State v. Koch
Annotate this Case
State v. Koch (98-416); 171 Vt. 515; 760 A.2d 505
[Filed 14-June-2000]
ENTRY ORDER
SUPREME COURT DOCKET NO. 98-416
SEPTEMBER TERM, 1999
State of Vermont } APPEALED FROM:
}
}
v. } District Court of Vermont,
} Unit No. 3, Lamoille Circuit
Frederick Koch }
} DOCKET NO. 595-9-97 Lecr
Upon consideration of defendant's motion for reargument, the entry
order in this matter, issued December 14, 1999, is withdrawn and the
following substituted. In all other respects, the motion fails to
identify points of fact or law misapprehended or overlooked by the Court,
and therefore is denied. See V.R.A.P. 40.
In the above-entitled cause, the Clerk will enter:
Defendant Frederick Koch appeals from the district court's denial of
his motions for judgment of acquittal and a new trial following a jury
verdict finding him guilty of grossly negligent operation of a motor
vehicle. He argues that (1) the State failed to prove its case beyond a
reasonable doubt, (2) the prosecutor presented an improper closing
argument, and (3) the jury instructions were inadequate. We affirm.
On May 9, 1997, at around 4:00 p.m., defendant struck a pedestrian,
Thomas Cataldo, with his car while driving northbound on Route 100. The
accident occurred north of the Village of Stowe. Cataldo later died as a
result of his injuries.
The record evidence reveals that, although the skies were overcast and
there had been some drizzle, visibility was clear at the time of the
accident. Defendant was taking prescribed lithium, but there was no
evidence that he was under the influence of any intoxicating substances.
Defendant had been awake, however, since 4:30 a.m., and had been driving
for the better part of the day prior to the accident. Defendant did not
recall falling asleep before the accident.
The record evidence showed that as defendant approached the accident
scene, he had an unobstructed line of sight of about 1200 feet, or 400
yards. A witness who was driving south down Route 100 just before the
accident clearly observed Cataldo, who was over six feet tall and weighed
about 185 pounds, from a distance estimated by the State in its opening
statement to be about 216 yards. (FN1) The witness recalled that Cataldo
was standing outside of the white fog line, facing in a southwesterly
direction. There was no evidence that defendant was speeding or driving
erratically. Nor was there evidence that defendant took any evasive
action to avoid striking
Cataldo. The police noted that there were no yaw or skid marks on the
pavement or in the dirt shoulder. The medical evidence indicated that the
victim was initially struck on the left side and slightly from behind,
that he was thrown some distance by the impact, and died from injuries to
the brain and lungs.
Defendant was charged with operating a motor vehicle in a grossly
negligent manner, resulting in the death of another, in violation of 23
V.S.A. § 1091(b). A jury, which also considered the lesser-included
offense of negligent operation, found him guilty of the greater charge.
This appeal followed.
Defendant first argues that the State failed to present a prima facie
case of gross negligence, and the evidence presented does not support such
a conviction. He claims that he was entitled to either a judgment of
acquittal or a new trial.
When reviewing a denial of a motion for judgment of acquittal, we must
consider whether the evidence, viewed in the light most favorable to the
State and excluding the modifying evidence, is sufficient to fairly and
reasonably support a finding of guilt beyond a reasonable doubt. See State
v. Brooks, 163 Vt. 245, 254-55, 658 A.2d 22, 29 (1995).
Gross negligence is defined by statute as "conduct which involve[s] a
gross deviation from the care that a reasonable person would have
exercised in that situation." 23 V.S.A. § 1091(b) The Legislature
adopted this language after we ruled, in State v. Beayon, 158 Vt. 133, 605 A.2d 527 (1992), that a previous version of § 1091, providing for
prosecution of vehicular homicide, "require[d], at a minimum, a mens rea
of criminal negligence." Id. at 136, 605 A.2d at 528. In Beayon, we
explained that, to be found guilty of criminal negligence, the accused must
have disregarded a risk of death or injury to such a degree that the
failure to perceive it, given the circumstances, involved a gross
deviation from the standard of care of a reasonable person. See id.; see
also State v. Free, __ Vt. __, __, 749 A.2d 622, 624 (2000) (mem.).
The presence or absence of gross negligence turns upon the particular
factual circumstances of each case, and therefore rests within the special
province of the jury. See Rivard v. Roy, 124 Vt. 32, 35, 196 A.2d 497, 500
(1963). Indeed, we have observed that "decided cases are of little
assistance in determining the existence of gross negligence under the
evidence in a particular case. Each case turns almost entirely on its own
peculiar factual situation." Langdon-Davies v. Stalbird, 122 Vt. 56, 57,
163 A.2d 873, 874-75 (1960). Here, the evidence showed that defendant had
an unobstructed view of the accident site for almost 400 yards, along a
relatively straight stretch of road, during daylight hours, and amidst
relatively light traffic. A witness just before the accident observed the
victim plainly from a substantial distance. The witness was able to
observe the victim's clothes and build. The same witness recalled that
the victim was standing outside the regularly traveled portion of the
roadway. There was no testimony as to precisely how long the victim might
have been visible to defendant, although the witness, who was driving from
the opposite direction, clearly placed Cataldo in a stationary position
before the accident. Thus, the jury could reasonably have inferred that
Cataldo was plainly visible to a driver in defendant's position for a
reasonable period. Further, the jury heard evidence that the victim lived
about 100 yards south of the accident site, suggesting that he had been
walking away from or toward his home at the time, and saw photographs that
revealed nothing in the immediate vicinity - such as a store or restaurant
- to suggest his very recent arrival. In these circumstances, a jury
could
reasonably have concluded that defendant's failure to observe and avoid
striking the victim involved a gross deviation from the standard of care
of a reasonable person. (FN2)
Contrary to the dissent, our analysis here is not controlled by the
recent decision in Free, in which we affirmed a trial court's dismissal of
a gross negligence charge stemming from an accident in Bennington. The
circumstances in Free were strikingly distinguishable from the case at bar.
There, the evidence indicated that the defendant was focused upon oncoming
traffic while attempting to turn left at a downtown intersection and
failed to observe the victim, who was simultaneously attempting to cross
the street. The fact that the driver had, at most, three to four seconds
to observe the victim before impact was compounded by the accompanying
circumstance that the driver was simultaneously "paying attention to the
flow of traffic around him." Free, __ Vt. at __, 749 A.2d at 624. Here,
there were no similar circumstances to distract defendant's attention, and
no testimony as to the specific number of seconds that the victim was
visible to the defendant. (FN3) As Justice Dooley, dissenting in Free,
observed, "a driver's duty to watch the road is related to the
circumstances that confront him and the place and manner of operation."
Id. at __, 749 A.2d at 626. The specific circumstances here, in contrast
to those in Free, amply supported a conclusion that defendant was grossly
negligent in striking the victim, even if - as the dissent suggests - he
had between five and six seconds to observe him.
Next, defendant argues for a new trial, alleging that the State
advanced an improper argument to the jury and that the court inadequately
instructed the jury. Since defendant failed to object to either the
prosecutor's closing arguments or the court's jury instructions, these
issues have not been preserved for appeal, and we will not consider them.
See Imported Car Center, Inc., v. Billings, 163 Vt. 76, 78, 653 A.2d 765,
768 (1994) (issues not objected to at trial will not be considered upon
appellate review).
Affirmed.
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Dissenting
Johnson, J., dissenting. The decision this Court issued on December
14, 1999, upholding defendant's conviction was supported by a single fact.
We stated that "the State's evidence showed that defendant had an
unobstructed view of Cataldo for almost 1200 feet, or for a minimum of 20
seconds, during daylight hours." State v. Koch, 98-416, slip op. at 2 (Vt.
Dec. 14, 1999) (mem.). Based on this fact alone, we concluded that the
evidence supported defendant's conviction for grossly negligent operation
of a motor vehicle. In his motion to reargue, defendant points out that
the single fact upon which we relied is incorrect. The majority corrects
the factual error but still holds that the evidence supports the
conviction. In my view, the factual correction requires a reversal of
defendant's conviction. I therefore dissent.
Contrary to our decision in December 1999, the State's evidence did
not show that defendant had an unobstructed view of Cataldo for 1200 feet
or for twenty seconds. Rather, the State's evidence showed that defendant
had an unobstructed view of Cataldo for about 5.4 seconds. No evidence
placed Cataldo at the side of the road for any longer than 5.4 seconds. So
the issue is whether inattention for 5.4 seconds while traveling on a
1200-foot straightaway at five-to-ten miles per hour under the speed limit
is gross negligence. Our precedent does not support the majority's
conclusion that this evidence is sufficient to support a conviction for
grossly negligent operation of a motor vehicle.
In its original entry order, the majority relied on State v. Devine,
168 Vt. 566, 719 A.2d 861 (1998). In Devine, the defendant drove his car
across the double yellow center line and collided with the vehicle
traveling in the opposite direction, killing the driver. The evidence
viewed in the light most favorable to the State showed that (1) the
defendant had had little opportunity for sleep during the several days
before the accident, (2) he had been consuming alcohol and smoking
marijuana during this period, (3) he had had trouble staying awake on the
day of the accident and had fallen asleep in his car earlier in the day,
(4) the road was dry and it was a clear day with good visibility, (5) the
defendant was driving in excess of the speed limit, (6) he drove across the
double yellow line across two lanes of oncoming traffic into the victim's
car without any attempt to slow down or turn away, and (7) after the
accident, he did not realize that he had hit another car. See id. at 567,
719 A.2d at 863. Based on this evidence, we upheld the conviction,
relying on cases involving alcohol consumption, lack of sleep, and driving
in excess of the speed limit. None of these factors is present in this
case.
In this case, the evidence showed that (1) defendant was traveling
below the speed limit, (2) the driver of the vehicle behind defendant did
not notice defendant driving erratically or swerving, (3) nor did this
driver see the victim standing at the side of the road, (4) the day was
overcast and parts of the road were wet because it had been raining, (5)
there was no evidence that defendant was under the influence of drugs or
alcohol, and (6) defendant was aware that he had hit the victim and
stopped after the accident. The only evidence to support the conviction is
that defendant must have been inattentive for 5.4 seconds to have failed
to observe the victim at the side of road. Devine is not analogous to
this case.
More recently, we decided State v. Free, __ Vt. __, 749 A.2d 622
(2000) (mem.). In Free, we affirmed the trial court's decision dismissing
the charge of grossly negligent operation of a motor vehicle because the
facts could not support a finding of gross negligence. See id. at __, 749 A.2d at 623. The evidence in Free showed that the defendant was traveling
at ten to fifteen miles per hour during daylight hours when he entered the
intersection of Main Street and Morgan Street in Bennington. The
defendant turned onto Morgan Street, but failed to notice a pedestrian in
the well-marked crosswalk, although the accident reconstructionist
testified that the pedestrian had been in the crosswalk for four to five
seconds before the defendant hit him. We held that the defendant's
inattention to a pedestrian for a mere three to four seconds - as he must
have spent one to two seconds of the total five seconds observing the
traffic flow - "indicates, at best, a mere error in judgment, loss of
presence of mind, or momentary inattention." Id. at __, 749 A.2d at 625.
Such brief inattention, we concluded, was not sufficient to support a
conviction for gross negligence. See id.
This case is like Free because the only evidence to support the
conviction is inattention to a pedestrian for 5.4 seconds. Indeed, this
case presents a stronger argument than Free because
defendant's inattention to the pedestrian for 5.4 seconds was on a
1200-foot straightaway in the road, whereas, in Free, the defendant's
inattention to the pedestrian for five seconds was in a well-marked
crosswalk. "It is one thing to say that a few seconds of inattention is
not gross negligence as a matter of law when a driver is proceeding along
a straight, dry road during the day; it is quite another to say so, when
the driver is turning across a pedestrian crosswalk." Id. at __, 749 A.2d
at 626 (Dooley, J., dissenting).
The majority's decision in this case is irreconcilable with Free. It
is also contrary to the cases in other jurisdictions upon which we relied
in Free. See, e.g., Plummer v. State, 702 A.2d 453, 465 (Md. Ct. Spec.
App. 1997) (conviction for gross negligence reversed where evidence showed
defendant was briefly inattentive, drifted onto shoulder of road and killed
pedestrian); People v. Maloof, 678 N.Y.S.2d 175, 176 (N.Y. App. Div. 1998)
(reversing conviction for gross negligence where evidence showed defendant
failed to see pedestrians and drifted onto shoulder of road, hitting two
pedestrians and killing one of them). If five seconds of inattention to a
pedestrian in a well-marked crosswalk is not gross negligence, then 5.4
seconds of inattention to a pedestrian on a 1200- foot straightaway is not
gross negligence. I respectfully dissent.
Dissenting: BY THE COURT:
____________________________________ ______________________________________
Denise R. Johnson, Associate Justice Jeffrey L. Amestoy, Chief Justice
______________________________________
John A. Dooley, Associate Justice
______________________________________
James L. Morse, Associate Justice
______________________________________
Marilyn S. Skoglund, Associate Justice
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Footnotes
FN1. The only evidence of the distance from which the witness first
observed Cataldo was a photograph taken at the witness's direction
indicating her location. No specific measurement of the distance was
offered to the jury.
FN2. There was no direct evidence that the victim was visible to defendant
for 5.4 seconds, twenty seconds, or any specific period of time. The
dissent derives the 5.4-second figure by calculating, from a photograph,
the witness's distance from the victim, and factoring in the speed the
witness estimated she was driving. The jury did not hear or consider this
figure. Rather, it considered the circumstances as a whole, including
visibility, traffic pattern, and defendant's clear and extended line of
sight while he was approaching the accident scene, in reasonably concluding
that his failure to avoid striking the victim was gross negligence.
FN3. In Free an accident reconstruction expert testified at the motion
hearing as to the approximate amount of time involved.
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