The truck driver accused of vehicular homicide and battery in an Aug. 1, 2005, fatal accident was found not guilty Wednesday afternoon in Lyon County District Court.
Assistant Lyon County Attorney Amy Aranda and defense attorney Tom Lemon of Topeka presented closing arguments Wednesday afternoon before the case was turned over to the jury before 3 p.m.
The jury returned less than two hours later with not guilty verdicts on the two major charges against the driver, Leonard T. “Tom” Marks of Manhattan. Marks was found guilty of speeding and failure to yield the right-of-way to a construction vehicle.
The trial began late Monday morning in the courtroom of District Judge Jeffry Larson.
Marks had nothing to say after leaving the courthouse. His attorney, however, said that he could speak on his client’s behalf.
“This accident was a tragedy,” Lemon said. “Obviously, Mr. Marks is satisfied with the jury’s verdict and glad that this tragedy didn’t continue with him being found guilty of a crime, and he is obviously very sorry for his role in this accident.”
Marks was ordered to pay a $120 fine and $66 in court costs for his conviction on the traffic offenses.
Lyon County Attorney Marc Goodman said the staff knew from the start the case would not be easy.
“Based on the facts we had, we knew it was a difficult case,” Goodman said. “The jury made its verdict, and we go on.”
The fatal accident happened on Kansas Highway 130, about seven miles south of Neosho Rapids.
Kansas Department of Transportation workers Richard Cunningham, 46, and Gary Burroughs, 56, were standing by a KDOT dump truck when a semi-tractor trailer truck driven by Marks, then 49, struck the dump truck, according to an earlier report from the Kansas Highway Patrol. The dump truck rolled into the east ditch and pinned Cunningham and Burroughs underneath.
Cunningham died in the accident and Burroughs received life-threatening injuries. Burroughs had multiple broken ribs, a collapsed lung and a closed-head injury that left him in Stormont-Vail Hospital in Topeka for three weeks and required almost five months of rehabilitation afterwards, Aranda told the jury.
“He couldn’t return to work for a year and nine months,” she said. “There’s no question he was injured and there’s no question he was injured as a result of Leonard Marks in causing that collision.”
Larson instructed the six-member jury that it could use its common knowledge in deciding the case, in addition to weighing the facts and evidence presented by the prosecution and defense. Any ruling he had made on admissibility of evidence, Larson said, was not relevant to the jury’s decision-making process.
“The State has the burden to prove the defendant is guilty,” Larson said. “The defendant does not have the burden of proving that he is not guilty.
“The test you must use ... is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the state, you must find the defendant not guilty. If you have no reasonable doubt ... you should find the defendant guilty.”
Aranda said that Marks was a licensed, professional truck driver and had held a CDL license for about 10 years.
“Professional drivers, trained and experienced and responsible for 80,000-pound vehicles, owe a duty of care, vigilence, that’s heightened,” Aranda said.
The accident happened in an area where the two-lane highway is hilly, curved, and without shoulders, she said, and Marks had driven the highway several times on the day of the accident.
“No one can plan for every possible scenario that you’re going to encounter ... but you plan and you adjust for that which is possible under the circumstances,” Aranda said.
Aranda said that Marks was speeding 60 miles per hour in a 55-mph zone when he struck the KDOT dump truck.
Aranda said that because of the size of Marks’ 80,880-pound semi-tractor trailer, he would have needed greater stopping distance than the average passenger car.
“Yet he still exceeded the speed limit,” she said. “The state asserts to you that it was not reasonable under those circumstances for Leonard Marks to drive that truck at that speed on that road. He failed to plan for any obstacles that he might have encountered on that road.”
The large orange KDOT dump truck was equipped with four-way flashers, strobe lights on the roof and strobe lights on the back. The truck was parked 560 feet from the crest of the hill and those lights were activated. At least a portion of the dump truck was parked on the highway.
Aranda said that, while there’s no strict definition of “material deviation,” it is more than simple negligence. She cited running a stop sign or not looking in a rearview mirror and backing into a car in a parking lot as examples of simple negligence. Marks exhibited material deviation, rather than simple negligence, Aranda said.
“His conduct was a material deviation mounting on wantonness, almost reckless under these circumstances,” she said. Marks was admittedly speeding on hilly terrain with limited braking ability.
A video taken by Kansas Highway Patrol troopers at the time of the accident showed Marks telling a trooper that he was looking to see where the occupants of the truck were.
“Yet he chose to take that risk and drive his vehicle in that manner,” she said. “A reasonable professional driver with 10 years of experience would not have done this.”
She said a reasonable professional would have adjusted his speed to a safe speed to accommodate possibilities that could be lying ahead, and that Marks could have “stomped on the brakes ... done everything possible to avoid that collision.”
Aranda placed the dump truck’s location as being partially on the roadway.
Defense attorney Lemon contended that it was obvious from the skid marks on the highway that the right rear tires of the KDOT truck had made the marks.
“This truck was completely on the roadway,” Lemon said.
Lemon also cited the video as a source of information. One KHP trooper asked another trooper “What do I do?” at the scene.
“These aren’t the kinds of statements that tell us we should have much faith in what comes thereafter,” Lemon said. “If you were preparing to have surgery and you heard the surgeon saying that to the nurse ... you would start to wonder. And these people are supposed to know what to do.”
Marks had told the first trooper that he would write up his version of the accident and the second trooper said to let him do that, Lemon said that the video showed.
Lemon quoted the conversation between the troopers, saying that the second trooper said, “You know I saw them (KDOT workers) doing that the other day, parked down the bottom of the hill in the truck, and I took a video of it.”
Lemon contended that the workers had left the dump truck parked completely on the roadway, and that the second trooper had noticed that situation some days before the accident happened.
“It was so substantial that a trooper would take his time to video that truck at the bottom of the hill and doing work, the same circumstance we’re seeing here,” Lemon said.
Lemon said that the videotape showed Marks telling the trooper he thought he was driving 60 mph “and Mr. Marks said they were parked right in the middle of the road. Tom Marks told the truth. ... He wasn’t going to lie. Thereafter he tells the trooper, ‘I tried to stop. I tried to do everything I could to try to stop.’”
The prosecution used Marks’ admission about his travel speed during the trial, but ignored Marks’s saying that the dump truck was parked in the middle of the road.
“There was never any emphasis given to the fact that there’s a KDOT truck parked right in the middle of the road,” Lemon said. “... The only thing they grabbed on to was the fact that he admitted he was doing 60, and the rest, just throw it out the window.”
Lemon said that the driver of another truck approaching moments before the accident happened had testified that after passing the dump truck “she says to herself, ‘What a stupid place to park’ and then she sees the oncoming Marks vehicle and she tells herself again that was a really stupid place for the KDOT truck to park.”
Lemon reiterated that the KHP trooper “thought enough of that danger that he recorded it on his own in-car camera.”
Lemon said that the KDOT truck should have been accompanied by a follow-up vehicle equipped to alert other drivers to the presence of a work crew or that other measures recommended by KDOT policy should have been taken to protect the two workers.
Marks had testified that, in the 1.7 seconds available to make a decision, he had been afraid that slamming on the brakes could jackknife the truck and involve more vehicles. He therefore chose to try to pass the dump truck; instead, his vehicle struck the struck and overturned it onto the workers.
“If everything was done perfectly, he had 1.7 seconds to spare,” Lemon said. “Everything wasn’t perfect here.”
Marks did what he could to avoid the accident, Lemon said. He contended that the accident was due to negligence, not material deviation.
“His sin that day was to drive three to five miles per hour over that speed limit. That was it. ... We know that this was a tragic, tragic, tragic situation. There’s nothing more that can be said. A man died. ... People’s lives were changed forever.”
Aranda said that it was Marks’ conduct that was being judged in the case.
“Nowhere in the instructions that you’ve received does it say that you’re to consider the actions of these victims,” she said. “He created the situation that took Richard Cunningham’s life and severely injured Gary Burroughs.”
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