State v. Vandever
| Decision Date | 13 September 2005 |
| Docket Number | No. 1 CA-CR 04-0589.,1 CA-CR 04-0589. |
| Citation | 119 P.3d 473,211 Ariz. 206 |
| Parties | STATE of Arizona, Appellee, v. Tinker VANDEVER, Appellant. |
| Court | Arizona Supreme Court |
Terry Goddard, Arizona Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Aaron J. Moskowitz, Assistant Attorney General, Phoenix, Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender By James L. Edgar, Deputy Public Defender, Phoenix, Attorney for Appellant.
¶ 1 Tinker Vandever appeals from his convictions and sentences for manslaughter, a Class 2 felony, dangerous (Count 1), and endangerment, a Class 6 felony, dangerous felony (Count 2).1 He contends that the trial court committed reversible error by (1) refusing to give his requested instruction on intervening event and superseding cause; (2) refusing to allow him to present evidence of his reputation for acting carefully and prudently in conducting his daily affairs; and (3) refusing to allow him to present evidence of his close and caring relationship with the victim, Paul Anderson, as evidence that it was not likely that he would have acted recklessly toward Anderson. Vandever also argues that the trial court's minute entry must be modified to correct inadvertent errors. For reasons that follow, we affirm Vandever's convictions and sentence for manslaughter, and we affirm as modified his sentence for endangerment.
¶ 2 At approximately 9:30 p.m. on October 25, 2003, Vandever was driving northbound on Seventh Street approaching the intersection with Bethany Home Road in Phoenix; his passenger was Anderson. Richard Peña was traveling southbound on the same street. As Peña proceeded into the intersection at approximately 35-40 miles per hour ("m.p.h."), Vandever made an illegal left turn from the far right lane. With no time for Peña to brake or take any evasive measures, the cars collided.
¶ 3 Anderson died as a result of blunt force trauma sustained during the collision. Vandever was taken to a hospital for treatment. During transport, a firefighter smelled alcohol on Vandever's breath, and Vandever told a paramedic that he had drunk "a twelve pack of beer that evening." Phoenix Police Officer Herbert Jacobs also reported that Vandever had bloodshot, watery eyes and the odor of alcohol on his breath. At the hospital, Vandever told his brother that he had consumed five or six drinks. Vandever's blood sample revealed a 0.155 blood alcohol content, which a criminalist opined was the equivalent of more than eight drinks in Vandever's body at the time of testing.
¶ 4 Vandever was charged and convicted by a jury of manslaughter and endangerment. The trial court sentenced him to a mitigated eight-year prison term for the manslaughter and to the presumptive term of 2.25 years for endangerment, both terms to be served concurrently with credit for 166 days of pre-sentence incarceration.
¶ 5 Vandever requested that the trial court instruct the jury regarding an intervening event or superseding cause as follows:
A person is not held accountable for manslaughter, negligent homicide ... or endangerment when an intervening cause in which [he] does not participate causes death, serious physical injury or endangers another. This intervening cause must also be superseding.
Intervening cause becomes superseding cause when its occurrence was unforeseeable and when with benefit of hindsight it may be described as abnormal or extraordinary.
The State must prove beyond a reasonable doubt that an intervening cause did not cause the acts that are the subject of the indictment.
He also asked that the court instruct the jury regarding causation as follows:
Superseding cause is not an affirmative defense and the defendant has no obligation to establish the existence of superseding cause. It remains the obligation of the [S]tate to show that superseding cause does not exist.
¶ 6 Vandever argued that, contrary to Peña's testimony, Peña was racing towards a red light and that his speed could have been more than 53 m.p.h. at the time of the collision. He also argued that such speed, which would have been more than ten m.p.h. greater than the posted speed limit, would not have been foreseeable under the circumstances, warranting the requested "intervening event, superseding cause" instructions. The prosecutor responded that the evidence did not support such instructions, noting that Vandever's expert had testified that, regardless of Peña's speed, Vandever's turn had not given Peña time to react and that the collision could not have been avoided. The trial court declined to give the instructions, which Vandever now contends was reversible error.
¶ 7 A defendant "is entitled to a jury instruction on any theory reasonably supported by the evidence," State v. Tschilar, 200 Ariz. 427, 436 ¶ 36, 27 P.3d 331, 340 (App.2001), but a trial court's refusal to give an instruction for a lack of factual basis is within its discretion. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). We will not disturb its decision absent a clear abuse of that discretion. Tschilar, 200 Ariz. at 436 ¶ 36, 27 P.3d at 340.
¶ 8 "To establish legal cause, ... there must be some evidence that but for defendant's conduct, the [car] accident and resulting death would not have occurred." State v. Marty, 166 Ariz. 233, 236, 801 P.2d 468, 471 (App.1990) (). An intervening event is superseding, i.e., a legal excuse, only if it was unforeseeable and, with the benefit of hindsight, may be described as abnormal or extraordinary. State v. Bass, 198 Ariz. 571, 576 ¶ 13, 12 P.3d 796, 801 (2000). Peña's speed of approximately 40 m.p.h. is supported by the evidence. Even if Peña's speed had been greater, however, his driving still would not have been an intervening event because a collision with Peña's vehicle was clearly a foreseable event within the scope of the risk created by Vandever's illegal left turn from the far right lane. Therefore, we find no abuse of discretion in the trial court's ruling that there was no factual basis to warrant giving Vandever's requested jury instructions.
¶ 9 At trial, Vandever did not contest either his 0.155 blood alcohol content or his illegal left turn from the far right lane. His defense was that he was not reckless in making the left turn. In that context, he proffered evidence that he acted prudently and carefully in conducting his life, citing Arizona Rule of Evidence 404(a)(2001).3 The prosecutor objected, maintaining that recklessness is a state of mind or behavior, not a character trait, and the trial court ruled that Vandever's general prudence was not a relevant trait of character. Vandever now argues that the court committed reversible error.
¶ 10 We review the trial court's exclusion of evidence for an abuse of its discretion. State v. Ayala, 178 Ariz. 385, 387, 873 P.2d 1307, 1309 (App.1994). A defendant, in presenting his case, "may offer evidence of his good character as substantive evidence from which the jury may infer that he did not commit the crime charged." State v. Lopez, 174 Ariz. 131, 139, 847 P.2d 1078, 1086 (1992); see Ariz. R. Evid. ("Rule") 404(a)(1). However, character evidence must pertain to a trait involved in the offense charged. Lopez, 174 Ariz. at 139, 847 P.2d at 1086.
¶ 11 Citing State v. Marshall, 312 Or. 367, 371-73, 823 P.2d 961, 963-64 (1991), Vandever contends that carefulness is a character trait meaning the "propensity to act with care in all the varying situations of life." See also State v. Enakiev, 175 Or.App. 589, 594-96, 29 P.3d 1160, 1163 (2001). The State responds that, not only is there no "anti-reckless" character trait, Vandever's "general practice of following the law" would not be relevant to whether he acted recklessly at the time of the collision.
¶ 12 Cases from other jurisdictions support Vandever's argument that a defendant may introduce evidence of his character for carefulness when he is charged with a crime involving recklessness or negligence. In Rosser v. State, 230 Miss. 573, 575-77, 93 So.2d 470, 471 (1957), after a collision resulting in a fatality, the defendant was charged with manslaughter for having negligently operated his automobile while under the influence of alcohol. The Mississippi Supreme Court held that the trial court erred in refusing to admit evidence of the defendant's reputation as a careful driver. Id. 230 Miss. at 575-78, 93 So.2d at 471-72. Similarly, in a case when the defendant was charged with negligent homicide for having struck and killed a pedestrian with his truck, the District of Columbia Circuit Court of Appeals held that the defendant should have been allowed to present evidence of his reputation as a "prudent, careful driver." Robinson v. United States, 156 F.2d 574, 574 (D.C.Cir.1946). Cf. State v. Baker, 56 Wash.2d 846, 856-59, 355 P.2d 806, 812-13 (Wash.1960) ().
¶ 13 We find more persuasive the opinion of the Supreme Judicial Court of Maine in State v. Higbie, 847...
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