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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-3596
Appellant, ) Trial Court No. 4FA-S90-1059
Cr
)
v. )
) O P
I N I O N
ROBERT W. MALONE, )
)
Appellee. ) [No. 1155 - September 6, 1991]
________________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Jay Hodges, Judge.
Appearances: Bill D. Murphree, Assistant
District Attorney, Harry L. Davis, District
Attorney, Fairbanks, and Douglas B. Baily,
Attorney General, Juneau, for Appellant.
Nelson Traverso, Assistant Public Advocate,
Fairbanks, and Brant McGee, Public Advocate,
Anchorage, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Robert W. Malone, fleeing from a traffic stop, led
police on a high-speed chase through Fairbanks. During the chase,
a police car collided with a vehicle driven by another motorist;
both the officer and the motorist were injured. A grand jury
returned a multi-count indictment against Malone. Two of the
counts charged Malone with assault against the police officer and
against the motorist.
Responding to Malone's pre-trial motion, Superior Court
Judge Jay Hodges dismissed these two assault charges; Judge Hodges
ruled that the grand jury had been inadequately instructed on
legal concepts of causation. The State of Alaska has appealed.
We reverse the superior court's decision and reinstate the two
assault charges.
Fairbanks Police Officer Perry Williamson stopped Malone
for a traffic offense. A computer check showed that Malone did
not have a valid driver's license. Officer Williamson asked
Malone to get out of his car; Malone refused. When Williamson
started to open the door of Malone's car, Malone put the car in
gear and drove away. Williamson jumped into his patrol vehicle
and gave chase.
During the ensuing high-speed chase through the streets
of Fairbanks, Williamson's patrol vehicle collided with a third
car driven by Michael Hildebrandt. Williamson's left leg was
broken above the ankle. Hildebrandt suffered more serious
injuries: his left thigh, right wrist, and nose were broken, and
his spleen was so severely damaged that it had to be surgically
removed.
Based upon the injuries suffered by Williamson and
Hildebrandt in this motor vehicle collision, Malone was indicted
for first-degree assault on Hildebrandt (reckless infliction of
serious physical injury by means of a dangerous instrument, AS 11
.41.200(a)(1)), and for third-degree assault on Williamson
(reckless infliction of physical injury by means of a dangerous
instrument, AS 11.41.220(a)(2)).
Malone asked the superior court to dismiss these two
assault charges, arguing that the grand jury had been misinstruct
ed on the law of proximate cause. Specifically, Malone argued
that the collision could have been due to either Williamson's or
Hildebrandt's negligent conduct, and that their negligence could
have constituted a "superseding" or "intervening" cause of the
collision. Malone argued that the mere existence of this possibil
ity required the prosecuting attorney to instruct the grand jury
on the law of superseding causation -- since a grand jury finding
that Williamson's or Hildebrandt's conduct had been a superseding
cause of the collision would mean that Malone bore no criminal
responsibility for the injuries suffered by Williamson and Hilde
brandt.
Malone's motion did not point to any evidence of William
son's or Hildebrandt's negligence. However, in his reply and at
oral argument on the motion, Malone relied upon 13 AAC 02.517(f),
a regulation which, according to Malone, requires a police officer
in pursuit of a suspected lawbreaker to stop his patrol vehicle at
each stop sign and red light.
Judge Hodges granted Malone's motion to dismiss the two
charges. Judge Hodges took issue with the prosecuting attorney's
instruction to the grand jury that Malone should be held
responsible for Williamson's and Hildebrandt's injuries if his
conduct was a substantial contributing factor in causing those
injuries, regardless of anyone else's negligence. The judge ruled
that this explanation of probable cause was incomplete, that the
grand jury should have been told about the doctrine of "interven
ing cause".
For purposes of deciding this appeal, Malone does not
dispute that he acted with the required culpable mental state
(recklessness concerning the possibility that serious physical
injury might result from his conduct). The sole question
presented is whether, under the circumstances of this case, it is
possible that the law might not view Malone's conduct as a "cause"
of Williamson's and Hildebrandt's injuries.
A criminal defendant can be held responsible only for
injuries that "result from" or are "caused by" his conduct. But
the defendant's conduct need not be the sole factor in producing
the injury. Rather, the test is whether the defendant's conduct
was a "substantial factor" in bringing about the result. R.
Perkins & R. Boyce, Criminal Law (3rd ed. 1982), 9, pp. 779-780.
See also Kusmider v. State, 688 P.2d 957, 959-960 (Alaska App.
1984).
Since a defendant's conduct need not be the sole cause
of the injury, a defendant will be held accountable for an injury
or death resulting from his conduct even though it can be shown
that the negligence of some other person also contributed in a
substantial degree to causing the injury or death. Contributory
negligence of the victim does not constitute a defense to criminal
charges. Wren v. State, 577 P.2d 235, 240 (Alaska 1978); Lee v.
State, 760 P.2d 1039, 1042 (Alaska App. 1988); Perkins, pp. 785-
87. Similarly, the asserted negligence of third parties is no
defense. Kusmider, 688 P.2d at 959-960; State v. Inger, 292
N.W.2d 119, 123 (Iowa 1980).
This rule of law -- that negligence of the victim or of
third persons will not dispel a defendant's responsibility for an
injury or death -- is simply a specific application of the general
rule that a defendant who acts with the required culpable mental
state will be held criminally responsible for injuries that result
from other people's normal or foreseeable reactions to his
conduct. See Beale, The Proximate Consequences of an Act, 33
Harv. L. Rev. 633, 646-652 and 655-58 (1920). This remains true
even if the person responding to the defendant's conduct is
himself negligent (that is, acts unreasonably), so long as this
negligent or unreasonable conduct is a normal or foreseeable
response to the defendant's conduct. Perkins, pp. 803-04. W.
LaFave & A. Scott, Substantive Criminal Law (1986), 3.12, pp.
407-09, 413-15.
For example, a defendant who knowingly sets fire to a
building will be criminally liable if the owner of property stored
in the building is injured or killed after going into the burning
building to try to save the property. State v. Leopold, 147 A.
118, 121 (Conn. 1929), cited in Perkins, pp. 798. Another example
is found in People v. Kibbe, 321 N.E.2d 773, 775 (N.Y. 1974),
aff'd 431 U.S. 145 (1977), a case in which a robber left his
intoxicated victim helpless in the middle of the road at night
during a snow storm. The robber was held liable for reckless
homicide when a driver traveling down the highway later struck and
killed the victim. The court rejected the defendant's claim that
the driver's conduct should be considered a superseding cause of
the homicide. And, applying this same rule, the court in United
States v. Guillette, 547 F.2d 743, 749-750 (2nd Cir. 1976), held
that the defendants, who had engaged in a campaign of threats to
deter a witness from testifying against them, were criminally
responsible for the witness's death when the witness, after
rigging a booby-trap bomb intended to injure the defendants,
killed himself by accidentally detonating the bomb.
The same rule applies when a person charged with respond
ing to the defendant's action (for example, a fire fighter or a
police officer) exposes himself or herself to danger and is
injured or killed or responds in a way that results in injury to a
third person. Perkins, pp. 798, 804-09. Thus, if a defendant,
apprehended in the course of perpetrating a crime, engages in a
gunfight with the police, the defendant will be held criminally
responsible if a bystander is shot, no matter whether the bullet
was fired by the defendant or the police. LaFave & Scott,
3.12(h), Vol. 1, p. 417.
Although a defendant's criminal responsibility is broad,
it is not limitless. The law does not hold a defendant responsi
ble if the injury or death, while perhaps linked to the
defendant's conduct, is primarily caused by abnormal,
unforeseeable conduct on the part of the victim or of a third
person, so that it no longer seems fair to say that the injury was
"caused" by the defendant's conduct. When this occurs, the law no
longer views the other person's conduct as simply a contributing
cause of the injury. Instead, the law calls the other person's
conduct a "superseding" or "intervening" cause of the injury --
meaning that the defendant is excused from liability.
Thus, the conduct of the victim or of third persons is
sometimes relevant in assessing the defendant's criminal responsi
bility:
It must not be assumed that negligence of
the [victim] or of another is to be entirely
disregarded. Even though the defendant was
criminally negligent in his conduct, it is
possible for negligence of the [victim] or
another to intervene between [the defendant's]
conduct and the [injury] in such a manner as
to constitute a superseding cause, completely
eliminating the defendant from the field of
proximate causation. This is true only in
situations in which the second act of negli
gence looms so large in comparison with the
first that the first is not to be regarded as
a substantial factor in the final result.
Perkins, p. 787. Accord, Wren v. State, 577 P.2d at 240.
Nevertheless, once a defendant has set events in motion,
no conduct of the victim or of a third person will be a "supersed
ing" or "intervening" cause (that is, one that relieves the defen
dant of criminal responsibility for an ensuing injury or a death)
if (1) the defendant's conduct created or enhanced the risk that
someone would suffer the type of injury actually suffered by the
victim, and (2) the contributing conduct of the victim or of the
third person was either a normal reaction to the defendant's
conduct or was a reasonably foreseeable consequence of the
defendant's conduct. Perkins, pp. 814-15.
The Alaska Supreme Court has adopted this same view. In
Fairbanks v. Nesbett, 432 P.2d 607, 611 n.7 (Alaska 1967), the
court stated that an "intervening cause"
must [not be] produced by the [defendant's]
wrongful act or omission [and must not be] the
natural or probable consequence of such act or
omission. It must be [an act or occurrence
that] could not reasonably have been antici
pated or foreseen by the [defendant], and it
must prevent the natural and probable result
of the [defendant's] act [or] omission[, pro
ducing] a different result not reasonably
anticipated.
The court once again addressed this subject in Morris v.
Farley Enterprises, Inc., 661 P.2d 167, 170 (Alaska 1983), indicat
ing that the term "superseding cause" was actually a legal con
clusion, an after-the-fact analysis of the relationship between
the defendant's conduct and a resulting injury:
[T]he perspective to be taken in deciding
whether a superseding cause exists is one of
hindsight, asking whether, looking back from
the harm to the actor's negligent conduct, it
appears to the court highly extraordinary that
[the conduct] should have brought about the
harm.
Returning to the circumstances of Malone's case, it is
true that Williamson and Hildebrandt, like all drivers, were
required to exercise care for the safety of other motorists. In
fact, Alaska law expressly imposes this duty of care upon police
officers driving patrol cars in emergency situations. For
example, 13 AAC 02.140(c) and 13 AAC 02.517(f) provide that
drivers of authorized emergency vehicles, despite their exemption
from many of the normal rules of the road, remain under a duty "to
drive with regard for the safety of all persons using the
highway".
But it is both natural and foreseeable that, during the
high-speed chase of a suspected lawbreaker, police officers may
engage in driving maneuvers that involve calculated risk.
Moreover, it is natural and foreseeable that, under the stress of
the situation, police officers may engage in driving that, viewed
in hindsight, fails to satisfy the standard of care required by
13 AAC 02.140(c) and 517(f). It is also natural and foreseeable
that uninvolved motorists, suddenly confronted with the surprising
and dangerous situation of a high-speed chase, may either fail to
react in time to the unexpected peril or may react with less than
normal prudence. Therefore, a defendant who initiates a high-
speed chase may be held criminally responsible for injuries
suffered by police officers and other motorists even if it can be
demonstrated that the officers or motorists themselves acted
negligently.
There is no evidence in the grand jury record tending to
show that either Williamson or Hildebrandt caused the collision by
engaging in extraordinary, unforeseeable conduct. Malone asserts,
as he did in the trial court, that Officer Williamson violated
Alaska law -- specifically, 13 AAC 02.517(f) -- when he entered
the controlled intersection without coming to a complete stop. It
appears to us that Malone has misinterpreted this regulation; 13
AAC 02.517(f) does not require a police vehicle responding to an
emergency to come to a full stop at every intersection. 1
However, our decision does not rest on this interpreta
tion of 13 AAC 02.517. Even if Williamson violated the regulation
and thus failed to live up to the standard of driving conduct
required of police officers, this would prove no more than
negligent conduct on the officer's part, and any such negligence
was a foreseeable result of Malone's conduct.
The superior court found that the prosecutor's instruc
tions to the grand jury adequately explained the concept of proxi
mate causation. The superior court threw out the two charges
against Malone because the prosecutor had failed to explain the
doctrine of "superseding cause" to the grand jury. But, in the
absence of any evidence showing that the injuries suffered by
Williamson and Hildebrandt were the result of extraordinary,
unforeseeable conduct on their part (or anyone else's part),
Malone was not entitled to an instruction on "superseding" or
"intervening" causation. See Kusmider v. State, supra, holding
that a trial judge is entitled to exclude proffered evidence of a
third person's negligence when this evidence, even if believed,
"could not, as a matter of law, have established a break in the
chain of proximate causation". 688 P.2d at 960.
Moreover, even if evidence were to exist tending to show
that the collision was caused by extraordinary, unforeseeable
conduct on the part of Williamson, Hildebrandt, or some other
person, it is questionable whether this is an issue to be
litigated in a grand jury context. Both the Alaska Supreme Court
and this court have consistently held that grand jury proceedings
are not to become "mini-trials" -- that a prosecuting attorney is
not obliged to develop the evidentiary bases for potential
defenses, nor is he or she obliged to instruct the grand jury on
potential defenses. Frink v. State, 597 P.2d 154, 166 (Alaska
1979); Abruska v. State, 705 P.2d 1261, 1272-73 (Alaska App.
1985); Dyer v. State, 666 P.2d 438, 444 (Alaska App. 1983); and
Tookak v. State, 648 P.2d 1018, 1021 (Alaska App. 1982). See also
Castillo v. State, 614 P.2d 756, 762-63 (Alaska 1980), and Oxereok
v. State, 611 P.2d 913, 916-18 (Alaska 1980), holding that a
prosecutor need not instruct a grand jury on potential lesser
offenses.
The decision of the superior court is REVERSED and the
two counts of the indictment are reinstated.
_______________________________
1 The regulation at issue, 13 AAC 02.517, contains two
pertinent subsections. Subsection (a) provides:
The driver of an authorized emergency
vehicle, when ... in pursuit of an actual or a
suspected violator of a statute, regulation,
or ordinance, ... may disregard a statute,
regulation, or ordinance governing the opera
tion, stopping, standing, or parking of a
vehicle, except as provided in this section.
while subsection (f) states:
The provisions of this section do not
relieve the driver of an authorized emergency
vehicle or a vehicle displaying a flashing
blue light from the duty to drive with regard
for the safety of all persons, nor do the
provisions of this section allow the driver of
a vehicle displaying a flashing blue light to
proceed past a stop sign or red signal without
first stopping.
Interpretation of these provisions requires knowledge of how 13
AAC defines "authorized emergency vehicle" and "vehicle displaying
a flashing blue light".
"Authorized emergency vehicle" is defined in 13 AAC
04.010(3) and 13 AAC 04.090. An "authorized emergency vehicle"
must have either a flashing or rotating red light. 13 AAC 04.090
(a). The one exception is for police "authorized emergency
vehicles". Such vehicles are exempted from the red light require
ment by 13 AAC 04.090(c); that is, police may display a flashing
red light at their option, or they may drive unmarked cars.
13 AAC 04.090(g) gives "authorized emergency vehicles"
the option of displaying a second color of light in addition to
the required flashing red light. This second color may, but need
not be, the flashing blue light described in 13 AAC 04.100.
"Vehicle displaying a flashing blue light" is defined in
13 AAC 04.100. This category of vehicles includes private
vehicles of fire fighters and private vehicles of persons
certified to provide emergency lifesaving or medical services. 13
AAC 04.100(a) and (g).
Title 13 of the Administrative Code often distinguishes
between "authorized emergency vehicles" and "vehicles displaying a
flashing blue light". For instance, 13 AAC 02.140(b) requires
"flashing blue light" vehicles to yield the right-of-way to "autho
rized emergency vehicles" responding to an emergency. It does not
appear to us that the Department of Public Safety intended to have
the application of this right-of-way rule hinge on whether a
police department chooses to exercise its option under 13 AAC
02.517(g) to have its patrol cars display a second flashing light
of the color blue. Thus, a police department's choice to adopt
blue as the color of its second flashing light (along with the
required red) will not convert an "authorized emergency vehicle"
into a "vehicle displaying a flashing blue light".
Under 13 AAC 02.517(f), the duty of careful driving
applies to the drivers of both categories of vehicles: drivers of
authorized emergency vehicles (including police vehicles) display
ing the lighting required by 13 AAC 04.090, and drivers of
vehicles displaying flashing blue lights under 13 AAC 04.100.
However, the duty of stopping at controlled intersections applies
only to the second category of vehicles (those displaying flashing
blue lights). Thus, Officer Williamson, who was driving an
"authorized emergency vehicle", was not obliged to come to a
complete stop at the intersection.
