State v. Bradley
| Decision Date | 17 April 1984 |
| Docket Number | No. 46660,46660 |
| Citation | 670 S.W.2d 123 |
| Parties | STATE of Missouri, Respondent, v. John Alan BRADLEY, Appellant. |
| Court | Missouri Court of Appeals |
Daniel P. Reardon, Jr., St. Louis, for appellant.
John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant was convicted in a court-tried case of four counts of manslaughter by culpable negligence in the operation of a motor vehicle, a violation of § 565.005, RSMo. 1978. He was sentenced to consecutive two year terms of imprisonment on each of the four counts. Defendant appeals. We affirm.
Shortly before midnight on August 23, 1980, an accident occurred on U.S. Highway 40 in St. Charles County. An automobile driven by defendant collided head-on with a vehicle driven by Douglas Broeker. All four passengers of the two cars died as a result of this accident.
Highway 40, in the area where the collision occurred, is a divided four lane highway with a grass median separating the westbound and eastbound lanes. The separation at the point of the accident was approximately twenty-five yards. Highway 40, furthermore, is a "limited access" highway; with the exception of some private roads which allow direct entrance onto the highway, access is via entrance and exit ramps, which are marked with warning signs for those travelling in the wrong direction. The accident occurred between the Highway 94 intersection and the Highway 40 weigh station--approximately six-tenths of a mile east of the intersection. In this vicinity, the terrain contains numerous hills and valleys, which might be described as short and choppy.
Immediately prior to the accident, the defendant was observed driving his vehicle eastbound in the westbound lanes of Highway 40. Defendant and his passenger were travelling in the left-hand (passing) lane of the westbound lanes. As he drove, defendant stayed steadily in the left-hand lane. One witness was a passenger in a vehicle travelling east in the eastbound lanes. He testified that he first saw defendant's vehicle when the vehicle was east of the Highway 94 intersection and directly in front of the exit ramp. Although his memory was vague, he believed that he saw at least two vehicles swerve to avoid collision with defendant. He said for a period of possibly 25 seconds, his vehicle was parallel to defendant's and the driver of his vehicle honked its horn and flashed its lights in an effort to sound a warning. The driver and passenger of another automobile also testified that they had passed the Broeker vehicle just prior to the accident and swerved off the road to avoid collision with defendant.
Douglas Broeker was driving west on Highway 40 with three passengers in his automobile. Broeker had passed a vehicle and therefore was in the passing lane when he reached the crest of a hill and saw the headlights from defendant's oncoming car. There was no time for evasive action. The two cars collided head-on; only the drivers survived.
Policemen, paramedics and firemen responded. The first officer on the scene was Deputy Sheriff Clark. He observed Broeker's automobile sitting in the median at a ninety degree angle to the highway. Defendant's vehicle was sitting crossways on the highway almost directly facing Broeker's car.
Shortly thereafter Officer Davis arrived at the scene. He first approached Broeker's vehicle. Davis checked the passenger for a pulse and found none. He attempted to extricate the passenger's body from the car but was unable to do so. He then proceeded to defendant's automobile where he checked the passenger's pulse and found none. At this time, he noticed beer cans in the car and spilled beer in the vehicle. The odor of the alcoholic beverage permeated the car interior. A beer can was later found crushed between the passenger's waist and the dashboard. Davis walked around the car to the driver's side and spoke to the defendant, who had been badly injured. Davis smelled alcohol on defendant's person and on his breath. He asked defendant if he had been drinking, to which the defendant replied, "Yeah, a lot." Davis asked where and defendant answered, "all over." The state did not adduce evidence of the alcoholic content of defendant's blood.
On appeal, defendant raises two points. He challenges the sufficiency of the evidence to convict him of manslaughter and the admissibility of his statement to police at the accident scene. In reviewing this matter, our function is not to weigh the evidence, but rather, to determine whether the evidence is sufficient to support the conviction. State v. Story, 646 S.W.2d 68, 72 (Mo. banc. 1983); State v. Devall, 654 S.W.2d 172, 175 (Mo.App.1983). We consider the evidence in the light most favorable to the verdict, giving the state the benefit of all favorable inferences that can be drawn from the evidence. State v. Overkamp, 646 S.W.2d 733, 736 (Mo.1983). We disregard all evidence to the contrary and resolve all conflicts in evidence in favor of the verdict. State v. Bextermueller, 643 S.W.2d 292, 293 (Mo.App.1983).
Defendant was charged with manslaughter under § 565.005, RSMo. 1978, which provides: "Every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter." " State v. Brown, 637 S.W.2d 395, 395 (Mo.App.1982), quoting State v. Schneiders, 137 S.W.2d 439 (Mo.1940).
Defendant contends that his conduct does not amount to culpable negligence. The fact that defendant was driving on the wrong side of the road on a limited access highway may show negligence on his part. However, standing alone it cannot warrant the conclusion that defendant acted in utter disregard of others, particularly since the accident occurred at night, when visibility was limited. Moreover, defendant's actions in steadfastly maintaining his course in the passing lane could be viewed as consistent with one operating under the mistaken notion that he was driving on the right hand side of two lane highway.
Likewise, the fact that defendant had near misses prior to the fatal collision, while of probative value, cannot alone be considered to amount to culpable negligence, in light of the temporal proximity of the near misses and the collision.
Nor is the presence of open beer cans, spilled beer and the accompanying odor of an alcoholic beverage in defendant's car alone enough. While these circumstances give rise to an inference that defendant had been drinking when he is alone in the vehicle, See State v. Carter, 451 S.W.2d 340, 343 (Mo.1970), here there was a passenger present in defendant's...
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