People v. Abramczyk

• Decision Date: 24 November 1987
• Docket Number: Docket No. 82592
• Citation: 163 Mich.App. 473,415 N.W.2d 249
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Neils Peter ABRAMCZYK, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 249

415 N.W.2d 249

163 Mich.App. 473

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Neils Peter ABRAMCZYK, Defendant-Appellant.

Docket No. 82592.

Court of Appeals of Michigan.

Submitted March 5, 1986.

Decided Oct. 6, 1987.

Released for Publication Nov. 24, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Peter D. Houk, Pros. Atty., Robert B. Ebersole, Chief Appellate Atty., and M. Ann Conlan, Asst. Pros. Atty., for people.

Mary E. Bennett, Lansing, for defendant-appellant on appeal.

Before SHEPHERD, P.J., and KELLY and TAHVONEN, ^* JJ.

PER CURIAM.

We agree with Judge Shepherd's conclusions that the evidence was sufficient to support the conviction and that the negligent homicide statute is constitutional.

However, we hold that Judge Warren properly considered the perceived efficacy of licensing sanctions in fashioning the terms of the defendant's probation.

Affirmed.

SHEPHERD, Presiding Judge, (concurring in part and dissenting in part).

Following a jury trial, defendant Niels Peter Abramczyk was convicted of negligent homicide, M.C.L. Sec. 750.324; M.S.A. Sec. 28.556. He was sentenced to two years probation, with the first sixty days to be served in the Ingham County Jail, fined costs of $1,100 at the rate of $50 per month, and prohibited from driving a motor vehicle during the term of his probation unless he filed a petition with the trial court demonstrating that he required driving privileges to maintain employment. The majority affirms and I agree but would remand for resentencing.

The basis for the negligent homicide charge was that defendant had operated his Pontiac Firebird automobile in a careless or negligent manner by making an improper lane change on a February morning in 1983 on Saginaw Street in Lansing. It is undisputed that, as defendant changed lanes to the right, the right rear side of his car struck the left front side of a car in the next lane driven by George Helms. Helms' automobile went over the curb and struck a utility pole. Helms died a short time later from injuries suffered in the accident. Neither driver was speeding. Defendant testified that, before he changed lanes, he looked out of the rear and side windows of his car and saw no traffic in the next lane. A witness who was driving behind defendant and saw the accident, however, testified that defendant did not look back before changing lanes. I will assume that defendant did not look back and that he operated his vehicle with ordinary negligence. Even if he had looked back and had failed to see the vehicle in the next lane, however, he could have been found negligent.

Defendant raises three arguments on appeal: 1) that the trial court should have granted defendant's motion for a directed verdict because the prosecutor failed to present direct proof of negligence; 2) that the trial court should have granted defendant's motion to set aside the verdict or motion for a new trial for the same reason; and 3) that the trial court abused its discretion by imposing the sentence it did. The first two issues are without merit. There was sufficient evidence from which the jury could find that the prosecution established ordinary negligence beyond a reasonable doubt. Thus, if the negligent homicide statute can be constitutionally applied to this case, there was sufficient evidence of defendant's guilt based upon an act of ordinary negligence.

We also sua sponte directed the parties to brief the following issues: "(a) whether the decriminalization of traffic offenses under MCL 257.626b [MSA 9.2326(2) ] has any effect on the ability of the State to charge defendant with negligent homicide for an act of ordinary negligence not involving any criminal conduct and (b) whether a noncriminal act may be rendered criminal by the death of the victim."

I

The negligent homicide statute, M.C.L. Sec. 750.324; M.S.A. Sec. 28.556, provides:

"Any person who, by the operation of any vehicle upon any highway or upon any other property, public or private, at an immoderate rate of speed or in a careless, reckless or negligent manner, but not wilfully or wantonly, shall cause the death of another, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison not more than 2 years or by a fine of not more than $2,000, or by both such fine and imprisonment."

The basis of defendant's negligent homicide conviction was careless or negligent operation of a vehicle, i.e., an improper lane change, which led to the death of another. Prior to the decriminalization of certain traffic offenses by the Legislature in 1978, careless or negligent operation of a motor vehicle was a misdemeanor punishable by up to ten days in jail and a fine, M.C.L. Sec. 257.626b; M.S.A. Sec. 9.2326(2). The statute was amended by 1978 P.A. 510 to change the same offense into a civil infraction.

Defendant was not charged with reckless driving, a criminal offense under M.C.L. Sec. 257.626; M.S.A. Sec. 9.2326, nor was it claimed that his negligent homicide conviction was based upon an underlying act of reckless driving. Instead, he was convicted of negligent homicide based upon an act of ordinary negligence, an act which by itself is not criminal. The criminal charge in this case was therefore based upon an otherwise noncriminal act which became criminal because the victim died. Had the other driver lived, even if in a long-term coma, defendant at most could have been charged only with careless or negligent driving for the same conduct, now a civil infraction. The prosecutor concedes this last point. The victim's death, however, resulted in defendant's being charged and convicted as a criminal under the negligent homicide statute. This case is thus different from a case where the degree of culpability of a criminal act is increased by the death of the victim, e.g., reckless driving (a crime) becoming negligent homicide by reason of a death, or assault with intent to murder (a crime) becoming murder by reason of a death.

Construing a nearly identical predecessor of the negligent homicide statute, the Supreme Court held in People v. Campbell, 237 Mich. 424, 428-429, 212 N.W. 97 (1927), that a conviction requires only proof of ordinary negligence. See also People v. McKee, 15 Mich.App. 382, 385, 166 N.W.2d 688 (1968). Slight negligence, however, is not actionable under the statute. Campbell, supra, 237 Mich. at 429, 212 N.W. 97. Because the offense is a statutory crime, the Legislature has the power to define it without regard to the presence or absence of criminal intent or culpability in its commission. McKee, supra.

Early on, the statute weathered numerous constitutional challenges, including those arguing a denial of due process. People v. McMurchy, 249 Mich. 147, 228 N.W. 723 (1930). The Supreme Court noted the number of deaths resulting from automobile accidents and concluded that the Legislature "was prompted to pass a law to curb reckless, careless, and negligent driving which caused death, in cases where the negligence was less than gross." McMurchy, supra at 161, 228 N.W. 723. See also Campbell, supra, 237 Mich. at 429, 212 N.W. 97, noting that it is a "harsh statute, but finds justification in the serious results that are liable to follow the negligent operation of automobiles on extensively traveled streets and highways." In upholding the statute, the McMurchy Court wrote:

"The law is well settled that the legislature, in the exercise of its police power in order to preserve the health, morals, and safety, may constitute something to be a crime that theretofore was not criminal. It may impose a criminal responsibility for a tort that theretofore carried with it only civil liability." 249 Mich. at 162, 228 N.W. 723.

The fact that the Legislature chose to decriminalize careless or negligent driving in 1978 does not change the McMurchy result. The Legislature apparently decided that negligent driving not resulting in death does not warrant the time and expense that must be devoted to criminal litigation. The fact that negligent homicide was not decriminalized suggests that the Legislature continues to regard negligent driving causing death as an appropriate occasion for the imposition of criminal sanctions. This is a reasonable policy decision beyond the reach of judicial intervention. In addition to its public safety goals, the negligent homicide statute publicly expresses society's regard for the value of human life. By saying that criminal sanctions are authorized when negligent driving causes death, the Legislature states on behalf of the community as a whole that human life has a unique value that morally justifies criminal penalties, even where life is taken negligently and unintentionally. A statute reasonably related to such matters of public morality is a legitimate exercise of legislative power. Accordingly, I do not find that the negligent homicide statute violates due process by punishing defendant for an act of ordinary negligence resulting in another person's death. The statute is not arbitrary or capricious in singling out this particular conduct and result while leaving as civil infractions other negligent conduct involving automobiles.

I...