State v. Simpson

STATE_V_SIMPSON.91-443; 160 Vt. 220; 627 A.2d 346


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.

                                 No. 91-443


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Addison Circuit

 Scott Simpson                                March Term, 1993


 David A. Jenkins, J.

 Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
     Attorney General, Montpelier, for plaintiff-appellee

 Charles Martin of Martin & Paolini, Barre, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      MORSE, J.   Defendant appeals from jury convictions for vehicular
 homicide and leaving the scene of an accident.  See 23 V.S.A. {{ 1091(c),
 1128(a) and (c).  He argues that (1) the court erred by refusing to allow
 defendant's expert to testify that the accident would not have happened if
 the decedent had not been speeding; (2) his right to testify was chilled by
 the court's ruling that the State could impeach him with a comment he made
 about obtaining license plates that read "KILLER"; and (3) the court errone-
 ously instructed the jury on the standard of care that defendant must have
 failed to meet for conviction of vehicular homicide.
      The State concedes the third point and agrees that the { 1091(c)
 conviction must be reversed.  The court's charge permitted the jury to base
 the conviction on a civil negligence standard, contrary to this Court's
 recent decision that a conviction under { 1091(c) requires, at minimum,
 criminal negligence.  See State v. Beayon, ___ Vt. ___, ___, 605 A.2d 527,
 528 (1992).  The parties, disagree, however, on whether reversal of the {
 1091(c) conviction requires reversal, or remand for resentencing, of the {
 1128 hit-and-run conviction.  We reverse the { 1091(c) conviction and
 remand the case for sentence reconsideration as to the { 1128 conviction.
      According to an eye witness who testified at trial, the decedent was
 killed when he lost control of his vehicle and struck a telephone pole while
 attempting to avoid a collision with defendant, who had pulled out of a side
 road onto the highway without stopping.  After the collision, defendant
 continued up the road, turned around, and drove slowly back by the scene of
 the accident.  He stopped at a nearby residence and asked the occupant to
 call the police, and then left the scene without identifying himself or
 rendering assistance.  Later, when the police interviewed defendant at his
 home, he first denied that his car had been driven that day and then denied
 having driven it himself; eventually, he admitted that he had driven the
 car.
      Defendant's principal defense at trial was that the decedent had caused
 the accident by driving at an excessive speed.  The posted speed limit on
 that stretch of the highway was 50 mph, although there was an advisory sign
 suggesting a speed of 40 mph.  The State's expert testified that the dece-
 dent had been driving at 58 mph at the time of the accident, that the
 advisory speed limit was not significant in this instance because the dece-
 dent was an experienced driver familiar with the road, and that the critical
 speed for that curve -- the speed beyond which a vehicle would leave the
 road -- was 65 mph.  He further testified that he used no specialized skills
 in negotiating the curve in a police cruiser at speeds of 50, 55, 60 and 65
 mph.  He also testified that, assuming the decedent had been traveling at 58
 mph, defendant could have seen the decedent's vehicle for approximately 26
 seconds from the stop sign where he entered the highway.  According to the
 State's expert, the accident was caused by defendant pulling out directly in
 front of the decedent.
      Defendant's expert estimated that the decedent had been traveling at 62
 mph.  He further testified that the speed of the decedent's car "absolutely
 played a part in this accident."  According to defendant's expert, there
 were two causes of the accident: "One, [defendant] did -- probably did not
 negotiate the stop sign correctly.  And two, [the decedent] was speeding."
 Defendant also sought to elicit an opinion from his expert that the accident
 would not have occurred if the decedent had not been speeding, but the court
 excluded it as speculation.  The jury returned guilty verdicts on both
 charges.
      When an accident results in death, the crimes charged in this case
 carry identical prison terms: "not less than one year nor more than 15
 years."  23 V.S.A. {{ 1091(c), 1128(c).  At sentencing, the parties informed
 the judge that they had agreed to a joint recommendation of 4-10 years, to
 run concurrently.  The court did not accept the agreement because it was
 conditioned on defendant's waiver of appeal.  At the conclusion of the
 hearing, however, the court sentenced defendant to the same sentence
 recommended by the parties.
      The primary issue on appeal is what effect reversal of the vehicular
 homicide conviction has on the hit-and-run conviction.  The court gave a
 separate instruction on the hit-and-run charge, defining its distinct
 elements.  The court instructed the jury that it must find defendant had
 actual knowledge that he caused or was involved in an accident.  The court
 then defined both "involved in" and "caused."  The court concluded by
 stating that the jury should find defendant not guilty if "the acts of the
 victim set in flow the events . . . leading to the accident" so that the
 accident would not have happened otherwise.
      Defendant argues that the hit-and-run conviction must be reversed also
 because the court's charge made guilt of the hit-and-run charge dependent on
 a finding of guilt on the vehicular homicide charge.  Apparently, defendant
 is contending that the court's instruction requiring that his actions be a
 proximate cause of the accident negated the term "involved in."  We are not
 persuaded by this argument.
      Section 1128 imposes certain duties on a person "who has caused or is
 involved in an accident."  The duties apply not only to persons with actual
 knowledge that their conduct was the proximate cause of the accident, but
 also to persons with actual knowledge that their actions were a precipi-
 tating or contributing factor to the accident.  Indeed, courts interpreting
 the term "involved in" have concluded that a person can be involved in an
 accident without being its legal cause.  See, e.g., People v. Bammes, 71 Cal. Rptr. 415, 419 (Cal. Ct. App. 1968) (assuming "real cause" of accident
 was decedent's unnecessary attempt to pass defendant after she pulled out in
 front of decedent, defendant was nevertheless "involved" in accident because
 her pulling into intersection precipitated some reaction on part of deced-
 ent); People v. Kerger, 548 N.E.2d 36, 39 (Ill. App. Ct. 1989) ("it is not
 necessary to determine, for purposes of deciding whether defendant was
 involved in a motor vehicle accident, whether defendant caused or was at
 fault for the accident"); State v. Carpenter, 334 N.W.2d 137, 141 (Iowa
 1983) (statute imposing duty on persons "involved in" an accident "does not
 require that the driver's conduct be a proximate cause of the accident").
      This interpretation of the term "involved in" makes sense in light of
 the purposes of our hit-and-run statute -- "to prohibit drivers of motor
 vehicles from seeking to evade civil or criminal liability by escaping
 before their identity can be established, and from leaving persons injured,
 abandoned and destitute of first aid or medical care."  State v. Sidway, 139
 Vt. 480, 484, 431 A.2d 1237, 1239 (1981).  In addition to increasing the
 likelihood that injured persons will receive prompt aid, the statute
 facilitates a determination of civil or criminal culpability by requiring
 that persons whose actions precipitated or contributed to the accident
 remain at the scene.  Whether the judicial system ultimately determines that
 a defendant legally caused the accident or is guilty of vehicular homicide
 is not dispositive of whether the defendant "caused or was involved in" an
 accident for purposes of { 1128.  See Bammes, 71 Cal. Rptr.  at 419-20 ("fact
 that the jury also found defendant not guilty on the manslaughter charges is
 not inconsistent with their finding that she was 'involved'" in the
 accident).
      Even if we concluded that the court's instruction in the present case
 made the hit-and-run conviction dependent on a finding that defendant
 legally caused the accident, that conclusion would not suggest that the hit-
 and-run conviction was dependent on the vehicular homicide conviction.  The
 jury convicted defendant on both counts, indicating that it concluded that
 defendant caused the accident.  Defendant has never challenged any of the
 court's instructions on causation with regard to either crime, and the
 reason for reversal of the vehicular homicide conviction -- an erroneous
 standard-of-care instruction -- has nothing to do with causation.  The
 court's charge, when read as a whole, instructs the jury that it should
 acquit defendant of leaving the scene if his conduct was not a substantial
 cause of the accident.  The fact that the jury may have interpreted the
 charge to require more of a showing regarding causation than is required
 under { 1128 hardly suggests that the hit-and-run conviction cannot stand on
 its own.  If anything, defendant was given the benefit of the doubt on the
 instruction, and the jury still convicted him.
      Nor do defendant's first two claims of error have an impact on the hit-
 and-run conviction.  In light of the overwhelming evidence that he was
 "involved in" the accident, it's difficult to see how defendant might have
 benefited from the court allowing his expert to testify that the accident
 would not have happened had the decedent not been speeding.  Indeed, that
 very same expert testified that defendant's failure to stop was one of the
 actions that caused the accident.  Finally, defendant has not suggested how
 the court's ruling on the "KILLER" plates comment, even if error, prejudiced
 his case.  It is doubtful his testimony could have shown that he was not
 "involved in" the accident.  Further, defendant never suggested at trial
 that his decision not to testify hinged on whether he would be impeached
 with that comment.  To the contrary, on-the-record colloquies between
 defense counsel and the court suggest that defendant's decision not to
 testify was unrelated to the court's decision to allow the State to impeach
 him with the comment.
      The final issue remaining is whether it is appropriate to remand the
 case for sentence reconsideration for the hit-and-run conviction.
 Generally, when less than all of the convictions in a case are reversed on
 appeal, a remand for resentencing on the affirmed convictions is not
 required if separate sentences were imposed for each offense.  People v.
 Poe, 459 N.E.2d 667, 671 (Ill. App. Ct. 1984).  If separate sentences were
 imposed, a remand for resentencing is appropriate only when the convictions
 or sentences for the reversed convictions appear to have influenced the
 trial court's sentencing regarding the affirmed convictions.  People v.
 Alcazar, 527 N.E.2d 325, 332 (1988).  The imposition of separate concurrent
 sentences by the trial court does not negate the possibility of influence,
 id., but a reviewing court cannot conclude, based solely on the trial
 court's simultaneous imposition of separate concurrent sentences for
 multiple convictions, that the sentence for one offense was influenced by
 the conviction or sentence for the other offense.  Poe, 459 N.E.2d  at 671;
 see People v. Payne, 456 N.E.2d 44, 50 (Ill. 1983) (remand for resentencing
 unnecessary where record does not indicate that the court was influenced by
 armed-violence conviction in imposing sentences for other convictions
 affirmed on appeal).
      In the present case, the court heard testimony at the sentencing
 hearing regarding defendant's "KILLER" plates comment.  The State then
 pointed out that defendant's license was under suspension at the time of the
 accident; that there were no mitigating factors with regard to layout of the
 road; that defendant initially had denied driving the car; that defendant's
 conduct indicated he felt no remorse for the victim; and that defendant had
 violated conditions of release since the accident.  Defendant represented
 that the source of the "KILLER" plates comment was not defendant but rather
 some schoolmates of his children.  Defendant emphasized that the decedent's
 actions contributed to the accident and should be considered as a
 mitigating factor.  Citing prior examples of sentences for the same offenses
 from 1986 to 1990, defendant recommended that he be sentenced to 2-6 years.
 The court noted that it was making its decision based on the arguments of
 counsel and the presentence report, and imposed a sentence of 4-10 years to
 serve.  The court stated that it was imposing that sentence because of the
 evident carelessness of defendant.  The court also referred to prior
 convictions.
      The record of the sentencing hearing does not directly show that the
 vehicular homicide conviction influenced the court's sentence for the hit-
 and-run conviction.  Rather, the record indicates a lack of focus on the
 hit-and-run conviction.  Only in response to defense counsel's inquiry, did
 the court even note that there would be equal concurrent sentences for the
 two convictions.  We realize that both offenses in this case carry identical
 terms of imprisonment, and that most of the factors considered by the court
 could have been viewed with regard to either crime.  Nonetheless, because
 both crimes arose out of one transaction, and because counsel and the court
 seemed to focus solely on the vehicular homicide conviction, we use our
 discretion to remand the case for resentencing regarding the hit-and-run
 conviction.  Upon remand, the trial court may impose the same or a lighter
 sentence for the { 1128 violation.
      The conviction based on a violation of 23 V.S.A. { 1091(c) is reversed.
 The conviction based on a violation of 23 V.S.A. { 1128 is affirmed, and the
 case is remanded for sentence reconsideration.


                                    FOR THE COURT:


                                    ___________________________________
                                    Associate Justice