People v. Carter
People v. Carter
Opinion of the Court
Defendant was convicted on a charge of involuntary manslaughter, MCLA 750.321; MSA 28.553, after a bench trial on August 4, 1975. On August 26, 1975, he was sen
The evidence at trial showed that the deceased, Robert Kuechle, was struck and killed by a car while jogging across Andersonville Road on the night of January 11, 1975. Shortly thereafter, defendant’s car was stopped at a roadblock set up to protect the scene of the accident. An on-the-scene comparison of automobile fragments found on the road and recent damage done to the right front of the defendant’s car indicated that the defendant’s car was the one involved in the accident. Upon his arrest, defendant appeared to be intoxicated, and he was taken to the Oakland County Jail, where he consented to a Breathalyzer test.
In finding the defendant guilty of manslaughter, the trial court emphasized the testimony of the police officers at the scene and the witnesses’ observations of the manner of operation of the car that struck the deceased.
The defendant argues that the prosecutor failed to establish a foundation for the reliability of the testing device adequate to justify admission of the Breathalyzer results. We agree with the defendant
Unlike People v Krulikowski, supra, in this case there was sufficient testimony from the Breathalyzer operator to show the reliability of the particular device used. Deputy Adkins testified that the instrument was checked out weekly by a Breathalyzer operator and inspected by the State Police at least once every 90 days. Controlled test samples were furnished for this purpose by the State Department of Health. The trial court did not abuse its discretion in holding that an adequate foundation had been established for the test result’s admission. People v Krulikowski, supra, at 33; 230 NW2d at 293.
A more troublesome issue is raised by the use of the Breathalyzer tests in a trial on a manslaughter charge. Our Supreme Court held in People v Keen, 396 Mich 573, 575; 242 NW2d 405, 407 (1976) , that "where a blood alcohol test is administered pursuant to the statute
We view Keen, supra, not as pronouncing a new interpretation of the so-called implied consent statute, MCLA 257.625a et seq.; MSA 9.2325(1) et seq., but rather, as merely stating that which the law had always been. Therefore, Keen, supra, is applicable to the instant case. See also People v Weaver, 74 Mich App 53; 253 NW2d 359 (1977), where a panel of this Court applied the law in Keen, supra, to a pre-Keen conviction for negligent homicide which conviction took place nearly two months prior to defendant Carter’s conviction in this case.
We therefore hold that the admission of the Breathalyzer test as evidence in the instant case constitutes error. The sole question remaining is whether such error resulted in manifest injustice because defense counsel failed to object on the specific ground that such tests are not admissible in manslaughter prosecutions.
A review of the trial transcript reveals that counsel were aware of this Court’s decision in People v Keen, 56 Mich App 84; 223 NW2d 700 (1974), since the prosecutor specifically stated on the record that such case stood for the proposition that the results of Breathalyzer tests are admissible in manslaughter prosecutions. While the above decision was subsequently reversed by the Supreme Court at 396 Mich 573; 242 NW2d 405 (1976), defense counsel could not fairly have been expected to be prescient. Hence, his failure to object is understandable.
In reviewing the prosecutor’s closing argument it is noted that he specifically directed the trial court’s attention to the .10 per cent presumption of intoxication set forth in the statute. Moreover
While it is true the trial judge stated that he based his findings of intoxication primarily upon the conduct of the automobile at the scene and the testimony of the officers attending the scene, he nevertheless found as fact that defendant operated his motor vehicle while under the influence of intoxicating liquor and, while doing so, caused the death of Robert Kuechle. Furthermore, the trial court, in its determination of intoxication, took into consideration the Breathalyzer test results.
When the above is considered in conjunction with the prosecution’s closing argument, it is difficult to state that the test results did not constitute that evidence which convinced the trial judge beyond a reasonable doubt as to defendant’s intoxication and guilt. While the trial court’s finding of intoxication was based primarily upon other evidence, it was not based wholly thereon, for the Breathalyzer results were admittedly considered. We conclude therefore that the error in the admission and consideration of the test results constitutes manifest injustice and mandates -reversal.
The defendant lastly claims that the trial court erred in allowing Deputy Gelinas, a crime scene investigation technician, to express his opinion on the match between pieces of metal and plastic found at the accident scene and a part from the defendant’s automobile.
Reversed and remanded.
The record shows that the defendant consented to the test pursuant to the statutory procedure contained in the "implied consent” statute, MCLA 257.625c et seq.; MSA 9.2325(3) et seq.
MCLA 257.625c et seq.; MSA 9.2325(3) et seq.
"Considering all of the evidence in this case, this Court makes a finding that the deceased, Robert Kuechle, was killed in this accident; the cause of death was as set forth in Exhibit One.
"This Court makes a finding that this Defendant — the People have met the burden of proof that the Defendant was intoxicated, or under the influence of intoxicating liquor, and this Court bases this primarily upon the conduct of the automobile, at the scene, and the testimony of the officers, at the scene.
“The conduct of the automobile at the scene indicates that no horn was sounded; there was no reduction of speed in an area which called for the reduction of speed, with automobiles parked on both sides of the road; the automobile did not swerve to avoid the deceased, Robert Kuechle; the automobile did not immediately stop at the scene, although , the driver must have been — it must have been obvious to the driver that the automobile had struck something, due to the body being thrown as far as it was, up against two other automobiles, as the testimony indicates.
"The testimony of the officers at the scene, concerning the condition of the Defendant at the time he was — came by the scene and was talked to by the officers — I’m referring, particularly, to Officer Guglielmello and Officer Decker.
"Thirdly, the Breathalyzer Test is a factor which this Court took into consideration, but the testimony of the Breathalyzer Test, stand
"But, primarily, I base my decision upon the conduct of the automobile at the scene, and the testimony of the officers who were at the scene, to-wit: Deputy Guglielmello and Deputy Decker.
"This Court, therefore, concludes that the People have proven beyond a reasonable doubt that this Defendant operated his automobile, on January 11, 1975, on Andersonville Road, in a careless, reckless, grossly negligent and unlawful manner, and in a manner likely to endanger the lives, safety and welfare of other persons. And that he operated the motor vehicle while under the influence of intoxicating liquor, and, in doing so, caused the death of Robert Kuechle.
"The Court, therefore, finds that this Defendant is guilty of Manslaughter, as charged in the Information.” (Emphasis supplied.)
Dissenting Opinion
(dissenting). While I agree with most of the facts and conclusions set forth in the majority opinion, I dissent for the reason that this was a nonjury trial and I gave a great deal of credence to the statement of the trial court that his findings were based primarily on the testimony of the officers who were at the scene.
Had this been a jury trial, I would have to agree with my colleagues that the introduction of the Breathalyzer test was reversible error.
When the learned trial court stated his primary basis for convicting the defendant I relied on that statement and for that reason I would vote to affirm the conviction.
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