People v. O'LEARY , 6 Mich. App. 115 ( 1967 )

6 Mich. App. 115 (1967) 148 N.W.2d 516

PEOPLE
v.
O'LEARY.

Docket No. 912.

Michigan Court of Appeals.

Decided February 28, 1967. Leave to appeal denied May 12, 1967.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert B. Currie, Prosecuting Attorney, and Bruce J. Scorsone, Chief Assistant Prosecuting Attorney, for the people.

William J. Ginster, for defendant.

Leave to appeal denied May 12, 1967. See 379 Mich. 762.

HOFFIUS, J.

Defendant was convicted of negligent homicide, CL 1948, § 750.324 (Stat Ann 1954 Rev § 28.556), arising out of an accident on June 15, 1963, on highway M-81 at the western outskirts of Reese, in Saginaw county. The highway ran in an east-west direction and was 22' wide. The accident occurred on a sunny, bright, clear, dry day. Defendant was driving a pickup truck in an easterly direction on said highway. Theresa Palmreuter was the driver of a 1957 Mercury sedan which was proceeding on M-81 in a westerly direction. Traveling with her and sitting in the front seat of her automobile were her two minor children, Mary D. Palmreuter and Nancy M. Palmreuter, both of whom died as a result of the injuries suffered in this accident.

Defendant O'Leary was charged with involuntary manslaughter, CL 1948, § 750.321 (Stat Ann 1954 Rev § 28.553). The manslaughter charge was dismissed at the close of the proofs and the case submitted to the jury on the negligent homicide charge only. There was testimony that the defendant had been driving in an erratic manner, going over the center line several times prior to the point of impact, and that just before the impact, defendant's truck crossed the center line and went into the north lane or westbound lane of traffic and struck Mrs. Palmreuter's vehicle. The prosecution offered the testimony of Mrs. Palmreuter, as well as two disinterested witnesses who were following in an automobile approximately 500' behind defendant's pickup truck. All three of these witnesses confirmed that defendant crossed the center line immediately prior to impact, striking Mrs. Palmreuter's automobile in her own westbound lane of traffic.

Defendant denied this and claimed that Mrs. Palmreuter crossed the center line into his south or eastbound lane of traffic just prior to the collision. In support of this claim he relied upon his own testimony, as well as the location of the debris and position of the vehicles after the accident.

After the impact, the Mercury, driven by Mrs. Palmreuter, was facing west in the eastbound lane of traffic south of the center line. Defendant's truck was facing in a southwesterly direction and was in contact with Mrs. Palmreuter's right front fender. From the exhibits, it is apparent that there was extensive damage to the right and entire front end of defendant's vehicle and that the greatest damage to Mrs. Palmreuter's vehicle was the right front end.

There were parts and debris scattered over the highway in the general area of the collision. Traces of oil and radiator water were in the north lane, but most of the fluid was on the south side of the highway. Numerous parts were found under the front of Mrs. Palmreuter's vehicle and near the center line between the two cars.

Defendant claims that the examining magistrate erred in binding the case over for trial on manslaughter. He also claims that the trial court erred by denying defendant's motion to quash the manslaughter charge, by refusing to grant a continuance, by ruling against defendant on certain evidentiary matters, and by holding that the verdict was not contrary to the great weight of the evidence.

Relative to defendant's claim that the examining magistrate erred in binding the defendant over for trial, the complaint and warrant charged that defendant was driving under the influence of intoxicating liquor and negligently and wantonly crossed the center line of the highway, striking Mrs. Palmreuter's vehicle.

"``Involuntary manslaughter is the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty.'" People v. Ryczek (1923), 224 Mich. 106, 110.

See, also, People v. Wardell (1939), 291 Mich. 276.

Three eyewitnesses to the accident testified at the preliminary examination that, on different occasions, defendant drove his truck in the wrong lane of traffic and that at the time of the collision, he was completely on the wrong side of the highway. The officers testified they smelled the odor of alcohol on defendant's breath.

Defendant argued that the physical facts of the position of the car and location of the debris indicated conclusively that the accident did not occur as the prosecution claimed. The examining magistrate, however, decided that the case should be bound over for trial on the charge of involuntary manslaughter.

A finding of probable cause does not require that the guilt of the defendant be established beyond a reasonable doubt. Even though the trial court or this Court may not agree with the magistrate, we cannot substitute our judgment for the magistrate's determination of probable cause unless there has been a clear abuse of discretion. People v. Marklein (1960), 358 Mich. 471; People v. Carr (1963), 370 Mich. 251; People v. Davis (1955), 343 Mich. 348; People v. Dellabonda (1933), 265 Mich. 486. This Court is of the opinion that there was sufficient evidence to uphold the magistrate's action in this case.

Counsel for defendant next urges that the trial court erred in its denial of the motion to dismiss the manslaughter charge at the end of the prosecution's case. Upon renewal of the motion prior to the submission of the case to the jury, the court dismissed the manslaughter charge and permitted the case to go to the jury only on the charge of negligent homicide. Under the circumstances, the question became moot, since the jury never had the opportunity to consider the manslaughter charge and no error was committed.

Defendant next claims error when the trial court denied a motion for continuance because of the pregnant condition of Theresa Palmreuter, mother of the two deceased children. The basis for a continuance by the court is set forth in the following statute:

"No adjournments, continuances or delays of criminal causes shall be granted by any court except for good cause shown in the manner provided by law for adjournments, continuances and delays in the trial of civil causes in courts of record." CL 1948, § 768.2 (Stat Ann 1954 Rev § 28.1025).

A continuance is a matter of discretion with the trial court. In People v. Knox (1961), 364 Mich. 620, the trial court denied defendant's request for a continuance to obtain an expert witness. The Supreme Court stated at page 644:

"It has been repeatedly recognized by this Court that a trial judge has discretion in granting or refusing a motion of the character here involved, and that this Court will not interfere unless there has been a palpable abuse of such discretion. In view of the situation with which the trial judge was confronted, it may not be said that his action in denying the request for further time for the appearance of the desired witness was unreasonable. The judicial discretion was not abused."

In People v. Raider (1931), 256 Mich. 131, a continuance because of alleged inflammatory articles in the newspaper was denied and the Court held that the defendant had not carried the burden of proving an abuse of discretion. The Court said at page 134:

"Continuance was within the sound discretion of the court. The burden is on the party claiming abuse of discretion to show it. Prejudice to defendant must be apparent or proved to have been at least probable."

In the instant case, the pregnancy of Mrs. Palmreuter cannot be said to have been so prejudicial to the interests of the defendant as to compel this Court to find that the trial court abused its discretion in the denial of a motion for continuance.

Defendant claims also that the trial judge erred in terminating defense counsel's interrogation of a witness who purportedly could reveal prior inconsistent statements made by Charles Knoop, an eyewitness to the accident, relative to the distance between his vehicle and defendant's pickup truck. The questions asked were as follows:

"Q. And did people come into your house to use the telephone?

"A. Yes, there was people in the house. There was quite a few people in the house. I don't know who they all were.

"Q. And did you talk to a tall thin man about the accident?

"A. Yes.

"Q. What did he say ma'am?

"The Court. No, this is hearsay again. I don't want this on the record."

At no time did defendant's counsel pursue this questioning with specific identification of witness Knoop as the "tall thin man" nor did he state to the court that such testimony was for the purpose of impeaching witness Knoop's prior testimony. No further offer of proof was ever made. Defendant's counsel did not make known to the court his position in regard to this testimony as required under GCR 1963, 507.5, which reads:

"Exceptions Unnecessary. Formal exceptions to rulings or orders of the court are unnecessary. It is sufficient that a party, at the time of the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of the objection does not thereafter prejudice him."

In addition thereto, defendant's counsel did not make an offer of proof at the time of the ruling in accordance with GCR 1963, 604, which reads as follows:

"If an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness, or by leave of court, may examine the witness in relation thereto. The court may require the offer to be made or the testimony taken out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made and the ruling thereon."

The trial court did not have an opportunity to fairly pass upon defendant's claim that the question was directed at impeaching the testimony of the witness. Under these circumstances, it cannot be said that the trial court erred in refusing the proffered testimony when the reasons for such testimony were not made clear to the judge. See Eglash v. Detroit Institute of Technology (1965), 375 Mich. 592; Herndon v. Woodmen of the World (1965), 1 Mich. App. 141.

Defendant next advocates on appeal that the trial court erred in refusing Wayne Schwaln's testimony as an expert relative to the point of impact. Wayne Schwaln was a former deputy sheriff who had not worked in that capacity for seven years prior to his testimony. He was not an eyewitness to the accident nor one of the investigating officers at the scene. The question to which objection was made was based upon the witness' examination of photographs only. As far as the record shows, this witness knew nothing regarding direction, weight or speed of the vehicles, width of the highway, weather conditions, visibility or other material data upon which expert opinions are traditionally formulated. The question was merely stated as follows:

"Q. Now, based on your observations in those exhibits, (referring to photographs) do you have an opinion to where the point of impact —

"The Court. Go ahead, ask the question.

"Q. (By Mr. Ginster, continuing): — Between the vehicles — where the point of impact was between the vehicles involved?

"A. Yes.

"Mr. Currie. Objection, Your Honor.

"The Court. Are you going to ask him his opinion?

"Mr. Ginster. Yes.

"The Court. I'm not going to allow him to testify because he has not been qualified as an accidentologist, an expert, and making an examination from those photos, the jury will have the photos and they'll determine the point of impact from the photos; plus the other evidence in the case."

No further offer of proof was made nor did counsel pursue this line of questioning.

This Court is of the opinion that it was not reversible error for the trial court to sustain the objection.

The recent case of Dudek v. Popp (1964), 373 Mich. 300, indicates a relaxing of the former strict rule concerning the admission of expert opinion by investigating officers as to their determination of the point of impact. The Court said at p 307:

"We align ourselves with the authorities which hold that one properly qualified in accident investigative background may testify either from personal observation or from properly authenticated and admitted exhibits that, in his opinion, certain marks are skid marks and that they were made by a given motor vehicle and his reasons therefor. On the same basis and for the same reasons, he may point out in his opinion the point of impact."

It should be noted, however, that in Dudek, supra, it was the investigating officer who gave the opinion as to the alleged point of impact and not an exdeputy sheriff viewing only photographs taken on the day of the accident. The court also stated in Dudek, supra, at pp 305-306:

"The danger involved in receiving the opinion of a witness is that the jury may substitute such opinion for their own. Accordingly, where all the relevant facts can be introduced in evidence and the jury are competent to draw a reasonable inference therefrom, opinion evidence will not be received. When the conclusion to be drawn from the facts depends on professional or scientific knowledge or skill, the conclusion may be stated. (32 CJS, Evidence, § 446)."

It can readily be seen that Dudek can be distinguished in view of the fact that the jury could draw the same inferences from the photographs as the ex-deputy sheriff, although the jury would have all of the other relevant testimony from eyewitnesses as well as distances, weather conditions, et cetera, upon which to base their conclusion.

We cannot say that the trial court has abused its discretion in the refusal of the proffered testimony. In People v. Hawthorne (1940), 293 Mich. 15, the Court said at p 23:

"The determination of the qualifications of an expert is a question for the trial judge and we entrust the matter to his discretion. We interfere only to correct an abuse."

Lastly, defendant contends that the verdict of the jury is contrary to the great weight of the evidence. Defendant reiterates the argument previously stated that the physical facts of the position of the car and the location of the debris indicate conclusively that the accident did not occur as the prosecution claimed. However, it should be remembered that there were three eyewitnesses to the accident who testified clearly and positively that the accident occurred in Mrs. Palmreuter's lane of traffic and not in defendant's lane of traffic. This created a dispute of fact to be submitted to the jury. In addition thereto, there was substantial testimony as to the erratic driving pattern of the defendant for several miles prior to the point of impact.

Although the Supreme Court has on occasion in civil cases ruled that a directed verdict should have been granted when a party's theory is completely inconsistent with the undisputed physical facts after an accident, it is apparent that the physical facts here are not inconsistent with the prosecution's theory of the accident. In Albrecht v. Pritchard (1957), 347 Mich. 166, the Court found that the location of debris after an accident does not necessarily locate the point of impact. The Court said at p 171:

"Contrary to popular impression, the location of debris following violent automotive collision does not necessarily locate the point of impact, with accuracy at least. Debris and broken glass do not always, if we consider physics, drop like a plummet from point of collision. Indeed, and in the present case, the trier of facts would have been justified in finding that located presence of such debris is just as consistent with plaintiff's theory as with that of defendant. It, the debris, could have come from either car, or both."

In Harding v. Blankenship (1936), 274 Mich. 118, the Court said at p 122:

"The positions of the cars and other such physical facts after the accident are not absolutely determinative of just what happened immediately prior to a collision."

In Fitzpatrick v. Ritzenhein (1962), 367 Mich. 326, there is a complete discussion of the situation with regard to physical facts. It appears that only rarely will the physical facts be conclusive when there is conflicting testimony as to the point of impact.

The final location of the vehicles and debris can be reconciled with the testimony of the prosecution's three eyewitnesses as to the point of impact. It must, therefore, be said that there was evidence from which the jury could find the defendant guilty of the crime of negligent homicide beyond a reasonable doubt.

We, therefore, conclude that no reversible error has been committed in the trial of this cause and the cause will be remanded for execution of sentence.

HOLBROOK, P.J., and BURNS, J., concurred.