People v. Kulpinski

• Decision Date: 19 December 2000
• Docket Number: Docket No. 220072.
• Citation: 620 N.W.2d 537,243 Mich. App. 8
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Paul KULPINSKI, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

620 N.W.2d 537

243 Mich. App. 8

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Paul KULPINSKI, Defendant-Appellant.

Docket No. 220072.

Court of Appeals of Michigan.

Submitted September 14, 2000, at Lansing.

Decided October 17, 2000, at 9:00 a.m.

Released for Publication December 19, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Susan K. Mladenoff, Prosecuting Attorney, and Jennifer Kay Clark, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Gail Rodwan, Assistant Defender), for the defendant on appeal.

Before MURPHY, P.J., and GRIFFIN and WILDER, JJ.

RICHARD ALLEN GRIFFIN, J.

Following a jury trial, defendant was convicted of involuntary manslaughter, M.C.L. § 750.321; MSA 28.553, and operating a motor vehicle while under the influence of intoxicating liquor (OUIL) causing death, M.C.L. § 257.625(4); MSA 9.2325(4). The trial court sentenced defendant to imprisonment for five to fifteen years for each conviction, with the sentences to run concurrently. Defendant appeals as of right. We affirm.

I

Defendant's convictions stem from an automobile accident on June 27, 1997, in which defendant, while driving his pick-up truck north on M-66, crossed the centerline of the road into the southbound lane and struck and killed Helen Mason in her Subaru Legacy stationwagon. The road was dry and clear on that date, and several witnesses to the accident consistently testified at trial that immediately before the fatal collision defendant's truck was weaving erratically into the opposing lane, as if nobody was controlling it. Following the accident, defendant was, by all accounts, belligerent, uncooperative, and confused. Witnesses noted a strong, distinct odor of alcohol emanating from defendant. Defendant was transported to a hospital for treatment of his injuries, at which time a blood test revealed that defendant's blood alcohol level was 0.15 percent.

II

On appeal, defendant first maintains his convictions and sentences for involuntary manslaughter and OUIL causing death constitute multiple punishments for the same offense in violation of the double jeopardy provisions of the United States and Michigan Constitutions, U.S. Const., Am. V;¹ Const. 1963, art. 1, § 15.² We disagree.

In order to avoid forfeiture of this unpreserved constitutional issue on appeal, defendant must show that (1) an error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights. People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999). Once these three requirements have been satisfied, this Court must then "exercise its discretion in deciding whether to reverse." Id. Reversal is warranted only when the plain, unpreserved error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity, or public reputation of judicial proceedings independent of the defendant's innocence. Id.

A double jeopardy challenge constitutes a question of law that this Court reviews de novo on appeal. People v. Walker, 234 Mich.App. 299, 302, 593 N.W.2d 673 (1999). The intent of the Legislature is the determining factor under the Double Jeopardy Clauses of the federal and state constitutions, and an alleged violation of this constitutional guarantee is measured by the standards set forth in People v. Denio, 454 Mich. 691, 707-708, 564 N.W.2d 13 (1997):

The United States Supreme Court has repeatedly held that the test enumerated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), is to be used to determine legislative intent in analyzing the protection afforded by the Double Jeopardy Clause of the United States Constitution:

"For over half a century we have determined whether a defendant has been punished twice for the `same offense' by applying the rules set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). If `the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.' Ibid. In subsequent applications of the test, we have often concluded that two different statutes define the `same offense,' typically because one is a lesser included offense of the other. [Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134 L.Ed.2d 419, 426 (1996).]"

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This Court has rejected the Blockburger test in analyzing the Double Jeopardy Clause of the Michigan Constitution, and instead uses traditional means to determine the intent of the Legislature, such as the subject, language, and history of the statutes. [People v.] Robideau, [419 Mich. 458, 486-487, 355 N.W.2d 592 (1984) ].

Statutes prohibiting conduct that is violative of distinct societal norms can generally be viewed as separate and amenable to permitting multiple punishments. Id. at 708, 564 N.W.2d 13. A further source of legislative intent can be found in the amount of punishment expressly authorized by the Legislature. Id.

Using the above analysis, this Court has already addressed and rejected the very double jeopardy challenge now raised by defendant in the present appeal. In People v. Price, 214 Mich.App. 538, 541-546, 543 N.W.2d 49 (1995), this Court held the defendant's convictions and multiple punishments for OUI causing death and involuntary manslaughter with a vehicle violated neither federal nor state double jeopardy protections. In so doing, the Price Court, id. at 542-543, 543 N.W.2d 49, first examined the offenses at issue,³ noting:

The manslaughter statute provides:

"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 [15] years or by fine of not more than seven thousand five hundred [7,500] dollars, or both, at the discretion of the court. [MCL 750.321; MSA 28.553.]"

The OUI causing death statute provides:

"A person, whether licensed or not, who operates a motor vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state, in violation of subsection (1) or (3), and by the operation of that motor vehicle causes the death of another person is guilty of a felony punishable by imprisonment for not more than 15 years or a fine of not less than $2,500.00 or more than $10,000.00, or both. [MCL 257.625(4); MSA 9.2325(4).]"

MCL 257.625(1); MSA 9.2325(1) provides that a person shall not operate a vehicle if the person is under the influence of intoxicating liquor, a controlled substance, or a combination thereof, or if the person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. MCL 257.625(3); MSA 9.2325(3) provides that a person shall not operate a vehicle if "the person's ability to operate the vehicle is visibly impaired" because of the consumption of intoxicating liquor, a controlled substance, or a combination thereof.

Framing the defendant's double jeopardy challenge under the Michigan Constitution in terms of legislative intent, this Court concluded:

[T]he two statutes are aimed at prohibiting conduct affecting distinct societal norms. The offense of involuntary manslaughter, which is contained in the Penal Code, requires a showing that the defendant acted in a grossly negligent, wanton, or reckless manner that caused the death of another. People v. Moseler, 202 Mich.App. 296, 298, 508 N.W.2d 192 (1993). Thus, the offense can be characterized as one focusing on punishing grossly negligent conduct. In contrast, the OUI causing death statute, which is a provision of the Vehicle Code, is a strict liability offense that focuses on swiftly and surely punishing those who operate motor vehicles while under the influence of alcohol or a controlled substance. In People v. Lardie, 207 Mich.App. 615, 619-620, 525 N.W.2d 504 (1994), a panel of this Court stated:

"The legislative analysis of the house bill enacted as the OUIL causing death statute further demonstrates the Legislature's objective in enacting the statute. A reading of the analysis evidences a legislative belief that `swift and sure' sanctions are necessary to combat the social acceptance associated with drinking and driving, and to dispel the belief that the drinking driver will not be caught and punished."

Although the legislative analysis focused primarily on drinking and driving, the reasoning is equally applicable to situations where a person operates a motor vehicle while under the influence of a controlled substance. The fact that the statutes prohibit conduct that violates distinct societal norms is evidence that the Legislature intended to permit multiple punishments....

A further source of legislative intent can be found in the amount of punishment expressly authorized by the Legislature.... We find it significant that the statutes do not involve a hierarchy of offenses or a situation where one statute incorporates most of the elements of a base statute and then increases the penalty on the basis of the presence of aggravating conduct.... Accordingly, we conclude that the penalty provisions of the statutes evidence a legislative intent to authorize punishment for both offenses. [Id. at 543-544, 543 N.W.2d 49 (emphasis added).]

The Price Court similarly rejected the defendant's federal double jeopardy claim:

Furthermore, analyzing the offenses under the federal Blockburger test ... also supports our conclusion that the Legislature intended to permit multiple punishments for involuntary manslaughter and OUI causing death....

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Here, each offense contains an element not in the other. Involuntary manslaughter contains the element of gross negligence, while OUI...