By ZEINAB NAJM
Times-Herald Newspapers
HEIGHTS — The Michigan Supreme Court heard oral arguments from attorneys from both sides of the 2013 porch shooting of Renisha McBride Oct. 7, but no decision was made on a possible resentencing of Theodore Wafer.
Wafer’s attorney, Jacqueline McCann with the Michigan Appellate Defender Office, asked the court to dismiss statutory manslaughter and remand for resentencing on the second degree murder.
This is the second time the court has heard arguments for the case, previously denying the request to overturn Wafer’s conviction in 2018.
Wafer was found guilty, after a six-week trial. He was charged with second-degree murder, manslaughter, and felony firearm and sentenced to 15 to 30 years, 7 to 15 years and 2 years in jail, respectively.
The Court of Appeals, in a 2-1 unpublished opinion, affirmed the defendant’s convictions, rejecting his claims that the dual homicide convictions violated double jeopardy and that the trial court reversibly erred by denying his request for the jury instruction on the rebuttable presumption of MCL 780.951(1), the case summary said.
An oral argument was ordered by the Michigan Supreme Court on the application to address whether Wafer’s convictions for second-degree murder and statutory manslaughter violate constitutional prohibitions against double jeopardy.
McCann wrote in a brief that the legislature does not intend for a person to be convicted and sentenced for two homicide offenses for the death of one person.
“A person cannot simultaneously act with malice and without malice in committing the same act against the same person, here discharging the shotgun,” she wrote. “The legislature knew the common law provided that murder is a killing committed with malice when it enacted the second-degree murder statute, incorporating the common law elements, and when it enacted MCL 750.329 providing that statutory manslaughter was instead a killing done ‘without malice.’”
She continues to say that the legislature made these two offenses mutually exclusive.
“Wafer’s convictions and sentences for both second-degree murder and statutory manslaughter in the killing of the same person thus violate the state and federal prohibitions against double jeopardy,” McCann wrote. “The appropriate remedy is to vacate the less serious conviction and remand for resentencing on the greater one.”
Amanda Smith from the Wayne County Prosector’s Office argued that Wafer’s duel convictions do not offend double jeopardy or due process principles and that charges fully account for Wafer’s actions in November 2013.
“What are Wafers’ rights? He had a due process right to have the people prove the guilt, his guilt on each element of each charged crime and the people did so prove in this case,” Smith said. “He had the right to have each conviction based upon sufficient evidence which he has never contested, but Mr. Wafer does not have the right to face fewer charges then would be sufficient to account for all, not merrily some of his criminal conduct.”
Chief Justice Bridget McCormack asked Smith, if she thought the court could write an opinion calling this kind of problem a due process problem and not a multiple punishment, double jeopardy problem.
“Absolutely, I think that would be actually consistent with things this court has said previously and has been less clear in other opinions and I certainly don’t fault the court for that,” Smith responded.
The initial incident occurred in November 2013 when McBride,19, was shot and killed on Wafer’s front porch after she crashed her vehicle less than a mile away and was searching for help.
McBride had marijuana and alcohol in her system at the time of the incident. Wafer said he shot the victim in self-defense because he thought she was trying to break into his house in the 16800 block of Outer Drive at 4:40 a.m. Nov. 2.
In June 2015, McBride’s family agreed to an undisclosed financial settlement which was not released due to a confidentially agreement.
(Zeinab Najm can be reached at [email protected].)