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Court upholds negligent homicide in cellphone case
Court upholds negligent homicide in cell phone case
By PAT GROSSMITH
New Hampshire Union Leader
CONCORD — New Hampshire drivers may want to put down those cell phones after the State Supreme court on Friday upheld a negligent homicide conviction of a cell phone-using motorist who struck and killed a woman in a crosswalk.
It is not illegal to use a phone while driving in the Granite State, but the court said in the case of Lynn Dion of Franklin, who admitted being on her cell phone prior to the 2009 accident that killed 36-year-old Genny Bassett of Franklin, the issue is one of carelessness and inattention. "... the issue is whether inattention caused by cellphone use or any other 'legal' activity, resulting in the failure to avoid a pedestrian in a crosswalk, demonstrates a level of carelessness the seriousness of which should be 'apparent to anyone who shares the community's general sense of right and wrong.' (Shepard, 158 N.H.) Here the jury, whose judgment best reflects 'the prevalent sense of the community, ' (Cloutier v. A. & P. Tea Co.) unanimously determined that the defendant's conduct constituted criminal negligence," according to the unanimous decision written by Justice Carol Ann Conboy.
The case was the first time the court had taken up the issue of cell phone use in which a driver was held criminally responsible for a death.
Assistant County Attorney George Waldron said prosecutors were pleased with the court ruling and always believed it was a clear case of negligence. Evidence at trial, he said, showed Dion was on her cell phone when she reached the crosswalk and that she had plenty of time to avoid the accident had she been paying attention.
Attorney Allison Ambrose, who represented Dion, did not immediately return a call for comment.
Dion testified she never saw the women, that she made her last call when she was about a quarter of a mile away from the accident site and that her phone was on the passenger seat when it happened.
According to the court decision, the collision occurred a little after 9 p.m. on June 28, 2009. Bassett and her friend, Elsa Gonnella, 60, had been at Bassett's home in Franklin for the evening. Bassett was accompanying Gonnella, who used an umbrella for support, on her walk back home.
After crossing the Ward One Bridge on Central Street, they stopped at a crosswalk, which was recently repainted white, was well lit by streetlights and was marked with a yellow and black pedestrian crossing sign. They checked both ways for oncoming traffic and then began to cross the street.
Dion, in the meantime, was driving home to Franklin from Sutton where she had visited a friend. She just turned onto Central Street at the western side of the bridge as the two women stepped off the curb into the crosswalk.
The women had gone 54 feet when Gonnella heard a "bang" and "went down." When she regained consciousness a few minutes later, she saw Dion on the sidewalk with a cell phone in her hand. Bassett, who was wearing white pants and a light colored denim jacket, was unresponsive in the road nearby.
The right front bumper of Dion's car had hit her, resulting in a fatal brain injury.
Dion told Franklin police Sgt. Richard Carlson she did not see Bassett and Gonnella in the crosswalk. She said just before reaching the end of the bridge, she heard a loud "pop" and felt glass coming into her car. She admitted to making prior calls on her cell phone but denied she was on the phone at the time of the collision.
Dion was sentenced last year to 1 1/2 to 3 years in prison, but it was not imposed because of the appeal. Her license will be revoked for seven years from the date she is released from prison.
Waldron said the sentence will be imposed at a hearing to be set at the court's discretion.
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