**_______________________________** Michigan Supreme Court Lansing, Michigan 48909

Chief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

Stephen J. Markman

**FILED FEBRUARY 4, 2004**

**PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee/**  **Cross-Appellant,**

**v No. 120107**  **JOSEPH CARL WEEDER, Defendant-Appellant/**  **Cross-Appellee.**

**PER CURIAM This case presents the question whether a driver**  **charged with second-degree murder following an auto-related death must receive a negligent homicide instruction.**  **Following** People v McIntosh **, 400 Mich 1; 252 NW2d 779 (1977), the Court of Appeals answered yes. We overrule**  McIntosh **and remand to the Court of Appeals for further review.**  **Defendant seeks to appeal the Court of Appeals affirmance of two convictions for operating a vehicle while** **under the influence of intoxicating liquor and thereby causing death, MCL 257.625(4); two convictions for first**  **degree fleeing and eluding, MCL 750.479a(5); and one conviction for operating a motor vehicle while license**  **suspended, subsequent offense, MCL 257.904(3)(b). Defendant was also convicted on two counts of involuntary**  **manslaughter, MCL 750.321, which convictions the Court of**  **Appeals reversed. The prosecutor seeks to appeal the reversal of the involuntary manslaughter convictions. The**  **significant question presented is whether defendant was entitled to an instruction on negligent homicide, MCL**  **750.324, as the Court of Appeals concluded. Because the Court of Appeals relied on**  People v McIntosh **, supra, which we believe does not properly construe MCL 750.325, we vacate**  **the Court of Appeals reversal of defendant's involuntary manslaughter convictions and remand the case to that Court**  **for further consideration in light of this opinion. We are not persuaded that the questions presented by defendant in**  **his application merit further review; therefore, except as discussed below, defendant's application is denied.** 

**I While intoxicated, defendant fled from a police officer**  **who was attempting to effectuate a traffic stop. Defendant fled at high speeds, at times through residential areas,**  **failed to stop at a stop sign and a traffic signal, almost** 2**struck two vehicles, and eventually struck another vehicle, killing its two occupants. Defendant was charged with two**  **counts of second-degree murder, MCL 750.317; two counts of operating under the influence and causing death; two counts**  **of first-degree fleeing and eluding; and operating a motor vehicle with a suspended license, second or subsequent**  **offense. In connection with the second-degree murder charge,**  **defendant requested jury instructions on involuntary manslaughter and negligent homicide, MCL 750.324. The trial**  **court instructed on involuntary manslaughter as defendant requested, but refused to instruct on negligent homicide**  **because the court did not view the evidence in the case as supporting that instruction. The jury convicted defendant**  **of two counts of involuntary manslaughter rather than second-degree murder, and otherwise convicted defendant as**  **charged. The Court of Appeals agreed with defendant's lead issue**  **on appeal that he was denied a fair trial because of the**  **trial court's refusal to instruct on negligent homicide. The Court found**  McIntosh **, to be dispositive. 1**  **The Court**

1 **The Court of Appeals quoted the following from** People v McIntosh **: “[I]f the jurors are or should be permitted**  **to consider manslaughter committed with a motor** 3**reversed defendant's manslaughter convictions and ordered that they be replaced with negligent homicide convictions,**  **while giving the prosecutor the option of retrying defendant on the manslaughter charges. The Court rejected the rest of**  **defendant's claims on appeal.**

**II In this appeal we are concerned with the construction**  **of MCL 750.325, which reads: 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 proper construction of a statute is an issue that we review de novo.**  People v Jones **, 467 Mich 301, 304; 651 NW2d 906 (2002). Our goal in construing a statute is "to**  **ascertain and give effect to the intent of the Legislature."**  People v Pasha **, 466 Mich 378, 382; 645 NW2d 275 (2002). If the statute's language is clear and**  **unambiguous, we assume that t he Legislature intended its**  **plain meaning and we enforce the statute as written.** People v Stone **, 463 Mich 558, 562; 621 NW2d 702 (2001). In vehicle, then, pursuant to MCLA 750.325; MSA**  **28.557, they also should be permitted to consider negligent homicide.” [Unpublished opinion per**  **curiam, issued July 31, 2001 (Docket No. 217454), quoting**  McIntosh **, at 7].** 4**other words, when statutory language is unambiguous, judicial construction is not required or permitted because**  **the Legislature is presumed to have intended the meaning it plainly expressed.**  Id **. III**  **We find MCL 750.325 clear and unambiguous. The statute plainly deems the crime of negligent homicide (MCL 750.324)**  **to be included within every crime of manslaughter** charged **to have been committed in the operation of any vehicle.**  **Further, the statute clearly and unambiguously allows for**  **the conviction of negligent homicide in any case in which a defendant is**  charged **with manslaughter committed in the operation of any vehicle. The Legislature twice uses the**  **word "charged." Accordingly, for the statute to apply, a defendant must be**  charged **with manslaughter committed in connection with the operation of a vehicle. Here, however,**  **defendant was not charged with manslaughter. Defendant was charged with second-degree murder. It follows that MCL**  **750.325 does not apply in this case.**  **2 To the extent our conclusion is inconsistent with**  McIntosh **, we overrule that case.** McIntosh **concluded that because the jury had been given instructions on manslaughter** 

2 **We recognize that we reach the same result reached in** People v Jordan **, 347 Mich 347; 79 NW2d 873 (1956), which was overruled in**  McIntosh, supra **.** 5**as a lesser offense of murder, the jury should also have been instructed on negligent homicide under MCL 750.325.**  **The** McIntosh **Court reached this conclusion by concluding that the "better view" of MCL 750.325 "is that manslaughter**  **committed with a motor vehicle does not have to be formally pled in an information charging murder in order for the jury**  **to consider negligent homicide as a possible lesser offense." 400 Mich 7. In light of the clear and**  **unambiguous use of the word “charged” in the statute, it was unnecessary for the**  McIntosh **Court to consider what it thought was the “better view.” However, we agree with**  McIntosh **to the extent that it held that a defendant charged with the crime of murder is entitled to an instruction on**  **manslaughter if there is the necessary evidentiary support for the instruction. Although not based on**  McIntosh, **our decision in**  People v Mendoza **, 468 Mich 527; 664 NW2d 685 (2003), arrived at the same result.** 

**IV This is not the end of the analysis, however. The**  **result reached in** McIntosh **will still obtain if negligent homicide, MCL 750.324, is an inferior, or necessarily** **included lesser, offense of the charged offense of second degree murder, and if there is the necessary evidentiary**  **support for an instruction on negligent homicide.** People v Cornell **, 466 Mich 335; 646 NW2d 127 (2002); MCL 768.32(1).** 6**The Court of Appeals did not reach these issues because it relied on**  McIntosh **. Accordingly, we vacate the Court of Appeals reversal of the manslaughter convictions, and we**  **remand this case to that Court for reconsideration of defendant's argument in light of this opinion and the**  **principles established in** Cornell. **If, on remand, the Court of Appeals concludes that an instruction on negligent**  **homicide was warranted in this case, it must additionally consider, pursuant to**  Cornell, **whether the trial court committed error requiring reversal in failing to give the**  **instruction. 3** 

**V The foregoing discussion resolves the prosecutor's**  **cross-appeal. In addition to that appeal, we have considered the issues in defendant's appeal. Except as**  **discussed below, we conclude that defendant's arguments lack merit for the reasons stated by the Court of Appeals.**  **If on remand the Court of Appeals affirms defendant's convictions for involuntary manslaughter, it must also**  **consider defendant's challenge to his sentences of 15 to 221⁄2**

3 **The circuit court considered defendant's request for an instruction on negligent homicide, but determined that**  **the evidence did not support such an instruction. We note that an appellate court must find substantial evidence in**  **support of a requested instruction that was not given in order to reverse. See**  Cornell, supra **at 365-366.** 7**years, which the Court did not consider in light of its reversal of the manslaughter convictions. Further, because**  **the Court rejected defendant's supplemental argument for a new trial (based on new evidence involving a witness's**  **testimony in a subsequent civil proceeding), in part because it reversed defendant's manslaughter convictions, this issue**  **should be reconsidered on remand if the Court of Appeals affirms defendant's manslaughter convictions.** 

**VI The Court of Appeals decision reversing defendant's**  **manslaughter convictions is vacated, and this matter is remanded to the Court of Appeals for reconsideration of**  **defendant's manslaughter convictions consistent with this opinion. Defendant's remaining convictions and sentences**  **are affirmed, except as otherwise indicated in this opinion. MCR 7.302(G)(1).**  **Maura D. Corrigan Elizabeth A. Weaver**  **Clifford W. Taylor Robert P. Young, Jr.**  **Stephen J. Markman**

8**_______________________________ S T A T E O F M I C H I G A N** 
**SUPREME COURT**

**PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee/**  **Cross-Appellant,**

**v No. 120107**  **JOSEPH CARL WEEDER, Defendant-Appellant/**  **Cross-Appellee.**

**CAVANAGH, J. (** dissenting **). I would not decide this case by an opinion per curiam.**  **Because this case offers the opportunity to address a jurisprudentially significant issue, I prefer to grant leave to**  **appeal so that we might avail ourselves of full briefing and argument by the parties.**  **Preferences aside, however, I would limit the Court of Appeals reconsideration of defendant’s argument to the issue**  **whether there was the necessary evidentiary support for the negligent homicide instruction. The majority once again extends**  **the obiter dictum from** People v Cornell **, 466 Mich 335; 646 NW2d 127 (2002). I remain committed to the view that, when**  **requested, a jury may be instructed on offenses inferior to the charged offense if such an instruction is supported by the**  **evidence.** People v Mendoza **, 468 Mich 527, 549; 664 NW2d 685 (2003) (C**  **AVANAGH ,**  **J., concurring). Because the trial court previously determined that the evidence did not support a** **negligent homicide instruction, the only relevant inquiry is whether such a determination was erroneous.**  **Michael F. Cavanagh Marilyn Kelly**