State v. Storey

• Decision Date: 08 December 1989
• Docket Number: No. 18939,18939
• Parties: STATE of West Virginia v. Daniel Merritt STOREY.
• Court: West Virginia Supreme Court

Page 563

387 S.E.2d 563

182 W.Va. 328

STATE of West Virginia v. Daniel Merritt STOREY.

No. 18939.

Supreme Court of Appeals of West Virginia.

Dec. 8, 1989.

Syllabus by the Court

1. "Our negligent homicide statute, W.Va.Code, 17C-5-1, requires the driving of '[a] vehicle in reckless disregard of the safety of others,' and this means that more than ordinary negligence is required. It is compatible with the involuntary manslaughter standard set in State v. Lawson, 128 W.Va. 136, 36 S.E.2d 26 (1945)." Syllabus point 2, State v. Vollmer, 163 W.Va. 711, 259 S.E.2d 837 (1979).

2. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syllabus point 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

3. " 'The true test as to whether a juror is qualified to serve on the panel is whether without bias or prejudice he can render a verdict solely on the evidence under the instructions of the court.' Syllabus Point 7, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982); Syllabus Point 3, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981); Syllabus Point 1, State v. Kilpatrick, 158 W.Va. 289, 210 S.E.2d 480 (1974)." Syllabus point 2, State v. White, 171 W.Va. 658, 301 S.E.2d 615 (1983).

T. Timothy DiPiero and Lonnie C. Simmons, DiTrapano & Jackson, Charleston, for Daniel Merritt Storey.

C. Terry Owen and Jeffrey L. Hall, Charleston, for the State.

PER CURIAM:

The defendant in this proceeding, Daniel Merritt Storey, was sentenced to six months and one day in the Nicholas County jail for negligent homicide. On appeal, he claims that there was insufficient evidence to support the conviction, that the trial court erred in giving two of the State's instructions, and that the court erred in refusing to disqualify several prospective jurors for cause. After reviewing the record, this Court finds that the defendant's assertions are without merit and affirms the judgment of the circuit court.

On August 17, 1986, Melinda K. White, who was driving north on a two-lane road, attempted to turn left across the road at an intersection. The intersection was at the bottom of a hill a short distance from where the road which she was trying to cross curved. At the time, the defendant, who was a professional truck driver, and who was also driving north, was attempting to pass a string of four or five vehicles which were on the road behind Ms. White. The defendant did not see Ms. White's turning vehicle until shortly before he arrived at the intersection, and when he did see her, he was unable to stop or to end his passing maneuver and return to the proper traffic lane. His truck consequently collided with Ms. White's vehicle. She was killed, and her three passengers were injured.

The defendant was subsequently indicted and tried for negligent homicide. During trial the State took the position that he had acted in reckless disregard for the safety of others in attempting to pass a line of traffic while going down a hill when his view of the road at the bottom of the hill was at least partially obstructed by a curve and when there was some indication that there was an intersection ahead.

Evidence adduced during trial showed that the accident occurred in an area where the road had been newly paved. According to the State Trooper who investigated the accident: "It was brand new pavement, real black in color. It was very obvious that it was brand new." Portions of the road were not marked with normal, double, no-passing lines. Instead, the center of the newly paved section was marked by a single, dotted line of yellow tape. ¹ One hundred and fifty-four feet from the intersection where the collision occurred, however, the new pavement ended and a double, yellow, no-passing line began.

There was also evidence that there were signs before the intersection where the collision occurred indicating that there was a turn-off or intersection a short distance ahead. For instance, some distance away from the intersection there was a sign indicating "Gas and food one-half mile." About a tenth of a mile from the intersection was a sign that said "Big Ditch Lake," with an arrow pointing right. Approximately 154 feet before the intersection was a sign stating "Birch River Road and Cowen" with arrows pointing left and right.

At the conclusion of the trial, a jury found that the defendant guilty of negligent homicide.

On appeal, the defendant's first contention is that the trial court erred in refusing to grant his motion for acquittal based upon insufficiency of the evidence. He essentially claims that the evidence failed to show that he acted in such a reckless or wanton manner as to warrant the imposition of a criminal sanction.

The test of when evidence is insufficient to support a verdict of guilty in a criminal case is set forth in syllabus point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), as follows:

In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.

In State v. Vollmer, 163 W.Va. 711, 259 S.E.2d 837 (1979), this Court indicated that West Virginia's negligent homicide and involuntary manslaughter provisions involve the same questions when a homicide results from the operation of a motor vehicle. When there is such a homicide, the State may elect to proceed under either a negligent homicide or an involuntary manslaughter theory. The Court also indicated that the test of recklessness required under either theory is essentially the same.

Our negligent homicide statute, W.Va.Code, 17C-5-1, requires the driving of "[a] vehicle in reckless disregard of the safety of others," and this means that more than ordinary negligence is required. It is compatible with the involuntary manslaughter standard set in State v. Lawson, 128 W.Va. 136, 36 S.E.2d 26 (1945).

Syllabus point 2, State v. Vollmer, Id.

In State v. Lawson the Court discussed the test of recklessness at some length:

We think it fair to assume that the word "negligent" or "negligently", when used in the definition of involuntary manslaughter has been intended to imply some character of negligence violative of a statute, or of an improper, wanton or reckless nature such as would, in itself, have been unlawful, even in the absence of a statute making it so."

128 W.Va. at 147, 36 S.E.2d at 31. The Court proceeded to examine what would constitute recklessness sufficient to support involuntary manslaughter conviction in an automobile accident situation and indicated that violation of a traffic statute would constitute such recklessness:

[A]n instruction should tell the jury that there must be either some unlawful act, or the performance of a lawful act in an unlawful manner, before a defendant can be convicted of involuntary manslaughter. As indicated above, violation of the statute, or wanton or reckless misconduct, and many other species of conduct, if established by the evidence, might justify a holding that a lawful act has been performed in an unlawful manner. For illustration, everyone has a lawful right to travel the highways of this State, but when anyone violates the statute law of the State regulating travel on the highways, he exercises his lawful privilege in an unlawful manner.

128 W.Va. at 149-50, 36 S.E.2d at 32.

West Virginia Code, 17C-7-6(a), specifically governs passing on public highways and provides that:

No vehicle shall at any time be driven to the left side of the roadway under the following conditions: (1) When approaching the crest of a grade or upon a curve in the highway where the driver's view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction; (2) When approaching within one hundred feet of or traversing any intersection or railroad grade crossing; ...

Even in the absence of statute of this sort, it has been recognized that passing where a view is obstructed amounts to the degree of negligence sufficient to justify an involuntary manslaughter conviction. See e.g., State v. Carter, 451 S.W.2d 340 (Mo.1970); State v. Rice, 58 N.M. 205, 269 P.2d 751 (1954).

As previously indicated, in assessing the question of whether there was sufficient evidence to support the jury's verdict, this Court must view the evidence in the light most favorable to the prosecution. In the present case there was evidence that the road on which the fatal collision occurred curved before it reached the point of collision, and the jury reasonably could have concluded that the view of the intersection was obstructed by the curve. There were also signs in the area from which the jury could have concluded that a prudent driver would have known that the road was approaching an intersection or a turn-off. In spite of these circumstances, the defendant undertook to pass a long string of vehicles, an action which is clearly more hazardous and more time-consuming than attempting to pass a single vehicle. Clearly, he did not engage in the maneuver in such a way as to complete it before he arrived in the area potentially obscured by the curve and clearly marked by...