People v. Thinel

• Decision Date: 17 July 1987
• Docket Number: Docket No. 80789
• Citation: 160 Mich.App. 450,408 N.W.2d 474
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Everett THINEL, Defendant-Appellant. 160 Mich.App. 450, 408 N.W.2d 474
• Court: Court of Appeal of Michigan — District of US

Page 474

408 N.W.2d 474

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

Docket No. 80789.

160 Mich.App. 450, 408 N.W.2d 474

Court of Appeals of Michigan.

Submitted Jan. 6, 1987.

Decided June 1, 1987.

Released for Publication July 17, 1987.

[160 MICHAPP 451] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Division, and Graham K. Crabtree, Asst. Pros. Atty., for the People.

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

[160 MICHAPP 452] Before HOOD, P.J., and BEASLEY and TOWNSEND ^*, JJ.

PER CURIAM.

Defendant was convicted by a jury of involuntary manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553, in the vehicular death of Carla Jean Anderson and was sentenced to from seven to fifteen years in prison. After granting his delayed application for leave to appeal, this Court denied his motion to remand for a determination of whether the verdict was against the great weight of the evidence. Subsequently, our Supreme Court, in lieu of granting leave, reversed this denial and ordered this Court to remand to the trial court in order to hear defendant's claim. People v. Thinel, 424 Mich. 858, 377 N.W.2d 819 (1985). Retaining jurisdiction, this Court remanded to the circuit court which, following argument, denied defendant's new trial motion. Defendant now appeals raising several claims of error, one of which we find compels us to reverse.

Trial testimony showed that the victim was killed when defendant attempted to make a left turn and struck Anderson's oncoming vehicle. Witnesses testified that defendant was drunk and became abusive at the accident scene with fire department personnel, pushing them around. He had very bloodshot and glassy eyes, was incoherent in his speech, staggered and smelled very strongly of alcohol.

The arresting officer testified that defendant was unable to locate the papers for the car, yet another officer easily found them in the glove box. The arresting officer smelled intoxicants in the defendant's car and defendant was unsteady on his feet. Further, defendant was abusive and thought he [160 MICHAPP 453] was registering for classes when he was at the police station. Defendant was visibly upset about his car being smashed but did not know how it happened.

The other officer could also detect a strong odor of alcohol on defendant's breath. In addition, defendant's eyes were bloodshot and watery and defendant was staggering and incoherent. The emergency medical technician at Beaumont Hospital, where defendant was taken, testified that defendant smelled of alcohol, had dilated pupils, slurred his speech, weaved back and forth as he sat on the stretcher and called him and the police officers obscene names.

Herbert Wetherell, a Michigan State Police toxicologist, testified that defendant's blood contained 0.23 percent weight by volume of ethyl alcohol. Wetherell stated that such an amount would cause moderate to severe depression of the nervous system to the point of inability to adequately control fine muscle movement or make good judgmental decisions. Such a person would exhibit slurred speech, close to double vision and some degree of uncoordination. Conducting simultaneous tasks such as making an observation with one's peripheral vision while coordinating reflex movements such as moving the foot from the accelerator to the brake while activating a turn signal would be impaired.

Defendant, eighteen years old on the date of the accident, testified that he had been at a party earlier in the evening and had drunk beer and mixed drinks made with whiskey, but could not remember how much. Defendant left the party between 10:00 and 10:30 p.m., dropped off a friend, and proceeded onto northbound Rochester Road. Defendant felt that he was in sufficient control of himself to drive an automobile and saw Ms. Anderson's[160 MICHAPP 454] car when he attempted the left turn but thought there was enough time to complete the turn. Defendant said that her car came faster than he thought it would.

In her jury instructions on involuntary manslaughter and gross negligence, the trial judge stated:

"The Defendant is charged with the crime of involuntary manslaughter, in operating his motor vehicle in such a manner as to cause the death of Carla Jean Anderson.

"A person commits the crime of manslaughter if, in doing the acts which caused the death, he acts with an unreasonable disregard for human life; that is, if he commits an act which is grossly negligent of human life.

"The defendant pleads not guilty to this charge.

"To establish this charge, the prosecution must prove each of the following elements beyond a reasonable doubt.

"First, that the Defendant was operating a motor vehicle, on or about December 23rd, 1983, at Rochester Road at Woodside, in the City of Royal Oak.

"Second, that he was grossly negligent in the operation of his vehicle; that is, he operated his vehicle while under the influence of intoxicating liquor and turned left in the path of the victim's vehicle.

"Third, that the Defendant's gross negligence was the cause of an accident resulting in injuries to Carla Jean Anderson.

"Fourth, that such injury was the cause of death.

"Gross negligence means more than carelessness. It means willful, wanton and reckless disregard of the consequences which might follow, from a failure to act, and indifference to the rights of others.

"In order to find that the Defendant was guilty of gross negligence, you must first find--you must find beyond a reasonable doubt:

"First, that the Defendant knew of the danger to [160 MICHAPP 455] another; that is, that this was [a] situation requiring ordinary care and diligence, to avoid injuring another.

"Second, that the Defendant had the ability to avoid harm to another, by exercise of such ordinary care.

"Third, that the Defendant failed to use such care and diligence to prevent the threatened danger when, to the ordinary mind, it might have been apparent that the result was likely to cause serious harm to another.

"The operation of a motor vehicle inherently requires the exercise of ordinary care and diligence to avert injury to others. It is gross and culpable negligence for an intoxicated person to guide and operate an automobile upon a public highway."

The trial court's jury instruction on gross negligence was error which requires reversal. The trial judge told the jury in this instruction that it was gross negligence to operate a motor vehicle while intoxicated. Despite the fact that the evidence of defendant's gross and culpable negligence was overwhelming, the determination of that fact should have been left to the jury. The failure to permit the jury to make the critical determination as to whether defendant's conduct amounted to gross negligence requires reversal and a new trial.

The prosecution argues that the gross negligence instruction in this case was properly based upon People v. Pittinger, 105 Mich.App. 736, 740-741, 307 N.W.2d 715 (1981), and People v. Townsend, 214 Mich. 267, 273, 183 N.W. 177 (1921). In Pittinger, this Court quoted Townsend for the proposition that it is gross and culpable negligence to drive an automobile while intoxicated. Pittinger was a case wherein defendant pled nolo contendere to an involuntary manslaughter charge and the Court determined that one could infer from the evidence [160 MICHAPP 456] at the preliminary examination that defendant was driving while intoxicated when the accident occurred and that such inference permits a finding of gross negligence on the part of defendant. The Pittinger Court also concluded that the operation of a motor vehicle inherently requires the exercise of ordinary care and diligence to avoid injury to others and that such exercise must be made in the form of a decision not to drive when intoxicated.

In People v. Florida, 61 Mich.App. 653, 658, 233 N.W.2d 127 (1975), this Court considered the trial court's jury instructions on gross negligence in an involuntary manslaughter case. The Court held that the element of gross negligence takes the place of the intent element, citing People v. Campbell, 237 Mich. 424, 428, 212 N.W. 97 (1927). The Florida Court went on to find that the trial court had failed to properly instruct the jury on the elements of involuntary manslaughter due to its erroneous definition of gross negligence. The Court held:

"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 remand for a new trial." 61 Mich.App. 660, 233 N.W.2d 127.

The proper definition of gross negligence which is sufficient to support a conviction for involuntary manslaughter was recited in People v. Jackson, 140 Mich.App. 283, 285, 364 N.W.2d 310, lv. den. 423 Mich. 859 (1985), quoting People v. Orr, 243 Mich. 300, 307, 220 N.W.2d 777 (1928):

"(1) Knowledge of a situation requiring the exercise[160 MICHAPP 457] 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...