People v. White

509 Mich. 96

983 N.W.2d 348

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Kevin WHITE, Jr., Defendant-Appellant.

Docket No. 162136

Supreme Court of Michigan.

Argued on application for leave to appeal December 9, 2021

Decided April 4, 2022

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, David J. Reader, Prosecuting Attorney, and William M. Worden, Assistant Prosecuting Attorney, for the people.

Gentry Nalley, PLLC, Howell (by Kevin S. Gentry ) for defendant.

Mark Wiese, Kym L. Worthy, Detroit, Jon P. Wojtala, Trenton, and Timothy A. Baughman, Detroit, for the Prosecuting Attorneys Association of Michigan, amicus curiae.

BEFORE THE ENTIRE BENCH

Per Curiam.

This case asks what the correct venue is for a criminal prosecution under an aiding and abetting theory. We hold that the county in which the criminal act of the principal occurred is a proper venue, and therefore we affirm the Court of Appeals.

We note at the outset that defendant maintains that he is innocent of the crimes with which he is charged. Because no trial has yet been held, no facts have yet been found in this case. The parties both accept the testimony from the preliminary examination as the factual basis for evaluating the venue issue presented. See People v. McBurrows , 504 Mich. 308, 311 n. 1, 934 N.W.2d 748 (2019).

The prosecution alleges that defendant is a drug dealer from the Warren area in Macomb County. One of his customers, Kelly Whitlow, met a man named Craig Betke via a website. In October 2017, Whitlow moved in with Betke at his home in Livingston County, accompanied by her son, Thomas Whitlow, and a friend of Kelly's, Danielle Hannaford. Within days of moving, Kelly Whitlow advised Betke that she was "dope sick" and wanted some "boy" and "girl"—slang for particular drugs. She arranged to meet defendant at a gas station in Warren. The four—Betke, Hannaford, and Kelly and Thomas Whitlow—drove down to make the purchase. At the gas station, Hannaford walked from Betke's vehicle over to defendant's to make the purchase. The four then returned to Betke's home in Howell. Hannaford, Kelly Whitlow, and Thomas Whitlow then consumed the drugs. At one point, Thomas went into a bathroom, but when he had been in there a suspiciously long time, he was checked on and found dead. The medical examiner later ruled that he had died of a cocaine and fentanyl overdose.

The Livingston County Prosecutor charged defendant with delivery of a controlled substance causing death. MCL 750.317a. In McBurrows , 504 Mich. at 317-318, 934 N.W.2d 748, this Court held that, absent an applicable statutory exception, a crime must be prosecuted in the county in which the crime occurs and that the proper venue for prosecuting a violation of MCL 750.317a is the county in which the delivery occurs, not the county in which the death occurs. Here, it is not alleged that defendant directly delivered anything to the decedent; instead, the prosecution alleges that defendant aided and abetted Hannaford's delivery of the drugs to the decedent. See MCL 767.39. After the matter was bound over to circuit court, defendant moved to dismiss on the ground of improper venue. The court denied the motion, but stayed proceedings for defendant to appeal the decision.

The Court of Appeals granted defendant's application for an interlocutory appeal, but ultimately affirmed the trial court's decision to deny the motion to dismiss. People v. White , unpublished per curiam opinion of the Court of Appeals, issued September 12, 2019 (Docket No. 346661), 2019 WL 4389173. The panel held that prosecuting defendant in Livingston County was proper under MCL 762.8, which allows a felony that is "the culmination of 2 or more acts done in the perpetration of that felony" to "be prosecuted in ... any county that the defendant intended the felony or acts done in perpetration of the felony to have an effect." The panel concluded that "[d]efendant sold the substances with the understanding that they would be consumed and with knowledge of where that would happen." White , unpub. op. at 3. Because it held that venue in Livingston County was proper under MCL 762.8, the panel declined to address the prosecution's argument "that McBurrows does not apply to cases premised on aiding and abetting ...." Id. at 4.

Defendant challenged the Court of Appeals’ decision in this Court. We peremptorily reversed its decision that MCL 762.8 is an adequate basis for establishing venue in this case in Livingston County. We held that there was no record evidence that defendant was aware that Kelly Whitlow had relocated to reside with Betke at his home in Livingston County. As a result, we held that "there is no record evidence that the defendant knew that the person to whom he delivered the controlled substance had moved from Macomb County to Livingston County and that the controlled substance would be consumed in Livingston County." People v. White , 505 Mich. 1022, 1023, 941 N.W.2d 59 (2020). We remanded the case to the Court of Appeals for it to assess the argument that it had previously declined to reach.

On remand, the Court of Appeals once again affirmed the trial court in an unpublished opinion. People v. White , unpublished per curiam opinion of the Court of Appeals, issued September 3, 2020 (Docket No. 346661), 2020 WL 5261284. The panel performed a careful, thorough, and accurate review of our decision in McBurrows . It noted that, under McBurrows , the proper county in which to prosecute defendant for his delivery of drugs to Hannaford would be Macomb County. However, it correctly observed that "[t]he question in this case is whether, by aiding and abetting a delivery of narcotics that took place in Livingston County, defendant may be charged in Livingston County despite the fact that none of his acts took place in Livingston County." The panel analogized the facts of this case to those in People v. Markey , unpublished per curiam opinion of the Court of Appeals, issued March 15, 2007 (Docket No. 264005), 2007 WL 778132, to once again hold that the prosecution in Livingston County was proper. Defendant sought leave to appeal this decision to us, and we ordered argument on his application. People v. White , 507 Mich. 865, 953 N.W.2d 211 (2021).

The general rule is that "[a] criminal ‘trial should be by a jury of the county or city where the offense was committed.’ " McBurrows , 504 Mich. at 313, 934 N.W.2d 748 (citation omitted). Defendant's own actions occurred only in Macomb County. "At English common law, an accomplice could be prosecuted only in the district of his accessorial acts." LaFave et al., Criminal Procedure (4th ed.), § 16.2(g), p. 868. As a result, absent statutory modification, defendant would need to be prosecuted in Macomb County. Here, that statutory modification is the aiding and abetting theory of prosecution. The statute provides that "[e]very person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense." MCL 767.39. Under this law, aiding and abetting is not a distinct criminal act; rather, it is a theory of prosecution that imposes vicarious criminal liability on an accomplice for the acts of the principal. See People v. Robinson , 475 Mich. 1, 6, 715 N.W.2d 44 (2006) ("Unlike conspiracy and felony murder, which also allow the state to punish a person for the acts of another, aiding and abetting is not a separate substantive offense. Rather, ‘being an aider and abettor is simply a theory of prosecution’ that permits the imposition of vicarious liability for accomplices.") (citation omitted). To convict on an aiding and abetting theory, "the prosecutor must prove beyond a reasonable doubt ... that the defendant intended to aid the charged offense" and either that the defendant "knew the principal intended to commit the charged offense, or, alternatively, that the charged offense was a natural and probable consequence of the commission of the intended offense." Id. at 15, 715 N.W.2d 44.

The Court of Appeals correctly held that venue for this prosecution is proper in Livingston County. In lieu of analogizing to an unpublished Court of Appeals opinion, however, we believe that the analysis should begin with the text of the aiding and abetting statute, MCL 767.39. It provides that defendant can "be prosecuted, indicted, [and] tried ... as if he had directly committed" Hannaford's offense. A central reason for treating aiding and abetting as a theory of prosecution rather than a distinct criminal act is that it allows an accomplice to be "treated as a principal and prosecuted in the place of the commission of the substantive offense."

LaFave, § 16.2(g), pp. 868-869. After applying the venue rules to the principal to establish a proper venue, MCL 767.39 then allows the accomplice to be prosecuted in the same venue. Here, the prosecution alleges that Hannaford delivered a controlled substance to Thomas Whitlow in Livingston County which he consumed, causing his death. Therefore, it would be proper to prosecute Hannaford for that offense in Livingston County. See McBurrows , 504 Mich. at 317-318, 934 N.W.2d 748.

And because defendant can "be prosecuted, indicted, [and] tried ... as if he had directly committed" Hannaford's offense, Livingston County is also a proper venue for prosecuting defendant.

It is important to note that our conclusion goes no further than to say that, when accepting as true the allegations against defendant, venue is proper in Livingston County. Of course, to be prosecuted under MCL 767.39, there must be probable cause to believe that defendant "procure[d], counsel[ed], aid[ed], or abet[ted] in [the] commission" of Hannaford's offense, see People v. Plunkett , 485 Mich. 50, 61, 780 N.W.2d 280 (2010), and he disputes whether the...