*1 v Tims PEOPLE TIMS 2, 1993, February Lansing. Docket No. 133334. Submitted Decided appeal sought. November at 9:55 A.M. Leave to Tims, Jr., by jury Elmore was convicted in the Genesee Circuit Court, Elliott, J., Philip negligent operation C. of a vehicle causing appealed, alleging homicide. He that the court erred in instructing that the defendant’s conduct had to be "a substantial” cause of the accident rather than "the substan- tial” cause. Appeals The Court of held: Marilyn Kelly, J., stated that a defendant’s conduct need not be the or "the substantial” cause of an accident. Instead, enough proxi- it is that the defendant’s conduct be a Appeals mate or "a substantial” cause. the Court of by Supreme precedent is bound in order for a homicide, to be convicted of vehicular the defen- dant’s conduct must be "the cause” of the death. The defendant’s conviction must be reversed and the case remanded trial, for a new at which the instructions should read "the substantial,” substantial,” not "a J., Kelly’s Judge Weaver, concurred in the result opinion urging and in Court to resolve the issue of conflicting jury instruction. P.J., Kelly’s Judge Fitzgerald, concurred the result of opinion, but stated that in order for a defendant to be convicted homicide, of vehicular the defendant’s conduct must be "the” cause of the death not "a” death. Reversed and remanded. Kelley, Attorney General,
Frank J. Thomas L. Casey, General, Weiss, Solicitor Robert E. Prose- cuting Attorney, Appel- Kuebler, Chief, Donald A. Division, Brown, late R. Edwin Assistant Pros- ecuting Attorney, people. for the (Robert Goldstein,
Jerome F. O’Rourke D. Counsel), for the defendant. Kelly, by Marilyn P.J.,
Before: Fitzgerald, Weaver and Mari- lyn Kelly, JJ. *2 Following jury trial,
Marilyn defen- a Kelly, negligent homicide. MCL of dant was convicted 750.324; argues appeal, he that 28.556. On MSA instructing jury trial erred the defendant’s conduct court only "a had to be substantial” than "the substantial” of accident rather We cause. reverse. while fatal case occurred
The accident drag racing. Bobby were Osborn Eyewitnesses estimated their vehicles to be travel- per ing 70 90 miles hour. Defen- at between approxi- struck and killed victim dant’s vehicle mately beyond quarters start of of a mile three running hit across the race. The victim was while claimed the to retrieve a ball. Defendant the street occurred. had the time the collision race ended expert reconstruction estimated An accident at the traveling point impact, of defendant was per 22 and 49 miles hour. Defendant between car, ran in front of his claimed that the victim out drinking impaired his senses from alcohol.
i
killing
negligent homicide is the
of
The crime of
through
negligence,
ordinary
person
an act of
the victim dies.
659;
which
becomes criminal when
App
People
Clark,
171
431
v
Mich
NW2d
(1988).
contributory negligence is
88
A decedent’s
charge
not a defense to a
homicide.
People
Clark,
In this the trial court instructed the that it could consider the victim’s conduct in deter- mining driving whether defendant’s was "a sub- argues stantial” cause of the accident. Defendant required instruction should have finding that his act was "the substantial” cause of the accident. currently split authority
There is in this relating necessary to the causal connection prove panels vehicular homicide. Some have held that a defendant’s conduct must be "the proximate” cause of the accident. Mich Others proximate”
have held that it need be "a The current instruction *3 states: you If find that negligent, [named deceased]
you may only negligence consider that in deciding whether the defendant’s conduct was sub- [the/a cause of the accident. stantial] [CJI2d 16.20.] commentary The *4 the of the
to meet its burden if conduct independent and efficient cause of victim an Alterio, 29-30. his death. See recog- Fioretti, the Court In Delaware negligence not be the nized defendant’s need People v Tims Marilyn Kelly, proximate Fioretti, cause of the fatal accident. sole negligence 171. It is sufficient if the was "one” of Id. causes. IV agree advanced in We with the rationale Fioretti, that a and Alterio. We believe defendant’s or "the sub- conduct need not be enough Instead, stantial” of an accident. it is cause that his conduct be a or "a substantial” Instructing jury that a the defendant’s conduct prevents was "a cause of the accident substantial” excusing negligence jury from contributorily negligent. if the victim is Such an instruction also allows the look victim’s conduct to determine if the defendant’s conduct "a substantial” cause of the fatal example, accident. For a could conclude that the defendant’s conduct was not "a substantial” (1) cause of the accident if: the victim’s conduct intervening superseding was an foresee, accident which the defendant could not or (2) the victim’s conduct was the sole and injury. Clark, of the See 555.1
Although recognize we this Court has cre- precluded issue, ated a conflict on this are from we Clark, panel In indicated exonerate negligent charge, contributory defendant on a homicide the victim’s Clark, causing negligence injury. “a must be substantial” factor ruling. Allowing disagree to be 659-660. We exonerated if the victim’s with this factor would was "a substantial” good contributory negligence defense to mean that homicide. See is Dolen, supra. *5 App 202 335
340
Mich
by
j.
Opinion Weaver,
on the
within
resolving it. No conflict exists
issue
to our
According
Michigan Supreme
Court.
to be
Court,
in order
for a defendant
Supreme
homicide,
must
his conduct
convicted of vehicular
v
People
"the
cause” of the death.
be
(1941);
145;
Weaver,
I
the result
join
it in
opinion
urging
of the lead
and
with
agree
Supreme
to resolve this issue. The confusion
Appeals
created
the recent Court of
cases1
conflicting
is
with the older
Court cases2
instruction,
reflected in the
which states:
you
negligent,
If
find
[named deceased]
may only
deciding
consider
you
whether
sub
conduct
[the/a
of the accident.
stantial]
[CJI2d 16.20.]
(1977),
People
277;
v
89 Mich
conduct must be "the” Layman,
death.
Thus,
NW 840
I would follow
notes
CJI2d 16.20 indicate
the trial court must decide whether to follow
phrase
Scott or Dolen. The
"a substantial cause”
Brisboy
Corp,
was taken from
v Fibreboard
Mich
Michigan Supreme
There,
the
indicated
when
produced
injury,
numerous factors
an
one actor’s
negligence
was not a
cause unless it
producing
injury.
was "a substantial factor”
the
n
Scott relied on the
in
rationale
Commonwealth v
Kelly, by Marilyn
(1961). Root,
In
Root,