Could the Raquel Nelson Case Happen in Arizona?

Flagstaff, AZ –  You may have seen it on the national news.  On the night of April 10, 2010, Raquel Nelson, of the state of Georgia, hopped on a bus with her three young children to go home.  The bus stop was across the street from their residence.  But it wasn’t just any street.  It was a 4-lane highway, according to reports.  The nearest crosswalk to her bus stop?  Over a quarter mile away.

It was dark out.  She was alone with three young kids.  The bus stop had no crosswalk.  Her apartment was across the road.  She didn’t want to walk her children down a dark street to a crosswalk, and then walk back up the other side in the dark.  She made a choice.

While Raquel maneuvered her children across the road, she had no idea that Jerry Guy was heading right for them.  Guy had two prior hit-and-run convictions.  He admitted, later, that he had been drinking and was on pain medications.  Guy struck and killed Raquel’s 4-year-old son, A.J.  And he kept going.  Another hit-and-run.

You may be thinking: Isn’t Guy guilty of murder or, at least, manslaughter?  In Georgia, Guy was convicted of hit-and-run (again) and served 6 months in prison.  That is all.

But this story isn’t about Guy and the pathetically lenient sentence he received.  This story is about Raquel.

In a mean twist to this story, the prosecutors went after Raquel and charged her with vehicular homicide.  They took her through trial, and the jury convicted.  Raquel was convicted of vehicular homicide.  She faced up to 3 years in prison.  Fortunately, the judge granted her a choice: probation or a new trial.  Early reports indicate that Raquel will seek a new trial and an acquittal.

So, applying the same facts of the case, what would happen to Jerry Guy in Arizona?  And what would happen to Raquel?

First, as a former felony prosecutor, I can tell you that Jerry Guy would not be enjoying a mere 6 months in prison for drinking, taking pain meds, driving, and killing a 4 year-old in a hit-and-run.  He would be charged with manslaughter, a class 2 dangerous felony, and very likely would be convicted.  In Arizona, he’d get 7 to 21 years in prison.  Manslaughter occurs when a person, like Guy, recklessly causes the death of another person.  Arizona law defines “recklessly” as:

with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but who is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk.

See A.R.S. section 13-105.

In the alternative, Guy would’ve likely been convicted of Negligent Homicide, which occurs when a person causes the death of another, not recklessly, but with criminal negligence.  Arizona criminal law defines “criminal negligence” as:

with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

See A.R.S. section 13-105.

On that count, he could still go to prison for upwards of 3 years or, if he has prior felony convictions, up to 15 years.

Lastly, Guy could face Aggravated Assault charges in Arizona, for using a “dangerous instrument” (think: his vehicle) to cause serious physical injury and death to A.J. Nelson.  On that count, when convicted, Guy would face 5 to 15 years in prison.

But what about Raquel?  Wasn’t the homicide of her son enough punishment?  Could she be prosecuted under Arizona law on the same legal theory as in Georgia — that A.J.’s death was criminally attributable to her failure to walk a 1/2 mile in the dark to make use of the nearest crosswalk?

Let’s start with the Arizona laws pertaining to crosswalks.  Notably, Arizonans are not required to use a crosswalk in order to cross a road.  It is not illegal to cross a road outside of a crosswalk.  However, there are some important laws that may help us here:

“A pedestrian shall not suddenly leave any curb or other place of safety and walk or run into the path of a vehicle that is so close that it is impossible for the driver to yield.”

A.R.S. section 28-792(B).

“A pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles on the roadway.”

A.R.S. section 28-793(A).

“[E]very driver of a vehicle shall: (1) Exercise due care to avoid colliding with any pedestrian on any roadway.”

A.R.S. section 28-794(1).

“[E]very driver of a vehicle shall . . . [e]xercise proper precaution on observing a child . . . on the roadway.”

A.R.S. section 28-794(3).

It doesn’t take a lawyer to read the law in this case.  Using common sense alone, would Raquel face 3 years in the Arizona Department of Corrections if her case happened in Arizona?  No.  Jerry Guy drank, took pain meds, and killed a child in a hit-and-run.  Why Georgia prosecutors felt he was less culpable for the death of A.J. Nelson is beyond explanation.

Another legal theory in Arizona that comes to mind in Raquel’s case is accomplice liability.  Could Raquel have been an accomplice to Jerry Guy’s murder?  In Arizona criminal statutes, “accomplice” means a person, who with the intent to promote or facilitate the commission of an offense, does at least one of the following:

  1. Solicits or commands another person to commit the offense; or
  2. Aids, counsels, agrees to aid or attempts to aid another person in planning or committing an offense.
  3. Provides means or opportunity to another person to commit the offense.

See A.R.S. section 13-301.  It is conceivable, I must concede, that a prosecutor could charge Raquel in Arizona with negligent homicide or even as an accomplice thereto for providing the opportunity for Jerry Guy to commit the crime.

But when you look at the case, both as a casual observer and as a critical thinker, would convicting Raquel be just?  On a busy night when you’re getting home after dark, would you walk your kids 1/2 mile in the dark beside an unsafe roadway to use a crosswalk that has not been provided closer?  Or would you cross the road, using careful discretion, and be totally caught by surprise when a drunk driver with two prior hit-and-run convictions comes smashing into your family?  Tragedy happened.  And the person who should be held criminally accountable is the one who got 6 months.  The other one ought to get her new trial.  And she must be acquitted.

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