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Allen v. State4/2/2002
veloping blood clots and their impact on whether appellant caused her death. On cross-examination, Dr. Thorpen did acknowledge several "possibilities" consistent with the defense's approach to the causation issue, although in Dr. Thorpen's opinion, these possibilities were speculative and the ankle fracture merely enhanced the pre-existing risk factors. *fn7 Appellant has not demonstrated that his right "to require the prosecution's case to survive the crucible of meaningful adversarial testing" was impinged. United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
B. The Finks' Failure to Wear Lap Belt Restraints
[ ] Officer Schell testified on cross-examination that the Finks had "their shoulder belts on and no lap belt restraints." The Finks' vehicle was apparently equipped with shoulder belts that "move as you open and close the door." Appellant contends that his defense counsel was ineffective because he did not "grasp the significance" of the Finks' failure to wear lap belt restraints as to whether appellant's conduct proximately caused the Finks' deaths, the failure to wear proper restraints having constituted an "intervening" cause. According to appellant, defense counsel therefore improperly conceded in opening statement that the "accident caused Mr. Fink's death," and did not sufficiently emphasize the lap belt restraint issue in opening statement, closing argument, or questioning the witnesses. The State merely argues, without citation to pertinent authority, that "there is nothing in the record that indicates the injuries would have been less severe had the seatbelts been used differently." Of course, this failure to develop the evidence, in part, provides the basis for appellant's ineffective assistance of counsel argument.
[ ] The state must prove that a defendant's wrongful conduct (recklessness or driving while under the influence, depending upon which statutory subsection is used to charge the defendant) proximately caused the victims' deaths. To be the "proximate cause," the accident or injury must be the natural and probable consequence of the defendant's wrongful conduct; a "substantial factor" in bringing about the injuries or death. Bloomquist, 914 P.2d at 820 (quoting Glazier v. State, 843 P.2d 1200, 1204 (Wyo. 1992) and McClellan v. Tottenhoff, 666 P.2d 408, 414 (Wyo. 1983)). The contributory negligence of a victim is not a defense in a criminal prosecution, but a victim's actions may be considered whenever those actions have a bearing upon the defendant's alleged wrongful conduct *fn8 or in determining whether the defendant's wrongful conduct was the proximate cause of a victim's death. Candelaria v. State, 895 P.2d 434, 438 (Wyo. 1995); Buckles, 830 P.2d at 707-08.
"A defendant is usually relieved of liability by an unforeseeable intervening cause. However, an intervening cause does not relieve an earlier actor of liability if it was reasonably foreseeable. The causal connection is not broken where the original wrongdoer could reasonably have foreseen that injury to another would be a probable consequence of his [wrongful conduct]." Glazier, 843 P.2d at 1205 (quoting McClellan, 666 P.2d at 414); Bloomquist, 914 P.2d at 820-21.
[ ] In the context of this criminal aggravated vehicular homicide case involving evidence of appellant's intoxication, we find the following reasoning persuasive:
One who drinks and drives should reasonably foresee that some among the potential victims of drunken driving will not wear seat belts and that such victims, among others, might be seriously injured in an alcohol-induced collision. State v. Freeland, 176 Ariz. 544, 863 P.2d 263, 267 (1993).
For this reason, a victim's fail
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