State v. Lewis

• Decision Date: 10 August 1987
• Docket Number: No. 14778,14778
• Citation: 735 S.W.2d 183
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Kevin Howard LEWIS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 183

735 S.W.2d 183

STATE of Missouri, Plaintiff-Respondent, v. Kevin Howard LEWIS, Defendant-Appellant.

No. 14778.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 10, 1987.

James W. Drese, Public Defender, Lake Ozark, for defendant-appellant.

William L. Webster, Atty. Gen., Jeffrey Philip Dix, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HOGAN, Judge.

A jury found defendant Kevin Howard Lewis guilty of two counts of vehicular manslaughter as defined and denounced by § 565.024.1(2), RSMo Supp.1984. His punishment was assessed at 4 1/2 years imprisonment on each count. It was ordered that the sentences be served consecutively. The defendant appeals, contending: 1) that a privileged communication was erroneously received in evidence; 2) that the State should have been compelled to assist him in obtaining the presence of Jeffrey Ogden as a witness, and 3) that hearsay evidence of his guilt was erroneously admitted.

This prosecution grew out of a fatal automobile collision which occurred on Interstate Highway 44 on August 15, 1985. The defendant, who was 18 years of age at the time of trial, was a member of the United States Army Reserve. He lived in Tulsa, Oklahoma, with his wife. He was scheduled for two weeks' active duty at Fort Leonard Wood, and was traveling to Fort Wood with a companion when the accident occurred.

The defendant prepared for active duty by engaging in an evening of drinking with Jeffrey Ogden, a friend who was also a member of the defendant's reserve unit. During the evening preceding the fatal accident, the defendant and Ogden "drank about a fifth of Crown Royal and a twelve pack of Coors Light." The defendant's testimony was that he was "very drunk" when he and Ogden left Tulsa. They left Tulsa about 11:30 p.m., by defendant's rough estimate. Initially Ogden drove and the defendant was a passenger. Ogden's vehicle was a black Ford pickup.

The defendant's account of his trip east to the place of the accident was hazy and indefinite, but the black pickup was observed by several other motorists about 8 a.m. on August 15. Benny Coble, an employee of the State Highway and Transportation Department, was on his way to Rolla. Coble encountered the black pickup a short distance east of Lebanon, in Laclede County.

Coble was driving east about 55 MPH. He looked in his rearview mirror and noticed the black pickup "pretty close to [him] and gaining rapidly." The pickup was being driven erratically; when Coble first saw it, the driver "had two wheels off ... the paved shoulder [and] was attempting to gain control and get back onto the pavement." Believing that the pickup could not pass him without striking him, Coble "kept [his] same speed and pulled off on the shoulder." He estimated the speed of the black pickup at "approximately eighty miles per hour." The pickup was "partly on the shoulder" with Coble when it passed him.

As Coble "topped the hill" just west of the Gasconade River he could see there had been an accident. The pickup was "on its top" on the shoulder southeast of the eastbound lane, and there was a smaller car, still in the eastbound lane, perhaps a hundred feet east of the pickup. A number of vehicles had already stopped in both lanes of the highway, and Coble considered it unnecessary to stop. He did stop at Patrol Headquarters in Rolla, advised the officers that he was a witness, and continued to his destination.

The State also had the evidence of Steven Crane and his father, W.H. Crane. These witnesses were traveling east on I-44, "going to St. Louis to a ballgame." Steven, who was driving, testified that he saw the black pickup shortly before the accident occurred. The witness usually watched his rearview mirror a good deal, and when he first saw the black pickup, it was "real close" to his bumper. Then the driver "kind of backed off" and the witness noticed the driver was "driving kind of erratically." As Crane was watching him, the driver "ran off to the side ... a little bit on the right." Finally, as the pickup started around Crane's vehicle, Crane "had to pull over to the side ... because [the pickup] was over the center line." Crane estimated the speed of the pickup to be 60 to 65 MPH. Shortly thereafter, Crane saw the pickup run off the road onto the shoulder on the southeast side of the eastbound lane, and in Crane's words, "he crashed into the back of the parked car."

"[T]he parked car" was a small blue Ford, occupied by one Krebs and his son. Apparently, the force of the collision killed the occupants of this vehicle instantly. The size of the Krebs' vehicle and the force of the impact was such that the top of the Krebs' automobile had to be "cut loose" so the bodies of the occupants could be removed. Krebs and his son were pronounced dead at the scene and their bodies were removed by the coroner.

While the sufficiency of the evidence has not been directly questioned, a preliminary word or two on this subject is appropriate. Section 565.024.1(2), RSMo Supp.1984, provided, in pertinent part, that:

"1. A person commits the crime of involuntary manslaughter if he: ...

(2) While in an intoxicated condition operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause the death of any person...."

Section 565.002(4) defined "intoxicated condition" to mean "under the influence of alcohol, a controlled substance, or drug, or any combination thereof;" § 565.002(5) defined "operates" as meaning "physically driving or operating or being in actual physical control of a motor vehicle." "Criminal negligence" was defined by § 556.061(6) as having the meaning specified in § 562.016.5, RSMo 1978, which in turn provided that:

"A person 'acts with criminal negligence' or is criminally negligent when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation."

The State thus had the burden to show beyond a reasonable doubt that the defendant was: 1) an intoxicated driver (2) who operated a motor vehicle with criminal negligence (3) to cause the death of another person. State v. Kliegel, 674 S.W.2d 64, 66 (Mo.App.1984). There is no doubt that the defendant was in an intoxicated condition. Section 577.001.2, RSMo Supp.1984, defined "intoxicated condition" as being "under the influence of alcohol, a controlled substance, or drug, or any combination thereof." It was stipulated by the State and counsel for the defendant that defendant's blood alcohol content was .16 percent a short time after the accident occurred. There was some evidence indicating defendant's blood alcohol content was greater than .16 percent when the accident occurred, but a blood alcohol content of .16 percent was sufficient to sustain a conviction under the provisions of § 577.012.1, RSMo Supp.1984--driving with excessive blood alcohol content--and was certainly sufficient to show the defendant was "under the influence" of alcohol.

Further, there can be no doubt that the State's evidence amply supported a finding of criminal negligence. "Criminal negligence" is conduct which amounts to a gross deviation from the standard of care which a reasonable person would exercise in the situation. State v. Kliegel, 674 S.W.2d at 67. In this case, the State's proof was that the black pickup in which the defendant and his companion were riding was being driven east on an interstate thoroughfare at a dangerous rate of speed at a time when the traffic was heavy and the occupants of the pickup were both tired and intoxicated.

Nevertheless the witnesses who saw the accident--Mr. Crane and his father--could not identify the defendant as the driver of the black pickup and it is not surprising that the defendant maintained he was not driving the pickup when it struck the Krebs automobile. An orderly disposition of the appeal requires us to note there was evidence of the defendant's criminal agency, even though the sufficiency of the evidence to sustain the convictions is not directly questioned.

The accident was investigated by two members of the Missouri State Highway Patrol--Corporal James Corsentino and Trooper Kenneth Percival. When Corporal Corsentino arrived at the scene of the accident, he found that both Ogden and the defendant were lying on an embankment close to the pavement. Corsentino did not directly address either man, but, refreshing his recollection from notes made at the time, he recalled conversation between the two occupants of the pickup. Trooper Corsentino testified thus:

"... The exact statement [made] by Lewis was ... excuse me, by Ogden was, 'You were driving weren't you, Kevin, you crazy f-----?' Lewis responded with the following answer, 'Yes, yeah, I fell asleep.' "

Trooper Percival arrived at the scene of the accident 30 to 40 minutes after the fatal collision occurred. Percival first checked the occupants of the pickup and found them lying on the ground near the highway. Their injuries were not life-threatening injuries, so he checked the occupants of the Krebs vehicle. Trooper Percival determined that the occupants of that vehicle were dead. He then made a preliminary check of the occupants of the pickup. The man lying nearest the pickup stated he was Kevin Lewis and that he was the driver. As we read the record, Trooper Percival then advised the defendant of his Miranda rights and the defendant indicated he understood his right to remain silent.

Both Ogden and the defendant were, as we have indicated, removed to the hospital at Fort Wood. At the hospital, Percival interrogated both men. He testified about the interrogation thus:

"Kevin Lewis's [sic] statement, I asked, 'Were you driving the truck?' He said, 'Yeah, cause he kept running off the road.' When I asked, 'Where did you start driving,' and he said 'We were in Missouri.'...