Judge right to dismiss homicide indictment, Justices rule

By Steve Korris | Nov 16, 2007

CHARLESTON – Pine logs rolled off a truck and killed a woman, but according to the West Virginia Supreme Court of Appeals that doesn't make the truck driver a criminal.

All five Justices agreed Nov. 8 that Circuit Judge Andrew Frye correctly dismissed a Mineral County grand jury's negligent homicide indictment against James Butler in the death last year of Melissa Pennington.

Butler no longer faces prison time, but he did not escape responsibility. According to the Court's unsigned opinion, a civil action was filed and settled.

"Pursuit of this matter in the civil context is entirely appropriate," the Justices wrote.

Quoting an earlier decision in a similar case, they wrote, "We are also mindful that the result of the collision was disastrous, capable of giving rise to understandable outrage in a community properly grieving ..."

Butler's load shifted on a curve with an advisory limit of 25 miles per hour. He told an investigating officer he was going 35 to 40. A witness said he saw the truck going 70 to 75, prior to navigating the curve.

An accident reconstruction officer estimated that Butler drove 32 to 41 miles per hour.

"Mr. Butler was operating his vehicle in an unsafe manner by exceeeding the advisory speed limit," the officer wrote. "Due to the size and weight of Mr. Butler's vehicle, Mr. Butler should have operated the vehicle within the advisory speed limit."

Mineral County prosecuting attorney Lynn Nelson adopted the report and told grand jurors the logs might have been improperly loaded.

Grand jurors indicted Butler this January, on a single count of negligent homicide. The charge requires reckless disregard for the safety of others.

In West Virginia, the standard of evidence for negligent homicide in a motor vehicle is compatible with the standard for involuntary manslaughter.

Butler moved to dismiss the indictment. Frye granted the motion.
Nelson appealled, arguing that Frye exceeded his legitimate powers by dismissing the indictment before presentation of evidence to a jury.

At oral arguments before the Justices on Oct. 23, Nelson offered no evidence that Butler loaded the logs improperly.

Chad Cissel of Keyser, representing Butler, urged the Justices to follow a precedent they set earlier this year in State v. Green.

The Court held in Green that, "A conviction for negligent homicide must not be premised solely upon the violation of a traffic statute unless the underlying act which constitutes the violation or accompanying circumstances evidence a reckless disregard for the safety of others, characterized by negligence so gross, wanton and culpable as to show a reckless disregard for human life."
Cissel's argument prevailed.

"The evidence in this case is quite limited, and the State was unable to specify any evidence, other than the alleged excessive speed, which would indicate disregard for the safety of others so gross, wanton and culpable as to show a reckless disregard for human life," the Justices wrote. "... evidence in this case could establish that Mr. Butler, while attempting to navigate a turn in his tractor trailer, was operating the vehicle at a speed in excess of the recommended speed, but not over the lawful speed limit for the highway.

"... evidence would further support a finding that the load of logs attached to Mr. Butler's tractor trailer shifted during thecourse of the turn, causing the truck to overturn and propel the logs into oncoming traffic.

"The evidence, however, would not support a finding that the load of logs was improperly secured or that any act or omission of Mr. Butler constituted more than ordinary negligence.

"Though Mr. Butler's act resulted in tragic consequences, his failure to heed the posted speed suggestion, without more, does not constitute criminally negligent homicide."

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