Opinion
Docket No. 28564.
Filed January 7, 2004.
Appeal from the District Court of the Second Judicial District, State of Idaho, Nez Perce County. Hon. Jeff M. Brudie, District Judge.
Judgment of conviction for vehicular manslaughter and aggravated driving under the influence, vacated, and case remanded.
Law Office of James W. Grow, Lewiston, for appellant. Todd S. Richardson argued.
Hon. Lawrence G. Wasden, Attorney General; Karen A. Hudelson, Deputy Attorney General, Boise, for respondent. Karen A. Hudelson argued.
Richard Robinett appeals his conviction for vehicular manslaughter and aggravated driving under the influence of alcohol (DUI). He complains of several alleged trial errors, including the admission of blood test results revealing Robinett's blood alcohol concentration more than two hours after the vehicle accident, refusal of Robinett's proposed jury instructions on superseding cause, and prosecutorial misconduct in closing argument. We conclude that there was reversible error in the admission of the blood test results, as well as improper prosecutorial argument. We therefore vacate the judgment of conviction and remand for a new trial.
I. FACTUAL PROCEDURAL BACKGROUND
On May 11, 2001, Richard Robinett, his daughter, Patricia, and his brother-in-law, Russell Lawrence, were drinking at a bar in Lewiston. At 2:25 a.m., the three left in Robinett's car with Robinett driving, Patricia in the front passenger seat, and Lawrence in the backseat. At a bend in the road, the car went off the left side of the road and slammed into a tree. At about 3 a.m., police were notified of the wreck. They found Robinett outside the vehicle. Patricia was alive but severely injured, and Lawrence was dead and lying across the passenger seat. At the hospital where Robinett was taken for treatment, two samples of his blood were taken approximately two hours and two and one-half hours after the accident. They showed a blood alcohol content varying from .12 to .165.
Robinett was charged with vehicular manslaughter, Idaho Code § 18-4006(3)(b), for Lawrence's death and aggravated DUI, I.C. §§ 18-8004(1)(a), -8006, in connection with Patricia's injury. At trial, Robinett's two primary defenses were that (1) he was not intoxicated at the time of the accident, and (2) even if he was driving while under the influence, that was not the proximate cause of the wreck. The defense presented evidence that the accident occurred because Lawrence, who was heavily intoxicated, became angry with Robinett and, leaning forward between the front bucket seats, grabbed Robinett, causing Robinett to lose control of the vehicle. Robinett was nevertheless found guilty on both charges.
On appeal, Robinett contends that there was insufficient evidence to support the finding of guilt, that the district court improperly allowed evidence of his blood alcohol content, that the court incorrectly refused to allow jury instructions regarding superseding cause and certain other jury instructions proposed by the defense, and that the prosecution engaged in misconduct in closing argument.
II. ANALYSIS
A. Sufficiency of the Evidence
We consider first Robinett's argument that he is entitled to an acquittal because the trial evidence was insufficient to prove that he was intoxicated or that his driving while intoxicated was the cause of the accident. Appellate review of the sufficiency of the evidence is limited in scope. A judgment of conviction, entered upon a jury verdict, will not be overturned on appeal where there is substantial evidence upon which a reasonable trier of fact could have found that the prosecution sustained its burden of proving the essential elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct.App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct.App. 1991). We will not substitute our view for that of the jury as to the credibility of the witnesses, the weight to be given to the testimony, or the reasonable inferences to be drawn from the evidence. Id.; State v. Decker, 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct.App. 1985). In our deference to the jury's fact-finding, we consider the evidence in the light most favorable to the verdict. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson, 121 Idaho at 104, 822 P.2d at 1001.
For both of the charges against Robinett, the State had to prove that he violated I.C. § 18-8004(1)(a), which prohibits driving under the influence of alcohol. In addition, to sustain its burden on the aggravated DUI charge, the State was required to prove that Robinett "caus[ed] great bodily harm, permanent disability or permanent disfigurement to [Patricia] in committing a violation of the provisions of § 18-8004(1)(a)." I.C. § 18-8006. For the vehicular manslaughter charge, the State was required to prove that Robinett's "operation of a motor vehicle [was] a significant cause contributing to [Lawrence's] death because of . . . the commission of a violation of § 18-8004 or § 18-8006, Idaho Code." I.C. § 18-4006(3). To convince this Court that the evidence was insufficient for conviction, Robinett points to testimony supporting his theory of the case, namely, that the accident was caused not by Robinett's intoxication but by Lawrence physically interfering with Robinett's ability to drive. This argument is unpersuasive, for a defendant's countervailing evidence is of little significance in determining whether the State's evidence is sufficient for conviction. A jury is entitled to believe or to reject a defendant's story. The correct question is whether the State produced sufficient evidence from which a jury could find that the State had proved all essential elements of the charges beyond a reasonable doubt.
We conclude that the evidence here was sufficient to sustain findings that Robinett was intoxicated and that his conduct in operating the vehicle while intoxicated caused the fatal accident. There was testimony that Robinett drank several mixed drinks as well as a large glass of beer at the bar. At some time during the course of the evening, Robinett left the bar in his vehicle and then returned shortly before the entire group left for the final time. An employee of the bar testified that, as Robinett was returning to the bar parking lot, his vehicle "whipped around the corner really fast," almost striking another car. A taxi driver who drove away from the bar just ahead of Robinett's final departure testified that Robinett followed "really close" to the taxi cab, "possibly about a foot away" and came "about six inches to a foot" from hitting the taxi cab. An accident investigator and an expert in accident reconstruction testified that, in their opinions, when Robinett's car veered off the road, the car was traveling straight, with no evidence of braking or of effort by the driver to turn. The State also introduced the two blood test results, both showing that Robinett had alcohol in his blood.
We here consider only the fact that the blood tests showed there was some alcohol in Robinett's blood; we do not consider the concentration level, the irrelevancy of which is discussed in section II(B) below.
From this evidence, taken as a whole, a jury could reasonably infer that Robinett operated the vehicle while under the influence of alcohol, that he drove the vehicle off the road and into a tree, and that his operation of the vehicle in this unlawful manner thus caused the victims' injuries.
B. Blood Test Evidence
Robinett next argues that the trial court erred in admitting evidence of the alcohol content in Robinett's blood samples that were taken at the hospital about two to two and one-half hours after the accident. His argument is predicated largely upon the fact that the State did not charge him with driving while having a blood alcohol content in excess of the statutory limit. Analysis of this argument requires some explanation of Idaho's DUI statute, I.C. § 18-8004(1)(a), which establishes a crime that may be proved in two distinct ways: (1) by evidence that the defendant's ability to drive was actually impaired by the influence of alcohol, or (2) by evidence that the defendant was driving with an alcohol concentration of .08 or more as determined by analysis of blood, urine or breath (known as "per se" DUI). State v. Edmondson, 125 Idaho 132, 134, 867 P.2d 1006, 1008 (Ct.App. 1994); State v. Andrus, 118 Idaho 711, 800 P.2d 107 (Ct.App. 1990); State v. Knoll, 110 Idaho 678, 682, 718 P.2d 589, 593 (Ct.App. 1986). The State, in its charging instrument, may elect to proceed against the defendant under either or both theories of proof. Edmondson, 125 Idaho at 134, 867 P.2d at 1008. In the present case, the State proceeded only under the first theory — actual impairment of the ability to drive. Robinett contends that because the State did not charge him under the per se theory, evidence of his blood alcohol content was irrelevant.
Robinett relies upon our decisions in Andrus and State v. Tate, 122 Idaho 366, 834 P.2d 883 (Ct.App. 1992), where we affirmed the exclusion of defense evidence of the defendants' imputed blood alcohol content when the State was proceeding with a DUI prosecution based solely on the actual impairment theory. Robinett argues that if evidence of alcohol concentration is irrelevant in an impairment theory case when proffered by the defense, it must also be inadmissible when presented by the State. Robinett's rationale is faulty. In both Andrus and Tate, the defendant had refused to take a breath test to determine the actual alcohol concentration, and therefore the State was forced to proceed on an impairment theory. In each case, the defendant sought to introduce evidence of what his alcohol concentration theoretically would have been while driving based upon his claims about the amount of alcohol he had consumed and experts' calculations concerning the body's absorption of alcohol, considering the individual's weight, the time span involved and other factors. Through such an extrapolation, both defendants sought to show that their blood alcohol content would have been less than the statutory limit for a per se violation. We held that such evidence was properly excluded, for the defendant's own refusal of an alcohol concentration test had prevented acquisition of the most reliable evidence of the blood alcohol level. In Tate we explained:
By refusing the requested test, Tate prevented the State and thus the jury from obtaining the most reliable and accurate evidence of his BAC. As a matter of policy, where a defendant by his own choice has denied access to the scientifically more reliable evidence, recognized by statute and case law, he should not be allowed to introduce less reliable secondary evidence consisting of nothing more than an imputed BAC.
Tate, 122 Idaho at 369, 834 P.2d at 886. This estoppel-like rationale for excluding evidence of imputed alcohol concentration by the party who has prevented a BAC test has no application in Robinett's case where a blood alcohol test was obtained and is offered by the State. Tate and Andrus do not stand for the proposition that alcohol concentration evidence is never admissible in an impairment theory prosecution.
Rather than apply such a black letter rule of exclusion, we must examine whether the evidence offered by the State here was relevant to the charge that Robinett was driving while impaired by alcohol. Evidence that blood tests showed some alcohol in Robinett's blood was, of course, relevant to prove that he had ingested alcohol. We consider here only the relevance of the specific level of alcohol concentration revealed by the blood tests. Relevancy is a question of law over which this Court exercises free review. State v. Raudebaugh, 124 Idaho 758, 864 P.2d 596 (1993); State v. Waddle, 125 Idaho 526, 873 P.2d 171 (Ct.App. 1994).
We conclude that the evidence of Robinett's blood alcohol level two or more hours after the accident was not relevant because it was not accompanied by any evidence of how that information would reveal his alcohol concentration at the time of the accident and how such an extrapolated alcohol concentration likely would have affected his driving capabilities. The State's primary expert for the blood test results was Stewart Jacobson, a criminalist. Jacobson testified that he could not determine what Robinett's blood alcohol level was at the time of the accident, and he did not give a range. He was unable to specify a rate at which the alcohol in Robinett's blood would have been eliminated after the accident. None of the State's experts testified to Robinett's likely level of functional impairment from alcohol at the time of the accident. Without expert testimony relating the test results to a likely effect on Robinett's ability to drive at the time of the accident, the test results showing a blood alcohol level of .12 to .165 two or more hours post-accident was not relevant to show whether Robinett was driving while his ability to drive was impaired by alcohol.
This conclusion is consistent with our statement in Tate, 122 Idaho at 369, 834 P.2d at 886, that evidence of an extrapolated blood alcohol level, standing alone, is not relevant in an impairment theory case. It is also consistent with our holding in Edmondson, involving the opposite circumstance, where a defendant who was prosecuted on a per se theory sought admission of an audiotape of the traffic stop and the results of field sobriety tests conducted by officers to show that the defendant displayed no observable signs of intoxication. This Court held that such evidence could be relevant to impeach the results of the breath test, but only if "an adequate foundation [is] laid to show a correlation between the alleged blood-alcohol level and the likely manifestation of specific symptoms." Id. at 135, 867 P.2d at 1009 (quoting Knoll, 110 Idaho at 682 n. 3, 718 P.2d at 593 n. 3). Because of the lack of such foundational evidence correlating blood alcohol level with impairment of functioning, we held that the evidence was not relevant and was therefore inadmissible. Edmondson, 125 Idaho at 135, 867 P.2d at 1009. The absence of such a foundation in the present case likewise called for exclusion of the evidence of Robinett's blood alcohol level.
The admission of Robinett's blood test results was so prejudicial that we deem it to be reversible error. It allowed the jury to make speculative extrapolations or assumptions that the State's own expert was unable to make about Robinett's blood alcohol level at the time of the accident and about its likely effect on his driving ability. It is probable that at least some members of the jury were aware of Idaho's statutory .08 limit for per se DUI, and therefore the jury may have surmised that Robinett was driving with a blood alcohol concentration of twice the legal limit even though the evidence does not support such an extrapolation. The erroneous admission of the test results could be deemed harmless error if the evidence of Robinett's guilt was otherwise overwhelming, but it was not. Although we concluded in section II(A) above that there was sufficient evidence to support a guilty verdict, that is not to say that no other verdict could reasonably have been reached on the evidence as a whole. While there was evidence that Robinett had consumed considerable alcohol and was driving carelessly before the accident, there was countervailing testimony from a waitress at the bar that Robinett did not appear to be intoxicated. The waitress substantiated Patricia's testimony that Robinett was not drunk. Patricia also testified that the accident was not caused by Robinett's careless driving but by passenger Lawrence's attack. This defense theory draws some support from the waitress's testimony that while Robinett did not appear to be impaired, Lawrence was heavily intoxicated. In order to hold that an evidentiary error does not require the reversal of a conviction, we must be convinced beyond a reasonable doubt that the jury's verdict would have been the same in the absence of the error. State v. Moore, 131 Idaho 814, 821, 965 P.2d 174, 181 (1998); State v. Roberts, 129 Idaho 194, 198, 923 P.2d 439, 443 (1996); State v. Kerchusky, 138 Idaho 671, 678, 67 P.3d 1283, 1290 (Ct.App. 2003). We cannot reach that conclusion here.
Therefore, we conclude that Robinett must be afforded a new trial. For guidance on remand, we will address additional claims of error raised in this appeal.
C. Prosecutorial Misconduct
Robinett contends that there was misconduct in several components of the prosecutor's closing argument. We find it necessary to address only one of these for guidance on remand
While discussing the proof required to establish Robinett's guilt of aggravated DUI, the prosecutor said: "What they do, because this is essentially a DUI statute, is they make it strict liability. If you are intoxicated and you're driving, [and] an injury occurs, then you are guilty of this." This comment misstated to the jury the causation element of aggravated DUI. The offense is defined in I.C. § 18-8006 as follows:
Any person causing great bodily harm, permanent disability or permanent disfigurement to any person other than himself in committing a violation of the provisions of section 18-8004(1)(a) or (1)(c), Idaho Code, is guilty of a felony. . . .
(Emphasis added.) Although this statute does not require that the State prove any negligent act while driving under the influence, it does require that there be "some causal connection between the defendant's driving while under the influence and the victim's injuries." State v. Johnson, 126 Idaho 892, 895, 894 P.2d 125, 128 (1995). See also State v. Frank, 51 Idaho 21, 28, 1 P.2d 181, 184 (1931) (holding that, under an analogous statute establishing the offense of involuntary manslaughter, the State was required to prove not only that the defendant was driving under the influence but also that his unlawful driving was the proximate cause of the victim's death).
In holding that I.C. § 18-8006 does not require a negligent act, Johnson overruled, sub silentio, the Court of Appeals decision in State v. Nelson, 119 Idaho 444, 446-47, 807 P.2d 1282, 1284-85 (Ct.App. 1991), where we held that the statute required proof that the driver, while intoxicated, committed a negligent act or omission.
The prosecutor's argument here was improper because it suggested to the jury that the State need not prove any causal relationship between Robinett's driving under the influence and the accident that caused Patricia's injuries. Indeed, it indicated that even if the wreck occurred in the manner asserted by Robinett, solely as a result of Lawrence suddenly grabbing Robinett from behind, Robinett would be criminally liable. This assertion in the prosecutor's argument that a defendant is "strictly liable" for any injury that occurs while he is driving under the influence eliminated the causation element and misled the jury regarding the State's burden of proof.
D. Jury Instructions
Robinett contends that the district court erred in refusing his requested jury instructions concerning superseding cause. He contends that these instructions were necessary in order for the jury to properly consider his evidence that the vehicular accident was caused by Lawrence's attack on Robinett while Robinett was driving. A question concerning the adequacy of jury instructions is a question of law, and we therefore exercise free review on this issue. State v. Gleason, 123 Idaho 62, 65, 844 P.2d 691, 694 (1992).
Superseding cause, also sometimes referred to as intervening cause or supervening cause, has been variously defined in the criminal law context, but in general it refers to an act of another person or other force which breaks the chain of causation between the defendant's culpable act and the victim's injury and becomes the cause of the injury, thereby rendering the defendant's act causatively harmless. See, e.g., People v. Saavedra-Rodriguez, 971 P.2d 223, 225-26 (Colo. 1998); State v. Pelham, 824 A.2d 1082 (N.J.Super.Ct. App. Div. 2003); BLACK'S LAW DICTIONARY, p. 221 (6th ed. 1990). The Idaho appellate courts have never defined the term for use in criminal cases, but in State v. Cox, 82 Idaho 150, 155, 351 P.2d 472, 474-75 (1960), the Idaho Supreme Court indicated that intervening cause is an affirmative defense to a charge of negligent homicide arising from a vehicle collision. The Court stated that the defendant driver, who sought to show that the victim's death was not proximately the result of the collision but of negligent medical treatment of her injuries, "must show that erroneous or unskillful medical treatment became an efficient intervening cause in that such medical care thereby became the proximate cause of death." Id. Many other states have recognized superseding cause as a defense to criminal charges.
Superseding or intervening cause is not to be confused with mere contributory negligence of the victim, which is not a defense to criminal liability. State v. Taylor, 67 Idaho 313, 177 P.2d 468 (1947).
See, e.g., State v. Dodge, 567 A.2d 1143 (Vt. 1989) (recognizing intervening cause as defense to charge of careless and negligent operation of motor vehicle resulting in death, but holding that victim's failure to wear seat belt did not constitute intervening cause); State v. Bass, 12 P.3d 796 (Ariz. 2000) (holding that trial court's written jury instruction on superseding cause in negligent homicide case set forth proper standard by which to determine when an intervening event becomes a superseding cause); State v. Marti, 290 N.W.2d 570 (Iowa 1980) (recognizing that superseding cause is defense to criminal liability); People v. Kearns, 988 P.2d 189 (Colo.Ct.App. 1999) (stating that trial court in vehicular assault case properly instructed jury as to defendant's contention that his actions did not fall within definition of crime because of victim's actions constituting intervening cause); State v. Dorans, 806 A.2d 1033 (Conn. 2002) (stating that to prove causation, state must demonstrate that defendant's conduct was proximate cause of victim's death and that defendant's conduct was not superseded by an efficient intervening cause); State v. Thomas, 637 N.W.2d 632 (Neb. 2002) (recognizing "efficient intervening cause" as a new and independent cause which is itself a proximate cause of death and which breaks the causal connection between the original illegal act and the death); State v. Souther, 998 P.2d 350 (Wash.Ct.App. 2000) (recognizing intervening cause as defense in vehicular homicide case, but holding that victim's exceeding speed limit and negligently signaling left did not constitute intervening cause because victim's actions were in existence prior to defendant's act.).
Although we do not doubt that superseding cause is a cognizable defense to aggravated DUI or vehicular manslaughter, we conclude that an instruction on that defense was not required here because Robinett's theory was not that his culpable act, which might have otherwise caused the victims' injuries, was causally superseded by Lawrence's act. Rather, Robinett's evidence purported to show that he committed no act that could have had a causal relationship to the car wreck and that the sole cause of the accident was Lawrence's act in physically attacking Robinett. The evidence required the jury to choose between two alternative causes, not to assess the relative contribution of two possible causes, one of which occurred after and may have superseded the other. That is, the defense theory was not one of superseding cause but one of alternative cause in which no act of Robinett played a part. Robinett was entitled, of course, to argue to the jury that it was Lawrence's unexpected attack, not any act of Robinett as he was driving, that caused the vehicle to crash into a tree; but he could present such an argument without any jury instruction on superseding cause.
E. Other Jury Instructions
Robinett also claims that the district court erred in refusing three other jury instructions requested by the defense. We find no error. His proposed instruction 5A would have told the jury that to establish guilt of DUI, the State must prove that Robinett drove a motor vehicle while under the influence of alcohol "to a degree which rendered the defendant incapable of safely operating a motor vehicle." This is not a requirement for the charges against Robinett. He was charged with violating subsection (1)(a) of § 18-8004 (elevated to aggravated DUI under I.C. § 18-8006 because of Patricia's injuries), which applies to any person who drives or is in actual physical control of a motor vehicle while the person "is under the influence of alcohol, drugs or any other intoxicating substances." Robinett's proposed instruction 5A comes from alternative language in Idaho Criminal Jury Instruction 101 which was provided for use where the charge was a violation of former I.C. § 18-8004(5), which was rescinded in 2002. See 2002 Idaho Sess. Laws, ch. 253, § 1. That subsection applied to "any person who is an habitual user of or under the influence of any narcotic drug, or who is under the influence of any other drug or any combination of alcohol or any drug to a degree which impairs the driver's ability to safely operate a motor vehicle." As Robinett was not charged under subsection (5), the instruction was not appropriate for use in his case.
Robinett's proposed instruction 10, which was based upon I.C. § 18-201(3) and addressed persons' capability to commit crimes, was properly refused. The purpose of this instruction was apparently to provide a mechanism for the jury to find Robinett not guilty because the car wreck was not a result of his intent or culpable negligence. The instruction appears to conflict with I.C. § 18-8006(1), which, as noted above, was interpreted by the Idaho Supreme Court in Johnson as requiring no negligent act by the defendant. A jury believing Robinett's version of events would have had the necessary basis to acquit through the given instructions requiring the State to prove that his act of driving under the influence of alcohol was the cause of Patricia's injuries and "a significant cause" contributing to Lawrence's death.
Idaho Code § 18-201 provides:
All persons are capable of committing crimes, except those belonging to the following classes:
. . . .
3. Persons who committed the act or made the omission charged, through misfortune or by accident, when it appears that there was not evil design, intention or culpable negligence.
Lastly, Robinett's requested instruction 18 addressed the blood alcohol concentration test results, which we have held were erroneously admitted, and such an instruction therefore will not be necessary in a new trial.
III. CONCLUSION
Robinett's judgment of conviction is vacated and the case remanded for further proceedings consistent with this opinion.
Judge PERRY and Judge GUTIERREZ concur.