People v. Traughber

439 N.W.2d 231, 432 Mich. 208

• Court: Michigan Supreme Court
• Decided: April 19, 1989
• Docket: 81206, (Calendar No. 3)
• Status: Published

Opinions

Riley, C.J.

The issues presented in this case are whether the information for negligent homicide was sufficient to allow the defendant to adequately present a defense against specific acts of negligence, and whether the defendant was held to the correct standard of care.

We find that the information, coupled with the preliminary examination, did offer the defendant adequate notice of the acts of negligence for which he was being charged. However, we further find that while the trial court identified the correct standard of care, that of a reasonable person, the court failed to apply the reasonable-person standard to the emergency situation which confronted the defendant. Therefore, we reverse the conviction of David Traughber.

pacts and proceedings

After waiving his right to a jury trial, defendant was convicted in the Wayne Circuit Court of negligent homicide, MCL 750.324; MSA 28.556. The judge sentenced defendant to three years probation, with the first three months to be served in the county jail.¹

The accident occurred at approximately 12:15 a.m. on December 22, 1984, on Denton Road, a dark, unlighted two-lane road with a 45 mph speed limit, in rural Canton Township, Wayne County.

Defendant was traveling south on Denton Road at approximately 35 mph, an uncontested fact, when he noticed the oncoming headlights of Linus Parr’s automobile approximately three-quarters of a mile in front of him. Mr. Parr testified that he was traveling between 45 and 50 mph. As the two cars approached each other, each in its respective lane, defendant suddenly saw a large metal sign, later identified as a real estate sign, lying flat on the road. The defendant, now approximately thirty feet from the oncoming car, was faced with a split-second decision in an attempt to avoid the sign. Judging that he had enough space between himself and Mr. Parr’s automobile, the defendant swerved to the left, into the northbound lane, to go around the sign. Upon seeing defendant’s car enter his lane and assuming it would either continue in the left lane or go completely off the road, Mr. Parr swerved his car into defendant’s lane, the southbound lane. Simultaneously, as Mr. Parr was turning into the southbound lane, the defendant, now around the sign, was returning into his own lane. The two cars collided head-on just inside defendant’s lane, the southbound lane.² Rochelle Richmond, who was sitting in Parr’s passenger seat, was fatally injured. Mr. Parr and the defendant, as well as Jennifer Sellers, who was riding in the back seat of Mr. Parr’s car, and Irene Baker, who was riding in the passenger seat of the defendant’s car, received relatively minor injuries.

The Canton police arrived moments after the accident. Defendant was administered a preliminary breath test at the scene of the accident which showed a blood-alcohol level of 0.05 percent. After being taken to the Canton Police Department, defendant was administered two more Breathalyzer tests, one at 1:12 a.m. and another at 1:23 a.m. Each time the result was a blood-alcohol content of 0.04 percent.³ Defendant was then charged with negligent homicide⁴ and operating a motor vehicle without a valid license.⁵

Defendant waived his arraignment, and a preliminary examination was conducted on February 14, 1985. After a bench trial, defendant was acquitted of operating a motor vehicle without a valid license, but was convicted of negligent homicide. The Court of Appeals affirmed the conviction in an unpublished opinion per curiam.⁶ On March 22,1988, we granted leave to appeal.⁷

i

Defendant’s first assertion is that the information for negligent homicide failed to specify the acts of negligence for which he was charged, and that due to this inadequate notice, he was unable to properly defend himself. The language of the negligent homicide statute, MCL 750.324; MSA 28.556, provides:

Any person who, by the operation of any vehicle upon any highway or upon any other property, public or private, at an immoderate rate of speed or in a careless, reckless or negligent manner, but not wilfully or wantonly, shall cause the death of another, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison not more than 2 years or by a fine of not more than $2,000.00, or by both such fine and imprisonment.

The information filed by the prosecutor was in the statutory short form.⁸ Specifically, the information read:

Did then and there operate a certain motor vehicle, to-wit: 1972 Buick, lie. #84/MI 904/BHX in an immoderate rate of speed or in a careless, reckless or negligent manner, but not wilfully or wantonly, causing death of Rochelle Richmond, contrary to MCLA 750.324 [MSA 28.556].

On the day of trial, prior to opening arguments, defense counsel requested that the prosecution identify "what actually was the act of negligence, carelessness, was it immoderate speed, what acts are they relying on, what acts do they intend to prove.”⁹ As the basis for this request, defense cited People v Maki, 245 Mich 455, 473; 233 NW 70 (1929), which held:

Both in this State and elsewhere it is the rule that where a statute uses general or generic terms in describing an offense, does not sufficiently define the crime or set out all its essential elements, or where a charge in the language of the statute charges a mere legal conclusion, an information which alleges the crime in the words of the statute is not sufficient, but a more particular statement of facts is necessary.

The Maki Court reasoned that the word "negligence” is too indefinite and did not inform the accused of the nature of the accusation. Specifically, the Court said:

Negligence is a general word. Its legal definition is about as indefinite as the word itself. It has not such concrete significance in the language that it charges, to general understanding, a definite act or omission. Depending upon circumstances, it requires statement of particular facts to disclose its elements in a given case, and the specific acts of negligence should be stated in an information. Charging an act as having been done negligently, without specifying in what the negligence consisted, is no more enlightening than would be a blanket charge of general fraud or crime. An information in the language of the statute would no more inform an accused of the nature of the accusation than would a charge of false pretenses without stating the pretenses, or fraud without stating the representations or means, or crime without designating the offense. [Id. at 473-474.]

The negligent homicide statute expressly eliminates wilfulness and wantonness as elements of the crime, it sets up no definite standard of conduct or test of negligence, and does not even require that the accused shall have been conscious that he was negligent. Maki, supra at 475. It is for these reasons that an information for negligent homicide should set forth the specific acts of alleged negligence in order to inform the accused of the nature of the accusation. Id. Because the information in the instant case merely charged defendant in the language of the negligent homicide statute, we find it insufficient.

However, we believe that Judge Maher’s concurrence in People v Covington, 132 Mich App 79, 88; 346 NW2d 903 (1984), clearly and concisely sets forth what an information is intended to accomplish: "An information must be specific for two reasons: it affords the defendant due notice of the charges against him and protection against double jeopardy should he be retried.” Thus, similar to the concern addressed in Maki, the dispositive question is whether the defendant knew what acts he was being tried for so he could adequately put forth a defense. Put another way, was the defendant prejudiced by the information which charged him with the statutory language of MCL 750.324; MSA 28.556. We hold that he was not.

Prior to trial, a preliminary examination was conducted.¹⁰ The purpose of a preliminary examination is to determine whether a crime has been committed and, if so, whether there is probable cause to believe that the defendant committed it. Wayne Co Prosecutor v Recorder’s Court Judge, 101 Mich App 772; 300 NW2d 516 (1980). During a preliminary examination, the prosecution is not required to prove that a defendant was guilty beyond a reasonable doubt. People v Joyner, 93 Mich App 554; 287 NW2d 286 (1979). However, there must be evidence to establish each element of the offense, or evidence from which those elements may be inferred. Wayne Co Prosecutor v Recorder’s Court Judge, 92 Mich App 119; 284 NW2d 507 (1979). In the instant case, evidence was presented at the preliminary examination that alleged the defendant was negligent because he swerved to the left, rather than to the right, when he attempted to avoid the fallen sign.

Further, in his response to the defense’s pretrial request for a more specific information, the prosecutor stated that he did not believe there would be any proofs as to immoderate speed. The prosecution said that it would be "proceeding with evidence only as to operating a vehicle in a careless, reckless or negligent manner as the information states.”

In sum, before trial began, defendant was aware that no proofs of immoderate speed would be offered against him. Further, albeit assisted by the evidence presented at the preliminary examination, defendant was informed as to the nature of the charges,¹¹ and that under the circumstances, his act of swerving to the left is what the prosecution would attempt to prove as negligent. Consideration is also given to the fact that defense counsel neither asked for a bill of particulars nor made a motion for a continuance. In light of all the above circumstances, we are unable to see how the defendant would have been in any better position with an amended information. Thus, while the information was insufficient, we find no prejudice against defendant. See People v Ryczek, 224 Mich 106; 194 NW 609 (1923). (The information charged the statutory short form of manslaughter as well as a second count which amounted to a charge of involuntary manslaughter for which the defendant was convicted. Although the information did not strictly set forth the acts of negligence upon which the conviction was based, it was held that the defendant was not prejudiced in making his defense.)

ii

The second issue before this Court is whether defendant was held to the correct standard of care.

There is no question that the applicable standard of care in negligent homicide cases is that of a reasonable person. CJI 16:5:02(1) states: "For negligent homicide the prosecution must prove beyond a reasonable doubt that the defendant was guilty of ordinary negligence.” This instruction goes on to explain that "[ojrdinary negligence is defined as want of reasonable care; that is, failing to do what an ordinarily sensible person would have done under the conditions and circumstances then existing . . . .” CJI 16:5:02(4).

This instruction is merely a reiteration of the rule that has been long standing in Michigan. In People v McMurchy, 249 Mich 147, 167; 228 NW 723 (1930), this Court said: "Every person driving upon the public highway, or in other places frequented by others, is bound to exercise reasonable care and caution to prevent injury to others.” See also People v Fedderson, 327 Mich 213, 218; 41 (1950), and People v McKee, 15 Mich App 382, 385; 166 NW2d 688 (Í968).

Defendant asserts that the trial judge held him to a degree of care greater than that of a reasonable, or ordinary, person. His argument is premised on the statement of the trial judge at the conclusion of the bench trial:

I’m not saying as I indicated before that there was anything gross in the negligence of the defendant here and from his experience as a truck driver it would be even hard to say that he was an inexperienced man and that is what adds to the situation here. It appears quite obvious to the Court that with his experience as a truck driver, he could have and he should have been able to make a judgment factor at the time of going thirty-five miles an hour, having seen the car coming from the other direction as he said he did.

Defendant would have us believe that by commenting on his experience as a truck driver the trial judge held him to a standard higher than that of an ordinary motorist. We disagree.

A thorough reading of the monologue delivered by the judge when handing down his verdict illustrates that the reasonable-person standard was applied. The judge specifically held:

I’m impressed that a reading of the standard instruction, definition of ordinary negligence is a thing that is involved here. Whatever the Court must decide has to be done on whether or not in its view and its judgment ordinary negligence has been made out. . . .

If there was anything to be concerned with, it would be whether or not the acts of the defendant in this case reached the plateau of ordinary negligence.

The standard instruction under degrees of negligence and the instructions 16:5:02 states in paragraph 4, "Ordinary negligence is defined as want of reasonable care. That is failing to do what an ordinary sensible person would have done under the conditions and circumstances then existing or doing what an ordinarily sensible person would not have done under the conditions and circumstances then existing in view of probable injury.” [Emphasis added.]

The judge’s recitation then continued to CJI 16:5:02(5):

Ordinary negligence occurs in the doing of acts which are naturally and inherently dangerous to life, which a reasonable person ought to perceive are likely to produce injury to another. Ordinary negligence is greater than or above slight negligence, but less than gross negligence. Ordinary negligence is characterized by thoughtlessness, heedlessness and inattention.

After his recitation of CJI 16:5:02(4) and (5), the judge held:

I invite your attention to this summation so to speak of what ordinary negligence is. It is characterized by thoughtlessness, heedlessness and inattention. It seems to the Court that that’s the problem we have here and that is what is made out here in terms of Mr. Traughber’s conduct. [Emphasis added.]

The above excerpts clearly illustrate that the judge did identify the proper standard of care for determining whether or not the defendant’s conduct evidenced want of reasonable care given all the existing circumstances. Accordingly, we find no error with the standard of care applied by the trial court. However, we do find error with the court’s failure to apply the standard to the facts supported by the record. We find error with the court concluding that the defendant created an emergency as opposed to having been confronted with an emergency.

The evidence at trial established that a sudden and unexpected event occurred when the defendant came upon the real estate sign lying in the middle of his lane of trafile. Moreover, it was this unexpected event, coupled with the fact that there was no time to adequately weigh the alternatives, that prompted the defendant to instinctively and impulsively swerve his car to the left in an attempt to avoid the obstacle. On cross-examination, the defendant was asked:

Q: And even traveling at that slow speed [35 mph] you didn’t have time to negotiate that space on the right, is that correct?

A: I seen the sign [s]o fast that it was make up your mind what you’re going to do. It was a split second decision. I couldn’t negotiate which wa\y\ to go or what to do at that amount. I didn’t have time. [Emphasis added.][¹²]

The defendant testified that the reason he instinctively swerved to the left was because on the right side of the road there was a "three or four foot ditch there with . . . small trees in it. . . .”¹³

Notwithstanding this testimony, corroborated by both drivers, the trial judge found that the defendant’s "judgment” in reflexively swerving to the left, rather than to the right, was the determinative factor for the guilty verdict:

It appears quite obvious to the Court that with his experience as a truck driver, he could have and he should have been able to make a judgment factor at the time of going thirty-Sve miles an hour, having seen the car coming from the other direction as he said he did. That instead of going to the left to go around the sign, notwithstanding whatever risk about the ditch or the condition of the berm on the side of the road that he should have slacked his car and he could have gone easily around the sign on the right side of the sign and could have avoided the emergency that he created by trying to swerve to the left and then tried to swerve back to the right.

For the reasons mentioned and discussed and the findings which the Court has made, it is the conclusion of the Court that as to count i of the information the defendant is guilty as charged. [Emphasis added.]

Thus, we disagree with the conclusion that the defendant created the emergency. Not only was the defendant not responsible for the real estate sign having been in the road, but he had no reason to know his lane of travel would be obstructed. He reacted to the sign immediately after his headlights revealed it to be in his way.¹⁴ Therefore, the defendant did not "create” an emergency, but rather he reacted to an emergency.

In emergency situations, the driver is not to be held accountable for misjudgment. This Court in Craddock v Torrence Oil Co, 322 Mich 510, 517; 34 NW2d 51 (1948), quoted the rule of Loucks v Fox, 261 Mich 338, 343; 246 NW 141 (1933):

In case of an emergency, a driver is not responsible for the selection of the safer method of avoiding a collision. If a reasonably prudent man would turn onto the wrong side of the road under similar circumstances, defendant is free from liability despite the untoward results.

Later, in Maddux v Donaldson, 362 Mich 425, 428; 108 NW2d 33 (1961), this Court reiterated:

But [plaintiff’s] actions are not to be judged in the light of hindsight. He was suddenly imperiled by a serious emergency not of his own making. In this situation, as we have so often held, the law makes allowance for lack of calm judgment, for failure "to adopt what subsequently and upon reflection may appear to have been a better method.”

See also Wendover v State, 63 Misc 2d 368, 376; 313 NYS2d 287 (1970) ("Faced with an emergency, the person called upon to act is not obligated to exercise the best judgment, and an error of judgment, even if unfortunate, does not make it negligent. Rowlands v Parks, 2 NY2d 64; 156 NYS2d 834; 138 NE2d 217 [1956]”), and 7A Am Jur 2d, Automobiles and Highway Traffic, § 420, pp 633-634 ("[w]here a motorist, by the negligence of another, is placed in a position of danger and is compelled to act suddenly, the law does not demand that accuracy of judgment which would be expected under other circumstances, and in such cases, even though he makes a mistake he will not be deemed to have been guilty of negligence, unless his choice of action is that which no ordinarily prudent person would have taken under similar circumstances”).

Here, the defendant, traveling at 35 mph, first noticed the real estate sign when he was approximately thirty feet from the oncoming car. Therefore, the time within which the defendant had to formulate his judgment was imperceptible.¹⁵ While the defendant’s judgment may very well have been incorrect, this Court will not judge the actions of an automobile driver in an emergency situation from a retrospective point of view. Haney v Beisel, 287 Mich 239; 283 NW 43 (1938).

CONCLUSION

We find that the information, coupled with the preliminary examination, resulted in no prejudice toward the defendant and adequately advised him of the conduct for which he was being tried. Furthermore, we find that the trial judge correctly used the reasonable-person standard but failed to apply the standard to the emergency faced by the defendant as evidenced by the record. This being so, the defendant’s conduct cannot be said to have been contrary to that of an ordinarily prudent person under similar circumstances. Accordingly, we reverse the decision of the Court of Appeals.

Levin, Cavanagh, and Archer, JJ., concurred with Riley, C.J.

1 Other conditions of probation require submission of the defendant to an alcohol therapeutic organization for six months upon termination of his three-month confinement, restitution to the deceased’s family in the amount of $4,358.33, and restriction of the defendant’s driving privileges for the first year of probation.

2 Both drivers testified that the accident occurred just within the southbound lane. Linus Parr on direct examination said his car was one or two feet into the southbound lane when the accident occurred. Defendant Traughber testified that he was three feet into "my lane” at the time of impact.

We acknowledge, however, that the police officer who reconstructed the accident testified that he believed the accident occurred in the northbound lane on the basis of gouge marks in the road. The police officer admitted that this was the only basis for his testimony, and he acknowledged that the testimony of the two drivers involved was that the accident occurred in the southbound lane.

3 MCL 257.625a(3)(a); MSA 9.23251(l)(3)(a) provides: "If there was at the time 0.07% or less by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor.”

4 MCL 750.324; MSA 28.556.

5 MCL 257.904a; MSA 9.2604(1).

6 Docket No. 88613, decided May 11, 1987.

7 430 Mich 857 (1988).

8 MCL 767.44; MSA 28.984 permits an information to be filed in short form.

9 The trial court found the information language to be sufficient and directed the parties to proceed to trial.

10 The preliminary examination was given on February 14, 1985, and the trial was held on August 14, 1985.

11 This is consistent with the requirement of art 1, § 20 of the 1963 Michigan Constitution which provides: "In every criminal prosecution, the accused shall have the right ... to be informed of the nature of the accusation . . . .”

12 The fact that this was a "split-second” decision was supported by the testimony of the driver of the other car. On cross-examination, Mr. Parr was asked why he turned left, rather than right, when he saw defendant’s car enter his lane:

Q: Was it possible for you to go to the right, off of the road?

A: It’s hard to say, you don’t have much time to think. [Emphasis added.]

13 This echoed Mr. Parr’s testimony that "there were very deep ditches” along the sides of the road. Mr. Parr further testified that if there was enough room on the gravel shoulder of the road to accommodate an automobile (before the ditch would be encountered), it would be a "tight fit.”

The defendant testified that the width between the sign and the edge of the ditch was approximately eight feet, which was not enough space through which his car could pass.

14 Under the "radius of lights” rule, it is negligence as a matter of law to drive a motor vehicle so fast at night that it cannot be stopped in time to avoid a collision with objects within the area lighted by its headlights that is, within the radius of lights. 7A Am Jur 2d, Automobiles and Highway Traffic, § 800, p 1051.

In the present case, it was testified that defendant was traveling at a safe speed, 35 mph in a 45 mph zone, and that both headlights on defendant’s automobile were functioning properly. Therefore, the "radius of lights” rule has no application here.

15 Am Jur 2d, Desk Book, Item No. 105, indicates that an automobile proceeding at 35 mph travels fifty-one feet per second. This being so, the defendant had less than one second in which to sum up his alternatives and decide how to react to the emergency with which he was confronted. See Whicher v Phinney, 124 F2d 929 (CA 1, 1942) (with only a two-second interval in which a driver had to react, there was opportunity only for instinctive action; such action did not provide a basis for a finding of negligence).