Kurr claimed the right to “intervene” to protect the fetuses that were 16 or 17 weeks in gestation. Will this defense prove successful?

In Michigan, the killing of another person in self-defense is justifiable homicide if the defendant honestly and reasonably believes that his or her life is in imminent danger or that there is a threat of serious bodily harm. Michigan also allows the use of deadly force in defense of another. The Court of Appeals of Michigan ruled that the defense also applies to the protection of a fetus, viable or nonviable, from an assault against the mother. This was based on a 1998 law that punishes an individual who harms or kills a fetus or embryo during an intentional assault or who harms or kills a fetus or embryo based on a wanton or willful disregard of the likelihood that the natural tendency of his or her conduct is to cause a miscarriage or stillbirth or threat of bodily harm to the embryo or fetus. The jury should have been instructed to consider the defendant’s “defense of others argument.”

Would you hold Chambers liable for first- or for second-degree murder?

See also State v. Brown 836 S.W.2d 530 (1992, Tenn)

Issue

This is a direct appeal from a sentence of death imposed by the Court of Common Pleas of Philadelphia County on May 26, 2005, for the murder of three-year-old P.B. Appellant Jerry Chambers was convicted by a jury of first-degree murder, criminal conspiracy, aggravated assault, four counts of endangering the welfare of a child, four counts of conspiracy to endanger the welfare of a child, three counts of indecent assault, three counts of indecent exposure, three counts of corruption of a minor, and possession of an instrument of crime, following a capital murder trial that commenced on May 2, 2005.

Facts

The myriad charges in this case arose out of the abuse of P.B. and her three sisters, which culminated on the night of August 16, 2003, when appellant caused the death of P.B. Evidence presented at trial established that in 2002, appellant was living in an apartment located at 1705 South 5th Street in the City of Philadelphia. Tiffany Bennett, the mother of four girls, P.B., age three, P.B.2., age four, A.B.2., age six, and A.B., age ten, knew appellant and his brother, Jason Chambers (“Jason”) from the neighborhood. Bennett met appellant and Jason in 1999, when she moved into the neighborhood to live with her mother. Jason and appellant paid Bennett to braid their hair, and Bennett’s daughters played with Jason’s children. Bennett found appellant to be “a nice guy. I didn’t see anything wrong with him.” Bennett initially asked Jason to babysit the girls, and he did so for some period of time. Precisely when appellant began babysitting the girls is unclear; however, the girls were in his care by the fall of 2002. Appellant babysat the girls during Bennett’s work hours, from 4:00 p.m. until midnight.

The house at 1705 South 5th Street contained three apartments. Jason Chambers lived on the second floor with his two sons, Jayshawn and Jayshine. A woman named Jennifer and her son lived on the third floor, while appellant shared the first floor apartment with Ruth Leonard, whom he called his “godmother.” Bennett’s sister, Candice Geiger, was also living with appellant and Ruth on the first floor. When Bennett first began leaving her children with appellant she was unaware that her sister Candice was living with appellant; however, even after Bennett discovered that her sister was living in the house with her daughters, she never discussed their care or welfare with her.

Bennett initially paid appellant $ 60.00 per week to watch the girls. The girls were in appellant’s apartment for approximately eight hours per day, from 4:00 p.m. until after midnight, when Bennett picked them up and took them to her home. Prior to Thanksgiving of 2002, however, appellant suggested that it would be better for the girls to stay the night at his apartment rather than go home at 1:00 or 2:00 a.m. Bennett agreed, and began to pay appellant $ 80.00 per week for babysitting. At this point, Bennett’s interaction with the children became less frequent and she largely stopped visiting them at appellant’s apartment or taking them home for weekends or special occasions. Someone from appellant’s house would come to her work to get the babysitting money, or she would drop the money off during her lunch break. Bennett spent an hour or so with her children on Christmas Day; then, between Easter and August 17, 2003, she did not see her children at all. In June of 2003, appellant asked Bennett to take her children back, to which she replied, “I don’t want the kids.”

The children lived in deplorable conditions. The apartment consisted of two bedrooms, a bathroom, a living area, and a kitchen. It was filthy and infested with flies and cockroaches. An overwhelming stench of urine permeated the dwelling. The front bedroom was occupied by Ruth Leonard, while the girls shared the back bedroom with appellant and Geiger. There were two doors to the bedroom. One was nailed shut, and the other was stripped of its latch mechanism, and could only be opened by a key. The bedroom was furnished with two beds: one, next to the radiator, for the children; the other for appellant and Geiger. There was a child’s potty overflowing with urine and feces on the floor. There was also feces on the floor around the room, particularly by the children’s bed. The single window was covered with dark plastic, and on the wall were taped six pieces of paper listing “Rules for this room.” Rules one through six instructed the children in their daily chores, while rule seven mandated that everyone “[r]espect [appellant] at all times or every body [sic] gets their ass whooped.”

Appellant regularly beat the four girls with extension cords, belts, a metal pole, and a broomstick. The girls were so severely bruised from the beatings that appellant did not permit them to leave the apartment, even to go to school. If anyone visited, appellant locked the girls in the bedroom or made the girls cover their faces and bodies. When P.B. wet the bed, appellant made A.B. put the three-year-old in a cold shower. To keep P.B. from getting too cold, A.B. would get into the shower with her. The girls were also locked in the basement with appellant’s two pit bulls as punishment, and were fed sporadically and inconsistently. At times, they were forced to eat “dog poop” out of the dogs’ food bowls.

On the night of August 16, 2003, appellant beat P.B. with an extension cord while she was in the shower. Later, he locked A.B. in the basement, and he, Geiger, P.B., A.B.2, and P.B.2 went to bed. Sometime after midnight, appellant and Geiger were having sex when appellant noticed P.B. looking at them. Appellant told her to stop watching, but, when she did not comply, appellant called her over to his bed, beat her with an extension cord, and struck her in the face several times with his hand. Geiger also beat P.B., then appellant picked her up by her feet and threw her across the room. P.B. struck her head on the cast-iron radiator and ended up lodged between the bed, radiator, and wall. She remained there, slowly suffocating, until the next day. Appellant did nothing to help the child; further, he instructed the other girls not to help her.

Around 1:00 p.m. the next day, Jason called the police and told them that P.B. was not breathing. Firefighters dispatched to the apartment found P.B. laying face up on a sofa. Despite realizing that P.B. had been dead for some time, the EMTs attempted to resuscitate her. She was later pronounced dead on arrival at Methodist Hospital.

When police officers arrived at the scene, appellant and Geiger calmly falsified a story that they had put the children to bed at 9:00 p.m. the previous evening, and that when they awoke around 1:00 p.m. the next day, they found P.B. between the wall and the bed. They reported that P.B. was unresponsive when they found her.

Later that day, police found A.B. hiding on the third floor of the building with her head wrapped in a towel. When the towel was removed, the officers found that her eyes were swollen shut and her face so badly beaten that they could not determine her sex. A.B., A.B.2, and P.B.2 were taken to the Children’s Hospital of Philadelphia for treatment. The girls were interviewed by police officers at Children’s Hospital.

A.B.2 was interviewed at the hospital by Detective Richard Reinhold. She stated that appellant had beaten P.B. with an extension cord the night before and that, later that night, appellant again beat P.B. and threw her into the radiator for looking at him and Geiger in bed. She stated that after appellant threw P.B. into the radiator, he “took her off the radiator and threw her behind the bed.” A.B.2 also informed Detective Reinhold that Geiger had instructed her to tell the police that appellant “treated us right, but he didn’t.” She maintained that appellant and Geiger frequently beat them and withheld food, and that on the night that P.B. died A.B. was locked in the basement after having been severely beaten the day before.

A.B. was interviewed by Detective James Owens. A.B. told Detective Owens that “a man” came into the apartment and fought with appellant, and that P.B. fell behind the radiator during the fight and suffocated. A.B. also stated that her own injuries were inflicted by appellant, who beat her because “he thought I did something wrong to my sister.” She also indicated that appellant regularly beat her, A.B.2, and P.B.2, but not P.B., and that the police were not called until 1:00 p.m. the next day because “the phone wasn’t charged,” and because Geiger “didn’t have minutes on her cell phone.” A.B. later testified at trial that appellant had instructed her to lie about what happened to P.B., and to tell police that a strange man had broken into the apartment and fought with appellant.

A.B. was interviewed at the hospital a second time, on August 19, by Detective Aaron Booker. During this interview, A.B. revealed that appellant frequently locked her in the basement so visitors to the house would not see her injuries, and that she had not been to school for a month. She stated that after P.B. was killed, appellant instructed her to hide on the third floor and that, if the police found her, she was to tell them that her injuries were due to a fall. She also stated that appellant had beaten P.B. the night of her death, and that appellant had made her stand in Ruth Leonard’s bedroom with Ruth while P.B. was being beaten.

Warrants for the arrest of appellant, Geiger, and Bennett were issued on August 22, 2003, and the charges against each defendant were consolidated for a single joint trial before the Honorable Renee Cardwell Hughes. The trial commenced on May 2, 2005, and concluded on May 17, 2005.

At trial, the Commonwealth presented medical testimony from Dr. Ian Hood, the deputy chief medical examiner for the City and County of Philadelphia. Dr. Hood testified that P.B. was below normal height and weight for her age, and that she was “very scrawny, very thin, with loose folds of skin that indicated that she had been heavier at some point in time” and then lost that weight in a short period of time. Dr. Hood testified that “[t]he most significant finding about this child was just everywhere you looked on the skin, there was a mark or bruise of a varying age.” The marks and bruises were of various shapes, indicating that they were inflicted with different instruments. The instruments identified by Dr. Hood were two different kinds of belts and buckles, looped cords, and “a couple of patterned, fairly nasty scars that had completely depigmented the skin and were made with something that was about the size of [a] knuckle.” He was unable to determine the exact number of injuries because “the problem in documenting the bruises, the scars, and the abrasions on this child was that many of them did overlap and coalesce.” He estimated thirty to forty areas of injury, and significantly more individual bruises. The most recent of her injuries were inflicted the night of her death, while the oldest were a minimum of two months old.

P.B. had a recently inflicted bruise on her left forehead, another around her left eye, and a third underneath her left eyebrow. There were a series of bruises over the left side of her face, caused by “knuckles or fingers from an adult hand.” Another, similar bruise was on the right side of her face. Describing the injuries to P.B.’s head, Dr. Hood noted that P.B. had thick braids that were “very protective,” but that her scalp was still bruised and abraded in a number of places. Dr. Hood speculated that the scalp injuries could have come from being struck with a hard object or being propelled into an object. Her forehead was marked with a pattern of bruises and indentations consistent with the radiator.

The internal examination revealed further bruising throughout P.B.’s head and body, and internal injuries. P.B.’s liver had undergone “sudden forceful compression” and had ruptured and begun to split apart. Dr. Hood testified that the blood loss from the ruptured liver would not normally have been fatal in and of itself, but given P.B.’s malnourished and weak condition, “it would be certainly capable as acting as the straw that broke the camel’s back.” Consistent with her malnourished state, P.B.’s thymus gland was shrunken. Dr. Hood testified that the state of her thymus gland indicated that she had been under physical stress for a significant period of time.

In addition to the physical abuse, Dr. Hood also determined that P.B. was suffering from a condition called “inanition,” in which, due to severe physical or emotional stress, a child begins to literally waste away. Inanition is a “peculiar condition” specific to neglected and abused infants or children, and is characterized by malnourishment and a shrunken thymus gland. P.B. was “off the bottom of the chart” for a normal three-year-old’s height and weight. P.B. also exhibited a condition called lanugo hair, a growth of body hair typical in infants and in older children suffering from inanition.

Dr. Hood further testified that it took several hours for P.B. to die, but also stated that it was difficult to assign a single cause of death. Instead of a single cause of death such as blunt head trauma or exsanguination from her ruptured liver, he opined, P.B.’s death was due to multiple factors, including the multiple blunt force traumas she suffered, inanition, and asphyxia from lying “crumpled up in a heap” jammed between the bed, the wall, and the radiator. “Putting all of that together, the multiplicity of the blunt trauma, the obvious stress the child had been under, I finally assigned her cause of death as multiple blunt trauma, asphyxia, and inanition. It really was a combination of all three things.” The manner of death was homicide.

A.B.2 and A.B. testified via video. A.B.2 testified that she witnessed appellant grab P.B. by her feet and throw her across the room. She stated that P.B.’s head hit the radiator, and that appellant took her off the radiator and threw her behind the bed. A.B. testified that when she was first interviewed by the police at Children’s Hospital, she had withheld the truth about the extent of the abuse and the events the night of P.B.’s death because she thought that they would be returning to the apartment after being released from the hospital.

Appellant neither testified nor presented witnesses. On May 20, 2005, the jury returned a verdict of guilty of first-degree murder, conspiracy, aggravated assault, four counts of endangering the welfare of a child, four counts of conspiracy to endanger the welfare of a child, three counts of indecent assault, three counts of indecent exposure, three counts of corruption of a minor, and possession of an instrument of crime.

Geiger was convicted of third-degree murder, conspiracy, four counts of endangering the welfare of a child, and four counts of conspiracy to endanger the welfare of a child. Bennett was convicted of four counts of endangering the welfare of a child and four counts of conspiracy to endanger the welfare of a child.

The penalty phase commenced on May 25, 2005. The Commonwealth incorporated the evidence introduced at the guilt phase of the trial. The defense called three witnesses: appellant’s sister, his mother, and a psychologist. The jury found two aggravating circumstances: (1) that the victim was a child under the age of twelve; and (2) that the offense was committed by means of torture. The jury also found two mitigating circumstances: (1) that appellant had no significant history of prior criminal convictions; and (2) that appellant was under the influence of extreme mental or emotional disturbance at the time of the offense. The jury unanimously determined that the aggravating circumstances outweighed the mitigating circumstances, and, accordingly, returned a sentence of death. The trial court then imposed an aggregate term of imprisonment of seventy-two to 144 years for appellant’s other convictions, to be served consecutively to the sentence of death. Post-sentence motions were denied, and this appeal followed.

Reasoning

Appellant first claims that the evidence was insufficient to support his conviction for first-degree murder because the Commonwealth failed to prove that appellant acted with the specific intent to kill when he flung P.B. against the radiator, left the three-year-old to suffocate, and forbade the other children to help their sister. In reviewing the sufficiency of the evidence, this Court must determine whether the evidence admitted at trial, and all reasonable inferences derived therefrom viewed in favor of the Commonwealth as verdict winner, supports the jury’s finding of all the elements of the offense beyond a reasonable doubt. Evidence is sufficient to sustain a conviction for first-degree murder when the Commonwealth establishes that: (1) a human being was unlawfully killed; (2) the accused is responsible for the killing; and (3) the accused acted with specific intent. An intentional killing is a “killing by means of poison, or by lying in wait, or any other kind of willful, deliberate, and premeditated killing.” The Commonwealth may establish that the defendant intentionally killed the victim wholly through circumstantial evidence.

For sufficiency purposes, appellant readily admits he caused P.B.’s death, and that his horrific abuse of P.B. and her siblings was willful and malicious. He argues, however, that the evidence establishes only a pattern of child abuse, which, in his view, precludes a finding of a specific intent to kill the child. As proof that appellant did not act with the specific intent to kill on the night of P.B.’s death, appellant points to the medical examiner’s findings. Appellant argues that the medical examiner did not find that the force with which P.B. hit the radiator alone caused her death, but rather, that her death was the result of “multiple blunt trauma, asphyxia, and inanition.” Appellant also cites the medical examiner’s testimony as providing grounds to question the eyewitness evidence of P.B.’s sister that appellant grabbed P.B. by the feet and smashed” her head into the radiator. Appellant argues that, because the medical examiner testified that this “final blow” would not have been sufficient, in and of itself, to cause P.B.’s death, the evidence is legally insufficient to establish first-degree murder.

Appellant points to what he characterizes as a long history of similar cases in other states, in which child abuse caused the death of a child but various appellate courts supposedly found that there was no specific intent to kill. Appellant leads with a 1920s case from the New York Court of Appeals in which a father strangled his three-year-old daughter. The Court of Appeals remarkably stated, in that case, that it was doubtful “whether the defendant intended to kill his daughter; … it is far more consistent with the evidence that she died as a result of his bad temper and brutal chastisement without any intent to cause her death.” People v. Ingraham, 133 N.E. 575 (N.Y. 1921). Appellant also cites to an Arkansas Supreme Court decision in Midgett v. State, 729 S.W. 410 (Ark. 1987) which the appellant’s conviction for first-degree murder was overturned on sufficiency grounds (concluding that regular and severe beatings the appellant inflicted upon his son evidenced intent to cause serious physical injury, but not to kill). In addition, appellant cites to cases from Tennessee, California, and Oklahoma. From these cases, appellant asks that we adopt a bright-line rule that evidence of the abuse of a child, no matter how severe, is legally insufficient, in and of itself, to support a finding of first-degree murder.

Appellant argues that some additional proof, above and beyond the deadly physical abuse of a child, is required. As examples of such additional proof, appellant suggests a verbal confession by the abuser that his or her intent was to cause the child’s death, or some action from which the only possible outcome was death. In fact, appellant goes a step further in his conclusions, arguing that the fact of abuse itself should be deemed to negate a finding of specific intent to kill because the goal of all abusers, supposedly, is to punish and to continue the abuse. Killing the victim, appellant argues, would actually deprive the abuser of one of his chief pastimes and a primary emotional outlet; thus, it would be counterintuitive to find that the abuser intended to kill the victim.

Appellant bolsters this argument by pointing to this Court’s decision in Commonwealth v. Tharp, 830 A.2d 519 (Pa. 2003). In Tharp, we affirmed the appellant’s conviction for first-degree murder arising out of the starving death of her daughter. Appellant argues that the evidence in Tharp was sufficient to sustain a verdict of first-degree murder because Tharp made statements confirming her intent to kill her daughter and engaged in a course of conduct “that could only lead to death,” i.e. starvation. Additionally, appellant argues that Tharp evidenced her guilt by hiding her daughter’s body and informing the police that she had been kidnapped. By contrast, appellant observes that there was no evidence that he made statements indicating that he intended to kill P.B. and he never attempted to conceal her body, and he argues that P.B. could potentially have survived the abuse that he inflicted upon her. While the trial court held that the jury could conclude that appellant intended to kill P.B. solely from the fact that appellant threw P.B. into the radiator and left her to suffocate, appellant maintains that absent proof that it is “common knowledge” that those actions will result in the death of a child, the evidence was insufficient to support the verdict.

The Commonwealth responds that the evidence was more than sufficient to support the jury’s verdict, arguing that appellant’s argument amounts to a request that this Court reweigh the evidence and substitute its factual findings for those of the jury. The Commonwealth characterizes appellant’s sufficiency argument as merely an attempt to recast the evidence in a light more favorable to appellant, arguing that appellant’s portrayal of the facts in his appellate brief is “far different from the one the jury heard and the evidence established.” The facts received by the jury, the Commonwealth notes, include evidence that appellant repeatedly beat P.B. on the night of her death, then threw her headfirst across the bedroom into a cast iron radiator. Ordering A.B.2 not to help her sister, appellant then left P.B. to suffocate. From this evidence, the Commonwealth urges that the jury could reasonably conclude that appellant had formed the specific intent to kill P.B. when he picked her up and threw her into the radiator.

The trial court found that the evidence was sufficient to establish the specific intent to kill, and that the jury had two independent factual bases upon which to base its finding of specific intent. According to the trial court, specific intent could be sustained solely on the basis of the testimony that appellant picked up three-year-old P.B. by her feet and threw her across the room and into the radiator. The trial court also found, however, that the finding of specific intent could be sustained on the basis of appellant’s course of conduct towards P.B.

We agree that the evidence was sufficient to warrant the jury in finding first-degree murder. It is true that the medical examiner testified that a healthy three-year-old could have survived being thrown across the room and into the radiator. However, the fact that another child could have survived the act did not prevent the jury from finding that appellant acted with the specific intent to kill. Rather, it simply indicates that, had circumstances been wholly different, appellant may not have succeeded in his attempt. Moreover, appellant did more than throw the child into the radiator: he also hit the child, picked her up after throwing her into the radiator, and threw her between the bed and the wall. For good measure, appellant also ordered the child’s sister not to help her get up, then left the child in that condition for hours. In short, there is no factual predicate for a “single-act” theory.

In any event, sufficiency review requires examining the entire record. The jury could find that appellant’s intent to kill P.B. was further proven by the course of conduct that culminated on the night of her murder. In arguing that the evidence was insufficient because P.B.’s death was caused by suffocation rather than solely by the impact with the radiator, appellant asks this Court to draw different inferences than those available to the jury. We recently rejected a similar “one-blow” argument in Commonwealth v. Powell, 956 A.2d 406 (Pa. 208). In Powell, this Court held that a pattern of child abuse, culminating in an hours long beating that ended in the child’s death, was sufficient to sustain the jury’s finding of specific intent to kill despite the medical examiner’s inability to point to a “final blow” that definitively caused the child’s death. In that case, the victim’s death was brought about by a seizure, to which the child was predisposed due to the repeated beatings and blows to the head that Powell had inflicted on him. While the child may have survived the final beating absent this preexisting condition (inflicted by Powell), we nonetheless concluded that the evidence overwhelmingly supported a finding of specific intent to kill.

The evidence in this case, shorn of the defense inferences appellant urges us to draw, revealed that appellant inflicted severe abuse upon P.B. and her sisters that logically culminated in a final event that brought about the child’s death. After starving and abusing her for months, appellant repeatedly beat P.B. on the night of her death. Later that night, when P.B. disobeyed him by looking while appellant and Geiger engaged in sex, appellant called the three-year-old over, hit her repeatedly, picked her up, threw her across the room into a cast-iron radiator, then picked her back up and threw her between the bed and the wall. Appellant then instructed P.B.’s older sister not to help her get up, from which the jury could infer that appellant knew that P.B. was unable to move or to help herself. While appellant and Geiger returned to their sexual activities, unconcerned about the helpless child’s predicament, P.B. remained wedged behind the bed and radiator for hours, apparently unable to extract herself due to her injuries and weakened condition, and slowly suffocating. There P.B. remained until the next day, when Jason called the police at 1:00 p.m. in the afternoon. In the meantime, appellant went about instructing the other children to lie to the police.

From this evidence, the jury could reasonably conclude that, even if appellant had not intended to kill P.B. when he beat her with belts, extension cords, and a broom handle, made her stand in front of an air conditioner after] beating her in a cold shower, withheld food, forced her to eat “dog poop,” locked her in a room with two pit bulls, and isolated her from any outside person who may have noticed the abuse, he formulated the intent to kill when he threw her into the radiator, left her to suffocate, and forbade others to help her. The fact that appellant argues that he “only” intended to abuse P.B. in the days before her murder does not mean the jury was obliged to believe that theory (for which there was no testimonial support), nor does it somehow negate a finding that he decided later to kill her. Further, the fact that a single blow would not have killed the child had the child not been in a weakened state does not show that appellant did not intend to kill the child, only that, absent the history of abuse, he may have been unsuccessful in this particular attempt.

We also are not persuaded by appellant’s citation to cases from other jurisdictions, from which appellant would extrapolate his heightened child abuse paradigm respecting proof of specific intent. Within broad constitutional parameters, the states are free to define crimes as they see fit. In addition to the fact that these cases do not bind us, select references to individual case circumstances means little absent some understanding of the way a state approaches first-degree murder. For example, in State v. Brown, a case prominently discussed by appellant, the Tennessee Supreme Court held that “the deliberation necessary to establish first-degree murder cannot be formed in an instant.” State v. Brown, 836 S.W.2d 520 (Tenn. 1992). The Arkansas Supreme Court employed similar reasoning in Midgett v. State, another case appellant relies upon. But, it is well established in Pennsylvania law that the specific intent to kill can be formed in a fraction of a second, and may be found whenever the defendant acts with a conscious purpose to bring about the death of the victim. Beyond that, in Pennsylvania, it is a jury question. Further, Midgett, decided by the Arkansas Supreme Court in 1987, was overturned by statute one year later when the Arkansas legislature responded to Midgett’s reasoning by amending the first-degree murder statute to include “knowingly causing the death of a person fourteen or younger under circumstances manifesting cruel and malicious indifference to the value of human life.” In any event, as we have noted, the evidence here showed not only a specific blow, but immediate prior abuse, a failure to so much as check on the child, and appellant forbidding the victim’s sister from going to her assistance. Murder cases inevitably are fact-driven, and the attempt to extrapolate some broad rule fails when it does not account for all of the circumstances.

Similarly unpersuasive is appellant’s reliance on People v. Ingraham. First, Ingraham did not grant the relief or establish the rule appellant seeks here; rather, the Ingraham court granted relief on a claim attacking the weight of the evidence and remanded for a new trial, permitting another jury to pass on the evidence. Moreover, to the extent that the New York Court of Appeals can be read to be suggesting, as a matter of law, that choking the life out of a child—which required the application of force for three to five minutes—cannot prove specific intent, we view it as either unpersuasive, or perhaps, an uncomfortable remnant of an earlier time in another place.

As for appellant’s argument that the jury could not find that he acted with the specific intent to kill because it is not “common knowledge” that throwing a three-year-old child into a radiator will result in that child’s death, once again, this argument fails to come to terms with the entirety of the evidence. Moreover, the jury, which is free to bring its own common sense to bear upon its task, may well have a different view of what is “common knowledge.”

Finally, appellant argues that, in addition to being infirm under Pennsylvania’s definition of first-degree murder, the evidence here was “constitutionally deficient” because it did not prove his guilt beyond a reasonable doubt. Notably, the child abuse cases from other jurisdictions appellant has cited do not purport to be premised on federal law. In any event, as appellant realizes, the federal due process command is that evidence be sufficient beyond a reasonable doubt. For the reasons above stated, we find that the totality of the evidence, viewed in the light most favorable to the Commonwealth, amply proved specific intent to kill beyond a reasonable doubt.

That the pattern of abuse and neglect substantially contributed to P.B.’s death; the course of conduct instruction was supported by this evidence. Furthermore, the evidence showed that appellant took four young girls into his home and turned that home into a virtual torture chamber, inflicting horrific abuse upon them for months. Appellant’s ongoing actions regarding the children revealed his course of conduct, which culminated in the death of P.B. The Commonwealth argued that the jury should infer from this evidence that appellant intended not only to kill P.B., but to do so in a prolonged and painful way. Appellant now counters that the jury was obligated to infer that he took such pleasure in abusing P.B. that he would never wish to kill her and deprive himself of that pastime. Appellant was, of course, free to argue whatever inferences he chose to the jury, but the jury was equally free to disbelieve his claims. It is neither self-evident nor logical that sustained child abuse and an intention to kill are mutually exclusive. The jury in this case was free to conclude that a course of conduct involving abusing, starving, isolating and terrorizing a helpless three-year-old child indicates an intention to kill that child. We see no logical reason to transform appellant’s fact-specific argument into a point of law, and to forbid future juries from drawing their own inferences from the evidence presented. Moreover, the charge properly left it to the jury to determine whether there was a course of conduct, and if so, whether that tended to prove specific intent to kill. Accordingly, no relief is warranted.

Is Berry guilty of killing with an abandoned and malignant heart?

There are several prerequisites for affixing second-degree murder liability upon an unintentional killing. One requirement is the defendant’s extreme indifference to the value of human life, a condition which must be demonstrated by showing the probability that the conduct involved will cause death. Another requirement is awareness either (1) of the risks of the conduct, or (2) that the conduct is contrary to law. Here, evidence of the latter requirement is first, that the very possession of Willy may have constituted illegal keeping of a fighting dog. Second, there is evidence that defendant kept Willy to guard marijuana plants, also conduct with elements of illegality and antisocial purpose. Thus the second element could be satisfied here in a number of ways.

Here we have evidence of the elements of second-degree murder as described in these decisions, namely, the high probability the conduct will result in the death of a human being, a subjective appreciation of the risk, and a base antisocial purpose or motive. The People point to these facts: The homes of defendant and the victim’s family shared a lot and were in close proximity, the Soto family had four very young children and defendant knew this; defendant knew the dog Willy was dangerous to the children, as evidenced by the mother’s testimony that he told her that dog could be dangerous but was behind a fence; defendant in fact lulled Yvonne into a false sense of security by assuring her the dangerous dog was behind a fence when he was in fact accessible; defendant bred fighting dogs and had knowledge of the nature and characteristics of fighting pit bulls; defendant had referred to Willy as a “killer dog”; pit bulls in fact are sometimes dangerous and will attack unpredictably and without warning; and Willy was a proven savage fighting dog.

From this mass of evidence it is possible to isolate facts which standing alone would not suffice as the basis of a murder charge. For example, we do not believe that a showing that Willy was dangerous to other dogs, without more, would be sufficient to bind over his owner on a murder charge; there is no evidence in this record that dogs who are dangerous to their own kind are dangerous to human beings and therefore there is no support for an inference that the owner of such a dog should be aware of any such danger. But the evidence amassed here goes beyond demonstrating that Willy was aggressive towards his own kind. We believe this record shows first, that Willy’s owner may have been actually aware of the dog’s potential danger to human beings. This mental state may be proved by showing he kept the dog chained, he warned the child’s parents that the dog was dangerous to children, and he spoke of the dog as dangerous. Second, the testimony of the animal control officer could support an inference that fighting pit bull dogs are dangerous to human beings, and the record of defendant’s extensive knowledge of the breed could support an inference that he knew such dogs are dangerous.

There is also evidence, consisting mainly of physical evidence seized from defendant’s home, showing that defendant is a connoisseur of fighting pit bull dogs and had sought out a vicious dog in order to have him fight successfully.

Thus there is a basis from which the trier of fact could derive the two required elements of implied malice, namely existence of an objective risk and subjective awareness of that risk. Additionally, there is arguably some base and antisocial purpose involved in keeping the dog (1) because harboring a fighting dog is illegal and (2) because there is some evidence the dog was kept to guard an illegal stand of marijuana. Illegality of the underlying conduct is not an element of the charge, but may be relevant on the issue of subjective intent. We do not know the actual probability that a death could result from defendant’s conduct in keeping the dog. Presumably that is a question of fact to be submitted to the court or jury upon appropriate instructions requiring that it find a high probability that death would result from the circumstances before it can convict of murder.

Defendant emphasizes the facts that Willy had never before attacked a human being and that he was kept chained on the premises. First, the fact that the dog was kept chained lessened little the risk which he posed, in view of the close proximity of very young children, the obvious risk of a child’s wandering near, and indeed being attracted to a seemingly harmless pet, and the easy accessibility to his vicinity. The mere fact he was chained clearly cannot, under the circumstances of record, absolve the owner of blame. Also, the fact that defendant took the precaution of restraining the dog is a fact which might show he knew the dog was dangerous. A similar inference may rest on the facts the dog was a pit bull, bought for his fighting ability, bred and conditioned as a fighting dog, kept chained, and described by defendant as a killer. These circumstances clearly support an inference defendant knew his dog was dangerous to humans.

We conclude that it is for the jury to resolve the factual issues of probability of death and subjective mental state. There is sufficient evidence to justify trial for murder on an implied malice theory (text taken directly from judgment of the court).

Was providing alcohol to the defendant’s underage sister a felony that is dangerous to human life? Should felony murder be limited to felonies such as robbery, rape, arson, burglary, and kidnapping? How did the defendant’s act cause the death of the young juvenile victim? Do you agree with the dissent that the “imposition of liability for unintended deaths erodes the relationship between criminal liability and moral culpability”?

The crime of furnishing alcohol to a minor is a felony that is potentially dangerous in light of the facts and circumstances surrounding both the felony and the homicide In so finding, the court observes that the state legislature, by making the furnishing of alcoholic beverages to persons under the age of twenty-one a felony punishable by up to five years in prison, has made “alcoholic beverage” a controlled substance and persons under twenty-one years of age a protected class. Thus, it can be fairly said that in Oklahoma, the proscribed felony is “inherently dangerous as determined by the elements of the offense.” Therefore, under the facts of this case, Appellant can be said to have perpetrated the homicide of Dena Emery, while he was engaged in the commission of a continuing felony. While Appellant was not actually present when the alcohol was consumed, he and his co-defendant purchased a bottle of vodka and provided it to his underage sister, knowing her intention to share it with her overnight guests, both of whom were also underage. For purposes of the felony murder statutes, these actions are sufficient for a conviction when one of the girls drank excessive amounts of that alcohol and died of blood alcohol poisoning.

The danger the legislature obviously intended to protect against was the consumption of that alcohol by persons who are not old enough to make good decisions regarding it, not just the receiving of it. In other words, the legislature has decided to protect anyone under the age of twenty-one from the dangers associated with consuming alcohol. Thus, the act of delivering alcohol to one in the protected class can fairly be considered a continuing illegal act, for alcohol is dangerous when it is consumed to excess. That this is a continuing act is especially true here since Appellant knew his sister and her underage friends intended to consume the vodka and immediately left to do so upon receiving the bottle. It would simply be too strict an interpretation to say that the felony was completed upon delivery and that felony murder was therefore not possible. Indeed, the act of distributing or dispensing or trafficking in illegal drugs may serve as predicate crimes for first-degree felony murder. Similar to the facts of this case, the act of distributing narcotics is also complete when the drugs are delivered, but that does not avoid criminal responsibility for felony murder.

While cases have, perhaps, used proximate cause terminology a bit loosely over the years, our overall case law requires a nexus between the underlying felony and the victim’s death in order for the felony murder doctrine to be applicable. “There must be a nexus between the underlying felony and the death of the victim. The felony must be inherently or potentially dangerous to human life, inherently dangerous as determined by the elements of the offense or potentially dangerous in light of the facts and circumstances surrounding both the felony and the homicide” (text taken directly from judgment of the court).

What is your view? Should the Kansas court use the agency or proximate cause theory?

The proximate cause approach provides that liability attaches “for any death proximately resulting from the unlawful activity—even the death of a co-felon—notwithstanding the killing was by one resisting the crime.” Under the proximate cause approach, felony murder may preclude consideration of the deceased’s identity, which would make a defendant liable for all deaths caused by others during the crime. Application of the proximate cause varies greatly by jurisdiction because the statutes differ substantially. The proximate cause approach becomes controversial when the homicide is committed by someone other than the felons, but only a minority of jurisdictions follow this approach.

“The majority rule is that the felony-murder doctrine does not apply if the person who directly causes the death is a non-felon.” The reasoning of this approach stems from accomplice liability theory. Generally speaking, the acts of the primary party (the person who directly commits the offense) are imputed to an accomplice on the basis of the agency doctrine. It is as if the accomplice says to the primary party: “Your acts are my acts.” It follows that a co-felon cannot be convicted of the homicides because the primary party was not the person with whom she was an accomplice. It is not possible to impute the acts of the antagonistic party—the non-felon or the police officer—to a co-felon on the basis of agency.

An alternative theory, followed by a few courts for awhile, holds that a felon may be held responsible under the felony-murder rule for a killing committed by a non-felon if the felon set in motion the acts which resulted in the victim’s death. “Pursuant to this rule, the issue becomes one of proximate causation: if an act by one felon is the proximate cause of the homicidal conduct by [the non-felon] or the police officer, murder liability is permitted.” “Although it is now generally accepted that there is no felony-murder liability when one of the felons is shot and killed by the victim, a police officer, or a bystander, it is not easy to explain why this is so.” The author discusses foreseeability and that it is not correct to say that a felon is never liable when the death is lawful because it is “justifiable” and goes on to state: “A more plausible explanation, it is submitted, is the feeling that it is not justice (though it may be poetic justice) to hold the felon liable for murder on account of the death, which the felon did not intend, of a co-felon willingly participating in the risky venture. It is true that it is no defense to intentional homicide crimes that the victim voluntarily placed himself in danger of death at the hands of the defendant, or even that he consented to his own death: a mercy killing constitutes murder; and aiding suicide is murder unless special legislation reduces it to manslaughter. But with unintended killings it would seem proper to take the victim’s willing participation into account.”

The leading case adopting the agency approach is Commonwealth v. Redline, 495, 137 A.2d 472 (1958), where the underlying principle of the agency theory is described as follows: “In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of killing. The mere coincidence of homicide and felony is not enough to satisfy the felony-murder doctrine.”

The following statement from Redline is more persuasive for Sophophone: “In the present instance, the victim of the homicide was one of the robbers who, while resisting apprehension in his effort to escape, was shot and killed by a policeman in the performance of his duty. Thus, the homicide was justifiable and, obviously, could not be availed of, on any rational legal theory, to support a charge of murder. How can anyone, no matter how much of an outlaw he may be, have a criminal charge lodged against him for the consequences of the lawful conduct of another person? The mere question carries with it its own answer.”

The minority of the states whose courts have adopted the proximate cause theory believe their legislatures intended that any person, co-felon, or accomplice who commits an inherently dangerous felony should be held responsible for any death which is a direct and foreseeable consequence of the actions of those committing the felony. These courts apply the civil law concept of proximate cause to felony-murder situations. It should be mentioned that some courts have been willing to impose felony-murder liability even where the shooting was by a person other than one of the felons in the so-called “shield” situations where it has been reasoned “that a felon’s act of using a victim as a shield in compelling a victim to occupy a place or position of danger constitutes a direct lethal act against the victim.”

It has previously been suggested that the wording in Kaesontae, 260 Kan. 386, relating to “time, distance, and the causal relationship between the underlying felony and the killing” should be interpreted to mean we have adopted the proximate cause approach. That is not the case as this phrase is one which relates to the question of whether the killing occurs during the commission of or flight from the underlying felony. The Kansas cases which have used this wording involved situations where the court was determining if the killing was sufficiently related to the felony in terms of time, distance, and causation in order to constitute felony murder. None of those cases hold that we have adopted the proximate cause approach to the killing of a co-felon by a third party.

Nor have we adopted the proximate cause approach because of our holding and language in State v. Shaw, 405, 921 P.2d 779 (1990), where we held that a defendant who bound and gagged a 86-year-old robbery victim with duct tape was liable for the victim’s death when he died of a heart attack while so bound and gagged. Although we may speak of causation in such a case, our ruling in Shaw is better described by quoting the principle that: “The victim must be taken as the defendant finds him. Death resulting from a heart attack will support a felony-murder conviction if there is a causal connection between the heart attack and the felonious conduct of the defendant.” This is not the embracing of a proximate cause approach under the facts we face.

An additional argument has been made that when we approved the language of relating to the causation required by the law for felony murder in State v. Lamae, 998 P.2d 106 we recognized that the killing could be perpetrated by the defendant or another. The case involved the death of a participant in a methamphetamine fire. Our opinion did state: “It is true that there must be a direct causal connection between the commission of the felony and the homicide to invoke the felony-murder rule. However, the general rules of proximate cause used in civil actions do not apply.” This language, if taken in isolation, is much more favorable to Sophophone’s position. However, we believe that neither this statement nor the “or another” language in Lamae should be given undue consideration when we resolve the different question we face here.

The overriding fact which exists in our case is that neither Sophophone nor any of his accomplices “killed” anyone. The law enforcement officer acted lawfully in committing the act which resulted in the death of the co-felon. It appears to the majority that to impute the act of killing to Sophophone when the act was the lawful and courageous one of law enforcement officer acting in the line of his duties is contrary to the strict construction we are required to give criminal statutes. We believe that making one criminally responsible for the lawful acts of a law enforcement officer is not the intent of the felony-murder statute as it is currently written. It does little good to suggest one construction over another would prevent the commission of dangerous felonies or that it would deter those who engage in dangerous felonies from killing purposely, negligently, or accidentally. Actually, innocent parties and victims of crimes appear to be those who are sought to be protected rather than co-felons. We hold that under the facts of this case where the killing resulted from the lawful acts of a law enforcement officer in attempting to apprehend a co-felon, Sophophone is not criminally responsible for the resulting death of Somphone Sysoumphone, and his felony-murder conviction must be reversed.

 

State v. Kalathakis, 543 So.2d 1004 (La. 1990)

Lemmon, Justice.

The principal issue in this case is whether the felony-murder/manslaughter doctrine may be extended to include the killing by the police of defendant’s co-perpetrator of the underlying felony, after the police had chased the co-perpetrator from the scene of the felony into the woods and had shot the co-perpetrator in retaliation to gunfire instigated by the co-perpetrator.

The police had suspected that Patrick Langley and defendant were manufacturing methamphetamine in the mobile home where they resided together. On February 7, 1987, a police informant purchased a controlled dangerous substance from Langley. The following night fourteen police officers, divided into two assault teams, went to the mobile home to conduct a raid.

The members of the first team, accompanied by two trained police dogs, approached the trailer on foot through the woods. These officers observed a heavily armed man, later identified as Larry Calhoun, leave the rear of the trailer and walk toward a shed. The dogs with Calhoun apparently sensed the police dogs and began barking, alerting Calhoun to the presence of the police. Calhoun directed his flashlight toward the officers. When the officers identified themselves, Calhoun began running down the driveway just as the members of the second assault team were approaching.

Three officers and the dogs pursued Calhoun. During the chase, at a point approximately one-quarter of a mile from the trailer, Calhoun turned quickly and shot one of the officers. The other officers returned the fire and killed Calhoun.

In the meantime the second assault team approached the trailer down the main driveway. Trooper Dan Daughtery entered the trailer first, shouting, “Police coming in”. Deputy Dale Folds, looking through the bedroom window, saw defendant with her finger on the trigger of a pistol raised above her head, standing in a “combat stance” as if she were waiting to shoot whoever entered the room. Knowing that police officers had entered the trailer, Deputy Folds broke the bedroom window and ordered defendant to drop the weapon. Trooper Daughtery, who was making his way through the trailer, heard the glass breaking and the shouted order to drop the gun. Daughtery ran toward the sound, kicked in the bedroom door, and found defendant.

Daughtery then heard noises coming from the bathroom that could only be entered through the bedroom in which he found defendant. He kicked in the bathroom door and saw Langley pouring a dark brown liquid down the bathtub drain. Daughtery noticed a heavy chemical odor which he recognized as that produced during the manufacture of methamphetamine. Both Langley and defendant were arrested.

Langley pleaded guilty to manufacturing methamphetamine. He subsequently testified at defendant’s trial that defendant did not assist in the operation and threatened to leave him when she learned he was involved in manufacturing the drug.

Defendant was convicted of attempted manufacturing of methamphetamine, manslaughter of co-perpetrator Calhoun, and attempted manslaughter of Deputy Daughtery. She was sentenced to concurrent terms of five, four and two years respectively.

The court of appeal affirmed the convictions. As to the conviction for the manslaughter of Calhoun, the court concluded that Calhoun died as a direct result of defendant’s acts of attempting to manufacture drugs. The court reasoned that the drug manufacturers’ arming themselves, as part of the overall scheme, set into motion a chain of events which created a great risk of harm and that Calhoun’s death was “within the ambit of reasonably foreseeable possibilities”.

Defendant’s application for certiorari was granted to review the felony-manslaughter conviction. La.Rev.Stat.Ann. 14:31, which defines the crime of manslaughter.

Manslaughter is: “(2) A homicide committed, without any intent to cause death or great bodily harm. (a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1 or of any intentional misdemeanor directly affecting the person.” [Emphasis added]

In the present case the prosecutor’s theory of felony-manslaughter was that a homicide (the killing of a human being by the act of another) occurred when defendant was engaged in the attempted manufacture of methamphetamine, although defendant had no intent to cause death or great bodily harm to Calhoun.

Defendant contends that Section 31(2)(a) does not encompass the killing by police officers of a co-perpetrator of the underlying felony one-fourth of a mile from the place where the underlying felony was committed. She relies on State v. Garner, in which the defendant, while involved in an argument with a bartender, lunged at the bartender with a knife, prompting the bartender to shoot a pistol at the defendant in self defense. The bullet missed the defendant, but struck and killed an innocent bystander. This court reversed the defendant’s conviction of manslaughter, holding that the manslaughter statute did not make the defendant responsible for a killing resulting from a self-defensive act committed by the attacked person. The court indicated that the actual killer must be the defendant or a principal with the defendant in the perpetration of the underlying felony.

On the other hand, the prosecutor contends that the theory of proximate cause used in State v. Statum, 390 So.2d 866 (La. 1980), should control this case. In Statum the thirteen-year-old victim jumped from the defendant’s moving car under the compulsion of an imminent sexual assault by the defendant and died the next day of multiple injuries sustained in the fall. The court, noting that the victim jumped from the car “because of the attempted carnal knowledge of a juvenile violation”, held that the defendant was properly convicted of manslaughter. Although the victim’s act of jumping from the car caused her death, the defendant’s conduct was the precipitating cause of her jumping.

In the present case the court of appeal distinguished the Garner decision on the basis that the victim in Garner was an innocent bystander, while the victim in this case was a co-perpetrator of the underlying felony. However, the identity of the victim is hardly a sufficient factor to justify refusing to apply Garner in this case. Accordingly, the prosecutor urges that we consider modifying Garner and adopting a less restrictive theory of causation in felony-murder/manslaughter cases.

Criminal conduct in Louisiana consists of (1) conduct producing criminal consequences combined with criminal intent, (2) conduct producing criminal consequences without any requirement of criminal intent, and (3) criminal negligence. La. Code Crim.Proc. art. 8. Intentional crimes traditionally have consisted of two elements, the physical element of act or conduct and the mental element of intent. The felony-murder doctrine originally applied to the intent element of a crime in that the doctrine allowed the mens rea of the underlying felony to provide the malice necessary to transform an unintended homicide into a murder. On the other hand, the physical element of the defendant’s act or conduct is not encompassed by the felony-murder doctrine, but involves a separate question of causation. The additional element of the defendant’s act or conduct in causing criminal consequences must still be proved.

A causal relation between the defendant’s conduct and the harm for which the prosecutor seeks to impose criminal sanctions is an essential element of every crime. Causation is a question of fact which has to be considered in the light of the totality of circumstances surrounding the ultimate harm and its relation to the actor’s conduct. A defendant should not be held responsible for remote and indirect consequences which a reasonable person could not have foreseen as likely to have flowed from his conduct or from those consequences which would have occurred regardless of his conduct.

Some jurisdictions have adopted the Garner rationale and limited the felony-murder and the felony-manslaughter doctrines to cases in which the conduct that caused the death was the conduct of the defendant, or of his accomplice or confederate, done in furtherance of the design to commit the felony. Commonwealth v. Redline, 137 A.2d 472 (1958), which held that the doctrine did not apply when shots by policemen returning the defendant’s fire during an armed robbery killed the defendant’s co-perpetrator. The court, stating that “[d]eath must be a consequence of the felony … and not merely coincidence”, noted that the officers’ conduct in shooting the accomplice was lawful and could not support a charge of murder.

The comment in Note, Recent Cases, 71 Harv.L.Rev. 1565 (1958), discussing the Redline decision, stated: 

“It seems preferable, however, to impose liability only for homicides resulting from acts done in furtherance of the felony. A closer causal connection between the felony and the killing than the proximate-cause theory normally applicable to tort cases should be required because of the extreme penalty attaching to a conviction for felony murder and the difference between the underlying rationales of criminal and tort law. The former is intended to impose punishment in appropriate cases while the latter is primarily concerned with who shall bear the burden of a loss. Requiring this closer causal connection, although it precludes the imputation of the act of killing under the felony-murder rule, would not relieve a felon from responsibility for homicides committed by a cofelon since one member of a conspiracy is responsible for the acts of his coconspirators committed in furtherance of the object of the conspiracy.”

A felony (such as robbery) which involves a homicide is qualitatively more blameworthy than a mere robbery. However, there is logical justification for punishing a robber for an unintended murder or manslaughter occurring during the course of the robbery only when the robber’s conduct was a legal cause of the homicide. Something more is required than “but for” causation. This court in State v. Matthews, stated that legal cause in criminal cases requires that the defendant’s act was a “substantial factor in bringing about the forbidden result”. The Matthews case involved a prosecution for second-degree murder in which the defendant and a companion beat the victim into unconsciousness and left her for dead on the sloping bank of a canal. The victim’s body was found in the canal, and the pathologist determined that her death was caused by drowning. This court concluded that the beating was a substantial contributing cause of the victim’s death even if she rolled, crawled or stumbled into the water and drowned.

Causation was also at issue in State v. Taylor. The Taylor case was a prosecution for vehicular homicide, a crime defined in part as “the killing of a human being caused proximately or caused directly by an offender engaged in the operation of … any motor vehicle …, whether or not the offender had the intent to cause death or great bodily harm, when (1) the offender is under the influence of alcoholic beverages”, as determined by blood alcohol tests. This court held that the legislative intent to punish a person whose unlawful blood alcohol concentration combined with his vehicle operation to cause the death of a human being required the prosecutor to prove a causal link between the blood alcohol level and the killing.

In the present case the felony-manslaughter rule embodied in La.Rev.Stat. Ann. 14:31(2)(a) permits defendant’s conviction for the homicide, despite defendant’s lack of intent to cause death or great bodily harm, but the prosecutor was also required to prove that defendant’s conduct was a legal cause of the killing. Unlike the defendant’s conduct in Statum in making sexual advances which caused a minor to jump from the car to her death, this defendant’s conduct in attempting to produce methamphetamine can hardly be determined to be a substantial factor in the killing of Calhoun. This killing, in the manner in which it occurred, was not reasonably foreseeable when defendant set out to manufacture drugs. Moreover, Calhoun’s flight to evade the police and his firing at his pursuers were intervening acts which weakened any causal relationship between defendant’s manufacturing of drugs and the killing. On the evidence in the present case a rational juror could have found that Calhoun would not have been killed in the woods but for the drug manufacturing operation being conducted by Langley, Calhoun and defendant in the trailer. However, even if we were inclined to modify Garner by adopting a less restrictive theory of causation in felony-manslaughter cases, the evidence in the present case was insufficient for a rational juror to conclude that defendant’s conduct related to the manufacturing of drugs was a substantial factor in bringing about Calhoun’s death. The portion of the judgment of the court of appeal affirming defendant’s conviction and sentence for manslaughter is reversed, and defendant is discharged as to that charge.

As a judge, how would you rule in this case?

543 So.2d 1004 (La.  1990)

LEMMON, Justice.

The principal issue in this case is whether the felony-murder/manslaughter doctrine may be extended to include the killing by the police of defendant's co-perpetrator of the underlying felony, after the police had chased the co-perpetrator from the scene of the felony into the woods and had shot the co-perpetrator in retaliation to gunfire instigated by the co-perpetrator.

The police had suspected that Patrick Langley and defendant were manufacturing methamphetamine in the mobile home where they resided together. On February 7, 1987, a police informant purchased a controlled dangerous substance from Langley. The following night fourteen police officers, divided into two assault teams, went to the mobile home to conduct a raid.

The members of the first team, accompanied by two trained police dogs, approached the trailer on foot through the woods. These officers observed a heavily armed man, later identified as Larry Calhoun, leave the rear of the trailer and walk toward a shed. The dogs with Calhoun apparently sensed the police dogs and began barking, alerting Calhoun to the presence of the police. Calhoun directed his flashlight toward the officers. When the officers identified themselves, Calhoun began running down the driveway just as the members of the second assault team were approaching.

Three officers and the dogs pursued Calhoun. During the chase, at a point approximately one-quarter of a mile from the trailer, Calhoun turned quickly and shot one of the officers. The other officers returned the fire and killed Calhoun.

In the meantime the second assault team approached the trailer down the main driveway. Trooper Dan Daughtery entered the trailer first, shouting, "Police coming in". Deputy Dale Folds, looking through the bedroom window, saw defendant with her finger on the trigger of a pistol raised above her head, standing in a "combat stance" as if she were waiting to shoot whoever entered the room. Knowing that police officers had entered the trailer, Deputy Folds broke the bedroom window and ordered defendant to drop the weapon. Trooper Daughtery, who was making his way through the trailer, heard the glass breaking and the shouted order to drop the gun. Daughtery ran toward the sound, kicked in the bedroom door, and found defendant.

Daughtery then heard noises coming from the bathroom that could only be entered through the bedroom in which he found defendant. He kicked in the bathroom door and saw Langley pouring a dark brown liquid down the bathtub drain. Daughtery noticed a heavy chemical odor which he recognized as that produced during the manufacture of methamphetamine. Both Langley and defendant were arrested.

Langley pleaded guilty to manufacturing methamphetamine. He subsequently testified at defendant's trial that defendant did not assist in the operation and threatened to leave him when she learned he was involved in manufacturing the drug.

Defendant was convicted of attempted manufacturing of methamphetamine, manslaughter of co-perpetrator Calhoun, and attempted manslaughter of Deputy Daughtery. She was sentenced to concurrent terms of five, four and two years respectively.

The court of appeal affirmed the convictions. As to the conviction for the manslaughter of Calhoun, the court concluded that Calhoun died as a direct result of defendant's acts of attempting to manufacture drugs. The court reasoned that the drug manufacturers' arming themselves, as part of the overall scheme, set into motion a chain of events which created a great risk of harm and that Calhoun's death was "within the ambit of reasonably foreseeable possibilities".

Defendant's application for certiorari was granted to review the felony-manslaughter conviction. La.Rev.Stat.Ann. 14:31, which defines the crime of manslaughter, provides in part:

Manslaughter is:

. . . . (2) A homicide committed, without any intent to cause death or great bodily harm. (a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1. or of any intentional misdemeanor directly affecting the person. (emphasis added).

In the present case the prosecutor's theory of felony-manslaughter was that a homicide (the killing of a human being by the act of another) occurred when defendant was engaged in the attempted manufacture of methamphetamine, although defendant had no intent to cause death or great bodily harm to Calhoun.

Defendant contends that Section 31(2)(a) does not encompass the killing by police officers of a co-perpetrator of the underlying felony one-fourth of a mile from the place where the underlying felony was committed. She relies on State v. Garner,  in which the defendant, while involved in an argument with a bartender, lunged at the bartender with a knife, prompting the bartender to shoot a pistol at the defendant in self defense. The bullet missed the defendant, but struck and killed an innocent bystander. This court reversed the defendant's conviction of manslaughter, holding that the manslaughter statute did not make the defendant responsible for a killing resulting from a self-defensive act committed by the attacked person. The court indicated that the actual killer must be the defendant or a principal with the defendant in the perpetration of the underlying felony.

On the other hand, the prosecutor contends that the theory of proximate cause used in State v. Statum,  390 So.2d 866 (La. 1980),  should control this case. In Statum the thirteen-year old victim jumped from the defendant's moving car under the compulsion of an imminent sexual assault by the defendant and died the next day of multiple injuries sustained in the fall. The court, noting that the victim jumped from the car "because of the attempted carnal knowledge of a juvenile violation", held that the defendant was properly convicted of manslaughter. Although the victim's act of jumping from the car caused her death, the defendant's conduct was the precipitating cause of her jumping. 

In the present case the court of appeal distinguished the Garner decision on the basis that the victim in Garner was an innocent bystander, while the victim in this case was a co-perpetrator of the underlying felony. However, the identity of the victim is hardly a sufficient factor to justify refusing to apply Garner in this case. Accordingly, the prosecutor urges that we consider modifying Garner and adopting a less restrictive theory of causation in felony-murder/manslaughter cases.

Criminal conduct in Louisiana consists of (1) conduct producing criminal consequences combined with criminal intent, (2) conduct producing criminal consequences without any requirement of criminal intent, and (3) criminal negligence. La. Code Crim.Proc. art. 8. Intentional crimes traditionally have consisted of two elements, the physical element of act or conduct and the mental element of intent. The felony-murder doctrine originally applied to the intent element of a crime in that the doctrine allowed the mens rea of the underlying felony to provide the malice necessary to transform an unintended homicide into a murder. On the other hand, the physical element of the defendant's act or conduct is not encompassed by the felony-murder doctrine, but involves a separate question of causation. The additional element of the defendant's act or conduct in causing criminal consequences must still be proved.

A causal relation between the defendant's conduct and the harm for which the prosecutor seeks to impose criminal sanctions is an essential element of every crime. Causation is a question of fact which has to be considered in the light of the totality of circumstances surrounding the ultimate harm and its relation to the actor's conduct.). A defendant should not be held responsible for remote and indirect consequences which a reasonable person could not have foreseen as likely to have flowed from his conduct or from those consequences which would have occurred regardless of his conduct.

Some jurisdictions have adopted the Garner rationale and limited the felony-murder and the felony-manslaughter doctrines to cases in which the conduct that caused the death was the conduct of the defendant, or of his accomplice or confederate, done in furtherance of the design to commit the felony. Commonwealth v. Redline, 137 A.2d 472 (1958),    which held that the doctrine did not apply when shots by policemen returning the defendant's fire during an armed robbery killed the defendant's co-perpetrator. The court, stating that "[d]eath must be a consequence of the felony ... and not merely coincidence", noted that the officers' conduct in shooting the accomplice was lawful and could not support a charge of murder.

The comment in Note, Recent Cases, 71 Harv.L.Rev. 1565 (1958), discussing the Redline decision, stated:

[563 So.2d 232]

It seems preferable, however, to impose liability only for homicides resulting from acts done in furtherance of the felony. A closer causal connection between the felony and the killing than the proximate-cause theory normally applicable to tort cases should be required because of the extreme penalty attaching to a conviction for felony murder and the difference between the underlying rationales of criminal and tort law. The former is intended to impose punishment in appropriate cases while the latter is primarily concerned with who shall bear the burden of a loss. Requiring this closer causal connection, although it precludes the imputation of the act of killing under the felony-murder rule, would not relieve a felon from responsibility for homicides committed by a cofelon since one member of a conspiracy is responsible for the acts of his coconspirators committed in furtherance of the object of the conspiracy.

A felony (such as robbery) which involves a homicide is qualitatively more blameworthy than a mere robbery. However, there is logical justification for punishing a robber for an unintended murder or manslaughter occurring during the course of the robbery only when the robber's conduct was a legal cause of the homicide. Something more is required than "but for" causation. This court in State v. Matthews, stated that legal cause in criminal cases requires that the defendant's act was a "substantial factor in bringing about the forbidden result". The Matthews case involved a prosecution for second degree murder in which the defendant and a companion beat the victim into unconsciousness and left her for dead on the sloping bank of a canal. The victim's body was found in the canal, and the pathologist determined that her death was caused by drowning. This court concluded that the beating was a substantial contributing cause of the victim's death even if she rolled, crawled or stumbled into the water and drowned.

Causation was also at issue in State v. Taylor.  The Taylor case was a prosecution for vehicular homicide, a crime defined in part as "the killing of a human being caused proximately or caused directly by an offender engaged in the operation of ... any motor vehicle ..., whether or not the offender had the intent to cause death or great bodily harm, when (1) the offender is under the influence of alcoholic beverages ...", as determined by blood alcohol tests. This court held that the legislative intent to punish a person whose unlawful blood alcohol concentration combined with his vehicle operation to cause the death of a human being required the prosecutor to prove a causal link between the blood alcohol level and the killing.

In the present case the felony-manslaughter rule embodied in La.Rev.Stat. Ann. 14:31(2)(a) permits defendant's conviction for the homicide, despite defendant's lack of intent to cause death or great bodily harm, but the prosecutor was also required to prove that defendant's conduct was a legal cause of the killing. Unlike the defendant's conduct in Statum in making sexual advances which caused a minor to jump from the car to her death, this defendant's conduct in attempting to produce methamphetamine can hardly be determined to be a substantial factor in the killing of Calhoun. This killing, in the manner in which it occurred, was not reasonably forseeable when defendant set out to manufacture drugs. Moreover, Calhoun's flight to evade the police and his firing at his pursuers were intervening acts which weakened any causal relationship between defendant's manufacturing of drugs and the killing. On the evidence in the present case a rational juror could have found that Calhoun would not have been killed in the [woods but for the drug manufacturing operation being conducted by Langley, Calhoun and defendant in the trailer. However, even if we were inclined to modify Garner by adopting a less restrictive theory of causation in felony-manslaughter cases, the evidence in the present case was insufficient for a rational juror to conclude that defendant's conduct related to the manufacturing of drugs was a substantial factor in bringing about Calhoun's death.  The portion of the judgment of the court of appeal affirming defendant's conviction and sentence for manslaughter is reversed, and defendant is discharged as to that charge.

Can you clearly distinguish between deliberate and premeditated murder and murder in the heat of passion in this case? What verdict would you return?

The defendant was convicted of premeditated murder. The defendant argues that the evidence as a whole demonstrates that his wife was the emotional aggressor, and that her conduct shattered and destroyed him as a husband and a father. The defendant points to the fact that he was not a hoodlum or gangster, that he had no prior criminal record, and that he had a “good relationship” with his wife prior to the last six months of their marriage. The defendant concludes these factors should be sufficient to entitle him to a new trial or the entry of a verdict of a lesser degree of guilt.

The Commonwealth argues that the evidence is more than ample to sustain the verdict. The Commonwealth points out that at the time of the killing there was not a good relationship between the parties; that the defendant had threatened to harm his wife physically on several occasions; and that he had threatened to kill his wife. The defendant obtained a gun and ammunition the day before the killing. The defendant arranged to have his younger child cared for by a neighbor when his wife came to see him. The jury could have found that Schnopps lured his wife to the apartment by suggesting that he might leave and let her live in it with the children. The evidence permits a finding that the killing occurred within a few minutes of the victim’s arrival at the defendant’s apartment and before she had time to take off her jacket. From the facts, the jury could infer that the defendant had planned to kill his wife on October 13, and that the killing was not the spontaneous result of the quarrel but was the result of a deliberately premeditated plan to murder his wife almost as soon as she arrived.

Ballistic evidence indicated that as the victim was lying on the floor, a third bullet was fired into her. From the number of wounds, the type of weapon used, as well as the effort made to procure the weapon, the jurors could find that the defendant had “a conscious and fixed purpose to kill continuing for a length of time.” There was ample evidence which suggested the jurors’ conclusion that the defendant acted with deliberately premeditated malice aforethought.

The defendant’s domestic difficulties were fully explored before the jury. The jurors rejected the defendant’s claim that his domestic difficulties were an adequate ground to return a verdict of a lesser degree of guilt. The degree of guilt, of course, is a jury determination. The evidence supports a conclusion that the defendant, angered by his wife’s conduct, shot her with deliberately premeditated malice aforethought. The jurors were in the best position to determine whether the domestic difficulties were so egregious as to require a verdict of a lesser degree of guilt. We conclude, on review of the record as a whole, that there is no reason for us to order a new trial or direct the entry of a lesser verdict (text taken directly from judgment of the court).

Was Jones guilty of negligent homicide?

Opinion by Anderson, J.

Issue

We granted this appeal to determine whether the evidence supported the defendant’s conviction for criminally negligent homicide in the death of her two-year-old son. The child was riding on the defendant’s lap in the front passenger seat of a rental car and was killed when the passenger-side air bag deployed in a collision.

Facts

On November 9, 1998, defendant Latrece Jones, age eighteen, was riding in the front passenger seat of a rented Chevrolet Cavalier in Chattanooga, Tennessee. Her two-year-old son, Carlon Bowens, Jr., was asleep in her lap. Carlon’s aunt, Letitia Abernathy, had rented and was driving the rental car; five children and one adult sat in the backseat. At the intersection of Shallowford Road and Jersey Pike, another car failed to yield the right of way to the rental car, causing a collision (“the accident”). Although the accident was not severe, the passenger-side air bag deployed. The force with which the air bag struck Ms. Jones’ son broke his neck, killing him. No one else in the car was seriously injured.

Ms. Abernathy, the driver of the rental car, testified that she operated a day care business out of her home. The five children in the back seat, one of whom was her daughter, were under her care at the time of the accident. The children were aged seven years, six years, five years, four years, and nine months. Ms. Abernathy testified that she normally drove a jeep, but because she had been in an accident earlier in the day she had rented the Chevrolet. She testified that she normally had car seats for the children who required restraints but that she did not use them that day because there was no room in the Chevrolet. It was stipulated that the six passengers in the back seat were unrestrained.

The driver, Ms. Abernathy, was charged separately with criminally negligent homicide and violation of child restraint law. She pled guilty to reckless endangerment and violation of the child restraint law. At the time of the accident, Tennessee’s child restraint law required children under four years old to be in a “child passenger restraint system meeting federal motor vehicle standards.” The statute only applies to drivers, providing that “any person transporting a child . . . is responsible for . . . properly using a child passenger restraint.”

It was undisputed that only Carlon sustained serious injuries. Pediatric surgeon Dr. Joseph Earl Kelley, Jr., testified at trial that he had treated the victim and that the force of the air bag deployment had broken the child’s neck. He testified that it was “not the type of injury that would typically be seen from motor vehicle accidents when children are unrestrained and thrown around.” Dr. Kelley testified that an injury such as the one Carlon sustained is always fatal.

The prosecution introduced photos showing air bag warnings affixed to the rental automobile’s visors and front-passenger seat belt. The visor warning was positioned on the side of the visor facing the passenger and read as follows:

“!WARNING

DEATH or SERIOUS INJURY can occur

Children 12 and under can be killed by the air bag.

The BACK SEAT is the SAFEST place for children.

NEVER put a rear-facing child seat in the front.

Sit as far back as possible from the air bag.

ALWAYS use SEAT BELTS and CHILD RESTRAINTS.”

The seat belt warning was positioned in the center of the passenger-side seat belt, although it is not clear from the record whether the warning would have been visible if the seat belt were not extended. The seat belt warning read as follows:

“!CAUTION

A child in a REAR-FACING CHILD RESTRAINT can be badly injured by the air bag if it inflates. NEVER put a child in a REAR-FACING CHILD RESTRAINT in the front seat of this vehicle. Secure a REAR-FACING CHILD RESTRAINT in the rear seat.

Before Securing a forward-facing child restraint, ALWAYS move the passenger seat as far back as it will go. Or, secure the child restraint in the rear seat.

For more information, see your Owner’s Manual and the instructions that came with your child restraint.”

The prosecution also introduced other evidence in its effort to establish that Ms. Jones knew her son should have been in a child restraint and should not have been seated in front of an air bag. Lisa McClain, administrator for the Women’s and Infant’s Services Division at Erlanger Hospital, testified that when Ms. Jones was discharged after giving birth to Carlon, she would have been given a pamphlet on car seat safety and a videotape including information on car seat safety. The pamphlet included the warnings, “never hold a child in your lap while riding in either the front or back seat” and “be consistent! Always buckle your child in the safety seat.” Ms. McClain testified that the hospital’s policy was to require parents to place the infant in the car seat themselves upon discharge from the hospital.

Finally, the prosecution offered the testimony of Brooke Pippenger, former assistant director of programs at the Children’s Wellness Center, regarding a campaign the Center conducted in 1997 and 1998 aimed at educating the public on preventing injuries to children. Ms. Pippenger testified that the campaign included educating the public about vehicle safety. The State introduced into evidence two television news features and a collection of newspaper articles regarding car seat safety and the dangers of air bags related to the campaign. Ms. Pippenger testified, however, that she had never “found any law that made it illegal to put a child safety seat or a child in front of an air bag.”

The jury convicted Ms. Jones of criminally negligent homicide in the death of her son, and the trial judge imposed a sentence of 0.9 years unsupervised probation. Ms. Jones appealed to the Court of Criminal Appeals. She argued that the evidence was insufficient to support the conviction for criminally negligent homicide . . . and that the trial court erred in admitting evidence about the child restraint law and the absence of car seats in the vehicle at the time of the crash. The Court of Criminal Appeals rejected each of Ms. Jones’ arguments and affirmed her conviction. We granted review.

Reasoning

First, we address Ms. Jones’ argument that the child restraint evidence introduced at trial was irrelevant and prejudicial because, as a passenger, she did not have a statutory (legal) duty to place her child in a car seat and because the medical evidence showed that the child was killed by the air bag. At oral argument, counsel for Ms. Jones asserted that even if Carlon had been in a car seat, he would have been killed by the air bag because he was seated in the front seat. The State counters that the evidence was relevant to show that Ms. Jones ignored well-known risks to the victim. We agree with the State that the evidence was admissible.

The trial court agreed to exclude evidence regarding Tennessee’s car seat statute, because it did not apply to Ms. Jones as a passenger. However, the court declined to exclude evidence regarding information in the community regarding car seats.

Ms. Jones was charged with criminal negligence in the death of her son. Therefore the State’s burden was to prove that in holding her son on her lap while traveling in a car, she failed to perceive a substantial and unjustifiable risk to her son and that her conduct was a gross deviation from the standard of care. Ms. Jones argues that the evidence was prejudicial because the State was trying to “inflame the jury” by showing Ms. Jones to be irresponsible. However, we agree with the State that the evidence was relevant to show that Ms. Jones was aware, or should have been aware, of the danger to an unrestrained child and that, in any event, its probative value was not outweighed by the danger of unfair prejudice to Ms. Jones. Ms. Jones argues that Carlon was killed by the air bag, not by being unrestrained, but that argument misses the point. The State charged Ms. Jones with criminal negligence for the act of holding her child in her lap in a moving vehicle. Evidence about car seats and car seat safety was directly relevant to show that Ms. Jones’ act was negligent. The trial court did not abuse its discretion in admitting the evidence.

We address Ms. Jones’ argument that the evidence of criminal negligence was insufficient to sustain her conviction. To establish criminally negligent homicide, the State must prove three elements beyond a reasonable doubt: (1) criminally negligent conduct on the part of the accused; (2) that proximately causes; (3) a person’s death. Ms. Jones argues that the evidence is insufficient to support her conviction for criminally negligent homicide because the evidence does not establish that she was grossly negligent. The State argues that the evidence supports the jury’s determination that Ms. Jones’ failure to perceive the risk to her son was a gross deviation from the standard of care.

When evaluating the sufficiency of the evidence, we must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Criminally negligent conduct that “results in death constitutes criminally negligent homicide.” A person acts with criminal negligence with respect to the circumstances surrounding that person’s conduct or the result of that conduct when the person ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person’s standpoint.

To be criminally negligent, a defendant must fail to perceive a substantial and unjustifiable risk. Whether the defendant failed to perceive the risk must be determined using a subjective standard; we must view the circumstances “from the accused person’s standpoint.” (“[The criminally negligent homicide statute] views the situation through the eyes of the [defendant] and whether [s]he could have perceived and then chosen to ignore a ‘substantial and unjustifiable risk.’”). The defendant’s failure to perceive the risk must be “a gross deviation from the standard of care.”

In sum, we must examine the defendant’s conduct to determine (1) whether a substantial and unjustifiable risk existed at the time of the conduct or resulting from the conduct; (2) whether, using a subjective standard, the defendant failed at the time of the conduct to perceive the risk; and (3) whether that failure was a gross deviation from the standard of care of an ordinary person under the circumstances.

The Court of Criminal Appeals held that the evidence was sufficient to convict Ms. Jones of criminal negligence, concluding that she “knew that by failing to place her child in a child restraint seat, she was exposing her child to serious bodily harm or death.” The court cited Ms. McClain’s testimony that Ms. Jones had been verbally informed of child restraint laws and was given written information on vehicle safety. The court also cited the visor warnings and the fact that Ms. Jones and the child’s father had a child restraint seat and had used it on other occasions. Finally, the court noted that “during the year prior to the accident, assorted public service announcements in print and television were circulated regarding the importance of using child restraint seats.”

We disagree with the Court of Criminal Appeals’ conclusion. Viewing the evidence in the light most favorable to the State, as we must, and applying a subjective point of view, as we must, we conclude that the evidence failed to establish that Ms. Jones was criminally negligent. We have little doubt that holding a two-year-old child on one’s lap in front of an air bag constitutes a substantial and unjustified risk. However, we must determine whether there was sufficient evidence to permit a rational trier of fact to conclude that Ms. Jones’ failure to perceive that risk was a gross deviation from the standard of care. For several reasons, we cannot say that there was.

First, although the State introduced a collection of newspaper articles and two television “spots” to show that information about safely transporting children was available to the community, nothing in the record indicates that Ms. Jones actually saw or read any of that information. Moreover, we disagree with the State that whether the conduct of Ms. Jones was a gross deviation from the standard of care can be established with reference to an advertising campaign, however well intentioned that campaign might have been.

Second, the articles and television spots entered into evidence illustrate how new the risk of air bags was in 1998. According to one of the articles, 1999 was the first year that all cars had passenger-side air bags.

Third, the very fact that there was a need for a large-scale public information campaign aimed at educating parents about child car safety indicates, sadly, how many people in the community simply were not using child safety restraints at the time of the accident. In fact, one of the newspaper articles in the record, published on October 28, 1998—just twelve days before the accident—noted that a “recent survey” in Hamilton County had found that “only about sixty percent (60%) of youngsters observed riding in cars and trucks were restrained. Some were sitting in laps.” If 40% of the children being transported in Ms. Jones’ community were being transported without being properly restrained at the time of the accident, it would be difficult for a rational trier of fact to conclude that it was a gross deviation from the standard of care at the time of the accident for Ms. Jones to transport her child improperly.

Finally, the State also introduced evidence that Ms. Jones had received information about car seat safety upon her discharge from the hospital after the birth of her son. That information advised parents to, among other things, always use car seats and to “never hold a child in your lap” in the car. Additionally, the State cited the air bag warning on the passenger-side visor. Although Ms. Jones’ failure to heed these warnings and to perceive the danger posed by sitting with her child on her lap in front of an air bag may have been negligent, our cases illustrate that it simply does not rise to the level of gross negligence necessary to uphold a conviction for criminally negligent homicide.

Tennessee courts have sustained convictions for criminally negligent homicide only where a “risk is of such a nature and degree that injury or death is likely and foreseeable.” For example, in State v. Goodwin, a jury found the defendant guilty of criminally negligent homicide where the defendant had left a cocked shotgun in the woods fifty feet behind a house in a crowded neighborhood. Two children found the gun; it accidentally discharged, killing one child and severely injuring the other. Concluding that the defendant had “exercised extremely poor judgment in his handling of an inherently dangerous weapon,” this Court affirmed the judgment. 143 S.W.3d 771, 779 (Tenn. 2004).

We have consistently applied the requirement that death or injury be likely and foreseeable in cases involving automobile accidents. In Reed v. State, 110 S.W.2d 308 (Tenn. 1937), a defendant who pulled into “heavy and closely approaching opposing traffic” to pass a truck was guilty of involuntary manslaughter because the resulting collision was “not only a probable result but almost an inevitable result of such negligence as the defendant’s.” State v. Ramsey, 903 S.W.2d 709, 712 (Tenn. Crim. App. 1995) held that injury or death was likely and foreseeable where the defendant was “driving fast and carelessly on a hilly, curvy road and [the defendant] consciously disregarded that risk by driving in such a manner.”

Likewise, automobile cases in which someone other than the driver was criminally negligent further illustrate the level of negligence required for a finding of a “gross deviation” from the standard of care. In Flippen v. State, 365 S.W.2d 895 (Tenn. 1963), this Court held that a passenger was criminally negligent in failing to alert the intoxicated driver that he had struck another car, sending it off the road and into a lake, and for assisting the driver in concealing the car after the accident. In Freeman v. State, 362 S.W.2d 251 (Tenn. 1962), this Court held that the defendant was criminally negligent in permitting his intoxicated companion to drive his (the defendant’s) car, knowing that the brakes were defective. . . . .

In sum, the above cases demonstrate that something much greater than the want of ordinary care shown by Ms. Jones is necessary to affirm her conviction. There must be a gross deviation from the standard of care. We were unable to find a case anywhere in the country holding a parent criminally liable for a child’s death based on the conduct of placing the child in front of a passenger-side air bag. Viewing all the evidence in the light most favorable to the prosecution, the evidence is not sufficient to permit a rational trier of fact to find Ms. Jones criminally negligent beyond a reasonable doubt. We therefore reverse her conviction.

We note that our holding comports with the provisions of the child restraint law in effect at the time of the accident. Although the child restraint law does not apply to Ms. Jones as a passenger rather than a driver, the child restraint statute in effect at the time of the accident permitted a mother to remove her child from its car seat to nurse the child or to “attend to its other physiological needs.” The legislative determination that it was permissible for a mother to hold a child for such non-emergency purposes, rather than keeping the child in a restraint also militates against a finding that it was a gross deviation from the standard of care for Ms. Jones to do so in this case.

Holding

The death of a child is a terrible tragedy, particularly when, as here, the death might have been prevented. But however tragic Carlon’s death was, the evidence was insufficient to support a conviction for criminally negligent homicide because the defendant’s conduct did not constitute a gross deviation from the standard of care. The judgment of the Court of Criminal Appeals is reversed, and the conviction is dismissed. Costs of the appeal are taxed to the State of Tennessee for which execution may issue if necessary.

Questions for Discussion

1. What is the legal test for negligent homicide relied on by the court in Jones?

2. Was Letitia Jones aware of the risk of holding her child in her lap in the front seat of the automobile?

3. Did Letitia Jones’s holding her child in her lap constitute a gross deviation from the standard of care?

4. Why did the Tennessee Supreme Court reverse the conviction of Letitia Jones?

5. Do you agree with the court decision that Jones did not act in a grossly negligent fashion?