People v. Robinson

• Citation: 107 Mich.App. 417,309 N.W.2d 624
• Decision Date: 30 June 1981
• Docket Number: No. 49922,49922
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. McClinton ROBINSON, Defendant-Appellant. 107 Mich.App. 417, 309 N.W.2d 624
• Court: Court of Appeal of Michigan (US)

Page 624

309 N.W.2d 624

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. McClinton ROBINSON, Defendant-Appellant.

No. 49922.

107 Mich.App. 417, 309 N.W.2d 624

Court of Appeals of Michigan.

June 30, 1981.

Released for Publication Sept. 10, 1981.

[107 MICHAPP 418] Janice M. Joyce, Detroit, for plaintiff-appellee.

Gerald M. Lorence, Detroit, for defendant-appellant.

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

PER CURIAM.

Defendant was convicted by jury of murder in the second degree, M.C.L. § 750.317; M.S.A. § 28.549. He was sentenced to 10 to 20 years imprisonment to run concurrently with a sentence of 20 to 30 months for a probation violation. This Court granted defendant's application for delayed appeal.

On November 5, 1978, Geneva Williams suffered [107 MICHAPP 419] a wound from a shotgun blast to her left arm; her arm subsequently required amputation. Thirty-nine days after she was wounded, the victim died. According to the medical examiner, death was due to a shotgun wound of the left arm, complicated by sepsis and pneumonia. Defendant was charged with murder in connection with the death of Geneva Williams.

In addition to the testimony of witnesses, who were present in the area at the time of the shooting, the people introduced a statement made by defendant to the police in which he admitted that he was holding a shotgun at the time it discharged, striking Geneva Williams in the arm. However, defendant stated that the gun had accidentally fired when he turned to ascend a flight of stairs and the gun hit the bannister.

Defendant offered the testimony of Robert Sillery, an expert in pathology, and, at the time, chief medical examiner for Oakland County. Dr. Sillery testified that he was capable of rendering an opinion as to the cause of death based upon an examination of medical records of a deceased without having actually examined the deceased. He stated that he examined the records of Geneva Williams and that in his opinion the cause of death was septicemia and bronchial pneumonia. He testified that because of the nature of the wound, unless surgical removal of the areas of contamination occurred within 48 hours, blood poisoning would set in. Defense counsel asked Dr. Sillery if he had a medical opinion as to whether the victim's arm should have been amputated immediately. Over the prosecutor's objection, the trial court allowed the doctor to state that the arm should have been amputated immediately. The doctor was also allowed to testify that, in his opinion, had the arm been removed immediately [107 MICHAPP 420] the victim would be alive today. Defense counsel attempted on a number of occasions to ask Dr. Sillery if in his opinion the attending surgeons acted in a grossly unskillful or negligent manner. The trial court ruled:

"The doctor can testify to his conclusions. He already made a conclusion. But as to what the degree of negligence was would not be drawn by the doctor."

The general rule upon which defendant based his theory is that where a wound is not fatal, and the victim may have recovered, "grossly erroneous" medical treatment received by the victim resulting in death breaks the causal connection of an accused's act and may exculpate him from guilt in the crime of homicide. See People v. Flenon, 42 Mich.App. 457, 460-462, 202 N.W.2d 471 (1972), lv. den. 388 Mich. 801 (1972), and cases cited therein. Mere "negligent" medical treatment is a foreseeable event, and will not suffice. Defense counsel was attempting to elicit an opinion from Dr. Sillery that the failure of the attending surgeons to promptly amputate the victim's arm in the present case was "grossly erroneous".

The question presented is whether, in light of MRE 704, which allows otherwise admissible expert opinion to embrace an ultimate issue of fact, the trial court improperly precluded Dr. Sillery from rendering his opinion that the attending surgeons' failure to promptly amputate the victim's arm was "grossly erroneous" or "grossly unskillful".

We are obviously dealing with an "ultimate issue". But that is not the end of our inquiry. The opinion of the doctor must be otherwise admissible. Particularly, the court must determine that the opinion "will assist the trier of fact to understand[107 MICHAPP 421] the evidence or to determine a fact in issue", MRE 702, and the opinion must not tend to mislead or confuse the jury. MRE 703. Generally, those jurisdictions which allow an expert to testify on an ultimate issue nevertheless preclude an opinion in the form of a legal conclusion. McCormick, Evidence (2d ed), § 12, pp. 28-29.

This Court recently addressed the issue in terms of whether an expert could render his opinion that a defendant was or was not "mentally ill" or "insane" at the time of the alleged offense. In People v. Drossart, 99 Mich.App. 66, 82, 297 N.W.2d 863 (1980), the Court stated that such testimony did not invade "the provinces of the judge and jury". As stated by McCormick, supra, "invasion of the province of the jury" (or judge) is little more than rhetoric, and the real fears are that the jury will subordinate its own analysis to the opinion of the expert, or, as stated by Judge Allen in Drossart, the legal standard of the expert may be incorrect, incorrectly understood by the jury, or conflict with the trial court's instruction. Drossart, pp. 76-77, 297 N.W.2d 863. The Drossart opinion goes on to state that the latter dangers would not be present "if, in expressing his ideas and opinions on the matter, the witness refers to legal standards properly explained by the trial court or examining...