State v. Wall

• Decision Date: 23 March 1992
• Docket Number: No. 17458,17458
• Citation: 481 N.W.2d 259
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Marguerite L. WALL, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 259

481 N.W.2d 259

STATE of South Dakota, Plaintiff and Appellee, v. Marguerite L. WALL, Defendant and Appellant.

No. 17458.

Supreme Court of South Dakota.

Submitted on Briefs Oct. 22, 1991.

Decided Feb. 12, 1992.

Rehearing Denied March 23, 1992.

Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, for plaintiff and appellee, Mark Barnett, Atty. Gen., on the brief.

Craig A. Pfeifle of Lynn, Jackson, Schultz & Lebrun, P.C., Rapid City, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

This appeal arises from an automobile accident and fatality. We affirm. On August 6, 1990, Marguerite Wall (Wall) was charged with Second Degree Manslaughter, in violation of SDCL 22-16-20. A jury trial was held in December of 1990. The jury ultimately returned a guilty verdict on the second degree manslaughter charge. Wall was subsequently sentenced and a Judgment of Conviction was entered in January of 1991. Following sentencing, Wall filed a motion for new trial in February, 1991. The trial court entered an Order denying new trial in March of 1991. On appeal, Wall raises the following three issues:

I. Was there sufficient evidence presented to the jury to support a conviction?

II. Did the trial court err in denying Wall's request for a lesser included offense jury instruction?

III. Did Wall receive a fair trial?

FACTS

On August 4, 1990, Wall, driving a motorhome, struck the rear end of a pickup truck camper driven by Ronald Starkey. Wall was attempting a pass on Highway 16. As Wall was proceeding west on Highway 16, the vehicle traffic proceeding west was slowed for an accident. Wall passed three or four cars after leaving the area of this accident. When she attempted to pass the Starkey pickup, a collision occurred. This collision took place on a mile long stretch on Highway 16, two miles east of the Wyoming border. This stretch of road had no sharp curves and had dry pavement. At the sight of the homicide, it was narrow (19 feet 7 inches wide) with no shoulder.

The collision with the Starkey vehicle occurred after Wall passed a van and a car and returned approximately two-thirds of the way back into her proper lane. According to an eyewitness, Lynn Litizzette, Wall then started pulling back out into the eastbound lane to pass Starkey when she struck the rear of the camper shell. Eyewitnesses testified that Wall was driving at a high rate of speed, ducking in and out and passing vehicles. This caused Starkey's pickup to be pushed into the ditch; it rolled and was demolished. Starkey was killed in the accident and his wife, two boys and an infant were injured. Appellate counsel was not counsel at trial court level.

DECISION

I. Was there sufficient evidence in the record to support the conviction?

In determining the sufficiency of the evidence on review, the question presented is whether there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt. State v. Lewandowski, 463 N.W.2d 341, 343-344 (S.D.1990). In this review, we must accept that evidence, and the most favorable inferences to be fairly drawn therefrom, which will support the verdict. Id. at 344 (citations omitted). In determining the sufficiency of the evidence, this Court will not " 'resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence.' " State v. Hanson, 456 N.W.2d 135, 139 (S.D.1990) (quoting State v. Faehnrich, 359 N.W.2d 895, 900 (S.D.1984)). No guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable inferences drawn therefrom, sustains a reasonable theory of guilt. State v. Bartlett, 411 N.W.2d 411, 412 (S.D.1987).

Wall is charged with violation of SDCL 22-16-20. ¹ This statute provision treats "[a]ny reckless killing" as manslaughter in the second degree. In this appeal, Wall essentially disputes the jury's finding of recklessness. This Court has had occasion in the recent case of State v. Olsen, 462 N.W.2d 474, 476-477 (S.D.1990), to review SDCL 22-16-20 in context of an automobile accident. Therein, also, the issue of "reckless" was raised.

The definition of "reckless" for the purpose of second degree manslaughter is set forth in SDCL 22-1-2(1)(d). That definition provides:

The words "reckless, recklessly" and all derivatives thereof, import a conscious and unjustifiable disregard of a substantial risk that the offender's conduct may cause a certain result or may be of a certain nature. A person is reckless with respect to circumstances when he consciously and unjustifiably disregards a substantial risk that such circumstances may exist[.]

See, State v. Olsen, supra at 476, and State v. Martin, 449 N.W.2d 29 (S.D.1989). As we stated in Olsen, supra at 476: "Recklessness requires more than ordinary negligent conduct." Awareness and cognizance of the risk, and disregarding that risk, are factors that bring an actor's conduct to the level of recklessness. "The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it." Olsen, supra at 476-477 (citations omitted). The difference between reckless and negligent behavior is measured by the state of mind of the individual. Id.

State must demonstrate the element of awareness of the risk to establish reckless conduct. This can be established indirectly by establishing that a defendant's conduct indicates a reckless disregard for the safety of others. Olsen supra at 477. However, merely producing evidence of carelessness, inadvertence or thoughtless omission is insufficient to sustain a conviction where reckless conduct is required. Id. Operation of a motor vehicle in violation of the law, without more, is not sufficient to constitute reckless conduct, even if there is a fatality as a result thereof. Id. ²

In the present case, after reviewing the evidence and drawing the most favorable inferences therefrom, we hold that there is sufficient evidence to support the jury's verdict. The evidence does rise to the level of "reckless." The State introduced evidence of the narrow width of Highway 16 in the vicinity of the collision and of the wide frame of the RV. State introduced evidence of Wall's numerous attempts to pass vehicles and of passing multiple cars in one lengthy pass. This was all done shortly after leaving the vicinity of a separate accident where traffic was slowed. This driving was all done in an obvious attempt to keep up with a traveling companion in another vehicle, who was pulling a boat at a high rate of speed. Evidence was also provided by eyewitnesses. They testified that Wall's driving came close to causing accidents over the course of several miles before she came upon Starkey's pickup. Evidence was introduced as to an excessive rate of speed that Wall was traveling and of imprudent passing of other vehicles. Witnesses testified that Wall's passing at times involved an erratic ducking in and out between cars to pass in the oncoming lane. From this evidence, other evidence in the record, and from reasonable inferences drawn therefrom, there is sufficient evidence to conclude that Wall was aware of the risk of a potential accident, yet disregarded that risk. The risks of passing were obvious. There is sufficient evidence in the record to conclude that Wall's conduct reached the level of reckless conduct in operating her motor vehicle. Her ducking in and out of traffic, at a high rate of speed, passing other vehicles, displayed a reckless disregard for the safety of other persons on the road. Although this case does not involve use of alcohol or a controlled substance, those factors are not a requirement to a finding of reckless conduct for purposes of second degree manslaughter. There is sufficient evidence in the record to support a determination, beyond a reasonable doubt, of a violation of SDCL 22-16-20, second degree manslaughter.

II. Wall asserts that the trial court erred in refusing to instruct on Wall's lesser included offense instruction, i.e., careless driving.

At trial, the court denied Wall's proposed instructions, numbers 11 and 12, both relating to "careless driving," determining that the instructions did not meet the legal and factual tests for giving lesser included offenses. In State v. Heumiller, 317 N.W.2d 126, 132 (S.D.1982), we stated:

Under the law as established in this state, it is incumbent upon the trial court to instruct the jury, if requested, upon a lesser offense included in the offense charged if the evidence warrants a conviction upon the included offense. There are two tests that must be satisfied in determining whether the trial court should submit a lesser included offense instruction to the jury. The first is a legal test, the second is factual.

See, State v. Gillespie, 445 N.W.2d 661, 663 (S.D.1989). The legal test is met if (1) all of the elements of the included offense are lesser in number than the elements of the greater offense; (2) the penalty for the included lesser offense must be less than that of the greater offense; and (3) both offenses must contain common elements so that the greater offense cannot be committed without also committing the lesser offense. State v. Gillespie, supra at 663. In order to meet the factual test, evidence must be presented which would support a conviction of a lesser charge. Refusal by the trial court to give such an instruction would be reversible error. State v. Heumiller, supra at 132. "There must be sufficient evidence, however, when read in the light most favorable to the defendant, which would justify a jury in concluding that the greater offense was not committed and that a lesser offense was, in fact, committed." Heumiller, supra at 132 (citations omitted).

The trial court denied Wall's proposed instructions involving the lesser included offense of careless driving, stating that the instructions did not meet the legal and factual...