5.4Delivery of a Schedule 1 or 2 Controlled Substance Causing Death
“A person who delivers a schedule 1 or 2 controlled substance, other than marihuana, to another person in violation of . . . MCL 333.7401, that is consumed by that person or any other person and that causes the death of that person or other person is guilty of a felony punishable by imprisonment for life or any term of years.” MCL 750.317a.
•M Crim JI 12.2 addresses the unlawful delivery of a controlled substance.
Violation of MCL 750.317a is a felony punishable by life imprisonment or any term of years. MCL 750.317a.1
Delivery is discussed in detail in Section 2.2(A).
To establish violation of MCL 750.317a, the prosecution must prove beyond a reasonable doubt: “(1) delivery to another person, (2) of a schedule 1 or 2 controlled substance (excluding marijuana), (3) with intent to deliver a controlled substance as proscribed by MCL 333.7401, (4) consumption of the controlled substance by a person, and (5) death that results from the consumption of the controlled substance.” People v McBurrows, 504 Mich 308, 319 (2019) (noting “MCL 750.317a is predicated on a violation of MCL 333.7401” but “it adds elements that make it a distinct offense,” and rejecting the Court of Appeals’ characterization of MCL 750.317a as a “penalty enhancement”).
3.Purpose of MCL 750.317a
“It is clear from the plain language of the statute that MCL 750.317a provides an additional punishment for persons who ‘deliver[]’ a controlled substance in violation of MCL 333.7401 when that substance is subsequently consumed by ‘any . . . person’ and it causes that person’s death. It 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.” People v Plunkett, 485 Mich 50, 60 (2010) (alterations in original).
MCL 750.317a is a general intent crime, and “does not require the intent that death occur from the controlled substance first delivered in violation of MCL 333.7401.” Plunkett, 485 Mich at 60. “[T]he general intent required to violate MCL 750.317a is identical to the general intent required to violate MCL 333.7401(2)(a): the delivery of a schedule 1 or 2 controlled substance.” Plunkett, 485 Mich at 60. “A defendant who transported another person to an illegal narcotics transaction, provided the money for this transaction, and intended that the money be used to purchase narcotics may be bound over for trial under MCL 750.317a . . .” on an aiding and abetting theory when use of the narcotics results in the user’s death. Plunkett, 485 Mich at 65-66.
The default rule is that venue is proper in the county where the crime was committed; however, “the Legislature is free to adjust” the default rule by passing statutory exceptions. People v McBurrows, 504 Mich 308, 324 (2019). “In a prosecution for delivery of a controlled substance causing death, the proper venue at common law is in the county where the delivery occurred.” Id. at 320.
Wayne County was the proper venue where the defendant was charged with violation of MCL 750.317a, and there was no dispute that the heroin presumably mixed with fentanyl was delivered in Wayne County, but the victim died as a result of fentanyl toxicity in Monroe County. McBurrows, 504 Mich at 329. “[N]either MCL 762.5[2] nor MCL 762.8[3] provide[d] an exception to the general rule sufficient to establish venue in” the county where the death occurred, instead of where the controlled substance was delivered. McBurrows, 504 Mich at 329. Specifically, “venue under MCL 762.5 requires . . . direct interaction with the victim,” and in McBurrows, the only allegation was “that defendant delivered certain substances to the decedent, and only through an intermediary at that, with no allegation that defendant even was aware of the decedent’s existence”; accordingly, the defendant “did not interact with the decedent” in the way required by caselaw or contemplated by MCL 762.5. McBurrows, 504 Mich at 326. For the venue exception under MCL 762.8 to apply, “there must have been an ‘act done in the perpetration of defendant’s felony’ in Monroe County,” and that act is limited “to the conduct of a criminal actor or his agent”; accordingly, “[i]n 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,” and MCL 762.8 does not apply. McBurrows, 504 Mich at 327, 328 (noting that while the decedent’s actions of ingesting the heroin and dying “were necessary to complete the elements of the offense,” they were “unconnected” to any actions of the defendant and “did not implicate the decedent or make him culpable for defendant’s behavior”) (cleaned up).
1 Note that MCL 769.25 and MCL 769.25a address criminal defendants who were less than 18 years of age at the time the offense was committed and provide specific procedures and limitations on the ability to sentence a juvenile to life imprisonment without the possibility of parole. Further, in the context of sentencing following a first-degree murder conviction, the Court held that “all protections afforded by MCL 769.25 fully apply to 18-year-old defendants.” People v Parks, 510 Mich 225, 267 (2022). The Parks opinion does not directly address LWOP sentences for other offenses. See Section 6.6(B).
2 MCL 762.5 addresses situations where an injury or violence is inflicted or poison is administered in one county and death occurs in a different county (allowing venue in either county).
3 MCL 762.8 addresses situations where a felony consists or is the culmination of two or more acts done in perpetrating the felony (allowing venue in either the county where any of the acts occurred or in any county where the defendant intended for the felony or acts to have an effect).