People v. Herron

Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Just ice Justices
Maura D . Corrigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 3, 2001

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 114858

IVORY L. HERRON,

Defendant-Appellee.

____________________________________

BEFORE THE ENTIRE BENCH

MARKMAN, J.

This case requires that we determine whether defendant’s

right to be free from double jeopardy was violated. The

issues presented are (1) whether defendant’s retrial for

second-degree murder, after a jury in the first trial

deadlocked on that count, was a constitutionally impermissible

successive prosecution; (2) whether defendant’s conviction of

involuntary manslaughter on retrial resulted in an

unconstitutionally impermissible multiple punishment because

he had previously been convicted of negligent homicide under

prosecution for a separate count; and (3) whether defendant is

entitled to a conviction of the lesser offense when multiple

punishments have resulted from a retrial.

We hold that defendant’s retrial for second-degree murder

was permissible and did not violate the constitutional

protection against successive prosecutions. However, the

retrial of the defendant resulted in multiple punishments for

the same offense. Therefore, the defendant is entitled to a

remedy for the multiple punishments violation. We hold that

the constitutional violation should have been remedied by

affirming defendant’s conviction of involuntary manslaughter

and vacating his conviction of negligent homicide.

Additionally, we address whether the defendant’s

conviction of involuntary manslaughter at the second trial,

following his previous conviction of negligent homicide, was

precluded by application of MCL 768.33, as proposed by Judge

WHITE . We conclude that MCL 768.33 does not apply to defendant

because he was not subjected to a subsequent trial for

different degrees of the same offense for which he was

originally acquitted or convicted upon an indictment.

Accordingly, we reverse the judgment of the Court of

Appeals, reinstate defendant’s conviction and sentence for

involuntary manslaughter, and vacate his conviction and

sentence for negligent homicide.

The facts relevant to our decision in this case were

sufficiently set forth in the unpublished decision of the

Court of Appeals:

On October 17, 1995, after drinking alcohol

and ingesting a controlled substance, phencyclidine

(PCP), defendant drove a U-Haul truck at an

immoderate rate of speed and in an erratic manner

on the streets of Grosse Pointe Woods. He struck

one car, causing it to spin around, then drove on,

striking another vehicle head-on, killing the

driver, Christina Comito. These events occurred on

a clear fall day at approximately 3:30 P.M ., just as

a nearby middle school was dismissing students for

the day and traffic on the roads was heavy. Blood

tests performed later on defendant revealed the

presence OF PCP, but no alcohol.

The prosecutor charged defendant with second
degree murder, MCL 750.317; MSA 28.549 [count I ],

operating a motor vehicle while under the influence

of a combination of alcohol and a controlled

substance thereby causing death (OUI causing death),

MCL 257.625(4); MSA 9.2325(4) [count II ], and

driving on a suspended or revoked license [count

III ]. The jury was permitted to consider, on count

I , the lesser offenses of involuntary manslaughter

involving a motor vehicle, MCL 750.321; MSA 28.553,

and negligent homicide, MCL 750.324; MSA 28.556,

and on count II , negligent homicide was again given

as a lesser included offense of OUI causing death.

. . . Ultimately, the jury convicted defendant on

count II of negligent homicide and on count III of

operating a motor vehicle while his license was

suspended or revoked,[1] but was unable to reach a

verdict on count I . The trial court ordered a

mistrial on that count. The prosecutor retried

defendant on the second-degree murder charge, with

1
Count III is not at issue here.

the jury being instructed on the lesser offenses of

involuntary manslaughter involving a motor vehicle

and negligent homicide. The jury convicted

defendant of involuntary manslaughter. [Issued

April 6, 1999 (Docket No. 198353), slip op at 1-2.]

On appeal to the Court of Appeals, defendant argued that

his retrial on the charge of second-degree murder, after being

convicted of negligent homicide in his first trial, violated

his constitutional protections against double jeopardy.

Stating that “a fundamental error in the proceedings below

. . . resulted in a violation of defendant’s constitutional

right to be free from double jeopardy,” the Court of Appeals

first determined that where the facts of a case support

separate charges for murder, involuntary manslaughter, or OUI

causing death, the charges must be brought in the alternative,

and presented to the jury in that manner. Id. at 2. The

Court then concluded that because “the defendant’s drunken

driving ha[d] caused the death of one person, he [could] be

convicted of only one of these offenses.” Id. (emphasis in

the original). The Court of Appeals further concluded that

defendant’s conviction of both negligent homicide and

involuntary manslaughter constituted multiple punishments for

the same offense, given the statutorily created link between

these two crimes,2 with negligent homicide being a necessarily

2
See MCL 750.325.

included lesser offense of involuntary manslaughter. Id.

Although the Court of Appeals recognized that, when a

defendant is convicted of both a greater and lesser offense of

the same category, the general rule is to vacate the

conviction of the lesser offense and affirm the conviction of

the greater,3 it determined that, because the charges were

improperly presented to the jury in the first trial,

defendant’s conviction of involuntary manslaughter in the

second trial was “tainted and cannot stand.” Id. at 3.

Accordingly, the Court of Appeals vacated defendant’s

conviction for involuntary manslaughter and affirmed his

conviction for negligent homicide. Id.4

In concurring with the Court of Appeals majority, Judge

WHITE relied on a statutory rather than constitutional ground,5

essentially stating that because negligent homicide was a

“different degree” of involuntary manslaughter, defendant’s

conviction of negligent homicide precluded his subsequent

conviction of involuntary manslaughter arising from the same

vehicular death. Id. at 1.

3
People v Harding, 443 Mich 693; 506 NW2d 482 (1993).

The Court of Appeals also ordered resentencing on

defendant’s negligent homicide conviction for reasons that are

not relevant here.

MCL 768.33.

This appeal involves challenges based on constitutional

double jeopardy principles. A double jeopardy challenge

presents a question of law that we review de novo. See, e.g.,

People v Sierb, 456 Mich 519, 520-21; 581 NW2d 219 (1998).

US Const, Am V provides, in pertinent part

No person . . . shall . . . be subject for the same

offence to be twice put in jeopardy of life or limb

. . .

This provision is applicable to the states through the

Fourteenth Amendment. Benton v Maryland, 395 US 784, 794; 89

S Ct 2056; 23 L Ed 2d 707 (1969). Further, Michigan Const

1963, art 1, § 15 provides:

No person shall be subject for the same

offense to be twice put in jeopardy.

The Double Jeopardy Clause of the Fifth Amendment

protects against two general governmental abuses: (1) multiple

prosecutions for the same offense after an acquittal or

conviction; and(2) multiple punishments for the same offense.

Ohio v Johnson, 467 US 493, 497; 104 S Ct 2536; 81 L Ed 2d 425

(1984).

“The principal thrust of double jeopardy protection by

the very terms of our federal and state constitutional

provision[s] is protection from repeated prosecutions for the

same criminal offense arising out of the same conduct.” People

v Harding, 443 Mich 693, 705; 506 NW2d 482 (1993). This

includes protection from being prosecuted in a subsequent

prosecution for a greater offense, following conviction in a

previous trial for a lesser included offense. Green v United

States, 355 US 184, 190; 78 S Ct 221; 2 L Ed 2d 199 (1957);

Price v Georgia, 398 US 323; 90 S Ct 1757; 26 L Ed 2d 300

(1970). Additionally, the concept of multiple punishment in

double jeopardy jurisprudence has as its purpose the avoidance

of more than one punishment for the same offense arising out

of a single prosecution.” Harding, supra at 705. I n t h e

present case, we are faced with challenges involving both

defendant’s constitutional right to be free from multiple

prosecutions and his right to be free from multiple

punishments.

First, we conclude that there was no violation of

defendant’s right to be free from multiple prosecutions when

he was retried on the charge of second-degree murder in the

second trial.6 Successive-prosecution cases implicate the

6
The Court of Appeals concluded that “defendant’s right

against successive prosecutions for the same offense was

implicated once the trial court accepted the first jury’s

verdict of negligent homicide and the prosecutor was allowed

to retry defendant on the higher charges.” Slip op at 2.

However, the Court of Appeals holding erroneously failed to

recognize that the second trial in this case was a retrial

(continued...)

core values of the principles relating to double jeopardy.

See Bartkus v Illinois (On Rehearing), 359 US 121, 151; 79 S

Ct 676; 3 L Ed 2d 684 (1959) (Black, J., dissenting). Where

successive prosecutions occur, double jeopardy principles

protect a defendant’s interest in not having to twice run the

gauntlet, in not being subjected to “embarrassment, expense

and ordeal,” and in not being compelled “to live in a

continuing state of anxiety and insecurity,” with enhancement

of the “possibility that even though innocent he may be found

guilty.” Green v United States, supra at 187-88; see also

United States v Wilson, 420 US 332, 343; 95 S Ct 1013; 43 L Ed

2d 232 (1975).

The United States Supreme Court has recognized that

certain situations are not amenable to strict application of

the general principle that the Double Jeopardy Clause bars a

defendant from being tried twice for the same crime.

6
(...continued)

after mistrial of the second-degree murder charge initially

brought simultaneously with the OUI causing death charge.

Jeopardy relating to the second-degree murder charge continued

from the initial trial into the retrial. The retrial did not

involve a second prosecution for the OUI charge. Thus, as

will be explained, the problem perceived by the Court of

Appeals is actually a multiple punishments problem rather than

a multiple prosecutions problem. This case is similar to

Harding, supra, in which this Court discussed the difficulty

in analyzing a challenge arising when the punishment

complained of is exacted from successive trials rather than

from a single trial. See discussion below at 18-21.

Richardson v United States, 468 US 317, 323-324; 104 S Ct

3081; 82 L Ed 2d 242 (1984). In Richardson, the Supreme Court

held that in those circumstances in which “manifest necessity”

causes the termination of a criminal trial, the defendant’s

right against being placed twice in jeopardy is not implicated

with regard to the charges unsuccessfully completed. In

particular, the Supreme Court has long recognized that a

jury’s inability to agree upon a verdict constitutes manifest

necessity. Id.

Michigan courts also recognize that where manifest

necessity compels the termination of a proceeding, the state’s

double jeopardy provisions do not bar retrial. People v

Thompson, 424 Mich 118, 123; 379 NW2d 49 (1985), quoting

People v Anderson, 409 Mich 474, 483-84; 295 NW2d 482 (1980).

Such manifest necessity, although elusive of precise

definition, includes at least those instances in which a jury

is unable to reach a verdict. Thompson, supra at 123.

When a jury is unable to reach a verdict and a

declaration of mistrial has been made by the court, the

mistrial is not the equivalent of an acquittal. There exists

a long line of cases, starting with the opinion of Justice

Story in United States v Perez, 22 US (9 Wheat) 579, 580; 6 L

Ed 165 (1824), which hold that “a failure of the jury to agree

on a verdict [is] an instance of ‘manifest necessity’ which

permits a trial judge to terminate the first trial and retry

the defendant, because ‘the ends of public justice would

otherwise be defeated.’” The Court in United States v

Bordeaux, 121 F3d 1187, 1193 (CA 8, 1997) stated that

[w]here a jury ha[s] not been silent as to a

particular count, but where, on the contrary, a

disagreement is formally entered on the record[,]

[t]he effect of such entry justifies the discharge

of the jury, and therefore a subsequent prosecution

for the offence as to which the jury has disagreed

and on account of which it has been regularly

discharged, would not constitute second jeopardy.

The present case falls within the scope of this exception

to the general prohibition against successive prosecutions.

Here, the jury in defendant’s first trial expressly deadlocked

with regard to count I (second-degree murder), thus compelling

the termination of an otherwise properly pursued criminal

prosecution. Under these circumstances, defendant was neither

acquitted nor convicted of this offense. Richardson, supra at

323-324; Thompson, supra at 123. Rather, the trial court’s

declaration of a mistrial, regarding the second-degree murder

charge, completely halted the proceedings that ultimately

would have led to a verdict on this charge. Johnson, supra at

499-500. Where criminal proceedings against an accused have

not run their full course, the Double Jeopardy Clause does not

bar a second trial. Price v Georgia, supra at 326-27. Thus,

because the prosecutor’s retrial of defendant on the charge of

second-degree murder was the result of a hung jury, we

conclude that there was no violation of double jeopardy

principles aimed at multiple prosecutions.

Vacating defendant’s conviction for involuntary

manslaughter, the Court of Appeals majority in this case

determined that a “fundamental error in the proceedings below

. . . has resulted in a violation of defendant’s

constitutional right to be free from double jeopardy.” Slip

op at 2. Apparently, this “fundamental error” occurred when

the prosecutor chose to pursue convictions against defendant

for both second-degree murder and OUI causing death.

According to the Court majority, “where the facts support

separate charges of murder, involuntary manslaughter, or OUI

causing death, the charges must be brought in the alternative,

and presented to the trier of fact as such.” Id. (emphasis

added). We disagree to the extent where, as here, defendant

was charged with second-degree murder and OUI causing death in

the first trial, but was acquitted of the latter, and properly

retried for second-degree murder in a subsequent trial.

Thus, the Court of Appeals vacation of defendant’s

conviction for involuntary manslaughter on this ground was in

error.

Second, we conclude that defendant received multiple

punishments for the killing of the victim, Ms. Comito, in

violation of his double jeopardy right to be free from

multiple punishments, when he was convicted of, and sentenced

for, negligent homicide and involuntary manslaughter.

Under neither the federal nor the Michigan double

jeopardy provisions does this Court instruct the Legislature

regarding what conduct it can and cannot make separate crimes.

People v Robideau, 419 Mich 458, 485; 355 NW2d 592 (1984). In

Michigan, the penalty for involuntary manslaughter is

codified,7 but the definition is left to the common law.

People v Stubenvoll, 62 Mich 329, 331; 28 NW 583 (1886). This

Court has defined the common-law offense of involuntary

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.”

People v Ryczek, 224 Mich 106, 110; 194 NW 609 (1923); see

7
The penalty for involuntary manslaughter is set forth

in MCL 750.321:

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

fifteen years or by fine of not more than seven

thousand five hundred dollars, or both, at the

discretion of the court.

also People v Beach, 429 Mich 450, 477; 418 NW2d 861 (1988).

The kind of negligence required for manslaughter is something

more than ordinary or simple negligence, however, and is often

described as “criminal negligence” or “gross negligence,”

People v Townes, 391 Mich 578, 590 n 4; 218 NW2d 136 (1974).

The negligent homicide statute, MCL 750.324 provides:

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.

Where two statutes prohibit violations of the same

societal norm, albeit in a different manner, as a general

principle it can be concluded that the Legislature did not

intend multiple punishments. Robideau, supra at 487. With

regard to the statutes addressing the offenses of involuntary

manslaughter and negligent homicide, it is reasonable to

conclude that the causation of the death of another human

being is the violation of a societal norm sought to be

prohibited by the Legislature. These two crimes are part of

a hierarchy of offenses in which statutes incorporate the

elements of a base statute, but increase the penalty on the

basis of the presence of increasingly aggravating conduct.

See id. at 487-88; see also People v Price, 214 Mich App 530,

544; 543 NW2d 49 (1995). In other words, the only difference

between the two offenses is the level of conduct necessary to

establish criminal culpability.

That the involuntary manslaughter and negligent homicide

statutes prohibit violations of essentially the same societal

norm is further evidenced by MCL 750.325, which provides:

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.

The hierarchal nature of these two offenses thus evidences a

legislative prohibition against the imposition of dual

convictions and punishments for violation of the societal norm

sought to be protected by both the statute against involuntary

manslaughter and the statute against negligent homicide. See

Robideau, supra at 487-88; People v Sturgis, 427 Mich 392,

407; 397 NW2d 783 (1986).

In the present case, defendant was first convicted of

negligent homicide, under a charge of OUI causing death.8 He

8
As we have concluded today, such charging neither

constituted overreaching by the prosecutor, nor resulted in a

violation of defendant’s right to be free from multiple

(continued...)

was retried on the second-degree murder charge, a charge on

which the jury in the first trial had expressly deadlocked,

and was convicted of involuntary manslaughter. Defendant thus

received multiple punishments for the killing of Ms. Comito,

in violation of his double jeopardy right to be free from

multiple punishments for the same offense. See Robideau,

supra at 487.

In People v Harding, supra, the defendants were found

guilty of armed robbery, assault with intent to murder, and

8
(...continued)

punishments. However, a trial court is required to instruct

the jury concerning the law applicable to the case and to

present the case fully and fairly to the jury in an

understandable manner. MCL 768.29. People v Mills, 450 Mich

61, 80; 537 NW2d 909 (1995). We recognize that the

instructions articulated by the trial court at defendant’s

first trial have served to complicate the issues in the

present case. Here, the trial court instructed the jury on

the offense of negligent homicide as a lesser included offense

of both second-degree murder and OUI causing death.

Defendant, however, arguably waived any potential claim

of error resulting from the trial court’s instructions to the

jury at his first trial. Waiver has been defined as “the

intentional relinquishment or abandonment of a known right.”

People v Carines, 460 Mich 750, 762-763, n 7; 597 NW2d 130

(1999). “One who waives his rights under a rule may not then

seek appellate review of a claimed deprivation of those

rights, for his waiver has extinguished any error.” United

States v Griffin, 84 F3d 912, 924 (CA 7, 1996). In the

present case, defendant did not fail to object to the

negligent homicide instruction as it related to the OUI

causing death charge. Rather, he both requested, and approved

of, this instruction. Defendant may not now harbor any claim

of error regarding this instruction as an appellate parachute.

See People v Carter, 462 Mich 206, 214; 612 NW2d 144 (2000).

possession of a firearm, arising out of a robbery during which

the victim “was shot once in the heart and once in the

abdomen, and then thrown headfirst into a sewer to die.” Id.

at 696 (BRICKLEY , J.). He survived the attack, but suffered

from irreversible heart problems from that time until his

death four years later. Id. at 696-697. The defendants were

then prosecuted for felony murder and felony-firearm. Id. In

a joint trial with separate juries, one defendant was

convicted of felony murder and felony-firearm, while the other

defendant was convicted of felony murder only. Id. at 698.

The defendants appealed, and the Court of Appeals held that

the prosecution and conviction of both defendants for felony

murder was not precluded by double jeopardy. The Court of

Appeals reversed the second conviction and the sentence for

felony-firearm, on the basis that it was precluded by double

jeopardy protections. Id. at 698. The Court of Appeals also

concluded, in light of the felony-murder conviction, that both

defendants’ prior convictions and sentences for armed robbery

and assault with intent to commit murder were violative of the

protection against multiple punishments and should be vacated

and set aside, the time having been served by them credited to

the sentences imposed as a result of their earlier

convictions. Id. at 699.

This Court affirmed in part and reversed in part, holding

that it was not a violation of the Double Jeopardy Clause to

charge, try, and convict these defendants of felony murder

after prosecution for the other crimes arising out of the same

conduct. Id. at 704-705. This Court went on to analyze the

“constitutional implications” of the penalties imposed on the

defendants for the previous crimes in light of the felony

murder conviction. Id. Reversing in part the Court of

Appeals decision, this Court also held that since the felony

murder conviction did not amount to a double jeopardy

violation, it followed that the accompanying felony-firearm

conviction was valid as well.

Thus, in Harding, this Court had occasion to consider

whether a multiple punishment problem that arises when

punishments are exacted in successive trials should be treated

in the same manner as when multiple punishments are exacted in

a single trial. The Court stated:

We conclude that double jeopardy protection

dictates that defendants not receive a form of

multiple punishment that could not have been

exacted had their felonious intentions been

realized sooner and had they been prosecuted to the

extent of their ultimate culpability in the first

trial. They were not placed in jeopardy twice by

the second prosecution . . . ; rather, they were

subjected to punishment for offenses arising out of

a single transaction that could not have been

exacted in a single proceeding. [Id. at 715-716.]

In separate opinions, a majority of the Harding Court

recognized that the same guiding principles apply in both

situations.9

Harding also stated that, in cases in which no successive

prosecutions problem arises, but in which a defendant has been

punished doubly “for offenses arising out of a single

transaction but that could not have been exacted in a single

proceeding,” it is an appropriate remedy in a multiple

punishment double jeopardy violation to affirm the conviction

of the higher charge and to vacate the lower conviction. Id.

at 716; see also Jones v Thomas, 491 US 376, 381-382; 109 S Ct

2522; 105 L Ed 2d 322 (1989). Likewise, we believe that

Harding can be extended to cases, such as the instant one, in

which the multiple punishments problem does not arise in the

first trial because of the declaration of a mistrial. Had the

jury not deadlocked on the second-degree murder charge, but,

instead had convicted the defendant of involuntary

manslaughter, punishment could have been exacted in a single

trial and the multiple punishment remedy would have been to

Thus, in cases involving the double jeopardy

protection against double punishment, although we

have not decided a case involving both successive

prosecutions and multiple punishment as in Garrett

[v United States, 471 US 773; 105 S Ct 2407; 85 L

Ed 2d 764 (1985)], it is clear that we have

interpreted the Michigan Constitution consistently

with the United States Supreme Court’s

interpretation of the federal constitution–

legislative intent controls. [Id. at 708 (opinion

of BRICKLEY , J.).]

affirm the greater conviction. This fact, coupled with the

fact that the second trial was permissibly brought out of

manifest necessity, supports the conclusion that, for

constitutional purposes, defendant’s conviction for

involuntary manslaughter should stand, and his conviction of

negligent homicide should be vacated. We therefore reverse

the Court of Appeals decision, reinstate defendant’s

conviction and sentence for involuntary manslaughter, and

vacate his conviction and sentence for negligent homicide.

III

Apart from the constitutional issues of double jeopardy

discussed above, however, we are also faced with the

applicability of MCL 768.33 to the present case. Section 33

provides:

When a defendant shall be acquitted or

convicted upon any indictment for an offense,

consisting of different degrees, he shall not

thereafter be tried or convicted for a different

degree of the same offense; nor shall he be tried

or convicted for any attempt to commit the offense

charged in the indictment or to commit any degree

of such offense.

The application of this statute to the present case was first

raised by Judge WHITE in her concurring Court of Appeals

opinion.

According to Judge WHITE , because the defendant should not

have been tried for involuntary manslaughter after being

convicted of negligent homicide, the involuntary manslaughter

conviction was improper. Instead, Judge WHITE would have

affirmed the defendant’s negligent homicide conviction and

vacated his involuntary manslaughter conviction. Essentially,

then, Judge WHITE ’s opinion suggests that MCL 768.33 justifies

departure from the generally accepted remedy for multiple

punishments, see Harding, supra, and requires affirmance of

the lesser conviction rather than the greater.

While we acknowledge that MCL 768.33 may affect the

prosecutor’s ability to retry a defendant for a crime in

instances where the defendant has previously been convicted of

a lesser-included offense of that crime, we hold that MCL

768.33 is inapplicable to the facts of this case. Thus, we

believe that the appropriate remedy is to affirm the

defendant’s involuntary manslaughter conviction and vacate his

negligent homicide conviction.

In reviewing questions of statutory construction, our

purpose is to discern and give effect to the Legislature's

intent. People v Morey, 461 Mich 325, 329-330; 603 NW2d 250

(1999). “We begin by examining the plain language of the

statute; where that language is unambiguous, we presume that

the Legislature intended the meaning clearly expressed–no

further judicial construction is required or permitted, and

the statute must be enforced as written.” Id. at 330. “We

must give the words of a statute their plain and ordinary

meaning . . . .” Id.

The plain language of § 33 provides that a defendant

shall not be tried or convicted for a different degree of the

“same offense” for which he has been acquitted or convicted

upon any indictment. In the present case, the only acquittals

or convictions the defendant received were upon an indictment

for OUI causing death.10 He was not thereafter tried for a

different degree of OUI causing death. Therefore, he was not

subsequently tried for a different degree of the same offense.

Judge WHITE ’s opinion implies that the defendant’s

conviction of negligent homicide upon an indictment for OUI

causing death barred subsequent trials (including a retrial)

for any charges that would include negligent homicide as a

lesser offense.11 We respectfully disagree. The plain

language of § 33 ties the “offense, consisting of different

10
In association with the OUI causing death charge, the

defendant was convicted of negligent homicide as a lesser
included offense and was thereby implicitly acquitted of OUI

causing death.

11
We note that the complicated question arises partially

from the fact that the jury was instructed that a homicide

offense, negligent homicide, was also a lesser-included

offense of OUI causing death. Our opinion should not be read

as holding that negligent homicide is a lesser-included

offense of OUI causing death. Rather, we are merely

addressing the issues as they pertain to the prosecution of

the defendant and the punishments he actually received.

degrees” to the indictment under which a defendant is

convicted, not to the particular crime of which he is

ultimately convicted. This becomes apparent when the statute

is read in its entirety. In the first part of § 33, the

phrase “for an offense, consisting of different degrees”

immediately follows, and modifies, the word “indictment.”

Moreover, the second half of the statute clearly refers to a

subsequent trial or conviction regarding “the offense charged

in the indictment.” MCL 768.33 (emphasis added).

Further, in Michigan, a prosecution must be based on an

information or an indictment. MCR 6.112(B). The word

“indictment” includes information, presentment, complaint,

warrant and any other formal written accusation. MCL 750.10;

see also People v Grove, 455 Mich. 439, 459, n 24; 566 NW2d

547 (1997). The term "indictment" is to be treated as also

referring to charges made by the filing of an information.

People v Russo, 439 Mich 584, 588, n 1; 487 NW2d 698 (1992);

see also MCL 767.2. “Each count in an indictment is regarded

as if it was a separate indictment.” People v Vaughn, 409

Mich 463, 465; 295 NW2d 354 (1980).

In essence, defendant here was originally tried under

three separate charges, or “indictments”: second-degree

murder, OUI causing death, and driving on a suspended driver’s

license. At his first trial, defendant was convicted of

negligent homicide. However, this conviction was based upon

count II (OUI causing death) of a three-count information.

Because the focus of § 33 is on the offense charged in

the indictment, not on the offense for which a defendant is

ultimately convicted, defendant herein could not thereafter be

tried for a “different degree” of OUI causing death. At his

second trial, defendant was convicted of involuntary

manslaughter, as a result of being retried on the charge of

second-degree murder, a charge upon which the jury in

defendant’s first trial expressly deadlocked.

The issue then becomes whether OUI causing death and

second-degree murder or involuntary manslaughter constitute

“different degrees” of the same offense. We conclude that

they clearly do not, and are thus persuaded that this lack of

relationship serves to negate the application of § 33 under

the circumstances of the present case.

IV. CONCLUSION

We conclude that it was appropriate for the prosecutor to

retry defendant for second-degree murder in a subsequent

trial, after the jury deadlocked on that count after the first

trial. The prosecutor’s retrial of defendant on the charge of

second-degree murder was the result of manifest necessity, and

therefore not in violation of double jeopardy principles aimed

at multiple prosecutions.

We thus reverse the judgment of the Court of Appeals and

reinstate defendant’s conviction and sentence for involuntary

manslaughter. However, because defendant received

inappropriate multiple punishments for involuntary

manslaughter and negligent homicide, we vacate his conviction

and sentence for negligent homicide.

CORRIGAN , C.J., and CAVANAGH , WEAVER , KELLY , TAYLOR , and YOUNG ,

JJ., concurred with MARKMAN , J.

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