State v. Bryan

Plaintiff The STATE Respondent, BRYAN,

Kenneth Paul Appellant.

No. 18948.

Supreme Court of Utah.

June 1985.

Rehearing Denied Nov.

One witness testified that he did not see lights. brake Another witness estimat- speed approximately ed defendant’s at per miles hour as defendant entered the second intersection. Gaither, City, Lake for de- Randall Salt collision, witness, After the a third who appellant. fendant and was a reserve officer for the Salt Lake Gen., Wilkinson, Atty. Earl P. L. David County Department, attempted Sheriff’s to Gen., Dorius, Atty. City, Asst. Salt Lake Noticing render assistance to the victims. plaintiff respondent. for and running that defendant’s truck was still fearing explosion, and she aided defend- STEWART, Justice: turning helped ant in it off. She him out of Caldwell, Troy aged 16 Tamara Hill and nearby the truck and sat with him on a bus respectively, were killed when a police until the bench arrived. She did not by truck defendant ran a red pickup driven alcohol, smelling remember but she be- A light and collided their automobile. with Defend- lieved that was drunk. defendant performed approximately one hour af- test her that he knew he was ant stated to accident revealed that defendant ter the going detoxification unit. to the .30%, alcohol level of had blood investigating The officer interviewed de- three times the level of intoxication was re- fendant at the crash site. Defendant legal to constitute intoxication at needed assistance, medical claim- fused an offer of court, that time.1 After a trial to the ing injured. The officer that he was defendant was convicted of two counts of odor of alcohol and detected a noticeable 1953, U.C.A., manslaughter. section 76-5- appeared noted that defendant inebriated. contending appeals, Defendant ordering perform defendant After (1) striking trial court erred tests, sobriety the officer con- several field witness, expert testimony of defendant’s defendant was intoxicated and cluded that denying defendant’s motion to Later, placed under arrest. while de- him. dismiss or to reduce the being transported jail fendant was charges. car, patrol officer’s defendant volunteered very heavy drinker and that that he was a I. Cutty three fifths of Sark he had consumed 5, 1982, On June defendant was expressed the officer whiskey. When his truck eastbound on 3900 South. One claim, replied that at this doubt eyewitness, stopped for a red who was very him the officer did not know well light of 3900 at the intersection South he “one hell of a drinker.” was East, defendant’s truck in his observed truck, traveling at a rear-view mirror. The II. from high speed, approached rate of behind trial, only wit- defendant called one At and in the same lane as witness. DeCaria, ness, psy- a clinical hitting Dr. Michael changed to avoid truck lanes effects of chologist, testified to the through light the red who stopped car and drove he generally, and that pickup pro- alcohol on behavior incident. Defendant’s without tested defendant twice had interviewed and along 3900 South without ceeded eastward testify began He then trial. slowing. entered the intersec- before The truck had relat- information that defendant light, red about against 700 East a second tion at during about de- him the interviews cars ed to again changing once lanes avoid and the intersection, history of alcohol abuse fendant’s stopped light. In the leading up to the specific circumstances the victims’ car. pickup collided with U.C.A., .08%. from .10 to has been reduced trial the blood- 1. We note that since defendant’s 41-6-44(1) 1953, (Supp.1985). determining legal intoxication alcohol level for importantly, appeal, collision. Most Dr. DeCaria On this Court affirm testified that defendant stated he re- proper trial court’s decision on nothing membered about the accident. De- grounds, though even the trial court as fendant had that he related remembered signed ruling. another reason for its Jes only he drinking had been a bar on person Jesperson, preceding the afternoon the accident and (1980); Allphin Sine, Realty, Inc. jail following that he awakened af- Utah, (1979). Here, ternoon. Based on the statements made testimony was inadmissible because it was objec- defendant at the interviews and on immaterial. criteria,2 gave opinion tive Dr. DeCaria suffering that defendant from “alcohol capable, The defendant was be blackout” at the time of the accident and as blackout, fore onset alleged a result defendant was “unable think or knowing the likely risks he would create risk_” consider did not tes- intoxicated; drinking and while in tify at the trial. deed Dr. DeCaria Although so testified. Throughout partial the direct examination of intoxication be a Dr. defense to a DeCaria, prosecutor crime, the objected specific to the Sessions, tes- intent State v. timony lacking proper as Utah, foundation. Af- 645 P.2d 643 a de objections, ter a number of court the al- requiring fense to a crime a mens rea of lowed the State continuing motion to recklessness. When a defendant is un of testimony. strike all Dr. DeCaria’s At aware of the risks serious he has created evidence, of the close the State renewed its safety for the of others because of intoxi citing motion to strike testimony, the Rule cation, person respon the law holds that 56, Utah R.Evid. The court the took mo- having voluntarily sible for knowingly later, tion under days advisement. Nine placed position. himself in that Utah Code judgment, granted but before the court the Ann., 1953, provides: 76-2-306 § State’s motion on based Rule 56. Defend- negligence recklessness or criminal [I]f ruling prejudicial ant cites this as error. establishes element of an offense and the actor unaware of the risk because III. intoxication, voluntary of his unaware- Although we do not the address issue of prosecution ness in a is immaterial for admissibility hearsay of statements that offense. made or a psychologist psychiatrist for requisite mens rea of the purposes, foundational it is clear that the manslaughter in charge this case is reck excluding trial court did err in lessness, and psychological opinion the defendant’s was testimony for blackout reasons hearsay nothing other than the nature of the more than the of evi- effect severe dentiary testimony.3 for that Accordingly, gov- foundation intoxication. 76-2-306 § cross-examination, Roberts, During (1979). Dr. DeCaria See v. testi- 1328 also United States opinion Clark, (10th Cir.1932); fied that his about defendant’s slate of 62 F.2d 594 State v. 112 percent approximately 493, Parks, mind was based on (1975); 50 People Ariz. P.2d 1122 by during the statements made defendant 344, (1978); People 195 Colo. 579 P.2d 76 testimony interview. Dr. DeCaria’s was also Herrera, 67, Mich.App. 162 N.W.2d 330 psychological based on two tests administered 353, (1968); Myers, State v. 159 W.Va. DeCaria, by to the defendant Dr. the Minnesota Annot., (1976). generally S.E.2d 300 See "Ad- Personality Multiphasic Inventory, and the Wes- missibility Physician’s Testimony of as to Pa- Scale, Intelligence chler Adult on extensive Declarations, tient’s Statements or Other Than experience treating alcoholics. Gestae, Examination,” During Res Medical Annot., (1971); “Admissibility A.L.R.3d 778 7 holding authority 3. For that inter- out-of-court Opinion Expert by Medical as Affected His psychiatrist psychologist may views or Question Having in Heard the Person Give the support opinion testimony, used or her Case,” History 51 A.L.R.2d 1051 sections see Lemmon v. and Rio Denver Grande Western (1957). Railroad, (1959). 9 Utah 2d 341 P.2d 215 Didericksen, Compare Edwards v. (1) guments support of his contentions: produc- erns, the evidence blackout preempted statute is immaterial. was by intoxication ed by the in vehicle cases automobile homicide statute; (2) that the mens rea elements of IV. the crimes of homicide and man- preju that he was Defendant claims are the same slaughter the criminal code ruling. timing of the court’s by the diced negates voluntary intoxi- when 76-2-306 trial court erred He asserts defense; (3) process as a that due cation post testimony on a striking expert charged under requires that defendant be admitting that testi after first trial motion statute; automobile homicide 56(3), Rule argues He mony. manslaughter in the that the crime of crim- R.Evid., admission of evi required that the negli- elements as inal code has the same prior excluded if it is not dence must stand as defined in the motor ve- gent homicide 56(3) provides trial. Rule to the close of code and that the defendant is there- hicle the testi judge excludes “[ujnless the penalty the lesser fore entitled to receive to have made mony he shall be deemed homicide established admission.” finding requisite to its code. We address each issue motor vehicle he the case when Defendant misstates presented. the order to strike was first argues that the motion First, specific that the Contrary to defend- the trial. made after in the criminal homicide statute automobile contention, prosecution’s motion ant’s code, 76-5-207, specif- preempts the less during direct examina- first made an intox- manslaughter statute whenever ic a number of Dr. DeCaria. After tion of the death of another. driver causes icated prosecution, by were made objections Twitchell, 8 relies on v. Defendant State a continu- granted court the State the trial (1959), 314, 1075 2d 333 P.2d Utah objec- motion, its ing and the State renewed recently adopted auto- the more held that closing prior to and moved to strike tion the less preempted homicide statute mobile counsel was aware arguments. Defense voluntary manslaughter and older specific that the made and the motion had been that involving in cases then effect statute the matter under intended to take court automobile driven caused an death attempt no The defense made advisement. of intoxi- the influence operator grant- the court that time to inform at that cating liquor. require a different ing the motion would Twitchell, on the was based v. State strategy. defense should prosecutor concept 56(3) support to defend Rule fails charg to choose between the freedom have if the merely states that argument; ant’s misdemeanor when ing felony or a either evidence, the exclude court fails to exactly trial the same sub have the two crimes 56(3) Rule admitted. agree evidence is deemed that that sit elements. We stantive ruling to made at require the be others deny does not would defendant uation Here, laws, did the trial court time. specific equal protection his class “if timely testimony may on the State’s be used exclude the identical the same facts argument regarding completely inte motion. Defendant’s under two prosecutions statutes, mer misdemeanor timing the exclusion without one a grated 317, P.2d at 333 felony.” Id. at other a it. added). (emphasis 1077 V. distinction between The critical crimes that the and Twitchell this case the trial argues Defendant next homicide manslaughter and automobile motion either denying erred court amendment, both Prior to the differ. now charges or dismiss conduct. reckless proof of required statutes homi- charges to automobile reduce those prose- could be used facts The identical ar- makes four cide. 262

cute either a defendant under statute. criminally negligent. reckless or Time legislature amended subsequently again the auto- we held many have factors require only mobile homicide statute in determining considered the de- conduct, negligent (Supp.1985). 76-5-207 gree of culpability with which an actor Thus, prove something State must Ruben, Utah, acted. See State v. more than the elements of 445, automobile (1983); Riddle, 448-49 State v. 112 homicide to convict defendant of man- 356, 364, 449, Utah (1948); P.2d 188 453 slaughter. prove The State must that de- Thatcher, 63, 73, State v. 108 Utah 157 consciously fendant was aware of and 258, dis- (1945)(Wolfe, Justice, P.2d 262 concur- regarded unjustifiable a substantial and ring). generally Cook, See State 21 risk, 76-2-103(3). ample There is 36, evi- (1968); Utah 2d 439 P.2d 852 State v. dence in this case show that defendant Selman, 199, 2d 417 P.2d 975 culpable acted with a more mental state (1966); Park, 90, State v. 17 Utah 2d Indeed, negligence. than in State v. (1965); P.2d Berchtold, State Bindrup, we (1960); Utah 2d 357 P.2d 183 State v. approved application of the manslaugh- Adamson, 101 Utah 125 P.2d 429 nearly ter statute to facts identical to this (1942). case. The correctly trial court therefore presented From the evidence at tri denied motion defendant’s to dismiss or al, it was for not error the trial court to charges ground reduce the on the urged. conclude that the defendant had acted reck Second, defendant contends that he is lessly. The evidence established that the punishment provided entitled to the drinking defendant had heavily been before in the homicide criminal code be- driving driving high had been at a rate negates cause when voluntary 76-2-306 speed through while red sema defense, intoxication as a there is no differ- phore lights heavily on travelled roads. ence between the elements of the crime of Clearly recklessly. acted defendant manslaughter and those of the crime of Third, time an homicide criminal code. intoxicated driver causes the death of an- (Under separate the criminal code there are other, charged he must be with automobile negligent crimes denominated homicide and argument homicide. The is without merit. homicide.) automobile The distinction be- above, As demonstrated the mens rea ele- manslaughter negligent tween homi- manslaughter ments of and automobile cide in requisite the criminal code is the same, homicide are not the and an intoxi- Howard, Utah, mental state. v. State person certainly cated incapable is not of (1979). Manslaughter re- justice system reckless conduct. Our con- quires recklessness; showing negli- of templates graded a series of offenses that gent homicide in criminal code requires the distinguished by increasingly culpable men- only negligence. criminal tal prove states. If the can State that a Contrary to the defendant’s as culpable defendant acted with the more sertions, does not 76-2-306 render the § state, mental the defendant can be convict- indistinguishable. two offenses Section higher ed of the offense. provides 76-2-306 that where “reckless negligence ness or criminal establishes an that since sever element of involving an offense and the al recent is homicide cases automo actor voluntary charged unaware of the risk because of biles were as automobile homicides intoxication, offenses, is his unawareness immaterial rather than it was prosecution in a process charge for that offense.” Defend a violation of of law to due argument ant’s him manslaughter, that 76-2-306 renders with rather than auto § indistinguishable Again the two offenses over mobile homicide. we are con degree point looks the fact the of the intoxi strained to out may just negligently, cation whether upon recklessly, bear a defendant acted charged with differentiates properly be between “recklessness” therefore could manslaughter. disregard” by holding “reckless “reck- disregard” less motor the vehicle code argument Defendant’s fourth and final is may be established if the defendant knew homicide,” “negligent of de- that the crime caused, the or should have of risks known 41-6-43.10(a) the motor ve- fined of § whereas “recklessness” under the criminal (which separate offense from code is a hicle requires code actual awareness. The lan- neg- crimes automobile homicide and of guage of is not Berchtold inconsistent with code, in the criminal ligent homicide §76- this opinion. 76-5-206), is on essen- 5-207 based § as define the tially same elements change legisla We cannot manslaughter in the criminal code. crime of tive policy respect penalties with Therefore, 76-5-205. under authori- embodied statutes at issue. Never Loveless, Utah, 581 P.2d 575 ty of State v. theless, disregard responsi we cannot our Shondel, 22 (1978), and v. 2d State bility assure the rational and evenhand (1969), 453 P.2d 146 the defendant is application Equal ed of the criminal laws. or, penalty lesser entitled protection guarantees of law like treat Utah, Hales, (1982); 652 P.2d 1290 State similarly ment those of all who are situ Clark, (1981); State Accordingly, ated. must the criminal laws Morris, Utah, 598 P.2d 333 and Helmuth v. are significant be written so that there have the defendant should been differences between offenses and so that charged more specific with the crime. subject is exact same conduct The crime of homicide is de- penalties depending upon which as follows: fined the motor vehicle code statutory a prosecutor of two sections any person When the death of ensues charge. be chooses to To allow that would proximate as a year within one result form is allow a of arbitrariness injury received foreign system Legisla to our 'of law. The disregard vehicle in reckless safe- ture make homicide which automobile others, person operating so ty of recklessly either a misde committed guilty such vehicle shall be make the felony, meanor or but cannot homicide. misdemeanor, and a felony crime both added). 41-6-43.10(a) (emphasis Negli- prosecutor as to leaving the choice to the punishable as a misde- gent homicide is charges felony a misde whether he or hand, Manslaughter, the other meanor. on meanor. “[rjecklessly is committed when one ...,” of another 76-5- causes death Because a “reckless” defendant 205(l)(a), felony. Reck- punishable as a behavior, could, charged for the same 76-2-103(3) is of the lessness defined § statute, give a under either the statutes person provides that a criminal code which to impermissible discretion prosecutor recklessly: acts upon penalty defendant’s choose a based consciously aware of but he is [W]hen to prosecutor chooses which statute the disregards unjustifiable a substantial and held in State v. Shon charge under. We exist or the risk that the circumstances del, 2d 146 22 Utah must of result will occur. The risk wholly duplicative are that if two statutes degree a its dis- such nature crime, law the the as the elements of gross regard a deviation from constitutes to exercise permit prosecutor does a ordinary of care that an the standard decide authority to wholly the unfettered all cir- exercise under the person would charged aas the crime should be whether as viewed from the actor’s cumstances ele the felony. or a Because misdemeanor standpoint. the statute and the' motor vehicle ments of same, defend the manslaughter statute are v. Berch The State contends State punishment lesser (1960) ant entitled to the told, 2d 208 857 P.2d provided statute, the under motor vehicle PETITION FOR REHEARING 41-6-43.10. STEWART, Justice: legislature It is a matter for the to fix The has petition State filed a for rehear- punishment the disregard for reckless of ing in this earnestly matter which it Clearly human make penal- life. can the vigorously contends that the Court erred ty felony; prose- a but it cannot allow the disposition its of the case because of our the cutor to make decision for it. There- failure to take into account the effect of fore, Berchtold, State the is entitled to be sen- Utah 2d P.2d 183 in ruling that the man- tenced under the homicide stat- slaughter statute and the motor code, vehicle ute in motor the vehicle rather than code impose penalties for the manslaughter provision the in the criminal same criminal conduct. State urges The punishment code. If provided the in the that the term “recklessness” as defined in motor code is appropriate vehicle to the code, U.C.A., 1953, criminal 76-2- crime, gravity Legisla- of it is for the 103(3)(1978)does not mean same as the necessary change ture to make the term disregard “reckless safety of the law. 41-6-43.10(a) others” which is in We therefore reverse and remand for motor vehicle code. sentencing in accordance with this decision. code, defendant, Under the criminal a “recklessness,” have acted with must be JJ., DURHAM,

HOWE and concur. consciously, and subjectively, therefore unjustifiable aware of a substantial and HALL, (concurring): Chief Justice risk of a causing 76-2-103(3). death. See § Berchtold, Under the Court held that the The of this amply support facts case term disregard” “reckless under the motor manslaughter, conviction of pun- vehicle permitted code a if conviction However, felony: ishable as a I am con- “ consciously ‘defendant chose course of join strained in overturning Court knowing action that such course would imposed Legisla- sentence because the place guests grave and serious dan- ture seen any has not fit to make distinc- ger knowledge or with of facts which tion between the elements of offense of danger any would disclose such reason- manslaughter and the offense of ” person.’ able 11 Utah 2d at 214-15. In homicide, punishable as a misdemeanor un- words, other under this standard defend- der the vehicle motor code. ant guilty could be found if the defendant lack distinction between the two subjectively conscious, objectively or compels statutes this Court reach a re- conscious, grave should have been of a sult adequately punish that does not serious risk that he had created. result, Further, offender. while neces- The Court in Berchtold also stated that sary law, does not meet what “require motor vehicle statute did not appears legislative to have been the intent choosing intentional accident nor the in enacting statute. In highly dangerous fully course con- while event, any the lack of distinction be- danger confronting scious or aware of the tween the two statutes is intolerable and is choosing him in such course. [However] deserving prompt legislative action. require the of a choosing does course [i]t grave

with dangers, and marked and the driver must conscious and of the aware BALLIF, Judge, District concurs chooses, course he and such course must be HALL, opinion concurring C.J. fraught danger so with that all reasonable ZIMMERMAN, J., participate does not persons thought it they if about could not herein; BALLIF, E. GEORGE District fail In recognize danger.” all events, Judge, required great- sat. the statute a “much ordinary negli- of care than er lack _” at gence COUNTY, Id. 215.1 body politic, By UTAH Through the COUNTY BOARD OF defi- The State Berchtold EQUALIZATION COUNTY, OF UTAH disregard” permit of “reckless would nition Utah, Plaintiff, State of motor stat- a conviction under the vehicle “knew” or ute for action which a defendant danger- highly have known” was “should CARE, INTERMOUNTAIN HEALTH true, Although ous to others. INC., and Tax Commission of the change the required results this does State of Defendants. statute, manslaughter case. Under the No. 17699. actually have known of the defendant must risks; disregarding risks which he simply Supreme Court of Utah. of is sufficient should have been aware June 1985. provision. to sustain a conviction under that he could also have been convicted un- But Rehearing Sept. Denied 1985. actually motor vehicle statute if he der the risks, jury this as the case

knew the It that the defendant

found. is irrelevant been

could not have convicted risks known, but

about which he should have did premise Accordingly,

not. opinion

Court's main the defendant have convicted under either the

could been vehicle statute or motor act, precisely with

code for the same but punishments, wholly valid. reasons, foregoing petition

For rehearing is denied. DURHAM,

HALL, C.J., JJ., HOWE and BALLIF, Judge, E. District GEORGE

concur. J.,

ZIMMERMAN, participate does not

herein. 76-2-103(3) person all ordinary would exercise conduct defines Section recklessly: from the actor’s performed as viewed that is circumstances standpoint. consciously aware of but dis- he is [W]hen congruent test Berchtold unjustifiable with the regards risk This test is substantial and did not exist or the result will Berchtold that the circumstances as the nature of the risk. place negligence be of such a nature occur. The risk must test in establish criminal gross disregard degree its constitutes recklessness. that an of care from standard deviation

Case Details

Case Name: State v. Bryan

Court Name: Utah Supreme Court

Date Published: Jun 6, 1985

Citation: 709 P.2d 257

Docket Number: 18948

Court Abbreviation: Utah