Argued
on application for leave to appeal April 11, 2019.
Chief
Justice: Bridget M. McCormack, Chief Justice Pro Tem: David
F. Viviano, Justices: Stephen J. Markman Brian K. Zahra
Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh
BEFORE
THE ENTIRE BENCH
Romon
B. McBurrows was charged in the Monroe Circuit Court with one
count of delivery of a controlled substance causing death,
MCL 750.317a, in connection with the death of Nicholas
Abraham. Abraham, a resident of Monroe County, had driven an
acquaintance to a house in Wayne County where the
acquaintance bought heroin from defendant. Abraham and the
acquaintance used some of the heroin in a nearby parking lot
and then returned to their homes. Abraham was found
unresponsive the next morning and was pronounced dead later
that day. An autopsy concluded that Abraham had died from an
overdose of fentanyl, which is sometimes mixed with heroin.
Defendant filed a motion disputing Monroe County as a proper
venue, and the trial court, Daniel White, J., denied the
motion. Defendant then applied for leave to appeal on an
interlocutory basis in the Court of Appeals, which granted
leave and stayed the trial court proceedings pending the
appeal. The Court of Appeals, Talbot, C.J., and Borrello and
Riordan, JJ., reversed, holding that venue was proper in
Wayne County, where defendant allegedly delivered the heroin,
and that venue was not proper in Monroe County under either
MCL 762.5 or MCL 762.8. People v McBurrows, 322
Mich.App. 404 (2017). The prosecution appealed in the Supreme
Court, which ordered and heard oral argument on whether to
grant the application or take other action. 501 Mich. 1073
(2018).
In a
unanimous opinion by Justice Clement, the Supreme Court, in
lieu of granting leave to appeal, held:
In a
prosecution for delivery of a controlled substance causing
death, venue is not properly laid in a county if the death,
but not the delivery, occurred in that county.
1. A
criminal trial should be by a jury of the county or city
where the offense was committed. The parameters of this
general rule are not codified in Michigan. While MCL 762.1
provides that the courts of this state that have jurisdiction
and powers over criminal causes have the "jurisdiction
and powers as are now conferred upon them by law," this
language is too general to provide meaningful guidance.
Instead, what is codified are certain exceptions to or
expansions of the general rule, which allow venue in
locations besides that provided for in the general rule.
Thus, identifying a proper venue is a two-step process:
first, the proper venue under the general rule must be
identified; second, it must be determined whether a statutory
exception permits departure from the general rule. Although
the general venue rule has at times been stated in permissive
terms, in the absence of an applicable statutory exception,
that the trial be held in the county or city where the
offense was committed is a mandatory aspect of criminal venue
in Michigan that derives from the continuing constitutional
guarantee of the preexisting common-law right to trial by
jury.
2.
Under federal law, which constitutionally requires that
federal criminal trials be held in the state where the crimes
were committed, the location of the crime is determined from
the nature of the crime alleged and the location of the act
or acts constituting it. One method for making this
determination is the "verb test," in which
identifying the essential verb in the statute creating a
crime is the critical inquiry in identifying the proper venue
for a federal prosecution. However, the Supreme Court has
stated that this test cannot be applied rigidly, to the
exclusion of other relevant statutory language, because the
proper inquiry is into the nature of the offense. In this
case, whether emphasizing the key verbs or inquiring into the
nature of the offense, a violation of MCL 750.317a occurs at
the place of the delivery of the controlled substance. This
statute punishes an individual's role in placing the
controlled substance in the stream of commerce, even when
that individual is not directly linked to the resultant
death; that consequences are felt elsewhere is immaterial,
even if those consequences are required elements of the
offense.
3.
While the Court of Appeals correctly determined that the
proper venue for prosecuting this case was Wayne County, it
reached that conclusion using flawed reasoning. MCL 750.317a
is properly understood as punishing an individual for the act
of placing into the stream of commerce a controlled substance
that ultimately causes an individual's death. Therefore,
a violation of MCL 750.317a occurs at the place of the
delivery of the controlled substance. This is true even
though the crime is not complete until all of its elements
occur, and both consumption of a controlled substance and
death caused by that consumption are elements of the offense.
Accordingly, MCL 750.317a is not merely a "penalty
enhancement"; it is a crime with its own elements that
is distinct from the crime established in MCL 333.7401.
4.
Neither MCL 762.5 nor MCL 762.8 provides a basis for
establishing venue in Monroe County. MCL 762.5 provides that
"[i]f any mortal wound shall be given or other violence
or injury shall be inflicted, or any poison shall be
administered in 1 county by means whereof death shall ensue
in another county, the offense may be prosecuted and punished
in either county." The word "inflict" is
defined in part as "to impose as something that must be
suffered or endured," and the word
"administer" is defined in relevant part as
"[t]o dispense, furnish, supply, or give . . . to the
recipient." In this case, defendant neither imposed
anything on the decedent nor gave anything to the decedent.
Rather, it was alleged that defendant delivered certain
substances to the decedent through an intermediary, with no
allegation that defendant even was aware of the
decedent's existence. He did not interact with the
decedent in the fashion contemplated by MCL 762.5 or in the
way the defendant did in People v Southwick, 272
Mich. 258 (1935), which was distinguishable for that reason.
Similarly, venue was not properly laid in Monroe County under
MCL 762.8, which provides: "Whenever a felony consists
or is the culmination of 2 or more acts done in the
perpetration of that felony, the felony may be prosecuted in
any county where any of those acts were committed or in any
county that the defendant intended the felony or acts done in
perpetration of the felony to have an effect." For MCL
762.8 to apply here, there must have been an act done in
perpetration of the alleged felony in Monroe County by
defendant or his agent. There was, however, no allegation
that defendant endeavored to deliver the heroin to the
decedent or that he intended the decedent's death, nor
was it alleged that the decedent intended to die or
coordinated his actions with defendant in any way. In the
absence of some indication that the decedent was implicated
in or culpable for defendant's action, he has not done
something in perpetration of defendant's offense for
purposes of MCL 762.8.
Court
of Appeals judgment affirmed; case remanded for further
proceedings.
OPINION
CLEMENT, J.
In this
case, we consider whether, in a prosecution for delivery of a
controlled substance causing death, venue is properly laid in
a county if the death, but not the delivery, occurred in that
county. We conclude that venue in such circumstances is not
proper, and so we affirm the conclusion of the Court of
Appeals in this regard and remand for further proceedings not
inconsistent with this opinion.
I.
FACTS AND PROCEDURAL HISTORY[1]
On
December 12, 2016, Nicholas Abraham-a resident of Monroe
County- contacted an acquaintance, William Ingall, about
procuring some heroin. Abraham picked up Ingall, and the two
traveled to a house in Detroit. Abraham gave Ingall money,
and Ingall went into the house to purchase heroin from
defendant, Romon McBurrows. Abraham and Ingall then went to a
nearby laundromat parking lot, where they consumed some of
the heroin. Ingall noted that the heroin seemed unusually
strong, and he warned Abraham to be careful when consuming
it. Abraham took Ingall home and then returned to his own
home, in Monroe County. Upon arriving at home at about 10:00
p.m., Abraham provided some heroin to his wife, Michelle, who
used it and passed out. When she awoke in the early morning
hours of December 13, she found Abraham unresponsive, and
after failing to resuscitate him, she called the authorities,
who pronounced him dead that same day. An autopsy ultimately
concluded that Abraham's death was caused by fentanyl
toxicity-fentanyl being a substance sometimes mixed with
heroin.
Defendant
was charged in Monroe County with one count of delivery of a
controlled substance causing death. He filed a motion
disputing Monroe County as a proper venue.[2]The trial court
denied the motion. Defendant then filed an application for
leave to appeal on an interlocutory basis in the Court of
Appeals, which granted leave and stayed the trial court
proceedings pending the appeal.[3] The Court of Appeals ultimately
reversed the judgment of the trial court. People v
McBurrows, 322 Mich.App. 404; 913 N.W.2d 342 (2017). The
People then appealed in this Court, and we ordered argument
on the application as to whether, on these facts, Monroe
County was a proper venue for this criminal trial. People
v McBurrows, 501 Mich. 1073 (2018).
II.
STANDARD OF REVIEW
"A
trial court's determination regarding the existence of
venue in a criminal prosecution is reviewed de novo."
People v Houthoofd, 487 Mich. 568, 579; 790 N.W.2d
315 (2010). This case also involves certain venue statutes,
the interpretation of which we also review de novo. Tryc
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