People v. Thinel

• Decision Date: 21 January 1988
• Docket Number: Docket No. 103870
• Citation: 164 Mich.App. 717,417 N.W.2d 585
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Everett THINEL, Defendant-Appellant (On Remand).
• Court: Court of Appeal of Michigan — District of US

Page 585

417 N.W.2d 585

164 Mich.App. 717

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Everett THINEL, Defendant-Appellant (On Remand).

Docket No. 103870.

Court of Appeals of Michigan.

Submitted Oct. 12, 1987.

Decided Dec. 7, 1987.

Released for Publication Jan. 21, 1988.

[164 MICHAPP 718] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Graham K. Crabtree, Asst. Pros. Atty., for the People.

Patrick J. Brennan, Pontiac, for defendant-appellant.

Before HOOD, P.J., and BEASLEY and MacKENZIE, JJ.

[164 MICHAPP 719] HOOD, Presiding Judge.

This case has been remanded to us by the Michigan Supreme Court for a determination of whether a jury instruction on gross negligence, which we found erroneous, was harmless. 429 Mich. 859, 412 N.W.2d 923.

The facts of this case are set forth in our prior opinion, People v. Thinel, 160 Mich.App. 450, 408 N.W.2d 474 (1987). Defendant was convicted of involuntary manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553, arising out of a traffic accident. While intoxicated, defendant attempted to make a left turn onto westbound Woodside Street in Royal Oak. His automobile struck Carla Anderson's automobile head-on, killing Ms. Anderson. A blood alcohol test revealed that defendant's blood-alcohol level was 0.23 percent at the time.

At trial, the court instructed the jury that it was gross negligence for a person to operate his automobile while under the influence of liquor. We reversed and remanded for a new trial on the ground that the instruction took the determination of gross negligence, an essential element of involuntary manslaughter, away from the jury. Citing People v. Reed, 393 Mich. 342, 224 N.W.2d 867 (1975), cert. den. 422 U.S. 1044, 1048, 95 S.Ct. 2660, 2665, 45 L.Ed.2d 696, 701 (1975), we reasoned that defendant had the right to have the jury decide whether all the elements of involuntary manslaughter had been established and that the harmless error rule did not apply to this instructional error. The Supreme Court remanded, stating that the harmless error rule is applicable, under People v. Woods, 416 Mich. 581, 331 N.W.2d 707 (1982), reh. den. 417 Mich. 1113 (1983), cert. den. 462 U.S. 1134, 103 S.Ct. 3116, 77 L.Ed.2d 1370 (1983). In Woods and its companion case, People v. Alexander, the Court applied the harmless error rule to instructional[164 MICHAPP 720] errors in two different contexts. In Woods, the defendants were charged with first-degree murder. In its instruction on implied malice, the trial court stated:

" 'Implied malice is where the law draws inferences and conclusions from the act itself. For instance A meets B on the street. A is armed with a revolver. A takes the gun out of his pocket and shoots and kills B without any provocation, without any explanation or justification. This is a showing that this is done with malice. And it's said to be implied malice because the law will imply the existence of malice from the very act itself, from the circumstances under which it was committed.

"The proof of either expressed or implied malice is all the law requires in order to have malice.' " Woods, supra, 416 Mich. at 595-596, 331 N.W.2d 707.

The Supreme Court stated that it was error to instruct that the law will imply malice from the unprovoked, inexcusable, unjustifiable killing of another. Woods, supra, at 597, 331 N.W.2d 707. The Court then stated:

"Given that the instruction was erroneous, the issue becomes whether this error was harmless. The standard applied on appellate review is whether the error was prejudicial. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972).

"Under the facts of the immediate case, the defendants were not prejudiced by the erroneous instruction, for the testimony of Willie Lee Lewis, which must have been believed by the jury to find the defendants guilty as accomplices ..., indicated acts of express malice. No acts supported or allowed the implication of malice; thus the instruction on implied malice was completely superfluous.

* * *

* * *

"A per se harmless error rule cannot be justified by quoting the general rule from cases such as [164 MICHAPP 721] People v. Visel, 275 Mich 77, 81; 265 NW 781 (1936), that a '[d]efendant has a right to have a [properly instructed] jury pass upon the evidence.' Whether an instruction is reversible depends on whether it was prejudicial, and no reasoning or case law suggests that we should now discard that sound approach." Woods, supra, at 597-598, 600-601, 331 N.W.2d 707.

In Alexander, the defendant was charged with second-degree murder after shooting the victim, her boyfriend, after an argument at the defendant's house. The defendant claimed the shooting was accidental. The trial court instructed the jury that people are presumed to intend the consequences of their acts. The Supreme Court held that this instruction was error, as it infringed upon the defendant's right to be found guilty of the crime beyond a reasonable doubt. Id., at 612-613, 331 N.W.2d 707. The Court then stated:

"We must next determine whether the error was harmless beyond a reasonable doubt. '[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt,' by a showing that 'the error complained of did not contribute to the verdict obtained.' Chapman v California, 386 US 18, 24; 87 S Ct 824; 17 L Ed 2d 705 (1967). When the improper evidence is merely cumulative and the admissible evidence overwhelming, a constitutional error may be deemed harmless. Harrington v California, 395 US 250; 89 S Ct 1726; 23 L Ed 2d 284 (1969).

"In the immediate case, the defendant was charged with and convicted of second-degree murder. Intent was an element of the offense. However, this essential element was directly disputed by the defendant, for one of her theories of defense was that the killing was accidental. Because the erroneous instruction allowed the shifting of the prosecutor's burden on a critical element of the [164 MICHAPP 722] case, we cannot say that it did not contribute to the verdict obtained.

"This conclusion is further supported by the lack of overwhelming evidence on the element of intent." Woods, supra, at 613-614, 331 N.W.2d 707.

The Court went on to state that the evidence supported the defendant's theory of accident, and that, thus, the error was not harmless as the testimony on the defendant's intent was conflicting.

In the instant case, we find the instructional error to be harmless because of the overwhelming evidence of defendant's guilt. Defendant had a blood-alcohol level of 0.23 percent. At the accident site, defendant was staggering and incoherent. His eyes were bloodshot and watery, and he smelled of alcohol. He was verbally abusive to the police officers, and thought he was registering for classes at the police station. He did not know why his car was damaged. The accident reconstruction expert testified that defendant's car was struck by Ms. Anderson's vehicle when he made a left turn into her path under circumstances such that she had no time to apply her brakes. This case is not similar to Alexander, in which the crucial issue of intent was hotly disputed by the defendant. Rather, defendant in the instant case admitted drinking before driving and stated only that he thought he had enough distance to turn in front of Ms. Anderson. We feel that the instructional error was not one which likely affected the verdict.

Since we find the instructional error to be harmless, we must consider the other issues raised by defendant which were not addressed in our prior opinion. First, defendant claims that there was insufficient evidence that he committed involuntary manslaughter and that the jury's verdict was against the great weight of the evidence. The [164 MICHAPP 723] standard of review in a sufficiency claim is whether a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979), reh. den. 407 Mich. 1164 (1980), cert. den. 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980). People v. Ross, 145 Mich.App. 483, 492, 378 N.W.2d 517 (1985). The crime of involuntary manslaughter is established if a defendant acts 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). A finding of gross negligence for purposes of involuntary manslaughter 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).]" Harris, supra, at 406, 406 N.W.2d 307.

In People v. Allan, 158 Mich.App. 472, 404 N.W.2d 266 (1987), this Court found sufficient evidence to convict the defendant of involuntary...