Opinion
355030
10-14-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JERARD NATHANIEL WELCH, Defendant-Appellant.
UNPUBLISHED
Oakland Circuit Court LC No. 2019-271266-FH
Before: Gleicher, P.J., and Cavanagh and Letica, JJ.
Per Curiam.
In this interlocutory appeal, defendant appeals by delayed leave granted the trial court's opinion and order granting the prosecution's pretrial motion in limine to exclude certain evidence. We affirm.
People v Welch, unpublished order of the Court of Appeals, entered January 4, 2021 (Docket No. 355030).
I. FACTUAL BACKGROUND
Defendant was charged with operating a motor vehicle while intoxicated causing serious impairment of a body function (OWICSI), MCL 257.625(5), following a car accident on I-696 at about 10:30 p.m. on December 29, 2018. Defendant had been attempting to pass a vehicle being driven by Jeremiah Goemaere when he struck Goemaere's vehicle. According to defendant, the road was slippery after a fresh snowfall and Goemaere's vehicle fishtailed into defendant's lane of travel, allegedly causing the collision. Goemaere's wife, Rebekah Goemaere, who was a passenger in the vehicle, sustained injuries as a result of the accident. After defendant failed field sobriety tests conducted at the scene of the accident and refused a preliminary breath test, a search warrant was obtained and defendant's blood alcohol level was determined to be .113 grams per 100 ml of blood.
The prosecution filed a motion in limine after learning that defendant intended to assert as a defense that he was not at fault for this accident; rather, it was the snowy road conditions or the fishtailing of Goemaere's vehicle that caused the accident. The prosecution argued that "fault" is not an element of the charged crime, and thus, any evidence to support such a defense is irrelevant and would merely mislead or confuse the jury. Accordingly, the prosecution argued, defendant should not be permitted to introduce evidence bearing on the issue of whether he operated his vehicle in a negligent or careless manner, i.e., was "at fault" or "the cause" of the accident, that gave rise to Rebekah Goemaere's injuries. Moreover, the prosecution argued, neither the snowy road conditions nor Goemaere's driving amount to intervening, superseding causes that break the causal link between defendant's operation of his vehicle while intoxicated and Rebekah Goemaere's injuries. Therefore, the prosecution requested that the trial court grant its motion in limine to exclude such evidence.
Defendant responded to the prosecution's motion, arguing that the prosecution must prove causation—both factual and proximate cause—as an element of the charged crime; thus, granting the motion would be "tantamount to granting directed verdict on this element of the crime." Defendant argued that he was "not the factual cause of the accident because it was not his conduct or act that caused the accident to occur." In other words, there was no evidence that defendant operated his car negligently; rather, Jeremiah Goemaere lost control of his vehicle and fishtailed into defendant's lane of travel causing the accident. Further, defendant argued, the snowy road conditions and Goemaere's negligence were intervening, superseding causes that severed the causal link for criminal liability; thus, defendant's conduct was also not a proximate cause of the accident that gave rise to Rebekah Goemaere's injuries. Therefore, defendant requested that the trial court deny the prosecution's motion in limine to exclude such evidence.
The trial court held a hearing on the prosecution's motion in limine, took the matter under advisement, and ultimately issued an opinion and order granting the motion. The trial court referred to the case of People v Schaefer, 473 Mich. 418; 703 N.W.2d 774 (2005), modified in part on other grounds by People v Derror, 475 Mich. 316, 334 (2006), overruled in part on other grounds by People v Feezel, 486 Mich. 184, 207 (2010), which held that the prosecution need not prove causation between a defendant's intoxication and a victim's injury, and the case of People v Pace, 311 Mich.App. 1, 9; 874 N.W.2d 164 (2015), which held that the crime of "moving violation causing serious impairment" is a strict liability offense. Then the trial court concluded that the prosecution was only required to prove that defendant's operation of the vehicle was a cause of the victim's injuries, regardless of fault. Accordingly, the prosecution's motion was granted. Thereafter, defendant filed a delayed application for leave to appeal, which this Court granted. People v Welch, unpublished order of the Court of Appeals, entered January 4, 2021 (Docket No. 355030).
II. ANALYSIS
Defendant argues that the trial court abused its discretion by granting the prosecution's motion in limine to exclude evidence that the snowy conditions and/or Goemaere's driving caused the collision that resulted in the victim's injuries. We disagree.
A trial court's decision on a motion in limine is reviewed for an abuse of discretion. People v Langlois, 325 Mich.App. 236, 240; 924 N.W.2d 904 (2018). "An abuse of discretion occurs when the decision results in an outcome falling outside the range of principled outcomes." Barnett v Hidalgo, 478 Mich. 151, 158; 732 N.W.2d 472 (2007). We review de novo questions of law, including issues of statutory construction and determining the elements of a crime. Pace, 311 Mich.App. at 4.
Defendant was charged with operating a motor vehicle while intoxicated causing serious impairment under MCL 257.625, which provides, in relevant part:
(1) A person, whether licensed or not, shall not operate a vehicle on a highwayor other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person is operating while intoxicated. As used in this section, "operating while intoxicated" means any of the following:
* * *
(b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood . . . .
* * *
(4) A person, whether licensed or not, who operates a motor vehicle in violation of subsection (1), (3), or (8) and by the operation of that motor vehicle causes the death of another person is guilty of a crime as follows:
* * *
(5) A person, whether licensed or not, who operates a motor vehicle in violation of subsection (1), (3), or (8) and by the operation of that motor vehicle causes a serious impairment of a body function of another person is guilty of a crime as follows:
(a) Except as provided in subdivision (b), the person is guilty of a felony punishable by imprisonment for not more than 5 years . . . .
With respect to the death or serious impairment of another person, the statutory language refers to "the operation of that motor vehicle," rather than to the negligent or intoxicated manner of operation of the motor vehicle. MCL 257.625(4) and (5). "It is a well-established rule of statutory construction that this Court will not read words into a statute." Byker v Mannes, 465 Mich. 637, 646-647; 641 N.W.2d 210 (2002). In Schaefer, 473 Mich. at 431-433, our Supreme Court held that, with regard to the crime of operating a motor vehicle while intoxicated causing death [MCL 257.625(4)], the identical statutory language—"by the operation of that motor vehicle"— required only that the victim's death be caused by the defendant's operation of a motor vehicle, rather than the defendant's intoxicated manner of operation of that vehicle. The Court explained: "[T]he manner in which the defendant's intoxication affected his or her operation of the vehicle is unrelated to the causation element of the crime. The defendant's status as 'intoxicated' is a separate element of the offense used to identify the class of persons subject to liability under § 625(4)." Id. at 433. The Schaefer Court recognized that the Legislature's intent was "to deter the gravely dangerous conduct of driving while intoxicated," regardless of whether intoxication changed the manner of operation of the vehicle. Id. at 434 (quotation marks, alteration, and citation omitted).
The Schaefer Court then turned to the term "cause" as set forth in the statute, and explained that the intoxicated person's operation of the motor vehicle must be both a factual cause and a proximate cause of the victim's death. Id. at 435. Factual cause requires a showing that "but for" the defendant's conduct, the result would not have occurred. Id. at 435-436. "Absent defendant's operation of the vehicle, the collision would not have occurred." Id. at 445. In contrast, "[f]or a defendant's conduct to be regarded as a proximate cause, the victim's injury must be a 'direct and natural result' of the defendant's actions." Id. at 436 (citation omitted). There must be evidence "that the victim's death [or injury] was the direct and natural result of defendant's operation of the vehicle." Id. at 445. In making the determination regarding proximate cause, "it is necessary to examine whether there was an intervening cause that superseded the defendant's conduct such that the causal link between the defendant's conduct and the victim's injury was broken." Id. at 436-437. Reasonable foreseeability is the "standard by which to gauge whether an intervening cause supersedes, and thus severs the causal link[.]" Id. at 437. If the intervening cause was reasonably foreseeable based on an objective standard of reasonableness—like ordinary negligence—then the defendant's conduct will be considered a proximate cause. Id. If the intervening cause was not reasonably foreseeable, like gross negligence or intentional misconduct, "then generally the causal link is severed and the defendant's conduct is not regarded as a proximate cause of the victim's injury or death." Id. at 437-438.
In this case, following the rationale of Schaefer, the prosecution is only required to show that defendant's operation of a motor vehicle while intoxicated was a factual and proximate cause of the victim's injury, not that defendant's intoxicated manner of driving or negligent manner of driving caused or proximately caused the injury. To convict defendant of OWICSI, the prosecution need only prove in this case that (1) defendant operated a motor vehicle (2) on a highway (3) with a blood alcohol content of 0.08 grams or more per 100 milliliters of blood and (4) by the operation of that motor vehicle caused a serious impairment of a body function of another person. See MCL 257.625(1), (5); People v Hyde, 285 Mich.App. 428, 447-448; 775 N.W.2d 833 (2009) (setting forth the elements of OWI). As the Schaefer Court held, the statute requires no causal link at all between defendant's intoxication and the victim's injury; rather, defendant's operation of the vehicle must cause the injury. Schaefer, 473 Mich. at 446. This is consistent with the model criminal jury instruction for OWICSI, M Crim JI 15.12a, which explains the causation element as follows in paragraph 6:
On October 1, 2021, the blood alcohol content requirement will rise to .10 grams or more per 100 milliliters of blood. MCL 257.625(1)(b).
[T]hat the defendant's operation of the vehicle caused a serious impairment of a body function to [the victim]. To "cause" such injury, the defendant's operation of the vehicle must have been a factual cause of the injury, that is, but for the defendant's operation of the vehicle the injury would not have occurred. In addition, operation of the vehicle must have been a proximate cause of the injury, that is, the injury must have been a direct and natural result of operating the vehicle.
Here, the prosecution filed a pretrial motion in limine seeking to exclude evidence that defendant likely would seek to introduce as purportedly relevant to the causation element of OWICSI—the evidence being the allegedly snowy road conditions and fishtailing of Jeremiah Goemaere's vehicle. The prosecution argued that such evidence was, in fact, not relevant to the issue of causation and, further, would merely mislead or confuse the jury. The trial court agreed, as do we—in part.
A defendant in a criminal case has a constitutional right to present a defense. People v King, 297 Mich.App. 465, 473; 824 N.W.2d 258 (2012). "But this right is not absolute: the accused must still comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." People v Yost, 278 Mich.App. 341, 379; 749 N.W.2d 753 (2008) (quotation marks and citations omitted). And, generally, all relevant evidence is admissible. MRE 402. However, even relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]" MRE 403. "[U]nfair prejudice refers to the tendency of the proposed evidence to adversely affect the objecting party's position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury's bias, sympathy, anger, or shock." People v Fisher, 449 Mich. 441, 452; 537 N.W.2d 577 (1995) (citation omitted).
As discussed above, there are two components to the causation element of the charged offense: factual cause and proximate cause. We first address factual causation. To establish factual causation the prosecution must prove that but for the defendant's operation of the vehicle, the serious impairment of a body function of another person would not have occurred. See Schaefer, 473 Mich. at 435-436, 445; see also People v Czuprynski, 325 Mich.App. 449, 461; 926 N.W.2d 282 (2018). In this case, as in the Schaefer case, defendant's "operation of the vehicle was undeniably a factual cause" of the victim's injuries because, but for defendant's operation of the vehicle, the collision between defendant and Jeremiah Goemaere would not have occurred. See Schaefer, 473 Mich. at 445. In other words, if defendant had not been driving at all, he would not have been in the collision. Any evidence of snowy road conditions and Jeremiah Goemaere's driving would not tend to present a defense to this component of the causation element, i.e., such evidence would be irrelevant to the issue of factual causation.
We next address the issue of proximate cause. "Proximate causation is a legal construct designed to prevent criminal liability from attaching when the result of the defendant's conduct is viewed as too remote or unnatural." Czuprynski, 325 Mich.App. at 461 (quotation marks and citations omitted). To establish proximate cause, the prosecution must prove that the victim's injuries were a direct and natural result of defendant's operation of the vehicle. See Schaefer, 473 Mich. at 436.
In making this determination, it is necessary to examine whether there was an intervening cause that superseded the defendant's conduct such that the causal link between the defendant's conduct and the victim's injury was broken. If an intervening cause did indeed supersede the defendant's act as a legally significant causal factor, then the defendant's conduct will not be deemed a proximate cause of the victim's injury.
* * *
The linchpin in the superseding cause analysis, therefore, is whether the intervening cause was foreseeable based on an objective standard of reasonableness. If it was reasonably foreseeable, then the defendant's conduct will be considered a proximate cause. If, however, the intervening act by the victim or a third party was not reasonably foreseeable—e.g., gross negligence or intentional misconduct— then generally the causal link is severed and the defendant's conduct is not regarded as a proximate cause of the victim's injury or death. [Id. at 436-438.]
In this case, evidence of snowy road conditions could not establish an intervening cause that superseded defendant's conduct. It was reasonably foreseeable that snowy road conditions would exist at about 10:30 p.m. in Michigan, in December, when the accident occurred. In other words, presenting evidence of snowy road conditions would not tend to establish an intervening cause that superseded defendant's operation of the vehicle, and thereby, prevent defendant's culpability. Likewise, any evidence of Jeremiah Goemaere's vehicle fishtailing could not be establish an intervening cause that superseded defendant's conduct. It was reasonably foreseeable that a vehicle being driven by a person through snowy road conditions would slide or fishtail into another lane of travel. Defense counsel himself stated at the hearing on the prosecution's motion in limine that he would not argue to the jury that "it was unforeseeable that someone could fishtail into your lane."
But even if Goemaere's manner of driving could be considered negligent—which we refute—his driving certainly could not be considered grossly negligent, i.e. wanton (meaning more than reckless) and with disregard of the consequences that may ensue. See People v Bergman, 312 Mich.App. 471, 484; 879 N.W.2d 278 (2015) (citation omitted). Defendant indicated that he was attempting to pass Goemaere—who was driving too slow for defendant's liking despite the allegedly hazardous snowy conditions—when Goemaere allegedly fishtailed into defendant's lane of travel. Clearly, then, Goemaere was not driving at a speed that could be considered excessive considering the snowy conditions. And "ordinary negligence by the victim or a third party will not be regarded as a superseding cause because ordinary negligence is reasonably foreseeable." Schaefer, 473 Mich. at 438-439. Therefore, presenting evidence of Goemaere's vehicle fishtailing would not tend to establish an intervening cause that superseded defendant's operation of the vehicle, and thereby, prevent defendant's culpability. Accordingly, evidence of the snowy road conditions and Goemaere's vehicle fishtailing are also not relevant to the issue of proximate cause.
In light of the fact that defendant was attempting to pass Goemaere when the collision occurred, we disagree with the dissent's hypothesis that "evidence may show that despite the snowy, dark conditions, Goemaere was driving at a high speed when he fishtailed," i.e., that Goemaere was driving in a grossly negligent manner.
While evidence of snowy road conditions and Goemaere's vehicle fishtailing would not be relevant to the issues of factual causation and proximate cause, such evidence may still arguably be relevant for other purposes like, for example, res gestae purposes as defendant argues for the first time on appeal. See MRE 401. As explained by our Supreme Court in People v Sholl, 453 Mich. 730, 741; 556 N.W.2d 851 (1996), "it is essential that prosecutors and defendants be able to give the jury an intelligible presentation of the full context in which disputed events took place." And in this case, as the prosecution admitted, it would be challenging to present this case to the jury without these background facts—that there were snowy road conditions and Goemaere's vehicle allegedly fishtailed—being mentioned during the trial. Therefore, we agree that these purported background facts may be mentioned to the jury if supported by the evidence. However, because such facts, even if true, do not constitute intervening causes that superseded defendant's conduct we direct the trial court to give an appropriate limiting instruction to the jury indicating that such facts, if established, are merely background facts and do not bear on the issue of defendant's guilt for the charged offense of OWICSI. In other words, any such evidence of inclement weather, roadway conditions, or the fishtailing of Goemaere's vehicle do not establish a defense with respect to the causation element, either the factual or proximate cause components.
In summary, the trial court did not abuse its discretion by granting the prosecution's motion in limine precluding defendant from introducing evidence of the snowy road conditions and Jeremiah Goemaere's driving as causes of the collision that resulted in the victim's injuries. Contrary to defendant's argument, granting this motion was not tantamount to granting a directed verdict on the causation element of the crime of OWICSI. But to the extent the trial court held that OWICSI is a strict liability offense, that decision was erroneous; it is not a strict liability offense. The prosecution must still prove beyond a reasonable doubt that defendant's operation of the motor vehicle was a factual and proximate cause of the victim's injuries.
Affirmed.
Elizabeth L. Gleicher, P.J. (dissenting)
Jerard Welch was involved in a motor vehicle accident on a snowy December night. He was intoxicated at the time. The prosecution charged Welch with operating while intoxicated causing serious impairment of a body function (OWICSI), MCL 257.625(5), because of injuries suffered by Rebekah Goemaere in the collision.
Welch waived a preliminary examination. The factual record is limited to an implied consent hearing transcript (see MCL 257.625f) filed with Welch's application for leave to appeal in this Court that was not filed in the circuit court. The circuit court premised its ruling solely on the representations of the lawyers regarding what they believed the evidence would show rather than on actual evidence. And because the transcript was not considered by the circuit court, this Court has also—and properly—refused to consider it.
Welch contended that he was not "at fault" because he was not "negligent" and sought dismissal of the charge against him. The trial court correctly determined that this was not a defense and Welch has not appealed that ruling. The trial court confused issues of factual and proximate causation, which the majority now sets straight. But I cannot agree with the majority regarding the trial court's decision to "exclude evidence of fault."
I. FACTUAL AND PROCEDURAL BACKGROUND
As noted, Welch brought a motion to dismiss the OWICSI charge in the circuit court, contending that the prosecution could not prove causation because "the accident was the result of the actions of third parties and because Mr. Welch did not, through the operation of his vehicle, commit any act that caused the accident[.]" Welch represented that on the night of the accident, his vehicle was the third in a line of four cars travelling in the middle lane on I-696. A car driven by Jeremiah Goemaere was first. The four cars entered a curve covered in fresh snow. The car in front of Welch successfully passed the Goemaere vehicle on the right. As Welch tried to pass on the right, the Goemaere vehicle lost traction and fishtailed into the right lane. Welch "was unable to stop and rear-ended the Goemaeres," Welch's brief continues.
Rebekah Goemaere, sitting in the passenger seat, sustained serious injuries in the crash. Welch failed field sobriety tests conducted by a state trooper who responded to the accident scene. His blood alcohol content, obtained pursuant to a search warrant, was above the legal limit.
In support of his motion to dismiss the OWICSI charge, Welch argued that his driving was "not the factual cause of the accident because it was not his conduct or act that caused the accident." Rather, Welch contended, "[t]he cause of the accident was . . . Goemaere's loss of control on the new snow and fishtailing into Welch's lane." According to Welch, Goemaere's "negligent operation intervened and superseded any causal connection" between Welch's driving and the accident. Welch's brief summarized: "Mr. Welch did not cause anything in this case. Either the weather or Goemaere's driving or both caused the accident." (Emphasis in original.) Welch requested either dismissal of the charge or an instruction permitting the jury to determine whether Goemaere's driving was a superseding cause of the accident.
But Welch did not anchor his legal argument solely in causation principles. Instead, he interjected in several places that he was not "negligent," and therefore was not at fault for the accident. Welch's improper intermingling of causation and fault prompted the prosecution to file two responses to his motion to dismiss.
The prosecution countered Welch's causation argument with the contention that "a common weather event is reasonably foreseeable, and is not a superseding cause such as would break the causal link between the Defendant's operation of motor vehicle and the injury to the victim." Goemaere's "ordinary negligence" was foreseeable, the prosecution insisted, and therefore not a superseding cause as a matter of law.
The prosecution followed up by filing a motion in limine "to exclude evidence of fault." Not only was defendant's "fault" defense improper, the prosecution urged, but neither the "snowy weather [n]or the victim's driving" amounted to superseding causes of the accident under People v Schaefer, 473 Mich. 418; 703 N.W.2d 774 (2005). The snowy conditions and the victim's husband's driving, the prosecution contended, were "irrelevant to the element of cause (either factual or proximate)." The prosecution insisted on the exclusion from evidence of facts relevant to Welch's causation defense.
More briefing by both sides followed. Welch argued that the prosecutor had to prove factual and proximate causation, and asserted that evidence of the snow and Mr. Goemaere's driving was relevant to both. The prosecution responded that OWICSI is a "strict liability" offense, highlighting that Welch's negligence or lack of intent to cause the accident was irrelevant.
The circuit court granted the prosecution's motion in limine and suppressed evidence of both the snowy weather conditions and Goemaere's driving. The court ruled that neither created "an intervening superseding cause under the facts presented in this case," concluding that the offense is one of strict liability and that "the people are only required to prove that Defendant's operation of the vehicle was a cause of the injury."
This Court granted Welch's application for leave to appeal. The majority corrects the trial court's and parties' confusion on the law of causation and fault. However, I cannot agree with the majority's quasi-affirmance of the lower court's exclusion of evidence of the road and weather conditions and that Goemaere may have fishtailed into Welch's lane.
II. ANALYSIS
The majority errs by trying the causation issues presented in this case and finding in favor of the prosecution—based on an inadequate and incomplete record. And the circuit court abused its discretion by making the same error. Factual and legal causation are essential elements of the charged offense that must be proven beyond a reasonable doubt. I cannot agree that the trial court properly withdrew evidence of the road conditions or Mr. Goemaere's driving from the jury's consideration of causation before even hearing the evidence.
That is not to say that Welch has a valid causation defense. Rather, a determination of whether the facts surrounding Welch's causation defense (including the snow and Goemaere's driving) create a jury-submissible causation defense should await actual witness testimony. On this ground alone, the court should have denied Welch's motion to dismiss the charges. This Court should reverse the circuit court's in limine ruling as premature rather than conjuring a limiting instruction applicable to evidence that no one has even heard.
Welch cannot be precluded from introducing evidence regarding causation pretrial. Admittedly, the statute under which Welch was charged, MCL 257.625, has been the subject of four Supreme Court opinions issued during a relatively short timeframe: 1996 through 2010. The majority analyzes the latter three; the first was People v Lardie, 452 Mich. 231, 255; 551 N.W.2d 656 (1996). I add further detail to the majority's analysis of these cases. Ultimately, these cases actually support that Welch's causation defense cannot be foreclosed at this point in the proceedings.
A. THE BEGINNING: PEOPLE V LARDIE AND PEOPLE V SCHAEFER
In People v Lardie, 452 Mich. 231, 255; 551 N.W.2d 656 (1996), our Supreme Court addressed intent and causation in prosecutions brought under MCL 257.625. Regarding intent, Lardie held that MCL 257.625 requires the prosecution to prove a "mens rea by demonstrating that the defendant purposefully drove while intoxicated or, in other words, that he had the general intent to perform the wrongful act." Lardie, 452 Mich. at 256. The statute does not impose "strict liability," the Court continued, but rather "requires the people to prove that a defendant, who kills someone by driving while intoxicated, acted knowingly in consuming an intoxicating liquor or a controlled substance, and acted voluntarily in deciding to drive after such consumption." Id. This aspect of Lardie has withstood the test of time.
Lardie also addressed causation, holding that "the people must prove that (1) the defendant was operating his motor vehicle while he was intoxicated, (2) that he voluntarily decided to drive knowing that he had consumed alcohol and might be intoxicated, and (3) that the defendant's intoxicated driving was a substantial cause of the victim's death." Id. at 259-260 (emphasis added). This aspect of Lardie—regarding causation—is no longer good law.
In Schaefer, 473 Mich. at 433-434 (emphasis in original), the Supreme Court overruled Lardie "to the extent it held that the prosecution must prove 'that the defendant's intoxicated driving was a substantial cause of the victim's death.'" Rather, the Court explained, the prosecution must establish beyond a reasonable doubt that
(1) the defendant was operating his or her motor vehicle in violation of MCL 257.625(1), (3), or (8); (2) the defendant voluntarily decided to drive, knowing that he or she had consumed an intoxicating agent and might be intoxicated; and (3) the defendant's operation of the motor vehicle caused the victim's death. [Id. at 434.]
Thus, intent and causation remained essential elements of the offense.
Notably, Schaefer did not disturb Lardie's holding that operating while intoxicated causing death is a general intent crime and not a strict liability offense.
Schaefer emphasized that the prosecution bears the burden of proving factual and proximate cause beyond a reasonable doubt. Id. at 435. "But for" causation "is relatively straightforward," the Court explained, asking only whether" 'but for' the defendant's conduct, would the result have occurred?" Id. at 435-436. Proximate cause is more nuanced. "For a defendant's conduct to be regarded as a proximate cause, the victim's injury must be a 'direct and natural result' of the defendant's actions." Id. at 436. In making a proximate cause determination,
it is necessary to examine whether there was an intervening cause that superseded the defendant's conduct such that the causal link between the defendant's conduct and the victim's injury was broken. If an intervening cause did indeed supersede the defendant's act as a legally significant causal factor, then the defendant's conduct will not be deemed a proximate cause of the victim's injury. [Id. at 436-437 (emphasis in original).]
Determining whether a cause superseded a defendant's acts depends in part on an assessment of reasonableness—and reasonableness is, quintessentially, a jury question. In Schaefer, the Supreme Court offered the following guidance:
The linchpin in the superseding cause analysis, therefore, is whether the intervening cause was foreseeable based on an objective standard of reasonableness. If it was reasonably foreseeable, then the defendant's conduct will be considered a proximate cause. If, however, the intervening act by the victim or a third party was not reasonably foreseeable—e.g., gross negligence or intentional misconduct—then generally the causal link is severed and the defendant's conduct is not regarded as a proximate cause of the victim's injury or death. [Id. at 437-438 (emphasis in original).]
"Ordinary negligence" is reasonably foreseeable, the Court observed, "[w]hile an act of God or the gross negligence or intentional misconduct by the victim or a third party will generally be considered a superseding cause[.]" Id. at 438-439.
The Schaefer Court applied these causation principles in two different cases. The first, People v Schaefer, reached the Court after the defendant's conviction. On appeal, the defendant challenged the answer the trial court offered to a jury question related to causation. The defendant had insisted that the jury be instructed in a manner consistent with Lardie, that the defendant's intoxicated driving was a "substantial cause" of the victim's death. Id. at 441. The court merely referred the jury to the statue. The Supreme Court held that the jury had been inadequately informed of its obligation to decide both factual and proximate cause but deemed the error harmless because the defendant's causation defense resided in simple negligence (the design of the freeway), and not gross negligence. Id. at 443-444. As such, the Court held, the freeway design could not constitute a superseding cause. Id. at 444.
The second case considered in Schaefer, People v Large, is more pertinent to the case before us. The defendant in Large was charged with operating while intoxicated causing death (OWICD), MCL257.625(4), and several other charges. After a preliminary examination the district court refused to bind the defendant over on the OWICD charge. The prosecution appealed and lost in the circuit court and in this Court. The Supreme Court granted the prosecutor's application for leave to appeal and joined the case with Schaefer. Id. at 426-427.
Examining the facts underlying Large, the Supreme Court found that the defendant's "operation of the vehicle was undeniably a factual cause" of the victim's death, as absent the defendant's operation of his vehicle, the collision between that vehicle and the victim would not have occurred. Id. at 445. "The issue of proximate causation," the Court continued, "is less certain." Id. Although there was evidence supporting that "the victim's death was the direct and natural result of defendant's operation of the vehicle," there was countervailing evidence as well. Id. Because the parties did not address proximate cause in the trial courts, "including whether the victim's own behavior was a superseding cause," the Supreme Court remanded the case to the district court "for reconsideration of whether to bind over defendant in light of the principles discussed in this opinion." Id.
The salience of Large lies in the Supreme Court's insistence on a review of evidence before reaching a preliminary determination regarding proximate cause. No evidence was before the circuit court in this case. Evidence is critical. At this juncture, it is impossible to determine whether Goemaere operated his vehicle in a grossly negligent manner, thereby entitling Welch to a proximate cause defense. At this point all we know if what the attorneys think the evidence will show, not what the evidence will actually reveal. But the evidence may show that despite the snowy, dark conditions, Goemaere's driving technique caused him to fishtail. The evidence may also show that Goemaere was speeding, or that he suddenly and unexpectedly swerved into Welch's lane. While losing traction on a snowy night is foreseeable and also consistent with simple negligence, I suggest that we just do not know enough about the circumstances of this accident to preclude Welch from pursuing a causation defense and from offering evidence in support of that defense.
There is a second problem with the circuit court's in limine order, which the majority partially concedes. The Constitution requires "criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." United States v Gaudin, 515 U.S. 506, 510; 115 S.Ct. 2310; 132 L.Ed.2d 444 (1995) (emphasis added). The circuit judge ruled that OWICSI "is . . . a strict liability offense," which is incorrect. The court then indicated that "the prosecution need only prove beyond a reasonable doubt that Defendant committed the prohibited act . . . . [T]he People are only required to prove that Defendant's operation of the vehicle was a cause of the injury." These statements regarding intent and causation are fundamentally incorrect. The prosecution must prove "but for" and proximate causation beyond a reasonable doubt. If applied at trial, the circuit court's ruling would unconstitutionally deprive Welch of his constitutional right to have a jury determine whether the prosecution proved the actual elements of the crime beyond a reasonable doubt. As M Crim JI 15.2a(6) accurately reflects, the prosecution is tasked with proving that the victim's serious injury "must have been a direct and natural result of operating the vehicle." This means that the prosecution bears the burden of negating intervening or superseding causes. It may do so through its proximate causation proofs, as proximate cause and a superseding cause are mutually exclusive concepts. But a court may not relieve the prosecution of its burden of proof.
B. THE NEXT TWO CASES: PEOPLE V DERROR AND PEOPLE V FEEZEL
Although the majority mentions the next two cases, it does not analyze them. People v Derror, 475 Mich. 316, 320; 715 N.W.2d 822 (2006), arose from a prosecution under MCL 257.625(8), which prohibits the operation of a motor vehicle with any amount of a schedule 1 controlled substance in the body. Derror "clarif[ied]" Schaefer by holding that
in a prosecution under MCL 257.625(8), a prosecutor is not required to prove beyond a reasonable doubt that the defendant knew that he or she might be intoxicated. Rather, the prosecutor need only prove that the defendant had any amount of a schedule 1 controlled substance in his or her body. [Derror, 475 Mich. at 320]
Four years later, however, the Supreme Court overruled Derror in People v Feezel, 486 Mich. 184; 783 N.W.2d 67 (2010).
The defendant in Feezel was convicted of operating while intoxicated, second offense MCL 257.625(1), and operating a motor vehicle with the presence of a schedule 1 controlled substance in his body, causing death, MCL 257.625(4) and (8). Feezel, 486 Mich. at 188. The evidence established that Feezel's vehicle struck the highly intoxicated victim as the victim walked down the middle of an unlit road on a dark and rainy night, with his back turned to oncoming traffic. Id. The central issue was whether the trial court abused its discretion by refusing to admit evidence of the victim's intoxication regarding the element of causation. Id. at 191.
In holding that the victim's intoxication and blood alcohol level were relevant to proximate causation, the Court revisited Schaefer in considerable detail. Once again, the Court highlighted that gross negligence on the part of a victim may constitute a superseding cause that breaks the chain of proximate causation. Id. at 195. Gross negligence "is more than an enhanced version of ordinary negligence," the Court cautioned, because it involves "wantonness and disregard of the consequences that may ensue." Id. The Court summarized: "[W]hile a victim's negligence is not a defense, it is an important factor to be considered by the trier of fact in determining whether proximate cause has been proved beyond a reasonable doubt." Id. at 196. Because a question of fact existed regarding whether the victim in that case had behaved in a grossly negligent manner, evidence regarding his intoxication was relevant, the Court ruled. Id. at 198-199.
Drawing a conceptually clear line between negligence and gross negligence is difficult at best. See Prosser & Keeton, Torts (5th ed), § 34, p 211 (regarding the distinction between "gross negligence" and "negligence," "it is not difficult to understand that there are such things as major and minor departures from reasonable conduct; but the difficulty of classification, because of the very real difficulty of drawing satisfactory lines of demarcation, together with the unhappy history, justifies the rejection of the distinctions in most situations"). Feezel, 486 Mich. at 202, instructs that a court must conduct an initial, gatekeeping exercise in line drawing by determining whether "the issue of gross negligence is 'in issue.'" Evidence supporting a causation defense premised on a victim's gross negligence is relevant "when the proofs are sufficient to create a question of fact for the jury." Id.
It is too early and too risky to make that determination here. We do not know what the trial evidence will show. Welch merely seeks to introduce (or to utilize) evidence countering proximate cause, an element of the crime that the prosecution must prove beyond a reasonable doubt. Evidence regarding the snow and Goemaere's driving may ultimately prove irrelevant to a proximate cause defense. But at this juncture, the trial court's ruling, combined with the majority's "limiting instruction," deprive Welch of the ability to contest the prosecution's evidence of proximate cause before that evidence is even presented to the jury, and improperly permit the prosecution to present its proofs as though this were a strict liability offense. I would reverse the trial court's order granting the prosecution's motion in limine regarding evidence related to causation, and respectfully dissent.