Kitsos v. State

• Decision Date: 21 September 1990
• Docket Number: 1 Div. 43
• Citation: 574 So.2d 979
• Parties: John David KITSOS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 979

574 So.2d 979

John David KITSOS v. STATE.

1 Div. 43.

Court of Criminal Appeals of Alabama.

Sept. 21, 1990.

Rehearing Denied Nov. 16, 1990.

Certiorari Denied Feb. 1, 1991

Alabama Supreme Court 1900380.

Thomas M. Haas and N. Ruth Haas, Mobile, for appellant.

Don Siegelman, Atty. Gen., and Gilda B. Williams, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

John David Kitsos was charged in the alternative with manslaughter and vehicular homicide. A jury convicted him of criminally negligent homicide, a lesser included offense of manslaughter. He was sentenced to 12 months' imprisonment, was fined $1000, and was ordered to pay court costs and restitution. Kitsos raises three issues in this appeal from his conviction.

I

Kitsos contends that the trial court erred in denying his motion for judgment of acquittal which was made at the close of the State's case.

"When a motion [for judgment of acquittal] is made on the ground that the State has failed to establish a prima facie case, it is the duty of the trial court to determine the sufficiency of the evidence to sustain a conviction under the indictment. In its determination, the trial court should consider only the evidence before the jury at the time the motion is made and must consider it most favorably to the State. When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit it to the jury, and, in such a case, this court will not disturb the trial court's decision."

Andrews v. State, 473 So.2d 1211, 1213-14 (Ala.Cr.App.1985) (citations omitted). With these principles in mind, we turn to a review of the State's evidence.

On the afternoon of May 21, 1988, two automobiles, a white Capri that was travelling south and a red Honda that was travelling north, collided on Highway 45, just south of Chunchula, in Mobile County. The occupants of the red Honda--Arsie Burke, his wife Fredna, and their grandchildren, five-year-old Charlie Burke and one-year-old Brandy Grant--all died from massive injuries suffered in this wreck. A blood sample taken from Arsie Burke, the driver, tested negative for alcohol and basic drugs. Mobile police officer J.E. Burrow, testifying for the State as an accident reconstructionist, stated that, in his opinion, the collision occurred while both vehicles were in the northbound lane.

Prosecution witness John Shell testified that he and his family left Citronelle, Alabama around 2:30 p.m. on the afternoon of May 21, 1988 and began driving south on Highway 45. Shell stated that Highway 45 is a two-lane highway, "one each way." For some 15 to 20 minutes Shell observed a white vehicle travelling south in front of him. According to Shell, this vehicle was travelling in an erratic manner, running off the road on the right-hand side at least three times and travelling in the left-hand (northbound) lane at least three times. On one of its forays into the left-hand lane, Shell observed the white car run a northbound car off the road. Shell described the collision:

"We were still driving south on Highway 45, and this was just north of Highway 158 and it was somewhere in the neighborhood of 3:00 o'clock in the afternoon. The white vehicle that was in front of me was going along, at that time was staying pretty much in its lane, and just right as the road starts to curve there, it curves a little bit to the right, and just all of a sudden it just went right over into the northbound lane and collided head-on with a red vehicle that was coming northbound."

Shell identified Kitsos as the driver of the white car.

James E. Cook testified that he was driving north on Highway 45 around 3:00 p.m. on Saturday, May 21, 1988. Near Chunchula, he was run off the road by a white car with tinted windows which "came over in [his] lane." After being forced off the road, Cook observed that "the car just stayed on the wrong side of the road for about a hundred yards and went around the curve."

Prior to the collision, Kitsos had played in a golf tournament in Citronelle. Noel Turner, a member of the threesome with whom Kitsos played, testified that there was a keg of beer located between the eleventh and twelfth holes and that he observed Kitsos get a cup of beer on two separate occasions. The first time he observed Kitsos getting beer was around 11:00 a.m.

Pritchard Fire Captain Bobby Holifield attended Kitsos at the scene shortly after the wreck. According to Captain Holifield, Kitsos "had some cuts and bruises, and you could smell the alcohol. [Kitsos] also stated to [Holifield] that he had had one and a half beers at the golf course." Pritchard police officer Eddie Goff also talked with Kitsos at the scene. Officer Goff stated that he "detected a strong odor on [Kitsos'] breath that appeared to me to be alcohol." In response to Officer Goff's question, "[H]ad you been drinking," Kitsos said, "[Y]es." According to Goff, Kitsos stated, "I drank three, no, one and a half beers on my way from the golf course in Citronelle."

As noted above, the indictment charged Kitsos with the alternative offenses of vehicular homicide and manslaughter. "[I]n order to establish a prima facie case of homicide by vehicle, it must be proved that a death occurred as the proximate result of the defendant's being 'engaged in the violation of any state law or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic....' Ala.Code 1975, § 32-5A-192." Whirley v. State, 481 So.2d 1151, 1154 (Ala.Cr.App.1985), writ quashed, 481 So.2d 1154 (Ala.1986). State law prohibits a person from driving a vehicle while "[u]nder the influence of alcohol," § 32-5A-191(a)(2), and also requires, with certain exceptions, none of which are applicable here, that vehicles be driven on the right-hand side of the road, § 32-5A-80(a). The evidence before the trial court at the time of Kitsos' motion for judgment of acquittal was clearly sufficient to raise a jury question of Kitsos' guilt under the vehicular homicide count.

Kitsos was charged with the "reckless" form of manslaughter defined in § 13A-6-3(a)(1). The elements of this offense and the offense of criminally negligent homicide were discussed at length by this Court in Phelps v. State, 435 So.2d 158 (Ala.Cr.App.1983):

"[A] person commits the crime of manslaughter if he recklessly causes the death of another person. Section 13A-6-3(a)(1). The reckless offender is aware of a substantial and unjustifiable risk and 'consciously disregards' it. Section 13A-2-2(3); commentary to Section 13A-2-2.

" 'A person commits the crime of criminally negligent homicide if he causes the death of another person by criminal negligence.' Section 13A-6-4. 'A person acts with criminal negligence ... when he fails to perceive a substantial and unjustifiable risk that the result will occur....' Section 13A-2-2(4). In both manslaughter and criminally negligent homicide '(t)he risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.' Sections 13A-2-2(3) and (4).

"The only difference between manslaughter under Section 13A-6-3(a)(1) and criminally negligent homicide is the difference between recklessness and criminal negligence. 'The reckless offender is aware of the risk and "consciously disregards" it. On the other hand, the criminally negligent offender is not aware of the risk created ("fails to perceive") and, therefore, cannot be guilty of consciously disregarding it.' Commentary to Section 13A-2-2. 'The difference between the terms "recklessly" and "negligently," ... is one of kind, rather than degree. Each actor creates a risk of harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.' C. Torcia, 1 Wharton's Criminal Law Section 27 (14th ed. 1978) (emphasis in original).

"Negligence 'is distinguished from acting purposefully, knowingly, or recklessly in that it does not involve a state of awareness. It is the case where the actor creates inadvertently a risk of which he ought to be aware, considering its nature and degree, the nature and purpose of his conduct and the care that would be exercised by a reasonable person in his situation.' Commentary to Section 13A-6-4."

Phelps, 435 So.2d at 164, quoted in Woods v. State, 485 So.2d 1243, 1245-46 (Ala.Cr.App.1986). See also Jones v. State, 514 So.2d 1060, 1065 (Ala.Cr.App.), cert. denied, 514 So.2d 1068 (Ala.1987).

The State's evidence was clearly sufficient for the jury to find that Kitsos created a substantial or unjustifiable risk of harm to the occupants of the Honda. Just as clearly, there was sufficient evidence for the jury to infer that Kitsos either disregarded or failed to perceive this risk. We note that a person acts recklessly where he "creates a risk [of harm] but is unaware thereof solely by reason of voluntary intoxication." § 13A-2-2(3). There was no error in the trial court's denial of the motion for judgment of acquittal.

II

Kitsos contends that the prosecutor's closing argument was improper and prejudicial in two instances. First, he asserts that a specific portion of the prosecutor's argument was not supported by any evidence.

Due to his injuries, Kitsos was transported from the scene of the collision to Springfield Memorial Hospital. Dr. Charles Dyas, the physician who attended Kitsos at the hospital, was called as a defense witness. Dr. Dyas testified on direct examination that hospital records indicated that Kitsos' blood alcohol level was .046%. On cross-examination by the prosecutor, Dr. Dyas testified that hospital records showed that the blood sample for the blood alcohol test was drawn from Kitsos at 4:50 p.m., some two hours after the collision. After Dr. Dyas acknowledged that alcohol dissipates from the blood system at "a pretty predictable rate," the...