State v. Huff
| Decision Date | 20 March 1990 |
| Docket Number | No. WD,WD |
| Citation | 789 S.W.2d 71 |
| Parties | STATE of Missouri, Respondent, v. Thomas H. HUFF, Appellant. 42200. |
| Court | Missouri Court of Appeals |
Robert A. Horn, James Bandy, Kansas City, for appellant.
William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before KENNEDY, P.J., and LOWENSTEIN and BERREY, JJ.
Following a jury trial, the appellant, Thomas Huff, was convicted of involuntary manslaughter: driving while intoxicated, § 565.024.1(2), RSMo 1986, and assault in the second degree: driving while intoxicated, § 565.060.1(4), RSMo 1986. He was sentenced to five years imprisonment and a $5,000 fine for involuntary manslaughter, and a concurrent one year sentence and $1,000 fine for assault. This appeal challenges: 1) the overruling of Huff's motion for acquittal because of insufficiency of the evidence; 2) the overruling of Huff's motion for acquittal because the state failed its burden of proof; 3) the admittance of certain exhibits into evidence; 4) the failure to give certain jury instructions tendered by Huff; and 5) not allowing defense counsel to cross-examine a state witness via authoritative text.
The evidence favorable to the verdict is as follows: At approximately 1:00 a.m. on April 1, 1988, Patricia Johnston was killed and her sister seriously injured when their vehicle, traveling north on I-435 in Kansas City, struck the rear portion of a tractor-trailer driven by Huff. At the time, Huff's 45-foot flatbed trailer was blocking the two left lanes of northbound I-435, the cab portion of his vehicle being stuck in the grass median.
Johnston had been out drinking with her sister several hours prior to the collision, and her blood alcohol content was .13 percent. A Mr. Thompson, who was traveling behind and to the left of the Johnston vehicle, testified that Johnston made no attempt to slacken speed or take evasive action prior to striking Huff's flatbed.
Two Kansas City police officers, both with training and experience in investigating vehicular homicides, testified for the state. Officers Donovan and Weinberg concluded that Huff made a controlled turn into the median and did not jackknife, as he testified. In other words, Huff became stuck when he attempted a U-turn. The physical evidence supporting this conclusion was 1) the tire tracks in the median were consistent with rolling tires, not skidding tires, 2) Huff's tractor was not damaged, nor was the trailer, as would have been if it had jackknifed, and 3) the vehicle left no skid or scuff marks on the pavement. There was also testimony from Mr. Lees, a tow truck driver who had seen as many as 75 jackknifed trucks, who stated Huff's vehicle did not appear to have jackknifed.
There was testimony that at the time of collision, it had been raining, was foggy and pitch-dark. Three drivers, including Officer Blom, the first officer at the scene, had trouble seeing the flatbed and nearly collided with the trailer. There was also testimony from police witnesses, the tow truck operator, and others that the side of the trailer blocking the two lanes was not illuminated at the time of the accident or immediately thereafter.
An employee of the Regional Crime Laboratory, Mr. Newhouse, examined the side or clearance lights following the collision. He found the bulb and filament of the left-rear clearance light still intact, but concluded the light probably was not operable at the time of collision due to corrosion in and around the bulb. He also found the bulb for the left-center clearance light intact, but again concluded it was probably not in operation at the time of collision. Newhouse testified the filament had received a "cold break," meaning it was broken while the bulb was unlighted. He said it was unlikely the filament had been broken due to the collision or when it was removed from its socket pursuant to examination.
Huff, a professional truck driver, admitted to drinking four or five beers prior to the accident, and an hour and twenty minutes after the accident his blood alcohol content was tested at over .17 percent. He had driven the truck that day and was returning the unit to a spot north of Kansas City when the accident occurred. At the scene Blom noticed an odor of alcohol on Huff's breath, and Officer Donovan testified that Huff was wobbling and staggering, his speech was slurred, and his eyes were bloodshot.
The case was submitted requiring the jury to believe beyond a reasonable doubt Huff operated the truck while legally drunk and caused the death and injury by blocking two of the three lanes with a flatbed which contained no working side or clearance lights, following his attempt to make an improper U-turn. The headlights of the truck were on, as were the taillights on the trailer which was perpendicular to oncoming traffic.
Huff's evidence was as follows: Huff testified he was headed north on I-435 when another vehicle cut in front of him. He swerved his truck to the left, slid, then ended up in the median. He rolled his vehicle back and forth in an attempt to get out of the median which was wet and muddy. His attempt unsuccessful, he began getting out of his vehicle when the Johnston vehicle struck the trailer.
Witness McDowell testified that after the collision, he had an opportunity to walk around the trailer, and he observed that the rear lights and parking lights were on. Huff vigorously cross-examined several witnesses who had originally said the clearance lights were on and then testified differently. He also contested police expert opinion of his turn into the median being deliberate rather than the result of a jackknife. His expert said there had been a jackknife because of loss of maneuver. Officer Donovan also testified that even if Huff's trailer was not illuminated by lights at the time of the accident, the trailer would have still been visible due to the Johnston vehicle's headlights. He stated normal car headlights illuminate for a distance of 400 to 500 feet, and a car traveling 55 mph can come to a complete stop in about 180 feet. Huff contended Johnston should have been able to see the trailer even if there had been no clearance lights on the trailer, and should have been able to come to a complete stop, or at least taken evasive action to have avoided a collision.
Huff first contends error in the trial court's overruling his motion for judgment of acquittal. He reasons the evidence was insufficient to prove the elements of involuntary manslaughter and assault for driving while intoxicated. The state's theory and burden was to prove: 1) Huff was operating the truck; 2) while he was intoxicated; 3) he was "criminally negligent" in a) making an improper U-turn and b) in driving with no clearance lights operating on the side of the flat bed rig; and 4) that the death and injury were a result of his tractor-trailer blocking two lanes of the Interstate Highway.
Huff states the evidence was insufficient to send the case to the jury because: 1) criminal negligence cannot occur when the defendant is not moving, but sitting stuck in the median; 2) Huff was not operating the truck at the time of the collision; 3) he was not making a U-turn; 4) there was evidence the clearance lights were on; and 5) the death and injury were not caused by the acts of Huff, but resulted from the decedent driver's intoxication and failure to keep a lookout. State v. Turner, 623 S.W.2d 4, 6 (Mo. banc 1981).
Both the involuntary manslaughter and assault statutes applicable to this prosecution are class C felonies when committed by an intoxicated driver who operates a motor vehicle with criminal negligence causing the death of any person. State v. Lewis, 735 S.W.2d 183 (Mo.App.1987). "Criminal negligence," as used in the vehicular manslaughter context of § 565.024.1(2), supra, is proved by the conduct of the intoxicated driver which results in a loss of life, and specifically "the failure of the actor to be aware that the conduct involves substantial or unjustifiable risk of the result which follows." State v. Kliegel, 674 S.W.2d 64, 68 (Mo.App.1984). The state here submitted the intoxicated Huff, in getting stuck while making a U-turn with no lights on the side of the flatbed, involved conduct which "amounted to a gross deviation from the standard of care which a person would exercise in the situation." Kliegel, supra, at 67.
1) Huff presents no authority for his first proposition of the vehicular manslaughter statute being applicable only to the conduct involving moving cars, and not applicable to a stationary vehicle. This point is ruled against him. There is nothing in § 565.024.1(2) which requires the intoxicated driver to actually be moving at the time of the criminal negligence, i.e., running a stop light or speeding.
2) There is no merit in the next point which is since Huff's tractor was stuck in the median and had to be towed, he was not "operating" a vehicle. A state's witness testified to getting in the cab to lend assistance to Huff who was behind the wheel just before the crash. Huff admitted that just prior to the crash he had tried to "rock" the truck to get it to move forward. His testimony was he was getting out of the tractor at the time of impact. This point is rejected out of hand. In State v. O'Toole, 673 S.W.2d 25 (Mo. banc 1984), the defendant fell asleep behind the wheel of his...
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