State v. Smith
| Decision Date | 07 January 1982 |
| Docket Number | No. 3951-III-0,3951-III-0 |
| Citation | 640 P.2d 25,31 Wn.App. 226 |
| Parties | STATE of Washington, Respondent, v. Michael J. SMITH, Appellant. |
| Court | Washington Court of Appeals |
Greg Lawless, Lawless & Armstrong, Richland, for appellant.
Curtis Ludwig, Pros. Atty., Prosser, for respondent.
The defendant Michael Smith appeals his conviction of manslaughter in the first degree. On December 1, 1979, the defendant and several of his co-workers were in a cocktail lounge. Bobby Wright, the victim, and Joe Scanlon, a codefendant, were in a fight and the victim was beaten unconscious by Scanlon. Two witnesses saw the defendant dump the contents of an ashtray on the victim as he lay on the floor, saying, "That's what you deserve, you son-of-a-bitch." Thereafter the defendant slung the victim over his shoulder and carried him out of the cocktail lounge. A witness testified he observed a man walk out of the restaurant and heave what he had on his shoulder onto the asphalt.
According to a doctor's testimony, there were multiple fractures on the back of the bottom of the skull. The damage created a ring of fractures which would arise if a person were dropped from an extreme height or an 180-190 pound weight (that of the victim) were crashed on the skull. Thus, the whole bottom of the skull caves in. It took a very significant force to produce the bruises and fractures. He also testified that the head striking the wooden walls of the bar could not produce this trauma, but it would be consistent with a person being heaved off of someone's shoulder onto an asphalt surface. It was the doctor's conclusion the victim died from head injuries sustained when his head struck the asphalt surface.
The defendant testified he had a trick knee which gave out and caused him to drop the victim. His orthopedic surgeon testified the defendant had a history of knee problems and that the weight of the victim's body could have caused the knee to collapse. The trial court denied defendant's motion to dismiss for insufficiency of the evidence and defendant was convicted by a jury of manslaughter in the first degree.
Defendant contends first there is insufficient evidence to support the conviction because virtually no evidence existed to show recklessness. RCW 9A.32.060 provides:
(1) A person is guilty of manslaughter in the first degree when:
(a) He recklessly causes the death of another person; ...
(Italics ours.) RCW 9A.08.010(1)(c) provides:
(c) Recklessness. A person is reckless or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation.
The defendant properly cites State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980), quoting Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), for the correct test in determining the sufficiency of the evidence: "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Green further explained that this inquiry does not require the reviewing court to determine whether it believes the evidence at trial established guilt beyond a reasonable doubt but rather whether any rational trier of fact could be so convinced.
Here, there was the eyewitness testimony of two people that the defendant dumped the contents of an ashtray on the unconscious victim. That evidence, together with the testimony of Charles Smith, who saw the defendant heave the victim onto the asphalt, and the doctor's testimony, was sufficient to support a belief that the defendant acted recklessly. There was evidence that the defendant did not trip, stumble or fall. Whether the defendant's knee actually went out, causing him to drop the victim, was a factual question for the jury. Judgment as to the credibility of witnesses and the weight of evidence is the exclusive function of the jury. State v. Braxton, 20 Wash.App. 489, 491, 580 P.2d 1116 (1978); State v. Blum, 17 Wash.App 37, 561 P.2d 226 (1977). There was sufficient evidence to support the conviction.
The defendant next assigns error to the giving of jury instructions Nos. 24 and 25, which state:
A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and the disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation.
Recklessness also is established if a person acts intentionally or knowingly.
A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and the failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation.
Criminal negligence is also established if a person acts intentionally or knowingly or recklessly.
The defendant argues that these instructions were confusing and misleading to the jury because they are so similar and that because they were critical to determining the degree of culpability, a new trial should be granted. These instructions were taken from WPIC 10.03 and 10.04. They contain the statutory language used in the definitions of "Recklessness" and "Criminal negligence" found at RCW 9A.08.010(1)(c), (d), and (2). The court not only may, but should, use the language of the statute in instructing the jury where the law governing the case is expressed in the statute. State v. Hardwick, 74 Wash.2d 828, 830,...
To continue reading
Request your trial
-
Quinn v. Cherry Lane Auto Plaza, Inc.
..."Judgment as to the credibility of witnesses and the weight of the evidence is the exclusive function of the jury." State v. Smith, 31 Wash.App. 226, 228, 640 P.2d 25 (1982). ¶ 17 It is one thing for an appellate court to review whether sufficient evidence supports a trial court's factual d......
-
State v. Barreto
...... weigh the evidence. In determining whether the evidence is a. scintilla only, the court cannot weigh the evidence. Judgment. as to the credibility of witnesses and the weight of evidence. is the exclusive function of the jury. State v. Smith, 31 Wn.App. 226, 228, 640 P.2d 25 (1982). . . Assuming. the State argues that Alberto Barreto needed to personally. testify in order to create a question of consent and impose a. duty on the State to establish nonconsent, we disagree. Such. a rule ......
-
State v. Barreto
...Judgment as to the credibility of witnesses and the weight of evidence is the exclusive function of the jury. State v. Smith, 31 Wn. App. 226, 228, 640 P.2d 25 (1982). Assuming the State argues that Alberto Barreto needed to personally testify in order to create a question of consent and im......
-
James, Matter of
...... Atty., Yakima, for respondent. PER CURIAM. This personal restraint petition questions the authority of the State to renege on a plea bargain when the defendant, after pleading guilty pursuant to that bargain, allegedly commits additional misdemeanors. We hold ...denied, 385 U.S. 96, 87 S.Ct. 331, 17 L.Ed.2d 196 (1966); Scruggs v. Rhay, 70 Wash.2d 755, 425 P.2d 364 (1967); Hein v. Smith, 35 Wash.2d 688, 215 P.2d 403 (1950), cert. denied, 340 U.S. 837, 71 S.Ct. 22, 95 L.Ed. 614 (1950); White v. Rhay, 64 Wash.2d 15, 390 P.2d 535 ......