State v. Salas
| Decision Date | 26 May 1994 |
| Docket Number | No. 12644-7-III,12644-7-III |
| Citation | 873 P.2d 578,74 Wn.App. 400 |
| Parties | STATE of Washington, Respondent, v. Efrain (NMI) SALAS, Appellant. |
| Court | Washington Court of Appeals |
Paul J. Wasson, Spokane, for appellant.
John D. Knodell, Prosecutor, Jerald R. Hamley, Deputy Prosecutor, Ephrata, for respondent.
A jury convicted Efrain Salas of vehicular homicide. On appeal he challenges the court's jury instruction on the elements of the crime and the special verdict form used with it, and the sufficiency of the evidence. We reverse and remand for a new trial.
On April 3, 1992, Mr. Salas, Miguel Soto and Humberto Jimenez were driving north on SR 243 in a Dodge. In the intersection where SR 243 joins SR 26, at about 6:30 p.m., the Dodge collided with a Nissan driven by Ginger Lynn. Ms. Lynn died that evening. The police investigation indicated all three men had been drinking, the Dodge hit the Nissan after running a stop sign, and Mr. Salas was the driver. Mr. Salas was arrested and charged with vehicular homicide, RCW 46.61.520. 1 Mr. Soto and Mr. Jimenez were held as material witnesses. A jury trial commenced June 8. The primary issue in dispute was the identity of the driver of the Dodge.
Washington State Patrol Trooper Michael Garland was the first law enforcement officer to arrive at the scene, about 25 minutes after the accident. Ms. Lynn was still partially in her vehicle. Mr. Jimenez was lying on the ground a few feet from the passenger door of the Dodge. Mr. Soto was kneeling near Mr. Jimenez, trying to talk to him, but Mr. Jimenez seemed to be unconscious. Mr. Salas was lying on the ground about 20 feet away from the Dodge. Paramedics were attending the injured occupants of the vehicles.
Trooper Garland tried to ascertain the identities of the three men, but learned only that Mr. Soto's first name was Miguel. All three smelled strongly of intoxicants and Trooper Garland found several empty cans of beer in and around the Dodge, together with a full half case of beer and a partially empty half case of beer in the back seat.
The paramedics transported Ms. Lynn, Mr. Soto and Mr. Jimenez by ambulance to a hospital in Ellensburg. A helicopter arrived a short time later and took Mr. Salas to a hospital in Yakima. Blood samples were taken at the hospitals from the three men. Mr. Salas' blood alcohol concentration was .15. Ms. Lynn died at the hospital from internal injuries she received in the accident. After the three men were examined and their injuries treated, they were released from the hospitals and transported to the Grant County jail.
Mr. Jimenez had the worst injuries: he had cuts and bruises on his head, lip, tongue, jaw, neck and thigh, all on the left side of his body. The cut on his head required stitches. Mr. Soto had a bruise on his chest. Mr. Salas had a bruise on his left elbow and a cut on his left cheekbone. Mr. Jimenez' injuries were consistent with the damage inside the Dodge which would have been caused by the person in the front passenger seat.
Washington State Patrol Trooper Gary McNinch reconstructed the accident and concluded the Nissan was in the intersection, eastbound on SR 26, when the Dodge struck it broadside. At impact, the Dodge was beyond the stop sign and stop line in the northbound lane of SR 243. There were no braking or skid marks from either vehicle. There were no estimates of speed, but the posted speed limit for SR 26 at that location was 55 m.p.h.
The Dodge belonged to Mr. Soto, but was not yet registered to him. Mr. Soto testified he and Mr. Salas drove from Moses Lake to Mattawa to look for work. They were going to meet Mr. Jimenez, who had a possible job lead. Mr. Soto said he drove to Royal City, where they stopped for lunch and each drank one beer. He then let Mr. Salas drive to Mattawa because he did not have a license and did not want to get caught driving. When they got to Mattawa they stopped at a store. Mr. Soto bought a 6-pack of beer, then drove again because he knew where Mr. Jimenez lived. Mr. Jimenez told them there was work on Monday, so they all sat around and drank beer. Then all three of them headed for Moses Lake, with Mr. Salas driving, Mr. Jimenez in the front passenger seat and Mr. Soto in the back seat. Along the way Mr. Salas got stuck in the sand when he stopped the Dodge at the side of the road so they could relieve themselves. A passing motorist pulled them out. Mr. Soto testified that as they approached the SR 26 intersection he did not think Mr. Salas saw the stop sign. He tried to warn him, but it was too late. After the accident, Mr. Soto said he pushed the passenger door open to get out and Mr. Jimenez fell halfway out. Mr. Soto pushed him down, and pulled him out as he got out. On cross examination Mr. Soto acknowledged he drove from Royal City to Mattawa, but maintained Mr. Salas was driving at the time of the accident.
Mr. Jimenez also testified Mr. Salas was driving when they left Mattawa for Moses Lake. He said he was sitting in the passenger seat because he felt sick and did not want to sit in the back seat. According to Mr. Jimenez, Mr. Salas continued to drive after they were pulled out of the sand. After that, however, Mr. Jimenez fell asleep, or passed out, from all the alcohol he had consumed. He did not remember anything else until he was in the hospital.
Andre Pieratt testified he was driving north on SR 243 when the Dodge pulled onto the highway in front of him. He said the vehicle was being driven erratically and swerving into the oncoming lane. After the Dodge nearly collided head on with a southbound vehicle, Mr. Pieratt pulled into a convenience store and used the phone to call 911. He reported the incident, saying he believed the driver was drunk. It was about 6:05 p.m. He continued north and after just a few miles passed the Dodge, which had pulled off the road in the sand near Wanapum Village. At the intersection of SR 243 and SR 26, Mr. Pieratt waited about 5 minutes for the police; when no one came, he drove into George. There, he made a second call to the State Patrol. He recalled seeing three people in the car, but could not identify Mr. Salas as the driver.
Dale Bye, who lives in Wanapum Village, pulled the Dodge out of the sand where it was stuck about 200 to 300 yards from his house. Neither he nor his wife, however, saw who drove the vehicle as he pulled it free or when it again entered the highway.
According to the statements Mr. Salas gave the police, Mr. Soto and Mr. Jimenez picked him up as he was hitchhiking back to Moses Lake. He recognized Mr. Soto, but did not really know him. They asked him to drive. He did so, although he did not want to because he had outstanding tickets. After he got stuck in the sand, he said they would not let him drive anymore. Mr. Jimenez took over as driver, Mr. Soto got into the back seat and he got into the front passenger seat. Mr. Salas said he did not remember how they got into the accident, but he was thrown from the car and then woke up, or came to.
The State rested. Mr. Salas presented no evidence and did not testify.
RCW 9.94A.320 makes vehicular homicide committed while under the influence of intoxicants or drugs or in a reckless manner a level 8 offense, and vehicular homicide committed with disregard for the safety of others a level 7 offense. To address the different offense levels applicable to the crime depending on the way it is committed, the court gave a special "to convict" instruction and verdict form. There were no exceptions to the jury instructions. The jury found Mr. Salas guilty on the basis of intoxication or reckless driving. The court sentenced him to 41 months, the top of the standard range for the level 8 offense.
We first consider whether the court erred by giving instruction 5, together with the special verdict form. Because the State charged Mr. Salas with all three alternate ways to commit vehicular homicide, it was required to produce substantial evidence of each. It did so. The jury was not required to be unanimous as to any particular alternative, but we know from the special verdict form 2 that the jury based its finding of guilt on either or both of the first two alternatives: he drove while under the influence of alcohol or in a reckless manner. We don't know which alternative the jury relied on, and therein lies the problem.
A literal reading of the vehicular homicide statute, RCW 46.61.520, would not require that the effect of intoxicants on the defendant be a proximate cause of the injury and resulting death. To avoid a "strict liability" result, however, the Supreme Court and the Courts of Appeal have added an additional essential element to the offense: there must be a causal connection between intoxication and injury. State v. MacMaster, 113 Wash.2d 226, 231, 778 P.2d 1037 (1989).
MacMaster, at 235, 778 P.2d 1037, reversed a vehicular homicide conviction because the jury instruction 3only required the defendant's driving to have been the cause of the accident. In order to convict, the jury merely had to find that, coincidentally, defendant was also under the influence. This is not a proper statement of the law. For defendant to be guilty of vehicular homicide, the condition of impairment due to alcohol must have been a proximate cause of the fatal accident.
(Italics ours.)
The extra nonstatutory element was missing in this case. The jury was instructed:
To convict the defendant of the crime of vehicular homicide, each of the following elements of the crime must be proved beyond a reasonable doubt:
1. That on or about the 3rd day of April, 1992, the defendant drove a vehicle;
2. That the defendant drove the vehicle:
a. while under the influence of intoxicating liquor or any drug, or
b. in a reckless manner, or
c. with disregard for the safety of others; and
3. The defendant's driving proximately caused injury to another person; and
4. Said injury proximately...
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