State v. Pelawa

• Decision Date: 16 February 1999
• Docket Number: No. C9-98-596,C9-98-596
• Citation: 590 N.W.2d 142
• Parties: STATE of Minnesota, Respondent, v. Joseph David PELAWA, Appellant.
• Court: Minnesota Court of Appeals

Page 142

590 N.W.2d 142

STATE of Minnesota, Respondent, v. Joseph David PELAWA, Appellant.

No. C9-98-596.

Court of Appeals of Minnesota.

Feb. 16, 1999

.

Review Denied April 28, 1999.

Syllabus by the Court

1. Evidence that a northbound car crossed the southbound lane onto the southbound shoulder, returned to the southbound lane, and collided with a southbound car, killing two passengers, is sufficient to permit jurors to find the driver of the northbound car guilty of causing the death of human beings by operating a motor vehicle in a grossly negligent manner.

2. Where other evidence is sufficient to convict a defendant of causing the death of human beings by operating a motor vehicle in a grossly negligent manner, but charges of causing the death of human beings by driving a motor vehicle in a negligent manner while under the influence of alcohol have been dismissed, a trial court does not abuse its discretion in failing to order a mistrial because the jury heard evidence that defendant's blood alcohol concentration was over .04.

3. Where evidence is sufficient to convict a defendant of causing the death of 4. A defendant is not entitled to a new trial where alleged prosecutorial misconduct did not play a substantial part in causing the jury to convict.

human beings by operating a motor vehicle in a grossly negligent manner and there is no rational basis for the jury to acquit on that offense and convict on a lesser charge of careless driving, it is not an abuse of discretion to deny a jury instruction on the elements of careless driving.

5. A defendant is not entitled to a new trial where there is no reasonable probability that, but for the defense counsel's alleged unprofessional errors, the result would have been different.

6. There is no abuse of discretion in denying a Schwartz hearing when there is no prima facie case of jury misconduct.

7. Imposing sentences within the presumptive guidelines range for harm to two crime victims does not unfairly exaggerate the criminality of appellant's conduct.

Michael A. Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, St. Paul, Timothy R. Faver, Beltrami County Attorney, Bemidji, for respondent.

Douglas W. Thomson, Lisa Lodin Peralta, St. Paul, for appellant.

Considered and decided by TOUSSAINT, Chief Judge, HARTEN, Judge, and SHUMAKER, Judge.

OPINION

HARTEN, Judge.

Appellant was tried on four counts of criminal vehicular homicide. His motion for a directed verdict was granted as to the two counts of criminal vehicular homicide by negligent operation of a vehicle while under the influence of alcohol, but the jury convicted him on two counts of criminal vehicular homicide by grossly negligent operation of a vehicle. He was sentenced on each count. Appellant unsuccessfully moved for acquittal (or in the alternative a new trial) and for a Schwartz hearing. He appeals from the judgment of conviction, the denial of his motion for a Schwartz hearing, and the sentences. Because the evidence was sufficient to support the conviction and we see no abuse of discretion in the denial of appellant's motions, we affirm.

FACTS

Appellant Joseph Pelawa was driving a car northbound on a highway in Beltrami County on July 7, 1996. Appellant crossed the center line into the southbound lane, then crossed the southbound lane onto its shoulder, then returned into the southbound lane, and collided with a southbound car driven by John King, whose daughter, cousin, and 11-month-old grandson were passengers. The cousin and the grandson died as a result of the accident.

The accident occurred about 2 a.m. on a clear, dry, straight road; visibility was unimpeded. Blood tests administered at a hospital after the accident revealed that King had a blood alcohol concentration (BAC) of 0.10 and appellant had a BAC of .08.

Appellant was charged with two counts of criminal vehicular homicide in violation of Minn.Stat. § 609.21, subd. 1(1) (1996) (causing the death of a human being by operating a motor vehicle in a grossly negligent manner) and two counts of criminal vehicular homicide in violation of Minn.Stat. § 609.21, subd. 1(2) (1996) (causing the death of a human being by operating a motor vehicle in a negligent manner while under the influence of alcohol). His motion to dismiss for lack of probable cause was denied and the matter proceeded to trial on all four counts. The district court dismissed the counts of causing death by operating a motor vehicle in a negligent manner while under the influence of alcohol pursuant to appellant's motion for a directed verdict after the state rested its case. The jury found appellant guilty of the remaining two counts and the district court sentenced him on each count. This appeal followed.

ISSUES

1. Was the evidence sufficient to prove appellant's gross negligence beyond a reasonable doubt?

2. Should a mistrial on the gross negligence charges have been declared because the jury had received evidence of appellant's blood alcohol concentration prior to the dismissal of charges of operating a vehicle in a negligent manner while under the influence of alcohol?

3. Should the jury have been instructed on careless driving as a lesser included offense?

4. Was there prosecutorial misconduct sufficient to warrant a new trial?

5. Was appellant denied effective assistance of counsel?

6. Was appellant entitled to a Schwartz hearing?

7. Does appellant's sentence unfairly exaggerate the criminality of his conduct?

ANALYSIS

1. Sufficiency of the Evidence.

Where there is a challenge to the sufficiency of the evidence, our review on appeal is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). It is undisputed that appellant's car, traveling north, first crossed the center line into the southbound lane, then continued across that lane onto the southbound shoulder, returned into the southbound lane, and collided with the southbound car in which the victims were traveling. The issue is whether this evidence, viewed in the light most favorable to the verdict, was sufficient to permit the jury to find appellant guilty of causing the death of human beings by operating a motor vehicle in a grossly negligent manner in violation of Minn.Stat. § 609.21, subd. 1(1), (1996).

Appellant contends that while driving in the opposing traffic lane may have been ordinary negligence, it was not gross negligence. But,

[g]ross negligence does not require willful and wanton disregard, or reckless conduct. * * * A sufficient degree of inattention to the road could constitute a lack of "slight care," that is gross negligence.

State v. Hegstrom, 543 N.W.2d 698, 703 (Minn.App.1996) (citation omitted), review denied (Minn. Apr. 16, 1996). Both crossing the center line and the lane of opposing traffic and driving in the lane of opposing traffic show a degree of "inattention to the road" sufficient to meet the gross negligence standard.

To argue that he is not guilty of gross negligence, appellant relies on State v. Miller, 471 N.W.2d 380 (Minn.App.1991). Miller held that while a truck driver's failure to inspect and adjust the brakes amounted to ordinary negligence, additional "bad driving conduct" would be necessary to support criminal gross negligence. Id. at 383. Appellant reads Miller to support his claim that because appellant did not fail to inspect and maintain his vehicle, his "bad driving conduct" cannot alone support criminal gross negligence. But Miller holds only that failure to inspect and maintain brakes cannot alone support criminal gross negligence; it does not hold that criminal gross negligence requires failure to inspect brakes or otherwise properly maintain a vehicle. See State v. Tinklenberg, 292 Minn. 271, 194 N.W.2d 590 (1972) (defendant's excessive speed, inattention, and lack of control over vehicle supported gross negligence); see also State v. Shatto, 285 N.W.2d 492 (Minn.1979); State v. Iten, 401 N.W.2d 127 (Minn.App.1987) (both finding gross negligence where bad driving conduct was coupled with failure to maintain vehicle).

Appellant relies on State v. Brehmer, 281 Minn. 156, 160 N.W.2d 669 (1968), and State v. Ewing, 250 Minn. 436, 84 N.W.2d 904 (1957) (both finding gross negligence when the driver was intoxicated), to argue that because he was not intoxicated, he cannot be convicted of gross negligence. Again, we disagree. The cases do not hold that intoxication is essential to a finding of gross negligence. Neither the fact that appellant did not fail to inspect and maintain his vehicle nor the fact that he was not intoxicated precludes the jury's finding of gross negligence, which is readily supported by the evidence when viewed in the light most favorable to the verdict. ¹

2. Failure to Declare a Mistrial and Denial of Motion for a New Trial.

Failure to declare a mistrial sua sponte and denial of a motion for a new trial on evidentiary grounds are reviewed under an abuse of discretion standard. See State v. Morgan, 477 N.W.2d 527, 531 (Minn.App.1991) ("[t]he trial court did not abuse its discretion by failing to sua sponte declare a mistrial, or order a new trial on post-verdict motion * * * "), review denied (Minn. Jan. 17, 1992).

Appellant argues that when the court directed a verdict dismissing the counts of causing death by operating a motor vehicle negligently while under the influence of alcohol, it should have either declared a mistrial sua sponte on the ground that the jury had already heard evidence of appellant's .08 BAC or granted appellant's motion for a new trial on that basis. However, Minn.Stat. § 169.121, subd. 2 (1996) provides that:

(a) Upon the trial of any prosecution arising out of acts alleged to have been committed by any person arrested for driving, operating, or being in physical...