Burlas v. State

SHARER, J.. At approximately 10:00 a.m. on September 21, 2006, while making a left turn across the southbound lanes of Georgia Avenue in Silver Spring, a vehicle operated by Paul Myers ⁵⁶³ was struck by a vehicle operated by appellant, Eric Burlas. Myers was killed; Burlas was injured, but survived. Burlas was charged with manslaughter by motor vehicle, reckless driving, and excessive speed.

Following a non-jury trial in the Circuit Court for Montgomery County, Burlas was convicted of all three offenses. 1 In his timely appeal, Burlas makes two assertions: 1. The evidence was insufficient to convict Burlas of manslaughter by motor vehicle. 2. The evidence was insufficient to prove that Burlas proximately caused the collision with Myers. For the reasons that we shall discuss, we shall affirm the judgments of the circuit court.

FACTUAL BACKGROUND In his opening brief, Burlas sets out the following statement of facts 2 : On September 21, 2006, Burlas was driving southbound on Georgia Avenue [toward] the intersection of Georgia [Avenue] and Emory [Lane], At the same time, Myers was driving northbound [on Georgia Avenue toward] the same intersection. At trial, [this] intersection was described . . . as follows: Georgia Avenue is a multi-lane asphalt roadway that .. . takes vehicular traffic [toward] Olney in the northbound direction and [toward] Silver Spring in the southbound direction. [At t]he northbound portion of Georgia Avenue in the area of the collision, there is a dedicated left turn lane, two straight [“]through[”] lanes[,] and a dedicated right turn lane into the Olney Manor Park. ⁵⁶⁴ Southbound Georgia Avenue has a dedicated left turn [lane] into the Olney Manor Park[,] three straight lanes[,] and a dedicated right turn lane. The intersection is controlled by automatic traffic signals. There is no dedicated arrow there.

Left[-]turning vehicles from northbound Georgia [Avenue] into Emory [Lane] do receive an arrow[,] but the intersection is basically a yield on green once the arrow is gone. Emory Lane would be to the left of [traffic] traveling northbound!’,] and that’s a small kind of residential street, with just two lanes. Myers turned left from northbound Georgia Avenue onto Emory [Lane] at the same time that Burlas was traveling southbound on Georgia Avenue on the north side of Emory [Lane]. The[ir] vehicles collided.

Burlas was injured but survived. Myers died at the scene. We add to Burlas’s summary two other important facts. First, the posted speed limit on southbound Georgia Avenue was 50 miles per hour.

Second, at the time that the Burlas and Myers vehicles collided, Burlas’s vehicle was traveling between 84 and 87 miles per hour. Other nuances and inferences will be revealed as necessary for our discussion. The Evidence The State adduced testimony from five fact witnesses. At trial, the parties disputed whether Myers might have consumed alcohol prior to the collision. 3 Myers’s widow, Linda ⁵⁶⁵ Myers, testified that she did not see her husband consume any alcohol during the night before or morning of the collision.

Voula Vithoulkas, with whom Myers had transacted some business a short time before the collision, testified that she did not detect any use of alcohol by Myers. The State called three witnesses—John Mulcare, Jacques Benjoar, and Scott Basik—all of whom were, to some extent, eyewitnesses to the events just before, at the time of, and just after the collision. Prior to the collision, Mulcare was driving northbound on Georgia Avenue and slowing down for a yellow light at Emory Lane. “Out of [his] left eye,” Mulcare saw the Burlas and Myers vehicles collide. Mulcare did not notice the vehicles before the collision, and observed them for a “split second.” Immediately after the collision, Mulcare saw that the light for traffic turning left onto Emory Lane, which was Myers’s intended path, had changed to red.

Benjoar, at the time of the collision, was stopped in his vehicle on Emory Lane for a red light at its intersection with Georgia Avenue. After hearing, but not seeing, the collision, Benjoar looked up and saw two vehicles “airborne.” Basik testified that while driving southbound on Georgia Avenue, he was passed by a “silver car” that was, in his opinion, traveling “way too fast” and “just flew by [him in] the lefthand lane.” Seconds later, Basik arrived at the scene of the collision and saw that a silver car was involved. Basik was uncertain, however, whether the silver car that had passed him was the same silver car involved in the collision. The State did not present any evidence as to the density of traffic or presence of other vehicles, other than the silver car observed by Basik, on either Georgia Avenue or Emory Lane prior to the collision.

The State also called Detective Glenn Day of the Montgomery County Police Department, a vehicular collision reconstruction expert, who testified that the speed limits on Georgia Avenue and Emory Lane are 50 and 30 miles per hour, respectively. Northbound Georgia Avenue runs slightly uphill and, conversely, southbound Georgia Avenue runs slightly ⁵⁶⁶ downhill. The topography results in a slight crest of the hill near the intersection of Georgia Avenue and Emory Lane. The detective explained: [Tjhere is some limited sight distance there, due to the contour and elevation of the land or roadway. ...

Myers ... would have been looking uphill, up[-]grade[,] and there is the crest of a hill [there] that you wouldn’t be able to see over into oncoming traffic southbound. [ 4 ] There was little, if any, dispute as to the speed of Burlas’s vehicle at the time of the collision. Burlas’s collision reconstruction expert, Robert Squire, opined that Burlas was traveling at 84 to 86 miles per hour at the time of the collision. Detective Day estimated Burlas’s speed at that time to be “85 or 87” miles per hour. The detective opined that, had Burlas been driving at the speed limit, Myers would have safely cleared the intersection.

The Verdict Following the presentation of evidence and arguments of counsel, the trial court rendered the following verdict: Well, there seems to be no disagreement between counsel that the fundamental factor in this matter is speed and I’m going to address that issue along with the others in this case. This accident occurred on a public roadway that is not a highway. There was intersecting traffic as incidents a light controlled intersection, a suburban area with a posted speed limit of 50 miles per hour. Near where this incident occurred, there was a bus stop and also this occurred mid-morning, late morning on a regular work day.

It’s not uncommon in instances such as this for several factors to work together, a high speed chase, alcohol, erratic vehicular ⁵⁶⁷ movement, weather, lighting conditions, and so forth and so on. As I indicated, it’s a 50-mile-per-hour posted speed limit in this case. We’ve heard some expert testimony with respect to accident reconstruction, theoretical responses to theoretical questions, but it appears that there is no fundamental disagreement with respect to the vehicle in question in this case. At minimum, it was exceeding the posted speed limit by 34 miles per hour.

Ordinarily, one factor is not sufficient, however, under these circumstances, the speed was in the extreme and one factor in the extreme may be sufficient. There was one witness in this matter who testified that upon the occurrence of the incident, that the vehicle operated by the decedent in this case was airborne. Another lay witness whose car was passed on the left by a silver vehicle commented to himself at the time of the observation, when he was passed, that the subject vehicle was going way too fast, and of course, he came up on the scene a few moments later. If there are multiple factors, they may act together to produce an unfortunate result.

I have to be satisfied beyond a reasonable doubt that the conduct was grossly negligent, wanton, and reckless in connection with the public, both the motoring public and the pedestrian public. Pedestrians don’t walk on highways but they often walk on roadways. There’s also been the issue addressed about the movement of the vehicle of the decedent. The [cjourt does not consider that to be a substantial factor.

Based on the entire record in this case, I am persuaded beyond a reasonable doubt that the defendant is guilty of the offense of vehicular manslaughter. 1 find him guilty. That also includes the lesser included offenses of speed as well as [reckless] driving. ⁵⁶⁸ STANDARD of REVIEW Our review of a case tried non-jury is governed by Rule 8-131(c): When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. The standard for our review of the sufficiency of the evidence to support a criminal conviction is whether, on the evidence presented, taken in the light most favorable to the State, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979) (citation omitted).

The fact-finder “possesses the ability to ‘choose among differing inferences that might possibly be made from a factual situation,’ ” and the appellate court “must give deference to all reasonable inferences [that] the fact-finder draws, regardless of whether [the appellate court] would have chosen a different reasonable inference.” State v. Suddith, 379 Md. 425, 430 , 842 A.2d 716 (2004) (citations and footnote omitted). Nonetheless, [a]n assessment of the legal sufficiency of the evidence is not an evidentiary issue but a substantive issue, with respect to which an appellate court makes its own independent judgment, as a matter of law. This is an area wherein the reviewing court is not at all deferential to the trial court. It makes the same determination on the same basis as does the trial court.

In assessing legal sufficiency, we will look only at that which was formally received in evidence. Polk v. State, 183 Md.App. 299, 306 , 961 A.2d 603 (2008). The Court of Appeals has said that the concern of the appellate court ⁵⁶⁹ is not whether the verdict below was in accord with the weight of the evidence, but rather, whether there was sufficient evidence at trial “that either showed directly, or circumstantially, or supported a rational inference of facts which could fairly convince a trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt.” State v. Stanley, 351 Md. 733, 750 , 720 A.2d 323 (1998) (quoting State v. Albrecht, 336 Md. 475, 479 , 649 A.2d 336 (1994)). In our review, we also recognize that there is no distinction to be given to the weight of circumstantial, as opposed to direct, evidence.

A conviction may be sustained on the basis of a single strand of direct evidence or successive links of circumstantial evidence. As we stated in Nichols v. State, 5 Md.App. 340 , 247 A.2d 722 (1968): The law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existence of a fact may be inferred. No greater degree of certainty is required when the evidence is circumstantial than when it is direct, for in either case the trier of fact must be convinced beyond a reasonable doubt of the guilt of the accused. Id. at 350 , 247 A.2d 722 .

DISCUSSION 1. Sufficiency of the Evidence Manslaughter by vehicle is a statutory offense. Maryland Code (2002, 2005 Supp.), § 2-209(b) of the Criminal Law Article (“CL”) provides: “A person may not cause the death of another as a result of the person’s driving, operating, or controlling a vehicle ... in a grossly negligent manner.” CL § 2-209(a) includes a motor vehicle within the statutory definition of “vehicle.” In this case, as in nearly every case of manslaughter by vehicle, the question is whether Burlas’s conduct amounted to gross negligence. In the context of manslaughter by vehicle, “gross negligence” has been defined as “ ‘a wanton or ⁵⁷⁰ reckless disregard for human life.’ ” Skidmore v. State, 166 Md.App. 82, 86 , 887 A.2d 92 (2005) (quoting State v. Kramer, 318 Md. 576, 590 , 569 A.2d 674 (1990)) (citation omitted).

Maryland cases, which we shall discuss, have suggested that excessive speed alone does not constitute gross negligence; hence, more is required to prove manslaughter by vehicle beyond a reasonable doubt. Excessive speed under certain circumstances, however, may be sufficient to establish the offense. We reiterate that the underpinning of a conviction of manslaughter by motor vehicle is the “grossly negligent” operation of the vehicle. CL § 2-209.

Grossly negligent operation of a vehicle is defined as conduct that shows a “wanton or reckless disregard for human life.” Skidmore, supra, 166 Md.App. at 86 , 887 A.2d 92 . Simple negligence is insufficient to support a conviction for manslaughter by vehicle. Kramer, supra, 318 Md. at 590 , 569 A.2d 674 . As we explained in Boyd v. State, 22 Md.App. 539 , 323 A.2d 684 (1974): It is abundantly clear from the cases that the General Assembly of Maryland imported into the [Maryland] 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.’ ” Id. at 550 , 323 A.2d 684 (quoting Maryland v. Chapman, 101 F.Supp. 335, 341 (D.Md.1951) (emphasis added)) (footnote omitted). Only infrequently have the appellate courts of Maryland been called upon to consider whether conduct was grossly negligent in the context of a prosecution for manslaughter by vehicle, and therefore rose to the level of wanton or reckless disregard for human life. Our review has led us to several ⁵⁷¹ Maryland cases in which excessive speed was the overriding evidentiary factor.

In Duren v. State, 203 Md. 584 , 102 A.2d 277 (1954), [t]he State produced testimony at ... trial which showed that (Duren] was driving [an] automobile ... on Fremont Avenue in ... Baltimore at a speed estimated by an experienced driver to have been at least [60] miles an hour.... As [Duren] approached the intersection of Fremont Avenue and Laurens Street, a heavily congested residential and business area, the man who was killed walked ... into the street from between [two parked] cars [and] was struck by the right front bumper of [Duren’s] car.... The investigating police officer found four skid marks, admittedly made by the tires of [Duren’s] car, [of] a distance of [144] feet.

Id. at 588-89 , 102 A.2d 277 . Convicted of manslaughter by automobile, Duren appealed on the ground that the evidence was insufficient to sustain his conviction. Id. at 587 , 102 A.2d 277 . The Court of Appeals first gave a historical perspective to its opinion: Long before automobiles ... the courts held that allowing a horse drawn vehicle to proceed at an excessive or immoderate speed could constitute criminal negligence in a given environment. [In Rex v. Walker, 1 Carrington & Payne 191 (1824),] the defendant was driving a cart with two horses which were cantering.

The pedestrian who was struck was drunk and could not get out of the way because of that fact and the rapid pace of the horses. The Court, in its charge, laid down the following: “That if a man drive a cart at an unusually rapid pace, whereby a person is killed, though he called repeatedly to such person to get out of the way; if from the rapidity of the driving, or any other cause, the person cannot get out of the way [in] time enough, but is killed, the driver is in law guilty of manslaughter[.]” [In Rex v. Timmons, 7 Carrington & Payne 728 (1836), t]he accused was driving an omnibus which was racing with another. The charge to the jury was that they must be ⁵⁷² satisfied: “... that the prisoner was driving in such a negligent manner that by reason of his gross negligence, he had lost command of his horses[.]” It is plain that the environment in which speed is indulged must determine whether it does or does not show gross negligence at a given time. Speed in the open country on a four lane highway may be very high and not constitute negligence.

A much lower rate of speed in a city street máy constitute gross negligence. This, too, was the law long before automobiles existed. Duren, 203 Md. at 590-91 , 102 A.2d 277 (citations omitted). Discussing the extent to which speed may serve as the basis for a conviction of manslaughter by vehicle, the Court stated: Obviously, what must be looked for in each case is whether, by reason of the speed in the environment,