State v. Yarborough

• Decision Date: 13 September 1995
• Docket Number: No. 15794,15794
• Citation: 905 P.2d 209,1995 NMCA 116,120 N.M. 669
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Kenneth YARBOROUGH, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 209

905 P.2d 209

120 N.M. 669

STATE of New Mexico, Plaintiff-Appellee, v.Kenneth YARBOROUGH, Defendant-Appellant.

No. 15794.

Court of Appeals of New Mexico.

Sept. 13, 1995.

Certiorari Granted Nov. 3, 1995.

[120 N.M. 670] Tom Udall, Attorney General, M. Anne Wood, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

Sammy J. Quintana, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.

OPINION

FLORES, Judge.

1.Defendant appeals his conviction for involuntary manslaughter by careless driving.We consolidate the issues raised by Defendant on appeal and address them as follows: (1) whether a showing of criminal negligence is required for a felony involuntary manslaughter conviction and (2) whether the specific homicide by vehicle statute preempts the prosecution of vehicular killings under the general involuntary manslaughter statute.We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

2.While driving northbound on a southbound lane of Interstate 25, Angelita Castillo struck Gretchen Bright's vehicle head-on.Castillo's car ended up in the middle of the two traffic lanes, facing the wrong way, the front side turned slightly to the west.Immediately after the collision, Jill Cornell drove up to the scene and parked her car on, or partially on, the shoulder of the right traffic lane, near Castillo's vehicle.At about the same time, John Coriz also pulled up and parked his car on the side of the interstate.Coriz got out of his car and stood in the middle of the interstate talking to Castillo, advising her not to move her car.During this time, Bright was standing partially in the right lane talking to Cornell, who was still in the driver's side of her car.

3.Meanwhile, Brenda Kumagai was driving southbound on Interstate 25 with her three sons when she saw headlights in the distance.Kumagai slowly pulled over onto the right shoulder and stopped before reaching the accident scene.She then proceeded slowly toward the accident scene in the right lane and pulled up behind Cornell's car to see if anyone needed help.Kumagai's car was partially on the shoulder and partially sticking out into the right lane of the interstate.The rear-end of her car was in the road because there were cars around her, and she was not sure if she could fit completely onto the shoulder.She was about six to eight feet away from Castillo's car.Kumagai did not have her vehicle's hazard lights on and did not see any of the other cars' hazard lights on either.As she was moving out of the space behind Cornell's car, onto the right lane of the interstate, her car was hit from behind by Defendant.

4.Defendant, who was driving a van, and his girlfriend, Victoria Bertch, were traveling southbound on Interstate 25 when they came upon the accident scene.Bertch testified that while she was fiddling around with a tape player behind her seat, Defendant said something which caused her to turn around.He said, "I'll have to go through them."Bertch saw cars in the road and thought there was enough room to drive between them.She testified that she was not afraid and that driving through the accident scene seemed like the logical thing to do.

5.Defendant remembered that he turned on the dome light in the van and looked down at the tapes behind the passenger seat while Bertch was trying to play some music.Defendant saw the lights of a car facing the wrong way and angled on the road.Defendant's reaction was to try to go through the opening between the car parked on the right shoulder at a diagonal position and the car that was obstructing the center of the road.Coriz and the accident reconstructionist testified that Defendant drove the van from the left lane to the right lane before attempting to go through the opening.The reconstructionist characterized this movement as a "corrective action" and even as an "evasive action" to avoid hitting the vehicle.

6.At the time of the impact, it was estimated that Defendant was traveling between fifty-four and sixty-two miles per hour.Defendant testified that he did not brake because he thought he would have better control over the vehicle if he did not have the brakes locked.Defendant admitted that he did not see the initial accident scene until he was only a few hundred feet from it and that he did not "attend to everything" while he was driving.

7.Kumagai remembered Coriz waiving his arms and yelling as he stood between her car and the headlights of Castillo's car.Castillo testified that she reached in her car to flash her lights as Defendant's van approached, but does not know if she succeeded.Coriz pushed Castillo away from the van's path, and then dodged the van himself.

8.When the van hit the rear of Kumagai's car, Bright, who was standing in the road talking with Cornell, was thrown about twenty feet.The van became airborne, spun around clockwise, and landed on the hood of Cornell's parked car.Cornell and her passenger were not injured.Kumagai's son, Steven Kumagai, was killed.

9.Defendant was indicted for homicide by vehicle for the death of Steven Kumagai and two counts of great bodily harm by vehicle for injuries to Brenda Kumagai and Bright.At trial, the State proffered an instruction for involuntary manslaughter by careless driving as a "lesser[-]included" offense of homicide by vehicle.Defendant objected to the State's requested jury instruction and argued that under Santillanes v. State, 115 N.M. 215, 849 P.2d 358(1993), a showing of criminal negligence, not civil negligence in the form of careless driving, is necessary for a felony conviction.Defendant further argued that our legislature intended to preempt the involuntary manslaughter statute in motor vehicle cases when it enacted the homicide by vehicle statute and that involuntary manslaughter could therefore not be a lesser included offense of homicide by vehicle.Defendant also proffered his own jury instructions on "civil proximate cause" and "independent intervening cause" which the trial court rejected.The trial court accepted the State's instruction and instructed the jury on a civil negligence standard based on the careless driving statute.¹That instruction read as follows:

For you to find [Defendant] guilty of Involuntary Manslaughter as a lesser[-]included offense of Homicide by Vehicle, the [S]tate must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1.[Defendant] operated a motor vehicle on a highway in a careless, inattentive or imprudent manner without due regard for the width, grade, curves, corners, traffic, weather, road conditions[,] and all other attendant circumstances;

2.The act of [Defendant] caused the death of Steven Kumagai;

3.This happened in New Mexico on or about the 26th day of August, 1990.

10.Defendant was convicted of the purported lesser-included offense of involuntary manslaughter by careless driving."Involuntary manslaughter" is defined as "manslaughter committed in the commission of an unlawful act not amounting to [a] felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection."NMSA 1978, § 30-2-3(B)(Repl.Pamp.1994)."Manslaughter is the unlawful killing of a human being without malice."Section 30-2-3.

DISCUSSION

I.Requirement of Criminal Negligence

11.We begin with Defendant's contention that it is reversible error and a denial of due process for careless driving--which requires a finding of only civil negligence--to be the basis for a felony involuntary manslaughter conviction.In order to determine whether a showing of criminal negligence is required for a felony involuntary manslaughter conviction, we review the historical treatment of involuntary manslaughter convictions by our appellate courts.

12.In the past, New Mexico appellate courts required that a defendant's conduct be criminally negligent, or reckless, wanton, or willful in order to be convicted of involuntary manslaughter for causing the death of another by motor vehicle.In State v. Harris, 41 N.M. 426, 70 P.2d 757(1937), where the defendant accidentally struck and killed a pedestrian, our Supreme Court adopted an Illinois Supreme Court rule stating that " 'an injury caused by mere negligence, not amounting to a reckless, willful, and wanton disregard of consequences to others, cannot be made the basis of a criminal action.' "Id. at 428, 70 P.2d at 758(quotingPeople v. Allen, 321 Ill. 11, 151 N.E. 676, 679(1926)).Similarly, in State v. Sisneros, 42 N.M. 500, 82 P.2d 274(1938), where the defendant struck and killed a man pumping air into the tire of his car on the side of the highway, our Supreme Court reiterated that "[i]t was incumbent upon the state to prove criminal negligence" in order to convict the defendant of involuntary manslaughter.Id. at 511, 82 P.2d at 281.

13.Thereafter, our Supreme Court adhered to the standard adopted in Harris, stating, in City of Raton v. Rice, 52 N.M. 363, 365, 199 P.2d 986, 987(1948), that, in the context of involuntary manslaughter by reckless driving, ordinary negligence "not amounting to wilful or wanton disregard of consequences cannot be made the basis of a criminal action."The Supreme Court went on to say that " '[m]ere negligence is not sufficient.It may be sufficient to compel the driver to respond in damages.However, when it comes to responding to an accusation of involuntary manslaughter, with the possibility of a penitentiary sentence, a different rule is called into play.' "Id.(quotingSisneros, 42 N.M. at 513, 82 P.2d at 281(Zinn, J., concurring));see alsoState v. Hayes, 77 N.M. 225, 421 P.2d 439(1966)(holding that neither high speed alone nor speed accompanied by other negligent acts are sufficient to sustain involuntary manslaughter conviction);State v. Deming, 66 N.M. 175, 344 P.2d 481(1959)(upholding involuntary manslaughter...