State v. KliegelState v. Kliegel
- Reporters:
- ,
- Before:
- Shangler
The defendant was convicted of two separate counts of vehicular manslaughter in violation of § 577.005, RSMO Supp.1984, and was sentenced to imprisonment for two years on each count. The appeal contends that the evidence does not allow inference that the conduct proved against the defendant was criminally negligent, therefore the convictions may not stand.
The defendant Kliegel and his wife went to an inn on the evening of August 28, 1982, for a beer. There they met the Beards and the two couples decided to play cards at the Beard residence. On the way, they purchased a case of beer. They played until midnight and in that course consumed some twenty cans of beer. Mrs. Kliegel estimated her husband drank six of them. They left the Beard apartment about midnight and drove to a tavern where the defendant consumed another beer and purchased yet another to take with him. They regained their car, and the defendant took the wheel. They went onto Monroe Street and drove south in the direction of the intersection with U.S. 50 Highway and he consumed the beer as he drove. It was by then after midnight.
At about that time, Jerome Pleasant and three companions — fiancee Rita Webb, Sandra Bentley [both victims of the offenses charged against the defendant] and Patrick Cayce — were enroute home from a party. Pleasant was the operator of a Honda eastbound on U.S. 50 Highway in the direction of the intersection with Monroe Street. Pleasant had consumed some seven beers during eight hours at the party.
There was also William Vanderfeltz. In the early morning of August 29, 1982, he was homeward bound after a date. He drove eastbound on Highway 50 and approached Monroe Street at about 50 miles per hour. As he travelled the left lane of the highway, the Pleasant car passed to the right. The intersection of Monroe and the highway was then controlled by an electric traffic signal which flashed yellow for vehicles on Highway 50 and red for traffic on Monroe. As he neared the intersection, Vanderfeltz saw an Oldsmobile station wagon [driven by defendant Kliegel] in movement south on Monroe Street. The Oldsmobile was still some distance from the intersection when he first saw the vehicle. Vanderfeltz saw the Oldsmobile approach the intersection with undiminished speed and then proceed through without stop. As the Kliegel station wagon crossed onto Highway 50 and into the eastbound lanes, Vanderfeltz saw the brake lights on the [Pleasant] Honda come on just before the vehicles came into collision. The impact of the station wagon impelled both vehicles across the intersection onto Monroe Street.
The defendant Kliegel submitted to a breathalyzer after the collision. The test disclosed a blood alcohol level of .265%. The statute [§ 577.037.1, RSMo Supp.1984] constitutes a blood alcohol level of .10% or more, as “prima facie evidence that the person was intoxicated at the time the specimen was taken.” It was shown that Rita Webb and Sandra Bentley, both passengers in the Pleasant vehicle, died as a result of injury suffered in the collision.
A person commits the crime of “vehicular manslaughter•” if he, while in an intoxicated condition or under the influence of controlled substances or drugs, operates a motor vehicle in this state, and when so operating acts with criminal negligence to cause the death of any person within one year next following the driving.
This section posits three elements for offense: (1) an intoxicated driver (2) who operates the motor vehicle with criminal negligence (3) to cause death of a person.
The appeal concedes the intoxication of the defendant Kliegel and that the collision caused the deaths of Webb and Bentley, but contends that the evidence was not sufficient to raise a jury issue that the defendant then operated the Oldsmobile with criminal negligence.
The Criminal Code renders this definition of criminal negligence:
§ 562.016 [RSMo 1978] Culpable Mental State
5. A person “acts with criminal negligence” or is criminally negligent when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.
The defendant argues in effect that, given the circumstances shown by the prosecution evidence, the Kliegel conduct — operation of the vehicle onto and across the highway in disregard of the command of the traffic signal to stop — does not prove a failure of awareness that such conduct involved a substantial and unjustifiable risk of the result which ensued, or that such conduct was a gross deviation from a reasonable standard of care in the circumstances. The defendant argues that the Kliegel heedlessness of the stop signal notwithstanding, the risk was created not by Kliegel, but by Pleasant, who had himself consumed some seven beers, had an unobstructed view of the approach of the Klie-gel car on Monroe to the north, and who entered the intersection at an unabated speed of 50 miles per hour despite the caution of the yellow signal light.
This developed argument takes on the color of contentions of contributory negligence to exculpate from liability and want of proximate cause to establish it. The argument suggests even more: that Pleasant, not Kliegel, created the risk of the deaths which ensued and alone was the criminal actor. Contributory negligence, however, is not a defense to a charge of vehicular manslaughter. State v. Medlin, 355 Mo. 564, 197 S.W.2d 626, 630[8, 9] (1946). Nor does a wrongdoer escape liability for a criminal act because another event concurs to produce the prohibited consequence. That principle appertains whether the concurrent cause be an existent infirmity of the victim [State v. Frazier, 339 Mo. 966, 98 S.W.2d 707, 713 (1936) ] or whether the concurrent cause be a criminal act of another [Jones v. Commonwealth, 281 S.W.2d 920, 922-23[3] (Ky. 1955); 22 C.J.S. Criminal Law § 37c (1961)]. Nor does the choice of the prosecutor not to charge one equally culpable of offense tend to prove that the person actually charged was not also culpable. State v. Smith, 422 S.W.2d 50, 66[26, 27] (Mo. banc 1967).
The vehicular manslaughter section upon which the convictions stand [
The section upon which the convictions rest—
The definition of
criminal negligence
in § 562.016 shows that it comprehends more than mere negligence: that the failure of the actor to be aware of the risk the conduct involves amounts to
a gross deviation from the standard of care which a reasonable ‘person would exercise in the situation.
That
criminal negligence
does
not
encompass conduct which amounts to “reckless and utter disregard for human life” [as defendant argues], but rather is encompassed by it, is also clear from the ordered scheme the Criminal Code imposes to find guilt. Thus, the culpable mental states § 562.016 promulgates are graded: acts done
purposely, knowingly, recklessly,
and with
criminal negligence.
3. If the definition of an offense prescribes criminal negligence as the culpable mental state, it is also established if a person acts purposely or knowingly or recklessly. When recklessness suffices to establish a culpable mental state, it is also established if a person acts purposely or knowingly. When acting knowingly suffices to establish a culpable mental state, it is also established if a person acts purposely.
That criminal negligence is a lesser order of culpable mental state than recklessly is made evident from the exposition of subsection 2 of that application statute:
2. [I]f the definition of an offense does not expressly prescribe a culpable mental state, a culpable mental state is nonetheless required and is established if a person acts purposely or knowingly or recklessly but criminal negligence is not sufficient. [emphasis added]
See also
The New Missouri Code: A Manual for Court Related Personnel § 7.4, Comments (1978);
The contention of the defendant, therefore, that vehicular manslaughter under
The Tatum, case, among them, delivers the dictum [l.c. 567-568] that “ ‘criminal negligence’ and ‘culpable negligence’ are synonymous.” The defendant cites that pronouncement to assert the equivalence of the substantive charge under the culpable negligence statute as well as the vehicular manslaughter statute upon which the convictions rest. It is evident from the text of opinion that the declaration that “culpable negligence” and “criminal negligence” were equivalents was only a euphemism. The instruction authorized a return of guilt if the defendant acted “carelessly, with criminal negligence” rather than with “culpable negligence,” in the terms of the statute. The opinion [l.c. 567-568[2]] went on to say: “Although ‘criminal negligence’ and ‘culpable negligence’ are synonymous [citation], use of the statutory terminology would avoid any question.” That was only to say that by the terms of the statute “culpable negligence” was criminal conduct; therefore, to pose the submission of guilt in terms of “criminal negligence,” although not fastidious, was not a misdirection.
Criminal negligence
did not become a guilty state of mind until enactment of the Criminal Code in 1978, some years after the
Tatum
decision. That state of mind, as discussion shows, connotes a grade of conduct distinct from
recklessness
and less culpable, and requires a less stringent proof. That the substantive crime of vehicular manslaughter enacted by
The evidence favorable to the convictions shows: the defendant Kliegel operated his vehicle while in a condition of intoxication [.265% blood alcohol level]. He undertook to cross over a through highway in the darkness and was required to stop before he entered upon the road [§ 304.351.4, RSMo 1978], but failed to do so. The intersection of the highway and Monroe Street, upon which Kliegel approached, was protected by a flashing red light which gov-, erned the movement of vehicles on Monroe into the intersection with the highway, but Kliegel failed to heed that signal in violation of § 300.165.1(1), RSMo 1978. The defendant Kliegel entered onto the intersection without prior stop and continued across without diminution of speed; that he did despite the approach of two vehicles from his right — at least one of them at a rapid [50 m.p.h.] rate of speed, and despite the superior right-of-way the traffic on U.S. 50 Highway enjoyed. That in addition to all the other rules of the road, the de
The argumentation of the defendant to the contrary notwithstanding, the cases have found this quality of evidence — and even less flagrant misconduct — in the operations of motor vehicles — to suffice for conviction even under the culpable negligence “reckless and utter disregard for human life” standard. See, among many others: State v. Adams, 359 Mo. 845, 224 S.W.2d 54, 58[6, 7] (1949); State v. Medlin, 355 Mo. 564, 197 S.W.2d 626, 629[3] (1946); State v. Campbell, 84 S.W.2d 618, 619[1] (Mo.1935); State v. Devall, 654 S.W.2d 172, 175[4] (Mo.App.1983).
The judgments of conviction are affirmed.
All concur.