People v. England

• Decision Date: 18 May 1989
• Docket Number: Docket No. 99838
• Citation: 438 N.W.2d 908,176 Mich. App. 334
• Parties: , 57 USLW 2747 PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Trevor Craig ENGLAND, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 908

438 N.W.2d 908

176 Mich.App. 334, 57 USLW 2747

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Trevor Craig ENGLAND, Defendant-Appellant.

Docket No. 99838.

Court of Appeals of Michigan.

Submitted Nov. 8, 1988.

Decided April 4, 1989.

Released for Publication May 18, 1989.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., L. Brooks Patterson, Pros.Atty., Robert C. Williams, Chief, Appellate Division, and Paul J. Fischer, Asst. Pros.Atty., for the People.

John D. Lazar, Royal Oak, for defendant-appellant.

Before MACKENZIE, P.J., and WEAVER and QUINNELL, ^* JJ.

PER CURIAM.

Defendant appeals as of right from his bench conviction of two counts of involuntary manslaughter, M.C.L. Sec. 750.321;M.S.A. Sec. 28.553.Defendant was sentenced to concurrent terms of imprisonment of three to fifteen years.

At approximately 1:30 a.m. on June 8, 1985, defendant, driving a 1970 Chevrolet pickup truck, was involved in a collision with a 1983Ford Tempo.The collision occurred at the intersection of Hickory Ridge Road and Rose Center Road in Rose Township, Oakland County.The occupants of the Ford car, Robert and Cecelia Bosak, were killed in the collision.

Following the collision, defendant was taken to the emergency room of a nearby hospital for treatment of various lacerations.Pursuant to the order of the supervising physician, blood was withdrawn from defendant for the purposes of medical treatment.An analysis of the blood sample indicated a blood alcohol level of 0.165 percent.Over defendant's objection, the results of the blood-alcohol test were admitted as evidence under M.C.L. Sec. 257.625a(9);M.S.A. Sec. 9.2325(1)(9).

The trial court issued its decision from the bench.The court found, as a matter of fact, that (1)the defendant had disregarded and failed to stop at the stop sign posted at the Hickory Ridge and Rose Center intersection, (2)the defendant failed to yield the right-of-way at the intersection, and (3)defendant was under the influence of intoxicating liquors at the accident.The court concluded that the prosecution had proven, beyond a reasonable doubt, that the defendant was guilty of gross negligence, resulting in the death of the Bosaks.On appeal, defendant argues he is entitled to reversal of his conviction because the conviction was not supported by sufficient evidence, the results of the blood-alcohol test were erroneously admitted, and testimony of the prosecution's expert witness was not supported by an adequate factual foundation.

Subsequent to trial in this matter, a panel of this Court issued its opinion in People v. Perlos, 170 Mich.App. 75, 428 N.W.2d 685(1988), holdingM.C.L. Sec. 257.625a(9);M.S.A. Sec. 9.2325(1)(9) unconstitutional in that it permits unreasonable searches and seizures of drivers' blood in violation of the federal and state constitutions, U.S. Const. Am. IV;Const. 1963, art. 1, Sec. 11, and violates state and federal guarantees of equal protection, U.S. Const. Am. XIV, Sec. 1;Const. 1963, art. 1, Sec. 1.We fundamentally disagree with the Perlos decision¹ and will devote the majority of this opinion to our analysis of the constitutional issue.However, we will first briefly discuss the other two issues raised by defendant, neither of which requires reversal.

I

We review defendant's claim of insufficient evidence to support his conviction for involuntary manslaughter by looking at the evidence in the light most favorable to the prosecution and the determining whether a rational trier of fact could find all of the essential elements of the crime were proven beyond a reasonable doubt.People v. Petrella, 424 Mich. 221, 268-270, 380 N.W.2d 11(1985).The crime of involuntary manslaughter is established upon a showing that the defendant acted in a grossly negligent, wanton or reckless fashion in causing the death of another.People v. Harris, 159 Mich.App. 401, 406, 406 N.W.2d 307(1987).Defendant argues that the evidence was insufficient to prove him grossly negligent beyond a reasonable doubt.We disagree.

Gross negligence requires:

" '1.Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another.

" '2.Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand.

" '3.The omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.'People v. Orr, 243 Mich 300, 307; 220 NW 777(1928); CJI 16:4:08."People v Sealy, 136 Mich App 168, 172-173; 356 NW2d 614(1984), lv den422 Mich 854(1985).

The first element is satisfied because the operation of an automobile requires the exercise of ordinary care and diligence.People v. Allan, 158 Mich.App. 472, 475, 404 N.W.2d 266(1987).Furthermore, the evidence showed that the intersection of Hickory Ridge Road and Rose Center Road was a particularly dangerous intersection due to a dip on Hickory Ridge Road which rendered it difficult for drivers on Rose Center Road who were approaching the intersection to see a vehicle in the dip.Several witnesses testified that drivers familiar with the intersection were aware of the particular danger, and, when approaching the intersection on Rose Center Road, stopped not only at the stop sign, which was posted fifty-six feet before the intersection, but again at fourteen feet from the intersection where the Hickory Ridge Road traffic was easier to view.By defense counsel's own admission, defendant lived in the area for at least fifteen years.A rational trier of fact could have inferred that the defendant knew of the particular dangers presented by the intersection and that the exercise of ordinary care and diligence was necessary to prevent injury to another.

The second and third elements were satisfied as well.While the intersection was potentially dangerous, evidence was presented that no fatal accident had occurred at the intersection in twenty-four years and that harm could be avoided by the exercise of ordinary care and diligence.While testimony concerning defendant's failure to stop at the posted stop sign on Rose Center Road and his driving at an excessive rate of speed were disputed, the trial court's finding that defendant failed to stop at the sign or yield the right of way was certainly not clearly erroneous.Thus, even in the absence of the evidence of defendant's intoxication, a rational trier of fact could have found that, under the circumstances (night time, defendant's familiarity with the intersection, excessive speed, and failure to stop at the posted stop sign), defendant omitted to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.

II

Defendant also contends the trial court erred in admitting the testimony of Michigan State Police Trooper Richardson, an expert in accident reconstruction.We disagree.

The determination as to the qualification and admissibility of expert testimony is within the trial court's discretion and will not be reversed on appeal absent a showing of abuse of that discretion.People v. Badour, 167 Mich.App. 186, 192, 421 N.W.2d 624(1988).The critical inquiry with respect to admitting expert testimony is whether such testimony will aid the factfinder in making the ultimate decision in the case.Kinzie v. AMF Lawn & Garden, Division of AMF, Inc., 167 Mich.App. 528, 533, 423 N.W.2d 253(1988), citingPeople v. Smith, 425 Mich. 98, 105, 387 N.W.2d 814(1986).An opposing party's disagreement with an expert's interpretation of the facts, or the expert's ultimate opinion, is an issue of credibility or weight of the testimony, not admissibility.Eide v. Kelsey-Hayes Co., 154 Mich.App. 142, 155, 397 N.W.2d 532(1986), modified on other grounds, 431 Mich. 26, 427 N.W.2d 488(1988).

Defendant did not dispute Trooper Richardson's qualification as an expert in accident reconstruction.The record reflects that Richardson's testimony was helpful to the trier of fact.Specifically, his testimony with respect to the speed of the respective vehicles prior to the collision was critical to a factual determination of whether defendant had stopped at the posted stop sign or yielded the right of way.Additionally, Richardson's testimony regarding which vehicle hit the other, based on his examination of the damage to the vehicles, was also helpful on the issue of defendant's possible negligent conduct.Defendant's assertion that much of Trooper Richardson's testimony was not based on "first-hand knowledge," but rather on facts and assumptions gathered by nonexperts, would not preclude its admission.Gainey v. Sieloff (On Remand), 163 Mich.App. 538, 545, 415 N.W.2d 268(1987).

Defendant also argues that Trooper Richardson's testimony regarding the speed tests he conducted using a 1984 pickup truck was irrelevant to the determination of the acceleration capacity of defendant's 1970 vehicle given the mechanical differences between the two vehicles.In considering the admissibility of test results, it is not necessary " 'that the conditions should be exactly identical, but a reasonable or substantial similarity is sufficient.' "Jenkins v. Frison Building Maintenance Co., 166 Mich.App. 716, 719, 421 N.W.2d 275(1988), quotingSmith v. Grange Fire Ins. Co. of Michigan, 234 Mich. 119, 126, 208 N.W. 145(1926).

" '[T]he lack of exact identity affects only the weight and not the competency of the evidence, provided always that there is such a degree of similarity that evidence of the experiments made will accomplish the desideratum of assisting the jury to an intelligent consideration of the issues of fact presented.' "Id.

The speed tests conducted by Richardson were particularly relevant to the issue of whether defendant had failed to stop at the stop sign, i.e., whether, given the speed of defendant's...