State v. Wideman

VOSS, Judge,

dissenting.

I agree with the majority in all respects except their conclusions as regards restitution.

In August 1986, defendant, Jacob Edgar Wideman, age 16, and other high school students attended a summer sports camp in Maine. They, with a chaperon, left the camp to tour the western United States. On August 12th, the group checked into a motel in Flagstaff. The defendant and Eric Kane shared a room. In the early morning of the 13th, defendant fatally stabbed Eric. Upon being advised of the tragedy, Eric’s family immediately traveled to Arizona, returning on several occasions to attend hearings and the trial. The family also sought mental health counseling.

The majority, in reviewing the trial court’s restitution order, approved the trial court’s award of restitution for the mental health expenses, but reversed the award for travel and lodging expenses incurred by the victim’s family when they attended hearings and the trial. The majority holds that the travel expenses “do not flow” from the murder; that the expenses were an “indirect loss” because the victim’s family was not “required to attend” any of the hearings. In contrast, the majority, without analysis, states that the “medical expenses for the counseling are directly attributable to the victim’s death.” As I conclude that such a result is both internally inconsistent and contrary to A.R.S. § 13-105(11), I respectfully dissent.

*371 Many things necessarily occur as a result of being told that your child is dead, the victim of a violent crime. The sense of control vanishes and is replaced with overwhelming waves of emotion ranging from disbelief, denial and abysmal despair to rage. If anything naturally flows from receiving such news, it is the undeniable need to get “there.” “It must be a mistake” must replay like a record on a broken changer. Even when the encroachment of reality requires that the record be changed, one constant remains — the futile compulsion to extract reason from insanity. To do this, the family must stay close. They must be “there.” As naturally flowing from the defendant’s act is the unsettling of the emotional balance of family members. Such a loss is one for which no one is prepared. The disorienting depth of the loss could only be described by those involved. The point is that both these losses, in a sense, “flow” from Eric’s death. The decision to come to Arizona to be at their son’s side, even in death, did not require reflection; it was made in a heartbeat. The decision to seek mental health counseling was in reality not a decision, but a necessity.

It is this parity which compels the travel, lodging and mental health expenses to be evaluated and treated in the same fashion. They are both compensable or neither is compensable.

The compelling nature of the facts here demonstrates the difficulty in determining restitution. It is my opinion that the line should be clearly drawn. The line should not allow extension beyond the direct and immediate damages caused by a criminal act, even if the application excludes as proper items for restitution such dramatic losses as appear here. To hold to the contrary will encroach upon civil liability and negative the protections provided by civil suits.

The trial court is required to order restitution for the full economic loss of a victim. A.R.S. § 13-603. The court, in ordering restitution, must consider all losses caused by the criminal offense. A.R.S. § 13-804. A.R.S. § 13-105(11) defines economic loss as:

[A]ny loss incurred by a person as a result of the commission of an offense. Economic loss includes lost interest, lost earnings and other losses which would not have been incurred but for the offense. Economic loss does not include losses incurred by the convicted person, damages for pain and suffering, punitive damages or consequential damages. (Emphasis added.)

Black’s Law Dictionary, 352 (5th ed.1979), defines consequential damages as:

[S]uch damage, loss or injury as does not flow directly and immediately from the act of the party, but only from some of the consequences or results of such act.

This court has long noted the potential problems with restitution orders. In State v. Reese, 124 Ariz. 212 , 603 P.2d 104 (App.1979), we agreed with People v. Richards, 17 Cal.3d 614 , 131 Cal.Rptr. 537 , 552 P.2d 97 (1976), in which the California Supreme Court stated:

Disposing of civil liability cannot be a function of restitution in a criminal case. To begin with, the criminal justice system is essentially incapable of determining that a defendant is in fact civilly liable, and if so, to what extent____ A party sued civilly has important due process rights, including appropriate pleadings, discovery, and a right to a trial by jury on the specific issues of liability and damages. The judge in the criminal trial should not be permitted to emasculate those rights by simply declaring his belief that the defendant owes a sum of money.

In State v. Pearce, 156 Ariz. 287 , 751 P.2d 603 (App.1988), a criminal defendant pled guilty to theft resulting from his conversion of leased equipment. Division Two of this court, noting that our statute specifically excludes restitution for consequential damages, stated, “Pearce’s theft or damaging of the equipment here resulted in loss of equipment or its value, but the resulting breach - of the lease and lost profits are consequential damages resulting from Pearce’s conversion. Such lost profits do not ‘flow’ from the acts to which Pearce pled guilty.” The court reiterated that the purpose of restitution was not to displace *372 civil damages which may be recovered in a separate civil action.

I believe Pearce is dispositive and its logic compelling. Whereas reimbursement of victims of crime is properly motivated and should be actively pursued, it must be strictly defined. To accept anything less would violate the due process requirements of a civil proceeding. The restitution awarded by the trial court here included travel, lodging and mental health expenses. These expenditures, while arguably properly compensable in the civil action filed by Eric’s survivors, did not “directly and immediately” flow from the act of defendant. They flowed as a consequence of defendant’s crime. As such, I would disallow the travel, lodging and mental health expenses as inappropriate subjects for restitution.