People v. Florida, Docket No. 19351

• Decision Date: 09 June 1975
• Docket Number: Docket No. 19351,No. 1,1
• Citation: 233 N.W.2d 127,61 Mich.App. 653
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Hubert FLORIDA, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 127

233 N.W.2d 127

61 Mich.App. 653

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Hubert FLORIDA, Defendant-Appellant.

Docket No. 19351.

Court of Appeals of Michigan, Division No. 1.

June 9, 1975.

Released for Publication Sept. 30, 1975.

Zemke & Lustig, Norman L. Zemke, Southfield, for defendant-appellant.

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

Before ALLEN, P.J., and BRONSON and KAUFMAN, JJ.

ALLEN, Presiding Judge.

Defendant appeals as of right from a jury verdict in the Recorder's Court, Traffic and Ordinance Division, of manslaughter in the operation of an automobile. M.C.L.A. § 750.321; M.S.A. § 28.553. October 16, 1973, he was sentenced to a term of 3 to 15 years in prison.

Because defendant's credibility, the degree of negligent operation of the vehicle, and the proper definition of gross negligence are the essential elements in issue on this appeal, a recitation of the facts is important. Sometime before midnight May 25, 1973, defendant and deceased, owner of the vehicle involved, were engaged in drinking near the intersection of Sproat and Park streets in the City of Detroit at a point approximately one block west of the scene of the accident. Shortly after midnight, defendant and deceased drove off in a Buick, proceeding eastward on Sproat toward the Woodward and Sproat intersection. Though the speed limit on Sproat was 25--30 miles per hour, the car was moving about 70 miles per hour and the tires were squealing. As the Buick approached Woodward, its right front fender struck the left rear corner of a garbage truck parked along the curb on the right side of Sproat, then careened into the rear of a Chevrolet stopped on Sproat to cross Woodward. The impact knocked the Chevrolet into a gas station across Woodward, and the Buick came to rest with its right front end in the second southbound lane of Woodward.

After the incident, defendant was found behind the steering wheel with abrasions on his head. The passenger side of the Buick was crushed in, its dashboard and hood pushed back into the passenger seat. Deceased was found on the floor on the passenger side. Several witnesses testified defendant was behind the wheel after the impact but defendant informed officers who arrived at the scene that the deceased was the driver. Defendant's statement was substantiated by one witness who said that the Buick had passed her just prior to the accident and at that time she observed defendant riding on the passenger side. Defendant tried the case on the theory that he was the passenger in the Buick and not the driver.

Because we find error as to issue III raised by defendant we shall consider this claim of error first and thereafter discuss such other issues as may be helpful upon retrial of this case. Relying upon People v. Orr, 243 Mich. 300, 220 N.W. 777 (1928), and People v. Keiswetter, 7 Mich.App. 334, 340, 151 N.W.2d 829 (1967), defendant argues that the trial court committed reversible error in its instruction to the jury regarding the definition of gross negligence. Orr set forth the necessary elements which must be found to convict one of involuntary manslaughter, stating:

'(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.' 243 Mich. at 307, 220 N.W. at 779.

The Supreme Court subsequently approved a jury instruction defining gross negligence in accordance with the above, and referred to the fact that the defendant-driver had '(k)nowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another'. People v. Layman, 299 Mich. 141, 145--146, 299 N.W. 840, 841 (1941). Keiswetter also enumerated the three elements involved in a charge of involuntary manslaughter. 7 Mich.App. at 340, 151 N.W.2d at 831.

In the instant case, the trial court instructed the jury on the definition of gross negligence. While doing so, the court charged:

'that wilful or wanton disregard for the safety of persons means the commission of conscious acts or omissions which the driver knows or should know create an unreasonable amount of injury to persons.'

However, the trial court continued, stating:

'It is not necessary, to be wilful or wanton, for the driver to be personally conscious of the danger created by the manner of driving; it is sufficient that he should realize it.'

The trial court continued, noting that the driver's inability or unwillingness to recognize the danger may be a factor of his reckless disposition, and stated '(i)t is sufficient that the driver has reason to know of circumstances and probabilities which should apprise an ordinary, prudent, and reasonable driver of the highly dangerous character of his driving'. In the next sentence, the trial court charged the jury that for the driver to be grossly negligent or willful or wanton, his conduct 'must be conscious on his part, but it need not be intentional in the sense that he intended to cause harm'. The court correctly charged that gross negligence 'supplies or takes the place of the intent'. See People v. Campbell, 237 Mich. 424, 428, 212 N.W. 97 (1927). However, the trial court then continued, stating: 'All that is necessary is that the driver should realize the strong probability of harm likely to ensue even though he hopes or even expects nothing will happen'.

Having examined the jury instructions as a whole, we have determined that the trial court failed to properly instruct the jury on the elements of involuntary manslaughter, and in particular erroneously defined the concept of gross negligence. Plaintiff's cases are inapposite. People v. Sauer, 143 Mich. 308, 310, 106 N.W. 866 (1906), involved the approval of a trial court's jury instruction which included the statement that defendant did not have the right to 'knowingly point (his) gun in the direction of any person'. This would seem to support defendant's contention that the trial court's statement that it was not necessary for defendant to know of the danger was error. ¹ People v. Ryczek, 224 Mich. 106, 112, 194 N.W. 609 (1923), involved an auto-pedestrian accident, in which the court said that if defendant had even casually glanced ahead of him, 'he would have observed the children approaching'. This seemingly would support the prosecutor's contention that the trial court's instruction that defendant 'should have' recognized the danger, was a proper instruction. However, Ryczek, while discussing the 'thoughtless disregard of consequences' aspect of gross negligence, does not contain a discussion as to the three elements enumerated above, and we do not read it as precluding the requirement that those elements be articulated to the jury.

Further, the people have referred the Court to 3 Gillespie, Mich. Criminal Law and Procedure (2d ed.), § 1670, Form 793, pp. 2022--2023, in support of the trial court's instruction. That form instruction fails to contain the language at issue, but a further examination of Gillespie, Supra, has revealed that Form 794, p. 2023, contains the discussion of the three necessary elements which must be found to support a conviction of involuntary manslaughter. Further, Gillespie, supra, Form 797, p. 2025, contains a definition of gross negligence of the driver of an automobile charged with involuntary manslaughter, and includes a discussion of the three necessary elements which we have discussed above, citing therefor, People v. Layman, supra. See also 3 Gillespie, Mich. Criminal Law and Procedure (2d ed.), § 1658, pp. 2003--2004, relying upon People v. Orr, supra.

Although defense counsel failed to object to the trial court's jury instructions, we find that manifest prejudice has resulted in the trial court's failure to include 'legally essential ingredients' of the charge of involuntary manslaughter. The trial court failed to properly define gross negligence, and we find that defendant's right to have the jury properly instructed upon the elements of the crime was abridged. People v. Liggett, 378 Mich. 706, 714, 148 N.W.2d 784, 788 (1967). Therefore, we must reverse defendant's conviction and remanded for a new trial.

Defendant's allegation of error number IV, is the impropriety of the trial court's instruction that the violation of the assured clear distance statute, M.C.L.A. § 257.627(a); M.S.A. § 9.2327(a), was negligence per se. The court charged the jury that if they found that defendant had violated the provisions of that statute, the jury should find that he was negligent as a matter of law. The court charged that if the jury found that defendant had violated that statutory provision, said violation 'would amount to at least ordinary negligence, and perhaps gross negligence'. The jury was instructed to determine, from all of the surrounding circumstances and facts, including whether defendant had violated the assured clear distance rule, as to whether defendant was ordinarily or grossly negligent. While defendant has not challenged the following on appeal, we note that the court further charged the jury on the applicability of the statute making it unlawful to drive a motor vehicle while under the influence of intoxicating liquor, M.C.L.A. § 257.625; M.S.A. § 9.2325, and the statute making it unlawful for one to drive when his visibility is impaired due to intoxicating liquor. M.C.L.A. § 257.625b; M.S.A. § 9.2325(2). Subsequent thereto, the court explained the difference between intoxication and impairment, and said that if the jury found that defendant drove his vehicle when visibly impaired,...