Boyd v. State , 22 Md. App. 539 ( 1974 )

Moore, J.,

delivered the opinion of the Court. Powers, J., dissents and filed a dissenting opinion at page 554 infra.

On June 11, 1972, at approximately 3:10 A.M. in the City of Baltimore, 2 teen-aged youths — a boy 16 and a girl 15 — were struck by appellant, then age 20, as he neared his home, driving a 1966 Plymouth Valiant, after a long night of bowling with his younger brother at Colt Lane Bowling Alley. The boy was dead upon arrival at Lutheran Hospital at 3:30 A.M.; the girl was pronounced dead at the same hospital on June 14,1972 at 12:30 P.M.

Convicted in a bench trial in the Criminal Court of Baltimore of manslaughter by automobile and of several traffic violations (reckless and negligent driving, speeding, failure to give information and render aid), appellant received maximum concurrent sentences of 3 years under each of the manslaughter charges and concurrent therewith, 2 months concurrent sentences on each of the traffic violations.

On appeal Samuel Wayne Boyd questions the sufficiency of the evidence to sustain his conviction of automobile manslaughter. He also contends the trial judge erred in permitting a witness, Nelson Jackson, who was driving his car behind appellant’s vehicle, to testify that appellant was driving in excess of 60 miles per hour. Finally, it is claimed that the sentence was excessive under the circumstances.

I

The State’s case was presented through the testimony of the above witness, Nelson Jackson, described by the court as “highly credible and competent,” and two police officers. It was developed that Mr. Boyd was driving west bound on Gwynns Falls Parkway to his home at 2604 Denison Street which intersects the Parkway from which he would ordinarily turn right to Denison. His 17 year old brother occupied the front passenger seat but had his head down because he was tired. The Parkway has a 38 foot grass center and the east and west bound lanes are of the same dimensions. The lane next to the center is 10 feet wide and the so-called curb lane is 16 feet — wide enough to accomodate two passenger cars. Next to the curb is a 5 foot section of grass, then a 5 foot sidewalk from which the front lot line of the houses is six feet.

Witness Jackson was driving his own car on Gwynns Falls Parkway enroute to visit a friend, shortly after 3 A.M. He was employed as an MTA bus driver, and had been for 3V2 years. Prior to that, he worked at Chevrolet General Motors and drove a taxicab part time for the Yellow Cab Company. He was a licensed operator for about ten years and testified that he drove every day.

At Gwynns Falls near Longwood, a light blue vehicle “pulled out almost in front of me,” he testified, and started up Gwynns Falls in the left lane, then in the middle of both lanes until it reached Longwood where it occupied the right lane, and stopped for a red light. As he came alongside and also stopped for the light, Mr. Jackson looked over at the driver and noticed that he was wearing sunglasses and that he had a passenger. He also heard “gunning of the motor.” When the light turned green, the other driver “took off pretty fast.” Between Longwood and Hilton, the next traffic light, the other vehicle was about one-half block ahead of Jackson. The posted speed limit was 30 miles per hour. Jackson said his own speed was about 40 miles an hour. The light at Hilton, red as they approached, turned to green and the car in front proceeded on as did Mr. Jackson.

Approaching Denison, in the left lane, Mr. Jackson observed two children — “two obstacles, really, from my first observation, coming off the median strip.” The other car was approximately at the corner of Denison, less than one-half block from the children who had come off the median area and were walking across the Parkway in the middle of the street. Cars were parked at the curb and the car ahead (appellant’s) was in the lane next to them. Jackson himself started applying his brakes. The vehicle ahead did “nothing at all except for continuing on up Gwynns Falls.” He testified:

“Then as I seen the children they were about in the second lane, in other words, in the curb lane, the vehicle continued on and struck the children, the two children before they could get in between the two cars, you know, before they could get between the parked cars.”

Mr. Jackson turned his vehicle right, into Denison Street and got out. The other vehicle, he stated, backed away from the curb about a half block away from the place of the accident and continued on. The witness got back into his car and drove around the block where he encountered a policeman to whom he reported what had happened. The witness was then asked the following question, to which appellant interposed an objection:

“BY MR. SAUR: Do you have an opinion as to the speed of this automobile when it was traveling west bound in Gwynns Falls Parkway just prior to striking the pedestrians?”

The court then afforded appellant’s counsel an opportunity to cross-examine the witness “on his qualifications to give such an opinion” but it was declined. Counsel stated he had no objection to what the witness observed, but he did object “to a specific rate of speed.”

The question was thereafter rephrased, as follows:

“BY MR. SAUR: Now, let me ask you this: Based on your observations of the vehicle, and its movements, and upon your experience as a driver, do you have an opinion as to the speed of this vehicle just prior to striking the victims? ”

When the question was further amended to state “within a few feet” prior to the striking of the pedestrians, the witness answered: “My opinion is the speed was. at least 60 miles per hour.”

Dispatched at 3:10 A.M., an officer from the Traffic Investigation Section with 18 years experience in the Department and 4 years in the Section, arrived at the scene at 3:16 A.M. According to his observations and measurements at the scene, the point of impact was 70 feet west of Denison Street and 10 feet south of the north curb line. The body of the male pedestrian was 198 feet west of Denison Street (128 feet from the point of impact) and the body of the female was 126 feet west of Denison Street (56 feet from the point of impact).

(The official autopsy records, received in evidence by stipulation, revealed that one victim was a Negro male, age 16, five feet nine inches, 129 pounds and that he was wearing a red and white shirt and lavender trousers. The second victim was a Negro female, age 15, five feet seven inches, 112 pounds.)

There were four parked cars in the immediate area. The rear window of one of the vehicles had been knocked out when it was struck by the body of the female pedestrian.

The investigating officer observed no skid marks in the street “that would be fresh or coming from a very recent accident.” Nor did he notice any centrifugal rub marks. It was a clear, dry night. The area is residential. There were trees at the scene but he did not consider them to be a “heavy tree growth.” With respect to lighting, the officer testified that an overhead arc type lamp was located on Gwynns Falls Parkway on the northwest corner of Denison Street and one also on the southwest corner of that intersection; lights were also located “just west of the intersection at approximately 70 feet west of the place where the accident occurred.”

On the north side of Alto Avenue, east of Denison, the officer located a damaged parked vehicle — “fresh damage, pedestrian type,” to the right front, leakage to the radiator and the hood warm. Photographs of the vehicle, immediately taken by him, were received in evidence. At the scene, he also received a report that the car was titled to Adline L. Boyd, appellant’s mother. The vehicle was again examined by the officer after the measurements had been taken at the scene. The brakes were checked and the pedal “appeared to be solid.” He described the damage as follows:

“The damage was to the right front bumper, hood, grill, the fender, the head lamp was broken, and the right side of the front windshield was cracked, and the windshield post — a section going up holding the window — was bent, and also damage on the right front door [and] an aerial was missing from the car.”

At 3:38 A.M., some twenty minutes after the officer had been on the scene, a young man (who later identified himself as appellant, Samuel Wayne Boyd) came up to the officer and said: “You are looking for me. I struck the boys.” The officer stated, on cross-examination, that when he saw appellant, he did not observe any signs of drinking. When appellant later gave a voluntary statement at the Traffic Investigation office at 5:15 A.M. he was “cooperative; ” and also, “he acted as a gentleman.”

Appellant’s written statement was read into evidence, without objection, on cross-examination of the police officer. In it appellant stated that his speed was 40 to 45 miles per hour; that there was no traffic in front or in back of him for 4 or 5 blocks from the scene of the accident. He “did not see the pedestrians until [I was] 4 or 5 houses past Denison Street.” The statement continued:

. . then I saw the young boys coming from my left to my right. When I saw the boys, I applied my brakes and turned my steering wheel to the left, but the car came back to the right and I struck the two pedestrians. My car then went cross ways on Gwynns Falls and I panicked, and then went west on Gwynns Falls to Garrison to Alto Road to Denison, made a right turn, and stopped in front of my house, that’s 2604 Denison Street, and then backed up and parked at Denison Street and Alto, and went into the house. I was going to bed but had to go back to the scene as I didn’t know what happened to the boys, and my conscience was bothering me.

“I asked him, Was there any other vehicle that pulled next to you at any red lights on Gwynns Falls? ’ He stated, ‘No sir.’

“I asked him, ‘Have you been drinking anything tonight?’ and he stated, ‘No, nothing.’ ”

Testifying in his own behalf, appellant stated that he did not see the decedents coming from the median. When he first saw them, they were in the street and he was 4 or 5 feet “close to them.” He applied his brakes, he said, and as to what then happened, he testified on direct:

“Well, I hit them; my car swerved on an angle in the middle of the street; my brother got out of the car and looked at the front of it and was all bent up; the glass of the windshield was all messed up; I backed up, went around the corner, came down Alto Road, came in front of my house, pulled back from my house up to Alto Road and Denison, and parked the car there; then I went in the house and I went upstairs in my bedroom, I sat there approximately two or three minutes, and my conscience just started bothering me, I had to go back down there to see what was happening. Nothing like that had ever happened like that before, and I had to go back. I just couldn’t sit down there, I had to go back.”

To a question by the court, he replied that he did not know how fast he was going. Earlier, he testified that he “thought” his speed was 40 or 45 miles per hour — that he “could have been going sixty” but did not believe so.

On cross examination he conceded that he “could have been” gunning his motor at the first traffic light. Questioned by the State as to how he applied his brakes before the impact, he answered:

“Well, I didn’t apply them not as hard as usual, but I did put them on when I saw them, by the time I had just attempted to slam on the brakes, you know, I had impact, so it wouldn’t have really made any difference whether I put them on real hard or not, it was just too late, I just didn’t see them; it wouldn’t have made that much difference.”

On direct examination he had testified there was a restriction for glasses on his operator’s permit and that his sunglasses were also prescribed glasses. The State thereafter elicited the admission from appellant that “sometimes” the sunglasses tend to make things darker,' including “sometimes” at night. He gave no explanation for not wearing regular glasses on the occasion of the accident, except that “ [s]ometimes I drive at night with the sunglasses on.”

Under questioning by the court, he admitted that he would usually turn right on Denison going to his home. Asked “why was this night different from the other times when you would generally turn right on Denison,” he replied: “I can’t answer that, your Honor, I am sorry.” (It was in the block between Denison and Garrison that the fatal accident occurred.)

Appellant’s 18 year old brother, with whom he had been bowling from 8 P.M. until the closing of the bowling alley at 2:30 A.M., told the court that he was riding in the front passenger seat, with his eyes closed, but not asleep, just before the accident. “I had my head down,” he stated, and looked up when “my brother applied the brakes.” Looking up, he saw the pedestrians on the passenger’s side of the car. When the car struck the pedestrians,

“[i]t turned on an angle, and then I got out of the car, I jumped out the car and went to the front of the car, and I looked at the car, then I looked to see if the pedestrians were lying on the ground anywhere, and I didn’t see them anywhere so I got back in the car and we came on home.

“Did your brother say anything in the car?

“When I got back in the car, he said, ‘Oh, my God.’ You know he was excited, he had panicked.”

II

The contention of appellant that Mr. Jackson’s testimony concerning the speed of appellant’s vehicle was improperly admitted, must be rejected. While it is observed in the leading case of People’s Drug Stores, Inc. v. Windham, 178 Md. 172, 12 A. 2d 532 (1940), cited by both appellant and appellee, that under Maryland law a witness may not fix the speed of a moving automobile “ ‘as so much per hour,’ ‘without having shown some special knowledge which would enable him to speak as an expert’ ”, nevertheless, it is the meaning of the term “expert” that is of critical importance. That an experienced licensed operator of an automobile may give such an opinion was made abundantly clear by Judge Offutt, writing for the Court (178 Md. at p. 182):

“But it is obvious that in using the term ‘expert’ in State v. United Rys. Co., supra, the court did not have in mind only a person who had specially trained himself by study and observation to estimate the speed of moving objects, but rather any one who had, by actual personal experience, become familiar with the operation and speed of automobiles, whether his knowledge was gained through the personal operation of automobiles for business, or for pleasure, or as a traffic officer, or through experience in estimating the speed of moving automobiles operated by others (Hopper, McGaw & Co. v. Kelly, supra), for in the operation of an automobile over public highways for any purpose the driver must, to obey the traffic laws, constantly note its speed, and as well the speed of other automobiles which pass it, or which it passes, in terms of miles per hour, and so gain experience which should qualify him to estimate in such terms the speed of a moving automobile which he has observed. And ordinarily such evidence is not only the best but the only evidence available.”

This definition was followed in Miller v. Graff, 196 Md. 609, 78 A. 2d 220 (1951) where an eyewitness testified that a taxicab was traveling at a speed of about 45 miles per hour. Judge Delaplaine there observed (p. 617):

“But by ‘expert’ we do not mean only a person who has specially trained himself to estimate the speed of automobiles, but rather any person who has become familiar with the operation and speed of automobiles by personal experience.”

And in Mulligan v. Pruitt, 244 Md. 338, 223 A. 2d 574 (1966), the testimony of a housewife with five years’ experience as a licensed operator, that the vehicles involved were going 30 to 35 miles per hour, was held properly admitted by the trial judge.

So in the instant case was Mr. Jackson’s testimony properly admitted. As previously noted, he had been a licensed operator for at least 10 years, was a bus driver at the time of the accident and had also driven a taxicab. He was entirely justified in stating: “I feel that I have a pretty accurate account of speeding.” Moreover, when asked by the court the basis for his opinion, he replied:

“On the fact the way the position was of my car at the time; the way he went that much faster; and that far ahead of me; and I was doing about forty miles an hour; so, that is what I am basing it on.”

See, Tefke v. State, 6 Md. App. 139, 250 A.2d 299 (1969).

Ill

The crime of which appellant was convicted in both cases is the statutory misdemeanor of “manslaughter by automobile.” Code, Art. 27, § 388 (1973 Cumulative Supplement). The gist of the crime is causing the death of another by driving in a “grossly negligent manner.” Appellant contends that the evidence was insufficient to establish his guilt.

The test of the sufficiency of the evidence in a criminal case, frequently stated in the decisions of this Court, was stated by Chief Judge Orth in Metz v. State, 9 Md. App. 15, 23, 262 A. 2d 331, 335 (1970) as follows:

“To be sufficient in law to justify a conviction, the admissible evidence adduced must show directly, or circumstantially, or support a rational inference of, the facts to be proved from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged.”

In a non-jury case, as a reviewing Court on the law and the evidence, we are bound by the provisions of Maryland Rule 1086 which mandates that “the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.” As the Court stated in Nichols v. State, 5 Md. App. 340, 247 A. 2d 722 (1968) at 352:

“Our function is not to determine whether we would have come to a different conclusion from that of the lower court nor need we be convinced beyond a reasonable doubt of the appellant’s guilt; we determine whether the lower court was clearly wrong in reaching a verdict of guilty on the evidence.”

The Maryland statute relating to manslaughter by automobile was enacted in 1941 and has been interpreted and applied by the Court of Appeals in eight cases, all cited and reviewed by Anderson, J. (now retired) for this Court in Montague v. State, 3 Md. App. 66, 237 A. 2d 816 (1968), and to which a further general reference was made in another opinion by Judge Anderson in the last case before this Court involving manslaughter by automobile, Tefke v. State, supra.

It is abundantly clear from the cases that the General Assembly of Maryland imported into the Code the common law concept and meaning of gross negligence. Proof of simple negligence will not support a conviction of manslaughter. Whether the statutory standard “in a grossly negligent manner” has been violated depends upon “whether the conduct of the defendant, considering all the factors of the case, was such that it amounted to a ‘wanton or reckless disregard for human life.’ ” ¹ (Emphasis added.)

In this case, the trial court delivered from the bench a clear and comprehensive oral opinion which commenced with a declaration of the above standard as set forth in Montague, supra, and with quotations from the opinion of Judge Hammond (now retired Chief Judge) in the leading case of Duren v. State, 203 Md. 584, 102 A. 2d 277 (1954).

The factors properly discerned by the trial judge from the decided cases as directly relevant to the issue of guilt or innocence in a manslaughter by automobile case included:

(a) drinking (the Court making it clear from the record that there was no evidence of drinking in this case); (b) failure to keep a proper lookout and to maintain proper control of the vehicle; (c) excessive speed “under the circumstances-, ” (d) flight from the scene without any effort to ascertain the extent of the injuries; (e) the nature and force of the impact; (f) unusual or erratic driving prior to impact; (g) the presence or absence of skid marks or brush marks; (h) the nature of the injuries and the damage to the involved vehicle or vehicles; (i) the nature of the neighborhood, the environment where the accident took place. (Emphasis by trial judge.)

Carefully reviewing the facts, the trial court stated its findings which we summarize as follows:

1. From the credible testimony, it was abundantly clear that appellant was traveling not only beyond the posted speed limit “but at a rate which was, in fact, excessive under all the circumstances.”

2. Based upon the testimony of Nelson Jackson, whom the court characterized as “not only a credible witness” but a “highly competent witness . . . whose business is driving,” appellant was (a) guilty of erratic driving as he proceeded along Gwynns Falls Parkway; and (b) failed to keep a proper lookout. Said the court — “Jackson saw these two young people step off the median strip and walk across Gwynns Falls Parkway. They were not running. They were not darting out between parked cars ... in fact he [Jackson] saw them cross the entire length of the land next to the median strip which is about ten feet wide . . . had travelled nearly the distance of this rather wide street. He saw all this and also saw that Mr. Boyd never slowed, he never applied his brakes until practically the point of impact and then ... if there was an application of the brakes, it was not even enough to leave a skid mark or a rub mark.”

3. The nature and force of the impact was shown by the photographs depicting extensive damage to appellant’s vehicle; by the distance the body of the male victim was propelled and the fact that the female was “thrown with such force that she struck the rear window of the parked car ... it was broken and from that point she was propelled over to the sidewalk.”

4. Had appellant looked and been attentive, he would have seen the victims. They had “practically crossed the street in [his] direct vision.” The weather was warm and dry. The male, transported to the morgue in the clothes he was wearing at the time of the accident, had on a short-sleeve white and red shirt, lavender velvet pants and white socks and “must have stood out very prominently.”

5. The accident occurred on a main thoroughfare in a residential area — “not a side street dimly lighted.” The photographs taken by the police officer of the point of impact showed an arc light “very close to the point of impact, shining right down in the area.”

6. Appellant was not aware that he had struck the victims. “It is found as a fact, a significant fact ... his car went to the curb, it stopped; his brother got out to look, not at the people who had been injured, but at the car that had been damaged . .. his reflex was to take off . . . he backed his car from the curb, took off and went on his way.”

7. Part of the totality of the circumstances is that the appellant resided on Denison Street, a short distance from Gwynns Falls Parkway and ordinarily would turn right on Denison to reach his home. The “probability” for his not doing so is that “it was lack of attention to what he was doing . . . he went by it, just not paying any attention.” ²

We conclude that the evidence was sufficient to sustain the court’s finding that appellant’s conduct amounted to a “wanton or reckless disregard for human life,” and that the trial court was not clearly erroneous in holding that appellant’s automobile was operated in a “grossly negligent manner” as that term is defined in Montague v. State, supra, and the cases there cited.

IV

We must also reject appellant’s contention that the concurrent sentences of the maximum 3-year penalty for manslaughter by automobile were excessive and constituted an abuse of judicial discretion.

Almost two months elapsed after his conviction before appellant came before the court for sentencing. The court had ordered a report of presentence investigation. This report disclosed appellant maintained steady employment with Bethlehem Steel since his graduation from high school in 1969. He resided at home with his mother and father and had no criminal record. Character testimony had been received on his behalf at the trial from the minister of his church and a neighbor. It was recommended to the court that he be placed on probation with a condition that he not operate a motor vehicle.

It was also disclosed to the court, however, that appellant had been convicted in 1971 of exceeding the speed limit by ten miles under circumstances where his speed was 70 miles an hour in a 30 mile zone. As a result, he attended a driver clinic course which he completed in April, 1971. Judge Jones noted that he had not learned a lesson from that experience and apparently failed to comprehend that “the automobile can become a lethal weapon — and that is precisely what happened in this case.”

It is well settled that a sentence within the statutory limits imposed after conviction of a criminal offense is within the discretion of the trial judge and will not be disturbed by this Court, absent a showing that the trial judge was influenced by ill will, passion, prejudice or some other unworthy motive and not by a sense of public duty. Johnson v. State, 9 Md. App. 37, 262 A. 2d 325 (1970). We find no abuse of discretion here.

Judgments affirmed; appellant to pay the costs.

1 . This was the test enunciated by Judge Chestnut in State of Maryland v. Chapman, 101 F. Supp. 335, 341 (1951) and consistently followed by the Court of Appeals and this Court.

2 . Another fact, not adverted to by the court, was appellant’s use of sunglasses while driving at night.