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No.138031
| The People of the State of Michigan, |
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Mark Kneisel |
Plaintiff-Appellee, |
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(Appeal from Ct of Appeals) |
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(Washtenaw - Brown, A.) |
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| George Evan Feezel, |
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Douglas R. Mullkoff |
Defendant-Appellant. |
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F. Mark Hugger |
| __________________________________________ |
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Plaintiff-Appellee's Brief on Appeal>>
Defendant-Appellant's Brief on Appeal>>
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Criminal Defense Attorneys of Michigan's Amicus Curiae Brief>>
Prosecuting Attorneys Association of Michigan's Amicus Curiae Brief>>
Background
George Evan Feezel was driving on Packard Road in Ypsilanti Township when he struck and killed a man who was walking in the road. According to evidence later presented at trial, it was dark and raining heavily at the time of the accident, and, although there was a sidewalk, the victim was walking in the middle of the road. Feezel initially left the scene of the accident, but later returned while the police were investigating and was arrested. His blood alcohol content was .07 several hours after the accident, and the prosecution’s expert estimated that Feezel’s blood alcohol content at the time of the accident was .091 to .115. A blood test also showed evidence of 11-carboxy-THC, which is a metabolite or byproduct created when the body breaks down THC, the psychoactive ingredient of marijuana. Feezel was charged with operating a motor vehicle while intoxicated causing death, operating a motor vehicle with the presence of a schedule 1 controlled substance (marijuana) in his body causing death, and failure to stop at the scene of an accident resulting in death.
Before trial, the prosecutor filed a motion to exclude evidence that the victim was also intoxicated, and that his blood alcohol content at the time of the accident was .286. Feezel opposed the motion, arguing that evidence of the victim’s extreme intoxication was relevant to show that Feezel’s conduct was not the proximate cause of the victim’s death. The victim’s gross negligence was a superseding cause that severed the causal link between Feezel’s actions and the victim’s death, Feezel contended. But the trial judge granted the prosecutor’s motion and excluded the evidence.
At trial, Feezel presented expert testimony that, under the circumstances, he would not have been able to avoid hitting the victim unless he was traveling at a rate of 15 mph. The jury acquitted Feezel of operating a motor vehicle while intoxicated causing death, but convicted him of the lesser offense of operating a motor vehicle while intoxicated. The jury also convicted Feezel of failure to stop at the scene of an accident when at fault resulting in death and operating a motor vehicle with the presence of a schedule 1 controlled substance in his body causing death. The trial court sentenced Feezel as a third habitual offender to concurrent terms of one year for the operating a motor vehicle while intoxicated conviction and 7 to 30 years for the other two convictions. Feezel filed a motion for acquittal or for a new trial, which the trial court denied. Feezel appealed to the Court of Appeals, which affirmed the lower court in a split unpublished opinion. The dissenting judge concluded that the trial court erred in excluding evidence of the victim’s intoxication and in failing to instruct the jury on proximate causation on the charge of operating a vehicle with a schedule 1 controlled substance in the body causing death. Feezel appeals.
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