People v. Kevorkian

• Decision Date: 10 May 1994
• Docket Number: Docket No. 154740
• Citation: 517 N.W.2d 293,205 Mich.App. 180
• Parties: , 62 USLW 2726 PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jack KEVORKIAN, Defendant-Appellee, and Ethics & Advocacy Task Force, Hugh Gregory Gallagher, Carol Gill, Paul Longmore and the Hemlock Society, Amici Curiae.
• Court: Court of Appeal of Michigan — District of US

Page 293

517 N.W.2d 293

205 Mich.App. 180, 62 USLW 2726

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jack KEVORKIAN, Defendant-Appellee and Ethics & Advocacy Task Force, Hugh Gregory Gallagher, Carol Gill, Paul Longmore and the Hemlock Society, Amici Curiae.

Docket No. 154740.

Court of Appeals of Michigan.

Submitted Jan. 4, 1994, at Lansing.

Decided May 10, 1994, at 9:00 a.m.

Released for Publication June 30, 1994.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., and Michael J. Modelski, Chief, Appellate Div., for people.

Fieger, Fieger & Schwartz, P.C. by Pamela A. Hamway, Geoffrey N. Fieger, and Michael A. Schwartz, Southfield, for defendant-appellee.

Cecilia A. Rauth, Steubenville, OH, for the International Anti-Euthanasia Task Force; Ethics and Advocacy Task Force of the Nursing Home Action Group; Hugh Gregory Gallagher, M.A.; Carol Gill, Ph.D.; and Paul Longmore, Ph.D., in support of appellant, amici curiae.

Daniel C. Devine, Jr., Bloomfield Hills, for Hemlock Society of Michigan, in support of appellee, amici curiae.

Before FITZGERALD, P.J., and TAYLOR and SHELTON, ^* JJ.

FITZGERALD, Presiding Judge.

The prosecution appeals as of right a July 21, 1992, order of Oakland Circuit Judge David F. Breck granting defendant's motion to dismiss two counts of open murder on the ground that physician-assisted suicide is not a crime in Michigan. ¹

I

On October 23, 1991, Marjorie Wantz and Sherry Miller were reported dead by defendant. Their bodies were found in a cabin at the Bald Mountain Recreation Area. At the request of the sheriff's department, the prosecutor referred the matter to the Oakland County Citizens Grand Jury for investigation. On February 3, 1992, defendant was indicted by the Grand Jury on two counts of open murder and one count of delivering a controlled substance for other than legitimate and professionally recognized therapeutic and scientific purposes.

A preliminary examination was held on four dates between February 14 and February 28, 1992. The evidence presented showed that Ms. Wantz had complained of intense pain in the pelvic and vaginal areas for many years. Although she had undergone various operations, she had obtained no relief.

Ms. Miller was diagnosed with multiple sclerosis in 1978 or 1979. Her condition deteriorated over the years, and by 1989 she was using a wheelchair and had to be carried from place to place and put into the chair. By 1991, she was confined either to bed or to a wheelchair, did not have the use of her legs and her right arm, had only limited use of her left arm, and had problems talking and breathing.

At some point, Ms. Wantz and Ms. Miller learned of defendant's reputation as a champion of physician-assisted suicide. They contacted defendant separately on several occasions. Defendant eventually agreed to assist both individuals in taking their lives. Defendant, Ms. Wantz, Ms. Miller, and several family members or friends of each were present at the cabin on October 23, 1991. Ms. Wantz was hooked up to defendant's "suicide machine," which consisted of a board to which her arm was strapped to prevent movement, a needle to be inserted into a blood vessel, and containers of various chemicals that could be released into the needle through tubing and thus into the bloodstream. One of the chemicals was methohexital, which was described by expert witnesses as a fast-acting barbituate used for the quick introduction of anesthesia under controlled circumstances. The drug quickly depresses respiration, and a large dose causes the recipient to stop breathing.

After defendant inserted the needle into a vein in Ms. Wantz' arm, he tied strings to two of her fingers. The strings were attached to clips on thetubing connected to the needle. The clips held back the methohexital and another drug, potassium chloride. Defendant instructed Ms. Wantz how to pull the strings attached to the clips so as to allow the drugs to flow into her bloodstream. Ms. Wantz followed defendant's instructions and died as a result of a lethal dose of methohexital.

Defendant twice attempted to connect the suicide machine to Ms. Miller, but failed. He then left the cabin and returned to his office or residence in Royal Oak where he procured a tank of carbon monoxide gas and a mask assembly. About three hours later, he returned to the cabin, where he attached a screwdriver to the gas canister to act as a lever to open the gas valve. Defendant then attached the mask to Ms. Miller's face and instructed her how to open the gas valve. Ms. Miller died from carbon monoxide poisoning.

At the close of the preliminary examination, the district court bound defendant over on two counts of open murder, but dismissed the drug delivery charge.

Defendant filed a motion in the circuit court to quash the information and dismiss the murder charges, and the prosecutor appealed the dismissal of the drug delivery charge. In an opinion and order dated July 21, 1992, the circuit court granted defendant's motion and denied the prosecutor's appeal. ² In granting defendant's motion to dismiss, the circuit court acknowledged that People v. Roberts, 211 Mich. 187, 178 N.W. 690 (1920), rejected the defense that assisted suicide did not constitute the crime of murder but held that the Court's holding was dictum in view of the fact that Roberts had pleaded guilty of open murder. The circuit court instead relied onPeople v. Campbell, 124 Mich.App. 333, 335 N.W.2d 27 (1983), and held that, because suicide is not a crime, one cannot be criminally responsible for assisting a suicide.

II

In this case of first impression, we are asked to determine whether the murder statute applies to the conduct of a physician who assists another in voluntarily committing suicide.

Michigan statutory law does not define the term "murder." Thus, the crime is defined by the common law and was early defined by the courts as follows:

"Murder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, in the peace of the state, with malice prepense or aforethought, either express or implied." [People v. Aaron, 409 Mich. 672, 713, 299 N.W.2d 304 (1980), quoting People v. Potter, 5 Mich. 1, 6 (1858).]

M.C.L. § 750.316; M.S.A. § 24.548 classifies first-degree murder as:

Murder which is perpetrated by means of poison, lying in wait, or other wilful, deliberate, and premeditated killing, or which is committed in the perpetration, or attempt to perpetrate arson, criminal sexual conduct in the first or third degree, robbery, breaking and entering of a dwelling, larceny of any kind, extortion, or kidnapping, is murder of the first degree, and shall be punished by imprisonment for life.

Under the common law, suicide was murder. See Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 294, 110 S.Ct. 2841, 2860, 111 L.Ed.2d 224 (1990) (Justice Scalia, concurring). Suicide is no longer considered a criminal act, not because the act does not fall within the definition of murder, but because no punishment is provided for self-murder. ³ The American Law Institute's Model Penal Code, which is widely regarded as the greatest criminal law reform project of this century, criminalizes aiding or soliciting another to commit suicide, but does not criminalize suicide or attempted suicide. Roberts, supra, which held that aiding a suicide falls within the common-law definition of murder, is consistent with this view.

In Roberts, the defendant pleaded guilty of the murder of his wife. The defendant's wife, who had unsuccessfully attempted suicide in the past, had terminal multiple sclerosis and was in great pain. At his wife's request, the defendant made a potion of water and poison and placed it within her reach. As the defendant watched, his wife took the poison and died.

After Roberts entered a plea confessing his guilt, the court found him guilty of first-degree murder within the meaning of 1915 CL 15192, now M.C.L. § 750.316; M.S.A. § 28.548. On appeal, Roberts raised three claims of error, one of which was that there was no evidence that he had committed first-degree murder:

The proceedings are further assailed by the claim that there is no evidence of the commission of the crime charged. In support of this counsel contends, in substance, that suicide is not a crime in Michigan. That defendant's wife committed no offense in committing suicide, that if she, as principal, committed no offense, defendant committed none as an accessory before the fact. In short, that if the principal is not guilty the accessory is not. ⁴ [Roberts, supra 211 Mich. at 195, 178 N.W. 690.]

The Supreme Court disagreed and upheld the defendant's conviction:

If we were living in a purely common-law atmosphere with a strictly common-law practice, and defendant were charged with being guilty as an accessory of the offense of suicide, counsel's argument would be more persuasive than it is. But defendant is not charged with that offense. He is charged with murder and the theory of the people was that he committed the crime by means of poison. He has come into court and confessed that he mixed poison with water and placed it within her reach, but at her request. The important question, therefore, arises as to whether what defendant did constitutes murder by means of poison.

* * * * * *

In considering the status of one who advises or aids another to commit suicide, 37 Cyc p 521, has this to say:

"Where one person advises, aids, or abets another to commit suicide, and the other by reason thereof kills himself, and the advisor is present when he does so, he is guilty of murder as a principal, or in some jurisdictions of manslaughter; or if two persons mutually agree to kill themselves together, and the means employed to produce death take effect upon one only, the survivor is guilty of murder of the one who dies. But if the one who encourages another to commit suicide is...