Opinion
No. 63843-2-I.
October 12, 2009.
Appeal from the Superior Court, Mason County, No. 06-1-00442-6, Toni A. Sheldon, J., entered July 14, 2008.
Affirmed by unpublished opinion per Dwyer, J., concurred in by Schindler, C.J., and Lau, J.
Kevin Savage appeals from his conviction of vehicular homicide, in violation of RCW 46.61.520. He contends that the trial court impermissibly commented on the evidence introduced at trial by instructing the jury as to the rules of the road governing U-turns. However, a jury instruction does not constitute an impermissible comment on the evidence when there is sufficient evidence in the record to support the instruction and when it is an accurate statement of the law. As the instruction given herein was pertinent to the evidence introduced at trial and accurately stated the law, it did not constitute an impermissible judicial comment on the evidence. Accordingly, we affirm.
RCW 46.61.520 provides, in pertinent part:
(1) When the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person, the driver is guilty of vehicular homicide if the driver was operating a motor vehicle: . . .
. . . .
(b) In a reckless manner; or
(c) With disregard for the safety of others.
I
While attempting to a make a U-turn across the centerline of a highway one afternoon in May 2006, Savage struck David Broussard's oncoming motorcycle with his car. Broussard died as a result of injuries he sustained in the collision. Savage was subsequently charged with vehicular homicide. The charge was premised on either of two alternative premises set forth in the vehicular homicide statute: operating a motor vehicle (1) in a reckless manner or (2) with disregard for the safety of others.
At trial, Savage testified that, just before the accident, he was driving on the highway and saw his brother driving in the opposite direction. Savage further testified that, after seeing his brother, he skidded to a stop, drove his car in reverse "fast" while looking for other vehicles traveling in both directions, and then attempted to make a U-turn to catch up to his brother. According to Savage's testimony, he did not see any other vehicle traveling in either direction on the highway. Savage testified that he did not see Broussard "until right — just before he hit the front of my car." This testimony conflicted with that of the Washington State Patrol trooper who responded to the collision and interviewed Savage at the scene. According to Trooper David J. Huibregtse's testimony, Savage stated at the scene that he had seen Broussard traveling toward him and that "he thought he had enough time to safely make the turn." Notwithstanding this dispute over whether Savage saw Broussard before he began the turn, Savage was unequivocal in his testimony that he collided with Broussard while attempting to make the U-turn.
A state trooper who responded to the collision testified that he found Broussard's motorcycle embedded in the front of Savage's car. This same trooper testified that the speed limit on the highway was 45 miles per hour. Other evidence introduced at trial indicated that Broussard was travelling between 25 and 45 miles per hour at the time of impact. Washington State Patrol detective David Killeen, the lead investigator, testified that there was no evidence that Broussard was traveling at "an excessive speed" at impact.
In instructing the jury on the elements of the offense of vehicular homicide, the trial court issued the following pattern jury instructions:
See 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 90.01, 90.05 (3d ed. 2008).
Jury Instruction 6
A person commits the crime of vehicular homicide when he drives or operates a motor vehicle in a reckless manner or with disregard for the safety of others and thereby proximately causes the death of any person within three years of such vehicle driving or operation.
Jury Instruction 7
To operate a motor vehicle in a reckless manner means to drive in a rash or heedless manner, indifferent to the consequences.
Disregard for the safety of others means an aggravated kind of negligence or carelessness, falling short of recklessness but constituting a more serious dereliction than ordinary negligence. Ordinary negligence is the failure to exercise ordinary care. Ordinary negligence is the doing of some act which a reasonably careful person would not do under the same or similar circumstances or the failure to do something which a reasonably careful person would have done under the same or similar circumstances. Ordinary negligence in operating a motor vehicle does not render a person guilty of vehicular homicide.
Over the defense's objection, the trial court also issued the following instruction, concerning the duties a driver making a U-turn has toward other drivers:
Jury Instruction 10
The driver of a motor vehicle shall not turn such vehicle so as to proceed in the opposite direction unless such movement can be made in safety and without interfering with other traffic.
An oncoming driver is the favored driver under such a circumstance and the primary duty to avoid a collision is upon the disfavored turning driver.
The jury subsequently found Savage guilty. The jury indicated on the special verdict form that it found Savage had operated his motor vehicle in a reckless manner. It could not, however, unanimously decide whether he had also driven with disregard for the safety of others.
II
Savage contends that jury instruction 10 constituted an impermissible judicial comment on the evidence introduced at trial. We disagree.
Pursuant to article IV, section 16 of the Washington Constitution, "[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." This rule "prohibits a judge from conveying to the jury his or her personal belief in the merits of the cause or some issue therein." State v. Hughes, 106 Wn.2d 176, 193, 721 P.2d 902 (1986) (citing State v. Theroff, 95 Wn.2d 385, 389, 622 P.2d 1240 (1980)). The State has the burden of proving every element of the charged offense beyond a reasonable doubt, and the trial court may not instruct the jury in a manner that relieves the State of this burden. State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002). "[A] court cannot instruct the jury that matters of fact have been established as a matter of law." State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997) (citing State v. Primrose, 32 Wn. App. 1, 3, 645 P.2d 714 (1982)). However, "[a]n instruction does not constitute an impermissible comment on the evidence when there is sufficient evidence in the record to support it and when the instruction is an accurate statement of the law." Hughes, 106 Wn.2d at 193 (citing Theroff, 95 Wn.2d at 389; State v. Sampson, 40 Wn. App. 594, 600, 699 P.2d 1253 (1985)). Whether a jury instruction correctly states the applicable law is a question of law we review de novo. State v. Linehan, 147 Wn.2d 638, 643, 56 P.3d 542 (2002) (citing State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995)).
The two alternative premises on which Savage was charged with vehicular homicide — operating a motor vehicle (1) in a reckless manner or (2) with disregard for the safety of others — are related but distinct acts. State v. Roggenkamp, 153 Wn.2d 614, 626-27, 106 P.3d 196 (2005); State v. Eike, 72 Wn.2d 760, 764-65, 435 P.2d 680 (1967) (citing State v. Partridge, 47 Wn.2d 640, 645, 289 P.2d 702 (1955)). The vehicular homicide statute, RCW 46.61.520, does not define driving "in a reckless manner." Our Supreme Court, however, has consistently held that this premise means "`driving in a rash or heedless manner, indifferent to the consequences.'" Roggenkamp, 153 Wn.2d at 622 (quoting State v. Bowman, 57 Wn.2d 266, 271, 356 P.2d 999 (1960)); see also Partridge, 47 Wn.2d at 645-46. The court in Partridge also observed that "a person operating a vehicle in a reckless manner could also be guilty of negligence." Partridge, 47 Wn.2d at 645. With respect to the premise of operating a motor vehicle "with disregard for the safety of others," this behavior "implies an aggravated kind of negligence or carelessness, falling short of recklessness but constituting a more serious dereliction than the hundreds of minor oversights and inadvertences encompassed within the term `negligence.' . . . To drive with disregard for the safety of others, consequently, is a greater and more marked dereliction." Eike, 72 Wn.2d at 765-66. Proof of ordinary negligence, by itself, is insufficient to sustain a conviction of vehicular homicide. Eike, 72 Wn.2d at 765 (citing Partridge, 47 Wn.2d at 645). "Some evidence of a defendant's conscious disregard of the danger to others is necessary to support a charge of vehicular homicide." State v. Vreen, 99 Wn. App. 662, 672, 994 P.2d 905 (2000) (citing State v. Lopez, 93 Wn. App. 619, 623, 970 P.2d 765 (1999)), aff'd, 143 Wn.2d 923, 26 P.3d 236 (2001).
The trial court accurately stated these rules of law in jury instruction 7. This instruction defined the elements the State had to prove beyond a reasonable doubt to establish either of the alternative premises. Jury instruction 7 also clarified that proof of ordinary negligence does not render a person guilty of vehicular homicide.
Although Savage does not take issue with jury instruction 7, we discuss it as the elements of the alternative premises relate to the propriety of the trial court's issuance of jury instruction 10.
Savage does not contend that the trial court erred in giving jury instruction 7 but, rather, contends that it did so by giving jury instruction 10, which concerned the rules of the road governing U-turns. Again, in giving jury instruction 10, the trial court informed the jury that a driver shall not make a U-turn "unless such movement can be made in safety and without interfering with other traffic," the "oncoming driver is the favored driver under such a circumstance, and the primary duty to avoid a collision is upon the disfavored turning driver." Savage asserts that this instruction amounted to an impermissible judicial comment on the evidence, directing the jury to find him guilty so long as it found that the State had proved that Savage had attempted to make a U-turn resulting in an accident causing Broussard's death.
We conclude, however, that it was appropriate for the trial court to issue jury instruction 10. First, the evidence introduced at trial raised questions about whether Savage followed the rules governing U-turns. This evidence and the factual issues inherent in each of the charged premises warranted issuing jury instruction 10. The undisputed evidence introduced at trial showed that Savage attempted to make a U-turn and struck Broussard's motorcycle in the process of doing so. Evidence was also introduced that Savage looked for cars while driving fast in reverse along a highway before attempting to make the U-turn and that Broussard was not traveling in excess of the speed limit before the collision, which occurred in the afternoon on a late spring day. The parties disputed whether Savage saw Broussard approaching him in the oncoming lane of traffic before he attempted to make the U-turn. According to Trooper Huibregtse's testimony, Savage reported that he had seen Broussard approaching and calculated that it was safe to make the turn. Savage testified, however, that he saw Broussard only in the instant before impact. All of this evidence raised questions about whether Savage drove his car with the requisite care.
The rules governing U-turns set forth in jury instruction 10 were pertinent to the alternative premises underlying the vehicular homicide charge because they provided a point of reference for the jury to determine whether Savage operated his motor vehicle either in a reckless manner or with disregard for the safety of others. Although proof of more than ordinary negligence is required to convict a person of vehicular homicide, by setting forth the rules of the road, the instruction given identified the considerations that a driver must take into account when making a U-turn. As every turning driver is subject to these rules and incurs certain duties as a result thereof, whether Savage followed the rules and fulfilled his corresponding duties are pertinent to whether he acted in a rash or heedless manner. Likewise, implicit in a finding of aggravated negligence is a finding of negligence in the ordinary sense. As the instruction given defined the scope of a turning driver's duties of care, it was therefore pertinent to the jury's determination whether there was sufficient proof that Savage had driven his car with disregard for the safety of others.
Second, jury instruction 10 as given accurately stated the rules of the road governing U-turns. Pursuant to RCW 46.61.295(1), "[t]he driver of any vehicle shall not turn such vehicle so as to proceed in the opposite direction unless such movement can be made in safety and without interfering with other traffic." Long ago, the Washington Supreme Court recognized that the turning driver in this situation does not have the right of way and has a duty to yield to oncoming traffic. Graham v. Roderick, 32 Wn.2d 427, 434, 202 P.2d 253 (1949); accord Mendelsohn v. Anderson, 26 Wn. App. 933, 937, 614 P.2d 693 (1980) (citing Watts v. Dietrich, 1 Wn. App. 141, 460 P.2d 298 (1969)). Thus, the instruction given correctly stated that a driver may not make a U-turn unless he or she can do so safely and that oncoming traffic has the right-of-way.
Savage asserts that jury instruction 10 is derived from this court's decision in Mendelsohn. Although the court in Mendelsohn articulated these principles, see 26 Wn. App. at 937, Mendelsohn itself is not the source of these principles. As explained, supra, they are derived from long-standing common law duties and RCW 46.61.295(1).
Contrary to Savage's assertions, jury instruction 10 did not direct the jury to return a guilty verdict if it found that Savage was involved in an accident with an oncoming motorist while attempting to make a U-turn. In issuing jury instruction 7, the trial court expressly instructed the jury that proof of only ordinary negligence was insufficient to render a person guilty of vehicular manslaughter. Coupled with instruction 7, instruction 10 neither directed nor permitted the jury to infer that the ultimate facts of either alternative premise had been proved beyond a reasonable doubt based on proof of only ordinary negligence. Nor did jury instruction 10 contain a reference to a specific factual allegation in a manner that implied any element of the charged offense had been proved. Indeed, the instruction given did not refer to any specific alleged fact. Thus, it did not remove any element of the charged offense from the jury's consideration. See State v. Levy, 156 Wn.2d 709, 721-22, 132 P.3d 1076 (2006) (discussing how reference to a specific alleged fact in a "to-convict" instruction implied that the fact and thus the element had been proved); State v. Jackman, 156 Wn.2d 736, 744, 132 P.3d 136 (2006) (same); Becker, 132 Wn.2d at 65 (same). The instruction given did not relieve the State of its burden to prove the elements of either alternative premise beyond a reasonable doubt. It did not constitute a comment on the evidence.
Affirmed.
We concur: