People v. Vanderford , 77 Mich. App. 370 ( 1977 )

77 Mich. App. 370 (1977) 258 N.W.2d 502

PEOPLE
v.
VANDERFORD

Docket No. 28024.

Michigan Court of Appeals.

Decided August 9, 1977.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Fred R. Hunter III, Prosecuting Attorney (Prosecuting Attorneys Appellate Unit, by Thomas C. Nelson, Assistant Attorney General, of counsel), for the people.

Ainsworth & Sheridan, for defendant.

Before: R.M. MAHER, P.J., and D.E. HOLBROOK, JR. and J.T. LETTS,^[*] JJ.

PER CURIAM.

Defendant was convicted by a jury of involuntary manslaughter, contrary to MCLA 750.321; MSA 28.553, for which he was sentenced to a term of 10 to 15 years. He now appeals as of right.

During the late evening hours of August 11 or early morning hours of August 12, 1975, defendant beat Tonia Brummitt, age two years, about the head. Tonia lapsed into a coma and was subsequently placed on a respirator. Electroencephalograms were taken August 16 and 17, 1975, both of which indicated brain death. Tonia also lacked spontaneous and reflex activity. As a result the respirator was turned off August 18, 1975, and Tonia was pronounced dead an hour and fifteen minutes later. A pathologist testified that the cause of death was severe brain damage.

Defendant challenges as unconstitutional MCLA 326.8(b); MSA 14.228(2), which provides that, where a person's respiratory and circulatory functions are maintained by artificial means of support, that person will be considered dead where there is irreversible cessation of spontaneous brain function. Defendant argues that this criterion is so vague or so insufficiently rigorous a criterion of death that the respirator attached to Tonia Brummitt may have been prematurely terminated, causing her death.

Defendant does not have standing to challenge this statute. First, defendant has no personal interest in the constitutionality of the statute, since, even if the statute were found unconstitutional, defendant's conviction would stand. There was ample evidence from which the jury could find defendant caused Tonia Brummitt's death. From the record it is clear Tonia Brummitt was dead before the respirator was turned off. But even if the respirator was stopped prematurely, defendant would still be liable, since intervening medical error is not a defense to a defendant who has inflicted a mortal wound upon another. People v Cook, 39 Mich. 236, 240 (1878), People v Flenon, 42 Mich. App. 457, 461; 202 NW2d 471 (1972). The constitutionality of the challenged statute is not a condition precedent to a conviction of involuntary manslaughter. Second, one may not attack a statute on the ground that its application might deny the constitutional rights of another. State ex rel Wayne County Prosecuting Attorney v Bernstein, 57 Mich. App. 204, 207; 226 NW2d 56 (1974), lv granted, 393 Mich. 793 (1975), People v Conville, 55 Mich. App. 251, 254-255; 222 NW2d 312 (1974). Since a decision on the constitutionality of the statute is not necessary to the decision of this case, the Court declines to reach the issue. Stanek v Secretary of State, 33 Mich. App. 527, 530; 190 NW2d 288 (1971), Williams v Civil Service Commission of the City of Detroit, 15 Mich. App. 55, 57; 166 NW2d 309 (1968), rev'd on other grounds, 383 Mich. 507 (1970).

Defendant's argument that the trial court sua sponte should have instructed the jury that death must be pronounced before artificial life support is terminated, MCLA 326.8(b)(2); MSA 14.228(2)(2), is also without merit, since the time at which death is pronounced, either before or after the life support system is terminated, is not material to defendant's guilt. As noted, even if there was intervening medical error, defendant is not exculpated. People v Cook, supra, People v Flenon, supra. Nor need the trial court have required, on its own initiative, that the medical experts provide the factual basis for their opinions prior to giving them, or validate the accuracy of the electroencephalograph upon which the opinion of death was partially based. That is properly a matter left for cross-examination. GCR 1963, 605, People v John Willie Williams, 26 Mich. App. 218, 230; 182 NW2d 347 (1970).

Defendant testified that his wife told him, while he was in jail, that she hit Tonia Brummitt after defendant beat the child, but before the police arrived. As circumstantial evidence of his wife's supposed guilty conscience, defendant introduced evidence that she continued to visit him at the jail for some time after her daughter died, but finally stopped, giving a frivolous excuse. Defendant argues that the trial court improperly excluded this circumstantial evidence. The record reveals that, although the trial court felt the evidence irrelevant, immaterial, and too remote, the above evidence was in fact admitted and not limited. The only thing excluded by the limiting instruction was the excuse itself; that the front license tag had been stolen from her car. The trial court did not abuse its discretion in determining that the excuse was irrelevant, immaterial and too remote to be probative of defendant's guilt or innocence. See People v Howard, 391 Mich. 597, 603; 218 NW2d 20 (1974), People v Smith, 58 Mich. App. 76, 80; 227 NW2d 233 (1975), People v Moore, 51 Mich. App. 48, 52; 214 NW2d 548 (1974).

Defendant also attempted to introduce the same evidence, the excuse given by his wife for not visiting him, by means of double hearsay. The trial court properly excluded the jailer's statement of what defendant said his wife said during a telephone conversation, in which the jailer overheard only defendant's side of the conversation. What was irrelevant, immaterial and too remote when testified to by defendant does not become more probative when recounted secondhand. Further, a self-serving hearsay statement corroborating a defendant's testimony is not admissible under any hearsay exception. People v Hallaway, 389 Mich. 265, 276; 205 NW2d 451 (1973), People v Kennedy, 267 Mich. 430, 436; 255 N.W. 405 (1934), People v Compton, 23 Mich. App. 42, 45; 178 NW2d 133 (1970).

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.