1996 -NMSC- 68, State v. Yarborough

• Decision Date: 27 November 1996
• Docket Number: No. 23218,23218
• Citation: 1996 NMSC 68,122 N.M. 596,930 P.2d 131
• Parties: , 1996 -NMSC- 68 STATE of New Mexico, Plaintiff-Petitioner, v. Kenneth YARBOROUGH, Defendant-Respondent.
• Court: New Mexico Supreme Court

Page 131

930 P.2d 131

122 N.M. 596, 1996 -NMSC- 68

STATE of New Mexico, Plaintiff-Petitioner, v. Kenneth YARBOROUGH, Defendant-Respondent.

No. 23218.

Supreme Court of New Mexico.

Nov. 27, 1996.

Tom Udall, Attorney General, M. Anne Wood, Assistant Attorney General, Santa Fe, for Petitioner.

T. Glenn Ellington, Chief Public Defender, Susan Roth, Assistant Public Defender, Santa Fe, for Respondent

Freedman, Boyd, Daniels, Peifer, Hollander, Guttmann & Goldberg, P.A. Charles W. Daniels, Albuquerque, for amici curiae NMCDLA, NMTLA, NMDLA, & NACDL.

OPINION

RANSOM, Justice.

1. A van driven by Kenneth Yarborough collided with a parked car, killing one of its occupants, Steven Kumagai, and injuring two other people. Yarborough was charged with homicide by vehicle by reckless driving. NMSA 1978, § 66-8-101 (Repl.Pamp.1994) (homicide by vehicle); NMSA 1978, § 66-8-113 (Repl.Pamp.1994) (reckless driving). He also was charged with two counts of great bodily harm by vehicle. NMSA 1978, § 66-8-101(B) (bodily injury by vehicle); NMSA 1978, § 30-1-12 (Repl.Pamp.1994) (defining "great bodily harm"). He was acquitted of all these charges. However, he was convicted of involuntary manslaughter by careless driving, on which the jury was instructed as a lesser-included offense of homicide by vehicle by reckless driving. NMSA 1978, § 30-2-3(B) (Repl.Pamp.1994) (manslaughter); NMSA 1978, § 66-8-114(B) (Repl.Pamp.1994) (careless driving).

2. Yarborough appealed this conviction to the Court of Appeals, arguing that a showing of criminal negligence, not the mere imprudence of careless driving, is required for a fourth-degree-felony conviction of involuntary manslaughter. He argued, further, that the specific homicide by vehicle statute, under which he was acquitted, precluded prosecution under the general involuntary-manslaughter statute under which he was convicted in this fatal vehicular accident. The Court of Appeals agreed with both arguments and reversed the conviction. State v. Yarborough, 120 N.M. 669, 905 P.2d 209 (Ct.App.), cert. granted, 120 N.M. 636, 904 P.2d 1061 (1995). We granted the State's petition for certiorari pursuant to NMSA 1978, Section 34-5-14 (Repl.Pamp.1990). We now affirm the Court of Appeals. ¹

3. Facts and proceedings. This case involves a multiple-car accident on Interstate 25 between Santa Fe and Albuquerque. At about one o'clock in the morning, Angelita Castillo entered the southbound lanes of the interstate heading north, apparently under the mistaken impression that she was on a frontage road. She sideswiped the vehicle of Gretchen Bright who was southbound. Castillo's vehicle came to rest in the middle of the southbound lanes, with its headlights pointing north toward oncoming traffic. Bright's vehicle came to rest on the west shoulder. Neither woman was significantly injured, and both exited their vehicles and began to argue.

4. Jill Cornell pulled up and parked her car partially on the west shoulder. John Coriz also arrived on the scene and parked his car off the road. He then tried to calm Castillo and Bright, instructing them not to move their vehicles. Castillo and Coriz argued about whether Castillo's car should be moved from the center of the road. Brenda Kumagai was southbound with her three sons. She saw the accident scene from approximately one mile away, approached with caution, and stopped well short of the scene. Kumagai then slowly moved closer, pulling behind Cornell's car. She parked partially on the west shoulder, and partially in the roadway. Kumagai tried to speak to Coriz, but he immediately began to waive his arms and scream at another approaching vehicle.

5. Kenneth Yarborough and his girlfriend, Victoria Bertch, were traveling south towards Albuquerque in his van. Yarborough testified that he did not see the accident until he was within a couple hundred feet and that he decided not to apply his brakes because he believed he would have more control if they did not lock. He tried to drive through the accident scene and his van struck the back of Kumagai's stationwagon at an estimated speed of fifty-four to sixty-two miles per hour, knocking the stationwagon into Cornell's car. Four-year-old Steven Kumagai was in the back of the Kumagai stationwagon and died shortly after the accident as a result of severe head and neck injuries.

6. Yarborough failed a field sobriety test administered by a police officer. Several witnesses testified that Yarborough appeared intoxicated. A partially filled bottle of vodka and plastic cups filled with ice and vodka were found in the van. Yarborough was indicted on one count of homicide by vehicle, § 66-8-101(A), and, for injuries to Gretchen Bright and Brenda Kumagai, two counts of great bodily harm by vehicle, § 66-8-101(B); § 30-1-12. At his jury trial, Yarborough admitted that he did not "attend to everything" while he was driving. Based on this admission, the State tendered a jury instruction for the offense of involuntary manslaughter by careless driving, arguing that it is a lesser-included offense of homicide by vehicle. After some debate, the trial court gave this instruction, and Yarborough was convicted of involuntary manslaughter by careless driving and was acquitted of all the other charges. Yarborough appealed.

7. Reversing the conviction of involuntary manslaughter by careless driving, the Court of Appeals held that a felony conviction cannot be based upon a misdemeanor traffic violation, careless driving, which requires only a showing of civil negligence. Relying on our opinion in Santillanes v. State, 115 N.M. 215, 222-23, 849 P.2d 358, 365-66 (1993), the Court held that a showing of criminal rather than civil negligence is required. Additionally, the Court held that Yarborough could not be retried for involuntary manslaughter using a criminal-negligence standard because the homicide by vehicle statute, under which Yarborough was acquitted, is a specific statute to the exclusion of the general involuntary-manslaughter statute.

8. Involuntary manslaughter. Under the criminal code, involuntary manslaughter is the "killing of a human being without malice ... in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection." Section 30-2-3(B). As a result of the structure of this section, "[t]here are three separate courses of conduct that constitute involuntary manslaughter: one, the commission of an unlawful act not amounting to a felony; two, the commission of a lawful act that might produce death, in an unlawful manner; and three, the commission of a lawful act that might produce death without due caution and circumspection." State v. Taylor, 107 N.M. 66, 70, 752 P.2d 781, 785 (1988), overruled on other grounds by Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 731, 779 P.2d 99, 108 (1989). This crime is a fourth-degree felony. Section 30-2-3(B).

9. --The State's position. The State alleges that it was proper to convict Yarborough of this felony because his actions amounted to the "commission of an unlawful act not amounting to a felony." It argues that it is improper for the Court of Appeals to have applied the language "without due caution and circumspection" to the "unlawful act" provision of the involuntary-manslaughter statute. ² The State asserts that the Court of Appeals cannot engraft one part of a statute onto another, and has noted that we previously have held that

[a] statute must be read and given effect as it is written by the Legislature, not as the court may think it should be or would have been written if the Legislature had envisaged all the problems and complications which might arise in the course of its administration.... Courts must take the act as they find it and construe it according to the plain meaning of the language employed.

State ex rel. Helman v. Gallegos, 117 N.M. 346, 352, 871 P.2d 1352, 1358 (1994) (quoting Perea v. Baca, 94 N.M. 624, 627, 614 P.2d 541, 544 (1980) (in turn quoting Burch v. Foy, 62 N.M. 219, 223, 308 P.2d 199, 202 (1957))). Under the statutory construction suggested by the State, "without due caution and circumspection" would modify only the "lawful act" provision of the statute. See § 30-2-3(B). Neither the Court of Appeals in its opinion nor the defendant in his answer suggested differently. We note further that the "unlawful act" provision of the involuntary- manslaughter statute does not contain any language connoting negligence.

10. The State directs this Court to Commonwealth v. Jumper, 511 Pa. 446, 515 A.2d 540, 541 (1986), for the proposition that other jurisdictions have allowed similar convictions for involuntary manslaughter based on civil negligence. In Jumper the defendant was convicted of misdemeanor vehicular homicide when he went through a red light and caused the death of another motorist. Id., 515 A.2d at 540. The Jumper court affirmed the vehicular homicide conviction, stating that

[u]nder the homicide by vehicle statute, culpability is to be determined in each given case in light of the particular facts surrounding the Vehicle Code violation on which the homicide by vehicle charge is predicated, and a determination must be made as to whether death was a probable consequence of the defendant's conduct.

Id. at 541. In other words, the Court apparently looked beyond the requirements of the underlying offense, ordinary negligence, to determine if the death was "a probable consequence" of this particular defendant's action. As we note later, this view has been expressed by a few other jurisdictions, and it represents a minority view that has merit--as long as the jury is properly instructed that the probable consequences of the defendant's actions were obvious. The Pennsylvania Supreme Court in Commonwealth v. Heck, 517 Pa. 192, 535 A.2d 575, 579 (1987), decided after Jumper, held the contrary view that a showing of...