State v. Chavez
| Citation | 605 P.2d 1226 |
| Decision Date | 31 December 1979 |
| Docket Number | No. 16132,16132 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Johnnie M. CHAVEZ, Defendant and Appellant. |
| Court | Supreme Court of Utah |
Bruce C. Lubeck of Salt Lake Legal Defenders Assoc., Salt Lake City, for defendant and appellant.
Robert B. Hansen, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
Defendant appeals from a jury verdict of guilty of automobile homicide in violation of Section 76-5-207, 1 and from the judgment entered thereon by the District Court for Salt Lake County. Reversed and remanded for a new trial.
This case involves an automobile collision which occurred at the intersection of State Street and 3900 South Street in Salt Lake City, at approximately 10:45 p. m. on the evening of July 21, 1977. Witnesses who were present at the scene testified that defendant was driving at a high speed, northbound on State Street, but in a 10-foot-wide cement gutter, rather than on the asphalt. The semaphore lights were red, against defendant, but he passed several cars which had stopped for those lights at the intersection and collided with a car driven by Mr. Skollingsberg, who was turning left from the southbound lanes of State Street on the green arrow. Two-year-old Eric Skollingsberg was killed in the collision.
Blood samples were drawn from defendant at 12:14 and again at 12:48 a. m. and subjected to chemical analysis. The chemist who made these analyses testified that defendant's blood contained .19 percent alcohol by weight, in both samples.
Defendant first contends that the Court erred in instructing the jury that the State must prove only simple negligence on the part of defendant as an element of automobile homicide, and in refusing defendant's requested instructions that criminal negligence as defined in Section 76-2-103(4) must be proved. We have previously considered this question in the case of State v. Durrant, Utah, 561 P.2d 1056 (1977), in which this Court ruled that the provisions of Section 76-5-207 require only simple negligence. That ruling was followed in State v. Anderson, Utah, 561 P.2d 1061 (1977), and State v. Wade, Utah, 572 P.2d 398 (1977). Defendant now urges us to overrule those decisions, as that interpretation produces conflict in the statutes.
Mr. Justice Maughan, in his dissent in State v. Durrant, supra, with which this author concurred, recognized that ordinary, or simple negligence was all that was necessary to convict one of automobile homicide under Section 76-30-7.4, the statute as enacted in 1957. But that statute was repealed in 1973, together with the entire Utah Penal Code, at which time the present Utah Criminal Code was enacted. Section 76-2-101 of the Criminal Code now extant, and applicable in this case, provides:
No person is guilty of an offense unless his conduct is prohibited by law and:
(1) He acts intentionally, knowingly, recklessly or with criminal negligence with respect To each element of the offense as the definition of the offense requires . . .. (Emphasis added.)
Thus under the new code, negligence is an element of the crime of automobile homicide under Section 76-5-207(1), supra at footnote 1, and that negligence must therefore at least rise to the level of criminal negligence, or defendant is guilty of no offense at all. Criminal negligence is defined in Section 76-2-103:
A person engages in conduct:
(4) With criminal negligence or is criminally negligent with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in all the circumstances as viewed from the actor's standpoint.
Instruction No. 18, given by the District Court to the jury in this case, defined negligence as:
Negligence is the failure to do what a reasonable and prudent person would have done under the circumstances or doing what such person under such circumstances would not have done. The fault may lie in acting or omitting to act.
You will note that the person whose conduct we set up as a standard is not the extraordinarily cautious individual nor the exceptionally skillful one, but a person of reasonable and ordinary prudence.
This is a definition of simple negligence, used generally in tort cases, and differs greatly from the quantum of negligence described in Section 76-2-103(4). The latter statute requires proof that defendant's conduct place another at risk; that the risk be substantial and unjustifiable; and that failure to perceive the risk constitute a Gross deviation from the reasonable man standard. A higher level of culpability is required under Section 76-2-103(4) than that defined in Instruction 18.
In State v. Wade, supra, the majority of this Court (Justice Maughan and this author dissenting) was of the opinion that driving while intoxicated amounts to reckless conduct in disregard of the safety and rights of others, and therefore, such recklessness satisfies the requirements of Section 76-2-101. Reckless conduct is defined in Section 76-2-103(3) and requires proof of even higher culpability than criminal negligence. 2 And a homicide caused by reckless conduct constitutes manslaughter, a second degree felony, under the provisions of Section 76-5-205. Thus the ruling in Wade, we respectfully submit, infused confusion into the quantum of culpability required to prove automobile homicide.
We are therefore of the opinion that our previous cases holding that automobile homicide requires only proof of simple negligence under Section 76-5-207 are in error, and are overruled. And we hold that a conviction of automobile homicide requires an instruction on criminal negligence as that term is defined in Section 76-2-103(4), and a determination thereof by the jury. As the Court's Instruction 18 defined simple negligence and not criminal negligence, defendant is entitled to a new trial.
Defendant further argues that the Court erred in denying his motion to dismiss the charges, or alternatively, to suppress the results of the blood tests. The thrust of his argument here is that the chemist, after he finished his analysis, "destroyed" the evidence by allowing the blood samples to remain at room temperature, and that his failure to refrigerate the samples rendered the blood worthless for the purpose of a second analysis on the part of defendant's expert.
The District Court denied defendant's motion to suppress this evidence on the ground that it was not destroyed 3 by the police or prosecution, nor was it intentionally or wilfully destroyed by anyone. Defendant was not denied access to these samples; he made no request for an independent analysis. His motion to suppress this evidence was not made until January 5, 1978 five months after the blood was drawn.
Section 41-6-44.10(f) provides that defendant may have his own physician administer a chemical test in addition to the test administered at the direction of a peace officer, and further, provides that the failure to obtain such additional test shall not affect the admissibility of the results of the State's test. As defendant neither asked his own physician to take a blood sample, nor requested the State to produce its samples for the purpose of an independent test, his argument is without merit, and upon a retrial of defendant, the results of those tests are admissible.
Defendant also asserts that the District Court erred in admitting the results of the blood analysis, in instructing the jury concerning the presumptions of intoxication as set forth in Section 41-6-44(b) 3, and in denying defendant's motion to dismiss, contending that there was little or no evidence that defendant was intoxicated at the time of the collision. These arguments are without merit and we do not discuss them.
Finally, defendant contends that he was not properly sentenced, but in view of our remand, that argument is moot.
With due respect to the view set forth in the main opinion, I see this case in quite a different light and cannot agree to the reversal nor join in what seems to me as substantial weakening of the law whose purpose it is to prevent the killing of others in driving while intoxicated.
It will be noted from the instructions given, that the trial court took cognizance of the requirements of the applicable statutes and that the instructions conformed thereto. From those instructions, the jury could not fail to understand that they could not convict the defendant for merely being negligent, nor unless he drove in reckless disregard of the safety of others, Or so under the influence of intoxicating liquor that he could not drive safely, and thus was hazarding the safety of others, Plus the fact that he drove in such an erratic manner as to constitute negligence, i. e., without due care for the safety of others, or otherwise stated, in a careless manner.
The pertinent part of Instruction No. 20 stated:
Before you may find the defendant guilty of Negligent...
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Schuler v. State
...in holding that it was "clear from this scenario that defendant's judgment was not final at the time of our ruling in [State v.] Chavez [Utah, 605 P.2d 1226 (1979) ] and accordingly he is entitled to claim the benefit of that ruling." 615 P.2d at 1275. That holding was fully supported by ci......
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State v. Norton
...in holding that it was "clear from this scenario that defendant's judgment was not final at the time of our ruling in [State v.] Chavez [Utah, 605 P.2d 1226 (1979) ] and accordingly he is entitled to claim the benefit of that ruling." 615 P.2d at 1275. That holding was fully supported by ci......
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State v. Owens
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...1061, 1063 (Utah 1977) (trial court given broad discretion concerning receipt of evidence), overruled on other grounds, State v. Chavez, 605 P.2d 1226, 1228 (Utah 1979). IV. In his final point on appeal, defendant claims that the cumulative impact of the inadmissible testimony and evidence ......