State v. Mattan , 207 Neb. 679 ( 1981 )

Boslaugh, J.

The defendant, Robert Mattan, was convicted of misdemeanor motor vehicle homicide and sentenced to 6 months probation, fined $500 and costs, and ordered to attend a 3-day driving school. The defendant was charged with unintentionally causing the death of a pedestrian while operating a motor vehicle in violation of Neb. Rev. Stat. §§ 39-615(1) and 644 (Reissue 1978). The Douglas County court found the defendant was in violation of both statutes. The District Court affirmed the conviction based solely on defendant’s violation of § 39-644 because the evidence showed the victim was not in the crosswalk at the time of the accident.

The defendant has appealed and contends the evidence was insufficient to support the conviction; the trial court erred in admitting testimony concerning a conversation between the defendant and a police officer during the investigation of the accident; and that § 39-644 is unconstitutional.

The evidence shows that the accident happened at about 8 a.m. on October 22, 1979, near the intersection of 17th Street and Capitol Avenue in Omaha, Nebraska. The traffic signal for the crosswalk on the north side of this intersection displays a continuous “walk” indication. It was overcast and dark at the time and traffic was heavy. Rain mixed with heavy snow was falling and the streets were “slushy” but not slippery.

The defendant was driving a Ready-Mix cement truck west on Capitol Avenue. At the intersection, he turned north onto 17th Street which is 60 feet wide and is divided into six traffic lanes. The defendant told a police officer at the scene of the accident that, “just as he got even with the crosswalk or shortly thereafter, he said he heard a thump. Then he said a split second later, he felt a bump on his tandem wheels. Then he said he had to pull down the street several feet, so he could see in his rearview mirror as to see if and what he did hit. Then he said he saw the girl laying in the street, and so immediately, he pulled over to the curb, and got out.”

An eyewitness to the accident testified that she saw the left front fender of the truck strike the victim when the victim was a foot or 2 north of the crosswalk. After being struck by the fender, the victim “flew up” against the headlight, then fell down and “kind of” rolled over. The wheel of the truck passed over the head of the victim. The point of impact was marked on a diagram used in the county court, but the diagram does not appear in the record.

Photographs taken by the police officers at the scene of the accident were received in evidence. These photographs show the victim’s scalp, which was torn off in the accident, situated in the third traffic lane from the east, near the center of the street, and 23 feet north of the crosswalk. The victim’s body was found further north. An umbrella was found between the scalp and the crosswalk.

The parties stipulated that the victim died as a result of multiple injuries suffered in the accident.

The defendant was convicted of unintentionally causing the death of the victim while operating a motor vehicle in violation of § 39-644, which requires a driver to “exercise due care to avoid colliding with any pedestrian upon any roadway . . . .” Although the evidence was not as complete as it might have been, it was sufficient to permit the trier of fact to find beyond a reasonable doubt that the defendant failed to exercise due care because he failed to see a pedestrian who was in plain sight. The victim was plainly visible to the eyewitness who saw the accident while she was walking on the sidewalk on 17th Street. After the accident, when the defendant finally stopped the truck and looked back, he had no difficulty seeing the victim’s body lying in the street.

The fact that the defendant was completely unaware of the victim’s presence until after the truck had passed over her body permits an inference to be drawn that he failed to maintain a proper lookout, and thus failed to exercise due care to avoid colliding with a pedestrian.

The ultimate fact here was the failure to exercise due care.The evidence was sufficient to support a finding beyond a reasonable doubt that the defendant failed to maintain a proper lookout. The failure to maintain a proper lookout was a failure to exercise due care. The evidence was sufficient to sustain the conviction.

The evidence shows that when Officer Paul M. Rust arrived at the scene of the accident, the defendant was seated in a police cruiser. Officer Rust took the defendant to a different cruiser so that he could obtain the necessary information about the accident. The defendant was not under arrest so Officer Rust did not give him any warning as to his constitutional rights before asking about the accident. The defendant contends the officer should not have been permitted to testify as to the defendant’s statements concerning the accident because of the failure to comply with the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The Miranda decision recognized a distinction between custodial interrogation and preliminary investigation. The court stated: “General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.” Id. at 477-78.

Officer Rust, at the time of the questioning, was engaged in the investigative process. As we stated in State v. Bennett, 204 Neb. 28, 35, 281 N.W.2d 216, 220 (1979), “The Miranda procedures ... were not meant to preclude law enforcement personnel from performing their traditional investigatory functions such as general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the factfinding process.”

In State v. Dubany, 184 Neb. 337, 167 N.W.2d 556 (1969), the defendant raised the same issue of the failure to give a Miranda warning. In that case, the defendant was discovered in an automobile that had become stuck in a ditch. The automobile was in gear and jumping up and down, but not moving forward. The officer approached the vehicle and asked the driver if he had been drinking, to which the driver replied, “Yes.” We held the defendant’s constitutional rights had not been violated and noted: “In on-the-scene investigations the police may interview any person not in custody and not subject to coercion for the purpose of determining whether a crime has been committed and who committed it.” Id. at 342, 167 N.W.2d at 559.

The fact that the defendant was in a police cruiser at the time of the questioning did not make the conversation a custodial interrogation. In State v. Caha, 184 Neb. 70, 165 N.W.2d 362 (1969), a police officer questioned the defendant in his patrol car and asked him to explain his relationship with the prosecutrix. The defendant thereupon volunteered incriminating information as to having had sexual relations with the girl in question. This court ruled that the conversation was not the product of a process of interrogation aimed at eliciting a confession and that the defendant’s rights had not been violated. See, also, United States v. Tobin, 429 F.2d 1261 (8th Cir. 1970).

The defendant’s contention that § 39-644 is unconstitutionally vague is without merit. The applicable rule was stated in Rose v. Locke, 423 U.S. 48, 96 S. Ct. 243, 46 L. Ed. 2d 185 (1975), as follows:

“It is settled that the fair-warning requirement embodied in the Due Process Clause prohibits the State from holding an individual ‘criminally responsible for conduct which he could not reasonably understand to be proscribed.’ United States v. Harriss, 347 U.S. 612, 617 (1954).... But this prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness for ‘[i]n most English words and phrases there lurk uncertainties.’ Robinson v. United States, 324 U.S. 282, 286 (1945). Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid. Nash v. United States, 229 U.S. 373 (1913); United States v. National Dairy Corp., 372 U.S. 29 (1963). All the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.” Id. at 49-50.

The definition of an act forbidden by statute, but not defined by it, may be ascertained by reference to the common law. State v. Eynon, 197 Neb. 734, 250 N.W.2d 658 (1977). Due care is a well-understood term meaning the absence of negligence.

The rule is well established in this state that a driver must keep a lookout so that he can see what is plainly visible in front of him, and a failure to do so is negligence as a matter of law. The presence of snow or other conditions which interfere with visibility require the driver to use care commensurate with the situation.

Upon the facts in this case, a contention that the meaning of due care was unconstitutionally vague cannot be sustained.

The judgment of the District Court is affirmed.

Affirmed.