TABLE OF CONTENTS. Table of Contents... i. Table of Cases and Authorities... Argument...1

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1 TABLE OF CONTENTS Table of Contents... i Table of Cases and Authorities... ii Argument...1 I. If the lower court s verdict is affirmed, there is a strong probability that the precedent set here will significantly affect future prosecution of motorized vehicle accident-related crimes and furthermore create a separation of powers issue II. It is evident that the lower court did not properly apply the facts of this case to the law; and, the State s responsive brief likewise skirts the issue that forms the basis for this appeal....4 Conclusion...8 i

2 TABLE OF CASES AND AUTHORITIES State v. Demond-Surace, 162 N.H. 17 (2011)...7 State v. Shepard, 158 N.H. 743 (2009)...1 Duquette v. Warden, N.H. State Prison, 154 N.H. 737 (2007)...3 State v. Littlefield, 152 N.H. 331 (2005)... 6,7 State v. Pittera, 139 N.H. 257 (1994)... 6,7 State v. Ebinger, 135 N.H. 264 (1992)... 6,7 Montgomery v. Texas, 346 S.W. 3d 747 (Tex. App. - Houston [14 Dist.] 2011) ,8 Butts v. United States, 822 A.2d 407 (D.C. 2003)...7 King v. Pagliaro Brothers Stone Co., 703 A.2d 1232 (D.C. 1997)...7 New Hampshire Constitution, Part I, Article ii

3 ARGUMENT I. If the lower court s verdict is affirmed, there is a strong probability that the precedent set here will significantly affect future prosecution of motorized vehicle accident-related crimes and furthermore create a separation of powers issue. This Court could only uphold the verdict if it found that the State met its burden in proving that Ms. Dion was engaged in blameworthy conduct that caused her failure to perceive a substantial and unjustifiable risk that death could occur. See State v. Shepard, 158 N.H. 743, 749 (2009). In regards to blameworthy conduct, there were only two options for the jury to choose from: 1.) distraction as a result of cellular phone use; and 2.) general distraction and failure to use due care. See generally Appellant s Brief, Apr. 2, 2012 ( App. Br. ), State s Brief, June 29, 2012 ( State Br. ) and Superior Court Jury Trial Transcript ( Tr. ). If the Court finds that either or both of these alleged actions constitute blameworthy conduct such that would satisfy the culpable mental state for criminal negligence, it will yield the result of opening the door to a myriad of indictments and prosecutions in motorized vehicle accidents. There are countless actions that fall under the umbrella of distracted driving, all of which could contribute to an individual s failure to perceive a substantial risk. Should this Court uphold the jury verdict, individuals operating motorized vehicles in the State of New Hampshire could face criminal penalties for actions such as the following: Adjusting vehicle controls such as windshield wipers or temperature controls; Changing a music station or adjusting the volume; Looking at or listening to a navigational system for directional assistance; Eating an apple, a muffin, a candy bar ; Unwrapping a mint or a piece of gum; Drinking water from a bottle; Combing hair or putting lip gloss on; Smoking; Working long hours and nodding off at the wheel as a result; Attending to an unsecured pet or child; Taking off or putting on an article of clothing such as a sweater or hat; 1

4 Putting sunglasses on (or failing to and having difficulties seeing due to the sun/glare); Reading a road sign, billboard or informational board; Conversing with a passenger; Singing; Looking at a crash on the side of the roadway; Looking at scenery or landmarks. Furthermore, if this Court accepts the State s contention that it is morally blameworthy to be so focused on one s cell phone use and conversations, it would open the door to even more prosecution, to the point of absurdity. At some point or another (or even perhaps for a majority of a car ride), we all think about something other than the road. Examples of heightened concentration on non-road matters for drivers on New Hampshire roadways include: a prosecutor on the way to the courthouse who is practicing her closing statement in a triple homicide trial; a police officer transporting a suspect from a gruesome crime scene to the station for booking and questioning; a wife driving home from a doctors appointment with her husband, after just learning he has terminal pancreatic cancer; a father driving to the hospital after learning his daughter is in critical condition as a result of a ski accident; An all-star athlete who scored the final goal in the state championship and is driving to the celebratory party. The list could go on, and can also apply to boating, snowmobiling, biking, and all terrain vehicle accidents. The point is that distracted driving, although now facing heightened scrutiny, is a common occurrence. Simply listening intently to talk radio stations, such as NHPR or satellite news stations, takes our attention off the road. If the Court holds that distracted driving establishes the culpable mental state for criminal negligence, an array of issues would quickly emerge, which would range from enforcement to penalties. Not to mention, accidents happen is New Hampshire going to be the first state, without legislative backing, to criminalize talking on a phone while operating a motor vehicle? 2

5 If this Court, based on the facts of this case, holds that cellular phone use (or sheer failure to pay due care ) is blameworthy and/or a gross deviation from the conduct a reasonable person would observe in the situation, it will be overstepping its boundaries and encroaching into the legislature s territory. See N.H. Const., Part I, Article 37 (the three branches ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity ); see also Duquette v. Warden, N.H. State Prison, 154 N.H. 737, (2007) (under the Separation of Powers Clause, each branch is prohibited from encroaching upon the powers and functions of another branch). Without legislative directive, court intervention relative to criminal sanctions for various levels of inattention as a result of common driving distractions would lead to regulatory, administration, education, and enforcement issues, all of which would not be properly instituted by the judiciary branch. Furthermore, statutory and common law precedent provide for non-criminal sanctions relative to negligent motor vehicle operation, so it is unlikely for substantially at-fault drivers to walk away unscathed. In this particular case, Ms. Dion faced civil liability for the accident as well as administrative license loss for five (5) years. Civil claims were brought by Ms. Gonnella as well as the estate of Genny Bassett, and each has already been disposed of. The authority to bring and prosecute criminal charges is not to be taken lightly; justice requires that a certain level of restraint be exercised in doing so. As taking liberties from individuals is a matter of utmost concern, the legislature is tasked with prescribing when to do so, while the courts are charged with enforcement and interpretation. Had the New Hampshire legislature intended for individuals similarly situated to Ms. Dion to serve time in jail, it would have provided so by statute. 3

6 II. It is evident that the lower court did not properly apply the facts of this case to the law; and, the State s responsive brief likewise skirts the issue that forms the basis for this appeal. The basis of the State s argument is that the roadway was a straight shot and the defendant had no excuse for failing to observe the pedestrians in the crosswalk. See generally App. Br. and State Br. Specifically, at trial, the State argued that this case is different from other driver distraction cases because the defendant had at least eleven (11) seconds of visibility prior to the accident (Tr. 227:9-23), but in its appeal documents, the State claims that the defendant had at least thirteen and a half seconds to see Bassett and Gonnella. State Br. p. 5. However, the calculation, whichever figure the Court utilizes, must also take into account the lack of visibility on that almost pitch-black night (in the words of the State s key witness, Elsa Gonnella). See Tr. 25:9-16. Admittedly, given the straightness of the roadway across the bridge, if it was broad daylight, a driver traveling the speed limit may have had eleven (11) or so seconds of visibility; however, at nighttime, visibility is seriously impaired. Add in the fact that just earlier, it had been raining, and contrary to the State s contention, no rational person would consider the area to be well-lit, and the result is a dark night, a spotty windshield and an accident. It is hard to imagine as the State asserts, that Ms. Dion was not looking at the road for eleven (11) to thirteen and a half (13½) seconds and was still driving the proper speed limit, in her lane, not all over the road as she traveled across the bridge, etcetera. What is more likely is that visibility was less than adequate and something occurred, whether within her vehicle or on the roadway, that led to her failure to perceive the pedestrians at the near-end of the cross walk. What happened is truly unknown. See Tr. 208:4-9. 4

7 Aside from the State s unsupported claim that Ms. Dion was on her cellular phone at the time of the accident or was distracted by her conversations, is the impending question of why did the pedestrians fail to see Ms. Dion s headlights? While this question was not bluntly raised at trial level for the defendant s lack of desire to place potential fault with the victims, it is a consideration that anyone hearing the facts of this case would want to know the answer to. Is it possible that the pedestrians saw the car approaching and ran across the street to try and beat it? Or did they stop in the road to tie a shoe or look at a photograph on a phone? The answer is unknown. But, what is highly unlikely is that the pedestrians didn t see the vehicle s headlights approaching, as Gonnella testified. Tr. 41:3. While these possibilities do not relieve the defendant of her responsibilities as a driver, they should be considered in determining whether her conduct was grossly negligent such that would satisfy the culpable mental state for a negligent homicide conviction. The State did not prove the defendant was on her phone at the time of the accident or was so involved in her thoughts that she did not see the pedestrians. It is purely speculative, and the defendant takes exception to the State s representation in its brief relative to the timing of events. In detailing the chronology for this Court, the State asserts that the defendant heard a pop, braked, stopped the car; she still did not know what had happened; then [a]t some point, the defendant hung up her phone, and even though McIntire s voice mail had picked up four seconds earlier, she did not leave a message then she called the police. State Br. p. 6. The evidence does not support this chronology. As stated in the Appellant s Brief, the State was not able to identify what time the accident occurred, and there was NO evidence that the defendant was on the phone at any time after making the turn onto Central Street. App. Br. p To allude to an allegation that the defendant hung up the phone after or during the time in which she 5

8 recognized she was involved in a collision is inaccurate and not supported by the evidence. Furthermore, relative to this same issue, the State claims that the evidence proved that she was on the phone at the time of the collision. State Br. p. 21. Neither the trial transcript nor evidence presented supports this contention. The State contends, a review of opinions cited by the defendant belies her claim that conduct must necessarily be illegal to be negligent. State Br. p. 17. First, notably, the defendant did not claim that conduct must necessarily be illegal to be negligent, but rather summarized New Hampshire cases, and stated that [w]hen convictions were affirmed, the alleged conduct included some illegal activity combined with other relevant factors to each specific case. App. Br. p. 16. Second, a review of the cases does demonstrate that this Court has upheld convictions only when the jury could have found illegal conduct and combined it with other factors. Even in the State s Brief, it cites the same cases as the defendant, and mentions that the jury could have found evidence of illegal conduct and combined it with other factors to convict for negligent homicide. See State Br. pp Specifically, the State cites the following cases and lists the quotation below in its Brief: State v. Ebinger, 135 N.H. 264, (1992): This Court ruled that the jury could have found that a reasonable person, in Ebinger s place, would have seen the victim and avoid hitting her and that it could have combined that finding with the evidence that Ebinger had been drinking on the day of the accident to conclude that his failure to become aware of the risk constituted a cross deviation from the conduct that a reasonable person would observe in the situation. State Br. p. 17 (quotations and citations omitted) (emphasis added). State v. Pittera, 139 N.H. 257, 261 (1994): This Court held that the jury could have combined its finding that a reasonable person, in Pittera s place, would have seen the victim in the water and avoided hitting him, with the evidence that he was traveling rapidly through a cove area containing numerous docks State Br. p. 18 (quotations and citations omitted) (emphasis added). State v. Littlefield, 152 N.H. at 333, 353: This Court found that there was substantial evidence of his intoxication, his attention level while piloting the Baja, the speed at which he operated the boat on a dark moonless night... even it [sic] Littlefield s intoxication while boating was illegal, it was only one factor this Court took into consideration in 6

9 finding that his conduct rose to the level of criminal negligence. State Br. pp (quotations and citations omitted) (emphasis added). State v. Demond-Surace, 162 N.H. 17, 29-30: This Court also said that the jury could have combined that finding with evidence that she consumed alcohol and still emanated a strong odor of alcohol several hours after the accident to conclude that her conduct wrongfully caused the accident alcohol consumption was one factor, among many, for the jury to consider, and it could have determined that her alcohol consumption constituted blameworthy conduct State Br. pp (quotations and citations omitted) (emphasis added). Contrary to the State s assertions, a plain reading of precedent clearly supports the defendant s belief that she was wrongly convicted. In three of the four above-referenced cases, this Court found that the jury could have combined the defendants use of alcohol with other relevant factors to find the defendants criminally negligent, and in the other case, it was excessive speed in a known swimming area. See Ebinger, 135 N.H. at ; Littlefield, 152 N.H. at 353; Demond-Surace, 162 N.H. at 29-30; see also Pittera, 139 N.H. at 261. Furthermore, in reference to the State s allusion to Butts v. United States, 822 A.2d 407, 419 (D.C. 2003) (State Br. p. 20), the State s referenced quotation actually is a quote within the opinion taken from a civil case that discusses civil negligence: King v. Pagliaro Brothers Stone Co., 703 A.2d 1232, 1235 (D.C.1997). Additionally, the defendant in Butts was using a car phone, but more importantly, the government proved that appellant was driving while intoxicated with a BAC more than twice the legal limit, and a toxicology expert explained to the jury the effects that this level of intoxication would have on a person's vision and reaction time. 822 A.2d at 419 (emphasis added). Thus, even the cases that the State cites in its Brief are supportive of Ms. Dion s position that these facts do not support a negligent homicide conviction. Finally, in reference to the recent reversal of the somewhat analogous case from Texas (Jeri Dawn Montgomery v. State of Texas) cited by the defendant in her Brief, the defendant does 7

10 not believe that the reversal bears any weight on the issues under review by this Court. The Texas high court found that the middle appellate court improperly mistook what conduct was alleged to constitute the gross deviation, and held that [t]he gross deviation from the ordinary standard of care was not appellant s use of a cell phone, but rather that appellant made an unsafe lane change and failed to maintain a proper lookout State Br. App. 16. The Court identified the defendant s abrupt unsafe lane change as the grossly negligent conduct, not her use of a cell phone. State Br. App. 13. ( the state has thus shown that appellant, by making an unsafe lane change, caused the death of Wilcox ). The present case is obviously distinguishable from the Texas high court s ruling, as the State s only allegation here is possible lack of attention and/or cell phone use. Here, there is no evidence of other wrongful conduct. Thus, while the Montgomery case is not as supportive as the defendant perceived prior to the reversal, it does not hurt Ms. Dion s case on appeal. CONCLUSION For the reasons stated herein and in the Defendant s Brief of April 2, 2012, the defendant-appellant respectfully requests that the Court reverse the lower court s verdict. Respectfully submitted, Lynn Dion By and though her attorneys, Dated: July 18, 2012 Allison M. Ambrose, NH Bar No Wescott, Dyer, Fitzgerald & Nichols, PA 28 Bowman Street Laconia, NH Tel: (603) Fax: (603)

11 CERTIFICATION I hereby certify that on this 18 th day of July 2012, two true and complete copies of the foregoing Reply Brief of Lynn Dion, Appellant, were mailed, postage prepaid, to the following: State of New Hampshire, Office of Attorney General; and one true and complete copy to: Rachel Harrington, Esq., Assistant County Attorney; and the Merrimack County Superior Court. Allison M. Ambrose, NH Bar No