Tag Archives: cyclist fatality

[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. Continue reading [civil suit finally settled] Rumsey guilty of manslaughter

Oft-delayed Foshee Trial to begin

[Link to all case minutes for CR2009154132;  Direct link to case on Maricopa Co Superior Court ]

[ The old format, the one linked thru caselookup, no longer works and throws  a 500/internal server error. e.g: www.courtminutes.maricopa.gov/scripts/meeds/qreturn.asp?casenumber=CR2009154132 ]

[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 concurrently 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.

[UPDATE added August 2014; i was unaware that the AZ supreme court publicaccess lookup does NOT include any Maricopa County Justice Courts. Searching justice courts turns up more brushes with the law; though the outcomes aren’t searchable (you would have to call the court), including a criminal traffic violation filed in San Tan Justice Court in March of 2010 where he was represented by the same attorney that handled his manslaughter case]

Much more background here and here.

The Court of Appeal’s decision

In an unpublished Memorandum Decision; Arizona v. Foshee,  No. 1 CA-CR 12-0249 filed 1/30/2014 The Arizona Court of Appeals upheld the trial court’s findings. Foshee asserted three errors

  1. Foshee contends the trial court erred when it granted the
    State’s motion to exclude evidence of methamphetamine in the decedent’s system: “At a pretrial hearing on the State’s motion to exclude, a forensic toxicologist testified there were ‘trace’ amounts of methamphetamine and one of its metabolites in the decedent’s blood. The amount present was similar to that one would find in a person who had taken a medically prescribed form of methamphetamine for weight loss. Further, the decedent ingested the methamphetamine at least six hours before his death. The toxicologist testified that due to the amount of methamphetamine in the decedent’s system and the amount of time that had passed since its ingestion, the decedent was not impaired at the time of the incident.” Furthermore “there is nothing in the testimony of the two witnesses he (Foshee) identifies to even hint the decedent was negligent, let alone impaired” [see footnote]
  2. Foshee asserts the trial court erred when it allowed an expert
    witness to testify that Foshee’s blood alcohol concentration (“BAC”) two hours after the incident was between .144 and .194. The defense’s expert disagree; however both experts were permitted to testify — allowing to the jury to decide that matter of fact.
  3. Foshee argues the trial court erred when it admitted evidence of his prior conviction for driving under the influence.

The CoA found no error.

FACTS OF THE CASE

Foshee left a bar sometime before 2:00 a.m. on the morning
of August 15, 2009 after the bar refused to serve him further and security personnel asked him to leave. At some point after he left the bar, Foshee drove his pickup truck east on a two-lane road. Ahead of Foshee on that same road, three men on bicycles rode west on and/or near the shoulder of the westbound lane. The decedent and at least one of the other cyclists had lights on their bicycles.
Shortly after 2:00 a.m., Foshee drove east in the westbound
lane to overtake and pass another eastbound vehicle. Once he passed the vehicle, Foshee drove down the center of the road. Foshee then moved into the westbound lane again, possibly to attempt to pass another eastbound vehicle. Regardless of the reason, Foshee drove towards the three cyclists as they rode west on or near the shoulder of the westbound lane. At some point in the sequence of events, Foshee swerved left and then right. Two of the cyclists turned right to avoid being struck by Foshee’s truck. The decedent, however, apparently turned left. Foshee struck the decedent with the right front corner of his truck…

One thing not present in the FACTS recited is any mention the incident was a hit-and-run as was stated by police in the media.

PCR (Post Conviction Relief)

[Updates Aug 2014: some PCR (post conv relief) line items popped up. 8/12/2014 minute refers to a “Rule 32” proceeding; appears to have a public defender appointed to prepare pcr stuff]

From what i can tell from case minute 02/13/2015 all possible PCR has been exhausted.

Footnotes

On the inadmissibility of victim’s impairment as unduly prejudicial under Rule 403 see

  • State v. Krantz, 174 Ariz. 211, 213, 848 P.2d 296, 298
    (App. 1992) (excluding the victim’s alleged use of methamphetamine), which was cited in the Foshee Court of Apeals decision, above. But, for contrast, see also:
  • the unpublished State v. Aguilera (victim’s BAC should have been admitted). In this case the drunk driver’s aggravated assault conviction was tossed; the defendant asserted the victim was driving his motorcycle too slowly, and that the motorcycle’s taillight was “weak”; and so it was okay to drive into the back of the motorcyclist. There were also three other interesting discussions, that weren’t relevant to the 403 issue: failure to instruct the jury on a) causation, b) superceding causation, and c) lesser included offense. [Since inquiring minds want to know… Aguilera ultimately plead guilty in a deal to non-dangerous agg assault, see case minutes for CR2007008373, 1/14/2011 (I can’t find the sentencing minute? the last case minute implies he did go to prison. I would think the non-dangerous classification would have yielded a suspended sentence / probation)]

Bad weekend in Scottsdale

Adot Incident 2609053 Update / FINAL on cyclist McCarty death: azcentral.com  The motorist who killed Shawn McCarty was fined a total of $420 (and the case is apparently closed). Regardless, It would appear that $420 is the “normal” fine schedule that anyone would pay. That would mean that the enhanced fine for 28-735 (section B) was exactly ZERO. How can that be? Would a judge or magistrate actually make that decision, or it is some sort of court “bug”?
§28-735B: “If a person violates this section and the violation results in a collision causing… Death to another person, the violater is subject to a civil penalty of up to one thousand dollars”. Here’s another one from a different jurisdiction, Green Valley, from a couple of years ago, again, as far as i see there was no enhanced penalty.
There are a series of stories by blogger Ray Stern of the PhoenixNewTimes; amy_alexander_case_of_killed_bpolice_reportPays $420 fineInattention Cops Say. In particular, the police report offers no explanation other than “inattention”; and a claim by police that cell phone use was not involved

Police tend to pay too much attention to the 3-foot law and not enough to Failure to keep proper lane, which would trigger a 28-672 charge; which should have been charged in this incident, according to the description of the collision, the motorist drifted between lanes  ]

Ped fatality Saturday, Cyclist fatality Sunday

(3/10 and 3/11). A handful of interesting points: each driver was cited within a day or two of the incident. In the case of the pedestrian mowed down in a crosswalk, the driver was also cited for 28-672 (causing death by violation) which is a criminal (albeit a minor misdemeanor) charge. In the case of the cyclist, according to blogs.phoenixnewtimes.com the driver was cited for violating the 3-foot rule (28-735) and driving in a bike lane (28-815D) [this can be looked up on the Scottsdale muni court: it is TR-2012006430 and the fine was $210 for each — the city apparently didn’t bother with the enhanced penalty for death, 735B]. The police aren’t letting on why the driver so distracted that she was driving in the bike lane (and yes, it’s a real, full-fledged, designated bike lane), other than to say the investigation is continuing. As I pointed out in double-jeopardy-and-flawed-logic it’s unusual (around Arizona) to issue any citations until the close of investigation and getting the go-ahead from a county prosecutor — apparently Scottsdale does things differently.

It is gratifying to see Scottsdale issuing the 28-672 charge when appropriate… I have no way to check this but it seems way under-utilized. In the end, though, it may be little more than a slap on the wrist, see e.g. this case where it seems to have merely amounted to a $200 fine — hardly a behavior-changing penalty. Last month, Scottsdale also charged a driver making a bad left with 28-672 which resulted in the death of a boy riding legally in the crosswalk (a la Maxwell v. Gossett).

Pedestrian: Judith May, 69 / driver: Frederick Matschull, 72; Case TR-2012006196

Cyclist: Shawn McCarty, 53 / driver: Amy Alexander, 40; Case TR-2012006430.

lookup Scottsdale Municipal Court records by case number at scottsdaleaz.gov.

Continue reading Bad weekend in Scottsdale

Foshee Trial delayed again again again

[Trial actually, finally begins: oft-delayed-foshee-trial-to-begin ]

The manslaughter and endangerment trial of Gary Foshee in connection with a fatal traffic collision in August of 2009 has been delayed again and again and again.Trial was originally set for 5/24/2010; however it was reset because “Defendant needs additional time for expert to complete investigation…” (this was 9 months after the incident), so was first delayed to 7/26/2010.Then for some reason that was delayed.

Then the trial set for 9/28/2010 was missed: “Defense counsel orally moves to continue the Trial. Defense counsel’s expert witness will not be available to testify at the Evidentiary Hearing…”.

Then there’s a whole bunch more motions and case minutes.

The case minute dated 5/16/2011 which re-sets the pre-trial conference to 5/18/2011, at which time i suppose the trial date will get set (again). “Due to the unavailability of Defense witness”. Trial was then set for August 15, 2011 (! exactly 2 years after the incident).

Oops, another delay  (for seemingly unspecified reasons by the state; the defense did not object), make that trial date of 10/4/2011.

Oops Oops again another delay  (again, for seemingly unspecified reasons by the state; the defense did not object): new trial date 11/28/2011.

Oops, oops, another delay, another new trial date “The Court finds that delay is indispensable to the interests of justice… A defense expert is not available. IT IS ORDERED granting the Motion to Continue … resetting the trial to January 23, 2012“.

Some background information and media reports about the incident which occurred 8/15/2009: Queen Creek hit-and-run; driver arrested Continue reading Foshee Trial delayed again again again

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, Continue reading Moto-cyclist killed in Tempe hit-and-run

Manner and Fault in Bicyclist Traffic Fatalities: Arizona 2009

Most at Fault driver / bicyclists collisions Arizona 2009Abstract

Traffic records for all bicyclist fatalities occurring in Arizona during the year 2009 were categorized and listed according to manner of collision and assignment of fault. Primary results are that 11 of 25 fatalities (44%) were determined to be the fault of the cyclist; while 14 of 25 (56%) were the fault of a motor vehicle driver. The most common manner of collision is when a driver strikes a cyclist from behind.

Full Report

The full report is available in pdf format:
Manner and Fault in Bicyclist Traffic Fatalities: Arizona 2009
Supporting data: 2009CyclistFatals.xls

Comments or questions may be left here, or contact me.

There were some somewhat out-of-context statements about my report on the npr.org health blog. They probably should have mentioned that the report covers only FATAL bike-MV collisions (a tiny fraction of all bike-MV collisions), and that the manner of collision in fatals varies significantly from non-fatals.

Continue reading Manner and Fault in Bicyclist Traffic Fatalities: Arizona 2009

Arizona bicyclist fatalities 2003-2006

How did I miss this one?

Should State DOTs Prefer Bicycle Lanes or Wide Curb Lanes? A.L. Dennison, 2008 [.pdf] This report was produced for ADOT in cooperation with US DOT/Federal Highway Authority.

Bicycle facility advocates have long debated the respective merits of bicycle lanes (BLs) and wide curb lanes (WCLs); this report investigates their claims… This study found no apparent relationship between fatal bicycle/motor vehicle collisions and type of bike facility… A significant handicap to any analysis of bicycle travel or safety is the paucity of reliable data.

Of great interest to me was the categorization of bicyclist fatalities over a four year (2003-2006) period, based on police reports. Somehow I missed this report entirely even as I echoed its complains about the “paucity of reliable data” for cyclist/traffic collisions while researching Manner and Fault in Bicyclist Traffic Fatalities: Arizona 2009.

According to my (from ADOT’s Arizona Crash Facts) records there were 15, 27, 35, 30 fatals in 2003, 2004, 2005, and 2006, respectively. This totals 107, but the report says that “We obtained 85 (97%) of 88 microfilmed fatal bicyclist/motorist crash reports submitted to AzDOT by police agencies in Arizona between 2003-2006”. The missing 3 (88-85) are explained in a footnote. But one wonders, where are the other 19? (=107 – 88). Does that mean that not all fatalities are submitted to ADOT? … so the answer i am told is that it covers the time period 17-Oct-2003 to 25-Sept-2006, which makes sense.

 

Is it illegal to ride a motorized bicycle on the sidewalk in Phoenix?

Story from the Arizona Republic; I copied the whole thing because it was only a few sentences long (my emphasis added):

Woman dies when motorized bike collides with car in Phoenix
by Jack Highberger – Jan. 20, 2011 12:26 PM The Arizona Republic-12 News Breaking News Team
A 53-year-old woman died Tuesday night (1/18/2011) when her motorized bicycle collided with a car on Dunlap and 25th avenues.
The woman was driving the motorized bicycle on a sidewalk when she entered the crosswalk and collided with the car, said Sgt. Tommy Thompson of the Phoenix Police Department.
She was not wearing a helmet at the time of the collision.
She was taken to the hospital where she later died. The driver of the car, who is also a 53-year-old woman, was not charged by Phoenix police. Authorities said it’s illegal to operate a motorized vehicle on a sidewalk.

First off, let me say that this type of collision is pretty common, and it is exactly why sidewalk cycling, motorized or not, is not recommended. But is it illegal? Continue reading Is it illegal to ride a motorized bicycle on the sidewalk in Phoenix?