Where a defendant was charged with second-degree murder, a circuit court decision to dismiss that charge should be reversed because the evidence was enough to support a finding that the defendant’s conduct exceeded mere drunken driving and constituted probable malice.
“Following a fatal car accident, defendant was charged with second-degree murder, MCL 750.317, operating a motor vehicle while intoxicated causing death, MCL 257.625(4)(a), and operating a motor vehicle while intoxicated causing serious injury, MCL 257.625(5), and was bound over for trial by the district court. Defendant moved to quash and dismiss the second-degree murder charge, which the circuit court granted. We granted the People’s interlocutory appeal to review the circuit court’s order granting defendant’s motion to quash, and now reverse and remand for proceedings consistent with this opinion.
“We conclude that the circuit erred when it granted defendant’s motion to quash and concluded that the district court abused its discretion in binding over defendant for trial on the second-degree murder charge.
“We conclude that the district court did not abuse its discretion when it determined that there was sufficient evidence of defendant’s probable malice to support a bindover on the second-degree murder charge. Here, the prosecution presented evidence that defendant was intoxicated while driving, and that defendant exceeded the speed limit in a residential area near defendant’s home by anywhere from nearly 30 to 40 miles per hour. The prosecution also submitted evidence that defendant not only failed to brake, but was accelerating with 100% of his throttle until one second before the crash. Further, several open alcoholic beverages were found in defendant’s truck, which could support an inference that defendant was actively consuming alcohol while he was driving. Finally, there was evidence that defendant swerved into decedent’s lane, which caused the accident to occur. The district court did not abuse its discretion when it determined that this evidence was enough to support a finding that defendant’s conduct exceeded mere drunk driving and constituted probable malice.
“Further, contrary to the circuit court’s opinion, it was not speculation for the accident reconstructionist to opine that, if defendant did not swerve into the northbound lane, the accident would not have occurred. Indeed, evidence presented at the preliminary examination provided a factual basis for the expert’s opinion. The accident reconstructionist was qualified as an expert, and was permitted to testify in the form of an opinion or otherwise if: ‘(1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.’ MRE 702. Decedent’s husband testified that they had safely entered the northbound lane before defendant swerved into their lane. The accident reconstructionist testified that the tire marks and gouges on the road indicated that impact occurred in the northbound lane. The accident reconstructionist’s opinion that, but for defendant’s swerve, the accident would not have occurred was not based on speculation but based on this evidence. The district court did not err by finding that defendant’s swerve in part supported a finding of probable malice.
“Reversed and remanded for further proceedings consistent with this opinion.”
Dissenting judge’s comments
M.J. KELLY, P.J. (dissenting). “No one disputes that the actions of Robert George Albert were outrageous and resulted in the death of one person and the extremely serious injuries of another when he drove his pick-up truck at a high rate of speed while intoxicated. The question before us is whether his actions rise to the level of second-degree murder, MCL 750.317. The district court bound the case over on the second-degree murder charge and the circuit court reversed that decision. The majority now reverses the circuit court. I respectfully dissent.
“The evidence here is disturbing. Albert was traveling at a rate of speed far greater than that of the posted speed limit. He was drunk. But to hold that probable malice was established because Albert took evasive action and swerved when the victims pulled in front of him is, in my view, outside the range of principled outcomes and therefore an abuse of discretion. The split-second decision to swerve may have been unwise, even negligent. And, as it tragically turned out, it was the wrong decision. But I fail to see how it constitutes probable malice. It seems to me to be an action that the vast majority of drivers would take, whether they were under the influence of alcohol or not.”
People v. Albert; MiLW 08-107991, 7 pages; Michigan Court of Appeals unpublished per curiam; Jansen, J., Murray, J.; M. J. Kelly, J., dissenting; on appeal from Livingston Circuit Court; William M. Worden for appellant; Kristina L. Dunne for appellee.
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