State of Michigan v Larry Don Mcelhoes

State of Michigan v LARRY DON McELHOES

No. 190171

Michigan Court of Appeals

June 13, 1997, Decided

Unpublished

Subsequent case developments: Held in Abeyance at People v McElhoes, 568 NW2d 679 (Mich, 1997) Reversed by People v McElhoes, 459 Mich 864, 584 NW2d 924 (1998)

Prior case history: No. 190171, Macomb Circuit. LC No. 95-000604.

     No. 190171, Macomb Circuit Court. LC No. 95-000604-FC.

Before: Wahls, P.J., and Hood and Jansen, JJ. Kathleen Jansen, J., dissenting.

OPINION

     Macomb Circuit

     LC No. 95-000604

     PER CURIAM.

     Defendant appeals as of right from his jury trial convictions of two counts of second-degree murder, MCL 750.317; MSA 28.549. The trial court sentenced defendant to concurrent terms of twenty-five to forty years in prison. We reverse defendant's murder convictions and remand for entry of judgments of conviction for two counts of involuntary manslaughter, MCL 750.321; MSA 28.553, and for resentencing.

     Defendant's first claim on appeal is that the trial court erred in denying his motion for directed verdict. We agree. When ruling on a motion for a directed verdict, the trial court must consider the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Daniels, 192 Mich App 658, 665; 482 NW2d 176 (1992). Circumstantial evidence and reasonable inferences arising from the evidence may constitute satisfactory proof of the elements of the offense, including the intent to kill. People v Baker, 216 Mich App 687, 689; 551 NW2d 195 (1996), lv pending.

     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 454 Mich 852;     NW2d     (1997). 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).

     Here, the evidence shows that on February 16, 1995, defendant, while extremely intoxicated, drove his car at speeds of up to eighty miles per hour in a thirty-five mile per hour zone on a dry, four-lane residential street. Defendant's reckless driving caused the deaths of two young women when his car collided with their vehicle, which was lawfully stopped in an intersection. The facts that defendant's car collided into the back of the victims' car and that defendant was driving recklessly are not indicative of malice. See Baker, supra, p 691; Goecke, supra, p 630. Accordingly, the trial court erred in denying defendant's motion for directed verdict as to second-degree murder. Baker, supra , p 693; Goecke, supra, p 631.

     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, the jury need not have been instructed on the lesser included offense. People v Skowronski, 61 Mich App 71, 78 n 5; 232 NW2d 306 (1975). Accordingly, we remand for entry of judgments of conviction for two counts of involuntary manslaughter and for resentencing. See Baker, supra, p 693; Miller, supra, p 495.

     Defendant next argues that the trial court erred when it admitted evidence of his 1988 conviction of impaired driving. We disagree. Because evidence of defendant's 1988 conviction was coupled with evidence of defendant's subsequent attendance in a mandatory alcohol highway safety program in which the standard curriculum addressed the risks associated with drunk driving, it was relevant to the issue of defendant's knowledge and offered for a proper purpose. See Miller, supra, p 497. In addition, because the prosecution had no less prejudicial means by which to show defendant's knowledge, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. See People v Cadle, 204 Mich App 646, 656; 516 NW2d 520 (1994). Accordingly, the trial court did not abuse its discretion in allowing the prosecution to admit the evidence. MRE 404(b); People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993), modified 445 Mich 1205; 520 NW2d 338 (1994). In addition, any error was harmless given the overwhelming evidence of defendant's guilt. People v Vandelinder, 192 Mich App 447, 454; 481 NW2d 787 (1992).

     Defendant next asserts that the trial court erred in denying his motion for mistrial based on the prosecutor's closing argument. We disagree. A trial court's decision on a motion for mistrial is a matter of discretion and its ruling will not be disturbed unless it was "so grossly in error as to deprive a defendant of a fair trial or amount to a miscarriage of justice." People v McAlister, 203 Mich App 495, 503; 513 NW2d 431 (1994).

     It is improper for the prosecutor to appeal to the jury to sympathize with the victim. People v Dalessandro, 165 Mich App 569, 581; 419 NW2d 609 (1988). During his closing argument, the prosecutor (1) explained that the case was especially sad because the families never had a chance to say goodbye, (2) described the victims as "innocent lambs slaughtered" by defendant, and (3) pointed out that defendant "will have many tomorrows, but [the victims'] families have no more tomorrows." Because the remarks emphasized the innocence of the victims and the enduring pain suffered by their families, we hold that they were intended to elicit a sympathetic emotional response, and therefore were improper appeals to sympathy. Id.

     However, the trial court instructed the jury that it should not let sympathy or prejudice influence its decision, that it should consider only the evidence, and that the lawyers' arguments were not evidence. See People v Daniel, 207 Mich App 47, 56; 523 NW2d 830 (1994). In addition, there was overwhelming evidence of defendant's guilt. See People v Biggs, 202 Mich App 450, 455; 509 NW2d 803 (1993). Under these circumstances, the trial court's error had only a slight or negligible influence on the verdict, and was therefore harmless. People v Mezy, 453 Mich 269, 286; 551 NW2d 389 (1996) (Weaver, J.).

     Defendant makes several other claims of prosecutorial misconduct. These claims are without merit and bereft of citation to supporting authority. This Court will not search for authority to sustain or reject a party's position on appeal. People v Hoffman, 205 Mich App 1, 17; 518 NW2d 817 (1994).

     Defendant's final argument is that the trial court erred when it denied defendant's motion for a mistrial based on the improper admission of defendant's 1993 conviction for impaired driving. We disagree. Because the jury was properly aware of defendant's 1988 conviction, it would have considered him a multiple offender even if it knew nothing of defendant's 1993 conviction. In addition, the trial court instructed the jury not to consider the evidence of defendant's 1993 conviction. Under these circumstances, the trial court's decision to deny defendant's motion for a mistrial was not was "so grossly in error as to deprive a defendant of a fair trial or amount to a miscarriage of justice." McAlister, supra, p 495; see People v Mateo, 453 Mich 203, 221; 551 NW2d 891 (1996).

     We vacate defendant's conviction of second-degree murder. In addition, we remand for entry of judgments of conviction for two counts of involuntary manslaughter and for resentencing. See Baker, supra, p 693; Miller, supra, p 495 . We do not retain jurisdiction.

     /s/ Myron H. Wahls

     /s/ Harold Hood

DISSENT BY: Kathleen Jansen

DISSENT

     Macomb Circuit Court

     LC No. 95-000604-FC

     JANSEN, J. (dissenting).

     I respectfully dissent from the majority's holding that the trial court erred in denying defendant's motion for directed verdict on the charges of second-degree murder. After reviewing the record, I believe that the prosecutor presented sufficient evidence for the jury to find that defendant was guilty of two counts of second-degree murder.

      The question is whether, taken in a light most favorable to the prosecution, the jury could have found that the essential elements of second-degree murder were proven beyond a reasonable doubt. See People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). To establish second-degree murder, the prosecution must prove that the defendant caused the death of the victim and that the killing was done with malice and without justification or excuse. People v Harris, 190 Mich App 652, 659; 476 NW2d 767 (1991). Malice is the intent to kill, the intent to do great bodily harm, or the intent to create a high risk of death or great bodily harm with knowledge that such is the probable result. Malice may be inferred from the facts and circumstances of the killing. Id.

     The evidence in this case was that the incident occurred on February 16, 1995, at approximately 8:25 p.m. in the City of Warren. Although it was dark at that time, the road was clear and dry and there was no precipitation. One witness testified that there was good lighting in the area because there is a high school not far from where the accident occurred. The two victims were in a black Chevrolet Cavalier and were stopped at a traffic light on Nine Mile Road. The headlights of the Cavalier were on, as was the left turn signal. The Cavalier was stopped at a flashing yellow light apparently waiting for traffic to clear in the opposite direction so that it could make a left turn onto Marmon Street. According to several eyewitnesses, defendant, who was driving a Plymouth Fury, was traveling at a speed of between seventy to eighty miles an hour where the posted speed limit was thirty-five miles an hour. Defendant's car was not swerving and he was driving his car under control, but was driving at a very high rate of speed. The headlights of defendant's car were on. Defendant rear ended the victims' car. One accident reconstruction expert stated that the minimum impact speed was fifty-one miles an hour, while the testimony of those who actually witnessed the crash was that defendant was traveling between seventy and eighty miles an hour. The impact of the collision was so severe that the gas tank of the Cavalier was driven from the rear of the car, through the back seat, and hit the driver in the back of her head. According to witnesses, defendant's car did not slow down, did not try to evade the collision, and one witness who was behind defendant stated that he did not see any brake lights come on before the collision.

     At 9:45 p.m., blood was withdrawn from defendant and his blood alcohol level was .254%. There was also a detection of marijuana in his urine sample. According to a work colleague of defendant's, in order to celebrate defendant's recent promotion, they went to a bar called Johnny Be Good shortly after 11:30 a.m. Defendant drank two to four beers and three to four shots of alcohol. They left the bar at 2:00 p.m. and went to a party store and bought a six-pack of beer. They then went to defendant's apartment and drank at least one more beer and smoked a marijuana cigarette. Defendant later went to the home of an acquaintance, Lee Ann Frauce. Defendant left her home at about 8:15 p.m. in an intoxicated state and Frauce indicated that she did not want him to leave because he was too intoxicated to drive. Frauce indicated that defendant sped away from her home. Moreover, the prosecution presented evidence that defendant was convicted of operating a motor vehicle while impaired in 1988 and 1993.

     In People v Goeke, 215 Mich App 623, 630; 547 NW2d 338 (1996), lv gtd 454 Mich 852 (1997), this Court held that the legislative enactment of the crime of OUIL causing death precludes prosecution for second-degree murder when, without aggravating circumstances, a defendant whose operation of a motor vehicle while intoxicated causes the death of another. This Court in Goecke did not explain what those "aggravating circumstances" might be. Subsequently, in People v Baker , 216 Mich App 687,692; 551 NW2d 195 (1996), lv gtd 454 Mich 892 (1997), this Court held that "no reasonable inference can be drawn to support a finding of malice on the mere evidence of drunk driving. . . . Evidence consisting solely of drunk driving and the attendant erratic driving cannot support a finding of malice."

     I would find that the prosecution presented such aggravating circumstances for a jury to properly find the malice element of second-degree murder in this case. Defendant had two prior convictions of drunk driving. Defendant had been drinking alcohol and smoking marijuana for at least eight hours before the collision and his blood alcohol level was .254% over one hour after the collision. Defendant, while extremely intoxicated, drove between seventy and eighty miles an hour in a speed zone of thirty-five miles an hour. Defendant did not brake, slow down, or attempt to evade a car that was lawfully stopped at a traffic light. Further, defendant's headlights were on, the area was well lit, and there was plenty of lighting in the area. The street was dry, there was no precipitation, and visibility was clear. The car that defendant hit had its lights and turn signal on. The jury could reasonably infer that defendant saw the car stopped in front of him and did not attempt in any fashion to avoid hitting it.

     Accordingly, I would conclude that the trial court did not err in denying defendant's motion for a directed verdict. 1 The prosecution presented sufficient evidence of malice for the jury to find that defendant intended to create a high risk of death or great bodily harm with knowledge that such is the probable result.

      With respect to defendant's remaining claims of error, I find no error requiring reversal. I would affirm defendant's convictions and sentences.

     /s/ Kathleen Jansen