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01/06/76 PEOPLE v. EBEJER

January 6, 1976

PEOPLE
v.
EBEJER



Appeal from Recorder's Court of Detroit, Andrew C. Wood, J.

Bashara, P. J., and D. F. Walsh and W. S. White,* JJ.

SYLLABUS BY THE COURT

1. Homicide -- Negligent Homicide -- Instructions to Jury -- Contributory Negligence -- Proximate Cause.

A jury in a trial for negligent homicide was properly instructed that contributory negligence on the part of the deceased would not be a defense to the charge but that the conduct of the deceased or a third party should be considered in determining whether the defendant was negligent and whether the defendant's negligence was "the" proximate cause of the death.

2. Homicide -- Negligent Homicide -- Instructions to Jury -- Contributory Negligence -- Proximate Cause.

A statement by a trial court that a defendant in a trial for negligent homicide should be acquitted if either the deceased's contributory negligence or the negligence of a third party was "the" proximate cause of the death is merely an inverse way of saying that the defendant's negligence must be "the" proximate cause of the death; such statement was neither misleading nor prejudicial nor did it shift the burden of proof to the defendant.

3. Evidence -- Admissibility -- Relevance -- Discretion of Court -- Abuse of Discretion.

Decisions regarding the relevance of proffered evidence are within the discretion of the trial court and should not be disturbed on appeal absent an abuse of that discretion.

4. Evidence -- Rebuttal Testimony -- Refutation of Opponents -- Exceptions -- Exact Testimony.

Legitimate rebuttal testimony is limited to the refutation or impeachment of relevant and material evidence properly raised by the opposing party and should not include testimony which should have been introduced in the case in chief; a narrowly drawn exception to the general rule exists where rebuttal testimony is offered to disprove the "exact testimony" given by the defendant.

5. Witnesses -- Expert Witnesses -- Qualifications -- Formal Education -- Employment Experience.

Determination of the qualifications of an expert witness is made by the trial court and formal education is not required where the witness is shown to have acquired special knowledge concerning the subject by reason of his employment.

6. Evidence -- Admissibility -- Opinion of Speed -- Force of Impact -- Other Considerations.

An estimate of speed based solely on an opinion of the force of impact is not admissible evidence of speed, but an estimate of the speed of a vehicle based on (1) measurements of skid marks made by the vehicle after impact, (2) measurements of the distance between the vehicle's point of impact with another vehicle and its subsequent impact with a third parked vehicle, (3) measurement of the distance the parked vehicle was driven backwards by the impact, (4) examination of the skid marks made by the parked vehicle, (5) examination of gouge marks and scratches in the street, the location of debris and the condition of the vehicles, and (6) photographs taken at the scene, is sufficiently supported to be admissible in evidence.

7. Witnesses -- -- Failure to Produce -- Reversal -- Procedure -- Motion for New Trial.

A defendant desiring reversal of conviction or a new trial because of the failure of the prosecution to produce an unindorsed or indorsed witness must, before filing his brief on appeal, move the trial court for a new trial; at the hearing upon the motion the prosecutor shall produce or explain why he cannot produce the witness or why he did not indorse and produce him at trial.

8. -- Prosecutors -- Opening Arguments -- Erroneous Intimation -- Witnesses -- Harmless Error.

Any error on the part of a prosecutor in incorrectly intimating to jurors in his opening statement that the defendant would present witnesses in his defense is not unduly offensive to the maintenance of a sound judicial process where there was no deliberate attempt on the part of the prosecutor to coerce the testimony of the accused or to invite the jury to draw adverse inferences in the event defendant declined to testify and does not require reversal.

The opinion of the court was delivered by: Walsh

Robert E. Ebejer was convicted of involuntary manslaughter. ...


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