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III.C. Unintentional Homicide
  • 1 III.C.i. Involuntary Manslaughter and Similar Offences

    The intentional homicides we just studied required us to differentiate between what were clearly blameworthy acts. Unintentional homicide poses a different problem: how to distinguish between criminal deaths and noncriminal deaths, when the perpetrator did not act with purpose to kill or with knowledge that his conduct would result in killing.

    When is a death deemed the result of someone’s criminal negligence or recklessness, and when is it a horrible accident that does not result in criminal liability? Some of the cases in this section present unsavory and unsympathetic protagonists; you may be able to empathize with others. Consider what the courts in each case think the defendants did wrong, and what legal tests they use to make those determinations.

    • 1.1 Commonwealth v. Welansky

      1

      316 Mass. 383

      2
      COMMONWEALTH
      3
      vs.
      4
      BARNETT WELANSKY
      5
      (and a companion case against the same defendant).
      6

      June 5, 1944

      7

      Supreme Judicial Court of Massachusetts, Suffolk

      8

       

      9

      Present: FIELD, C.J., LUMMUS, QUA, DOLAN, RONAN, & SPALDING, JJ. 

      10

      At the trial of an indictment charging the defendant with manslaughter in wantonly and recklessly failing to fulfil his duty to use reasonable care to keep the premises of a night club, to which he invited the general public, safe for their use, the mere fact, that the defendant had been absent from the premises for twelve days preceding a fire where deaths occurred owing to a failure to furnish proper exits in the event of a fire, did not require a verdict of not guilty where there was evidence that he was solely responsible for the "system" at the club before his absence, that there had been no change in conditions at the club during his absence, and that he "knew . . . the same system . . . [he] had would continue" during his absence.

      11

      A count in an indictment which followed the form for "Manslaughter" appended to G. L. (Ter. Ed.) c. 277, Section 79, properly might be used in a case of involuntary manslaughter.

      12

      No error appeared in the denial of motions to quash indictments charging the defendant with manslaughter in wantonly and recklessly failing to fulfil his duty to use reasonable care to keep the premises of a [384] night club, to which he invited the general public, safe for their use, as a result of which deaths occurred on the occasion of a fire, where the indictment, read with specifications by the Commonwealth giving details of such failure, apprised the defendant of the crime charged sufficiently to comply with art. 12 of the Declaration of Rights and fairness to him.

      13

      Wanton or reckless conduct as the basis of conviction under an indictment for manslaughter against one in control of premises to which he has invited the public as business visitors may consist of intentional failure to care for their safety in disregard of their right to such care or in disregard of probable harmful consequences to them of such failure.

      14

      The use of the word "wilful," prefacing the words "wanton" and "reckless," blurs the concept of wanton or reckless conduct. Per LUMMUS, J.

      15

      Discussion by LUMMUS, J., of wanton or reckless conduct.

      16

      At common law in this Commonwealth, conduct resulting in death does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wantonor reckless conduct. Per LUMMUS, J.

      17

      One, who by his wanton or reckless conduct causes injury to another which results in his death, may be found guilty of manslaughter.

      18

      To establish guilt under an indictment charging one in control of a night club with manslaughter of patrons whose lives were lost when a fire occurred on the premises and they were unable to escape because of insufficiency of the exits, the Commonwealth was not required to prove that the defendant caused the fire by wanton or reckless conduct, but only that the deaths resulted from his wanton or reckless disregard of the safety of his patrons in the event of fire from any cause.

      19

      No error appeared in ordering a view by the jury trying an indictment for manslaughter resulting from a destructive fire in a night club although over three months had passed since the fire, or in admitting in evidence photographs of the premises taken after the fire, where it appeared that material changes from conditions before the fire could have been shown by evidence.

      20

      At the trial of an indictment for manslaughter for deaths occurring through a fire in a night club owned by a corporation, the admission of evidence, offered in chief by the Commonwealth, that the defendant was in complete control of the corporation and the premises, including testimony that he gave orders to the corporation's clerk to make and attest records and returns of imaginary meetings and votes, disclosed no error where the matter of control was a live issue in the case until the defendant admitted complete control while testifying in his own behalf.

      21

      One who was in complete control of a corporation might properly be indicted and convicted of manslaughter resulting from wanton or reckless conduct on his part although the corporation also might have been indicted and convicted therefor.

      22

      Evidence, at the trial of an indictment for manslaughter against one in control of the construction and maintenance of a night club, that the defendant deliberately failed to instal fire doors called for on plans of [385] the premises approved by the municipal building department was properly admitted, with other evidence showing deliberate failure of the defendant to care for the safety of his patrons by providing proper exits in case of fire, as showing wanton or reckless conduct on his part causing the death of numerous patrons through a fire occurring in the club.

      23

      The admission of evidence of defective wiring as part of the evidence introduced in chief by the Commonwealth at the trial of an indictment against one in control of a night club for manslaughter resulting from a fire on the premises, was proper at the time of its admission and disclosed no error although the Commonwealth subsequently failed to introduce any evidence that the defendant knew or had reason to know of such defect or that it had any causal relation to the fire.

      24

      The indictments were tried before Hurley, J., on March 16 to April 10, 1943, inclusive. After conviction the defendant appealed, filing one hundred twenty-four assignments of error. Among such assignments were the following:

      25

      106. The refusal to give the following instruction requested by the defendant: "The fact that the fire started in the New Cocoanut Grove, Inc. is not evidence that it was started by the defendant, nor is any criminal liability for the fire attached to the defendant solely because he was an officer of the corporation."

      26

      108. The refusal to give the following instruction requested by the defendant: "If the death or deaths of the persons named resulted from the fire, and the fire was started by someone other than the defendant and not because of the defendant's acts or failure to act, then he must be found not guilty."

      27

      111. The refusal to give the following instruction requested by the defendant: "If the jury finds that the acts or omissions of the defendant, even though wanton and reckless on his part, were not the cause of the fire, and the fire caused the deaths . . . the defendant must be found not guilty."

      28

      105. The denial and refusal to grant the motion of the defendant that the court direct the jury to return a verdict of not guilty as to each count submitted to them.

      29

      [386] 109. The refusal to give the following instruction requested by the defendant: "If the jury finds that the deceased . . . were unable to make their way to any door or window, or any exit, by reason of being overcome by fire, flame, heat, smoke or gases, it cannot be found that the defect, if any, of egresses was the proximate cause of the deaths."

      30

      114. The refusal to give the following instruction requested by the defendant: "Unless you find on all the evidence that any reasonable man would have foreseen or anticipated that the fire in New Cocoanut Grove would be started and act as you find it acted, the defendant cannot be convicted of causing the deaths."

      31

      122. An instruction to the jury in the charge that they could consider, and should so do, the state of mind of the defendant, not at the time the calamity occurred, on November 28, 1942, "but for any period of time prior thereto in determining whether or not . . . [his] conduct indicated an utter indifference to the rights of parties as if those rights did not exist."

      32

      The cases were argued at the bar in February, 1944, before Field, C.J., Donahue, Lummus, Dolan, & Ronan, JJ., and after the retirement of Donahue & Cox, JJ., were submitted on briefs to Qua & Spalding, JJ.

      33

      D. J. Gallagher, (H. F. Callahan, E. M. Dangel, T. N. Creed, & A. C. Webber with him,) for the defendant.

      34

      F. T. Doyle, Assistant District Attorney, (J. K. Collins & A. H. Salisbury, Assistant Attorneys General, with him,) for the Commonwealth.

      35

       

      36

      LUMMUS, J.

      37

      On November 28, 1942, and for about nine years before that day, a corporation named New Cocoanut Grove, Inc., maintained and operated a "night club" in Boston, having an entrance at 17 Piedmont Street, for the furnishing to the public for compensation of food, drink, and entertainment consisting of orchestra and band music, singing and dancing. It employed about eighty persons. The corporation, its officers and employees, and its business, were completely dominated by the defendant Barnett Welansky, who is called in this opinion simply the defendant, [387] since his codefendants were acquitted by the jury. He owned, and held in his own name or in the names of others, all the capital stock. He leased some of the land on which the corporate business was carried on, and owned the rest, although title was held for him by his sister. He was entitled to, and took, all the profits. Internally, the corporation was operated without regard to corporate forms, as though the business were that of the defendant as an individual. It was not shown that responsibility for the number or condition of safety exits had been delegated by the defendant to any employee or other person.

      38

      The defendant was accustomed to spend his evenings at the night club, inspecting the premises and superintending the business. On November 16, 1942, he became suddenly ill, and was carried to a hospital, where he was in bed for three weeks and remained until discharged on December 11, 1942. During his stay at the hospital, although employees visited him there, he did not concern himself with the night club, because, as he testified, he "knew it would be all right" and that "the same system . . . [he] had would continue" during his absence. There is no evidence of any act, omission or condition at the night club on November 28, 1942, (apart from the lighting of a match hereinafter described), that was not within the usual and regular practice during the time before the defendant was taken ill when he was at the night club nearly every evening. While the defendant was at the hospital, his brother James Welansky and an employee named Jacob Goldfine, who were made codefendants, assumed some of the defendant's duties at the night club, but made no change in methods. Under these circumstances the defendant was not entitled to a verdict of not guilty on the ground that any acts or omissions on the evening of November 28, 1942, were the transitory and unauthorized acts or omissions of servants or other persons, for which the defendant could not be held criminally responsible. Commonwealth v. Stevens, 153 Mass. 421 . Commonwealth v. Anthony, 306 Mass. 470 , 478.

      39

      The physical arrangement of the night club on November 28, 1942, as well as on November 16, 1942, when the defendant [388] last had personal knowledge of it, was as follows. The total area of the first or street floor was nine thousand seven hundred sixty-three square feet. Entering the night club through a single revolving door at 17 Piedmont Street, one found himself in a foyer or hall having an area of six hundred six square feet. From the foyer, there was access to small rooms used as toilets, to a powder room and a telephone room, to a small room for the checking of clothing, and to another room with a vestibule about five feet by six feet in size adjoining it, both of which were used as an office in the daytime and for the checking of clothing in the evening. In the front corner of the foyer, to the left, beyond the office, was a passageway leading to a stairway about four feet wide, with fifteen risers. That stairway led down to the Melody Lounge in the basement, which was the only room in the basement open to the public. There were to be found a bar, tables and chairs.

      40

      The extreme dimensions of the Melody Lounge were about thirty-six feet by fifty-five feet, and its area was one thousand eight hundred ninety-five square feet. It was separated from a narrow corridor leading to the kitchen (which was located under the main dining room) by a wooden partition. In that partition was a wooden door, two feet and two inches wide, which could have been found to be unmarked. Passing from the Melody Lounge through that door, and thus entering the narrow corridor, one could turn to the left and go to a door which swung inward and could be opened only to a width of eighteen inches, at the top of three steps. That door was barred by a wooden bar that had to be lifted off before the door could be opened at all. On opening that door, one could pass into an outdoor alley about three and one half feet wide. That alley led to a yard, from which egress could be had through in-swinging doors into another passageway and thence to Shawmut Street.

      41

      If, instead, one passing from the Melody Lounge into the narrow corridor should turn to the right, he might pass, as employees were accustomed to do, through a door two and one half feet wide swinging into the corridor from the kitchen. Once in the kitchen, he could traverse that room with all its [389] equipment to the other end of it near Shawmut Street, and then go upstairs and through swinging doors into a corner of the main dining room.

      42

      It is evident that in an emergency escape from the Melody Lounge by either of these courses would be difficult for a patron not thoroughly familiar with parts of the premises not ordinarily open to him.

      43

      Returning to the foyer, and standing as though one had just entered it by the revolving door, to the right, in the front of the building on Piedmont Street, was a room called the Caricature Bar, with an area of one thousand three hundred ninety-nine square feet, containing two bars, stools and chairs. Toward Shawmut Street, and separated from the Caricature Bar by a railing, was the main dining room, with an area of three thousand seven hundred sixty-five square feet. The foyer opened into both the Caricature Bar and the main dining room. In the main dining room was a dance floor with an area of six hundred sixty square feet, and behind it, in the direction of Broadway, was a stage with an area of four hundred thirty-six square feet.

      44

      From the Caricature Bar and from the main dining room one could pass into a corridor near the stage, about four feet wide, up some steps, and through a passageway about seven feet wide into the new Cocktail Lounge, which was first opened on November 17, 1942, and which had an area of seven hundred eighty-one square feet. There one found a bar, stools, tables and seats, and also a check room and toilets. In the farther corner of the Cocktail Lounge was a door three feet wide, swinging inward, through which one could enter a small vestibule from which he could go through a pair of doors to Broadway at 59 Broadway.

      45

      That pair of doors, and the revolving door at 17 Piedmont Street, were the only entrances and exits intended for the ordinary use of patrons. Besides those doors, and the exit through the wooden partition from the Melody Lounge, already described, there were five possible emergency exits from the night club, all on the first or street floor. These will now be listed and described.

      46

      (1) A door, opening outward to Piedmont Street, two [390] and one half feet wide, at the head of the stairway leading to and from the basement Melody Lounge. That door apparently was not visible from the greater part of the foyer, for it was in a passageway that ran from one end of the foyer past the office to the stairway. That door was marked "Exit" by an electric sign. It was equipped with a "panic" or "crash" bar, intended to unbolt and open the door upon pressure from within the building. But on the evidence it could have been found that the device just mentioned was regularly made ineffective by having the door locked by a separate lock operated by a key that was kept in a desk in the office. Late in the evening of November 28, 1942, firemen found that door locked and had to force it open with an axe. The jury were entitled to disbelieve the testimony of the defendant that he had instructed the head waiter, who died in the occurrence of that evening, always to keep that door unlocked. It may be observed that if that door should be left so that it could be opened by means of the panic bar, a patron might leave through that door without paying his bill. It does not appear that anyone watched that door to prevent patrons from so doing.

      47

      (2) A door two and one third feet wide leading from the foyer, near the revolving door, into the small vestibule adjoining the office, already described. From that vestibule another similar door, swinging inward, gave egress to Piedmont Street, near the revolving door. The door to Piedmont Street could not be opened fully, because of a wall shelf. And that door was commonly barred in the evening, as it was on November 28, 1942, by a removable board with clothing hooks on it, and by clothing, for in the evening the office and vestibule were used for checking clothing.

      48

      (3) A door, opening outward, from the middle of the wall of the main dining room to Shawmut Street, and marked "Exit" by an electric sign. The opening was about three and two thirds feet wide. The defendant testified that this was the principal exit provided for emergencies. From the sides of the opening hung double doors, equipped with "panic" bars intended to unbolt and open the doors upon pressure from within. But on the evening of November 28, [391] 1942, one of the two doors did not open upon pressure, and had to be hammered with a table before it would open. Besides, the "panic" doors were hidden from the view of diners by a pair of "Venetian" wooden doors, swinging inward, and fastened by a hook, which had to be opened before one could operate the "panic" doors. In addition, dining tables were regularly placed near the Venetian doors, one of them within two feet, and these had to be moved away in order to get access to the doors. That condition prevailed on the evening of November 28, 1942.

      49

      (4) The service door, two and one half feet wide, swinging inward, leading to Shawmut Street at 8 Shawmut Street. This door was near the stage, at the foot of a stairway leading to dressing rooms on the second floor, and was in a part of the premises to which patrons were not admitted and which they could not see. This door was known to employees, but doubtless not to patrons. It was kept locked by direction of the defendant, and the key was kept in a desk in the office.

      50

      (5) The door, two and three fourths feet wide, swinging inward, leading from a corridor into which patrons had no occasion to go, to Shawmut Street at 6 Shawmut Street. No patron was likely to know of this door. It was kept locked by direction of the defendant, but he ordered the key placed in the lock at seven every evening.

      51

      We now come to the story of the fire. A little after ten o'clock on the evening of Saturday, November 28, 1942, the night club was well filled with a crowd of patrons. It was during the busiest season of the year. An important football game in the afternoon had attracted many visitors to Boston. Witnesses were rightly permitted to testify that the dance floor had from eighty to one hundred persons on it, and that it was "very crowded." Beverley v. Boston Elevated Railway, 194 Mass. 450 , 457. Witnesses were rightly permitted to give theirestimates, derived from their observations, of the number of patrons in various parts of the night club. Upon the evidence it could have been found that at that time there were from two hundred fifty to four hundred persons in the Melody Lounge, from four hundred [392] to five hundred in the main dining room and the Caricature Bar, and two hundred fifty in the Cocktail Lounge. Yet it could have been found that the crowd was no larger than it had been on other Saturday evenings before the defendant was taken ill, and that there had been larger crowds at earlier times. There were about seventy tables in the dining room, each seating from two to eight persons. There was testimony that all but two were taken. Many persons were standing in various rooms. The defendant testified that the reasonable capacity of the night club, exclusive of the new Cocktail Lounge, was six hundred fifty patrons. He never saw the new Cocktail Lounge with the furniture installed, but it was planned to accommodate from one hundred to one hundred twenty-five patrons.

      52

      A bartender in the Melody Lounge noticed that an electric light bulb which was in or near the cocoanut husks of an artificial palm tree in the corner had been turned off and that the corner was dark. He directed a sixteen year old bar boy who was waiting on customers at the tables to cause the bulb to be lighted. A soldier sitting with other persons near the light told the bar boy to leave it unlighted. But the bar boy got a stool, lighted a match in order to see the bulb, turned the bulb in its socket, and thus lighted it. The bar boy blew the match out, and started to walk away. Apparently the flame of the match had ignited the palm tree and that had speedily ignited the low cloth ceiling near it, for both flamed up almost instantly. The fire spread with great rapidity across the upper part of the room, causing much heat. The crowd in the Melody Lounge rushed up the stairs, but the fire preceded them. People got on fire while on the stairway. The fire spread with great speed across the foyer and into the Caricature Bar and the main dining room, and thence into the Cocktail Lounge. Soon after the fire started the lights in the night club went out. The smoke had a peculiar odor. The crowd were panic stricken, and rushed and pushed in every direction through the night club, screaming, and overturning tables and chairs in their attempts to escape.

      53

      The door at the head of the Melody Lounge stairway [393] was not opened until firemen broke it down from outside with an axe and found it locked by a key lock, so that the panic bar could not operate. Two dead bodies were found close to it, and a pile of bodies about seven feet from it. The door in the vestibule of the office did not become open, and was barred by the clothing rack. The revolving door soon jammed, but was burst out by the pressure of the crowd. The head waiter and another waiter tried to get open the panic doors from the main dining room to Shawmut street, and succeeded after some difficulty. The other two doors to Shawmut Street were locked, and were opened by force from outside by firemen and others. Some patrons escaped through them, but many dead bodies were piled up inside them. A considerable number of patrons escaped through the Broadway door, but many died just inside that door. Some employees, and a great number of patrons, died in the fire. Others were taken out of the building with fatal burns and injuries from smoke, and died within a few days.

      54
      I. The pleadings, verdicts, and judgments.
      55

       

      56

      The defendant, his brother James Welansky, and Jacob Goldfine, were indicted for manslaughter in sixteen counts of an indictment numbered 413, each count for causing the death of a person described as "Jane Doe," "John Doe," or the like. The first six counts were quashed, leaving the last ten counts. Later a motion by the Commonwealth was allowed, substituting in each of the last ten counts the real name of a victim. See Commonwealth v. DiStasio, 294 Mass. 273 , 278, 279. Voluntarily the Commonwealth filed specifications as to those counts, by which it specified among other things that the alleged misconduct of the defendant consisted in causing or permitting or failing reasonably to prevent defective wiring, the installation of inflammable decorations, the absence of fire doors, the absence of "proper means of egress properly maintained" and "sufficient proper" exits, and overcrowding. Some other specifications -- such as failure to prevent the unlawful employment of minors -- plainly had little or no relation [394] to any wanton or reckless conduct that might result in manslaughter. The Commonwealth refused to specify as requested by the defendant what statutes, what "provisions of" the common law, or what ordinances, had been violated. The Commonwealth did specify the nature of the mortal injuries suffered by the different victims, all of whom were patrons, and the harmful consequences to which acts or omissions of the defendant exposed the several victims and which could have been foreseen by the defendant. The judge refused to require further specifications.

      57

      The defendant moved to quash each count because (1) when read with the specifications it sets out no crime, and (2) when read with the specifications it does not fully, plainly, substantially and formally set out any crime as required by art. 12 of the Declaration of Rights. Each of the counts numbered from 7 to 12 inclusive as amended alleged in substance that the New Cocoanut Grove, Inc., a corporation, did for a period of time prior to and including November 28, 1942, maintain and operate a night club, to which it invited members of the general public; that it was under a legal duty to its invitees to use reasonable care to keep its premises safe for their use; that the three persons indicted were authorized by the corporation to maintain, control, operate, construct, alter, supervise, and manage its premises in its behalf; that said three persons accepted the responsibility for such acts, and were therefore under a duty to its invitees to use such reasonable care; that in reckless disregard of such duty to one (naming the victim) who was lawfully upon said premises pursuant to such invitation to the general public, and of the probable harmful consequences to him of their failure to perform said duty, they and each of them did "wilfully, wantonly and recklessly neglect and fail to fulfil their said legal duty and obligation to the said" victim, by reason whereof he on November 28, 1942, received a mortal injury, as a result of which on that day he died.

      58

      Each of the thirteenth and fourteenth counts is in shorter form, and alleges in substance that the three persons indicted and each of them on November 28, 1942, did "maintain, [395] manage, operate and supervise certain premises," describing them, "and solicited and invited the patronage of the public to the said premises"; that at the aforesaid time and place the named victim was lawfully upon the aforesaid premises as a customer on the said invitation, and that the three persons indicted and each of them did "assault and beat" the said victim, and by said assault and beating did kill him "by wilfully, wantonly and recklessly maintaining, managing, operating and supervising the said premises." Each of counts 15 and 16 alleges merely that the defendants assaulted and beat a named victim and by such assaulting and beating did kill the victim.

      59

      Another indictment numbered 414 in sixteen counts was returned against the same three persons. The first six counts were quashed, and a verdict of not guilty was directed upon the sixteenth count. That left nine counts, numbered 7 to 15 inclusive. Counts 7 to 14 inclusive were substantially like counts 7 to 14 inclusive in the indictment numbered 413, except for the names of the victims. Count 15 was a short count alleging that the three persons indicted "on the twenty-eighth day of November in the year of our Lord one thousand nine hundred and forty-two, did, all and each of them, assault and beat one Eleanor Chiampa, and by such assault and beating, did kill the said Eleanor Chiampa." That count followed the form of an indictment for "Manslaughter" appended to G. L. (Ter. Ed.) c. 277, Section 79. That form could properly be used even in a case of involuntary manslaughter. Commonwealth v. Arone, 265 Mass. 128 . Upon this indictment the Commonwealth furnished specifications substantially like those furnished upon indictment 413.

      60

      The motions to quash certain counts of these indictments were properly denied. The judge was bound to require a bill of particulars only to the extent that without it the indictment would be deficient in that the offence charged would not be "fully, plainly, substantially and formally set out," as required by art. 12 of the Declaration of Rights. G. L. (Ter. Ed.) c. 277, Section 40. Commonwealth v. Snell, 189 Mass. 12 , 18, 19. Commonwealth v. Sinclair, 195 Mass. 100 , [396] 105-108. Commonwealth v. Massad, 242 Mass. 532 . Beyond that the requirement of particulars or specifications was discretionary. Commonwealth v. King, 202 Mass. 379 , 384. Commonwealth v. Bartolini, 299 Mass. 503 , 509. Commonwealth v. Hayes, 311 Mass. 21 . The defendant had the benefit of specifications that were fully as complete and detailed as were necessary for compliance with the Constitution or for fairness to him. Commonwealth v. Wakelin, 230 Mass. 567 , 571. Commonwealth v. Lammi, 310 Mass. 159 . For constitutional purposes "all that is required is that the indictment, read with the bill of particulars, be sufficient fully, plainly, substantially and formally to give the defendant reasonable knowledge of the crime with which he is charged." Commonwealth v. Hayes, 311 Mass. 21 , 25. Commonwealth v. Gedzium, 259 Mass. 453 , 457. Commonwealth v. Albert, 307 Mass. 239 , 243. There is nothing in the motions to quash. There is still less, if that were possible, in the belated attempt to raise the same question of pleading by motion in arrest of judgment. Commonwealth v. McKnight, 283 Mass. 35 , 38, 39.

      61

      The defendant was found guilty upon counts 7 to 16 inclusive of indictment 413 and upon counts 7 to 15 inclusive of indictment 414. He was sentenced to imprisonment in the State prison upon each count for a term of not less than twelve years and not more than fifteen years, the first day of said term to be in solitary confinement and the residue at hard labor (G. L. [Ter. Ed.] c. 279, Section 29), the sentences to run concurrently. Upon a motion for a stay in the execution of the sentences, a stay was denied. G. L. (Ter. Ed.) c. 279, Section 4, as amended by St. 1935, c. 50, Section 3. The cases come here under G. L. (Ter. Ed.) c. 278, Sections 33A-33G, upon an appeal, a transcript of the evidence, a summary of the record, and an assignment of one hundred twenty-four alleged errors.

      62
      II. The principles governing liability.
      63

       

      64

      The Commonwealth disclaimed any contention that the defendant intentionally killed or injured the persons named in the indictments as victims. It based its case on involuntary [397] manslaughter through wanton or reckless conduct. The judge instructed the jury correctly with respect to the nature of such conduct. [1]

      65

      Usually wanton or reckless conduct consists of an affirmative act, like driving an automobile or discharging a firearm, in disregard of probable harmful consequences to another. But where, as in the present case, there is a duty of care for the safety of business visitors invited to premises which the defendant controls, [2] wanton or reckless conduct may consist of intentional failure to take such care in disregard of the probable harmful consequences to them or of their right to care. Aiken v. Holyoke Street Railway, 184 Mass. 269 , 271. Banks v. Braman, 188 Mass. 367 , 369. Queen v. Senior, [1899] 1 Q. B. 283. State v. Benton, 38 Del. 1. Am. Law Inst. Restatement: Torts, Section 500. 26 Am. Jur. Homicide, Sections 205-208. 29 C. J. 1154, et seq.

      66

      To define wanton or reckless conduct so as to distinguish it clearly from negligence and gross negligence is not easy. Banks v. Braman, 188 Mass. 367 , 370. Commonwealth v. Arone, 265 Mass. 128 , 132. Sometimes the word "wilful" is prefaced to the words "wanton" and "reckless" in expressing the concept. That only blurs it. Wilful means intentional. In the phrase "wilful, wanton or reckless conduct," if "wilful" modifies "conduct" it introduces [398] something different from wanton or reckless conduct, even though the legal result is the same. Wilfully causing harm is a wrong, but a different wrong from wantonly or recklessly causing harm. If "wilful" modifies "wanton or reckless conduct" its use is accurate. What must be intended is the conduct, not the resulting harm. Altman v. Aronson, 231 Mass. 588 , 592. Banks v. Braman, 188 Mass. 367 , 369. The words "wanton" and "reckless" are practically synonymous in this connection, although the word "wanton" may contain a suggestion of arrogance or insolence or heartlessness that is lacking in the word "reckless." But intentional conduct to which either word applies is followed by the same legal consequences as though both words applied.

      67

      The standard of wanton or reckless conduct is at once subjective and objective, as has been recognized ever since Commonwealth v. Pierce, 138 Mass. 165 . Knowing facts that would cause a reasonable man to know the danger is equivalent to knowing the danger. Banks v. Braman, 188 Mass. 367 , 369. Romana v. Boston Elevated Railway, 218 Mass. 76 , 83. Commonwealth v. Peach, 239 Mass. 575 . Nash v. United States, 229 U.S. 373, 377. Arizona Employer's Liability Cases, 250 U.S. 400, 432. Am. Law Inst. Restatement: Torts, Section 500, and also comments c and f. See also Brennan v. Schuster, 288 Mass. 311 . The judge charged the jury correctly when he said, "To constitute wanton or reckless conduct, as distinguished from mere negligence, grave danger to others must have been apparent, and the defendant must have chosen to run the risk rather than alter his conduct so as to avoid the act or omission which caused the harm. If the grave danger was in fact realized by the defendant, his subsequent voluntary act or omission which caused the harm amounts to wanton or reckless conduct, no matter whether the ordinary man would have realized the gravity of the danger or not. But even if a particular defendant is so stupid [or] so heedless . . . that in fact he did not realize the grave danger, he cannot escape the imputation of wanton or reckless conduct in his dangerous act or omission, if an ordinary normal [399] man under the same circumstances would have realized the gravity of the danger. A man may be reckless within the meaning of the law although he himself thought he was careful."

      68

      The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another. Am. Law Inst. Restatement: Torts, Section 500. LeSaint v. Weston, 301 Mass. 136 , 138. Wanton or reckless conduct amounts to what has been variously described as indifference to or disregard of probable consequences to that other (Aiken v. Holyoke Street Railway, 184 Mass. 269 , 271; Freeman v. United Fruit Co. 223 Mass. 300 , 302; Banks v. Braman, 188 Mass. 367 , 369; Yancey v. Boston Elevated Railway, 205 Mass. 162 , 171; Burns's Case, 218 Mass. 8 , 10; Romana v. Boston Elevated Railway, 218 Mass. 76 , 83; Sullivan v. Napolitano, 277 Mass. 341 , 344) or the rights of that other. Warren v. Pazolt, 203 Mass. 328 , 347. Commonwealth v. Horsfall, 213 Mass. 232 , 235. Cohen v. Davies, 305 Mass. 152 , 155, 156. But we are not prepared to give unqualified approval to a further statement found in some of our reported decisions, for example in Query v. Howe, 273 Mass. 92 , 96, that to constitute wanton or reckless conduct, disregard of the rights of another must be as complete or utter as though such rights did not exist. If taken literally, that statement would permit a trifling regard for the rights of another to exonerate a defendant from the criminal consequences of flagrant wrongdoing.

      69

      The words "wanton" and "reckless" are thus not merely rhetorical or vituperative expressions used instead of negligent or grossly negligent. They express a difference in the degree of risk and in the voluntary taking of risk so marked, as compared with negligence, as to amount substantially and in the eyes of the law to a difference in kind. Banks v. Braman, 188 Mass. 367 . Cotter, petitioner, 237 Mass. 68 , 72. Adamowicz v. Newburyport Gas & Electric Co. 238 Mass. 244 , 246. Prondecka v. Turners Falls Power & Electric Co. 238 Mass. 239 , 242; S. C. 241 Mass. 100 , 102. McIntyre v. Converse, [400] 238 Mass. 592 , 594. Young v. Worcester, 253 Mass. 481 , 484. Potter v. Gilmore, 282 Mass. 49 , 57. Am. Law Inst. Restatement: Torts, Section 500, comment g. For many years this court has been careful to preserve the distinction between negligence and gross negligence, on the one hand, and wanton or reckless conduct on the other. Prondecka v. Turners Falls Power & Electric Co. 238 Mass. 239 ; S. C. 241 Mass. 100 . Compare Jamison v. Encarnacion, 281 U.S. 635; Alpha Steamship Corp. v. Cain, 281 U.S. 642. In pleadings as well as in statutes the rule is that "negligence and wilful and wanton conduct are so different in kind that words properly descriptive of the one commonly exclude the other." Miller v. United States Fidelity & Guaranty Co. 291 Mass. 445 , 447. Romana v. Boston Elevated Railway, 226 Mass. 532 , 536.

      70

      Notwithstanding language used commonly in earlier cases, and occasionally in later ones, [3] it is now clear in this Commonwealth that at common law conduct does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wanton or reckless conduct. There is in Massachusetts at common law no such thing as "criminal negligence." Commonwealth v. Guillemette, 243 Mass. 346 . Commonwealth v. Arone, 265 Mass. 128 . Commonwealth v. Jones, 288 Mass. 150 , 152. [401] Minasian v. Aetna Life Ins. Co. 295 Mass. 1 , 5. Commonwealth v. Maguire, 313 Mass. 669 .

      71

      Wanton or reckless conduct is the legal equivalent of intentional conduct. Aiken v. Holyoke Street Railway, 184 Mass. 269 , 271. Banks v. Braman, 188 Mass. 367 , 369. McIntyre v. Converse, 238 Mass. 592 , 594. Sullivan v. Napolitano, 277 Mass. 341 . Isaacson v. Boston, Worcester & New York Street Railway, 278 Mass. 378 , 387. Baines v. Collins, 310 Mass. 523 , 526. Am. Law Inst. Restatement: Torts, Section 282, comment d. If by wanton or reckless conduct bodily injury is caused to another, the person guilty of such conduct is guilty of assault and battery. Commonwealth v. Hawkins, 157 Mass. 551 . Commonwealth v. Gorman, 288 Mass. 294 , 299. Commonwealth v. McCan, 277 Mass. 199 , 203. State v. Schutte, 87 N. J. L. 15, affirmed 88 N. J. L. 396. Brimhall v. State, 31 Ariz. 522; 53 Am. L. R. 231. Woodward v. State, 164 Miss. 468. Davis v. Commonwealth, 150 Va. 611. And since manslaughter is simply a battery that causes death (Minasian v. Aetna Life Ins. Co. 295 Mass. 1 , 5; Commonwealth v. Velleco, 272 Mass. 94 , 99), if death results he is guilty of manslaughter. Commonwealth v. Hartwell, 128 Mass. 415 , 417. Commonwealth v. Pierce, 138 Mass. 165 . Commonwealth v. Hawkins, 157 Mass. 551 , 553. Commonwealth v. Parsons, 195 Mass. 560 , 569. Commonwealth v. Peach, 239 Mass. 575 . Commonwealth v. Guillemette, 243 Mass. 346 . Commonwealth v. Arone, 265 Mass. 128 . Commonwealth v. Jones, 288 Mass. 150 , 152. Minasian v. Aetna Life Ins. Co. 295 Mass. 1 , 5. Commonwealth v. Maguire, 313 Mass. 669 .

      72

      To convict the defendant of manslaughter, the Commonwealth was not required to prove that he caused the fire by some wanton or reckless conduct. Fire in a place of public resort is an ever present danger. It was enough to prove that death resulted from his wanton or reckless disregard of the safety of patrons in the event of fire from any cause.

      73
      III. The alleged errors at the trial.
      74

       

      75

      1. There is nothing in the contention that the judge should not have ordered a view of the burned premises, and [402] should not have admitted photographs taken after the fire. True, the fire changed the appearance of the place, and the defendant suggests that acts of individuals after the fire also made some changes. But the walls, most of the partitions, and even some of the furniture, remained. The view enabled the jury to understand the evidence. The photographs were of value as evidence. Any material changes from conditions before the fire could have been shown by evidence.

      76

      2. The Commonwealth had the burden of showing that the alleged wanton or reckless failure to care for the safety of patrons was that of the defendant rather than that of some other officer or employee to whom the duty had been entrusted. Criminal responsibility is generally personal, and personal fault must be shown. Commonwealth v. Stevens, 153 Mass. 421 . Commonwealth v. Anthony, 306 Mass. 470 , 478. Commonwealth v. Beal, 314 Mass. 210 , 222. Braga v. Braga, 314 Mass. 666 , 672. Until the defendant testified at a late stage of the case, he admitted nothing, and excepted to the introduction of almost every piece of evidence tending to show his control of the corporation or of its premises. The Commonwealth was entitled to introduce in detail facts showing such control. One such fact was that he frequently gave orders to the clerk of the corporation to make and attest records and returns of imaginary meetings and votes. The defendant excepted to the admission of each piece of evidence, but did not take the course, which would have made all such evidence immaterial and unnecessary, of admitting complete control, until he did so in his later testimony. He now complains that the jury were given an unfavorable impression of his character and conduct in matters not relevant to any wanton or reckless conduct. But if he has been prejudiced thereby, he should blame his own insistence upon trying the case "closely," as the phrase is, with respect to a point that later he had to admit.

      77

      3. There is nothing in the point that because the corporation might have been indicted and convicted, the defendant could not be. The defendant was in full control of the [403] corporation, its officers and employees, its business and its premises. He could not escape criminal responsibility by using a corporate form.

      78

      4. The Commonwealth was properly allowed to show that an exit from the Cocktail Lounge to Shawmut Street and fire doors in the Cocktail Lounge and between that and the older part of the premises, called for by the plans that were approved by the building department of the city of Boston under St. 1907, c. 550, Section 12, as amended, had not been provided when the defendant last had knowledge of the premises on November 16, 1942, although he planned to open the Cocktail Lounge the next day; that the mode of construction of the Cocktail Lounge indicated that he did not intend to provide either; and that they had not been provided at the time of the fire. As planned, the fire doors were to be held open by fusible plugs that would melt and allow the doors to close automatically in case of fire. They and the exit might have afforded some protection to persons in the Cocktail Lounge. The violation of such a statute is not negligence per se, but sometimes is evidence of negligence. Richmond v. Warren Institution for Savings, 307 Mass. 483 . Kelly v. Hathaway Bakeries, Inc. 312 Mass. 297 , 299. Greenway Wood Heel Co. Inc. v. John Shea Co. 313 Mass. 177 . Carroll v. Hemenway, 315 Mass. 45 , 46-47. Standing by itself, it would not warrant a finding of wanton or reckless conduct. Silver's Case, 260 Mass. 222 , 224. Commonwealth v. Arone, 265 Mass. 128 , 131. Carroll v. Hemenway, 315 Mass. 45 . People v. Lynn, 385 Ill. 165. Am. Law Inst. Restatement: Torts, Section 500, comment e. But it might be considered with other evidence. There was no error in its admission. Commonwealth v. Hawkins, 157 Mass. 551 , 553, 554. Isaacson v. Boston, Worcester & New York Street Railway, 278 Mass. 378 , 390.

      79

      5. The Commonwealth introduced evidence that the electrical system was defective and dangerous. Shortly after the fire started the electric lights went out, leaving the patrons struggling in the dark. What caused the lights to go out, did not appear. There was no evidence that the defendant knew, or had reason to know, of any defect in the [404] electrical system. There was no evidence that faulty wiring caused the fire, or bore any causal relation to the deaths. A verdict of guilty could not lawfully have been based upon any such defect. But when the evidence was introduced the judge could not foresee that knowledge on the part of the defendant and some causal relation would not be shown. He had a right to let the Commonwealth begin by proving defective wiring. If the defendant had a remedy, it was by asking the judge to strike out the evidence when it appeared that no causal relation existed and the defendant was not shown to be responsible for any such defect, or by asking the judge to instruct the jury that a verdict of guilty could not be based upon wanton or reckless conduct with respect to the electrical system. No such request was made.

      80

      6. Other assignments of error, relied on by the defendant but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion.

      81

      Judgments affirmed.

      82

      FOOTNOTES

      83

      [1] In the only comparable case known in this Commonwealth, the jury were similarly instructed. That was the case of Commonwealth v. Hendrick, & others, tried in the Superior Court in Suffolk County in August, 1925, a case of alleged manslaughter arising out of the collapse of a night club building called the Pickwick Club, which happened on July 4, 1925. A copy of the charge is in the Social Law Library. The case did not come to this court. The following cases involved manslaughter arising out of the collapse of a building. People v. Buddensieck, 103 N. Y. 487. State v. Ireland, 126 N. J. L. 444. The following cases involved manslaughter arising out of a fire. Commonwealth v. Rhoads, 20 Penn. Dist. R. 149. See also Miller v. Strahl, 239 U.S. 426.

      84

      [2] Compare the case of an employer who at common law owes no duty to his employees to make his factory safer than it appeared to be when the employment began, because they contractually assumed the risk. Jones v. Granite Mills, 126 Mass. 84 . Keith v. Granite Mills, 126 Mass. 90 . Pauley v. Steam Gauge & Lantern Co. 131 N. Y. 90. Huda v. American Glucose Co. 154 N. Y. 474. In those cases recovery by a servant against his master for injury caused by fire in a factory was denied. See also Wainwright v. Jackson, 291 Mass. 100 ; Little v. Lynn & Marblehead Real Estate Co. 301 Mass. 156 . In Cloutier v. Oakland Park Amusement Co. 129 Maine, 454, the court failed to distinguish between such cases and the case of an invited business visitor.

      85

      [3] In early cases what is now known as wanton or reckless conduct was variously described as wilful negligence, wanton negligence, gross negligence, and culpable negligence, as was pointed out in Bjornquist v. Boston & Albany Railroad, 185 Mass. 130 , 134, and Banks v. Braman, 188 Mass. 367 , 370. So in criminal cases what was necessary to make conduct criminal was often so described. The expression "criminal negligence" was often used. But it seems that what we now know as wanton or reckless conduct was in fact required. The terminology, not the law, is what has changed. Commonwealth v. Hartwell, 128 Mass. 415 . Commonwealth v. Pierce, 138 Mass. 165 . Commonwealth v. Hawkins, 157 Mass. 551 . Lanci v. Boston Elevated Railway, 197 Mass. 32 , 35. Romana v. Boston Elevated Railway, 218 Mass. 76 , 84. Commonwealth v. McCan, 277 Mass. 199 , 203. At least one statute purports to impose criminal liability for "gross negligence." G. L. (Ter. Ed.) c. 265, Section 30. Whether that expression really means wanton or reckless conduct has not been decided.

      86

      In other jurisdictions a variety of similar expressions has been used in describing conduct that will create criminal liability. But in many of them the substantial equivalent of wanton or reckless conduct is required. People v. Angelo, 246 N. Y. 451. Regina v. Elliott, 16 Cox C. C. 710. People v. Burgard, 377 Ill. 322. People v. Lynn, 385 Ill. 165. State v. Cope, 204 N. C. 28. State v. Studebaker, 334 Mo. 471. State v. Sawyers, 336 Mo. 644. Bell v. Commonwealth, 170 Va. 597. State v. Whatley, 210 Wis. 157; 99 Am. L. R. 749. 29 C. J. 1154, et seq.

    • 1.2 Noakes v. Commonwealth

      1
      ELIZABETH POLLARD NOAKES,
      v.
      COMMONWEALTH OF VIRGINIA.
      11

      Record No. 0295-08-2.

      12

      Court of Appeals of Virginia, Richmond.

      13
      January 13, 2009.
      14

       

      15

      James T. Maloney (Maloney & David, P.L.C., on brief), for appellant.

      16

      Joshua M. Didlake, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

      17

      Present: Judges Kelsey, Beales and Retired Judge Clements[*].

      18
      MEMORANDUM OPINION[**]
      19

       

      20

      JUDGE RANDOLPH A. BEALES.

      21

      Elizabeth Noakes (appellant) was convicted after a bench trial of involuntary manslaughter in the death of fifteen-month-old Noah Colassco (Noah). On appeal, appellant argues that the Commonwealth presented insufficient evidence that she acted with criminal negligence, an essential element of involuntary manslaughter. For the reasons stated below, we reject appellant's argument and affirm her conviction.

      22
      I. BACKGROUND
      23

       

      24

      On October 18, 2006, Noah was placed in the care of appellant, who ran a daycare business out of her home. Appellant placed Noah and at least one other child in cribs located in a spare bedroom. A review of the videotape recorded hours after Noah's death reveals his crib was more analogous to a portable, "pack and play" variety than to a traditional wooden crib. The surface of the Graco crib was raised from the floor by four legs, which continued upward until they met hard plastic supports at the top of each corner. The four "walls" of the crib were made of a mesh material. The rectangular crib was placed in a corner of the bedroom, at the intersection of the back wall and the right side wall; therefore, one long side of the crib and one short side of the crib abutted those walls. The other short side of Noah's crib was situated within inches of another crib, leaving the remaining long side ("the front side") as the only side of the crib exposed to the remainder of the bedroom.

      25

      Appellant put Noah down for a nap at around noon, but Noah refused to sleep. Noah's refusal to sleep was a common occurrence while he was in appellant's care. Appellant had tried several "traditional" methods to get Noah to sleep, but those were unsuccessful. Appellant determined that the source of the problem was Noah's ability and desire to stand in his crib.

      26

      In an attempt to prevent Noah from standing up, appellant devised a plan to cover the top of the crib with cardboard and fabric and place a thirty-three-pound, folded-up dog crate on top of the cardboard. The cardboard and fabric would cover the entire top of the crib, and the dog crate would cover half the width of the crib. Appellant would place the dog crate so that it covered the front side of the crib, where Noah usually stood.

      27

      Before leaving the dog crate there with Noah inside, appellant removed Noah from the crib, placed the crate on the crib, and then shook the crib to determine if the crate would easily fall down into the crib. Satisfied that the dog crate would not fall in the crib, appellant removed the crate momentarily and placed Noah back in his crib. Appellant placed the cardboard and fabric on top of the crib in such a way as to create an "overhang" to prevent Noah from sticking his fingers between the crib and the cardboard, thereby potentially injuring his fingers by getting them stuck in the dog crate. Appellant also considered the cardboard covering (padded with the fabric) to be a buffer should Noah hit his head while attempting to stand. Appellant then placed the dog crate on the crib, inspected the arrangement with Noah inside, and went back and forth periodically between her bedroom and the adjoining loft bedroom to monitor the situation and see if Noah was distressed.

      28

      Despite these efforts, Noah still refused to sleep. Instead, he began pressing his face against the front side of the crib's mesh wall. To stop this behavior, appellant placed a large nylon toy against the front side's wall, so that Noah could not look out of the crib. Appellant then assumed Noah went to asleep. She left the room at approximately 1:00 p.m.

      29

      Appellant did not return to the bedroom until approximately 3:30 p.m., when she attended to another child. She left without checking on Noah.

      30

      A few minutes after 4:00 p.m., appellant returned to wake Noah from his nap. She saw Noah standing in the crib with his head, neck, and hands over the side of the crib. His neck was wedged between the cardboard covering and the wall of the front side of the crib. The dog crate, still on top of the covering, held Noah in this position. As appellant demonstrated in the videotape recorded following Noah's death, Noah apparently lifted the cardboard covering enough to cause the dog crate to slide backwards. Noah apparently then stuck his head over the front-left corner and progressively slid along the front side's rail until he was wedged under the thirty-three-pound dog crate near the center of the front side. Noah became trapped as a result.

      31

      Noah was unconscious, and his face was blue. Appellant unsuccessfully attempted CPR while she was on the phone with the emergency operator. The responding paramedics pronounced Noah dead at appellant's home.

      32

      The medical examiner determined that Noah died from asphyxiation; specifically, the suppression of the blood vessels in his neck had constricted the flow of oxygen to his brain. The medical examiner could not determine a time of death, but indicated that this type of asphyxiation typically would have taken "minutes and not hours."

      33

      At the conclusion of appellant's trial, the trial court found that the Commonwealth had sufficiently proven appellant's criminal negligence, commenting that appellant's "conduct was arrogantly reckless, merciless and inhumane, recklessly disregarding Noah's safety or [the] consequences of her actions, being indifferent as to whether the harm would result." The court found appellant guilty of involuntary manslaughter, and this appeal followed.

      34
      II. ANALYSIS
      35

       

      36

      When considering the sufficiency of the evidence on appeal, "a reviewing court does not `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). "Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court," Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), "[w]e must instead ask whether `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,'" Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See also Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319.

      37

      While involuntary manslaughter is a Class 5 felony, it is not statutorily defined. See Code § 18.2-36. In a recent opinion, our Supreme Court explained the elements of involuntary manslaughter accordingly:

      38
      [T]he crime of common law involuntary manslaughter has two elements: 1) the accidental killing of a person, contrary to the intention of the parties; and 2) the death occurs in the defendant's prosecution of an unlawful but not felonious act, or in the defendant's improper performance of a lawful act. Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992); Dowden v. Commonwealth, 260 Va. 459, 470, 536 S.E.2d 437, 443 (2000); Gooden v. Commonwealth, 226 Va. 565, 571, 311 S.E.2d 780, 784 (1984). To constitute involuntary manslaughter, the "improper" performance of a lawful act must amount to an unlawful commission of that lawful act, manifesting criminal negligence. Cable, 243 Va. at 240, 415 S.E.2d at 220; Kirk v. Commonwealth, 186 Va. 839, 847, 44 S.E.2d 409, 413 (1947).
      39

       

      40

      West v. Director, Dep't of Corrs., 273 Va. 56, 63-64, 639 S.E.2d 190, 195 (2007).

      41

      Here, the trial court found appellant acted with criminal negligence and was guilty of involuntary manslaughter. The trial court's findings are examined on appeal by reviewing the totality of the evidence. See Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004). In reviewing the sufficiency of the evidence supporting the verdict in this case, our analysis is guided particularly by two principles.

      42

      First, although "`the application of the distinctions between the[] degrees of negligence is frequently difficult to apply,'" Tubman v. Commonwealth, 3 Va. App. 267, 273, 348 S.E.2d 871, 875 (1986) (quoting Town of Big Stone Gap v. Johnson, 184 Va. 375, 379, 35 S.E.2d 71, 73 (1945)), such determinations `"only become questions of law to be determined by [an appellate] court [rather than by the factfinder], when reasonable minds could not differ,'" Forbes v. Commonwealth, 27 Va. App. 304, 309, 498 S.E.2d 457, 459 (1998) (quoting Tubman, 3 Va. App. at 273-74, 348 S.E.2d at 875). Therefore, only in the event that reasonable minds would be compelled to agree that appellant's actions were not criminally culpable could we, as an appellate court, find the evidence of appellant's criminal negligence insufficient.

      43

      Second, in determining whether reckless conduct amounts to unlawful conduct sustaining a conviction for involuntary manslaughter, it is immaterial whether the unlawful act was unlawful in its inception — that is, an inherently unlawful act — or was a lawful act that then actually became unlawful by the way it was performed after it was begun. See Gooden, 226 Va. at 571, 311 S.E.2d at 784. As in Gooden, "[t]he present case is of the second category; conduct not inherently unlawful, but done without requisite caution, in an unlawful manner." Id. To prove a defendant's criminal negligence in relation to an otherwise lawful act, the Commonwealth must show that the performance was so improper as to constitute negligence so gross and culpable as to indicate a callous disregard of human life. Beck v. Commonwealth, 216 Va. 1, 4, 216 S.E.2d 8, 10 (1975) (citing Goodman v. Commonwealth, 153 Va. 943, 946, 151 S.E. 168, 169 (1930)).

      44
      "The word `gross' means `aggravated or increased negligence' while the word `culpable' means `deserving of blame or censure.' Bell [v. Commonwealth, 170 Va. 597, 611, 195 S.E. 675, 681 (1938)]. `"Gross negligence" is culpable or criminal when accompanied by acts of commission or omission of a wanton or willful nature,[1] showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts.' Id. at 611-12, 195 S.E. at 681."
      45

       

      46

      Morris v. Commonwealth, 272 Va. 732, 739, 636 S.E.2d 436, 439-40 (2006) (quoting Barrett v. Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104, 111 (2004)) (footnote added).

      47

      On brief, appellant recognizes that there is support for a finding that she was grossly negligent, insofar as her act of placing the dog crate on Noah's crib "constituted a disregard of prudence" and would "shock[] the fair minded." See Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971) (stating gross negligence is "that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety" of another and "must be such a degree of negligence as would shock fair minded men although something less than willful recklessness"). However, she contends that she went to sufficient lengths to anticipate potential risks resulting from her "unconventional method" and to prevent those risks from becoming harmful. For instance, appellant noted that she shook the crate (after initially placing it on the crib while it was empty), to test the crate's tendency to fall from its perch over Noah; she padded the bottom of the crate with cardboard and fabric to safeguard Noah against injury to his head if he tried to stand; and she created an "overhang" with the cardboard to safeguard against Noah injuring his fingers in the holes of the crate. Appellant claims that such precautions demonstrate that she did not act with a callous disregard for the risks of death or serious injury that were likely to materialize. Therefore, appellant argues, while she may have been grossly negligent in her care of Noah, she was not criminally negligent.

      48

      We disagree with appellant's contention that her recognition of some risks inherent in placing a thirty-three-pound dog crate on a crib militates against a finding of criminal negligence. "Willful or wanton negligence involves a greater degree of negligence than gross negligence, particularly in the sense that in the former an actual or constructive consciousness of the danger involved is an essential ingredient of the act or omission." Griffin v. Shively, 227 Va. 317, 321-22, 315 S.E.2d 210, 213 (1984) (citations omitted). Here, the danger was that Noah would be harmed by appellant's placement of the dog crate atop his crib. This danger came in numerous forms, and appellant was aware of, or should have been aware of, far less dangerous alternatives to putting a thirty-three-pound collapsed dog crate over a young and active child in order to convince him to lie down and take a nap. Cf. Conrad v. Commonwealth, 31 Va. App. 113, 121-22, 521 S.E.2d 321, 325-26 (1999) (en banc) (holding that criminal negligence is judged under an objective standard). Notably, appellant testified at trial that she considered using only the cardboard or a net-like dome instead of the dog crate, but rejected those options because they would not have prevented Noah from standing up. So, appellant instead placed the dog crate on Noah's crib, despite her recognition — implicit in the precautions that she took — that this act could be dangerous. The trial court could reasonably have concluded that appellant recklessly disregarded Noah's safety by proceeding with her plan to prevent Noah from standing up by placing the dog crate on his crib.

      49

      Appellant contends that, because Noah's death resulted from a different risk of harm than she had foreseen, Noah's death was improbable; therefore, she claims that she was not criminally liable for his death. This contention is meritless. "It is not necessary that [appellant] foresaw the specific manner in which injury and death occurred." Gallimore v. Commonwealth, 15 Va. App. 288, 296, 422 S.E.2d 613, 618 (1992). Instead, "[i]t is sufficient that she reasonably could have foreseen that risk of death or serious harm might result from her actions." Id. (citing Blondel v. Hays, 241 Va. 467, 475, 403 S.E.2d 340, 345 (1991)). Here, given that appellant saw the need to protect this infant from some risks, appellant could have foreseen the harm that could and did befall Noah from putting a thirty-three-pound collapsed dog crate on top of his crib.

      50

      This is not a case where the defendant's mere inadvertence or inattentiveness created harm or the potential for harm. See, e.g., Ellis v. Commonwealth, 29 Va. App. 548, 555-56, 513 S.E.2d 453, 457 (1999) (finding that defendant was not criminally negligent because she was unaware she had left a kitchen burner on and, accordingly, did not consciously disregard the likely ignition of a grease fire that would ultimately endanger the lives of her children). Appellant affirmatively and knowingly created this danger to Noah, and then, despite her initial concerns, failed to check on him for several hours. Furthermore, the nature of Noah's death could not be considered improbable, given appellant was aware that Noah was tall enough to stand with his head above the crib side.[2] See Conrad, 31 Va. App. at 121-22, 521 S.E.2d at 325-26 (holding that criminal negligence "may be found to exist where the offender either knew or should have known the probable results of his acts"); Tubman, 3 Va. App. at 274, 348 S.E.2d at 875 (requiring the Commonwealth to prove that "a homicide was not improbable under all of the facts existing at the time, and that the knowledge of such facts should have had an influence on the conduct of the offender").

      51

      In addition, appellant knew that Noah wanted to stand in the crib. Consequently, she should have been especially concerned about how the child would attempt to move the items over his crib when he attempted — as young children do — to get around the constraints placed on him. "The same discernment and foresight that older people and experienced persons habitually employ in discovering dangers cannot be reasonably expected of children of tender years, and therefore the greater precaution should be taken where children are exposed to such dangers." Lynchburg Cotton Mills v. Stanley, 102 Va. 590, 594, 46 S.E. 908, 909 (1904). While appellant's "test" of the dog crate on the empty crib suggested to her that the crate would stay in place sufficiently enough not to fall in the crib, appellant was very aware that Noah was determined to stand in his crib. It was not at all improbable that a determined child of tender years would be able to get under the sides of this make-shift contraption, move the dog crate, and, in the process, as here, get his neck trapped so that he was asphyxiated. See id. ("That course of conduct which would be ordinary care when applied to persons of mature judgment and discretion might be gross, and even criminal, negligence toward children of tender years.").

      52

      Appellant's inattentiveness to the danger in which she placed Noah reinforces our holding that a rational factfinder could find appellant guilty of involuntary manslaughter. By appellant's own admission, she did not go in the bedroom where Noah was to check on him for approximately two and a half hours, from 1:00 p.m. until 3:30 p.m. When she checked on the other child in the bedroom at 3:30 p.m., she did not even look in Noah's direction.[3] Appellant assumed Noah was asleep. Appellant then left Noah unattended from 3:30 p.m. until she found him unconscious and trapped between the crib and the cardboard/dog crate covering shortly after 4:00 p.m. The medical examiner indicated that Noah's death from asphyxiation typically would have taken "minutes and not hours." Leaving Noah unattended for even a half-hour, given the danger in which appellant placed Noah by setting a thirty-three-pound dog crate on top of his crib, was an unjustifiable risk.

      53

      In summary, the act of attempting to limit Noah's ability to stand in his crib was not inherently unlawful; rather, a reasonable factfinder could determine that the placing of a thirty-three-pound dog crate on Noah's crib, combined with appellant's inattentiveness in the face of this experimental and dangerous set-up and with Noah's conceded determination to stand up in his crib, constituted reckless and unlawful conduct in utter disregard of Noah's safety. See Gooden, 226 Va. at 573, 311 S.E.2d at 785 (differentiating inherently unlawful acts and the improper performance of lawful acts). Because reasonable minds could make a determination here that appellant was criminally negligent, cf. Tubman, 3 Va. App. at 273-74, 348 S.E.2d at 875, we conclude the trial court did not err in finding her guilty of involuntary manslaughter.

      54
      III. CONCLUSION
      55

       

      56

      For the foregoing reasons, we affirm appellant's conviction.

      57

      Affirmed.

      58

      Clements, J., dissenting.

      59

      For the reasons that follow, I conclude that the evidence presented at trial was insufficient to prove the criminal negligence necessary to support an involuntary manslaughter conviction. Hence, I respectfully dissent from the majority's opinion.

      60

      "When considering a challenge to the sufficiency of evidence on appeal, we review the evidence in the light most favorable to the prevailing party at trial and consider all inferences fairly deducible from that evidence." Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008). "We will not reverse the judgment of the trial court unless it is plainly wrong or without evidence to support it." Id. (citing Code § 8.01-680).

      61
      Involuntary manslaughter is defined as the accidental killing of a person, contrary to the intention of the parties, during the prosecution of an unlawful, but not felonious, act, or during the improper performance of some lawful act. The "improper" performance of the lawful act, to constitute involuntary manslaughter, must amount to an unlawful commission of such lawful act, not merely a negligent performance. The negligence must be criminal negligence. The accidental killing must be the proximate result of a lawful act performed in a manner "so gross, wanton, and culpable as to show a reckless disregard of human life."
      62

       

      63

      Gooden v. Commonwealth, 226 Va. 565, 571, 311 S.E.2d 780, 784 (1984) (citations omitted) (quoting King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977)). Thus, to sustain appellant's conviction in this case, the Commonwealth had to prove beyond a reasonable doubt that appellant's improper performance of the lawful act that proximately caused the accidental death of the child amounted to criminal negligence. Criminal negligence "`is acting consciously in disregard of another person's rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.'" Tubman v. Commonwealth, 3 Va. App. 267, 271, 348 S.E.2d 871, 873 (1986) (quoting Griffin v. Shively, 227 Va. 317, 321, 315 S.E.2d 210, 213 (1984)). "We judge criminal negligence by an objective standard. It occurs when `the offender either knew or should have known the probable results of his acts.'" Banks v. Commonwealth, 41 Va. App. 539, 546, 586 S.E.2d 876, 879 (2003) (quoting Conrad v. Commonwealth, 31 Va. App. 113, 121-22, 521 S.E.2d 321, 325-26 (1999) (en banc)).

      64

      In this case, appellant was admittedly negligent in placing the cloth-covered cardboard and folded 33-pound dog crate over the child's crib to prevent him from standing up during nap time. However, I find no evidence in the record to support a finding that appellant's lawful act was performed in a manner so gross, wanton, and culpable as to show a reckless disregard of human life.

      65

      For one thing, nothing in the record indicates that the act itself and the manner in which it was performed were motivated by anything other than appellant's concern for the child. As appellant had discussed with the child's mother, the child had not been napping well in the three weeks appellant had been caring for him. Rather than sleep in the afternoon, the child would stand in the crib by the front railing and cry for his mother or appellant. Appellant knew from her experience that, if she could get the child to sit or lie down in the crib, the child would go to sleep. Concerned that the child was not getting enough sleep, appellant tried various "traditional means" to get the child to nap, but had no success. After "exhaust[ing] those means" and "brainstorming" for several days to come up with new ideas, appellant decided to cover the crib with something "heavy enough and large enough" to prevent the child from standing up. On the day in question, appellant determined that the crate "would work because it [was] heavy enough and large enough."

      66

      In placing the cardboard and dog crate over the crib, appellant took every step she could think of to ensure they would not harm the child. She initially tested them on the crib without the child in it to satisfy herself that they would not fall into the crib, even shaking the crib to make sure the covering was stable. She made sure the cardboard covered the entire top of the crib so the child could not hurt his head or fingers on the dog crate. She made sure the crate extended far enough over both sides of the crate so that "there would be no way that the crate could fall in given the overhang." She positioned the cardboard so that it extended beyond the crib where the child normally stood up and was folded over one side of the crib next to the wall to stabilize it. Additionally, when she placed the crate on the crib, appellant made sure it was positioned over the spot where the child normally stood by the front railing to prevent the child from being able to lift the cardboard at that spot. After putting the child in the covered crib shortly after 12:00 p.m., appellant stayed for a while in the child's room, which was a loft off her bedroom, to monitor the child and make sure he was not in any distress beneath the cardboard and crate. The child, who was playing with a ball in his crib, did not cry or try to stand up during that time. Around 1:00 p.m., appellant returned to the child's room and covered the front of the crib with a toy to help him go to sleep. The child was not standing at the time.

      67

      Several times throughout the afternoon, appellant returned to her bedroom to audibly monitor the child. Hearing no noise from the child, appellant assumed he was asleep. Around 3:30 p.m., appellant returned to the child's room for an unrelated purpose. Not seeing the child and assuming he was still asleep,[4] appellant went back downstairs. Approximately a half an hour later, appellant returned to the room to wake the child and discovered him standing in the crib with his neck wedged in between the cardboard and the front railing of the crib. Appellant immediately removed the child from the crib, called 911, and tried to revive him.

      68

      Throughout these events, appellant expressed a genuine concern only for the child's well being. No evidence suggests her actions were born of frustration, inconvenience, or any other selfish motivation.

      69

      Likewise, nothing in the record indicates that appellant was aware or reasonably should have been aware that her conduct would probably cause injury to the child. Not only did she take steps to prevent every possible danger that reasonably occurred to her, the Commonwealth presented no evidence to show she knew or reasonably should have known that the fifteen-month-old child possessed sufficient strength and ability to lift the cardboard under the 33-pound dog crate to the side so that he could stand up with his head between the cardboard and the front of the crib. To the contrary, the record shows that appellant specifically used the dog crate because she believed it was "heavy enough and large enough" to prevent the child from moving it and the cardboard beneath it. Indeed, appellant was initially unsure that she would even "be[] able to lift the crate." Nothing in the record demonstrates that appellant's belief that the weight of the crate would make it physically impossible for the child to lift the cardboard at the front of the crib was unreasonable.

      70

      Accordingly, I find the evidence insufficient to prove that appellant's improper performance of the lawful act amounted to criminal negligence. Thus, I would reverse appellant's conviction for involuntary manslaughter and dismiss the charge.

      71

      [*] Judge Clements participated in the hearing and decision of this case prior to the effective date of her retirement on December 31, 2008, and thereafter by designation pursuant to Code § 17.1-400(D).

      72

      [**] Pursuant to Code § 17.1-413, this opinion is not designated for publication.

      73

      [1] "Willful" conduct "must be knowing or intentional, rather than accidental, and be done without justifiable excuse, without ground for believing the conduct is lawful, or with a bad purpose." Duncan, 267 Va. at 384, 593 S.E.2d at 214. "Wanton" conduct is "[m]arked by or manifesting arrogant recklessness of justice, of the rights or feelings of others" such as to be "merciless" and "inhumane." Forbes, 27 Va. App. at 310, 498 S.E.2d at 459; see Town of Big Stone Gap, 184 Va. at 379, 35 S.E.2d at 745.

      74

      [2] We reject appellant's related argument that Noah's ability to lift a dog crate thirty percent heavier than his own weight was an improbable feat constituting an intervening cause for his death, thus rendering appellant's placement of the dog crate on top of his crib something other than the probable cause of his death. However, Noah's lifting the dog crate, if this is how he became wedged between the crate and the crib, "was put into operation by [appellant's] negligent act[]" of placing the dog crate on top of Noah's crib. See O'Connell v. Commonwealth, 48 Va. App. 719, 728, 634 S.E.2d 379, 383 (2006). Therefore, Noah's actions were not an intervening cause.

      75

      [3] She argued at trial and contends on appeal that, because she turned off an air conditioner situated close to the crib when she entered the room at 3:30, Noah was within her peripheral vision and she would have noticed anything amiss. However, even if appellant could see Noah's crib in her peripheral vision, it does not necessarily follow that she would have noticed anything amiss. The back side of Noah's crib was against a wall, and a large toy that appellant herself placed there covered the front side of the crib. The short sides were obscured by a wall and another crib in close proximity to Noah's crib. Furthermore, cardboard and the dog crate covered the top of the crib. Accordingly, even if appellant could see Noah's crib peripherally, numerous impediments — many of her own making — blocked appellant's view of Noah and any efforts that he might have made to circumvent the dog crate that hindered his ability to stand up in the crib.

      76

      [4] Although, as the Commonwealth points out, appellant told the police she did not directly look at or check on the child during that trip to the child's room, it is clear from the record that, had the child been standing in the crib, appellant would have seen him.

    • 1.3 State v. Williams

      1
      4 Wn.App. 908
      2
      484 P.2d 1167
      3
      STATE of Washington, Respondent,
      v.
      Walter L. WILLIAMS and Bernice J. Williams, and each of
      them, Appellants.
      4
      No. 656--41011--41012--I.
      5
      Court of Appeals of Washington, Division 1, Panel One.
      6
      May 3, 1971.
      7

       

      8

      [4 Wn.App. 910] [484 P.2d 1169] Kempton, Savage & Gossard, Anthony Savage, Jr., Seattle, Court-appointed for appellant.

      9

      Christopher T. Bayley, King County Pros. Atty., Michael P. Ruark, Deputy Pros. Atty., Seattle, for respondent.

      10

      HOROWITZ, Chief Judge.

      11

      Defendants, husband and wife, were charged by information filed October 3, 1968, with the crime of manslaughter for negligently failing to supply their 17-month child with necessary medical attention, as a result of which he died on September 12, 1968. Upon entry of findings, conclusions and judgment of guilty, sentences were imposed on April 22, 1969. Defendants appeal.

      12

      The defendant husband, Walter Williams, is a 24-year old full-blooded Sheshont Indian with a sixth-grade education. His sole occupation is that of laborer. The defendant wife, Bernice Williams, is a [484 P.2d 1170] 20-year-old part Indian with an 11th grade education. At the time of the marriage, the wife had two children, the younger of whom was a 14-month son. Both parents worked and the children were cared for by the 85-year-old mother of the defendant husband. The defendant husband assumed parental responsibility with the defendant wife to provide clothing, care and medical attention for the child. Both defendants possessed a great deal of love and affection for the defendant wife's young son.

      13

      The court expressly found:

      14

      That both defendants were aware that William Joseph [4 Wn.App. 911] Tabafunda was ill during the period September 1, 1968 to September 12, 1968. The defendants were ignorant. They did not realize how sick the baby was. They thought that the baby had a toothache and no layman regards a toothache as dangerous to life. They loved the baby and gave it aspirin in hopes of improving its condition. They did not take the baby to a doctor because of fear that the Welfare Department would take the baby away from them. They knew that medical help was available because of previous experience. They had no excuse that the law will recognize for not taking the baby to a doctor.

      15

      The defendants Walter L. Williams and Bernice J. Williams were negligent in not seeking medical attention for William Joseph Tabafunda.

      16

      That as a proximate result of this negligence, William Joseph Tabafunda died.

      17

      Findings 5, 6 and 7. From these and other findings, the court concluded that the defendants were each guilty of the crime of manslaughter as charged.

      18

      Defendants take no exception to findings but contend that the findings do not support the conclusions that the defendants are guilty of manslaughter as charged. The contentions raise tow basic issues, (1) the existence of the duty to furnish medical aid charged by the information to be violated [1] and the seriousness of the breach required; and (2) the issue of proximate cause, I.e., whether defendants were put on notice, in time to save the child's life, that medical care was required. Because the nature of the duty and the quality or seriousness of the breach are closely interrelated, our discussion of the first issue involved will embrace both matters.

      19

      [4 Wn.App. 912] Parental duty to provide medical care for a dependent minor child was recognized at common law and characterized as a natural duty. In re Hudson, 13 Wash.2d 673, 126 P.2d 765 (1942); White v. McDowell, 74 Wash. 44, 132 P. 734 (1913); See Commonwealth v. Breth, 44 Pa.Co.Ct.R. 56 (1915); Annot., 100 A.L.R.2d 483, §§ 6, 15(a), 15(b) (1965). In Washington, the existence of the duty is commonly assumed and is stated at times without reference to any particular statute. See, e.g., In re Adoption of Lybbert, 75 Wash.2d 671, 453 P.2d 650 (1969); In re Hudson, 13 Wash.2d 673, 693, 126 P.2d 765 (1942); In re Guardianship of Rudonick, 76 Wash.2d 117, 125, 456 P.2d 96 (1969). The existence of the duty also is assumed, but not always defined, in statutes that provide special criminal and civil sanctions for the performance of that duty. These include RCW 26.16.205, 26.20.030, 26.24.090, 26.32.140, 26.37.050 and chapter 26.21. See State v. Russell, 68 Wash.2d 748, 415 P.2d 503 (1966). Thus, RCW 26.16.205 imposes civil liability on parental property [484 P.2d 1171] for the 'expenses of the family and education of the children.' The quoted language is broad enough to include 'necessaries,' and necessaries include necessary medical expense of dependent minor children which it is the duty of a parent to provide. On the question of the quality or seriousness of breach of the duty, at common law, in the case of involuntary manslaughter, the breach had to amount to more than mere ordinary or simple negligence--gross negligence was essential. See 1 O. Warren, Homicide § 86 at 424 (Permanent ed. 1938); R. Perkins, Criminal Law 60--61 (1957). In Washington, however, RCW 9.48.060 [2] (since amended by Laws of 1970, ch. 49, § 2) and RCW 9.48.150 [3] supersede both voluntary and [4 Wn.App. 913] involuntary manslaughter as those crimes were defined at common law. Under these statutes the crime is deemed committed even though the death of the victim is the proximate result of only simple or ordinary negligence. State v. Brubaker, 62 Wash.2d 964, 385 P.2d 318 (1963); State v. Ramser, 17 Wash.2d 581, 136 P.2d 1013 (1943); State v. Hedges, 8 Wash.2d 652, 113 P.2d 530 (1941).

      20

      The concept of simple or ordinary negligence describes a failure to exercise the 'ordinary caution' necessary to make out the defense of excusable homicide. RCW 9.48.150. Ordinary caution is the kind of caution that a man of reasonable prudence would exercise under the same or similar conditions. If, therefore, the conduct of a defendant, regardless of his ignorance, good intentions and good faith, fails to measure up to the conduct required of a man of reasonable prudence, he is guilty of ordinary negligence because of his failure to use 'ordinary caution.' See State v. Hedges, Supra. If such negligence proximately causes the death of the victim, the defendant, as pointed out above, is guilty of statutory manslaughter.

      21

      In the instant case, defendants contend that the only duty to provide medical care for the infant child is the statutory duty set forth in RCW 26.20.030; that the court having concluded that the defendants were not guilty of 'willful * * * misconduct,' that no duty to furnish medical care was violated and that, accordingly, defendants are not guilty of the crime of statutory manslaughter charged in the information.

      22

      RCW 26.20.030(1)(b) makes it a felony for a person who 'willfully omits, without lawful excuse, to furnish necessary * * * medical attendance for his or her child * * *.' The words 'willfully omits' are, as pointed out in State v. Russell, 73 Wash.2d 903, 907--908, 442 P.2d 988 (1968), used in two senses, namely, (1) 'an act or omission done intentionally * * *' or (2) when used in statutes making nonsupport a crime, 'an absence of lawful excuse or justification on the part of the accused parent.' It was further pointed out that, by reason of RCW 26.20.080, the state [4 Wn.App. 914] meets its burden of proving willfulness and absence of lawful excuse on a prima facie basis when the evidence, directly or circumstantially, reveals a failure on the part of a physically or vocationally able parent to furnish the required medical attendance. Hence, RCW 26.20.030 is presumptively violated either because a defendant intentionally omits to furnish necessary medical care, or omits so to do without lawful excuse.

      23

      Defendants' contention misconceives the significance of the words 'willful * * * misconduct' contained in the conclusions because of defendants' failure to recognize that 'willful' is a phrase of double meaning. The presumption of correctness that attends judgments of the trial court is necessarily predicated upon the subordinate presumption of the correctness of findings and conclusions. To give proper[484 P.2d 1172] effect to this presumption requires that findings, whether or not containing a conclusion of law, and conclusions of law be reconciled if reasonably possible. Such a reconciliation is entirely possible in the instant case by a proper interpretation of the phrase 'willful * * * misconduct.' Since the trial court expressly found that the defendants 'had no excuse that the law will recognize for not taking the baby to a doctor,' it is reasonable to conclude that the phrase 'willful * * * misconduct,' contained in the conclusion, merely means intentional misconduct. The conclusion, in light of the findings, means merely that the conduct, although not intentional, was without lawful excuse and therefore willful in the second sense. State v. Russell, 73 Wash.2d 903, 442 P.2d 988 (1968); State v. McCarty, 76 Wash.2d 328, 456 P.2d 350 (1969); State v. Ozanne, 75 Wash.2d 546, 452 P.2d 745 (1969). Even if it is assumed that the information charging the crime of manslaughter relied upon a violation of RCW 26.20.030(1)(b), the conviction must stand since the findings and supporting evidence are sufficient to support the conclusion that, in the second sense of the term, the defendants willfully violated the duty owing their deceased child.

      24

      Furthermore, the significance of the words 'willful [4 Wn.App. 915] * * * misconduct' contained in the conclusion is overstated. If it be assumed that RCW 26.20.030(1)(b) can be said to create a duty to furnish medical care otherwise not existing, as distinguished from a mere statement of a condition precedent to the imposition of a criminal sanction, then a duty may be said to exist even if the conditions permitting imposition of the criminal sanction do not. See State v. Parmenter, 74 Wash.2d 343, 444 P.2d 680 (1968). Hence, a conclusion that defendants' conduct was not willful does not mean that the duty has not been violated. It merely means that the special sanction of RCW 26.20.030(1) (b) cannot be invoked.

      25

      We need not, however, rest our decision solely on the above mentioned grounds. The information charging statutory manslaughter made no mention of and did not purport to restrict itself to the violation of the duty set forth in RCW 26.20.030(1)(b). The information charged the violation of 'the legal duty of providing necessary * * * medical attention to said * * * minor child * * *' This general language permits reliance upon the existence of the legal duty no matter from what source derived. We have already pointed out that such a parental duty is recognized in the decisions of this state and has been characterized as a natural duty existing independently of statutes. In re Hudson, Supra. RCW 26.20.030(1)(b) is consistent with and therefore does not supersede the common law natural duty of parents to provide medical care for their minor dependent children. Thus, should RCW 26.20.030(1)(b) be repealed, it could not reasonably be claimed that parents were thereby absolved from their natural duty to provide necessary medical care for their minor dependent children. We therefore hold that the violation of the parental duty to furnish medical care to a minor dependent child, the other elements of manslaughter being present, is a sufficient basis on which to rest a conviction of the crime of manslaughter under RCW 9.48.060 and 9.48.150. State v. Parmenter, Supra. See Commonwealth v. [4 Wn.App. 916] Breth, Supra. See also State v. Brubaker, Supra; State v. Ramser, Supra; State v. Hedges, Supra.

      26

      In the instant case, however, the defendant husband is not the father of the minor child, nor has he adopted that child. Nevertheless, the evidence shows that he had assumed responsibility with his wife for the care and maintenance of the child, whom he greatly loved. Such assumption of responsibility, characterized in the information as that required of a 'guardian and custodian,' is sufficient to impose upon him the duty to furnish necessary medical care. See State v. Parmenter, Supra; White v. McDowell, Supra. See generally, Annot., 10 A.L.R. 1137, 1143 (1921); 39 Am.Jur. Parent and Child § [484 P.2d 1173] 105 (1942); State v. Noakes, 70 Vt. 247, 40 A. 249 (1897); State v. Sandford, 99 Me. 441, 59 A. 597 (1905). See also RCW 9.01.030.

      27

      The remaining issue of proximate cause requires consideration of the question of when the duty to furnish medical care became activated. If the duty to furnish such care was not activated until after it was too late to save the life of the child, failure to furnish medical care could not be said to have proximately caused the child's death. Timeliness in the furnishing of medical care also must be considered in terms of 'ordinary caution.' The law does not mandatorily require that a doctor be called for a child at the first sign of any indisposition or illness. The indisposition or illness may appear to be of a minor or very temporary kind, such as a toothache or cold. If one in the exercise of ordinary caution fails to recognize that his child's symptoms require medical attention, it cannot be said that the failure to obtain such medical attention is a breach of the duty owed. In our opinion, the duty as formulated in People v. Pierson, 176 N.Y. 201, 68 N.E. 243 (1903), although involving a statute similar to RCW 26.20.030(1)(b), properly defines the duty contemplated by our manslaughter statutes RCW 9.48.060 and RCW 9.48.150. The court there said:

      28

      We quite agree that the Code does not contemplate the necessity of calling a physician for every trifling complaint with which the child may be afflicted, which in most instances may be overcome by the ordinary household [4 Wn.App. 917] nursing by members of the family; that a reasonable amount of discretion is vested in parents, charged with the duty of maintaining and bringing up infant children; and that the standard is at what time would an ordinarily prudent person, solicitous for the welfare of his child and anxious to promote its recovery, deem it necessary to call in the services of a physician.

      29

      People v. Pierson, Supra at 205, 68 N.E. at 244. Accord, Beck v. State, 29 Okl.Cr. 240, 233 P. 495 (1925).

      30

      It remains to apply the law discussed to the facts of the instant case.

      31

      Defendants have not assigned error to the findings either on the ground that the evidence is insufficient to prove negligence or proximate cause, or that the state has failed to prove the facts found by failing to apply the required standard of proof beyond a reasonable doubt. See People v. Robillard, 55 Cal.2d 88, 10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086 (1960), cert. denied, 365 U.S. 886, 81 S.Ct. 1043, 6 L.Ed.2d 199 (1961); United States v. Eichberg, 439 F.2d 620 (D.C.Cir.1971). They contended below and on appeal that they are not guilty of the crime charged. Because of the serious nature of the charge against the parent and step-parent of a well-loved child, and out of our concern for the protection of the constitutional rights of the defendants, we have made an independent examination of the evidence to determine whether it substantially supports the court's express finding on proximate cause and its implied finding that the duty to furnish medical care became activated in time to prevent death of the child. See State v. Moore, 194 Or. 232, 241 P.2d 455 (1952).

      32

      Dr. Gale Wilson, the autopsy surgeon and chief pathologist for the King County Coroner, testified that the child died because an abscessed tooth had been allowed to develop into an infection of the mouth and cheeks, eventually becoming gangrenous. This condition, accompanied by the child's inability to eat, brought about malnutrition, lowering the child's resistance and eventually producing pneumonia, causing the death. Dr. Wilson testified that in his opinion [4 Wn.App. 918] the infection had lasted for approximately 2 weeks, and that the odor generally associated with gangrene would have been present for approximately 10 days before death. He also expressed the opinion that had medical care been first obtained in the last week before the baby's [484 P.2d 1174] death, such care would have been obtained too late to have saved the baby's life. Accordingly, the baby's apparent condition between September 1 and September 5, 1968 became the critical period for the purpose of determining whether in the exercise of ordinary caution defendants should have provided medical care for the minor child.

      33

      The testimony concerning the child's apparent condition during the critical period is not crystal clear, but is sufficient to warrant the following statement of the matter. The defendant husband testified that he noticed the baby was sick about 2 weeks before the baby died. The defendant wife testified that she noticed the baby was ill about a week and a half or 2 weeks before the baby died. The evidence showed that in the critical period the baby was fussy; that he could not keep his food down; and that a cheek started swelling up. The swelling went up and down, but did not disappear. In that same period, the cheek turned 'a bluish color like.' The defendants, not realizing that the baby was as ill as it was or that the baby was in danger of dying, attempted to provide some relief to the baby by giving the baby aspirin during the critical period and continued to do so until the night before the baby died. The defendants thought the swelling would go down and were waiting for it to do so; and defendant husband testified, that from what he had heard, neither doctors nor dentists pull out a tooth 'when it's all swollen up like that.' There was an additional explanation for not calling a doctor given by each defendant. Defendant husband testified that 'the way the cheek looked, * * * and that stuff on his hair, they would think we were neglecting him and take him away from us and not give him back.' Defendant wife testified that the defendants were 'waiting for the swelling to go down,' and also that they were afraid to [4 Wn.App. 919] take the child to a doctor for fear that the doctor would report them to the welfare department, who, in turn, would take the child away. 'It's just that I was so scared of losing him.' They testified that they had heard that the defendant husband's cousin lost a child that way. The evidence showed that the defendants did not understand the significance or seriousness of the baby's symptoms. However, there is no evidence that the defendants were physically or financially unable to obtain a doctor, or that they did not know an available doctor, or that the symptoms did not continue to be a matter of concern during the critical period. Indeed, the evidence shows that in April 1968 defendant husband had taken the child to a doctor for medical attention.

      34

      In our opinion, there is sufficient evidence from which the court could find, as it necessarily did, that applying the standard of ordinary caution, I.e., the caution exercisable by a man of reasonable prudence under the same or similar conditions, defendants were sufficiently put on notice concerning the symptoms of the baby's illness and lack of improvement in the baby's apparent condition in the period from September 1 to September 5, 1968 to have required them to have obtained medical care for the child. The failure so to do in this case is ordinary or simple negligence, and such negligence is sufficient to support a conviction of statutory manslaughter.

      35

      The judgment is affirmed.

      36

      UTTER and WILLIAMS, JJ., concur.

      37

      ---------------

      38

      [1] The information, in charging the violation of the duty owed, alleged:

      39

      (T)hey, the said defendants, then and there being the father, mother, guardian and custodian of one William Joseph Tabafunda, and being then and there under the legal duty of providing necessary food, clothing, care and medical attention to said William Joseph Tabafunds (sic), a minor child under the age of sixteen years, to-wit: of the age of seventeen (17) months, did then and there unlawfully and feloniously fail and neglect, without lawful excuse, to provide said * * * child * * * with necessary food, clothing, care and medical attention * * *

      40

      [2] RCW 9.48.060 provided in part:

      41

      'In any case other than those specified in RCW 9.48.030, 9.48.040 and 9.48.050, homicide, not being excusable or justifiable, is manslaughter.'

      42

      [3] RCW 9.48.150 provides:

      43

      'Homicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, with ordinary caution and without any unlawful intent.'

      44

       

    • 1.4 Montgomery v. State

      1

      IN THE COURT OF CRIMINAL APPEALS OF TEXAS 

      JERI DAWN MONTGOMERY, Appellant v.
      THE STATE OF TEXAS 

      NO. PD-1169-11 

       

      JOHNSON, J., delivered the opinion for a unanimous Court

      Appellant caused a three-car collision, during which a passenger in one of the other vehicles was killed. The grand jury indicted appellant for criminally negligent homicide, alleging that she had made an unsafe lane change and had failed to keep a proper lookout. A petit jury found appellant guilty and also found that appellant’s vehicle was a deadly weapon. The jury assessed punishment of ten years’ confinement in the Texas Department of Criminal Justice, probated for ten years, and a $10,000 fine. On appeal, the Fourteenth Court of Appeals found the evidence insufficient to sustain the conviction and rendered a judgment of acquittal.[1] This Court granted the four grounds raised in the state’s petition for discretionary review.

      1. The court of appeals erred in holding that “cell phone usage while operating a vehicle” does not constitute morally blameworthy conduct and does not justify criminal sanctions.

      2. The court of appeals erred in presuming that the negligent act in a criminally negligent homicide must itself be an illegal act.

      3. The court of appeals erred in holding that the evidence was insufficient to prove criminally negligent homicide where the appellant was traveling less than 39 miles per hour and was 92 feet past the interstate highway entrance ramp at the time that she attempted to cross in front of other vehicles to enter the freeway.

      4. The court of appeals erred in holding that the evidence was insufficient to prove criminally negligent homicide where the appellant was admittedly distracted by talking on a cell phone at the time that she attempted to cross in front of other vehicles to enter the interstate highway ramp, which she had already missed by 92 feet.

      After review, we find that the evidence was legally sufficient to sustain appellant’s conviction for criminally negligent homicide, and we reverse the judgment of the court of appeals.

      Facts

      At approximately 8:30 p.m. on March 24, 2008, appellant was driving her mid-size SUV in the center lane of the three-lane service road adjacent to Interstate Highway 45 (IH-45) and talking on her cell phone. After hanging up the phone, appellant realized that she had missed the entrance ramp to IH- 45, which diverged from the left lane of the service road. Appellant abruptly swerved into the left lane to try to get onto the ramp, even though the beginning of the solid-white-lined area on the pavement between the ramp and the service road, often known as the “safety barrier,” was behind her. There was disagreement at trial between the state’s and appellant’s experts as to how far past the entrance ramp appellant was when she changed lanes, but they agreed that it was after the safety barrier began. The state’s expert testified that it was 92 feet past the entrance to the ramp; appellant’s expert estimated a lesser distance.

      As appellant moved abruptly into the left lane, she cut off Cochise Willis, who was driving his three-quarter-ton pickup truck in the left lane of the service road. Willis testified that he was driving at the speed limit–50 miles per hour–and that appellant was driving more slowly than Willis when she moved into the left lane ahead of him. Willis tried to slow down and get into the center lane, but he could not avoid hitting the rear of appellant’s SUV, slightly to the right of its center. At the time of impact, appellant’s vehicle was almost entirely in the left lane, and Willis’s truck was over the dividing line between the left and center lanes. The collision caused appellant’s vehicle to rotate in a counterclockwise direction, crossing over the safety barrier and onto the entrance ramp itself. The front of appellant’s SUV struck the passenger side of Terrell Housley’s pickup truck, which had just been driven onto the entrance ramp. Chance Wilcox was a passenger in the truck. After the collision, Housley’s truck rotated clockwise, causing it to hit the curb that separates the entrance ramp and the safety barrier and flip over, coming to a stop upside down. As Housley’s truck flipped, Wilcox was ejected, and he died at the scene from trauma to his head and neck. At the same time, the collision with Housley’s truck caused appellant’s SUV to flip onto its left side and skid to a stop. Willis never lost control of his truck. He pulled into the emergency lane of the service road and stopped.

      The Court of Appeals’s Opinion

      The court of appeals found that the evidence was insufficient to establish the requisite mens rea of criminal negligence, noting that 

      the State presented evidence of appellant’s use of a cell phone while driving, her unsafe lane change, and her failure to maintain a proper lookout. Only one of the three factors was a moving violation under Texas Law: making an unsafe lane change. However, the State placed primary emphasis on a factor that was not even listed in the indictment as proof of appellant’s negligence: cell phone usage. . . . [B]y continuing that emphasis in this appeal, the State encourages this court to legislate through judicial fiat. Except under very limited circumstances not at issue in this case, using a cell phone while driving is not an illegal activity in Texas.[2]

      Focusing on the prosecution’s presentation of cell-phone use as a primary factor establishing appellant’s criminally negligent behavior, the court of appeals found that the state introduced no competent evidence that cell-phone use while driving increases the risk of fatal accidents and held that, without evidence that such a risk was generally known and disapproved of in the community, no reasonable fact finder could find that using a cell phone while driving turned a simple moving violation into criminally negligent homicide. Thus, the state had failed to establish that appellant ought to have been aware of a substantial and unjustifiable risk that death would result from her actions and that her failure to perceive such a risk was a gross deviation from the standard of ordinary care.

      The state argues that, had the court of appeals used the correct standard of review and viewed the evidence in the light most favorable to the verdict, the court would have concluded that the evidence was legally sufficient to sustain the conviction. The state contends that the court of appeals relied on two incorrect theories of law: (1) cell-phone use while driving does not constitute morally blameworthy conduct and therefore does not justify criminal sanctions; and (2) the negligent act in a criminally negligent homicide must itself be an illegal act. The state contends that the court of appeals required evidence of an increased risk of fatal crashes from cell-phone use, but such a risk is generally known and disapproved of in the community; the dangers of driving while talking on a cell phone have been well known for years and has even been criminalized in certain situations by the Texas Legislature. And even though appellant violated at least one traffic law when she made an unsafe lane change into the left lane, it is not the law in Texas that the negligent act must be illegal.

      Sufficiency of the Evidence

      The state’s third and fourth grounds for review challenge the court of appeals’s sufficiency review of the evidence. When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”[3] The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimonies, and the reviewing court must not usurp this role by substituting its own judgment for that of the jury.[4] The duty of the reviewing court is simply to ensure that the evidence presented supports the jury’s verdict[5] and that the state has presented a legally sufficient case of the offense charged.[6] When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record.[7] 

      To make a legally sufficient showing of criminally negligent homicide, the state must prove that (1) appellant’s conduct caused the death of an individual; (2) appellant ought to have been aware that there was a substantial and unjustifiable risk of death from her conduct; and (3) appellant’s failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person wouldhaveexercisedunderlikecircumstances.[8] The circumstances are viewed from the standpoint of the actor at the time that the allegedly negligent act occurred.[9] Criminal negligence does not require proof of appellant’s subjective awareness of the risk of harm, but rather appellant’s awareness of the attendant circumstances leading to such a risk.[10] The key to criminal negligence is not the actor’s being aware of a substantial risk and disregarding it, but rather it is the failure of the actor to perceive the risk at all.[11]

      Conduct that constitutes criminal negligence involves a greater risk of harm to others, without any compensating social utility, than does simple negligence.[12] The carelessness required for criminal negligence is significantly higher than that for civil negligence; the seriousness of the negligence would be known by any reasonable person sharing the community’s sense of right and wrong.[13] The risk must be “substantial and unjustifiable,” the failure to perceive it must be a “gross deviation” from reasonable care as judged by general societal standards.[14] “With criminal negligence, the defendant ought to have been aware of a substantial and unjustifiable risk that his conduct could result in the type of harm that did occur, and that this risk was of such a nature that the failure to perceive it was a gross deviation from the reasonable standard of care exercised by ordinary people.” Williams v. State, 235 S.W.3d 742, 750-51 (Tex. Crim. App. 2007). The degree of deviation from reasonable care “is measured solely by the degree of negligence, not any element of actual awareness.”[15] In finding a defendant criminally negligent, a jury is determining that the defendant’s failure to perceive the associated risk is so great as to be worthy of a criminal punishment.[16]

      After reviewing the record, we conclude that the state has met its burden of proving all of the elements of criminally negligent homicide. Appellant made an abrupt lane change in front of Willis’s truck, causing that truck to strike the rear of appellant’s SUV, and then causing her SUV to strike Housley’s truck, from which Wilcox was ejected and died. The state has thus shown that appellant, by making an unsafe lane change, caused the death of Wilcox.

      The state has also proved that appellant ought to have been aware of the substantial and unjustifiable risk created by her conduct. The court of appeals, focusing on her cell-phone use, found that the state had not proved that appellant ought to be aware of the risk present because the state did not present evidence that cell-phone use while driving poses a risk to others. However, the indictment made no mention of use of a cell phone. Rather, the indictment alleged that appellant caused Wilcox’s death by making an unsafe lane change and failing to maintain a proper lookout when she made that lane change. Nor did the jury charge mention appellant’s use of a cell phone. The jury charge read,

      Now, if you find from the evidence beyond a reasonable doubt that on or about the 24th day of March, 2008, in Harris County, Texas, the defendant, Jeri Dawn Montgomery, did then and there unlawfully, cause the death of Chance Wilcox, by criminal negligence, namely, while operating a motor vehicle, making an unsafe lane change and failing to keep a proper lookout, causing the defendant’s vehicle to collide with a motor vehicle occupied by Chance Wilcox, then you will find the defendant guilty of criminally negligent homicide, as charged by the indictment.[17]

      Through the testimony of its witnesses and experts, and by cross-examination of appellant’s witnesses and experts, the state presented evidence that: appellant was driving her SUV on the access road of IH-45; the speed limit was 50 miles per hour; appellant was driving more slowly than surrounding traffic; appellant was up to 92 feet past the beginning of the entrance ramp onto IH- 45 when she abruptly changed lanes; appellant did not signal the lane change or look for other vehicles approaching in the left lane; and appellant intended to enter IH-45 via the entrance ramp that she had already passed. The state also presented evidence that, just before the accident, appellant was driving and talking on her cell phone and that appellant admitted using the cell phone had distracted her. As Justice Hudson pointed out in his dissent in the court of appeals, the state had no burden to show that driving while using a cell phone is always risky or dangerous, or that it, of itself, creates a substantial and unjustifiable risk, only that appellant’s use of a cell phone in this case created a substantial and unjustifiable risk because it interfered with her ability to maintain a proper lookout for other vehicles.[18] 

      Given these circumstances, we find that a jury could have reasonably concluded that appellant ought to have been aware of the substantial and unjustifiable risk created by her actions. Appellant was driving at speeds high enough to be lethal, should a collision occur. It is common knowledge that failing to maintain a proper lookout and making an unsafe lane change without signaling or checking for upcoming traffic poses a great risk to other drivers on that road and that anyone sharing the general community’s sense of right and wrong would be aware of the seriousness of doing so.

      Finally, we hold that the jury could have reasonably found that appellant’s failure to appreciate the substantial and unjustifiable risk, given the circumstances known to her at that time, was a gross deviation from a standard of care that an ordinary person would exercise under the same circumstances. The state presented evidence that appellant had missed the entrance ramp for the highway because she was distracted by talking on her cell phone. Further evidence indicated that, although appellant knew that she had missed the entrance ramp, she still attempted to move to the left lane, cut across the “safety barrier,” and get onto the entrance ramp. Both the state’s and appellant’s accident reconstruction experts testified that appellant made an unsafe or “aggressive” lane change into the left lane and that Willis could not have avoided hitting appellant’s vehicle. Willis testified that appellant was driving more slowly than surrounding traffic and did not signal or use her brakes before she changed lanes. From the evidence presented, the jury could have found that appellant failed to perceive the substantial and unjustifiable risk created by her conduct.

      Appellant argues that her conduct was not a gross deviation from the ordinary standard of care and that she was subjected to criminal liability for a common traffic accident with fatal results. The court of appeals, again focusing on the lack of evidence presented regarding the dangers of talking on a cell phone while driving, found that the use of a cell phone while driving was such common practice that it would be difficult for a rational fact finder to find it to be a gross deviation from the ordinary standard of care.

      The court of appeals mistakes what conduct was alleged to constitute the gross deviation in this case. The gross deviation from the ordinary standard of care argued by the state in this case was not appellant’s use of a cell phone, but rather that appellant made an unsafe lane change and failed to maintain a proper lookout, at least partly as a result of the distraction created by her use of the cell phone. The state was not required to present evidence of the dangers of using a cell phone while driving in order to carry its burden of proof, but such a use of a cell phone may be considered as a factor in determining whether a defendant grossly deviated from the ordinary standard of care. The question of whether appellant’s conduct was a “gross deviation” is a question to be answered by the fact finder and here, a rational jury could conclude that it was. We sustain the state’s third and fourth grounds for review.

      Cell Phone Use

      In its first ground, the state argues that the court of appeals erred in holding that cell-phone use while driving does not constitute morally blameworthy conduct and does not justify criminal sanctions. The morally blameworthiness of cell-phone use while driving, by itself, is not the issue in this case, and we will therefore not address it. It is within the purview of the legislature, not the courts, to determine what does and does not justify criminal sanctions.[19] We dismiss the state’s first ground for review.

      Illegality of the Underlying Act

      In its second ground, the state contends that the court of appeals erred in presuming that the negligent act in a criminally negligent homicide must itself be an illegal act. We do not read the court of appeals’s opinion to presume that the underlying act must itself be illegal. In footnote 10, the court of appeals listed a number of clearly legal-yet-distracting activities that, under the proper circumstances, may cause negligent driving.[20] By including such a list, the court of appeals clearly did not presume that the negligent act must violate Texas law. Instead, in considering whether a finding of a gross deviation from the standard of care was supported by the record, the court of appeals mistakenly focused on the absence in the record of any fact witnesses or scientific studies showing that cell-phone use while driving increases the risk of fatal accidents. We overrule the state’s second ground for review.

      Conclusion

      We hold that the evidence was legally sufficient to support the jury’s verdict of guilty of criminally negligent homicide. We vacate the judgment of the court of appeals and remand the cause to the court of appeals so that it may address appellant’s remaining points of error.

      Delivered: June 20, 2012 Publish 

       

       

      [1] Montgomery v. State, 346 S.W.3d 747 (Tex. App.—Houston [14th Dist.] June 2, 2011, pet. granted). 

      [2] Id. at 752-753. 

      [3] Brooks v. State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

      [4] Id. at 899.

      [5] Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

      [6] Id. at 753-754.

      [7] Brooks, 323 S.W.3d at 900 n.13 (citing Jackson, 443 U.S. at 326). 

      [8] See Tello v. State, 180 S.W.3d 150, 156 (Tex. Crim. App. 2005); see also Graham v. State, 657 S.W.2d 99, 101(Tex. Crim. App. 1983).

      [9] Tello, 180 S.W.3d at 150 (Tex. Crim. App. 2005); Graham, 657 S.W.2d at 101.

      [10] Tello, at 159 (Cochran, J., concurring).

      [11] Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975).

      [12] Tello, at 158-159 (Cochran, J., concurring).

      [13] Id. at 158. 

      [14] Id.

      [15] Tello, at 158.

      [16] See id. 

      [17] I C.R. at 327.

      [18] Montgomery, 346 S.W.3d at 756 (Hudson, J., dissenting)(emphasis added). 

      [19] In 2005, the legislature first enacted a law that governed use of cell phones; that law prohibited persons under the age of 18 years of age from driving while using a cell phone. See Act of June 17, 2005, 79th Leg., R.S., ch. 357, § 5, 2005 Tex. Sess. Law Serv. Ch. 357 (codified at TEX. TRANSP. CODE § 545.425). In 2009, the Legislature amended sections of the Transportation Code to state that, in very limited circumstances, criminal sanctions are appropriate for the use of a cell phone by persons of any age while driving. See TEX. TRANSP. CODE §§ 545.424-425 (2009). These circumstances are not present in this case, and, even if they were, the applicable amendments became effective eighteen months after this incident.

      [20] Montgomery, 346 S.W .3d at 753 n.10. 

       

       

       

  • 2 III.C.ii. Unintentional Murder

    Just as certain factors can bump murder down to manslaughter, others can bump it right back up. The cases in this section examine circumstances considered so extreme that, even though they do not show specific intent to kill or knowledge of killing, they are punished as “unintentional murder.”

    The doctrines that raise these homicides from manslaughter to murder have provocative traditional names: depraved heart; abandoned heart; malignant heart; or, more recently, “extreme indifference to the value of human life.” Consider why we punish these unintentional killings more severely than others, and how we distinguish these kinds of homicides from “normal” recklessness or indifference. Is it simply an instinctual feeling that these crimes are more blameworthy? As you read these cases, consider how the main justifications for criminal punishment—retribution, deterrence, incapacitation, and rehabilitation—justify elevating the level of criminal punishment.

    • 2.1 Commonwealth v. Malone

      1

      354 Pa. 180
      47 A.2d 445

      2

      COMMONWEALTH
      v.
      MALONE.

      3

      Supreme Court of Pennsylvania.

      4

      May 27, 1946.

      5

       

      6

      Appeal No. 230, January term, 1945, from judgment of sentence of Court of Oyer and Terminer, General Jail Delivery and Quarter Sessions of the Peace, Lancaster County, June term, 1945, No. 1; Wissler, Judge.

      7

      James J. Malone was convicted of second-degree murder, and he appeals.

      8

      Affirmed, and record remitted. [47 A.2d 446]

      9

      Before MAXEY, C. J., and DREW, LINN, STERN, PATTERSON, and STEARNE, Jj.

      10

      W. Hensel Brown, of Lancaster, for appellant.

      11

      John L. Hamaker, of Lancaster, for appellee.

      12

      MAXEY, Chief Justice.

      13

      This is an appeal from the judgment and sentence under a conviction of murder in the second degree. William H. Long, age 13 years, was killed by a shot from a 32-caliber revolver held against his right side by the defendant, then aged 17 years. These youths were on friendly terms at the time of the homicide. The defendant and his mother while his father and brother were in the U. S. Armed Forces, were residing in Lancaster, Pa., with the family of William H. Long, whose son was the victim of the shooting.

      14

      On the evening of February 26th, 1945, when the defendant went to a moving picture theater, he carried in the pocket of his raincoat a revolver which he had obtained at the home of his uncle on the preceding day. In the afternoon preceding the shooting, the decedent procured a cartridge from his father's room and he and the defendant placed it in the revolver.

      15

      After leaving the theater, the defendant went to a dairy store and there met the decedent. Both youths sat in the rear of the store ten minutes, during which period the defendant took the gun out of his pocket and loaded the chamber to the right of the firing pin and then closed the gun. A few minutes later, both youths sat on stools in front of the lunch counter and ate some food. The defendant suggested to the decedent that they play ‘Russian Poker.’ 1 Long replied; ‘I don't care; go ahead.’ [47 A.2d 447]

      16

      The defendant then placed the revolver against the right side of Long and pulled the trigger three times. The third pull resulted in a fatal wound to Long. The latter jumped off the stool and cried: ‘Oh! Oh! Oh!’ and Malone said: ‘Did I hit you, Billy? Gee, Kid, I'm sorry.’ Long died from the wounds two days later.

      17

      The defendant testified that the gun chamber he loaded was the first one to the right of the firing chamber and that when he pulled the trigger he did not ‘expect to have the gun go off.’ He declared he had no intention of harming Long, who was his friend and companion. The defendant was indicted for murder, tried and found guilty of murder in the second degree and sentenced to a term in the penitentiary for a period not less than five years and not exceeding ten years. A new trial was refused and after sentence was imposed, an appeal was taken.

      18

      Appellant alleges certain errors in the charge of the court and also contends that the facts did not justify a conviction for any form of homicide except involuntary manslaughter. This contention we over-rule. A specific intent to take life is, under our law, an essential ingredient of murder in the first degree. At common law, the ‘grand criterion’ which ‘distinguished murder from other killing’ was malice on the part of the killer and this malice was not necessarily ‘malevolent to the deceased particularly’ but ‘any evil design in general; the dictate of a wicked, depraved and malignant heart’; 4 Blackstone 199. Among the examples that Blackstone cites of murder is ‘coolly discharging a gun among a multitude of people,’ causing the death of someone of the multitude.

      19

      In Pennsylvania, the common law crime of murder is divided into two degrees, and murder of the second degree includes every element which enters into first degree murder except the intention to kill: Commonwealth v. Divomte, 262 Pa. 504, 507, 105 A. 821. When an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits that ‘wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty’ which proved that there was at that time in him ‘the state or frame of mind termed malice.' 2 This court has declared that if a driver ‘wantonly, recklessly, and in disregard of consequences' hurls ‘his car against another, or into a crowd’ and death results from that act ‘he ought * * * to face the same consequences that would be meted out to him if he had accomplished death by wantonly and wickedly firing a gun’: Com. v. Mayberry, 290 Pa. 195, 199, 138 A. 686, 688, citing cases from four jurisdictions.

      20

      In Com. v. Hillman, 189 Pa. 548, 42 A. 196, 69 Am.St.Rep. 827, the charge of the court below was approved by this court. In that charge appears this statement: ‘Malice in law means a depraved and wicked heart that is reckless and disregards the rights of others. Reckless conduct that results in the death of another is malice. To illustrate that: If a man fires a gun into a crowd and kills another it is murder, because the fact of the reckless shooting of a gun into a crowd is malice in law. That wicked and depraved disposition and that recklessness and disregard of human life is malice.’

      21

      In Com. v. Knox, 262 Pa. 428, 105 A. 634, 636, the following instructions by the trial judge in a murder case was held by this court not to be error: ‘When a man uses a gun loaded with powder and shot and aimed at a vital part of the body of another and discharges it, he must be presumed to know that death is likely to follow.’ In Com. v. Arnold, 292 Pa. 210, at page 213, 140 A. 898, at page 899, this court said: ‘Malice will be implied from conduct, recklessness of consequences, or the cruelty of the crime.’

      22

      Appellant has assigned for error certain excerpts from the charge of the court. The charge in its entirety affords no grounds for the reversal of the judgment and sentence. Certain excerpts if they stood alone might have misled the [47 A.2d 448] jury to the defendant's prejudice. For example, the trial judge said: ‘All felonious homicide or illegal or unlawful homicide is presumed to be malicious, that is, murder of some degree, until the contrary appears in the evidence.’ The second sentence after this one reads as follows: ‘Accordingly, when a felonious or unlawful homicide is proved, malice is presumed to have existed * * * as a presumption of fact.’ A homicide may be unlawful without being presumably malicious. The homicide known as involuntary manslaughter occurs when death is caused by an unlawful act or by a lawful act done in an unlawful manner. While there do appear statements in some of the reports that ‘all unlawful homicide is presumed to be malicious and, therefore, murder,’ careful trial judges always qualify that statement, as Chief Justice Agnew did in Com. v. Drum, 58 Pa. 9, at page 17, where he said: ‘All murder * * * includes all unlawful killing under circumstances of depravity of heart, and a disposition of mind regardless of social duty.’ Trial judges should make it clear to the jury that an unlawful killing in order to constitute murder must result from an intentional, felonious act and not merely from an inadvertent or negligent act. The trial judge in a sentence which intervened between the two sentences above quoted, stated the applicable principle of law correctly as follows: ‘This presumption of malice does not rise, however, until the Commonwealth has made out a prima facie case of felonious homicide.’ This statement was in accord with what Mr. Justice Stern, speaking for this court, said in Com. v. Wucherer, 351 Pa. 305, at page 310, 41 A.2d 574, at page 576, to wit: ‘It is important at the outset to bear in mind that the so-called presumption of malice does not arise until the Commonwealth has made out a prima facie case of felonious homicide.’ Defendant's rights were fully protected by the charge in its totality.

      23

      However, the charge was in several respects prejudicial to the Commonwealth. For example, the trial judge said: ‘It is the duty of the Commonwealth to prove that the killing was unlawful and intentional, and if the evidence taken as a whole raises reasonable doubt in the minds of the jury as to whether the killing was accidental or intentional, you must acquit the accused, for the reason that the Commonwealth has failed to sustain its case.’ This instruction was tantamount to saying that the Commonwealth in order to obtain the conviction of the defendant of any crime included in the indictment had to prove him guilty of murder in the first degree, for if the killing was intentional, it would have been murder in the first degree. The alternative presented to the jury by the instructions was limited to an intentional killing or to an accidental killing. The jury found that the killing was neither intentional nor accidental but that it was a malicious killing though without a specific intent in the killer to take life, and that, therefore, it was murder in the second degree.

      24

      The trial judge also erred in charging that ‘A person on trial for murder cannot be convicted of any offense if the testimony shows that the death was accidental’. Death may be accidental though it resulted from a malicious act intentionally committed. In such a case the means were not accidental; the result was. 3 In the instant case if the defendant had by some negligent, unintentional act, caused Long to fall off the stool at which he was sitting in the store and if, as a result of that fall, Long had sustained a fatal injury, both the initial act and the death might be correctly characterized as accidental. But when the defendant knowing [47 A.2d 449] that a revolver had at least one loaded cartridge in it, pressed the muzzle of that revolver to the side of Long and pulled the trigger three times, his act cannot be characterized as accidental, even if his statement that he had no intention to kill Long is accepted (as the jury accepted it). The way the trial judge used the word ‘accidental’ throughout the charge must have been confusing to the jury and might easily have misled it into acquitting the accused on the theory that since the death of Long was accidental, ‘the defendant cannot be convicted of any offense’ (as the trial judge said). The latter should have made it clear to the jury that even though Long's death might have been unintended and, therefore, accidental, the evidence showed that the act which caused the victim's death was not accidental. This was the view the jury took of the case despite the court's instructions.

      25

      In another portion of the charge, the trial judge said to the jury: ‘If you believe the testimony of the defendant, that the shot was accidental and without intention on his part, and that the shot accidentally and without intention on his part struck the body of William H. Long, from the effects of which he afterwards died, then you should acquit the defendant’. There was not in this record any evidence which would warrant a finding that ‘the shot was accidental’. Later the judge instructed the jury that ‘If the killing was accidental, although done with a deadly weapon, it could not be said to be intentional or wilful; and, if neither intentional nor wilful, the crime of murder is not made out’. What we have already said on this phase of the case sufficiently reveals the error in these instructions. Of such and similar errors, the appellant cannot complain; they were prejudicial only to the Commonwealth.

      26

      This court said in Sears v. Birbeck, 321 Pa. 375, 383, 184 A. 6, 10: ‘It is a primary duty of the trial judge-a duty that must never be ignored-in charging a jury to clarify the issues so that the jury may comprehend the questions they are to decide.’ When the issues in either a criminal or a civil case are not clarified in the judge's charge, the charge is of very little value in the administration of justice though it may contain no prejudicial error. A charge may be technically correct and yet be to the jury meaningless and useless. Many trial judges employ concrete illustrations 4 to help make clear to the jury what the issues are which the jury is to decide and how to apply legal principles to the facts so as to reach a just verdict.

      27

      The killing of William H. Long by this defendant resulted from an act intentionally done by the latter, in reckless and wanton disregard of the consequences which were at least sixty per cent certain from his thrice attempted discharge of a gun known to contain one bullet and aimed at a vital part of Long's body. This killing was, therefore, murder, for malice in the sense of a wicked disposition is evidenced by the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others. The fact that there was no motive for this homicide does not exculpate the accused. In a trial for murder proof of motive is always relevant but never necessary.

      28

      All the assignments of error are overruled and the judgment is affirmed. The record is remitted to the court below so that the sentence imposed may be carried out.

      29

      --------

      30

      Notes:

      31

      1It has been explained that ‘Russian Poker’ is a game in which the participants, in turn, place a single cartridge in one of the five chambers of a revolver cylinder, give the latter a quick twirl, place the muzzle of the gun against the temple and pull the trigger, leaving it to chance whether or not death results to the trigger puller.

      32

      2These quoted phrases are from the opinion of Chief Justice Agnew in Com. v. Drum, 58 Pa. 9.

      33

      3If A maliciously beats B intending to do him enormous bodily harm without killing him and B dies as result of the beating, A can be found guilty of murder in the second degree, though death was ‘accidental’ in the sense that it was not intended by A. The difference between intentional means and ‘accidental’ results is discussed in Arnstein v. Metropolitan L. Ins. Co., 329 Pa. 158, at page 162, 196 A. 491, and in O'Neill et al. v. Metropolitan Life Ins. Co., 345 Pa. 232, at page 237, 26 A.2d 898, at page 901, 142 A.L.R. 735, Footnote 1.

      34

      4In the well-known case of Com. v. Harman, 4 Pa. 269, Chief Justice Gibson in charging the jury used an illustration to make clear to the jury why evidence should not be discredited because it was circumstantial, and that even so-called ‘positive’ evidence was to a certain degree inferential in nature, i.e., circumstantial. In the famous case of Com. v. Webster, 5 Cush., Mass., 295, 311, 52 Am.Dec. 711, Chief Justice Shaw of Massachusetts used the following simple illustration to instruct the jury as to the nature and value of circumstantial evidence: ‘When footprints are discovered after a recent snow, it is certain that some animated being has passed over the snow since it fell; and, from the form and number of footprints, it can be determined with equal certainty, whether they are a man, a bird, or a quadruped.’

      35

       

      36

      --------

    • 2.2 People v. Wells

      1
      53 A.D.3d 181 (2008)
      2
      862 N.Y.S.2d 20
      3
       THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
      v.
      NEVILLE WELLS, Appellant.
      4

       Appellate Division of the Supreme Court of the State of New York, First Department.

      5
      June 26, 2008.
      6

       

      7

      [182] Richard M. Greenberg, Office of the Appellate Defender, New York City (Joseph M. Nursey of counsel), for appellant.

      8

      Robert M. Morgenthau, District Attorney, New York City (Patricia Curran and Alice Wiseman of counsel), for respondent.

      9

      FRIEDMAN and WILLIAMS, JJ., concur with TOM, J.P.; McGUIRE, J., concurs in a separate opinion.

      10
      OPINION OF THE COURT
      11

       

      12

      TOM, J.P.

      13

      This appeal raises the issue of whether a death resulting from defendant's operation of a motor vehicle at a high rate of speed through the streets of lower Manhattan, while severely impaired by alcohol intoxication, supports his conviction of depraved indifference murder (Penal Law § 125.25 [2]). The law in effect at the time defendant was convicted is delineated by People v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984]), and we hold that the evidence is sufficient to sustain the judgment under the Register standard, the verdict is consistent with the weight of the evidence, and the trial court properly declined to entertain the defense of intoxication to negate the culpable mental state of depraved indifference or to accept expert [183] testimony concerning defendant's chronic alcoholism. Were we to analyze this case under the standard of People v Feingold (7 NY3d 288 [2006]), as urged by defendant, we would reach the same result.

      14

      On June 14, 2004 at 2:00 A.M., Robert Smith drove from his home in Nassau County to the Fulton Fish Market, where he ran a wholesale seafood business. He was accompanied by his daughter, Judith Gubernikoff, 37 years of age, who had begun working for the family business that month after moving from Chicago to New York with her husband, Dr. George Gubernikoff, and their three young children so that Dr. Gubernikoff could accept a position at a Long Island hospital. Robert Smith testified that it was his custom to take the Williamsburg Bridge into Manhattan and drive south along Allen Street, which is a six-lane, divided roadway with a median separating the northbound and southbound lanes. Smith stated that he customarily traveled at 25 miles an hour to coincide with the timing of the traffic signals; however, he had no recollection of the events of that fatal morning.

      15

      At about 2:45 A.M., Adam Falek was in his pickup truck waiting at a red light on Waverly Street. As he made a right turn onto Broadway after the light changed, a blue van traveling south on Broadway came "flying" through the red light and almost hit his vehicle, causing him to swerve to the right to avoid a collision. Falek followed the blue van, pulling up alongside it at the next light, and began to yell at the driver, who paid no attention. Falek observed that the van's driver was rolling his head and looked "disheveled," "incoherent," "out of it," and "totally wasted." Without even looking over, he "just punched the gas and took off," stopping only momentarily after hitting a parked car about two blocks later. Falek continued to follow the van because it was going in his direction. However, he broke off the chase after the van ran through two more red lights: "he was going a high rate of speed and I was afraid, so I said it's not worth it." Falek estimated that, at the point he decided to discontinue the pursuit, his own vehicle was traveling at "[f]ifty, sixty miles an hour," and the distance between the two vehicles was increasing.

      16

      At approximately 2:55 A.M., Martin Clemente was in his Dodge Caravan in the westbound lane of Grand Street, facing the intersection with Allen Street, waiting for the light to change. There were still people coming back from the Hispanic Day parade crossing Grand Street directly in front of his vehicle. Looking [184] straight ahead towards the traffic light with an unobstructed view of the intersection, he observed a Saturn proceeding south on Allen Street at about 30 miles an hour into the intersection. Suddenly, a blue minivan "came out of nowhere" from the easterly direction on Grand Street, going "very fast," and without braking or slowing down entered the intersection against a red light. The front end of the van struck the passenger side of the Saturn. The force of the impact caused the minivan to spin around and come to a stop facing west in the intersection. "The Saturn went up in the air," propelled end over end, "doing a three-sixty, hit the floor, did another three-sixty," and landed on the fence of the divider on the northbound side of Allen Street.

      17

      After calling 911 to report the accident, Clemente went over to the Saturn. Smith appeared to be in shock, and Judith Gubernikoff was unconscious. Her seat was "crushed together" with the driver's seat, and both seats were tilted backwards, "so she was trying to gasp for air with her head back." From a distance of about 25 feet, Clemente watched defendant get out of the driver's side of the minivan. He appeared "dizzy" and was "walking around in circles."

      18

      At the same time, Coss Marte, who was standing in the vicinity with some friends, heard a loud crash and ran to the intersection of Allen and Grand Streets, where he saw the blue van in the middle of the intersection and the Saturn on top of the fence located on the median island. Marte also called 911. As the sound of ambulance sirens became audible, defendant attempted to "run away," "zigzagging" along Grand Street towards Eldridge Street. Marte chased defendant and, a minute or two later, Marte and another man grabbed defendant and brought him back to the accident scene. Marte and the other man had to "grab" defendant's arms because he was attempting to get away. Although defendant was mumbling incomprehensibly, he did not appear to have sustained injury.

      19

      Officer Christopher Owen, who responded to the 911 call, testified that defendant appeared disheveled, his clothes were messy, his eyes were bloodshot and a strong odor of alcohol emanated from his person. The officer "had to prop him up with my right hand under his arm to walk him towards the ambulance, and he was stumbling, stumbling as we walked." The officer added, "He appeared very confused, disoriented, seemed like he didn't know what was going on," and was unresponsive to questioning. Apart from "some blood coming from his nose," defendant did not appear to be injured.

      20

      [185] Ms. Gubernikoff was brought to Bellevue Hospital's emergency room, where she was treated by Dr. Richard Moreno. A thoracotomy was performed, which revealed that she had sustained a hemopericardium—the accumulation of blood between the heart and the pericardial sac surrounding it. Because the injury prevented her heart from contracting appropriately, the pericardium was opened and the blood drained. At that point, Dr. Moreno observed a hole in the right atrium of the heart, an injury that is consistent with blunt force trauma sustained in a motor vehicle collision. Dr. Moreno testified that the force generated in the thoracic cavity necessary to cause the heart to rupture was "high velocity." While performing surgery to repair the hole, the medical team was unable to maintain blood pressure, and Gubernikoff was pronounced dead on the operating table at 4:50 A.M.

      21

      Robert Smith was also taken to Bellevue Hospital. A CAT scan revealed that blood had accumulated in his chest and behind the abdominal organs, near his kidneys. His injuries included a lacerated intercostal artery, and the internal bleeding required surgical intervention, without which he would have bled to death. Smith, who awoke three weeks later, remained in the intensive care unit until June 30, 2004. He was discharged from the hospital on July 9 and treated at a rehabilitation center for another two weeks. He was unable to return to work for approximately six months and experienced memory deficits, difficulty walking and climbing, and reduced stamina for months after the crash.

      22

      After the victims were taken to the hospital, an accident investigation team arrived at the accident scene. Detective Patrick Rooney, an expert in the field of collision investigation and reconstruction, observed no pre-crash skid marks, from which he deduced that neither driver had applied the brakes before the vehicles collided. The absence of skid marks prevented him from calculating the speed of the van. In addition, the doors and roof of the Saturn had been cut off to extricate the passengers, precluding calculation of its speed from "crush evidence." However, judging from the damage sustained by both vehicles and their respective weights (2,500 pounds for the Saturn and 4,300 pounds for the Ford Windstar minivan), the distance the Saturn traveled following the collision, its abrupt change of direction from south to southeast upon impact and the fact that it became airborne, Rooney concluded that the van must have been going from 50 to 55 to as much as 60 miles an hour when [186] the vehicles collided. He further testified that both occupants of the Saturn were wearing seat belts, which had been cut to facilitate extrication. From the absence of any imprint on the van's safety harness, meaning that it did not lock on impact, the witness concluded that defendant was not wearing his seat belt at the time of the collision.

      23

      Two blood samples were obtained from defendant at about 5:00 A.M. on the morning of the accident. Since he had passed out, the samples were taken with his implied consent by an emergency room doctor. Analysis of the two samples revealed a blood alcohol concentration of .25% and .27%, respectively. It was stipulated that defendant had previously attended an intoxicated driver rehabilitation course.

      24

      Defendant presented testimony from Nicholas Bellizzi, a civil engineer and expert in the field of engineering and accident reconstruction. Bellizzi testified that, in the absence of skid marks, there are two methods of accident reconstruction used to determine speed: conservation of kinetic energy and conservation of linear momentum. The first method is based on a calculation of the amount of force required to create the damage caused to the vehicles in a collision. Due to the damage done to the Saturn in removing the passengers, he was unable to use the conservation of kinetic energy method to calculate the van's speed. Using the conservation of linear momentum method, he estimated that the van had been traveling between 36 and 37 miles an hour and the Saturn had been traveling about 13 miles an hour at the time of impact, with a five percent margin of error. Bellizzi made his calculations using the heaviest Saturn model, which weighed 900 pounds more than the Smith vehicle. He worked from police diagrams and photographs without conducting any examination of the vehicles. From offset crash barrier tests performed by the Insurance Institute for Highway Safety, he opined that defendant's van would have sustained more severe damage to the occupant compartment had it been traveling at 55 miles an hour and that defendant, unrestrained by a seat belt, would have been propelled through the windshield. However, he conceded that vehicle damage inflicted by an offset crash would be greater since a smaller area of the vehicle absorbs the impact. The impact during an offset crash test is deliberately confined to the driver's side and not distributed over the full frontal width as in the case of a "frontal barrier impact" (such as the collision herein), where the entire front of the car strikes the barrier. Nor, he conceded, are offset crash [187] tests designed to simulate the collision of vehicles in different weight classes. Bellizzi did not take into account that the Saturn had flipped over because the conservation of linear momentum method does not utilize such data. Finally, he did not estimate how far the Saturn might have traveled had it not come into contact with the median fence, although from the minimal damage to the fence he concluded that it would not have traveled much farther.

      25

      The trial court, in a nonjury trial, refused to permit a psychologist to testify that, based on his examination, defendant suffered from chronic alcoholism, rejecting defendant's argument that this condition bore on his capacity to formulate the mens rea necessary for depraved indifference murder. Rather, the court held that voluntary intoxication is not a material consideration with respect to a crime involving reckless behavior.

      26

      The court found defendant guilty of murder in the second degree for causing the death of Judith Gubernikoff as a result of his reckless and wanton conduct. The court further found defendant guilty of assault in the first degree for "causing serious physical injury to Mr. Robert Smith that was occasioned by the same recklessness and indifference to human life that resulted in Mrs. Gubernikoff's death." Defendant was also found guilty of all lesser noninclusory concurrent counts in the indictment— vehicular manslaughter in the second degree, vehicular assault in the second degree and assault in the second degree. On July 29, 2005, the court sentenced defendant to a cumulative concurrent term of imprisonment of 17 years to life.

      27

      On appeal, defendant contends that the evidence is insufficient to sustain conviction of murder in the second degree and assault in the first degree because it failed to establish that his conduct was so morally deficient and devoid of concern for life as to warrant exposing him to the same criminal liability that the law imposes for intentional conduct (citing People v Payne, 3 NY3d 266, 271 [2004]). Relying on People v Feingold (7 NY3d 288, 296 [2006], supra), he argues that the evidence fails to show, even circumstantially, that he was capable of formulating the mens rea that delineates depraved indifference murder because his extreme intoxication rendered him "incapable of possessing the culpable mental state necessary to prove depraved indifference" (quoting People v Coon, 34 AD3d 869, 870 [2006]). He maintains that the trial court erred in refusing to receive relevant testimony concerning his chronic alcoholism. [188] Finally, defendant asserts that even when examined under the pre-Feingold standard of Register, his conduct falls far short of the extreme recklessness of drivers found similarly culpable, who generally appeared to be well aware of the risks they posed to others (e.g. People v Gomez, 65 NY2d 9 [1985] [driving on sidewalk at high speed]; People v Williams, 184 AD2d 437 [1992], lv denied 80 NY2d 935 [1992] [high-speed chase through construction site]). Defendant's contentions are unavailing.

      28

      Depraved indifference murder is committed when, "[u]nder circumstances evincing a depraved indifference to human life," a person "recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person" (Penal Law § 125.25 [2]). Similarly, assault in the first degree under a depraved indifference theory is committed when, "[u]nder circumstances evincing a depraved indifference to human life," a person "recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person" (Penal Law § 120.10 [3]). A person acts recklessly "when he is aware of and consciously disregards a substantial and unjustifiable risk" (Penal Law § 15.05 [3]). The law in effect at the time of defendant's trial did not evaluate depraved indifference under the subjective mens rea standard announced in Feingold (7 NY3d 288 [2006], supra), but instead referred to an objective standard reflected by the "factual setting in which the risk creating conduct must occur" (see Register, 60 NY2d at 276). Prior to Feingold, our jurisprudence had not progressed to the point where recklessness had been abandoned in favor of the mens rea of depraved indifference to human life, and then only by a closely divided Court of Appeals, whose dissenters saw no reason to overrule Register (see 7 NY3d at 300 [Ciparick, J., dissenting], 301 [Kaye, Ch. J., dissenting], 305 [Graffeo, J., dissenting]).

      29

      Defendant never objected that the trial court was required to find that he acted with a mental state beyond recklessness or that depraved indifference referred to anything other than the circumstances under which the risk-creating conduct took place. Indeed, in his motion to dismiss at the conclusion of the People's case after the close of evidence, defendant explicitly cited Register, arguing merely that the People had failed to establish his commission of the crimes charged under circumstances evincing a depraved indifference to human life. This objection did not suffice to apprise the trial court of [189] the contention now advanced by defendant that depraved indifference must be evaluated subjectively from his mental state and not objectively from the surrounding circumstances (see People v Hines, 97 NY2d 56, 62 [2001]; People v Gray, 86 NY2d 10, 20-21 [1995]; People v Lawrence, 85 NY2d 1002, 1004 [1995]). Furthermore, the Court of Appeals' purpose in effecting this change in the law was "to dispel the confusion between intentional and depraved indifference murder, and thus cut off the continuing improper expansion of depraved indifference murder" (Policano v Herbert, 7 NY3d 588, 603 [2006] [change in the law not retroactively applicable to convictions that have become final upon exhaustion of appellate review]). The People's reliance "on Register's objectively determined degree-of-risk formulation" (id. at 604) in this matter does not implicate such concerns since there is no suggestion that defendant harbored any intent to cause harm. Thus, the court's evaluation of the sufficiency of proof according to the Register standard, which represented the prevailing law at the time defendant was convicted (see People v Woods, 36 AD3d 525, 526 [2007], lv denied 8 NY3d 951 [2007]), went unchallenged, and its failure to apply a mens rea standard, as now urged, is unpreserved for review (see id., citing Gray, 86 NY2d 10 [1995], supra; see also People v Orcutt, 49 AD3d 1082, 1085 [2008]; People v Zephirin, 47 AD3d 649 [2008]), and we decline to reach the issue in the interest of justice.

      30

      Under Register, depraved indifference murder requires that a defendant's act be imminently dangerous, present a very high risk of death to others and be committed under circumstances that evince a wanton indifference to human life or a depravity of mind (see Register, 60 NY2d at 274). The requirement of depraved indifference refers neither to the mens rea nor to the actus reus; rather, it refers to "the factual setting in which the risk creating conduct must occur" (id. at 276).

      31

      The evidence adduced in this case overwhelmingly supports defendant's conviction of depraved indifference murder and depraved indifference assault. Having chosen to drive while heavily intoxicated, defendant proceeded to drive in an extremely reckless manner, creating a grave risk of death to pedestrians and other drivers in a densely populated area of lower Manhattan.

      32

      The People's proof showed that defendant was driving at a speed of between 50 and 60 miles an hour and speeding through red lights before entering the subject intersection against a red [190] traffic signal and plowing into Smith's Saturn. Defendant was operating a motor vehicle while, by his own admission, "barely conscious due to his intoxication,"[*] and analysis showed his blood alcohol level was close to three times the legal limit. Falek observed defendant "flying" through several red lights and hitting a parked car, and Clemente observed defendant's van coming out of nowhere, traveling "very fast" as it entered the intersection. Detective Rooney, based on his training and experience, estimated that the van had been traveling at 50 to 55 miles an hour, and possibly as high as 60 miles an hour, an opinion supported both by the damage to the vehicles and by the testimony of eyewitnesses. The impact between defendant's minivan and Smith's Saturn was sufficiently severe to cause the Saturn to become airborne and flip end over end two times before landing on top of a fence located on the median island. Defendant made no attempt to brake before hitting the Saturn, as indicated by the absence of pre-crash skid marks.

      33

      Defendant drove not only at a high rate of speed but dangerously, as evinced by his striking a parked car and nearly striking Falek's pickup truck before colliding with the Saturn. Defendant narrowly avoided striking Falek's vehicle under much the same circumstances under which he struck the Smith vehicle moments later—speeding through a red light toward a vehicle that was passing through the intersection with the right-of-way. Just as defendant made no apparent effort to avoid the collision with Smith's Saturn, he made no effort to avoid Falek, who was forced to swerve to the right to get out of the way. The fact that defendant continued driving in the same manner after almost striking Falek—indeed, reacting to Falek's attempt to get his attention by "punch[ing]" the gas pedal and speeding off again—demonstrated a depraved disregard of the very high risk of death or serious physical injury that his conduct posed to others. Thus, the evidence supports defendant's conviction of depraved indifference murder and assault (see People v Gomez, 65 NY2d 9 [1985], supra [defendant's excessive rate of speed and failure to brake while proceeding along a busy city street and partly onto its sidewalk satisfied depraved indifference element of crime]; People v Hoffman, 283 AD2d 928 [2001], lv denied 96 NY2d 919 [2001] [drinking and driving, excessive rate of speed, disobeying traffic signals, and failing to brake before he broadsided vehicle, killing and injuring the passengers [191] therein, legally sufficient evidence of depraved mind murder]; People v Padula, 197 AD2d 747 [1993], lv denied 82 NY2d 928 [1994] [excessive rate of speed, failure to brake or take other evasive action, and decision to get behind the wheel of vehicle after becoming intoxicated, legally sufficient evidence of depraved mind murder]).

      34

      Further, while extremely intoxicated, defendant was not so impaired that he was unaware of what he had done, as indicated by his attempt to flee from the scene of the crash and his struggle with those who thwarted his escape. Moreover, it was conceded that defendant had previously attended a rehabilitative course for intoxicated drivers, which certainly would have alerted him to the grave danger that drinking and driving poses to others.

      35

      The verdict comported with the weight of the evidence, and the trial court properly credited the speed estimates proffered by the People's witnesses. The import to be accorded to expert testimony is generally within the province of the trier of fact (see People v Schwartz, 21 AD3d 304, 309 [2005], lv denied 7 NY3d 763 [2006]), which may determine whether to accept or reject it (see People v Drake, 7 NY3d 28, 33 [2006]). The trial court properly assessed the probative value of the witnesses' conflicting testimony (see People v Bleakley, 69 NY2d 490, 495 [1987]) and was warranted in rejecting defendant's expert's calculations and crediting the testimony of the People's eyewitnesses and an experienced police accident investigator that the minivan's speed was from 50 to 55 to as much as 60 miles an hour at the time of impact. When he first spotted defendant's van, Falek described it as "flying" through the red light, and estimated its speed at 50 to 60 miles an hour as it sped away. Falek pursued defendant's van for some distance and was in an excellent position to assess its speed from that of his own vehicle. He testified that, at the time he gave up his pursuit, his own vehicle was traveling at a speed of 50 to 60 miles an hour, and the distance between the two vehicles was increasing. While the van's speed was contested by defendant's expert, Bellizzi, who estimated a modest 36 to 37 miles an hour, he did not personally inspect the vehicles. His calculation utilized an exaggerated weight of the Saturn and employed a mathematical model of "linear momentum" that did not account for the fact that the vehicle had flipped over. The result of Bellizzi's computation was only as good as the variables that went into it. His determination of the critical "point of impact" (from which [192] all the other measurements flowed) was itself flawed in that it relied upon the location of scuff marks, the exact coordinates of which were unavailable.

      36

      The argument advanced by defendant that the element of depraved indifference to human life "may be negatived by evidence of intoxication," was explicitly rejected in Register, which holds that depraved indifference "is not an element in the traditional sense but rather a definition of the factual setting in which the risk creating conduct must occur—objective circumstances which are not subject to being negatived by evidence of defendant's intoxication" (60 NY2d at 276). Furthermore, Penal Law § 15.05 (3) expressly precludes evidence of intoxication as a defense to a reckless crime, providing that "[a] person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly." Thus, defendant's intoxication at the time of the collision, no matter how debilitating, is immaterial, as is his history of chronic alcoholism, and the trial court properly declined to consider such evidence.

      37

      The act of driving a vehicle while in a highly intoxicated state, at high speed, on city streets, ignoring traffic signals and failing to stop after striking a parked vehicle, demonstrates reckless conduct that created a grave risk of death to others so as to constitute depraved indifference to human life.

      38

      Defendant did not preserve his objection to the trial court's evaluation of the evidence under the Register standard, and we decline to review it in the interest of justice. As an alternative holding, we further reject, on the merits, defendant's argument that he was incapable of forming the mens rea required for depraved indifference murder. Even subjecting his conviction to analysis under Feingold, as defendant now urges, we conclude that the evidence nevertheless supports a finding that his conduct evinced a depraved indifference to human life. Operation of a vehicle weighing in excess of two tons at a high rate of speed on city streets while highly intoxicated is the very epitome of depraved indifference to human life, culpably equivalent to "shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions' cage in the zoo" (Payne, 3 NY3d at 272 [internal quotation marks omitted]). It demonstrates "an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not" (Feingold, 7 NY3d at 296 [internal quotation marks omitted]). People v Coon (34 AD3d 869, 870 [2006]), relied upon by the [193] concurrence, is distinguishable. There, the defendant, in a state of cocaine intoxication delirium, assaulted his sister with a knife. The Third Department held that defendant was too intoxicated to possess the culpable mental state necessary to sustain conviction for a depraved indifference offense.

      39

      Here, defendant's mental state at the time of the collision, as attested by numerous witnesses, is not dispositive; rather, culpability is appropriately assessed at the time defendant made the conscious decision to embark on a course of conduct that inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication. The mens rea of depraved indifference in this case is established by circumstantial evidence demonstrating that defendant made a conscious decision to drink and then, after consuming an excessive amount of alcohol to the point of becoming "totally wasted," to drive on city streets at a high rate of speed through red traffic lights, thereby creating a grave risk of death to pedestrians and occupants of other vehicles. The distinction between depraved indifference and intentional conduct does not detract from the wisdom of the observation aptly made by the Court of Appeals in Register:

      40
      "In utilitarian terms, the risk of excessive drinking should be added to and not subtracted from the risks created by the conduct of the drunken defendant for there is no social or penological purpose to be served by a rule that permits one who voluntarily drinks to be exonerated from failing to foresee the results of his conduct if he is successful at getting drunk" (60 NY2d at 280-281).
      41

       

      42

      Defendant's depraved indifference is further supported by his comprehension of the dangers of drinking and driving. Having stipulated to attending an intoxicated driver rehabilitation course, there is record support for the conclusion that defendant was well aware of the risk that drunk driving posed to others. Thus, we conclude that the sufficiency and weight of the evidence prove beyond a reasonable doubt, even under Feingold, that defendant engaged in reckless conduct that created a grave risk of death to others and that he disregarded such risk under circumstances evincing a depraved indifference to human life, thereby causing the death of Judith Gubernikoff and serious physical injury to Robert Smith.

      43

      Accordingly, the judgment of the Supreme Court, New York County (Richard D. Carruthers, J.), rendered June 29, 2005, convicting defendant, after a nonjury trial, of murder in the [194] second degree, assault in the first degree, vehicular manslaughter in the second degree, assault in the second degree, and vehicular assault in the second degree, and sentencing defendant to concurrent terms of 17 years on the murder conviction, 15 years on the first-degree assault conviction, 7 years on the second-degree assault conviction, 2 1/3 to 7 years on the vehicular manslaughter conviction, and 1 1/3 to 4 years on the second-degree vehicular assault conviction, should be affirmed.

      44

      McGUIRE, J. (concurring).

      45

      I agree with the majority that defendant's challenge to the sufficiency of the evidence, to the extent it is based on the holding in People v Feingold (7 NY3d 288 [2006]) that depraved indifference to human life is a culpable mental state, is not preserved for review. At defendant's trial, the clear understanding of the court and the parties, consistent with the holding in People v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984]), was that the only mental state required for the depraved indifference murder and assault counts was recklessness. Defendant made no argument or protest to the contrary. For this reason, defendant is wrong in contending that his current claim that depraved indifference is a culpable mental state is preserved for review merely because the court, in the course of ruling on a different issue that was in dispute, correctly stated the contrary holding in Register (see People v Colon, 46 AD3d 260, 263 [2007] [ruling by trial court on issue of law did not preserve issue for review when court's ruling was not made in response to a protest by a party]). I also agree with the majority that we should not review this unpreserved claim in the interest of justice. To the extent defendant is claiming on this appeal that the evidence was legally insufficient even when evaluated under the Register standard, I agree with the majority that the evidence was legally sufficient.

      46

      Although there was no jury to be instructed, the clear understanding of the parties that recklessness was the only mental state required for these crimes renders this case indistinguishable from a jury trial in which the jury is charged, without objection, under an incorrect or subsequently invalidated standard (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Johnson, 43 AD3d 288, 291-292 [2007], revd on other grounds 10 NY3d 875 [2008]). Because for this reason we must weigh the evidence in light of the elements of the depraved indifference crimes as they were defined in Register, I agree with the majority that the verdict convicting defendant of those crimes is not against the weight of the evidence.

      47

      [195] After making clear that it is not reviewing in the interest of justice defendant's unpreserved challenge under Feingold, the majority alternatively holds as follows: "Even subjecting [defendant's] conviction to analysis under Feingold, ... we conclude that the evidence nevertheless supports a finding that his conduct evinced a depraved indifference to human life." We need not and should not decide, however, whether the evidence is sufficient under Feingold. By not deciding that issue, we would avoid the need to address and decide the question of law that is at the core of defendant's challenge to the sufficiency of the evidence under Feingold: whether voluntary intoxication remains irrelevant as a defense in a prosecution for depraved indifference murder.

      48

      Under the last sentence of Penal Law § 15.05 (3), a person who is unaware solely by reason of voluntary intoxication that his conduct creates a particular risk nonetheless acts recklessly with respect to that risk. In Register, this sentence played a decisive role in the Court's conclusion that the requirement of conduct evincing a depraved indifference to human life "does not create a new and different mens rea ... which can be negatived by evidence of intoxication" (60 NY2d at 279; see also id. at 275-276).

      49

      However, because voluntary intoxication does not negate the mens rea of recklessness, it hardly follows that it does not or cannot negate the distinct mens rea of depraved indifference, "an additional requirement of the crime—beyond mere recklessness and risk—which in turn comprises both depravity and indifference" (People v Suarez, 6 NY3d 202, 214 [2005]; see Feingold, 7 NY3d at 294). If voluntary intoxication remains irrelevant under Feingold as a defense to a depraved indifference prosecution, it must be that an individual can be depravedly indifferent to a risk without being aware of it. How that could be is far from obvious. Notably, as defendant stresses, a panel of the Third Department has concluded that voluntary intoxication can negate the mens rea of depraved indifference (People v Coon, 34 AD3d 869, 870 [2006] ["as defendant was too intoxicated to form a specific criminal intent, he also would be incapable of possessing the culpable mental state necessary to prove depraved indifference"]).

      50

      As I read the majority's opinion, it does not decide this question sub silentio. After all, although it correctly notes the specific holding of Register on the irrelevance of voluntary intoxication in a prosecution for depraved indifference murder, it does not [196] mention, let alone discuss, the issue of whether that holding remains good law after Feingold. Nor does the majority mention that defendant argues at length that under Feingold the mens rea of depraved indifference can be negated by evidence of intoxication, or state whether it agrees with the conclusion of the Third Department in Coon.[1] Clearly, moreover, the issue is best left for another day.

      51

      Relatedly, I would reject as unpreserved defendant's current claim that he was deprived of his constitutional right to present a defense because the trial court improperly precluded the testimony of his expert regarding his chronic alcoholism. At trial, defendant never alerted the trial court to his current claim that the testimony related to a depraved indifference mens rea. Rather, defendant argued that the testimony bore on the mens rea of recklessness and on whether the objective circumstances surrounding his reckless conduct rose to the level of depraved indifference. Having never protested that the testimony related to a depraved indifference mens rea, defendant's claim is not preserved for review (CPL 470.05 [2]; People v Johnson, 43 AD3d at 291-292, revd on other grounds 10 NY3d 875 [2008]), and I would not review it in the interest of justice.

      52

      I disagree in part with the majority's statement that "defendant's mental state at the time of the collision ... is not dispositive; rather, culpability is appropriately assessed at the time defendant made the conscious decision to embark on a course of conduct that inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication." A defendant's actions prior to the commission of the actus reus allegedly constituting the crime charged certainly can shed light on his mens rea at the time of the actus reus, but the defendant's guilt turns on what his mens rea was at the time of the actus reus (cf. People v Gallagher, 69 NY2d 525 [1987]). I agree that defendant's mens rea at the exact moment of the collision is not determinative. The focus, however, must be on defendant's mens rea when he engaged in the conduct—which included driving at high speed on city streets through red lights—that caused the [197] victim's death.[2] Thus, "culpability is appropriately assessed" at that time, not at any earlier point in time when, according to the majority, "defendant made the conscious decision to embark on a course of conduct that inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication."

      53

      I also disagree that any "conscious decision to drink" defendant made "inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication" (emphasis added). This unexplained assertion that defendant's operation of a motor vehicle while in a state of extreme intoxication was the inevitable consequence of some earlier decision is unsupported by the evidence and contrary to common experience. Finally, no testimony was elicited at trial about defense counsel's contention in his memorandum of law that the evidence at trial would prove that defendant was "barely conscious due to his intoxication" (emphasis deleted). Accordingly, the majority errs in considering that contention to be evidence (indeed, an admission by defendant) that he was "barely conscious" as a result of his intoxication.

      54

      Judgment, Supreme Court, New York County, rendered June 29, 2005, affirmed.

      55

      [*] As acknowledged in support of his application to introduce evidence of his chronic alcoholism.

      56

      [1] The majority, however, prefaces the two sentences it devotes to the opinion in People v Coon with a confounding sentence. Thus, it writes, "People v Coon ..., relied upon by the concurrence, is distinguishable" (emphasis added). My point of course is that we need not and should not decide whether voluntary intoxication can negate the mens rea of depraved indifference. Accordingly, and just as obviously, I do not "rel[y]" upon People v Coon.

      57

      [2] That mens rea need not be identical to or as culpable as the mens rea of a person who decides to drive after drinking to excess. Obviously, not everyone who drives while intoxicated creates the same risk of death to others that defendant's driving created.

  • 3 III.C.iii. Felony Murder

    In criminal law, sometimes the result trumps the intention.

    Perhaps the least intuitive category of homicide that we will study is felony murder. Under the felony murder rule, accidental and unintentional killings that occur during the commission of a felony are sometimes elevated from unintentional homicide to murder.

    The felony murder rule has been controversial. It has evolved in scope over time, and, as the cases below show, is now often limited to inherently dangerous felonies. By transferring intention and blameworthiness from a separate felony to a homicide, the felony murder rule significantly raises the stakes of any felony that may tangentially and even unforeseeably lead to death.

    Why might the felony murder doctrine have developed? Consider how courts have limited it over time. What concerns have animated criticisms of the rule? Have the courts’ efforts to limit the rule preserved its usefulness, or is it an unfortunate relic of the past?

    • 3.1 People v. Stamp

      1
      2 Cal.App.3d 203 (1969)
      2
      82 Cal. Rptr. 598
      3
       THE PEOPLE, Plaintiff and Respondent,
      v.
      JONATHAN EARL STAMP et al., Defendants and Appellants.
      8
      Docket No. 12749.
      9

      Court of Appeals of California, Second District, Division Three.

      10
      December 1, 1969.
      11

       

      12

      [207] COUNSEL

      13

      Luke McKissack, under appointment by the Court of Appeal, Belli, Ashe, Ellison, Choulos & Lieff and Robert L. Lieff for Defendants and Appellants.

      14

      Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Mark W. Jordan, Deputy Attorney General, for Plaintiff and Respondent.

      15

      OPINION

      16

      COBEY, Acting P.J.

      17

      These are appeals by Jonathan Earl Stamp, Michael John Koory and Billy Dean Lehman, following jury verdicts of guilty of robbery and murder, both in the first degree. Each man was given a life sentence on the murder charge together with the time prescribed by law on the robbery count.

      18

      Defendants appeal their conviction of the murder of Carl Honeyman who, suffering from a heart disease, died between 15 and 20 minutes after Koory and Stamp held up his business, the General Amusement Company, on October 26, 1965, at 10:45 a.m. Lehman, the driver of the getaway car, was apprehended a few minutes after the robbery; several weeks later Stamp was arrested in Ohio and Koory in Nebraska.

      19

      Broadly stated, the grounds of this appeal are: (1) insufficiency of the evidence on the causation of Honeyman's death; (2) inapplicability of the felony-murder rule to this case; (3) errors in the choice of instructions given and refused; and (4) erroneous admission in evidence of the extrajudicial confessions of Stamp and Koory and the incriminating statement of Lehman.

      20

      On this appeal appellants primarily rely upon their position that the felony-murder doctrine should not have been applied in this case due to the unforeseeability of Honeyman's death.

      21
      THE FACTS[1]
      22

       

      23

      Defendants Koory and Stamp, armed with a gun and a blackjack, entered the rear of the building housing the offices of General Amusement [208] Company, ordered the employees they found there to go to the front of the premises, where the two secretaries were working. Stamp, the one with the gun, then went into the office of Carl Honeyman, the owner and manager. Thereupon Honeyman, looking very frightened and pale, emerged from the office in a "kind of hurry." He was apparently propelled by Stamp who had hold of him by an elbow.

      24

      The robbery victims were required to lie down on the floor while the robbers took the money and fled out the back door. As the robbers, who had been on the premises 10 to 15 minutes, were leaving, they told the victims to remain on the floor for five minutes so that no one would "get hurt."

      25

      Honeyman, who had been lying next to the counter, had to use it to steady himself in getting up off the floor. Still pale, he was short of breath, sucking air, and pounding and rubbing his chest. As he walked down the hall, in an unsteady manner, still breathing hard and rubbing his chest, he said he was having trouble "keeping the pounding down inside" and that his heart was "pumping too fast for him." A few minutes later, although still looking very upset, shaking, wiping his forehead and rubbing his chest, he was able to walk in a steady manner into an employee's office. When the police arrived, almost immediately thereafter, he told them he was not feeling very well and that he had a pain in his chest. About two minutes later, which was 15 or 20 minutes after the robbery had occurred, he collapsed on the floor. At 11:25 he was pronounced dead on arrival at the hospital. The coroner's report listed the immediate cause of death as heart attack.

      26

      The employees noted that during the hours before the robbery Honeyman had appeared to be in normal health and good spirits. The victim was an obese, 60-year-old man, with a history of heart disease, who was under a great deal of pressure due to the intensely competitive nature of his business. Additionally, he did not take good care of his heart.

      27

      Three doctors, including the autopsy surgeon, Honeyman's physician, and a professor of cardiology from U.C.L.A., testified that although Honeyman had an advanced case of atherosclerosis, a progressive and ultimately fatal disease, there must have been some immediate upset to his system which precipitated the attack. It was their conclusion in response to a hypothetical question that but for the robbery there would have been no fatal seizure at that time. The fright induced by the robbery was too much of a shock to Honeyman's system. There was opposing expert testimony to the effect that it could not be said with reasonable medical certainty that fright could ever be fatal.

      28

      [209] 

      29
      SUFFICIENCY OF THE EVIDENCE RE CAUSATION
      30

       

      31

      (1a) Appellants' contention that the evidence was insufficient to prove that the robbery factually caused Honeyman's death is without merit. (2) The test on review is whether there is substantial evidence to uphold the judgment of the trial court, and in so deciding this court must assume in the case of a jury trial the existence of every fact in favor of the verdict which the jury could reasonably have deduced from the evidence. (People v. Redmond, 71 Cal.2d 745, 755 [79 Cal. Rptr. 529, 457 P.2d 321].) (1b) A review of the facts as outlined above shows that there was substantial evidence of the robbery itself, that appellants were the robbers, and that but for the robbery the victim would not have experienced the fright which brought on the fatal heart attack.[2]

      32
      APPLICATION OF THE FELONY-MURDER RULE
      33

       

      34

      Appellants' contention that the felony-murder rule is inapplicable to the facts of this case is also without merit. (3) Under the felony-murder rule of section 189 of the Penal Code, a killing committed in either the perpetration of or an attempt to perpetrate robbery is murder of the first degree. This is true whether the killing is wilfull, deliberate and premeditated, or merely accidental or unintentional, and whether or not the killing is planned as a part of the commission of the robbery. (People v. Lookadoo, 66 Cal.2d 307, 314 [57 Cal. Rptr. 608, 425 P.2d 208]; People v. Jennings, 243 Cal. App.2d 324, 328 [52 Cal. Rptr. 329].) (4a) People v. Washington, 62 Cal.2d 777, 783 [44 Cal. Rptr. 442, 402 P.2d 130], merely limits the rule to situations where the killing was committed by the felon or [210] his accomplice acting in furtherance of their common design. (See People v. Gilbert, 63 Cal.2d 690, 705 [47 Cal. Rptr. 909, 408 P.2d 365].)

      35

      (5) The doctrine presumes malice aforethought on the basis of the commission of a felony inherently dangerous to human life.[3] (See People v. Sears, 62 Cal.2d 737, 745 [44 Cal. Rptr. 330, 401 P.2d 938]; People v. Phillips, 64 Cal.2d 574, 582 [51 Cal. Rptr. 225, 414 P.2d 353]; People v. Washington, supra, at p. 780.) This rule is a rule of substantive law in California and not merely an evidentiary shortcut to finding malice as it withdraws from the jury the requirement that they find either express malice or the implied malice which is manifested in an intent to kill. (People v. Lilliock, 265 Cal. App.2d 419, 431 [71 Cal. Rptr. 434].) (6) Under this rule no intentional act is necessary other than the attempt to or the actual commission of the robbery itself. When a robber enters a place with a deadly weapon with the intent to commit robbery, malice is shown by the nature of the crime. (People v. Ketchel, 71 Cal.2d 635, 642 [79 Cal. Rptr. 92, 456 P.2d 660]; People v. Coefield, 37 Cal.2d 865, 868 [236 P.2d 570].)

      36

      (4b) There is no requirement that the killing occur, "while committing" or "while engaged in" the felony, or that the killing be "a part of" the felony, other than that the few acts be a part of one continuous transaction. (People v. Chavez, 37 Cal.2d 656, 670 [234 P.2d 632].) Thus the homicide need not have been committed "to perpetrate" the felony. There need be no technical inquiry as to whether there has been a completion or abandonment of or desistance from the robbery before the homicide itself was completed. (People v. Chavez, supra, at pp. 669-670.)

      37

      (7a) The doctrine is not limited to those deaths which are foreseeable. (See 1 Witkin, Cal. Crimes (1963) §§ 78, 79, pp. 79-80; People v. Chavez, supra, at pp. 669-670.) Rather a felon is held strictly liable for all killings committed by him or his accomplices in the course of the felony. (People v. Talbot, 64 Cal.2d 691, 704 [51 Cal. Rptr. 417, 414 P.2d 633].) As long as the homicide is the direct causal result of the robbery the felony-murder rule applies whether or not the death was a natural or probable consequence of the robbery. (8) So long as a victim's predisposing physical condition, regardless of its cause, is not the only substantial factor bringing about his death, that condition, and the robber's ignorance of it, in no way destroys the robber's criminal responsibility for the death. (Cf. People v. [211] Moan, 65 Cal. 532, 536-537 [4 P. 545]; People v. Studer, 59 Cal. App. 547, 552-554 [211 P. 233].) So long as life is shortened as a result of the felonious act, it does not matter that the victim might have died soon anyway. (People v. Phillips, supra, at p. 579.) In this respect, the robber takes his victim as he finds him.

      38
      CLAIMED ERRORS IN INSTRUCTIONS
      39

       

      40

      Appellants claim five errors in the jury instructions given and refused. They argue that: (1) the trial court erred in refusing to give their proffered instruction as to proximate cause; (2) the jury should have been instructed on the court's own motion that there must be a finding of specific intent to commit the robbery before the felony-murder rule can be applied; (3) the jury should not have been instructed on the felony-murder rule; (4) the jury should have been instructed on the matter of foreseeability; and (5) the felony-murder rule applies only when the killing was committed in order to perpetrate a felony, and not when the killing occurs merely in the perpetration of a felony. (1c, 4c, 7b) In accordance with our discussion of the felony-murder doctrine, we find the claimed instruction errors numbered (3), (4), and (5) to be without merit.

      41

      (9) Appellants contend that the trial court erred in refusing their proffered instruction on proximate cause, reading as follows: "Where the defendant's criminal act is not the proximate cause of the death and the sole proximate cause was the negligent or reckless conduct of the victim, a conviction is unwarranted." They assert that article VI, section 13 of the California Constitution guarantees the right of a defendant to have the jury determine every material issue presented by the evidence.

      42

      It can be argued that the refusal of the trial court to give the instruction was justified. The evidence before the jury was not such that the jury could have reasonably assumed that negligent or reckless conduct by Honeyman was-the sole cause of his death. (See People v. Bronson, 263 Cal. App.2d 831, 842-843 [70 Cal. Rptr. 162], hear. den.) But, in any event, the three instructions given on the issue of the proximate causation of Honeyman's death were much more complete and accurate than appellant's quoted instruction.[4] Any error in this respect was harmless.

      43

      [212] (10) As to the second objection, since the jury was fully instructed both as to what constitutes robbery and as to what constitutes felony murder,[5] the court was not required to instruct them on its own motion that in order to apply the felony-murder rule, appellants must have had the specific intent to commit the robbery. This is so because the jury could not have found them guilty of murder under the felony-murder doctrine without first having found them guilty of robbery. Moreover, failure to instruct the jury that in order to apply the felony-murder doctrine appellants must have had the specific intent to commit the robbery does not constitute prejudicial error where, as here, the evidence permits of no other interpretation than that appellants had the specific intent to steal. (See People v. Ford, 60 Cal.2d 772, 792-793 [36 Cal. Rptr. 620, 388 P.2d 892].)

      44
      CLAIMED ERRONEOUS ADMISSION OF CONFESSIONS AND INCRIMINATING STATEMENT
      45

       

      46

      The getaway car, driven by defendant Lehman, was stopped at 11:08 and Lehman, the only one in it at that time, was advised of his rights to counsel, [213] to remain silent and that anything he might say could be used against him prior to any in-custody interrogation. Several weeks later Koory was apprehended in Omaha, Nebraska, and Stamp in Dayton, Ohio; each confessed to his part in the crime after having been advised of his right to counsel, to remain silent, and that any statement he might make could be used against him.

      47

      (11) Appellants contend that the confessions of Koory and Stamp and the incriminating statement of Lehman were erroneously admitted in evidence because there was no affirmative showing that appellants had waived their rights to silence and counsel before giving these statements. It is also claimed that Stamp's confession is inadmissible as being the product of a prior illegally obtained confession. Since appellants failed to object on these grounds at trial, they are not entitled to raise these issues for the first time on appeal. (People v. Ray, 252 Cal. App.2d 932, 958 [61 Cal. Rptr. 1]; People v. Crooks, 250 Cal. App.2d 788, 793 [59 Cal. Rptr. 39].)

      48

      (12) On our own motion we have examined the admissibility of these out of court statements under People v. Aranda, 63 Cal.2d 518, 530-531 [47 Cal. Rptr. 353, 407 P.2d 265]. We find no error because the trial court followed the recommended procedure in Aranda of deleting from each statement received in evidence all direct and indirect identifications of codefendants as well as any material which could be used against codefendants once their identities had been otherwise established. This objective was accomplished by the police officers stating only what the declarant said to each of them regarding the declarant's own part in the robbery. In addition the jury was instructed just prior to the admission of each statement and again at the close of the trial that each statement was received only against the particular declarant and not against any of his codefendants.

      49

      The judgment is affirmed.

      50

      Schweitzer, J., and Allport, J., concurred.

      51

      Appellants' petitions for a hearing by the Supreme Court were denied January 28, 1970.

      52

      [1] This part of the opinion includes generally all facts relevant to appellants' contentions, except those relating to their fourth ground of appeal.

      53

      [2] Appellants' position that the medical evidence was insufficient to prove the causal link between the robbery and the death because the physicians testifying to the result did so solely in response to a hypothetical question which was erroneous and misleading, and because the doctors answered in terms of "medical probability rather than actual certainty" is not well taken. A conviction on the basis of expert medical testimony, couched in terms of "reasonable medical certainty" rather than of "beyond a reasonable doubt" is valid (People v. Phillips, 64 Cal.2d 574, 579, fn. 2 [51 Cal. Rptr. 225, 414 P.2d 353]) and a hypothetical question need not state all the evidence in a case so long as it does not omit essential facts and issues. This did not occur here. (See McCullough v. Langer, 23 Cal. App.2d 510, 521 [73 P.2d 649], hear. den.) Furthermore, an appellate court will not overrule a trial court on the matter of the sufficiency of the qualifications of expert witnesses in the absence of a manifest abuse of such discretion. (People v. Phillips, 64 Cal.2d 574 at pp. 578-579, fn. 1 [51 Cal. Rptr. 225, 414 P.2d 353].) An examination of the record shows that there was no such abuse by the trial court in permitting the prosecution's expert medical witnesses to testify as to the cause of the heart attack.

      54

      [3] In view of the fact that the Legislature has not seen fit to change the language of Penal Code section 189 since the decisions holding that the requisite malice aforethought is to be implied from the commission of those felonies inherently dangerous to human life, it must be presumed that these cases accurately state the law. (People v. Hallner, 43 Cal.2d 715, 720 [277 P.2d 393].)

      55

      [4] "If the death of the victim occurred by natural causes and was not a proximate result of the defendants' unlawful activity, you must find the defendants not guilty of murder.

      56

      "To constitute a felonious homicide there must be, in addition to the death of a human being, an unlawful act which proximately caused that death.

      57

      "The proximate cause of death is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the death, and without which the result would not have occurred. It is the efficient cause — the one that necessarily sets in operation the factors that accomplish the death." (CALJIC No. 312, modified.)

      58

      "If a person unlawfully does an act or unlawfully sets in operation factors which are a proximate cause of another person's death, such conduct of the former constitutes an unlawful homicide even though the unlawful act or the factors set in operation were not the only cause of the death, and although the person killed had been already enfeebled by disease, injury, physical condition or other cause and although it is probable that a person in sound physical condition would not have died as a result of the act or the factors set in operation, and although it is probable that the act or the factors set in operation only hastened the death of the deceased person and that he would have died soon thereafter anyhow from another cause or other causes." (CALJIC No. 313-B, modified.)

      59

      [5] "Robbery is the felonious taking of personal property of any value in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (CALJIC No. 210.)

      60

      "Robbery which is perpetrated by a person or by two or more persons any one of them being armed with a dangerous or deadly weapon is robbery in the first degree. All other kinds of robbery are of the second degree.

      61

      "If you should find the defendant guilty of robbery, it will be your duty to determine the degree thereof as robbery of the first degree and to state that degree in your verdict." (CALJIC No. 210-A.)

      62

      "If a human being is killed by any one of several persons jointly engaged at the time of such killing in the perpetration of, or attempt to perpetrate, the crime of robbery, and if the killing is done in furtherance of a common design and agreement to commit such crime or is an ordinary and probable effect of the pursuit of that design and agreement, all such persons so jointly engaged are guilty of murder of the first degree, and this is the law whether such killing be intentional, unintentional, or accidental." (CALJIC No. 317.)

      63

      "Murder which is committed in the perpetration or attempt to perpetrate robbery, is murder of the first degree, whether the murder was intentional, unintentional, or accidental." (CALJIC No. 302-F, revised.)

    • 3.2 People v. Phillips

      1
      64 Cal.2d 574 (1966)
      2
      THE PEOPLE, Plaintiff and Respondent,
      v.
      MARVIN PHILLIPS, Defendant and Appellant.
      3
      Crim. No. 8914.
      4

      Supreme Court of California. In Bank.

      5
      May 23, 1966.
      6

       

      7

      Melvin M. Belli, Samuel S. Brody, Belli, Ashe, Gerry & Leon, Belli, Ashe & Gerry, Brody, Grayson & Green, Daniel J. Jaffe, Lou Ashe, Richard Gerry, Seymour Ellison, Frederick Cone and N. Rommel Bondoc for Defendant and Appellant.

      8

      Burton Marks as Amicus Curiae on behalf of Defendant and Appellant.

      9

      Stanley Mosk and Thomas C. Lynch, Attorneys General, William E. James, Assistant Attorney General, William L. Zessar, Deputy Attorney General, William B. McKesson and Evelle J. Younger, District Attorneys, and John W. Miner, Deputy District Attorney, for Plaintiff and Respondent.

      10

      TOBRINER, J.

      11

      Defendant, a doctor of chiropractic, appeals from a judgment of the Superior Court of Los Angeles [577] County convicting him of second degree murder in connection with the death from cancer of one of his patients. We reverse solely on the ground that the trial court erred in giving a felony-murder instruction.

      12

      Linda Epping died on December 29, 1961, at the age of 8, from a rare and fast-growing form of eye cancer. Linda's mother first observed a swelling over the girl's left eye in June of that year. The doctor whom she consulted recommended that Linda be taken to Dr. Straatsma, an opthalmologist at the UCLA Medical Center. On July 10th Dr. Straatsma first saw Linda; on July 17th the girl, suffering great pain, was admitted to the center. Dr. Straatsma performed an exploratory operation and the resulting biopsy established the nature of the child's affliction.

      13

      Dr. Straatsma advised Linda's parents that her only hope for survival lay in immediate surgical removal of the affected eye. The Eppings were loath to permit such surgery, but on the morning of July 21st Mr. Epping called the hospital and gave his oral consent. The Eppings arrived at the hospital that afternoon to consult with the surgeon. While waiting they encountered a Mrs. Eaton who told them that defendant had cured her son of a brain tumor without surgery.

      14

      Mrs. Epping called defendant at his office. According to the Eppings, defendant repeatedly assured them that he could cure Linda without surgery. They testified that defendant urged them to take Linda out of the hospital, claiming that the hospital was "an experimental place," that the doctors there would use Linda as "a human guinea pig" and would relieve the Eppings of their money as well.

      15

      The Eppings testified that in reliance upon defendant's statements they took Linda out of the hospital and placed her under defendant's care. They stated that if defendant had not represented to them that he could cure the child without surgery and that the UCLA doctors were only interested in experimentation, they would have proceeded with the scheduled operation. The prosecution introduced medical testimony which tended to prove that if Linda had undergone surgery on July 21st her life would have been prolonged or she would have been completely cured.

      16

      Defendant treated Linda from July 22 to August 12, 1961. He charged an advance fee of $500 for three months' care as well as a sum exceeding $200 for pills and medicines. On August 13th Linda's condition had not improved; the Eppings dismissed defendant. [578]

      17

      Later the Eppings sought to cure Linda by means of a Mexican herbal drug known as yerba mansa and, about the 1st of September, they placed her under the care of the Christian Science movement. They did not take her back to the hospital for treatment.

      18

      Defendant testified that he knew that he could not cure cancer, that he did not represent to the Eppings that he could do so, that he urged them to return Linda to the hospital and that he agreed to treat her only when it became clear that the Eppings would never consent to surgery. He further testified that in administering treatment he sought to build up Linda's general health and so prolong her life. He insisted that he had never purported to "treat" cancer as such, but only to give "supportive" care to the body as a whole. He variously described his purpose as being "to build up her resistance," "assisting the body to overcome its own deficiencies" and "supporting the body defenses."

      19

      As we have noted, the trial court gave an instruction on felony murder; we point out that, although defendant could, of course, be prosecuted for grand theft, such a crime, not an inherently dangerous felony, does not support an instruction on felony murder. The giving of that instruction caused defendant prejudice and compels reversal. Initially, however, we dispose of defendant's argument that the prosecution failed to establish such causal relationship between defendant's conduct and the death as is requisite to his criminal responsibility.

      20

      Legal Cause

      21

      We cannot accept defendant's contention that his conduct did not proximately cause Linda's death. Defendant's argument rests upon either of two unsupportable propositions: (1) that the testimony failed as a matter of law to establish a causal relationship between the absence of surgery on July 21st and any shortening of Linda's life; (2) that the conduct of Linda's parents subsequent to defendant's dismissal constituted an "independent intervening force" between the misrepresentation and Linda's death.

      22

      [1a] The fact that defendant represented that he could cure Linda without surgery and that such representation caused the Eppings to remove Linda from the hospital finds ample substantiation in the record. The medical evidence likewise supports the jury's conclusion that the cancellation of the operation had the effect of shortening the child's life. [1] [579]

      23

      [2] Dr. Straatsma testified with "reasonable medical certainty" [2] that the performance of the operation on July 21st would have extended Linda's life by a minimum of two months. [1b] He also gave his opinion that surgery on that date could have effected a complete cure.

      24

      Although defendant maintains that Dr. Straatsma on cross-examination disclaimed his testimony as to the beneficial effect of the operation planned for July 21st, the record does not support that contention. Dr. Straatsma merely acknowledged that he could not say with certainty whether the course of the disease had become irreversible on July 21st. The doctor also testified that he could not state the exact period of time by which surgery on that date would have lengthened Linda's life. Neither aspect of the doctor's cross-examination in any way reduced the force of his earlier testimony that if the girl had received the scheduled operation, her life would have been extended by a substantial period.

      25

      The showing that the length of Linda's life had thus been limited sufficed for this aspect of the prosecution's case; no burden rested upon the prosecution to prove that the operation would have cured the disease. [3] Murder is never more than the shortening of life; if a defendant's culpable act has significantly decreased the span of a human life, the law will not hear him say that his victim would thereafter have died in any event. (People v. Moan (1884) 65 Cal. 532, 537 [4 P. 545]; People v. Ah Fat (1874) 48 Cal. 61, 64; Perkins, Criminal Law, pp. 27-28.) [1c] The jury could properly have found that defendant's conduct proximately caused Linda's death. [580]

      26

      [4] As we have stated, defendant secondly contends that the actions of Linda's parents subsequent to his dismissal operated as an "independent intervening force" to relieve him of criminal responsibility for her death. He urges that no act of his caused the Eppings to abstain from surgery beyond August 13th, the date of his discharge. [3]

      27

      In pressing this argument, defendant assumes that if the surgery had been performed after Linda left his care, it would have been as efficacious in arresting or retarding the cancer as surgery performed on July 21st. The record refutes this assumption. The evidence established that the tumor grew dramatically during the period in which Linda submitted to defendant's ministrations; Dr. Straatsma testified that her prospects dimmed rapidly with the passage of time. The jury could properly have concluded that defendant's conduct in preventing the operation during his treatment measurably reduced the period by which surgery would have extended Linda's life and significantly diminished her chances for a complete recovery.

      28

      The Instruction on Second Degree Felony-Murder.

      29

      Defendant challenges the propriety of the trial court's instructions to the jury. [5] The court gave the following tripartite instruction on murder in the second degree: [4]

      30

      "[T]he unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder of the second degree:"

      31

      "(1) If the killing proximately results from an unlawful act, the natural consequences of which are dangerous to life, which act is deliberately performed by a person who knows that his conduct endangers the life of another, or"

      32

      "(2) If the circumstances proximately causing the killing show an abandoned and malignant heart, or"

      33

      "(3) If the killing is done in the perpetration or attempt to perpetrate a felony such as Grand Theft. If a death occurs in [581] the perpetration of a course of conduct amounting to Grand Theft, which course of conduct is a proximate cause of the unlawful killing of a human being, such course of conduct constitutes murder in the second degree, even though the death was not intended."

      34

      The third part of this instruction rests upon the felony-murder rule and reflects the prosecution's theory that defendant's conduct amounted to grand theft by false pretenses in violation of Penal Code section 484.

      35

      We shall point out why we have concluded that (1) defendant's contention that section 1714 of the Health and Safety Code preempts the field of fraudulent representation of a cancer cure and therefore precludes an instruction on felony murder, cannot stand; (2) the felony-murder instruction given here was erroneous in that such a charge can properly be grounded only upon a felony "inherently dangerous to life," and grand theft is not such a crime; (3) the erroneous instruction caused defendant prejudice because it removed from the jury the issue of malice, and (4) the prosecution cannot successfully argue that even though the instruction erroneously permitted the jury to convict without finding malice, no prejudice resulted because the jury necessarily found facts which established malice as a matter of law.

      36

      [6] As we have noted, defendant first challenges the felony-murder instruction on the ground that the field of fraudulent misrepresentations as to cures for cancer has been "preempted" by section 1714 of the Health and Safety Code. That section condemns as a misdemeanor "falsely to represent a device, substance or treatment as effective to arrest or cure cancer." Defendant urges that section 1714 precludes a determination that he was guilty of the felony of grand theft pursuant [582] to Penal Code section 484; hence section 1714 necessarily prevents the application of the felony-murder rule.

      37

      We cannot accept the proposition that the misdemeanor section forecloses the felony prosecution. A conviction for grand theft requires proof that the victim relied on defendant's representations and that he actually parted with value. (People v. Gibbs (1893) 98 Cal. 661, 663 [33 P. 630]; People v. Alba (1941) 46 Cal.App.2d 859, 867 [117 P.2d 63]; see 1 Witkin, Cal. Crimes, 410, 416.) No such requirements need be met in prosecutions under Health and Safety Code section 1714. Accordingly, we may infer that the Legislature intended the new statute to supplement, not supplant, Penal Code section 484. In the circumstance in which some elements of grand theft are lacking the Legislature thereby provided a means for the prosecution of those who fraudulently assert that they can cure cancer. We consequently reject the hypothesis that the Legislature, by undertaking to facilitate the punishment of those who fraudulently offer cures for cancer, thereby immunized from prosecution under Penal Code section 484 conduct which theretofore would have been punishable under that section.

      38

      [7] Despite defendant's contention that the Penal Code does not expressly set forth any provision for second degree felony murder and that, therefore, we should not follow any such doctrine here, the concept lies imbedded in our law. We have stated in People v. Williams (1965) 63 Cal.2d 452 [47 Cal.Rptr. 7, 406 P.2d 647], that the cases hold that the perpetration of some felonies, exclusive of those enumerated in Penal Code section 189, may provide the basis for a murder conviction under the felony-murder rule. (See also People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892].)

      39

      We have held, however, that only such felonies as are in themselves "inherently dangerous to human life" can support the application of the felony-murder rule. We have ruled that in assessing such peril to human life inherent in any given felony "we look to the elements of the felony in the abstract, not the particular 'facts' of the case." (People v. Williams, supra, 63 Cal.2d 452, 458, fn. 5.)

      40

      We have thus recognized that the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application. [5] Indeed, the rule itself has [583] been abandoned by the courts of England, where it had its inception. [6] It has been subjected to severe and sweeping criticism. [7] No case to our knowledge in any jurisdiction has held that because death results from a course of conduct involving a felonious perpetration of a fraud, the felony- murder doctrine can be invoked. [8]

      41

      Admitting that grand theft is not inherently dangerous to life, the prosecution asks us to encompass the entire course of defendant's conduct so that we may incorporate such elements as would make his crime inherently dangerous. In so framing the definition of a given felony for the purpose of assessing its inherent peril to life the prosecution would abandon the statutory definition of the felony as such and substitute the factual elements of defendant's actual conduct. In the present case the Attorney General would characterize that conduct as "grand theft medical fraud," and this newly created "felony," he urges, clearly involves danger to human life and supports an application of the felony-murder rule.

      42

      To fragmentize the "course of conduct" of defendant so that the felony- murder rule applies if any segment of that conduct may be considered dangerous to life would widen the [584] rule beyond calculation. It would then apply not only to the commission of specific felonies, which are themselves dangerous to life, but to the perpetration of any felony during which defendant may have acted in such a manner as to endanger life.

      43

      The proposed approach would entail the rejection of our holding in Williams. That case limited the felony-murder doctrine to such felonies as were themselves inherently dangerous to life. That decision eschews the prosecution's present sweeping concept because, once the Legislature's own definition is discarded, the number or nature of the contextual elements which could be incorporated into an expanded felony terminology would be limitless. We have been, and remain, unwilling to embark on such an uncharted sea of felony murder.

      44

      [8] The felony-murder instruction should not, then, have been given; its rendition, further, worked prejudice upon defendant. It withdrew from the jury the issue of malice, permitting a conviction upon the bare showing that Linda's death proximately resulted from conduct of defendant amounting to grand theft. The instruction as rendered did not require the jury to find either express malice or the implied malice which is manifested in an "intent with conscious disregard for life to commit acts likely to kill." (People v. Washington, supra, 62 Cal.2d 777, 780; People v. Conley (1966) ante, p. 310 [49 Cal.Rptr. 815, 411 P.2d 911]; People v. Thomas (1953) 41 Cal.2d 470, 479 [261 P.2d 1] [concurring opinion of Justice Traynor].) [9]

      45

      The instruction thus relieved the jury of the necessity of finding one of the elements of the crime of murder. (Pen. Code, 187; People v. Washington, supra, 62 Cal.2d 777, 780; People v. Wells (1949) 33 Cal.2d 330, 346 [202 P.2d 53].) Even if the evidence could have supported a finding of implied malice, the instruction failed to require the jury so to determine. "[D]efendants have a constitutional right to have the jury determine every material issue presented by the evidence. ..." [585] (People v. Gilbert (1965) 63 Cal.2d 690, 704 [47 Cal.Rptr. 909, 408 P.2d 365]; People v. Conley, supra, ante, pp. 310, 319; People v. Modesto, supra, 59 Cal.2d 722, 730 and cases cited.) The denial of defendant's right to a determination by the jury as to whether he acted with malice resulted in a miscarriage of justice within the meaning of California Constitution, article VI, section 4 1/2. (People v. Conley, supra, ante, at pp. 319-320; People v. Gilbert, supra, 63 Cal.2d at p. 704; People v. Williams, supra, 63 Cal.2d 452, 457-460.)

      46

      The prosecution does not deny that the giving of a felony-murder instruction engendered the possibility of a conviction of murder in the absence of a finding of malice. It contends, however, that even if the jury acted on the erroneous instruction it must necessarily have found facts which establish, as a matter of law, that defendant acted with conscious disregard for life and hence with malice. The prosecution thus asks us to dissect the jury's verdict, setting the facts of the case against the instructions in an attempt to isolate the facts which the jury necessarily found in reaching its verdict. From these facts it further asks us to infer the existence of others which the jury was never asked to find.

      47

      Examination of the record suggests that even this doubtful enterprise would not enable us to overcome the effect of the erroneous instruction. The prosecution urges that the jury could not have convicted defendant under the felony-murder instruction without having found that he made representations to the Eppings which he knew to be false or which he recklessly rendered without information which would justify a reasonable belief in their truth. Such a finding does not, however, establish as a matter of law the existence of an "intent with conscious disregard for life to commit acts likely to kill." (People v. Washington, supra, 62 Cal.2d 777, 780.) In the absence of a finding that defendant subjectively appreciated the peril to which his conduct exposed the girl, we cannot determine that he acted with conscious disregard for life. The record contains evidence from which a trier of fact could reasonably have concluded that although defendant made false representations concerning his ability to cure, he nevertheless believed that the treatment which he proposed to give would be as efficacious in relieving pain and prolonging life as the scheduled surgery. [10] [586]

      48

      Of course the jury could have concluded from some of the evidence that defendant did not entertain any such belief in the relative efficacy of his proposed treatment. We cannot, however, undertake to resolve this evidentiary conflict without invading the province of the trier of fact. We cannot predicate a finding of conscious disregard of life upon a record that would as conclusively afford a basis for the opposite conclusion.

      49

      The Remaining Instructions on Murder in the Second Degree

      50

      In the foregoing discussion we have analyzed the third subdivision of the tripartite instruction on murder in the second degree; here we propose to state our position on the first and second subdivisions. As we have previously noted, the court told the jury that the "unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder of the second degree (1) If the killing proximately results from an unlawful act, the natural consequences of which are dangerous to life, which act is deliberately performed by a person who knows that his conduct endangers the life of another, or (2) If the circumstances proximately causing the killing show an abandoned and malignant heart. ..."

      51

      [9] The first subdivision of the instruction embodies the language of decisions interpreting the cryptic statutory requirement of an "abandoned and malignant heart." (People v. Conley, supra, ante, pp. 310, 321; People v. Washington, supra, 62 Cal.2d 777, 780; People v. Thomas, supra, 41 Cal.2d 470, 479-480 [concurring opinion of Justice Traynor].) We believe the instruction entirely proper except for the requirement that the act of the defendant be "unlawful." If that word connotes an absence of legally sufficient justification or excuse, we see no objection to its presence. Indeed the jury should be cautioned that a defendant would not be guilty of second degree murder by reason of committing an act that [587] may be dangerous but nevertheless may be necessary to the preservation of life.

      52

      On the other hand, the word "unlawful" may suggest to the jury that the prosecution must prove that in performing the acts upon which the murder prosecution rests defendant was also committing some other, quite independent, crime. Insofar as the instruction bears this latter meaning it states a requirement not found in the decided cases and which in our judgment the prosecution need not prove.

      53

      An instruction that may more successfully cover the issue of justification or excuse and at the same time not improperly call for proof of other independent criminal conduct could be phrased in terms of "an intent with conscious disregard for life to commit acts likely to kill." (See People v. Washington, supra, 62 Cal.2d 777, 780.) Such an instruction thus would make possible a conviction of second degree murder upon a finding that "although there was no deliberately formed and premeditated intent to kill, the killing proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life."

      54

      With the above modification, the instruction fully and accurately imparts to the jury every element of implied malice as that concept has been developed in this state. Such an instruction renders unnecessary and undesirable an instruction in terms of "abandoned and malignant heart." The instruction phrased in the latter terms adds nothing to the jury's understanding of implied malice; its obscure metaphor invites confusion and unguided speculation. [11]

      55

      [10] The charge in the terms of the "abandoned and malignant heart" could lead the jury to equate the malignant heart with an evil disposition or a despicable character; the jury, then, in a close case, may convict because it believes the defendant a "bad man." [12] We should not turn the focus of the jury's task from close analysis of the facts to loose evaluation [588] of defendant's character. The presence of the metaphysical language in the statute does not compel its incorporation in instructions if to do so would create superfluity and possible confusion. In its origin the language did no more than phrase a companion or alternative description of a conscious disregard of life; [13] since the instruction here specifically sets forth the latter, the former merely duplicates it.

      56

      The instruction in terms of "abandoned and malignant heart" contains a further vice. It may encourage the jury to apply an objective rather than subjective standard in determining whether the defendant acted with conscious disregard of life, thereby entirely obliterating the line which separates murder from involuntary manslaughter. [14]

      57

      Although we do not hold that the inclusion of a reference in an instruction to an "abandoned and malignant heart" constitutes error we think that it is a superfluous charge. The dangers inherent in it and the absence of any compensating advantage impel us to suggest its replacement with the more comprehensive and informative charge in the first of the three subdivisions of the instructions in the form that we have submitted.

      58

      The judgment is reversed.

      59

      Traynor, C. J., Peters, J., and Peek, J., concurred.

      60

      BURKE, J.

      61

      I dissent. The majority opinion reverses the judgment of conviction of second degree murder "solely on the ground that the trial court erred in giving a felony-murder [589] instruction." Under section 4 1/2, article VI, of the California Constitution "No judgment shall be set aside ... on the ground of misdirection of the jury ... unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." I submit that here a miscarriage of justice did not result from any error in giving the instruction in view of the overwhelming evidence that defendant, motivated by mercenary greed, acted in conscious disregard for the life of 8-year-old Linda Epping when he induced her parents to cancel the scheduled cancer operation and place her under his care, thereby shortening her life.

      62

      The majority eschew the test in article VI, section 4 1/2, of the Constitution by asserting that the instruction "caused defendant prejudice because it removed from the jury the issue of malice" and that "The denial of defendant's right to a determination by the jury as to whether he acted with malice resulted in a miscarriage of justice within the meaning of California Constitution, article VI, section 4 1/2."

      63

      Under the instructions given, the jury was told that malice aforethought was a necessary element of murder, and the instructions permitted the jury to find such malice not only on the basis of the felony-murder rule but also if the killing was committed under circumstances that show an abandoned and malignant heart. To be so committed the defendant must have an intent with conscious disregard for life to commit acts likely to kill. (People v. Washington, 62 Cal.2d 777, 780 [44 Cal.Rptr. 442, 402 P.2d 130]; see People v. Thomas, 41 Cal.2d 470, 475 [261 P.2d 1] [concurring opinion].)

      64

      There was ample evidence that defendant, a chiropractor, intended to induce Linda's parents to cancel the operation for her fast-growing eye cancer and place her under his care. Motive was shown by evidence that he was then behind in his rent and that he charged Linda's parents $500 in advance for her treatment and made an additional profit exceeding $100 by selling pills for her at a 100 percent mark-up.

      65

      That defendant was well aware that canceling the surgery and placing the child under his care would endanger her life is apparent from his own testimony. He testified as follows: Before Linda was removed from the hospital he knew the form of cancer she had, and, having taken several semesters of pathology at school, he recognized that her condition was "very, very dangerous." He recalled having read that "early exenteration of the orbit offers the only hope of survival, and [590] that a slender one." He stated he was aware that Linda's case required medical attention, which he was not going to give her. Upon being told that the doctors at UCLA planned to perform surgery on her, he told her mother to listen to the doctors. Later, when Linda's mother informed him that she had removed Linda from the hospital, he told her she had made "a very, very grave mistake" and should return Linda to the hospital. Thereafter each time Linda was brought to him for treatment he stated that she should have surgery. He graduated from a college of chiropractic in 1958 and testified that he knew he could not cure cancer, and that if he had reason to believe that one of his patients had a malignant tumor he would refer the patient to a surgeon.

      66

      In view of the foregoing testimony by defendant any possibility the jury would have concluded, as suggested by the majority, that he believed the treatment he proposed to give would be as efficacious as the scheduled surgery in prolonging her life and thus that he did not act with conscious disregard for her life is so remote as to be virtually nonexistent.

      67

      The majority note that defendant testified that he understood that Linda's cancer was incurable, but this is not inconsistent with his testimony indicating his belief that surgery offered the best chance of prolonging her life. Moreover, his testimony relating to whether her form of cancer was curable, when the testimony is taken as a whole, merely indicated that he believed that such cancer was ordinarily incurable but that there was a slight chance of survival if there was early exenteration of the orbit.

      68

      The majority opinion is misleading in stating that "defendant testified that he ... understood that surgery might stimulate the spread of the disease to other parts of the body and thus hasten death." Defendant testified that he had read that "after removal there is wasting and death due to metastasis ...," i.e. a transfer of the disease from one part of the body to another. The quoted matter which defendant said he had read may mean merely that removal does not always prevent death, not that removal might "stimulate" the spread of the disease and thus hasten death.

      69

      Defendant was indeed fortunate that he was not tried and convicted of first degree murder for Linda's death. Even if it be assumed that it was error to give the felony-murder instruction, the record shows that it is not reasonably probable that a result more favorable to defendant would have been reached had the instruction not been given. (People v. Watson, 46 Cal.2d 818, 835 [299 P.2d 243].) Since the giving of the [591] instruction did not result in a miscarriage of justice, I would affirm the judgment of conviction under the mandate of section 4 1/2, article VI, of the California Constitution.

      70

      McComb, J., and Schauer, J., [*] concurred.

      71

      * "Like the multiheaded beast of Greek mythology, the felony murder rule has several 'heads' of its own, each willing to consume one of the accused's defenses by presuming a needed element in the proof of felony murder." Recent Developments, California Rewrites Felony Murder Rule (1966) 18 Stan.L.Rev. 690.

      72

      Proof that defendant entertained such a belief would only establish a defense to murder. If the jury found that defendant acted "without due caution and circumspection" in forming and entertaining this belief he would be subject to conviction for involuntary manslaughter. (Pen. Code, 192, subd. 2.)

      73

      [1] We find no merit whatsoever in defendant's contention that the prosecution's expert witnesses were not qualified to testify as to their opinions that surgery on the 21st of July would have prolonged Linda's life. A wide discretion, of course, reposes in the trial court to determine the sufficiency of the qualifications of expert witnesses. An appellate court will not disturb its ruling on that matter in the absence of a manifest abuse of such discretion. (People v. Busch (1961) 56 Cal.2d 868, 878 [16 Cal.Rptr. 898, 366 P.2d 314].) The record fully demonstrated the qualifications of the doctors; the court properly permitted the introduction of such expert testimony.

      74

      [2] We do not accept defendant's contention that the doctor's testimony failed as a matter of law to sustain the conviction because this testimony was couched in terms of "reasonable medical certainty" rather than of "beyond a reasonable doubt," which expresses the ultimate issue for the determination of the jury. To hold that medical opinion fails as a matter of law to sustain a jury in reaching a conviction "beyond a reasonable doubt," because the testimony rests upon "reasonable medical certainty," would in substance foreclose the realistic use of medical testimony at criminal trials.

      75

      [3] One possible answer to this contention lies in the fact that defendant, at the time of his initial conversations with the Eppings, was aware of their belief that once they removed Linda from the hospital, they could not thereafter take her back. The prosecution could persuasively contend that defendant's responsibility for preventing surgery thereby extended beyond the date of his dismissal.

      76

      [4] The record suggests that the evidence would have supported a finding of involuntary manslaughter. The jury might, for example, have found that defendant sincerely, though unreasonably, believed that the removal of Linda from the hospital and treatment according to the principles of chiropractic would be in her best interests. Having so found, the jury could have concluded that in causing Linda's removal from the hospital and so endangering her life defendant acted "without due caution and circumspection." (Pen. Code, 192, subd. 2.) Accordingly, the trial court should have given a manslaughter instruction. (People v. Modesto (1963) 59 Cal.2d 722, 729-730 [31 Cal.Rptr. 225, 382 P.2d 33]; People v. Henderson (1963) 60 Cal.2d 482, 489-491 [35 Cal.Rptr. 77, 386 P.2d 677].) The record reveals, however, that defendant's counsel strongly opposed the manslaughter instruction and indicated to the trial court that he considered it "tactically" to defendant's advantage to confront the jury with the limited choice between murder and acquittal. Thus the failure of the trial court to instruct on manslaughter, though erroneous, was invited error; defendant may not properly complain of such error on appeal. (People v. Wright (1914) 167 Cal. 1, 7 [138 P. 349]; People v. Hite (1901) 135 Cal. 76, 79-80 [67 P.2d 57]; People v. Jones (1965) 232 Cal.App.2d 379, 390 [42 Cal.Rptr. 714]; People v. Johnson (1962) 203 Cal.App.2d 624, 629-630 [21 Cal.Rptr. 650].)

      77

      [5] As we stated in People v. Washington (1965) 62 Cal.2d 777, 783 [44 Cal.Rptr. 442, 402 P.2d 130], "The felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. (See e.g., Model Penal Code (Tent. Draft No. 9, May 8, 1959) 201.2, comment 4 at pp. 37-39; Report of the Royal Commission on Capital Punishment, Cmd. No. 8932, at pp. 34-43, 45 (1949-1953); 3 Stephen, History of the Criminal Law of England 57-58, 74-75 (1883); Packer, The Case for Revision of the Penal Code, 13 Stan.L.Rev. 252, 259; Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50; 66 Yale L.J. 427.) Although it is the law in this state (Pen. Code, 189), it should not be extended beyond any rational function that it is designed to serve ...." (Fn. omitted.)

      78

      [6] The felony-murder doctrine has been censured not only because it artificially imposes malice as to one crime because of defendant's commission of another but because it anachronistically resurrects from a bygone age a "barbaric" concept that has been discarded in the place of its origin. Thus Witkin says: "Some writers describe the concept as barbaric and urge its abolition or strict limitation. (See 1957 A.S. 99 [abolished by English Homicide Act of 1957]; 1958 A.S. 125; Clark and Marshall, p. 594; 71 Harv.L.Rev. 1565; 13 Stan.L.Rev. 259; Moreland, pp. 49, 224.)" (1 Witkin, Cal. Crimes (1963) 311, p. 284.)

      79

      [7] "The felony-murder rule, composed as it is of several presumptions, is a legal Hydra.*

      80

      [8] Respondent's brief points out that this is "the first case of murder by false pretenses to reach an appellate court in the seven hundred years of recorded Anglo-American Law." (P. 27.) For a discussion of this aspect of the instant case, see Recent Decisions (1965) 32 Brooklyn L.Rev. 192, 194-195.

      81

      [9] We are aware that the portion of the trial court's charge in which the felony-murder instruction appears is prefaced with the statement: "[T]he unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder in the second degree [when] ...." The three numbered sections which follow set forth ways in which malice can be proved, the last being the erroneous felony-murder instruction. We do not believe, and the Attorney General has not urged, that the court intended, or the jury understood, the above quoted general statement to require that the jury make a finding of malice independent of its determination that the requirements of one of the numbered sections had been met.

      82

      [10] For example, defendant testified that he believed the girl's cancer to be incurable and understood that surgery might stimulate the spread of the disease to other parts of the body and thus hasten death. To some extent this evidence was contradicted by defendant's further testimony that he repeatedly urged the Epping's to return Linda to the hospital. The jury, however, was not bound to accept all of defendant's testimony, and substantial evidence supported a reasonable conclusion that defendant believed that he was not endangering Linda's life by persuading her parents to put her under his care.

      83

      [11] "Hardness of the arteries is an ascertainable concept--but not of the heart; malignant cancer is similarly ascertainable, but not malignant hearts; also abandoned children but not abandoned hearts. As sophisticated as human knowledge has become regarding anatomy of the body, the anatomy of the crime concept--and especially of malice--has remained as mysterious for many courts as it was for cavemen. Why not stop abusing the poor heart?" (Mueller and Wall, Criminal Law, 1964 Annual Survey of American Law, pp. 33, 41.)

      84

      [12] (Comment, Ambiguous Abandon and Murky Malignancy: Charging the Jury on Implied Malice (1966) 114 U.Pa.L.Rev. 495, 496.)

      85

      [13] "When the common law was embodied in the criminal statutes of the various states, the legislatures which attempted specifically to describe this category of homicide (rather than to accept the common-law description through language such as 'and all other murders. ...') used either the abandoned and malignant heart language or 'an act imminently dangerous to others, and evincing a depraved mind, regardless of human life' or a combination of the two. The latter phrase is the more prevalent and sets forth the standard in clearer language, embodying most of the qualities of Stephen's definition. Because of its common origin with the abandoned and malignant heart formulation, this phrase is a useful reference in attempting to clarify its ambiguity. Both the common law and this statutory description demonstrate that the requested charge must focus on the state of mind and emphasize the knowledge of danger and disregard for life." (Comment, Ambiguous Abandon and Murky Malignancy: Charging the Jury on Implied Malice, supra, 114 U.Pa.L.Rev. 495, 497.)

      86

      [14] See Collings, Negligent Murder (1961) 49 Cal.L.Rev. 254, 284, 288-291. We believe the distinction between the two crimes in the present case is particularly important because the jury could have concluded from some of the evidence that defendant genuinely, though unreasonably, believed that he was not endangering the life of the girl by causing her to be taken from the hospital and placed under his care.

      87

      [*] Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.

    • 3.3 State v. Stewart

      1
      663 A.2d 912 (1995)
      2
      STATE
      v.
      Tracy STEWART.
      3
      No. 93-199-C.A.
      4

      Supreme Court of Rhode Island.

      5
      August 11, 1995.
      6

       

      7

      [915] Jane McSoley, Assistant Attorney General, Aaron Weisman, Chief Appellate Division, Jeffrey Pine, Attorney General, Providence, for plaintiff.

      8

      Paula Rosin, Chief Appellate Attorney, Office of Public Defender, Richard Casparian, Public Defender, Providence, for defendant.

      9
      OPINION
      10

       

      11

      WEISBERGER, Chief Justice.

      12

      This case comes before us on the appeal of the defendant, Tracy Stewart, from a judgment of conviction entered in the Superior Court on one count of second-degree murder in violation of G.L. 1956 (1981 Reenactment) § 11-23-1.[1] We affirm the judgment of conviction. The facts insofar as pertinent to this appeal are as follows.

      13

      On August 31, 1988 twenty-year-old Tracy Stewart (Stewart or defendant) gave birth to a son, Travis Young (Travis). Travis's father was Edward Young, Sr. (Young). Stewart and Young, who had two other children together, were not married at the time of Travis's birth.[2] Travis lived for only fiftytwo days, dying on October 21, 1988, from dehydration.

      14

      During the week prior to Travis's death, Stewart, Young, and a friend, Patricia McMasters (McMasters), continually and repeatedly ingested cocaine over a two- to three-consecutive-day period at the apartment shared by Stewart and Young. The baby, Travis, was also present at the apartment while Stewart, Young, and McMasters engaged in this cocaine marathon. Young and McMasters injected cocaine intravenously and also smoked it while Stewart ingested the cocaine only by smoking it. The smoked cocaine was in its strongest or base form, commonly referred to as "crack." When the [916] three exhausted an existing supply of cocaine, they would pool their money and Young and McMasters would go out and buy more with the accumulated funds. The primary source of funds from which the three obtained money for this cocaine spree was Stewart's and McMasters's Aid to Families with Dependent Children (AFDC) checks. Stewart and McMasters had each just received the second of their semimonthly AFDC checks. They both cashed their AFDC checks and gave money to Young, which he then used to purchase more cocaine. After all the AFDC funds had been spent on cocaine and the group had run out of money, McMasters and Young committed a robbery to obtain additional money to purchase more cocaine.

      15

      The cocaine binge continued uninterrupted for two to three days. McMasters testified that during this time neither McMasters nor Stewart slept at all. McMasters testified that defendant was never far from her during this entire two- to three-day period except for the occasions when McMasters left the apartment to buy more cocaine. During this entire time, McMasters saw defendant feed Travis only once. Travis was in a walker, and defendant propped a bottle of formula up on the walker, using a blanket, for the baby to feed himself. McMasters testified that she did not see defendant hold the baby to feed him nor did she see defendant change Travis's diaper or clothes during this period.

      16

      Ten months after Travis's death defendant was indicted on charges of second-degree murder, wrongfully causing or permitting a child under the age of eighteen to be a habitual sufferer for want of food and proper care (hereinafter sometimes referred to as "wrongfully permitting a child to be a habitual sufferer"), and manslaughter. The second-degree-murder charge was based on a theory of felony murder. The prosecution did not allege that defendant intentionally killed her son but rather that he had been killed during the commission of an inherently dangerous felony, specifically, wrongfully permitting a child to be a habitual sufferer. Moreover, the prosecution did not allege that defendant intentionally withheld food or care from her son. Rather the state alleged that because of defendant's chronic state of cocaine intoxication, she may have realized what her responsibilities were but simply could not remember whether she had fed her son, when in fact she had not.

      17

      At defendant's trial both the prosecution and the defense presented expert medical witnesses who testified concerning what they believed to be the cause of Travis's death. The experts for both sides agreed that the cause of death was dehydration, but they strongly disagreed regarding what caused the dehydration. The prosecution expert witnesses believed that the dehydration was caused by insufficient intake of food and water, that is, malnutrition. The defense expert witnesses, conversely, believed that the dehydration was caused by a gastrointestinal virus known as gastroenteritis which manifested itself in an overwhelming expulsion of fluid from the baby's body.

      18

      The defendant was found guilty of both second-degree murder and wrongfully permitting a child to be a habitual sufferer. A subsequent motion for new trial was denied. This appeal followed. In support of her appeal defendant raises a number of issues. We shall address them in the order in which they are presented in defendant's brief. Additional facts will be furnished as needed in order to deal with specific issues.

      19
      I. THE DENIAL OF THE MOTION TO DISMISS
      20

       

      21

      Prior to trial, defendant moved to dismiss count 1 of the indictment, the second-degree felony-murder charge, on two grounds that are relevant to her appeal. She first claimed that count 1 of the indictment was improperly charged. She claimed that the charge should have been no greater than involuntary manslaughter. The basis of defendant's claim is that the predicate felony underlying the felony-murder charge, wrongfully permitting a child to be a habitual sufferer, is not an inherently dangerous felony as charged in the indictment. The second ground on which defendant sought to have the felony-murder charge dismissed was that the statute under which she was charged, Rhode Island's child-neglect [917] statute, G.L.1956 (1981 Reenactment) § 11-9-5, lacked a mens rea element, and additionally, that count 2 of the indictment, which served as the predicate to the felonymurder charge in count 1, was defective because it did not track the language of the child-neglect statute. The word "wrongfully" appears in § 11-9-5, but the indictment did not include this word to describe the charged conduct. The motion to dismiss was denied on both grounds. The defendant claims that the denial of the motion to dismiss was reversible error. We disagree.

      22

      At the pretrial hearing on the motion to dismiss, defendant argued that the law in Rhode Island is moving toward the approach used in California to determine if a felony is inherently dangerous. This approach examines the elements of a felony in the abstract. We shall discuss this approach in more detail in part II A of this opinion. In denying the motion to dismiss, the trial justice stated that "[n]othing * * * in my examination of Rhode Island case law, leads the Court to conclude that the Rhode Island Supreme Court is moving toward the California concept." Rather than determine if the crime of wrongfully permitting a child to be a habitual sufferer was inherently dangerous in the abstract, the trial justice ruled that the state would have the opportunity to prove at trial that the crime was inherently dangerous in the manner that it was committed. The trial justice committed no error in so ruling.

      23

      The trial justice held that the mens rea issue could be cured by an appropriate instruction to the jury and denied the motion to dismiss based on this ground as well. She noted that count 2 of the indictment charged defendant with violating § 11-9-5, "and there's no question but that [§] 11-9-5 talks about wrongful actions." The trial justice was correct in holding that the indictment did not have to track the exact words of the statute. See State v. Markarian, 551 A.2d 1178, 1182 (R.I.1988) ("as long as the essential elements of the crimes charged are stated in the indictment or information, a defendant's conviction may be reversed only where the variance is prejudicial to his defense"); State v. McKenna, 512 A.2d 113, 114-15 (R.I. 1986). Aside from omitting the word "wrongfully," count 2 did set forth the essential elements of a violation of § 11-9-5. The defendant was not prejudiced by the omission of the word "wrongfully" from count 2 since the trial justice was correct in asserting that the omission could be cured with an appropriate jury instruction. The trial justice, therefore, committed no error in denying the motion to dismiss on this basis.

      24
      II. THE DENIAL OF THE MOTIONS FOR JUDGMENT OF ACQUITTAL
      25

       

      26

      The defendant moved for judgment of acquittal on all three counts at the close of the state's case and again at the close of all the evidence. In regard to the felony-murder charge defendant claimed that the evidence was insufficient to prove (1) that the crime of wrongfully permitting a child to be a habitual sufferer is an inherently dangerous felony and (2) that defendant intentionally committed the crime of wrongfully permitting a child to be a habitual sufferer. The motions for judgment of acquittal were denied on both grounds. The defendant claims that the denial of her motions for judgment of acquittal was reversible error.

      27
      A. Whether Wrongfully Permitting a Child to Be a Habitual Sufferer is an Inherently Dangerously Felony
      28

       

      29

      Rhode Island's murder statute, § 11-23-1, enumerates certain crimes that may serve as predicate felonies to a charge of first-degree murder. A felony that is not enumerated in § 11-23-1 can, however, serve as a predicate felony to a charge of second-degree murder. See In re Leon, 122 R.I. 548, 410 A.2d 121 (1980); State v. Miller, 52 R.I. 440, 161 A. 222 (1932). Thus the fact that the crime of wrongfully permitting a child to be a habitual sufferer is not specified in § 11-23-1 as a predicate felony to support a charge of firstdegree murder does not preclude such crime from serving as a predicate to support a charge of second-degree murder.

      30

      In Rhode Island second-degree murder has been equated with common-law murder. [918] In re Leon, 122 R.I. at 553, 410 A.2d at 124. At common law, where the rule is unchanged by statute, "[h]omicide is murder if the death results from the perpetration or attempted perpetration of an inherently dangerous felony." Id. (quoting Perkins, Criminal Law 44 (2d ed. 1969)). To serve as a predicate felony to a charge of second-degree murder, a felony that is not specifically enumerated in § 11-23-1 must therefore be an inherently dangerous felony. Id.

      31

      The defendant contends that wrongfully permitting a child to be a habitual sufferer is not an inherently dangerous felony and cannot therefore serve as the predicate felony to a charge of second-degree murder. In advancing her argument, defendant urges this court to adopt the approach used by California courts to determine if a felony is inherently dangerous. This approach requires that the court consider the elements of the felony "in the abstract" rather than look at the particular facts of the case under consideration. See, e.g., People v. Patterson, 49 Cal.3d 615, 620-21, 778 P.2d 549, 553, 262 Cal.Rptr. 195, 199 (1989). With such an approach, if a statute can be violated in a manner that does not endanger human life, then the felony is not inherently dangerous to human life. People v. Burroughs, 35 Ca1.3d 824, 830-33, 678 P.2d 894, 898-900, 201 Cal.Rptr. 319, 323-25 (1984); People v. Caffero, 207 Cal.App.3d 678, 683-84, 255 Cal. Rptr. 22, 25 (1989). Moreover, the California Supreme Court has defined an act as "inherently dangerous to human life when there is `a high probability that it will result in death.'" Patterson, 49 Ca1.3d at 627, 262 Cal.Rptr. at 204, 778 P.2d at 558.

      32

      In Caffero, supra, a two-and-one-halfweek-old baby died of a massive bacterial infection caused by lack of proper hygiene that was due to parental neglect. The parents were charged with second-degree felony murder and felony-child abuse, with the felony-child-abuse charge serving as the predicate felony to the second-degree-murder charge. Examining California's felony-childabuse statute in the abstract, instead of looking at the particular facts of the case, the court held that because the statute could be violated in ways that did not endanger human life, felony-child abuse was not inherently dangerous to human life. Caffero, 207 Cal.App.3d at 683, 255 Cal.Rptr. at 25. By way of example, the court noted that a fractured limb, which comes within the ambit of the felony-child-abuse statute, is unlikely to endanger the life of an infant, much less of a seventeen-year-old. Id. (the statute applied to all minors below the age of eighteen years, not only to young children. People v. Lee, 234 Cal.App.3d 1214, 1228, 286 Cal.Rptr. 117, 126 (1991)). Because felony-child abuse was not inherently dangerous to human life, it could not properly serve as a predicate felony to a charge of second-degree felony murder. Caffero, 207 Cal.App.3d at 682-83, 255 Cal.Rptr. at 24-25; see also Lee, 234 Cal. App.3d at 1229, 286 Cal.Rptr. at 126.

      33

      The defendant urges this court to adopt the method of analysis employed by California courts to determine if a felony is inherently dangerous to life. Aside from California, it appears that Kansas is the only other state which looks at the elements of a felony in the abstract to determine if such felony is inherently dangerous to life. See, e.g., State v. Wesson, 247 Kan. 639, 647, 802 P.2d 574, 581 (1990) (holding that the sale of crack cocaine when viewed in the abstract is not inherently dangerous to human life); State v. Underwood, 228 Kan. 294, 303, 615 P.2d 153, 161 (1980) (holding that the unlawful possession of a firearm by an ex-felon when viewed in the abstract is not inherently dangerous to human life). The case of Ford v. State, 262 Ga. 602, 423 S.E.2d 255 (1992), cited in defendant's brief for the proposition that possession of a firearm by an ex-felon is not an inherently dangerous felony which can support a felony-murder conviction, actually holds that the attendant circumstances of the particular case should be considered in determining whether the underlying felony "create[d] a foreseeable risk of death." In Ford the defendant (Ford) had previously been convicted of the felony of possession of cocaine with intent to distribute. Ford was visiting the home of his girlfriend's mother and had brought with him a semiautomatic pistol. While there he attempted to unload the pistol, but in so doing, he discharged the weapon, sending a bullet both through the floor and through the ceiling of a basement [919] apartment located in the house. The bullet struck and killed the occupant of the basement apartment. There was no evidence that at the time of the shooting the defendant was aware of the existence of the apartment or of the victim's presence in it. Ford was charged with and convicted of felony murder, with the underlying felony being the possession of a firearm by a convicted felon.

      34

      The Georgia Supreme Court reversed the conviction for felony murder holding that a status felony, including the possession of a firearm by a previously-convicted felon, is not inherently dangerous. The court explained that there could indeed be circumstances in which such a felony could be considered dangerous (for example when the possession of the firearm was coupled with an aggravated assault or other dangerous felony) but that such circumstances were absent in that case. It held that in that particular case, which did not involve an assault or other criminal conduct, the underlying felony of possession of a firearm by a previously convicted felon was not inherently dangerous and thus could not serve as a predicate to the charge of felony murder. Id. at 603-04, 423 S.E.2d at 256.

      35

      We decline defendant's invitation to adopt the California approach in determining whether a felony is inherently dangerous to life and thus capable of serving as a predicate to a charge of second-degree felony murder. We believe that the better approach is for the trier of fact to consider the facts and circumstances of the particular case to determine if such felony was inherently dangerous in the manner and the circumstances in which it was committed, rather than have a court make the determination by viewing the elements of a felony in the abstract. We now join a number of states that have adopted this approach. See, e.g., Jenkins v. State, 230 A.2d 262 (De1.1967); State v. Wallace, 333 A.2d 72 (Me.1975); Commonwealth v. Ortiz, 408 Mass. 463, 560 N.E.2d 698 (1990); State v. Harrison, 90 N.M. 439, 564 P.2d 1321 (1977); State v. Nunn, 297 N.W.2d 752 (Minn.1980).

      36

      A number of felonies at first glance would not appear to present an inherent danger to human life but may in fact be committed in such a manner as to be inherently dangerous to life. The crime of escape from a penal facility is an example of such a crime. On its face, the crime of escape is not inherently dangerous to human life. But escape may be committed or attempted to be committed in a manner wherein human life is put in danger. Indeed in State v. Miller, supra, this court upheld the defendant's conviction of seconddegree murder on the basis of the underlying felony of escape when a prison guard was killed by an accomplice of the defendant during an attempted escape from the Rhode Island State prison. By way of contrast, the California Supreme Court has held that the crime of escape, viewed in the abstract, is an offense that is not inherently dangerous to human life and thus cannot support a seconddegree felony-murder conviction. People v. Lopez, 6 Cal.3d 45, 51, 489 P.2d 1372, 1376, 98 Cal.Rptr. 44, 48 (1971) (In Bank).

      37

      The amendment of our murder statute to include any unlawful killing "committed during the course of the perpetration, or attempted perpetration, of felony manufacture, sale, delivery, or other distribution of a controlled substance otherwise prohibited by the provisions of chapter 28 of title 21" lends further support for not following California's approach to determining the inherent dangerousness of a felony. G.L.1956 (1981 Reenactment) § 11-23-1, as amended by P.L. 1990, ch. 284, § 4. According to the statute a person who delivers phencyclidine (PCP), a controlled substance under section (e)(5) of schedule II of G.L.1956 (1989 Reenactment) § 21-28-2.08, as amended by P.L.1991, ch. 211, § 1, to another person who then dies either as a result of an overdose or as a result of behavior precipitated by the drug use (such as jumping off a building because of the loss of spacial perception) could be charged with first-degree murder under § 11-23-1. Conversely, the California Court of Appeal has held that when viewed in the abstract, the standard used by California courts to determine whether a felony is inherently dangerous, the furnishing or selling of PCP is not a felony that carries a high probability that death will result. People v. Taylor, 6 Cal.App.4th 1084, 1100, 8 Cal. Rptr.2d 439, 449 (1992). Consequently, the [920] California Court of Appeal held that the felony of furnishing PCP could not serve as a predicate to a charge of second-degree felony murder. Id. at 1101, 8 Cal.Rptr.2d at 450. It is clear that there is a profound ideological difference in the approach of the Rhode Island Legislature from the holdings of the courts of the State of California concerning appropriate criminal charges to be preferred against one who furnishes PCP (and presumably a host of other controlled substances) to another person with death resulting therefrom. The lawmakers of the State of Rhode Island have deemed it appropriate to charge such a person with the most serious felony in our criminal statutes—first-degree murder. It appears that the appellate court of California, however, would hold that the most serious charge against one who furnishes PCP to another person with death resulting therefrom would be involuntary manslaughter. See id.

      38

      The Legislature's recent amendment to our murder statute as well as this court's prior jurisprudence concerning second-degree felony murder (In re Leon, supra; State v. Miller, supra) reinforces our belief that we should not adopt the California approach to determine whether a felony is inherently dangerous. The proper procedure for making, such a determination is to present the facts and circumstances of the particular case to the trier of fact and for the trier of fact to determine if a felony is inherently dangerous in the manner and the circumstances in which it was committed. This is exactly what happened in the case at bar. The trial justice instructed the jury that before it could find defendant guilty of seconddegree murder, it must first find that wrongfully causing or permitting a child to be a habitual sufferer for want of food or proper care was inherently dangerous to human life "in its manner of commission." This was a proper charge. By its guilty verdict on the charge of second-degree murder, the jury obviously found that wrongfully permitting a child to be a habitual sufferer for want of food or proper care was indeed a felony inherently dangerous to human life in the circumstances of this particular case.

      39

      "When presented with a motion for judgment of acquittal, a trial justice must determine whether the evidence offered by the state is capable of generating proof of guilt beyond a reasonable doubt. * * * To make this determination, a trial justice, and this court on review, must view the evidence in the light most favorable to the state, without weighing the evidence or assessing the credibility of the witnesses, and must draw therefrom all reasonable inferences consistent with guilt." State v. Caruolo, 524 A.2d 575, 580-81 (R.I.1987).

      40

      Applying this standard, we are of the opinion that the evidence offered by the state was sufficient to prove beyond a reasonable doubt each of the elements of second-degree felony murder, including that the crime of wrongfully permitting a child to be a habitual sufferer was an inherently dangerous felony in its manner of commission. The defendant's motions for judgment of acquittal on the felony-murder charge on the ground that wrongfully permitting a child to be a habitual sufferer is not an inherently dangerous felony were properly denied.

      41
      B. Whether Defendant Possessed the Necessary Intent to Commit the Crime of Wrongfully Permitting a Child to Be a Habitual Sufferer for Such Felony to Support a Charge of Second-Degree Felony Murder
      42

       

      43

      The theory of felony murder is that a defendant does not have to have intended to kill one who dies during the course of certain statutorily enumerated felonies, or other inherently dangerous felonies, in order to be charged with murder. The intent to commit the underlying felony will be imputed to the homicide, and a defendant may thus be charged with murder on the basis of the intent to commit the underlying felony. See, e.g., State v. Villani, 491 A.2d 976, 980 (R.I. 1985); 2 Wharton's Criminal Law § 147 (14th Torcia ed. 1979).

      44

      The defendant claims that the evidence presented at trial failed to establish that she intentionally committed the crime of wrongfully permitting a child to be a habitual [921] sufferer. She claims that absent an intent to commit this felony, it cannot serve as a predicate to support a charge of second-degree felony murder because there would then be no intent to be imputed from the underlying felony to the homicide. We agree with defendant that intent to commit the underlying felony is a necessary element of felony murder. However, we believe the circumstances surrounding the events preceding Travis's death support a finding that defendant did indeed intentionally permit her son to be a habitual sufferer for want of food or proper care.

      45

      The defendant's addiction to and compulsion to have cocaine were the overriding factors that controlled virtually every aspect of her life. She referred to the extended periods that she was high on cocaine as "going on a mission." Although she was receiving public assistance and did not have much disposable income, she nevertheless spent a great deal of money on cocaine, including her AFDC money. She shoplifted and traded the stolen merchandise for cocaine. She stole food because she had used the money that she should have been using to purchase food to purchase cocaine. The compulsion to have cocaine at any cost took precedence over every facet of defendant's life including caring for her children.

      46

      Although defendant did not testify at trial, she did testify before the grand jury. A redacted tape of her grand jury testimony was admitted into evidence and played for the jury at trial. During the days preceding Travis's death, defendant had been on a twoto three-day cocaine binge, a mission, as she referred to it. Her grand jury testimony indicated that she knew that during such periods she was unable to care for her children properly. The defendant testified that whenever she would go on a mission, her mother, who lived only a few houses away, would take and care for the children. This testimony evinced a knowledge on the part of defendant that she was incapable of properly caring for her children during these periods of extended cocaine intoxication. In addition, defendant was prone to petit mal seizures, which were exacerbated by her cocaine use. During such seizures she would "black out" or "[go] into a coma state." She testified before the grand jury that she was aware that taking cocaine brought on more seizures and that the weekend before Travis died she had in fact blacked out and "went into a coma state."

      47

      Despite her grand jury testimony to the contrary, Travis remained with defendant at her apartment during the entire two- to three-day binge. He died two or three days later. The defendant's repeated voluntary and intentional ingestion of crack cocaine while her seven-week-old son was in her care in addition to her testimony that she knew that she was incapable of properly caring for her children during these extended periods of cocaine intoxication, support a finding that she intentionally permitted her son to be a habitual sufferer for want of food and proper care. We make the distinction between a finding that defendant intentionally deprived her son of food and proper care, which even the state does not allege, and a finding that defendant intentionally permitted her son to be a habitual sufferer for want of food or proper care, which we find to be supported by the evidence adduced at trial.

      48

      Viewing the evidence in the light most favorable to the state, without weighing the evidence or assessing the credibility of witnesses, and drawing all reasonable inferences consistent with guilt, we are of the opinion that the evidence offered by the state was capable of proving beyond a reasonable doubt that defendant intentionally permitted her seven-week-old-son, Travis, to be a habitual sufferer for want of food and proper care. We also believe that the evidence in support of each of the other elements of the crime of second-degree felony murder was sufficient to justify a finding of proof beyond a reasonable doubt. The motions for judgment of acquittal were properly denied.

      49
      III. ADMISSION OF EVIDENCE OF OTHER CRIMES AND BAD ACTS
      50

       

      51

      In her testimony before the grand jury, defendant explained that she was addicted to cocaine prior to becoming pregnant with Travis and that she continued to use cocaine [922] throughout her pregnancy on a daily basis. The defendant testified that during her pregnancy she was high on cocaine approximately nine hours per day and that after Travis was born she would get high approximately seven hours per day. She also testified that when Travis was born, a substantial amount of cocame had been found in his system. The following colloquy took place between the prosecutor and defendant with respect to how defendant obtained money with which to purchase cocaine:

      52
      "Prosecutor: Now, Ms. Stewart, aside from using welfare money and other means, aside from using money you received by public assistance, were there other ways that you would get money?

      "Defendant: Yes. I would borrow money or I would steal from the store, shoplifting, and trade it off, trade it off for the drugs.

      "Prosecutor: How about breaking into apartments; did you ever break into apartments?

      53
      "Defendant: I broke into an apartment on Sayles Avenue, but what was stolen from that apartment was food.

      "Prosecutor: Isn't it true that you broke into two apartments at that address?

      "Defendant: Yes. It was the third floor and the fourth floor.

      "Prosecutor: And is it your testimony that no money was taken from either one of those apartments?

      "Defendant: Right.

      "Prosecutor: And one of the reasons — Is it true that you broke into those apartments and stole food because you were using money, which normally would go to [purchase] food, to buy cocaine?

      "Defendant: No, I wouldn't — I would spend the money that should have been used towards the food on cocaine, but when I had broken into the apartment, that was towards the end of the month. I had no more food stamps left. I did have food in my house, but it was nothing like, it was like canned foods like, say, Spaghettios and stuff like that for my children, my older children. Travis had his formula that's up in the cabinet, but when I broke into the other apartment, I had stolen meats out of the freezer so I had meats in the house for the children."

      54

       

      55

      At trial, the state sought to play for the jury a tape recording of defendant's grand jury testimony, including the portion excerpted above. The defendant objected inter alia, to the admission of evidence pertaining to (1) the cocaine found in Travis's system at birth, (2) defendant's cocaine use during her pregnancy, (3) defendant's use of her AFDC money to purchase cocaine, and (4) defendant's shoplifting and breaking into apartments. Each of these objections was overruled, and these portions of defendant's grand jury testimony were played for the jury at trial.[3] The defendant claims that the admission of evidence of other crimes that she had committed which were unrelated to the crime for which she was standing trial was reversible error. We disagree with both defendant's characterization of these other crimes as "unrelated" and with her contention that the admission of evidence of their commission was reversible error.

      56

      Generally, evidence that shows or tends to indicate that an accused has committed another crime independent of the crime for which he or she is standing trial is irrelevant and inadmissible. State v. Chartier, 619 A.2d 1119, 1122 (R.I. 1993); State v. Cardoza, 465 A.2d 200, 202 (R.I. 1983); State v. Colvin, 425 A.2d 508, 511 (R.I. 1981). "This rule operates to prevent a jury from finding a defendant guilty based upon unrelated crimes rather than upon evidence [relating] to the charged offense." Cardoza, 465 A.2d at 202. There are, however, several well-established exceptions to this rule. Evidence that a defendant has participated in or committed prior crimes may be admissible if such evidence "tends to establish the defendant's `guilty knowledge, intent, motive, design, plan, scheme, system, or the like' with respect to the offense charged." State v. Gallagher, 654 A.2d 1206, 1210 (R.I. 1995); State v. Lemon, 497 A.2d 713, 720 (R.I. 1985); State v. Colangelo, 55 R.I. 170, 174, 179 A. 147, 149 (1935); see also R.I.R.Evid. 404(b). [923] We have previously stated that in situations in which the prior crimes "are interwoven with the offense for which the defendant is being tried, or directly support a finding of guilty knowledge in the perpetration of that offense," then evidence of the prior crimes is admissible. Cardoza, 465 A.2d at 202 (quoting Colangelo, 55 R.I. at 174, 179 A. at 149). Stated another way, evidence of prior crimes is not admissible to prove the propensity of a defendant to commit such a crime but it is admissible to show a fact or facts which tend to prove that the defendant is, guilty of the crime charged. Lemon, 497 A.2d at 720.

      57

      In the instant case, during the period in question, defendant's addiction to and obsession with cocaine were the overriding factors that controlled virtually every aspect of her life. She spent nearly all her money, including the money from her AFDC checks, to buy cocaine. Because she used her money from public assistance to purchase cocaine rather than food, defendant resorted to breaking into apartments to steal food for her children. She shoplifted so that she could trade the stolen merchandise for cocaine. All defendant's criminal activity was inextricably linked to her cocaine addiction and her compulsion to have cocaine at any cost.

      58

      The defendant claims, and the state concurs, that defendant did not intentionally deprive Travis of food and care. Rather, both defendant and the state contend that because defendant was so intoxicated from her use of cocaine during the period surrounding Travis's death, she was physically and mentally unable to care for her infant child properly. It was this very addiction and compulsion that resulted in defendant being incapable of providing the necessary care and supervision that ultimately led to Travis's death. Evidence of defendant's shoplifting and breaking into apartments and the relation that this criminal activity bore to her compulsion to obtain cocaine are relevant to the issue of whether defendant possessed the requisite intent to commit the crime of wrongfully permitting her son to be a habitual sufferer. In the circumstances of this case, defendant's shoplifting and breaking into apartments were interwoven with the offense for which she was being tried and evidence of these prior crimes was therefore properly admissible. See Cardoza, supra. The trial justice was correct in allowing evidence of these prior crimes.

      59
      IV. THE FAILURE TO GIVE A LIMITING INSTRUCTION
      60

       

      61

      The defendant contends that even if evidence of prior criminal acts was admissible, the trial justice's failure to instruct the jury concerning the limited purpose for which such evidence could be used constituted reversible error. The defendant, citing State v. Jalette, 119 R.I. 614, 625, 382 A.2d 526, 532 (1978), claims that when evidence of other crimes is admissible, the trial justice must specifically instruct the jury concerning the limited purpose for which such evidence was introduced. She further contends that State v. Brown, 626 A.2d 228, 234 n. 2 (R.I.1993), mandates that a trial justice is required to give a limiting instruction even in the absence of counsel's request for such instruction.

      62

      The two cases cited by defendant both involved sexual-assault charges and evidence of prior sexual misconduct. The Jalette rule applies only when a defendant is charged with a sexual offense and evidence of prior sexual misconduct is admitted. The Brown case stands for the proposition that when a defendant is charged with a sexual offense, a trial justice should offer a limiting instruction sua sponte when admitting evidence of other sexual acts. Because the case at bar involved neither a sexual-assault charge nor evidence of prior sexual offenses, the trial justice was not required to give a limiting instruction in the absence of a request for such an instruction by defense counsel. See State v. Martinez, 651 A.2d 1189, 1195 (R.I.1994). The trial justice therefore committed no error by failing to give a limiting instruction.

      63
      V. THE TESTIMONY CONCERNING EVENTS THAT OCCURRED FOLOWING TRAVIS'S DEATH
      64

       

      65

      Two or three days after the cocaine binge had ended, defendant went to McMasters's [924] apartment and informed her that Travis had died that morning. The defendant was carrying a bag containing cans of baby formula and asked McMasters if she knew where she (defendant) could exchange the unused formula for cocaine. McMasters told defendant that she did not know where the formula could be exchanged for cocaine but suggested that she take it to a local supermarket to get a cash refund. McMasters then accompanied defendant to a supermarket in Pawtucket where they attempted to return the formula for cash. They were unsuccessful in this attempt, however, because they did not have a receipt for the formula and store policy dictated that no cash refunds be given for returns without a receipt for the merchandise. The defendant told the assistant store manager that her baby had just died, and the manager gave defendant $20 out of his own pocket because he felt sorry for her.[4] The defendant used this $20 to purchase cocaine. The defendant and McMasters then went to McMasters's apartment and smoked cocaine. McMasters was permitted to testify to this incident over defense objection that such evidence violated Rule 404(b) of the Rhode Island Rules of Evidence concerning bad character.

      66

      The next day, the day after Travis died, defendant went to McMasters's apartment building, apparently angry at McMasters because defendant thought that McMasters owed her money. The defendant began screaming obscenities from the driveway of McMasters's apartment building toward the window of McMasters's apartment. McMasters opened her window and told defendant to quiet down, but defendant proceeded to the porch of McMasters's apartment. The defendant began banging on the door and then smashed the apartment window with the handle of a butcher knife. Defense counsel objected to any testimony concerning presentation of this incident to the jury at trial on grounds that such evidence was irrelevant, prejudicial, and violative of Rule 404(b). The objection was overruled. Thereafter the grand jury tape wherein the prosecutor questioned defendant concerning this incident was played for the jury, and McMasters also testified concerning the episode.

      67

      The defendant claims that evidence concerning these two occurrences is completely irrelevant and highly prejudicial and does not fall under any of the exceptions to Rule 404(b) concerning admissibility of evidence of other crimes, wrongs, or acts. The trial justice admitted such evidence, finding it relevant insofar as it related to defendant's intent, knowledge, and identity. She also found that there was no danger of unfair prejudice resulting from the admission of this evidence.

      68

      Although we may not agree that there was no danger of prejudice resulting from the admission of evidence relating to the two incidents that occurred following Travis's death, we do not feel that the admission of such evidence was error. As we stated in Lemon, "[A]ll of the evidence that tends to prove that [a] defendant is guilty of a crime might be said to be prejudicial. Said evidence is inadmissible only if it is prejudicial and irrelevant." 497 A.2d at 720.

      69

      "[T]he admission or exclusion of evidence on grounds of relevancy is within the discretion of the trial justice." State v. Neri, 593 A.2d 953, 956 (R.I.1991). Absent a showing of abuse of discretion this court will not overturn the trial justice's ruling on the admissibility of evidence. In the instant case, evidence of defendant's attempt to return unused baby formula after the death of her son and of her subsequently spending the $20 given her by the store manager to purchase cocaine tended to show the ruthless determination on the part of defendant to obtain cocaine in any circumstances. This determination was probative of her intent to permit her son to be a habitual sufferer for want of the food and proper care that was essential for his survival. Evidence of the incident outside McMasters's apartment on the day following Travis's death would be of limited relevance, but its admission would not constitute an abuse of discretion. In light of the totality of evidence in the case such [925] admission would not be prejudicial or reversible error. We are of the opinion that the trial justice did not abuse her discretion in admitting evidence of these two incidents.

      70
      VI. THE DENIAL OF DEFENDANT'S MOTION FOR MISTRIAL
      71

       

      72

      In response to a question from the prosecutor concerning whether there was a period during which she continued to purchase cocaine with defendant and Young, McMasters responded, "[Y]eah. We bought, we purchased cocaine until all our money ran out of our checks, and then me and Eddie went and robbed somebody for some more money." Defense counsel immediately moved at sidebar for a mistrial on the ground that robbery is a very serious crime and the fact that McMasters and Young had committed a robbery was imparted to the jury was extremely prejudicial to defendant. The motion for mistrial was denied, but the trial justice immediately struck the statement concerning the robbery from the record and instructed the jury to ignore it. In denying the motion for mistrial, the trial justice noted that defendant had not been implicated in the robbery. McMasters testified that only she herself and Eddie (Young) had committed the robbery. The trial justice found that defendant suffered no harm from the statement concerning the robbery. The defendant claims that the trial justice's denial of the motion for mistrial was prejudicial error.

      73

      The defendant relies on our recent opinion in State v. Gallagher, to support her claim that she was unfairly and substantially prejudiced by the reference to the robbery committed by McMasters and Young. In that case, we held that testimony that implicated the defendant's friends in a shooting which was unrelated to the charges for which the defendant was standing trial was extremely prejudicial and constituted reversible error. In Gallagher, however, the "credibility of the witnesses was the paramount issue at trial." 654 A.2d at 1211. The testimony at issue in Gallagher implicated a defense witness in a shooting that was unrelated to the charges for which the defendant was standing trial.

      74

      In that case the defendant was prejudiced by the admission of the evidence since it seriously impaired the credibility of the defense witness in a case where the credibility of witnesses was the most important issue. Id.

      75

      In the case at bar, the principal facts testified to by McMasters are virtually uncontradicted. McMasters's credibility was not a primary issue. Furthermore, McMasters was a prosecution witness, not a defense witness. If the jury had questioned McMasters's credibility, this would have benefited defendant, not prejudiced her. Young did not testify in this case; thus his credibility is not in issue. The defendant's reliance on Gallagher is therefore misplaced.

      76

      It is within the sound discretion of the trial justice to grant or to deny a defendant's motion to pass a case (motion for mistrial). State v. Mastrofine, 551 A.2d 1174, 1177 (R.I.1988). The denial of a motion to pass the case is to be accorded great weight and will not be overturned on appeal unless clearly wrong. Id. In the case at bar the statement concerning the robbery did not implicate defendant. The trial justice also admonished the jury to disregard the statement. The trial justice committed no error in denying defendant's motion for mistrial.

      77
      VII. THE STATE'S REBUTTAL TESTIMONY
      78

       

      79

      Both the state and defendant presented expert witnesses who testified concerning the cause of Travis's death. In pretrial discovery the state disclosed to the defense the reports and anticipated testimony of four medical experts: Dr. William Quentin Sturner, Dr. Penelope Dennehy, Dr. Donald Singer, and Dr. Joel Adelson. In its case in chief the state called only two of the expert witnesses—Doctors Sturner and Dennehy.

      80

      Doctor Sturner, who performed the autopsy on Travis, testified that in his opinion, the cause of Travis's death was malnutrition and dehydration that were due to starvation and neglect. He testified at length concerning his various findings that supported this conclusion and how these same findings did not [926] support a conclusion that the cause of death was a gastrointestinal illness.

      81

      The thrust of Dr. Dennehy's testimony was to discredit the defense's theory that Travis had died as a result of viral gastroenteritis. She did testify, however, that in her opinion the cause of death was dehydration due to deficient input.

      82

      The defense also presented two expert medical witnesses, Dr. William Durbin and Dr. David Gang. Both defense experts concurred with the prosecution experts that Travis had died as a result of dehydration. Doctors Durbin and Gang, however, believed that the cause of the dehydration was a gastrointestinal virus that manifested itself in an overwhelming expulsion of fluid from the baby's body.

      83

      The state presented Doctors Singer and Adelson as rebuttal witnesses. Doctor Singer testified that in preparation for testifying he had reviewed the autopsy report, photographs, Travis's birth and neonatal health records, the reports prepared by the defense's expert witnesses, and tissue slides prepared "from virtually every organ in the body." The prosecutor then asked the doctor if he had an opinion concerning whether Travis had been malnourished. Defense counsel's objection to this question was overruled. After Dr. Singer responded that in his opinion Travis had been malnourished, the prosecutor asked the doctor if he had an opinion concerning the degree of malnutrition. Defense counsel again objected on the ground that such testimony was not proper rebuttal. This objection was overruled, and defense counsel then requested and was granted a continuing objection to that line of testimony.

      84

      In addition to stating his opinion concerning the cause of death, Dr. Singer disputed certain of the claims made by the defense's expert witnesses. For example, Dr. Singer disagreed with Dr. Durbin's assertion that Travis had been growing at a consistent rate. He also disagreed with Dr. Durbin's and Dr. Gang's characterization of the fecal material in Travis's diaper and with their contention that microscopic changes in the intestines following death would have made it extremely difficult to detect inflammation. In the course of his testimony, Dr. Singer also expressed opinions on some of the same matters to which Dr. Sturner had testified in the state's direct case and reached similar conclusions to those of Dr. Sturner.

      85

      Doctor Adelson was the state's second expert rebuttal witness. He testified that in his opinion the dehydration that caused Travis's death was the result of insufficient intake rather than excessive output. Defense counsel again requested and was granted a continuing objection to this line of testimony on the ground that it was improper rebuttal. Doctor Adelson then explained the reasons why he had concluded that Travis had not suffered a gastrointestinal disorder. Many of these reasons were the same as those testified to by Dr. Dennehy in the state's direct case.

      86

      The defendant claims that the testimony of Doctors Singer and Adelson was improper rebuttal because the bulk of the testimony was cumulative. She further contends that some of the testimony pertained to new matters and was therefore improperly presented for the first time in the state's rebuttal case. We shall address the second prong of this argument first.

      87

      The defendant points to only two examples of new evidence being presented for the first time on rebuttal. When Dr. Singer was relating why he disagreed with Dr. Durbin's assertion that Travis had grown at a consistent rate, he explained that the growth charts relied upon by Dr. Durbin contained outdated information whereas the growth tables that he used were, to his knowledge, the most accurate and up-to-date tables of the kind. Although Dr. Singer's testimony concerning the accuracy of information contained in the growth charts and tables utilized by the expert witnesses may indeed have been new evidence imparted to the jury for the first time on rebuttal, this information was offered for the sole purpose of explaining how he had come to a conclusion contrary to that of the defense's expert witness. There was no error in the admission of this testimony.

      88

      The only other example defendant points to of the presentation of new evidence for the [927] first time on rebuttal is Dr. Adelson's testimony that the degree of Travis's malnutrition may have been mild to moderate. We see no error in the admission of this testimony. The state was not presenting a new theory for the cause of Travis's death. To the contrary, each of the state's four expert witnesses testified that the cause of death was dehydration resulting from insufficient input, that is to say, due to malnutrition.

      89

      Returning to the first prong of defendant's argument, she claims that the testimony of Doctors Singer and Adelson was improper rebuttal because it was for the most part cumulative. We note that "the proper function and purpose of rebuttal testimony is to explain, repel, counteract, or disprove the evidence of the adverse party." State v. Donovan, 120 N.H. 603, 607, 419 A.2d 1102, 1105 (1980) (quoting United States v. Chrzanowski, 502 F.2d 573, 576 (3d Cir. 1974)). The decision to permit rebuttal testimony lies in the discretion of the trial justice, whose decision will not be overturned absent an abuse of that discretion. See State v. Simpson, 520 A.2d 1281, 1284 (R.I.1987); State v. Lawrence, 492 A.2d 147, 149 (R.I. 1985); 2 Wharton's Criminal Evidence § 432 (14th Torcia ed. 1986).

      90

      Doctor Singer's and Dr. Adelson's testimony was designed to discredit the defense's theory that Travis died as a result of dehydration caused by a gastrointestinal infection. Because of the nature of the medical evidence, it was virtually impossible for the doctors' rebuttal testimony not to repeat certain, or even much, of the testimony that was presented during the state's case in chief. We are of the opinion that the trial justice did not abuse her discretion in admitting this rebuttal testimony.[5]

      91
      VIII. THE DENIAL OF DEFENDANT'S REQUEST FOR SURREBUTTAL
      92

       

      93

      Following the state's presentation of Doctors Singer and Adelson as rebuttal witnesses, defense counsel made an equivocal request for surrebuttal. Defense counsel based his request on two grounds. First, counsel argued that it was unfair for the state to present its case last in a manner that defense counsel claimed was improper rebuttal. Second, counsel contended that the state had improperly presented a new theory in its rebuttal case concerning the cause of Travis's death, to which the defense should have the opportunity to respond. In response to the trial justice's inquiry concerning what testimony he wanted to rebut, defense counsel mentioned Dr. Adelson's theory of the cause of death and related matters. He then continued: "There may well be other things, your Honor. I need time to think about it and talk about it with Dr. Gang and Dr. Durbin. I don't really know that after talking with them, we would consider it [to] be worthwhile to put on a surrebuttal case." Prior to ruling on the request, the trial justice stated that she was "unable to see any even mildly significant reason to grant surrebuttal, which is not commonly done, in any event," but planned to hold off on her decision until the following morning. Because of the difficulty of arranging for his expert witnesses to be present the following morning when the likelihood was great that the request for surrebuttal would be denied, defense counsel requested that the trial justice make an immediate ruling. The trial justice obliged and denied the request.

      94

      In State v. Byrnes, 433 A.2d 658 (R.I.1981), we quoted with approval the Illinois Appellate Court in Ross v. Danter Associates, Inc., 102 Ill.App.2d 354, 242 N.E.2d 330 (1968), for the standard for permitting surrebuttal testimony:

      95
      "The purpose of surrebuttal is to permit the defendant to introduce evidence in refutation or opposition to new matters interjected into the trial by the plaintiff on rebuttal. * * * In other words, fairness requires that the defendant be permitted to oppose new matters presented by plaintiff for the first time which the defendant could not have presented or opposed at the time of presentation of his main case. Contrariwise, the purpose of surrebuttal is [928] not the introduction of evidence merely cumulative to that presented by the defendant in its original presentation. * * * It follows that the defendant has no right to present surrebuttal evidence merely because the plaintiff has presented rebuttal evidence." Byrnes, 433 A.2d at 669-70 (quoting Ross, 102 Ill.App.2d at 367-68, 242 N.E.2d at 336-37).
      96

       

      97

      Even if we agreed with defendant's arguments that the state's rebuttal testimony was improper, which we do not, we would still be constrained to find that the trial justice committed no error in denying the request for surrebuttal. The request for surrebuttal was equivocal, and defense counsel was unable to apprise the trial justice with any degree of certainty regarding what testimony he intended to rebut. More importantly, counsel did not apprise the trial justice concerning the proposed content of the surrebuttal testimony. Without any knowledge regarding the content of the proposed surrebuttal testimony, the trial justice was unable to determine whether it met the standards for the admission of such testimony which are quoted above. We realize that the trial justice did not inquire of counsel concerning the content of the proposed surrebuttal testim6ny, but such an inquiry would have proved futile inasmuch as counsel had not yet conferred with his expert medical witnesses and therefore would have been unable to inform the court concerning the content of any testimony that they might have offered.

      98

      Moreover, the denial of the request for surrebuttal was proper because of the equivocal nature of the request. In one breath defense counsel stated that he needed time to think about it and to talk about it with his expert witnesses and in the next breath he asked the trial justice for an immediate ruling on the request. In view of the fact that counsel was not even sure if he intended to put on a surrebuttal case, the trial justice committed no error in denying the request.

      99
      IX. THE DENIAL OF DEFENDANT'S PROPOSED JURY INSTRUCTION
      100

       

      101

      Defense counsel submitted the following proposed jury instruction to the trial justice:

      102
      "If you find that Travis Young suffered from want of food and proper care as a result of unknowing oversight due to any cause, including the inability of the defendant to remember to feed and care for him, you must find her not guilty on counts one and two."
      103

       

      104

      The trial justice declined to give this proposed instruction. Instead, she instructed " the jury that in order to find defendant guilty of second-degree murder, it must find that five elements were proved beyond a reasonable doubt, specifically that (1) defendant had custody or control of Travis and that Travis was a child under eighteen years of age, (2) Travis was a habitual sufferer for want of food or proper care, (3) defendant wrongfully caused or permitted Travis to be a habitual sufferer, (4) the crime of wrongfully causing or permitting a child to be a habitual sufferer for want of food or proper care is inherently dangerous to human life, and (5) defendant knew or was aware beforehand that there was a likelihood that Travis's life would be endangered as a result of causing or permitting him to be a habitual sufferer for want of food or proper care. The trial justice explained certain of these elements in further detail, such as the meanings of "habitual," "wrongfully," and "inherently dangerous to human life."

      105

      The defendant claims that the trial justice's failure to give the proposed instruction quoted above, or one of similar import, is reversible error. She claims that it was incumbent upon the trial justice to instruct the jury that in order to find her guilty of second-degree murder and of wrongfully permitting a child to be a habitual sufferer, it must find that she intentionally caused or permitted her son to be a habitual sufferer.

      106

      Initially we note that the child-neglect statute, § 11-9-5, may be violated by a failure to act on the part of one who has a duty to act, namely, a person who has custody or control of a child under the age of eighteen. Section 11-9-5 reads in pertinent part:

      107
      "Cruelty to or neglect of child.—Every person having the custody or control of [929] any child under the age of eighteen (18) years * * * who shall wrongfully cause or permit that child to be an habitual sufferer for want of food * * * [or] proper care * * * shall be guilty of a felony."
      108

       

      109

      Thus the statute may be violated by an omission to act as well as by active conduct. The culpability element contained in the statute is "wrongfully." In her jury charge, the trial justice defined "wrongfully" as something done without legal justification and without legal excuse. We concur with this definition. By imposing criminal liability for wrongful conduct rather than for intentional conduct, our Legislature evinced an intent that the child-neglect statute could be violated even absent a conscious purpose to cause or permit a child to be a habitual sufferer, as long as no legal justification or legal excuse existed for so causing or permitting the child to be a habitual sufferer. Thus § 11-9-5 can be violated by an unintentional omission to act, contrary to the contention of defendant.[6]

      110

      Even though one can therefore be guilty of wrongfully permitting a child to be a habitual sufferer upon the basis of an unintentional omission to act, in order for the crime of wrongfully permitting a child to be a habitual sufferer to serve as a predicate felony to a charge of second-degree felony murder, the accused must have had the intent to commit the underlying felony. See State v. Villani, 491 A.2d at 980, 2 Wharton's Criminal Law § 147. Although it is true that the trial justice did not specifically instruct the jury that in order to find defendant guilty of second-degree murder, it must find as one of the elements of the crime that she intentionally caused or permitted her son to be a habitual sufferer for want of food or proper care, we believe that the instructions given were substantially equivalent. The trial justice instructed the jury that it must find that defendant wrongfully, that is, without legal justification or without legal excuse, caused or permitted Travis to be a habitual sufferer. She also instructed that it must find that defendant knew or was aware beforehand that there was a likelihood that Travis's life would be endangered as a result of permitting or causing him to be a habitual sufferer for want of food or proper care. We believe that these two instructions in combination, requiring that the jury find that defendant had no legal justification or no legal excuse for causing her son to be a habitual sufferer and also requiring that the jury find that defendant knew or was aware beforehand that causing or permitting her son to be a habitual sufferer for want of food or proper care was likely to endanger his life, were the functional equivalent to an instruction requiring the jury to find that defendant intentionally caused or permitted her son to be a habitual sufferer. "This failure to distinguish between intent * * * and knowledge is probably of little consequence in many areas of the law, as often there is good reason for imposing liability whether the defendant desired or merely knew of the practical certainty of the results." LaFave and Scott, Substantive Criminal Law, § 3.5(b) at 305 (1986); see also Model Penal Code § 2.02 cmt. 2 at 234 (1985) (the "distinction [between acting purposely and knowingly] is inconsequential for most purposes of liability; acting knowingly is ordinarily sufficient").

      111

      The trial justice committed no error in refusing to give the requested instruction.

      112

      For the foregoing reasons the defendant's appeal is denied and dismissed, and the judgment of conviction is affirmed. The papers in the case may be remanded to the Superior Court.

      113

      BOURCIER, J., did not participate.

      114

      [1] Having found Stewart guilty of second-degree murder and wrongfully causing or permitting a child to be a habitual sufferer for want of food and proper care, which were the first two counts of a three-count indictment, the jury did not decide the third count of the indictment — manslaughter. Upon conviction of the underlying count of wrongfully causing or permitting a child to be a habitual sufferer for want of food or proper care, that count merged with the felony-murder count. See State v. Baton, 488 A.2d 696, 703-04 (R.I. 1985). Counsel for the state dismissed the second and third counts of the indictment at sentencing pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure. Edward Young, Sr., the child's father, was charged with the same offenses in the same indictment. His case has not yet been tried.

      115

      [2] Subsequent to her trial, Stewart married Young. Several months later she filed for divorce.

      116

      [3] The trial justice did sustain a defense objection to any reference being made to an armed robbery committed by defendant and Young after Travis had died.

      117

      [4] This testimony was corroborated by the manager of the supermarket who gave defendant the $20.

      118

      [5] We conclude that the two Louisiana cases cited in defendant's brief, State v. Bagwell, 519 So.2d 875 (La.Ct.App.1988), and State v. Dayton, 445 So.2d 76 (La.Ct.App.1984), are inapposite to the facts of this case.

      119

      [6] In the case at bar, however, we find that the evidence is sufficient to find that defendant intentionally permitted her son to be a habitual sufferer. See part II B, supra.

    • 3.4 Hines v. State

      1
      578 S.E.2d 868 (2003)
      2
      276 Ga. 491
      3
      HINES
      v.
      The STATE.
      4
      No. S02A1699.
      5

      Supreme Court of Georgia.

      6
      March 27, 2003.
      7
      Reconsideration Denied April 11, 2003.
      8

       

      9

      [871] Larry B. Hill, Lafayette, for appellant.

      10

      Herbert E. Franklin, Jr., Dist. Atty., Thurbert E. Baker, Atty. Gen., Jill M. Zubler, Asst. Atty. Gen., for appellee. [869]

      11

      [870] FLETCHER, Chief Justice.

      12

      While hunting, Robert Lee Hines mistook his friend Steven Wood for a turkey and shot him dead. A jury convicted Hines of felony murder based on the underlying crime of possession of a firearm by a convicted felon, but acquitted him of felony murder based on the underlying felony of misuse of a firearm while hunting. On appeal, Hines contends that the jury's verdict is invalid because the jury cannot acquit him of killing the victim by misusing a firearm, yet convict him of killing the victim by possession of the same firearm, without having made inconsistent factual findings. Because Georgia does not recognize an inconsistent verdict rule and Hines's other enumerations are without merit, we affirm.[1]

      13

      Taken in the light most favorable to the jury's verdict of guilty, the evidence at trial showed that, late in the afternoon of April 8, 2001, Hines and some of his friends and relatives went turkey hunting. They split into two groups, with Hines and his friend Randy Stoker hunting together in one area, and the victim, the victim's wife, and Hines's son hunting in a different area, approximately one-fourth mile away. As the sky was growing dark, Hines heard a turkey gobble, "saw it fan out and shot." Hines's shot went through heavy foliage and hit the victim approximately eighty feet away. Immediately thereafter, the victim's wife screamed, "You shot Wood." Hines and his son went for help, but the victim died before help could arrive.

      14

      On his return, Hines tried to convince his son and Stoker to take responsibility for the shooting. They both refused. The entire group, however, agreed to say that they did not know who had shot Wood. Hines removed his camouflage clothing and hid his shotgun and hunting gear before the police arrived.

      15

      Two days later, Hines admitted he had shot Wood and showed the police where he had hidden his shotgun. Hines's son showed the police where he had hidden Hines's hunting clothing and gear, which included unopened cans of beer. An open beer can and foam insulation wrap that belonged to Hines were found near where Hines had fired the fatal shot.

      16

      1. We conclude that the evidence at trial was sufficient for a reasonable trier of fact to have found Hines guilty beyond a [872] reasonable doubt of the crimes for which he was convicted.[2]

      17

      2. The jury acquitted Hines of felony murder based on misuse of a firearm while hunting and convicted him of felony murder based on possession of a firearm by a convicted felon. Hines contends that the verdict is void because the jury made inconsistent determinations that he did not cause Wood's death by misusing a firearm, but did cause his death by possessing the same firearm.

      18

      Georgia does not recognize an inconsistent verdict rule,[3] which would permit a defendant to challenge the factual findings underlying a guilty verdict on one count as inconsistent with the findings underlying a not guilty verdict on a different count. A conviction on one count and acquittal on another related count may reflect a compromise or lenity by the jury rather than inconsistent factual conclusions, and Georgia courts generally will not look behind the jury's decision to convict on certain counts and acquit on other counts.[4] Therefore, Hines's enumeration is without merit.

      19

      3. Hines contends that a convicted felon's possession of a firearm while turkey hunting cannot be one of the inherently dangerous felonies required to support a conviction for felony murder. "The only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction is that the felony must be inherently dangerous to human life."[5] A felony is "inherently dangerous" when it is "`dangerous per se'" or "`by its circumstances create[s] a foreseeable risk of death.'"[6] Depending on the facts, possession of a firearm by a convicted felon can be an inherently dangerous felony.[7]

      20

      In Ford v. State,[8] the defendant was a convicted felon who was unloading a handgun when it accidentally discharged, went through the floor, and killed an occupant of the apartment below. A jury convicted Ford for felony murder based on his felonious possession of a firearm. This Court reversed, finding that, because no evidence showed the defendant knew there was an apartment below him or that the victim was present, his possession of a firearm could not support a conviction for felony murder.[9]

      21

      In contrast to Ford, Hines intentionally fired his shotgun intending to hit his target. He had been drinking before he went hunting, and there was evidence that he had been drinking while hunting. He knew that other hunters were in the area and was unaware of their exact location. He also knew that other people visited the area in which he was hunting. He took an unsafe shot at dusk, through heavy foliage, at a target eighty feet away that he had not positively identified as a turkey. Under these circumstances, we conclude that Hines's illegal possession of a firearm created a foreseeable risk of death.[10] Accordingly, Hines's violation of the prohibition against convicted felons possessing firearms was an inherently dangerous felony that could support a felony murder conviction.

      22

      4. Hines claims that the trial court improperly allowed a lay witness to offer an expert opinion that went to the ultimate issue before the jury regarding whether Hines misused a firearm while hunting. At trial, [873] the State offered Department of Natural Resources Ranger Greg Hall as an expert on hunter safety and turkey hunting. The trial court refused to recognize Hall as an expert in those areas, but allowed him to testify that he would not teach students in his hunter safety classes that Hines's shot was "permissible or allowable."

      23

      Lay witnesses "may state their opinion only when it is based upon their own observations," and their opinions are admissible "only when it is necessary in order for a witness to convey those same observations to the jury."[11] A lay witness may not state his opinion when the facts relied upon by the witness can be "clearly described for the jury, and the jury can rely upon those same facts and reach its own opinion."[12] "Otherwise, by stating an opinion the jury could reach for itself, the lay witness is deemed to have invaded the jury's exclusive province."[13]

      24

      Hall's opinion that he would not teach hunter safety students that Hines's shot was "permissible or allowable" was not a proper lay opinion because it was not necessary to convey Hall's observations. Rather, Hall drew a conclusion based on his experience in hunter safety instruction regarding a matter that was not within the ken of the average juror (i.e., that Hines's shot would not be taught as a permissible shot in hunter safety classes). Therefore, Hall's testimony was admissible only as an expert opinion.

      25

      However, Hall's experience and credentials were sufficient to qualify him to offer an expert opinion regarding whether Hines's shot was permissible under hunter safety standards. Hall was a certified Georgia law enforcement officer, employed by the Department of Natural Resources in the law enforcement section of its Wildlife Resources Division. He had five years of experience teaching hunter safety courses, and his duties included enforcement of Georgia's hunting laws. The jury heard these qualifications, and Hines had an opportunity to cross-examine Hall regarding his qualifications as well as the substance of his testimony. Additionally, Hall's testimony was probative of whether Hines misused his firearm while hunting, but did not invade the jury's exclusive province to determine whether Hines was guilty of that crime. Accordingly, the trial court did not err in allowing Hall to offer his opinion.[14]

      26

      5. Hines asserts that the evidence did not authorize the jury to reject his mistake of fact defense. Under OCGA § 16-3-5, "[a] person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission." Generally, however, "ignorance or mistake of fact constitutes a defense to a criminal charge only if it is not superinduced by the fault or negligence of the party doing the wrongful act."[15] Here, Hines's mistaken belief that Wood was a turkey was due to his own fault in taking an unsafe shot under unsafe conditions at a target that he had not positively identified as legal game. Accordingly, the jury was authorized to reject Hines's mistake of fact defense.

      27

      6. Hines's remaining enumerations are also without merit.

      28

      (a). The trial court did not commit reversible error in permitting the medical examiner to testify that he had classified Wood's death as a "homicide." The medical examiner testified the classification had nothing to do with the defendant's intent and meant only that "but for the actions of another [874] individual" the decedent would not be dead.[16]

      29

      (b). Because the felon in possession of a firearm charge was an underlying felony for one of the felony murder counts, the trial court correctly denied Hines's motion to bifurcate the possession charge from the trial of the other charges.[17]

      30

      (c). The trial court did not commit reversible error in leaving in the indictment the references to Hines's habitual violator status and prior conviction for driving under the influence. Hines withdrew the motion to redact his habitual violator status from the indictment, and the reference to the DUI conviction was harmless because Hines referred to his DUI conviction in his statement to the police, which was introduced into evidence without objection.[18]

      31

      (d). The trial court was within its discretion in admitting the photographs of the deceased.[19]

      32

      (e). Ranger Hall's testimony regarding the hunter safety courses that he teaches did not elevate the standard under OCGA § 16-11-108 (misuse of a firearm while hunting) from a reasonable person standard to a reasonable person who has taken hunter safety courses standard. The trial court's instructions to the jury followed the statutory language, and "absent clear evidence to the contrary," "qualified jurors under oath" are presumed to follow the trial court's instructions.[20]

      33

      (f). Hines waived any objection to the trial court's omission of the general charge on the form of the verdict because he did not request the charge, and based on the charges that were given, its omission was not clearly harmful and erroneous as a matter of law.[21]

      34

      (g). The trial court did not commit reversible error when it attempted to clarify the jury's continuing confusion regarding the crime of misuse of a firearm while hunting after repeatedly charging the jury correctly on the applicable statute, OCGA § 16-11-108.[22]

      35

      (h). The trial court did not err in recharging the jury on only the felony murder/misuse of a firearm counts, when those were the counts on which the jury had questions.[23]

      36

      Judgment affirmed.

      37

      All the Justices concur, except SEARS, P.J., who dissents.

      38

      SEARS, Presiding Justice, dissenting.

      39

      Because I conclude that circumstances surrounding Hines's commission of the status felony of possessing a firearm were not inherently dangerous within the meaning of our decision in Ford v. State,[1] I dissent to the majority's affirmance of Hines's conviction of felony murder.

      40

      In Ford, this Court held that for a felony to serve as the basis for a felony murder conviction, it had to be inherently dangerous by its very nature or had to be committed under circumstances creating a foreseeable risk of death.[2] We also held that the imputation of malice that justifies the felony murder rule is dependent on the "perpetrator's life-threatening [875] state of mind accompanying [the] commission [of the underlying felony]."[3] In Ford, however, we did not specify how to determine whether a particular felony, either by its nature or as it was committed, was inherently dangerous to human life. Because of the severe punishments that accompany a conviction of murder[4] and because it is illogical to impute malice for purposes of felony murder "`"from the intent to commit a felony not [foreseeably] dangerous to human life,"'"[5] I conclude that for purposes of our felony-murder doctrine, a felony is inherently dangerous per se or as committed if it carries "`a high probability' that [a human] death will result."[6] This standard will ensure that our felony murder rule is not inappropriately expanded by "reducing the seriousness of the act which a defendant must commit in order to be charged with murder."[7]

      41

      In the present case, I conclude that the possession of a firearm by Hines was not committed in a fashion that was inherently dangerous and that carried a high probability that death would result. The fact that Hines was hunting, a dangerous sport; the fact that he had been drinking before he went hunting; the fact that he was hunting at dusk; and the fact that he fired a shot when he knew other hunters were in the general area in which he was hunting may establish that Hines was negligent, but do not establish that his acts created a high probability that death to a human being would result, or that he had a "life-threatening state of mind."[8] Moreover, as for the fatal shot, Hines testified that he heard a turkey gobble, that he "saw it fan out," and that he then fired at the object. Even though Hines may not, as stated by the majority, have positively identified his target as a turkey, he had to make a split-second decision regarding his target and concluded, based on hearing a gobble and seeing something "fan out," that the object was a turkey. I cannot conclude that, under these circumstances, the failure of the hunter to identify his target beyond doubt carried a high probability that a human being would be killed or that he acted with a "life-threatening state of mind."[9] The death in this case is clearly a tragic incident, and Hines's conduct before and after the shooting was reprehensible. But the sanction of life in prison for murder should be reserved for cases in which the defendant's moral failings warrant such punishment. Here, the application of the felony murder statute to Hines's actions punishes him more severely than his culpability merits. In this regard, Hines will be serving the same punishment—life in prison—as an arsonist convicted of felony murder who firebombed an apartment that he knew was occupied, causing the death of two young children,[10] and the same punishment as an armed robber convicted of felony murder who entered a store with a firearm and shot and killed a store employee.[11] This result is unwarranted and unnecessary, as Hines could be prosecuted and convicted of an appropriate lesser crime, such as involuntary manslaughter[12] or the misuse of a firearm while hunting.[13]

      42

      [876] One final note. Hunting is a time-honored recreational activity encouraged by the State of Georgia and enjoyed by many of our State's citizens. No doubt a number of hunters have probably engaged in negligent hunting practices similar to those in this case. Although I do not condone such careless practices, neither can I agree with subjecting so many hunters to the possibility of spending life in prison when they do not fastidiously follow proper hunting procedures and accidentally shoot a fellow hunter.

      43

      For the foregoing reasons, I dissent to the majority opinion.

      44

      [1] The crime was committed on April 8, 2001. On August 7, 2001, a grand jury indicted Hines for two counts of felony murder, possession of a firearm by a convicted felon, misuse of a firearm while hunting, possession of a firearm during the commission of a felony, tampering with evidence, and four counts of false statement. The State withdrew three of the false statement counts. On August 31, 2001, the jury acquitted Hines of one count of felony murder and convicted him of all remaining counts. The trial court merged the felon in possession conviction into the felony murder conviction and sentenced Hines to life imprisonment for felony murder followed by five years imprisonment for the possession of a firearm while committing a felony conviction. The court also imposed concurrent sentences on the remaining convictions. Hines moved for a new trial on September 21, 2001, and amended his motion on March 14, 2002. The trial court denied the motion for a new trial on March 26, 2002. Hines filed his notice of appeal on April 23, 2002. The case was docketed in this Court on July 22, 2002, and submitted for decision on September 16, 2002.

      45

      [2] See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      46

      [3] Lawrence v. State, 274 Ga. 794, 794, 560 S.E.2d 17 (2002); see also Jackson v. State, 276 Ga. 408, 577 S.E.2d 570 (2003).

      47

      [4] Jackson, 276 at 410, n. 3; Dumas v. State, 266 Ga. 797, 799, 471 S.E.2d 508 (1996).

      48

      [5] Hulme v. State, 273 Ga. 676, 678, 544 S.E.2d 138 (2001).

      49

      [6] Id.

      50

      [7] See, e.g., Metts v. State, 270 Ga. 481, 482, 511 S.E.2d 508 (1999) (felon in possession of firearm inherently dangerous when defendant pointed loaded, cocked gun at window when he knew person was standing on the other side).

      51

      [8] 262 Ga. 602, 423 S.E.2d 255 (1992).

      52

      [9] Id. at 602-603, 423 S.E.2d 255.

      53

      [10] See also Metts, 270 Ga. at 482, 511 S.E.2d 508; Chapman v. State, 266 Ga. 356, 357-358, 467 S.E.2d 497 (1996) (misuse of firearm while hunting is an inherently dangerous felony that will support felony murder).

      54

      [11] Johnson v. Knebel, 267 Ga. 853, 855-856, 485 S.E.2d 451 (1997).

      55

      [12] Id. at 857, 485 S.E.2d 451.

      56

      [13] Id.

      57

      [14] See generally Henry v. State, 265 Ga. 732, 736-737, 462 S.E.2d 737 (1995) (interpreter offered expert opinion although not offered as expert witness); Stewart v. State, 246 Ga. 70, 75, 268 S.E.2d 906 (1980) (court implicitly recognized witness's expert status when it overruled objection to obviously competent witness's expert testimony); Bacon v. State, 225 Ga.App. 326, 327-329, 483 S.E.2d 894 (1997) (same).

      58

      [15] Crawford v. State, 267 Ga. 543, 544, 480 S.E.2d 573 (1997) (punctuation omitted).

      59

      [16] See Willis v. State, 274 Ga. 699, 701, 558 S.E.2d 393 (2002).

      60

      [17] See Haynes v. State, 269 Ga. 181, 183, 496 S.E.2d 721 (1998).

      61

      [18] See Cox v. State, 274 Ga. 204, 206, 553 S.E.2d 152 (2001).

      62

      [19] See Jenkins v. State, 270 Ga. 607, 609, 512 S.E.2d 269 (1999).

      63

      [20] See Smith v. State, 267 Ga. 372, 374, 477 S.E.2d 827 (1996); Dennis v. State, 263 Ga. 257, 258, 430 S.E.2d 742 (1993).

      64

      [21] See Camphor v. State, 272 Ga. 408, 413-414, 529 S.E.2d 121 (2000).

      65

      [22] See Willingham v. State, 268 Ga. 64, 66, 485 S.E.2d 735 (1997).

      66

      [23] See Duffie v. State, 273 Ga. 314, 316, 540 S.E.2d 194 (2001) (when jury requests recharge on particular part of case, court in its discretion may recharge them in full or only upon the point requested).

      67

      [1] 262 Ga. 602, 423 S.E.2d 255 (1992).

      68

      [2] Id. at 603, 423 S.E.2d 255. Accord Hulme v. State, 273 Ga. 676, 678, 544 S.E.2d 138 (2001).

      69

      [3] Ford, 262 Ga. at 603, 423 S.E.2d 255.

      70

      [4] See Model Penal Code and Commentaries, Pt. II, § 210.2, p. 36 (Official Draft and Revised Comments 1980).

      71

      [5] Ford, 262 Ga. at 603, 423 S.E.2d 255, quoting State v. Goodseal, 553 P.2d 279, 285 (Kan.1976).

      72

      [6] People v. Patterson, 49 Cal.3d 615, 262 Cal. Rptr. 195, 778 P.2d 549, 558 (1989). Accord People v. Hansen, 9 Cal.4th 300, 36 Cal.Rptr.2d 609, 885 P.2d 1022, 1026 (1994).

      73

      [7] Patterson, 262 Cal.Rptr. 195, 778 P.2d at 558.

      74

      [8] Ford, 262 Ga. at 603, 423 S.E.2d 255.

      75

      [9] Id. See also Cable v. Commonwealth, 243 Va. 236, 415 S.E.2d 218 (1992) (under circumstances similar to present case, defendant was convicted of involuntary manslaughter; his conviction was affirmed on appeal, but the dissent, taking the position that no crime had been committed, noted that the Supreme Court of Virginia had only decided one other case (also an involuntary manslaughter case) dealing with hunting accidents).

      76

      [10] Wolfe v. State, 273 Ga. 670, 544 S.E.2d 148 (2001).

      77

      [11] Taylor v. State, 275 Ga. 461, 569 S.E.2d 520 (2002).

      78

      [12] OCGA § 16 5 3.

      79

      [13] OCGA § 16 11 108. Hines was in fact convicted of this crime in the present case.

    • 3.5 People v. Burton

      1
      6 Cal.3d 375 (1971)
      2
      491 P.2d 793
      3
      99 Cal. Rptr. 1
      4
      THE PEOPLE, Plaintiff and Respondent,
      v.
      BOZZIE BRYANT BURTON III, Defendant and Appellant.
      5
      Docket No. Crim. 15823.
      6

      Supreme Court of California.

      7
      December 28, 1971.
      8

       

      9

      [378] COUNSEL

      10

      Patrick J. Sampson, under appointment by the Supreme Court, for Defendant and Appellant.

      11

      Evelle J. Younger, Attorney General, William E. James, Assistant Attorney General, and Norman N. Flette, Deputy Attorney General, for Plaintiff and Respondent.

      12

      OPINION

      13

      SULLIVAN, J.

      14

      Defendant Bozzie Bryant Burton III, a 16-year-old minor was charged by information with two counts of murder (Pen. Code, § 187) and a third count of assault with intent to commit murder. (Pen. Code, § 217.) After a jury trial he was found guilty as charged on two counts of murder in the first degree and guilty of assault (Pen. Code, § 240), a lesser offense than that charged in the third count, but necessarily included therein. Defendant was sentenced to the term prescribed by law on the two counts of murder and to 180 days in county jail on the count of assault, each sentence to run concurrently. He appeals from the judgment of conviction.

      15

      Defendant contends that his confession to the above charges was obtained in violation of the rules announced in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974] and that its admission into evidence over his objection constitutes reversible error. We agree and, therefore, reverse the judgment.

      16
      Count Three (Assault on Vicky Price)
      17

       

      18

      On December 13, 1968, at 9:15 p.m., Vicky Price was sitting in her car, which was parked in a parking lot at a shopping center in Compton. Defendant approached her car on the driver's side, put a gun to her head and ordered her to get out of the car. While she was attempting to comply with this order, she heard a voice addressing her from the other side of the car. The next thing she knew defendant's gun had gone off and wounded her. Defendant fled.

      19
      Counts One and Two (Murders of Joseph and Isabelle Diosdado)
      20

       

      21

      Six days later on December 19, 1968, about noon, the dead bodies of Joseph and Isabelle Diosdado were discovered lying on the floor of the back [379] room of their feed store in Compton. They had each been shot twice. The cash register was empty and coins were scattered on the floor. The bullet recovered from Vicky Price and the bullets removed from the Diosdados were all fired from the same gun.

      22

      On February 14, 1969, at 7 a.m., defendant was arrested and taken to the Compton police station. Upon arrival at the police station, he was placed in a cell near the door, then underwent booking procedures for 30 to 40 minutes, and finally was removed to another cell for questioning. While he was being booked, his father arrived at the police station and asked to see him. The request was refused. The police thereafter advised defendant of his Miranda rights, interrogated him, and obtained a confession.

      23

      In fact, defendant made statements on three separate occasions in which he: (1) admitted shooting Vicky Price, but claimed he was strongly under the influence of marijuana; (2) admitted being present at the shooting of the Diosdados, but denied doing the shooting and (3) admitted shooting the Diosdados and explained the circumstances in detail.

      24

      When the case was called for trial, defendant moved, pursuant to section 405 of the Evidence Code, to exclude the confession on the ground that it was (1) involuntary and (2) illegally obtained in violation of Miranda v. Arizona, supra, 384 U.S. 436. A hearing was held prior to the selection of the jury. At the conclusion of the hearing the trial judge, without specifically reviewing the evidence, found that the People had met its burden of showing the confession was voluntary, not coerced and not illegally obtained.

      25

      Defense counsel pointed out to the court in summation at the end of the hearing that "on several occasions he [defendant] asked to see his parents, and also has heard testimony from a parent, namely the father, that on several occasions he asked to see the minor, and on each occasion each was refused permission one to see the other," but did not specifically urge the defendant's request to see his parents invoked his Fifth Amendment privilege under Miranda v. Arizona, supra, 384 U.S. 436.[1] Since defendant now raises that contention before us, we must first decide whether it was established that defendant did in fact request to see his parents.

      26

      [380] Defendant testified: "That morning when I came in [taken to police station for booking] after they had put me in one cell and put me in another cell, and I asked them could I see my parents, and they said, `No'." This testimony was never contradicted. When urged to the court by defense counsel, it elicited no argument from opposing counsel, nor indication of disbelief from the trial court. It was not at all necessary for the trial court to disbelieve this testimony to determine that defendant, who on three separate occasions made a full confession, did so freely and voluntarily after having specifically and intelligently waived his Miranda rights, which a police officer had carefully explained to defendant.

      27

      The People urge, however, that the testimony of Officer Armstrong, quoted in the margin,[2] adequately contradicted defendant's testimony, because the officer's testimony indicates he was not with defendant when defendant claimed to make the above statement. Defense counsel indicated to defendant in his questioning with respect to this matter that defendant's request had been directed to Officer Armstrong, that it was the latter who had denied the request and defendant agreed.

      28

      We think the above is inadequate to contradict defendant's testimony. At no time did Officer Armstrong or any other officer deny defendant requested to see his parents. We are persuaded, after a close reading of the testimony presented at the section 405 hearing, that whether defendant did or did not request to see his parents was not considered a major issue at that time. It has become so upon appeal. Defendant's testimony that he requested to see his parents was uncontradicted at that time, and stands unchallenged now when viewed upon review except for the quoted testimony of Officer Armstrong, which in itself is inadequate to meet the People's burden of showing that defendant did not say what he testified he did say. Therefore, we are satisfied that the record adequately establishes that defendant requested to see his parents and that this request was denied.

      29

      It is unclear from the record whether this request was made during transfer from the booking cell to the interview room or in the interview room itself. However, the request was made just prior to the commencement of interrogation and at a time when defendant's father was at the police station.

      30

      [381] Prior to commencing questioning, but subsequent to the denial of defendant's request to see his parents, a police officer carefully explained to defendant his Miranda rights. The record shows that when thus advised of his rights, defendant indicated to the officer that he understood such explanation and that he waived these rights. Thereafter he made a full confession on three separate occasions.

      31

      (1) Defendant, although not claiming this confession to have been involuntary, contends that it was unlawfully obtained since his request to see his parents at or near the commencement of interrogation was an invocation of his Fifth Amendment privilege under the rules established in Miranda v. Arizona, supra, 384 U.S. 436, and further elaborated in this state in People v. Fioritto (1968) 68 Cal.2d 714 [68 Cal. Rptr. 817, 441 P.2d 625]; People v. Ireland (1969) 70 Cal.2d 522 [75 Cal. Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323] and People v. Randall (1970) 1 Cal.3d 948 [83 Cal. Rptr. 658, 464 P.2d 114]. We agree.

      32

      The United States Supreme Court in Miranda, noting that incommunicado interrogation is at odds with an individual's right not to be compelled to incriminate himself, stated: "Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice." (Miranda v. Arizona, supra, 384 U.S. 436, 458 [16 L.Ed.2d 694, 714].) In Miranda, the Supreme Court set down four warnings which must be given persons in custodial surroundings, and then elaborated on the procedure subsequent to the giving of such warnings, as follows: "Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. [Fn. omitted.] At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." (Miranda v. Arizona, supra, 384 U.S. 436, 473-474 [16 L.Ed.2d 694, 723].) In People v. Randall, supra, 1 Cal.3d 948, 954, we observed that "This obligation on the police to entirely terminate custodial interrogation upon invocation of the Fifth Amendment privilege is one of the primary `protective devices' fashioned by Miranda. [Fn. omitted.]"

      33

      In cases where the suspect makes no express assertion, the crucial question is what behavior is necessary to constitute an invocation of the Fifth Amendment privilege. We have stated several times that no particular [382] form of words or conduct is necessary to constitute such an invocation. "A suspect may indicate such a wish in many ways." (People v. Ireland, supra, 70 Cal.2d 522, 535.) "To strictly limit the manner in which a suspect may assert the privilege, or to demand that it be invoked with unmistakable clarity (resolving any ambiguity against the defendant) would subvert Miranda's prophylactic intent." (People v. Randall, supra, 1 Cal.3d 948, 955.)

      34

      (2) Any words or conduct which "reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time [fn. omitted]" (People v. Randall, supra, 1 Cal.3d 948, 956) must be held to amount to an invocation of the Fifth Amendment privilege. In Fioritto we held that a refusal by a suspect to sign a waiver of his constitutional rights amounted to an invocation of his Fifth Amendment privilege. In Ireland we held that when the suspect stated "Call my parents for my attorney" he thereby asserted the privilege. In Randall we held that a suspect's telephone call to his attorney in and of itself invoked the privilege.

      35

      In this case we are called upon to decide whether a minor's request to see his parents "reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time." (People v. Randall, supra, 1 Cal.3d 948, 956.) It appears to us most likely and most normal that a minor who wants help on how to conduct himself with the police and wishes to indicate that he does not want to proceed without such help would express such desire by requesting to see his parents. For adults, removed from the protective ambit of parental guidance, the desire for help naturally manifests in a request for an attorney. For minors, it would seem that the desire for help naturally manifests in a request for parents. It would certainly severely restrict the "protective devices" required by Miranda in cases where the suspects are minors if the only call for help which is to be deemed an invocation of the privilege is the call for an attorney. It is fatuous to assume that a minor in custody will be in a position to call an attorney for assistance and it is unrealistic to attribute no significance to his call for help from the only person to whom he normally looks — a parent or guardian. It is common knowledge that this is the normal reaction of a youthful suspect who finds himself in trouble with the law.

      36

      The People advance two arguments in opposition. First, they contend that defendant's request to see his parents did not clearly give notice to the police that he was asserting his Fifth Amendment privilege, since such request could have been made for many purposes. We rejected the same argument in Randall. There the People argued that a telephone call to an attorney could manifest a desire to get bail, or merely inform him [383] of his arrest just as well as manifesting a desire to remain silent or have the attorney present, and that the equivocal nature of the telephone call made it distinguishable from Ireland where the defendant upon being asked whether he had anything to say, responded "Call my parents for my attorney." We there said: "In any event, we are not disposed to assume as a general matter that a telephone conversation with an attorney such as occurred in the case at hand is not a manifestation of a suspect's intention to assert his privilege.... The People have the burden of demonstrating that a questioned confession meets the constitutional tests of admissibility. [Citations.] When, as appears here, the suspect to the knowledge of the police completes a call to his attorney, the People — if they contend that the fact of such a call should not be considered an invocation of the privilege — must affirmatively demonstrate that the suspect was not thereby indicating a desire to remain silent until he had obtained the full advice of his counsel." (People v. Randall, supra, 1 Cal.3d 948, 957.)

      37

      (3) Similarly here we are not disposed to assume as a general matter that a request by a minor at or near the inception of interrogation to see his parents is not an indication of that minor's unwillingness to continue talking with police or of a desire for help in how to conduct himself with police and thus not a manifestation of that minor's intention to assert his privilege. Therefore, the People have the burden of affirmatively demonstrating that such was not the desire on the part of defendant. Here, the People did not meet this burden.

      38

      Secondly, the People contend that because defendant's request occurred prior to the interrogation and prior to the giving of the Miranda warning, it was unlikely that the police would understand the request as an invocation of the privilege. The Supreme Court clearly stated in Miranda, as quoted, ante, page 381, that "[i]f the individual indicates ... at any time prior to ... questioning, that he wishes to remain silent, the interrogation must cease." (Fn. omitted; italics added.) (Miranda v. Arizona, supra, 384 U.S. 436, 473-474.) Indeed, this argument really seems to be a further elaboration of the lack of notice argument discussed above, and the short answer is that the People have offered nothing in the way of affirmative proof that defendant did not intend to assert his privilege.

      39

      (4) Accordingly we hold that when, as in the instant case, a minor is taken into custody and is subjected to interrogation, without the presence of an attorney, his request to see one of his parents, made at any time prior to or during questioning, must, in the absence of evidence [384] demanding a contrary conclusion, be construed to indicate that the minor suspect desires to invoke his Fifth Amendment privilege. The police must cease custodial interrogation immediately upon exercise of the privilege. The police did not so cease in this case, the confession obtained by the subsequent questioning was inadmissible, and, therefore, the admission of such confession was prejudicial per se and compels reversal of the judgment on all counts. (People v. Randall, supra, 1 Cal.3d 948, 958; and cases there cited.) (5) The admission of this confession constitutes reversible error even though it was subsequently preceded by a knowing and intelligent waiver of the privilege, as we held under identical circumstances in Fioritto, Ireland and Randall, because: "After the initial assertion of the privilege, the defendant is entitled to be free of police-initiated attempts to interrogate him. Any statements made by a defendant in response to such questioning cannot be characterized as voluntary." (People v. Randall, supra, 1 Cal.3d 948, 958.)

      40

      We now turn to defendant's contention that it was error, in the circumstances of this case, to instruct the jury on first degree felony murder, because the underlying felony was armed robbery. He claims that armed robbery is an offense included in fact within the offense of murder and, therefore, under the rule announced in People v. Ireland, supra, 70 Cal.2d 522, 538-540 as applied in People v. Wilson (1969) 1 Cal.3d 431 [82 Cal. Rptr. 494, 462 P.2d 22], such offense cannot support a felony-murder instruction.[3]

      41

      "Murder," as defined in Penal Code section 187, "is the unlawful killing of a human being ... with malice aforethought." In Ireland, we said: "The felony-murder rule operates (1) to posit the existence of malice aforethought in homicides which are the direct causal result of the perpetration or attempted perpetration of all felonies inherently dangerous to human [385] life, and (2) to posit the existence of malice aforethought and to classify the offense as murder of the first degree in homicides which are the direct causal result of those six felonies specifically enumerated in section 189 of the Penal Code. [Citations.]" (People v. Ireland, supra, 70 Cal.2d 522, 538.)

      42

      (6) The net effect of this imputation of malice by means of the felony-murder rule is to eliminate the possibility of finding unlawful killings resulting from the commission of a felony to be manslaughter, rather than murder. (7) Even intentional killings can be mitigated to voluntary manslaughter if the killing occurred with sufficient provocation to arouse the reasonable man to a fit of passion or sudden quarrel or if the defendant did not attain the mental state of malice due to mental illness, mental defect or intoxication. (People v. Stines (1969) 2 Cal. App.3d 970, 976 [82 Cal. Rptr. 850].) (8) Unintentional killings in the appropriate circumstances may well be mitigated to involuntary manslaughter, or even not be subject to criminal penalty.

      43

      In Ireland the "defense ... rested its entire case upon a contention that defendant's mental state at the time of his act — as affected by cumulative emotional pressure and the ingestion of alcohol and prescribed medications was not that required for murder." (People v. Ireland, supra, 70 Cal.2d 522, 531.) The defendant in that case shot his wife with a gun. The judge instructed the jury on the felony-murder rule, utilizing assault with a deadly weapon as the supporting felony. The effect of such instruction, as Ireland pointed out (70 Cal.2d at p. 539, fn. 13) was, therefore, to substantially eviscerate the defense of diminished capacity to negative malice, since malice was imputed. The net effect of this imputation would be to hold that all intentional killings accomplished by means of a deadly weapon were murder regardless of the circumstances and could never be mitigated to manslaughter, since all such killings included in fact an assault with a deadly weapon. We held that such effect was impermissible; "This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." (Fn. omitted.) (People v. Ireland, supra, 70 Cal.2d 522, 539.)

      44

      In Wilson the underlying felony which supported the felony-murder instruction was burglary — specifically entry coupled with the intent to commit assault with a deadly weapon. Since in Ireland we had held that assault with a deadly weapon could not support an instruction on second degree felony murder, in Wilson we were faced with the question whether [386] it could support first degree felony murder because coupled with an entry. We concluded there was no meaningful distinction between assaults with deadly weapons indoors and outdoors, saying: "Where the intended felony of the burglar is an assault with a deadly weapon, the likelihood of homicide from the lethal weapon is not significantly increased by the site of the assault. Furthermore, the burglary statute in this state includes within its definition numerous structures other than dwellings as to which there can be no conceivable basis for distinguishing between an assault with a deadly weapon outdoors and a burglary in which the felonious intent is solely to assault with a deadly weapon." (People v. Wilson, supra, 1 Cal.3d 431, 441.) Thus, even though burglary is one of the felonies specifically enumerated in Penal Code section 189, we excluded burglary from the operation of the felony-murder rule in those cases where the intended felony was assault with a deadly weapon for the reasons stated in Ireland.

      45

      Defendant contends that the language and reasoning of Ireland and Wilson compel us to hold that armed robbery is included in fact within murder and, therefore, cannot support a felony-murder instruction.[4] He argues that armed robbery includes as a necessary element assault with a deadly weapon by the following chain of reasoning: robbery "is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear" (Pen. Code, § 211); thus robbery is assault (force or fear directed against a person) coupled with larceny, which when accomplished by means of a deadly weapon necessarily includes in fact assault with a deadly weapon; any charge of murder with respect to a killing arising out of armed robbery then necessarily includes in fact assault with a deadly weapon and cannot support a felony-murder instruction.

      46

      The net effect of defendant's argument would be to eliminate the application of the felony-murder rule to all unlawful killings which were committed [387] by means of a deadly weapon, since in each case the homicide would include in fact assault with a deadly weapon, even if the homicide resulted from the commission of one of the six felonies (arson, rape, mayhem, robbery, burglary or lewd and lascivious acts upon the body of a child) enumerated in section 189 of the Penal Code. It is, of course, possible to interpret our language in Ireland[5] and Wilson to mean merely that if the facts proven by the prosecution demonstrate that the felony offense is included in fact within the facts of the homicide and integral thereto, then that felony cannot support a felony-murder instruction. However, we reject this interpretation of that language and its consequent assertion that the felony-murder rule has been abolished in all homicides accomplished by means of a deadly weapon as unwarranted both in logic and in principle.

      47

      We conclude that there is a very significant difference between deaths resulting from assaults with a deadly weapon, where the purpose of the conduct was the very assault which resulted in death, and deaths resulting from conduct for an independent felonious purpose, such as robbery or rape, which happened to be accomplished by a deadly weapon and therefore technically includes assault with a deadly weapon. Our inquiry cannot stop with the fact that death resulted from the use of a deadly weapon and, therefore, technically included an assault with a deadly weapon, but must extend to an investigation of the purpose of the conduct. In both Ireland and Wilson the purpose of the conduct which eventually resulted in a homicide was assault with a deadly weapon, namely the infliction of bodily injury upon the person of another. The desired infliction of bodily injury was in each case[6] not satisfied short of death. Thus, there was a single course of conduct with a single purpose.

      48

      However, in the case of armed robbery, as well as the other felonies enumerated in section 189 of the Penal Code, there is an independent felonious purpose, namely in the case of robbery to acquire money or property belonging to another. (9) Once a person has embarked upon a course of conduct for one of the enumerated felonious purposes, he comes directly within a clear legislative warning — if a death results from his commission of that felony it will be first degree murder, regardless of the [388] circumstances. (10) This court has reiterated numerous times that "The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit." (People v. Washington (1965) 62 Cal.2d 777, 781 [44 Cal. Rptr. 442, 402 P.2d 130].) The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof.

      49

      Wilson, when properly understood, does not eliminate this rule as urged by defendant, but merely excludes from its effect one small area of conduct, which would be irrationally included, due to the unusual nature of burglary. The key factor as indicated earlier in the enumerated felonies is that they are undertaken for a felonious purpose independent of the homicide. (11) In the normal case, burglary is also undertaken with an independent felonious purpose, namely to acquire the property of another. In such instances the felony-murder rule would apply to burglary as well, even if the burglary were accomplished with a deadly weapon. However, in Wilson the entry was coupled with the intent to commit assault with a deadly weapon, the defendant in that case bursting through the bathroom door intending to do violent injury upon the body of his wife. We were there presented with the exact situation we faced in Ireland, namely a single purpose, a single course of conduct, except that in Wilson the single course of conduct happened to include an entry, and thus technically became burglary all of which brought the incident within the ambit of section 189 of the Penal Code. We merely excluded from the first degree felony-murder rule the special circumstances of Wilson where the entry was with the intent to commit assault with a deadly weapon because we found them indistinguishable from those in Ireland. We regard the holding in Wilson as specifically limited to those situations where the entry is coupled with the intent to commit assault with a deadly weapon.

      50

      Defendant in this case by embarking upon the venture of armed robbery brought himself within the class of persons who the Legislature has concluded must avoid causing death or bear the consequences of first degree murder. (12) The trial judge quite correctly instructed on felony murder based on homicides directly resulting from the commission of armed robbery.

      51

      [389] (13) Defendant next contends that section 405 of the Evidence Code, by making the trial judge's determination of the voluntariness of a confession final, violates his right to trial by jury embodied in article I, section 7 of the state Constitution. He argues that it was error for the trial judge not to instruct the jury to determine for itself the question of the voluntariness of a confession, once the trial judge had made a preliminary determination of voluntariness.

      52

      Prior to the enactment of section 405 of the Evidence Code, effective January 1, 1967, the law was as defendant now urges. We held in People v. Gonzales (1944) 24 Cal.2d 870 [151 P.2d 251] that once the trial judge had made an initial determination that the confession was voluntary, the defendant was entitled to present evidence to the jury for its final determination as to voluntariness. In People v. Bevins (1960) 54 Cal.2d 71 [4 Cal. Rptr. 504, 351 P.2d 776], we held that the court had a duty to instruct the jury sua sponte to determine for itself the voluntariness of the confession, and if it found it involuntary, then to disregard the confession altogether.

      53

      The Legislature by enacting section 405 of the Evidence Code specifically rejected this rule. In the legislative committee comment to the section, the reason for the change is carefully explained: "The existing law is based on the belief that a jury, in determining the defendant's guilt or innocence, can and will refuse to consider a confession that it has determined was involuntary even though it believes that the confession is true. Section 405, on the other hand, proceeds upon the belief it is unrealistic to expect a jury to perform such a feat. Corroborating facts stated in a confession cannot but assist the jury in resolving other conflicts in the evidence. The question of voluntariness will inevitably become merged with the question of guilt and the truth of the confession; and, as a result of this merger, the admitted confession will inevitably be considered on the issue of guilt. The defendant will receive a greater degree of protection if the court is deprived of the power to shift its fact-determining responsibility to the jury and is required to exclude a confession whenever it is not persuaded that the confession was voluntary."

      54

      This procedure has received at least the tacit approval of the United States Supreme Court (see Jackson v. Denno (1963) 378 U.S. 368, 378 [12 L.Ed.2d 908, 916, 84 S.Ct. 1774, 1 A.L.R.3d 1205]). The identical procedure is utilized to determine the question whether evidence has been obtained in violation of the law of search and seizure and has been approved by this court. (People v. Gorg (1955) 45 Cal.2d 776, 780-781 [291 P.2d 469].) The Legislature's finding that a defendant will be better protected by thrusting the full responsibility upon the trial judge is entirely [390] reasonable. Moreover, the Legislature has quite reasonably indicated that it is removing from the jury a task that was in all practical terms impossible — in short, nothing of substance has been removed from the province of the jury. Defendant has suggested no reason why the voluntariness of a confession must be determined by a jury while the legality of the seizure of evidence need not be. Neither has defendant cited any authority indicating that a determination of the voluntariness of a confession is an inherent part of the right to a jury trial expressed in article I, section 7 of the state Constitution. We reject defendant's contention that section 405 of the Evidence Code violates article I, section 7 of the state Constitution.

      55

      Defendant finally contends that the instruction given with respect to proof of intent (CALJIC No. 73)[7] conflicted with and vitiated the instruction given on diminished capacity (CALJIC No. 305.1 (New) 1967 Pocket Part).[8] The gist of the instruction on intent was to limit lack of sound mind to idiocy, lunacy, or insanity and thus order the jury to find the requisite sound mind supporting the requisite intent unless the defendant was an idiot, a lunatic or insane. Furthermore, this instruction directed the jury to assume defendant was sane. However, the instruction on diminished capacity quite correctly informed the jury that a "substantially reduced mental capacity, whether caused by mental illness, intoxication or any other cause" could negate the ability to form specific required mental states. There is certainly a potential conflict in the instruction which could well mislead the jury.

      56

      We need not now decide whether such a conflict would be fatal, but for purposes of guidance of the court upon retrial direct the trial court's attention [391] to CALJIC (3d ed.)[9] numbers 3.34, 3.35 and 8.77 where the problem has been perceived and very adequately answered. In the note on use of the instruction on the proof of intent (CALJIC (3d ed.) No. 3.34), the editors suggest that trial judges delete the second paragraph directing the jury to assume defendant is of sound mind if there is evidence of diminished capacity. It is noteworthy that in the revised instruction on intent, sound mind is left undefined and the sentence referring to idiots, lunatics or insane people has been deleted. We are satisfied that this is a correct and fully adequate way to handle the situation.

      57

      The judgment is reversed.

      58

      Wright, C.J., Peters, J., Tobriner, J., Mosk, J., and Burke, J., concurred.

      59

      McCOMB, J.

      60

      I dissent. I would affirm the judgment for the reasons expressed [392] by Mr. Justice Allport in the opinion prepared by him for the Court of Appeal, Second Appellate District, Division Three (People v. Burton, 2 Crim. 18352, filed June 17, 1971, certified for nonpublication).

      61

      [1] The People do not object that the contention that defendant's request to see his parents invoked his Fifth Amendment privileges has been raised too late. We agree, since one of the stated grounds for objecting to the admission of the confession was that it was illegally obtained in violation of Miranda v. Arizona, supra, 384 U.S. 436, and defendant's testimony with respect to his request to see his parents was highlighted to the court by defense counsel in his summation.

      62

      [2] "Except for the time lapse. I was with him from the house to the Police Department, and he was delivered by me and one or two other officers to the booking area. At that time when he was turned over to the jailer. I then left and went to my office and, as I testified before, a time lapse of approximately 30 to 40 minutes — I am not sure. I cannot testify to the exact time — that I was away from him during the booking processing."

      63

      [3] The trial judge instructed the jury, in pertinent part, as follows: "Concerning the charges of murder in Counts I and II of the information, there are two sets of principles of law which may apply, depending on your findings of fact. [Par.] The first is called the felony-murder doctrine which I will define for you and which only applies if you find that there was a robbery or attempted robbery committed by the defendant. [Par.] The second set of principles contains all possible doctrines of law that can apply to a murder charge other than the felony-murder doctrine, and I will define these principles for you also. [Par.] Now first, here is the felony-murder doctrine: [Par.] The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a result of the commission or attempt to commit the crime of robbery and where there was in the mind of the perpetrator the specific intent to commit such crime of robbery is murder of the first degree. [Par.] The specific intent to commit robbery and the commission or attempt to commit such crime must be proved beyond a reasonable doubt. [Par.] If you find that the defendant was intoxicated at the time of the alleged offense, you should consider his intoxication in determining whether the defendant had the specific intent to commit robbery." (CALJIC No. 302.F (2d rev.).) (Italics added.)

      64

      [4] At oral argument counsel for defendant claimed that People v. Sears (1970) 2 Cal.3d 180 [84 Cal. Rptr. 711, 465 P.2d 847] added further support to his position. In Sears a husband, living apart from his wife, unlawfully entered her home armed with an iron bar, attacked her and, in the ensuing fracas, killed his stepdaughter. We held that the felony-murder instruction predicated upon burglary committed by an entry coupled with the intent to commit assault with a deadly weapon was erroneous under the authority of Ireland and Wilson. The distinguishing factor between Wilson and Sears was the fact that the evidence could be construed to show that the husband entered with the intent to commit assault only upon the wife and that therefore the assault upon the stepdaughter was a collateral felony. However, this court concluded that the doctrine of transferred intent applied, so that the entry with intent to commit assault upon the wife was the sole underlying felony. The problem of transferred intent is not raised in the instant case. Sears insofar as pertinent to this case in no way expanded or altered Wilson.

      65

      [5] "We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." (Fn. omitted.) (People v. Ireland, supra, 70 Cal.2d 522, 539.)

      66

      [6] Wilson involved two separate entries, one into the apartment through the front door and one into the bathroom. Each was coupled with the intent to commit assault with a deadly weapon. However, the crucial entry for the purpose of the first degree felony-murder instruction, was the entry into the bathroom by defendant bearing a shotgun for the purpose of inflicting violent injury upon the body of his wife.

      67

      [7] CALJIC No. 73 provides: "The intent with which an act is done is manifested by the circumstances attending the act, the manner in which it is done, the means used, and the sound mind and discretion of the person committing the act. All persons are of sound mind who are neither idiots nor lunatics nor affected with insanity.

      68

      "For the purposes of the issues now at trial you must presume that the defendant was sane at the time of his alleged conduct which, it is charged, constituted the crime described in the information."

      69

      [8] CALJIC No. 305.1 (New) provides: "If you find from the evidence that at the time the alleged crime was committed, the defendant had substantially reduced mental capacity, whether caused by mental illness, intoxication or any other cause, you must consider what effect, if any, this diminished capacity had on the defendant's ability to form any of the specific mental states that are essential elements of murder. Thus, if you find that the defendant's mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, premeditate, deliberate, or form an intent to kill, you cannot convict him of a wilful, deliberate and premeditated murder of the first degree. Also, if you find that his mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, harbor malice aforethought, as it has been defined for you, you cannot find him guilty of murder of either the first or second degree."

      70

      [9] CALJIC No. 3.34 provides: "The intent with which an act is done is shown by the circumstances attending the act, the manner in which it is done, the means used, and the soundness of mind and discretion of the person committing the act.

      71

      "[For the purposes of the case on trial, you must assume that the defendant was of sound mind at the time of his alleged conduct which, it is charged, constituted the crime described in the information.]"

      72

      CALJIC No. 3.35 provides: "When a defendant is charged with a crime which requires that a certain specific intent or mental state be established in order to constitute the crime or degree of crime, you must take all the evidence into consideration and determine therefrom if, at the time when the crime allegedly was committed, the defendant was suffering from some abnormal mental or physical condition, however caused, which prevented him from forming the specific intent or mental state essential to constitute the crime or degree of crime with which he is charged.

      73

      "If from all the evidence you have a reasonable doubt whether defendant was capable of forming such specific intent or mental state, you must give defendant the benefit of that doubt and find that he did not have such specific intent or mental state."

      74

      CALJIC No. 8.77 provides: "If you find from the evidence that at the time the alleged crime was committed, the defendant had substantially reduced mental capacity, whether caused by mental illness, mental defect, intoxication, or any other cause, you must consider what effect, if any, this diminished capacity had on the defendant's ability to form any of the specific mental states that are essential elements of murder and voluntary manslaughter.

      75

      "Thus, if you find that the defendant's mental capacity was diminished to the extent that you have a reasonable doubt whether he did, maturely and meaningfully, premeditate, deliberate, and reflect upon the gravity of his contemplated act, or form an intent to kill, you cannot find him guilty of a willful, deliberate and premeditated murder of the first degree.

      76

      "Also, if you find that his mental capacity was diminished to the extent that you have a reasonable doubt whether he did harbor malice aforethought, you cannot find him guilty of murder of either the first or second degree.

      77

      "Furthermore, if you find that his mental capacity was diminished to the extent that he neither harbored malice aforethought nor had an intent to kill at the time the alleged crime was committed, you cannot find him guilty of either murder or voluntary manslaughter."

    • 3.6 Barnett v. State

      1
      263 P.3d 959 (2011)
      2
      2011 OK CR 28
      3
      Eric Jose BARNETT, Appellant,
      v.
      The STATE of Oklahoma, Appellee.
      4
      No. F-2009-698.
      5

      Court of Criminal Appeals of Oklahoma.

      6
      November 1, 2011.
      7

       

      8

      [960] James Dennis, Sapulpa, OK, attorney for defendant at trial.

      9

      O.R. Barris, III, Asst. District Attorney, Okmulgee, OK, attorney for the State at trial.

      10

      Lee Ann Jones Peters, Okla. Indigent Defense System, Norman, OK, attorney for appellant on appeal.

      11

      W.A. Drew Edmondson, Attorney General, Lori S. Carter, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

      12

      [961]

      13

       

      14
      OPINION
      15

       

      16

      LEWIS, Vice-Presiding Judge.

      17

      ¶ 1 Eric Jose Barnett, Appellant, was tried by jury and found guilty of second degree felony murder, in violation of 21 O.S.2001, § 701.8(2), in the District Court of Okmulgee County, Case No. CF-2009-2.[1] The jury sentenced Appellant to twenty-three (23) years imprisonment. The Honorable H. Michael Claver, District Judge, pronounced judgment and sentence accordingly.[2] Mr. Barnett appeals the following propositions of error:

      18

      1. The trial court's refusal to instruct the jury on Appellant's theory of defense deprived him of his rights to a fair trial and to the due process of law, in violation of the Sixth and Fourteenth Amendments of the Federal Constitution and in violation of Article 2, §§ 7, 19, and 20 of the Oklahoma Constitution;

      2. The trial court's exclusion of extrinsic evidence concerning Vernon Sutton's violent character deprived the defendant of his right to present a defense, to a fair trial, and to due process guaranteed by the Sixth and Fourteenth Amendments to the Federal Constitution and by Article 2, §§ 7, 19, and 20 of the Oklahoma Constitution;

      3. Prosecutorial misconduct deprived Appellant of his constitutional right to a fair trial and due process of law, in violation of the Fifth, Sixth, and Fourteenth Amendments of the Federal Constitution and in violation of Article 2, §§ 7, 19, 20, and 21 of the Oklahoma Constitution;

      4. Mr. Barnett was denied effective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the Federal Constitution and Article 2, §§ 7 and 20 of the Oklahoma Constitution;

      5. Appellant's conviction for second degree felony murder must be vacated because the merger doctrine prohibits using the act that caused the decedent's death as a predicate felony in a felony murder prosecution;

      6. Under the unique circumstances of this case, imposition of a twenty-three year sentence for a seventeen-year-old offender is excessive and should be modified;

      7. The accumulation of errors deprived Appellant of a fair trial and reliable verdict.

      19
       
      20
      FACTS
      21

       

      22

      ¶ 2 Appellant lived with his mother and younger sister in Okmulgee, Oklahoma. On the evening of August 21, 2008, he and two friends were standing outside his house when the decedent, Vernon Sutton, and another man pulled up to the house, got out of the car, and walked toward them. Sutton apparently knew one of the men standing with Appellant from prison. Appellant noticed that Sutton had one blue eye. A black man with one blue eye had raped his mother years before and been convicted of the crime. Appellant went inside and told his mother that the man who had raped her was standing in the yard.

      23

      ¶ 3 Appellant's mother came outside to confront Sutton, who was in fact the convicted rapist who had assaulted her. She asked him if he remembered her. Sutton smiled and said he knew where he was. Appellant's mother angrily demanded that he leave. When he refused, Appellant picked up a length of lumber and went toward Sutton. Sutton prepared to fight, but a passing Okmulgee police officer intervened. When Appellant's mother explained who Sutton was, the officer made him leave the premises. Sutton smirked at Appellant and his mother and told them he would be back, and that he "had something" for them.

      24

      [962] ¶ 4 Almost a month later, Appellant received a text from one of his friends, Breylon Griffin, who had been present during the confrontation with Vernon Sutton. Griffin's text told Appellant "dat n*gg*r's ova here" at another house in Okmulgee. Appellant called Griffin and learned that Sutton was visiting with some other men at a house in Okmulgee. Appellant called Jennifer McNac and asked her to give him a ride to that location. She initially refused but then changed her mind. Appellant was already walking toward the location when McNac picked him up.

      25

      ¶ 5 As they neared the house, Appellant put the hood of his jacket over his head and covered his face with a bandana. When they reached the house where Vernon Sutton and others were standing, Appellant leaned out and fired three or four shots, fatally striking Sutton in the chest and abdomen. Five days after the shooting, Appellant told police in an interview that he was out of town when the shooting happened. At trial, Appellant admitted the shooting, but said he killed Sutton because he was afraid Sutton would come back to harm his family.

      26
      ANALYSIS
      27

       

      28

      ¶ 6 In Proposition One, Appellant challenges the trial court's refusal to give requested instructions on self-defense and defense of another. We review the trial court's rulings on requested instructions for abuse of discretion. Dill v. State, 2005 OK CR 20, ¶ 11, 122 P.3d 866, 869. An instruction on a theory of defense is required "when evidence has been introduced at trial that is adequate to raise that defense, i.e., to establish a prima facie case" of that defense. Malone v. State, 2007 OK CR 34, ¶ 22, 168 P.3d 185, 196. Appellant's claim must fail. Evidence that Appellant feared Sutton does not raise an issue of self defense or defense of another, where the evidence showed that Appellant had no reasonable belief that he or his family were in imminent danger of being attacked or killed by Sutton at the time Appellant used deadly force. Instruction Nos. 8-2, 8-6, OUJI-CR(2d); Perryman v. State, 1999 OK CR 39, ¶ 9, 990 P.2d 900, 903-04. Proposition One is denied.

      29

      ¶ 7 In Proposition Two, Appellant argues that the trial court erred in excluding certain evidence offered by the defense tending to prove the violent character of the victim. We review these rulings for abuse of discretion, and find none. Hancock v. State, 2007 OK CR 9, ¶ 72, 155 P.3d 796, 813. Proposition Two requires no relief.

      30

      ¶ 8 Proposition Three claims that prosecutorial misconduct denied Appellant a fair trial. Due to the lack of a timely objection to any of the challenged statements, Appellant has waived all but plain error. Matthews v. State, 2002 OK CR 16, ¶ 38, 45 P.3d 907, 920. This Court will reverse for prosecutorial misconduct where grossly improper and unwarranted argument affects a defendant's rights. Howell v. State, 2006 OK CR 28, ¶ 11, 138 P.3d 549, 556. The comments challenged on appeal were not improper. Warner v. State, 2006 OK CR 40, ¶ 179, 144 P.3d 838, 888; Hogan v. State, 2006 OK CR 19, ¶ 91, 139 P.3d 907, 936. Proposition Three is denied.

      31

      ¶ 9 Appellant argues in Proposition Four that he was denied the effective assistance of counsel. Appellant also filed an application for evidentiary hearing on his Sixth Amendment claims pursuant to Rule 3.11(B)(3)(b), Rules of the Court of Criminal Appeals, Title 22, Ch. 18 (2011), App. Ineffective counsel claims must overcome a strong initial presumption that counsel rendered reasonable professional assistance, by showing: (1) that trial counsel's performance was deficient; and (2) that he was prejudiced by the deficient performance. If Appellant demonstrates that counsel's representation was objectively unreasonable under prevailing professional norms, he must also show that he suffered prejudice, defined as a reasonable probability that, but for counsel's unprofessional errors, the outcome of the trial or sentencing would have been different Hancock, 2007 OK CR 9, ¶¶ 106-107, 155 P.3d 796, 821. To warrant an evidentiary hearing under Rule 3.11(B)(3)(b)(i), Appellant's application and supporting materials must set forth "sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was [963] ineffective for failing to utilize or identify the complained-of evidence." Reviewing Appellant's application and his arguments, we find no evidentiary hearing is required and no relief is warranted. Proposition Four is without merit.

      32

      ¶ 10 In Proposition Five, Appellant argues that his conviction for second degree felony murder violates the merger doctrine, or independent crime requirement, recognized by our case law in Quillen v. State, 2007 OK CR 22, 163 P.3d 587, and earlier cases. Although the State charged Appellant in Count 2 with first degree malice aforethought murder, the trial court also instructed the jury on the lesser included offense of second degree felony murder in the commission of using a vehicle to facilitate the intentional discharge of a firearm.[3] The jury acquitted Appellant of first degree murder, but convicted him of second degree murder in the commission of the underlying felony.[4] Counsel's failure to object to the second degree felony murder instruction at trial waived all but plain error. Eizember v. State, 2007 OK CR 29, ¶ 110, 164 P.3d 208, 236. We therefore consider whether Appellant's conviction of second degree murder in the commission of this underlying felony is plain error; that is, an error which goes "to the foundation of the case," or which takes from a defendant "a right which was essential to his defense." Simpson v. State, 1994 OK CR 40, ¶ 12, 876 P.2d 690, 695.

      33

      ¶ 11 Under this Court's merger doctrine, or independent crime requirement, "[i]n order for the taking of human life in the commission of a felony to constitute murder, the precedent felony must constitute an independent crime not included within the resulting homicide." Sullinger v. State, 1984 OK CR 44, ¶ 3, 675 P.2d 472, 473. The merger doctrine is a historical feature of our case law, and is not based on any statutory or constitutional text. Quillen, 2007 OK CR 22, ¶ 4, 163 P.3d at 589.[5] This Court in Quillen recently reaffirmed its adherence to the merger doctrine as it "has been applied in Oklahoma for many years," first being mentioned in Jewell v. Territory, 4 Okla. 53, 43 P. 1075 (Okla.1896), and "a part of Oklahoma's jurisprudence ever since." Quillen, 2007 OK CR 22, ¶ 3, 163 P.3d 587, 589.

      34

      ¶ 12 In Quillen, the defendant was a drug addict who gave birth at the home of a friend. Believing that her baby was healthy, she took the baby home. The defendant also feared that child welfare officials would take the baby away from her at the hospital because of her cocaine use. Later that evening, the baby looked pale and his breathing seemed shallow. The defendant noticed blood in his diaper when she changed him. She called her grandmother for advice and then tied some string tightly around the baby's umbilical cord stump, and later fell asleep with the baby at her side. In the night, the baby bled to death through the umbilical cord, due to the defendant's failure to seek medical care. Id., 2007 OK CR 22, ¶ 5 n. 3, 163 P.3d at 590 n. 3.

      35

      ¶ 13 The State charged the defendant with first degree child abuse murder. The trial court also instructed the jury on the lesser included offense of second degree murder, in the commission of the underlying felony of [964] child neglect.[6] The jury convicted the defendant of this lesser offense. Id., 2007 OK CR 22, ¶ 1, 163 P.3d at 589. The appellant in Quillen argued on appeal that this conviction violated the merger doctrine, because her commission of felony child neglect—failing to get medical care for her newborn child—was not a felony independent from the homicidal act. The State argued that the plain language of the second degree murder statute authorized a conviction where the killing of a human being results from the commission of any felony other than the unlawful acts enumerated in the first degree felony murder statute. Id., 2007 OK CR 22, ¶¶ 3-4, 163 P.3d at 589. The State reasoned that this Court's application of the merger doctrine to void a conviction authorized by the plain language of the statute would defeat legislative intent, and urged the Court to abandon the merger doctrine. Id.

      36

      ¶ 14 This Court in Quillen rejected the State's arguments, finding that the merger doctrine was "not based on statutory language" but derived from policy considerations:

      37
      [W]ithout the merger doctrine, any person who commits a felony, other than one enumerated for First Degree Felony Murder, from which a death that is not excusable or justified results, can be prosecuted for Second Degree Felony Murder. Although the State argues that such concerns are no longer viable, we find this argument unpersuasive. We further disagree with the State's argument that the merger doctrine is contra to clear legislative intent. The fact that this Court has recognized the merger doctrine for over one hundred years without legislative intervention lends credibility to the conclusion that this Court's application of the merger doctrine is not at odds with legislative intent.
      38

       

      39

      Id., 2007 OK CR 22, ¶ 4, 163 P.3d at 589-90 (citing Tarter v. State, 1961 OK CR 18, ¶¶ 40-44, 359 P.2d 596, 602). Based on the facts, the Court found that the merger doctrine required reversal of the murder conviction:

      40
      [T]he felony charge upon which Appellant's Second Degree Felony Murder conviction is predicated, Child Neglect, was not separate from the act which caused the death. Therefore, we find that the underlying felony merged into the homicide and could not be used to sustain the Second Degree Felony Murder conviction.
      41

       

      42

      Id., 2007 OK CR 22, ¶ 5, 163 P.3d at 590. The Court also held that the appropriate remedy was to modify appellant's conviction to the underlying felony of child neglect. In this regard, the Court reasoned:

      43
      In finding the Appellant guilty of Second Degree Felony Murder the jury necessarily found the evidence sufficient to prove the felony of Child Neglect beyond a reasonable doubt. Therefore, we modify Appellant's sentence to this lesser crime and modify the sentence to fifteen years imprisonment.
      44

       

      45

      Id., 2007 OK CR 22, ¶ 5, 163 P.3d at 589-90.

      46

      ¶ 15 Appellant argues persuasively that the predicate felony of using a vehicle to facilitate the intentional discharge of a firearm is not independent from the homicidal act of shooting Vernon Sutton, and that his conviction therefore violates the merger doctrine set forth in Quillen. This case sharply presents the question of whether the merger doctrine remains an appropriate limitation of the statutory definition of second degree felony murder. After careful consideration, the Court abandons this judicially created limitation on second degree felony murder and overrules Quillen.

      47

      ¶ 16 Since our decision in Quillen, the Court has continued its deliberations about the nature and purpose of the merger doctrine. Two judges dissented in Quillen. Judge Lumpkin's dissent questioned the need for the Court's modern application of the historic merger doctrine. He noted that at time of Jewell v. Territory in 1896, murder was not separated by degrees in the territorial statute, and felony murder—which carried a sentence of death or life imprisonment—included all felonies, as it had at common law.[7] The merger doctrine as we know [965] it today is found in the territorial supreme court's syllabus in Jewell, appended as a clause following a statement of the statutory felony murder rule:

      48
      Homicide is murder, under the third subdivision [of the murder statute], "when perpetrated without any design to effect death, by a person engaged in the commission of any felony"; and this means some felony as defined by statute other than that of the killing itself
      49

       

      50

      Jewell, 4 Okla. 53, 43 P. 1075 (syllabus)(emphasis added). Judge Lumpkin observed in Quillen that the "source of the language added to the statutory felony murder provision, and the language relied upon by this Court for years, is not clearly discernable" from the Jewell opinion, and the additional clause "was nothing more than a judicial attempt to legislate an amendment to a statute passed by the Legislature." Quillen, 2007 OK CR 22, 163 P.3d at 591 (Lumpkin, P.J., concurring in part and dissenting in part). Moreover, though the territorial supreme court in Jewell certainly mentioned the merger doctrine, the facts of that case did not call for its application. Thus, the doctrine's inaugural appearance on our jurisprudential scene was in dicta. Id.

      51

      ¶ 17 Judge Lumpkin argued that the merger rule set out in Jewell and followed in later cases[8] originally developed in response to the draconian scope of the common law felony murder rule and similar statutes, like the territorial felony murder statute in Jewell. Those crimes were invariably capital, and without a merger doctrine, the commission of any felony that resulted in death, including circumstances that might ordinarily be manslaughter, would be subsumed in the broad statutory definition of murder and carry a possible death sentence. The merger doctrine was a humane, judicially crafted policy designed "to limit the application of firstdegree felony-murder when the Legislature had failed to do so." Quillen, 2007 OK CR 22, ¶¶ 5-6, 163 P.3d at 591-92 (Lumpkin, P.J., concurring in part and dissenting in part).

      52

      ¶ 18 Evidence for this historical understanding of the merger doctrine abounds. In Tarter v. State, 1961 OK CR 18, ¶¶ 41-44, 359 P.2d 596, 601, the Court's discussion gave some background on the merger doctrine without directly applying it. The defendant in Tarter was convicted of murder. On appeal he argued the trial court should have instructed the jury on the lesser offense of manslaughter. Id., 1961 OK CR 18, ¶¶ 1, 29, 359 P.2d at 600. The State responded that because the defendant killed the victim in the commission of an assault with a deadly weapon, he was at least guilty of felony murder, and no manslaughter instruction was required. Id., 1961 OK CR 18, ¶ 40, 359 P.2d at 601. The Court rejected this suggestion out of hand, citing the syllabus from Jewell, and its statement that the defendant must commit "some felony as defined by statute other than that of the killing itself." Id., 1961 OK CR 18, ¶ 41, 359 P.2d at 601-02.

      53

      ¶ 19 The Court in Tarter also cited cases from Kansas and New York. In the New York case, People v. Wagner, 245 N.Y. 143, 156 N.E. 644 (1927), the defendant was convicted of felony murder based on the commission of a felonious assault on the victim that resulted in the death. The Court of Appeals of New York found this conviction was in error:

      54
      We think it self-evident that the trial judge committed error when he charged that the killing of Peter Basto may have been effected while the defendant was engaged in a felonious assault upon him, and, basing their conclusion thereupon, might determine that the defendant was guilty of murder [966] in the first degree. If this were not error, then every intentional killing, by means of a dangerous weapon, regardless of deliberation and premeditation, would constitute the crime of murder in the first degree, since every such killing must be preceded by the direction of such a weapon against the body of the person killed, which in itself would constitute a felonious assault. The law is clear, however, that the precedent felony must constitute an independent crime not included within the resulting homicide.[9]
      55

       

      56

      Id. at 646 (citing People v. Huter, 184 N.Y. 237, 77 N.E. 6 (1906); People v. Spohr, 206 N.Y. 516, 100 N.E. 444 (1912)) (emphasis added). The Kansas case, State v. Fisher, 120 Kan. 226, 243 P. 291 (1926), also shows how the merger doctrine narrowed the definitional scope of the common law felony murder rule and statutes that followed it:

      57
      It is the contention of the state that if murder is committed in the perpetration or the attempt to perpetrate any other felony it is murder in the first degree; hence, that if the boy, John Michael Foley, met his death at the hands of defendant while defendant was committing an assault with a deadly weapon, under such circumstances that it amounted to a felony under any statute pertaining thereto, the offense is murder in the first degree. This contention cannot be sustained. The effect of it would be to make any homicide, not excusable or justified, which, by our statute, is defined to be manslaughter in any of the degrees or murder in the second degree, to constitute murder in the first degree. In other words, there could, under this interpretation of the statute, be no such thing as any lower degree of homicide than murder in the first degree.
      58

       

      59

      Id. at 293; see also, T. Corcoran, Felony Murder in New York, 6 Fordham L.Rev. 43, 48 (1937)(arguing that "[m]urder in the second degree and some cases of manslaughter in the first and second degrees involve felonious assault on the person killed and yet if these assaults were not held to be merged in the homicide they would all be murder in the first degree," and noting that "[i]t is manifest that the doctrine of felony murder is in need of some reformation in New York").

      60

      ¶ 20 Judge Lumpkin maintained in Quillen that the policy concerns justifying the merger doctrine in older cases like Wagner and Fisher—i.e., that every felonious assault resulting in death could be punished as murder without the necessity of proving malice—are no longer present in Oklahoma law.

      61
      First-degree felony murder is now limited to a handful of enumerated felonies. Thus, the English common law policy decisions to escape the onerous penalties imposed on felony convictions are no longer viable. In addition, a plain reading and literal application of § 701.8(2) also will not subsume other forms of homicide. In addition to second-degree felony murder, a homicide is second-degree murder when committed by an act which is imminently dangerous to another person and evincing a depraved mind, but without any premeditated design to affect the death of any individual. Homicide is first-degree manslaughter when a killing is committed: 1) during the commission of a misdemeanor; 2) in the heat of passion; or 3) in an unnecessary attempt to prevent the person killed from committing a crime. Construing the second-degree murder statute together with the first-degree manslaughter statute, it is clear the Legislature intended for any felony, as defined by statute, to serve as the basis for a second-degree felony murder conviction unless the defendant was acting while in the heat of passion or in an unnecessary attempt to resist a crime. Further, second degree manslaughter is committed by a person who acts negligently, but does not commit a felony. Therefore, applying § 701.8 to any felony, not listed in § 701.7(B), does not subsume second-degree manslaughter.
      62

       

      63

      [967] Quillen, 2007 OK CR 22, ¶ 9 n. 4, 163 P.3d at 593 n. 4 (Lumpkin, P.J., concurring in part and dissenting in part)(internal citations omitted).

      64

      ¶ 21 Judge Lumpkin concluded that the merger doctrine is a legal remnant that now frustrates, rather than advances, the proper enforcement of the statutes on felony murder.

      65
      The Oklahoma Legislature has clearly enunciated its intent and set out the criteria for both first and second-degree felony murder ... Section 701.8(2) is recognition by the Legislature that a homicide can occur during the commission of felonies other than those specifically enumerated under the first-degree felony murder statute and under circumstances not warranting a first-degree murder charge Appellant's failure to seek medical attention for her son, which was inherently and potentially dangerous to her son's life in light of the facts and circumstances surrounding both the predicate felony and the homicide, brings this case within the historical definition of second degree felony murder [C]riminal liability for the baby's murder based upon Appellant's willful failure to seek medical attention (commission of the felony of child neglect) is an appropriate application of the second-degree felony murder statute.
      66

       

      67

      Quillen, 2007 OK CR 22, ¶¶ 9-13, 163 P.3d at 593 (Lumpkin, P.J., concurring in part and dissenting in part)(emphasis added).

      68

      ¶ 22 In my Quillen dissent, I argued that the Legislature "clearly authorized a conviction for second-degree murder in a case like this, where a homicide is `perpetrated by a person engaged in the commission of any felony'" not enumerated in the first degree felony murder statute. Id., 2007 OK CR 22, ¶ 3, 163 P.3d at 595 (Lewis, J., concurring in part and dissenting in part). In addition to the merger doctrine, the Court had already placed significant limitations on the plain language of the second degree felony murder statute, including the requirements of "a nexus between the underlying felony and the victim's death," and that the underlying felony "must be inherently or potentially dangerous to human life." Id. (quoting Malaske v. State, 2004 OK CR 18, ¶ 5, 89 P.3d 1116, 1118).

      69

      ¶ 23 Given these limitations, I found the Court's application of the merger doctrine unnecessary, and the unusual remedy of modifying the murder conviction to the underlying felony inconsistent with the merger theory itself:

      70
      Despite the narrow purpose to which the merger rule is directed, the Court's decisions in this area now poise it to void a felony murder conviction whenever there is either too much criminal nexus or not enough: too little relationship between the felony and the killing and liability will not attach; too direct a relationship and the lesser and greater offenses "merge" to the same effect. To these judicial complications of a seemingly straightforward legislative policy, today's opinion adds a nonsequitur: the lesser predicate crime first merges with the more serious act of killing and then (astonishingly) re-emerges to serve as the offense of conviction. The criminal homicide into which this lesser crime merged is then set at naught; its prosecution is abated forever. Previous findings of a merger violation resulted in reversal and remand for a new trial on a proper homicide charge. The remedy imposed here is unprecedented.
      71

       

      72

      Quillen, 2007 OK CR 22, ¶ 4, 163 P.3d at 595 (Lewis, J., concurring in part and dissenting in part) (citing Massie, 1976 OK CR 174, 553 P.2d 186; Tucker, 1984 OK CR 36, 675 P.2d 459; and Sullinger, 1984 OK CR 44, 675 P.2d 472) (emphasis added).

      73

      ¶ 24 Today the Court finds that what began as an early judicial limitation on the harshness of felony murder at common law could readily usurp the modern Legislature's constitutional authority to reasonably define the crime of felony murder.

      74
      The truth is that in this jurisdiction, no act is a crime unless made so by statute, and where the crime is defined by statute such definition must be relied on rather than the common law or some other definition of the act so classified as a crime.
      75

       

      76

      Traxler v. State, 96 Okl.Cr. 231, 243, 251 P.2d 815, 829 (1953)(emphasis added). In interpreting [968] and applying the criminal statutes, our purpose is to ascertain the intent of the Legislature, State v. District Court of Oklahoma County, 2007 OK CR 3, ¶ 11, 154 P.3d 84, 86, as evidenced primarily "in the ordinary meaning of the words of the statute construed in view of the connection in which they are used, and of the evil to be remedied." Traxler, 96 Okl.Cr. at 244, 251 P.2d at 829.

      77

      ¶ 25 The Legislature has defined second degree felony murder as the killing of a human being perpetrated by a person "engaged in the commission of any felony other than" the enumerated felonies in the first degree felony murder statute. 21 O.S.2001, § 701.8(2). The term "any" is defined by Webster's Third New International Dictionary 97(Unabridged ed., 1986) as:

      78
      1b: one, no matter what one: EVERY— used as a function word esp. in assertions or denials to indicate one that is selected without restriction or limitation of choice; 2b: ALL—used as a function word to indicate the maximum or whole of a number or quantity.
      79

       

      80

      We therefore interpret the phrase "any felony" in section 7018(2) to mean every felony other than those enumerated in the first degree felony murder statute. See also, State v. Williams, 24 S.W.3d 101, 115 (Mo.App.2000)(construing legislature's use of the phrase "any felony" as "all-comprehensive" in a felony murder statute).

      81

      ¶ 26 In State v. Harris, 69 Wash.2d 928, 421 P.2d 662 (1966)(en banc ),[10] the Supreme Court of Washington rejected the common law merger doctrine as a limitation on the statutory definition of second degree felony murder. In Harris, the defendant assaulted the victim, knocking her purse from her hand. When a .22 revolver tumbled from her purse, the defendant picked up the pistol and said, "I will kill all you sons of bitches." He then fired the pistol, fatally wounding the victim. In a non-jury trial, the court found no intent to kill the victim, but convicted the defendant of second degree felony murder, ruling that the defendant killed the victim in the commission of assault with a dangerous weapon. Id. at 663.

      82

      ¶ 27 The defendant challenged the conviction on appeal, urging the supreme court to "adopt the New York `merger rule,' which is that the precedent felony in a felony murder must constitute a crime not included in and independent of the homicide." Id.; see also Wagner, 156 N.E. at 646 (N.Y.1927), supra. Washington's felony murder statute, like Oklahoma's, distinguished between the crimes of first and second degree felony murder. The statute then in effect provided that the killing of a human being is murder in the second degree when "perpetrated by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a felony other than those enumerated" in the first degree felony murder statute. Id. (quoting Wash. Rev.Code § 9.48.040(2)).

      83

      ¶ 28 The supreme court in Harris acknowledged that the harshness of New York's felony murder rule might justify the application of a merger doctrine, but declined to impose the merger limitation on Washington's murder statute. The Court reasoned that the legislative classification of felony murder and other criminal homicides by degrees with distinct factual elements rendered a merger doctrine unnecessary:

      84

      Our legislature ... has made its own distinction in the matter of homicides occurring while committing, attempting to commit, or in withdrawing from the scene of certain felonies. If the felony be robbery, rape, burglary, larceny or arson in the first degree, the killing, though without design to effect death, is murder in the first degree. If the felony be other than the ones just named, the killing is murder in the second degree. A homicide not coming within the first and second-degree murder statutes, and being neither excusable nor justifiable, is manslaughter.[11]

      [969] The legislature has also specifically designated certain killings as manslaughter, i.e., killing unborn quick child;[12] killing by a vicious animal;[13] killing by overloading passenger vessel; killing by reckless operation of steamboat or engine; killing by intoxicated physician while treating a patient;[14] killing as result of unlawful keeping of explosives.[15] It has also added to our lexicon the crime of negligent homicide by means of a motor vehicle.[16]

      In light of the distinctions made in our own statutes, we see no reason why we should adopt the New York `merger rule,' i.e., that the precedent felony, if an assault on the person killed, is merged in the resulting homicide....

      In Washington, the felony murder must occur in the commission of, an attempt to commit, or in withdrawing from the scene of a felony, and must not be separate, distinct, and independent from it. Our legislature further avoided the merger problem by specifically designating the felonies which result in a first or seconddegree felony murder charge. Since an assault felony comes within the ambit of second-degree murder, the state must prove intent and premeditation in order to secure a first-degree murder conviction. Thus the rationale behind the New York merger rule is not applicable in Washington.

      85

       

      86

      Id. at 664-65 (internal citations omitted). We find the reasoning of Harris reflective of the situation in Oklahoma, and conclude that the current legislative classification of criminal homicides by their respective degrees, defined by distinct factual elements, obviates the need for the merger doctrine.

      87

      ¶ 29 The case before us today well illustrates the objectionable effects of the merger doctrine when applied to the facts. Riding from a protected position in a passing vehicle, Appellant repeatedly fired on an unsuspecting group of people standing near the street and killed a man. This fatal attack was neither excusable nor justifiable, and therefore it was a criminal homicide, either murder or manslaughter, under Oklahoma law. 21 O.S.2001, § 692 (homicide is either murder; manslaughter; excusable homicide, or justifiable homicide). The jury at trial clearly rejected the charge of malice aforethought murder. However, when the jury found Appellant guilty of second degree felony murder, it necessarily concluded, beyond a reasonable doubt, that Appellant feloniously used a vehicle to facilitate the intentional discharge of a firearm; that he did so "in conscious disregard for the safety of any other person or persons"; and that he caused the death of a human being as a result.

      88

      ¶ 30 Application of the merger doctrine in this case, by reversing Appellant's second degree murder conviction and modifying his conviction to the underlying felony, would be a miscarriage of justice. The mens rea associated with this type of drive-by shooting is either the malice aforethought of first degree murder, i.e., "that deliberate intention unlawfully to take away the life of a human being," 21 O.S.Supp.2006, § 701.7(A), which can be "inferred from the fact of killing," and "may be formed instantly" before the fatal act, 21 O.S.2001, §§ 702, 703; or the "depraved mind" emblematic of second degree murder, i.e., perpetrating an imminently dangerous act, "regardless of human life, although without any premeditated design to effect the death of any particular individual." 21 O.S. 2001, § 701.8(1). As a matter of history and policy, it is entirely reasonable for the Legislature to punish the killing of a person during the commission of this type of dangerous [970] felony as murder in the first or second degree.

      89

      ¶ 31 The felony crimes of assault and battery, child neglect, caretaker abuse and neglect, operation of a motor vehicle while intoxicated, unlawful possession and use of firearms and explosives, using a vehicle to facilitate intentional discharge of a firearm, and a host of other felonies, can have deadly consequences. The Legislature is well within reason to define killings during the commission of these dangerous felonies as murder, even when the felony is not "independent" of the act or acts resulting in death. Indeed, it is when such felonies destroy life that they are most deserving of the infamy and punishment of murder. Continued adherence to the merger doctrine, and the remedy as established in Quillen, would, in many instances, nullify the proper exercise of the Legislature's power to define and punish murder. We will not follow that course.

      90

      ¶ 32 Appellant killed a human being in the commission of using a vehicle to facilitate intentional discharge of a firearm. He is, at the very least, guilty of second degree murder under the plain language of section 701.8(2) of Title 21. His conviction for that offense is authorized by statute, and no plain error occurred. To the extent that Quillen, and earlier cases recognizing the merger doctrine as a limitation on the statutory definition of second degree felony murder, including Massie, 1976 OK CR 174, ¶ 16, 553 P.2d 186, 191, Tucker, 1984 OK CR 36, ¶ 3, 675 P.2d 459, 461, Sullinger, 1984 OK CR 44, ¶ 3, 675 P.2d 472, 473, and State v. McCann, 1995 OK CR 70, ¶ 3, 907 P.2d 239, 240, are inconsistent with our ruling today, those cases are overruled. Proposition Five is denied.

      91

      ¶ 33 In Proposition Six, Appellant argues that his sentence is excessive. We find that the sentence of twenty-three (23) years imprisonment does not shock the conscience of the Court and requires no relief. Rea v. State, 2001 OK CR 28, ¶ 5, 34 P.3d 148, 149.

      92

      ¶ 34 Appellant in Proposition Seven argues that reversal or modification is required due to cumulative error. As we find no error, there is no accumulation of error. Proposition Seven is denied. Smith v. State, 2007 OK CR 16, ¶ 81, 157 P.3d 1155, 1179.

      93
      DECISION
      94

       

      95

      The Judgment and Sentence of the District Court of Okmulgee County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

      96

      A. JOHNSON, P.J. and C. JOHNSON, J. specially concur.

      97

      LUMPKIN, J. and SMITH, J. concur.

      98

      A. JOHNSON, Presiding Judge, SPECIALLY CONCURRING.

      99

      ¶ 1 I agree with the decision to abandon the merger doctrine as a limitation to second degree felony murder. The purpose of the merger limitation—to bring fairness to the potential harshness of the felony murder rule—is a sound one. A fair and consistent application of this particular limitation, however, is difficult. In Quillen v. State, 2007 OK CR 22, 163 P.3d 587, this Court extended the application of the merger doctrine to the non-assaultive crime of felony child neglect in an apparent attempt to achieve a fair and appropriate balance between moral culpability and criminal liability in that case. This broad application of the merger limitation and the difficulty of its application in Quillen lead me to reexamine the continued validity of the merger limitation in this case. There may be future cases that test the wisdom of this decision. Nevertheless, I am confident that this Court's expressed commitment to maintaining the distinction between the different degrees and forms of murder, manslaughter and other homicide crimes will resolve any issues of unfair over-charging and undeserved convictions and sentences.

      100

      C. JOHNSON, Judge, SPECIALLY CONCURRING.

      101

      ¶ 1 It is with some hesitation that I concur in the Court's decision in this case to abandon the merger doctrine. The merger doctrine operates to preserve the different degrees of homicide crimes. I understand the [971] position of the majority regarding the historical context in which the merger doctrine developed, but I do not agree that the problem the merger doctrine seeks to remedy has been eliminated by the legislative classification of differing degrees of homicide. Second Degree Felony Murder allows a person who commits any felony other than one enumerated for First Degree Felony Murder, from which a death results that is not excusable or justified, to be prosecuted for Second Degree Felony Murder. The prosecutors make the determination of which crime to charge and the abandonment of the merger doctrine allows them, under these circumstances, unrestrained discretion to charge the greater offense of Second Degree Felony Murder to the exclusion of lesser degrees of homicide. Thus, in the absence of the merger doctrine, it will be even more important that district courts give instructions on lesser forms of homicide where such instructions are supported by the evidence as is required by Shrum v. State, 1999 OK CR 41, 991 P.2d 1032.

      102

      [1] Appellant was originally charged with Count 1, conspiracy to commit murder, and Count 2, murder in the first degree. The jury acquitted Appellant of these charges and found him guilty of the lesser included offense of second degree felony murder in the commission of using a vehicle to facilitate the intentional discharge of a firearm, in violation of 21 O.S.Supp.2007, § 652(B).

      103

      [2] Appellant must serve 85% of the sentence, pursuant to 21 O.S.Supp.2007, § 13.1(2).

      104

      [3] Title 21, O.S.Supp.2007, section 652(B) defines the elements of this offense:

      105

      Every person who uses any vehicle to facilitate the intentional discharge of any kind of firearm, crossbow or other weapon in conscious disregard for the safety of any other person or persons, including an unborn child as defined in Section 1-730 of Title 63 of the Oklahoma Statutes, shall upon conviction be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for a term not less than two (2) years nor exceeding life.

      106

      [4] Homicide is second degree murder "[w]hen perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out in [21 O.S.Supp.2006, § 701.7(B)]," i.e., the first degree felony murder statute. (emphasis added). 21 O.S.2001, § 701.8(2).

      107

      [5] Courts "have generally declined to hold that the merger doctrine implicates any principle of constitutional law." State v. Godsey, 60 S.W.3d 759, 774 (Tenn.2001). The merger doctrine we consider today is entirely separate from the principle of merger of offenses under the constitutional prohibition against multiple punishments for the "same offense" under the Double Jeopardy Clause. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); Perry v. State, 1993 OK CR 5, ¶ 7, 853 P.2d 198, 200-01 (convictions for both felony murder and underlying felony violate prohibition against double jeopardy).

      108

      [6] 21 O.S.Supp.2010, § 843.5(C).

      109

      [7] 4 W. Blackstone, Commentaries on the Laws of England 200-01 (1st. ed. 1769)("Also in many cases where no malice is expressed the law will imply it: ... And if one intends to do another felony, and undesignedly kills a man, this is also murder").

      110

      [8] The merger doctrine has been directly applied in only a few cases in more than a century. E.g., Massie v. State, 1976 OK CR 174, 553 P.2d 186, and Tucker v. State, 1984 OK CR 36, 675 P.2d 459 (both holding second degree murder convictions for killing in the commission of beating or injuring child violated the merger doctrine, as the felonious acts were not independent of the homicides); and Sullinger, 1984 OK CR 44, 675 P.2d 472 (holding second degree felony murder conviction violated the merger doctrine, where underlying felony of aggravated assault and battery on corrections officer was not independent from the acts causing death).

      111

      [9] The Court in Tarter noted that the Oklahoma murder statute in effect at the time (and since Jewell v. Territory) had been copied "almost verbatim" from the New York statute. Both of these statutes at the time defined the killing of a human being during the commission of any felony as an offense of capital (in New York, "first degree") murder. Tarter, 1961 OK CR 18, ¶ 43, 359 P.2d at 602.

      112

      [10] The Supreme Court of Washington's opinion in Harris was later abrogated by statutory amendment as recognized by In re Personal Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981, 983, and that abrogation was later reversed by statutory amendment as recognized by In re Personal Restraint of Alvarez, 127 Wash.App. 1050, 2005 WL 1300720 (Wash.App.2005)(not in P.3d).

      113

      [11] Compare 21 O.S.2001, § 711 (defining elements of manslaughter in the first degree).

      114

      [12] Compare 21 O.S.2001, § 714 (procuring destruction of unborn quick child as first degree manslaughter).

      115

      [13] Compare 21 O.S.2001, § 717 (owner of mischievous animal that kills another is guilty of manslaughter in the second degree).

      116

      [14] Compare 21 O.S.2001, § 712 (killing of patient by intoxicated physician is manslaughter in the first degree).

      117

      [15] Compare 21 O.S.2001, § 1368 (unlawful possession of explosives a felony); 21 O.S.Supp. 2010, § 1767.1 (use or threatened use of explosives).

      118

      [16] Compare 47 O.S.Supp.2005, § 11-903 (negligent homicide involving reckless operation of vehicle).

    • 3.7 Kohler v. State

      1

      203 Md.App. 110

      2
      Donald Stewart KOHLER 
      3
      v. 
      4
      STATE of Maryland.
      5

      Court of Special Appeals of Maryland.

      6

      No. 2150

      7

      Feb. 2, 2012.

      8

       

      9

      Salmon, J.

      10

      After using mostly fake money to purchase marijuana, Donald Kohler immediately fled from the seller, Warren Jerome Yates. Upon discovering the deception, Yates ran after Kohler and fired a shot that killed Shirley Worcester, an innocent bystander. Based on the State’s theory that Kohler aided and abetted Yates’s felony distribution of marijuana, a jury in the Circuit Court for Baltimore County convicted Kohler of second-degree felony murder and conspiracy to distribute marijuana.[1] He was also convicted of possession of marijuana with intent to distribute. Kohler was sentenced to thirty years for the felony murder, five consecutive years for the conspiracy, and a concurrent five years on the possession charge. In this appeal Kohler does not take issue with his conviction of possession with intent to distribute marijuana but claims that the evidence was insufficient to sustain his conviction for either second-degree felony murder or conspiracy to distribute marijuana.

      11

      The question of whether the evidence was sufficient to support appellant’s conviction for felony murder presents an issue of first impression. No reported Maryland appellate case addresses whether a buyer of a controlled dangerous substance (“CDS”) may be convicted of distribution based on the theory that he or she “participated” in the sale as a second degree principal, i.e., as an aider or abettor of the distribution. Consequently, there is no reported Maryland case that addresses the felony murder question now before us - whether a drug buyer, whose actions toward the seller in the course of the transaction precipitated the seller’s murder of an innocent victim, may be convicted of second degree felony murder.[2]

      12

      For the reasons explained below, we conclude that the evidence presented by the State was insufficient to convict appellant of distributing marijuana, and therefore also insufficient to convict him of felony murder and conspiracy to distribute marijuana.

      13
      I. FACTS
      14

       

      15

      Evidence considered by the jury that convicted Kohler, viewed in the light most favorable to the State (see Maryland Rule 4-324), is summarized below.[3]

      16

      On the morning of January 7, 2009, Kohler met Christopher Jagd and Justin Wimbush at a house in Baltimore County where Johnny Moore lived. Kohler said to Jagd and Wimbush that he would like to steal some marijuana. Kohler inquired of Jagd and Wimbush if they knew anyone who might have “some pounds” of marijuana. Wimbush said that he needed to “make some calls” but believed “he could get it.” Wimbush and Jagd then left. Later that day Wimbush, acting on Kohler’s behalf, called Warren Yates and the two negotiated the sales price ($1,100.00 per pound) and the quantity of marijuana to be sold (four pounds). Wimbush and Yates then made arrangements concerning the time and place of the delivery. Ultimately it was agreed that the sale would occur at the townhouse on South Hawthorn Street where Johnny Moore lived.

      17

      On the evening of January 7, 2009, Yates, accompanied by Billy Griffin, arrived at the townhouse in Yates’s car. Yates and Griffin entered the basement of Johnny Moore’s house where they joined Jagd, Wimbush and others. Kohler stayed upstairs. He told Jagd that he wanted to see the marijuana before he bought it. Griffin gave Jagd a pound of marijuana, Jagd then gave the pound to Wimbush who went upstairs and showed it to Kohler. Kohler then asked to see all four pounds, but his request was denied by Yates. Finally, tired of waiting, Griffin and Yates announced they were leaving and went upstairs.

      18

      Just as Griffin and Yates were about to leave, Kohler said that he still wanted to buy the drugs. The marijuana was given to Jagd. Jagd handed the drugs to Wimbush, who gave the contraband to Kohler. Kohler, in turn, gave Wimbush a bag with money in it. The bag went to Jagd, who gave it to Yates.

      19

      Yates told everyone not to leave until he counted the money, but as soon as Jagd handed over the bag, Kohler grabbed the drugs and ran out the door. Yates immediately reported to Griffin that the money Kohler gave to him in exchange for the drugs was fake.[4] Yates then chased after Kohler. During the chase Yates fired two shots, intending to hit Kohler. Kohler was not hit but one of the bullets went astray and killed Shirley Worcester, who happened to be standing nearby.

      20
      II. Discussion
      21
       
      22
      A. Second Degree Felony Murder
      23

       

      24

      Challenging the State’s theory that appellant abetted Yates in his distribution of marijuana, appellant argues that his second degree felony murder conviction must be reversed because the evidence was insufficient to convict him of the predicate felony of distribution. In support, appellant points out that, at trial, the State’s theory was not that appellant distributed the marijuana to others, but that appellant was “a participant” in the sale of marijuana by Yates because appellant was “the buyer” who “received it.” In appellant’s view, the State’s “participant” argument “demonstrates its concession” that appellant did not distribute marijuana[5]

      25

      The State maintains that “[u]nder the unique facts of this case, . . . the evidence was sufficient to convict [appellant] of distribution of marijuana and of the felony murder.” On appeal the State renews its trial argument that appellant “participated in the distribution . . . as a second degree principal” who aided and abetted the transaction by seeking “out Yates, inquir[ing] as to whether he could purchase four pounds of marijuana, set[ting] up the details of the exchange, and, ultimately, fraudulently entic[ing] Yates to relinquish possession of the marijuana.” Of significance, the State argues, is the fact that appellant’s “intent to defraud Yates and essentially trick him into transferring the drugs” was what ultimately led to the shooting of Ms. Worcester. As the trial court pointed out at sentencing, “but for Mr. Kohler’s actions in seeking to have these drugs sold to him and all of the machinations about which we heard during the trial and his decision to effectuate the purchase in the way that he did[,]” “the victim in this case would not have been killed[.]” In these limited circumstances, the State posits, a buyer like appellant, who “takes an active role in soliciting the distributor and arranging the transaction,” which “is occurring in the middle of the distribution chain, and not between the seller and user, . . . could be guilty of distribution.”

      26

      “When reviewing the sufficiency of the evidence to sustain appellant’s convictions, we must determine, after viewing the evidence in the light most favorable to the State, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Yates v. State, No. 2399, Sept. Term 2009, __ Md. App. ___, slip op. at 10 (filed December 22, 2011) (internal quotation marks and citations omitted). In Maryland, second degree felony murder is a common law crime premised on “the principle that a person participating in a felony is responsible for the natural and probable consequences of his or her criminal activity.”[6] Roary v. State, 385 Md. 217, 231, 236 (2005). See Yates, supra, slip op. at 11. “The modern felony-murder rule is ‘intended to deter dangerous conduct by punishing as murder a homicide resulting from dangerous conduct in the perpetration of a felony, even if the defendant did not intend to kill.’” Roary, 385 at 226-27 (citation omitted). “To obtain a conviction for felony murder, the State is required to prove the underlying felony and that the death occurred during the perpetration of the felony.” Id. at 227. Moreover, “the underlying felony must be sufficiently dangerous to life to justify application of the doctrine,” so that the jury must be able to find beyond a reasonable doubt that “the felonious conduct, under all the circumstances, made death a foreseeable consequence[.]” Id. at 229. It is not necessary, however, for the State to separately charge the defendant with the predicate felony. Id. at 227.

      27

      Maryland does not have an “aiding and abetting” statute. Nevertheless, under established case law, a person who did not actually commit the crime in question may nevertheless be guilty to the same degree as the person who did. Handy v. State, 23 Md. App. 239, 250, 251-52 (1974). Whereas principals in the first degree “commit the deed as perpetrating actors, either by their own hand or by the hand of an innocent agent,” principals in the second degree are “present, actually or constructively, aiding and abetting the commission of the crime, but not themselves committing it[.]” Id. at 251 (citations omitted). “An aider is one who assists, supports or supplements the efforts of another in the commission of a crime.” Id. “An abettor is one who instigates, advises or encourages the commission of a crime.” Id.

      28

      Here, the State charged appellant with conspiring with Yates and Griffin to distribute marijuana in violation of the statutory prohibition against distributing marijuana and with possession of marijuana with the intent to distribute, which is a statutory felony. See generally Md. Code (2002), § 5-602(1) of the Criminal Law Article (“Crim.”) (“a person may not . . . distribute or dispense a controlled dangerous substance”); Crim. § 5-602(2) (“a person may not . . . possess a controlled dangerous substance in sufficient quantity reasonably to indicate under all circumstances an intent to distribute or dispense a controlled dangerous substance”); Crim. § 5-607(a) (“a person who violates a provision of §§ 5-602 through 5-606 of this subtitle is guilty of a felony”). Cf. Rudder v. State, 181 Md. App. 426, 434 (2008) (conspiracy is a common law misdemeanor); Crim. § 1-102 (“The punishment of a person who is convicted of conspiracy may not exceed the maximum punishment for the crime that the person conspired to commit.”).

      29

      Although appellant was not charged with distribution in violation of Crim. § 5-602(1), the State argued throughout trial that the second degree felony murder charges against both appellant and Yates were predicated on distribution, and that appellant was guilty of distribution as a second degree principal, based on his role in arranging the sale and receiving the marijuana from Yates.[7] Defense counsel argued to the trial court, in support of his unsuccessful motions for acquittal, and to the jury in closing, that appellant could not be guilty of distribution or felony murder because a buyer cannot be convicted of distributing marijuana to himself.[8]

      30

      The trial court instructed the jury that “the State must prove that the Defendant[,] or another participating in the crime with the Defendant[,] committed or attempted to commit the crime of distribution of marijuana, which is a felony.” [9] The court did not define “distribution” or further explain who might qualify as “another participating in the crime with the Defendant[.]”

      31

      In this Court, appellant points out that the Supreme Court unanimously rejected an analogous “drug buyer as facilitator” theory in Abuelhawa v. United States, 556 U.S.816, 129 S. Ct. 2102, 2105 (2009), and that courts in other states have similarly rejected the notion that a buyer can be convicted of CDS distribution as a second degree principal. We agree that these cases are instructive.

      32

      In Abuelhawa, the issue was whether a buyer’s use of his cell phone to arrange drug purchases “facilitated” the seller’s felony drug distribution, in violation of a federal statute criminalizing the use of communication devices in “facilitating the commission of . . . a felony[.]” See Abuelhawa, 129 S. Ct. at 2104; 21 U.S.C. § 843(b). A unanimous Supreme Court held that the buyer, whose two separate purchases of one gram were misdemeanors, could not be convicted of the “facilitation” felony under that theory. Abuelhawa, 129 S. Ct. at 2104.

      33

      The Abuelhawa Court rejected the Fourth Circuit’s holding that the buyer’s use of his cell phone to purchase cocaine qualified as facilitation “because it ‘undoubtedly made [the seller’s] cocaine distribution easier; in fact, ‘it made the sale possible.’” Id. (quoting United States v. Abuelhawa, 523 F.3d 415, 421 (4th Cir. 2008)). Although “on the literal plane, the phone calls could be described as ‘facilitating’ drug distribution[,]” the Court concluded that “stopping there would ignore the rule that, because statutes are not read as a collection of isolated phrases, ‘[a] word in a statute may or may not extend to the outer limits of its definitional possibilities.’” Id. at 2105 (citations omitted). In Abuelhawa’s case, the Court explained,

      34

      the Government’s literal sweep of “facilitate” sits uncomfortably with common usage. Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be odd to speak of one party as facilitating the conduct of the other. A buyer does not just make a sale easier; he makes the sale possible. No buyer, no sale; the buyer’s part is already implied by the term “sale,” and the word “facilitate” adds nothing. We would not say that the borrower facilitates the bank loan.

      35

       

      36

      The Court also pointed out that “[t]he common usage that limits ‘facilitate’ to the efforts of someone other than a primary or necessary actor in the commission of a substantive crime has its parallel in” case law recognizing that “where a statute treats one side of a bilateral transaction more leniently, adding to the penalty of the party on that side for facilitating the action by the other would upend the calibration of punishment set by the legislature[.]” Id. at 2106. Explaining that Congress intended the meaning of the term “facilitate” to be “equivalent” to judicially interpreted “terms like ‘aid,’ ‘abet,’ and ‘assist[,]’” id. at 2106, the Court reasoned that the Government’s “broader reading of ‘facilitate’ would for practical purposes skew the congressional calibration of respective buyer-seller penalties[,]” by ignoring that “Congress meant to treat purchasing drugs for personal use more leniently than the felony of distributing drugs, and to narrow the scope of the communications provision to cover only those who facilitate a drug felony.” Id. at 2106-

      37

      In Hyche v. Indiana, 934 N.E.2d 1176, 1177 (Ind. Ct. App. 2010), a buyer (Hyche) made telephone arrangements to purchase ecstasy, then sent two accomplices to complete the transaction. During the exchange, one of the sellers was shot and killed. Although Hyche was not present during the transaction or shooting, he was convicted of dealing and felony murder.

      38

      The Indiana Court of Appeals held that, “[b]ecause the record is devoid of any evidence that Hyche was acting in any capacity other than that of a purchaser, it is insufficient to support a dealing conviction and therefore a felony murder conviction based thereon.” Id. at 1180. Interpreting a statute that defines “dealing” as a “‘transfer from one (1) person to another of a controlled dangerous substance,’” the court reasoned that Hyche

      39

      acted as the transferee, not the transferor. The fact that he called another person to request drugs no more makes him a dealer in ecstasy than it would make a customer who calls the florist a dealer in flowers. The State’s cited cases are factually distinguishable because each involved a defendant involved on the distribution side of the transaction. The record is devoid of any evidence that Hyche was acting on the distribution side. Thus, he cannot be said to have organized the delivery of ecstasy under the statute.

      40

       

      41

      Id. at 1179 (citations omitted).

      42

      In Rhode Island v. Oliveira and Hill, 882 A.2d 1097 (R.I. 2005), the Supreme Court of Rhode Island interpreted a statutory felony murder scheme in which the “sale, delivery, or other distribution” of controlled dangerous substances qualifies as a predicate for first degree felony murder, whereas the possession of CDS with the intent to manufacture or deliver constitutes a predicate for second degree felony murder. In that case, the prosecution presented evidence that after Oliveira and Hill arranged to buy $43,000 worth of cocaine from a seller who traveled from Texas to make the delivery, the seller was shot and killed. The two buyers were charged with first degree felony murder based on the State’s theory that “the killing occurred during the course of the ‘attempted receipt and redistribution of the drugs.’” Id. at 1107. At trial, Oliveira and Hill argued that “no reasonable reading of the statute encompasse[d] their actions because all the evidence . . . demonstrated that they were unsuccessfully attempting to purchase or possess a controlled substance, not to manufacture, sell, deliver, or distribute it.” Id. at 1108. The trial court agreed with the State, however, that the two buyers could be found “guilty of an attempt to distribute cocaine, based on the fact that they attempted to purchase over $43,000 worth of cocaine for further distribution.” Id.

      43

      The Supreme Court of Rhode Island reversed, holding that the distribution statute did “not encompass one who attempts to purchase or receive a controlled dangerous substance from a seller, distributor, or deliverer, absent proof that the purchaser or receiver has taken a substantial step toward reselling, redelivering, or redistributing the controlled substances.” Id. at 1117-18. The Court reasoned that “the terms ‘sell,’ ‘deliver,’ and ‘distribute’ all refer to the actions of one who transfer to another, and are the opposite of one who purchases or receives from another.” Id. at 1112. Moreover, it was not “absurd for the Legislature to distinguish between ‘delivery’ or ‘attempted delivery’ from ‘possession with intent to deliver’ for purposes of exposing a defendant to the mandatory sentence of life imprisonment” imposed under the first degree felony murder statute. Id. at 1117. Although

      44

      the evidence tying [Hill] and Oliveira to the attempt to possess a substantial quantity of cocaine was overwhelming and the intent to deliver element can be inferentially established from the quantity of cocaine they sought to acquire, the record is devoid of any evidence that establishes, either directly or inferentially, that [Hill] or Oliveira took any action in an effort to further distribute or deliver the cocaine. Consequently, we are constrained to conclude that their motions for judgment of acquittal on the first-degree felony-murder count, should have been granted.

      45

       

      46

      Id. at 1118.[10]

      47

      Like the subject case, Graves v. Kentucky, 17 S.W.3d 858 (Ky. 2000), concerned a “drug deal gone wrong.” In Graves, the three defendants attempted to buy a kilogram of cocaine in order to resell it. After they delivered the $27,000 purchase price to the sellers in a parking lot, the sellers drove away without delivering the cocaine. In two vehicles, the buyers chased the sellers at high speeds through Louisville streets, until one of the buyers’ vehicles struck and killed two innocent occupants of a vehicle that crossed its path. All three buyers were convicted of trafficking and “wanton murder,” which is Kentucky’s codified version of felony murder.

      48

      The Supreme Court of Kentucky held that there was sufficient circumstantial evidence to support the murder convictions against all three buyers based on the predicate felony of drug trafficking, which is a statutory felony encompassing both the attempted sale or transfer of CDS and the attempted possession of CDS with intent to sell or transfer. Id. at 862-63. Although the court did not specifically identify the buyers’ attempted possession of the cocaine as the factual basis for the trafficking charges against them, the evidence supported only that theory since the buyers never obtained the cocaine and there was no evidence they attempted to sell it in advance of possessing it. The evidence of attempted possession with intent to distribute was therefore sufficient to support the wanton murder convictions. Id. at 862-63.

      49

      Applying the lessons of Abuelhawa, Hyche, Oliveira & Hill and Graves, we conclude that treating drug buyers as second-degree principals in the drug sellers’ distribution stretches the concept of “participation” and “aiding and abetting” too far. The phrase “or dispense” 1) “means to deliver to the ultimate user or the human research subject by or in accordance with the lawful order of an authorized provider,”2) “dispense” indicates to prescribe, administer, package, label, or compound a substance for delivery. Crim. § 5-101(k). To “distribute” means, “with respect to a controlled dangerous substance, to deliver other than by dispensing.” Crim. §5-101(1). In turn, “deliver” means “to make an actual constructive, or attempted transfer or exchange from one person to another whether or not remuneration is paid[.]” Crim. §5-101(h).

      50

      Because CDS “distribution” requires a delivery to another person, it is clear that the General Assembly intended the prohibition against distribution to encompass only those who deliver CDS, not those to whom CDS is delivered. The State’s characterization of appellant as a participant in Yates’s distribution would require us to ignore the “common usage” principles cogently articulated in Abuelhawa and Hyche. We therefore agree with appellant that he may not be convicted of distribution based solely on his role as buyer and receiver of the marijuana.

      51

      The State’s attempt to limit the scope of its “buyer as distributor” theory to certain types of buyers is not persuasive. In its brief, the State posits that

      52

      liability as an aider and abettor to distribution is limited to those circumstances where, as here, the defendant’s role in the transaction is more than simply an end-of-the-line, arm’s length buyer purchasing for personal use. Where the buyer takes an active role in soliciting the distributor and arranging the transaction, and where it is clear that the transaction is occurring in the middle of the distribution chain, and not between the seller and user, the buyer could be guilty of distribution.

      53

       

      54

      The “active role” component of the standard suggested by the State is untenably vague and overbroad. Allowing a jury to convict a drug buyer of distribution on an aiding and abetting theory that is circumscribed only by whether the buyer took an “active role in soliciting the distributor” could effectively eviscerate any distinction between possession and distribution, because any buyer who initiates a drug purchase arguably takes “an active role in soliciting the distributor.”

      55

      Nor do we agree that a buyer who is in a “distribution chain” may be convicted as an aider and abettor of the seller’s distribution. It is neither necessary nor consistent with the legislative scheme to treat a drug buyer who purchases with intent to distribute as a second- degree principal in the drug seller’s distribution. There simply is no need to contort the language and meaning of Crim. § 5-602(1) to cover this scenario, because when a buyer purchases CDS with the intent to distribute it to others, that buyer may be convicted, as a first-degree principal, of possession with intent to distribute, which is a separate felony under Crim. § 5-602(2). And, if that same buyer actually takes steps toward distributing the CDS he has in his possession to another person, he may then be convicted, as a first-degree principal, of attempted distribution of marijuana, which, as the State concedes, is only a common law misdemeanor in Maryland. See, e.g., Lane v. State, 348 Md. 272, 283-84 (1997) (“By Maryland common law, the attempt to commit a crime is, itself, a separate crime – a misdemeanor” unless the attempt is made a felony by statute). Finally, if the buyer actually makes a delivery, then he or she is guilty of distribution, again as a first-degree principal.

      56

      For these reasons, although the State is correct that appellant’s intent to distribute the marijuana differentiates his purchase from cases in which the buyer purchased CDS solely for personal use, we do not agree that this fact supports a conviction for distribution as a second degree principal. As noted in Oliveira and Hill, the appropriate charge in these circumstances – when the buyer solicits the sale and receives the CDS with the intent to later distribute it to others, but there is no evidence of any attempt at distribution – is possession with intent to distribute. See note 10, supra. A contrary conclusion would put the proverbial cart before the horse, by allowing the State to convict a CDS buyer like appellant, who purchases for re-distribution but has not yet acted upon his intent to distribute, of actually distributing the CDS.[11]

      57

      In this case, the jury did convict appellant of felony possession with intent to distribute, in violation of Crim. § 5-602(2), and appellant does not challenge the sufficiency of the evidence supporting that conviction. Even though appellant might have been convicted of felony murder based on the alternative predicate felony of possession with intent to distribute, the prosecution did not argue that alternative, and the jury was not instructed about it. Cf. Graves, 17 S.W.3d at 862 (“In this case, the jury was instructed that it could find each defendant guilty [of felony murder] as either a principal or accomplice under alternative theories of criminal liability, i.e., trafficking by sale or transfer, or trafficking by possession with intent to sell or transfer.”).

      58

      To the extent that the State’s position in this appeal may be understood as an assertion that there is no material difference between these two crimes, so that we may treat them as fungible felonies for purposes of affirming appellant’s second degree felony murder conviction, we disagree. We acknowledge that possession with intent to distribute and distribution might fairly be viewed as two sides of the same coin because both crimes fall under Crim. § 5-602, and both crimes are punished as felonies under Crim. § 5-607(a). As this case demonstrates, however, there is a substantive difference between the two crimes when the State attempts to use them as the predicate for felony murder.

      59

      Here, the jury was permitted to convict appellant of felony murder based on the theory that he aided and abetted Yates in distributing the marijuana. Consequently, the jury, when determining whether the manner in which the marijuana was distributed created a substantial risk of death or bodily injury so as to warrant a felony murder conviction, naturally focused on the conduct of Yates, who came armed with a gun and later used it to shoot and kill an innocent bystander. In contrast, if the jury had been asked to convict appellant of felony murder based on the theory that he obtained possession of the marijuana with an intent to distribute it, its primary focus would not have been on the conduct of Yates, but on the conduct of appellant, who was unarmed during the purchase and obtained the marijuana through fraud and flight, rather than force. To be sure, it is also possible that the jury might have found beyond a reasonable doubt that the manner in which appellant committed that possession felony created a foreseeable risk of death, sufficient to convict him of second- degree felony murder. For purposes of this appeal, however, the material fact is that, depending on which of the two underlying felonies the jury was considering, it might have considered different evidence and/or weighed the evidence differently.

      60

      Because the evidence was insufficient to convict appellant of distribution as an aider and abettor, and the arguments and instructions pertaining to the felony murder charge allowed the jury to decide guilt based on the predicate felony of distribution, we are constrained to reverse appellant’s second-degree felony murder conviction. Having foregone the opportunity to present to the jury possession with intent to distribute as an alternate predicate for convicting appellant of felony murder, the State is precluded by double jeopardy principles from re-trying appellant for that crime. See, e.g., Burks v. United States, 437 U.S. 1, 11, 98 S. Ct. 2141, 2147 (1978) (“The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.”); In re Petition for Writ of Prohibition, 312 Md. 280, 313 (1988) (“[I]nsufficiency of the evidence is . . . a singularly inappropriate basis for ordering a new trial, because if the evidence was insufficient to go to the jury in the first place, double jeopardy principles preclude a new trial.”).

      61
      III. Conspiracy to Distribute
      62
       
      63

      Appellant’s second assignment of error “piggybacks” his first. Incorporating his previous argument “as it regards a purchaser’s liability in relation to distribution,” appellant contends that “being a mere purchaser cannot cause one to be guilty of conspiracy to distribute marijuana either.”

      64

      The State counters that “the evidence was sufficient to convict [appellant] of conspiracy to distribute” because appellant “and at least two other people acted in concert to solicit and arrange for Yates to distribute four pounds of marijuana to Kohler.” In the State’s view, it “proved that Kohler, Jagd, and Wi[m]bush, along with Yates and Griffin, acted together to accomplish the unlawful act of transferring of four pounds of marijuana from Yates to Kohler.”

      65

      The crime of conspiracy is defined in Maryland as:

      66

      [T]he combination of two or more persons to accomplish some unlawful purpose, or to accomplish a lawful purpose by unlawful means. The essence of a criminal conspiracy is an unlawful agreement. The agreement need not be formal or spoken, provided there is a meeting of the minds reflecting a unity of purpose and design. [Furthermore], the crime is complete when the unlawful agreement is reached, and no overt act in furtherance of the agreement need be shown.

      It is well settled that, in order validly to charge conspiracy, a charging document must allege both the fact of the conspiracy and its object.

      67

       

      68

      Campbell v. State, 325 Md. 488, 495-96 (1992) (internal quotation marks and citations omitted).

      69

      Appellant was charged with conspiring, on the date of the transaction, to distribute marijuana with Griffin and Yates, who were the sellers. In accordance with the State’s “buyer as distributor” theory, the trial court instructed the jury that it could convict appellant if he and Yates “entered into an agreement with at least one other person to commit the crime of distribution of marijuana.” But, on the facts of this case, there appears to be no meeting of the minds to engage in a sale of drugs because Kohler was acting in bad faith from the outset. His pretended offer of the purchase price was nothing but a charade to facilitate his theft of the marijuana. Kohler cannot have conspired to purchase marijuana when he obviously never intended to purchase it. Moreover, even if the State proved that appellant conspired with his cohorts to buy marijuana from appellees, the State’s evidence was insufficient to convict appellant of conspiring with Yates and Griffin to distribute marijuana. We must therefore reverse appellant’s conspiracy conviction as well.[12]

      70

      [1] This Court recently affirmed Yates’s convictions, rejecting, inter alia, his argument that the evidence was insufficient to convict him of felony murder because “the conduct resulting in the victim’s death did not occur during the commission of the underlying felony[.]” See Yates v. State, No. 2399, Sept. Term 2009, ___ Md. App. ___, slip op. at 1 (filed December 22, 2011).

      71

      [2] In Heckstall v. State, 120 Md. App. 621, 626 (1998), for example, the issue was whether a seller could be convicted of conspiracy to distribute heroin, in addition to distribution of heroin, based solely on evidence that he accepted cash from a buyer and immediately handed the money to a companion. Observing that “standing alone, a single buyer-seller transaction ordinarily does not constitute a conspiracy[,]” id., this Court held that there was insufficient evidence of a conspiracy because there was no evidence of “advanced planning among the co-conspirators” and the alleged co-conspirator had been acquitted of conspiracy. Id. at 627. Here, because appellant was a buyer who purchased with intent to distribute, not a seller who distributed, Heckstall is factually and legally inapposite.

      72

      [3] The summary set forth in Part I includes only facts germain to the issues raised in this appeal.

      73

      [4] Griffin later saw the fake money. It was in a roll of bills. The “bills” were cut to the same width and length of legitimate U.S. currency and real U.S. currency was wrapped around the outside of the fake currency. Almost all the “bills” in the roll were counterfeit.

      74

      [5] When appellant moved for acquittal on the ground that the State did not prove the underlying felony of marijuana distribution, the prosecutor responded as follows:

      75

      [Prosecutor]: But the issue is whether or not he’s a participant in the crime, and he is unquestionably a participant in the distribution of marijuana. He is the buyer. He received it. The distribution would not have occurred but for the fact that he is there to take it. He is a willing and knowing participant in the distribution of marijuana. And that’s what the issue is for second degree common law felony murder and even people that are participants.

      The Court: Are there any cases which would describe . . . a buyer as a participant in the crime of distribution?

      [Prosecutor]: I don’t know. I don’t have any. The issue is whether or not you were a participant. There are two questions there. Are you guilty of distribution of marijuana? Probably not. But are you a participant in the crime? Technically, I guess a victim of a robbery is a participant in the crime, but they’re not a knowing and willing participant. They’re not part of the crime.

      But clearly he is a knowing and willing participant in the distribution of marijuana. You can’t walk from your responsibility for what happens in a distribution by asserting that you’re not the person actually distributing, because obviously you’re not but it would not have happened but for you precedence [sic] but for your response, but for your desire to allegedly purchase the marijuana in and of itself in the first place.

      76

       

      77

      (Emphasis added.)

      78

      [6] First degree felony murder is a statutory offense. See generally Md. Code (2002), § 2-201(a)(4) of the Criminal Law Article (“[a] murder is in the first degree if it is . . . committed in the perpetration of or an attempt to perpetrate” a list of enumerated crimes, including arson, burglary, carjacking, prison escape, kidnapping, rape and other sexual offenses, or robbery).

      79

      [7] As the State asserts in its brief, “the prosecutor made clear in his rebuttal closing argument that it was the State’s theory that Kohler was guilty of distributing marijuana[,]” as evidenced by the following argument:

      80

      [Defense counsel] chooses to make it into the issue of selling instead of saying distributing. He says it’s sell[ing] marijuana. Nowhere in your instructions does it require the marijuana to be sold. He wants to change it to that word, because he wants to distinguish between selling and buying, and he wants to make his client, the buyer, he is, but he’s also involved in the distribution. In order for distribution to happen, it has to go from one person to another. . . . So, how can you distribute without someone to take it? And that’s Donald Kohler. And clearly they have, they have a meeting of the minds, although people in between to help them through that to engage in the distribution of marijuana.

      81

       

      82

      [8] Defense counsel unequivocally staked appellant’s defense to the felony murder charge on the argument that, as a mere buyer, appellant was not guilty of the predicate felony of distribution. In closing, counsel argued:

      83

      Can the buyer distribute? What [the prosecutor] told you is that the answer is yes, he’s part of the distribution by being the buyer. You can’t distribute if there’s nobody to distribute to. That was his argument.

      I would suggest to you that’s not what that means when it says that the person has to distribute. You can’t distribute to yourself. The definition that the Judge gave you of distribution is to transfer an interest to another person. How can the buyer be guilty of distributing to someone else when it’s being distributed to him?

      So I would suggest for that reason that the State has failed to prove that Mr. Kohler . . . even if we assume it’s the right person, I would suggest to you they didn’t prove the distribution, they proved that he was a buyer.

      84

       

      85

      [9] The remainder of the trial court’s instruction on second degree felony murder is as follows:

      86

      That the way in which the distribution of marijuana was committed or attempted under all of the circumstances created a reasonably foreseeable risk of death or a serious physical injury likely to result in death, and that as a result of the way in which the distribution of marijuana was committed or attempted, Shirley Elizabeth Worcester was killed.

      87

      [10] The court went on to explain in a footnote:

      88

      We note that although we hold that “possession with intent to deliver” is not a predicate felony for first-degree felony murder, it may support a conviction for second-degree felony murder. See State v. Stewart, 663 A.2d 912, 917 (R.I. 1995) (“A felony that is not enumerated in § 11-23-1 can, however, serve as a predicate felony to a charge of second-degree murder.”). Second-degree felony murder is not a lesser-included offense to first-degree felony murder because it requires proof of an additional fact--a determination that the crime was committed in an inherently dangerous manner. See State v. Briggs, 787 A.2d 479, 487 (R.I. 2001) (“A lesser included offense is ‘one that does not require proof of any additional element beyond those required by the greater offense.’”) (quoting State v. Rodriquez, 731 A.2d 726, 729 (R.I. 1999)); Stewart, 663 A.2d at 919 (“We believe that the better approach is for the trier of fact to consider the facts and circumstances of the particular case to determine if such felony was inherently dangerous in the manner and the circumstances in which it was committed, rather than have a court make the determination by viewing the elements of a felony in the abstract.”). Conversely, first-degree felony murder requires no such determination. A homicide committed during the course of an enumerated predicate offense is first-degree felony murder “simply because the Legislature has said so.” State v. Washington, 581 A.2d 1031, 1034 (R.I. 1990) (quoting State v. Villani, 491 A.2d 976, 980 (R.I. 1985)).

      89

       

      90

      Rhode Island v. Oliveira & Hill, 882 A.2d at 1118, n.9.

      91

      [11] The parties to this appeal have treated the relationship between appellant and Yates as buyer and seller and we have done likewise. It is worth noting, however, that there may not have been a bonafide buyer-seller transaction at all, but a case of theft pretences.

      92

      [12] Appellant also makes a “plain error” challenge to the trial courts jury instruction concerning second-degree felony murder. We need not consider this challenge based on our reversal, on sufficiency of evidence grounds, of that conviction.

    • 3.8 People v. Washington

      1
      44 Cal.Rptr. 442
      2
      62 Cal.2d 777, 402 P.2d 130
      3
      The PEOPLE, Plaintiff and Respondent,
      v.
      James Edwards WASHINGTON, Defendant and Appellant.
      4
      Cr. 8528.
      5
      Supreme Court of California, In Bank.
      6
      May 25, 1965.
      Rehearing Denied June 23, 1965.
      7

       

      8

      [44 Cal.Rptr. 444] [402 P.2d 132] [62 Cal.2d 779] Erling J. Hovden, Public Defender, Paul G. Breckenridge, Jr., and James L. McCormick, Deputy Public Defenders, for defendant and appellant.

      9

      Stanley Mosk and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for plaintiff and respondent.

      10

      TRAYNOR, Chief Justice.

      11

      Defendant appeals from a judgment of conviction entered upon jury verdicts finding him guilty of first degree robbery (Pen.Code, §§ 211, 211a) and first degree murder and fixing the murder penalty at life imprisonment. (Pen.Code, §§ 187, 189, 190, 190.1.) [1] He was convicted of murder for participating in a robbery in which his accomplice was killed by the victim of the robbery.

      12

      Shortly before 10 p. m., October 2, 1962, Johnnie Carpenter prepared to close his gasoline station. He was in his office computing the receipts and disbursements of the day while an attendant in an adjacent storage room deposited money in a vault. Upon hearing someone yell 'robbery,' Carpenter opened his desk and took out a revolver. A few moments later, James Ball entered the office and pointed a revolver directly at Carpenter, who fired immediately, mortally wounding Ball. Carpenter then hurried to the door and saw an unarmed man he later identified as defendant running from the vault with a moneybag in his right hand. He shouted 'Stop.' When his warning was not heeded, he fired and hit defendant who fell wounded in front of the station.

      13

      The Attorney General, relying on People v. Harrison, 176 [62 Cal.2d 780] Cal.App.2d 330, 1 Cal.Rptr. 414, contends that defendant was properly convicted of first degree murder. In that case defendants initiated a gun battle with an employee in an attempt to rob a cleaning business. In the cross fire, the employee accidentally killed the owner of the business. The court affirmed the judgment convicting defendants of first degree murder, invoking Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183, and People v. Podolski, 332 Mich. 508, 52 N.W. 2d 201, which held that robbers who provoked gunfire were guilty of first degree murder even though the lethal bullet was fired by a policeman.

      14

      Defendant would distinguish the Harrison, Almeida, and Podolski cases on the ground that in each instance the person killed was an innocent victim, not one of the felons. He suggests that we limit the rule of the Harrison case just as the Supreme Courts of Pennsylvania and Michigan have limited the Almeida and Podolski cases by holding that surviving felons are not guilty of murder when their accomplices are killed by persons resisting the felony. (Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472; People v. Austin, 370 Mich. 12, 120 N.W.2d 766; see also People v. Wood, 8 N.Y.2d 48, 201 N.Y.S.2d 328, 167 N.E.2d 736.) A distinction based on the person killed, however, would make the defendant's criminal liability turn upon the marksmanship of victims and policemen. A rule of law cannot reasonably be based on such a fortuitous circumstance. The basic issue therefore is whether a robber can be convicted [44 Cal.Rptr. 445] [402 P.2d 133] of murder for the killing of any person by another who is resisting the robbery.

      15

      'Murder is the unlawful killing of a human being, with malice aforethought.' (Pen.Code, § 187.) Except when the common-law-felony-murder doctrine is applicable, an essential element of murder is an intent to kill or an intent with conscious disregard for life to commit acts likely to kill. (See People v. Thomas, 41 Cal.2d 470, 475, 261 P.2d 1 (concurring opinion).) The felony-murder doctrine ascribes malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony. (People v. Ford, 60 Cal. 2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892; People v. Coefield, 37 Cal.2d 865, 868, 236 P.2d 570.) That doctrine is incorporated in section 189 of the Penal Code, which provides in part: 'All murder * * * committed in the perpetration or attempt to perpetrate * * * robbery * * * is murder of the first degree.' Thus, even though section 189 [62 Cal.2d 781] speaks only of degrees of 'murder,' inadvertent or accidental killings are first degree murders when committed by felons in the perpetration of robbery. (People v. Coefield, supra, 37 Cal.2d 865, 868, 236 P.2d 570; People v. Boss, 210 Cal. 245, 249, 290 P. 881.)

      16

      When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery. It is not enough that the killing was a risk reasonably to be foreseen and that the robbery might therefore be regarded as a proximate cause of the killing. Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony. Indeed, in the present case the killing was committed to thwart a felony. To include such killings within section 189 would expand the meaning of the words 'murder * * * which is committed in the perpetration * * * (of) robbery * * *' beyond common understanding.

      17

      The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. (See Holmes, The Common Law, pp. 58-59; Model Penal Code (Tent.Draft No. 9, May 8, 1959) § 201.2, comment 4 at pp. 37-38; Report of the Royal Commission on Capital Punishment, Cmd. No. 8932, at pp. 35-36 (1949-1953).) This purpose is not served by punishing them for killings committed by their victims.

      18

      It is contended, however, that another purpose of the felony-murder rule is to prevent the commission of robberies. Neither the common-law rationale of the rule nor the Penal Code supports this contention. In every robbery there is a possibility that the victim will resist and kill. The robber has little control over such a killing once the robbery is undertaken as this case demonstrates. To impose an additional penalty for the killing would discriminate between robbers, not on the basis of any difference in their own conduct, but solely on the basis of the response by others that the robber's conduct happened to induce. An additional penalty for a homicide committed by the victim would deter robbery haphazardly at best. To 'prevent stealing, (the law) would do better to hang one thief in every thousand by lot.' (Holmes, The Common Law, p. 58.)

      19

      A defendant need not do the killing himself, however, [62 Cal.2d 782] to be guilty of murder. He may be vicariously responsible under the rules defining principals and criminal conspiracies. All persons aiding and abetting the commission of a robbery are guilty of first degree murder when one of them kills while acting in furtherance of the common design. (People v. Boss, 210 Cal. 245, 249, 290 P. 881; People v. Kauffman, 152 Cal. 331, 334, 92 P. 861.) Moreover, when the defendant intends to kill or intentionally commits acts that are likely to kill with a conscious disregard for life, he is guilty of murder even though he uses another person to accomplish his objective. (Johnson v. State, 142 Ala. 70, [44 Cal.Rptr. 446] [402 P.2d 134] 38 So. 182, 2 L.R.A.,N.S., 897; see also Wilson v. State, 188 Ark. 846, 68 S.W.2d 100; Taylor v. State, 41 Tex.Cr.R. 564, 55 S.W. 961.)

      20

      Defendants who initiate gun battles may also be found guilty of murder if their victims resist and kill. Under such circumstances, 'the defendant for a base, anti-social motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death' (People v. Thomas, 41 Cal.2d 470, 480, 261 P.2d 1, 7 (concurring opinion)), and it is unnecessary to imply malice by invoking the felony-murder doctrine. [2] To invoke the felony-murder doctrine to imply malice in such a case is unnecessary and overlooks the principles of criminal liability that should govern the responsibility of one person for a killing committed by another. (See Hart and Honore , Causation in the Law, pp. 296-299; Hall, Criminal Law, 2d ed., pp. 270-281; Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50; Brett, An Inquiry Into Criminal Guilt, pp. 123-124.)

      21

      To invoke the felony-murder doctrine when the killing is not committed by the defendant or by his accomplice could lead to absurd results. Thus, two men rob a grocery store and flee in opposite directions. The owner of the store follows one of the robbers and kills him. Neither robber may have fired a shot. Neither robber may have been armed with a deadly weapon. If the felony-murder doctrine applied, however, [62 Cal.2d 783] the surviving robber could be convicted of first degree murder (see Commonwealth v. Thomas, 382 Pa. 639, 117 A.2d 204, overruled by Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472), even though he was captured by a policeman and placed under arrest at the time his accomplice was killed. (Commonwealth v. Doris, 287 Pa. 547, 135 A. 313; see People v. Corkery, 134 Cal.App. 294, 25 P.2d 257.)

      22

      The felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. (See e. g., Model Penal Code (Tent. Draft No. 9, May 8, 1959) § 201.2, comment 4 at pp. 37-39; Report of the Royal Commission on Capital Punishment, Cmd. No. 8932, at pp. 34-43, 45 (1949-1953), 3 Stephen, History of the Criminal Law of England 57-58; 74-75 (1883); Packer, The Case for Revision of the Penal Code, 13 Stan.L.Rev. 252, 259; Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50; 66 Yale L.J. 427.) [3] Although it is the law in this state (Pen.Code, § 189), it should not be extended beyond any rational function that it is designed to serve. Accordingly, for a defendant to be guilty of murder under the felony-murder rule the act of killing must be committed by the defendant or by his accomplice acting in furtherance of their common design. (Commonwealth v. Campbell, 7 Allen 541, 89 Mass. 541; Butler v. People, 125 Ill. 641, 18 N.E. 338, 1 L.R.A. 211; Commonwealth v. Moore, 121 Ky. 97, 88 S.W. 1085, 2 L.R.A., N.S., 719; State v. Oxendine, 187 N.C. 658, 122 S.E. 568; See also People v. Ferlin, 203 Cal. 587, 597, 265 P. 230.) Language in People v. Harrison, 176 Cal.App.2d 330, 1 Cal. [44 Cal.Rptr. 447] [402 P.2d 135] Rptr. 414, inconsistent with this holding, is disapproved.

      23

      On his appeal from the robbery conviction, defendant contends that he did not participate in the robbery. He testified that on the evening of the robbery he was with Ball and a man named Johnson. He did not know that they intended to commit robbery. He was 'pretty drunk' at the time and fell asleep in the automobile. When he awoke the automobile was parked near Carpenter's gasoline station, [62 Cal.2d 784] and Ball and Johnson were absent. He left the automobile to look for them. As he approached the station, Johnson ran from the vault. Carpenter shot just as Johnson ducked around a corner and dropped the moneybag. Carpenter's bullet hit defendant who fell wounded near the bag that Johnson had dropped.

      24

      Defendant's testimony was corroborated by the testimony of James Johnson, an inmate of the state prison for an unrelated crime at the time of defendant's trial. Johnson testified that he was the man who ran from the vault with the moneybag. Carpenter controverted their testimony, however, by identifying defendant as the man who ran from the vault. The evidence is therefore sufficient to support defendant's conviction of robbery.

      25

      Defendant contends, however, that the trial court on its own motion should have instructed the jury to view Carpenter's testimony with caution on the ground that it tended to be self-serving because Carpenter 'was relieved of any criminal or civil responsibility for the shootings by implicating (defendant) and the deceased in an attempted robbery.' All testimony that favors a witness' real or imagined self-interest, however, does not require a cautionary instruction. The testimony of a robbery victim does not come from a 'tainted source' as does the testimony of an accomplice (People v. Robinson, 43 Cal.2d 132, 141, 271 P.2d 865; People v. Wallin, 32 Cal.2d 803, 808, 197 P.2d 734; Code Civ.Proc., § 2061, subd. 4), nor is his testimony like that of a complaining witness in a sex offense, which may be motivated by malice and beyond effective contradiction because it relates to matters that ordinarily take place in secrecy. (People v. Putnam, 20 Cal.2d 885, 891-892, 129 P.2d 367.) In the present case, there was no such danger of perjury, and defendant had a fair opportunity to controvert the witness' testimony. The court properly instructed the jury that they were the exclusive judges of the credibility of the witnesses and informed them that they might consider such matters as the relation of the witnesses to the case and their interest therein. Although the court could have made 'such comment on the evidence and the testimony and credibility of any witness as in its opinion (was) necessary for the proper determination of the case * * *' (Pen.Code, § 1127), it was not required to give a cautionary instruction.

      26

      The judgment is affirmed as to defendant's conviction of [62 Cal.2d 785] first degree robbery and reversed as to his conviction of first degree murder.

      27

      PETERS, TOBRINER, PEEK and *WHITE, JJ., concur.

      28

      BURKE, Justice (dissenting).

      29

      I dissent. The unfortunate effect of the decision of the majority in this case is to advise felons:

      30

      'Henceforth in committing certain cirmes, including robbery, rape and burglary, you are free to arm yourselves with a gun and brandish it in the faces of your victims without fear of a murder conviction unless you or your accomplice pulls the trigger. If the menacing effect of your gun causes a victim or policeman to fire and kill an innocent person or a cofelon, you are absolved of responsibility for such killing unless you shoot first.'

      31

      [44 Cal.Rptr. 448] [402 P.2d 136] Obviously this advance judicial absolution removes one of the most meaningful deterrents to the commission of armed felonies.

      32

      In the present case defendant's accomplice was killed when the robbery victim fired after the accomplice had pointed a revolver at him. In People v. Harrison (1959) 176 Cal.App.2d 330, 1 Cal.Rptr. 414 (hearing in Supreme Court denied without a dissenting vote), the rationale of which the majority now disapprove, the robbery victim was himself accidentally killed by a shot fired by his employee after defendant robbers had opened fire, and the robbers were held guilty of murder for the killing. The majority now attempt to distinguish Harrison on the ground that there the robbers 'initiated' the gun battle; in the present case the victim fired the first shot. As will appear, any such purported distinction is an invitation to further armed crimes of violence. There is no room in the law for sporting considerations and distinctions as to who fired first when dealing with killings which are caused by the actions of felons in deliberately arming themselves to commit any of the heinous crimes listed in Penal Code section 189. If a victim or someone defending the victim seizes an opportunity to shoot first when confronted by robbers with a deadly weapon (real or simulated), any 'gun battle' is initiated by the armed robbers. In such a situation application of the felony-murder rule of section 189 of the Penal Code supports, if not compels, the conclusion that the surviving robbers committed murder even if the lethal bullet did not come from one of their guns, [62 Cal.2d 786] and whether it is an innocent person or an accomplice who dies.

      33

      Section 187 of the Penal Code declares that 'Murder is the unlawful [1] killing of a human being, with malice aforethought.' Section 188 states that 'Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away * * * life * * *. It is implied * * * when the circumstances attending the killing show an abandoned and malignant heart.'

      34

      Section 189 specifies that 'All murder which is perpetrated by * * * any * * * kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate * * * robbery (or five other named felonies [2]), is murder of the first degree * * *.'

      35

      So heinous has the Legislature considered murders in the perpetration of these offenses that it grouped them with murder by means of poison, lying in wait or by torture, and, fundamentally, the law in this respect has remained unchanged for more than one hundred years. (Stats. 1850, p. 231; Stats. 1856, p. 219; now Pen.Code, § 189.)

      36

      In People v. Milton (1904) 145 Cal. 169, 171-172, 78 P. 549, 550, the court pointed out that a killing is unlawful which is 'perpetrated in the performance or attempt to perform one of these felonies, and the malice of the abandoned and malignant heart is shown from the very nature of the crime' the defendant is attempting to commit. Thus the killing is established as murder under section 187, in the light of the definition of malice found in section 188, and section 189 makes it first degree murder. Therefore, held the court, even if the killing be accidental or unintentional, if committed in the attempt to perpetrate one of the felonies named in section 189 it is first degree murder.

      37

      This principle has been repeatedly upheld by this court (see People v. Raber (1914) 168 Cal. 316, 318, 143 P. 317; People v. Witt (1915) 170 Cal. 104, 107-108, 148, P. 928; People v. Denman (1918) 179 Cal. 497, 498-499, 177 P. 461; People v. Boss (1930) 210 Cal. 245, 249, 290 P. 881; People v. Valentine (1946) 28 Cal.2d 121, 135, 169 P.2d 1; People v. Coefield (1951) 37 Cal.2d 865, 868, 236 P.2d 570), and is expressly [44 Cal.Rptr. 449] [402 P.2d 137] recognized by the majority in the instant case with the declaration (p. 445) that 'inadvertent or accidental [62 Cal.2d 787] killings are first degree murders when committed by felons in the perpetration of robbery.' (Italics added.) The majority further expressly recognize the rule (p. 445) that 'A defendant need not do the killing himself * * * to be guilty of murder. * * * All persons aiding and abetting the commission of a robbery are guilty of first degree murder when one of them kills' in the perpetration of the robbery. (See People v. Boss, supra.)

      38

      Despite these declared principles long established and effective in their deterrence of crimes of violence the majority now announce (p. 445) that 'When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery. It is not enough that the killing was a risk reasonably to be foreseen. * * * Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony. * * * To include such killings within section 189 would expand the meaning of the words 'murder * * * which is committed in the perpetration * * * (of) robbery * * *' beyond common understanding.' (Italics added.)

      39

      But section 189 carries not the least suggestion of a requirement that the killing must take place to perpetrate the felony. If that requirement now be read into the section by the majority, then what becomes of the rule which they purport to recognize that an accidental and unintentional killing falls within the section? How can it be said that such a killing takes place to perpetrate a robbery?

      40

      Moreover, as already noted, the malice aforethought of the abandoned and malignant heart is shown from the very nature of the crime, here armed robbery, the defendant is attempting to commit. (People v. Milton (1904) supra, 145 Cal. 169, 171-172, 78 P. 549.) This truism was confirmed in People v. Bostic (1914) 197 Cal. 754, 761, 141 P. 380, 383, wherein the court pointed out that the argument that to be first degree murder a killing during robbery must be planned as a part of the scheme, carries its own refutation, 'for it must be apparent that without reference to the robbery such a murder would be a 'willful, deliberate, and premeditated killing," and hence, first degree murder; further, said the court, 'The moment (defendant) entered that (train) car with a deadly weapon in his hand, with the purpose of committing robbery, the law fixed upon him the intent which would make any [62 Cal.2d 788] killing in the perpetration of the robbery, or in the attempt * * * a murder of the first degree. In such cases the law does not measure the delicate scruples of the robber with reference to shooting his victim.' Again in People v. Coefield, supra (1951) 37 Cal.2d 865, 868(2), 236 P.2d 570, 572 the court took note of the rule 'that when one enters a place with a deadly weapon for the purpose of committing robbery, malice is shown by the nature of the attempted crime.' This is also the approach of the general felony-murder doctrine, a doctrine which (the majority confirm) ascribes malice aforethought where the killing is in the perpetration of an inherently dangerous felony. As expressed in People v. Ford (1964) 60 Cal.2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892, 907, cited by the majority, 'A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen. Code, § 189) constitutes at least second degree murder. (Citations.)' (Italics added.)

      41

      A homicide which arises out of an attempt at armed robbery is a direct causal result of the chain of events set in motion by the robbers when they undertook their felony. When a victim fires the lethal bullet, whether or not he fires first, the killing is caused by the act of the felon [44 Cal.Rptr. 450] [402 P.2d 138] and the felon is as responsible therefor as when the firing is by his accomplice or when it is accidental or unintentional. [3] The majority suggest (p. 446), 'it is unnecessary to imply malice by invoking the felony-murder doctrine' where the robber 'initiates' a gun battle by shooting first. This suggestion by the majority, I respectfully submit, emphasizes the inconsistency of their opinion. First they declare (p. 445) that 'When a killing is not committed by a robber * * * but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in * * * robbery.' (Italics added.) Later they state (p. 446) that 'Defendants who initiate gun battles may also be found guilty of murder if their victims resist and kill * * * and it is unnecessary to imply malice by invoking the felony-murder doctrine.' (Italics added.)

      42

      [62 Cal.2d 789] But malice aforethought is an essential element of murder. (Pen.Code, § 187.) If it is not attributable to the robber when a killing is 'committed by' his victim rather than by himself in a gun battle initiated by the robber, is the essential malice express or is it to be implied under some doctrine other than the felony-murder rule? Do the majority imply the malice of the abandoned and malignant heart (Pen.Code, § 188) only if the robber shoots first, but not if he merely creates the forseeable risk that 'the victim will resist and kill'? And this despite the fact that, as the majority further affirm (p. 445), 'the robbery might therefore be regarded as a proximate cause of the killing'?

      43

      Even if, as the majority suggest (p. 445), it is unnecessary to imply malice by invoking the felony-murder doctrine where the robber shoots first, that doctrine can and should be invoked in a case in which, as here, a robber with a gun in his hand confronts a victim who can and does resist by firing the first shot. In such a case, the robber 'initiated' the criminal plan, he 'initiated' it by wilfully, maliciously and wantonly putting the victim in fear of his life, and he 'initiated' any resultant shooting, whether by his gun or that of the victim. Where the victim is in a position to shoot first and his bullet kills, the killing should be viewed in law and in fact as having been 'committed' by the robber (as it was in People v. Harrison, supra, 176 Cal.App.2d 330, 1 Cal.Rptr. 414), and application of the felony-murder rule to such circumstances is, in my view, exactly the sort of 'rational function that it is designed to serve' in the phrasing of the majority (p. 445).

      44

      Extreme examples may be imagined in which the application of a rule of criminal liability would appear manifestly unjust. However, when this court and others have been faced with such an example exceptions have been made to avoid an unconscionable result. To reject invocation of the felony-murder rule here, as do the majority (p. 445), because of possible harshness in its application in other circumstances, for example, to fleeing robbers who are not armed, dilutes the enforcement of criminal responsibility. The case anticipated and the injustice sought to be protected against by the majority are not before us, and can best be dealt with when and if encountered. It may be observed, however, that robbers are not compelled to flee and thus to be shot at endangering themselves and others. They need only surrender, as many have done, to avoid death, to themselves or [44 Cal.Rptr. 451] [402 P.2d 139] others, [62 Cal.2d 790] and the awesome penalties which attach under the felony-murder law.

      45

      I agree with the majority (p. 445) that one purpose of the felony-murder rule is to deter felons from killing negligently or accidentally. However, another equally cogent purpose is to deter them from undertaking inherently dangerous felonies in which, as the majority state (p. 445), a 'killing was a risk reasonably to be foreseen. * * * In every robbery there is a possibility that the victim will resist and kill.' As declared in People v. Chavez (1951) 37 Cal.2d 656, 669, 234 P.2d 632, 'The statute (Pen.Code, § 189) was adopted for the protection of the community and its residents, not for the benefit of the lawbreaker.' Why a felon who has undertaken an armed robbery, which this court now expressly notifies him carries a 'risk and 'a possibility that the victim will resist and kill,' and which 'might therefore be regarded as a proximate cause of the killing' should nevertheless be absolved because, fortuitously, the victim can and does shoot first and the lethal bullet comes from the victim's gun rather than from his own, will be beyond the comprehension of the average law-abiding citizen, to say nothing of that of victims of armed robbery. Nor is such a view compatible with the felony-murder doctrine.

      46

      But, say the majority, 'The robber has little control over such a killing once the robbery is undertaken,' and 'To impose an additional penalty for the killing would discriminate between robbers, not on the basis of any difference in their own conduct, but solely on the basis of the response by others that the robber's conduct happened to induce.' (p. 445) A robber has no control over a bullet sent on its way after he pulls the trigger. Certainly his inability to recall it before it kills does not cloak him with innocence of the homicide. The truth is, of course, that the robber may exercise various 'controls over' a possible killing from his victim's bullet 'once the robbery is undertaken.' The robber can drop his own weapon, he can refrain from using it, he can surrender. Other conduct can be suggested which would tend to reassure the victim and dissuade him from firing his own gun. Moreover, the response by one victim will lead to capture of the robbers, while that of another victim will permit their escape. Is the captured felon to be excused from responsibility for his crime, in order not to 'discriminate between robbers * * * solely on the basis of the response by others that the robber's conduct happened to induce'?

      47

      [62 Cal.2d 791] The robber's conduct which froms the basis of his criminal responsibility is the undertaking of the armed felony, in which a 'killing was a risk reasonably to be foreseen' including the 'possibility that the victim will resist and kill.' If that risk becomes reality and a killing occurs, the guilt for it is that of the felon. And when done, it is murder in the first degree calling for that the knowledge that this awesome, that tthe knowledge that this awesome, sobering, terrifying responsibility of one contemplating the use of a deadly weapon in the perpetration of one of the listed offenses is not the strongest possible deterrent to the commission of such offenses belies what is being demonstrated day after day in the criminal departments of our trial courts.

      48

      I would hold, in accord with the rationale of People v. Harrison, supra (1959) 176 Cal.App.2d 330, 1 Cal.Rptr. 414, that the killing is that of the felon whether or not the lethal bullet comes from his gun or that of his accomplice and whether or not one of them shoots first, and would affirm the judgment of conviction of murder in the instant case.

      49

      McCOMB, J., concurs.

      50

      Rehearing denied; McCOMB and BURKE, JJ., dissenting, MOSK, J., not participating.

      51

      ---------------

      52

      [1] Defendant's appeal from the nonappealable order denying a new trial is dismissed. (Pen.Code, § 1237, subd. 2.)

      53

      [2] One scholar has commented that 'People v. Harrison, 176 Cal.App.2d 330, 1 Cal.Rep. 414 (1959), is probably not, strictly speaking, a felony-murder case at all, but rather a case taking a very relaxed view of the necessary causal connection between the defendant's act and the victim's death, and approach which is possible quite independent of the felony-murder rule.' (Packer, The Case for Revision of the Penal Code, 13 Stan.L.Rev. 252, 259, fn. 39.)

      54

      [3] The felony-murder rule has been abolished in England (English Homicide Act, § 1, 1957, 5 & 6 Eliz. II, c. 11), and has been converted to a rebuttable presumption of malice by the Model Penal Code. (Model Pen.Code (Tent. Draft No. 9, May 8, 1959) § 201.2.)

      55

      [*] Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.

      56

      [1] I. e., not excusable (§ 195) or justifiable (§§ 196, 197).

      57

      [2] I. e., arson, rape, burglary, mayhem, or any act punishable under section 288 (lewd or lascivious acts against children).

      58

      [3] It should be noted that the doctrine of prosimate causation has not been confined to civil cases. In People v. Monk (1961) 56 Cal.2d 288, 296, 14 Cal.Rptr. 633, 363 P.2d 865, for example, the defendant made threats of serious bodily harm to a person whom he had kidnaped for purposes of robbery, and the threats caused her to jump from an automobile and receive injuries. This court held that the doctrine of proximate causation was applicable, that the victim had suffered 'bodily harm' within the meaning of Penal Code section 209, and that the penalty of death was proper.

      59

       

    • 3.9 People v. Lima

      1
      12 Cal.Rptr.3d 815 (2004)
      2
      118 Cal.App.4th 259
      3
      The PEOPLE, Plaintiff and Respondent,
      v.
      James LIMA, Defendant and Appellant.
      4
      No. D041856.
      5

      Court of Appeal, Fourth District, Division One.

      6
      April 14, 2004.
      7
      Review Denied July 28, 2004.[**]
      8

       

      9

      [816] Gregory Marshall, under appointment by the Court of Appeal, Palo Cedro, for Defendant and Appellant.

      10

      Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steven T. Oetting and Gil P. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.

      11

      Certified for Partial Publication.[*]

      12

      NARES, J.

      13

      This is the second appeal in this case, which arises from a residential robbery and subsequent high-speed chase involving defendant James Lima and his codefendant Hieu Huu Le, during which one of the police cars pursuing Lima and Le struck and killed an innocent motorist.

      14

      In November 1999, defendant Lima, along with codefendant Le, was convicted of first degree murder, conspiracy to commit residential robbery, residential robbery and false imprisonment by menace. Lima and Le appealed, both contending that the jury was erroneously instructed on the felony-murder rule, as it did not apply to the facts of the case. Lima also separately contended that (1) there was insufficient evidence to support prosecution under the provocative act theory of murder; (2) the court improperly denied him the opportunity to conduct discovery and to introduce evidence that the pursuing police officer's conduct was the proximate cause of the innocent motorist's death; (3) the court erroneously instructed the jury on proximate cause; and (4) the court erred in denying his posttrial motion to represent himself. Le separately contended that (1) the provocative act theory did not apply to the facts of the case; and (2) the evidence was insufficient to establish that he aided and abetted the evasion of police.

      15

      In an unpublished decision filed in December 2001, we held that the felony-murder rule did not apply to the facts of this case and reversed Lima's and Le's murder convictions. (People v. Lima (Dec. 13, 2001, D035050), 2001 WL 1589193 *1. (Lima I).) However, we also rejected the defendants' remaining contentions and affirmed their convictions on all other counts. (Ibid.)

      16

      Lima and Le were retried on the murder charges and the jury again convicted Lima of first degree murder. The jury deadlocked on the murder charge against Le, and a mistrial was declared. Lima was thereafter sentenced to a term of 25 years to life for the murder conviction. That sentence was to run consecutive to the 20-year prison term for the convictions from the first trial that were upheld on appeal.

      17

      On this appeal, Lima asserts that (1) the provocative act doctrine is inapplicable to this case as the death of the innocent motorist was the result of a negligent or reckless act, as opposed to a deliberate and intentional use of lethal force; and (2) the court improperly limited his right to [817] cross-examine the officer who collided with the victim's car concerning the possible reckless or negligent nature of that officer's driving prior to the crash.

      18

      We first conclude that the law of the case doctrine precludes consideration of Lima's contention that the court improperly limited his right to cross-examination as to the reasonableness of the driving of the officer who collided with the victim while in pursuit of Lima as we resolved the same issue against him in Lima I. We also conclude that the "provocative act" theory of murder was properly applied to the facts of this case. Accordingly, we affirm the judgment.

      19
      FACTUAL AND PROCEDURAL BACKGROUND
      20
       
      21
      A. People's Case
      22

       

      23

      John Vo lived with his wife, My Ly Dang, his mother-in-law, Ho No, his two sons, aged seven and nine at the time, and his sister-in-law, Chi Ho. Vo formerly owned a computer business.

      24

      On February 19, 1999, Vo was out of the house, and No, Ho, and Vo's two sons were at home. Sometime after 2:00 p.m., No answered the door, and Lima was standing there, holding a pile of paper over a gun, which was pointed at her face. Lima forced his way into the house, twisting No's left arm behind her back. After entering the home, Lima put No on the ground near Vo's sons, who had been watching television, and bound her hands and feet with electrical wire. Le came into the room and asked No, "Where's the money?" No responded that she did not know. Lima told Vo's sons to remain seated and asked them about computer chips.

      25

      Le went upstairs and found Vo's sister-in-law, Ho, in an upstairs bedroom. He tied her hands together with a phone cord and left to ransack another bedroom. Ho was able to loosen the phone cord and used a cell phone to call 911.

      26

      Ho went downstairs, where she encountered Lima. Lima instructed Ho to sit down, began to touch her breasts, and attempted to take off her pants. Ho slid back and pleaded with Lima to stop, telling him she was only 17.[1] Le came downstairs and said "Go" in Vietnamese. The men left through the front door, saying they would come back in a minute. Lima and Le took $200 to $500 in cash as well as jewelry from the house.

      27

      In the meantime, San Diego Police Officer Daniel Burow, responding to the 911 call, arrived at Vo's home and saw a Ford Bronco with no license plates parked in front. Officer Burow could not see through the tinted windows of the Bronco and cautiously took cover behind a nearby tree while he waited for other officers to arrive. Less than a minute later, Lima and Le ran out of the house. Lima looked at Officer Burow's patrol car and then climbed quickly into the driver's seat of the Bronco. Le, who was carrying a bag, climbed into the passenger seat of the car.

      28

      Lima drove away. Officer Burow jumped into his police cruiser, turned on the lights and siren and followed the Bronco. Lima drove across some traffic pylons and made an illegal U-turn; as he did so, Le reached out of the passenger side window and threw a nine-millimeter pistol into some bushes. At about this time, Officer Michael Moller joined in the chase, following Officer Burow.

      29

      [818] The Bronco was heading south as it approached an intersection with a four-way stop. Anticipating the Bronco's arrival, Officer Dewayne Glazewski had parked his patrol car, with lights flashing, across the northbound traffic lanes. However, the Bronco sped through the stop sign without stopping or slowing. Lima passed a truck that was stopped at a stop sign by driving into the oncoming traffic lane and made a "blind" turn at the intersection without stopping.

      30

      Lima then returned to the four-way intersection. He moved into the oncoming traffic lane to pass a waiting car, turned right in front of that car and continued to drive, at speeds of 50 to 60 miles per hour, through several red lights.

      31

      With the police still in pursuit, the Bronco became stuck in traffic at an intersection. After Officer Burow pulled up behind the Bronco, Lima drove up onto the sidewalk, passing cars on the right. As he did so, the Bronco struck a truck, knocking a side rearview mirror from it. Lima narrowly missed the signal post and made a right turn into the intersection against the red light. There was significant cross traffic in the intersection, and cars had to swerve or abruptly apply their brakes to avoid hitting the Bronco.

      32

      Lima then drove through another red light without stopping or braking. A driver who had started to pull her car out into the street from a nearby driveway saw the Bronco run the red light and quickly put her car into reverse to avoid being hit. As Lima sped through the intersection, he almost collided with a small white pickup truck.

      33

      Following closely behind the Bronco, Officer Burow's patrol car broadsided another car that was crossing through the intersection. Officer Burow quickly got out of his car, pulled the driver, June Meng, from her car and performed CPR on her for several minutes. However, Meng died as a result of the crash. Officer Burow was transported to the hospital. He suffered a whiplash injury and a contusion on his right elbow.

      34

      Officer Glazewski continued to pursue the Bronco, which sped through another stop sign and drove into a residential area, where Lima parked it. Lima and Le got out of the Bronco, and Officer Glazewski attempted to chase Le, but lost sight of him. After a search involving a police dog, officers found Le hiding in a juniper bush. Officers recovered cash from Le and found a bag with jewelry and money in the Bronco.

      35

      Meanwhile, motorist Casey Stoute, who earlier had seen the Bronco being chased, pulled over to see what was happening. Lima came toward him from some bushes in which he had been hiding. Stoute called 911 and pretended to be talking to his girlfriend as Lima approached him. Lima entered Stoute's car, asking for a ride. Stoute insisted that Lima pat himself down and then agreed to give Lima a ride. Stoute drove around, continuing to talk to the 911 operator, while pretending that he was talking to his girlfriend. They stopped for gas at one point and Lima gave Stoute $10 for gas. They continued driving until police stopped the car and arrested Lima. As police approached the car, Lima threw a gold bracelet towards Stoute.

      36
      B. Defense case
      37

       

      38

      A collision reconstruction expert testified that Officer Burow struck the victim's car at about a 90-degree angle and was traveling approximately 53 miles per hour at the time. The victim was traveling about 20 miles per hour. Neither vehicle left any skid marks at the collision site. Officer Burow was 500 to 600 feet from the [819] intersection when the light in his direction turned red. Several motorists estimated that the speed of the cars involved in the pursuit ranged anywhere from 45 to 80 miles per hour. Estimates of the distance between Lima's Bronco and the pursuing officers also varied considerably, from as little as one or two seconds to 30 seconds.

      39

      Le testified that it was his idea to rob Vo's home. He believed that Vo had valuable computer chips in the house. Le threw the gun out of the Bronco during the chase. He was aware that the police were chasing them and asked Lima to stop several times.

      40
      DISCUSSION
      41
       
      42 43
       
      44
      II. The Provocative Act Doctrine Applies to Lima's Actions
      45

       

      46

      Lima asserts that the court erred in allowing the People to try his murder charge under the provocative act doctrine because it is only applicable to cases in which the act causing the death is "a conscious and deliberate use of lethal force with lethal intent." (Fn.omitted.) This contention is unavailing.

      47

      As we stated in Lima I, when a defendant or his accomplice commits a provocative act and his victim or a police officer kills a third party in reasonable response to that act, the defendant is guilty of murder even though he did not act with malice aforethought. (People v. Gilbert (1965) 63 Cal.2d 690, 704-705, 47 Cal.Rptr. 909, 408 P.2d 365, judgment vacated on other grounds in Gilbert v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.) A provocative act is one that is deliberately performed by the defendant or his accomplice with conscious disregard for human life and that has natural consequences dangerous to human life. (CALJIC No. 8.12.) Any act that is "`fraught with grave and inherent danger to human life'" is sufficient to establish that the defendant acted with conscious disregard for human life. (Taylor v. Superior Court (1970) 3 Cal.3d 578, 584, 91 Cal.Rptr. 275, 477 P.2d 131, overruled on other grounds in People v. Antick (1975) 15 Cal.3d 79, 92, fn. 12, 123 Cal.Rptr. 475, 539 P.2d 43.)

      48

      Attempting to escape the scene of a robbery by initiating a high-speed and reckless chase, where the defendant ran red lights and stop signs, collided with one vehicle and almost collided with several others, constitutes "`highly dangerous'" conduct. (People v. Fuller (1978) 86 Cal.App.3d 618, 628, 150 Cal.Rptr. 515 [second degree murder conviction resulting from car chase].) That conduct is sufficient to support a finding that a defendant has acted with conscious disregard for human life. (People v. Satchell (1971) 6 Cal.3d 28, 33-34, fn. 11, 98 Cal.Rptr. 33, 489 P.2d 1361, overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 490, fn. 12, 76 Cal.Rptr.2d 180, 957 P.2d 869 [high speed chase sufficient to permit jury to find implied malice for purposes of establishing second degree murder].)

      49

      Lima asserts, however, that the provocative act doctrine is inapplicable here because it was intended to apply only to "deaths by gunfire at the hands of persons other than the felons." In support of this contention Lima points out that all Supreme Court cases applying the doctrine have involved shootings.

      50

      However, while Lima is correct that historically the provocative act doctrine has been most often applied to gun battles, that fact does not make it inapplicable to [820] this case. No case has ever limited the doctrine to gun battles. Rather, it applies to any conduct that is "`fraught with grave and inherent danger to human life'" so as to show a conscious disregard for human life. (CALJIC No. 8.12; Taylor v. Superior Court, supra, 3 Cal.3d at p. 584, 91 Cal.Rptr. 275, 477 P.2d 131.)

      51

      Cases applying the implied malice element necessary to convict a defendant of second degree murder also demonstrate that engaging in a reckless, dangerous car chase falls within the provocative act doctrine. The showing of malice necessary to prove both second degree murder and provocative act murder is implied malice. (People v. Cervantes (2001) 26 Cal.4th 860, 868, 111 Cal.Rptr.2d 148, 29 P.3d 225; People v. White (1995) 35 Cal.App.4th 758, 768, 41 Cal.Rptr.2d 510; People v. Superior Court (Shamis) (1997) 58 Cal.App.4th 833, 844, 68 Cal.Rptr.2d 388.) "`[M]alice may be implied [if the] defendant [commits] an act with a high probability that it will result in death and does it with a base antisocial motive and a wanton disregard for human life.'" (Shamis, supra, 58 Cal.App.4th at p. 844, 68 Cal.Rptr.2d 388; Pizano v. Superior Court (1978) 21 Cal.3d 128, 134, 145 Cal.Rptr. 524, 577 P.2d 659.)

      52

      In the context of second degree murder prosecutions, an attempt to evade police using a high-speed vehicle chase has been held sufficient to demonstrate implied malice through a conscious disregard for the safety of others. For example, in People v. Fuller, supra, 86 Cal.App.3d 618, 150 Cal.Rptr. 515, the Court of Appeal found a similar high-speed chase where the defendant ran a red light and killed an innocent driver sufficient to demonstrate the implied malice necessary for second degree murder: "Respondents drove at high speeds through main thoroughfares of Fresno in an attempt to elude Officer Ballesteroz. At one point in the chase they drove on the wrong side of Herndon Avenue and caused oncoming cars to swerve off of the road to avoid a head-on collision. They then made a U-turn and sped back to Blackstone Avenue, ran a red light and caused other traffic to stop to avoid a collision. Respondents then drove down Blackstone at speeds estimated between 60 and 75 miles per hour and headed straight at two oncoming police vehicles which were attempting to block their flight. Respondents did not reduce their speed as they approached the officers' vehicles, and only a last minute maneuver by the officers avoided a possible fatal collision. At the next intersection respondents' vehicle which `hadn't slowed down very much' ran the red light and struck and killed the driver of the other car. Under these facts the foreseeability of serious injury or death was apparent to respondents." (Id. at p. 629, 150 Cal.Rptr. 515.)

      53

      As in Fuller, the facts in this case demonstrate that Lima fled police at high speeds and in a reckless manner, showing a conscious disregard for the obvious danger to human life. Lima's conduct satisfies both the implied malice necessary for second degree murder and the elements of provocative act murder: an intentional act that is likely to cause death, committed with a conscious disregard for life. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 104, 13 Cal.Rptr.2d 864, 840 P.2d 969.)

      54

      Lima cites People v. Caldwell (1984) 36 Cal.3d 210, 203 Cal.Rptr. 433, 681 P.2d 274 as supporting his position that provocative act murder is not applicable to high-speed vehicle chases. In that case, three robbers fled a restaurant robbery in a car, with officers in pursuit. (Id. at pp. 214-215, 203 Cal.Rptr. 433, 681 P.2d 274.) At the end of the pursuit, one robber fired at police as the police rammed the suspects' car. (Id. [821] at p. 215, 203 Cal.Rptr. 433, 681 P.2d 274.) Another robber then pointed a gun out of his window, ignoring demands that he drop the weapon. (Ibid.) At the same time a third robber, the driver of the vehicle, got out of the car with a handgun. (Ibid.) The police then opened fire and killed the second robber. (Id. at pp. 215-216, 203 Cal.Rptr. 433, 681 P.2d 274.)

      55

      The California Supreme Court affirmed the murder convictions of the first and third robbers. In doing so, it found that the driver exiting the car with a gun was sufficient for a finding of provocative act murder. (People v. Caldwell, supra, 36 Cal.3d at p. 218, 203 Cal.Rptr. 433, 681 P.2d 274.) The high court then stated, however, that it might be difficult to show a causal connection between the third robber's driving and the ensuing gun battle. (Id. at p. 219, 203 Cal.Rptr. 433, 681 P.2d 274.) Nevertheless, the court went on to hold that the reckless driving could have been the provocative act supporting the murder convictions. (Id. at pp. 219-220, 203 Cal.Rptr. 433, 681 P.2d 274.) Thus, the Caldwell case actually supports the People's position, not Lima's. The high court's concern there was the issue of proximate cause because the shooting occurred after the vehicle had stopped, not whether a high-speed chase is the type of action that could be considered a provocative act. (Ibid.) The court ultimately concluded that the police chase could provide the factual support for provocative act murder. (Ibid.)

      56

      Lima also cites People v. Cervantes, supra, 26 Cal.4th 860, 111 Cal.Rptr.2d 148, 29 P.3d 225 to support his position, pointing to the following language from that case: "The provocative act murder doctrine has traditionally been invoked in cases in which the perpetrator of the underlying crime instigates a gun battle, either by firing first or by otherwise engaging in severe, life-threatening, and usually gun-wielding conduct, and the police, or a victim of the underlying crime, responds with privileged lethal force by shooting back and killing the perpetrator's accomplice or an innocent bystander." (Id. at p. 867, 111 Cal.Rptr.2d 148, 29 P.3d 225.) Lima asserts that this language shows that provocative act murder is only intended to apply to gun battles. However, as discussed above, while provocative act murder has traditionally involved cases where the defendant instigates a gun battle, it is not by definition limited to such factual situations. Neither its elements nor any case law interpreting this doctrine support such a limitation. Since Lima's attempt to escape the scene of a robbery by engaging in a high-speed, dangerous chase was an intentional act committed with a conscious disregard for life, the provocative act doctrine applies.

      57
      DISPOSITION
      58

       

      59

      The judgment is affirmed.

      60

      WE CONCUR: McCONNELL, P.J., and McINTYRE, J.

      61

      [*] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for partial publication with the exception of part I.

      62

      [**] Kennard, J. and Moreno, J. dissented.

      63

      [1] The facts of this alleged sexual battery of Ho come from the transcript of the first trial as at the second trial only the murder charge was retried and these facts were irrelevant to that charge. Lima requested that the record be augmented to include the record from the first appeal and on June 20, 2003, we took judicial notice of the transcript in Lima I.

      64

      [***] See footnote *, ante.

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