This is a pending motion of a man’s appeal to dismiss the charges against him. He seeks to dismiss the first count of accusation, murder in the second degree, the second count which is manslaughter in the second degree and all other counts of charges against him.
Based on the record, on the night of the incident, the man was operating his motor vehicle in an eastbound direction. It crossed the center line into the westbound lane of traffic then he collided with a westbound vehicle driven by a woman. As a result of the collision, a man seating on the front seat of the woman’s vehicle died. The grand jury returned a seven-count felony, charging the man with murder in the second degree, manslaughter in the second degree, vehicular manslaughter in the second degree, criminal negligence homicide, two counts of misdemeanor, DWI and failure to keep right. Under the facts presented here, the distinction between the two types of homicides takes place in the context of a driving while intoxicated fatality case.
The analysis results from the man’s motion requesting that the court review the grand jury’s minutes of the proceedings to determine if the evidence presented was legally sufficient to sustain an indictment for depraved indifference murder and manslaughter in the second degree.
The court allowed to an in-camera review of the grand jury’s minutes of the proceedings. Subsequently, the motion for the release of the minutes is denied. The grand jury was properly represented and received all appropriate legal instructions.
The court agrees with the Court of Appeals for the simple reason that it is difficult to conceive of many actions resulting in an unintentional murder which should be classified at the same level as intentional murder.
The court first rules that the factors and the evidence presented to the grand jury are sufficient to support a finding that the man, by his behavior, recklessly caused the death of another, as defined in the charge of manslaughter in the second degree. The evidence presented to the grand jury was sufficient for the jury to find that the man’s actions created a considerable and unjustified risk that another person’s death would occur. Consequently, the man’s motion to dismiss the second count of the accusation is denied.
Relative to the depraved indifference murder charge, the court finds that the man’s alleged actions, tragic and unfortunate as they may be, were not such that would elevate his actions to a level criminal liability equal to that of intentional murder, particularly in light of the Court of Appeals’ recent instructions on the topic as to the degree and type of proof needed to support a finding relative to actions that create a severe risk of death, and also after a comparison of the factual elements that have been present in driving while intoxicated fatalities in which a murder in the second degree charge or conviction has been sustained.
Accordingly, the man’s motion with respect to the first count of the accusation charging him with murder in the second degree is granted and the count is hereby dismissed.
The man argues that the balance of the accusation should be dismissed since the court introduced evidence of his prior driving history, which includes a conviction for driving while ability impaired (DWAI) as a traffic infraction. While the actual conviction was not entered into evidence, its existence was made known to the grand jury. However, it does not follow that the charges must be dismissed as result. The grand jury received appropriate limiting instructions regarding the reference to the man’s prior driving record.
The man’s motion to dismiss counts three through seven of the indictment is denied.
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