State v. DiGennaro

⁵⁵³ MURPHY, J. In the Circuit Court for Harford County, a Grand Jury returned a six count indictment that included the following charges: The Jurors of the State of Maryland, for the body of Harford County, do on their oath present that KEVIN GEORGE DIGENNARO[, Respondent], on the 21st day of March 2005, in the County aforesaid, unlawfully did cause the death of [the victim], while driving, operating and controlling a vehicle in a grossly negligent manner, against the peace, government and dignity of the State. (Manslaughter by vehicle or vessel—CR 2-209—1 0909) SIXTH COUNT AND, the Jurors aforesaid, upon their oath aforesaid, do further present that KEVIN GEORGE DIGENNARO, on the said day, in the County aforesaid, did unlawfully fail to remove dirt and debris from a highway which had fallen from a vehicle that he was operating in violation of Transportation Article § 24-106, against the peace, government and dignity of the State. (Failure of vehicle owner to remove debris—Transportation Article [ (TA) ] § 24-106(e)) At the conclusion of a bench trial, the Circuit Court convicted Respondent of manslaughter by vehicle, and of the TA § 24-106(e) violation. 1 The manslaughter by vehicle conviction was reversed by the Court of Special Appeals in DiGennaro v. State, 182 Md.App. 624 , 959 A.2d 105 (2008). The State then filed a Petition for Writ of Certiorari, in which it presented this Court with the following question: ⁵⁵⁴ [I]s the term “operating” contained in Section 2-209 of the Criminal Law Article, different from the terms “driving” and “controlling,” also included in Section 2-209, and, if so, does the term “operating” encompass the failure of the driver of a vehicle to perform duties that the driver is legally obligated to perform as a result of his driving the vehicle?

We granted the Petition. 407 Md. 276 , 964 A.2d 675 (2009). For the reasons that follow, we hold that the definition of “operating” in CL § 2-209 is identical to the definitions of “drive” and “operate” in the Transportation Article (TA). We shall therefore affirm the judgment of the Court of Special Appeals. Background The opinion of the Court of Special Appeals includes the following factual summary: On the morning of March 21, 2005, [Respondent] was driving a dump truck northbound on Route 136 in Harford County, hauling a load of gravel to a quarry in Churchville.

In attempting to lower the truck’s third axle, he, in the circuit court’s words, “hit[ ] the wrong button,” accidentally releasing approximately 3,480 pounds of gravel onto Route 136. The spill comprised three separate concentrations of gravel that, all together, covered over 800 feet of the northbound lane of Route 136. Observing, in his side mirror, gravel spewing from the rear of his truck, [Respondent] pulled over to the side of Route 136, just south of the entrance to the Churchville quarry. When he got out of the truck, [Respondent] saw what he later described to police as a “small amount of gravel” directly behind his vehicle.

After kicking some of the gravel off the road, he got back into the truck and drove to the quarry. As he entered the quarry, [Respondent] placed a call, on his cell phone, to James Enders, the owner of the contracting firm that employed him, and told him, Enders would later recall, that he had “sprinkled” some gravel onto the ⁵⁵⁵ road leading into the quarry. Concluding from [Respondent’s] words and tone that there was no immediate cause for concern, Enders responded that a “loader” would “come out” and scrape the stray stones from the entrance road. The call ended, and [Respondent], after emptying his truck of its cargo, departed for Perryville, Maryland, to pick up a supply of sand.

Shortly after the spill occurred, Lthe victim’s mother] was driving her car northbound on Route 136, accompanied by her two small sons[.] Proceeding along a route she customarily drove to her mother-in-law’s home, [the victim’s mother] did not see the gravel left by DiGennaro’s truck before her car entered the first concentrated stretch of gravel. By that time, it was too late. Skidding on the gravel beneath her vehicle, she lost control of her car and spun into the path of an oncoming BMW. The BMW collided with [the victim’s mother’s] car. [The victim’s mother and the victim’s brother] suffered substantial injuries but survived the accident.

Tragically, [the victim] did not. The force of the accident snapped his neck, and he died at the scene of the accident. Dispatched to the accident scene, Trooper Douglas Forrester of the Maryland State Police traveled along the same portion of gravel-covered roadway that [the victim’s mother] had. As he passed through it, he, too, lost control of his car, but only momentarily.

The scene struck him as “surreal.” “[A] part of the roadway,” he explained, “was completely covered with stone and gravel ... like it was snow covered.” After being contacted by the State Police, James Enders called [Respondent] and informed him that the State police wanted him to meet them immediately in the parking lot of the WaWa store at the corner of Routes 136 and 543. When [Respondent] arrived at that location, the troopers read him his Miranda warnings, after which a trooper asked him “what had happened that morning.” [Respondent] responded that he had accidentally dropped some gravel ⁵⁵⁶ from his truck, and that, after pulling over, he noticed a “small amount” of gravel on the road. The troopers then drove [Respondent] to the accident scene, stopping at the spot where [Respondent] told them he had stopped his truck to view the discharged gravel. Asked by one of the troopers whether he could see the heaviest concentration of gravel, which, of the three separate accumulations, was farthest from where they were standing, [Respondent] said he could.

And, later at trial, one of the troopers testified that, looking south along Route 136, he had “no [trouble] at all” seeing the full span of all three concentrations of gravel. DiGennaro v. State, 182 Md.App. 624, 626-628 , 959 A.2d 105, 106-108 (2008). Respondent’s trial began with the prosecutor’s opening statement, which included the following assertions: The State’s position here is that perhaps the initial grabbing of the wrong control and dumping this matter on the roadway may have been only simple negligence. But what Mr. Digenarro did after that in allowing this material to lay on the roadway, which caused this accident, was, in fact, gross negligence, which should constitute a basis for a charge of manslaughter and evidence of manslaughter under the circumstances.

At the conclusion of the State’s case-in-chief, Respondent’s trial counsel made a “motion for judgment of acquittal with regard to the count of manslaughter,” and stated: And candidly, the Court views it in the light most favorable to the State at this point, and being that as it is, I suspect that the Court’s going to deny the motion. But I would like to point out to the Court that manslaughter is a criminal offense, which requires wanton disregard and gross negligence, which I know this Court is more familiar with than I am because I haven’t done a civil practice. And that’s the same standard as carried over into ... 2-209 as was the common law allowing—that is the case of Lilly v. State, [ 212 Md. 436 , 129 A.2d 839 (1957) ] and Blackwell v. State [34 ⁵⁵⁷ Md.App. 547, 369 A.2d 153 (1977)]—ask [sic] to continue with that same type of, if necessary, evidence, even after the statutory revisions of 2-209. Your Honor, this is a case where there’s no doubt Mr. Digennaro was very negligent when he discharged the load on the highway.

He made an effort to make a phone call to this boss to let him know what happened. And quite candidly, I don’t think the owner of this vehicle was totally candid with the Court. He said he never told him it was on the road. Well, be that as it may, the liability for the criminal negligence in this case seems to be that—Well, I’m not sure what it seems to be, because, clearly, he wasn’t able to clean up that gravel.

We know what was used, a very large vehicle of equipment, to clean that gravel up. There’s some allegation that if he didn’t clean it up, he had some duties to try to warn motorists who were approaching the scene, and to do that, he apparently had three triangles which he could have set out. The problem is, the testimony from everybody has been that as you approach to roadway, you don’t see it. Both the officer and according to the child’s mother, said they were on it before they saw it.

So if you put those triangles out there somewhere, probably no one knows what that really meant. The cars approaching the scene would not have seen it in any event. Well, generally, there’s no way of knowing because it’s not something you can see in the road before you are on it. So both the officer and the young child’s mother ended up on the gravel before they were aware that it’s there.

And that’s if you believe for a minute that he appreciated the seriousness of the situation. And I say that because he’s 800 feet—and the testimony seems to have been that the heavy concentration is down here and it gets lighters, apparently that is the light portion extending further, and then it’s a total of 800 feet to get up where the truck is. And looking back some 800 feet, I have no doubt he’s well beyond any viewpoint where I am now. I have no doubt ⁵⁵⁸ that you see something down there, but you have to also believe that having seen that down there, you can appreciate the serious situation that it presents.

Even if you knew it was gravel, I’m not sure you’ve got to appreciate the serious condition that it presents for other motorists. Of course, it’s doubtful if he knew exactly how much was down there. The point I’m making is, that the guilt of a wanton disregard, you would have to know the danger, and knowing the danger, act with total reckless disregard for the life of others. And in this case, it’s not at all clear that he even understood the danger.

Nor—understands this. The boss, who owned the truck, told him that this was a very dangerous endeavor removing gravel you spilled on the roadway and that you have to be very careful and cautious. But even the boss admitted he gave no training. He didn’t see that as a particularly serious problem and it wasn’t really discussed in any detail.

There’s really no reason to think that he’s even aware of the situation that he probably had created when he called his boss and says, “I spilled some gravel on the roadway.” Even the light most favorable to the State, I don’t think the State’s made out a case of gross negligence in this case. The following transpired during the prosecutor’s response to Respondent’s motion: He could have backed the dump truck up so that people approaching that would have a large red dump truck to see as opposed to trying to see a small triangle or something. But this is an issue that appears to be responsibility here at this point in time. And to neglect that responsibility as the cases have said, there can be found a wanton and reckless disregard of the rights and lives of others in criminal indifferences to the consequence where you have a legal obligation to clean up what’s spilled from the road and you drive away and leave it there.

And obviously, the danger, the fact that not only did [the victim’s mother] lose control, but the first responding troop ⁵⁵⁹ er lost control. There’s an obligation on the defendant to examine the scene not to just jump out, close the gate, look around and kick some stones off the driveway. I think the fact that the defendant was kicking stone off the road and calling his boss was an indication that he was aware of the seriousness and how much worse this was. And I would argue to the Court that I think clearly, where he should’ve appreciated the incredibly dangerous situation that he has created and drives away without fulfilling his legal obligation and without doing anything in terms of marking this or calling it to the attention of someone to say, you know, “We got to get somebody out here to clean this up,” I think he’s responsible legally from the standpoint of gross negligence for the death of [the victim].

THE COURT: Let me make sure that I understand your argument. You are not saying by engaging the wrong button that it was grossly neglect in that respect? So he wasn’t grossly negligent by engaging the wrong button, but after he did so, it’s your contention that the spillage was in plain sight from the beginning, which is the crest of the hill, all the way to what you referred to as the third area of debris; and that he should have seen it because it was in plain sight, and Trooper Orner testified to that; And that he was grossly negligent by failing to do one of either two things: Either failed to clean it up, which may not have been a possibility; But he also failed to adequately mark the area and warn approaching motorists of the impending danger. Is that your argument? [THE PROSECUTOR]: Yes, that’s my argument.

(Emphasis added). After listening to final arguments, the Circuit Court rendered its verdict and stated the following grounds for its decision: ⁵⁶⁰ THE COURT: Well, in this case as in all criminal cases before this Court, the burden of proof is on the State to prove beyond a reasonable doubt that the defendant committed the crimes alleged. And the State has the burden of proving beyond a reasonable doubt that each element of the crime is, in fact,—that the charges are proved beyond a reasonable doubt. Now with respect to the charge of manslaughter by motor vehicle, there’s no dispute that the defendant drove and operated a motor vehicle on March 21 of 2005, and there’s no dispute that his conduct, the accident in hitting the wrong button, caused a great deal of gravel to deposit on the roadway in question, Route 136.

And perhaps that’s a negligent act. Certainly is negligent, but not grossly negligent. The question then is: Did his subsequent conduct constitute conduct or action in a grossly negligent manner, that is, a manner that created a high degree of risk to human life, and that this negligent conduct ultimately caused the death of an individual? I do not think that—well, there is no question but that the death was a result of the accident.

So the very narrow question before the Court is: Was the conduct of the defendant grossly negligent? I believe that he has a duty, a statutory