Panther v. State

• Decision Date: 22 September 1989
• Docket Number: No. A-2631,A-2631
• Citation: 780 P.2d 386
• Parties: Leonard B. PANTHER, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 386

780 P.2d 386

Leonard B. PANTHER, Appellant, v. STATE of Alaska, Appellee.

No. A-2631.

Court of Appeals of Alaska.

Sept. 22, 1989.

Rehearing Denied Oct. 17, 1989.

Robert Merle Cowan, Kenai, and Walter Share, Anchorage, for appellant.

Robert D. Bacon, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., COATS and SINGLETON, JJ.

OPINION

BRYNER, Chief Judge.

Leonard B. Panther was indicted for manslaughter. Following a jury trial, he was acquitted of the charge but convicted of the lesser-included offense of criminally negligent homicide. On appeal, Panther argues that insufficient evidence was presented before the grand jury and at trial, that the criminally negligent homicide statute is unconstitutionally vague, that the state presented improper evidence to the grand jury, and that the trial court erred in instructing the jury on proximate cause. We affirm.

At about 8:30 a.m. on July 25, 1987, Leonard Panther was driving his Volkswagen south on Homer Spit Road when he collided headon with a GMC Blazer driven by Michael Wickline. The collision seriously injured Panther and fatally injured his wife, Debra, a passenger in the Volkswagen. Wickline sustained less serious injuries.

Following an investigation, Panther was charged with manslaughter for recklessly killing his wife. The state's evidence, both before the grand jury and at trial, established that Panther's car steered out of its lane of traffic, traveling all the way across the opposite lane, over the fogline, and onto the shoulder on the far side of the road. Wickline, traveling north on Homer Spit Road in his own lane of traffic, saw Panther approaching around a gradual curve. As Panther's car crossed the centerline, Wickline began to slow down gradually and pulled to the right, over the fogline, to the shoulder of the road and against the guardrail. Wickline assumed that the driver of the oncoming Volkswagen would see his Blazer and correct in time to avoid an accident. When Wickline realized that the Volkswagen was not going to steer out of its collision course, he locked his brakes, sending the Blazer into a skid.

The two cars collided head-on. At the point of impact, both cars were on the shoulder of the northbound lane (Wickline's lane of traffic), near the guardrail. Wickline's Blazer left skid marks approximately seventy-two feet in length. No trace of skid marks was found for Panther's Volkswagen.

Based on an examination of the accident scene and of the two cars, an accident reconstruction expert concluded that Panther's Volkswagen was traveling approximately forty miles per hour at the time of impact. The posted speed limit was forty-five miles per hour. Wickline's Blazer was traveling at about eighteen miles per hour. In the expert's opinion, approximately one and one-half seconds had elapsed from the point at which Wickline locked his brakes to the point of impact. The position of the two cars after impact indicated that Wickline's Blazer had rotated slightly toward the centerline as it skidded. The expert also concluded that, at the last moment, Panther's Volkswagen began to turn in the same direction. Apart from this slight, last-moment turn, Panther took no evasive action. The expert found no evidence to indicate that Panther had applied his brakes or otherwise attempted to slow down to any appreciable extent.

Investigation of the collision failed to disclose any specific explanation for Panther's presence on the wrong side of the road. The accident occurred on a clear, sunny morning, on an open stretch of road with good visibility. There was no other traffic on the roadway that could have interfered with either of the two cars involved in the collision. An examination of Panther's car failed to disclose any type of mechanical problem or defect. Although the collision occurred shortly after Panther's car had rounded a gradual curve in the roadway, the location of the collision was inconsistent with Panther's having simply driven straight, through the curve, without turning. The state's accident reconstruction expert concluded that, "in order to get where that Volkswagen got, it [took] a conscious steering effort to the left to wind up where it did at the point of impact, that far over in the lane."

Panther's blood was tested after the collision and found to be free of alcohol. Several weeks after the collision Panther was interviewed by a Homer police officer. Panther acknowledged seeing Wickline's Blazer but said that it was in his own (Panther's) lane of traffic when he saw it. Panther claimed that he pulled his Volkswagen to the left, into the oncoming lane to avoid the Blazer, downshifting the Volkswagen and possibly braking in order to slow down. According to Panther, the Blazer then suddenly veered back into its own lane of traffic, directly into the path of Panther's car. Panther said that although his Volkswagen crossed into Wickline's lane of traffic, it never crossed over the fogline onto the shoulder of the oncoming lane.

Panther insisted that he had not been distracted by anything before the collision, and he denied being impaired or adversely influenced by alcohol or drugs. He further stated that as far as he knew, no mechanical problems had contributed to the collision.

Although Panther did not testify before the grand jury or at trial, his statement to the police was admitted in both proceedings. Panther's version of the collision was contradicted by the physical evidence at the scene of the collision, by Wickline's testimony and the testimony of another motorist who was directly behind Wickline at the time of the collision, and by the state's accident reconstruction expert.

On appeal, Panther contends that the state's evidence, both before the grand jury and at trial, was insufficient. In ruling on this contention, we must view the evidence in the light most favorable to the state. The evidence presented to the grand jury is sufficient when, if unexplained or uncontradicted, it would warrant a conviction. Alaska R.Crim.P. 6(q); Lupro v. State, 603 P.2d 468, 473 (Alaska 1979). The evidence at trial is sufficient if "fair minded persons could reasonably differ on whether guilt has been established beyond a reasonable doubt." Adams v. State, 598 P.2d 503, 509 n. 8 (Alaska 1979). When the evidence before the grand jury and at trial is considered in the light most favorable to the state, it is sufficient to support Panther's indictment for manslaughter and conviction for negligent homicide.

Panther was charged with manslaughter under AS 11.41.120(a)(1) ¹ and was convicted of criminally negligent homicide under AS 11.41.130(a). ² Under these statutes, manslaughter occurs when a person recklessly causes the death of another person; criminally negligent homicide occurs when a person causes the death of another person through criminal negligence.

Recklessness and criminal negligence are defined in AS 11.81.900(a)(3) and (4). ³ Under the statutory definitions, recklessness and criminal negligence both require conduct that, with respect to a specified result or circumstance, creates "a substantial and unjustifiable risk that the result will occur or that the circumstance exists...." In the case of manslaughter and criminally negligent homicide, the statutorily specified result is the death of another person.

The sole distinction between recklessness and criminal negligence--and, by extension, between manslaughter and criminally negligent homicide--lies in the accused's awareness of the risk that is caused by the accused's conduct. When the accused is "aware of and consciously disregards" a substantial and unjustifiable risk that death will occur, the resulting death is manslaughter. AS 11.41.120(a)(1); AS 11.81.900(a)(3). When the accused merely "fails to perceive" the same risk, then the resulting death is criminally negligent homicide. AS 11.41.130(a); AS 11.81.900(a)(4). See generally Edgmon v. State, 702 P.2d 643, 645 (Alaska App.1985).

For purposes of both offenses, "a substantial and unjustifiable risk" is a risk "of such a nature and degree that disregard of it [or failure to perceive it] constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." AS 11.81.900(a)(3) and (4).

In the present case, the state's evidence established that Panther, while driving his Volkswagen, was involved in a collision that resulted in his wife's death. Although the evidence did not pinpoint the exact cause of the collision, it did rule out virtually every conceivable explanation consistent with non-negligence on Panther's part. Added to the physical evidence concerning the circumstances surrounding the fatal collision, Panther's own statement confirmed that no mechanical failure or other external problem contributed to it.

Moreover, the evidence established that Panther drove his car completely across the opposing lane of traffic and onto the shoulder on the far side of the highway. There he collided with Wickline without any apparent attempt to apply his brakes and without any appreciable effort to take evasive action. These circumstances could certainly have justified reasonable persons in concluding that the risk posed by Panther's conduct transcended ordinary civil negligence, amounting to "a gross deviation from the standard of care [or conduct] that a reasonable person would observe in the situation." AS 11.81.900(a)(3) and (4). There was thus a sufficient basis to support the conclusion that Panther was criminally negligent.

Finally, in his own account of the accident, Panther acknowledged his awareness of Wickline's approaching vehicle. This admission could properly be considered by the grand jury and the trial jury alike and, in conjunction with the other evidence, could support the conclusion that Panther was aware of and consciously disregarded the...