People v. Bonilla

Niehoff, J.

(concurring). Although I am in total agreement with the end result reached by Justice Rubin in his exceptionally thorough and scholarly opinion, namely, that the defendant’s conviction of manslaughter in the first degree and criminal possession of a weapon in the second degree should be affirmed, I arrive at such conclusion by means of a somewhat different line of reasoning. Whereas Justice Rubin appears to be of the view that no definition of death was necessary in the charge to the jury, and that there is no need for this court to discuss the Trial Judge’s unwillingness to define the term for the jury, my belief is that under the circumstances of this case a definition of death, as accepted by the common law, was called for, and that it would have been preferable to impart it. Nevertheless, the Trial Judge’s refusal to give that definition, as such, does not require a reversal because the charge was so skillfully structured that it made clear to the jury that by death the court meant what is commonly understood as death, and that which the common law acknowledges to be death, viz., cessation of respiration and heartbeat. As Black’s Law Dictionary (5th ed, p 360) states, death is “[t]he cessation of life; permanent cessations of all vital functions and signs”.

In People v Kane ( 213 NY 260 ) the Court of Appeals laid down the rule for determining a defendant’s responsibility for homicide where the defendant has feloniously assaulted someone and there are intervening medical acts before death actually occurs. There, the court wrote (p 270): “If a felonious assault is operative as a cause of death, the causal co-operation of erroneous surgical or medical treatment does not relieve the assailant from liability for the homicide. It is only where the death is solely attributable to the secondary agency, and not at all induced by the primary one, that its intervention constitutes a defense.”

More recently, in People v Stewart ( 40 NY2d 692, 697 ), the Court of Appeals restated the rule as follows:

*414 “One accused of homicide, of course, cannot be convicted unless it is shown that he ‘cause[d] the death of a person’ (Penal Law, § 125.00). No matter what degree of homicide is charged this is always an essential element which the People must prove beyond a reasonable doubt (People v Brengard, 265 NY 100, 108 ). This means that the prosecutor must, at least, prove that the defendant’s conduct was an actual cause of death, in the sense that it forged a link in the chain of causes which actually brought about the death (see, e.g., Perkins, Criminal Law, 687). But something more is required before his conduct will be recognized as a legal cause of death warranting criminal sanctions. The requirement here is that ‘the defendant’s actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability’ (People v Kibbe, supra [ 35 NY2d 407 ], at p 413). Thus an ‘obscure or merely probable connection between an assault and death will, as in every case of alleged crime, require acquittal of the charge of any degree of homicide’ (People v Brengard, supra, p 108 ).

“We have held that ‘direct’ does not mean ‘immediate’. The defendant may be held to have caused the death even though it does not immediately follow the injury (see, e.g., Cox v People, 80 NY 500 ; People v Brengard, supra). Neither does ‘direct’ mean ‘unaided’ for the defendant will be held liable for the death although other factors, entering after the injury, have contributed to the fatal result. Thus if ‘felonious assault is operative as a cause of death, the causal co-operation of erroneous surgical or medical treatment does not relieve the assailant from liability for homicide’ (People v Kane, 213 NY 260, 270 ). But if‘the death is solely attributable to the secondary agency, and not at all induced by the primary one * * * its intervention constitutes a defense’ (Kane, supra, at p 270 )”.

In this case the Trial Judge faithfully followed the Kane-Stewart standard in charging the jury, and the members of the jury had sufficient evidence before them to conclude that the Kané-Stewart test for homicide responsibility had been met.

That is, the record contains evidence sufficient to have warranted a factual finding by the jury to the effect that *415 the bullet which the defendant fired into the brain of “Little Man” Miranda was a “sufficiently direct cause” of Miranda’s ensuing death. Phrased otherwise, the evidence justified the jury verdict that the defendant was criminally responsible for the death of his victim because the gunshot wound to the head was a mortal one, i.e., one which forged a link in the chain of causes which actually brought about Miranda’s death. Although the victim’s kidneys and spleen were removed while he was still “alive”, the jury had the right to find that the removal of those organs came about only after there was ample evidence to support the conclusion that the bullet wound would inevitably produce death.

At the trial the defendant was claiming that the death of the victim was caused by the removal of his kidneys and spleen. While it may be argued that the kidney-spleen removal surgery was an agency which contributed to changing the time of Miranda’s death (i.e., advanced it somewhat) it cannot be said on the record before us that the jury erred in concluding that the operation was not an independent causative factor of the death, or, in concluding that death was inevitable from the bullet.

The evidence with regard to “brain death” that was introduced by both sides was relevant in that it had a bearing on the nature of the wound inflicted by the defendant, i.e., mortal or otherwise. The prosecution sought to show that the wound was a grievous one — one which produced the irreversible cessation of all functions of the brain. On the other hand, the defendant hoped to show that it did not have that effect. However that may be, the proof of brain death was not determinative on the question of defendant’s culpability for the death of the gunshot victim. Rather, the thrust of the proof was directed towards the defendant’s claim that death was caused not by the bullet wound in Miranda’s head but by an independent intervening agency. As will be seen during the discussion of the trial court’s charge which follows herein, the ultimate issue in this case was not whether Miranda suffered brain death before the nephrectomy. Rather, it was whether the-People had established beyond a reasonable doubt that the shooting of Miranda by the defendant was a cause of Miranda’s death as the word death is commonly and tradi *416 tionally understood, namely, the cessation of respiration and heartbeat. Stated differently, the issue which was tried and the issue which was submitted to the jury was whether it was the bullet lodged in Miranda’s brain which caused the death (as commonly understood) or whether the death was solely attributable to a “ ‘secondary agency, and not at all induced by the primary one’ ” (People v Stewart, supra, p 697 ).

On the present appeal, the defendant maintains that the Trial Judge committed reversible error in her charge to the jury when she refused to instruct the jury on the definition of death. In essence, the defendant contends that the definition of death was a material legal principle applicable to this case which was crucial to the jury’s determination and that the court’s failure to so charge deprived him of due process of law as a consequence of which his manslaughter conviction must be set aside.

CPL 300.10 (subd 2) requires a court in its charge to “state the material legal principles applicable to the particular case, and, so far as practicable, explain the application of the law to the facts”. In my view, the Trial Judge’s charge complied with the mandates of that section.

It must not be forgotten that throughout the trial there was really no doubt that the defendant shot Miranda and that Miranda died a short time later at Brookdale Hospital. Thus, the only real issue for the jury’s determination was whether the bullet which lodged in Miranda’s brain was a cause of his death.

On appeal, the defendant argues that the trial court should have instructed the jury that death occurs when respiration and heartbeat cease, i.e., the common-law definition of death. This argument is made notwithstanding the fact that defense counsel specifically requested the court to charge a definition of brain death — not a definition of common-law death.

However that may be, I am satisfied that a review of the court’s charge against the background of this case compels the conclusion that there is no substance to defendant’s argument that he was denied due process because the court failed to define death to the jury in terms of cessation of respiration and heartbeat.

*417 In his opening statement defense counsel stated to the jury: “I submit to you, based on the law that the Judge will give you, that though the gunshot wound took him to the hospital, there was an independent intervening factor, the action of the hospital, the people in the hospital, their preoccupation to get the kidneys out of this 19 year old which actually caused the death”.

At the close of the People’s case defense counsel moved for a trial order of dismissal on the grounds that (1) “we have an intervening factor. The intervening factor being the removal of the deceased’s kidneys and spleen for transplantation”; and (2) because the People failed to meet their burden of proof “that the specific act of the defendant was the intentional and the direct and immediate cause of the death of the deceased, they have failed to sustain the burden of proof sufficient to charge the defendant with any charge of homicide”.

The court denied the motion because Dr. Wald, the medical examiner, “was unequivocal and positive in his statement as to the cause of death, that it was not due to taking the defendant [sic] off the respirator, it was not the transplantation of the kidneys, and that he determined his results from the autopsy and not from information received at the hospital”.

Following the completion of an extensive precharge conference, defense counsel expressed his general satisfaction with the proposed charge. He indicated that the only problem he had with it was that he was going to ask for a charge on the definition of death, i.e., “I am going to ask you to charge the latest standard, which I gave you: That brain death is defined as the irreversible cessation of all functions of the brain.” The court declined to charge in that manner noting that “we have no law in New York that defines death” and that “if the definition of death is to become irreversible cessation of brain function, the change should be accomplished explicitly through an appropriate statute”. After further debate, the Judge stated: “My decision at this point is not to define death. I have read you five different definitions from God knows how many states. We don’t have a definition here, and I am not going to select *418 one or arbitrarily decide which should be used. I don’t even think its a responsibility of mine to do as a Judge”.

In my view, the Trial Judge’s deliberate, informed decision not to charge the requested definition of brain death was correct. No such definition is recognized in this State and if such a definition is to be adopted it should be by means of legislative enactment.

Having concluded that the court did not err in refusing to charge a definition of brain death, I now turn to the question of whether the court’s charge made adequate provision for the definition of death as it is recognized in New York State, i.e., the common-law definition of death. If that definition of death was necessary in order for the jury to arrive at a proper verdict and if the charge failed to apprise the jury, expressly or impliedly, of the New York standard, then the charge must be construed as erroneous and further consideration will be mandated to determine if the error was harmless. If, on the other hand, the common-law definition of death was not required, or the court’s charge made the jury sufficiently aware of New York’s common-law definition of death, then the charge was error free in that regard.

Inasmuch as the jury heard testimony about “brain death” and its definition from witnesses on both sides, it is my view that to eliminate the possibility that the jury would convict the defendant of homicide solely on the basis of the evidence that he had caused the “brain death” of Miranda, it would have been preferable in this case for the court to have given the jury the traditional definition of death, thereby making it crystal clear for the jury that defendant could be guilty of homicide only if his acts caused the cessation of Miranda’s respiration and heartbeat. However, as noted at the opening of this opinion, I am satisfied that while the court did not expressly give a definition of death, as such, the court so carefully fashioned the charge that it was made manifest to the jury that by death the court meant that which is commonly understood as death, namely, cessation of respiration and heartbeat. That is, the charge thoroughly covered the issues involved and enabled the jury to render a fair and just verdict *419 notwithstanding that an explicit definition of death was not given.

After reading the contents of the indictment, the Trial Judge charged the jury as follows:

“The term homicide means conduct which causes the death of a person under circumstances constituting murder in the second degree, manslaughter in the first degree and manslaughter in the second degree.

“When referring to the victim of a homicide, the term person means a human being who has been born and is alive. You cannot commit a homicide upon a dead person tfc

tfc

“You will note that our law requires the defendant to have had the specific intent to cause the death of Orlando Miranda before you may convict him * * *

“Thus, you must determine whether the prosecution has convinced you beyond a reasonable doubt that the defendant, in fact, intended to cause the death of Orlando Miranda. According to the law, a person intends to cause the death of another person when his conscious aim or objective is to cause the death of that person * * *

“It is the People’s position in this case that the defendant shot Orlando Miranda with the intent to cause his death and, in fact, did cause his death.

“The defendant, by his plea of not guilty, contends that he did not shoot Mr. Miranda. However, even if you find that the defendant did shoot Mr. Miranda, the defendant claims that he did not cause Miranda’s death, but that Miranda’s death was caused by the acts of the doctors at Brookdale Hospital Medical Center in removing Mr. Miranda’s kidneys and taking him off the life support systems, acts which he says were unnecessary for the treatment of the head wound.

“I remind you that one accused of homicide cannot be convicted unless it is shown that he caused the death of the deceased. No matter what degree of homicide is charged this is always an essential element which the People must prove beyond a reasonable doubt. This means that the People must, at least, prove that the defendant’s conduct was *420 an actual cause of death, in the sense that it forged a link in the chain of causes which actually brought about the death.

“But something more is required before his conduct will be recognized as a legal cause of death warranting criminal sanctions. The requirement here is that the defendant’s actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability. Thus, an obscure or merely probable connection between the shooting and the death will, as in every case of alleged crime, require acquittal of the charge of any degree of homicide.

“Now, direct does not mean immediate. The defendant may be held to have caused the death even though death did not immediately follow the injury. Neither does direct mean unaided for the defendant to be held liable for the death although other factors, entering after the injury, have contributed to the fatal result. Thus, if the wounding of the deceased was operative as a cause of death, the causal co-operation of erroneous surgical or medical treatment, if any, would not relieve the perpetrator from liability for the homicide. But if the death is solely attributable to the secondary agency, which the defendant alleges the kidney transplant was, and not at all induced by the primary one, the bullet in the head, its intervention constitutes a defense to murder in the second degree, manslaughter in the first degree and manslaughter in the second degree.

“1 remind you that one accused of homicide cannot be convicted unless it is shown that he caused the death of the deceased. Thus, the same law which I explained to you regarding murder in the second degree and manslaughter in the first degree concerning causation of death obtains regarding this crime — manslaughter in the second degree” (emphasis supplied).

After listening to counsel’s exceptions the court continued its charge to the jury as follows: “In case I did not make it clear, the lesser included non-homicide counts, attempted murder, assault in the first degree and assault in the second degree only become operative if you believe that the death of Orlando Miranda was caused by the doctors in removing the kidneys of the deceased and disconnecting his life sup *421 port system. It is the People’s contention that the death was caused by the defendant’s acts” (emphasis supplied).

The indictment charges that defendant caused the death of Orlando Miranda by shooting him with a loaded firearm. As pointed out above, the Trial Judge focused the jury’s deliberations on the question of whether Miranda died because of the injury inflicted by the defendant or because of the removal of the kidneys.

From a reading of the charge as a whole it is clear that the jury was being told that if the bullet wound was a proximate cause of Miranda’s death, as commonly understood by laymen and as recognized by the common law (common-law definition) the defendant committed homicide, whereas if Miranda’s death was caused solely by the secondary agency (the doctors’ acts of removing the kidneys) the defendant could not be legally charged with homicide.

To phrase it somewhat differently, from the above-quoted excerpts it is clear that the Trial Judge plainly treated the time of Miranda’s death as taking place after the organ transplantation and the jury could not reasonably have believed that she was referring to death as having occurred at some point earlier in time. The charge required the jury to consider the “independent intervening agency” defense on the merits before concluding that the defendant was guilty.

If the jury in this case had been given the definition of death urged by defendant, namely, brain death, it would have served one purpose and one purpose only, i.e., to establish a time of death sometime prior to the organ transplantation procedure. A finding to the effect that Miranda’s death occurred prior to the nephrectomy would have lead to an improper verdict since under the present state of the law one cannot be guilty of homicide in this State for causing brain death. Moreover, such a finding could only work against the defendant’s intervention defense. Since the Trial Judge’s charge required the jury to consider the independent intervening agency defense, the defendant cannot successfully maintain that the jury may have improperly convicted him of homicide because the trial court did not give the jury the common-law definition *422 of death. In sum, the trial court cannot be faulted for failing to charge brain death and, for the reasons above, I see no basis in this case for reversing the conviction simply because the trial court failed to expressly give the common-law definition of death.

Accordingly, I believe the judgment of conviction should be affirmed.