People v. Blondia

69 Mich. App. 554 (1976) 245 N.W.2d 130 PEOPLE v. BLONDIA Docket No. 20905. Michigan Court of Appeals. Decided June 24, 1976. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Thomas J. Kizer, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Edward R. Wilson, Director, by Dennis M. Powers, Special Assistant Attorney General), for the people. *556 Schurgin, Katkowsky & Rosenberg, for defendant on appeal. Before: DANHOF, P.J., and V.J. BRENNAN and M.J. KELLY, JJ. M.J. KELLY, J. The defendant-appellant was charged with manslaughter, MCLA 750.321; MSA 28.553, and convicted of the lesser included offense of negligent homicide, MCLA 750.324; MSA 28.556. After sentencing to a term of 13 months to 24 months in prison, this appeal was filed of right. The conviction arises out of an automobile accident which occurred on January 1, 1973. Defendant's car collided with a car driven by one Linda Garland, who was killed upon impact. The accident took place on Grand River Avenue, near the intersection of I-96 in Howell, Michigan. Defendant raises three assignments of reversible error in this appeal; an improper instruction allowing the jury to discuss the case while the trial was ongoing, an improper admission of evidence regarding speed based upon a VASCAR unit and an improper admission of a blood sample into evidence. We find that reversible error was committed when the trial judge instructed the jurors at the beginning of the trial: "The Court: * * * The jurors can talk about the case, as I interpret the People versus Herd [sic], because they would have to ask questions. I always precaution the jury when they are being sent out for lunch or recess that they can discuss the case amongst themselves in the juryroom but never with an eye to what the ultimate of the case should be until they have been charged and sent back under directions to deliberate. "You are to bear this in mind, and I will repeat: anytime you discuss the case back in the juryroom *557 amongst yourself, of course, you are not to discuss the case with one or two off in a vacuum somewhere. But if you discuss the testimony of a witness you have just heard on the witness stand back in the juryroom, that is fine. You can do that and it would be less than reasonable for me to ask you never to discuss anything until it is all over with because I know you are going to do it. We all know you are going to do it. But it is improper and you will be charged repeatedly, if you do discuss the testimony of the witness back in the juryroom it is not with the intent to decide on the basis of the testimony that you have heard up to that point on what the verdict should be. "You are never in a position as a jury to actually deliberate relative to what the verdict should be in the case until the case is totally concluded. "By that I mean that we have gone through the whole process I have just told you about, all of the witnesses testified, all of the arguments have been given, all of the legal charges have been given to you and you have been sent back with instructions to then deliberate relative to what your verdict should be. "Bear in mind at anytime that you are discussing the case back in the juryroom it is not to be with an ultimate goal of what the outcome of the case should be. You are only in a position to do that when you are absolutely charged to go back to the juryroom to make that determination." Similar instructions were issued throughout the trial. While it is clearly the law that the trial judge should instruct the jury not to discuss the case among themselves, the cases have held that the omission is not reversible error absent prejudice or at least a showing of such conversations. People v Scott, 55 Mich App 739; 223 NW2d 330 (1974), People v Taylor, 46 Mich App 259; 207 NW2d 899 (1973), People v McIntosh, 6 Mich App 62; 148 NW2d 220 (1967), People v Haugabook, 23 Mich App 356, 358-359; 178 NW2d 556 (1970). We do not find Michigan precedent on point. We *558 do find such a novel instruction inappropriate. We assume that having been invited to do so, some jurors did discuss testimony during the course of this 11-day trial. It may be that the rule prohibiting discussions should be re-examined. If so, the Supreme Court would be the proper forum. We address the other issues in case they are presented on retrial. A State Police officer testified that he was traveling 55 to 58 miles per hour when a speeding car overtook and passed him in the left-hand lane. The trooper's patrol car was equipped with a visual average speed computer recorder unit (VASCAR) which he activated as the car passed him. He was allowed to testify, over defense objection, that his VASCAR unit recorded the speed as 79.9 miles per hour. It is alleged that that admission into evidence was reversible error because there was no competent testimony as to the accuracy of the device. The trooper testified that he calibrated the VASCAR unit before each shift on a premeasured half-mile course. He testified that he had not participated in the measuring of the course but that other troopers had used it and had marked it and he thought it was accurate. He also used a stop watch to test the VASCAR unit but he did not have anything to offer on the accuracy of the stop watch except that it was not a certified stop watch as prescribed in the manufacturer's instructions on the use of the VASCAR unit. In People v Kenney, 354 Mich 191, 196; 92 NW2d 335 (1958), the court allowed the results of a scientific instrument used for measuring the speed of a motor vehicle into evidence where: "[I]t was shown by testimony that the instrument was *559 properly set up, was checked before using by the officers operating it, where it was shown that constant periodical checks were made by experts to determine whether or not the instrument was operating correctly, and where the officer operating the instrument observed the speeding vehicle and testified as to his estimation of the vehicle's speed * * *." Relying on the Kenney case, this Court, in the case of People v Tobey, 60 Mich App 420, 428; 231 NW2d 403 (1975), involving the admissibility of spectograph evidence, held that "* * * the prosecutor must lay a proper foundation of proof of the accuracy of the scientific and mechanical instruments used in the test". This seems to be the generally accepted rule regarding the admissibility of evidence of a scientific instrument in other jurisdictions. See 47 ALR3d 822, § 19, p 877; 21 ALR2d 1200 (Later Case Service), pp 447-449. If the outcome of this appeal depended on the VASCAR speed evidence alone, we would hold that there was an insufficient showing of the accuracy of the unit because a proper foundation was not laid. Whether that error would mandate reversal is a question we need not reach because there seems to be considerable other independent testimony about the speed of the defendant vehicle which was properly admissible. We suggest that the VASCAR evidence be excluded on retrial if no better foundation is established then the one presented for our review here. Defendant's final claim of error involves the withdrawing of a sample of his blood at the hospital, which was turned over to the State Police. Defendant was not informed of his right to have a doctor of his choice withdraw the blood or to administer any other type of test for alcohol consumption. Evidence was admitted concerning the *560 results of this blood test which tended to show that defendant was intoxicated at the time of the accident. Defendant's argument is based on MCLA 257.625a(3); MSA 9.2325(1)(3), and MCLA 257.625a(6); MSA 9.2325(1)(6). Defendant reasons that since he was not informed of his right to have a person of his own choosing administer one of the tests, and that the results of such tests would be admissible and be considered with other competent evidence in determining his guilt or innocence, or of his right to demand that only a breath test be given, the blood sample was illegally taken from him and thus should have been inadmissible as evidence. We disagree. In the recent case of People v Moore, 395 Mich 643, 644; 237 NW2d 464 (1976), the defendant contended that police officers should not have been allowed to testify as to evidence of intoxication where a Breathalyzer test had not been offered him. The Court stated: "Appellant's final issue, one of first impression in this Court, asks the creation of an exclusionary rule, namely, a rule forbidding police officers to testify as to evidence of intoxication unless a Breathalyzer test is offered to a defendant suspected of having caused death in an automobile accident. The police in this case said they offered no Breathalyzer test because they had not observed defendant actually driving his car. In addition, there was testimony that defendant would have been allowed to take a Breathalyzer test if he had requested one. We perceive no cause for judicial creation of an exclusionary rule on this record and perceive no error in allowing into this record the evidence concerning intoxication." Similarly, this Court held in the case of People v Keen, 56 Mich App 84, 86; 223 NW2d 700 (1974), *561 lv granted, 393 Mich 787 (1975), that the cited statutes apply only to charges of driving while under the influence of intoxicating liquor or driving while impaired and not to charges of other crimes. We hold, therefore, that the statutes on which defendant relies are inapplicable to the case at bar and it was therefore not error for the trial court to admit evidence of the blood test in this case. Reversed and remanded for a new trial for failure of the trial court to give a proper requested instruction to the jury not to discuss the case until the proper time. DANHOF, P.J., concurred. V.J. BRENNAN, J. (dissenting). I concur in that portion of Judge KELLY'S opinion dealing with the admissibility of defendant's blood sample and the improper admission of evidence regarding speed based on the VASCAR unit. I find reversible error in allowing Trooper Bluck to testify concerning use of the unit, given that no proper foundation was laid to demonstrate its accuracy. People v Tobey, 60 Mich App 420, 428-430; 231 NW2d 403 (1975). On the basis of this evidence, which would tend to have great influence on the jury, I am unable to say that they might not have reached a different result had this evidence been excluded. On the other hand, I must disagree with my Brother KELLY on the law concerning the trial court's failure to caution the jury against discussing the case among themselves. Contrary to the majority opinion, this Court has held that, although prudence would dictate that the trial judge should remind the jury not to discuss the case, his failure to do so will not require reversal absent a *562 showing of prejudice. People v Haugabook, 23 Mich App 356, 358-359; 178 NW2d 556 (1970), lv den 383 Mich 801 (1970), People v McIntosh, 6 Mich App 62, 70-71; 148 NW2d 220 (1967). I find no evidence of prejudice on the record.