Webber v. State

• Decision Date: 01 August 1990
• Docket Number: No. 168,168
• Citation: 577 A.2d 58,320 Md. 238
• Parties: James Lance WEBBER v. STATE of Maryland. Sept. Term 1989.
• Court: Maryland Court of Appeals

Page 238

320 Md. 238

577 A.2d 58

James Lance WEBBER v. STATE of Maryland.

No. 168 Sept. Term 1989.

Court of Appeals of Maryland.

Aug. 1, 1990.

Lawrence V. Kelly (Friend and Kelly, on brief), Cumberland, for appellant.

Jillyn K. Schulze, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, McAULIFFE and CHASANOW, JJ., and THEODORE G. BLOOM, Judge of the Court of Special Appeals of Maryland, Specially Assigned.

THEODORE G. BLOOM, Judge, Specially Assigned.

By Chapter 454 of the Laws of 1978 the General Assembly of Maryland added Section 388A to Article 27 of the Maryland Code (Crimes and Punishments), creating a new criminal offense known as "Homicide by motor vehicle while intoxicated." Subsection (a) of the statute declares that "intoxicated has the same meaning and is subject to the same presumptions and evidentiary rules of § 10-307 of the Courts Article regarding intoxication under the vehicle laws of this State." Subsection (b) provides:

Any person causing the death of another as the result of the person's negligent driving, operation or control of a motor vehicle while intoxicated is guilty of a misdemeanor to be known as "homicide by motor vehicle while intoxicated," and the person so convicted shall be punished by imprisonment for not more than 3 years, or by fine of not more than $1,000 or both fine and imprisonment.

In a non-jury trial in the Circuit Court for Allegany County, James Lance Webber was convicted of violating that statute. Sentenced to a one year term of imprisonment with all but 30 days suspended, fined $500, and placed on probation for 5 years upon release from incarceration, Webber appealed his conviction to the Court of Special Appeals. This Court issued a writ of certiorari before argument in the intermediate appellate court.

I

About ten minutes before midnight on Sunday, 28 August 1988, Webber was driving his Nissan Pathfinder automobile easterly on Main Street, U.S. Route 40, in Frostburg, Maryland, when his vehicle struck and fatally injured a pedestrian. ¹

When interviewed by the investigating police officers at the scene, Webber admitted that he drove the vehicle, that he was drunk, and that he struck the pedestrian. He declined to perform a field sobriety test and to take a chemical test for alcohol. At 3:08 a.m., however, Webber was taken to the hospital where a blood sample was drawn. Chemical analysis disclosed a .23 percent blood alcohol level; the victim, according to the autopsy, had a blood alcohol level of .16 percent.

A criminal information charging Webber with homicide by motor vehicle while intoxicated was filed in the Circuit Court for Allegany County. Motor vehicle citations charging Webber with driving while intoxicated or under the influence of alcohol and failure to have his license in possession were then transferred from the District Court to the circuit court. Webber pleaded guilty to driving while intoxicated; the State nolle prossed the citation for failure to have a license in possession; and the case proceeded to trial on the homicide charge.

II

Webber contends that the trial court did not properly construe and apply § 388A of Article 27. He also contends that under proper construction of the statute the evidence was insufficient to sustain his conviction.

The victim was a 48-year-old white female, who was wearing white clothing at the time she was struck. Shortly before the accident, she had been observed in a telephone booth adjacent to a building on the south side of Main Street. According to diagrams made by investigating officers, the distance from the telephone booth to the curb is 19 feet 10 inches; from the curb to the center line of the street is 17 feet 8 inches; and from the center line to the curb on the north side of Main Street is 19 feet 2 inches. The victim's own automobile was parked along the south curb, two or three car lengths west of the telephone booth. There was a light rain or drizzle and the streets were wet. Traffic was light and, according to one witness, at that time on a Sunday night pedestrians would not normally be present.

Dale Layton, who was driving a Ford truck eastbound behind Webber, noticed nothing unusual or untoward about Webber's driving until he saw the Nissan's brake lights come on and the Pathfinder moved toward the curb as if to park. Then he saw an object that looked to him "like a white sheet and a balloon lying in the road." He applied his brakes and skidded to a stop, straddling the center line. As he exited his vehicle he saw the victim's feet sticking out from under his truck.

At the time of the accident, Blaine Folk was driving his car westerly on Main Street. Called as a witness by the State, Folk testified that he saw the victim just as she stepped off the south sidewalk and right in front of Webber's vehicle, which was going east at a reasonable rate of speed. She appeared to be running. At the time she was struck by Webber's car, the victim was in the eastbound lane, somewhat closer to the center line than to the curb. On cross-examination, Folk was asked whether, in his opinion, the Nissan could have done anything to avoid striking the victim. There was no objection to that question, to which the witness responded, "No." When defense counsel asked Folk if he thought that he, in Webber's position, would have struck the lady as well, the prosecutor objected. By the time the court sustained the objection, Folk had answered, "I think I would have." There was no motion to strike that response. After being hit by the Pathfinder, the victim was thrown several feet east of the point of impact and toward the center of the street. She came to rest lying across the center line, with her feet in the westbound lane.

Photographs of Webber's vehicle show damage to the grill just to the right of the left headlight and a large dent on the front of the hood above and slightly to the right of the left headlight.

Dave McKenzie, a passenger in Folk's car, also testified for the State. His version was totally at variance from Folk's testimony and, apparently, the State's theory of what had occurred. He agreed that he and Folk were westbound; he said, however, that he saw a figure crossing from his right to his left, i.e., from the north side of the street to the south. He testified that when he first saw the victim she was in the westbound lane, crossing the street, casually walking and looking in her purse. On cross-examination, McKenzie admitted he saw the victim only briefly, just before she was hit; he did not see her leave the sidewalk and enter the street. He saw the victim in the street, being struck, and he did not recall her movements prior thereto.

Webber told the police on the scene, "I didn't see her. She ran out in front of me, and I hit her." In the absence of skid marks or debris on the roadway, the police were unable to determine the point of impact. The State presented an expert witness who, based on Webber's blood alcohol reading at 3:08 a.m., his height and weight, and the fact that he consumed no alcohol for three hours prior to the blood test, rendered an opinion to the effect that Webber's blood alcohol level at midnight would have been at least .27 percent and possibly over .30 percent. At that blood alcohol level, the witness testified, one's peripheral vision tends to be lost, and the subject has tunnel vision, tending only to see that which is directly in front of him.

Webber's motion for judgment at the conclusion of the State's case being denied, he called several witnesses to establish that the victim was extremely depressed shortly before the accident. Webber's passenger supported his version of what occurred, that the victim suddenly appeared in front of them, that Webber was driving 25 to 30 miles per hour. An expert in traffic dynamics and accident reconstruction, called as a defense witness, testified that an average woman, crossing a street at a brisk pace or "jogging" would be moving at an average rate of 12.5 feet per second. Considering that the victim would have to be some distance (a car width) into the street before she would be visible to an eastbound motorist (because of her own parked car to her west), and taking into account normal reaction and braking time, the witness opined that no motorist in Webber's position, no matter how sober or alert, could possibly have avoided hitting the victim. Webber did not testify.

In arguing for an acquittal, defense counsel posited that a conviction of homicide by motor vehicle while intoxicated requires proof of more than a combination of driving while intoxicated and someone's death; it requires proof of some negligent conduct that is the cause of death. The court found no evidence of excessive speed, crossing the center line, or operating recklessly or carelessly. In fact, it found "little evidence of any conduct that would be considered negligence." Nevertheless, the court concluded that operating a motor vehicle while intoxicated, particularly if intoxicated to the extent appellant was on the night of 28 August 1988, was itself an act of negligence within the meaning of the statute, since intoxication impairs a driver's vision, perception, and ability to react. That was sufficient, in the judge's opinion, to justify a conviction. He stated:

In my view, intoxication alone, even though in this case it may be supplemented by some slight, other slight negligence, satisfies the elements of 388A and that proof beyond a reasonable doubt of other acts of negligence is not required. The facts are clear that the Defendant was intoxicated, that there was a death, and that the death was caused by the victim having been struck by Defendant's vehicle. I am satisfied that the State has proved the elements of the offense beyond a reasonable doubt.

Having concluded that proof of appellant's intoxication and death of the victim...