State v. Sodergren

686 P.2d 521, 1984 Wyo. LEXIS 300

• Court: Wyoming Supreme Court
• Decided: June 26, 1984
• Docket: 83-110
• Status: Published

Opinions

ROONEY, Chief Justice.

This matter is before us on a Writ of Certiorari. The issue presented by Petitioner is:

“Did the trial court err in dismissing the information for lack of jurisdiction maintaining that the respondent could not be prosecuted for involuntary manslaughter in a vehicular homicide not involving alcohol?”

Respondent adds as an issue:

“Does a writ of certiorari lie to review the district court decision dismissing the charges based on a lack of subject matter jurisdiction?”

We answer both questions in the affirmative, but set some perimeters with reference to the second one, remanding the case for additional proceedings.

Barry Sodergren (Respondent) was charged with two counts of involuntary manslaughter for the August 23, 1982 vehicular deaths of Mia L. Olsen and Evelyn Olsen. After being bound over to the district court, Respondent filed a motion to dismiss, based on an alleged lack of subject matter jurisdiction in the district court. The district court granted the motion and dismissed the case, explaining in a decision letter that the vehicular homicide statute (§ 31-5-1117, W.S.1977, infra) and the involuntary manslaughter statute (§ 6-4-107, W.S.1977, infra) prescribe substantially the same conduct with different penalties (one being a felony and the other a misdemeanor); that they are repugnant and inconsistent; and that a later specific statute controls over a general statute. Therefore, the court reasoned, the Respondent must be prosecuted under the vehicular homicide statute and not under the manslaughter statute, and thus the district court did not have jurisdiction to try the case.¹

This court entered its Order Denying Application to File Bill of Exceptions on June 8, 1983, and its Order Granting Certiorari on June 28, 1983.

MANSLAUGHTER CHARGE

We must address two aspects of this issue: (1) the relationship between the manslaughter statute and the vehicular homicide statute, and (2) the constitutionality of the vehicular homicide statute.

I

The confusion over the relationship between the two statutes has gone on for many years. In State v. Cantrell, 64 Wyo. 132, 186 P.2d 539 (1947), a vehicular death involving alcohol, we said that the negligent homicide statute did not impliedly repeal the involuntary manslaughter statute. However, starting in 1977, in a line of cases from Thomas v. State, Wyo., 562 P.2d 1287 (1977), through Bartlett v. State, Wyo., 569 P.2d 1235 (1977), and then to Lopez v. State, Wyo., 586 P.2d 157 (1978), we finally held at page 160:

“ * * * that all vehicular homicides, short of murder and voluntary manslaughter, are prosecutable exclusively as a violation of § 31-5-1115, W.S.1977. We overrule all decisions of this court to the contrary. * * * ”

7A Am.Jur.2d Automobiles and Highway Traffic § 340, p. 524, states, with reference to vehicular homicide statutes:

“ * * * They are the product of comparatively recent legislation prompted by the frequency of tragedies on the highways and the difficulty of obtaining convictions of motorists under the general statutes on homicides, juries being loath to attach the onus of ‘manslaughter’ to those causing the death of a person through the operation of a motor vehicle.”

The “carnage on the highways” can lead to speculation as to whether or not a proper and reasonable classification was invoked when a distinction was made relative to involuntary homicide on the basis of the instrument used to cause the death, i.e., a motor vehicle as distinguished from a club, poison, knife, gun, etc., with a lesser penalty attaching to the use of one of the instruments.²

In 1977, § 31-5-1115, W.S.1977, provided:

“(a) When the death of any person ensues within one (1) year as a proximate result of injury received by the driving of any vehicle in reckless disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide.

“(b) Any person convicted of negligent homicide shall be punished by imprisonment for not more than one (1) year or by fine of not more than one thousand dollars ($1,000.00), or by both such fine and imprisonment.

“(c) The director shall revoke the license or permit to-drive and any nonresident operating privilege of any person convicted of negligent homicide.”

The manslaughter statute, § 6-4-107, W.S.1977, provided:

“Whoever unlawfully kills any human being without malice, expressed or implied, either voluntarily, upon a sudden heat of passion, or involuntarily, but in the commission of some unlawful act, or by any culpable neglect or criminal carelessness, is guilty of manslaughter, and shall be imprisoned in the penitentiary not more than twenty (20) years.”

As a result of our suggestion that the legislature clarify its intent in this area, it responded in 1979 with amendments to both statutes, causing them to read as follows:

Section 6-4-107, W.S.1977 (Cum.Supp. 1979):

“Whoever unlawfully kills any human being without malice, expressed or implied, either voluntarily, upon a sudden heat of passion, or involuntarily, but in the commission of some unlawful act, except as provided in W.S. 31-5-1117, or by any culpable neglect or criminal carelessness, is guilty of manslaughter, and shall be imprisoned in the penitentiary not more than twenty (20) years.”

Section 31-5-1117(a), (b), W.S.1977 (Cum-Supp.1979):

“(a) Whoever, except when the violation of law involves culpable neglect or criminal carelessness, unlawfully and unintentionally, but with a conscious disregard of the safety of others, causes the death of another person while engaged in the violation of any state law or ordinance applying to the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle when the violation is the proximate cause of death. “(b) Any person found guilty of homicide by vehicle shall be fined not more than two thousand dollars ($2,000.00) or imprisoned in the county jail for not more than one (1) year, or both.”

In 1982 the legislature added aggravated vehicular homicide to § 31-5-1117 so that it read as follows at the time Barry Soder-gren was charged with involuntary manslaughter:

“(a) Whoever, while driving any vehicle under the influence of either intoxicating liquor or a controlled substance, or a combination of both, to a degree which renders him incapable of safely driving a vehicle, causes the death of another person shall be guilty of aggravated homicide by vehicle, and upon conviction thereof, shall be punished by imprisonment in the penitentiary for not more than twenty (20) years.

“(b) Whoever, except when the violation of law involves culpable neglect or criminal carelessness, unlawfully and unintentionally, but with a conscious disregard of the safety of others, causes the death of another person while engaged in the violation of any state law or ordinance applying to the operation or use of a vehicle or to the regulation of traffic, except those laws or ordinances relating to conduct set forth in subsection (a) of this section, is guilty of homicide by vehicle when the violation is the proximate cause of death and upon conviction thereof, shall be fined not more than two thousand ($2,000.00) dollars or imprisoned in the county jail for not more than one (1) year, or both.” Section 31-5-1117(a), (b), W.S.1977 (Cum.Supp.1982).

Petitioner, the State of Wyoming, argues that the 1979 and 1982 amendments were passed to change the law as it existed after Lopez, supra, (i.e., to change the holding that all vehicular deaths, short of murder and voluntary manslaughter were to be charged as vehicular homicide and not as involuntary manslaughter). Petitioner argues that it is presumed that when an amendment is enacted to an existing statute that some change in the existing state of the law was intended and that the court should endeavor to make such amendment effective, Brown v. State, Wyo., 590 P.2d 1312, 1314 (1979); that it is not reasonable that the legislature would enact a law to declare what is already the law, DeHerrera v. Herrera, Wyo., 565 P.2d 479, 483 (1977); and that amendment of the statutes presumes an intention to change the existing law and the courts should endeavor to give some effect to the amendment, Stolldorf v. Stolldorf, Wyo., 384 P.2d 969, 972 (1963).

Respondent argues that the amendments were passed to bring the statutes into line with the case law, but if this was not the intent, then the legislature failed to accomplish any other result, there being no discernible distinction between the standards of “reckless disregard of the safety of others” ³ and “conscious disregard of the safety of others”⁴ which were the substantive changes between the 1977 vehicular homicide statute on the one hand and the 1979 and 1982 vehicular homicide statutes on the other.

This court had held earlier, in State v. Thomas, supra, that there was no operative distinction between the standards of “culpable neglect or criminal carelessness”⁵ and “reckless disregard of the safety of others.” In Thomas, supra, 562 P.2d at 1289, the question was:

“Did § 31-232(a) [vehicular homicide] and earlier related enactments impliedly repeal that part of § 6-58 [manslaughter], which states, ‘or by any culpable neglect or criminal carelessness,’ insofar as it affects deaths resulting from the operation of a motor vehicle?”

In reaching the holding of that case, we said that the conduct which is made criminal by the challenged portion of § 6-58 [manslaughter] has as an element carelessness which is gross implying an indifference to consequences:

“ ‘ * * * and the term “gross negligence” means something more than mere negligence. It means wantonness and disregard of the consequences which may ensue, and indifference to the rights of others that is equivalent to a criminal intent. (Emphasis supplied.) [Citations.]’

“Also * * * when discussing gross negligence it was said:

“ ‘ * * * In civil eases the courts of this state define it as such negligence as evinces a reckless disregard of human life or bodily injury.’ (Emphasis supplied.)” 562 P.2d at 1290.

“Because § 31-232(a) proscribes substantially the same behavior as does the questioned portion of § 6-58, and because the penalty provided in § 31-232(a) is substantially less, we must hold that these two statutes are repugnant and conflicting insofar as the latter portion of the involuntary manslaughter statute is concerned and that therefore § 31-232(a) does repeal by implication the last phrase in § 6-58 insofar as it is applied to deaths occasioned by negligent operation of a motor vehicle.” 562 P.2d at 1291.

Legislative intent aside,⁶ one of the questions in this case thus must be whether the reasoning of this court in Thomas and related cases is applicable under the statutes in effect at the time Respondent was charged. Or, in other words, do the two statutes in question provide different punishments for identical acts and are they therefore repugnant and inconsistent? And, if so, which controls?

“Repeals by implication are not favored, State v. Cantrell, supra, 186 P.2d at 543; but this court has not hesitated to apply this in a proper case, Longacre v. State, Wyo., 448 P.2d 832, 834; Blount v. City of Laramie, Wyo., 510 P.2d 294, 296; Tucker v. State ex rel. Snow, 35 Wyo. 430, 251 P. 460, 465. If the statutes cannot stand together and if they are repugnant by virtue of relating to the same subject and are directed at a distinct offense with the same object, the earlier cannot stand, State v. Cantrell, supra. In Haines v. Territory, 3 Wyo. 167, 13 P. 8, 11, the court recognized the rule that a later specific statute controls over a general statute.” Thomas v. State, supra, 562 P.2d at 1290.

We later said in Bartlett v. State, supra, 569 P.2d at 1241:

“ * ⅜ ⅜ As in Thomas v. State, supra, our task is to determine if the statutes can stand together, or if they are repugnant by virtue of relating to the same subject and are directed at a distinct offense with the same object. State v. Cantrell, supra, [186 P.2d] at 542. We approach with a full realization that repeals by implication are not favored. Thomas v. State, supra. * * * ”

The standards in the statutes at issue in this case are the following: Respondent was charged, in the criminal complaint, with two counts of “ * * * killfing] a human being ⅜ '* ⅜ without malice express or implied, by culpable neglect or criminal carelessness, in violation of W.S.1977, § 6-4-107 * * V’ The district court, in its Decision Letter of November 16, 1982, phrases the question as:

“* * * [Wjhether a charge can be brought under the Manslaughter Statute, W.S. § 6-4-107, in a case not involving driving under the influence or whether such prosecutions must be restricted to the misdemeanor penalty of § 31-5-1117(b), which would remove the offense from the jurisdiction of this Court.

The district court judge goes on to say: “The State argues that a higher level of culpability is required under the manslaughter statute, where the standard is involving culpable neglect or criminal carelessness, as opposed to the vehicular homicide statute, which requires a conscious disregard of the safety of others. There is no meaningful distinction between the two. In State v. Rideout, 450 P.2d 452, the Court found that there was no operative distinction between ‘careless disregard of the safety of others’ and the definition of negligence necessary to support a manslaughter conviction. In the Thomas case, the Court found that there was no meaningful distinction between ‘reckless disregard’ and ‘culpable neglect or criminal carelessness.’ Similarly, there is no reason to believe that the offense is distinguished by the use of the language ‘conscious disregard.’ ”

The logic of the district court judge is in accordance with our former holdings. There is no discernible difference between the standard of “reckless disregard” (which was held to be the equivalent of “culpable neglect or criminal carelessness”) and “conscious disregard” which is used in the context of “unlawfully and unintentionally” doing that which is proscribed by the vehicular homicide statute. Therefore, if this were the only aspect of this issue, we would uphold the district court’s ruling.

II

However, the second aspect of this issue involves the constitutionality of the vehicular homicide statute in view of the ambiguity and internal inconsistency of subsection (b) of it. Section 31-5-1117(b) read in pertinent part:

“Whoever, except when the violation of law involves culpable neglect or criminal carelessness * * * but with a conscious disregard of the safety of others * * *.”

As “culpable neglect or criminal carelessness” is equivalent to “a conscious disregard of the safety of others,” it is difficult to comprehend how you can have one “except” when the other exists. The legislature has created an element of the crime and then cancelled out that element. The legislature cannot be presumed to intend the elements remaining in the act to constitute a crime, i.e., death caused by an unintentional violation of a state law or ordinance applying to the operation or use of a vehicle or to the regulation of traffic, such as improper parking, failure to have license plate in place, or any act of simple negligence relative to a state law or ordinance concerning the operation or use of a vehicle. The statute is obviously unclear on its face. It is susceptible of more than one meaning. It is ambiguous. State ex rel. Albany County Weed and Pest District v. Board of County Commissioners of Albany County, Wyo., 592 P.2d 1154 (1979).

When a statute is ambiguous, the court resorts to general principles of statutory construction in an effort to ascertain legislative intent. Wyoming State Department of Education v. Barber, Wyo., 649 P.2d 681 (1982); and Sanches v. Sanches, Wyo., 626 P.2d 61 (1981). In doing so, we must give effect to every word, clause and sentence and, if possible, construe the statute so that no part will be inoperative or superfluous. State Board of Equalization v. Cheyenne Newspapers, Inc., Wyo., 611 P.2d 805 (1980); State ex rel. Albany County Weed and Pest District v. Board of County Commissioners of Albany County, supra; and Haddenham v. City of Laramie, Wyo., 648 P.2d 551 (1982). Legislative intent is the primary consideration in ascertaining the meaning of a statute. Sanches v. Sanches, supra; Longacre v. State, Wyo., 448 P.2d 832 (1968). Statutes are not to be given meaning which would have the effect of nullifying their operation if they are capable of any other interpretation, Hayes v. State, Wyo., 599 P.2d 558 (1979). But statutes are not to be interpreted to produce absurd results. In re Romer, Wyo., 436 P.2d 956 (1968); Woolley v. State Highway Commission, Wyo., 387 P.2d 667 (1963); and Huber v. Thomas, 45 Wyo. 440, 19 P.2d 1042 (1933).

Applying these principles to § 31-5-1117(b) as it was in effect at the time of the deaths, the two conflicting clauses cannot both be given effect inasmuch as such is the very cause of ambiguity. Also, as already noted, both clauses cannot be disregarded without an absurd result and one obviously not intended by the legislature. If the first clause were declared superfluous, i.e., if “except when the violation of law involves culpable neglect or criminal carelessness” were declared to be null and void, the obvious intent of the legislature to have the vehicular homicide statute be violated when such is involved would be thwarted.⁷ If the second clause were declared superfluous, i.e., if with a “conscious disregard of the safety of others” were declared to be null and void, the obvious intent of the legislature to have such be the necessary state of mind for a violation of the statute would be thwarted.

Since the statute is ambiguous and inconsistent as it stands, and thus inapplicable to a given situation, and since it cannot be given coherent meaning without thwarting the obvious legislative intent, there is no alternative to declaring the entire subsection, § 31-5-1117(b), as it existed at the time of the deaths, to have been unconstitutional and inoperative.

Although we do not ordinarily inquire into the constitutionality of a statute on our own motion, we do so where a case cannot be completely and effectively disposed of without such inquiry and decision. Gorrell v. City of Casper, Wyo., 371 P.2d 835 (1962); Markey v. Connelly, Wyo., 367 P.2d 964 (1962); and Eastwood v. Wyoming Highway Department, 76 Wyo. 247, 301 P.2d 818 (1956). Such is this case.

Requirement of a reasonable degree of certainty in legislation, especially in criminal law, is a well established element of due process. Sanchez v. State, Wyo., 567 P.2d 270 (1977); and State v. Gallegos, Wyo., 384 P.2d 967 (1963).

Inasmuch as the Respondent could not be properly prosecuted under § 31 — 5— 1117(b), the court erred in dismissing the prosecution for lack of subject matter jurisdiction on the basis that prosecution was proper only under § 31 — 5—1117(b). The only statute under which prosecution could be had was the manslaughter statute under which Respondent was charged.

CERTIORARI

The propriety of a writ of cer-tiorari in matters such as this was decided in City of Laramie v. Mengel, Wyo., 671 P.2d 340 (1983), and in State v. Heiner, 680 P.2d 478 (Wyo.1984). The fallacies there set out in my specially concurring opinion in regard to Justice Rose’s dissenting opinion are equally applicable to his dissenting opinion in this case. The issue in this case involves a constitutional question and is of great public import. However, we do serve notice on the bar that we will exercise our discretion to grant certiorari only in unusual circumstances and upon rare occasions.

The legislature has changed the statutes here involved by the enactment of a new criminal code. It has advised us that it is considering appropriate changes in the code in recognition that a new enactment of its magnitude will need some “shaking down.”

The recent changes in the two pertinent statutes cause them to read:

“(a) A person is guilty of manslaughter if he unlawfully kills any human being without malice, expressed or implied, either:

“(i) Voluntarily, upon a sudden heat of passion; or

“(ii) Involuntarily, but:

“(A) In the commission of some unlawful act except as provided in W.S. 6-2-106; or

“(B) Recklessly.

“(b) Manslaughter is a felony punishable by imprisonment in the penitentiary for not more than twenty (20) years.” Section 6-2-105, W.S.1977 (June 1983 Replacement).

“(a) Except as provided in subsection (b) of this section, a person who unlawfully and with criminal negligence causes the death of another person while operating a vehicle is guilty of homicide by vehicle and, upon conviction thereof, shall be fined not more than two thousand dollars ($2,000.00) or imprisoned in the county jail for not more than one (1) year, or both. Evidence of a violation of any state law or ordinance ajpplying to the operation or use of a vehicle or to the regulation of traffic, except for evidence of a violation of W.S. 31-5-233, is admissible in any prosecution under this subsection.

“(b) A person is guilty of aggravated homicide by vehicle and shall be punished by imprisonment in the penitentiary for not more than twenty (20) yéars, if, while driving a motor vehicle in violation of W.S. 31-5-233, he unlawfully causes the death of another person while driving a motor vehicle and the violation is the proximate cause of the death.

“(c) The division of motor vehicles shall revoke the license or permit to drive and the nonresident operating privilege of any person convicted of aggravated homicide by vehicle or of homicide by vehicle.” Section 6-2-106, W.S.1977 (June 1983 Replacement).

"Recklessly” as used in § 6-2-105 is defined in § 6-l-104(a)(ix), W.S.1977 (June 1983 Replacement) as follows:

“ ‘Recklessly’ means done with a conscious disregard of a substantial and unjustifiable risk that the person’s conduct will result in the harm he is accused of causing.”

“Criminal negligence” as used in § 6-2-105 is defined in § 6 — 1—104(a)(iii), W.S.1977 (June 1983 Replacement) as follows:

“ ‘Criminal negligence’ means a great or excessive deviation from that standard of care which a reasonable, prudent person would exercise under the same or similar circumstances to avoid a substantial and unjustifiable risk of harm.”

Section 31-5-233, W.S.1977, referred to in § 6-2-106, makes it a crime to drive a motor vehicle while under the influence of intoxicants or controlled substances.

As noted supra, the distinction between “culpable neglect or criminal carelessness,” “reckless disregard for the safety of others,” “conscious disregard for the safety of others,” “gross negligence,” “disregard of consequences which may ensue,” “wantonness,” “indifference to the rights of others that is equivalent to criminal intent,” “evincing a reckless disregard of human life or bodily injury,” is de minimus for the purpose of defining a criminal act.

There seems to be no distinction between “recklessly” as used in the present manslaughter statute and “criminal negligence” as used in the vehicular homicide statute. The present manslaughter statute precludes the consideration of death resulting from driving under the influence as the commission of an unlawful act, but it does not do so for death resulting from “reckless” action. Both statutes were enacted at the same time.

Finally, attention is directed to the language in the current subsection (b) of § 6-2-106, supra, which indicates that one could not be prosecuted thereunder if the resulting death is of a pedestrian or of a passenger in a motor vehicle. It provides that the crime is committed by one “while driving a motor vehicle” causing death of a “person while driving a motor vehicle.”

We may be able to ascertain legislative intent relative to these two current statutes. We are not now required to do so, but our comments may be helpful in obtaining an unquestioned expression of legislative intent on the problem which has persisted for so long relative to these statutes. We urge the legislature to make such expression.

Reversed and remanded.

1 . Both the vehicular homicide and the involuntary manslaughter statutes in question here were substantially amended by the new criminal code which went into effect on July 1, 1983. See infra.

2 . It has been held that a motor vehicle may constitute a dangerous instrument or deadly weapon, e.g., State v. Caldwell, 231 S.C. 184, 98 S.E.2d 259 (1957).

3 . Section 31-5-1115, W.S.1977.

4 . Section 31-5-1117, W.S.1977 (Cum.Supp.1979 and Cum.Supp.1982).

5 . The terms "culpable neglect" and "criminal carelessness" are synonymous and proscribe behavior which is not only more than ordinary negligence but which is criminal or culpable in character. Brown v. State, Wyo., 661 P.2d 1024 (1983); State v. Thomas, supra; State v. McComb, 33 Wyo. 346, 239 P. 526, 41 A.L.R. 717 (1925).

6 .One law review Case Notes author, in analyzing Thomas v. State, supra, refers to legislative intent as follows:

" * * * Determining the specific legislative intent behind a particular law is somewhat akin to searching for the Loch Ness monster; submerged, lurking beneath the surface of the statute, the intent might be there — but then again, probably not. * * * ” Case Notes, 13 Land & Water L.Rev. 595, 601 (1978).

7 . “Culpable neglect or criminal carelessness” is the language of the vehicular homicide statute, § 31-5-1117(b), W.S.1977 (Cum.Supp.1982).