People v. Baker , 216 Mich. App. 687 ( 1996 )

Neff, P.J.

Defendant was convicted of two counts of second-degree murder, MCL 750.317; MSA 28.549, and was sentenced to concurrent terms of fifteen to thirty years in prison, for killing two people while driving drunk. Defendant appeals his convictions and sentences as of right, and we vacate his convictions and remand for proceedings consistent with this opinion.

i

The essential facts of this case are not in dispute. On the night in question, defendant was observed driving his pickup truck at speeds between sixty and seventy miles per hour in a zone with a posted limit of thirty-five miles per hour. Defendant failed to stop for a red light and collided with a vehicle occupied by the victims. Both of the victims were pronounced dead on arrival at the local hospital. Defendant cannot remember the events of the evening because of the injuries he sustained as a result of the accident. Approximately three hours after the accident, defendant’s blood-alcohol level was 0.18 percent.

n

On appeal, defendant claims that the trial court erred in submitting the charge of second-degree murder to the jury because insufficient evidence of malice was adduced at trial. We agree.

The issue raised by defendant has been resolved in the recent opinion of People v Goecke, 215 Mich App 623; 547 NW2d 338 (1996). Goecke is binding authority and we agree with its result. We find it important for purposes of clarity to expand on the concepts set forth in that opinion.

A

When reviewing a claim regarding the sufficiency of evidence, we examine the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could find the essential elements of the crime proved beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). Circumstantial evidence and reasonable inferences arising from the evidence may constitute satisfactory proof of the elements of the offense, including the intent to kill. People v Warren (After Remand), 200 Mich App 586, 588; 504 NW2d 907 (1993).

B

In order to prove malice to support a conviction of second-degree murder, the prosecutor must prove that defendant possessed the

mental state consisting of “the intent to kill, to cause great bodily harm, or to do an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.” [People v Miller, 198 Mich App 494, 497; 499 NW2d 373 (1993), quoting People v Vasquez, 129 Mich App 691, 694; 341 NW2d 873 (1983).]

Only the last part of this definition is at issue here because of the lack of evidence that defendant intended to kill or cause great bodily harm.

The corresponding definition of manslaughter contains language similar to the definition of malice applicable here:¹

However, where the theory is a lawful act carelessly performed, “the carelessness must have been gross, implying an indifference to consequences; . .. [i]t means wantonness and disregard of the consequences which may ensue, an indifference to the rights of others that is equivalent to a criminal intent. . . . Therefore gross negligence is criminal, and within limits supplies the place of affirmative criminal intent.” [People v Datema, 448 Mich 585, 596; 533 NW2d 272 (1995), quoting People v Barnes, 182 Mich 179, 198-199; 148 NW 400 (1914) (emphasis added).]

The distinction between the applicable definitions is subtle, but important; both speak, in part, of wanton disregard for the consequences of one’s actions. Involuntary manslaughter and second-degree murder constitute two separate crimes, however, indicating a difference between them. That difference is in the scope of the consequence disregarded. For malice to exist to support a conviction of second-degree murder, the prosecution must show that the defendant performed an act in wanton and wilful disregard that the natural tendency of the act is to cause death or great bodily harm. In order to prove involuntary manslaughter, the prosecutor need only show that the defendant performed an act in wanton disregard that death or great bodily harm may ensue. In other words, malice, and therefore second-degree murder, requires a disregard for consequences almost certain to follow an action, while manslaughter merely requires disregard for possible consequences.

c

Applying the distinction to the facts of this case, the question becomes whether evidence of reckless driving while drunk can support a finding of malice. We find such evidence to be insufficient.

In the House Legislative Analysis, HB 4827 et al, August 14, 1991, discussing amendments of the drunk driving laws contained within MCL 257.625; MSA 9.2325, it is noted that the average drunk driver can drive drunk five thousand miles before being arrested, and that only about one in one thousand drunk drivers ever gets arrested. These figures, of course, include those drunk drivers who are arrested for causing fatal accidents.

Thus, it cannot be said that the natural tendency of driving drunk along with the reckless driving behavior that often goes with it, including causing accidents, is to cause death or great bodily harm. With that in mind, no reasonable inference can be drawn to support a finding of malice on the mere evidence of drunk driving. While we deplore drunk driving and acknowledge its harmful effects, we must conclude that evidence consisting solely of drunk driving and the attendant erratic driving cannot support a finding of malice.

Having reached this conclusion, we are mindful that drunk driving along with some other evidence of the defendant’s state of mind can constitute sufficient evidence to support a finding of malice. See Goecke, supra; Miller, supra. Absent some additional proof, however, the mere evidence of drunk driving and the behavior incident thereto is not enough.

D

We acknowledge the case law from other states, some cited by the prosecution, holding that evidence of mere drunkenness supports a finding of malice. See statement of Justice Levin in People v Brown, 445 Mich 866, 869-871 (1994). We conclude, however, that those opinions reaching the opposite conclusion, such as Essex v Virginia, 228 Va 273; 322 SE2d 216 (1984), are better reasoned.²

e

Finally, we do not rely on MCL 257.625(4); MSA 9.2325(4), the so-called ouiL-causing-death statute, to support our conclusion in this case as suggested by Justice Levin’s statement in Brown, supra at 866-867.

We conclude that this statute does not restrict prosecutors from charging a drunk driver with whatever homicide charge is warranted by the facts of the case because homicide is a crime different from OUIL causing death. See People v Peach, 174 Mich App 419; 437 NW2d 9 (1989). Thus, prosecutors are free to charge a defendant with both homicide and OUIL causing death. See People v Price, 214 Mich App 538; 543 NW2d 49 (1995). Indeed, on the basis of the legislative intent behind the ouiL-causing-death statute, we conclude that the Legislature intended to add to, rather than subtract from, the charging options available to prosecutors in drunk driving cases. See People v Lardie, 207 Mich App 615, 619-621; 525 NW2d 504 (1994), lv gtd 450 Mich 865 (1995).

F

For the reasons set forth above, we conclude that defendant’s convictions must be vacated because the prosecutor failed to present sufficient evidence of malice to support defendant’s convictions of second-degree murder. We remand for entry of a judgment of convictions of involuntary manslaughter. See People v Hutner, 209 Mich App 280; 530 NW2d 174 (1995).

m

Because of our disposition of defendant’s first issue, we need not determine whether his sentences were proportionate.

Defendant’s convictions and sentences are vacated, and this matter is remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

D. A Johnston, J., concurred.

1 As with malice, involuntary manslaughter contains three definitions. See People v Datema, 448 Mich 585, 596; 533 NW2d 272 (1995). We deal only with the quoted definition because of the evidence presented at trial.

2 In Essex, the Virginia Supreme Court determined that the mere evidence of drunk driving did not constitute sufficient evidence of malice to support a conviction of second-degree murder in part on the basis of its finding that such evidence forced the jury to speculate regarding the defendant’s true state of mind. The court noted that, as here, no evidence was adduced from which the juiy could determine whether the defendant embarked on his course of conduct wilfully and with a malicious purpose. Id. at 284. We agree with this rationale.