Define Vehicular Homicide? Harder Than You Think.
This is a repost from October 2009. Note there has been significant change in the caselaw, particularly that of accessory liability, for DWI and vehicular homicide.
A jury is currently deliberating the guilt of Carlos Fierro, charged with vehicular homicide by DWI of a pedestrian, in one of the highest profile cases in my town this year. The central question for the jury at trial was causation--how much of a cause of the accident was the defendant? But that begs the question--how much of the cause of the accident do you have to be, to be guilty under our statute? And, on this very question, the jury instructions given to the jury were apparently, according to news reports I’m seeing, wrong.
Below reflects the legal research and analysis I have done on this very question, on an earlier occasion:
Question: Is there a causation defense in a vehicular homicide case in NM?
I. Summary of the Answer:
There is a causation defense in a vehicular homicide case, but the defense is extremely narrow and difficult. Comparative fault is not enough to constitute the defense, nor is the fact that another party is more significantly responsible for the accident. A “defendant's criminal liability for the death caused by his significant act is not negated merely because the death was caused by the significant acts of others.” Still, in certain circumstances, “some wrongdoers have too minor a causal role to justify criminal punishment.” See Dressler, supra, § 14.03[C][2], at 189. A contributing cause must be more than “fault to an insignificant extent.” Simpson, 116 N.M. at 772, 867 P.2d at 1154.
The UJI provides that the State must prove that the act of the defendant was a “significant cause of the death.” A defendant's act was a significant cause of death “if it was an act which, in a natural and continuous chain of events, uninterrupted by an outside event, resulted in the death and without which the death would not have occurred.”
The jury can find that there is more than one significant cause of death, e.g., one cause by the deceased and one by the accused. This does not make for a strong defense, because [my legal opinion here] each act that is a significant cause of death is sufficient for conviction.
It is my view that the jury must have doubt about whether the accused has “insignificant fault” before the causation defense will be effective. The jury should be required to find that the accused was “a significant cause” beyond reasonable doubt, but need not find that the accused was the only cause, or even the most significant cause.
II. Statute:
The vehicular homicide statute presently provides:
The statute contains no mens rea requirement, and no language clearly indicating causation—it merely says, “killing in the operation of a motor vehicle.” In 1993, a defendant brought a challenge to the statute, arguing that it unconstitutionally shifted the burden of proof to the defense to prove the accident was entirely caused by another party. State v. Simpson, 116 N.M. 768, 867 P.2d 1150 (1993). The New Mexico Supreme Court held that the vehicular homicide statute does not unconstitutionally shift to defendant the burden of proof because the jury instructions given did not allow the jury to convict him if he were only at fault to an immaterial extent. Simpson held that the State had the burden of proving beyond a reasonable doubt that defendant's actions caused the deaths and great bodily harm in that his unlawful acts, in a natural and continuous chain of events, produced the deaths and the great bodily harm.
An even older case, one that pre-dates the vehicular homicide statute, held specifically that the government must prove that there was “a causal connection” between the unlawfulness (the DWI or the reckless driving) and the death. State v. Sisneros, 42 N.M. 500, 82 P.2d 274 (1938).
III. Uniform Jury Instructions:
The present UJIs require the government to prove that the accused was a “significant cause” but not THE significant cause:
These instructions were written around the case of State v. Munoz, 1998-NMSC-041, 126 N.M. 371, 970 P.2d 143. In that murder case, the defendant was a bodyguard of the shooter, and his only role was that he was ordered to take the victim, who had been shot in the head but was still alive, away and dump him, which he did. At trial a doctor testified that the victim likely would have died, even if taken straight to the hospital. The New Mexico Supreme Court held that the jury was mis-instructed on causation. The defense theory was that there was no “but for” causation—the victim would have died, even without the defendant’s action. The Supreme Court agreed and established that the government must prove two kinds of causation—factual (but-for causation) and proximate causation (that the harm was foreseeable).
The instructions are probably too narrow to provide much room for a successful defense in many cases. This argument is difficult: Where the evidence showed that defendant drove after drinking alcohol in a bar, decided to lean over in the dark to get a cell phone, and drove onto the shoulder of the road striking and killing a pedestrian, the evidence was sufficient to support a finding that defendant was driving recklessly when the victim was killed, and same evidence shows causation. State v. Wildgrube, 2003-NMCA-108, 134 N.M. 262, 75 P.3d 862.
A jury is currently deliberating the guilt of Carlos Fierro, charged with vehicular homicide by DWI of a pedestrian, in one of the highest profile cases in my town this year. The central question for the jury at trial was causation--how much of a cause of the accident was the defendant? But that begs the question--how much of the cause of the accident do you have to be, to be guilty under our statute? And, on this very question, the jury instructions given to the jury were apparently, according to news reports I’m seeing, wrong.
Below reflects the legal research and analysis I have done on this very question, on an earlier occasion:
Question: Is there a causation defense in a vehicular homicide case in NM?
I. Summary of the Answer:
There is a causation defense in a vehicular homicide case, but the defense is extremely narrow and difficult. Comparative fault is not enough to constitute the defense, nor is the fact that another party is more significantly responsible for the accident. A “defendant's criminal liability for the death caused by his significant act is not negated merely because the death was caused by the significant acts of others.” Still, in certain circumstances, “some wrongdoers have too minor a causal role to justify criminal punishment.” See Dressler, supra, § 14.03[C][2], at 189. A contributing cause must be more than “fault to an insignificant extent.” Simpson, 116 N.M. at 772, 867 P.2d at 1154.
The UJI provides that the State must prove that the act of the defendant was a “significant cause of the death.” A defendant's act was a significant cause of death “if it was an act which, in a natural and continuous chain of events, uninterrupted by an outside event, resulted in the death and without which the death would not have occurred.”
The jury can find that there is more than one significant cause of death, e.g., one cause by the deceased and one by the accused. This does not make for a strong defense, because [my legal opinion here] each act that is a significant cause of death is sufficient for conviction.
It is my view that the jury must have doubt about whether the accused has “insignificant fault” before the causation defense will be effective. The jury should be required to find that the accused was “a significant cause” beyond reasonable doubt, but need not find that the accused was the only cause, or even the most significant cause.
II. Statute:
The vehicular homicide statute presently provides:
§ 66-8-101. Homicide by vehicle; great bodily harm by vehicle
A. Homicide by vehicle is the killing of a human being in the unlawful operation of a motor vehicle.
B. Great bodily harm by vehicle is the injuring of a human being, to the extent defined in Section 30-1-12 NMSA 1978, in the unlawful operation of a motor vehicle.
C. A person who commits homicide by vehicle or great bodily harm by vehicle while under the influence of intoxicating liquor or while under the influence of any drug or while violating Section 66-8-113 NMSA 1978 is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978, provided that violation of speeding laws as set forth in the Motor Vehicle Code [66-1-1 NMSA 1978] shall not per se be a basis for violation of Section 66-8-113 NMSA 1978.
D. A person who commits homicide by vehicle or great bodily harm by vehicle while under the influence of intoxicating liquor or while under the influence of any drug, as provided in Subsection C of this section, and who has incurred a prior DWI conviction within ten years of the occurrence for which he is being sentenced under this section shall have his basic sentence increased by four years for each prior DWI conviction.
E. For the purposes of this section, "prior DWI conviction" means:
(1) a prior conviction under Section 66-8-102 NMSA 1978; or
(2) a prior conviction in New Mexico or any other jurisdiction, territory or possession of the United States, including a tribal jurisdiction, when the criminal act is driving under the influence of alcohol or drugs.
F. A person who willfully operates a motor vehicle in violation of Subsection C of Section 30-22-1 NMSA 1978 [resisting or evading a law enforcement officer] and directly or indirectly causes the death of or great bodily harm to a human being is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
HISTORY: 1953 Comp., § 64-8-101, enacted by Laws 1978, ch. 35, § 509; 1981, ch. 370, § 1; 1983, ch. 76, § 1; 1989, ch. 226, § 1; 1991, ch. 114, § 1; 2004, ch. 42, § 2.
The statute contains no mens rea requirement, and no language clearly indicating causation—it merely says, “killing in the operation of a motor vehicle.” In 1993, a defendant brought a challenge to the statute, arguing that it unconstitutionally shifted the burden of proof to the defense to prove the accident was entirely caused by another party. State v. Simpson, 116 N.M. 768, 867 P.2d 1150 (1993). The New Mexico Supreme Court held that the vehicular homicide statute does not unconstitutionally shift to defendant the burden of proof because the jury instructions given did not allow the jury to convict him if he were only at fault to an immaterial extent. Simpson held that the State had the burden of proving beyond a reasonable doubt that defendant's actions caused the deaths and great bodily harm in that his unlawful acts, in a natural and continuous chain of events, produced the deaths and the great bodily harm.
An even older case, one that pre-dates the vehicular homicide statute, held specifically that the government must prove that there was “a causal connection” between the unlawfulness (the DWI or the reckless driving) and the death. State v. Sisneros, 42 N.M. 500, 82 P.2d 274 (1938).
III. Uniform Jury Instructions:
The present UJIs require the government to prove that the accused was a “significant cause” but not THE significant cause:
14-240 Homicide or great bodily injury by vehicle; essential elements
For you to find the defendant guilty of causing death by vehicle, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The defendant operated a motor vehicle4 [while under the influence of intoxicating liquor5;] [while under the influence of , a drug6;] [in a reckless manner7;]
2. The defendant thereby caused8 the death to (name of victim);
3. This happened in New Mexico on or about the day of , .
USE NOTE
1. Use only applicable alternative or alternatives.
2. If defendant is charged with great bodily injury by vehicle, the definition of great bodily harm, Instruction 14-131, must be given with the word "injury" substituted for "harm".
3. Insert the count number if more than one count is charged.
4. See Section 66-1-4.11 NMSA 1978 for the definition of a motor vehicle.
5. Instruction 14-243, the definition of under the influence of intoxicating liquor, must be given if this element is given.
6. Instruction 14-245, the definition of under the influence of a drug, must be given if this element is given.
7. Instruction 14-241, the definition of driving a motor vehicle in a reckless manner, must be given if this element is given.
8. If causation is in issue, Instruction 14-251, the definition of causation, must be given.
[UJI Criminal Rule 2.60 NMSA 1978; UJI 14-240 SCRA; as amended, effective August 1, 1989; June 1, 1994; May 1, 1997.]
14-251 Homicide; "proximate cause"; defined.1
In addition to the other elements of the crime of (name of crime) as set forth in instruction number __, the state must also prove to your satisfaction beyond a reasonable doubt that
1. The death was a foreseeable result of the defendant's act;
2. The act of the defendant was a significant cause of the death of (name of victim).
The defendant's act was a significant cause of death if it was an act which, in a natural and continuous chain of events, uninterrupted by an outside event, resulted in the death and without which the death would not have occurred.
[There may be more than one significant cause of death. If the acts of two or more persons significantly contribute to the cause of death, each act is a significant cause of death.]3
USE NOTE
1. For use only if causation is in issue. See also UJI 14-252 if there is evidence that the negligence of another person may have caused the death or great bodily injury.
2. Insert here the number assigned by the court to the elements instruction for the named offense.
3. Use the bracketed language if there is evidence that the acts of more than one person contributed to the death of the victim.
[As amended, effective, January 1, 2000.]
COMMITTEE COMMENTARY. --In response to the Supreme Court's decision in State v. Munoz, 1998-NMSC-041, 126 N.M. 371, 970 P.2d 143, the committee prepared UJI 14-134 to be given when causation is a question of fact to be resolved by the jury. In Munoz, the Court set out the two elements for finding that the defendant's act was the proximate cause of a harm or injury: (1) that the defendant's act was a significant cause of the harm; and (2) that the harm or injury was a foreseeable result of the defendant's act.
The bracketed phrase relating to more than one cause of death is based on Poore v. State, 94 N.M. 172, 174, 608 P.2d 148, 150 (1980) and should be used when supported by the evidence.
See generally LaFave & Scott, Criminal Law 246-67 (1972). In Territory v. Yarberry, 2 N.M. 391, 455-56 (1883), the Court noted that the district court properly refused an instruction requiring the jury to find that one of the two codefendants, both of whom apparently shot the victim, had inflicted the fatal wounds.
14-252 Homicide; negligence of deceased or third person.1
The State must prove beyond a reasonable doubt that the defendant's act was a significant cause of the death of (name of victim). Evidence has been presented that the negligence of a person other than the defendant may have contributed to the cause of death. Such contributing negligence does not relieve the defendant of responsibility for an act that significantly contributed to the cause of the death so long as the death was a foreseeable result of the defendant's actions. However, if you find the negligence of a
person other than the defendant was the only significant cause of death, then the defendant is not guilty of the offense of (name of offense).
USE NOTE
1. For use in conjunction with Instruction 14-251 when there is evidence of negligence by another person. This instruction may be modified and used as appropriate in non-homicide cases.
[As amended, effective January 1, 2000.]
NOTES:
OFFICIAL COMMENT
COMMITTEE COMMENTARY. -- See State v. Munoz, 1998-NMSC-041, 126 N.M. 371, 970 P.2d 143; State v. Romero, 69 N.M. 187, 191, 365 P.2d 58 (1961) and State v. Myers, 88 N.M. 16, 536 P.2d 280 (Ct. App. 1975).
The defendant is entitled to an instruction on the theory of the case if there is evidence to support it. See State v. Benavidez, 94 N.M. 706, 616 P.2d 419 (1980); and State v. Lujan, 94 N.M. 232, 608 P.2d 1114 (1980).
These instructions were written around the case of State v. Munoz, 1998-NMSC-041, 126 N.M. 371, 970 P.2d 143. In that murder case, the defendant was a bodyguard of the shooter, and his only role was that he was ordered to take the victim, who had been shot in the head but was still alive, away and dump him, which he did. At trial a doctor testified that the victim likely would have died, even if taken straight to the hospital. The New Mexico Supreme Court held that the jury was mis-instructed on causation. The defense theory was that there was no “but for” causation—the victim would have died, even without the defendant’s action. The Supreme Court agreed and established that the government must prove two kinds of causation—factual (but-for causation) and proximate causation (that the harm was foreseeable).
The instructions are probably too narrow to provide much room for a successful defense in many cases. This argument is difficult: Where the evidence showed that defendant drove after drinking alcohol in a bar, decided to lean over in the dark to get a cell phone, and drove onto the shoulder of the road striking and killing a pedestrian, the evidence was sufficient to support a finding that defendant was driving recklessly when the victim was killed, and same evidence shows causation. State v. Wildgrube, 2003-NMCA-108, 134 N.M. 262, 75 P.3d 862.
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