People v. Zimmerman
| Decision Date | 28 June 1968 |
| Docket Number | Docket No. 1061,No. 1,1 |
| Citation | 162 N.W.2d 849,12 Mich.App. 241 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roy ZIMMERMAN, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Elliott R. Perlman, Detroit, for appellant.
Frank J. Kelley, Atty. Gen., and Robert A. Derengoski, Sol. Gen., Lansing; William L. Cahalan, Pros. Atty.; Samuel J. Torina, Chief Appellate Lawyer; Luvenia D. Dockett, Asst. Pros. Atty., Wayne County, Detroit, for appellee.
Before LESINSKI, C.J., and FITZGERALD and McGREGOR, JJ.
Defendant-appellant was driving a truck south on Greenfield avenue. He attempted to turn left into a driveway on Greenfield but collided with a car driven by Abraham Mukalla. A passenger in the car was killed. Defendant was tried with Mr. Mukalla on a charge of negligent homicide* was convicted by a jury in the recorder's court of the city of Detroit, and now appeals that verdict to this Court.
Two issues are derived from the trial proceedings. Defendant called Mr. Billings, as an expert mechanical and traffic accident reconstruction engineer, to testify as to his opinion of the speed of defendant Mukalla's vehicle at the time of the accident. Mr. Billings did not see the accident, but he had measured skid marks, noted the weights and load weights of the vehicles, their relative positions, and the condition of the pavement, intending to use this information as the basis for his opinion.
We must consider whether this expert witness may give his opinion as to speed of a vehicle where he has conducted several tests which form the basis of that opinion, and also inquire as to whether speed was material to the issue being tried in this case, i.e., defendant's negligence.
Defendant was charged with negligence in making a left turn in front of Mr. Mukalla's automobile. Mr. Billings was called as an expert by defendant to show that Mr. Mukalla was driving at a high rate of speed when he collided with defendant who was then in the process of turning.
Expert opinion is generally admissible, when a proper foundation has been prepared, to assist the jury in understanding and interpreting those relevant facts or circumstances peculiar to the particular case which could not be readily evaluated by the inexperienced layman. See Dudek v. Popp (1964), 373 Mich. 300, 129 N.W.2d 393. The facts for consideration in the present case, as known to the jury and evaluated by Mr. Billings, include the length of the skid marks (69 feet), the condition of the pavement (dry), the weight of both vehicles (defendant's truck, 10,510 lbs., empty; Mr. Mukalla's automobile, 3,801 lbs.), the additional weight of the defendant's oil tank (approximately 4,500 lbs.) and the fact that the oil tank was dislodged and fell into the street as a result of the accident.
There are no Michigan decisions directly considering the allowance or denial of non-eyewitness expert opinion on the issue of speed in criminal prosecutions, but we are not constrained to state that, thus, such testimony is Never admissible in criminal cases. Rather, we believe that it should be admissible whenever speed is a material factor to the case being tried even as to the ultimate issue (GCR 1963, 605) where the jury, because of its inexperience, would require it to effectively interpret complicated facts in issue, and where the expert is competent, has conducted scientifically recognized tests based on the facts presented, and does not invade the province of the jury by testifying as to the cause of the accident or liability therefor.
Our willingness to accept such expert opinion evidence as to speed when it is properly presented is reinforced by reference to a number of sources: See 2 Wharton's Criminal Evidence (12th ed.), § 553, p. 416; 9C Blashfield, Cyclopedia of Automobile Law & Practice, § 6231, p. 382; and by reference to the Michigan law applicable to civil cases. See Dudek v. Popp, supra; but see Washburn v. Lucas (1964), 373 Mich. 610, 130 N.W.2d 406, and cases cited therein for suggested restrictions on expert opinion evidence as to causation made by an investigating officer.
There is no question as to the competence of Mr. Billings to testify as an expert witness on the issue of speed. However, we cannot reach the problem of whether this is Necessary testimony, given the facts as presented to the jury for their interpretation, and noting that the relevant issue was the negligence of the defendant, for the trial court never ruled on the issue. We turn to the record for the following discussion, conducted out of the presence of the jury, after the trial court had first denied defendant's counsel permission to ask Mr. Billings his opinion as to speed:
'The Court: Have you been able to find in any case in Michigan, any case in Michigan, civil or criminal, where any party was allowed to testify as to his opinion as to the speed of a vehicle when he did not see it in motion?
'Defendant's counsel: I will bring it in.
'The Court: You have one?
'Defendant's counsel: Yes, sir.
'The Court: Let's see it.
The discussion continues:
'The Court: I would like to see either one of them.
'Defendant's counsel: I will bring them in, sir.'
And:
'The Court: I was always of the opinion, and I know there are some cases where the Supreme Court said that you have got to see the car in motion a reasonable distance, in order to qualify yourself to give any opinion as to the speed, I know there is such a case, see.
'The Court: I don't want to see it, because I know it is there.
'Defendant's counsel: Of course this is not a lay witness.
'Defendant's counsel: All right.
The court reporter notes that a recess was taken, and that after the recess there was considerable discussion off the record. The trial resumed with an entirely different witness. The record does not show whether counsel for defendant did meet his burden to advise the court and we are bound to that record on this appeal. People v. Fred W. Thomas (1967), 7 Mich.App. 519, 152 N.W.2d 166. We cannot say that the trial court erred in his initial, and apparently only, exclusion of the opinion. The court gave counsel a broad opportunity to bring in cases, civil or criminal, and even from other jurisdictions, to assist the court in deciding this issue. Such cases do exist. If further discussion was had on this point, which does not appear in the record, and the court did rule unfavorably on counsel's argument and cases presented, then counsel should have noted this on the record before calling his next witness. We cannot do it for him.
There was a defense counsel for each of the 2 defendants as they were tried jointly. The second issue on appeal arises when defendant called Mr. Bloom, an eyewitness, concerning the speed of Mr. Mukalla's car. Counsel for Mr. Mukalla cross-examined Mr. Bloom and the following exchange occurred:
'Mr. Mukalla's counsel: When was the next time anybody approached you about this accident?
'Mr. Bloom: Then the investigators--
'Mr. Mukalla's counsel: (interposing) 'Investigators' I want that out.
Defendant's counsel: I beg your pardon?
'Mr. Mukalla's counsel: I want that out.
'Defendant's counsel: You want that 'out'?
'Mr. Bloom: I don't know what investigators.
'Defendant's counsel: I would like a ruling.
'The Court: Did somebody come and ask you about it?
'Mr. Mukalla's counsel: It was an insurance company investigator wasn't it?
'Defendant's counsel: Your Honor, this was an abortive attempt to create a mistrial, what you just heard come out of that man's mouth.
'Mr. Mukalla's counsel: No. I am trying to show somthing a lot worse than a mistrial.'
The questioning continued concerning Mr. Bloom's contact with this unnamed person to wit:
'Mr. Mukalla's counsel: You don't know the company he represents, but you do recall speaking to someone, is that correct?
'Mr. Bloom: Definitely, definitely.'
In addition:
'Mr. Mukalla's counsel: And you don't recall the name of this particular company, is that true?
'Defendant's counsel: (interposing) Oh, your Honor!
'Mr. Bloom: I don't know what he represented.
'Defendant's counsel: Your Honor, I have a motion to make and I think the jury should be excused.'
The court discussed this for a moment, not excusing the jury, then proceeded:
'The Court: I don't want any further reference made to an insurance company, Counsel.
'Defendant's counsel: It is repeated over and over again.
'Mr. Bloom:...
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People v. Zimmerman, 43
...prosecutor displayed in pursuing his duties. For specific details, see Division l's recount of the trial record (People v. Zimmerman, 12 Mich.App. 241, 245--251, 162 N.W.2d 849). Zimmerman's conviction was affirmed on appeal. This Court granted leave to review for the purpose of considering......
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People v. Drossart
...People v. Vanderhoof, 71 Mich. 158, 39 N.W. 28 (1888); People v. Miller, 33 Mich.App. 279, 189 N.W.2d 789 (1971); People v. Zimmerman, 12 Mich.App. 241, 162 N.W.2d 849 (1968). However, where the expert's particular training and experience in a special field of activity-such as the study of ......
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Friedman v. Farmington Tp. School Dist.
...134 N.W.2d 371 (1965); Campbell v. Menze Construction Co., 15 Mich.App. 407, 411, 166 N.W.2d 624 (1968). And in People v. Zimmerman, 12 Mich.App. 241, 246, 162 N.W.2d 849 (1968) oblique reference was made to the restrictions on expert opinion testimony explicit in Washburn. On appeal to the......