People v. Stewart , 206 Mich. App. 662 ( 1994 )

206 Mich. App. 662 (1994) 522 N.W.2d 912

PEOPLE
v.
STEWART

Docket No. 139830.

Michigan Court of Appeals.

Submitted March 9, 1994, at Detroit. Decided September 7, 1994, at 9:00 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, and Robert C. Williams, Assistant Prosecuting Attorney, for the people.

Michael J. Brady, for the defendant on appeal.

Before: CAVANAGH, P.J., and WAHLS and G.W. CROCKETT, III,^[*] JJ.

ON REHEARING

PER CURIAM.

Defendant was convicted in two separate jury trials presided over by the same judge of manslaughter with a motor vehicle, MCL 750.321; MSA 28.553, and of being an habitual offender, third offense, MCL 769.11; MSA 28.1083. He was sentenced as an habitual offender to fifteen to thirty years' imprisonment. Defendant appeals from his conviction and sentence. We are constrained by Administrative Order No. 1994-4 to reverse and remand for a new trial.

In the early morning hours of July 24, 1990, the vehicle in which defendant and Sandra Groves were traveling went off a freeway exit ramp and rolled over. Both occupants were thrown from the car, and Groves was killed. Defendant, who was found to have a blood alcohol level of 0.18 percent, was charged with manslaughter with a motor vehicle. A jury found him guilty as charged. A second jury then convicted defendant of being an habitual offender, third offense, on the basis of two prior convictions of operating a motor vehicle while under the influence of intoxicating liquor, third offense (OUIL-third), MCL 257.625(6); MSA 9.2325(6). This appeal followed.

Defendant's first issue on appeal is whether the trial court committed error requiring reversal when it instructed the jury that it could find defendant guilty of manslaughter if his actions were a, rather than the, substantial cause of Groves' death, in light of expert testimony that the allegedly defective design of the freeway ramp may have been partially or wholly to blame for the death.

A panel of this Court recently addressed this issue in People v Tims, 202 Mich. App. 335; 508 NW2d 175 (1993), Iv gtd 445 Mich. 862 (1994). In that case, Judge MARILYN KELLY reluctantly concluded that, on the basis of Supreme Court precedent, in order for a defendant to be convicted of vehicular homicide, his conduct must be the proximate cause of the death. Id. at 339-340, citing People v Layman, 299 Mich. 141, 145; 299 N.W. 840 (1941); People v Townsend, 214 Mich. 267, 275; 183 N.W. 177 (1921); People v Barnes, 182 Mich. 179, 199; 148 N.W. 400 (1914). The remaining members of that panel concurred in the result.

We do not agree that the Tims result was mandated by the Supreme Court cases cited. If we were not constrained by Administrative Order No. 1994-4 to follow Tims, we would affirm the manslaughter conviction because we believe that it is both confusing and unnecessarily restrictive to instruct the jury that defendant's conduct must be the substantial cause of death. However, on retrial the court shall instruct the jury that defendant's conduct must have been the substantial cause of Groves' death.

In light of our conclusion, it is not necessary to address defendant's remaining allegations of trial error.

Defendant next contends that the trial court erred in denying his motion to have the habitual offender charges dismissed, because the prior felonies (OUIL-third) used to enhance the manslaughter charge were themselves both enhanced misdemeanors.

On August 22, 1991, our Supreme Court determined in People v Bewersdorf, 438 Mich. 55; 475 NW2d 231 (1991), that the habitual offender act fully applies to third and subsequent OUIL convictions, thus effectively overruling People v Tucker, 177 Mich. App. 174; 441 NW2d 59 (1989). However, in the recent case of People v Doyle, 203 Mich. App. 294; 512 NW2d 59 (1994), a divided panel of this Court held that Bewersdorf could not be retroactively applied (even though the Supreme Court in that case applied the new rule retroactively). Doyle, supra at 296-297. Accordingly, because the offense in this case was committed on July 24, 1990, we must conclude that defendant's two OUIL-third convictions may not serve as the underlying felonies for the habitual offender charge. Doyle, supra; Tucker, supra.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

NOTES

[*] Recorder's Court judge, sitting on the Court of Appeals by assignment.