People v. Price

• Decision Date: 15 December 1995
• Docket Number: Docket No. 173653
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory Paul PRICE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 49

543 N.W.2d 49

214 Mich.App. 538

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory Paul PRICE, Defendant-Appellant.

Docket No. 173653.

Court of Appeals of Michigan.

Submitted Oct. 4, 1995, at Escanaba.

Decided Dec. 15, 1995, at 9:05 a.m.

Released for Publication Feb. 7, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Juris Kaps, Prosecuting Attorney, and J. Ronald Kaplansky, Assistant Attorney General, for the People.

Sluiter, Agents, Cardinal, Van Gessel, Winther & Carlson by Gaylor L. Cardinal, Wyoming, for defendant on appeal.

Before SAWYER, P.J., and MURPHY and SCHMA, ^* JJ.

MURPHY, Judge.

A jury convicted defendant of involuntary manslaughter, M.C.L. § 750.321; M.S.A. § 28.553, and operating a motor vehicle while under the influence of a controlled substance and thereby causing a death (OUI causing death), M.C.L. § 257.625(4); M.S.A. § 9.2325(4). The trial court sentenced him to imprisonment for ten to fifteen years for each conviction and ordered the sentences to run concurrently. Defendant appeals as of right. We affirm.

Defendant's convictions are the result of an accident that occurred on April 24, 1993, in which Theron Swiggers was hit and killed by an automobile. On that date, defendant's brother, Kurt Price, and friend, Andrew Griffith, were visiting defendant at his residence. Kurt and Griffith testified that defendant was not making sense and was "hyper" and fidgety. According to the men, defendant argued with his girl friend on the telephone, slammed down the telephone, and ran outside saying that the "thunderbirds" were coming. Griffith's girl friend's gray 1986 Pontiac Grand Am was parked in the driveway. Defendant got into the vehicle and started it. Despite Kurt's and Griffith's attempts to stop defendant from driving, defendant locked the car doors and sped from the driveway. Kurt saw the Grand Am veer to the right and go off the pavement. He then heard a thud and saw a person bounce off the front of the Grand Am and land off the road near some trees. The victim was Theron Swiggers. Swiggers died later at a hospital of a closed head injury. The pathologist who performed an autopsy testified that Swiggers' injuries were consistent with injuries that would have been sustained by a person who had been struck by an automobile.

After hitting Swiggers, defendant continued driving and was involved in a second accident a mile to a mile and a half from where Swiggers was found. Sergeant Gerald Kerns of the Michigan State Police witnessed the second accident. Sergeant Kerns testified that he saw defendant speed across a railroad crossing at approximately seventy to seventy-five miles an hour, rear-end another car without braking, and roll over in his car.

There were tire tracks and small pieces of glass in the area where Swiggers was struck. Defendant's vehicle had extensive front-end damage and the windshield was smashed on the passenger side of the vehicle. The passenger side window was broken. In addition, there was human hair, blood, and a cigarette butt embedded in the smashed windshield, and an earpiece to a pair of glasses was found on the edge of the windshield. Human hair was also found in a metal clip used to hold trim behind the right front tire. There was a fabric impression or rubber mark on the hood of the car that appeared to be caused by a shoe. The human hair found in the trim clip was similar to a known hair sample taken from Swiggers.

When the police interviewed defendant in the hospital 2 to 2 1/2 hours after the accidents, defendant appeared to be under the influence of a drug. According to Kurt, defendant had been high for the four days preceding the accident and had ingested methamphetamine on the day of the accident. A sample of defendant's blood was drawn at the hospital. Defendant's blood tested positive for the presence of methamphetamine.

I

Defendant argues that his convictions of and punishments for both involuntary manslaughter and OUI causing death constitute double jeopardy in violation of the United States and Michigan Constitutions, U.S. Const., Am. V; Const. 1963, art. 1, § 15. One of the protections of the Double Jeopardy Clauses of the United States and Michigan Constitutions is to prohibit the state from imposing multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717-719, 89 S.Ct. 2072, 2076-2078, 23 L.Ed.2d 656 (1969); People v. Sturgis, 427 Mich. 392, 399, 397 N.W.2d 783 (1986); People v. Crawford, 187 Mich.App. 344, 347, 467 N.W.2d 818 (1991). Defendant contends that his convictions and punishments for both involuntary manslaughter and OUI causing death violate this prohibition against multiple punishments for the same offense. We disagree.

This Court reviews de novo questions of law, including double jeopardy issues. People v. White, 212 Mich.App. 298, 304-305, 536 N.W.2d 876 (1995).

The constitutional protection against multiple punishment for the same offense is a restriction on a court's ability to impose punishment in excess of that intended by the Legislature. Sturgis, supra, at 400, 397 N.W.2d 783; Crawford, supra, at 347, 467 N.W.2d 818. Because the Legislature has the sole power to define crime and fix punishment, the Double Jeopardy Clause is not a limitation on the Legislature's power to establish punishment. Sturgis, supra, at 400, 397 N.W.2d 783. Accordingly, even if the crimes are the same, this Court's inquiry is at an end, as it pertains to a double jeopardy challenge based on multiple punishment, if it is evident that the Legislature intended to authorize cumulative punishments. Id. Our examination of the scope of double jeopardy protection against multiple punishment for the same offense is restricted to a determination of legislative intent. Id.

In determining legislative intent, a court must identify the type of harm the Legislature was intending to prevent. People v. Harding, 443 Mich. 693, 709, 506 N.W.2d 482 (1993). Statutes prohibiting conduct that violates distinct societal norms generally can be viewed as separate and as permitting multiple punishments. People v. Robideau, 419 Mich. 458, 487, 355 N.W.2d 592 (1984).

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 years or by fine of not more than seven thousand five hundred [7,500] dollars, or both, at the discretion of the court. [M.C.L. § 750.321; M.S.A. § 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. [M.C.L. § 257.625(4); M.S.A. § 9.2325(4).]

M.C.L. § 257.625(1); M.S.A. § 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. M.C.L. § 257.625(3); M.S.A. § 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.

We conclude that the 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. Robideau, supra, at 487, 355 N.W.2d 592.

A further source of legislative intent can be found in the amount of punishment expressly authorized by the Legislature. Id.; Crawford, supra, at 351, 467 N.W.2d 818. 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. See Robideau, supra, at 487-488, 355 N.W.2d 592. Accordingly, we conclude that the penalty provisions of the statutes evidence a legislative intent to...