State of Michigan v DANIEL BRUCE BROWN
SC: 97168
Michigan Supreme Court
445 Mich 866; 519 NW2d 843
April 29, 1994, Entered
Prior case history: COA: 141368. Circuit Court Case No.: 89-0198-FC
Before: Michael F. Cavanagh, Chief Justice, Charles L. Levin, James H. Brickley, Patricia J. Boyle, Dorothy Comstock Riley, Robert P. Griffin, Conrad L. Mallett, Jr., Associate Justices
OPINION
Order
On order of the Court, the application for leave to appeal is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
DISSENT BY: CHARLES L. LEVIN
DISSENT
Levin, J., would grant leave to appeal and states as follows:
Defendant, Daniel Brown, driving while intoxicated, killed two persons in a head-on collision. I would grant leave to appeal to consider whether there was sufficient evidence to support his conviction of second-degree murder.
I
On the evening of December 16, 1988, Brown met friends at a bowling alley in Sterling Heights. Over the course of five hours, Brown and his friends consumed a number of pitchers of beer.
Brown left the bowling alley at approximately 1:00 a.m. and attempted to drive home. Brown was traveling west on I-696. Brown stopped his vehicle, made a U-turn, and began traveling east in the westbound lane of I-696. A witness testified at the preliminary examination that Brown's vehicle was swerving. She estimated that Brown was driving below the speed limit.
After traveling in the wrong direction for about two miles, Brown encountered an Oldsmobile traveling west. Brown collided head-on with the Oldsmobile, and the driver and a passenger were killed.
Police officers testified that Brown smelled of alcohol, that his eyes appeared bloodshot, and a test revealed that he had a blood alcohol level of 0.25 percent.
Brown was charged with, and after preliminary examination was bound over for trial on, two counts of second-degree murder. Brown moved to quash the information on the ground that the evidence established no more than involuntary manslaughter. The motion was denied.
Brown pleaded nolo contendere to the two counts of second-degree murder, and was ultimately sentenced to serve two concurrent terms of eight to twenty years. 1 The Court of Appeals affirmed. 2
1 Brown was twenty-five years old. He was a college graduate with a degree in engineering. He had no prior criminal record. 2 Brown relied on case law holding that a plea of guilty or nolo contendere does not preclude a claim that there was insufficient evidence to support a conviction. Guilty Plea Cases, 395 Mich 96, 129 (1975); People v Haack, 396 Mich 367, 376-377 (1976); People v White, 411 Mich 366, 381-382 (1981).
II
In 1991, the Legislature amended the Motor Vehicle Code to provide that a person who operates a motor vehicle under the influence of intoxicating liquor and causes the death of another person is guilty of a felony punishable by imprisonment for not more than fifteen years. 3 The enactment of this legislation suggests that it was not thought that evidence that a person was driving while intoxicated was in itself sufficient to establish the element of malice requisite to a conviction of second-degree murder.
3 1991 PA 98, amending MCL 257.625; MSA 9.2325.
Earlier pertinent Penal Code provisions are:
MCL 750.321; MSA 28.553
Sec. 321. 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 15 years or by fine of not more than 7,500 dollars, or both, at the discretion of the court.
MCL 750.324; MSA 28.556
Sec. 324. Any person who, by the operation of any vehicle upon any highway or upon any other property, public or private, at an immoderate rate of speed or in a careless, reckless or negligent manner, but not wilfully or wantonly, shall cause the death of another, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison not more than 2 years or by a fine of not more than $ 2,000.00, or by both such fine and imprisonment.
MCL 750.325; MSA 28.557
Sec. 325. The crime of negligent homicide shall be deemed to be included within every crime of manslaughter charged to have been committed in the operation of any vehicle, and in any case where a defendant is charged with manslaughter committed in the operation of any vehicle, if the jury shall find the defendant not guilty of the crime of manslaughter, it may render a verdict of guilty of negligent homicide.
MCL 750.326; MSA 28.558
Sec. 326. In any prosecution under the 2 next preceding sections, whether the defendant was driving at an immoderate rate of speed shall not depend upon the rate of speed fixed by law for operating such vehicle.
The Legislature, 4 the Secretary of State, 5 and the media 6 understood that the 1991 legislation increased the penalties for drunk driving and, more specifically, increased the punishment for causing another person's death while driving intoxicated. The Detroit Free Press reported, two days after the 1991 legislation became effective, "punishments are stiffer for drivers who kill somebody or cause serious injury while drunk." 7
4 A 1991 Senate Fiscal Agency analysis of the proposed drunk driving reforms that were eventually enacted into law explained that the bills "would send a message that drunk drivers will be handled severely in the State of Michigan," Senate Fiscal Agency, Bill Analysis of Senate Bill 314 & 315 of 1991, p 5, September 5, 1991; the House Legislative Analysis similarly observed that the proposed legislation "focused on stronger sanctions and closing loopholes . . ." House Legislative Analysis Section, Third Analysis of House Bills 4827 & 4828 of 1991, p 6 August 14, 1991. 5 In 1992, Secretary of State Richard Austin looked back on the recently enacted drunk driving legislation, and said, "A year ago we were hoping to tighten our drunk driving laws. We made good on that!" Laitner, Bill, "Secretary of State Seeks Stricter Seat-Belt Law," Detroit Free Press, February 20, 1992, p 1D.
6 An article that appeared in the Detroit Free Press two days after the new law went into effect contained the following passage:
At work, at home -- and of course at the bar -- everybody has been buzzing about Michigan's bold new drunken driving law, among the toughest in the nation. The law makes it easier for people to be punished for driving drunk -- and more difficult for drunk drivers to keep their licenses. Kovanis, Georgia, "New Laws for Drunk Drivers Draw Some Sharp Responses," Detroit Free Press, January 3, 1992, p 3F. 7 Id. (emphasis added).
Brown's conviction of second-degree murder, a crime punishable by a sentence of life in prison, 8 appears inconsistent with the apparent legislative view that, before the enactment of the 1991 legislation, a drunk driver was not subject to imprisonment for more than fifteen years. 9
8 MCL 750.317; MSA 28.549. 9 The Legislature did not, in 1991, intend to lessen the penalties for killing a person while driving intoxicated.
In Blackwell v State, Md App , ; 369 A2d 153 (1977), the Court held that in enacting the specific offense of manslaughter by automobile, the legislature intended to "preempt the subject matter of unintended homicides resulting from the operation of a motor vehicle."
Although a prosecutor has broad discretion in deciding what offenses to charge, Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683 (1972), "if [two] statutes prohibit the same conduct, the specific statute, enacted subsequent to the more general statute, prevails." People v Chappelle, 114 Mich App 364, 367 (1982), citing People v LaRose, 87 Mich App 298, 302 (1978), and People v McFadden, 73 Mich App 232, 235 (1977).
See also State v Blevins, NM ; 60 P2d 208 (1936), where the court held that a conviction of selling neat cattle belonging to another under a general statute that penalized selling goods of another was not sustainable in view of a statute punishing theft or sale of animals of another including neat cattle.
The Detroit Free Press explained that the bills that eventually became the new drunk driving laws were "the carefully crafted result of two years of talks with a coalition whose members often don't see eye to eye -- police, prosecutors, state officials, judges, citizens groups, insurers, substance abuse experts and church leaders." 10 This broad-based coalition did not draft a bill that classified the killing of a person in a drunk driving accident as murder. Rather, they classified this act as a crime less than murder. It is apparent that it was not thought that a person who accidentally kills another in a drunk driving accident is a murderer.
10 Boyle, "Engler's Help Sought To Pass Rigid Drunken Driving Package," Detroit Free Press , December 1, 1990, p 3A.
It appears that until recently, drunk drivers who killed someone were charged with involuntary manslaughter or negligent homicide. 11
11 See n 3.
In People v Townsend, 214 Mich 267, 272 (1921), this Court explained that it was a purpose of the provision of the Penal Code providing for the offense of manslaughter to deter drunk driving and punish drunk drivers:
The purpose of the statute is to prevent accidents and preserve persons from injury, and the reason for it is that an intoxicated person has so befuddled and deranged and obscured his faculties of perception, judgment and recognition of obligation toward his fellows as to be a menace in guiding an instrumentality so speedy and high-powered as a modern automobile.
Other cases indicating that a drunk driver who killed another person was ordinarily charged with negligent homicide or involuntary manslaughter are People v Beauchamp, 260 Mich 491 (1932) (negligent homicide); People v Layman, 299 Mich 141 (1941) (involuntary manslaughter); People v Rettelle, 173 Mich App 196 (1988) (involuntary manslaughter); People v Thinel, 160 Mich App 450 (1987) (involuntary manslaughter).
III
The question whether a drunk driver who kills another person may be convicted of second-degree murder is worthy of this Court's attention. There is a split of authority among other state courts on the issue whether driving drunk manifests such a gross disregard for human life that a drunk driver who kills another person can be said to have acted with malice, an essential element of murder.
A number of courts take the view that a drunk driver who kills another person may be said to have acted with malice where he drove recklessly while intoxicated and was involved in an accident in which a person was killed. The Alabama Court of Criminal Appeals affirmed a murder conviction where a drunk driver hit a pedestrian who was attending to a flat tire of a vehicle that was parked three feet off the road. Commander v State, 374 So 2d 910 (Ala Crim App, 1978). 12 Other courts have found the requisite malice. Where a defendant, aware that he would have to drive home, became drunk the Supreme Court of Tennessee said:
It is inconceivable that a man can get as drunk as [defendant] was on that occasion without previously realizing that he would get in that condition if he continued to drink. But he did continue to drink and presumably with knowledge that he was going to drive his car back to, or close to Lebanon over this heavily traveled highway. He knew, of course, that such conduct would be directly perilous to human life. From his conduct in so doing, it was permissible for the jury to imply "such a high degree of conscious and willful recklessness as to amount to that malignity of heart constituting malice." [Edwards v State, Tenn , ; 304 SW2d 500 (1957).]
12 See also Commonwealth v Taylor, Pa ; 337 A2d 545 (1975) (finding malice based on "the intoxicated condition of the driver, the excessive rate of speed which he was travelling, the distance the bodies and bicycles were propelled upon impact, his awareness that this was an area in which children were likely to traverse, [and] the absence of any physical or climactic condition which could explain or contribute to the happening of the accident"); United States v Fleming, 739 F2d 945 (CA 4, 1984) (finding malice where the defendant became intoxicated and drove recklessly).
Other state supreme courts have held, however, that drinking, driving recklessly, and killing another person cannot alone establish the malice necessary to support a conviction of murder. In Essex v Commonwealth, Va ; 322 SE2d 216 (1984), the Virginia Supreme Court rejected the reasoning of the Tennessee Supreme Court in Edwards. The Court held that malice could not be inferred from the act of drinking and then driving recklessly, and said:
Some courts reason that one who deliberately drives a car to a place remote from home for the purpose of drinking, knowing that he will have to drive home under the influence of alcohol, then, after becoming intoxicated, drives recklessly, thereby acts so wantonly, and with such a disregard of human life as to supply an inference of malice. See, e.g., People v Watson, 30 Cal3d 290, 637 P2d 279, 179 Cal Rptr 43 (1981). We do not think the premises support the conclusion reached. [Essex, 322 SE2d, p 221, n 3.]
In State v Jensen, Kan , ; 417 P2d 273 (1966), the Kansas Supreme Court held that driving drunk was not sufficient evidence of malice, and said:
We hold the fact the defendant 13 was driving while under the influence of intoxicating liquor without more being shown, is not sufficient of itself to support an implication of malice as a matter of law....
While voluntary intoxication does not relieve one driving an automobile from his responsibility to care for others, we are of the opinion the record fails to show that McMurray's death was occasioned by some degree of deliberation, wickedness of disposition, an evil design in general, the dictate of a heart regardless of social duty and fatally bent upon mischief on the part of Jensen, to imply malice in law to the act of causing death. 14
13 The defendant drove erratically and weaved back and forth between the lanes a number of times after consuming a substantial amount of alcohol. Id. at . 14 See also Freeman v State, Tex Crim ; 27 SW2d 162 (1930), in which the court held that malice cannot be inferred from the act of drinking and driving recklessly, and said:
It seems difficult to conceive of a sane man, not desirous of suicide, intentionally colliding with the car of another, even though a lighter one, and especially when both cars are meeting at great speed. The occurrence here was most deplorable, and reckless car driving upon highways is a practice deserving condemnation, but we can only try and sentence a citizen to penal servitude upon a showing that he has violated some written law of the land. This man could not be given a greater penalty for murder than five years, unless and until the state both allege and prove malice aforethought, which was not done in this case.
In this connection I note that Brown, as well as the unfortunate driver and passenger of the other automobile, was involved in the head-on collision. There is no reason to suppose that he deliberately put himself, as well as others, in harm's way.
This Court has not addressed the issue whether a person who knowingly becomes intoxicated, drives recklessly, and kills another person has acted with malice. In People v Townsend, 214 Mich 267, 272 (1921), the defendant became intoxicated and then killed another person in an automobile accident. This Court affirmed the defendant's conviction of involuntary manslaughter -- which does not require a showing of malice -- yet recognized that a driver who becomes intoxicated is a "menace" to others.
I would grant leave to appeal.
Cavanagh, C.J., concurs in the statement of Levin, J.