State v. Brehmer, 41087

• Decision Date: 02 August 1968
• Docket Number: No. 41087,41087
• Citation: 281 Minn. 156,160 N.W.2d 669
• Parties: STATE of Minnesota, Respondent, v. Richard H. BREHMER, Appellant.
• Court: Minnesota Supreme Court

Page 669

160 N.W.2d 669

281 Minn. 156

STATE of Minnesota, Respondent, v. Richard H. BREHMER, Appellant.

No. 41087.

Supreme Court of Minnesota.

Aug. 2, 1968.

Syllabus by the Court

1. Gross negligence has been defined as a very high degree of negligence. It requires no conscious and intentional action which the actor knows creates an unreasonable risk of harm to others. Negligence, even though extreme negligence, is all that is required. Measured by this test the evidence here is clearly sufficient to sustain the finding that defendant was guilty of gross negligence.

2. Whether a new trial should be granted on the basis of newly discovered evidence is within the sound discretion of the trial court. Held, the court did not err in failing to order a new trial.

C. Paul Jones, Public Defender, Ronald C. Elmquist, Minneapolis, for appellant.

Douglas M. Head, Atty. Gen., Richard H. Kyle, Sol. Gen., J. Dennis O'Brien, Sp. Asst. Sol. Gen., St. Paul, S. A. Sawyer, County Atty., Winona, for respondent.

Heard before KNUTSON, C.J., and NELSON, MURPHY, OTIS, and FRANK T. GALLAGHER, JJ.

OPINION

FRANK T. GALLAGHER, Justice.

Appeal from a judgment convicting defendant of criminal negligence resulting in death.

At about 10 p.m. on September 3, 1965, Raymond Umberger, an over-the-road truckdriver, was driving a semitractor south on Carimona Street in Winona, Minnesota. He brought the tractor to a stop at the intersection of Carimona and Third Street with the front wheels even with the Third Street curb. Nothing was coming from his right. Looking to his left, he saw a car about a block and a quarter away proceeding west on Third Street. No other cars were approaching from his left. He proceeded into the intersection, intending to turn left on Third Street. Immediately after he entered the intersection he heard tires squealing and, looking to his left, saw a car coming at him from 120 to 150 feet away. As his front wheels reached the center of Third Street, and just as he was beginning to swing left, the car hit the tractor. About 3 or 4 seconds had elapsed from the time he had seen the car a block and a quarter away until he was hit. On impact, the tractor bounced backward and hit a tree on the northwest corner of the intersection, and then came to rest 41 feet from the point of impact. The front end of the car to the point of the windshield was almost completely destroyed. At the point of collision the car was entirely within its own lane.

Umberger testified that the car was going between 90 and 100 miles an hour. An eyewitness who observed the car as it approached the intersection estimated its speed as between 70 and 80 miles per hour. Another eyewitness, unable to estimate its speed, could only say that it was moving 'fast.' After the driver applied the brakes, the car left heavy, black skid marks for 53 long paces on Third Street, which has a concrete surface and was dry at the time of the accident.

Almost immediately after the accident, Winona Police Officers James Bronk and Glenn Morgan arrived on the scene. Bronk looked into the car and saw a male occupant, later identified as defendant, slumped over the wheel. An open, partially filled beer bottle stood on the floor between the driver's legs. Bronk determined that defendant was unconscious but still living. He was removed to a hospital and survived.

Bronk's observation of the automobile also revealed a female occupant, later identified as Karen Thilmany, partially under the dash on the passenger side of the front seat. He felt for a pulse but could detect none. Karen was dead on arrival at Winona Memorial Hospital. The coroner testified that she died of multiple fractures suffered in the accident.

The day before the accident, at about 2 p.m., defendant, with Karen Thilmany and Arthur Huebner as passengers, drove his car from Winona to Plainview. In Plainview, defendant and Karen stopped off at the Cozy Corner bar and Huebner took defendant's car. About an hour later Huebner picked up defendant and Karen outside the bar and defendant again took the wheel.

From Plainview they went to Elba, where they stopped at another bar. Here defendant had a few rounds of tap beer and a few shots of whiskey. Defendant then bought a case of beer and he, Huebner, and Karen drove out to the country and drank some of it. Defendant drank about eight bottles from the case at this time. The three of them returned to Winona and got something to eat. While in Winona at this time, defendant and Huebner drank the six bottles still remaining in the case.

From Winona, the party crossed the river to La Crosse, Wisconsin, and there purchased a 6-pack of strong beer. By this time, apparently, defendant and Karen had decided to get married, and all three left for Dubuque, Iowa, with Huebner driving.

They arrived in Dubuque at 1 or 2 a.m. September 3. They were directed to a justice of the peace, who informed them that there could be no marriage without a marriage license.

They then started for Winona, again with Huebner driving, but a short way out of Dubuque defendant took over the car. Except for this stop to change drivers, they did not stop at any point when driving from La Crosse to Dubuque and from Dubuque back of Winona. On the way back from Dubuque Huebner suggested that defendant slow down. Huebner said he would do so 'for a while' and then 'speed up again.' None of the three had anything to drink between Dubuque and Winona. They got back to Winona about 6:30 or 7 in the morning.

They drove around briefly after arriving in Winona, and then went to the Thilmany residence. Shortly thereafter defendant purchased a case of beer and took it back to the Thilmany residence. Defendant, Huebner, Karen's brother, George Thilmany, Jr., and Karen's mother drank from this case until 11 a.m., at which time half of the case remained. Defendant consumed about four bottles and also, apparently, had some 'bloody Marys.'

At 11 a.m. Huebner and George left to pick up Huebner's salary check. They then bought another case of beer, went to McDonald's to eat, and returned to Thilmany's. They were gone approximately 2 hours.

When George and Huebner got back, the group began drinking and talking again. Soon after they returned, defendant left and bought something for Karen and himself to eat. About 3 p.m. defendant took George to work and then he, Karen, and Huebner drove Mrs. Thilmany to a cemetery to visit the grave of one of her children. By the time they left for the cemetery, there was one full case of beer left.

After visiting the cemetery, the party went to Dorothy's Bar in Winona. They were joined there by one Romelle Kamrowski. They stayed at Dorothy's for 1 or 1 1/2 hours, during which time defendant had three tap beers. When they left around 6 o'clock, defendant bought another 6-pack of beer.

With defendant driving, the party, including Miss Kamrowski, left Winona for Dodge, Wisconsin. Defendant drank beer on the way to Dodge. The group stopped at a bar in Dodge, where defendant had two hard drinks.

From Dodge, the party proceeded to the Midway, a bar on the highway between Fountain City and Centerville, Wisconsin. Defendant was driving and Huebner noticed that he crossed the centerline on curves, but otherwise noticed nothing unusual about defendant's handling of the car. Miss Kamrowski testified that defendant was driving between 65 and 70 miles per hour and that he occasionally swerved over the centerline or onto the shoulder. She was scared, she said, but did not voice her fear.

Upon reaching the Midway, defendant had a bottle of beer from the car trunk. He also had one or two vodkas in the tavern.

With defendant driving, the party left the Midway for Winona at about 8:45 p.m. Defendant drove at a speed between 75 and 80 miles per hour. Again, he occasionally swerved over the centerline and onto the shoulder. Again Miss Kamrowski was afraid but said nothing.

When the party got back to Winona, defendant dropped the others off at the Tally Ho Tavern and took Karen for a ride. By this time, according to Huebner, defendant was 'high.' It was about an hour later that the accident occurred.

On September 24, 1965, a preliminary hearing was held before a judge of the Winona municipal court, who bound defendant over to the Winona County District Court, and on September 27 defendant was charged by information with having unlawfully caused the death of Karen Thilmany by operating a motor vehicle in a grossly negligent and criminal manner. Defendant, appearing with counsel, was arraigned before the district court on January 10, 1966. He pled not guilty.

On February 1, 1966, defendant was granted a change of venue to Olmsted County. However, defendant and counsel later agreed to trial before a judge in Winona County. The case was tried before the court...