Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 23, 2004
PEOPLE OF THE STATE MICHIGAN,
Plaintiff-Appellant,
v No. 123553
NICHOLAS E. HOLTSCHLAG,
Defendant-Appellee.
_______________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 123554
JOSHUA M. COLE,
Defendant-Appellee.
_______________________________
PEOPLE OF THE STATE MICHIGAN,
Plaintiff-Appellant,
v No. 123555
DANIEL BRAYMAN,
Defendant-Appellee.
_______________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 123556
ERICK LIMMER,
Defendant-Appellee.
________________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to determine if a defendant may be
convicted of involuntary manslaughter for a homicide that
occurred during the commission of a felony and for which
the prosecutor proceeded under a “gross negligence” mens
rea theory. We hold in the affirmative and, accordingly,
we reverse the decision of the Court of Appeals and
reinstate defendant Limmer’s conviction of accessory after
the fact to involuntary manslaughter and the remaining
defendants’ involuntary manslaughter convictions.
I. FACTS
On January 16, 1999, a get-together took place at the
home of defendant Erick Limmer. Along with Limmer, the
other defendants, Joshua Cole, Daniel Brayman, and Nicholas
Holtschlag, were watching television, drinking alcohol, and
smoking marijuana with three fourteen-year-old girls. At
least one of the defendants put gamma hydroxybutrate or
2
gamma hydroxybutyric acid (both known as GHB) in the girls’
drinks.1 Two of the girls became sick and, after several
hours, were taken to the hospital. One of the girls,
Samantha Reid, died. The other slipped into a coma but
eventually recovered.
Defendants Brayman, Holtschlag, and Cole were
convicted of involuntary manslaughter and two counts each
of mixing a harmful substance in a drink, which is a
felony. Defendant Limmer was convicted of accessory after
the fact to manslaughter, mixing a harmful substance in a
drink, delivery or manufacture of marijuana, and possession
of GHB.
Defendants appealed, the appeals were consolidated,
and the Court of Appeals stated that to support an
involuntary manslaughter conviction under a gross
negligence theory, the prosecutor had to establish that
defendants performed a lawful act in a grossly negligent
manner.2 Because mixing a harmful substance in the girls’
drinks was an unlawful act that is a felony, the Court
vacated the involuntary manslaughter convictions and
1
GHB is sometimes known as the “date rape drug.”
2
Unpublished opinion per curiam, issued March 27, 2003
(Docket Nos. 226715, 227941, 227942 and 241661).
3
accessory after the fact conviction.
II. STANDARD OF REVIEW
Determining the elements of common-law involuntary
manslaughter is a question of law. We review questions of
law de novo. People v Riddle, 467 Mich 116, 124; 649 NW2d
30 (2002).
III. ANALYSIS
There are primarily two issues to address in this
case. The first concerns the defendants’ contention that
they cannot be convicted of involuntary manslaughter
because the homicide at issue occurred during the
commission of a felony and involuntary manslaughter,
defendants argue, is, in part, defined by this Court as the
killing of another during the commission of an unlawful act
that is not a felony. The second issue concerns
defendants’ contention that to be convicted of involuntary
manslaughter under a gross negligence theory, which was the
theory under which the prosecutor proceeded at trial, the
homicide must have occurred during the commission of a
lawful act, and in this case it occurred during the
commission of an unlawful (felonious) act.
A. IS MANSLAUGHTER PRECLUDED BECAUSE OF A “FELONY”?
Regarding the first issue, some insight into the early
common-law history of the crime of manslaughter and,
4
particularly, its development alongside the felony-murder
doctrine, is necessary. Under Lord Coke’s traditional
“felony-murder” doctrine, a homicide that occurred during
the commission of an unlawful act was “murder” punishable
by death. See People v Aaron, 409 Mich 672, 692; 299 NW2d
304 (1980), in which this Court thoroughly articulated the
elusive history of the felony-murder doctrine. The premise
behind the traditional felony-murder doctrine was the idea
that the intention to perpetrate the unlawful act
sufficiently showed the existence of malice aforethought—
the requisite mens rea for murder.3 Id. at 717. This was
considered true whatever the nature of the underlying crime
may have been. Id. at 692. Lord Coke’s traditional
doctrine was heavily criticized for the harsh results it
engendered, and it was severely limited even in early
3
“Mens rea” is a term of art referring to the “state
of mind that the prosecutor, to secure a conviction, must
prove that a defendant had when committing a crime.”
Black’s Law Dictionary (7th ed). “Malice” is defined as:
“1. The intent, without justification or excuse, to commit
a wrongful act. 2. Reckless disregard of the law or of a
person’s legal rights. 3. Ill will; wickedness of heart.”
Id. “Malice aforethought,” which is the type of malice
specifically related to the crime of murder, is defined as
“encompassing any one of the following: (1) the intent to
kill, (2) the intent to inflict grievous bodily harm, (3)
extremely reckless indifference to the value of human life
(the so-called ‘abandoned and malignant heart’), or (4) the
intent to commit a felony (which leads to culpability under
the felony-murder rule).” Id.
5
common-law history. Id. at 693-699. One of the earliest
limitations on the traditional doctrine was limiting its
application to those homicides that occurred during the
commission of a felony or during the commission of an act
that was intended to inflict great bodily injury. Id. at
696-697.
Additionally, in the early days of the English common
law, the crime of “manslaughter” was developed. The crime
of manslaughter in Michigan is adopted from that early
common-law crime. See People v Datema, 448 Mich 585, 594;
533 NW2d 272 (1995): “‘The law of manslaughter as it exists
today has been adopted from the old English common law.’”
(Citation omitted). Whereas, as noted above, malice is the
mens rea required for murder, manslaughter requires a less
culpable mens rea. “‘Manslaughter is the unlawful and
felonious killing of another without malice, either express
or implied.’” People v Austin, 221 Mich 635, 643; 192 NW
590 (1923) (citation omitted). Involuntary manslaughter
has, first and foremost, always been considered the “catch-
all” homicide crime. Thus, in Datema, supra at 594-595, we
explained, quoting Perkins & Boyce, Criminal Law (3d ed), p
105, that “[i]nvoluntary manslaughter is a catch-all
concept including all manslaughter not characterized as
voluntary: ‘Every unintentional killing of a human being is
6
involuntary manslaughter if it is neither murder nor
voluntary manslaughter nor within the scope of some
recognized justification or excuse.’” Thus, the catch-all
crime of involuntary manslaughter is typically
characterized in terms of what it is not, and ascertaining
whether a homicide is involuntary manslaughter requires
essentially questioning first whether it is murder,
voluntary manslaughter, or a justified or excused homicide.
If it is none of those, then the homicide, generally, is
involuntary manslaughter.
In attempting to describe the catch-all crime of
involuntary manslaughter in terms of what it is, as opposed
to what it is not, it made sense, starting in the days of
early common law, to refer to those homicides that occurred
during the commission of an unlawful act that was not
intended to cause great bodily injury. This is because, as
already explained, under traditional common law, a homicide
that occurred during the commission of an unlawful act that
was intended to cause great bodily injury constituted
murder. Thus, as early as 1886, this Court elucidated the
difference between murder and manslaughter in the following
manner:
If an act is unlawful, or is such as duty
does not demand, and of a tendency directly
dangerous to life, however unintended, it will be
7
murder. But if the act, though dangerous, is not
directly so [i.e., is not directly dangerous to
life], yet sufficiently dangerous to come under
condemnation of the law [i.e., yet it is
unlawful], and death unintended results from it,
the offense is manslaughter; or if it is one of a
nature to be lawful properly performed, and it is
performed improperly, and death comes from it
unexpectedly, the offense still is manslaughter.
[People v Stubenvoll, 62 Mich 329, 340; 28 NW 883
(1886) (quoting 2 Bishop, Criminal Law, §
689).][4]
In 1923, in recognition of the felony-murder doctrine,
which was by then widely accepted, this Court presented a
somewhat modified version of Stubenvoll’s manslaughter
characterization, stating that manslaughter is “‘the
killing of another without malice and unintentionally, but
in doing some unlawful act not amounting to a felony nor
naturally tending to cause death or great bodily harm, or
in negligently doing some act lawful in itself, or by the
4
In Stubenvoll, the distinction between murder and
manslaughter was premised on the nature of the danger posed
by the unlawful act rather than the categorization of the
unlawful act as being a felony or non felony. This is
likely because it was before the “felony-murder” doctrine
had gained widespread acceptance. In any case, the Court
in Stubenvoll recognized the necessity to prove malice in
order to convict of murder. Stubenvoll, supra at 332.
Thus, it is apparent that by holding that a homicide
occurring during the commission of an unlawful act that
directly tends to cause death is murder, the Court was, in
effect, acknowledging that the existence of malice is
sufficiently demonstrated if the defendant commits an
unlawful act that tends to directly cause danger to human
life. As already noted, this is the same premise
underlying the “felony-murder” doctrine.
8
negligent omission to perform a legal duty.’” People v
Ryczek, 224 Mich 106, 110; 194 NW 609 (1923) (citation
omitted).
Until this Court issued Aaron, Ryczek’s description of
the catch-all crime of involuntary manslaughter as
consisting of those homicides occurring without malice and
unintentionally, but in doing some unlawful act not
amounting to a felony nor naturally tending to cause death
or great bodily harm, was more or less apt. This is
because, generally, a homicide that occurred with malice or
intentionally or in committing a felony or in committing an
unlawful act naturally tending to cause death constituted
murder. However, in Aaron, we formally abolished the
traditional felony-murder doctrine in Michigan and held
that a homicide that occurred during the commission of any
crime, including a felony, constitutes murder only if the
prosecutor specifically proves the existence of malice.
Aaron, supra at 727-728. In other words, we held that the
intent to commit the underlying felony by itself no longer
sufficiently shows the existence of malice. Id.
Since this Court’s 1980 abrogation of the common-law
felony-murder rule in Aaron, it is no longer the case that
a homicide that occurs during the commission of a felony
is, generally, murder per se and, thus, it is no longer apt
9
to describe the catch-all crime of involuntary manslaughter
as encompassing crimes that occur during the commission of
an unlawful act that is not a felony. However, the premise
of the Aaron decision was the rule that a crime is only
murder if the prosecutor proves malice. We stated in
Aaron, supra at 726-727, “‘Both murder and manslaughter
deal with the wrongful killing of another person. . . . To
hold that in all cases it is murder if a killing occurs in
the commission of any felony would take from the jury the
essential question of malice.’” (Citation omitted.) “If
the jury concludes that malice existed, they can find
murder . . . .” Id. at 730 (emphasis added). Thus, Aaron
relied on the long-standing principle that the
distinguishing characteristic between murder and
manslaughter is malice. This point was made by this Court
as long ago as 1923, when we stated, “[h]omicide is the
killing of a human being by a human being. It . . . is
either murder or manslaughter . . . . To constitute
murder, the killing must have been perpetrated with malice
aforethought, either express or implied.” Austen, supra at
644. “‘Manslaughter is the unlawful and felonious killing
of another without malice, either express or implied.’”
10
Id. at 643 (citation omitted).5 This point was recently
reiterated by this Court in People v Mendoza, 468 Mich 527,
536; 664 NW2d 685 (2003), in which we stated, “the sole
element distinguishing manslaughter and murder is malice.”
(Emphasis added.)
Thus, it becomes clear that any post-Aaron deficiency
in Ryczek’s description of involuntary manslaughter is not
that the description fails now to expressly reference
unlawful acts that are felonies, but rather that the
description continues to reference unlawful acts that are
not felonies. This is because the relevant question in
determining whether a homicide is murder or involuntary
manslaughter is whether it occurred with malice, and not
whether it occurred during the commission of an unlawful
act—felony or not. For this reason, defendants cannot
opportunistically rely on Ryczek’s pre-Aaron description of
the catch-all crime of involuntary manslaughter to argue
that, because the homicide at issue occurred during the
5
See also People v Potter, 5 Mich 1, 6-9 (1858):
“Murder is where a person of sound memory and discretion
unlawfully kills [another] with malice prepense or
aforethought, either express or implied. . . . [M]alice
aforethought is as much an essential ingredient of murder
in the second degree, as in that of the first. Without
this, the killing would be only manslaughter, if criminal
at all.”
11
commission of a felony, they cannot be guilty of
manslaughter. That a “felony” has been committed is simply
not dispositive in determining whether either “murder” or
“manslaughter” has been committed and, thus, the “felony”
language in Ryczek’s manslaughter description is
essentially irrelevant.6
Defendants argue that, if we hold that a homicide that
occurs during the commission of a felony may constitute
manslaughter, we nonetheless may not apply the holding in
this case because to do so would violate the constitutional
provision against ex post facto laws. See US Const, art I,
§ 10, cl 1: “No State shall . . . pass any . . . ex post
facto Law . . . .” In Bouie v Columbia, 378 US 347, 353;
84 S Ct 1697; 12 L Ed 2d 894 (1964), the United States
Supreme Court explained that an ex post facto law is one
“‘that makes an action done before the passing of the law,
and which was innocent when done, criminal; and punishes
such action . . . .’” (Citation omitted). We disagree
with defendants because a homicide committed during the
6
We note, however, that while the commission of a
felony is not dispositive in determining whether a “murder”
has been committed because, pursuant to Aaron, evidence of
a felony is no longer sufficient proof in itself of malice,
the fact that the defendant committed a felony may still be
relevant, even if not dispositive, evidence that the
defendant acted with malice. See Aaron, supra at 729-730.
12
course of a felony could never have been considered an
“innocent” homicide merely because it occurred during the
commission of a felony. On the contrary, espousing the
defendants’ argument in this case—that a homicide that
occurs during the course of a felony cannot, as a matter of
law, be manslaughter—leads to the conclusion then that the
homicide (unless justified or excused) is instead murder.
It does not lead to a conclusion that the homicide is
innocent, i.e., a non offense. Thus, our decision in this
case does not criminalize that which was, before this
decision, “innocent.”
Moreover, Ryczek’s description of involuntary
manslaughter was never meant to define the elements of the
crime of manslaughter. Rather, it was meant to provide
guidance to the courts in understanding the circumstances
under which the catch-all crime of manslaughter may occur.
Therefore, it has never been held by this Court that the
prosecutor must specifically prove that the homicide
occurred during the commission of an unlawful act that was
not a felony in order to prove a manslaughter charge. On
the contrary, this Court has implicitly and expressly
recognized in a number of cases, some decided even before
Aaron, that while a homicide occurring during the
commission of a felony could (pursuant to the felony-murder
13
doctrine) constitute murder, the homicide also could
constitute manslaughter—this despite the “felony” language
in Ryczek’s manslaughter description that, during the pre-
Aaron days, actually had significance.
In People v Pavlic, 227 Mich 562; 199 NW 373 (1924),
this Court considered whether a defendant could be
convicted of manslaughter for a homicide that resulted from
the commission of a felony. In Pavlic, a man died after
drinking liquor sold by the defendant. At the time,
selling intoxicating liquor was a felony. Notwithstanding
the description of involuntary manslaughter given by this
Court in Ryczek just one year before—which description, as
noted, refers to manslaughter as “‘the killing of another .
. . in doing some unlawful act not amounting to a felony,’”
Ryczek, supra at 110 (citation omitted)—Pavlic held that
the homicide at issue could “constitute manslaughter if
performed under such circumstances as to supply the intent
to do wrong and inflict some bodily injury.” Pavlic, supra
at 566. The reason the Pavlic Court so held was because
selling intoxicating liquor is only a “malum prohibitum”
felony and not a “malum in se” felony.7 Id. at 566-567.
7
A “malum prohibitum” act is one that “is a crime
merely because it is prohibited by statute, although the
(continued…)
14
This may appear to be grounds to distinguish Pavlic from
this case, but the essential point is that Pavlic
recognized that a homicide occurring during the commission
of a “felony” could be manslaughter.
Moreover, in so holding, the Pavlic Court noted that
the important consideration in determining whether a
homicide is murder or simply manslaughter in “felony” cases
is whether the felony is one that is “in itself directly
and naturally dangerous to life.” Id. at 565. The
implication is that the Pavlic Court understood that the
important question is whether the defendant acted with
malice. If the defendant committed a felony that is
directly and naturally dangerous to life, then he acted
with malice and, therefore, could be convicted of murder.
If not, then a manslaughter conviction might be proper.
Thus, even in 1924, one year after Ryczek and fifty-six
years before Aaron, this Court impliedly acknowledged that,
despite the commission of a felony and the “felony”
language in Ryczek, the distinguishing element between
murder and manslaughter is malice and, therefore, the
killing of another in doing some unlawful act that amounts
(…continued)
act itself is not necessarily immoral.” Black’s Law
Dictionary, supra. A “malum in se” act is a crime “that is
inherently immoral . . . .” Id.
15
to a felony may constitute manslaughter rather than murder,
depending on the facts of the case.
In People v Treichel, 229 Mich 303; 200 NW 950 (1924),
an elderly gentleman was tied to a bed during the
commission of a robbery. He was eventually found dead, and
the suspects were charged with first- and second-degree
murder and manslaughter and were convicted of manslaughter.
The defendants appealed, arguing that they should have been
charged only with first-degree murder because the death
“was occasioned by act committed in the perpetration of a
burglary . . . .” Id. at 308. The defendants contended
that they should have been either convicted of first-degree
murder or acquitted, much as the instant defendants seem to
be arguing. The Treichel Court, in affirming the
defendants’ manslaughter convictions, stated:
Conceding the verdict might have been for
murder in the first degree, because death was
occasioned by act committed in the perpetration
of a burglary, was such a verdict the only one
permissible? We cannot so hold. We think the
evidence left the question of degree and the
included crime of manslaughter to the jury and
the court avoided instead of committed error in
so submitting it. Id.
Thus, in Treichel, again just one year after Ryczek,
this Court affirmed a manslaughter conviction for a
homicide that occurred during the commission of a felony
despite the “felony” language in Ryczek. Presumably, if
16
the Court intended to preclude such convictions by virtue
of Ryczek’s “felony” language, it would not have affirmed
the convictions in Treichel, but, instead, would have
agreed with the defendants that they should have been
either convicted of first-degree murder or acquitted.
In People v Andrus, 331 Mich 535; 50 NW2d 310 (1951),
the defendants burglarized a store and, while doing so,
inflicted severe wounds on the owner of the store, who
eventually died. As in Treichel, the defendants were
charged with first- and second-degree murder and
manslaughter and were convicted of manslaughter. The
defendants appealed, arguing that the manslaughter charge
and convictions constituted error. Again, despite the
“felony” language of Ryczek and the felony-murder doctrine,
this Court affirmed the manslaughter convictions in Andrus.
In doing so, the Court acknowledged that the pivotal issue
is the existence of malice: “[W]here there is testimony
from which the jury might find the absence of such a
felonious intent as is necessary to constitute murder
[i.e., malice], an instruction that they might convict of
manslaughter should be given.” Id. at 546.
In People v Carter, 387 Mich 397; 197 NW2d 57 (1972),
defendants stole a car in order to rob a bank and, in doing
so, put the owner of the car in its trunk. The victim died
17
as a result, and all three defendants were convicted of
first-degree murder. In that case, the defendants
appealed, arguing that the jury should have been instructed
on manslaughter as well as murder. This Court,
notwithstanding the “felony” language in Ryczek, agreed,
vacated the defendants’ convictions, and remanded for a new
trial.
Simply put, case law demonstrates that the “felony”
language in Ryczek’s description of manslaughter does not
have the meaning ascribed to it that defendants would like
to have. That is, this language does not mean, as was
impliedly acknowledged as long ago as 1924 and was
impliedly reaffirmed as recently as 2003, that a defendant
may not be convicted of manslaughter if the homicide
occurred during the commission of a felony. The pertinent
question in distinguishing manslaughter from murder is, as
was made absolutely clear in Mendoza, whether the defendant
acted with malice. If not, then a manslaughter conviction
may be proper despite the fact that the death resulted from
the commission of an underlying felony. We believe that,
in light of the long history of relevant case law and the
fact that the homicide in question would never have been an
“innocent” homicide, there is no ex post facto violation in
affirming Limmer’s conviction of accessory after the fact
18
to involuntary manslaughter and the remaining defendants’
involuntary manslaughter convictions.8
B. UNLAWFUL-ACT MANSLAUGHTER AND GROSS NEGLIGENCE
Defendants likewise argue that their convictions of
manslaughter cannot be sustained because “gross negligence”
manslaughter, which is the mens rea that the prosecutor in
this case argued that defendants possessed, requires that a
8
We note that this Court’s order in People v Rode, 449
Mich 912 (1995), in which we affirmed the defendant’s
convictions of second-degree murder and denied the
defendant an instruction on manslaughter because the deaths
occurred during the commission of a felony, has already
been impliedly overruled by Mendoza, in which we held that
manslaughter is a necessarily included lesser offense of
murder. Mendoza, supra at 548. Thus, we held in Mendoza
that if a defendant is charged with murder, the jury, upon
the defendant’s request, must also be instructed on
manslaughter if a rational view of the evidence supports
such an instruction. Id. Defendants attempt to explain
their position under Mendoza by arguing that, because
Ryczek refers to unlawful acts that are not felonies, a
rational view of the evidence will never support an
instruction on manslaughter in a case based on the
commission of a felony. However, the “rational view of the
evidence” proviso in Mendoza concerns whether the facts of
the specific case rationally fit within the legal purview
of manslaughter—the language is not meant to nullify
Mendoza’s statement concerning the legal elements of
manslaughter: i.e., that “the sole element distinguishing
manslaughter and murder is malice” and that manslaughter is
an unintended homicide with a diminished mens rea.
Mendoza, supra at 536, 541. Accordingly, as clearly
explained in Mendoza, determining whether a rational view
of the evidence may support a manslaughter conviction
requires considering whether a rational jury could conclude
that the defendant did not act with malice, and not whether
death resulted from the commission of a felony.
19
lawful act have been committed, whereas the act committed
in this case, pouring GHB into Samantha Reid’s drink, was
clearly unlawful. In support of this contention,
defendants again refer to Ryczek, wherein this Court
described manslaughter as:
the killing of another without malice and
unintentionally, but in doing some unlawful act
not amounting to a felony nor naturally tending
to cause death or great bodily harm, or in
negligently doing some act lawful in itself, or
by the negligent omission to perform a legal
duty. [Ryczek, supra at 110, citation omitted,
emphasis added).]
Defendants’ argument has no merit. In Datema, supra
at 596, this Court explained that Ryczek “sets forth three
different theories giving rise to involuntary manslaughter
liability. These theories are not mutually exclusive, and,
under the proper circumstances, multiple theories may be
appropriate.” Thus, it is possible to determine, on the
basis of the specific facts at issue, that the act
committed by the defendant that resulted in death was, for
instance, not only unlawful, but also committed with a mens
rea of gross negligence.
In People v Townsend, 214 Mich 267, 273-274; 183 NW
177 (1921), this Court provided some early guidance
regarding the proofs necessary to demonstrate the
“unlawful-act” theory of involuntary manslaughter and the
20
“lawful-act” theory. Townsend provides:
The distinction between involuntary
manslaughter committed while perpetrating an
unlawful act not amounting to a felony and the
offense arising out of some negligence or fault
in doing a lawful act in a grossly negligent
manner and from which death results must be kept
in mind upon the question of pleading. In the
former case it is sufficient to allege the
unlawful act with sufficient particularity to
identify it and then to charge that as a
consequence the defendant caused the death of the
deceased, and there is no need to aver in detail
the specific acts of the accused; but in case of
manslaughter committed through gross or culpable
negligence while doing a lawful act the duty
which was neglected or improperly performed must
be charged as well as the acts of the accused
constituting failure to perform or improper
performance. [Id. at 372-274.]
This statement in Townsend essentially means that if
the defendant committed an unlawful act that resulted in
death, it is sufficient to allege the commission of the
unlawful act and the resulting death; whereas, if the
defendant committed a lawful act resulting in death, the
prosecutor must specifically allege the manner in which the
defendant’s actions were grossly or culpably negligent.
That is, under Townsend, lawful-act manslaughter requires
that the defendant acted with a mens rea of culpable
negligence; whereas unlawful-act manslaughter does not
require that the defendant acted with a specific mens rea—
all that is required is that the defendant committed the
unlawful act.
21
In Pavlic, this Court considered, as noted above,
whether a defendant can be convicted of involuntary
manslaughter for a death resulting after the defendant
committed the unlawful act of selling intoxicating liquor.
The Court explained that a manslaughter conviction may be
appropriate, but that, because this unlawful act is only
malum prohibitum rather than malum in se, it is only
appropriate if the prosecutor specifically proves that the
defendant acted with a culpable mens rea. The Court
essentially equated malum prohibitum unlawful acts with
lawful acts, stating
The act of selling or furnishing
intoxicating liquor in violation of the statute
is what the law terms an act malum prohibitum, a
crime existing only by reason of statutory
prohibition. An unlawful act of this character
which unintentionally causes the death of
another, is not in itself a sufficient basis for
a charge of involuntary manslaughter.9 But the
commission of such an [malum prohibitum] unlawful
act will constitute manslaughter if performed
under such circumstances as to supply the intent
9
The corollary of this assertion is that an unlawful
act which is not malum prohibitum, but is rather malum in
se, is “in itself” a sufficient basis for a charge of
involuntary manslaughter. This is essentially the position
taken in Townsend, supra, that (malum in se) unlawful-act
manslaughter does not require that defendant acted with a
specific mens rea—all that is required is that defendant
committed the (malum in se) unlawful act and that death
resulted therefrom.
22
to do wrong and inflict some bodily injury. . . .
The rule is well stated in Thiede v. State, 1096
Neb 48 (182 N.W. 570 [1921]), as follows: “We
believe the rule to be that though the act made
unlawful by statute is an act merely malum
prohibitum and is ordinarily insufficient, still
when such an act is accompanied by negligence or
further wrong so as to be in its nature,
dangerous, or as to manifest a reckless disregard
for the safety of others, then it may be
sufficient to supply the wrongful intent
essential to criminal homicide [and] when such an
act results in the death of another, may
constitute involuntary manslaughter.” [Pavlic,
supra at 566.]
Thus, similar to Townsend, what may be gleaned from
Pavlic is that, traditionally, commission of a malum in se
unlawful act that results in an unintended death is
sufficient in itself to constitute manslaughter; whereas an
unintended death resulting from either a lawful act or a
malum prohibitum unlawful act requires specific proof of a
culpable mens rea, which may consist of an intent to
inflict bodily injury or of gross negligence showing a
reckless disregard for the safety of another.
In a more recent case, Datema, this Court again
addressed the mens rea necessary to sustain a manslaughter
conviction. Citing Pavlic, we held that where an act is
malum prohibitum unlawful or lawful, a mens rea of
“criminal negligence” is required to prove manslaughter,
and this requirement is met if the defendant either
intended to inflict some bodily injury on another or if the
23
defendant acted carelessly in such a manner that manifests
a reckless disregard for another’s life-that is, if the
defendant acted with gross negligence. Datema, supra at
598-599. “Gross negligence is only necessary if an intent
to injure cannot be established.” Id. at 605.10
Regarding malum in se unlawful-act manslaughter,
Datema first noted that under traditional common law (as
expressed in Townsend and Pavlic), “[w]hen an unintentional
killing occurred during the commission of [a malum in se
unlawful] act . . , the commission of the underlying malum
in se [act] supplied the mens rea for involuntary
manslaughter.” Id. at 599-600. Further, Datema noted that
“[u]nlike the second and third theories of involuntary
manslaughter liability, the [unlawful act] rule does not
require negligence.” Id. at 600.
The defendant in Datema argued that, just as Aaron
held that proof that a defendant committed the underlying
felony is no longer sufficient to show malice and thus
constitute murder, proof that the defendant committed the
10
Thus, in fact, Datema makes clear that it is not the
case, as defendants seem to assert, that lawful-act
manslaughter requires that the prosecutor prove that the
defendant acted with “gross negligence.” The prosecutor
may prove lawful-act manslaughter by demonstrating that the
defendant acted with either gross negligence or with an
intent to injure.
24
underlying malum in se unlawful act should no longer “in
itself” be sufficient to constitute manslaughter. We
declined to address this issue in Datema because the
unlawful act that the defendant committed, assault and
battery, itself showed that the defendant acted with a
specific intent to injure and, thus, the defendant acted
with a culpable manslaughter mens rea. Thus, Datema
concluded that the defendant was properly convicted of
involuntary manslaughter because “[a]n unlawful act
committed with the intent to injure or in a grossly
negligent manner that proximately causes death is
involuntary manslaughter.” Id. at 606.
We, too, need not consider whether the prosecutor was
required in this case to specifically prove that defendants
acted with a culpable mens rea or whether proof that
defendants committed the malum in se unlawful act itself
furnishes a sufficient mens rea for involuntary
manslaughter11 because, in either case, the prosecutor did
prove that defendants acted with a culpable mens rea of
gross negligence. Pursuant to Datema, if the prosecutor
11
We note, however, that were we to hold that the
prosecutor was not required to specifically prove a mens
rea, defendants would not be entitled to relief on the
basis that the prosecutor, in proving a mens rea of gross
negligence, proved more than was required.
25
proves that defendants committed “[a]n unlawful act . . .
with the intent to injure or in a grossly negligent manner
that proximately cause[d] death,” id., an involuntary
manslaughter conviction may be appropriate. Therefore, the
prosecutor did not err in proceeding under a gross
negligence theory. Moreover, it is apparent that, at the
very least, the prosecutor sufficiently proved its case.
Defendants may not seek relief on the basis that the
prosecutor may have “over-proved” its case by demonstrating
that defendants acted with a mens rea of gross negligence.
IV. CONCLUSION
To summarize, the language in Ryczek regarding the
commission of an “unlawful act not amounting to a felony”
does not mean that a defendant may not be convicted of
involuntary manslaughter for an unintentional death
resulting from the commission of a felony. Disregarding
the reference to an “unlawful act not amounting to a
felony,” Ryczek’s description of involuntary manslaughter
remains a useful tool in discerning the circumstances under
which involuntary manslaughter may occur. However, we
emphasize that Ryczek’s description is just that—a useful
tool, and not a definitive statement regarding the elements
of involuntary manslaughter. More importantly, it must be
kept in mind that “the sole element distinguishing
26
manslaughter and murder is malice,” Mendoza at 536, and
that “[i]nvoluntary manslaughter is a catch-all concept
including all manslaughter not characterized as voluntary:
‘Every unintentional killing of a human being is
involuntary manslaughter if it is neither murder nor
voluntary manslaughter nor within the scope of some
recognized justification or excuse.’” Datema, supra at
594-595. If a homicide is not voluntary manslaughter or
excused or justified, it is, generally, either murder or
involuntary manslaughter.12 If the homicide was committed
with malice, it is murder.13 If it was committed with a
lesser mens rea of gross negligence or an intent to injure,
and not malice, it is not murder, but only involuntary
manslaughter.
Defendants in this case purposefully committed a malum
in se unlawful act when they poured GHB into Samantha
Reid’s drink and, in doing so, caused her death. Her death
was not voluntary manslaughter or excused or justified.
12
Statutory exceptions to the common-law catch-all
crime of manslaughter exist. For instance, see MCL 750.324
and 750.325, regarding the crime of “negligent homicide.”
13
Of course, if a defendant commits murder, he has
essentially also committed manslaughter because
manslaughter is a necessarily included lesser offense of
murder. Mendoza, supra at 548.
27
Whether or not defendants acted with malice, the jury
found, in either case, that they acted with a diminished
mens rea of gross negligence sufficient to sustain a
conviction of manslaughter. In short, defendants, by their
purposeful, willful, reckless, and unlawful behavior,
unintentionally killed another person, and this is exactly
the type of homicide that fits within the parameters of
involuntary manslaughter. Therefore, we overrule the
judgment of the Court of Appeals and reinstate defendant
Limmer’s conviction of accessory after the fact to
involuntary manslaughter and the remaining defendants’
involuntary manslaughter convictions.
Stephen J. Markman
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
28
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 123553
NICHOLAS E. HOLTSCHLAG,
Defendant-Appellee.
_________________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 123554
JOSHUA M. COLE,
Defendant-Appellee.
________________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 123555
DANIEL BRAYMAN,
Defendant-Appellee.
________________________________
1
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 123556
ERICK LIMMER,
Defendant-Appellee.
_______________________________
CAVANAGH, J. (concurring in the result only).
I concur in the result reached by the majority;
however, I write separately because I disagree with the
majority’s rationale. Unlike the majority, I believe that
a defendant can be convicted of involuntary manslaughter
when the committed act is a felony, but only when the
felony does not naturally tend to cause death or great
bodily harm.1
The manslaughter statute, MCL 750.321, provides the
following: “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
1
Although I still believe that “[g]ross negligence
should be recognized as the mens rea standard for all
common-law forms of involuntary manslaughter,” as expressed
in my dissent in People v Datema, 448 Mich 585, 609; 533
NW2d 272 (1995), this interpretation of the law was not
shared by a majority of this Court.
2
discretion of the court.” No distinction is made in the
statute between voluntary manslaughter and involuntary
manslaughter.2
Because the statute at issue, MCL 750.321, does not
define manslaughter, the common-law definition must be
used. People v Townes, 391 Mich 578, 588; 218 NW2d 136
(1974). Involuntary manslaughter is defined as “‘the
killing of another without malice and unintentionally, but
in doing some unlawful act not amounting to a felony nor
naturally tending to cause death or great bodily harm, or
in negligently doing some act lawful in itself, or by the
negligent omission to perform a legal duty.’” People v
Herron, 464 Mich 593, 604; 628 NW2d 528 (2001), quoting
People v Ryczek, 224 Mich 106, 110; 194 NW 609 (1923).
I disagree with the majority’s claim that this Court
did not provide a definition in Ryczek but merely offered
“guidance” and “a useful tool.” Ante at 13, 26. I find
this claim to be disingenuous. This Court in Ryczek, supra
at 109, stated that the term “involuntary manslaughter” is
“well defined” and then went on to provide the definition.
This Court in Herron, supra at 604, stated that “the
2
“There is but one offense of manslaughter in this
State.” People v Rogulski, 181 Mich 481, 494; 148 NW 189
(1914).
3
definition [of involuntary manslaughter] is left to the
common law. . . . This Court has defined the common-law
offense of involuntary manslaughter as . . . .” (Emphasis
added.) Further, in Townes, supra at 590, this Court
similarly stated that in Ryczek, “the Court approved the
following definition of involuntary manslaughter . . . .”
(Emphasis added.) While the majority now chooses to
characterize the definition as a descriptive tool, I
believe it is clear that the Ryczek definition is, in fact,
a definition.
I believe a proper reading of the definition of
involuntary manslaughter dictates that a person cannot be
convicted of involuntary manslaughter when he commits a
felony that naturally tends to cause death or great bodily
harm. If the defendant commits a felony that does not
naturally tend to cause death or great bodily harm, such as
larceny of an ornamental tree, MCL 750.367, he can be
convicted of involuntary manslaughter if death to a person
results. This conclusion is consistent with this Court’s
prior decisions.
This Court has previously rejected the argument that a
defendant cannot be convicted of involuntary manslaughter
merely because the act committed was a felony. See, e.g.,
People v Carter, 387 Mich 397, 422; 197 NW2d 57 (1972);
4
People v Pavlic, 227 Mich 562, 565-567; 199 NW 373 (1924).
In Pavlic, a man died after drinking liquor sold by the
defendant. At the time, selling intoxicating liquor was a
felony. This Court stated that violating the liquor law is
only criminal because it is prohibited by statute; it is a
malum prohibitum act.3 “It is not inherently criminal.
Notwithstanding the fact that the statute has declared it
to be a felony it is an act not in itself directly and
naturally dangerous to life.” Id. at 565. The commission
of a malum prohibitum act “will constitute manslaughter if
performed under such circumstances as to supply the intent
to do wrong and inflict some bodily injury.” Id. at 566.
Selling intoxicating liquor was insufficient to support the
manslaughter conviction in Pavlic because the defendant did
not possess an intent to inflict injury or a reckless
disregard for the safety of the victim. However, if the
circumstances had been different, for example, if the
liquor had contained certain poisonous ingredients that the
defendant had known about, the defendant would have been
guilty of involuntary manslaughter. Id. at 567.
3
“An act is malum prohibitum if it is an ‘act which is
not inherently immoral, but becomes so because its
commission is expressly forbidden by positive law . . . .’”
Datema, supra at 597 n 13, quoting Black’s Law Dictionary
(6th ed).
5
My reasoning is consistent with past opinions and
orders of this Court, and does not require a finding, as
the majority now does, that this Court’s order in People v
Rode, 449 Mich 912 (1995), was impliedly overruled by this
Court’s opinion in People v Mendoza, 468 Mich 527, 534; 664
NW2d 685 (2003). In Rode, this Court’s order peremptorily
reinstated the defendant’s convictions of second-degree
murder and felony-firearm possession on the basis of the
reasoning of the dissenting judge in the Court of Appeals.
The dissenting judge argued:
Because shooting at the other vehicle full
of people was “an unlawful act” amounting to “a
felony and would naturally tend to cause death or
great bodily harm,” it was not conduct within the
definition of involuntary manslaughter for a
killing committed “in doing some unlawful act not
amounting to a felony nor naturally tending to
cause death or great bodily harm . . . .” [Rode,
supra at 914 (LEVIN, J., dissenting, citing JANSEN,
J., concurring in part and dissenting in part,
unpublished opinion per curiam, issued March 3,
1995 [Docket No. 179942]).]
In essence, this Court adopted the dissenting judge’s
statement that shooting at a car full of people is not
involuntary manslaughter because that act constitutes a
felony that would naturally tend to cause death or great
bodily harm. Further, in Datema, supra at 597, this Court
stated, “where a defendant commits an unlawful act that is
malum prohibitum or a lawful act executed negligently that
6
causes death, involuntary manslaughter may be premised on
criminal negligence.” While this Court was considering the
misdemeanor-manslaughter rule in Datema, the general
principles articulated are relevant to the issue at hand.
Finally, the underlying felony in this case–mixing a
harmful substance in a drink—does not naturally tend to
cause death or great bodily harm.4 There are numerous
harmful substances that could be mixed into a drink that
would not naturally lead to death or great bodily harm.
Unfortunately, GHB (gamma hydroxybutrate) was mixed in the
girls’ drinks in amounts that led to one girl’s death, but
that does not mean that defendants’ underlying felony is
one that naturally tends to cause death or great bodily
harm.5 Therefore, I believe that the prosecutor had to
4
MCL 750.436(1) states, in pertinent part, “A person
shall not . . . (a) [w]illfully mingle a poison or harmful
substance with a food, drink, nonprescription medicine, or
pharmaceutical product . . . knowing or having reason to
know that the food, drink, nonprescription medicine,
pharmaceutical product, or water may be ingested or used by
a person to his or her injury.”
5
GHB can have a range of effects from memory loss to
death. In low doses, the drug can reduce inhibitions,
which is presumably why the drug was mixed in the girls’
drinks. See United States Drug Enforcement Administration,
(accessed July 7, 2004); Executive Office of
the President, Office of National Drug Control Policy,
(accessed July 7, 2004).
(continued…)
7
specifically allege and prove, as he did, that defendants
were grossly negligent.
Therefore, while I agree with the result reached by
the majority, I disagree with the majority’s rationale.
Accordingly, I concur in the result only.
Michael F. Cavanagh
Marilyn Kelly
(…continued)
I also note that there may certainly be cases in which
the act of mixing GHB into a person’s drink is proven to be
with malice; however, in this case, the prosecutor did not
seek to prove malice.
8