The New Hampshire Supreme Court will decide for the first time whether talking on a cellphone while driving, although legal here, can justify a conviction for criminally negligent homicide.
Lynn Dion of Franklin is appealing her conviction on that charge in the death of 36-year-old Genny Bassett on June 28, 2009.
Around 9 p.m. that night, Dion was driving home to Franklin after visiting a friend. At about the same time, Bassett left her home to walk home her close friend, 60-year-old Elsa Gonnella, after an evening of playing cards and watching movies.
Dion made or received half a dozen cellphone calls during her 37-minute drive, records show, the last to a friend as she approached the Ward One Bridge, where Bassett and Gonnella were heading east.
Dion said she never saw the women in the freshly painted crosswalk. Dion braked when she heard a loud pop and glass showered into her car. Her vehicle had hit Bassett’s right leg and Bassett’s head hit the passenger side of the windshield, fracturing her skull and causing a fatal head injury. Gonnella was knocked to the ground and temporarily lost consciousness.
Merrimack Country prosecutor George Waldron told jurors there was no other plausible reason but cellphone distraction for Dion to have hit them.
Dion’s lawyer claims on appeal that because talking on a cellphone while driving is not illegal in New Hampshire, such conduct is not enough to convict someone of criminally negligent homicide.
“There was no law in 2009, nor is there any law in New Hampshire today, that prohibits or restricts drivers from operating a personal vehicle while talking on the phone,” attorney Allison Ambrose wrote in her brief.
The state argues on appeal that conduct doesn’t necessarily have to be illegal to be considered blameworthy. Senior Assistant Attorney General Susan McGinnis cites in her brief a 1992 ruling in which the court upheld the conviction of a man who crossed into the breakdown lane and killed a woman.
The case marks the first time the court will address cellphone use in the context of a criminally negligent homicide conviction. The justices will hear arguments Oct. 17 at Monadnock Regional High School as part of an effort to expose a broader audience to the court’s role.
Ambrose argues that role should not include usurping the legislature’s authority to decide what conduct is illegal.
“For that conduct to be blameworthy, there’s going to have to be some change in the law,” Ambrose said. “That’s not for the jury or the court to decide.”
Dion, 48, was sentenced last year to 18 months to three years in prison and her license was revoked for seven years from the date she is released from prison. She has remained free on an appeal bond.
If Dion had been paying attention, “it would have taken her no more than a second and a half to stop the car, and it would have taken even less time to turn the wheel ever so slightly to the left and avoid the women. However, she was so distracted and inattentive that she never saw they walking right in front of her,” Senior Assistant Attorney General Susan McGinnis wrote in her brief.
The state argued at trial that based on expert testimony, Bassett and Gonnella should have been clearly visible to Dion for 13 1/2 seconds before the accident. McGuinness argues that failing to pay attention to one’s driving for more than 13 seconds, regardless of the cause, “creates more than an ordinary risk of death.”
To find Dion guilty of criminally negligent homicide, the state had to prove beyond a reasonable doubt that her conduct amounted to a “gross deviation from the conduct that a reasonable person would observe in the situation.”
McGinnis declined to comment on the case.
Ambrose said that for conduct to be blameworthy, it has to offend the community’s sense of right and wrong.
“If you look around there are drivers all day long every day on their cellphones,” Ambrose said. “I don’t think it offends the community’s sense of right and wrong.”
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