Clancy v. State
| Decision Date | 15 June 2005 |
| Docket Number | No. 45A05-0405-CR-272.,45A05-0405-CR-272. |
| Citation | 829 N.E.2d 203 |
| Parties | Timothy J. CLANCY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Supreme Court |
Mitchell D. Kreiter, Thomas A. Gibbons, Kreiter & Gibbons & Assoc., Chicago, IL, William Brown, Jr., Law Office of Jack Friedlander, Hammond, for Appellant.
Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, for Appellee.
Timothy Clancy appeals his convictions for Class D felony criminal recklessness, Class A misdemeanor criminal recklessness, Class B misdemeanor false informing, and Class C infraction driving left of center. We affirm in part and reverse in part.
Clancy raises the following issues:
I. whether there is sufficient evidence to support his criminal recklessness convictions; and
II. whether there is sufficient evidence to support his false informing conviction.
III. whether, during trial, the State violated his Fifth Amendment right to remain silent; and
IV. whether he received ineffective assistance of trial counsel.
The evidence most favorable to the convictions reveals that on May 27, 2002, Clancy was awakened at 3:00 a.m. at his home in Hebron because he needed to go to Chicago for business purposes. Clancy owns a guard dog business, and he was informed that there was a report of a burglar on the premises of a property patrolled by some of his dogs. After driving to the Chicago address and helping police apprehend and process the burglar, Clancy and his son, Joshua, then sixteen years old, left to return home at about noon.
At approximately 1:00 p.m., Clancy was driving his pickup truck eastbound on U.S. 231 in Lake County when it was observed traveling in the wrong lane of traffic for several hundred feet. One driver whom Clancy almost hit saw that Clancy was asleep behind the wheel. Soon thereafter, Clancy's truck came upon two motorcyclists, Dianna and Robert Goad. Robert swerved to one side of the road and managed to avoid being hit. Dianna, however, was struck and suffered severe injuries, including severance of her left leg at the knee. When Clancy exited his truck and approached Dianna, he said "What have I done?" Tr. p. 86. Several witnesses, including the Goads, indicated that Clancy was the driver of the truck. Clancy, however, told the police officer investigating at the scene that Joshua, not Clancy, had been driving.
The State charged Clancy with two counts of criminal recklessness, one as a Class A misdemeanor for driving Robert off the road and one as a Class D felony for causing serious bodily injury to Dianna. The State also charged Clancy with false informing, a Class B misdemeanor, and driving left of center, a Class C infraction. At trial, the State relied upon testimony that Clancy was sleeping at the time of the accident as the evidence of his recklessness. Clancy maintained that Joshua, not he, was driving the truck at the time of the accident. Joshua was not called to testify. The State, during its case-in-chief, also made some reference to Clancy's failure to talk to police during later stages of their investigation into the accident. The jury found Clancy guilty on all four counts, and he now appeals.
Clancy first argues that the State presented insufficient evidence to support his two criminal recklessness convictions. "It is the task of finders of fact, juries or judges, to determine in the first instance whether the evidence in a particular case adequately proves the elements of an offense." Davis v. State, 813 N.E.2d 1176, 1178 (Ind.2004). When a defendant contends on appeal that the State presented insufficient evidence to sustain a conviction, we neither reweigh the evidence nor judge the credibility of witnesses, and we affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id."Nevertheless, evidence of guilt of substantial and probative value, as required to affirm a conviction, requires more than a mere scintilla of evidence." Whitaker v. State, 778 N.E.2d 423, 425 (Ind.Ct.App.2002), trans. denied.
A person commits Class A misdemeanor criminal recklessness if he or she recklessly, knowingly, or intentionally performs an act, by use of a motor vehicle, that creates a substantial risk of bodily injury to another person. Ind.Code §§ 35-42-2-2(b) & (c). The offense is a Class D felony if a person recklessly, knowingly, or intentionally inflicts serious bodily injury on another person. I.C. § 35-42-2-2(d). The State has never contended that Clancy acted knowingly or intentionally; the dispute here is whether he acted recklessly. "A person engages in conduct `recklessly' if he engages in conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct." I.C. § 35-41-2-2(c). As has been observed in the context of reckless homicide, proof that an automobile accident "arose out of the inadvertence, lack of attention, forgetfulness or thoughtfulness of the driver of a vehicle, or from an error of judgment on his part," is not sufficient evidence of recklessness. Whitaker, 778 N.E.2d at 425 (quoting Beeman v. State, 232 Ind. 683, 690, 115 N.E.2d 919, 922 (1953)).
The State here relied at trial and relies on appeal on evidence that Clancy was asleep behind the wheel at the time of the collision with Dianna as proof of his recklessness. No Indiana case has previously addressed, within the context of criminal law, whether proof of a driver's falling asleep and thus causing a wreck is sufficient evidence of recklessness. This court, however, has held in the tort law context that the mere fact a driver fell asleep behind the wheel and caused an accident is not, by itself, sufficient evidence of willful or wanton misconduct. See Brooks v. Bloom, 151 Ind.App. 312, 279 N.E.2d 591 (1972). As we observed, "The act of falling asleep at the wheel of an automobile, standing alone, is generally held to permit, at most, an inference of negligence." Id. at 314, 279 N.E.2d at 592. If the driver has had some prior warning as to the likelihood of falling asleep but continues to drive, such may be considered willful or wanton misconduct for purposes of the Indiana Guest Statute.2 Id. We acknowledged, "one ordinarily does not fall asleep without some premonitory symptoms or signals." Id. at 316, 279 N.E.2d at 594. Continuing to drive while such signals exist, however, is not by itself enough to prove willful or wanton misconduct. Instead, "there must be a showing that the [driver] has manifestly disregarded the warnings of impending sleep to such a degree that his conduct typifies either intentional injury or a conscious defiance of the probable result." Id. at 316-17, 279 N.E.2d at 594. In the end, we held that the mere fact the driver fell asleep, in combination with the passenger's one warning to the driver before the accident that he was veering toward the side of the road, was not prima facie evidence of willful or wanton misconduct on the driver's part. Id. at 319-20, 279 N.E.2d at 595-96.
We conclude that although Brooks is a civil case, the rule announced there should fully apply here. The general definition given to willful and/or wanton misconduct is in vital respects similar to the criminal law definition of recklessness. It has been stated that wanton or willful misconduct requires a host-driver to (1) be conscious of her misconduct, (2) be motivated by reckless indifference for the safety of her guest, and (3) know that her conduct subjects her guest to a probability of injury.3 Duncan v. Duncan, 764 N.E.2d 763, 767 (Ind.Ct.App.2002), trans. denied. Our supreme court has also approved of describing willful or wanton misconduct as either (1) an intentional act done with reckless disregard of the natural and probable consequence of injury to a known person under the circumstances known to the actor at the time; or (2) an omission or failure to act when the actor has actual knowledge of the natural and probable consequence of injury and his opportunity to avoid the risk. Witham v. Norfolk and Western Ry. Co., 561 N.E.2d 484, 486 (Ind.1990) (citing McKeown v. Calusa, 172 Ind.App. 1, 5, 359 N.E.2d 550, 553-54 (1977)). Given the similarities between the definitions of willful or wanton misconduct and recklessness, we cannot discern a valid reason for adopting a lesser standard of proof for imposing liability on a sleeping driver in the criminal context than is required in the civil context.
We also note that the Brooks formula is consistent with cases from other jurisdictions that have addressed the standard of proof required to impose criminal liability for recklessness, rather than ordinary negligence, on a driver who fell asleep behind the wheel. For example, in Hargrove v. Commonwealth, 10 Va.App. 618, 394 S.E.2d 729 (1990), the Virginia Court of Appeals reversed the involuntary manslaughter conviction of a person who ran over a pedestrian after falling asleep behind the wheel. In order to support the conviction, the Commonwealth was required to prove "negligence so gross, wanton, and culpable as to show a reckless disregard of human life." Id. at 730 (quoting Tubman v. Commonwealth, 3 Va.App. 267, 348 S.E.2d 871, 873 (1986)) (emphasis added). The court held this standard was not met where the only evidence was that the defendant knew he was "extremely tired" after working the night shift before driving home. Id. at 731-32. The court stated, "If Hargrove had been operating his vehicle for a number of hours in a tired and sleepy condition, or while in such a state undertook a trip of such a substantial distance or time that he should have known he might fall...
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