People v. Cutler

• Decision Date: 02 October 1978
• Docket Number: Docket No. 28493
• Citation: 272 N.W.2d 206,86 Mich.App. 118
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Murphy CUTLER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 206

272 N.W.2d 206

86 Mich.App. 118

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Murphy CUTLER, Defendant-Appellant.

Docket No. 28493.

Court of Appeals of Michigan.

Oct. 2, 1978.

Released for Publication Dec. 18, 1978.

Thomas Rasmusson, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before ALLEN, P. J., and CYNAR and FREEMAN, JJ.

FREEMAN, Judge.

Following a jury trial, defendant was convicted of two counts of involuntary manslaughter, M.C.L. § 750.321; M.S.A. § 28.553, sentenced to concurrent prison terms of 11/2 to 15 years and fined $1,500 on each count. He appeals as of right.

The record establishes that at about 11 p. m. on January 26, 1973, 16-year-old Warren Hoeman was the driver of a southbound car on Carpenter Road in Washtenaw County. His 18-year-old brother, Roy, and Roy's 14-year-old girlfriend, Susan Layton, were passengers in the auto. They were returning home from a drive-in movie.

Warren Hoeman testified that he saw a pair of headlights coming directly at him just after he crossed a freeway overpass on Carpenter Road; that he was in his own lane; that he yelled, "Look out!", and hit the brakes; that the next thing he remembered was waking up in a hospital.

Helen Hoeman, the mother of Warren and Roy, had also attended the drive-in movie in another car with two of her other children. She left the theater just a short time before Warren and Roy and proceeded south down Carpenter Road. Mrs. Hoeman testified that there was another southbound automobile ahead of her; that a northbound car, a large car with a red roof, entered the southbound lane forcing that southbound auto off the road; and that the northbound car, as it approached her, likewise, forced her off the road.

Police officers who arrived at the scene at about 11:10 p. m. found Roy Hoeman and Susan Layton dead in the backseat of the car in which they had been riding, Warren Hoeman injured in the front seat and the Hoeman car demolished. They found defendant standing next to his car, a red Pontiac. His eyes were bloodshot and very watery; he was incoherent and unstable; his breath smelled of alcohol. There was blood on defendant's face and arm. When a police officer inquired as to his condition, he said that there was nothing wrong and denied that he was bleeding. He became belligerent and began to curse. At one point, for no apparent reason, defendant approached a police officer, stated that he was not involved in the accident and was not going to worry about it, and began to laugh. He appeared to the police officers to be highly intoxicated.

Defendant was arrested for DUIL. ¹ He was first taken to a hospital. There he again became belligerent and profane. The doctor who examined him testified that he was intoxicated.

Defendant was then taken to jail where, at about 12:40 a. m., pursuant to M.C.L. § 257.625c Et seq.; M.S.A. § 9.2325(3) Et seq., two Breathalyzer tests were administered. Both tests indicated a blood alcohol level of 0.18%.

Carpenter Road, at the scene of the accident, is a straight, two lane, north/south, paved road. There were no chuckholes or other obstructions in the road. The weather was clear at the time of the accident. The road was slightly damp, but not wet.

Defendant, a grocery store butcher, left work between 3:30 and 4 p. m. on the day of the accident and proceeded to a bar where a number of the store's meat department employees were meeting to celebrate the promotion of a fellow employee. He remained at the bar until about 11 p. m. He was drinking mixed drinks, bourbon and coke. Defendant testified, at one point, that he drank 6 such drinks while at the bar and that it was unlikely that he had more; but, at another point, that he had one drink an hour for 7 hours. Upon leaving the bar, he did not feel intoxicated. He entered his car and proceeded northbound on Carpenter Road. Defendant further testified that he did not at any time leave his lane and enter the southbound lane, or force any other car off the road; that he did not observe the Hoeman car approaching him, that it, in an instant, just appeared before him in his, the northbound, lane; that he did not remember anything from the time of the accident until he arrived at the jail.

Gary Fett, one of defendant's co-workers who was at the bar with the group of meat department employees between 3 p. m. and 8 or 9 p. m., testified that defendant had around 8 drinks during that period; that the whole group was a little loud; that there was some slurring of speech; and that they talked about the same subject over and over. He believed defendant was affected by the alcohol he consumed.

Helen Whiting, the bartender until 10 p. m., testified that she served defendant 6 or 7 drinks up until that time; that she sat at defendant's table from 10 p. m. until he left at about 11 p. m.; that he did not appear intoxicated.

Jeffrey Farnsworth, another of defendant's co-workers, was present at the gathering from about 3 p. m. until defendant left at 11 p. m. He testified that defendant did not appear intoxicated when he left. ²

Lieutenant Leonard Dexter of the Washtenaw County Sheriff's Department was in charge of the investigation of the accident. The trial court ruled that he qualified as an expert in accident reconstruction. On the basis of the measurements, photographs and observations he made at the scene on the night of the accident, he testified that everything indicated that the collision occurred in the southbound lane.

Harold Sherman of the University of Michigan Safety Research Institute, on the basis of the measurements and photographs admitted in evidence, and on the basis of his observations made at the scene on the night of the accident, testified that the collision occurred in the southbound lane, that it could not have occurred in the northbound lane. ³

Gerald Wieczorek, an accident investigator who testified on behalf of defendant, investigated the scene and the two vehicles involved nearly two weeks after the accident occurred. On the basis of the evidence admitted at trial and his observations, he testified that the collision occurred in the northbound lane. Although the trial court did permit Mr. Wieczorek's opinion testimony to go to the jury, it ruled outside the presence of the jury that he did not qualify as an expert in accident reconstruction.

Defendant raises 8 issues on appeal, two of which merit discussion. He first contends that the trial court committed reversible error in admitting, over defendant's objection, evidence of the Breathalyzer results. The Breathalyzer tests were administered pursuant to M.C.L. § 257.625c Et seq.; M.S.A. § 9.2325(3) Et seq. There can be no doubt that the evidence of the results was inadmissible in this, a manslaughter prosecution. People v. Keen, 396 Mich. 573, 242 N.W.2d 405 (1976). ⁴ The question becomes whether the error was so offensive to the maintenance of a sound judicial process that it never can be regarded harmless; and, if not so basic, whether we can declare a belief that the error was harmless beyond a reasonable doubt. People v. Robinson, 386 Mich. 551, 563, 194 N.W.2d 709 (1972). We have little difficulty in concluding that the admission of Breathalyzer results in a manslaughter prosecution is not an error so basic that it never can be regarded as harmless, and proceed to the second element of the harmless error test.

The probative value, and the impact on a jury, of scientific evidence such as Breathalyzer results cannot be gainsaid. This is especially so where, as here, the prosecutor, in closing argument, placed some emphasis on the Breathalyzer evidence; and the court, in its charge, instructed the jury that a 0.18% Blood alcohol level gives rise to a legal presumption that the defendant was under the influence of intoxicating liquor. ⁵ However, we have reviewed the record in this matter very carefully. The evidence against defendant is overwhelming. By his own admission, he consumed 6 or 7 mixed drinks at the bar between about 4 p. m. and 11 p. m., the time of the accident. One of defendant's co-workers present at the bar testified that defendant was affected by the alcohol he consumed. There is credible testimony that he entered the southbound lane of Carpenter Road and forced two cars off the road before colliding with the Hoeman vehicle. The police officers who encountered defendant at the scene of the crime, and who, due to the nature of their work, have considerable experience in such matters, concluded that he was highly intoxicated. Defendant's bizarre behavior at the time provides ample substantiation of their conclusion. The doctor who examined defendant at the hospital concluded that he was intoxicated. Lieutenant Dexter, a qualified expert in accident reconstruction, arrived at the scene and gathered...