State v. Southern , 304 N.W.2d 329 ( 1981 )

YETKA, Justice.

Defendant was found guilty by a district court jury of negligent vehicular homicide, Minn.Stat. § 609.21 (1980), and was sentenced by the trial court to a maximum 5-year prison term. On this appeal from judgment of conviction, defendant contends that her conviction should be reversed outright because the evidence that she was grossly negligent or that her gross negligence caused the victim’s death was legally insufficient. Alternatively, she contends that she is entitled to a new trial because the trial court erred in admitting evidence concerning statements defendant made to the police and in instructing the jury. We affirm.

1. The first issue which merits discussion is defendant’s contention that the evidence that she was grossly negligent or that her gross negligence caused the victim’s death was legally insufficient.

Defendant was driving a truck on a residential street in St. Paul one morning when the truck hit a 5-year-old boy on his way to kindergarten. Instead of stopping, defendant accelerated, left the scene, and, with the help of others, ditched the truck hoping to make it appear that someone else had stolen the truck and was responsible for the accident.

The state seemingly concedes in its brief that there was no evidence that defendant actually was exceeding the speed limit at impact, but argues that defendant was driving faster than prudence would have allowed because (a) by her own admission, she was driving into the sun, which was very bright (a fact corroborated by a meteorologist called by the defense), and (b) she was in a school zone and knew it, both from traffic signs and from having traveled the route before.

We disagree with the state’s contention that the evidence established beyond a reasonable doubt that defendant was driving in a grossly negligent manner up to the point of impact.

Defendant’s conduct in accelerating and leaving the scene clearly was gross negligence, however, and we are satisfied that the state’s evidence sufficiently established that gross negligence to be a substantial factor causing the child's death. There was testimony that defendant’s gross negligence resulted in the child being dragged approximately 175 feet before his body came to rest, a far greater distance than he would have been dragged if defendant had stopped immediately after impact instead of fleeing. The two main injuries which led to the child’s death were a head injury which probably, but not necessarily, occurred at impact and a neck injury which may have occurred at impact or while the child was being dragged. But for defendant’s gross negligence, the child may well have survived. Of course, we will never know this because defendant, by her gross negligence in failing to stop and in leaving the scene, made it impossible to determine this. Further, her conduct also had the effect of ensuring the child’s death. We are satisfied after a careful review of the record that the evidence established defendant’s grossly negligent driving to be a substantial causal factor in the child’s death.

2. The second issue raised by defendant relates to the propriety of trial court rulings on the admissibility of defendant’s statements to the police at her apartment and at the station. The story given to the police was that she had not driven the truck.

Defendant’s lies at the house were in response to police questions which were not preceded by a Miranda warning, but defendant was not in custody nor did she have reason to believe she was in custody.¹

As for the statement at the station, defendant challenged its admissibility on two grounds: (a) that it was involuntary, induced by a threat to arrest defendant’s mother, and (b) that it was obtained in violation of Miranda, since the police officer questioned defendant after she said she wanted an attorney. The statement in question consisted of defendant simply repeating that she had not driven the truck. While the statement was perhaps voluntary, it clearly was obtained in violation of Miranda. Thus, the trial court appropriately ruled that the statement was not admissible in the state’s case in chief but that it would be admissible as impeachment evidence if defendant testified and made statements to the contrary. The United States Supreme Court’s recent opinion in United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980), allows use of such an otherwise inadmissible statement to impeach statements made by the accused even in response to government cross-examination if that cross-examination is reasonably suggested by the accused’s direct examination. Here defense counsel, on direct examination of defendant, arguably opened the door to this matter by eliciting from defendant an admission that she may have lied at her house because she was so upset and that she was still upset at the police \station. In any event, there was evidence that was clearly admissible — statements to friends — which showed defendant was still lying about this matter a number of days after the accident so the evidence could not have been prejudicial.

3. Defendant’s final contention relates to the trial court’s instructions. Looking at the instructions as a whole, we do not find error.

Affirmed.

1 . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).