People v. Herron

• Decision Date: 03 July 2001
• Docket Number: Docket No. 114858, Calendar No. 9.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ivory L. HERRON, Defendant-Appellee.
• Court: Michigan Supreme Court

628 N.W.2d 528

464 Mich. 593

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ivory L. HERRON, Defendant-Appellee.

Docket No. 114858, Calendar No. 9.

Supreme Court of Michigan.

Argued October 11, 2000.

Decided July 3, 2001.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Thomas M. Chambers, Assistant Prosecuting Attorney, Detroit, MI, for the people.

Judith McNair, Detroit, MI, for defendant-appellee.

Jennifer M. Granholm, Attorney General, and Thomas L. Casey, Solicitor General, Lansing, MI, for amici curiae people of the state of Michigan. Lawrence J. DeBrincat, Farmington Hills, MI, for amicus curiae Mothers Against Drunk Driving.

Carl J. Marlinga, Prosecuting Attorney, Robert J. Berlin, Chief Appellate Attorney, and Joshua D. Abbott, Assistant Prosecuting Attorney, Mt. Clemens, MI, for amici curiae plaintiff-appellant.

Opinion

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 M.C.L. § 768.33, as proposed by Judge WHITE. We conclude that M.C.L. § 768.33 does not apply to defendant because he was not subjected to a subsequent trial for different degrees of the same offense for which he 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 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, M.C.L. § 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), M.C.L. § 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, M.C.L. § 750.321; MSA 28.553, and negligent homicide, M.C.L. § 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 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." Id. (emphasis in the original). The Court of Appeals further concluded that defendant's 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 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." Id. at 3. Accordingly, the Court of Appeals vacated defendant's conviction for involuntary manslaughter and affirmed his conviction for negligent homicide. 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. Id. at 1.

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 N.W.2d 219 (1998).

U.S. 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 to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 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 the same offense to be twice put in jeopardy.

The Double Jeopardy Clause of the Fifth 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 U.S. 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 v. Harding, 443 Mich. 693, 705, 506 N.W.2d 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 U.S. 184, 190, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Price v. Georgia, 398 U.S. 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, 506 N.W.2d 482. In the 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 core values of the principles relating to double jeopardy. See Bartkus v. Illinois (On Rehearing), 359 U.S. 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, 78 S.Ct. 221; see also United States v. Wilson, 420 U.S. 332, 343, ...