                             STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  July 26, 2016
               Plaintiff-Appellee,

v                                                                 No. 326159
                                                                  Eaton Circuit Court
STARR LYNN KIOGIMA,                                               LC No. 14-020114-FC

               Defendant-Appellant.


Before: TALBOT, C.J., and HOEKSTRA and SHAPIRO, JJ.

SHAPIRO, P.J. (dissenting)

         I respectfully dissent. Because there is insufficient evidence of malice as defined in
People v Goecke, 457 Mich 442; 579 NW2d 868 (1998), I would vacate defendant’s second-
degree murder conviction, MCL 750.317. I would, however, affirm her conviction of operating
a motor vehicle under the influence (OUIL) causing death, MCL 257.625(4), and her sentence of
10 to 15 years imprisonment on that conviction.1
         In addition, I write to respectfully suggest that the Michigan Supreme Court further
clarify the legal standards to be applied in determining when a defendant may be charged with
and convicted of second-degree murder arising out of a drunk-driving fatality. The Supreme
Court first allowed such common-law prosecutions in Goecke in 1998. In my view, the
common-law standards defined in Goecke are too imprecise to provide sufficient guidance to
juries, and so challenge the principle of consistent application of a defined rule of law.
                        I. BASIS FOR DEFENDANT’S CONVICTION

        Defendant’s actions led to her daughter’s tragic and unnecessary death. Defendant’s
blood alcohol count was .21 shortly after the crash that occurred around 1:30 p.m. According to
her statement to the police at the scene, defendant drank very heavily the previous night before
going to bed at 4:00 a.m. and when she woke up at 8:00 a.m. she did not think she was still
drunk. It appears the effects of the alcohol may have been mitigated by the fact that defendant,




1
 Given this result, I would not reach the additional questions presented in defendant’s brief on
appeal.



                                              -1-
an alcoholic, had a high tolerance, but her blood alcohol content was nevertheless a particularly
high level, more than twice the legal limit.

       After waking, defendant stated that she got her older daughter off to school, prepared a
lunch for her husband, and drove to his worksite to drop it off. Defendant’s four-year-old
daughter was in a booster seat in the backseat of defendant’s vehicle. On the way home,
defendant stopped for gas and bought her daughter some candy. She stated that she put her
daughter back in the booster seat and buckled her in with the seat belt, but not the shoulder
harness, and she presented expert testimony to that effect. The prosecution, however, presented
testimony from an expert that the child was not buckled in at all.

        There was conflicting evidence as to defendant’s speed while she was driving on the
entrance ramp. Several witnesses testified that she was driving under the posted limit, whereas
an accident reconstructionist testified that she was traveling 76 to 79 miles per hour. On the
ramp, defendant opened the candy and turned to hand it to her daughter who had been asking for
it. Defendant took her eyes off the road at that moment. The vehicle traveled onto the grassy
divider between the entrance ramp and the right lane of the highway and defendant lost control
of it. In the resulting rollover crash, defendant’s daughter was thrown from the vehicle and
killed.

        In order to convict defendant of second-degree murder, the prosecution had to prove that
she acted with malice. In Michigan, malice sufficient to convict a defendant of second-degree
murder is defined by common law, not by statute. Malice takes three forms: “the intent to kill,
the intent to inflict great bodily harm, or the intent to create a very high risk of death or great
bodily harm with the knowledge that death or great bodily harm is the probable result.” People v
Dykhouse, 418 Mich 488, 495; 345 NW2d 150 (1984). In this case, the prosecution did not
allege that defendant specifically intended to kill or inflict great bodily harm, or any harm, on her
daughter. Defendant was charged solely on the basis of the third form of malice, i.e., “the intent
to create a very high risk of death or great bodily harm with the knowledge that death or great
bodily harm is the probable result.” Traditionally, this form of malice is the basis for depraved-
heart murder.2

        In Goecke, our Supreme Court held that “drunk driving alone is [not] sufficient to
establish probable cause of malice.” Goecke, 457 Mich at 469. Nevertheless, the Court held that
second-degree murder may be charged where the drunk driver’s other actions are such that,
combined with the intoxication, a jury could find that the driver acted with “wanton and wilful
disregard of the likelihood that the natural tendency” of the defendant’s conduct was to cause
death or great bodily harm. Id. at 464, 468-469.




2
  The precise terms used to define malice sufficient to convict a defendant of depraved-heart
murder are varied and, as discussed below, would benefit greatly from clarification. However,
regardless of which variation is used, I do not believe that sufficient evidence was presented to
demonstrate that defendant acted with malice in this case.



                                                -2-
      In Goecke there were three cases consolidated for appeal: People v Goecke, People v
Hoskinson, and People v Baker. An examination of the facts in each case is helpful.

       In Hoskinson:
       Defendant was staggering when he left the bar [after drinking for two hours].
       Testimony indicated that defendant may have refused the offer of one of his
       friends to drive. Defendant twice drove his vehicle into a parked car while trying
       to leave the parking lot. He next drove through a residential neighborhood at
       speeds of approximately forty to sixty miles an hour. Speed dips were located at
       almost every intersection throughout this neighborhood. Defendant had driven
       down this street numerous times and was aware of the speed dips.

               A vehicle traveling westbound just ahead of the defendant was stopped at
       a stop sign. Defendant swerved into the eastbound lane and passed the stopped
       vehicle, and then immediately swerved back into the westbound lane in order to
       avoid hitting an oncoming vehicle. Defendant hit a speed dip and lost control of
       his vehicle. He hit the westbound curb, swerved left, then swerved right, and
       struck a car parked on the right side of the street. Defendant jerked his wheel to
       the left, accelerated, drove across the eastbound lane, over the curb, and across
       some grass where he hit [a] four-year-old [child] who was riding her tricycle on
       the sidewalk. . . .

               An officer who was called to the accident scene testified that defendant
       approached him and admitted that he was the driver. A blood alcohol test
       disclosed that defendant’s blood alcohol level was 0.22 percent. In a statement to
       the police, defendant admitted that he knew he was drunk when he left the bar and
       that he was driving too fast. Testimony indicated that before the accident
       occurred the occupants of defendant’s car told defendant to slow down. [Goecke,
       457 Mich at 454-455.]

          In Goecke, the defendant drank approximately seven to nine bottles of beer while sitting
in his car in the parking lot of a liquor store. Id. at 448. When a police car drove into the lot, the
defendant drove off in order to find a different place to drink and continued to drink while he
drove around. Id. at 449. Later, while doing an estimated 70 to 80 miles per hour on a city road,
the defendant nearly struck a van. Id. The van driver attempted to tell the defendant to slow
down. Id. There was also testimony that the defendant thereafter drove through a red light
without hitting anyone and that he then drove through a second red light, this time striking a
vehicle and killing its driver. Id. at 449-450. “Approximately fifteen to twenty empty beer
bottles were observed on the floor of the defendant’s car.” Id. at 450. At the scene of the
accident the defendant stated: “I was going way too . . . fast. I have had to[o] . . . much to drink
. . . . I should not have been driving. I know I’m drunk.” Id. (first alteration added).

       The defendant in Baker, like the defendants in Goecke and Hoskinson, was driving
excessively fast—he was driving at twice the speed limit on a city road while intoxicated. Id. at
451. He approached an intersection where he had a red light. Id. at 451, 471. He saw multiple
cars crossing the intersection directly in front of him as he sped towards it. Id. at 471.
Nevertheless, without braking, the defendant continued into the intersection at about 70 miles per


                                                 -3-
hour. Id. at 452-453 n 7. The defendant narrowly avoided hitting two cars before striking a third
and killing its driver and passenger. Id. at 451.

       After examining the facts of each case, the Goecke Court concluded that the defendants’
convictions were justified by behavior that rose to a level of culpability beyond that
demonstrated only by driving while intoxicated. Id. at 469-473. The facts in those cases,
however, are far afield from the facts in the instant case. In the Goecke cases, the defendants
were operating their vehicles at high speed on local streets and repeatedly ignored traffic control
devices at busy intersections. They failed to stop at crashes and/or near misses that occurred just
minutes or seconds before the fatal crash, despite the fact that these events could not have left
any doubt that continued driving represented a clear and present danger. Two of the Goecke
defendants were warned by occupants of their vehicle or other vehicles that they were unfit to
drive and their driving was out of control. In sum, the Goecke defendants did not merely ignore
the general risk of driving while intoxicated. They also ignored the immediate and direct
evidence that their driving on that particular journey had already nearly resulted in catastrophe
and that the likelihood of serious injury or death was not merely a possibility but was extremely
probable absent an immediate change.

        In the instant case, however, the facts do not rise to that level of culpability. There was
no evidence that defendant had a prior accident or near miss that morning. There was no
evidence that anyone urged her to stop driving.3 There was no evidence of her having driven
recklessly until the incident on the entrance ramp. Nor was there any evidence that she had ever
been ticketed or arrested for drunk driving prior to this incident. See People v Werner, 254 Mich
App 528, 531, 534; 659 NW2d 688 (2002) (upholding a second-degree murder conviction when
the facts showed that the defendant drove drunk despite knowledge that drinking heavily had
caused him to black out in the recent past). Defendant’s daughter’s death was caused by four
things: (1) defendant’s consumption of alcohol and prescription drugs, (2) defendant’s failure to
properly seatbelt her daughter into her the booster seat,4 (3) defendant’s failure to keep her eyes
on the road while on the highway entrance ramp, and (4) her speed on the entrance ramp of six to
nine miles over the speed limit. Under such circumstances, defendant’s actions were grossly



3
  To the contrary, a gas station clerk and a store owner who saw defendant that morning before
the crash testified that they did not think she was drunk or should not be driving.
4
   The prosecution placed great emphasis on defendant’s failure to properly seatbelt her daughter.
While failing to do so had a catastrophic result and was negligent, I question whether it can be
legally viewed as evidence of malice. By statute, failing to properly restrain a child in a vehicle
is a civil infraction, not a crime. See MCL 257.710d (child less than four years old) and MCL
257.710e(5) (children between the ages of four and sixteen). The failure to do so “may be
considered evidence of negligence.” MCL 257.710e(7). However, the recovery of damages for
such negligence shall not be reduced by more than 5%. MCL 257.710e(7). Moreover, the
requirement that children be seat belted is still not universal. For instance, our law does not
require children to be seat belted on school buses or taxicabs. MCL 257.710d(3); MCL
257.710e(1) and (2).




                                                -4-
negligent, but did not rise to the level of malice necessary for depraved-heart murder.
Accordingly, I would vacate her second-degree murder conviction.

             II. THE NEED FOR CLARIFICATION OF THE GOECKE STANDARD

       Beyond the appeal we decide today, this case serves to point out the need for additional
guidance from the Supreme Court. Since Goecke was decided in 1998, there has been a dearth
of caselaw addressing the meaning of depraved-heart murder within the specific context of
drunk-driving fatalities.

         Depraved-heart murder has always been a nebulous concept. Until Goecke, however, its
application appears to have been limited to factual scenarios that were so clear that the vagueness
of the concept could be ignored. Classic examples of depraved-heart murder include firing a
bullet into a room that the defendant knows is occupied by several people, starting a fire at the
door of an occupied dwelling, or shooting into a moving vehicle. See 2 LaFave, Substantive
Criminal Law (2d ed), § 14.4, p 440.5 In such situations, the likelihood of death or injury is
overwhelming; indeed, absent particularly good fortune someone is almost certain to be hurt or
killed. Moreover, anyone taking the action would or should know this to be the case. An
observer need not know whether someone was ultimately hurt to know that any person who
commits such an act does so with a depraved heart, one which is at best indifferent to the death
or infliction of injury on others. Indeed, few would dispute that where no injury results, a person
who takes such action could properly be charged with attempted murder.

        In other circumstances, distinguishing between gross-negligence manslaughter and
depraved-heart murder is far more difficult. While we do not expect every jury to think
identically, the rule of law depends on our ability to trust that the law is sufficiently clear so that
two juries that reach identical factual findings will reach the same verdict absent nullification.
Jurors are to judge facts, not law. The problem was well-articulated by the Mississippi Court of
Appeals in Johnson v State, 52 So3d 384, 399-400 (2009):

         It is apparent that even the trained legal professionals . . . grappl[e] with
         determining a clear distinction between a depraved-heart murder of a specific


5
    2 LaFave, Substantive Criminal Law (2d ed), § 14.4, pp 440-441 provides:
                The following types of conduct have been held, under the circumstances,
         to involve the very high degree of unjustifiable homicidal danger which will do
         for depraved-heart murder: firing a bullet into a room occupied, as the defendant
         knows, by several people; starting a fire at the front door of an occupied dwelling;
         shooting into the caboose of a passing train or into a moving automobile,
         necessarily occupied by human beings; throwing a beer glass at one who is
         carrying a lighted oil lamp; playing a game of “Russian roulette” with another
         person; shooting at a point near, but not aiming directly at, another person;
         driving a car at very high speeds along a main street; shaking an infant so long
         and so vigorously that it cannot breathe; selling “pure” (i.e., undiluted) heroin.




                                                 -5-
       individual and the lesser offense of manslaughter. . . . Presiding Justice Hawkins
       was prophetic when he stated that “[w]hether [a] defendant is convicted of murder
       or manslaughter will depend upon the whim or circumstance of the jury hearing
       the case, not upon understandable instructions delineating what constitutes each
       crime.” [quoting Windham v State, 602 So 2d 798, 805 (1992) (emphasis
       added).]6

       The problem of defining the difference between gross-negligence manslaughter and
depraved-heart murder is at its most confounding in the context of drunk-driving fatalities. The
personal misery and social costs of drunk driving is beyond debate, and deterrence through the
application of the criminal law is necessary. However, in our evidence-based system, we must
not ignore that the likelihood that any single drunk driving incident will result in injury or death
is of a fundamentally different order than that present in activities such as setting fire to an
occupied dwelling or shooting into a crowded room.7 This comparison is not intended to
minimize the terrible cost these crashes incur nor to suggest that Michigan should not vigorously
seek to eliminate drunk-driving incidents altogether. However, it helps to demonstrate the
complexity of the problem of determining (non-retrospectively) whether the driver was
negligent, grossly negligent, or acted with a depraved heart.8
        The lack of clarity regarding this form of common-law murder is demonstrated by the
inability of the courts and commentators to settle on the definition of the required intent.



6
  See also 2 LaFave, Substantive Criminal Law, § 14.4, pp 437-438 (“The distinction between an
unreasonable risk and a high degree of risk and a very high degree of risk are, of course, matters
of degree, and there is not exact boundary line between each category; they shade gradually like
a spectrum from one group to another. Some have thus questioned whether this is a sound basis
upon which to make the important distinction between murder and manslaughter.”).
7
  It appears that alcohol-related injury crashes and alcohol-related fatal crashes in Michigan
occur at the rate of about 1 in 500 and 1 in 25,000 respectively. According to the Center for
Disease Control and Prevention, Michigan has approximately 497 alcohol-impaired driving
incidents     annually     per     1,000      members      of     the    population.           See
http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6430a2.htm, last accessed July 18, 2016.
This means that, with a population of just under 10 million, Michigan has nearly 5 million
alcohol-impaired driving incidents per year, out of which, thankfully, only a very small
percentage result in crashes causing injury and a far smaller percentage result in crashes causing
death. According to Michigan Traffic Crash Facts (MTCF), in 2015 the total number of alcohol-
related crashes was 9,537 and the total number of alcohol-related fatal crashes was 271. See
http://publications.michigantrafficcrashfacts.org/2015/At_a_Glance_2015.pdf, last accessed July
11, 2015.
8
  It may be that the difficulty in determining intent was a reason that the Legislature adopted
MCL 257.625(4), which defines a standard penalty for all drunk-driving caused deaths regardless
of intent. The statute provides for a 15 year term unless the driver’s blood alcohol level is
greater than .17%, in which case the term is 20 years. Id.



                                                -6-
According to Black’s Law Dictionary (5th ed), a depraved mind exhibits: “ill will, hatred, spite
or evil intent.” Our caselaw offers several other variations. In People v Aaron, 409 Mich 672,
728; 299 NW2d 304 (1980), the Supreme Court stated:

       malice is the intention to kill, the intention to do great bodily harm, or the wanton
       and willful disregard of the likelihood that the natural tendency of defendant’s
       behavior is to cause death or great bodily harm.

In Dykhouse, 418 Mich at 495, the Court defined depraved-heart murder as requiring “the intent
to create a very high risk of death or great bodily harm with the knowledge that death or great
bodily harm is the probable result.” Next, the jury instruction on second-degree murder provides
that the third-method of establishing malice, i.e. depraved-heart malice, exists if the defendant:

       knowingly created a very high risk of death or great bodily harm knowing that
       death or such harm would be the likely result of [her] actions. [M Crim JI 16.5.]

Further, in Goecke, our Supreme Court quoted the language from Aaron requiring “wanton and
willful conduct.” Goecke, 457 Mich at 464. However, the Court also expressly approved the
definition of malice from People v Fuller, 86 Cal App 3d 618, 628; 150 Cal Rptr 515 (1978),
which provided that “malice may be implied when the defendant does an act with a high
probability that it will result in death and does it with a base antisocial motive and with wanton
disregard for human life.” Goecke, 457 Mich at 467 (emphasis added). The Goecke Court
further noted the language in Fuller was meant to supplement, not supplant the requirement that
the conduct be done with a wanton and willful disregard for the act’s natural tendency to cause
death or great bodily harm. Id. at 467 n 31.
        That these standards are inconsistent demonstrates both the nebulous nature of the charge
and the need for clarification from our high court.9 They also demonstrate that our common law
seems to leave the distinction between gross-negligence manslaughter and depraved-heart
murder to the whims, emotions, and idiosyncrasies of a given jury rather than to a clear rule of
law. It is basic to our system of justice that we ask juries to determine facts, but that the law
defines the crime to which those facts attach. When it comes to depraved-heart murder, at least
in the context of drunk driving, two juries could be presented with the exact same set of
uncontested facts and could rationally reach different verdicts, one finding manslaughter and one
finding depraved-heart murder, not because they see the facts differently, but because they see
the legal nature of the crime differently. The legal distinction between gross negligence and the




9
  I would respectfully suggest that the jury be instructed that the defendant’s actions must pose a
“near certainty” of serious injury or death and that the jury be specifically instructed that they are
to determine defendant’s intent strictly as of the time he took his actions, i.e. before the actual
harm occurred. If the actual harm is considered it is difficult to see how a jury could ever find no
intent, even if the pre-harm risk was modest.



                                                 -7-
present depraved-heart standards is so porous as to effectively allow each jury to create its own
set of instructions. 10
                                       III. CONCLUSION

        In this case, I would conclude that insufficient proofs of depraved-heart murder were
submitted. Accordingly, I would vacate defendant’s murder conviction while affirming her
OUIL causing death conviction for which she was sentenced to a term of 10 to 15 years in
prison.

                                                            /s/ Douglas B. Shapiro




10
   I am not suggesting that defendant’s subjective awareness of the danger posed her behavior is
relevant. Since voluntary intoxication is not a defense to murder, Goecke, 457 Mich at 464, if
someone shoots a gun into a crowded room in a drunken state it is not a defense to murder, at
least in Michigan, that he was too drunk to properly consider the risks. The question therefore, at
least where a defendant claims that voluntary intoxication clouded his ability to comprehend the
risk, is whether the actions, if taken by someone who did understand the risks would demonstrate
an unambiguous willingness to cause death or great bodily harm.




                                                -8-
