People v. McCoy
| Decision Date | 16 May 1997 |
| Docket Number | Docket No. 191854 |
| Citation | 223 Mich.App. 500,566 N.W.2d 667 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arsner Burnett McCOY, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timonty A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for People.
Roman S. Karwowski, Detroit, for Defendant-Appellant on appeal.
Before REILLY, P.J., and WAHLS and N.O. HOLOWKA *, JJ.
Defendant appeals as of right his jury trial convictions of involuntary manslaughter, M.C.L. § 750.321; M.S.A. § 28.553, felonious driving, M.C.L. § 752.191; M.S.A. § 28.661, and leaving the scene of an accident, M.C.L. § 257.617; M.S.A. § 9.2317. Defendant was sentenced as a third-offense habitual offender, M.C.L. § 769.11; M.S.A. § 28.1083, to concurrent terms of twelve to thirty years' imprisonment for the manslaughter conviction, three to ten years' imprisonment for the felonious driving conviction, and one to four years' imprisonment for the conviction of leaving the scene of an accident. We affirm.
Defendant's first claim on appeal is that the prosecution presented insufficient evidence of gross negligence to support his convictions of manslaughter and felonious driving. We disagree.
In reviewing claims of insufficiency of the evidence to sustain a verdict, this Court views the evidence in the light most favorable to the prosecution to determine if a rational factfinder could find the essential elements of the crime proved beyond a reasonable doubt. People v. Honeyman, 215 Mich.App. 687, 691, 546 N.W.2d 719 (1996). An unlawful act, committed with the intent to injure or in a grossly negligent manner, that proximately causes death is involuntary manslaughter. People v. Datema, 448 Mich. 585, 606, 533 N.W.2d 272 (1995). As with involuntary manslaughter, a conviction of felonious driving requires proof of gross negligence. People v. Chatterton, 411 Mich. 867, 307 N.W.2d 333 (); see People v. Johnson, 174 Mich.App. 108, 116, 435 N.W.2d 465 (1989). The Court in Datema, supra, p. 604, 533 N.W.2d 272, explained the distinction between criminal intent, negligence, and gross negligence:
[T]he legally significant mental states [should be viewed] as lying on a continuum: criminal intention anchors one end of the spectrum and negligence anchors the other. Intention, as explained by Professor Hall, "emphasiz[es] that the actor seeks the proscribed harm not in the sense that he desires it, but in the sense that he has chosen it, he has decided to bring it into being." General Principles of Criminal Law (2d ed.), p. 114. Negligence, lying at the opposite end of the spectrum, "implies inadvertence, i.e., that the defendant was completely unaware of the dangerousness of this behavior although actually it was unreasonably increasing the risk of occurrence of an injury." Id.
Criminal negligence, also referred to as gross negligence, lies within the extremes of intention and negligence. As with intention, the actor realizes the risk of his behavior and consciously decides to create that risk. As with negligence, however, the actor does not seek to cause harm, but is simply "recklessly or wantonly indifferent to the results."
Here, two sisters were standing on the yellow line in the middle of Greenfield Road waiting for traffic to clear when they were struck from behind by a van driven by defendant. One of the sisters was killed, and the other was injured. The accident occurred at approximately 3:00 p.m. on February 3, 1995, as the deceased was on her way home from school. The sole witness to the accident testified that the van was traveling at a speed of approximately fifty to fifty-five miles an hour when it struck the two sisters. The posted speed limit was thirty-five miles an hour. Defendant argues that this evidence was insufficient to show that he was driving in a grossly negligent manner at the time that he struck the decedent.
In order to show gross negligence, the following elements must be established:
(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. Lardie, 452 Mich. 231, 251-252, 551 N.W.2d 656 (1996); People v. Orr, 243 Mich. 300, 307, 220 N.W. 777 (1928).]
Here, there is no question that a jury could properly infer that defendant knew that the act of driving requires the exercise of ordinary care and diligence to avert injury to others. Similarly, there is no question that a jury could properly infer under these facts that defendant had the ability to avoid the harm that occurred by exercising ordinary care and diligence, but failed to do so. Accordingly, the only question is whether to the ordinary mind it must have been apparent that the result was likely to prove disastrous to another. Lardie, supra, p. 244, 551 N.W.2d 656; Orr, supra, p. 307, 220 N.W. 777.
A violation of the speed limit, by itself, is not adequate to establish the element of gross negligence. Lardie, supra, p. 244, 551 N.W.2d 656; People v. Barnes, 182 Mich. 179, 193, 148 N.W. 400 (1914). However, under certain circumstances, a violation of the speed limit can be gross negligence. To state the obvious, a jury could properly determine that traveling at a speed of one hundred miles an hour through a residential neighborhood is gross negligence. Similarly, given the right conditions, it is possible to drive in a grossly negligent manner even in the absence of exceeding the speed limit (e.g., in heavy traffic, on slick roads, or in fog). Accordingly, the appropriate consideration is not whether defendant was exceeding the speed limit, but rather, whether defendant acted with gross negligence under the totality of the circumstances, including defendant's actual speed and the posted speed limit. See Barnes, supra, p. 193, 148 N.W. 400. This is a question that ordinarily is for...
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