Originally published in The Akron Beacon Journal

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Monday, January 12, 1998



Beacon Journal staff writer

A bicycle pulls out of a driveway. The car ahead slams on its brakes, barely avoiding a collision.

You're not so lucky. The screech of rubber against road ends in the sharp clash of mangled metal.

Most of the time the damage would be measured in dollars. This time, someone in the car ahead is thrown the wrong way. A head strikes a door pillar.

A fender-bender is transformed into a fatal crash.

Criminal prosecution is possible. But unless you were drunk, on drugs or drag racing, the most serious charge would be a misdemeanor.

That's true in every state in the nation except one: Ohio. Since 1994, motorists in Ohio who commit even minor traffic violations involving fatal crashes can be charged with involuntary manslaughter, a felony punishable by up to five years in prison.

That stiff penalty isn't what makes Ohio's law so different. Ohio's aggravated vehicular homicide statute carries the same potential punishment. But to convict under the older law requires proof of recklessness.

Ohio drivers who were only negligent in causing a death formerly faced a lesser charge -- vehicular homicide, a misdemeanor punishable by no more than six months in jail.

But Ohio's newer statute requires neither recklessness nor negligence. Simply showing you committed a traffic offense that resulted in a death is sufficient.

The law making that possible was passed in August 1994 with little debate or publicity. Some local prosecutors, including two in Summit County, weren't aware of it. Many county prosecutors, including Stark's Robert Horowitz and Medina's Dean Holman, have chosen not to use it. In the handful of counties where it has been used, the law was challenged and at least three judges have ruled it unconstitutional.

But until the Ohio Supreme Court takes up the issue, prosecutors face a difficult question: Should they enforce a law that may be fatally flawed?

Four months ago, city prosecutors in Akron and Barberton decided they should. The result has been felony indictments against four people:

Gino S. Cucuzza, 61, of Akron, a Metro driver charged in the death of a 75-year-old passenger struck by the bus after she got off.

-- Douglas R. Manhart, 22, a Lakemore mechanic who sideswiped a car while changing lanes, setting off a fatal chain reaction.

-- Tracy L. Stalnaker, 26, a Uniontown mother who turned into the path of a motorcyclist.

-- Lorenzo L. Hayes, 26, of Akron, who also struck a motorcyclist.

The story of how a four-word amendment to an existing statute resulted in those indictments illustrates how well-intentioned legislators in Columbus can fail to anticipate the effects of their actions.

'Sound discretion'

The legislators responsible for the law never intended the revised statute, with its stiff felony penalties, to be applied across the board to traffic fatalities where the only cause might be negligence or carelessness.

The lawmakers say they were counting on local officials to use the law selectively.

"Hopefully, the prosecutors will use their sound discretion," said Scott Baughman, legal counsel for House Speaker Jo Ann Davidson, who pushed for the change.

What the legislators failed to realize is that some prosecutors would see the law's language as binding:

"No person shall cause the death of another...as a proximate result of the offender's committing or attempting to commit a misdemeanor of the first, second, third, or fourth degree or a minor misdemeanor."

"That's a strict liability law," said Summit County Prosecutor Maureen O'Connor. "You commit a traffic misdemeanor (that causes a death) and you're looking at the felony offense."

O'Connor argued that prosecutors are obligated to enforce the laws as written. "A prosecutor is crossing the line if he selectively prosecutes," she said.

Even with O'Connor's stance, the law was not used in Summit County because no request came from the prosecutors in the county's three municipal courts, where traffic cases are handled.

That changed in September when Akron City Prosecutor Douglas J. Powley asked that a county grand jury consider the case against Lorenzo Hayes.

Hayes was accused of killing Dennis Greer, a 42-year-old motorcyclist, on Aug. 19. Greer was riding west on East Market Street when a sports utility vehicle turned into into his path, then fled. Hayes, who had a suspended license, was arrested two weeks later.

Greer's family members were outraged that Hayes was charged initially only with misdemeanors. Their complaints prompted a Beacon Journal reporter to ask Powley why Hayes wasn't charged with a felony under the revised involuntary manslaughter law.

Prosecutors unaware

Powley said he was unaware of the law. The day after the story was published on Sept. 17, Hayes was brought back to municipal court and arraigned on a new charge of involuntary manslaughter.

"This is what we've been working for all along," said David Greer, brother of the motorcyclist.

While Greer's family was satisfied, Powley faced another decision: What to do with similar cases?

"How do you tell the family of the victim you're not going to use the full force of the law that the legislature gave you?" Powley said.

Powley already had another case on his desk. Douglas R. Manhart, 22, of Lakemore, was accused of changing lanes while going north on Arlington Street on Dec. 30, 1996, sideswiping another vehicle, which crashed into a utility pole. Doris Meltzer, 48, of Akron, was killed.

Manhart, who told police he was forced to change lanes to avoid hitting a car, was willing to plead guilty to a misdemeanor charge of vehicular homicide. But on Sept. 24, the day the municipal judge was to accept Manhart's plea, Powley dropped the charges and requested a grand jury consider the case. A week later Manhart was indicted on the felony charge.

Powley said he had no option because "one of the fundamental principles of American jurisprudence is consistency."

Barberton Law Director Martin J. Bodnar gave the same reason for transferring two cases in his Municipal Court to the grand jury.

"We have an ethical obligation to provide justice equally," he said.

Like Powley, Bodnar said he also didn't know about the law. He said the newspaper stories reminded his staff.

Even if there had been no publicity, Bodnar would have soon learned about the law from Judy Michel, the daughter of Mildred Noe, the elderly woman killed in the bus crash.

Michel was upset the bus driver had only been charged with misdemeanors because he allegedly was talking to his wife, who coincidentally was riding the bus, while making the fatal turn on June 13. The bus was traveling at an estimated 5-10 mph when it struck Noe, who had just got off and was crossing Tuscarawas Avenue with the aid of her walker. She died on July 21.

Arguing that the bus driver deserved a prison sentence, Michel said, "I think five years would about settle up everything."

Gino Cucuzza, a 20-year veteran bus driver with a previously spotless record behind the wheel, told police he didn't see Noe.

Cucuzza said the felony indictment came as a shock. He had no idea that what he considered a tragic accident could result in a long prison sentence.

"I didn't even know the word felony," said Cucuzza, who is scheduled for trial Jan. 20 in the courtroom of Summit County Common Pleas Judge Ted Scheiderman. "It's like a bad dream, especially at my age. You think it couldn't be happening to me, but it is."

Also transferred to the county courts: the case of Tracy Stalnaker, the Uniontown mother accused in the Aug. 15 death of motorcyclist Joseph T. Chiofolo, 21, of Green. There will be others. Bodnar said that his policy now is the same as in Akron.

"In similar cases in the future, we'll charge involuntary manslaughter until the Supreme Court or Court of Appeals tells us this statute is unconstitutional," he said.

Recklessness only

Not all prosecutors agree that such an indiscriminate policy is proper.

"A prosecutor has a duty to look at each case on its own merits," said Cuyahoga Falls Chief Prosecutor Hope Jones.

Medina County Prosecutor Dean Holman applies a standard. "I look for recklessness...high speed, drugs, alcohol, before I'll ask a grand jury to indict on involuntary manslaughter. I don't think they deserve a prison sentence if they are not reckless."

Stark County Prosecutor Robert Horowitz also declines to use the statute without evidence of recklessness.

"They have to be either on drugs or alcohol," said Horowitz, who has served as Stark's prosecutor for 13 years. "They can't just be careless."

The widely differing view raises the troubling spectre: A fatal crash that would be prosecuted as a felony in Akron or Barberton would result only in a misdemeanor charge in other jurisdictions.

In the five-county area, only one county prosecutor, Portage's Victor Vigluicci, exercises the kind of selectivity Columbus lawmakers say they had in mind.

"We do it case by case," Vigluicci said. "We don't have a policy."

Vigluicci said he wouldn't rule out seeking a manslaughter charge without evidence of recklessness. But he said, "I can't think of any where there was just a traffic violation."

If Ohio's prosecutors are finding it difficult to establish uniform policies for using the revised manslaughter law, they can't look to other states for guidance.

"We have not identified any jurisdiction that would permit a felony conviction for involuntary manslaughter" based on a minor misdemeanor traffic charge, the 2nd District Court of Appeals said in a January 1997 ruling in a Montgomery County case.

While not declaring the Ohio law unconstitutional outright, the court ruled that a grand jury must find evidence "of at least criminal negligence" in a traffic case before a felony can be charged. Another appellate district made a similar ruling in a Pike County case.

But appellate courts in two other districts have upheld the law. Because of that conflict, the issue is expected to be taken up by the Ohio Supreme Court, but that may take years.

Law affects decision# The possibility the law might be struck down persuaded Wayne County prosecutors last week to dismiss involuntary manslaughter charges against an Alliance truck driver charged in the death of Mark Kiper, a 19-year-old College of Wooster student killed in May while working with a road maintenance crew. The driver, Timothy D. Hodges, was allowed to plead guilty to vehicular homicide and another misdemeanor.

Ironically, it was a Supreme Court decision that prompted legislators to enact the law.

In 1993, the Ohio Supreme Court overturned the conviction of a Miami County man who went through a stop sign and caused a fatal crash.

A jury had acquitted James A. Collins Jr. of aggravated vehicular homicide, but found him guilty of involuntary manslaughter for running the stop sign.

In overturning the conviction, the Supreme Court ruled that only full misdemeanors, including simple assault and driving while intoxicated, could be used to support a felony charge of involuntary manslaughter. A minor misdemeanor traffic violation was insufficient.

The critical distinction is intent. To be guilty of a minor misdemeanor, you don't have to intend to commit the crime.

The high court judges ruled that permitting such minor infractions as the sole support for a felony charge raises issues of both fairness and appropriateness of punishment. The judges cited the reasoning of now-retired Judge Mary Cacioppio of the 9th District Court of Appeals, in Akron, in a similar decision on a case in 1990: "There is no logical reason for inflicting manslaughter punishment on one who unintentionally kills another simply because he is committing a traffic violation," Cacioppio wrote.

Although the judges said they found Cacioppio's logic "persuasive," they based their ruling overturning Collins' conviction on narrower grounds: That it was doubtful the General Assembly intended minor misdemeanors to be used to support a felony charge.

The judges were wrong. The legislators did favor more severe punishment for fatal mistakes behind the wheel, at least in some circumstances. The lawmakers argued that some traffic violations -- knowingly driving with bad brakes, for example -- were not excusable as mere mistakes.

In amending the law to get around the high court ruling, legislators didn't single out specific violations for more severe punishment. They simply added "or a minor misdemeanor" to the categories of crimes that could support the felony involuntary manslaughter charge.

Davidson said the law was deliberately broad -- "an attempt to provide a tool for prosecutors."

But it was a tool county prosecutors didn't want.

"We just thought it was inappropriate to impose a third-degree felony on a person who unfortunately killed somebody, but the death results from a traffic accident where the person may have been negligent," said John Murphy, executive director of the Ohio Prosecuting Attorneys Association.

Murphy said his association would support removing traffic violations from the involuntary manslaughter statute.

© Copyright 1998 The Akron Beacon Journal

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