Opinion
No. 53546-3-I
Filed: April 11, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No. 02-1-01408-1. Judgment or order under review. Date filed: 11/17/2003. Judge signing: Hon. Michael F Moynihan.
Counsel for Appellant(s), Peter Mazzone, Phillips Mazzone, 2910 Colby Ave Ste 200, Everett, WA 98201-4075.
Counsel for Respondent(s), David Stuart McEachran, Whatcom Co Courthouse, 311 Grand Ave, Bellingham, WA 98225-4048.
Hilary A. Thomas, Whatcom County Prosecutors Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Kimberly Anne Thulin, Whatcom Cty Pros Atty's Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Anthony Howell was convicted of homicide by watercraft in the death of his friend Walt McCloskey as the two were boating together on Baker Lake. Howell challenges the trial court's refusal to instruct the jury on supervening causes. Because this instruction was not supported by the facts, we affirm.
FACTS
Anthony Howell, the appellant, and Walt McCloskey, the decedent, were friends from work. This incident occurred during a boating and camping trip they took together, with other friends, at Baker Lake for the Fourth of July weekend, 2002. The day of the accident, both Howell and McCloskey had been drinking. At around 6:30 or 7:00 pm, Howell and Bruce Teel were in Howell's boat, and McCloskey was alone in his boat. They had spent some time listening to music and relaxing in the middle of the lake, and decided to head back to camp for dinner.
McCloskey left first. Howell caught up, and crossed over McCloskey's wake. Alternating lead boats, they jumped each other's wakes between four and six times with about 10 to 20 yards between the boats. Teel testified that they followed a pattern:
one boat would jump over the wake and then kind of go off, you know, to the right and the other one would circle around and jump over the other guy's wake and the other one would circle back around and jump over his wake and circle around jumping over wakes.
Teel testified that he did not feel unsafe or afraid during the wake-crossing activity. A third party who saw the activity from about 400 yards away considered it very dangerous.
This pattern continued until McCloskey deviated from it unexpectedly. Instead of following the pattern and circling right, McCloskey circled left. Teel testified that after the last crossing and immediately prior to the accident, McCloskey had a devilish grin on his face and it looked to me like he was coming around to try to splash up and come to our boat and turn at the last second and send water over us. That's what I'm assuming that he had in mind but it didn't work out that way.
Teel testified further that McCloskey had a `shit-eating grin on his face looking like he was wanting to come around and splash us, that's when I started to get concerned.' At this point, the boats were headed directly at each other and although Howell tried to turn away, McCloskey turned in the same direction and the boats collided. Howell and Teel were thrown from the boat and rescued by third parties. Tragically, McCloskey suffered fatal injuries and despite Howell's administration of CPR McCloskey was pronounced dead shortly thereafter at the boat launch. McCloskey's blood alcohol level was .19 at the time of death. Howell's blood alcohol level four and a half hours after the collision was .12, and expert testimony hypothesized his level at the time of the collision would have been between.16 and .22.
Howell was charged with one count of homicide by watercraft under RCW 79A.60.050(1)(a)(b). RCW 79A.60.050 reads in relevant part: (1) When the death of any person ensues within three years as a proximate result of injury proximately caused by the operating of any vessel by any person, the operator is guilty of homicide by watercraft if he or she was operating the vessel:
(a) While under the influence of intoxicating liquor or any drug . . .;
(b) In a reckless manner[.]
Based on WPIC 25.02, the court gave jury instruction 7 which reads: To constitute homicide by watercraft, there must be a causal connection between the death of a human being and the operation of a vessel by the defendant so that the operation of the vessel was a proximate cause of the resulting death.
The term `proximate cause' means a cause which, in a direct sequence, unbroken by any new independent cause, produces the death, and without which the death would not have happened.
There may be more than one proximate cause of a death.
Howell requested that the court additionally instruct the jury from WPIC 25.03. This pattern instruction in its entirety reads:
If you are satisfied beyond a reasonable doubt that the acts of the defendant were a proximate cause of the death of the deceased, it is not a defense that the conduct of the deceased [or another] may also have been a proximate cause of the death.
[If a proximate cause of the death was a later independent intervening act of the deceased [or another] which the defendant, in the exercise of ordinary care, could not reasonably have anticipated as likely to happen, the defendant's acts are superseded by the intervening cause and are not a proximate cause of the death.]
[However, if in the exercise of ordinary care, the defendant should reasonably have anticipated the intervening cause, that cause does not supersede defendant's original acts and defendant's acts are a proximate cause. It is not necessary that the sequence of events or the particular injury be foreseeable. It is only necessary that the death fall within the general field of danger which the defendant should have reasonably anticipated.]
Howell asked the court to instruct only the second paragraph of this instruction to clarify Instruction 7. Howell argued that `Some opinions may be if two guys are in a boat, they are screwing around and no matter what they are both guilty and this is not correct. If one person turns into the other, that's a superseding, an intervening cause.' The court disagreed and refused to instruct from the requested portion of WPIC 25.03. The court noted Howell's exception to this ruling.
During deliberations, the jury submitted two questions seeking clarifications to Instruction 7. They asked:
Some of us are still hung up on the 2nd paragraph of Instruction #7. We need clarification.
If an independent cause (Walt's operation?) is partly responsible for the accident can the defendant be held accountable whether he is 30% Responsible for the accident 40% 60%
If Walt is partly @ fault, can the defendant be held accountable?
They also asked
Please explain further, the 2nd paragraph of instruction number 7. Especially, the definition of the clause `unbroken by any new independent cause' `in a direct sequence'
The judge answered: `The court cannot further explain the instruction.' During discussion of these jury events, Howell said that this was why he had wanted to include part of WPIC 25.03 in the instructions. The court and the prosecutor agreed that it would probably fit the case, and the court asked Howell whether he wanted to give the instruction in its entirety to the jury. Howell objected to further instructions at this stage of trial, noting that he had argued the case to the jury in a particular way because the instruction was refused, and would have argued it differently given the instruction. Howell also refused the opportunity to present the instruction and reargue the case because it would force him to contradict his own prior closing argument.
ANALYSIS
The state argues that Howell failed to properly preserve his objection for review. In order to claim error on the basis of a jury instruction given by the trial court, an appellant must first show that an exception was taken to that instruction in the trial court. State v. Salas, 127 Wn.2d 173, 181, 897 P.2d 1246 (1995) The purpose of requiring objections or exceptions to instructions is `to afford the trial court an opportunity to know and clearly understand the nature of the objection to the giving or refusing of an instruction in order that the trial court may have the opportunity to correct any error.' City of Seattle v. Rainwater, 86 Wn.2d 567, 571, 546 P.2d 450 (1976). The person objecting must state the instruction objected to and the reasons for the objection. CrR 6.15(c). The purpose of [CR 51(f)] is to clarify, at the time when the trial court has before it all the evidence and legal arguments, the exact points of law and reasons upon which counsel argues the court is committing error about a particular instruction. . . .
With respect to claimed errors in jury instructions in criminal cases, this general rule has specific applicability. CrR 6.15(c) requires that timely and well stated objections be made to instructions given or refused "in order that the trial court may have the opportunity to correct any error."
Salas, 127 Wn.2d at 181-82 (internal quotations and citations omitted) (quoting State v. Bailey, 114 Wn2d 340, 345, 787 P.2d 1378 (1990); (quoting State v. Scott, 110 Wn.2d 682, 685-86, 757 P.2d 492 (1988)).
Although Howell did not object per se to the language of the state's proposed proximate cause instruction, he sought to add language from WPIC 25.03 for clarification. The court and Howell discussed this proposed clarification and reasons for it at length on the record, but the court refused to adopt it, noting Howell's exception.
Unlike Salas, 127 Wn.2d at 180, and Scott, 110 Wn.2d at 683-84, where no exception was taken to the instruction at trial, here there was significant discussion of the proposed modification, the issue was clearly before the court, argument was made presenting the nature of the objection, and an exception was expressly noted. The purpose of the rule, to allow the trial court to understand the nature of the objection and correct any error, was satisfied. Howell's objections were sufficient to alert the trial court to his argument and he properly preserved the issue for appeal. Howell argues that he was entitled to a jury instruction on superseding cause and that the trial court erred in refusing to provide one. A party is entitled to an instruction when there is sufficient evidence in the record to support it. State v. Brobak, 47 Wn. App. 488, 492, 736 P.2d 288 (1987) (quoting State v. Allery, 101 Wn.2d 591, 598, 682 P.2d 312 (1984)). A trial court's decision regarding a jury instruction is reviewed for abuse of discretion if the decision is based on factual issues, and de novo if the decision is based on a ruling of law. State v. Souther, 100 Wn. App. 701, 708, 998 P.2d 350 (2000). Jury instructions `satisfy the requirement of a fair trial when, taken as a whole, they properly inform the jury of the applicable law, are not misleading, and permit the defendant to argue his theory of the case.' State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365 (1999). Jury instructions `must make the relevant legal standard manifestly apparent to the average juror.' State v. Corn, 95 Wn. App. 41, 53, 975 P.2d 520 (1999).
The trial court declined to give the requested portion of the instruction on the basis that the facts did not support the instruction, not because the requested instruction was merely a portion of WPIC 25.03. We analyze the denial on the basis stated.
Proximate cause is `a cause which in direct sequence, unbroken by any new, independent cause, produces the event complained of and without which the injury would not have happened.' State v. McAllister, 60 Wn. App. 654, 660, 806 P.2d 772 (1991) (quoting State v. Gantt, 38 Wn. App. 357, 359, 684 P.2d 1385 (1984)). A defendant is not responsible for a death resulting from his or her driving if the death was caused by a superseding intervening event. See State v. Rivas, 126 Wn.2d 443, 453, 896 P.2d 57 (1995). `An intervening cause is a force that operates to produce harm after the defendant has committed the act or omission.' State v. Roggenkamp, 115 Wn. App. 927, 945, 64 P.3d 92 (2003) (citing Souther, 100 Wn. App. at 701, 708-09), aff'd, Wn.2d, 106 P.3d 196 (2005). ``Intervening' is used in a time sense; it refers to later events.' Souther, 100 Wn. App. at 710, quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts sec. 44, at 301 (5th ed. 1984). Howell argues that by breaking an established, safe pattern of turning in a particular direction after jumping the other boat's wake, McCloskey committed an act that qualifies as a superseding intervening cause. Howell argues, and Teel testified, that McCloskey's variance from this pattern was `unexpected.' Therefore, Howell argues, McCloskey's act was a later intervening act which followed Howell's last, safe, turn.
Many of the cases cited herein are from the context of vehicular homicide. The language of the vehicular homicide statute, RCW 46.61.520, mirrors that of the homicide by watercraft statute. Thus, reasoning from cases in the vehicular homicide context transfers to the homicide by watercraft context.
The facts fail to show an intervening cause. The unexpected turn was not a later event. The state charged Howell under RCW 79A.60.050 with homicide by watercraft proximately caused by operating a vessel while under the influence of intoxicating liquor or in a reckless manner. The state produced substantial evidence both that Howell was under the influence of intoxicating liquor, and that he was operating a vessel in a reckless manner. Howell's operation of the vessel in a prohibited manner had not been completed when McCloskey made the unexpected turn. Thus, McCloskey's turn was not temporally distinguishable as a separate, later event. Further, it is clear that Howell cannot use McCloskey's contributory negligence alone as a defense to a negligent homicide; McCloskey's acts must rise to the level of a superseding cause. Souther, 100 Wn. App. at 708-09.
To be a superseding cause sufficient to relieve a defendant from liability, an intervening act must be one that is not reasonably foreseeable. Factors to consider in determining whether an intervening act is a superseding cause include whether (1) the intervening act created a different type of harm, (2) the intervening act constituted an extraordinary act, and (3) the intervening act operated independently. Thus, when the intervening act is one which the defendant should not have anticipated as reasonably likely to happen, then there is a break in the causal connection between the defendant's negligence and the plaintiff's injury, and the intervening act is the superseding cause of the plaintiff's injury.
Roggenkamp, 115 Wn. App. at 945-46 (citations omitted). In order to supersede defendant's acts, the intervening events must be `so highly extraordinary or unexpected that [they] can be said to fall without the realm of reasonable foreseeability as a matter of law. If the acts . . . are within the ambit of the hazards covered by the duty imposed upon the defendant, they are foreseeable and do not supersede the defendant's negligence.' Riojas v. Grant County Pub. Util. Dist., 117 Wn. App. 694, 697, 72 P.3d 1093 (2003) (internal quotations and citations omitted). In Roggenkamp the driver was speeding in the passing lane, locked his brakes, and collided with a vehicle making a left turn onto the roadway in front of him. We noted in that case:
As discussed, to be a superseding cause, the intervening act must have occurred after the defendant's act or omission. Roggenkamp argues that the intervening act is Carpenter's driving while intoxicated and pulling out of the intersection and onto 236th Avenue when it was not safe to do so after he was in a locked brake skid. Even though, at the time of the collision, Roggenkamp was in a locked-brake skid, his reckless driving was ongoing at the time of Carpenter's act of pulling into the intersection. Roggenkamp drove well in excess of the speed limit in the passing lane and disregarded (or did not anticipate) the reasonable possibility that a vehicle would enter the roadway from the intersection. At most, Carpenter's actions were a concurring cause, not a superseding cause, of the accident. A concurring, as opposed to an intervening, cause does not shield a defendant from vehicular homicide.
Roggenkamp, 115 Wn. App. at 946-47 (footnotes omitted) (citing Souther, 100 Wn. App. at 710-11). Here, Howell operated his boat while under the influence of alcohol and in a reckless manner. He disregarded or did not anticipate the possibility that McCloskey would not continue the circling pattern indefinitely and the possibility that McCloskey could turn his boat into Howell's path. McCloskey's act was not such a `highly extraordinary or unexpected' event as to `fall without the realm of reasonable foreseeability as a matter of law.' Riojas, 117 Wn. App. at 697. At most, McCloskey's act was a concurrent cause of his death. Such a cause does not shield defendants from responsibility for vehicular homicide. See Souther, 100 Wn. App. at 710-11.
We hold that as a matter of law, McCloskey's action did not constitute an intervening superseding cause. Therefore, Howell was not entitled to an instruction on superseding causes. The trial court did not err in refusing to give such an instruction. The instructions given to the jury on proximate cause modeled after WPIC 25.02 fully informed the jury of the relevant legal standard with an accurate statement of the law. State v. Giedd, 43 Wn. App. 787, 792, 719 P.2d 946 (1986).
We affirm.
APPELWICK, SCHINDLER and BECKER, JJ.