State v. Bryan
| Decision Date | 06 June 1985 |
| Docket Number | No. 18948,18948 |
| Citation | 709 P.2d 257 |
| Parties | The STATE of Utah, Plaintiff and Respondent, v. Kenneth Paul BRYAN, Defendant and Appellant. |
| Court | Utah Supreme Court |
Randall Gaither, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
Tamara Hill and Troy Caldwell, aged 16 and 17 respectively, were killed when a pickup truck driven by defendant ran a red light and collided with their automobile. A test performed approximately one hour after the accident revealed that defendant had a blood alcohol level of .30%, which was three times the level of intoxication needed to constitute legal intoxication at that time. 1 After a trial to the court, the defendant was convicted of two counts of manslaughter. U.C.A., 1953, section 76-5-205. Defendant appeals, contending that the trial court erred (1) in striking the testimony of defendant's expert witness, and (2) in denying defendant's motion to dismiss or to reduce the manslaughter charges.
On June 5, 1982, defendant was driving his truck eastbound on 3900 South. One eyewitness, who was stopped for a red light at the intersection of 3900 South and 500 East, observed defendant's truck in his rear-view mirror. The truck, traveling at a high rate of speed, approached from behind and in the same lane as the witness. The truck changed lanes to avoid hitting the stopped car and drove through the red light without incident. Defendant's pickup proceeded eastward along 3900 South without slowing. The truck entered the intersection at 700 East against a second red light, once again changing lanes to avoid cars stopped for the light. In the intersection, the pickup collided with the victims' car. One witness testified that he did not see any brake lights. Another witness estimated defendant's speed at approximately 50 miles per hour as defendant entered the second intersection.
After the collision, a third witness, who was a reserve officer for the Salt Lake County Sheriff's Department, attempted to render assistance to the victims. Noticing that defendant's truck was still running and fearing an explosion, she aided defendant in turning it off. She helped him out of the truck and sat with him on a nearby bus bench until the police arrived. She did not remember smelling alcohol, but she believed that defendant was drunk. Defendant stated to her that he knew he was going to the detoxification unit.
The investigating officer interviewed defendant at the crash site. Defendant refused an offer of medical assistance, claiming that he was not injured. The officer detected a noticeable odor of alcohol and noted that defendant appeared inebriated. After ordering the defendant to perform several field sobriety tests, the officer concluded that defendant was intoxicated and placed him under arrest. Later, while defendant was being transported to jail in the officer's patrol car, defendant volunteered that he was a very heavy drinker and that he had consumed three fifths of Cutty Sark whiskey. When the officer expressed doubt at this claim, defendant replied that the officer did not know him very well and that he was "one hell of a drinker."
At trial, defendant called only one witness, Dr. Michael DeCaria, a clinical psychologist, who testified to the effects of alcohol on behavior generally, and that he had interviewed and tested defendant twice before trial. He then began to testify about information that defendant had related to him during the interviews about defendant's history of alcohol abuse and the specific circumstances leading up to the Throughout the direct examination of Dr. DeCaria, the prosecutor objected to the testimony as lacking a proper foundation. After a number of objections, the court allowed the State a continuing motion to strike all of Dr. DeCaria's testimony. At the close of evidence, the State renewed its motion to strike the testimony, citing Rule 56, Utah R.Evid. The court took the motion under advisement. Nine days later, but before judgment, the court granted the State's motion based on Rule 56. Defendant cites this ruling as prejudicial error.
collision. Most importantly, Dr. DeCaria testified that defendant stated that he remembered nothing about the accident. Defendant had related that he remembered only that he had been drinking in a bar on the afternoon preceding the accident and that he awakened in jail the following afternoon. Based on the statements made by defendant at the interviews and on objective criteria, 2 Dr. DeCaria gave his opinion that defendant was suffering from "alcohol blackout" at the time of the accident and as a result defendant was "unable to think or consider risk ...." Defendant did not testify at the trial.
Although we do not address the issue of the admissibility of hearsay statements made to a psychologist or a psychiatrist for foundational purposes, it is clear that the trial court did not err in excluding the psychological opinion testimony for reasons other than the hearsay nature of the evidentiary foundation for that testimony. 3
On appeal, this Court may affirm the trial court's decision on any proper grounds, even though the trial court assigned another reason for its ruling. Jesperson v. Jesperson, Utah, 610 P.2d 326, 328 (1980); Allphin Realty, Inc. v. Sine, Utah, 595 P.2d 860, 861 (1979). Here, the testimony was inadmissible because it was immaterial.
The defendant was capable, before the onset of the alleged blackout, of knowing the risks he would likely create by drinking and driving while intoxicated; indeed Dr. DeCaria so testified. Although intoxication may be a partial defense to a specific intent crime, State v. Sessions, Utah, 645 P.2d 643 (1982), it is not a defense to a crime requiring a mens rea of recklessness. When a defendant is unaware of the serious risks he has created for the safety of others because of intoxication, the law holds that person responsible for having voluntarily and knowingly placed himself in that position. Utah Code Ann., 1953, § 76-2-306 provides:
[I]f recklessness or criminal negligence establishes an element of an offense and the actor is unaware of the risk because of voluntary intoxication, his unawareness is immaterial in a prosecution for that offense.
The requisite mens rea of the manslaughter charge in this case is recklessness, and the defendant's blackout was nothing more than the effect of severe intoxication. Accordingly, § 76-2-306 governs,
and the evidence of blackout produced by intoxication was immaterial.
Defendant claims that he was prejudiced by the timing of the court's ruling. He asserts that the trial court erred in striking the expert testimony on a post trial motion after first admitting that testimony. He argues that Rule 56(3), Utah R.Evid., required that the admission of evidence must stand if it is not excluded prior to the close of trial. Rule 56(3) provides that "[u]nless the judge excludes the testimony he shall be deemed to have made the finding requisite to its admission."
Defendant misstates the case when he argues that the motion to strike was first made after the trial. Contrary to defendant's contention, the prosecution's motion was first made during the direct examination of Dr. DeCaria. After a number of objections were made by the prosecution, the trial court granted the State a continuing motion, and the State renewed its objection and moved to strike prior to closing arguments. Defense counsel was aware that the motion had been made and that the court intended to take the matter under advisement. The defense made no attempt at that time to inform the court that granting the motion would require a different defense strategy.
Rule 56(3) fails to support defendant's argument; it merely states that if the trial court fails to exclude evidence, the evidence is deemed admitted. Rule 56(3) does not require the ruling to be made at a specific time. Here, the trial court did exclude the testimony on the State's timely motion. Defendant's argument regarding the timing of the exclusion is without merit.
Defendant next argues that the trial court erred in denying his motion either to dismiss the manslaughter charges or to reduce those charges to automobile homicide. Defendant makes four different arguments in support of his contentions: (1) that the manslaughter statute is preempted in vehicle cases by the automobile homicide statute; (2) that the mens rea elements of the crimes of negligent homicide and manslaughter in the criminal code are the same when § 76-2-306 negates voluntary intoxication as a defense; (3) that due process requires that defendant be charged under the automobile homicide statute; and (4) that the crime of manslaughter in the criminal code has the same elements as negligent homicide as defined in the motor vehicle code and that the defendant is therefore entitled to receive the lesser penalty for negligent homicide established by the motor vehicle code. We address each issue in the order presented.
First, defendant argues that the specific automobile homicide statute in the criminal code, § 76-5-207, preempts the less specific manslaughter statute whenever an intoxicated driver causes the death of another. Defendant relies on State v. Twitchell, 8 Utah 2d 314, 333 P.2d 1075 (1959), which held that the more recently adopted automobile homicide statute preempted the less specific and older voluntary manslaughter statute then in effect in cases involving death caused by an automobile driven by an operator under the influence of intoxicating liquor.
State v. Twitchell, was based on the concept that the prosecutor should not have the freedom to choose between charging either a felony or a misdemeanor when the two crimes have exactly the same substantive elements. We agree that that situation would deny defendant and others in his class...
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