State v. Doub, 95 P.3d 116 (Kan. Ct. App. 2004)

Defendant drove his pickup track into the rear of a car occupied by the 9-year-old victim. The victim sustain fatal injuries and died a few hours later. The defendant was charged and convicted of second degree depraved heart murder. On appeal, the defendant argued that the state failed to present sufficient evidence to support his conviction.

Held: Defendant’s conviction was affirmed. Depraved heart murder requires that the defendant acts recklessly in causing the victims death. It also requires the additional element that the reckless killing occur under circumstances manifesting extreme indifference to the value of human life. The defendant’s conduct under the circumstances satisfied many of the factors (outlined below) the court considers in determining the state of mind of the defendant for a depraved heart murder conviction.

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Following a party for his softball team at a club where he admitted drinking six beers, Doub admitted that his pickup struck two parked vehicles and that he left the scene because he was concerned that he had been drinking. Doub ultimately admitted that, approximately 2 hours after striking the parked cars, he drove his pickup into the rear of a Cadillac in which 9–year–old Jamika Smith was a passenger. According to the State’s accident investigator, the collision occurred as Doub’s pickup, “going tremendously faster,” drove “up on top of [the Cadillac],” initially driving it down into the pavement, and ultimately propelling it off the street and into a tree. Doub offered no aid to the victims, left the scene of the accident, and initially denied any involvement in the collision, suggesting that his pickup had been stolen. Some 15 hours after the collision, Smith died as a result of blunt traumatic injuries caused by the collision.

Approximately 6 months after these events, Doub admitted to a former girlfriend that he had a confrontation with his second ex-wife the evening of the collision, had been drinking alcohol and smoking crack, and had subsequently caused the collision. The girlfriend approached the authorities with Doub’s statements, which suggested that Doub left the softball party, caused the collisions with the parked vehicles, left that scene, subsequently consumed the additional alcohol and crack cocaine, and then caused the collision resulting in Smith’s death, all within a 2– to 3–hour period.

Doub was charged and convicted of second-degree depraved heart murder. He appealed his conviction. On appeal, he argued that the state failed to present sufficient evidence to support his conviction.


Whether the state presented sufficient evidence to support the second degree depraved heart murder conviction.


Both depraved heart murder and reckless involuntary manslaughter require recklessness—that the killing be done under circumstances showing a realization of the imminence of danger and a conscious disregard of that danger. Depraved heart murder requires the additional element that the reckless killing occur under circumstances manifesting extreme indifference to the value of human life. Recklessness that can be assimilated to purpose or knowledge is treated as depraved heart second-degree murder, and less extreme recklessness is punished as manslaughter.


Here the court gave 8 factors to determine the required state of mind for depraved heart murder.

The court explained that since 1975 the appellate courts of many states have acknowledged that the required state of mind for depraved heart murder can be attributed to the driver of an automobile. Our review of such cases reveals that most jurisdictions with statutory provisions patterned after the Model Penal Code have acknowledged that the offense may be committed by automobile. Cases to the contrary generally construe and apply statutes that retain some requirement of malice.

One commentator surveyed 20 cases between 1975 and 1986 and found the following factors as persuasive of the requisite state of mind:

1. Intoxication. The driver was using alcohol, illegal drugs, or both.

2. Speeding. Usually excessive rates are recorded.

3. Near or nonfatal collisions shortly before the fatal accident. Courts believe that collisions should serve as a warning to defendants that their conduct is highly likely to cause an accident. Failure to modify their driving is viewed as a conscious indifference to human life.

4. Driving on the wrong side of the road. Many cases involve head-on collisions. Included here is illegally passing or veering into oncoming traffic.

5. Failure to aid the victim. The driver left the scene of the accident and/or never attempted to seek aid for the victim.

6. Failure to heed traffic signs. Usually more than once prior to the fatal accident, the driver ran a red light and/or stop sign.

7. Failure to heed warnings about reckless driving. In Pears v. State, for example, the court cited as proof of Pears’ extreme indifference to life the fact that he continued driving after he had been warned by police officers not to drive because he was intoxicated. In other cases a police pursuit of the driver for earlier traffic violations was an implicit warning that the defendant’s driving was dangerous.

8. Prior record of driving offenses (drunk or reckless driving or both). The relevance of a defendant’s prior record for reckless or intoxicated driving is, as United States v. Fleming pointed out, not to show a propensity to drive while drunk but ‘to establish that defendant had grounds to be aware of the risk his drinking and driving while intoxicated presented to others.

Considering the presence of many of those factors significant to other courts, we are convinced that a rational fact finder could have found Doub guilty of depraved heart second-degree murder beyond a reasonable doubt. The evidence against Doub is particularly damning considering that (a) he admits that his driving was preceded by drinking; (b) he admits that he struck two parked cars and ignored commands to stop because he was concerned that he had been drinking; (c) he then consumed additional alcohol and used crack cocaine; (d) he then resumed driving and caused a fatal collision, due in part to excessive speed; (e) he failed to render aid to the victims; and (f) he fled the scene in order to avoid criminal liability. We conclude that these facts clearly demonstrate an extreme indifference to human life.


Defendants conviction was upheld.

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