(…continued)
I also note that there may certainly be cases in which
the act of mixing GHB into a person’s drink is proven to be
with malice; however, in this case, the prosecutor did not
seek to prove malice.
8
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