PEOPLE OF MI V IVORY L HERRON
Annotate this Case
Download PDF
Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Just ice
Justices
Maura D . Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED JULY 3, 2001
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 114858
IVORY L. HERRON,
Defendant-Appellee.
____________________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
This case requires that we determine whether defendant’s
right to be free from double jeopardy was violated.
The
issues presented are (1) whether defendant’s retrial for
second-degree
murder,
after
a
jury
in
the
first
trial
deadlocked on that count, was a constitutionally impermissible
successive prosecution; (2) whether defendant’s conviction of
involuntary
manslaughter
on
retrial
resulted
in
an
unconstitutionally impermissible multiple punishment because
he had previously been convicted of negligent homicide under
prosecution for a separate count; and (3) whether defendant is
entitled to a conviction of the lesser offense when multiple
punishments have resulted from a retrial.
We hold that defendant’s retrial for second-degree murder
was
permissible
and
did
not
violate
the
constitutional
protection against successive prosecutions.
However, the
retrial of the defendant resulted in multiple punishments for
the same offense.
Therefore, the defendant is entitled to a
remedy for the multiple punishments violation.
We hold that
the constitutional violation should have been remedied by
affirming defendant’s conviction of involuntary manslaughter
and vacating his conviction of negligent homicide.
Additionally,
we
address
whether
the
defendant’s
conviction of involuntary manslaughter at the second trial,
following his previous conviction of negligent homicide, was
precluded by application of MCL 768.33, as proposed by Judge
WHITE . We conclude that MCL 768.33 does not apply to defendant
because
he
different
was
not
degrees
of
subjected
the
same
to
a
subsequent
offense
for
trial
which
he
for
was
originally acquitted or convicted upon an indictment.
Accordingly, we reverse the judgment of the Court of
Appeals, reinstate defendant’s conviction and sentence for
involuntary
manslaughter,
and
2
vacate
his
conviction
and
sentence for negligent homicide.
I
The facts relevant to our decision in this case were
sufficiently set forth in the unpublished decision of the
Court of Appeals:
On October 17, 1995, after drinking alcohol
and ingesting a controlled substance, phencyclidine
(PCP), defendant drove a U-Haul truck at an
immoderate rate of speed and in an erratic manner
on the streets of Grosse Pointe Woods. He struck
one car, causing it to spin around, then drove on,
striking another vehicle head-on, killing the
driver, Christina Comito. These events occurred on
a clear fall day at approximately 3:30 P.M ., just as
a nearby middle school was dismissing students for
the day and traffic on the roads was heavy. Blood
tests performed later on defendant revealed the
presence OF PCP, but no alcohol.
The prosecutor charged defendant with second
degree murder, MCL 750.317; MSA 28.549 [count I ],
operating a motor vehicle while under the influence
of a combination of alcohol and a controlled
substance thereby causing death (OUI causing death),
MCL 257.625(4); MSA 9.2325(4) [count II ], and
driving on a suspended or revoked license [count
III ].
The jury was permitted to consider, on count
I , the lesser offenses of involuntary manslaughter
involving a motor vehicle, MCL 750.321; MSA 28.553,
and negligent homicide, MCL 750.324; MSA 28.556,
and on count II , negligent homicide was again given
as a lesser included offense of OUI causing death.
. . . Ultimately, the jury convicted defendant on
count II of negligent homicide and on count III of
operating a motor vehicle while his license was
suspended or revoked,[1] but was unable to reach a
verdict on count I .
The trial court ordered a
mistrial on that count.
The prosecutor retried
defendant on the second-degree murder charge, with
1
Count
III
is not at issue here.
3
the jury being instructed on the lesser offenses of
involuntary manslaughter involving a motor vehicle
and negligent homicide.
The jury convicted
defendant of involuntary manslaughter.
[Issued
April 6, 1999 (Docket No. 198353), slip op at 1-2.]
On appeal to the Court of Appeals, defendant argued that
his retrial on the charge of second-degree murder, after being
convicted of negligent homicide in his first trial, violated
his
constitutional
protections
against
double
jeopardy.
Stating that “a fundamental error in the proceedings below
. . . resulted in a violation of defendant’s constitutional
right to be free from double jeopardy,” the Court of Appeals
first determined that where the facts of a case support
separate charges for murder, involuntary manslaughter, or
OUI
causing death, the charges must be brought in the alternative,
and presented to the jury in that manner.
Id. at 2.
The
Court then concluded that because “the defendant’s drunken
driving ha[d] caused the death of one person, he [could] be
convicted of only one of these offenses.”
the original).
defendant’s
Id. (emphasis in
The Court of Appeals further concluded that
conviction
of
both
negligent
homicide
and
involuntary manslaughter constituted multiple punishments for
the same offense, given the statutorily created link between
these two crimes,2 with negligent homicide being a necessarily
2
See MCL 750.325.
4
included lesser offense of involuntary manslaughter.
Id.
Although the Court of Appeals recognized that, when a
defendant is convicted of both a greater and lesser offense of
the
same
category,
the
general
rule
is
to
vacate
the
conviction of the lesser offense and affirm the conviction of
the greater,3 it determined that, because the charges were
improperly
presented
to
the
jury
in
the
first
trial,
defendant’s conviction of involuntary manslaughter in the
second trial was “tainted and cannot stand.”
Accordingly,
conviction
the
for
Court
of
involuntary
Appeals
vacated
manslaughter
conviction for negligent homicide.
and
Id. at 3.
defendant’s
affirmed
his
Id.4
In concurring with the Court of Appeals majority, Judge
WHITE relied on a statutory rather than constitutional ground,5
essentially stating that because negligent homicide was a
“different degree” of involuntary manslaughter, defendant’s
conviction of negligent homicide precluded his subsequent
conviction of involuntary manslaughter arising from the same
vehicular death.
3
Id. at 1.
People v Harding, 443 Mich 693; 506 NW2d 482 (1993).
4
The Court of Appeals also ordered resentencing on
defendant’s negligent homicide conviction for reasons that are
not relevant here.
5
MCL 768.33.
5
II
This appeal involves challenges based on constitutional
double jeopardy principles.
A double jeopardy challenge
presents a question of law that we review de novo.
See, e.g.,
People v Sierb, 456 Mich 519, 520-21; 581 NW2d 219 (1998).
US Const, Am V provides, in pertinent part
No person . . . shall . . . be subject for the same
offence to be twice put in jeopardy of life or limb
. . .
This
provision
is
applicable
Fourteenth Amendment.
to
the
states
through
the
Benton v Maryland, 395 US 784, 794; 89
S Ct 2056; 23 L Ed 2d 707 (1969).
Further, Michigan Const
1963, art 1, § 15 provides:
No person shall be subject for
offense to be twice put in jeopardy.
The
Double
Jeopardy
Clause
of
the
the
Fifth
same
Amendment
protects against two general governmental abuses: (1) multiple
prosecutions for the same offense after an acquittal or
conviction; and(2) multiple punishments for the same offense.
Ohio v Johnson, 467 US 493, 497; 104 S Ct 2536; 81 L Ed 2d 425
(1984).
“The principal thrust of double jeopardy protection by
the
very
terms
of
our
federal
and
state
constitutional
provision[s] is protection from repeated prosecutions for the
same criminal offense arising out of the same conduct.” People
6
v Harding, 443 Mich 693, 705; 506 NW2d 482 (1993).
This
includes protection from being prosecuted in a subsequent
prosecution for a greater offense, following conviction in a
previous trial for a lesser included offense.
Green v United
States, 355 US 184, 190; 78 S Ct 221; 2 L Ed 2d 199 (1957);
Price v Georgia, 398 US 323; 90 S Ct 1757; 26 L Ed 2d 300
(1970).
Additionally, the concept of multiple punishment in
double jeopardy jurisprudence has as its purpose the avoidance
of more than one punishment for the same offense arising out
of a single prosecution.”
Harding, supra at 705. I n
t h e
present case, we are faced with challenges involving both
defendant’s constitutional right to be free from multiple
prosecutions
and
his
right
to
be
free
from
multiple
punishments.
A
First,
we
conclude
that
there
was
no
violation
of
defendant’s right to be free from multiple prosecutions when
he was retried on the charge of second-degree murder in the
second trial.6
Successive-prosecution cases implicate the
6
The Court of Appeals concluded that “defendant’s right
against successive prosecutions for the same offense was
implicated once the trial court accepted the first jury’s
verdict of negligent homicide and the prosecutor was allowed
to retry defendant on the higher charges.” Slip op at 2.
However, the Court of Appeals holding erroneously failed to
recognize that the second trial in this case was a retrial
(continued...)
7
core values of the principles relating to double jeopardy.
See Bartkus v Illinois (On Rehearing), 359 US 121, 151; 79 S
Ct 676; 3 L Ed 2d 684 (1959) (Black, J., dissenting).
Where
successive prosecutions occur, double jeopardy principles
protect a defendant’s interest in not having to twice run the
gauntlet, in not being subjected to “embarrassment, expense
and
ordeal,”
and
in
not
being
compelled
“to
live
in
a
continuing state of anxiety and insecurity,” with enhancement
of the “possibility that even though innocent he may be found
guilty.”
Green v United States, supra at 187-88; see also
United States v Wilson, 420 US 332, 343; 95 S Ct 1013; 43 L Ed
2d 232 (1975).
The United States Supreme Court has recognized that
certain situations are not amenable to strict application of
the general principle that the Double Jeopardy Clause bars a
defendant
from
being
tried
twice
6
for
the
same
crime.
(...continued)
after mistrial of the second-degree murder charge initially
brought simultaneously with the OUI causing death charge.
Jeopardy relating to the second-degree murder charge continued
from the initial trial into the retrial. The retrial did not
involve a second prosecution for the OUI charge.
Thus, as
will be explained, the problem perceived by the Court of
Appeals is actually a multiple punishments problem rather than
a multiple prosecutions problem.
This case is similar to
Harding, supra, in which this Court discussed the difficulty
in analyzing a challenge arising when the punishment
complained of is exacted from successive trials rather than
from a single trial. See discussion below at 18-21.
8
Richardson v United States, 468 US 317, 323-324; 104 S Ct
3081; 82 L Ed 2d 242 (1984).
In Richardson, the Supreme Court
held that in those circumstances in which “manifest necessity”
causes the termination of a criminal trial, the defendant’s
right against being placed twice in jeopardy is not implicated
with regard to the charges unsuccessfully completed.
In
particular, the Supreme Court has long recognized that a
jury’s inability to agree upon a verdict constitutes manifest
necessity.
Id.
Michigan
courts
also
recognize
that
where
manifest
necessity compels the termination of a proceeding, the state’s
double jeopardy provisions do not bar retrial.
People v
Thompson, 424 Mich 118, 123; 379 NW2d 49 (1985), quoting
People v Anderson, 409 Mich 474, 483-84; 295 NW2d 482 (1980).
Such
manifest
necessity,
although
elusive
of
precise
definition, includes at least those instances in which a jury
is unable to reach a verdict.
When
a
jury
is
Thompson, supra at 123.
unable
to
reach
a
verdict
and
a
declaration of mistrial has been made by the court, the
mistrial is not the equivalent of an acquittal.
There exists
a long line of cases, starting with the opinion of Justice
Story in United States v Perez, 22 US (9 Wheat) 579, 580; 6 L
Ed 165 (1824), which hold that “a failure of the jury to agree
on a verdict [is] an instance of ‘manifest necessity’ which
9
permits a trial judge to terminate the first trial and retry
the defendant, because ‘the ends of public justice would
otherwise
be
defeated.’”
The
Court
in
United
States
v
Bordeaux, 121 F3d 1187, 1193 (CA 8, 1997) stated that
[w]here a jury ha[s] not been silent as to a
particular count, but where, on the contrary, a
disagreement is formally entered on the record[,]
[t]he effect of such entry justifies the discharge
of the jury, and therefore a subsequent prosecution
for the offence as to which the jury has disagreed
and on account of which it has been regularly
discharged, would not constitute second jeopardy.
The present case falls within the scope of this exception
to the general prohibition against successive prosecutions.
Here, the jury in defendant’s first trial expressly deadlocked
with regard to count
I
(second-degree murder), thus compelling
the termination of an otherwise properly pursued criminal
prosecution. Under these circumstances, defendant was neither
acquitted nor convicted of this offense. Richardson, supra at
323-324; Thompson, supra at 123.
Rather, the trial court’s
declaration of a mistrial, regarding the second-degree murder
charge, completely halted the proceedings that ultimately
would have led to a verdict on this charge.
499-500.
Johnson, supra at
Where criminal proceedings against an accused have
not run their full course, the Double Jeopardy Clause does not
bar a second trial. Price v Georgia, supra at 326-27.
Thus,
because the prosecutor’s retrial of defendant on the charge of
10
second-degree
murder
was
the
result
of
a
hung
jury,
we
conclude that there was no violation of double jeopardy
principles aimed at multiple prosecutions.
Vacating
defendant’s
conviction
for
involuntary
manslaughter, the Court of Appeals majority in this case
determined that a “fundamental error in the proceedings below
.
.
.
has
resulted
in
a
violation
of
defendant’s
constitutional right to be free from double jeopardy.”
op at 2.
Slip
Apparently, this “fundamental error” occurred when
the prosecutor chose to pursue convictions against defendant
for
both
second-degree
murder
and
causing
OUI
death.
According to the Court majority, “where the facts support
separate charges of murder, involuntary manslaughter, or
OUI
causing death, the charges must be brought in the alternative,
and presented to the trier of fact as such.”
added).
Id. (emphasis
We disagree to the extent where, as here, defendant
was charged with second-degree murder and
OUI
causing death in
the first trial, but was acquitted of the latter, and properly
retried for second-degree murder in a subsequent trial.
Thus,
the
Court
of
Appeals
vacation
of
defendant’s
conviction for involuntary manslaughter on this ground was in
error.
B
Second, we conclude that defendant received multiple
11
punishments for the killing of the victim, Ms. Comito, in
violation
of
his
double
jeopardy
right
to
be
free
from
multiple punishments, when he was convicted of, and sentenced
for, negligent homicide and involuntary manslaughter.
Under
neither
the
federal
nor
the
Michigan
double
jeopardy provisions does this Court instruct the Legislature
regarding what conduct it can and cannot make separate crimes.
People v Robideau, 419 Mich 458, 485; 355 NW2d 592 (1984).
In
Michigan,
is
the
penalty
for
involuntary
manslaughter
codified,7 but the definition is left to the common law.
People v Stubenvoll, 62 Mich 329, 331; 28 NW 583 (1886).
Court
has
defined
the
common-law
offense
of
This
involuntary
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.”
People v Ryczek, 224 Mich 106, 110; 194 NW 609 (1923); see
7
The penalty for involuntary manslaughter is set forth
in MCL 750.321:
Any person who shall commit the crime of
manslaughter shall be guilty of a felony punishable
by imprisonment in the state prison, not more than
fifteen years or by fine of not more than seven
thousand five hundred dollars, or both, at the
discretion of the court.
12
also People v Beach, 429 Mich 450, 477; 418 NW2d 861 (1988).
The kind of negligence required for manslaughter is something
more than ordinary or simple negligence, however, and is often
described as “criminal negligence” or “gross negligence,”
People v Townes, 391 Mich 578, 590 n 4; 218 NW2d 136 (1974).
The negligent homicide statute, MCL 750.324 provides:
Any person who, by the operation of any
vehicle upon any highway or upon any other
property, public or private, at an immoderate rate
of speed or in a careless, reckless or negligent
manner, but not wilfully or wantonly, shall cause
the death of another, shall be guilty of a
misdemeanor, punishable by imprisonment in the
state prison not more than 2 years or by a fine of
not more than $2,000.00, or by both such fine and
imprisonment.
Where
two
statutes
prohibit
violations
of
the
same
societal norm, albeit in a different manner, as a general
principle it can be concluded that the Legislature did not
intend multiple punishments.
Robideau, supra at 487.
With
regard to the statutes addressing the offenses of involuntary
manslaughter and negligent homicide, it is reasonable to
conclude that the causation of the death of another human
being is the violation of a societal norm sought to be
prohibited by the Legislature.
These two crimes are part of
a hierarchy of offenses in which statutes incorporate the
elements of a base statute, but increase the penalty on the
basis of the presence of increasingly aggravating conduct.
13
See id. at 487-88; see also People v Price, 214 Mich App 530,
544; 543 NW2d 49 (1995).
In other words, the only difference
between the two offenses is the level of conduct necessary to
establish criminal culpability.
That the involuntary manslaughter and negligent homicide
statutes prohibit violations of essentially the same societal
norm is further evidenced by MCL 750.325, which provides:
The crime of negligent homicide shall be
deemed to be included within every crime of
manslaughter charged to have been committed in the
operation of any vehicle, and in any case where a
defendant is charged with manslaughter committed in
the operation of any vehicle, if the jury shall
find the defendant not guilty of the crime of
manslaughter, it may render a verdict of guilty of
negligent homicide.
The hierarchal nature of these two offenses thus evidences a
legislative
prohibition
against
the
imposition
of
dual
convictions and punishments for violation of the societal norm
sought to be protected by both the statute against involuntary
manslaughter and the statute against negligent homicide.
See
Robideau, supra at 487-88; People v Sturgis, 427 Mich 392,
407; 397 NW2d 783 (1986).
In the present case, defendant was first convicted of
negligent homicide, under a charge of OUI causing death.8
8
He
As we have concluded today, such charging neither
constituted overreaching by the prosecutor, nor resulted in a
violation of defendant’s right to be free from multiple
(continued...)
14
was retried on the second-degree murder charge, a charge on
which the jury in the first trial had expressly deadlocked,
and was convicted of involuntary manslaughter. Defendant thus
received multiple punishments for the killing of Ms. Comito,
in violation of his double jeopardy right to be free from
multiple punishments for the same offense.
See Robideau,
supra at 487.
In People v Harding, supra, the defendants were found
guilty of armed robbery, assault with intent to murder, and
8
(...continued)
punishments. However, a trial court is required to instruct
the jury concerning the law applicable to the case and to
present the case fully and fairly to the jury in an
understandable manner. MCL 768.29. People v Mills, 450 Mich
61, 80; 537 NW2d 909 (1995).
We recognize that the
instructions articulated by the trial court at defendant’s
first trial have served to
complicate the issues in the
present case.
Here, the trial court instructed the jury on
the offense of negligent homicide as a lesser included offense
of both second-degree murder and OUI causing death.
Defendant, however, arguably waived any potential claim
of error resulting from the trial court’s instructions to the
jury at his first trial.
Waiver has been defined as “the
intentional relinquishment or abandonment of a known right.”
People v Carines, 460 Mich 750, 762-763, n 7; 597 NW2d 130
(1999). “One who waives his rights under a rule may not then
seek appellate review of a claimed deprivation of those
rights, for his waiver has extinguished any error.” United
States v Griffin, 84 F3d 912, 924 (CA 7, 1996).
In the
present case, defendant did not fail to object to the
negligent homicide instruction as it related to the OUI
causing death charge. Rather, he both requested, and approved
of, this instruction. Defendant may not now harbor any claim
of error regarding this instruction as an appellate parachute.
See People v Carter, 462 Mich 206, 214; 612 NW2d 144 (2000).
15
possession of a firearm, arising out of a robbery during which
the victim “was shot once in the heart and once in the
abdomen, and then thrown headfirst into a sewer to die.”
at 696 (BRICKLEY , J.).
Id.
He survived the attack, but suffered
from irreversible heart problems from that time until his
death four years later.
Id. at 696-697.
The defendants were
then prosecuted for felony murder and felony-firearm. Id. In
a
joint
trial
with
separate
juries,
one
defendant
was
convicted of felony murder and felony-firearm, while the other
defendant was convicted of felony murder only.
Id. at 698.
The defendants appealed, and the Court of Appeals held that
the prosecution and conviction of both defendants for felony
murder was not precluded by double jeopardy.
The Court of
Appeals reversed the second conviction and the sentence for
felony-firearm, on the basis that it was precluded by double
jeopardy protections.
Id. at 698.
The Court of Appeals also
concluded, in light of the felony-murder conviction, that both
defendants’ prior convictions and sentences for armed robbery
and assault with intent to commit murder were violative of the
protection against multiple punishments and should be vacated
and set aside, the time having been served by them credited to
the
sentences
convictions.
imposed
as
a
result
of
their
earlier
Id. at 699.
This Court affirmed in part and reversed in part, holding
16
that it was not a violation of the Double Jeopardy Clause to
charge, try, and convict these defendants of felony murder
after prosecution for the other crimes arising out of the same
conduct.
Id. at 704-705.
This Court went on to analyze the
“constitutional implications” of the penalties imposed on the
defendants for the previous crimes in light of the felony
murder conviction.
Id.
Reversing in part the Court of
Appeals decision, this Court also held that since the felony
murder
conviction
did
not
amount
to
a
double
jeopardy
violation, it followed that the accompanying felony-firearm
conviction was valid as well.
Thus, in Harding, this Court had occasion to consider
whether
a
multiple
punishment
problem
that
arises
when
punishments are exacted in successive trials should be treated
in the same manner as when multiple punishments are exacted in
a single trial.
The Court stated:
We conclude that double jeopardy protection
dictates that defendants not receive a form of
multiple punishment that could not have been
exacted had their felonious intentions been
realized sooner and had they been prosecuted to the
extent of their ultimate culpability in the first
trial. They were not placed in jeopardy twice by
the second prosecution . . . ; rather, they were
subjected to punishment for offenses arising out of
a single transaction that could not have been
exacted in a single proceeding. [Id. at 715-716.]
In
separate
opinions,
a
majority
of
the
Harding
Court
recognized that the same guiding principles apply in both
17
situations.9
Harding also stated that, in cases in which no successive
prosecutions problem arises, but in which a defendant has been
punished
doubly
“for
offenses
arising
out
of
a
single
transaction but that could not have been exacted in a single
proceeding,”
it
is
an
appropriate
remedy
in
a
multiple
punishment double jeopardy violation to affirm the conviction
of the higher charge and to vacate the lower conviction.
Id.
at 716; see also Jones v Thomas, 491 US 376, 381-382; 109 S Ct
2522; 105 L Ed 2d 322 (1989).
Likewise, we believe that
Harding can be extended to cases, such as the instant one, in
which the multiple punishments problem does not arise in the
first trial because of the declaration of a mistrial. Had the
jury not deadlocked on the second-degree murder charge, but,
instead
had
convicted
the
defendant
of
involuntary
manslaughter, punishment could have been exacted in a single
trial and the multiple punishment remedy would have been to
9
Thus, in cases involving the double jeopardy
protection against double punishment, although we
have not decided a case involving both successive
prosecutions and multiple punishment as in Garrett
[v United States, 471 US 773; 105 S Ct 2407; 85 L
Ed 2d 764 (1985)], it is clear that we have
interpreted the Michigan Constitution consistently
with
the
United
States
Supreme
Court’s
interpretation
of
the
federal
constitution–
legislative intent controls. [Id. at 708 (opinion
of BRICKLEY , J.).]
18
affirm the greater conviction.
This fact, coupled with the
fact that the second trial was permissibly brought out of
manifest
necessity,
constitutional
supports
purposes,
the
conclusion
defendant’s
that,
conviction
for
for
involuntary manslaughter should stand, and his conviction of
negligent homicide should be vacated.
the
Court
of
Appeals
decision,
We therefore reverse
reinstate
defendant’s
conviction and sentence for involuntary manslaughter, and
vacate his conviction and sentence for negligent homicide.
III
Apart from the constitutional issues of double jeopardy
discussed
above,
however,
we
are
also
faced
applicability of MCL 768.33 to the present case.
with
the
Section 33
provides:
When a defendant shall be acquitted or
convicted upon any indictment for an offense,
consisting of different degrees, he shall not
thereafter be tried or convicted for a different
degree of the same offense; nor shall he be tried
or convicted for any attempt to commit the offense
charged in the indictment or to commit any degree
of such offense.
The application of this statute to the present case was first
raised by Judge WHITE in her concurring Court of Appeals
opinion.
According to Judge WHITE , because the defendant should not
have been tried for involuntary manslaughter after being
19
convicted of negligent homicide, the involuntary manslaughter
conviction was improper.
Instead, Judge WHITE would have
affirmed the defendant’s negligent homicide conviction and
vacated his involuntary manslaughter conviction. Essentially,
then, Judge WHITE ’s opinion suggests that MCL 768.33 justifies
departure from the generally accepted remedy for multiple
punishments, see Harding, supra, and requires affirmance of
the lesser conviction rather than the greater.
While we acknowledge that MCL 768.33 may affect the
prosecutor’s ability to retry a defendant for a crime in
instances where the defendant has previously been convicted of
a lesser-included offense of that crime, we hold that MCL
768.33 is inapplicable to the facts of this case.
believe
that
the
appropriate
remedy
is
to
Thus, we
affirm
the
defendant’s involuntary manslaughter conviction and vacate his
negligent homicide conviction.
In reviewing questions of statutory construction, our
purpose is to discern and give effect to the Legislature's
intent.
People v Morey, 461 Mich 325, 329-330; 603 NW2d 250
(1999).
“We begin by examining the plain language of the
statute; where that language is unambiguous, we presume that
the Legislature intended the meaning clearly expressed–no
further judicial construction is required or permitted, and
the statute must be enforced as written.”
20
Id. at 330.
“We
must give the words of a statute their plain and ordinary
meaning . . . .”
Id.
The plain language of § 33 provides that a defendant
shall not be tried or convicted for a different degree of the
“same offense” for which he has been acquitted or convicted
upon any indictment. In the present case, the only acquittals
or convictions the defendant received were upon an indictment
for
OUI
causing death.10
different degree of
OUI
He was not thereafter tried for a
causing death.
Therefore, he was not
subsequently tried for a different degree of the same offense.
Judge
WHITE ’s
opinion
implies
that
the
defendant’s
conviction of negligent homicide upon an indictment for
OUI
causing death barred subsequent trials (including a retrial)
for any charges that would include negligent homicide as a
lesser
offense.11
We
respectfully
disagree.
The
plain
language of § 33 ties the “offense, consisting of different
10
In association with the OUI causing death charge, the
defendant was convicted of negligent homicide as a lesser
included offense and was thereby implicitly acquitted of OUI
causing death.
11
We note that the complicated question arises partially
from the fact that the jury was instructed that a homicide
offense, negligent homicide, was also a lesser-included
offense of OUI causing death. Our opinion should not be read
as holding that negligent homicide is a lesser-included
offense of OUI causing death.
Rather, we are merely
addressing the issues as they pertain to the prosecution of
the defendant and the punishments he actually received.
21
degrees”
to
convicted,
the
not
indictment
to
the
ultimately convicted.
under
which
a
defendant
is
particular
crime
of
which
is
he
This becomes apparent when the statute
is read in its entirety.
In the first part of § 33, the
phrase “for an offense, consisting of different degrees”
immediately follows, and modifies, the word “indictment.”
Moreover, the second half of the statute clearly refers to a
subsequent trial or conviction regarding “the offense charged
in the indictment.”
MCL 768.33 (emphasis added).
Further, in Michigan, a prosecution must be based on an
information
or
an
indictment.
MCR
6.112(B).
The
word
“indictment” includes information, presentment, complaint,
warrant and any other formal written accusation.
MCL 750.10;
see also People v Grove, 455 Mich. 439, 459, n 24; 566 NW2d
547 (1997).
The term "indictment" is to be treated as also
referring to charges made by the filing of an information.
People v Russo, 439 Mich 584, 588, n 1; 487 NW2d 698 (1992);
see also MCL 767.2.
“Each count in an indictment is regarded
as if it was a separate indictment.”
People v Vaughn, 409
Mich 463, 465; 295 NW2d 354 (1980).
In essence, defendant here was originally tried under
three
murder,
separate
OUI
license.
charges,
or
“indictments”:
second-degree
causing death, and driving on a suspended driver’s
At his first trial, defendant was convicted of
22
negligent homicide.
count
II
However, this conviction was based upon
(OUI causing death) of a three-count information.
Because the focus of § 33 is on the offense charged in
the indictment, not on the offense for which a defendant is
ultimately convicted, defendant herein could not thereafter be
tried for a “different degree” of
second
trial,
defendant
was
OUI
causing death.
convicted
of
At his
involuntary
manslaughter, as a result of being retried on the charge of
second-degree
murder,
a
charge
upon
which
the
jury
in
defendant’s first trial expressly deadlocked.
The issue then becomes whether
OUI
causing death and
second-degree murder or involuntary manslaughter constitute
“different degrees” of the same offense.
We conclude that
they clearly do not, and are thus persuaded that this lack of
relationship serves to negate the application of § 33 under
the circumstances of the present case.
IV. CONCLUSION
We conclude that it was appropriate for the prosecutor to
retry defendant for second-degree murder in a subsequent
trial, after the jury deadlocked on that count after the first
trial. The prosecutor’s retrial of defendant on the charge of
second-degree murder was the result of manifest necessity, and
therefore not in violation of double jeopardy principles aimed
at multiple prosecutions.
23
We thus reverse the judgment of the Court of Appeals and
reinstate defendant’s conviction and sentence for involuntary
manslaughter.
inappropriate
However,
multiple
because
defendant
punishments
for
received
involuntary
manslaughter and negligent homicide, we vacate his conviction
and sentence for negligent homicide.
CORRIGAN , C.J., and CAVANAGH , WEAVER , KELLY , TAYLOR , and YOUNG ,
JJ., concurred with MARKMAN , J.
24
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
