State v. Martin, 16580

• Decision Date: 06 December 1989
• Docket Number: No. 16580,16580
• Citation: 449 N.W.2d 29
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Darrell G. MARTIN, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 29

449 N.W.2d 29

STATE of South Dakota, Plaintiff and Appellee, v. Darrell G. MARTIN, Defendant and Appellant.

No. 16580.

Supreme Court of South Dakota.

Argued Oct. 17, 1989.

Decided Dec. 6, 1989.

Jeff Masten, Lincoln County State's Atty., Canton, (Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief), for plaintiff and appellee.

Paul D. Stickney, Sioux Falls, for defendant and appellant.

MILLER, Justice.

In this appeal, we affirm convictions on four counts of second-degree manslaughter arising out of a motor vehicle collision and hold that (1) there was sufficient evidence to support the convictions; (2) the trial court properly instructed the jury on the statutory rules of the road; and (3) the motion for change of venue was properly denied.

FACTS

During the late night hours of August 14, 1988, Kelly Kortan, her young daughters, Ashli and Jennifer, and her niece, Nicole Sayler, died. They had been passengers in a vehicle driven by Kelly's husband, Darrell Kortan, which struck a stalled garbage truck on Interstate 29 in Lincoln County, South Dakota. Darrell and another daughter, Stacie, survived the crash.

Earlier that day defendant/appellant, Darrell G. Martin, left Sioux Falls, South Dakota, traveling south on I-29. His vehicle broke down near the Vermillion, South Dakota, exit. He slept for awhile in the ditch but awoke that evening and hitched a ride north to Beresford, South Dakota. Near a local truck stop he "hot-wired" and stole a garbage truck. Although he was having some difficulties with the truck, he drove it onto I-29 and proceeded north. On various occasions the truck stalled, ¹ but he was able to get it restarted. Ultimately, when the truck was again stalled, he noted that there was a fire in the rear, and being afraid that the gas tanks might explode, he grabbed his belongings and left the truck, which was protruding over eight feet into the twelve-foot traffic lane. Testimony indicated that at the time he left the truck its left rear taillight was on and the brakes were burning.

Martin testified that he observed the top of a building over a shelterbelt on the same side of the road as the truck and decided to get help. ² (This testimony contradicted his previous statement to the sheriff that his only concern was to "get away" and that he did not want to be seen.) On the other side of the road was a large, occupied farm with a yard light.

Shortly thereafter, the vehicle driven by Darrell Kortan, hit the rear of the garbage truck. Kortan testified that his cruise control was set at 65 mph. He testified that he "glanced" at his wife and then when he looked back at the highway the only thing he could see was the garbage truck looming immediately in front of him. ³

Martin was convicted by the jury on four counts of manslaughter in the second-degree. This appeal followed.

ISSUES

I

WHETHER THE EVIDENCE WAS SUFFICIENT TO SUSTAIN A VERDICT OF GUILTY.

Martin contends that no evidence was introduced at trial showing that he intentionally, recklessly, or negligently left the truck on the highway. We first reject any argument made which would require the State to show that Martin had any specific intent to kill when he left the garbage truck on the highway. SDCL 22-16-20, under which Martin was charged, states:

Any reckless killing of one human being by the act or procurement of another which, under the provisions of this chapter, is neither murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree. Manslaughter in the second degree is a Class 4 felony. (Emphasis added.)

A killing under this statute must be "reckless." Reckless is defined at SDCL 22-1-2(1)(d):

The words 'reckless, recklessly' and all derivatives thereof, import a conscious and unjustifiable disregard of a substantial risk that the offender's conduct may cause a certain result or may be of a certain nature. A person is reckless with respect to circumstances when he consciously and unjustifiably disregards a substantial risk that such circumstances may exist[.]

Neither SDCL 22-16-20 nor SDCL 22-1-2(1)(d) require any specific intent as an element of second-degree manslaughter.

In State v. Sabers, 442 N.W.2d 259, 266 (S.D.1989), we stated that:

In determining the sufficiency of the evidence on appeal, the question is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In making that determination, the Court will accept that evidence, and the most favorable inferences drawn therefrom, which will support the verdict. This determination " ' "may depend upon the difference between pure speculation and legitimate inference from proven facts." ' "

State v. Sitting Crow, 428 N.W.2d 268, 270 (S.D.1988) (citations omitted).

Martin's main attack on the sufficiency of the evidence is that there was no "reckless" killing. In addition, he argues that there was no evidence indicating that he "abandoned" the garbage truck. We disagree.

State's evidence showed that Martin had hot-wired a garbage truck, which did not belong to him and drove it on an interstate highway. He continued to attempt to drive the truck when it was obvious that it was not operating properly. When the truck finally came to rest, it was parked so that it protruded in excess of eight feet into the driving lane. He did not stay with the vehicle in an attempt to warn other motorists. Further, depending on which of his versions is to be believed, he either (1) went into a corn field and hid, or (2) rather than going to the nearest, obviously inhabited dwelling to seek assistance, Martin went to a dark, uninhabited building. ⁴ In doing so, he left a large garbage truck, with one taillight functioning, occupying two-thirds of the main lane of traffic, in the dark, on an interstate highway, with nothing in its immediate area to warn the traveling public of its presence. (We observe from photographs in evidence that the Kortan vehicle was virtually decapitated by the collision but the garbage truck does not show visual signs of damage. This evidence is further proof of the substantial risk of danger a stationary garbage truck presents on the road.)

The evidence was sufficient for the jury to determine that Martin disregarded the substantial risk the presence of the garbage truck created by leaving it improperly parked and improperly lit on the interstate highway and by abandoning the scene. Interestingly, it is clear from the evidence that Martin made no contact with anyone, prior to his arrest, regarding the truck on the interstate. In fact, after he left the truck and heard an explosion in the same area, he did not go back to the truck to see if anyone had been injured. He testified that he merely continued to walk down the road. These facts support the conclusion that he "abandoned" the truck.

The evidence was therefore sufficient for the jury to determine that Martin's acts were "reckless" as contemplated by the statute. ⁵ SDCL 22-1-2(1)(d); SDCL 22-16-20.

II

WHETHER THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON A

MOTORIST'S DUTY WHILE STOPPING ON A PUBLIC HIGHWAY.

Martin contends that the trial court erred in giving three instructions regarding certain statutory rules of the road involving parked and stopped vehicles:

INSTRUCTION NO. 26

The jury is instructed that a statute of this state declares that in no event shall any person park or leave standing any vehicle, whether attended or unattended, upon any highway unless a clear or unobstructed width of not less than twenty feet upon the main-traveled portion of such highway opposite such standing vehicle shall be left for free passage of other vehicles thereon, nor unless a clear view of such vehicle may be obtained from a distance of two hundred feet in each direction upon such highway.

To find beyond a reasonable doubt that the defendant violated this statute, you may consider such violation along with all other evidence, facts and circumstances in determining whether or not the conduct and acts of the defendant were reckless as that term has hereinbefore been defined by this court.

INSTRUCTION NO. 27

The jury is instructed that whenever a vehicle is parked or stopped upon a highway, whether attended or unattended during the period from a half hour after sunset to a half hour before sunrise, there shall be displayed upon such vehicle one or more lamps projecting a white or amber light visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle and projecting a red light visible under like conditions from a distance of five hundred feet to the rear.

If you find beyond a reasonable doubt that the defendant violated this statute, you may consider such violation along with all other evidence, facts and circumstances in determining whether or not conduct and acts of the defendant were reckless as has hereinbefore been defined by this court.

INSTRUCTION NO. 28

The jury is instructed that a statute of this state requires that every operator of a motor truck shall immediately, upon bringing his vehicle to a stop upon the traveled portion of any public highway at any time after sunset and before sunrise, or when stopping at any time after sunrise and before sunset if such vehicle is likely to remain upon the traveled portion of the highway after sunset and before sunrise, to place three flares or red electric lights or red reflectors or emergency reflective triangles on the roadway. If traffic on the roadway moves upon a one-way roadway or divided highway, one of these devises shall be placed at least one hundred feet to the rear and one at least two hundred feet to the rear, and one along side the stopped vehicle. The flares, red electric lights, red reflectors or emergency reflective triangles shall be of such type of construction as will furnish continuous light for a period of sunset to sunrise at...