People v. Ebejer

• Decision Date: 06 January 1976
• Docket Number: Docket No. 19999
• Citation: 66 Mich.App. 333,239 N.W.2d 604
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert E. EBEJER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 604

239 N.W.2d 604

66 Mich.App. 333

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert E. EBEJER, Defendant-Appellant.

Docket No. 19999.

Court of Appeals of Michigan.

Jan. 6, 1976.

Released for Publication March 23, 1976.

Arthur F. Barkey, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Appellate Chief, Larry L. Roberts, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P.J., and WALSH and WHITE, ^* JJ.

WALSH, Judge.

On January 30, 1974, defendant was convicted, after jury trial, of the offense of involuntary manslaughter, M.C.L.A. § 750.321; M.S.A. § 28.553.

The relevant facts are these. On the evening of September 16, 1972, Detroit police officers Jerrie Savin and Stanley Blouse observed a pair of motorcycles exceeding the lawful speed limit on eastbound Seven Mile in Detroit. Both cycles pulled over to the curb and stopped on northbound Shields Street when it became evident to their drivers that the officers were in pursuit. The policemen identified themselves and ordered the cyclists to turn off their engines whereupon the defendant and his passenger, Dave Gudenau, fled the scene on the defendant's Honda 750 motorcycle. The police officers gave chase.

The route followed by defendant in his effort to elude Savin and Blouse is not in dispute, but the defendant's estimated speed at critical points along the way was a seriously contested question of fact. According to the testimony of Savin and Blouse the defendant led them, at speeds of up to 70 or 80 miles per hour, northbound on Shields to East Outer Drive, east on Outer Drive to Justine Street and then south on Justine where the defendant traveled on the sidewalk for a short distance before he crossed a lawn, returned to the pavement and continued south to Seven Mile Road. The officers followed at distances varying from approximately 20 feet to a full city block. Passing through the stop sign at Seven Mile defendant's cycle continued southbound toward the Hilldale intersection located two blocks south of Seven Mile.

Hilldale traffic is regulated by stop signs at that intersection, while Justine is a through street. While defendant's bike proceeded toward the Justine/Hilldale intersection the police officers were held up by traffic at Seven Mile and, except for the bike's red taillight, lost sight of the defendant completely. One of the policemen indicated that, from Seven Mile and Justine, he observed the headlights of an automobile pulling out into the Hilldale/Justine intersection from west to east. The red taillight of the motorcycle then vanished and the officers proceeded to the scene.

Arriving less than a minute after the accident Savin and Blouse observed a late model Cadillac facing east on Hilldale in the middle of the street with a dent in the area of the left front fender. Physical evidence and expert testimony was introduced at trial to show that the defendant's cycle had glanced off the Cadillac, which had entered the intersection to make a left turn, impacted a second time against a parked car on Justine and pushed that vehicle some 28 feet backwards. The people's rebuttal witness, officer Carl Hasten, estimated defendant's speed at the moment of collision with the Cadillac at approximately 100 miles per hour.

The defendant took the witness stand in his own defense and corroborated much of the previous testimony. His explanation for leaving the scene was that the deceased had told him that he had 'downers' (methaqualude) in his possession and so the defendant 'kind of panicked and proceeded down Shields'. He disputed the officer's statements relative to his speed during the chase indicating that he slowed down to approximately 5 miles per hour at each stop sign. He claimed that as he reached the intersection of Hilldale and Justine he was traveling at a speed of about 15 to 20 miles per hour, intending to turn right onto Hilldale or to continue through in the event the Cadillac at his right remained at the intersection. Defendant said that he had figured the car was going to remain where it was and he attempted to proceed through the intersection. Impact occurred when the Cadillac pulled into the intersection, the defendant being unable to avoid a collision.

Keith Farmer, the driver of the Cadillac, testified that he had stopped and was proceeding into the intersection to make a left turn but never saw the approaching motorcycle and never even saw the bike hit the car.

I.

The trial judge instructed the jury on involuntary manslaughter with a motor vehicle and the included offense of negligent homicide, M.C.L.A. § 750.324; M.S.A. § 28.556. With regard to the former offense the jury was told they should convict the defendant if his gross negligence was 'the direct and producing cause' of the death of David Gudenau even though there might have been other causes that contributed. On the subject of contributory negligence of the deceased the jury was advised:

'Now contributory negligence itself is not a defense to this type of an offense or crime providing you are convinced beyond a reasonable doubt that the defendant is guilty of the fourth element of manslaughter. But it is something that you can consider bearing not only on the gross negligence of the defendant, but also bearing on the so-called proximate cause which again is this causal relationship, this direct and producing cause. In other words, in this case, if you determine from the evidence that the direct and producing cause of the death of David Gudenau was, in fact, his own actions or inactions that that was the cause then, of course, your verdict should be not guilty as far as the defendant is concerned.'

The court then capsulized Farmer's testimony and told the jury that if it found 'the negligence of the Cadillac driver was the direct and producing cause' of the collision and death, then their verdict should be not guilty.

It is the defendant's position that these instructions precluded the jury from considering the negligence of the deceased or the other driver unless it found the conduct of one of them to be The proximate cause of the homicide. Defendant argues that this in effect shifted to the defendant the burden of proving that the cause of Gudenau's death was his own negligence or that of the driver of the Cadillac. We disagree.

The jury was properly instructed that the contributory negligence of the deceased would not be a defense to the charge of negligent homicide or involuntary manslaughter but that the conduct of the deceased or a third party should be considered in determining whether defendant was negligent and whether defendant's negligence was 'the' proximate cause of the death. See People v. Campbell, 237 Mich. 424, 212 N.W. 97 (1927); People v. Jeglum, 41 Mich.App. 247, 199 N.W.2d 854 (1972); IV Proposed Michigan Standard Criminal Jury Instructions, 987 A (final draft).

As to the court's statements that the defendant should be acquitted if either the deceased's contributory negligence or the negligence of a third party was 'the' proximate cause of the death, we find that to be no more than an inverse way of repeating that the Defendant's negligence must be 'the' proximate cause of the death. See People v. Scott, 29 Mich.App. 549, 185 N.W.2d 576 (1971). Considered in the context of the entire instruction this statement was neither misleading nor prejudicial, nor did it shift the burden of proof to the defendant.

II.

The information filed against the defendant stated that he had operated his cycle at speeds in excess of 80 miles per hour through two stop signs and seven open intersections. The court allowed testimony as to these facts at trial.

Defendant contends that these events were too remote from the fatal occurrence to be relevant and that reference to them should have been stricken from the information and evidence relating to them excluded from the trial.

It is elemental that decisions with regard to the relevancy of proffered evidence are within the discretion of the trial court and should not be disturbed absent an abuse of that discretion. People v. Harrell, 54 Mich.App. 554, 221 N.W.2d 411 (1974). We find no such abuse here. There was no significant time interval between the first part of the chase and the fatal accident. The officers were in continuous pursuit, and, although they were delayed briefly at Seven Mile Road, they arrived at the scene of the accident within a minute after it occurred. Under the circumstances of this case, the testimony relating to the chase was relevant.

III.

After the defendant had rested, Officer Carl Hasten was permitted to testify as to the estimated speed of the defendant's motorcycle at the moment of impact based upon physical evidence collected and observations made by him at the scene shortly after the collision. His testimony raises three questions: Was it reversible error to allow him to testify as a rebuttal witness; was it reversible error to allow him to testify as to his estimate of defendant's speed at the time of impact; and was his opinion based upon sufficient facts?

Legitimate rebuttal testimony is limited to the refutation or impeachment of relevant and material evidence properly raised by the opposing party. People v. Bennett, 393 Mich. 445, 224 N.W.2d 840 (1975); 1 Gillespie, Michigan Criminal Law & Procedure, 2d ed., 407, pp. 493--494. Ordinarily a prosecutor is prohibited from calling a rebuttal witness to offer testimony which should have been received in his case in chief. People v. Quick, 58 Mich. 321, 25 N.W. 302 (1885). It is still the rule, however, that the decision as to 'whether evidence which could have been offered before resting may be given in rebuttal is a matter within the discretion of the trial court'. People v. Utter, 217 Mich. 74, 185 N.W. 830 (1921). We are not persuaded that the trial court abused its discretion...