Keech v. Com.

• Decision Date: 12 December 1989
• Docket Number: No. 1592-87-1,1592-87-1
• Citation: 386 S.E.2d 813,9 Va.App. 272
• Parties: Albert Joseph KEECH, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 813

386 S.E.2d 813

9 Va.App. 272

Albert Joseph KEECH, Jr. v. COMMONWEALTH of Virginia.

Record No. 1592-87-1.

Court of Appeals of Virginia.

Dec. 12, 1989.

William R. Savage (Glasscock, Gardy & Savage, Suffolk, on brief), for appellant.

Birdie H. Jamison, Asst. Atty. Gen., (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and COLE and HODGES, ^* JJ.

KOONTZ, Chief Judge.

Albert Joseph Keech, Jr. was convicted in a jury trial in the Circuit Court of the City of Suffolk of three counts of involuntary manslaughter. On appeal, he challenges the sufficiency of the evidence to sustain the convictions. Keech was originally indicted for three counts of second degree murder. At the conclusion of the Commonwealth's evidence the trial court ruled that Keech's conduct was not willful or malicious, sustained his motion to strike the charges of second degree murder, and reduced the charges to involuntary manslaughter on each count. The jury found Keech guilty of three counts of involuntary manslaughter and sentenced him to two years on each charge.

The pertinent facts leading to the charges against Keech are not in dispute. On Sunday, July 6, 1986, at approximately 7:30 p.m., Keech was returning to his home in Boykins, Virginia, from work in Chesapeake, Virginia. He stopped for gas at a convenience store beside Route 58, in Chesapeake. Keech testified that he had never before stopped at this store.

The section of Route 58 on which Keech traveled is a six-lane highway with a wooded median strip approximately seventy feet wide separating the eastbound and westbound lanes of traffic. Since Keech was traveling west on the trip home, he had to turn around at a crossover point in the median and travel a short distance (about 500 feet) eastward in the eastbound lane of Route 58 to reach the convenience store.

When he exited the convenience store lot, Keech turned left (west) back onto Route 58 and began traveling westward on the eastbound branch of the highway. He proceeded for approximately eight miles in the wrong direction, traveling in the far left lane (which would have been his right-hand lane if he were going in the proper direction). Various witnesses estimated his rate of speed at fifty or fifty-five m.p.h., over sixty m.p.h., and at least eighty m.p.h. ¹

The westbound branch of Route 58 was not visible through the dense foliage in the median at the point where Keech left the convenience store. However, westbound traffic was visible to Keech at various other points as he continued westward. Drivers of other vehicles traveling both east and west on Route 58 attempted to get his attention and warn him by blowing their horns and flashing their headlights at him. At several times, oncoming traffic had to move out of the left lane to avoid a head-on collision.

Keech drove against traffic for approximately five to seven minutes. Although there were numerous reversed traffic signs and several "wrong way" and "one-way" signs along the route, Keech apparently did not see them or if he did see them, he did not react to them. When other motorists waved at him to try to warn him that he was going the wrong way, Keech merely waved back.

Keech's car struck the victims' vehicle head-on, without slowing down. At the time of the accident, visibility was good and the pavement dry. There was no evidence that Keech's faculties were impaired by drugs or alcohol. His wife testified that he was both physically and emotionally exhausted due to his rigorous work schedule prior to the accident. There was no evidence that he intended to harm himself or other motorists. Keech himself was unable to recall actually leaving work and driving home on the day of the accident. His physician testified that, in his opinion, Keech's memory loss was due to traumatic amnesia.

In Virginia, involuntary manslaughter is classified as a class five felony, but is not otherwise statutorily defined. See Code § 18.2-36. Involuntary manslaughter in the operation of a motor vehicle is defined as an "accidental killing which, although unintended, is the proximate result of negligence so gross, wanton, and culpable as to show a reckless disregard of human life." King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977).

Based on the facts established at trial and this definition of vehicular involuntary manslaughter, Keech challenges the sufficiency of the evidence to support his convictions. Specifically, he asserts that the evidence fails to establish that he was consciously aware he was operating his vehicle in the wrong lane of the divided highway. Consequently, he argues that he cannot be guilty of "a reckless disregard of human life" which, he asserts, connotes an intentional act.

The issue raised by Keech is a narrow one, but one which has not expressly been addressed by the appellate courts of this Commonwealth. Keech concedes that he was negligent in turning in the wrong direction onto the highway from the convenience store lot. In addition, he does not contest that if he had been aware of this error and that he was consequently driving against the flow of traffic on this divided highway, he would have been aware of the obvious risk to human life he was creating. These concessions are self-evident. In short, Keech argues that to be criminally liable for his negligent conduct the Commonwealth had to prove that he actually was aware that he was driving in the wrong lane of traffic and not merely that he should have been aware of this tragic error.

Before addressing the issue which Keech raises we first must determine whether the evidence supports the hypothesis that he was not consciously aware that he was driving in the wrong lane of this particular highway. We believe the evidence supports that hypothesis. There was no evidence that Keech was under the influence of alcohol or drugs or that he intended to harm himself or others. The crossover point in the median was not immediately adjacent to the convenience store where Keech stopped for gas, and at that point a wooded median strip approximately seventy feet wide separated the eastbound and westbound lanes of the highway. On these facts the jury could reasonably have concluded that Keech inadvertently turned left onto the highway from the convenience store lot and began traveling westward on the eastbound branch of the highway. In addition, the fact that Keech traveled for approximately eight miles in the lane which would have been the proper lane if he had not been on a divided highway, but which in fact created an almost inevitable risk to his own life, supports the hypothesis that he was not consciously aware of his error. Moreover, the trial court expressly found that Keech's conduct was not willful or malicious. Because the evidence supports Keech's contention that he was not consciously aware of the risk created by his conduct, we must determine whether such circumstances relieve him of criminal responsibility under the Virginia definition of vehicular involuntary manslaughter articulated in King or whether an objective test of awareness of the risk is applicable to such cases.

The premise upon which the negligent operation of a motor vehicle can constitute a criminal act in this Commonwealth was early articulated in Goodman v. Commonwealth, 153 Va. 943, 151 S.E. 168 (1930). In Goodman, our Supreme Court noted that when motor vehicles are driven recklessly the killing of human beings is a natural and probable result to be anticipated, and when a homicide follows as a consequence of such conduct a criminal intent is imputed to the offender and he may be punished for his crime. The Court further noted that the grade of the homicide, murder or manslaughter, would depend upon the facts of a particular case. "One, however, who accidentally kills another, even though he may be chargeable with some actionable negligence, is not guilty of a crime, unless his negligence is so gross and culpable as to indicate a callous disregard of human life and of the probable consequences of his act. The crime is imputed because of the recklessness, and where there is no recklessness there is no crime." Id. at 952, 151 S.E. at 171.

In Goodman, the Court reversed a manslaughter conviction, finding that the accused driver of a car could not have "anticipated" that when he passed a parked truck and collided with an oncoming car and ultimately struck the same truck, that a protruding rod in the truck would strike and kill a passenger in his car. In reaching this determination the Court did not expressly state whether the driver was relieved of criminal responsibility because he was not, in fact, aware of the risk or whether he was relieved of criminal responsibility because a reasonable person would not have been aware of the particular risk. Goodman, however, seems to be premised upon an objective test; that is, the driver was neither actually aware of the risk nor, under these particular facts, could he reasonably have been expected to have been aware of the risk presented by the protruding rod in the parked truck.

Subsequent to the Goodman decision, the appellate courts of this Commonwealth have affirmed and reversed convictions of vehicular involuntary manslaughter based upon the particular facts in such cases. Most, if not all, of these cases are referred to in our decision in Tubman v. Commonwealth, 3 Va.App. 267, 348 S.E.2d 871 (1986), and need not be listed again here. The consistent thread that runs through these cases is that a higher degree of negligence in the operation of a motor vehicle is required to establish criminal liability for involuntary manslaughter than to establish liability in a civil action for ordinary or even gross negligence. This higher degree of negligence has come to be known as "criminal negligence."

In defining criminal negligence, our Supreme Court, in Bell v. Commonwealth, 170 Va. 597, 195 S.E. 675 (1938), stated: "[criminal...