Department of Law. 22 August Investigator Steve Dunn Anchorage Police Department 4501 Elmore Road Anchorage, Alaska

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1 Department of Law Criminal Division Anchorage District Attorney s Office 22 August K Street, Suite 520 Anchorage, Alaska Investigator Steve Dunn Anchorage Police Department 4501 Elmore Road Anchorage, Alaska Re: APD # Investigator Dunn: I write this letter to summarize my office s review of the Anchorage Police Department s investigation of the vehicle-bicyclist collision which resulted in the death of Eldridge Griffith on 2 January The purpose of the review was to determine whether criminal charges were warranted against the driver TJ Justice. I reviewed your investigative summary, police report, collision report, Officer Evans report, Officer Mackin s report, Officer Nelson s report, Officer Pollock s report, Officer Rydberg s report, Officer Snyder s collision report, and Investigator Buchta s follow-up investigative report and diagram. I reviewed the audio recordings, video recording from Carrs, initial toxicology reports, photographs and sketches developed during the investigation. Anchorage Police Department located and sent to the District Attorney s Office Justice s old driving while intoxicated cases which were reviewed for admissibility. As you are aware Anchorage Police secured via search warrant Justice s medical records and I reviewed these and obtained follow-up drug testing of Justice s blood from the Washington State Patrol Toxicology Laboratory. I spoke at length with the expert toxicologist from Washington state and obtained his expert opinion as to Justice s impairment given the facts of the case. The District Attorney s Office evaluated the possibility of charging Justice with criminally negligent homicide and operating under the influence. Synopsis of Pertinent Facts The collision was captured on Carrs surveillance video. On 2 January 2014 at approximately 2:45 pm bicyclist Eldridge Griffith rode his bicycle off the north side of Northern Lights sidewalk adjacent to the post office and onto Northern Lights. His direction was southbound at an angle towards Carrs. A station wagon pulled out of the post office s east driveway and, due to Griffith s location in the road, was forced to make a wide right turn to travel westbound on Northern Lights. At this point Griffith is in the far right (#3) lane and Justice is westbound in the middle lane near the bus stop. In the far right lane next to Justice is another vehicle. It appears the driver of that vehicle sees Griffith and slows. Justice, in the middle lane continues and strikes

2 Griffith. From the video it appears as if the vehicle turning westbound from the post office lot shields Justice s view of Griffith as Justice approaches the scene of the collision. The video has a timestamp which reveals Griffith entering frame at 14:45:06:06 while on the sidewalk. At 14:45:06:90 Griffith is fully in the road along with the wagon exiting the post office lot. At 14:45:07:31 the wagon makes a wide turn around Griffith as Griffith pedals across Northern Lights. At 14:45:08:80 Justice s Subaru in #2 lane passes a vehicle adjacent to the bus stop outside the post office that is slowing down in the #3 lane. At 14:45:09:08 the wagon completes its wide turn around Griffith and continues westbound Northern Lights. At 14:45:09:58 Justice is in a position that one would expect he would first observe Griffith in the middle lane directly ahead of him. At 14:45:11:31 Justice has struck Griffith who is now airborne over the hood of the Subaru. The investigation at the scene revealed a witness who observed Griffith enter the roadway. This witness stated Griffith was almost struck by a car and he continued across the road where he was struck by the car. This comports with what is visible in the video. Police contacted and interviewed Justice at the scene and secured permission for a voluntary blood draw. As you are aware neither standard field sobriety tests nor expanded drug recognition testing were conducted on Justice due to his pre-existing medical conditions and limited mobility. Justice said he did not work due to a decades-old brain injury and that he drove to Costco on Dimond and was on his way home when the collision occurred. Justice described driving westbound on Northern Lights when the car to his immediate right stopped suddenly. Justice said he struck the victim but neither saw the victim nor had an opportunity to stop. Justice described his medical conditions, prescribed medications and use of marijuana. Justice told police he smoked marijuana the night before going to bed at 10:00 pm and denied using marijuana after 10:00 pm. Sent for testing at the Alaska State Crime Detection Laboratory Justice s blood came back negative for alcohol. Blood samples were sent to the Washington State Police Toxicology Laboratory where the blood tested presumptive positive for cannabinoids (marijuana), fluoxetine (Prozac) and norfluoxetine (Prozac metabolite). The blood was then tested for specific drug levels came back as.61 mg/l of fluoxetine,.50 mg/l of norfluoxetine, more than 200 ng/ml of carboxy-thc and 6.4 ng/ml of THC. The drug testing revealed Justice had smoked marijuana that day. Anchorage Police conducted follow-up investigation of the scene measurements given the landmarks visible in the video to determine Justice s speed. Using the standard speed formula police determined the Subaru s velocity was 41 mph but could have been as high as 46 mph or as low as 38 mph given a variance in the elapsed time. The speed limit on Northern Lights west of Minnesota is 35 mph. I do not believe that such speed is far enough removed from the speed other drivers maintain on that stretch of road to represent either reckless driving or excessive speeding. Anchorage Police secure a search warrant for Justice s medical records so that they could identify all of his prescribed medications and have the Washington State Patrol re-test his blood for additional drugs. According to the toxicologist of the additional medications prescribed only one an anti-seizure drug had the possibility of impairing a person s ability to operate a vehicle. Lab testing revealed that despite being prescribed the medication there were no 2

3 detectable levels of the drug in Justice s system. Yet there was no evidence at the scene suggesting Justice suffered a seizure in the moments prior to the collision so the absence of the medication is not evidence of culpability for a crime. Legal Analysis Bicyclists, pedestrians and motor vehicle operators all must comply with the rules of the road including traffic control devices such as stop signs. 1 A driver, pedestrian or bicyclist at a stop sign must yield the right-of-way to a vehicle in the intersection. 2 Any driver, pedestrian or bicyclist either entering or crossing a roadway must yield the right-of-way to all other vehicles on the roadway. 3 When crossing a roadway at a point other than within a marked crosswalk the pedestrian or bicyclist must yield the right-of-way to all vehicles upon the roadway. 4 This intersection has a stop sign at the north side from the post office parking lot and a stop sign on the south side at the Carrs parking lot. Traffic exiting from either side must come to a complete stop and yield to Northern Lights traffic prior to entering the roadway. Griffith failed to yield to traffic entering Northern Lights to his left from the post office lot. His failure to yield to cross-traffic with the right-of-way resulted in his death. The legal issue for the State of Alaska to determine is whether or not Justice s conduct rose to the level of a criminal offense. A person commits the crime of criminally negligent homicide if, with criminal negligence, the person causes the death of another person. 5 A person acts with criminal negligence with respect to a result or to a circumstance described by a provision of law defining an offense when the 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 a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. 6 This is in contrast to ordinary civil negligence the mental state in private tort lawsuits which occurs when a person s conduct deviates from the standard of conduct that a reasonable person would observe in a given situation. Criminal negligence, therefore, requires the State prove beyond a reasonable doubt that a reasonable person would have perceived the risk of a cyclist in the road and that but for his use of marijuana Justice did not. 7 Peculiarities of a given individual his intelligence, experience, and physical capabilities are irrelevant in determining criminal negligence since the standard is one of the reasonably prudent person. 8 Thus, the fact that a given defendant did not perceive a risk because he has diminished speech skills, diminished physical mobility, because he had bad eyesight or bad hearing, or because his personal life experiences had not fitted him to appreciate the risk would be irrelevant in proving criminal negligence. 9 In the case of State of Alaska v. Malone, the Alaska Court of Appeals ruled that a criminal defendant can be held responsible only for injuries that result from or are caused by his 1 13 AAC , 13 AAC , 13 AAC AAC AAC AAC AS (a) 6 AS (a)(4) 7 Edgmon v. State, 702 P.2d 643, 645 (Alaska Ct. App. 1985). 8 Edgmon, 702 P.2d at Edgmon, 702 P.2d at

4 conduct. 10 The law does not require the government to prove that the defendant was solely responsible for the injury or death. 11 Rather, the test is whether the defendant's conduct was a substantial factor in bringing about the result. 12 Since a defendant's conduct need not be the sole cause of the injury, a defendant will be held accountable for an injury or death resulting from his conduct even though it can be shown that the negligence of some other person also contributed in a substantial degree to causing the injury or death. Contributory negligence of the victim does not constitute a defense to criminal charges. 13 Similarly, the asserted negligence of third parties is no defense. 14 This rule of law that negligence of the victim or of third persons will not dispel a defendant s responsibility for an injury or death is simply a specific application of the general rule that a defendant who acts with the required culpable mental state will be held criminally responsible for injuries that result from other people s normal or foreseeable reactions to his conduct. 15 This remains true even if the person responding to the defendant s conduct is himself negligent that is, acts unreasonably so long as this negligent or unreasonable conduct is a normal or foreseeable response to the defendant s conduct. 16 Although a defendant s criminal responsibility is broad, it is not limitless. The law does not hold a defendant responsible if the injury or death, while perhaps linked to the defendant s conduct, is primarily caused by abnormal, unforeseeable conduct on the part of the victim or of a third person, so that it no longer seems fair to say that the injury was caused by the defendant's conduct. When this occurs, the law no longer views the other person's conduct as simply a contributing cause of the injury. Instead, the law calls the other person s conduct a superseding or intervening cause of the injury meaning that the defendant is excused from liability. Thus, the conduct of the victim or of third persons is sometimes relevant in assessing the defendant's criminal responsibility: It must not be assumed that negligence of the [victim] or of another is to be entirely disregarded. Even though the defendant was criminally negligent in his conduct, it is possible for negligence of the [victim] or another to intervene between [the defendant s] conduct and the [injury] in such a manner as to constitute a superseding cause, completely eliminating the defendant from the field of proximate causation. This is true only in situations in which the second act of negligence looms so large in comparison with the first that the first is not to be regarded as a substantial factor in the final result. 17 Nevertheless, once a defendant has set events in motion, no conduct of the victim or of a third person will be a superseding or intervening cause (that is, one that relieves the defendant of P.2d 34 (Alaska Ct. App. 1991) 11 Johnson v. State, 224 P.3d 105, (Alaska 2010). 12 R. Perkins & R. Boyce, Criminal Law (3rd ed. 1982), 9, pp ; see also Kusmider v. State, 688 P.2d 957, (Alaska Ct. App.1984). 13 Wren v. State, 577 P.2d 235, 240 (Alaska 1978); Lee v. State, 760 P.2d 1039, 1042 (Alaska Ct. App.1988). 14 Kusmider, 688 P.2d at See Beale, The Proximate Consequences of an Act, 33 Harv.L.Rev. 633, and (1920). 16 Perkins, pp ; W. LaFave & A. Scott, Substantive Criminal Law (1986), 3.12, pp , Perkins, p. 787; accord, Wren, 577 P.2d at

5 criminal responsibility for an ensuing injury or a death) if (1) the defendant's conduct created or enhanced the risk that someone would suffer the type of injury actually suffered by the victim, and (2) the contributing conduct of the victim or of the third person was either a normal reaction to the defendant's conduct or was a reasonably foreseeable consequence of the defendant's conduct. 18 In sum, [t]he law does not hold a defendant responsible if the injury or death, while perhaps linked to defendant s conduct, is primarily caused by abnormal, unforeseeable conduct on the part of the victim or a third person, so that it no longer seems fair to say that the injury was caused by defendant s conduct. 19 Police reports from Justice s previous arrests for driving while intoxicated in 1977, 1983, 1997 and 1998 were reviewed for possible admissibility under Alaska Rule of Evidence 404(b)(1). Rule 404(b)(1) provides for the admissibility of prior act evidence against a defendant if the evidence is relevant to establishing motive, opportunity, intent, preparation, plan, knowledge, identity or the absence of mistake or accident. As a rule of inclusion, evidence of other acts that fit under the purvey of Rule 404(b)(1) are presumptively admissible absent a showing of unfair prejudice. 20 Given the age of the prior convictions coupled with significantly different factual scenarios I am of the opinion that no judge would permit evidence on Justice s prior driving while intoxicated convictions at trial. The State of Alaska would have to establish beyond a reasonable doubt that despite Griffith s decision to enter traffic it was Justice s drug impairment that caused the collision to prevail on any criminal charge. According to the Washington state toxicologist the fluoxetine was elevated from an expected therapeutic level but not to a degree that one would expect adverse effects. The carboxy-thc level was greater than the maximum reportable limit on the equipment and indicates Justice is a long term habitual marijuana user. Carboxy-THC is the non-active THC metabolite that can remain in a person s blood for days or even weeks depending on the amount of marijuana a person smokes. As for the THC level, as you are aware, Alaska (unlike other states like Washington, Montana and Nevada) lacks a per se DUI statute for THC levels in a driver s blood. In other words, the mere presence of THC will not automatically lead to a conviction for DUI. Instead, the evidence as a whole, including blood tests, erratic driving, and roadside sobriety test results, must prove beyond a reasonable doubt that the person was impaired. This is also how Alaska law treats other medications that impair a driver s ability to safely operate a motor vehicle. Given the lack of standardized field sobriety testing at the scene, Justice s physical disabilities, Griffith entering the roadway against traffic and the absence of observed poor driving behavior prior to the collision the toxicologist would not opine that it was the impairing effects of the marijuana that caused Justice to fail to perceive Griffith in the roadway and avoid the bicyclist. Given the strong video evidence in which one observes Griffith being shielded by the wagon turning right, the #3 lane vehicle stopping (apparently upon observing Griffith in the #3 lane) and Justice having less than 1.5 seconds to perceive and react to the cyclist I cannot reach the conclusion that the collision was either Justice s fault or that it was his drug use that created or enhanced the risk of a collision. Justice s conduct does not rise to the level of failing to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. I 18 Perkins, pp Malone, 819 P.2d at ALASKA R. EVID

6 cannot prove beyond a reasonable doubt that Justice s failure to perceive the risk of collision was a gross deviation from the standard of care that a reasonable person would observe in the situation. Conclusion In summary, the State of Alaska will not file criminal charges against TJ Justice for his role in the collision that resulted in Eldridge Griffith s death. Please contact me if you have any questions. I can be reached at or daniel.shorey@alaska.gov. Respectfully, MICHAEL C. GERAGHTY ATTORNEY GENERAL Daniel K. Shorey Assistant District Attorney Alaska Bar Number