                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     April 5, 2016
               Plaintiff-Appellee,

v                                                                    No. 324018
                                                                     Wayne Circuit Court
THEODORE PAUL WAFER,                                                 LC No. 14-000152-FC

               Defendant-Appellant.


Before: STEPHENS, P.J., and HOEKSTRA and SERVITTO, JJ.

SERVITTO, J. (dissenting in part and concurring in part).

        I respectfully dissent from the majority’s conclusion that defendant’s convictions for both
statutory involuntary manslaughter and second-degree murder, arising from the death of one
victim, do not violate the double jeopardy prohibition against multiple punishments for the same
offense. In all other respects, I concur with the majority.

       The majority sets forth the correct analysis to use in order to determine whether dual
convictions violate the “multiple punishments” prohibition of double jeopardy. As stated in
People v Miller, 498 Mich 13, 18; 869 NW2d 204 (2015), the multiple punishments strand of
double jeopardy is not violated if the Legislature specifically authorizes cumulative punishment
under two statutes. And, where the Legislature expresses a clear intention in a statute to prohibit
multiple punishments, “it will be a violation of the multiple punishments strand for a trial court
to cumulatively punish a defendant for both offenses in a single trial.” Id. Thus:

       when considering whether two offenses are the “same offense” in the context of
       the multiple punishments strand of double jeopardy, we must first determine
       whether the statutory language evinces a legislative intent with regard to the
       permissibility of multiple punishments. If the legislative intent is clear, courts are
       required to abide by this intent. If, however, the legislative intent is not clear,
       courts must then apply the abstract legal elements test articulated in [People v]
       Ream[, 481 Mich 223; 750 NW2d 536 (2008)] to discern legislative intent.
       [Miller, 498 Mich at 19].

I disagree, however, with the majority’s conclusion that neither the statute governing second
degree murder, MCL 750.317, nor the statute governing involuntary manslaughter, MCL
750.329(1), plainly evince a legislative intent with respect to multiple punishments. Because of


                                                -1-
my disagreement, I would further find that the test articulated in Ream, supra, need not be
utilized.

        MCL 750.317 states, simply, that “[a]ll other kinds of murder shall be murder of the
second degree, and shall be punished by imprisonment in the state prison for life, or any term of
years, in the discretion of the court trying the same.” While this statute itself does not define
what, exactly, constitutes second degree murder, or articulate the specific elements necessary to
convict a defendant of the crime, it is long familiar that second degree murder finds its genesis in
the common law. See, People v King, 58 Mich App 390, 401; 228 NW2d 391 (1975). Indeed, at
common law, “murder” embraced all unlawful killing done with malice aforethought. People v
Scott, 6 Mich 287, 292 (1859). As explained in Scott,

       Murder under our statute embraces every offense which would have been murder
       at common law, and it embraces no other crime. But murder is not always
       attended with the same degree of wicked design, or, to speak more accurately,
       with the same degree of malice. . . .

       The statute, recognizing the propriety of continuing to embrace within the same
       class all cases of malicious killing, has, nevertheless, divided these offenses into
       different grades for the purposes of punishment, visiting those which manifest
       deep malignity with the heaviest penalties known to our law, and punishing all the
       rest according to a sliding scale, reaching, in the discretion of the court, from a
       very moderate imprisonment to nearly the same degree of severity prescribed for
       those convicted of murder in the first degree. Each grade of murder embraces
       some cases where there is a direct intent to take life, and each grade also embraces
       offenses where the direct intent was to commit some other crime. . . .

       . . . we hold murder in the first degree to be that which is willful, deliberate, and
       premeditated, and all other murders to be murder in the second degree . . . .

       [Scott, 6 Mich at 292-294]

Thus, it is hardly a new principle that both at common law and today, one of the elements of
second degree, or common-law, murder is malice. People v Goecke, 457 Mich 442, 463; 579
NW2d 868 (1998). The malice necessary to support second-degree murder “is defined as the
intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and wilful
disregard of the likelihood that the natural tendency of such behavior is to cause death or great
bodily harm.” Id. at 466.

        The manslaughter statute, MCL 750.329(1), provides that “[a] person who wounds,
maims, or injures another person by discharging a firearm that is pointed or aimed intentionally
but without malice at another person is guilty of manslaughter if the wounds, maiming, or
injuries result in death.” The clear language in MCL 750.329(1) clearly and specifically
excludes a mens rea of malice. And, the common-law definition of manslaughter is “the
unintentional killing of another committed with a lesser mens rea [than the malice required for
murder] of gross negligence or an intent to injure[.]” People v McMullan, 284 Mich App 149,



                                                 -2-
152; 771 NW2d 810 (2009) (internal quotations and citation omitted), aff’d 488 Mich 922
(2010).

       There would have been no need to add the limitation “but without malice” in the
manslaughter statute had the Legislature intended to authorize dual punishments for both second
degree murder and manslaughter under these circumstances. Rather, the Legislature would have
simply remained silent on the mens rea element. The fact that it did not do so supports a
conclusion that the Legislature expressed a clear intent in the manslaughter statute to prohibit
multiple punishments for manslaughter and murder. See Miller, 498 Mich at 18. And, we must
presume that the Legislature “knows of the existence of the common law when it acts.” People v
Moreno, 491 Mich 38, 46; 814 NW2d 624 (2012). Thus, in enacting the manslaughter statute,
the Legislature was well aware that second degree murder, at common law and continuing today,
required a malice element and expressly and purposely excluded this element from the
manslaughter statute as a distinguishing feature.

        Given the Legislature’s awareness of the requisite element of malice for second degree
murder and its express exclusion of a malice element in the manslaughter statute, I would find
that the Legislature expressed a clear intent in MCL 750.329(1) to prohibit multiple punishments
for these two crimes. Defendant’s convictions of and punishments for both second degree
murder and manslaughter in the death of one person thus violated the multiple punishments
strand of double jeopardy. Miller, 498 Mich at 18. I would therefore vacate defendant’s
manslaughter conviction on double jeopardy grounds and, on remand, direct the trial to consider
(in addition to the Lockridge1 sentencing issue) what effect, if any, vacating the manslaughter
conviction has on defendant’s appropriate sentence.



                                                           /s/ Deborah A. Servitto




1
    People v Lockridge, 498 Mich 358; 870 NW2d 502(2015).


                                              -3-
