State v. Hanks
| Decision Date | 20 February 1979 |
| Citation | 397 A.2d 998 |
| Parties | STATE of Maine v. Gerald E. HANKS, Jr. |
| Court | Maine Supreme Court |
William P. Donahue, Dist. Atty., Roger Flaherty, Asst. Dist. Atty., Alfred, Elizabeth R. Butler, Legal Intern (orally), for plaintiff.
Childs, McKinley & Emerson by Richard S. Emerson, Jr. (orally), Portland, for defendant.
Before McKUSICK, C. J., and POMEROY, WERNICK and DELAHANTY, JJ.
Following a jury trial, defendant was convicted of two counts of criminal homicide in the fourth degree, 17-A M.R.S.A. § 204 (repealed P.L. 1977, ch. 510, § 40). 1 The sole issue on appeal is whether the evidence is sufficient to support the jury's verdict. We find that it is, and accordingly we deny the appeal.
Defendant was charged with "recklessly" causing the death of another human being on June 17, 1977. On that date, the Criminal Code provided that "a person acts recklessly with respect to a result of his conduct when he consciously disregards a substantial and unjustifiable risk that his conduct will cause such a result." 17-A M.R.S.A. § 10 (1975). 2 The Code also provided that a risk was "substantial and unjustifiable" within the meaning of the statute "if . . . the disregard of the risk involves a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation." Id. The evidence in defendant's trial must therefore show that defendant Consciously created a risk of death by driving in a manner which Deviated grossly from the course of conduct a reasonable and prudent driver would have followed.
The following evidence entitled the jury to find, as it did, that defendant was guilty of recklessly causing the deaths of two other persons. During the early evening of June 17, 1977, an eye witness, George Patterson, was driving south on Route 117 in the Town of Buxton. Defendant's car was traveling in the opposite direction. Patterson testified that as defendant's car came over the crest of a small hill, it was partially over the center line, encroaching upon the lane for southbound traffic. Patterson watched as defendant's car struck an oncoming car driven by Mickey Moore, and knocked Moore's car off the west side of the road. Both Moore and one of his passengers, Vicki Maxwell, died as a result of the collision.
Subsequent inspection of defendant's car revealed that it was equipped with three regular tires and one steel-belted radial tire located on the left front. The right front tire was almost completely bald, having only 1/32 of measurable tread. Albert Godfrey, the director of the Bureau of Safety of the State Department of Transportation, testifying for the prosecution on the subject of the mismatched tires, told the jury that "the design of a radial tire is such that it has a quite soft side wall." Although four steel-belted radial tires would not prevent the driver from controlling the vehicle, Godfrey stated that "when you have only one, it gives you a very mushy effect . . . (as if) you had four matching tires and one was very nearly flat caus(ing) it to wobble." Given the tire mismatching and the bald condition of the front right tire, Godfrey told the jury he had severe doubts as to whether defendant had the ability to maintain proper control of his car. 3 Lay jurors are familiar with the experience of driving on a flat tire, which Godfrey equated with the experience of driving Hanks' vehicle. They were entitled to conclude that the "mushy effect" produced by the mismatched radial tire must have been readily apparent to defendant.
Defendant Hanks took the stand and gave testimony which contradicted the testimony of George Patterson in several respects. Although Patterson said that defendant's vehicle was partially over the center line when it first appeared over the crest of a hill, defendant denied this. Patterson stated that Moore's vehicle was properly in its southbound lane; but defendant testified that Moore's car was 50% Over the center line on Hanks' side of the road. According to Hanks, it was because Moore's car was straddling the center line that Hanks decided to make a left turn across the southbound traffic lane in an attempt to avoid Moore's vehicle.
The lone passenger in defendant's vehicle was his wife. Though defendant testified that she "screamed in terror" when she saw the Moore vehicle coming toward them straddling the center line, defendant never called his wife to the stand as a witness in his behalf. Her absence was unexplained. "The jury might have considered that (her) failure to corroborate (his) testimony as to these matters casts further doubt upon the value and credibility of the (defendant's) statements." State v. Silva, 153 Me. 89, 101-02, 134 A.2d 628, 634 (1957). See also Wright v. Bubar, 151 Me. 85, 91, 115 A.2d 722, 725 (1953).
Finally, the testimony of prosecution witness David Dunn also directly contradicted defendant's story. Though defendant attributed the blame for the accident to the deceased driver Mickey Moore, Dunn testified that while giving Hanks first aid treatment, defendant repeatedly stated, "It's all my fault." Thus, Hanks' trial story was contradicted by his own statements at the time of the accident, which evidenced a subjective consciousness of driving misconduct. 4
The testimony of Patterson and Godfrey afforded the jury a sound basis for determining that Hanks was driving with mismatched tires which severely impaired his ability to control the car and that he was straddling the center line of the highway as he approached the Moore vehicle. The jury, under the proper instruction here given, was justified in concluding that such conduct constituted a gross deviation from the conduct of an ordinarily prudent driver. The jury was also entitled to believe that Hanks was well aware of the dangerous "mushy flat tire effect" caused by the mismatched tires. Finally, the jury was justified in deducing, from the unexplained failure by defendant to offer his wife as a witness, that had she testified she would have confirmed their determination that her husband acted in a reckless manner, thus causing the deaths of Moore and Maxwell. 1 Underhill's Criminal Evidence § 45, p. 91 (6th ed. 1973); 2 Wigmore on Evidence § 286 (3d ed. 1940). See also State v. Silva, supra.
The trial record amply supports the jury's determination of defendant's...
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