People v. McBurrows

• Decision Date: 15 July 2019
• Docket Number: Docket No. 157200
• Citation: 504 Mich. 308,934 N.W.2d 748
• Court: Michigan Supreme Court
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Romon Berry MCBURROWS, Defendant-Appellee.

504 Mich. 308

934 N.W.2d 748

PEOPLE of the State of Michigan, Plaintiff-Appellant,

v.Romon Berry MCBURROWS, Defendant-Appellee.

Docket No. 157200

Supreme Court of Michigan.

Argued April 11, 2019

Decided July 15, 2019

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Michael G. Roehrig, Prosecuting Attorney, and Michael C. Brown and Allison M. Arnold, Assistant Prosecuting Attorneys, for the people.

Rockind Law (by Neil Rockind, Southfield, and Noel Erinjeri) for defendant.

Melissa A. Powell, Kym L. Worthy, Detroit, Jason W. Williams, and Timothy A. Baughman, Detroit, for Amicus Curiae the Prosecuting Attorneys Association of Michigan.

BEFORE THE ENTIRE BENCH

Clement, J.

In this case, we consider whether, in a prosecution for delivery of a controlled substance causing death, venue is properly laid in a county if the death, but not the delivery, occurred in that county. We conclude that venue in such circumstances is not proper, and so we affirm the conclusion of the Court of Appeals in this regard and remand for further proceedings not inconsistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY¹

On December 12, 2016, Nicholas Abraham—a resident of Monroe County—contacted an acquaintance, William Ingall, about procuring some heroin. Abraham picked up Ingall, and the two traveled to a house in Detroit. Abraham gave Ingall money, and Ingall went into the house to purchase heroin from defendant, Romon McBurrows. Abraham and Ingall then went to a nearby laundromat parking lot, where they consumed some of the heroin. Ingall noted that the heroin seemed unusually strong, and he warned Abraham to be careful when consuming it. Abraham took Ingall home and then returned to his own home, in Monroe County. Upon arriving at home at about 10:00 p.m., Abraham provided some heroin to his wife, Michelle, who used it and passed out. When she awoke in the early morning hours of December 13, she found Abraham unresponsive, and after failing to resuscitate him, she called the authorities, who pronounced him dead that same day. An autopsy ultimately concluded that Abraham’s death was caused by fentanyl

toxicity—fentanyl being a substance sometimes mixed with heroin.

Defendant was charged in Monroe County with one count of delivery of a controlled substance causing death. He filed a motion disputing Monroe County as a proper venue.² The trial court denied the motion. Defendant then filed an application for leave to appeal on an interlocutory basis in the Court of Appeals, which granted leave and stayed the trial court proceedings pending the appeal.³ The Court of Appeals ultimately reversed the judgment of the trial court. People v. McBurrows , 322 Mich. App. 404, 913 N.W.2d 342 (2017). The People then appealed in this Court, and we ordered argument on the application as to whether, on these facts, Monroe County was a proper venue for this criminal trial. People v. McBurrows , 501 Mich. 1073, 911 N.W.2d 197 (2018).

II. STANDARD OF REVIEW

"A trial court’s determination regarding the existence of venue in a criminal prosecution is reviewed de novo." People v. Houthoofd , 487 Mich. 568, 579, 790 N.W.2d 315 (2010). This case also involves certain venue statutes, the interpretation of which we also review de novo. Tryc v. Mich. Veterans' Facility , 451 Mich. 129, 145, 545 N.W.2d 642 (1996).

III. ANALYSIS

A criminal "trial should be by a jury of the county or city where the offense was committed." People v. Lee , 334 Mich. 217, 226, 54 N.W.2d 305 (1952). See also 4 LaFave et al., Criminal Procedure (4th ed.), § 16.1(c), pp. 777-778 ("American jurisdictions ... all utilize the same formula for designating the particular district in which the prosecution must be initiated and trial held[:] that district in which the ‘crime shall have been committed.’ "). This is known as "[t]he ‘crime-committed’ formula." Id. at 778. The parameters of this general rule are not, however, codified in Michigan. While MCL 762.1 provides that "[t]he various courts ... of this state now having jurisdiction and powers over criminal causes, shall have such jurisdiction and powers as are now conferred upon them by law," this language is too general to provide meaningful guidance. Cf. People v. Milton , 393 Mich. 234, 245, 224 N.W.2d 266 (1974) ("The language concerning the jurisdiction of the courts to try criminal cases embodied in [ MCL 762.1 ] is so general that one cannot readily determine whether the circuit court’s jurisdiction in criminal cases is constitutionally vested, derives from the common law, the Judicature Act ..., or the Code of Criminal Procedure."). Instead, what is codified are certain exceptions to or expansions of the "general rule," allowing venue in locations besides the location provided for in the "general rule." The People here rely on two of these statutory qualifications. Thus, identifying a proper venue is a two-step process: first, we must identify the proper venue under the general rule; second, we must determine whether the statutes on which the People rely permit departure from the general rule.

A. MICHIGAN'S COMMON-LAW CRIMINAL VENUE RULE

The general venue rule is derived from the common law. Since statehood, each of our Constitutions has guaranteed the continuation of a preexisting right to trial by jury. See Const. 1835, art. 1, § 9 ("The right of trial by jury shall remain inviolate."); Const. 1850, art. 6, § 27 ("The right of trial by jury shall remain ...."); Const. 1908, art. 2, § 13 (same language as 1850); Const. 1963, art. 1, § 14 (same language as 1850 and 1908). In Swart v. Kimball , 43 Mich. 443, 448, 5 N.W. 635 (1880), we held that the right which "remains" is "the right as it existed before; the right to a trial by jury as it had become known to the previous jurisprudence of the State." In Swart , we confronted a statute providing that a proper venue for prosecuting an individual who illegally cut timber on public lands was either " ‘in the county where the offense was committed, or in such other county as the Commissioner of the State Land Office, or the Attorney General, shall, by written instructions to the prosecuting attorney thereof, direct.’ " Id. at 445, 5 N.W. 635, quoting 1857 PA 100, § 5. We held that the statute, in "so far as it undert[ook] to authorize a trial in some other county than that of the alleged offense, [was] oppressive, unwarranted by the Constitution, and utterly void." Id. at 450, 5 N.W. 635. Several subsequent cases reemphasized Swart ’s holding. See, e.g., Hill v. Taylor , 50 Mich. 549, 551, 15 N.W. 899 (1883) ("[I]t cannot be seriously claimed that the prosecution can be had in a county where the crime was not actually or in contemplation of law perpetrated. The constitutional guaranty on this subject is too plain to be controverted."); People v. Harding , 53 Mich. 48, 53, 18 N.W. 555 (1884) (Residence of jurors in the vicinage of the offense "has always been associated with the jury system in criminal cases in the jurisprudence of both England and America ...."); People v. Brock , 149 Mich. 464, 466, 112 N.W. 1116 (1907) ("It would be a startling innovation should we say that the legislature has power to subject a person charged with crime to prosecution in any one of several counties ...."); People v. Olson , 293 Mich. 514, 515, 292 N.W. 860 (1940) ("After these [illegally undersized] fish were shipped by defendant [in Benzie County] he was not in Newaygo county and cannot, therefore, be prosecuted in that county upon any theory of constructive possession of the fish in Newaygo county.").

Consequently, Michigan’s "crime committed" formula is a function of the constitutional provision that "[t]he right of trial by jury shall remain," which is to say, it continues from its common-law origins. See also Const. 1963, art. 3, § 7 ("The common law and the statute laws now in force ... shall remain in force until they expire by their own limitations, or are changed, amended or repealed."). Although we have at times said that "trial should be by a jury of the county or city where the offense was committed," Lee , 334 Mich. at 226, 54 N.W.2d 305 (emphasis added), there should be no confusion that—in the absence of an applicable statutory exception—this is a mandatory aspect of criminal venue in Michigan. "The standard formula for setting venue calls for dividing the territory of the political entity ... into geographical districts and then selecting as the appropriate venue that district in which the alleged crime was committed." LaFave et al., § 16.1(c), p. 777. But how does one define where it is that a crime was committed?

We find federal law illuminating in this regard. Because there is a federal constitutional requirement that "[t]he Trial of all [federal] Crimes ... shall be held in the State where the said Crimes shall have been committed," U.S. Const., art. III, § 2, cl. 3, the stakes are particularly high in federal court for identifying where a crime was committed. The Supreme Court has said that "the locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it." United States v. Anderson , 328 U.S. 699, 703, 66 S. Ct. 1213, 90 L. Ed. 1529 (1946). One author suggested that identifying the "essential verb" in the statute creating a crime is the critical inquiry in identifying the proper venue for a federal prosecution. Dobie, Venue in Criminal Cases in the United States District Court , 12 Va. L. Rev. 287, 289 (1926). This has given rise to the "verb test" that is influential in federal court. See generally LaFave, § 16.2(c), pp. 842-848. The Supreme Court has stated, in the federal context, that while "the ‘verb test’ certainly has value as an interpretative tool, it cannot be applied rigidly, to the exclusion of other relevant statutory language," because the proper "inquiry [is] into the nature of the offense," United States v. Rodriguez-Moreno , 526 U.S. 275, 280, 119 S. Ct. 1239, 143 L. Ed. 2d 388 (1999)...