Operating a vehicle while intoxicated (OWI) causing death; Evidence preclusion as to the victim’s alleged gross negligence; Intervening cause; Jury instruction as to gross negligence

Concluding that the victim’s gross negligence was not in issue, the court held “that the trial court did not err by precluding evidence of the victim’s gross negligence for the purpose of establishing a superseding cause. [It] also did not err by denying defendant’s request for an attendant jury instruction” as to gross negligence. Further, the “preclusion of evidence and lack of jury instruction relating to gross negligence did not deny [him] his constitutional rights to present a defense.” He “struck and killed the victim when she was crossing a road.” He pled guilty to OWI causing death, “but reserved the right to appeal the trial court’s pretrial ruling precluding evidence and jury instructions relating to the victim’s alleged gross negligence as a superseding cause of the accident.” The court agreed “with the trial court that defendant failed to show a threshold determination that evidence of the victim’s conduct was sufficiently probative for a showing of gross negligence.” It concluded that while “witnesses indicated that the victim appeared suddenly as defendant came around the curve, there was no evidence suggesting that the victim did anything more than misjudge the situation. There was no indication that she entered the road with a blind disregard for vehicular traffic, intentionally impeded traffic by standing in the road, or crossed in disregard of any signage warning of a dangerous curve.” Thus, the circumstances suggested, “at most, that the victim might have been merely negligent in crossing the road as she did.” Defendant also asserted she “violated certain Michigan pedestrian laws, and therefore was negligent. Although a violation of a statute ‘creates a rebuttable presumption of negligence,’” at issue in this case was “the victim’s gross negligence, not ordinary negligence.” The court also disagreed with his “assertion that the victim’s erratic movements as she crossed the road evidenced ‘an indifference to a risk’ sufficient to establish gross negligence.” Rather, it agreed “with the trial court that the evidence could not reasonably support the conclusion that the victim’s decision to cross County Road 100 as she did could have constituted a superseding cause that severed the causal link between defendant’s operation of the vehicle and the accident.” It rejected his claim “that the trial court impermissibly usurped the role of the jury by preemptively precluding evidence of the victim’s gross negligence. Although limited evidence was presented at the motion hearing (primarily the body-camera footage), defense counsel indicated that he was not offering any specific evidence (such as expert opinion) beyond the facts of the case about the victim’s conduct to establish that she was grossly negligent.” Defendant also did not explain “on appeal explain what additional evidence might have existed that would have been probative of gross negligence and precluded from evidence because of the trial court’s order. Moreover, the trial court’s” evidentiary ruling “did not prevent defendant from challenging the element of proximate causation.” Affirmed.