People v. Tims
| Decision Date | 05 July 1995 |
| Docket Number | Nos. 11,99174,Docket Nos. 98192,12,s. 11 |
| Citation | 449 Mich. 83,534 N.W.2d 675 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Elmore TIMS, Jr., Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Roger D. KNEIP, Defendant-Appellee. Calendar |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Arthur A. Busch, Pros. Atty., and Donald A. Kuebler, Chief, Research, Training, and Appeals, Flint, for the people in Tims.
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., and Timothy A. Baughman, Chief, Research, Training and Appeals, Detroit, for the people in Kneip.
O'Rourke & Joseph, P.C. by Jerome F. O'Rourke, Flint (Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by Robert D. Goldstein, Detroit, of counsel), for defendant Tims.
Richard M. Lustig, Birmingham, for defendant Kneip.
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., and Timothy A. Baughman, Chief, Research, Training and Appeals, Detroit, for Genesee County Prosecutor's Office.
P.E. Bennett, Clinical Asst. Professor, University of Michigan Law School, Ann Arbor, for the Criminal Defense Attys. of Michigan.
The defendants in these consolidated cases were convicted of negligent homicide and involuntary manslaughter, respectively, both arising out of the use of automobiles. In separate decisions, the Court of Appeals reversed their convictions, holding that a defendant may be convicted of these offenses only if his culpable conduct is found to be "the" proximate cause of death. We would reverse the decision of the Court of Appeals in Kneip, and would reverse in Tims.
A
This case arises out of a fatal accident that took place at approximately 3:00 p.m. on Sunday, July 9, 1989. It was a clear day. Shortly before the accident, the defendant and Bobby Osborne engaged in a drag race on Jennings Road in Genesee County. The defendant was driving a blue Pontiac Trans Am. Osborne was driving a Chevrolet Z-28 Camaro.
Even after the drag race ended and Mr. Osborne had stopped at the side of the road, the defendant continued to drive extremely fast. The most complete description of the accident comes from witness Daniel Frederick, who was traveling southbound--the same direction as the defendant--in the far right lane. Earlier, he had passed between the defendant's car and Mr. Osborne's car as they were preparing for their race. He essentially stated that the victim, who checked for traffic before entering the road, jogged across the southbound lanes a safe distance in front of his car, which was traveling the legal speed limit. When the victim reached the northbound lanes, he was struck by the defendant's southbound car, which had been traveling at about twice the speed limit and had swerved into the northbound lanes in an attempt to avoid him:
A. I noted that the blue car was closing the gap between our cars, you know, rapidly, and I, ah, noted that he also, as I traveled down I noted that he cut over one lane. In other words, he went into the--still in the southbound lanes, but heading--he was in the west whereas he was in the east lane comin' up from behind.
Q. So he is in the center?
* * * * * *
A. Yes, that's correct. And I continued down to the baseball players--the two guys playing baseball. I didn't see the ball go. I assume they were hit--earlier I had seen them hit a ball, so I assumed that they were ...
Q. Well, don't--don't assume. Just tell what you saw?
A. I saw a guy--there was probably, oh, a car-and-a-half, two cars ahead of me and I saw the guys that was playin' ball in front of my car. He had an adequate amount of time. I didn't even have to slow up.
Q. How many car lengths is this now?
A. I would estimate probably about two car lengths.
Q. How long are you calling a car length?
A. All right, let's say car lengths would be--let's say--well, actually it would be more than that. I would say probably 30 feet anyways.
Q. So he runs into your lane?
* * * * * *
A. I think that would be a better explanation. A jog--kind of a slowish jog into the street. Like I said, he had plenty of time to get in front of my car. I noted that he looked at me and seen he had time and ran ...
Q. Okay, you saw him look at you. You looked to the left?
A. Yeah, he looked in my direction and saw my car.
Q. Was that before he entered the street?
A. Yes, it was.
Q. Now he enters Jennings Road and he goes where?
A. Continues on across the street. Now he goes into the next lane, which would be the--still in the southbound lanes, and he went into the--which would be the westbound lane--excuse me, the western lane, and ...
* * * * * *
Q. You would have been in lane number 1.
A. I would have been in lane number 1. Okay. The baseball player cut in front of my car, going from 1 towards 2. All right ...
Q. What did you see happen when he was in lane 2?
A. I glanced in my rear view mirror and the blue car was rapidly closing the gap. He was in the same lane as the young man runnin'--or joggin'. At that time the blue car veered to the left to avoid him. He went over into what would be the northbound lanes, probably one-and-one-half lanes, so he was probably--his car--he had probably--from the driver's wheel I would say he had like maybe two feet before he would have hit the curb.
Q. But where was the person?
* * * * * *
A. Okay, in the second lane he glanced over this way to the left, but he was still running. He ran--continued to run, saw the blue car, and did like--the best way I can describe it it would be a momentary pause or stop.
* * * * * *
He would be in--by now he was in--probably what would be lane 3. In other words, he would have been in the northbound lanes.
Q. He would have crossed the center line?
A. Yes.
Q. After he did that little pause what did he do?
Q. And then what happened?
The right front fender of the defendant's car hit the victim, Greg Amman, whom the parties stipulated had a blood alcohol content of 0.09 percent by weight, "and kind of rolled him along the side, and at the post--around the door post it threw him off and he sort of slid ending up almost in the center line."
The evidence supporting the verdict establishes that the defendant was driving approximately ninety miles an hour when the right front fender of his car struck the decedent, and seventy to eighty miles an hour a quarter to half a mile down the road. Mr. Frederick testified that the car struck the victim just as Mr. Tims had completed passing him. At that time, he was traveling at forty-five miles an hour himself, and the defendant was traveling at ninety miles an hour.
John Gough testified that as he was traveling northbound on the inside (west) lane of Jennings Road about one-half to one-quarter mile south of the accident, "I seen a body flying through the air, a blue Trans Am goin'--well, after I seen the body comin' in my lane, so I come to a stop, and the Trans Am went by me on the right and another car went by me on the left--a silver Camaro." Mr. Gough, a thirty-two-year-old former drag racer, estimated that the blue Trans Am was traveling seventy to eighty miles an hour at the time it passed him.
Two separate sets of recently made skid marks were observed at the scene of the accident: a set of marks sixty-one feet long, crossing the center line, and a set of skid marks twenty-nine feet long, following those. Officer Caterer testified that the gap between the two sets of skid marks could be caused by one of two factors: "the fading of the brakes or the fact that the tire was locked and sliding but just not merely making a mark on that concrete surface," which he had previously explained does not show skid marks well.
An accident reconstruction expert who was asked about the minimum speed necessary to produce a skid mark sixty-one feet long 1 answered that a car must be traveling at a minimum speed of about thirty-nine to forty-three miles an hour. 2 The figure of thirty-nine to forty-three miles an hour appears to be calculated with the assumption that the defendant's car stopped at the end of sixty-one feet. As stated previously, however, the defendant did not stop either when he struck the victim or at the end of the first skid mark, and instead drove on at a speed of between seventy and eighty miles an hour.
The defendant did not challenge the sufficiency of the evidence on appeal. Instead, he claimed that the trial court erred in instructing the jury that the defendant's conduct must be " 'a substantial' cause of the fatal accident." Defense counsel, who argued in closing that the victim darted out in front of the defendant's car and that the defendant could not have avoided the accident, had requested an instruction that the defendant's conduct must be "the" cause of the accident. The Court of Appeals agreed that the instruction was erroneous, and reversed. 202 Mich.App. 335, 339-340, 508 N.W.2d 175 (1993). We granted the prosecutor's application for leave to appeal. 445 Mich. 862, 519 N.W.2d 159 (1994).
At approximately 1:50 a.m. on August 25, 1990, Steven Barnes was killed when defendant Kneip's vehicle struck him. Mr. Barnes, a barefoot pedestrian, clad only in a pair of shorts and carrying his tennis shoes--one in each hand--was slowly crossing Haggerty Road near Cherry Hill Road in Canton Township. This area was dark and was not illuminated by artificial lighting. Mr. Barnes had reached the left-turn lane when defendant's vehicle approached. Defendant, who was driving south on Haggerty Road, proceeded into the left-turn lane in order to negotiate a left turn, when his vehicle struck Mr. Barnes. Defendant was not speeding, and there is no indication that he was driving erratically. Howev...
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