Bell v. State

THOMAS, Chief Justice,

specially concurring.

I have no fundamental disagreement with the justification for affirming this judgment and sentence articulated in the majority opinion. Because of my views set forth in State v. Sodergren, Wyo., 686 P.2d 521 (1984), I identify some additional reasons for affirming the district court.

As I read' §§ 6-2-105 and 6-2-106, W.S. 1977 (June 1983 Rev.), together with the definitions found in § 6-l-104(a)(iii) and (ix), the statutory distinctions upon which I based my position in State v. Sodergren, supra, were carried forward into the 1983 criminal code. I therefore would hold that those homicides which involve the use of a motor vehicle but also constitute the killing of a human being recklessly still may be prosecuted as involuntary manslaughters. As far as I am concerned then Bell’s claim of disparate treatment vanishes because those homicide cases which involve an automobile but which are prosecutable under the manslaughter statute become violent felonies subject to the invocation of the habitual criminal sanctions.

As to those homicides involving the use of a motor vehicle which cannot be charged as homicides committed involuntarily but recklessly, the elements of proof are not exactly the same and consequently, contrary to Bell’s claim, the statutes do not proscribe substantially the same conduct. See Bell v. State, Alaska, 598 P.2d 908 (1979); and State v. Modica, 58 Hawaii 249, 567 P.2d 420 (1977). I recognize that in his argument Bell here focuses upon the aggravated negligent homicide section of our 1983 Criminal Code. It should be borne in mind, however, that aggravated vehicular homicide is simply a degree of vehicular homicide, and if vehicular homicide is distinguishable from manslaughter it follows that aggravated vehicular homicide is distinguishable for the same reasons. The increased sanction for aggravated vehicular homicide is based upon a matter of degree which the legislature is entitled to classify differently.

For these additional reasons I would affirm the judgment of the district court in this case.