State v. Bass

• Decision Date: 09 November 2000
• Docket Number: No. CR-99-0468-PR.,CR-99-0468-PR.
• Citation: 12 P.3d 796,198 Ariz. 571
• Parties: STATE of Arizona, Appellee, v. Stephanie Lynn BASS, Appellant.
• Court: Arizona Supreme Court

12 P.3d 796

198 Ariz. 571

STATE of Arizona, Appellee, v. Stephanie Lynn BASS, Appellant.

No. CR-99-0468-PR.

Supreme Court of Arizona, En Banc.

November 9, 2000.

Janet Napolitano, Attorney General by J.D. Nielsen, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Law Offices of Richard L. Strohm, P.C. by Richard L. Strohm, Phoenix, Attorneys for Appellant.

OPINION

JONES, Vice Chief Justice.

I. INTRODUCTION

¶ 1 This case involves criminal charges against Stephanie Lynn Bass, who drove a Cadillac El Dorado westbound in the right-hand lane of Baseline Road near 24th Street in Phoenix at speeds in excess of the limit. A vehicle in the west-bound left lane driven by Meg Farrell began to change lanes, left to right in front of Bass. Farrell's right wheel crossed the line dividing her lane from the lane in which Bass was traveling. This move caused Bass to swerve right and the Cadillac to ride the curb for a moment until, according to Bass, Steve Ochoa, seated next to her, grabbed the steering wheel and jerked it to the left. Bass then lost control of the car, which spun across the center lane into oncoming eastbound traffic causing a severe multi-car collision that left one person dead, one severely injured, and others less seriously injured.

¶ 2 The first car struck by the Cadillac was Gary Whipp's Chevrolet Corsica, traveling in the eastbound left lane. The impact pushed Whipp's car into the eastbound right lane where it collided with a Honda Accord driven by Thomas Vezie. Whipp, an off-duty police officer, was severely injured in the collision. Several of the occupants of the Accord were injured, and all four, including Vezie, Virginia Vezie, Virginia Kernberger, and Kernberger's minor granddaughter, were identified as victims in the Bass indictment.

¶ 3 The second car struck by the Cadillac was a Honda Civic driven by Manuel Mendoza with Crystal Saucedo, a passenger. Continuing to spin, the Cadillac next collided with David Newell's Toyota Corolla. Newell, the driver, was killed, while his passengers, Franscene Translavina and their five-year-old daughter, suffered injuries. Finally, the Cadillac struck a flat bed truck driven by Francisco Rodriquez. This collision brought Bass' car to rest. Her four passengers, Steve Ochoa, Sandra Ochoa, Lydia Marquez, and Bass' four year-old daughter, were also identified as victims by the State.

¶ 4 The State charged Bass with various counts connected with reckless driving, consisting of manslaughter in the death of Newell, child abuse in the endangerment of her own daughter, two counts of aggravated assault for the injuries to Whipp and Sandra Ochoa,¹ and eleven counts of endangerment related to the other injured persons. The State neither alleged nor proved that Bass was driving under the influence of alcohol or drugs; rather, the State urged criminal recklessness for each of the charges, predicated on allegations that Bass' speed was excessive and that she was weaving in and out of traffic.

¶ 5 At trial, over Bass' objection, the State was permitted to offer, through Farrell's testimony, statements about Bass' driving made by three unidentified bystanders who came on the accident scene. In defense of the reckless allegations, Bass argued superseding cause in an effort to defeat the element of causation, offering evidence of two intervening events—Farrell's attempted lane change and Ochoa's grab for the steering wheel. Bass claims she was not reckless, and that these intervening actions broke the chain of causation and became the true causes of the accident. She did not object to the jury instruction on superseding cause and, despite her defenses, the jury found Bass guilty on all counts. She is now serving a 27.5 year prison sentence.

¶ 6 Appealing the convictions, Bass argued inter alia that the jury instruction on superseding cause was erroneous and that the trial court erred in allowing Farrell to relate the hearsay statements of the bystanders. The court of appeals initially reversed Bass' conviction finding that the instruction on superseding cause confused the criminal standard with negligence law in the field of torts. The appeals court upheld the admission of the bystander hearsay, as testified to by Farrell, concluding that it fell within the excited utterance exception to the hearsay rule. Upon the State's motion for reconsideration, the court of appeals' majority reversed itself and affirmed the conviction, holding that the jury instruction was invited error and thus not grounds for reversal. Judge Fidel dissented, believing that the admission of hearsay was erroneous and warranted reversal.

¶ 7 Bass petitioned this court and we granted review in order to consider the issues regarding superseding cause and the out-of-court declarations as hearsay evidence. Jurisdiction attaches under article VI, section 5(3) of the Arizona Constitution and Rule 31.19 of the Arizona Rules of Criminal Procedure.

¶ 8 We find the jury instruction on causation presented the correct legal standard for superseding cause. We agree with Judge Fidel, however, and find reversible error in the admission of hearsay evidence. The bystanders' statements were without foundation, were grossly unreliable, and were not within the excited utterance exception. The witness confrontation clauses of the federal and state constitutions were also violated by the admission of the statements. Because the hearsay and confrontation errors are not shown as harmless beyond a reasonable doubt, we reverse Bass' conviction and remand to the trial court for proceedings consistent with this opinion.

II. DISCUSSION

A. The Causation Instruction

¶ 9 Bass first argues that her convictions must be reversed due to errors in the trial court's oral and written instructions on superseding cause. She claims the written instruction impermissibly confused the criminal law on causation with the civil standard, destroying her only theory of defense. She also charges that the oral instruction on causation was so self-contradictory and incoherent that it confused the jury. Because this is a criminal proceeding and defendant did not object to the instruction, we review only for fundamental error. See State v. Fulminante, 193 Ariz. 485, 503, 975 P.2d 75, 93 (1999)

.

1. The Criminal Standard for Superseding Cause

¶ 10 At trial, Bass argued that Farrell improperly attempted a lane change and should have been aware that she, Bass, occupied the right-hand lane. Bass asserted that were it not for Farrell's action, crossing the line, she would not have taken evasive action, swerving right, hitting the curb, and spinning out of control into traffic. Bass alternatively alleged that even while her car was riding the curb, she was in control and that it was not until passenger Ochoa grabbed the steering wheel that the car careened into oncoming traffic. She claims that each of these intervening events was a superseding cause that broke the chain of causation and excused all criminal liability for her actions.

¶ 11 The trial court gave a jury instruction on superseding cause, substantially similar to the one requested by Bass, stating that an intervening event becomes a legal excuse, i.e., a superseding cause only when "its occurrence was both unforeseeable and when with benefit of hindsight it may be described as abnormal or extraordinary."

¶ 12 Relying on a distinction first drawn in State v. Hall, 129 Ariz. 589, 594, 633 P.2d 398, 403 (1981), and applied most recently by the court of appeals in State v. Jansing, 186 Ariz. 63, 66, 918 P.2d 1081, 1084 (App.1996), Bass argues that this jury instruction was incorrect for failing to differentiate between "coincidental" intervening acts and "responsive" intervening acts. The Hall/Jansing line of criminal cases adopted separate standards for the two types of intervening events. Under that line, courts conclude that if the intervening event in question was in response to something defendant put in motion, as when Ochoa felt compelled to grab the steering wheel, it would need to be unforeseeable as well as abnormal or extraordinary in order to excuse liability. Where the intervening event was merely coincidental to defendant's actions, as in Farrell's lane change, it could be found superseding if merely unforeseeable.

¶ 13 We find this distinction strained and see no logical basis for continuing to employ a different standard in our criminal law for events that are merely coincidental. We thus dispense with the dichotomy and expressly hold, as to superseding cause, that any prior distinction between coincidental and responsive events is eliminated. Our criminal standard for superseding cause will henceforth be the same as our tort standard. See Petolicchio v. Santa Cruz County Fair and Rodeo Ass'n, Inc., 177 Ariz. 256, 866 P.2d 1342 (1994)

(an event is superseding only if unforeseeable and, with benefit of hindsight, abnormal or extraordinary). To the extent that Arizona case law differs from this standard and from our holding today, we overrule it.

¶ 14 We hold the trial court's written jury instruction on superseding cause set forth the proper standard by which to determine when an intervening event becomes superseding. There are no grounds for reversal on the written jury instruction.

2. The Oral Instruction

¶ 15 Bass further argues that regardless of the written instruction, the oral instruction was so infected with error as to have hopelessly confused the jury. We agree the transcript depicts an oral instruction fraught with problems.²

¶ 16 While it is unclear whether the errors occurred because the judge misspoke or were due to mistranscription by the court reporter, our opinion in State v. Chavarria presents the logical approach. 116 Ariz. 401, 402, 569 P.2d 831, 832 (1977). There, we refused to treat the error as a mere transcription problem "when dealing with a matter as serious as giving up the important right to jury trial." We held that despite...