State v. Free
Annotate this Case
State v. Free (99-183); 170 Vt. 605; 749 A.2d 622
[Filed 17-Feb-2000]
ENTRY ORDER
SUPREME COURT DOCKET NO. 99-183
DECEMBER TERM, 1999
State of Vermont } APPEALED FROM:
}
}
v. } District Court of Vermont,
} Unit No. 2, Bennington Circuit
Chad S. Free }
} DOCKET NO. 1732-10-98Bncr
In the above-entitled cause, the Clerk will enter:
Defendant was charged with grossly negligent operation of a motor
vehicle, death resulting. See 23 V.S.A. § 1091(b). He filed a motion to
dismiss for lack of a prima facie case, pursuant to V.R.Cr.P. 12(d),
arguing that the facts could not support a finding of gross negligence.
The district court granted defendant's motion and held that the case would
proceed on the theory of negligent operation. See 23 V.S.A. § 1091(a).
The State requested permission to appeal, which the court granted. See 13
V.S.A. § 7403(b). On appeal, the State argues that the court erred because
the evidence was sufficient to allow a reasonable jury to conclude that
defendant was guilty of grossly negligent operation. We affirm.
In reviewing a V.R.Cr.P. 12(d) motion to dismiss for lack of a prima
facie case, we view the evidence in the light most favorable to the state,
while excluding modifying evidence, in order to determine whether the
State has "'produced evidence fairly and reasonably tending to show the
defendant guilty beyond a reasonable doubt.'" State v. Dixon, Vt.
, , 725 A.2d 920, 922 (1999) (quoting State v. Fanger, 164 Vt. 48,
51, 665 A.2d 36, 37 (1995) (mem.)).
Here, the relevant facts are not in dispute. On September 29, 1998,
defendant was driving down Main Street in Bennington, Vermont during
daylight hours. He was traveling at thirty miles an hour, consistent with
the posted speed limit, and slowed down to approximately ten to fifteen
miles an hour as he entered the intersection of Main and Morgan Streets.
Just before defendant turned left onto Morgan Street, he noticed a van on
his left stopped at a stop sign on Morgan, waiting to cross Main Street.
However, he did not notice Arthur Lemieux, who was walking across Morgan
Street, in front of the van, in a well-marked crosswalk. As defendant
turned on to Morgan Street, his car struck Lemieux. Lemieux was injured
and died three months later, allegedly as a result of injuries sustained
in the accident. Defendant was not aware of Lemieux's presence until his
car actually hit Lemieux. According to an accident reconstructionist who
testified at the motion hearing, Lemieux had walked about three-quarters
of the way across the twenty-eight-foot crosswalk when he was struck by
defendant's car. He further testified that the average person walks
four-and-a-half feet per second. Therefore, he concluded that Lemieux had
been in the crosswalk for four to five seconds prior to being hit by
defendant's car. The State argues that these facts tend to show that
defendand is guilty beyond a reasonable doubt of grossly negligent
operation.
Gross negligence is defined as "conduct which involved a gross
deviation from the care that a reasonable person would have exercised in
that situation." 23 V.S.A. § 1091(b)(2). The Legislature adopted this
language to implement our holding in State v. Beayon, 158 Vt. 133, 605 A.2d 527 (1992). See State v. Koch, 10 Vt. L. W. 393 (1999) (mem.). In
Beayon, we held that an earlier version of § 1091, which provided for
prosecution of vehicular homicide, "require[d], at a minimum, a mens rea
of criminal negligence." Id. at 136, 605 A.2d at 528. There, we explained
that, to prove criminal negligence under § 1091, the State must show (1)
the defendant disregarded a risk of injury or death, and (2) the risk was
such that - considering the nature and purpose of the defendant's conduct
and the circumstances known to him - the defendant's failure to perceive it
was a gross deviation from the standard of care that a reasonable person
would have exercised in the same situation. See id. "It is this latter
language upon which the Legislature seized in formulating the standard of
negligence required for a § 1091(b) conviction." Koch, 10 Vt. L. W. at
393.
In the civil context, we have emphasized that gross negligence is more
than a mere error in judgment, loss of presence of mind, or momentary
inattention. Rather, it is an indifference to the duty owed to another,
and the failure to exercise even a slight degree of care. See Hardingham
v. United Counseling Service, 164 Vt. 478, 481, 672 A.2d 480, 482 (1995).
See also Shaw, Adm'r v. Moore, 104 Vt. 529, 531, 162 A. 373, 374 (1932)
("Gross negligence is substantially and appreciably higher in magnitude
and more culpable than ordinary negligence. . . . It is a heedless and
palpable violation of legal duty respecting the rights of others.").
The question of whether a defendant was grossly negligent is generally
left to the factfinder. See Hardingham, 164 Vt. at 481, 672 A.2d at 483.
However, where reasonable minds cannot differ, the court can decide the
question as a matter of law. See id.
According to the State, this case rises above ordinary negligence,
into the level of gross negligence, because defendant was inattentive for
about five seconds. However, as the court noted, the evidence showed that
it took defendant one to two seconds to turn on to Morgan Street from Main
Street, during which time defendant was paying attention to the flow of
traffic around him. Therefore, if Lemieux had been in the crosswalk for
four to five seconds, and defendant was paying attention to the flow of
traffic for one to two seconds as he was making his turn, defendant was
inattentive to Lemieux for, at most, three to four seconds. Thus, the
question before us is whether, under the facts of this case, a jury could
find beyond a reasonable doubt that defendant's inattention to Lemieux for
three to four seconds was a gross departure from the standard of care that
a reasonable person would observe in his situation, thereby constituting
gross negligence.
This Court has examined the concept of grossly negligent operation of
a motor vehicle in two recent cases. In State v. Devine, 168 Vt. 566, 719 A.2d 861 (1998) (mem.), the evidence, viewed in the light most favorable
to the State, showed that, for several days before the accident, the
defendant drank alcohol, smoked marijuana, and got little sleep. On the
day of the accident, he had difficulty staying awake and, in fact, shortly
before the accident, fell asleep in his car. Further, on
the day of the accident, road conditions and visibility were good.
Immediately before the accident, the defendant was speeding, crossed the
double yellow line and crossed two lanes of oncoming traffic. Without
attempting to slow down or move out of the way, the defendant drove
straight into another car, killing the driver. Immediately after the
accident, the defendant did not realize that his car had struck another
vehicle. We held that these facts were sufficient to support a finding
that the defendant was guilty of grossly negligent operation. See Devine,
168 Vt. at 567, 719 A.2d at 863.
In Koch, the evidence, viewed in the light most favorable to the
State, showed that the defendant was driving during daylight hours, with
good road conditions and good visibility. He had an unobstructed line of
sight of 1200 feet and should have been able to see the victim standing at
the side of the road for at least twenty seconds prior to the accident.
We held that these facts were sufficient to support a finding that the
defendant was guilty of grossly negligent operation. See Koch, 10 Vt. L.
W. at 393.
Both of these cases involved more than a mere error in judgment, loss
of presence of mind, or momentary inattention. In Devine, the defendant
was tired, was speeding, crossed two lanes of traffic, and did not realize
that he had hit another car. In Koch, the defendant had been inattentive
for at least twenty seconds prior to striking the victim with his car.
Here, by contrast, there was no evidence that defendant was speeding
at any time, that he drove through a red light or a stop sign, that he was
under the influence of any intoxicating substances, or that he was
inattentive to anything other than Lemieux. We have found no case, either
in Vermont or in any other jurisdiction, where a defendant's inattention
for three to four seconds, without any other indicia of negligence, was
held to be sufficient to support a conviction of grossly negligent
operation. See Plummer v. State, 702 A.2d 453, 465 (Md. Ct. Spec. App.
1997) (defendant not grossly negligent where evidence showed he drifted
onto shoulder of road, then on to curb, and killed pedestrian); State v.
Maloof, 678 N.Y.S.2d 175, 176 (N.Y. App. Div. 1998) (defendant not grossly
negligent where she failed to see pedestrians and drifted on to shoulder of
road); Commonwealth v. Heck, 535 A.2d 575, 576 (Pa. 1987) (facts
insufficient to establish gross negligence where defendant made left-hand
turn and struck motorcycle); Lewis v. Commonwealth, 179 S.E.2d 506, 507
(Va. 1971) (defendant's car struck and killed pedestrian; court held that,
under facts of case, failure to keep a proper lookout, without other acts
of negligence, was insufficient to prove gross negligence). (FN1)
We conclude that, under the circumstances of this case, evidence of
defendant's inattention to a pedestrian for three to four seconds
indicates, at best, a mere error in judgment, loss of presence of mind, or
momentary inattention. It does not, however, indicate an indifference to
the duty owed to another, or the failure to exercise even a slight degree
of care, as is required for a conviction of
gross negligence. See Hardingham, 164 Vt. at 481, 672 A.2d at 482.
Therefore, we hold that the evidence presented by the State is not
sufficient to carry its burden under § 1091(b)(2).
Affirmed.
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Dissenting
Dooley, J., Dissenting. I argued in the dissent in Hardingham v.
United Counseling Service, 164 Vt. 478, 487, 672 A.2d 480, 486 (1995)
(Dooley, J., dissenting), that, based on our experience in applying our
guest-passenger statute, it was difficult, if not impossible, to perform in
a principled fashion the line-drawing required to determine whether
negligence could be found to be "gross" in a particular case. I urged
that the only reasonable course is to "leave the decision of whether gross
negligence was present to the jury except in the most extreme cases." Id.
This is not a most extreme case. It might be distinguished from our
very recent decision in State v. Koch, 10 Vt. L. Wk. 393 (1999) in
degree, but not in kind. In both cases, defendant ran down a pedestrian
who was in a lawful place in or near the road. In Koch, defendant had a
longer period to view the spot where the pedestrian was standing, when
struck, but there was no evidence that the pedestrian was in that spot
during the entire period of observation. In any event, I do not find the
time of observation as significant as the majority because in this case
defendant was turning across a pedestrian crosswalk. Obviously, a
driver's duty to watch the road is related to the circumstances that
confront him and the place and manner of operation. See Emery v. Small,
117 Vt. 138, 140-41, 86 A.2d 542, 543 (1952) (collision with parked truck
could be found to be gross negligence where, at night, defendant had up to
4.5 seconds to see it). 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. In
this case, it is as if defendant closed his eyes and then turned left into
Morgan Street and proceeded across the crosswalk and up that street without
opening them.
If I were a juror, I would probably vote for the majority result. As
a Justice of this Court, however, I must vote to allow the jury to decide.
Dissenting: BY THE COURT:
_________________________________ ______________________________________
John A. Dooley, Associate Justice Jeffrey L. Amestoy, Chief Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
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Footnotes
FN1. The State relies on three cases, all of which are inapposite. State
v. Elliot, 8 A.2d 873 (Del. Ch. 1939), was merely a publication of a trial
court's instruction to the jury. In State v. Allen, 112 A.2d 40, 43 (Del.
Super. Ct. 1955), the court granted defendant's motion to strike the charge
of driving "in wilful or wanton disregard for the safety of persons or
property." Finally, State v. Overkamp, 865 S.W.2d 376 (Mo. Ct. App.
1993), involved an ordinary negligence standard. See id. at 377.
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