People v. Werner

Decision Date25 October 2002
Docket NumberDocket No. 226394.
Citation254 Mich. App. 528,659 N.W.2d 688
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Douglas WERNER, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Marilyn J. Day, Assistant Prosecuting Attorney, for the people.

Neil J. Leithauser, Troy, for the defendant on appeal.

Before: SAAD, P.J., and SMOLENSKI and OWENS, JJ.

PER CURIAM.

A jury convicted defendant of second-degree murder, M.C.L. § 750.317; operating a motor vehicle while under the influence of intoxicating liquor (OUIL) causing death, M.C.L. § 257.625(4); OUIL causing serious impairment of a bodily function, M.C.L. § 257.625(5); and driving with a suspended license, second offense, M.C.L. § 257.904(1). The trial court sentenced defendant to concurrent prison terms of twenty-five to forty years, one hundred months to fifteen years, thirty-eight months to five years, and one year for the respective convictions. He appeals as of right, and we affirm.

On July 18, 1999, defendant became intoxicated and drove his pick-up truck in the wrong direction on a busy freeway. He collided head-on with a Jeep, killing the passenger and seriously injuring the driver.

I

Defendant says that the trial court should have granted his motion for a directed verdict because the evidence was insufficient to support a conviction of second-degree murder. We disagree.

"When reviewing a trial court's decision on a motion for a directed verdict, this Court reviews the record de novo to determine whether the evidence presented by the prosecutor, viewed in the light most favorable to the prosecutor, could persuade a rational trier of fact that the essential elements of the crime charged were proved beyond a reasonable doubt." People v. Aldrich, 246 Mich.App. 101, 122, 631 N.W.2d 67 (2001). When a defendant challenges the sufficiency of the evidence in a criminal case, this Court considers whether the evidence, viewed in a light most favorable to the prosecution, would warrant a reasonable juror to find guilt beyond a reasonable doubt. People v. Nowack, 462 Mich. 392, 399, 614 N.W.2d 78 (2000); People v. Sexton, 250 Mich.App. 211, 222, 646 N.W.2d 875 (2002).

The elements of second-degree murder are "`(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse.'" Aldrich, supra at 123, 631 N.W.2d 67, quoting People v. Mayhew, 236 Mich.App. 112, 125, 600 N.W.2d 370 (1999), quoting People v. Goecke, 457 Mich. 442, 463-464, 579 N.W.2d 868 (1998). Malice is defined as "the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and wilful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm." Goecke, supra at 464, 579 N.W.2d 868. Malice may be inferred from evidence that the defendant "intentionally set in motion a force likely to cause death or great bodily harm." People v. Djordjevic, 230 Mich.App. 459, 462, 584 N.W.2d 610 (1998). The prosecution is not required to prove that the defendant actually intended to harm or kill. Instead, the prosecution must prove "`the intent to do an act that is in obvious disregard of life-endangering consequences.'" Aldrich, supra at 123, 631 N.W.2d 67, quoting Mayhew, supra at 125, 600 N.W.2d 370.

Here, the prosecution showed that defendant drove after becoming seriously intoxicated. Moreover, defendant knew from a recent prior incident that if he drank, he might experience a blackout and drive recklessly and irresponsibly. Defendant contends, however, that in Goecke, supra, our Supreme Court required a subjective showing of awareness of a risk of death or great bodily harm when a defendant is severely intoxicated. Defendant's argument mischaracterizes the analysis in Goecke. In Goecke, the Supreme Court reviewed three cases where a defendant was charged with second-degree murder for a fatality caused by the defendant's drunken driving. The Supreme Court declined to choose between an objective and subjective standard for determining whether the defendant was aware that his conduct carried a high risk of death or great bodily harm. The choice was unnecessary because the facts of all three cases established the requisite malice for second-degree murder under either standard. Goecke, supra at 465, 579 N.W.2d 868. However, the Court noted in dicta that a "highly unusual case" might "require a determination of the issue whether the defendant was subjectively aware of the risk created by his conduct." Id. at 464-465, 579 N.W.2d 868, citing 2 LaFave & Scott, Substantive Criminal Law, § 7.4(b), p. 205.

Defendant claims that this case is the type of unusual case requiring a determination that he was subjectively aware of the risk of his conduct. We disagree. Goecke did not expressly prescribe a subjective analysis for malice in cases of extreme intoxication. Quoting LaFave & Scott, supra, the Court recognized that, theoretically, a "highly unusual case" may require a determination whether the defendant was subjectively aware of the risk his conduct created, such as where the defendant was "`more absent-minded, stupid or intoxicated than the reasonable man.'" Goecke, supra at 464-465 & n. 25, 579 N.W.2d 868. This is not the same as stating, as defendant suggests, that the prosecution should have been held to a higher standard of proof of intent because defendant was so severely intoxicated. If defendant's argument is correct, it would mean that moderately intoxicated drivers could be tried for and convicted of second-degree murder while severely intoxicated drivers would be excused because they were too intoxicated to know what they were doing. This would be contrary to the Goecke Court's statement that "malice requires egregious circumstances." Id. at 467, 579 N.W.2d 868. It also would effectively create for some defendants an intoxication defense to second-degree murder, which would be plainly contrary to the Goecke Court's holding that voluntary intoxication is not a defense to a second-degree murder charge. Id. at 464, 579 N.W.2d 868. Accordingly, an advanced state of voluntary intoxication is not sufficient to qualify as the sort of "unusual case" that requires a subjective determination of awareness under Goecke.

We also recognize that Goecke held that not every intoxicated driving case resulting in a fatality constitutes second-degree murder. However, the evidence in this case disclosed "a level of misconduct that goes beyond that of drunk driving." Id. at 469, 579 N.W.2d 868. This is not a case where a defendant merely undertook the risk of driving after drinking. Defendant knew, from a recent prior incident, that his drinking did more than simply impair his judgment and reflexes. He knew that he might actually become so overwhelmed by the effects of alcohol that he would completely lose track of what he was doing with his vehicle. If defendant knew that drinking before driving could cause him to crash on boulders in front of a house, without any knowledge of where he was or what he was doing, he knew that another drunken driving episode could cause him to make another major mistake, one that would have tragic consequences.

Although there is no evidence regarding defendant's behavior between his departure from Charlie Parrish's house and the fatal collision, or regarding his state of mind just before the crash, we are satisfied that the prosecution met its burden by showing that defendant had a recent episode of an alcohol-induced blackout while driving, but that he nonetheless drank heavily while he was out with his vehicle. The trial court did not err in denying the motion for a directed verdict, and the evidence was sufficient to support defendant's conviction.

II

Defendant claims that he was denied the effective assistance of counsel because his attorney failed to investigate and present a defense of involuntary intoxication. We disagree.

To establish ineffective assistance of counsel, a defendant must show (1) that the attorney's performance was objectively unreasonable in light of prevailing professional norms and (2) that, but for the attorney's error or errors, a different outcome reasonably would have resulted. People v. Carbin, 463 Mich. 590, 599-600, 623 N.W.2d 884 (2001); People v. Harmon, 248 Mich.App. 522, 531, 640 N.W.2d 314 (2001). A defendant must affirmatively demonstrate that counsel's performance was objectively unreasonable and so prejudicial as to deprive him of a fair trial. People v. Pickens, 446 Mich. 298, 338, 521 N.W.2d 797 (1994); People v. Ortiz, 249 Mich.App. 297, 311, 642 N.W.2d 417 (2001).

Because defendant did not move for a new trial or an evidentiary hearing pursuant to People v. Ginther, 390 Mich. 436, 443, 212 N.W.2d 922 (1973), our review is limited to mistakes apparent on the record. People v. Watkins, 247 Mich.App. 14, 30, 634 N.W.2d 370 (2001). There is no evidence on the record to support defendant's claim that counsel's failure to present an involuntary intoxication defense was objectively unreasonable, or that the presentation of the defense would have resulted in acquittal. Nothing on the record shows that an expert would have testified in support of an involuntary intoxication defense, or that scientific evidence was available to bolster this claim. Furthermore, the evidence showed that defendant's beer consumption was sufficient, by itself, to intoxicate him without the Tylenol 3 that he also consumed. Moreover, defendant would not have been able to show that his intoxication was involuntary because he admitted that the Tylenol 3 bottle had a warning label, and that he wilfully drank alcohol after...

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