State of Michigan v JAMES HOSKINSON
No. 185220
Michigan Court of Appeals
March 4, 1997, Decided
Unpublished
Subsequent case developments: Appeal granted by People v Hoskinson, 454 Mich 922, 564 NW2d 901 (1997) Reversed by People v Goecke, 457 Mich 442, 579 NW2d 868 (1998)
Prior case history: Recorder's Court. LC No. 94-007664.
Before: Doctoroff, C.J., and Wahls and Smolenski, JJ. Michael R. Smolenski, J., dissenting.
OPINION
PER CURIAM.
A jury convicted defendant of second-degree murder, MCL 750.317; MSA 28.549, and failure to stop at a serious personal injury accident, MCL 257.617; MSA 9.2317. The trial court sentenced defendant to concurrent terms of fifteen to twenty-five years' imprisonment for the murder conviction and forty to sixty months' imprisonment for the failure to stop conviction. Defendant appeals as of right. We reverse.
On July 3, 1994, defendant was driving a motor vehicle which struck and killed Miranda Andres while she was riding her bicycle in front of her house. Defendant was driving his car at a speed of approximately 60 mph in a residential area with a posted 25 mph speed limit. In addition, defendant was running stop signs. A subsequent breathalyzer test showed that defendant had a 0.22% blood alcohol level.
Defendant argues that the prosecutor abused his discretion in charging defendant with second-degree murder. We disagree. Defendant was originally charged with operating a vehicle under the influence of alcohol and/or blood alcohol content of 0.10% or more causing death, MCL 257.625(4); MSA 9.325. After the preliminary examination, the district court granted the prosecutor's motion to raise the charge to second-degree murder.
It would be a violation of the separation of powers for a court to second-guess whether a prosecutor has a "rational basis" or "good reason" for bringing charges under one applicable statute rather than another applicable statute. People v Barksdale, 219 Mich App 484, 488; NW2d (1996). Discretion is afforded the prosecutor by the fact that evidence is available to support a charge under either statute. Id. That discretion is abused only if a choice is made for reasons that are "unconstitutional, illegal, or ultra vires." Id. Courts thus review a charging decision under an abuse of power standard, questioning whether a prosecutor has acted in contravention of the constitution or the law. Id.
Here, as we explain infra, there was insufficient evidence to charge defendant with second-degree murder. However, there is no evidence that the prosecutor charged defendant with second-degree murder for reasons that were "unconstitutional, illegal, or ultra vires." See People v Baker, 216 Mich App 687, 693; 551 NW2d 195 (1996), lv pending. The error came not in the prosecutor's decision to charge defendant with second-degree murder, but in the district court's decision to bind defendant over on that charge.
Defendant argues that there was insufficient evidence of malice to convict him of second-degree murder. We agree. When reviewing a claim regarding the sufficiency of the evidence, this Court examines the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could find the essential elements of the crime proven beyond a reasonable doubt. Id., p 689. Circumstantial evidence and reasonable inferences arising from the evidence may constitute satisfactory proof of the elements of the offense, including the intent to kill. Id.
In order to prove malice to support a conviction of second-degree murder, the prosecutor must prove that the defendant possessed the intent to kill, to cause great bodily harm, or to do an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm. Id., p 690. For malice to exist to support a conviction of second-degree murder, the defendant must have a disregard for consequences almost certain to follow an action. Id., p 691. In contrast, manslaughter merely requires disregard for possible consequences. Id.
The enactment of the OUIL causing death statute, MCL 257.625(4); MSA 9.2325(4), suggests a legislative presumption that an intoxicated driver who causes death, with no aggravating circumstances, does not possess the malice required for second-degree murder. People v Goecke, 215 Mich App 623, 631; 547 NW2d 338 (1996), lv gtd Mich (Docket No. , issued 1/28/97). Such aggravating circumstances can be found where there is evidence of malice other than the defendant's intoxication. For example, in People v Miller, 198 Mich App 494, 496-497; 499 NW2d 373 (1993), the prosecution introduced evidence that the defendant drove recklessly to punish his girlfriend, who was sitting in the car with him. Similarly, this Court has found malice where the defendants were driving at high speeds to elude capture by pursuing police officers. See People v Vasquez, 129 Mich App 691, 694; 341 NW2d 873 (1983); People v Goodchild , 68 Mich App 226, 236; 242 NW2d 465 (1976). However, a defendant's familiarity with the location of the accident and the local traffic conditions does not create a question of fact as to malice. See Baker, supra. Accordingly, the trial court erred by denying defendant's motion for directed verdict on the charge of second-degree murder. Id.; Goecke, supra, p 632.
As to the remedy, in cases where the only error is a failure of proof on one element of the offense, it is sometimes permissible to remand for entry of a judgment of conviction on a lesser included offense. People v Borders, 37 Mich App 769, 772; 195 NW2d 331 (1972). Several requirements must be met before such a disposition can be made: 1) the defendant must have been convicted of the offense with which he was charged, thus excluding the possibility that the jury verdict was the product of a compromise; 2) the new judgment of conviction must be for an offense which is a lesser included offense of the crime originally charged; 3) the element on which there has been a failure of proof must be an element which raises the greater offense above the lesser; and 4) the record must contain credible evidence which would support a conviction of the lesser offense. Id. Here, those requirements have been met as to involuntary manslaughter, MCL 750.321; MSA 28.553. Importantly, it is not necessary that the jury has been instructed on the lesser included offense. People v Skowronski, 61 Mich App 71, 78 n 5; 232 NW2d 306 (1975).
We vacate defendant's conviction of second-degree murder, and remand for entry of a judgment of conviction of involuntary manslaughter. Baker, supra, p 693.
/s/ Martin M. Doctoroff
/s/ Myron H. Wahls
DISSENT BY: Michael R. Smolenski
DISSENT
SMOLENSKI, J. (dissenting).
I respectfully dissent.
If this case only involved evidence that defendant knew he was drunk, and that he ran a stop sign while speeding in an area with which he was familiar, then, being bound by People v Baker, 216 Mich App 687; 551 NW2d 195 (1996), and People v Goecke, 215 Mich App 623; 547 NW2d 338 (1996), lv gtd Mich (Docket No. 105878, issued 1/28/97), I would agree that insufficient evidence of malice existed under current Michigan law. However, I believe that this case presents additional evidence of defendant's state of mind and other aggravating circumstances from which the jury could properly find malice in this case. See Baker, supra at 692; Goecke, supra at 632.
The evidence presented at trial indicated that defendant spent the day of July 3, 1994, drinking beer with some friends at the home of one of these friends. At approximately 7:00 p.m., defendant drove his friends to a local bar where they remained for approximately two hours. While at the bar, defendant drank beer and shots of liquor. When defendant and his friends left the bar, it was still daylight outside but starting to get dark. Defendant appeared drunk, and was staggering and stumbling. Defendant refused the offer of one of his friends to drive. While still in the bar's parking lot, defendant twice backed into the same parked vehicle. After leaving the bar, defendant traversed several side streets at speeds of approximately fifty to sixty miles per hour, at one point running a stop sign. Defendant's friends told defendant to slow down. One of the friends described defendant's driving as "radical." Still traveling at a high rate of speed, defendant eventually turned onto Joan Street and headed west back to his friend's home.
Joan Street is a residential street running east and west with a posted speed limit of twenty-five miles per hour. After defendant turned west onto Joan Street, the next three crosstreets to intersect Joan Street are, respectively, McQuire Street, Marvin Street and Fellrath Street. The victim's home was located on the south side of Joan Street at the intersection of Joan Street and Fellrath Street. "Speed dips," variously described as "big," or approximately six to eight inches deep, were located at almost every intersection throughout the victim's neighborhood. Two such speed dips were located near the victim's house. In particular, one speed dip was located at the intersection of Joan Street and Marvin Street. Defendant had driven down Joan Street numerous times and was thus aware of these speed dips.
Many people were outside that evening. At the intersection of Joan Street and Marvin Street, a vehicle also westbound on Joan Street and ahead of defendant was stopped at the stop sign posted at that intersection. Defendant was traveling at approximately fifty to sixty miles per hour as he approached Marvin Street while traveling westbound on Joan Street. Without stopping at the stop sign, defendant swerved into the eastbound lane and passed the stopped vehicle, and then immediately swerved back into the westbound lane of Joan Street because of another oncoming vehicle in the eastbound lane of Joan Street. Defendant hit the speed dip located at the intersection of Joan Street and Marvin Street, "bottomed out," and lost control. Specifically, defendant hit the westbound curb, swerved left, and then swerved right. Defendant sideswiped a vehicle parked on the right side of Joan Street, and then went across the eastbound lane, over the curb, and across some grass where he hit the victim. Defendant did not stop, but, instead, continued driving upon the grass for approximately 340 feet. Defendant then reentered Joan Street and continued traveling west. Defendant ultimately stopped his vehicle approximately six blocks from the victim's home and returned to the scene where he was arrested by the police after failing several sobriety tests . In a statement he later gave to the police, defendant admitted knowing that he was drunk when he left the bar and that he was driving too fast.
Viewing this evidence in a light most favorable to the prosecution, I believe that a rational trier of fact could find that a person who has been told that he is driving too fast but who, while darting in and out of traffic, nevertheless continues to knowingly speed with the awareness that he will encounter portions of the roadway that are constructed with obstacles in the road surface designed to reduce speed performs an act "in wanton and wilful disregard that the natural tendency of the act is to cause death or great bodily harm." Baker, supra at 689, 691. The jury was instructed on the element of malice and no objection was lodged to these instructions. I would affirm the jury verdict in this case.
/s/ Michael R. Smolenski