Michigan Dept. of Natural Resources v. Frostman
Decision Date | 05 July 1978 |
Docket Number | Docket No. 77-1731 |
Citation | 84 Mich.App. 503,269 N.W.2d 655 |
Parties | MICHIGAN DEPARTMENT OF NATURAL RESOURCES, Plaintiff-Appellee, v. James FROSTMAN, Defendant-Appellant. |
Court | Court of Appeal of Michigan — District of US |
Green, Renner, Weisse, Rettig, Rademacher & Clark by Nino E. Green, Escanaba, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Anders B. Tingstad, Jr., Pros. Atty., Keith D. Roberts, Asst. Atty. Gen., Pros. Attys. Appellate Service, for plaintiff-appellee.
Before V. J. BRENNAN, P. J., and R. B. BURNS and KELLY, JJ.
Defendant James Frostman was found to have fished in the Michigan waters of Lake Superior without a license in violation of M.C.L. § 308.22; M.S.A. § 13.1513. After a hearing was held on March 9-10, 1977, Gogebic County Circuit Judge Donald L. Munro entered an order on April 28, 1977, confiscating all of the equipment used by defendant under the authority of M.C.L. § 300.14; M.S.A. § 13.1224. Defendant appeals this order as of right. GCR 1963, 806.1. Defendant raises several allegations of error. We will address those which merit discussion.
We must determine at the outset whether, if the trial court abused its discretion in admitting expert testimony of witnesses not duly qualified as experts, sufficient competent evidence exists to support its finding that defendant's fishing nets were located within Michigan waters.
Admission of expert witness testimony depends upon requirements established by the Michigan Supreme Court and followed by this Court. O'Dowd v. Linehan, 385 Mich. 491, 509-510, 189 N.W.2d 333 (1971). See also Johnson v. Detroit, 79 Mich.App. 295, 300-301, 261 N.W.2d 295 (1977). O'Dowd established that expert testimony may be admitted under the following circumstances: (1) there must be an expert, (2) there must be facts and evidence requiring or subject to examination and analysis by an expert, and (3) there must be knowledge in the particular area that belongs more to an expert than to a lay person.
Discretion exists in the trial court to receive or reject the opinion of experts. Siirila v. Barrios, 398 Mich. 576, 591, 248 N.W.2d 171 (1976), Moore v. Lederle Laboratories, 392 Mich. 289, 295-296, 220 N.W.2d 400 (1974), People v. Zimmerman, 385 Mich. 417, 426, 189 N.W.2d 259 (1971). Ordinarily, a witness is restricted to the facts, and opinion evidence is inadmissible. A witness is entitled to express an opinion, or conclusion, where that opinion is dependent on professional or scientific knowledge or skill. Dudek v. Popp, 373 Mich. 300, 305-306, 129 N.W.2d 393 (1964).
The principal question here is whether the witnesses offered by plaintiff qualified as experts.
Plaintiff contends that even if these two witnesses, Dabb and Scorfar, were not qualified to give expert opinion, their lack of qualifications affects the weight, not the sufficiency, of the evidence. Testimony as to the reliability of scientific apparatus, and the qualifications of the operator of such apparatus, is a Sine qua non to the admission of expert opinion evidence. People v. Krulikowski, 60 Mich.App. 28, 32, 230 N.W.2d 290 (1975).
We find the testimony of these witnesses was erroneously admitted. Record evidence appears as to the inaccuracy of the instruments used in making the necessary measurements. Testimony was also provided as to the internal inconsistencies of the measurements taken by these instruments. Both witnesses were unable to answer simple questions regarding the definition of basic navigational terms. Each witness testified that his training had been rudimentary at best. The problem with the measurements taken by these witnesses is even recognized by the trial court in its decision. On the basis of this record, we do not find the proper basis was laid for admission of this testimony.
Further, even were we to find the Department of Natural Resources' witnesses competent to testify as experts, we would find the evidence they presented inadequate to sustain so extreme a penalty. Defendant in this case was liable to lose the very basis of his livelihood. In order to sustain such a penalty, the evidence of measurement presented by department witnesses would need to be much more accurately and scientifically determined than was presented in this case. For instance, though the department represented in its complaint that its measurements were based upon VOR air navigation instrument readings and sonar tests, only testimony relating to compass bearings, depth readings and time-speed calculations was actually admitted at trial.
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...that facts relating to defendant's alleged insanity required expert interpretation or analysis. MRE 702, Dep't of Natural Resources v. Frostman, 84 Mich.App. 503, 505, 269 N.W.2d 655 (1978). Rather, defendant argues that, while an expert witness may give his opinion on a matter even though ......
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