*1
The
Newberg,
This was sufficient under the circum- injuries This plaintiffs were se stances, situation, to assess the make some vere; severed, her nearly foot was and she calls, judgment and drive off without strik- suffers from in the limitations use of her ing plaintiff. foot that will require surgeries. future We emergency The doctrine of sudden has conclude the district court did not abuse into fallen considerable criticism and has its refusing discretion in a new trial on this jurisdictions. even been some abandoned ground. expressed See id. at have 480-81. We some tendency concern because “to DECISION OF COURT OF AP- unduly emphasize aspect case,” one VACATED; PEALS JUDGMENT OF although rejected we the doc- DISTRICT COURT AFFIRMED. trine. id. at If we were to hold
the instruction emergency on sudden was case,
required in present we would not doctrine,
just preserve the we would ex-
pand beyond appropriate scope. it well its
The district court not err in refusing did
the instruction. Iowa, Appellee, STATE of Comparative
III. The Fault Issue. complains Ankrum of the trial jury court’s refusal to instruct on the Joseph SUTTON, Appellant. Allen plaintiffs comparative negligence. He that, pedestrian contends [a] “where No. 99-1245. great potential knows of the for a conflict Supreme of Iowa. Court observe, jury remains to should be able to assess that fault.” He cites no 15, 2001. Nov. authority proposition, and it seems relatively that a decision by distant
stander not to flee an altercation between generally
others would not rise to the level negligence. defendant’s The assertion plaintiff negligent by “partici was joint
pating enterprise” is not sup
ported by any evidence. The district court
properly refused to instruct the as to
comparative fault. Damages.
IV. moved for defendant a new
trial on the basis the verdict excessive.
A ruling district court on a motion for new
trial based on the of the verdict size
reviewed for abuse of discretion. Kuta v. *2 Simmons, Davenport, appel- for A.
Kent lant. General, Miller, Attorney
Thomas J. Doland, Attorney Gener- Karen Assistant al, Davis, Attorney, and County E. William Cusack, cars, parked and Robert As- two with front of Jerald Feuerbach the van slightly County Attorneys, appellee. edging sistant over the middle of the street. NEUMAN, Justice. *3 passenger vehicle, Another in Butler the in challenges Numerous are raised legal Glenn, thirteen-year-old Markey testified appeal by Joseph this from his Sutton slightly that Butler had to swerve to miss aiding and abetting conviction for vehicular vehicle, the Glenn Willert which described the by driving. homicide reckless But de- coming right explains as This them. fail cisive issue the to is whether facts Willert’s belief that the Butler vehicle a of the conviction as matter law. up opposite went somewhat on the curb va- they
We conclude do. We therefore speed and down resuming slowed before a contrary appeals cate court of decision passing and him. Glenn also testified that judgment and of district reverse the maneuver, upon executing this Sutton told court. “good job” two exchanged Butler a “high just It reportedly five.” was after Background Legal
I. Facts and Pro- congratulatory gesture that Butler ceedings. path. applied first saw child in his He in sunny Saturday morning On a his but brakes time to neighborhood older residential of Daven- hitting the avoid child. Willert observed port, three-year-old played Steven Choate the collision his mirror. rear-view yard the front of a His friend’s home. retrieving Willert assisted Butler in grandparents hosting a sale garage were undercarriage child of the vehi- In attempt across the an evident street. Emergency cle. help was summoned. rejoin family, suddenly to his little Steven Glenn, meanwhile, panicked and Sutton ran into the he Tragically, street. was on and fled foot. by struck and a car fif- killed driven charged The with aiding State Sutton teen-year-old Joseph “Junior” Butler. De- abetting vehicular reck- homicide Sutton, Joseph fendant who is seventeen driving in violation Iowa Code less of sec- old, years passenger Butler was 707.6A(2)(a) tion The (Supp.1997). case vehicle. proceeded jury During jury to trial. selec- Avenue, Wilkes where the oc- collision tion, challenge mounted a Batson Sutton curred, is a two-lane residential street with peremptory to the strike of the State’s posted both parking allowed on sides and a only jury panel. African-American on twenty-five limit of hour. generally Kentucky, See Batson v. eyewitness An two recon- accident 79, 106 U.S. S.Ct. L.Ed.2d 69 experts struction estimated that Butler’s (1986). argument After on hearing pre-impact speed twenty-seven point, rejected the challenge. the court Willert, eyewitness, hour. The Jim rejected motions court likewise passed the Butler vehicle travel- judgment acquittal of based on Sutton ing in opposite direction. Willert alleged insufficiency of the evidence to towing drove a van trailer with a stock charged offense. vehicle, car on met it. As he the Butler pulled Willert jury finding over the curb behind one returned a verdict Sut- lim- parked guilty charged. failing two cars because there was ton After trial, pass. prevail ited room to Willert’s van trailer motion for new Sutton on position, were We appealed. then a “V” between the transferred case to the HO court, means such evi- one evidence That with Substantial appeals.
court of trier could convince a rational affirmed the denial dence as dissenting, judge be- judgment acquittal guilty fact that the defendant is motions for Sutton’s with directions remanded doubt. yond but a reasonable reversed weight-of- apply the correct court to to the make a sub- reviewing A court cannot motion Sutton’s the-evidence if it con- evidence determination stantial Ellis, trial. for new supporting only siders 1998). The dis- 658-59 a rational fact guilt. This is so because court failed believed the district sent a verdict without finder cannot render proximate properly instruct *4 all the record taking into consideration preserve that counsel’s failure cause and determining in whether evidence. So pres- issue warranted error on this crucial evidence, we must there is substantial postconviction the claim for ervation of evidence, consider all the record rejected also Sutton’s The court relief. supporting guilt. the evidence imposition challenge to the constitutional (Iowa 678, 681 v. State under $150,000 in restitution of victim omitted). 1993) (citations 910.3B(1) (Supp.1997). Iowa section Code Applicable Law. us on Sutton’s III. The case is now before facts further review. Additional petition for 707.6A(2)(a) section sets Iowa Code they pertain as will be detailed driving alternative to forth the reckless review. issues on by vehicle. The the crime of homicide provides: statute Appeal/Scope of Review. II. on Issue a class felo- person 2. A commits “C” outset, Sutton noted at As we person unintentionally ny when the con- challenges to his legal mounts several by any of the death of another causes viction, denial of his including the court’s following means: and a forceful claim challenge Batson in a reck- Driving a. a motor vehicle give led the court to error trial counsel or wanton disre- less manner with willful proximate cause inadequate proper- safety persons of or gard for the however, convinced, We are instruction. in of section 321.277. ty, violation appeal turns on that resolution of whether, a of question fundamental 707.6A(2)(a). language § Iowa Code law, to tender of the State failed matter statute, section of the reckless reckless conduct—or proof sufficient 707.6A(2)(a), 321.277, defin- echoes section sup- abetting that conduct—to aiding and “drivfing] any vehicle ing the crime as port charge against Sutton. a willful to indicate either such manner as safety of disregard for the or wanton by well-estab guided areWe driving is property.” or Reckless persons suffi rules as we consider Sutton’s lished misdemeanor. punishable simple as a challenge: ciency-of-the-evidence (1997). § Iowa 321.277 Code finding guilt district court’s upon the State to The burden rests unless we find there binding upon us Cox, 500 prove recklessness. State evidence the rec- was not substantial (Iowa 1993). Cox, 23, In this 26 In deter- N.W.2d finding. such ord to that, when a death plain made even there was substantial court mining whether road, occurs, a rule of the evidence, violation of view the record evidence we itself, simple misde- elevate “a does not favorable to the State. light most
HI fore, felony.” meanor to class ‘C’ Id. Thus reckless. In v. Conyers, 506 proof yield 1993), that a at a motorist the facts stop sign, accompanying without revealed that.defendant drove ten miles an speeding or erratic driving, was insuffi- hour over posted speed limit in a zone, cient as a matter of law to establish the traveling school through a red light necessary recklessness a con- and into a marked crosswalk where he viction Relying for vehicular homicide. Id. nine-year-old struck and killed a on her Klatt, on way court held State v. home from school. The facts further (Iowa Ct.App.1995), revealed that three out of four brakes more, proof improper passing, Conyers’ without truck were “completely deteri- could not sustain a vehicular homicide con- orated and inoperable.” Conyers, 506 viction. Klatt involved a motorist who was N.W.2d at Conyers knew of the attempting pass two semi-trailer trucks and, fact, brakes’ defective condition vehicle, when he collided with an oncoming very been warned that day not to drive the killing the driver. Although the maneuver vehicle. Id. at 444. This court held that zone, occurred in a no-passing the court disregard defendant’s danger, *5 proof held that speed absent of excessive driving combined with at an excessive or other conscious disregard safety for the speed zone, in a school demonstrated the others, of the State in failed its burden of level of necessary recklessness to support Klatt, proving recklessness. 544 N.W.2d a conviction for vehicular homicide. Id. at at 463. 445. case, In a more recent cases, this court
These
distin-
addressing
others
guished Klatt and
upholding
conduct
a convic-
resulting in the unintentional
another,
where,
tion for vehicular
death of
homicide
in a
recognize that attaching
move,
deadly
criminal culpability to an
requires
driving
act
more
near-
defendant —
proof
ly ninety
per
than
of accidental or
hour in a
negligent
no-passing
be
exist,”
havior.
zone—forced an oncoming
“[F]or recklessness to
this
motorist off the
Torres,
in
court held State v.
path
road and into the
of another vehicle.
Abbas,
(Iowa
72,
State
561 N.W.2d
74
act
must be fraught
high
with a
1997). Likewise,
Travis,
in State v.
497
degree of danger.
In addition the dan
Ct.App.1993),
907
our
ger must be so obvious from the facts
court
appeals
of
found the requisite reck-
that the actor knows or should reason
lessness established in a record that
ably foresee that
probably—
harm will
is,
showed defendant riding
motorcycle
his
at
likely
that more
than not—flow from
curbs,
speeds
excessive
“on
the act.
sidewalks and
lawns,
lifting
motorcycle
his
off the
words,
IV. Travis, at 497 N.W.2d striking schoolgirl); abetting driving). reckless driving (aiding 908 Butler’s question The whether owner, State, by called unreason- The vehicle’s highly on Wilkes Avenue “mushy” were but not departure from conceded the brakes or such an extreme able prevent him from just sufficiently hazardous neg- as to constitute not ordinary care Thirteen-year-old Markey driving the car. The State’s ex- ligence but recklessness. turn at the during that his driving twenty-seven that Glenn testified pert conceded wheel, gave out” at one the brakes “sort twenty-five in a mile hour not that he “almost” did intersection so fairly could not be described hour zone that But he went on to state attempted por- stop. reckless. So the State
H3 CADY, gave incident him no farther concern. The Justice (dissenting). proof no
record contains
he mentioned
I respectfully dissent.
Sutton,
it
or that
to Butler or
either one of
majority
The
has properly stated our
any knowledge
them had
whatsoever that
review, yet
standard of
fails to adhere to
poor
were in
obviously
the brakes
such
the standard in its review of this case.
condition that harm
probably
would
flow
Torres,
driving
the car. See
495
This case has
layers
two
of conduct at
issue. The first
is the conduct of the
driver. The second is the conduct of the
In making our assessment of the
passenger.
legal
The
applicable
evidence,
sufficiency
obliged
we are
type
to each
of conduct is well settled.
evidence,
just
to consider all the
The conduct of the driver must be reck-
evidence supporting the verdict. State v.
less. This means there must be evidence
Robinson,
337,
288 N.W.2d
340
the driver knew or
reasonably
should have
1980);
accord
case was There was It then uses most favorable to the State. the crisis situation. react to in the argu- ample the circumstantial evidence rec- to defeat State’s this conclusion inexperience, that the driver knew the brakes were youthfulness, that the ord ment of the driver were of the good status not condition. owner and unlicensed “mushy.” recklessness. factors to vehicle testified the brakes were warning was evidence the brake There only sequitur, a non but logic This the light on the dashboard of vehicle was and is a lacks foundation mis- premise Furthermore, the thir- illuminated. even The skid mark the record. to statement operated boy who also teen-year-old to the was unrelated in this case evidence morning, Markey vehicle on that fateful reacting to the situa- skill of the driver Glenn, the vehicle could tell Instead, simply it revealed vehi- tion. good condition. that the brakes were not stop 116 feet from came to probably cle the State was enti- Clearly, the inference made the the driver point at which that the could have to receive and tled point If the stop the vehicle. decision operating the any is that driver drawn known, also show the it would impact was did would have realized the brakes vehicle and the vic- the vehicle distance between properly. not work realized the need tim when the driver n the vehicle. brake turns to evidence majority then expert in majority, no Contrary to the car trailer obscured the that the stock opinion about this case rendered ahead, full view of the street driver’s driver, only opined about but skill playing the children near the street well as the vehicle distance between It then uses this in the obscured area. the driver saw the the moment victim at the driver could not conclude brakes. The defendant apply need he had no been reckless because that there was not at trial argued young child ahead. knowledge of the because stop the vehicle enough time to However, important is another con- there path of the vehicle. victim ran into the that can be drawn that is favorable clusion on a claim was based This conclusion A reasonable driver would to the State. ten feet into impact occurred point slow down when the vision stop or least point argued The State the skid. is obscured an ob- of the road ahead very end of the at the impact occurred the road. The inference the struction on skid, reasonably safe driv- implying that a draw in this case is majority should time to enough have had er would to a safe the driver failed to slow ma- the victim. The striking car without *8 obscured, and this when his vision became this evi- to consider jority only fails recklessness. failure is a factor to the favorable light dence in a most being case was not The vehicle State, draws an infer- required, it but is presence in an area where the driven is defendant favorable to the ence would not be in or near the street children incorrect. area. It It was a residential expected. morning. It sunny, Saturday fall the evidence was turns to majority next expect people time of the was a for drivers the brakes poor of the condition of to reduce the in the area. The failure cannot be this evidence vehicle and concludes stop the vehicle vehicle or to speed there the driver because imputed be ahead is obscured when the driver’s vision knew the brakes evidence he was no direct supports recklessness. is a clear factor majority fails to faulty. Again, the were
H5 care the blindly It showed a clear lack of and concern vehicle and contemptuously might speed path for what be the obscured area. continued to into the of little Moreover, certainly it cannot be used to Steven Choate. This was reckless conduct driver, disprove by recklessness. responsible and Sutton is for it as an aider and abettor. Sutton was the Finally, majority minimizes the evi- only experienced driver in the vehicle. In- by dence the State that the offered driver stead of discouraging such reckless con- intersection, at an stop failed to as re- duct, he by commended the driver telling just quired, prior to the collision. The him doing “good job.” he was majority downplays this evidence because supported by eyewitness. it was not an majority is correct that a violation Again, majority road, itself, violates our by of the rule of the does not police of review. Cox, Tests after the inci- constitute recklessness. See State v. (Iowa 1993). possible dent it revealed was not to reach Clearly, the speed of the vehicle in this case from a we cannot compartmentalize reckless driv- position stopped stop sign. ing at the This into categories of violations of rules of was circumstantial evidence the driver the road. This is because reckless driving accept. Thus, that we must actually Addi- a state of mind. we look tionally, majority consistently beyond particular refers to violation of the rule speed at twenty-seven the vehicle of the road involved in the case to consider experts, hour. The State’s how- whether the overall conduct of the driver ever, placed speed of the vehicle in a would a reckless state of mind—a range twenty-nine thirty-two between mind that reveals actual or constructive hour knowledge operation seconds before the acci- that the of the vehicle dent. creates an unreasonable risk of harm for others. See at 681. view, In my sup- substantial evidence Thus, Cox, example, the running of a recklessness, ports and we done a stop sign did not constitute reckless driv- jury system by disservice to our reversing ing because there was no additional evi- the conviction. There was evidence the dence the speeding operat- driver was or driver should have reasonably foreseen ing in an the vehicle erratic manner. likely by some harm operating was a vehi- at cle, in a chil- residential area the time expected dren playing would be to be out- The driver in this case was not reckless side, speed up at a simply to seven miles over the because he speeding was or be- limit, when driver’s vision of cause his conduct resulted in the death of Instead, adjoining yards street ahead and was another. he was reckless because substantially Additionally, obstructed. driving erratically carelessly, he was noticeably faulty just vehicle had brakes and as the driver Cox would have been youthful, inexperienced, was driven if stop sign reckless violation would untrained, operator unlicensed accompanied by who had have been driving. erratic stop sign ran a celebrating This case is not a case misjudgment or the successful passage oncoming inadvertence driver. It is a case of *9 trailer, truck and with a maneuver that horseplay accompanied by uncaring at- curb, required jump him to ex- titude and careless frame of mind. The changing high-five’s with the passenger. displayed behavior “fraught with a the driver passenger engaged As high degree danger” clearly and was celebration, in their reckless and heedless enough to show the driver should have 1X6 operation of the vehicle
known harm. See risk of
created an unreasonable obli- at 681. We are of review to affirm our standard
gated by jury.
the verdict
LARSON, J., joins this dissent. Iowa, Appellee,
STATE EMERY, Appellant. Allen
Lee
No. 99-1957. of Iowa.
Supreme Court
Nov.