State v. Wall

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

This appeal arises from an automobile accident and fatality. We affirm. On August 6, 1990, Marguerite Wall (Wall) was charged with Second Degree Manslaughter, in violation of SDCL 22-16-20. A jury trial was held in December of 1990. The jury ultimately returned a guilty verdict on the second degree manslaughter charge. Wall was subsequently sentenced and a Judgment of Conviction was entered in January of 1991. Following sentencing, Wall filed a motion for new trial in February, 1991. The trial court entered an Order denying new trial in March of 1991. On appeal, Wall raises the following three issues:

I. Was there sufficient evidence presented to the jury to support a conviction?

II. Did the trial court err in denying Wall’s request for a lesser included offense jury instruction?

III. Did Wall receive a fair trial?

FACTS

On August 4, 1990, Wall, driving a motorhome, struck the rear end of a pickup truck camper driven by Ronald Starkey. Wall was attempting a pass on Highway 16. As Wall was proceeding west on Highway 16, the vehicle traffic proceeding west was slowed for an accident. Wall passed three or four cars after leaving the area of this accident. When she attempted to pass the Starkey pickup, a collision occurred. This collision took place on a mile long stretch on Highway 16, two miles east of the Wyoming border. This stretch of road had no sharp curves and had dry pavement. At the sight of the homicide, it was narrow (19 feet 7 inches wide) with no shoulder.

The collision with the Starkey vehicle occurred after Wall passed a van and a car and returned approximately two-thirds of the way back into her proper lane. According to an eyewitness, Lynn Litizzette, Wall then started pulling back out into the eastbound lane to pass Starkey when she struck the rear of the camper shell. Eyewitnesses testified that Wall was driving at a high rate of speed, ducking in and out and passing vehicles. This caused Starkey’s pickup to be pushed into the ditch; it rolled and was demolished. Starkey was killed in the accident and his wife, two boys and an infant were injured. Appellate counsel was not counsel at trial court level.

DECISION

I. Was there sufficient evidence in the record to support the conviction?

In determining the sufficiency of the evidence on review, the question presented is whether there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt. State v. Lewandowski, 463 N.W.2d 341, 343-344 (S.D.1990). In this review, we must accept that evidence, and the most favorable inferences to be fairly drawn therefrom, which will support the verdict. Id. at 344 (citations omitted). In determining the sufficiency of the evidence, this Court will not “ ‘resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence.’ ” State v. Hanson, 456 N.W.2d 135, 139 (S.D.1990) (quoting State v. Faehnrich, 359 N.W.2d 895, 900 (S.D.1984)). No guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable inferences drawn therefrom, sustains a reasonable theory of guilt. State v. Bartlett, 411 N.W.2d 411, 412 (S.D.1987).

Wall is charged with violation of SDCL 22-16-20.¹ This statute provision treats “[a]ny reckless killing” as manslaughter in the second degree. In this appeal, Wall essentially disputes the jury’s finding of recklessness. This Court has had occasion in the recent case of State v. Olsen, 462 N.W.2d 474, 476-477 (S.D.1990), to review SDCL 22-16-20 in context of an automobile accident. Therein, also, the issue of “reckless” was raised.

The definition of “reckless” for the purpose of second degree manslaughter is set forth in SDCL 22-l-2(l)(d). That definition provides:

The words “reckless, recklessly” and all derivatives thereof, import a conscious and unjustifiable disregard of a substantial risk that the offender’s conduct may cause a certain result or may be of a certain nature. A person is reckless with respect to circumstances when he consciously and unjustifiably disregards a substantial risk that such circumstances may exist[.]

See, State v. Olsen, supra at 476, and State v. Martin, 449 N.W.2d 29 (S.D.1989). As we stated in Olsen, supra at 476: “Recklessness requires more than ordinary negligent conduct.” Awareness and cognizance of the risk, and disregarding that risk, are factors that bring an actor’s conduct to the level of recklessness. “The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.” Olsen, supra at 476-477 (citations omitted). The difference between reckless and negligent behavior is measured by the state of mind of the individual. Id.

State must demonstrate the element of awareness of the risk to establish reckless conduct. This can be established indirectly by establishing that a defendant’s conduct indicates a reckless disregard for the safety of others. Olsen, supra at 477. However, merely producing evidence of carelessness, inadvertence or thoughtless omission is insufficient to sustain a conviction where reckless conduct is required. Id. Operation of a motor vehicle in violation of the law, without more, is not sufficient to constitute reckless conduct, even if there is a fatality as a result thereof. Id.²

In the present case, after reviewing the evidence and drawing the most favorable inferences therefrom, we hold that there is sufficient evidence to support the jury’s verdict. The evidence does rise to the level of “reckless.” The State introduced evidence of the narrow width of Highway 16 in the vicinity of the collision and of the wide frame of the RV. State introduced evidence of Wall’s numerous attempts to pass vehicles and of passing multiple cars in one lengthy pass. This was all done shortly after leaving the vicinity of a separate accident where traffic was slowed. This driving was all done in an obvious attempt to keep up with a traveling companion in another vehicle, who was pulling a boat at a high rate of speed. Evidence was also provided by eyewitnesses. They testified that Wall’s driving came close to causing accidents over the course of several miles before she came upon Starkey’s pickup. Evidence was introduced as to an excessive rate of speed that Wall was traveling and of imprudent passing of other vehicles. Witnesses testified that Wall’s passing at times involved an erratic ducking in and out between cars to pass in the oncoming lane. From this evidence, other evidence in the record, and from reasonable inferences drawn therefrom, there is sufficient evidence to conclude that Wall was aware of the risk of a potential accident, yet disregarded that risk. The risks of passing were obvious. There is sufficient evidence in the record to conclude that Wall’s conduct reached the level of reckless conduct in operating her motor vehicle. Her ducking in and out of traffic, at a high rate of speed, passing other vehicles, displayed a reckless disregard for the safety of other persons on the road. Although this case does not involve use of alcohol or a controlled substance, those factors are not a requirement to a finding of reckless conduct for purposes of second degree manslaughter. There is sufficient evidence in the record to support a determination, beyond a reasonable doubt, of a violation of SDCL 22-16-20, second degree manslaughter.

II. Wall asserts that the trial court erred in refusing to instruct on Wall’s lesser included offense instruction, i.e., careless driving.

At trial, the court denied Wall’s proposed instructions, numbers 11 and 12, both relating to “careless driving,” determining that the instructions did not meet the legal and factual tests for giving lesser included offenses. In State v. Heumiller, 317 N.W.2d 126, 132 (S.D.1982), we stated:

Under the law as established in this state, it is incumbent upon the trial court to instruct the jury, if requested, upon a lesser offense included in the offense charged if the evidence warrants a conviction upon the included offense. There are two tests that must be satisfied in determining whether the trial court should submit a lesser included offense instruction to the jury. The first is a legal test, the second is factual.

See, State v. Gillespie, 445 N.W.2d 661, 663 (S.D.1989). The legal test is met if (1) all of the elements of the included offense are lesser in number than the elements of the greater offense; (2) the penalty for the included lesser offense must be less than that of the greater offense; and (3) both offenses must contain common elements so that the greater offense cannot be committed without also committing the lesser offense. State v. Gillespie, supra at 663. In order to meet the factual test, evidence must be presented which would support a conviction of a lesser charge. Refusal by the trial court to give such an instruction would be reversible error. State v. Heumiller, supra at 132. “There must be sufficient evidence, however, when read in the light most favorable to the defendant, which would justify a jury in concluding that the greater offense was not committed and that a lesser offense was, in fact, committed.” Heumiller, supra at 132 (citations omitted).

The trial court denied Wall’s proposed instructions involving the lesser included offense of careless driving, stating that the instructions did not meet the legal and factual test as outlined above. We agree with this conclusion. Wall fails to meet the third element of the legal test. This element provides that the two offenses must contain common elements so that the greater offense cannot be committed without also committing the lesser offense. In the present case, the greater offense of second degree manslaughter can be committed without also meeting all of the elements necessary to commit the offense of careless driving. Indeed, the two offenses do not contain common elements. The elements of second degree manslaughter, SDCL 22-16-20, upon which Wall was charged, are:

(1) That the defendant at the time and place alleged in the (information, indictment) caused the death of_;

(2) That such killing was reckless;

(3) That such killing was by such means and under such circumstances as not to constitute murder or manslaughter in the first degree as defined in these instructions; and

(4)That the killing was not excusable or justifiable.

South Dakota Pattern Jury Instruction— Criminal No. 3-24-27. The elements of SDCL 32-24-8, careless driving are:

(1) That the defendant, at the time and place alleged in the (information, indictment), drove a vehicle upon (a highway, an alley, the property of a public or private school, college or university);

(2) That said driving was done carelessly and without due caution;

(3) That said driving was done at a speed or in a manner so as to endanger any person or property.

South Dakota Pattern Jury Instruction— Criminal No. 3-19-38.

SDCL 22-16-20, second degree manslaughter, and SDCL 32-24-8, careless driving, contain none of the same elements. SDCL 32-24-8, careless driving is not a lesser included offense to second degree manslaughter. Careless driving, Wall argues, is a lesser included offense to SDCL 32-24-1, reckless driving. In the present case, Wall was charged and convicted under SDCL 22-16-20, second degree manslaughter, not SDCL 32-24-1, reckless driving. Neither reckless driving nor careless driving involves a homicide. Wall does not meet the test for an instruction of a lesser included offense. Because of our conclusion, we need not discuss the factual determination of the test.

It is noted that we have held that a trial judge is obligated to instruct on the evidence and should not instruct on evidence which belies the record. Here, a careless driving instruction would be highly inappropriate for the reason that Wall was darting in and out of vehicles on the highway, at a high rate of speed, on a rather narrow road with no shoulders, nearly causing other accidents, whereby the drivers of motor vehicles were highly endangered. Eyewitnesses testified that they were fearful of their lives as Wall, with her wild and excited driving, attempted to catch up with another vehicle. Simply put, a careless driving instruction is not supported by the overwhelming evidence in this case. See, State v. Weisenstein, 367 N.W.2d 201, 206 (S.D.1985). In Olsen, a young farm boy, driving a tractor at a speed of approximately 5 to 15 miles per hour, made a left hand turn onto a gravel country road. Olsen was charged with manslaughter under SDCL 22-16-20, the same statute that Wall is charged with violating. The manslaughter charge was dismissed at a preliminary hearing by the magistrate court. We affirmed the magistrate court order.

III. Was Wall afforded a fair trial?

Wall asserts that certain actions and statements by the State amounted to prosecutorial misconduct, denying Wall a fair trial. This alleged misconduct consisted of the State eliciting testimony from various witnesses at trial concerning Wall’s post-collision conduct and the State cross-examining Wall on her lack of insurance. Wall alleges that the introduction of these statements by the State were highly prejudicial. Prejudicial error, which Wall contends is present here, is such error, as in all probability must have produced some effect upon the final result of the trial. It must be harmful to the substantial rights of the party assigning it. State v. Wimberly, 467 N.W.2d 499, 504 (S.D.1991) (citing State v. Michalek, 407 N.W.2d 815, 818 (S.D.1987)).

On appeal, Wall contends that the introduction of testimony at trial concerning her post-collision conduct was irrelevant and highly prejudicial evidence. She asserts that the introduction of said evidence rises to the level of “plain error.” State v. West, 344 N.W.2d 502, 504 (S.D.1984). This evidence consisted of testimony relating to Wall’s lack of remorse after the accident.

Initially, we note the issue relating to a “lack of remorse” was not preserved for appeal. Wall filed no pretrial motion to suppress evidence of this kind. She raised no objection to the evidence when the State produced it. Finally, Wall did not include this objection in her motion for new trial. This Court has consistently held that failure to specifically object to evidence at trial forecloses complaint of the issue on appeal. State v. Red Star, 467 N.W.2d 769, 771 (S.D.1991); State v. Gallipo, 460 N.W.2d 739, 743 (S.D.1990). See also, State v. Handy, 450 N.W.2d 434, 435 (S.D.1990) (Defendant did not preserve issue for appeal by failing to make appropriate or timely objection at time of claimed misconduct).

We do not believe that the introduction of this evidence rises to the level of plain error. This Court has adopted the plain error rule and may, on appeal, notice defects which affect substantial rights even though the defendant failed to properly preserve such defects for appeal. State v. Bunnell, 324 N.W.2d 418 (S.D.1982). However, we employ this rule only in exceptional cases, and then, it is employed cautiously; the rule does not encompass every error which occurs at trial, but only those errors which are both obvious and substantial. Lewandowski, 463 N.W.2d at 344.

Additionally, Wall alleges prosecu-torial misconduct by the State’s reference to Wall’s lack of insurance. Wall asserts that this statement was highly prejudicial and rises to the level of plain error. At trial, the court sustained Wall’s objection to this statement and admonished the jury to disregard the reference to insurance. The trial court denied Wall’s Motion for Mistrial and Motion for New Trial based on its admonishment to the jury to disregard the reference and the trial court’s confidence that the jury would do so.

We have addressed this issue of prosecu-torial misconduct before:

No hard and fast rules exist which state with certainty when prosecutorial misconduct reaches a level of prejudicial error which demands reversal of the conviction and a new trial; each case must be decided on its own facts, (citations omitted).

Furthermore, we will not disturb the trial court’s ruling on a motion for a new trial based on misconduct of counsel unless we are convinced there has been a clear abuse of discretion, (citations omitted).

State v. Shult, 380 N.W.2d 352, 355 (S.D.1986) (quoting State v. Kidd, 286 N.W.2d 120, 121-122 (S.D.1979)).

This reference to lack of insurance was improper. However, defense counsel made an immediate objection to the statement. The trial judge immediately admonished the jury to disregard the statement. The trial court’s on-the-scene assessment of the impact of the reference led him to conclude that he was confident the jury would disregard the reference, upon which he denied Wall’s motion for mistrial and motion for new trial. Giving due deference to the trial court’s on-the-scene assessment, we conclude that the reference was not so prejudicial as to rise to the level of “plain error.” Cf. State v. Dombusch, 384 N.W.2d 682, 686 (S.D.1986) (admission of testimony that defendant refused to take polygraph test not plain error). The trial court did not clearly abuse its discretion in denying Wall’s motions based on this statement. We do not believe that this reference rose to such a dimension that a fair trial and verdict were impossible. Here, the testimony establishing second degree manslaughter, considering the death of Starkey and the conscious and unjustifiable disregard of a substantial risk by Wall’s conduct where a certain result would occur, or was of a certain nature, was overwhelming. Wall’s driving was a reckless killing of a human being, under the state law, and the allusion to both a “lack of remorse” and no insurance were either waived or harmless error due to Wall’s driving.

The judgment of conviction is affirmed.

WUEST, J., concurs. MILLER, C.J., concurs in part and concurs in result in part. AMUNDSON, J., concurs in part and dissents in part. SABERS, J., dissents.

1 . SDCL 22-16-20 provides:

Any reckless killing of one human being by the act or procurement of another which, under the provisions of this chapter, is neither murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree. Manslaughter in the second degree is a Class 4 felony.

2 . A case cited in Sabers, J., dissent, bears examination. The statute in State v. Barela, 95 N.M. 349, 622 P.2d 254, 255 (App.1980) is distinguishable from SDCL 22-16-20. The New Mexico statute, Section 66-8-101, N.M.S.A. 1978, is literally a vehicular homicide statute, as opposed to SDCL 22-16-20, which contains no mention nor distinction of vehicular homicide, motor vehicles, use of motor vehicles, etc. Section 66-8-101 N.M.S.A. 1978 reads as follows:

A. Homicide by vehicle is the killing of a human being in the unlawful operation of a motor vehicle.

B. Any person who commits homicide by vehicle while violating Section 66-8-102 or 66-8-113 N.M.S.A. 1978 is guilty of a felony.

In contra-distinction, SDCL 22-16-20 provides:

Any reckless killing of one human being by the act or procurement of another which, under the provisions of this chapter, is neither murder nor manslaughter in the first degree, nor excusable no justifiable homicide is manslaughter in the second degree. Manslaughter in the second degree is a Class 4 felony.

As is evident, the two statutes are clearly distinguishable.