[civil suit finally settled] Rumsey guilty of manslaughter

[ UPDATE May 2012: Final awards in Jose Rincon's civil lawsuit after a trip to appellate court; azstarnet.com (though their links seem to regularly go dead). Note that the original award of $13 was the LARGEST judgement ever against the city:

...Chuy's settled before the February 2010 civil trial for an undisclosed sum. During the trial, jurors were told that a city engineer had abandoned plans to add five feet of asphalt to the roadway during an improvement project, creating a large offset in the lanes on either side of Vozack Lane, just east of Harrison. As a result, Rumsey ended up in the bike lane when her lane ended and she tried to merge.

The jury decided Rumsey, the city of Tucson and Chuy's were equally responsible and awarded $40 million to the Rincon family. The city's $13 million share was the largest individual judgment ever against the city. The city appealed, and Pima County Superior Court Judge Kenneth Lee denied the motion for a new trial but granted the defendants' request for a reduced judgment, slashing the judgment to $12 million.

The city then went to the Arizona Court of Appeals, and it decided in March 2011 that the case should be retried. The Rincons settled with both Rumsey and the city recently.

The settlement with Rumsey is confidential; the settlement with the city specifically states the city was making "no admission of liability, culpability or fault, either by expression or implication." .... Back when Lee reduced the $40 million judgment, Rincon said he and his wife had agreed to settle the lawsuit for $950,000 before trial, but the city refused. He bemoaned the fact that because the public didn't know the city hadn't accepted the settlement offer, residents were under the impression he and his wife were "money-grubbers."...

The city's appeal is online at justia.com RINCON v. RUMSEY, CITY OF TUCSON, contains some interesting stuff. (it should also be online via court-of-appeals div 2 website, but i haven't looked for it there). Note that the superior-court appeal upheld the trial judge; while the court of appeals found the trial court judge (and thus the superior court appeals judge) erred.

]

Glenda Rumsey was found guilty of manslaughter in the death of Tucson teenager Jose Rincon.  (see here for a roundup of types of murder). Like many drunk drivers, she also tried to run. Read the rest of this entry »

Oft-delayed Foshee Trial to begin

[There is a Notice of Appeal dated on publicaccess  dated 4/25/2012]

[SENTENCING finally actually happened 4/18/2012; the matter is finally (hopefully) put to rest.  According to my correspondent, Foshee received 10.5 years for manslaughter 6 years each on the endangerment, 22.5 years, but to be served concurently so 10 1/2 years, TOTAL, which is the presumptive sentence for manslaughter all by itself, a dangerous class 2 felony (see 28-704). Off-hand, not knowing all details and back-story -- this seems too light given the hit-and-run, the other aggravating circumstances, the prior DUI conviction, and the (I presume) rejection of a plea deal. In short, it seems to me the justice system is sending many wrong signals here, for example it appears that, once again, there is no penalty whatsoever for hitting-and-running. You can read the sentencing case minute here. ]

[Updates from case minutes 3/28/2012: The motion for a new trial has been DENIED.  And separately, on the Defendant’s Motion, the defendant has been found to be indigent. I assume this has something to do with lawyer's fees. Sentencing remains scheduled for 4/6/2012]

[Sentencing Update; 3/23/2012 -- to the surprise of probably no one, sentencing did not occur as scheduled. The defense has filed a motion for new trial (here is the case minute, but it doesn't explain anything), the prosecution has until 3/23 to respond. The sentencing has be re-scheduled for 4/6/2012]

[breaking news update: 2/14/2012 -- guilty on all counts / and all counts are "dangerous"; the jury in a seperate phase found the charge to be aggravated (will make sentencing, scheduled for March 23, harsher). Man guilty of manslaughter in bicyclist's death, Jim Walsh. Here is the verdict case minute, it is quite detailed ]

The manslaughter trial stemming from an incident where a cyclist was killed in August of 2009 is actually going to trial 1/30/2012 after many delays — yes, that was almost two and half years ago!

My correspondent told me that jury selection did begin on Monday.

According to police, issued to the media, at the time:

• A WB driver crossed over into the EB lane and collided head-on and killed Russell Jenkins
• “The rider…  had a working headlight on his bike”
• “The surviving cyclists … reported that Foshee had a strong odor of alcohol”
• “The driver fled the scene, but the Maricopa County Sheriff’s Office Traffic Unit later arrested Gary Foshe [Foshee], 53″
• “two deputies reported that Foshee had a strong odor of alcohol and several signs of intoxication”

The defendant’s prior DUI conviction, as well as his blood test results are likely to be key factors. On the other hand, the issue of the victim’s posthumous blood test results is, from what i can tell, irrelevant because it did not affect the crash in any way.

Much more background here and here.

Hit and Run in Arizona

Hit and Run (H&R), also called leaving the scene, failure to stop, fleeing the scene, occurs anytime a driver is involved in a collision, and fails to fulfill their duties. These duties include, first and foremost, stopping, and remaining on the scene in order to complete both paperwork-type things like exchange identification, and also include a duty to “render reasonable assistance…” to anyone injured.

>> AN ASIDE: imposing a duty to render aid under pain of imprisonment is a fairly unusual thing under the law. perhaps there’s some latin phrase? to put it another way, most criminal laws specify what things people must not do, not what they must do <<

It will come as no surprise that bicyclists and pedestrians are over-represented as victims of H&R drivers. For example, 24% (6 of 25) of the cyclists killed in Arizona in 2009 were H&R victims (Manner and Fault in Bicyclist Traffic Fatalities: Arizona 2009). I can’t find a bicyclist national figure?? should be an easy extract from FARS. Likewise, pedestrian-victim H&R rates are high, 18% nationwide using 1998-2001 FARS data ( DOT HS 809-456 2003). By contrast, only >> 1 or 2% <<  of  motorists killed are victims of a H&R driver (should be an easy extract from FARS data? I developed the guesstimate from AAA factsheet: “Nearly 1,500 people die annually (1994-2003) in hit and run crashes… Approximately 6 in 10 fatally injured victims are pedestrians” )

H&R is highly correlated with other illicit behavior, such as DWI/DUI and driving on a suspended or no license.  And alarmingly, things are trending worse: “Between 1998 and 2007, while the total number of annual pedestrian deaths decreased, the proportion of hit-and-run pedestrian deaths has in fact increase” ( Factors associated with hit-and-run pedestrian fatalities and driver identification MacLeod, 2009).

Recognizing that H&R is a particularly odious and cowardly crime, the penalties can be significant. For example, in the case of a serious injury or death, the crime is a class 2/3 felony (2 if the fleeing driver caused the wreck, 3 if not). To put that in perspective, manslaughter is a class 2 (see roundup of homicide types). Below are excerpts involving H&R involving serious injury and death.

Felony   Mitigated  Minimum    Presumptive Maximum   Aggravated
Class 2  3 years    4 years    5 years     10 years  12.5 years
Class 3  2 years    2.5 years  3.5 years   7 years   8.75 years
Class 4  1 year     1.5 years  2.5 years   3 years   3.75 years
Class 5  .5 years   .75 years  1.5 years   2 years   2.5 years
Class 6  .33 years  .5 years   1 year      1.5 years 2 years

So, in summary, it sounds pretty harsh: somewhere around 3.5 or 5 years in prison, which must run consecutively to any other sentence imposed, and a 5 year driver’s licence revocation. The prison sentence can vary widely depending on if there are any prior felonies, or mitigating, or aggravating factors. There are even long penalties for the same class of felony as specified in §13-704, if the offense is deemed “dangerous” (it’s not clear to me how that distinction is made) — e.g. the presumptive, first time offender for a dangerous class 2 is 10.5 years.

…

Reality Intrudes

I don’t have any way to extract statistics on sentencing, but it seems like i’ve been noticing case after case with very light sentencing for H&R so here goes the anecdotes.

Cody Ryan Davis Case

Case CR-2010137585 in Maricopa County Superior Court. On July 10, 2010 Moto-cyclist Bradley Scott was killed while proceeding straight through a green signal, “Police (said) video shows Scott was legally riding a bicycle with the flow of traffic”. Hit-and-run driver Cody Ryan Davis was arrested about a week later and subsequently plead guilty in a plea agreement. The main element was a guilty plea to leaving the scene, a class 3 felony. As I read the sentence, he received 1 year (to be served in county jail, not prison; oh, and it includes work release), 3 years of probation, and a handful of seemingly small fines. I don’t know how the 5 year license revocation works, but i am hoping it is automatic, the agreement doesn’t say anything about it. I am told by a source familiar with these matters that this is a pretty standard deal (suspending the sentence).

So I have a bunch of questions: Why a class 3 and not a class 2? It certainly appears Davis was at fault in the collision. But setting that aside, how in the world do they get 1 year for a class 3 felony? 13-702 seems to clearly indicate that no less that 2 years is legal — and that would be including mitigating factors, of which I don’t think there are any; none are mentioned in the agreement.

Was Davis DUI at the time? There is this mention of alcohol in the agreement, during probabtion Davis may “Not consume or possess any substances containing alcohol”. So since Davis fled and hid out for days, nobody knows legally whether he was or wasn’t. As mentioned previously, H&R drivers are highly correlated with DUI  (MacLeod, 2009). In the event that Davis was DUI, he clearly made the right decision to flee — the DUI would have led to a manslaughter charge (5 years presumptive. And that’s in prison, not county,  and no work release AFAIK).

But that was the whole point in stiffening the penalties for H&R, to remove the incentive to flee.

Nathan Tom Bartley Case

The lead in the yumasun.com story says it all:

The driver in a hit-and-run accident that killed a 15-year-old Yuma boy earlier this year (1/13/2011) will receive probation instead of prison under the terms of a plea agreement.

Nathan Tom Bartley, 18, an Arizona Western College student and football player at the time, pleaded guilty Friday in Yuma County Superior Court to one count of attempted obstruction of criminal justice and one count of tampering with physical evidence. The plea agreement stipulates that he be sentenced to a term of probation.

In return for his guilty plea, a charge of failure to stop at the scene of an accident involving a fatality was dismissed.

This deal was cooked up by the LaPaz County Prosecutor because of a conflict within the Yuma County’s office — the deal, of course had to have been blessed  the (Yuma County Superior) Court. Case number CR-201100131, the case minutes with the actual plead deal aren’t up yet. Since the leaving-the-scene charge was dismissed, that means no license suspension. Nice.

…

HIGH PROFILE CASE, still developing: Sam Abate was seriously injured while riding his bicycle in Tucson, the driver fled the scene. Police arrested Abigail A. Allin several days later. The defendant is supposed to enter a plea today (7/29/2011).

Gary Foshee

Convicted of manslaughter plux 2x endangerment; sentenced to 10.5 years in the death of Russell Jenkins, the hit-and-run and/or additional aggravating circumstances were nowhere to be found in sentencing. I don’t know why.

Legislative History

Over the years, the H&R statutes hadn’t changed much.  Then relatively recently, legislators recognized the problem that weak penalties for H&R, especially compared to DUI penalties, were encouraging motorists involved in collisions to flee the scene. As a result, penalties were increased twice in the recent past. In 2002, Forty-fifth Legislature Second Regular Session, Chapter 228, added the part about making the prison sentence consecutive (in addition to, as opposed to concurrent which is really like getting no penalty at all) and other penalty. It also added that lengthy license revocation period. “Representative Foster, sponsor of the bill, stated that the law right now requires you to stay and render aid if there is injury or potential death. However, those laws are not being enforced.”

Penalties were increased again in 2007, 48th Legislature, 1st Regular session, Chapter 154 the criminal category of the crime was increased by one across the board. This, for example, elevated a hit and run resulting in a fatal or serisous injury to a class 2 (same as manslaughter!), which is where we are today. There was little discussion and the bill passed unanimously according to the minutes of both house and senate transportation committees.

…

The site deadlyroads.com is a pretty good resource, unfortunately, the site doesn’t seem to be updated but still has some well written essays and background info.

Arrest made in hit-and-run of Tucson cyclist

Hit and runs are always awful. This one from Tucson May 20, 2011 seems especially so. Police arrested a young woman four days after the crash, Abigail A. Allin, 21. There is a lot more info supplied by Sam Abate’s father over on tucsonvelo.com.

Hit and run can sometimes be hard to prove, but fortuitously a driver matching the description triggered a red light camera nearby before striking Abate: ”"The woman driving, talking on her cell phone, weaving in and out of traffic, and caught moments earlier by the red-light camera”. I am a big fan of photo-red enforcement. (see this murder case that was solved in part with photo-red evidence. Photo evidence was also instrumental in arresting a suspect in this cyclist hit-and-run killing)

One hopes the prosecutor will be seeking the bad driving involved — and not just the hit-and-run. The hit and run came after the collision; the bad driving before certainly seems like reckless driving, or some sort of assault.

Abigail Allins has a traffic case TR-10037413 from April 2010 for running a red light and no insurance for which she did not appear — which is probably where the “driving on a suspended license” is coiming from.

Plea Deal Pulled

fox11az.com reported on July 27th that the prosecutor has withdrawn an unspecified plea deal for unspecified reasons. The defendant is scheduled to enter a plea on July 29th — I’m not sure exactly what charges have been filed because it’s not up on caselookup and strangely I don’t see anything at Pima County Superior Court (or its search page). It was reported earlier charges would be felony hit/run, endangerment, and tampering with evidence.

No news as of Aug 3…

Inmate lookup results:

NAME: ALLIN, ABIGAIL ALETA DOB: 10/24/1989 AGENCY HOLDS: NO

LOCATION: JAIL-EAST-1Q BOOKING#: 110525005 CHARGES: 3

COURT: JUSTICE COURT #1 CASE#: CR11107610A <--- 1

BOND AMT: $ 75000.00 TYPE: Secured

Moto-cyclist killed in Tempe hit-and-run

In an update to this July 2010 story, as the City of Tempe prepares to turn off its photo-enforcement effective July 19, 2011, police mention that those very photos were instrumental in capturing the suspect, Cody Davis, who fled the scene. See Police: Photo enforcement’s impact goes well beyond traffic infractions from the EVtrib.

UPDATE: Police arrest suspect 7/17/2010 [abc15] “Tempe police say Cody Ryan Davis has been charged with leaving the scene of a fatal accident in the death of Bradley Jason Scott, 32, Read the rest of this entry »

Odd Phoenix Hit-and-run story

Are police even looking? Having a mirror is enough to narrow the field dramatically as it tells you not only the make (said to be a Kia), a specific color (silver) and typically even the particular model and specific model-year.

But are police even looking? Why is the mirror — obviously a key piece of evidence — in the possesion of the victim, and not of the police?

Did the police really say that? It sounds as if the PIO wasn’t available for comment so whoever answered the phone down at hq threw in his two cents. Read the rest of this entry »

Cash for Clunker killer sentenced

52 year old cyclist Charles Waldrop was killed by a hit and run driver who witnesses say was driving at a high rate of speed and swerving. Police say an anonymous tip lead to the apprehension and arrest of  23 y.o. Timothy Kissida after he traded (via the “Cash for Clunkers” program) a light blue 1992 BMW 325i w/damage consistent with hit-and-run.

Kissida plead guilty to manslaughter and was sentenced today, drawing 10.5 years in prison (which is the presumptive sentence for a class 2 felony, see 13-704). The leaving the scene charge resulted in some sort of suspened sentence w/probation.

Case number CR2009-007394, the sentence is in this minute entry.

[azfamily] [original story on azbikelaw]

Driver Sentenced: Bullhead City cyclist killed in hit-and-run

Larissa Jean Castilleja

Larissa Jean Castilleja, 43, a Bullhead City High teacher was killed Sept 9, 2009 when a driver hit her and fled the scene.

This fatality bears many similarities to several of four recent fatalities in the Phoenix-metro area this past summer.

1. the automobile driver hit-and-ran (all 5 incidents)
2. DUI on the part of the automobile driver is suspected (at least 4 of the 5 incidents)
3. time of day was overnight/early morning (ranging from 10pm to 4am)
4. no improper actions on the part of the cyclist are suspected (all 5 incidents)

The suspect was later charged with manslaughter and leaving the scene, on Sept 28 he plead not guilty; and according to the Mojave Daily News, has secured himself  all-star Scottsdale DUI lawyer Scott Maasen. In granting the reduced bond, the judge expressed reservations and then … did it anyway! It was also revealed in that story that the defendant has an outstanding warrant for DUI in Nevada, which he says he is not aware of.

The Plea

The defendant plead guilty to manslaughter, leaving the scene, and DUI. Sentencing is scheduled for May 21, 2010. Case number S-8015-CR-200900986, online lookup.

Sentencing

The [mohavedailynews] had a pretty good rundown of the sentencing:

Judge Steven Conn sentenced Gagliardi to prison for 13 years for both felony crimes (8 for the manslaughter, 5 for hit-and-run), saying the two charges were separate crimes and deserved consecutive sentences. He only found a lack of criminal record as a mitigating factor and that Gagliardi also had about 20 moving violations, mostly for speeding. He found aggravating factors that Gagliardi’s blood alcohol rate was more than twice the legal limit and the emotional harm to Castilleja’s family. The judge also said he hoped the sentences would be a deterrent to people who visit the casinos and drink then get into their cars to drive home.

see also [kingmandailyminer].

Read the rest of this entry »

Driver found guilty: South Phoenix Hit-and-run

7/11/2009: location listed only as “South Phoenix”,  in the early morning hours of Saturday,  hit-and-run. Police apprehended Max Ramiro Garcia, 33, in an unrelated traffic stop (speeding). ( azcentral.com,  KPHO). was charged with manslaughter and leaving the scene in the death of cyclist Robert Flakes; Superior Court Case Number CR2009-145409.

He’s had a bunch of civil traffic cases over the years, search supremecourt.az.gov and justice court.

This is one of a chain of similar fatal hit-and-runs in Phoenix that occurred in summer of 2009.

The Trial and Verdict

The defendant is charged with manslaughter, endangerment, and hit-and-run w/death. And case went to a full-blown trial (sort of unusual), which lasted seven days. I have no idea what went on, or what was the nature of the defense.

The Verdict came in on 5/13/2010. the defendant was found guilty of Neg Hom ( a lesser charge, one notch down from manslaughter), and endangerment. The jury also found those two to be “dangerous” offenses, which factors in to sentencing.

The jury also found the defendant guilty of leaving the scene of a fatal, but (strangely?) found that it was “not proven” that he caused the collision.

Sentencing is scheduled for 6/17/2010.

2009 AZ Cyclist Fatality Grid

[verdict] Fatality in Tucson — driver was reportedly “weaving”

[Verdict April 12, 2010] The driver who killed Drake Okusako plead guilty, and received a 4-year prison sentence. “On March 1 he (Segebartt) entered guilty pleas before Pima County Superior Court Judge Deborah Bernini to the leaving the scene charge and a reduced negligent homicide charge” Read the rest of this entry »