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State v. Yarborough9/13/1995
FLORES, Judge.
1. Defendant appeals his conviction for involuntary manslaughter by careless driving. We consolidate the issues raised by Defendant on appeal and address them as follows: (1) whether a showing of criminal negligence is required for a felony involuntary manslaughter conviction and (2) whether the specific homicide by vehicle statute preempts the prosecution of vehicular killings under the general involuntary manslaughter statute. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
2. While driving northbound on a southbound lane of Interstate 25, Angelita Castillo struck Gretchen Bright's vehicle head-on. Castillo's car ended up in the middle of the two traffic lanes, facing the wrong way, the front side turned slightly to the west. Immediately after the collision, Jill Cornell drove up to the scene and parked her car on, or partially on, the shoulder of the right traffic lane, near Castillo's vehicle. At about the same time, John Coriz also pulled up and parked his car on the side of the interstate. Coriz got out of his car and stood in the middle of the interstate talking to Castillo, advising her not to move her car. During this time, Bright was standing partially in the right lane talking to Cornell, who was still in the driver's side of her car.
3. Meanwhile, Brenda Kumagai was driving southbound on Interstate 25 with her three sons when she saw headlights in the distance. Kumagai slowly pulled over onto the right shoulder and stopped before reaching the accident scene. She then proceeded slowly toward the accident scene in the right lane and pulled up behind Cornell's car to see if anyone needed help. Kumagai's car was partially on the shoulder and partially sticking out into the right lane of the interstate. The rear-end of her car was in the road because there were cars around her, and she was not sure if she could fit completely onto the shoulder. She was about six to eight feet away from Castillo's car. Kumagai did not have her vehicle's hazard lights on and did not see any of the other cars' hazard lights on either. As she was moving out of the space behind Cornell's car, onto the right lane of the interstate, her car was hit from behind by Defendant.
4. Defendant, who was driving a van, and his girlfriend, Victoria Bertch, were traveling southbound on Interstate 25 when they came upon the accident scene. Bertch testified that while she was fiddling around with a tape player behind her seat, Defendant said something which caused her to turn around. He said, "I'll have to go through them." Bertch saw cars in the road and thought there was enough room to drive between them. She testified that she was not afraid and that driving through the accident scene seemed like the logical thing to do.
5. Defendant remembered that he turned on the dome light in the van and looked down at the tapes behind the passenger seat while Bertch was trying to play some music. Defendant saw the lights of a car facing the wrong way and angled on the road. Defendant's reaction was to try to go through the opening between the car parked on the right shoulder at a diagonal position and the car that was obstructing the center of the road. Coriz and the accident reconstructionist testified that Defendant drove the van from the left lane to the right lane before attempting to go through the opening. The reconstructionist characterized this movement as a "corrective action" and even as an "evasive action" to avoid hitting the vehicle.
6. At the time of the impact, it was estimated that Defendant was traveling between fifty-four and sixty-two miles per hour. Defendant testified that he did not brake because he thought he would have better
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