State v. Kenyon

• Decision Date: 31 March 1994
• Docket Number: No. 60329-4,60329-4
• Citation: 123 Wn.2d 720,871 P.2d 144
• Parties: The STATE of Washington, Respondent, v. Jason Lawrence KENYON, Petitioner.
• Court: Washington Supreme Court

Page 720

123 Wn.2d 720

871 P.2d 144

The STATE of Washington, Respondent, v. Jason Lawrence KENYON, Petitioner.

No. 60329-4.

Supreme Court of Washington En Banc.

March 31, 1994.

Thomas E. Doyle and Robert M. Quillian, Olympia, for petitioner.

Gary P. Burleson, Pros. Atty. and Amber L. Finlay, Deputy, for respondent.

DOLLIVER, Justice.

Jason L. Kenyon petitioned this court to review the Court of Appeals decision affirming his convictions for vehicular homicide and vehicular assault. The Court of Appeals assumed instruction 10, which permitted the jury to infer Kenyon drove in a reckless manner from the fact that he exceeded the speed limit, was unconstitutional but held the error was harmless. See State v. Kenyon, noted at 68 Wn.App. 1065 (1993). In the companion case of State v. Hanna, 123 Wash.2d 704, 871 P.2d 135 (1994), cause 60308-1, we held the constitutionality of an inference must be assessed in light of the facts adduced at trial. Therefore, although Kenyon challenges the Court of Appeals harmless error analysis, we address whether the facts in this case support the inference to the degree required by due process. Because the record establishes such support, we affirm.

On March 14, 1989, at approximately 7 p.m., Jason Kenyon was driving his 1969 Chevrolet Nova up Hillcrest Street in Shelton, Washington. His friend, Wade R. Jagnow, was in the passenger seat. It was raining, and the road conditions were slippery and wet. The Nova had three different-sized tires. The left rear tire and the right front tire were overinflated. The right rear tire was flat and the tread on the left front tire was at the limit for lawfulness. Kenyon and Jagnow were aware of the flat tire and were driving to a gas station located on Hillcrest.

Steve Holt, an eyewitness, testified that as he was driving downhill on Hillcrest he saw the defendant's Nova coming up the hill "sashaying all over the road", accelerating and then slowing to regain control. Kenyon stated that as he rounded a corner on the hill, his car began fishtailing. He slowed to regain control, but then accelerated again, started to slide, and narrowly missed Holt's truck. Kenyon tried to steer into the spin, but overcompensated, and the car spun out of control and collided with a mini van, occupied by William and Sheila Rogers, which was coming downhill.

The posted speed limit on Hillcrest is 30 m.p.h. Various witnesses estimated Kenyon's speed prior to the accident. Holt estimated Kenyon was traveling between 50 and 60 m.p.h. but later stated he could have been traveling as slow as 43 m.p.h. The State's expert, Trooper Steven M. Davis, estimated Kenyon's speed at 38-to-59 m.p.h. Kenyon's expert, Ed Wells, opined Kenyon was traveling between 43 and 55 m.p.h. At a post-accident interview with the State Patrol, Kenyon estimated he was traveling 50 m.p.h. when he first slid out. At trial, Kenyon stated he was driving 35-to-40 m.p.h.

As a result of the impact, Jagnow was thrown from the Nova and killed. The Rogers both sustained serious injuries, and Kenyon suffered a broken neck.

Kenyon was charged with vehicular homicide and vehicular assault in violation of RCW 46.61.520 and RCW 46.61.522. To convict on the vehicular homicide charge the jury could find either that Kenyon drove in a reckless manner or that he drove with disregard for the safety of others. The jury had to find Kenyon drove in a reckless manner to convict on the vehicular assault charge. Instruction 10 allowed the jury to infer reckless driving from excess speed.

A person who drives in excess of the maximum lawful speed at the point of operation may be inferred to have driven in a reckless manner.

This inference is not binding upon you, and it is for you to determine what weight, if any, such inference is to be given.

Instruction 10. See WPIC 95.03.

The jury convicted Kenyon on both counts, and the convictions were affirmed on appeal. This court granted Kenyon's petition for review, 121 Wash.2d 1028, 856 P.2d 383 (1993).

The issue is whether the inference contained in instruction 10 violated Kenyon's right to due process. In his brief to the Court of Appeals, Kenyon contended instruction 10 violated due process under the state and federal constitutions. Kenyon, however, did not address the six non-exclusive factors set forth in State v. Gunwall, 106 Wash.2d 54, 58, 720 P.2d 808 (1986) necessary to adequately raise his claim under Const. art. 1, § 3. Therefore, we review the constitutionality of instruction 10 solely under the federal due process clause.

We refer to our discussion in State v. Hanna regarding the standard for reviewing whether inference instructions meet the requirements of due process. As in Hanna, the inference in instruction 10 is only part of the prosecution's proof supporting the element of recklessness. See County Court of Ulster Cy. v. Allen, 442 U.S. 140, 165, 167, 99 S.Ct. 2213, 2229, 2230, 60 L.Ed.2d 777 (1979). The State introduced evidence of Kenyon's driving, the condition of the ...