People v. Ames

• Decision Date: 07 April 1975
• Docket Number: Docket No. 19230,No. 3,3
• Citation: 60 Mich.App. 168,230 N.W.2d 360
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rose Marie AMES, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 360

230 N.W.2d 360

60 Mich.App. 168

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rose Marie AMES, Defendant-Appellant.

Docket No. 19230.

Court of Appeals of Michigan, Division No. 3.

April 7, 1975.

Released for Publication June 26, 1975.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Tony I. Marcinkewciz, Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and CAVANAGH and WALSH, JJ.

CAVANAGH, Judge.

In the early morning hours of July 17, 1973, the defendant, driving her automobile, collided with a motorcycle. The driver of the motorcycle was injured and his passenger was killed. Defendant was charged with involuntary manslaughter, M.C.L.A. § 750.321; M.S.A. § 28.553, and felonious driving, M.C.L.A. § 752.191; M.S.A. § 28.661.

At trial in Delta County Circuit Court, a jury returned a verdict of guilty to the charges of negligent homicide, M.C.L.A. § 750.324; M.S.A. § 28.556, and felonious driving. Defendant was sentenced to concurrent prison terms of one to two years for each count. She now appeals at of right and raises six instances of error.

Defendant first contends that the jury's verdicts of negligent homicide and felonious driving are wholly inconsistent because these offenses require different degrees of culpability.

Although the rule in many jurisdictions in this country is apparently that inconsistent verdicts need not result in reversible error, in Michigan if the inconsistency cannot be explained on a rational basis reversal is mandated. People v. Widgren, 53 Mich.App. 375, 220 N.W.2d 130 (1974); People v. Phillips, 43 Mich.App. 581, 204 N.W.2d 250 (1972); Cf. Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1972).

The statute defining negligent homicide, M.C.L.A. § 750.324; M.S.A. § 28.556, reads as follows:

'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 $2,000.00, or by both such fine and imprisonment.'

The felonious driving statute, M.C.L.A. § 752.191; M.S.A. § 28.661, reads:

'Every person who drives any vehicle upon a highway carelessly and heedlessly in wilful and wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property and thereby injuring so as to cripple any person, but not causing death, shall be guilty of the offense of felonious driving and upon conviction thereof shall be sentenced to pay a fine not exceeding 1,000 dollars or to imprisonment in the state prison not exceeding 2 years or by both fine and imprisonment in the discretion of the court.'

Defendant contends that the former statute requires a Mens rea of negligence only whereas the latter requires recklessness or willfulness and wantonness. However, this argument ignores the fact that one may be guilty of felonious driving by operating a motor vehicle 'without due caution and circumspection and at a speed or in a manner so as to endanger * * * any person * * *'. It is not necessary to equate this Mens rea with that of negligence. What can be deduced, however, and we so hold, is that the jury determined that the defendant had a culpable state of mind which fit both statutes. Because there is a rational basis for explaining an 'inconsistency', we conclude there is no error.

Defendant next argues that the trial court gave undue weight to the charged offenses thus obscuring the lesser included offenses. The trial court, of course, has a duty to instruct the jury as to the law applicable to the case. M.C.L.A. § 768.29; M.S.A. § 28.1052. And it has been held that a trial court may err reversibly in overemphasizing the charged offense to such a degree as to preclude a fair consideration of the lesser included offenses. People v. Reece, 9 Mich.App. 108, 155 N.W.2d 870 (1967).

However, we find the trial court record to be closer to that in People v. McGuire, 39 Mich.App. 308, 197 N.W.2d 469 (1972), where Reece was distinguished. Unlike Reece, we do not find the voluminous repetition of instructions on the charged offense. The trial court, in the case at bar, read the statute defining the lesser included offenses. See also People v. Bates, 55 Mich.App. 1, 222 N.W.2d 6 (1974).

Defendant's third argument is that erroneous testimony was admitted concerning the exercise of her constitutional right to remain silent following her arrest. A review of the record, however, discloses that the testimony to which defendant refers was elicited for the purpose of showing defendant's inebriated condition, not for the purpose of showing her guilt because of her silence. In any event, the testimony was harmless error beyond a reasonable doubt. See People v. Kremko, 52 Mich.App. 565, 218 N.W.2d 112 (1974).

Fourth, defendant contends that the prosecutor repeatedly elicited prejudicial testimony as to defendant's drinking habits and life style. This contention is rejected for several reasons. First, defendant herself on direct examination testified as to both of these subjects and thus cannot now claim prejudice. See People v. Wright, 41 Mich.App. 518, 200 N.W.2d 362 (1972). Second, no objection was made and, absent a miscarriage of justice, appellate review is precluded. People...