[14] Although the majority finds evidence of the speed-limit sign irrelevant and its admittance prejudicial, upon an examination of the entire record I do not agree that this finding requires reversal.
[15] A determination of recklessness requires an assay of the totality of the circumstances:
"Conviction under the reckless-driving statute requires evidence that the defendant has embarked upon a course of conduct which demonstrates a heedless indifference to the consequences of his action. * * * The conduct must have constituted more than mere error in judgment by the driver and more than the negligence necessary to support a civil action for damages. * * * Moreover, the fact that a defendant drove at an excessive speed does not necessarily establish reckless driving. * * * Recklessness must be related to the time, place, persons, and circumstances surrounding them. * * * Thus, excessive speed under some circumstances may be mere negligence but under other circumstances may constitute recklessness." State v. Watkins, 448 A.2d 1260, 1267 (R.I. 1982).
[16] I am aware that the majority cites the above passage in support of its argument, but it is the genius of the law that enables me to cite the very same passage in support of my own conclusion.
[17] The majority concludes that because the accident did not occur during school hours, the speed-limit sign was wholly irrelevant. I believe that the speed at which defendant was driving was not an irrelevant circumstance. At trial one witness testified that as she stopped to let the victims cross, she heard a loud muffler approaching from behind on her right. From the increasing volume and pitch, she determined that the car was accelerating. Other witnesses estimated that defendant's speed was between thirty and thirty-five miles an hour. While I concede that the twenty-mile-per-hour speed limit was not in effect at the time, I find that defendant's conduct was reckless under the totality of the circumstances analysis, regardless of the speed and regardless of whether the accident occurred during daytime or at night.
[18] In State v. Watkins, 448 A.2d at 1266, we cited with approval the trial justice's instructions on recklessness:
"Among the elements you may consider in connection with determining whether or not a defendant's conduct was violative of the statute, are weather conditions, road conditions, drinking by a driver, speed of a vehicle, and any other factors which you determine bear upon the question of reckless operation." (Emphasis added.)
[19] In our present case defendant was familiar with the area in which he was driving, he knew that many people had just left the concert, and he made a conscious choice to bypass the traffic by driving in the breakdown lane, in contravention of G.L. 1956 (1982 Reenactment) § 31-15-16. Once defendant made a conscious choice to drive in the breakdown lane, he embarked on an illegal journey. Regardless of the applicable speed limit, a reasonable jury could infer from defendant's conduct that he was acting without regard for the safety of others and with knowledge that his actions were creating an unreasonable risk of harm. That is our accepted standard for recklessness, and that is what the jury found in this case. *Page 72
[20] Furthermore I conclude that the trial justice's instructions were not so vague and confusing as to require reversal. The trial justice gave a cautionary instruction each time the defense objected to the admission of testimony on the twenty-mile-per-hour speed limit. The three instructions were sufficient to dispel any inappropriate influence of the stricken evidence. The instructions read as follows:
"Ladies and gentlemen, as I repeatedly told you, you are the finders of fact in this case. I have no responsibility as to the fact finding process. I merely decide on questions of law, but you have heard two sets of speed limits. You have heard when one is applicable and when one is not applicable. You have heard that this incident happened at the time that it happened, at the time of day it happened. You decide the factual situation, but do not get confused about conflicting speed limits. There is one speed limit at a certain time and another speed limit at another time of day. I trust your good judgment and your common sense to separate the wheat from the shaft [sic] on this as far as that is concerned.
"* * *
"Ladies and gentlemen, you once again are the sole judges of the facts. You decide what is a reasonable and prudent speed under all the circumstances and I will instruct you so at the end of the case, but as far as what the speed limit was between 8 o'clock in the morning and 3 o'clock in the afternoon, I ask you to strike that and disregard it. It has no bearing on this case. Reasonable speed has a bearing on this case and that's for you to decide what reasonable speed is. But the fact that there was a a [sic] school zone at 20 miles an hour and the fact that that speed limit should be observed a half hour before school starts and a half hour after school starts. We now know that school starts at approximately 8 o'clock or 8:30 in the morning and they leave at 2:30 in the afternoon. So, from 8 to 3 that's the applicable speed limit at the time. So, I ask you to disregard that. It might come in later in another person's testimony and we will cross that bridge when we come to it, but as far as now it really is not applicable to this case, but you decide what reasonable speed under all the circumstances is at the end of all the evidence.
"* * *
"Ladies and gentlemen, when we refer to school zones, the statute is quite clear about the time that these zones are applicable. I will tell you at the end of the case what they are, but I will tell you briefly that it is a half hour before sunrise and a half hour after sunset. Whatever speed limit at a school zone is not applicable in this case unless you find what a reasonable speed should be. That's your function to find out what a reasonable speed under all the circumstances and all the conditions. Speed is not, in and by itself, recklessness, but it can under certain circumstances as you find the facts to be."
[21] In his final charge to the jury the trial justice quoted the passage from State v. Watkins that both the majority and I find persuasive. The remainder of his instructions were virtually identical to those given and approved in Watkins. See Watkins, 448 A.2d at 1265-66 (instructions cited in full).
[22] It is a well-settled rule that the validity of an instruction is determined by analyzing its effect in context with the entire charge to determine if it is misleading or confusing. State v.Harris, 106 R.I. 643, 649-50, 262 A.2d 374, 377-78 (1970). Furthermore, the instructions must be evaluated "in light of the meaning and interpretation that a jury composed of ordinary, intelligent lay persons would give them." Hueston v.Narragansett Tennis Club, Inc., 502 A.2d 827, 829 (R.I. 1986). In reading the trial justice's instructions, I do not find them misleading or confusing. Taking them together, I find it "quite clear that the court's intention was to adequately inform the jury as to the limitations under which that evidence was admitted. [I] cannot agree that the charge, when read in this fashion, would tend to mislead and confuse reasonable men treating the words *Page 73 in their ordinary, natural meaning." Harris, 106 R.I. at 650, 262 A.2d at 378.
[23] For the foregoing reasons I respectfully dissent.
[24] SHEA, J., joins in this dissent.