Hargrove v. Com.

• Decision Date: 31 July 1990
• Docket Number: No. 0055-89-2,0055-89-2
• Citation: 394 S.E.2d 729,10 Va.App. 618
• Parties: Napoleon HARGROVE, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 729

394 S.E.2d 729

10 Va.App. 618

Napoleon HARGROVE, Jr. v. COMMONWEALTH of Virginia.

Record No. 0055-89-2.

Court of Appeals of Virginia.

July 31, 1990.

John W. Luxton (Morchower, Luxton and Whaley, on brief), for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and KEENAN and MOON, JJ.

MOON, Judge.

Napoleon Hargrove, Jr., fell asleep while driving on Jefferson Davis Highway in the City of Richmond and struck and killed a pedestrian who was walking across the highway. In a bench trial, he was convicted of involuntary manslaughter. We hold that under the facts and circumstances of the case, the evidence was insufficient to show that Hargrove's conduct constituted "negligence so gross, wanton, and culpable as to show a reckless disregard of human life." Tubman v. Commonwealth, 3 Va.App. 267, 270, 348 S.E.2d 871, 873 (1986).

On appeal, the decision of a trial court sitting without a jury is afforded the same weight as a jury's verdict and will not be disturbed unless plainly wrong or without evidence to support it. King v. Commonwealth, 217 Va. 601, 604, 231 S.E.2d 312, 315 (1977). We construe the evidence in the light most favorable to the Commonwealth, affording to it all reasonable inferences fairly deducible therefrom. Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987).

At 8:20 a.m. on July 7, 1988, Hargrove was driving on Jefferson Davis Highway in the City of Richmond. His car passed a car which was in the right lane of the three lanes on his side of the median strip. After passing the other car, as his car was moving from the left lane into the middle lane, his car hit the pedestrian, who was walking across the highway and had nearly reached the median strip. The driver of the vehicle he passed testified that after Hargrove's car struck the pedestrian it appeared to slow down, then moved into the left lane and made a left turn.

The investigating officer traced Hargrove to his residence, advised him of his rights and questioned him about the "hit and run." At first, Hargrove told the officer that, on his way home from work that morning, he had struck a bridge abutment. Enroute to police headquarters, Hargrove confessed to the officer that he hit the pedestrian. At the station, Hargrove wrote a statement which read, "I had only been working the 12 a.m.--8 a.m. shift for one day. I had a hard time sleeping during the day so I was extremely tired coming home. I dosed (sic) off for one second and it was over. And I started to panic." The statement was admitted into evidence, was uncontradicted by other evidence, and, from the trial judge's statements, was found to be the true account of the accident.

Although involuntary manslaughter may be found from the accidental killing of a person during the improper performance of some lawful act, Gooden v. Commonwealth, 226 Va. 565, 571, 311 S.E.2d 780, 784 (1984), the killing must be the proximate result of a lawful act performed in a manner so gross, wanton and culpable as to show a reckless disregard of human life, Id. Criminal negligence is an essential element of the offense. Id.; see also King, 217 Va. at 607, 231 S.E.2d at 316. An important distinction between involuntary manslaughter and lesser offenses "is the likelihood of injury to other users of the highways." Mayo v. Commonwealth, 218 Va. 644, 648, 238 S.E.2d 831, 833 (1977). To support an involuntary manslaughter conviction, the Commonwealth must prove "a homicide was not improbable under all of the facts existing at the time, and that the knowledge of such facts should have had an influence on the conduct of the offender." Tubman, 3 Va.App. at 274, 348 S.E.2d at 875.

In Newell v. Riggins, 197 Va. 490, 90 S.E.2d 150 (1955), the Supreme Court held that evidence that the defendant had fallen asleep while driving was sufficient to create a jury issue on the issue of gross negligence. However, Newell is a civil case and there is a distinction between "gross negligence," sufficient to support a civil claim requiring that degree of negligence, and negligence that is so wanton and willful as to support a conviction for involuntary manslaughter. "Willful and wanton negligence involves a greater degree of negligence than gross negligence, particularly in the sense that in the former an actual or constructive consciousness of the danger involved is an essential ingredient of the act or omission...."...