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Updates to Legislation and Court Decisions We will post updates to related legislation and federal and state court decisions here on this website as necessary. Please email us at info.pineforge@sagepub.com if there are any updates the you think should be noted. Below please find additional new cases to be included with your Criminal Law study of the Lippman textbook that reflect current decisions in the field. Cases: Chapter 2: Void for Vagueness Chapter 3: Cruel and Unusual Punishment, The Death Penalty Chapter 3: Sentencing and Punishment Chapter 4: Purposely Chapter 5: Criminal Intent Chapter 7: Solicitation Chapter 7: Attempt Chapter 8: Consent Chapter 8: Execution of Public Duties Chapter 9: Infancy Chapter 11:
Felony Murder
WAS THE STATUTE PROHIBITING CREATING A SITUATION IN WHICH THE HEALTH OF A CHILD IS LIKELY TO BE INJURED VOID FOR VAGUENESS?
Issue The defendant, Judith Scruggs, was convicted after a jury trial on one charge of risk of injury to a child in violation of General Statutes § 53-21 (a) (1).After the jury rendered its verdict, the defendant filed a motion for judgment of acquittal. The trial court denied the motion, concluding that the jury reasonably could have found that, by maintaining a cluttered and unclean residence, the defendant willfully had caused her son, Daniel Scruggs (Daniel), to be placed in a situation that was likely to injure his mental health. The defendant claims on appeal that § 53-21 (a) (1) is unconstitutionally vague as applied to her conduct and that the trial court improperly concluded that there was sufficient evidence to sustain her conviction. Facts General Statutes § 53-21 (a) provides in relevant part: Any person who (1) willfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony for a violation of subdivision (1) . . . of this subsection . . . ." The jury reasonably could have found the following facts. In late 2001, the defendant was a single parent living in a three bedroom apartment with her two children, Kara Morris (Kara) and Daniel. Kara was seventeen and Daniel was twelve. The defendant worked approximately sixty hours a week at two jobs-one as a full-time employee of the school that Daniel attended, the other as a part-time employee at Wal-Mart. Daniel was bullied relentlessly at school and, from September through December, 2001, was absent on many days. He frequently exhibited poor hygiene and occasionally defecated in his pants. At home, he slept in his bedroom closet, where he kept knives and a homemade spear to protect himself. The state department of children and families (department) was aware of Daniel's problems, and had been working with the defendant to have him placed in a different school. At some point in late 2001, the department conducted an inspection of the defendant's apartment in connection with its investigation of Daniel's situation. On December 27, 2001, the department closed its file on Daniel. In the early morning hours of January 2, 2002, Daniel hanged himself in his bedroom closet. During the investigation into Daniel's death, Officer Michael Boothroyd and Detective Gary Brandl of the Meriden police department, Pamela Kudla, a crisis intervention specialist called in by the police to assist Daniel's family, and Ronald Chase, an investigator for the state medical examiner's office, entered the defendant's apartment. They observed that it was extremely cluttered and that it had an unpleasant odor. Thereafter, the state filed a four count information in which it charged that the defendant: (1) "willfully or unlawfully caused or permitted a child under the age of sixteen years to be placed in such a situation that the life or limb of such a child was endangered . . . [by] providing a home living environment that was unhealthy and unsafe" in violation of § 53-21 (a) (1); (2) "willfully or unlawfully caused or permitted a child under the age of sixteen years to be placed in such a situation that the health of such child was likely to be injured . . . [by] providing a home environment that was unhealthy and unsafe" in violation of § 53-21 (a) (1); (3) "willfully or unlawfully caused or permitted a child under the age of sixteen years to be placed in such a situation that the health of such child was likely to be injured . . . [by] failing to provide proper medical or psychological care for such child" in violation of § 53-21 (a) (1); and (4) "negligently deprived another person of proper physical care" in violation of General Statutes § 53-20. At the close of the state's case, the defendant filed a motion for judgment of acquittal. The trial court granted the motion as to the first count because "[t]here [was] no evidence . . . to allow a jury to find as to any of the conditions charged in the home living environment that the defendant willfully caused or permitted a situation that created a risk of physical injury to a [child]." The court denied the defendant's motion, however, as to counts two through four. The state then filed a substitute information in which it charged that the defendant: (1) "willfully or unlawfully caused or permitted a child under the age of sixteen years to be placed in such a situation that the health of such child was likely to be injured . . . [by] providing a home living environment that was unhealthy and unsafe" in violation of § 53-21 (a) (1); (2) "willfully or unlawfully caused or permitted a child under the age of sixteen years to be placed in such a situation that the health of such child was likely to be injured . . . [by] failing to provide proper medical or psychological care for such child" in violation of § 53-21 (a) (1); and (3) "negligently deprived another person of proper physical care" in violation of § 53-20. At the close of the evidence, the defendant renewed her motion for judgment of acquittal as to the remaining counts of the information, and the court reserved its decision until after the verdict. The jury found the defendant guilty under the first count of the substitute information only. The defendant then filed a post verdict motion for judgment of acquittal. Addressing that motion and the previously deferred motion for judgment of acquittal, the trial court found that although there was no evidence to support a finding that the defendant's conduct was likely to cause injury to a child's physical health, the jury reasonably could have found that the conditions in the defendant's apartment were likely to cause injury to a child's mental health. The court then denied the motion for judgment of acquittal… In its memorandum of decision denying the motion for judgment of acquittal on the first count, the trial court found the following facts. "The jury heard testimony from several officials who went to the defendant's home on January 2, 2002, after receiving reports of a suicide there. Police testified that they found the dead body of the defendant's twelve year old son, Daniel, lying on the floor of a walk-in closet in his bedroom. The defendant and her seventeen year old daughter, Kara . . . told the police that Daniel had hung himself. Somewhere in the closet near the body, police found three long kitchen-type knives and a sharp implement affixed to a pole in a spear-like device, but there was no evidence that any of these objects played a role in causing the death. "The evidence, viewed most favorably to sustaining the verdict, would have reasonably permitted the jury to find that Daniel lived in a home with a foul and offensive odor. Four of the state's witnesses who went there on January 2 described the odor in various terms,as follows. . . . Boothroyd testified that 'a definite' and 'a bit of offensive' odor 'permeated throughout the whole home.' . . . Brandl described the odor as 'very noticeable,' 'as if . . . you . . . stuck your head in a dirty clothes hamper . . . plus an odor of garbage' and said that although he noticed the odor upon entering the apartment, it was even stronger in the back of the house. . . . Kudla . . . testified that the home had a 'very foul' and 'really bad' odor, especially as one went farther inside. Although . . . Chase . . . described the odor as only 'slightly offensive' and said he became accustomed to it after being in the premises and various defense witnesses denied that the apartment smelled bad, the jury was not required to believe witnesses denying the existence of any odor or minimizing its pungency. "The state's witnesses also described the apartment as very messy and cluttered. Boothroyd said the apartment was 'extremely messy and dirty, very cluttered' and had a 'chaotic atmosphere.' He said that 'it wasn't an easy place to walk through . . . . [Y]ou had to watch your step everywhere you went and [make] sure that you stayed on your feet' because of clothing and other articles piled everywhere on the floors throughout the house. He further testified that he saw dust accumulated on the top of various items. Brandl also said that the clutter made the apartment hard to walk through, with only an eighteen inch path between piles of debris from the front door to the kitchen. He said he could not even see the floor surface in Daniel's bedroom because of debris on the floor, some piled as high as the bed. When Brandl walked into the bedroom, he had to step on clothing and heard items cracking and breaking underneath. The police had to clear a path in the bedroom for the medical examiner's investigator to walk to the closet where Daniel's dead body lay. Kudla also testified that the home was very cluttered. She said that articles were piled on the floors throughout the house and that it was hard to maneuver or walk without stepping on those items. She said that in the bathroom one had to walk on clothing and other articles on the floor to get to the toilet. Chase also described the house as 'extremely cluttered.' "The jury could have found this testimony about the cluttered condition of the apartment from the state's witnesses during the prosecution's case-in-chief to be credible and persuasive. In addition, the jury saw photographs, introduced into evidence by both parties, that were taken of the interior of the apartment on the day of Daniel's death. The photographs showed that most floors in the apartment were covered with furniture, piles of clothing and other debris, plastic bins, plastic garbage bags, and other items. The [photographs] taken in the living room, the bedrooms of the defendant and her two children, and the bathroom show almost no clear floor space, the most notable exception being the narrow pathway described by some witnesses as leading from the front door. Clothing was strewn in layers on the floors of the three bedrooms. Flat surfaces above floor level-such as tabletops, chairs, and other furniture-were also covered with items, often with no room for any additional items. For example, atop an ironing board in the living room sat an iron, coffee cup, coffee can with Styrofoam cups atop it, pencil, cellophane tape, socks and other clothing, a book, a roll of paper, and other items. There was no clear surface in the kitchen to prepare or eat food. Many items on the kitchen and pantry counters, kitchen table, and stove had additional items inside or on top of them. The only horizontal surfaces above floor level that were free of debris in the photographs taken of the defendant's apartment on January 2, 2002, were the three beds belonging to the defendant and her two children. "Photographs taken in the bathroom on the day that the defendant reported Daniel's death showed the floor there to be covered completely with clothing. One could not walk to the sink, bathtub or toilet without stepping on clothing. The clothes on the floor blocked the door leading from the bathroom to [Kara's] adjacent bedroom . . . from being closed. Clothing on the floor blocked the cabinet doors under the bathroom sink from being closed. Although [Kara] testified that she had placed the clothes on the bathroom floor earlier that day to sort the laundry, the jury was not required to believe her on this point." The trial court rejected the defendant's claim that expert testimony was required to establish that the conditions in the apartment likely would result in injury to the mental health of a child. It found that "[t]he evidence in this case showed a child in severe distress-so distraught over bullying at school that he was defecating in his pants and missing school frequently and fearful at home. The evidence showed that he did not bathe often, smelled bad, had bad breath, problems probably compounded by fouling his pants at school. The jury could reasonably conclude that such a child needed to bathe more often and clean himself better. Yet the conditions of his home discouraged him from doing so. When bathing or using the toilet at home, he had no privacy because the door leading to his seventeen year old sister's bedroom could not be closed. The jury could certainly infer that the condition of the bathroom-clothing covering the floor, dirty and unsanitary fixtures, and articles in the tub-was a hindrance to using the bathroom, or at least would not encourage this twelve year old child with severe hygiene problems to clean himself there. "Though a hard case, this was not a close case. . . . [Jurors'] own lives, their knowledge of human experience, and their common sense would . . . provide an ample basis for them to assess the likely effect of the chaotic and filthy home environment in the defendant's household on the mental state of twelve year old Daniel . . . . The jury could use its everyday knowledge and common sense to conclude that the clutter and squalor throughout the home and lack of privacy in the bath were likely to harm Daniel's mental health, in light of his undisputedly fragile emotional state. Such a determination was not 'beyond the ken of the average juror.'" The court concluded that "[a]ny layperson with common sense
could conclude that the squalor and home living environment here
created a risk to Daniel's emotional health. . . . "This is not a case about a messy house. No law of which this court is aware regulates the frequency of vacuuming or prescribes specific housekeeping practices. The law, however, does seek to protect children . . . . The evidence here went far beyond messy or disorderly living conditions. The evidence showed extreme clutter and pervasive odor throughout the home, unsanitary bathroom facilities, and a child whose obvious emotional distress manifested itself in severe hygiene problems. It did not take an expert for this jury to conclude that the home living environment was likely to injure the mental, psychological, and emotional health of this troubled and fragile child." Accordingly, the trial court denied the defendant's motions for judgment of acquittal and rendered judgment in accordance with the verdict. Reasoning On appeal, the defendant claims that: (1) § 53-21 (a) (1) is unconstitutionally vague as applied to her conduct because the statute provides no notice that poor housekeeping may be a criminal offense; and (2) the evidence was insufficient to support the defendant's conviction for risk of injury to a child under § 53-21 (a) (1) because, without expert testimony, the jury had no basis upon which to conclude that the conditions in her apartment were likely to cause a mental health injury to a child. We conclude that these claims are inextricably intertwined. If a juror of ordinary experience and average intelligence could not have known, without expert testimony, that the conditions in the defendant's apartment were likely to injure the mental health of a child, then the defendant could not have known. Moreover, expert testimony as to whether the conditions in the apartment were likely to cause injury to the mental health of a child could not have established that the defendant knew or should have known of the likely consequences of those conditions. … For example, if expert testimony was required to show that combining two ordinary household cleaning products created a toxic gas, but there was no evidence that the defendant knew or should have known of that fact, then the expert testimony would not establish the injury was foreseeable was not required to prove precise physiological effects on child of ingesting marijuana, but expert testimony on that question might be helpful). We cannot perceive, however, how expert testimony could establish that the defendant should have known that the conditions in her apartment could cause mental injury to a child and would be within the scope of § 53-21 (a) (1). The defendant argues that § 53-21 (a) (1) is unconstitutionally vague as applied to her conduct because…even if the statute includes a knowledge requirement, the statute is vague because she could not have known that her conduct violated the statute. We disagree with the defendant's first claim, but agree with her second claim. A statute . . . [that] forbids or requires conduct in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process. . . . Laws must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly." "A statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity. . . . To demonstrate that [a statute] is unconstitutionally vague as applied to [her], the [defendant] therefore must . . . demonstrate beyond a reasonable doubt that [she] had inadequate notice of what was prohibited or that [she was] the victim of arbitrary and discriminatory enforcement. . . . [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement. . . . If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute's meaning to determine if it gives fair warning." … This court previously has recognized that "[t]he general purpose of § 53-21 is to protect the physical and psychological well-being of children from the potentially harmful conduct of adults." "Our case law has interpreted § 53-21 [(a) (1)] as comprising two distinct parts and criminalizing two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor's moral or physical welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being. . . . Thus, the first part of § 53-21 [(a) (1)] prohibits the creation of situations detrimental to a child's welfare, while the second part proscribes injurious acts directly perpetrated on the child." The present matter involves the portion of § 53-21 (a) (1) relating to the creation of a situation likely to result in injury to the mental health of a child. "Under the 'situation' portion of § 53-21 [(a) (1)], the state need not prove actual injury to the child. Instead, it must prove that the defendant wilfully created a situation that posed a risk to the child's health or morals. . . . The situation portion of § 53-21 [(a) (1)] encompasses the protection of the body as well as the safety and security of the environment in which the child exists, and for which the adult is responsible." The following procedural history is relevant to this claim. As we have indicated, the defendant filed a motion for judgment of acquittal after the state rested its case. During arguments on that motion, the trial court inquired whether evidence of Daniel's behavior was relevant to the first two counts of the original information. The prosecutor responded that "[i]t does not matter with regards to the first two counts . . . ." Rather, it was the state's position that the conditions in the defendant's apartment environment would injure "[a]ny child." We conclude that the statute is unconstitutionally vague as applied to the defendant's conduct. The state has pointed to no statutes, published or unpublished court opinions in this state or from other jurisdictions, newspaper reports, television programs or other public information that would support a conclusion that the defendant should have known that the conditions in her apartment posed an unlawful risk to the mental health of a child. Rather, the state implicitly relies on an "I know it when I see it" standard. We recognize that there may be generally accepted housekeeping norms and that it may be common knowledge that, all things being equal, a clean and orderly home is preferable to a dirty and cluttered home. The same could be said of any number of conditions and actions that affect a child's well-being. It may be common knowledge, for example, that drinking milk is healthier than a constant diet of soft drinks, reading books is preferable to constant exposure to television programs, large cars are safer than small cars, playing computer games is safer than riding a bicycle, and so on. All of these comparisons, however, involve virtually infinite gradations of conduct, making it extremely difficult, if not impossible, for an ordinary person to know where the line between potentially harmful but lawful conduct and unlawful conduct lies or, indeed, whether that line exists at all. Not all conduct that poses a risk to the mental or physical health of a child is unlawful. Rather, there is an acceptable range of risk. The trial court appears to have recognized the difficulty in discerning the line between lawful and unlawful conduct in this context. Nevertheless, the court implicitly determined that the jury reasonably could have concluded that the defendant should have known that the extreme clutter and unpleasant odor in her apartment created a situation that was well on the wrong side of that line, particularly in light of Daniel's "troubled and fragile" state of mind. We have concluded, however, that the state was obligated to prove beyond a reasonable doubt that the defendant knew or should have known that the conditions would constitute a risk of injury to the mental health of any child. Although the defendant reasonably could have been aware that the conditions were not optimal, we are not persuaded that the nature and severity of the risk were such that the defendant reasonably could not have believed that they were within the acceptable range. Specifically, the trial court focused on the fact that Daniel exhibited poor hygiene and on the conditions of the defendant's home, which discouraged frequent bathing. In support of the latter conclusion, the court noted that clutter prevented the bathroom door from being closed for privacy and was a hindrance to using the bathroom. The court did not appear to find, however, that Daniel's poor hygiene was the direct result of the cluttered condition of the bathroom. There was no evidence, for example, that the clutter prevented the defendant or Kara from bathing regularly and using the toilet. Indeed, the court concluded that Daniel's "emotional distress manifested itself in severe hygiene problems." Moreover, if the court had believed that Daniel's body odor, bad breath and habit of defecating in his pants were a direct result of the cluttered condition of the bathroom, the court logically could not have found that the conditions in the apartment posed no risk to the defendant's physical health. Moreover, although the trial court recognized that the evidence showed that employees of the department had inspected the defendant's apartment during late 2001, and had closed its file on the family only days before Daniel's suicide, it failed to draw the critical inference that the only experts in child safety who had knowledge of the conditions in the defendant's home during the relevant period apparently had concluded that they were not so deplorable as to pose an immediate threat to Daniel's mental health. We do not suggest that the department's failure to take action constituted conclusive evidence that the conditions in the apartment did not pose a risk of injury to the mental health of a child. It does constitute evidence, however, that the conditions in the apartment did not pose such an obvious risk that it would be within the knowledge of an ordinary person. Finally, the jury unavoidably was made aware during trial that Daniel had exhibited a variety of strange behaviors, was frequently emotionally upset and ultimately had killed himself. There were several possible explanations for Daniel's state of mind and behavior, however, including the relentless bullying that he endured at school and his inherently fragile psyche. Even if it is assumed that the state fairly could rely on evidence of Daniel's suicide to prove that the conditions in the apartment in fact caused injury to Daniel's mental health, that evidence was not competent to prove that such harm was foreseeable. As we have suggested, actual effects are not necessarily foreseeable effects. The trial court stated that "[t]he fact that [Daniel] committed suicide was relevant evidence concerning the risk to [him] (and the defendant did not object to introduction of the evidence about [his] death), but was not itself an element of the offense charged here. The same violation, creating and maintaining a situation that endangered [a] child's mental health, would have existed even had [Daniel] not committed suicide." Thus, the trial court recognized that evidence of Daniel's suicide was relevant only in determining whether Daniel actually suffered harm to his mental health. Moreover, the court appears to have recognized that such evidence was potentially prejudicial in that it could have led the jury to believe that, because Daniel's mental health somehow had been injured, the injury must have been the foreseeable result of the conditions in the apartment. We find the application of hindsight to be particularly troubling in this context. If it is the state's position that the conditions in the defendant's apartment on January 2, 2002, posed a foreseeable risk to the mental health of children, then similar conditions around the state should have been subject to criminal prosecution before now. As we have indicated, the state has not pointed to any published or unpublished judicial opinions, newspaper articles or other sources of information indicating that such prosecutions have occurred. It seems unfair, and even cruel, both to potential defendants and to potential victims, to prosecute a defendant on the basis of such conditions only when a child actually has suffered some catastrophic harm. Put another way, the state cannot decline to prosecute persons who maintain such conditions because it believes that the risk to children either is within an acceptable range or is speculative and then, only when catastrophic harm actually occurs, use that as evidence that the risk was unacceptable and foreseeable. At oral argument before this court, the state argued that household conditions that are sufficiently squalid to justify removal of a child from the home are sufficiently squalid to support a conviction under § 53-21 (a) (1). It further argued that the conditions in the present case met that standard, and that the department had "made a mistake" when it closed its file on Daniel without taking action against the defendant. That proposed standard, however, provides no more guidance to potential defendants than does the statute itself. Moreover, our review of the case law from other jurisdictions reveals that other courts have found that conditions much worse than those found in the defendant's apartment did not justify removal of a child from the home. Holding We are mindful that § 53-21 (a) (1) is broadly drafted and was intended to apply to any conduct, illegal or not, that foreseeably could result in injury to the health of a child. We do not rule out the possibility that a home environment could be so squalid that an ordinary person should be expected to know that it poses a risk to the mental health of a child. The testimony in the present case established, however, that there was no sign in the defendant's apartment of rats, mice or other vermin, animal or human waste, or rotting food or garbage. Moreover, the trial court found that the conditions were not so bad that they would pose a threat to a child's physical health. The evidence showed only that the apartment was extremely cluttered and had an unpleasant odor of uncertain origin. We cannot conclude that the defendant was on notice that these conditions were so squalid that they posed a risk of injury to the mental health of a child within the meaning of § 53-21 (a) (1). Accordingly, we conclude that the statute is unconstitutionally vague as applied to the defendant's conduct. The judgment is reversed and the case is remanded to the trial
court with direction to grant the defendant's motion for judgment
of acquittal. When determining whether the defendant, Judith Scruggs, had notice that the conditions in her apartment fell within the scope of General Statutes § 53-21(a)(1), the trial court should have applied the objective standard advocated for by the state. Specifically, contrary to the trial court's memorandum of decision, which characterized this case as a "hard case, [but] not a close case," and improperly focused on the fact that Daniel Scruggs' physical and mental frailty made the risk to his mental health obvious, the defendant's culpability should have been gauged by reference to the likely effect of the conditions in the defendant's apartment on the mental health of any twelve year old child. This standard reflects the state's theory of criminal liability specifically articulated in response to the defendant's motion for judgment of acquittal at the end of the state's case-in-chief….. [O]nly days before Daniel's death, the agency of the state of Connecticut that is dedicated to protecting children from abuse and neglect, had, by its conduct and words, sent a clear message to the defendant that the department saw no significant cause for concern regarding Daniel's health and welfare. Indeed, the department's message was that the defendant should keep Daniel home from school in the very conditions that the same state of Connecticut, through its criminal prosecutorial arm, later charged created an unreasonable risk to his mental health. Although, of course, the law enforcement arm of the state is not bound by a prior determination, express or implied, of the department, from a standpoint of fair notice, the defendant reasonably cannot be expected to make the legal distinction between the two agencies' subject matter jurisdictions. From the viewpoint of the ordinary citizen, it is not fair, and does not comport with adequate notice, for the state to say, in effect, we have no concern for Daniel's health by virtue of his living conditions, and then to say, but we will prosecute the defendant criminally for maintaining those same living conditions…. The state claims that the department made a mistake in its assessment of the likely effect of Daniel's living conditions on his mental health, and that such a mistake does not absolve the defendant of criminal liability. This argument is unpersuasive. Regardless of whether the department made a mistake by closing its investigation and recommending that the defendant keep Daniel home, it does not change the fact that the department's recommendation deprived the defendant of fair notice that her conduct would be susceptible to criminal liability under § 53-21(a)(1). Put simply, in the absence of authoritative sources that speak to the level of housekeeping that places the defendant's conduct outside the scope of criminal liability, whether it be statute, court cases, newspaper reports, or some other public information, the defendant was entitled to rely on the department's implicit conclusion, on the day that it was given, that her home was within an acceptable range of cleanliness. Accordingly, I agree with the majority that § 53-21(a)(1) is unconstitutionally vague as applied to the defendant's conduct. Questions for Discussion
Chapter 3: Cruel and Unusual Punishment, The Death Penalty DOES LETHAL INJECTION IN CALIFORNIA CONTITUTE A CRUEL AND UNUSUAL METHOD OF ADMINISTERING THE DEATH PENALTY?
Fogel J. Few issues in American society have generated as much impassioned debate as the death penalty. At one end of the spectrum, abolitionists condemn the intentional taking of human life by the State as barbaric and profoundly immoral. At the other, proponents see death, even a painful death, as the only just punishment for crimes that inflict unimaginable suffering on victims and their surviving loved ones. Even among those with less absolute positions, there are vigorous arguments about the social, penological, and economic costs and benefits of capital punishment. Any legal proceeding arising in this context thus acts as a powerful magnet, an opportunity for people who care about this divisive issue to express their opinions and vent their frustrations. However, because courts (and particularly trial courts) exist not to resolve broad questions of social policy but to decide specific legal and factual disputes, it is important at the outset for this Court to make very clear what this case is not about. This case is not about whether the death penalty makes sense morally or as a matter of policy: the former inquiry is a matter not of law but of conscience; the latter is a question not for the judiciary but for the legislature and the voters. Nor is it about whether California's primary method of execution--lethal injection--is constitutional in the abstract: the arguments and evidence presented by the parties address the specific manner in which California has implemented that method and proposes to do so in the future. Nor is it about whether the Constitution requires that executions be painless: binding precedent holds that the Eighth Amendment prohibits only "the unnecessary and wanton infliction of pain," and procedures that create an "unnecessary risk" that such pain will be inflicted. Nor, finally, does it somehow involve a comparison of the pain that Plaintiff, a condemned inmate at California's San Quentin State Prison, might suffer when he is executed with the horrific suffering of the young woman he raped and murdered. The Court has considered seriously the constitutional issues raised by this case not because of some imagined personal sympathy for Plaintiff but because it is its fundamental duty to do so. As a practical matter, there is no way for a court to address Eighth Amendment issues in the capital context other than in a case raised by a death-row inmate; by definition, the acts of which such an inmate stands convicted are viewed by the law and a majority of the community as so abhorrent as to warrant the ultimate penalty. Lest there be any doubt, this Court has the most profound sympathy for the family and loved ones of Plaintiff's victim. In fact, this case presents a very narrow question: does California's lethal-injection protocol--as actually administered in practice--create an undue and unnecessary risk that an inmate will suffer pain so extreme that it offends the Eighth Amendment? Because this question has arisen in the context of previous [*5] executions and is likely to recur with frequency in the future, the Court has undertaken a thorough review of every aspect of the protocol, including the composition and training of the execution team, the equipment and apparatus used in executions, the pharmacology and pharmacokinetics of the drugs involved, and the available documentary and anecdotal evidence concerning every execution in California since lethal injection was adopted as the State's preferred means of execution in 1992. The Court has reviewed a mountain of documents, including hundreds of pages of legal briefs, expert declarations, and deposition testimony, and it has conducted five days of formal hearings, including a day at San Quentin State Prison that involved a detailed examination of the execution chamber and related facilities. The Court concludes that absent effective remedial action by Defendants--the nature of which is discussed in …this memorandum--this exhaustive review will compel it to answer the question presented in the affirmative. Defendants' implementation of lethal injection is broken, but it can be fixed. Facts Plaintiff Michael Angelo Morales raped and murdered Terri Winchell.
A jury convicted Plaintiff of murder, found special circumstances,
and sentenced him to death. . Plaintiff filed the present action on January 13, 2006, contending that OP 770 and the manner in which Defendants implement it would subject him to an unnecessary risk of excessive pain, thus violating the Eighth Amendment's command that "cruel and unusual punishments [not be] inflicted." Five days later, the Superior Court of California for the County of Ventura issued a death warrant, setting Plaintiff's execution for February 21, 2006. This Court then…held two hearings on Plaintiff s application for a preliminary injunction to stay his execution so that the Court could conduct a full evidentiary hearing to consider his claims. On February 14, 2006, the Court issued an order conditionally denying Plaintiff's request for a stay of execution. The Court reviewed in detail evidence from execution logs, which indicated that "inmates' breathing may not have ceased as expected in at least six out of thirteen executions by lethal injection in California." This and other evidence raised concerns that inmates may have been conscious when they were injected with pancuronium bromide and potassium chloride, drugs that the parties agreed would cause an unconstitutional level of pain if injected into a conscious person. Given this evidence, the Court fashioned a remedy that was intended to permit Defendants to proceed with Plaintiffs execution as scheduled by executing him with only barbiturates or by retaining the services of a qualified expert to ensure that Plaintiff would be unconscious when exposed to the painful drugs. In so holding, the Court suggested that the Defendants conduct "a thorough review of the lethal- injection protocol, including… the manner in which the drugs are injected, the means used to determine when the person being executed has lost consciousness, and the quality of contemporaneous records of executions, such as execution logs and electrocardiograms. Given the number of condemned inmates on California's Death Row, the issues presented by this case are likely to recur with considerable frequency." In fact, there have been only eleven executions by lethal injection
in California; the first two executions following the reinstatement,
of the death penalty were by lethal gas. On February 19, 2006, the United States Court of Appeals for the Ninth Circuit affirmed. The Ninth Circuit construed this Court's order as "contemplating that [the anesthesiologists] have the authority to take 'all medically appropriate steps'--either alone or in conjunction with the injection team--to immediately place or return Morales into an unconscious state or to otherwise alleviate the painful effects of either or both the pancuronium bromide or potassium chloride." However, for reasons that remain somewhat unclear, there was a "disconnect between the expectations articulated in the orders of this Court and the Court of Appeals and the expectations of the anesthesiologists" regarding how they would participate in Plaintiffs execution. Defendants apparently had told the anesthesiologists that the anesthesiologists merely would have to observe the execution, while Defendants' counsel represented to the Court that the anesthesiologists would ensure that Plaintiff would remain unconscious after he was injected with sodium thiopental. This disconnect became apparent on the evening of February 20, 2006, approximately three or four hours before Plaintiffs scheduled execution (which Defendants had set for 12:01 a.m. on February 21), when Defendants provided copies of the Ninth Circuit's opinion to the anesthesiologists. Almost immediately, the anesthesiologists stated that they could not proceed for reasons of medical ethics. Several hours of tense discussions (including what Warden Ornoski described as "training" of the anesthesiologists) and telephonic hearings followed, during which Defendants postponed the execution. At approximately 2:45 a.m. on February 21, Defendants stated that they would seek approval from the Court to execute Plaintiff using only sodium thiopental (and without the participation of the anesthesiologists); the execution was rescheduled for 7:30 p.m. The parties submitted briefing on Defendants' request, and the
Court heard approximately one hour of telephonic argument during
the morning of February 21. Because Defendants had indicated their
desire to proceed using only sodium thiopental only hours earlier,
the record contained virtually no evidence as to the details of
how such an execution would be carried out, and Plaintiff had no
meaningful opportunity for appellate review. …Accordingly,
while Defendants may proceed with the execution this evening using
only sodium thiopental, they may do so only if the sodium thiopental
is injected in the execution chamber directly into the intravenous
cannula by a person or persons licensed by the State of California
to inject medications intravenously. The Court then set an expedited schedule for an evidentiary hearing to be held in May 2006. Thereafter, at the joint request of the parties, the evidentiary hearing was deferred until September 2006 to enable the parties to complete discovery. On February 28, 2006, the Governor's Office hosted a meeting lasting approximately an hour and a half at which potential changes to OP 770 were discussed. Although more significant modifications were proposed by some of the participants, the Governor's Legal Affairs Secretary concluded that only change that would be undertaken at that time was what was described as a "tweak" of the chemical aspects of the protocol. It was decided that the dosages of the three drugs would be adjusted and that a continuous infusion of sodium thiopental during the administration of pancuronium bromide and potassium chloride would be added. There is no indication from the record that the participants in the meeting addressed or considered issues related to the selection and training of the execution team, the administration of the drugs, the monitoring of executions, or the quality of execution logs and other pertinent records. Defendants issued the revised version of OP 770 on March 6, 2006; this version remains current and is the version that Defendants intend to follow in executing Plaintiff. On March 30, 2006, the Court convened at San Quentin State Prison for what the parties agreed would be a preliminary session of the evidentiary hearing. At San Quentin, the Court examined the equipment and facilities used during executions, and it heard partial testimony from the then-leader of Defendants' execution team. Issue From the evidence in the record and the parties' extensive briefing, the Court has learned a great deal about executions by lethal injection in general and their implementation in California in particular. The opportunity to make first-hand observations at San Quentin was quite useful, and the oral testimony and written declarations of well-qualified experts on both sides have been very helpful. Yet in many respects, the Court finds itself in virtually the same position today that it was in when it considered Plaintiff's motion for a preliminary injunction in February 2006. As they did in February, the parties agree that it would be unconstitutional to inject a conscious person with pancuronium bromide and potassium chloride in the amounts contemplated by OP 770. Defendants' principal medical expert, Dr. Robert C. Singler, testified that it would be "terrifying" to be awake and injected with the contemplated dosage of pancuronium bromide and that it would be "unconscionable" to inject a conscious person with the contemplated amount of potassium chloride. The parties also agree, as they did in February, that assuming effective anesthesia, the use in executions of pancuronium bromide or potassium chloride as such does not violate the Eighth Amendment. As it has from its inception, the resolution of this case thus turns on a single factual question: whether OP 770, as implemented, provides constitutionally adequate assurance that condemned inmates will be unconscious when they are injected with pancuronium bromide and potassium chloride. On the surface, this would appear to be a relatively straightforward inquiry. As Defendants have pointed out repeatedly and as this Court itself has found in three separate capital cases, including this one, the amount of sodium thiopental to be given to the condemned person pursuant to OP 770 is sufficient to cause virtually all persons to become unconscious or even to cease breathing within one minute. …Accordingly, assuming that the sodium thiopental is delivered properly, there should be virtually no risk that an inmate will suffer an unconstitutional level of pain. Reasoning However, the record in this case, particularly as it has been developed through discovery and the evidentiary hearing, is replete with evidence that in actual practice OP 770 does not function as intended. The evidence shows that the protocol and Defendants' implementation of it suffer from a number of critical deficiencies, including: 1. Inconsistent and unreliable screening of execution team members: For example, one former execution team leader, who was responsible for the custody of sodium thiopental (which in smaller doses is a pleasurable and addictive controlled substance), was disciplined for smuggling illegal drugs into San Quentin; another prison guard led the execution team despite the fact that he was diagnosed with and disabled by post-traumatic stress disorder as a result of his experiences in the prison system and he found working on the execution team to be the most stressful responsibility a prison employee ever could have. 2. A lack of meaningful training, supervision, and oversight of the execution team: Although members of the execution team testified that they perform numerous "walk-throughs" of some aspects of the execution procedure before each scheduled execution, the team members almost uniformly have no knowledge of the nature or properties of the drugs that are used or the risks or potential problems associated with the procedure. One member of the execution team, a registered nurse who was responsible for mixing and preparing the sodium thiopental at many executions, testified that "[w]e don't have training, really." While the team members who set the intravenous catheters are licensed to do so, they are not adequately prepared to deal with any complications that may arise, and in fact the team failed to set an intravenous line during the execution of Stanley "Tookie" Williams on December 13, 2005. Although Defendants' counsel assured the Court at the evidentiary hearing that "Williams was a lesson well learned, one that will never occur again," the record shows that Defendants did not take steps sufficient to ensure that a similar or worse problem would not occur during the execution of Clarence Ray Allen on January 17, 2006, or Plaintiff's scheduled execution the following month. The execution team neither has received any training in nor has
it practiced mixing sodium thiopental since at least as far back
as 1998. Indeed, the execution team members' reaction to the problem
at the Williams execution was described by one member as nothing
more than "shit does happen, so." There is also an extremely troubling absence of reliable documentation as to the disposition of sodium thiopental taken from the prison pharmacy by execution team members purportedly for training purposes; team members testified that the actual drugs are not used in training, yet it appears that substantial quantities of sodium thiopental--again, an addictive controlled substance--were not returned to the pharmacy. These circumstances may warrant investigation by an appropriate law-enforcement agency. 4. Improper mixing preparation, and administration of sodium thiopental by the execution team: Among other things, team members' admitted failure to follow the simple directions provided by the manufacturer of sodium thiopental further complicates the inquiry as to whether inmates being executed have been sufficiently anesthetized. 5. Inadequate lighting, overcrowded conditions, and poorly designed facilities in which the execution team must work: The execution chamber was not designed for lethal-injection executions; San Quentin officials simply made slight modifications to the existing gas chamber, such as drilling holes in the chamber wall for intravenous lines and installing a metal hook at the top of the chamber from which the bags containing the lethal drugs are suspended. The bags are too high to permit the execution team to verify whether the equipment is working properly. The lighting is too dim, and execution team members are too far away, to permit effective observation of any unusual or unexpected movements by the condemned inmate, much less to determine whether the inmate is conscious; this is exacerbated by the fact that the chamber door is sealed shut during executions as if lethal gas were being disseminated, rendering it virtually impossible to hear any sound from the chamber. For some executions, the small anteroom from which the execution team injects the lethal drugs has been so crowded with prison officials and other dignitaries that even simple movement has been difficult. Defendants observe correctly that Plaintiffs burden of proof at the present stage of the instant proceeding is greater than it was at the preliminary-injunction stage and that there still is no definitive evidence that any inmate has been conscious during his execution. Nonetheless, the evidence is more than adequate to establish a constitutional violation. Given that the State is taking a human life, the pervasive lack of professionalism in the implementation of OP 770 at the very least is deeply disturbing. Coupled with the fact that the use of pancuronium bromide masks any outward signs of consciousness, the systemic flaws in the implementation of the protocol make it impossible to determine with any degree of certainty whether one or more inmates may have been conscious during previous executions or whether there is any reasonable assurance going forward that a given inmate will be adequately anesthetized. The responsibility for this uncertainty falls squarely upon Defendants, and the circumstances clearly implicate the Eighth Amendment. As this Court noted in its order of February 14, 2006, anomalies in six execution logs raise substantial questions as to whether certain inmates may have been conscious when pancuronium bromide or potassium chloride was injected. . These substantial questions remain unanswered despite the depth and breadth of the evidentiary record and the parties' briefing. If anything, the questions have become even more substantial. One of the executions not discussed by the Court in its order of February 14 was that of Robert Lee Massie, who was executed on March 27, 2001. Massie's execution was explored in detail at the evidentiary hearing. Testifying on behalf of Defendants, Dr. Singler opined that based upon the heart rates reflected in the execution log, Massie well may have been awake when he was injected with potassium chloride. Significantly, Dr. Singler testified that he was unable to give a definitive opinion principally because of the poor quality of the log itself, and in particular an unclear entry in the log as to Massie's heart rate. Dr. Singler's testimony regarding Massie's execution is merely the most dramatic evidence concerning the risks posed by Defendants' acts and omissions. Dr. Singler also testified to a number of additional concerns, most notably the fact that overcrowding, obstructed sight lines, and poor lighting in the execution chamber and adjoining anteroom make accurate observations of the inmate during an execution extremely problematic. Whatever the merits of the protocol in the abstract, there can be no real doubt that Defendants' implementation of OP 770 has major flaws, many of which are apparent from the undisputed facts…. The Framers of our Constitution were not far removed from a society in which condemned prisoners were put to death by being beheaded, drawn, and quartered. The Eighth Amendment was adopted in part as a response to such brutality, and it since has been construed by our Supreme Court to require that punishment for crimes comport with "the evolving standards of decency that mark the progress of a maturing society." While opponents of the death penalty believe that any means of execution necessarily violates such standards, the Supreme Court repeatedly has held otherwise, in large part because the Constitution itself makes explicit reference to capital punishment, U.S. Const. amends. The use of lethal injection in executions represents an evolution from earlier methods such as hanging, electrocution, and lethal gas that now are viewed by most jurisdictions as unduly harsh. Needless to say, when properly administered, lethal injection results in a death that is far kinder than that suffered by the victims of capital crimes. At the present time, however, Defendants' implementation of California's lethal-injection protocol lacks both reliability and transparency. In light of the substantial questions raised by the records of previous executions, Defendants' actions and failures to act have resulted in an undue and unnecessary risk of an Eighth Amendment violation. This is intolerable under the Constitution. Holding As this Court previously has noted, "under the doctrines of
comity and separation of powers, the particulars of California's
lethal-injection protocol are and should remain the province of
the State's executive branch." Moreover, despite its critical
assessment of Defendants' performance to date, this Court has no
intention of interfering with or delaying California's implementation
of a constitutional execution protocol. California's voters and
legislature repeatedly have expressed their support for capital
punishment. This case thus presents an important opportunity for
executive leadership. Accordingly, and respectfully, the Court urges the Governor's Office to take this opportunity to address seriously now, rather than later, the significant problems with OP 770 and its implementation. In light of the well-documented management issues in California's prison system generally, the Court believes that the Governor's Office is in the best position to insist on an appropriate degree of care and professionalism in carrying out what Defendants properly characterize as the "solemn" task of executions. n14 Toward that end, acknowledging its own limited role and with deference to the role of the State's executive branch, and informed by what it has learned in the course of the present litigation, the Court offers the following observations: First, given past experience, it seems unlikely that a single, brief meeting primarily of lawyers, the result of which is to "tweak" OP 770, will be sufficient to address the problems identified in this case. Rather, as contemplated by the Court in its order of February 14, 2006, "a thorough review of the lethal-injection protocol, including…the manner in which the drugs are injected, the means used to determine when the person being executed has lost consciousness, and the quality of contemporaneous records of executions, such as execution logs and electrocardiograms," likely will be necessary. To be meaningful, such a review may require consultation with independent experts and with other jurisdictions, and it must be undertaken with an openness to the idea of making significant improvements in the "infrastructure" of executions. Second, given that because of the paralytic effect of pancuronium bromide, a determination of an inmate's anesthetic depth after being injected with that drug is extremely difficult for anyone without substantial training and experience in anesthesia, the protocol must ensure that a sufficient dose of sodium thiopental or other anesthetic actually reaches the condemned inmate and that there are reliable means of monitoring and recording the inmate's vital signs throughout the execution process. An adequate protocol also must include a means of providing additional anesthetic to the inmate should the need arise. Because an execution is not a medical procedure, and its purpose is not to keep the inmate alive but rather to end the inmate's life, the Court agrees with Defendants that the Constitution does not necessarily require the attendance and participation of a medical professional. n15 However, the need for a person with medical training would appear to be inversely related to the reliability and transparency of the means for ensuring that the inmate is properly anesthetized: the better the delivery system, the less need there is for medical participation. Third, because the constitutional issues presented by this case stem solely from the effects of pancuronium bromide and potassium chloride on a person who has not been properly, anesthetized, removal of these drugs from the lethal-injection protocol, with the execution accomplished solely by an anesthetic, such as sodium pentobarbital, would eliminate any constitutional concerns, subject only to the implementation of adequate, verifiable procedures to ensure that the inmate actually receives a fatal dose of the anesthetic. Should Defendants wish to retain a three-drug protocol, which it most certainly is their right to do, they must address in a serious way the broader structural problems in implementation outlined in this memorandum. [I]t is somewhat significant that at least nineteen states have enacted laws that either mandate the exclusive use of a sedative or expressly prohibit the use of a neuromuscular blocking agent in the euthanasia of animals. It is also of some significance that the leading professional association of veterinarians promulgated guidelines that prohibit the use of a sedative with a muscle paralyzing drug for purposes of euthanasia... . Accordingly, and good cause therefor appearing, within thirty days Defendants shall advise the Court and Plaintiff of their response to this memorandum, including specifically whether Defendants and the Governor's Office intend to review and revise OP 770 further and, if so, how much additional time, if any, they believe they will need to complete that task. …. Questions for Discussion
Chapter 3: Sentencing and Punishment MAY A COURT REQUIRE AN INDIVIDUAL SENTENCED TO PROBATION TO DISPLAY A SIGN AT THE ENTRANCE OF HIS HOME WARNING THAT A "VIOLENT FELON LIVES HERE?" PEOPLE V. MEYER
McMorrow, J. : Issue The sole question presented for our review in the instant case is whether section 5-6-3(b) of the Unified Code of Corrections ( authorizes a trial court to order, as a condition of probation, that the defendant post a large sign at all entrances to his family farm which reads "Warning! A violent felon lives here. Enter at your own risk!" The appellate court affirmed the trial court's imposition of this condition and defendant appealed We reverse, and hold that the trial court exceeded the scope of its sentencing authority because posting a sign of this type is not a reasonable condition of probation under section 5-6-3(b) of the Code. Therefore, we vacate the order of the circuit court in part. Facts Following a jury trial, the defendant, Glenn Meyer, was convicted of aggravated battery of Gary Mason. The trial testimony showed that on February 25, 1995, Gary Mason visited the defendant's farm in order to return some vehicle parts that he purchased from the defendant. Mason and the defendant began to quarrel over whether the parts were functioning properly. During the argument the defendant swung one of the parts at Mason, striking him in the nose and eye, causing several injuries. At the defendant's sentencing hearing, evidence was presented in aggravation and mitigation. On behalf of the State, Tim Belford testified that in September 1986, he went to the defendant's farm in order to collect monies for two insufficient fund checks issued by defendant to Belford's employer, the First National Bank of Pittsfield. Belford stated that the defendant eventually gave him the money, but then kicked him and ordered him off of the farm. Belford acknowledged that a jury acquitted the defendant of aggravated battery charges stemming from this incident. Next, Harry Dyel testified that in May of 1990, he went to the defendant's farm on behalf of his employer, Shelter Insurance Company, in order to investigate a claim filed by the defendant. Dyel testified that the defendant became hostile because he was annoyed by the company's failure to process his claim promptly. Dyel stated that after he attempted to comply with the defendant's demands for payment, the defendant pushed him down and kicked him several times, causing injuries to his torso, arms, face and head. The defendant was convicted of the aggravated battery of Dyel. Finally, Gary Mason, the victim in the present case, testified regarding the defendant's actions on February 25, 1995. Several witnesses testified in mitigation. Kenwood Foster testified that he is a licensed clinical social worker who operates a private counseling service. The defendant began seeing Foster in the fall of 1991. Foster testified that doctors at several different clinics have diagnosed the defendant as having "major depressive disorder" or clinical depression. Foster further stated that he believes that the defendant may also suffer from a condition similar to a type of post-traumatic stress disorder. He indicated that the defendant has been taking prescription medication known as Zoloft, to control his illness. Foster further testified that certain stresses, such as a perceived threat to the defendant or his family, could trigger a change in the defendant's behavior. Foster acknowledged that the defendant may perceive certain behavior as threatening, even if the average individual would not feel threatened under similar circumstances. Friends of the defendant, Gregg Smith, David Gratton and Bruce Lightle, also testified. All three described the defendant's good character and reputation within the community. Mary Meyer, the defendant's wife of 36 years, testified that the defendant's elderly mother relies on the defendant, her only child, for care and assistance. Mrs. Meyer stated that she teaches high school, and has always relied on the defendant to manage the farm. She indicated that her family would suffer great hardship if the defendant were incarcerated. Mrs. Meyer also testified regarding the defendant's prolonged psychological illness and his efforts to control his sickness with medication. Additionally, the presentence investigation report contains a detailed description of the defendant's mental health history. Several psychological evaluations of the defendant, dating from 1989, show that he suffers from major depressive disorder and possibly an additional psychological malady. The defendant appealed his sentence, arguing that the sign was an improper condition of probation. The appellate court determined that section 5-6-3(b) authorized the trial court to order the sign as a reasonable condition of probation, and affirmed the trial court on this issue. We granted the defendant leave to appeal" Reasoning The sole issue presented to us for review is whether the trial court was authorized to order the violent felon warning sign as a condition of probation. The defendant maintains that the trial court acted outside of the scope of its sentencing authority because the sign is not a reasonable condition of probation within the meaning of the Unified Code of Corrections Section 5-6-3(b) of the Code lists 16 permissible probation conditions that the trial court may impose "in addition to other reasonable conditions relating to the nature of the offense or the rehabilitation of the defendant as determined for each defendant in the proper discretion of the Court." The defendant maintains that the warning sign is not a reasonable condition of probation because it does not comport with traditional notions of punishment or probation in Illinois, and instead is an unauthorized "shaming penalty" or a scarlet letter type of punishment. The defendant argues that nothing in the Code supports the subjection of probationers to public ridicule as a goal of probation. The State responds that while the sign may embarrass the defendant, it is not intended to subject him to public ridicule. Rather, the State and the amicus curiae , the American Alliance for Rights and Responsibilities, contend that this condition of probation furthers the goals of probation because it protects the public and serves to rehabilitate the defendant. The State maintains that the sign protects the public by warning against provoking the defendant and by reducing the number of guests or business invitees who visit the farm. The State and the amicus argue that the goal of rehabilitation is fostered by the sign because it reminds the defendant that society disapproves of his criminal conduct. The amicus further argues that because the sign reminds the defendant of his offense, the defendant will modify his behavior and will be less likely to commit acts of violence in the future. Finally, both the State and the amicus argue that the trial court acted within its discretion by carefully fashioning the conditions of probation to correspond to the needs of the defendant and the public. Generally, the trial court is afforded wide discretion in fashioning the conditions of probation for a particular defendant. However, while the trial court has discretion to impose probation conditions which will foster rehabilitation and protect the public, the exercise of this discretion is not without limitation. Section 5-6-3(b) of the Code contains 16 permitted conditions of probation which may be imposed "in addition to other reasonable conditions." Requiring the defendant to erect a sign on his property, proclaiming his status as a violent convicted felon, is not statutorily identified as one of the conditions of probation. The statute gives the trial court the discretion to impose additional conditions of probation provided that they are reasonable".[A] probation condition not expressly enumerated in the statute may be imposed as long as it is (1) reasonable and (2) relates to (a) the nature of offense or (b) the rehabilitation of the defendant as determined by the trial court. We must, therefore, determine whether compelling defendant to post a 4-foot by 8-foot sign in front of his residence which, in 8-inch high letters, states that defendant is a violent felon is a reasonable condition under section 5-6-3 of the Code. Section 1-1-2 of the Unified Code of Corrections provides: "The purposes of this Code of Corrections are to: (a) prescribe sanctions proportionate to the seriousness of the offenses and permit the recognition of differences in rehabilitation possibilities among individual offenders; (b) forbid and prevent the commission of offenses; (c) prevent arbitrary or oppressive treatment of persons adjudicated offenders or delinquents; and (d) restore offenders to useful citizenship." . Consistent with this legislative intent, this court has recognized repeatedly that the purpose of probation is to benefit society by restoring a defendant to useful citizenship, rather than allowing a defendant to become a burden as an habitual offender. Probation simultaneously serves as a form of punishment and as a method for rehabilitating an offender. Protection of the public from the type of conduct that led to a defendant's conviction is one of the goals of probation. . Although the sign may foster the goals of probation to the extent that it punishes the defendant and protects the public, furtherance of these two goals alone does not render the condition reasonable. Indeed, we are persuaded by defendant's contention that the sign, in fact, may hamper the goal of rehabilitation, and that the erection of the sign is inconsistent with the conditions of probation. We recognize that the trial court labored arduously and sincerely to develop a sentence which would serve the needs of society and simultaneously avoid incarceration of the defendant. Nonetheless, we hold the sign condition of probation imposed in this case was unreasonable. The Tennessee Supreme Court in State v. Burdin , 924 S.W.2d 82 (Tenn. 1996), considered and rejected a comparable "shaming sign," finding that it was unreasonable. The Tennessee court held that the Tennessee statute at issue there did not authorize a condition of probation which required the defendant to erect a sign in the front yard of his residence which read, "Warning, all children. [Defendant] is an admitted and convicted child molester. Parents beware." In Burdin, the defendant pleaded guilty to sexual battery of a 16-year-old victim. As a condition of probation, the court ordered the defendant to place the warning sign in the front his residence where he lived with his mother. The Tennessee statute, like the Illinois statute, provided a non-inclusive list of permissible probation conditions. The Tennessee statute also contained a provision which stated, in part, that the defendant may be required to satisfy "any other condition [of probation] reasonably related to the purpose of the offender's sentence and not unduly restrictive of the offender's liberty, or incompatible with the offender's freedom of conscience, or otherwise prohibited by this chapter." The Burdin court stated that the "consequences of imposing such a condition without the normal safeguards of legislative study and debate are uncertain."C]ompliance with the condition would have consequences in the community perhaps beneficial, perhaps detrimental, but in any event unforeseen and unpredictable." Similarly, in People v. Johnson , 528 N.E.2d 1360 (1988), the court cautioned against allowing trial courts to impose unconventional conditions of supervision which may have unknown consequences. The defendant in Johnson was convicted of driving under the influence of alcohol. As a condition of supervision, the trial court in Johnson ordered the defendant to place an advertisement in the local daily newspaper, which contained her booking picture and an apology. The appellate court vacated this condition. Specifically, the court in Johnson noted that none of the listed, permissible conditions suggest subjecting the defendant to ridicule. Rather, the court determined that the overall intent of section 5-6-3.1 was to aid the defendant in rehabilitation and to avoid future crimes. The court stated that [n]either the trial court " nor this court can determine the psychological or psychiatric effect of the publication. An adverse effect upon the defendant would certainly be inconsistent with rehabilitation and with the statutory provision allowing the court to require psychological or psychiatric treatment. See also People v. Harris , 606 N.E.2d 392 (1992) (banishing the defendant from the state of Illinois as a condition of probation was unreasonable because no valid purpose would be served); People v. Letterlough, 86 N.Y.2d 259, 655 N.E.2d 146, 631 N.Y.S.2d 105 (1995) (condition of probation requiring the defendant to affix a florescent sign reading "convicted dwi" to the license plate of any vehicle he drove was not authorized); People v. Hackler , 13 Cal. App. 4th 1049, 16 Cal. Rptr. 2d 681 (1993) (court not authorized to require probationer to wear a T-shirt bearing bold printed statement proclaiming his felony status); but see Lindsay v. State , 606 So. 2d 652 (Fla. 1992) (condition of probation requiring defendant to place a newspaper advertisement showing a mug shot, name and caption "DUI-convicted" upheld under Florida statute); Goldschmitt v. State , 490 So. 2d 123 (Fla. 1986) (bumper sticker reading "CONVICTED D.U.I.-RESTRICTED LICENSE" upheld); Ballenger v. State, 436 S.E.2d 793 (1993) (court had the authority to require the defendant to wear a pink fluorescent bracelet reading "D.U.I. CONVICT"). Holding We hold that section 5-6-3(b) of the Code did not authorize the trial court to require the sign as a condition of the defendant's probation. The sign contains a strong element of public humiliation or ridicule because it serves as a formal, public announcement of the defendant's crime. Thus, the sign is inconsistent with the conditions of probation "none of which identify public notification or humiliation as a permissible condition. Further, we determine that the sign may have unpredictable or unintended consequences which may be inconsistent with the rehabilitative purpose of probation. Conditions which label a defendant's person or property have a stigmatizing effect and are considered shaming penalties. "Although a probationer may experience a certain degree of shame from a statutorily identified condition of probation, shame is not the primary purpose of the enumerated conditions. The judicially developed condition in the case at bar does not reflect present penological policies of this state as evidenced by our Unified Code of Corrections. The authority to define and fix punishment is a matter for the legislature. The drastic departure from traditional sentencing concepts utilized in this case is not contemplated by our Code. Therefore, we determine that the erection of the sign as a condition of probation was unreasonable, and may be counterproductive to defendant's rehabilitative potential. Questions for Discussion
DID JONES POSSESS THE INTENT TO TRAIN DOGS FOR FIGHTING?
Issue Appellant, Kenneth Jones, was indicted by the Jefferson County Grand Jury during the October 1982 session for violation of § 3-1-29, Code of Alabama 1975. The indictment charges that appellant "did unlawfully own, possess, keep or train a dog or dogs with the intent that such dog or dogs be engaged in an exhibition of fighting with another dog." "On March 2, 1983, a jury found appellant guilty as charged in the indictment. Subsequently, the trial court imposed a suspended sentence of one year and a day, and placed appellant on probation for a term of two years. Appellant was further ordered to make restitution to the circuit court for and on behalf of the Birmingham Humane Society in the amount of $2,519.00. This appeal followed. "(a) It shall be a Class C felony for any person: In this case"we are confronted with a" statutory provision which appears to rely on the "intent" provision to make otherwise innocent conduct criminal. Here, the State must prove that an accused owns, possesses, keeps, or trains a dog "with the intent that such dog shall be engaged in an exhibition of fighting with another dog." Otherwise innocent conduct is protected in that minimal guidelines have been established to aid law enforcement officials and triers of fact in determining what conduct to is prohibited. This statute"satisfies the requirement of due process because it conveys a sufficient and definite meaning and warning as to the proscribed conduct when measured by common understanding and practice." Appellant contends that § 3-1-29 is unconstitutional as being applied ex post facto to him. In order to understand appellant's contention, a review of the pertinent facts is in order. Section 3-1-29 became effective on May 4, 1982. Two days later, May 6, 1982, Officer Bill Carter, an animal cruelty investigator from the Jefferson County Sheriff's Office, visited appellant under the pretext of seeking to purchase a "fighting dog." Subsequently, based on what Carter had observed on May 6, 1982, a search warrant was issued and Carter returned to the premises and confiscated appellant's five pit bulldogs, three rabbits, and a "training wheel." Appellant argued at trial and in brief on appeal that the State's proof of his "intent" to fight dogs came solely from facts and circumstances occurring prior to the effective date of § 3-1-29, i.e., prior to May 4, 1982. Appellant asserts that "nowhere in Bill Carter's testimony does he state that any representations were made by defendant that he had any design or intent to engage these dogs in dog fighting exhibitions." Carter testified that he observed five pit bulldogs, held on individual chains, in appellant's backyard. Carter testified on direct examination as follows: "Q. Okay. Did he show you any of the dogs off of the chain? Did he release any of them from the way they were moored out there in the back yard? We think the testimony of Carter was sufficient for the jury to conclude that appellant owned, possessed, kept, and/or trained these dogs after the effective date of the statute with the intent that the dogs be engaged in an exhibition of fighting with another dog. The testimony of Officer Carter clearly established that appellant caused these dogs to fight with, and injure, each other while he was present on May 6, 1982. At trial, the State presented evidence concerning the condition of the dogs when confiscated from appellant. The State called Dr. Stephanie Phillips, a veterinarian from the Birmingham Humane Society, and Mr. John Bodie, the director of the Birmingham Humane Society, who both testified as to the poor conditions of the dogs and their vicious propensities exhibited while lodged at the Birmingham Humane Society animal shelter. Appellant contends that this testimony was of no probative value and its only purpose was to inflame the passion of the jury and that it was therefore highly prejudicial to appellant. Appellant cites us to no authority in support of this contention of error. In this case the testimony of Dr. Phillips and Mr. Bodie concerning the dogs' conditions and propensity for viciousness, was relevant to prove the issue of intent to fight the dogs. Dr. Phillips testified that the dogs were dehydrated and undernourished; she specified what various wounds appeared on each dog, if any; and she stated that one dog " had "scars of varying degrees of healing on the entire body, primarily, especially the face." Mr. Bodie testified that the dogs were a maintenance problem for the shelter because they escaped from their pens to fight other dogs; they tore their pens up, requiring reinforcement of the pens; and an employee had been bitten by one dog. Appellant suggests that this evidence may indicate that the dogs "had in the past engaged in dog fighting," but that it has no probative value as to any illegal activity after May 4, 1982. We disagree and hold that this evidence was relevant to the issue of appellant's intent to fight the dogs, just as evidence of the dogs' passive behavior and unblemished condition would be relevant to disprove such an intent. Officer Carter testified that while he was posing as a prospective purchaser of pit bulldogs, appellant produced an album of photographs. The photographs included photos of fighting dogs, some dead and some alive; photos of actual dog fights; and a picture of a dog which had been killed by one of appellant's dogs. When Officer Carter returned with a search warrant, he was unable to locate this album or the pictures contained therein. Appellant stated at trial that no such album or pictures ever existed. Under the facts of this case, the testimony of Officer Carter was properly admitted as secondary evidence of the contents of the photographs. Questions for Discussion
DID THE MASSIE INFLICT GREAT BODILY HARM WITH A SPECIFIC INTENT TO CAUSE EXTREME PAIN AND SUFFERING FOR THE PURPOSE OF REVENGE, EXTORTION, PERSUASION OR FOR ANY SADISTIC PURPOSE?
Scotland, J. Issue Defendant Richard Andrew Massie was sentenced to consecutive life terms in state prison after a jury found him guilty of torture and sexual penetration by a foreign object, committed with use of a deadly weapon during a first degree burglary. The sole issue that defendant raises on appeal is whether the evidence is sufficient to support his conviction for torture. We conclude there is ample, indeed overwhelming, evidence to satisfy the elements of torture… . In defendant's view, the evidence in this case is susceptible to a reasonable inference that his brutal and repeated assaults on the victim "occurred in an explosion of violence and animal rage triggered by [the victim's] telling him that Jesus loved him." In other words, defendant argues, there is a reasonable inference that his acts were "spontaneous rather than calculated" and, thus, that he did not act with the specific intent to cause the victim to experience cruel or extreme pain and suffering (an element of torture). For this reason, he says, there is insufficient evidence to uphold his conviction for torture. … Facts On the morning of October 20, 2004, C.T. followed her usual custom. She helped her husband and older children get ready for work and school. After they departed, C.T. turned on the television for her three-year-old child and went to take a shower. She left the bedroom and bathroom doors open so her child could reach her if necessary. As C.T. showered, defendant looked in her windows and then entered the house. He stood in the bathroom doorway and watched her shower. When she finished showering, C.T. saw defendant's reflection in the mirror. She tried to close the bathroom door, but defendant kept his weight against it. As C.T. leaned against the door, she put on a two-piece swimsuit and a pair of pants. When she heard what she thought was money clinking, she told defendant to take whatever he wanted and leave. Defendant pushed open the bathroom door and entered, holding a knife in his left hand. When C.T. grabbed at the knife, defendant took hold of her wrists and pulled her toward a walk-in closet. C.T. fought with defendant, but he managed to push her into the closet and down to the floor. He pinned her to the floor with his knee and arm and put the knife on a shelf. Although C.T. continued to struggle, defendant was able to remove her pants and swimsuit bottom. C.T. told defendant: "Fine, take me, just don't kill me." Defendant then put his finger in C.T.'s vagina, lifted her swimsuit top, and began fondling and sucking her breast. At that point, defendant uttered the only words he uttered during the entire encounter, saying "Oh, yeah" in an erotic way. When C.T. heard defendant unzip his pants, she began fighting again. Defendant pinned her down and reached for his knife but was unable to find it. He began choking her. C.T. believed she was going to die so she prayed and then relaxed. Defendant then stood up and began pulling things off of the closet shelves, apparently looking for his knife. C.T. got to her knees and tried to crawl out of the closet. Defendant grabbed her and pushed her head down to her knees. He stepped on her back, and C.T. heard it pop. Defendant then broke glass from a picture frame and began cutting her with broken glass. Among other places, he cut her neck and attempted to cut her wrists. He yanked her head back and forth as though he was trying to break her neck. When C.T. told defendant "Jesus loves you, if you kill me, he's going to forgive you if you ask him," defendant became more violent. When defendant stopped cutting C.T., he walked out of the closet "like he left to gain his composure." C.T. got up, but defendant came back in and dragged her by the hair into the bathroom. He threw her to the floor and twice stomped on her face with the heel of his boot. When defendant left the bathroom, C.T. tried to escape through the bedroom door; but defendant caught her, dragged her back to the bathroom, threw her on the floor, and kicked her in the face. Then defendant left the bathroom again, and C.T. was able to push out the window screen and escape through the window. She went to the street, where she was helped by neighbors. During the ordeal, C.T. suffered an acute compression fracture of the fourth thoracic vertebrae. Fortunately, her spinal cord was not injured. However, she was required to wear an immobilizing back brace for several months and will probably have chronic pain and progressive angulation as she ages. She suffered many lacerations, some of which were superficial but some of which were significant. When examined at the hospital, she had a large facial bruise, her eyes were swollen shut, and she had trouble talking due to injuries to her mouth. Reasoning Penal Code section 206 states that "Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury…upon the person of another, is guilty of torture. The crime of torture does not require any proof that the victim suffered pain." Thus, for purposes of section 206, torture has two elements: (1) the infliction of great bodily injury; and (2) the specific intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. Torture focuses upon the mental state of the perpetrator. In this respect, revenge, extortion, and persuasion are self-explanatory. Sadistic purpose encompasses the common meaning, " 'the infliction of pain on another person for the purpose of experiencing pleasure.' " While sadistic pleasure is often sexual, the statute does not require a sexual element. Torture does not require the defendant act with premeditation and deliberation, and it does not require that he intend to inflict prolonged pain. Accordingly, the length of time over which the offense occurred is relevant but not necessarily determinative. Likewise, the severity of the wounds inflicted is relevant but not necessarily determinative. The intent with which a person acts is rarely susceptible of direct
proof and usually must be inferred from facts and circumstances
surrounding the offense. In reviewing a jury's determination, we
view the whole record in a light most favorable to the verdict,
drawing all reasonable inferences and resolving all conflicts in
support of the jury's verdict. We must uphold the verdict unless
it clearly appears that upon no hypothesis whatever is there sufficient
evidence to support it. Torture under section 206 does not require premeditation and deliberation, and it does not require an intent to inflict prolonged pain. The formation of the intent to inflict injury and the actual infliction of the injury can follow instantaneously. Moreover, the intent to inflict injury can be formed without any reflection at all. It is for this reason that, in our state's murder statutes, premeditation and deliberation are used to distinguish between murders which are the result of reflection and those which "are the result of mere unconsidered or rash impulse hastily executed." In this light, we reject defendant's contention that evidence of anger precludes a conviction for torture under section 206. As we have noted, intent is required under section 206, but it need not be formed as the result of premeditation and deliberation. An explosion of anger may be inconsistent with the reflection necessary for premeditation and deliberation, but it is not at all inconsistent with an intent to inflict cruel or extreme pain and suffering, which may be the result of "mere unconsidered or rash impulse hastily executed." The role that anger may have played in a criminal attack is a matter for the jury to determine. In many circumstances, the jury may determine that anger was the reason that the accused formed the intent to inflict injury. There is nothing logically or legally inconsistent in such a determination. On the other hand, if the jury believes the accused acted in such a mindless rage that thought processes were impossible, then it may conclude he did not harbor the intent to inflict injury. The proper inferences to be drawn are the province of the jury and not an appellate court. Here, there is ample evidence to support the jury's finding that defendant harbored the intent to inflict cruel or extreme pain and suffering. The attack on C.T. was not a brief explosion of violence; it went on for a significant period of time and involved different episodes with breaks during which defendant had ample time to reflect upon his conduct but nevertheless returned to the attack. During the attack, defendant could obviously see the cruel and extreme pain he was inflicting, but he continued the attack. Defendant utilized several different methods of inflicting pain, including choking, bending C.T.'s body to the point that she suffered a compression fracture to a vertebrae, cutting her with broken glass, dragging her by the hair, stomping her face with his boot heels, and kicking her in the face. When defendant could not find his knife, he manufactured a weapon by breaking the glass from a picture frame, which indicates a thought process rather than blind rage. Finally, there is a complete absence of evidence that defendant acted in a blind rage. Neither C.T.'s testimony, nor defendant's confession after his arrest, suggest extreme mindless anger or rage. The evidence overwhelmingly supports the jury's finding that defendant harbored the intent to inflict cruel and extreme pain…. Holding Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt…. In any event, defendant is wrong in claiming the evidence is equally susceptible of conflicting inferences. As we have noted, anger is not inconsistent with an intent to inflict cruel or extreme pain and suffering. An inference that defendant acted in anger would not dispel the intent required for torture. The record does not suggest that defendant acted in the kind of mindless rage that would preclude the thought process of forming an intent to inflict cruel or extreme pain and suffering. Issue Defendant next claims the evidence is insufficient to support a finding that he acted for the purpose of revenge, extortion, persuasion, or any sadistic purpose. He asserts "[t]here was no suggestion that [his] actions were taken for the purpose of revenge, extortion or persuasion, so it appears that conviction was based on the catch-all 'for any sadistic purpose.' " We reject the premise of this assertion. Reasoning The encounter began when defendant seized C.T. in the bathroom, pushed her onto the floor of the walk-in closet, and succeeded in removing her pants and swimsuit bottom. At that point, C.T. thought she might as well submit; so she told defendant: "Fine, take me, just don't kill me." C.T. submitted while defendant sexually assaulted her with his finger and mouth. When C.T. heard defendant unzip his pants, she found that she could not submit to rape and began fighting again. Defendant responded with a course of conduct that was certain to cause cruel and extreme pain. Holding This evidence gives rise to a reasonable, in fact compelling, inference
that he inflicted pain in revenge because C.T. reneged on her agreement
to submit to rape. It is also a reasonable inference that defendant
had not abandoned his intent to commit rape. A reasonable inference
follows that he intentionally inflicted cruel and extreme pain in
an effort to persuade C.T. to relent and submit to rape. Finally, it is readily apparent to us that a reasonable jury could have concluded that the gratuitous and repeated acts of extreme brutality against C.T. were committed for the sadistic purpose of providing defendant pleasure, whether sexual or simply a perverted enjoyment of causing the victim to suffer. Questions for Discussion
WAS COTTON GUILTY OF CRIMINAL SOLICITATION?
Donnelly, J. Facts
Defendant appeals his convictions of two counts of criminal solicitation. " In May 1987, defendant was arrested and charged with multiple counts of criminal sexual penetration of a minor and criminal sexual contact of a minor. While in the Eddy County Jail awaiting trial on those charges defendant discussed with his cellmate James Dobbs, and Danny Ryan, another inmate, his desire to persuade his stepdaughter not to testify against him. During his incarceration defendant wrote numerous letters to his wife; in several of his letters he discussed his strategy for defending against the pending criminal charges. On September 23, 1987, defendant addressed a letter to his wife. In that letter he requested that she assist him in defending against the pending criminal charges by persuading his stepdaughter not to testify at his trial. The letter also urged his wife to contact the stepdaughter and influence her to return to Indiana or that she give her money to leave the state so that she would be unavailable to testify. After writing this letter defendant gave it to Dobbs and asked him to obtain a stamp for it so that it could mailed later. Unknown to defendant, Dobbs removed the letter from the envelope, replaced it with a blank sheet of paper, and returned the sealed stamped envelope to him. Dobbs gave the original letter written by defendant to law enforcement authorities, and it is undisputed that defendant's original letter was never in fact mailed nor received by defendant's wife. On September 24 and 26, 1987, defendant composed another letter to his wife. He began the letter on September 24 and continued it on September 26, 1987. In this letter defendant wrote that he had revised his plans and that this letter superseded his previous two letters. The letter stated that he was arranging to be released on bond; that his wife should forget about his stepdaughter for a while and not come to New Mexico; that defendant would request that the court permit him to return to Indiana to obtain employment; that his wife should try to arrange for his stepdaughter to visit her in Indiana for Christmas; and that his wife should try to talk the stepdaughter out of testifying or to talk her into testifying favorably for defendant. Defendant also said in the letter that his wife should "warn" his stepdaughter that if she did testify for the state "it won't be nice and she'll make [New Mexico] news," and that, if the stepdaughter was not available to testify, the prosecutor would have to drop the charges against defendant. Defendant secured his release on bail on September 28, 1987, but approximately twenty-four hours later was rearrested on charges of criminal solicitation and conspiracy. At the time defendant was rearrested, law enforcement officers discovered and seized from defendant's car, two personal calendars, and other documents written by defendant. It is also undisputed that the second letter, was never mailed to defendant's wife. Following a jury trial, defendant was convicted on two counts of criminal solicitation. A third count of criminal solicitation was dismissed by the state prior to trial, and the court granted a directed verdict in favor of defendant on a charge of conspiracy. The charges of criminal solicitation were alleged to have occurred on or about September 23, 1987. Count I of the amended criminal information alleged that defendant committed the offense of criminal solicitation by soliciting another person "to engage in conduct constituting a felony to-wit: Bribery or Intimidation of a Witness (contrary to Sec. 30-24-3, NMSA 1978)." Count II alleged that defendant committed the offense of criminal solicitation by soliciting another "to engage in conduct constituting a felony, to-wit: Custodial Interference (contrary to Sec. 30-4-4, NMSA 1978)." The offense of criminal solicitation as provided in NMSA 1978, Section 30-28-3 (Repl. Pamp. 1984), is defined in applicable part as follows: Issue Defendant contends that the record fails to contain the requisite evidence to support the charges of criminal solicitation against him because defendant's wife, the intended solicitee, never received the two letters. In reviewing this position, the focus of our inquiry necessarily turns on whether or not the record contains proper evidence sufficient to establish each element of the alleged offenses of criminal solicitation beyond a reasonable doubt. The state's brief-in-chief states that "[n]either of these letters [Exhibits 1 & 2] actually reached Mrs. Cotton, but circumstantial evidence indicates that other similar letters did reach her during this period." The state also argues that under the express language of Section 30-28-3(A), where defendant is shown to have the specific intent to commit such offense and "otherwise attempts" its commission, the offense of criminal solicitation is complete. The state reasons that even in the absence of evidence indicating that the solicitations were actually communicated to or received by the solicitee, under our statute proof of defendant's acts of writing the letters, attempts to mail or forward them, together with proof of his specific intent to solicit the commission of a felony constitutes sufficient proof to sustain a charge of criminal solicitation. We disagree. Reasoning The offense of criminal solicitation, as defined in Section 30-28-3 by our legislature, adopts in part, language defining the crime of solicitation as set out in the Model Penal Code promulgated by the American Law Institute. "As enacted by our legislature, however, Section 30-28-3 significantly omits one section of the Model Penal Code, Section 5.02(2), which pertains to the effect of an uncommunicated criminal solicitation. Under the Model Penal Code, a person is guilty of "solicitation to commit a crime" when "with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission." It is immaterial "that the actor fails to communicate with the person he solicits to commit a crime if his conduct was designed to effect such communication." However, as enacted by our legislature, Section 30-28-3 sets out the offense of criminal solicitation in a manner which differs in several material respects from the proposed draft of the Model Penal Code. Among other things, Section 30-28-3 specifically omits that portion of the Model Penal Code subsection declaring that an uncommunicated solicitation to commit a crime may constitute the offense of criminal solicitation. The latter omission, we conclude, indicates an implicit legislative intent that the offense of solicitation requires some form of actual communication from the defendant to either an intermediary or the person intended to be solicited, indicating the subject matter of the solicitation. Holding The mere writing and sending of letters by defendant to his wife, without proof of solicitation of a specific felony, and proof of defendant's intent to induce another to commit such crime, is insufficient to establish proof of criminal solicitation. The state contends that under the language of Section 30-28-3, where proof is presented that defendant has the requisite intent and has "otherwise attempt[ed] to promote or facilitate another person to engage in conduct constituting a felony within or without the state," the offense of solicitation is complete. This contention must fail because Section 30-28-3 is silent as to any legislative intent to declare that uncommunicated solicitations shall constitute a criminal offense. Commission of criminal solicitation does not require, however, that defendant directly solicit another; the solicitation may be perpetrated through an intermediary. Thus if A solicits B in turn to solicit C to commit a felony, A would be liable even where he did not directly contact C because A's solicitation of B itself involves the commission of the offense. Where the intended solicitation is not in fact communicated to an intended intermediary or to the person sought to be solicited, the offense of solicitation is incomplete; although such evidence may support, in proper cases, a charge of attempted criminal solicitation. Defendant's convictions for solicitation are reversed and the cause is remanded with instructions to set aside the convictions for criminal solicitation. Questions for Discussion
WAS THE DEFENDANT GUILTY OF ATTEMPTED BANK ROBBERY?
Issue Leslie Otto Ordodi was charged by bill of information with two counts of attempted armed robbery in violation of La. R.S. 14:64 and La. R.S. 14:27. After trial, the jury found the defendant guilty on both counts. The trial judge sentenced the defendant to concurrent terms of three years imprisonment at hard labor. Ordodi appealed, contending that the evidence was insufficient to support his convictions. The court of appeal, with one judge concurring, reversed his conviction and sentence. Upon the state's application, we granted certiorari to review the correctness of that decision. Facts The following evidence was adduced at trial. Thelma Broussard, a former employee of Regions Bank in New Iberia, Louisiana, was at Regions Bank to do some banking on the morning of May 28, 2004. From where she sat at the customer service desk and spoke to Marla Hebert, a customer service representative, Ms. Broussard faced the street to the side of the bank. From her vantage point, Ms. Broussard observed a man, whom she later identified as the defendant, walking toward the bank pull a gun from a plastic bag and place the gun in his right pants pocket. Ordodi was wearing dark glasses. Ms. Broussard informed Ms. Hebert about what she had seen and left the bank. Because she was concerned about the bank's employees, Ms. Broussard walked from where her car was parked near the drive-through windows to the other side of the bank. Looking in the window, Ms. Broussard saw the defendant talking to Ms. Hebert with a pamphlet in his hand. She stayed in that location until she saw the defendant leave the bank and enter his truck. Before returning to her car, she re-entered the bank and asked whether the man had been trying to open an account. When the bank employees told her "yes," she left the bank to go to a nearby grocery store. Marella Guidry was employed as a teller at Regions Bank that morning. At approximately 10:30 a.m., the bank was busy with customers. Ms. Guidry saw a customer looking around and asked him if he needed help. When the man mentioned something about an account, she asked if he wanted any brochures and he indicated he did not. She asked him if he wanted to speak to someone and he indicated, "Yes." When Ms. Guidry asked his name, the man hesitated a little and then walked over to ask her to repeat her question. Ms. Guidry again asked him his name so that she could introduce him to a customer service representative. The man responded that his name was "Roy," and then walked over to the person in charge of opening accounts, Ms. Hebert. Ms. Guidry described the customer as wearing a cap and dark glasses. Ms. Guidry testified that the customer did not pull out a gun or hand her a note demanding money. The customer did not make any verbal demand for money. The only thing about which the customer inquired was opening an account. A security recording of the bank lobby that morning reflects the presence of other bank customers during the time the defendant was in the Regions bank and the defendant's appearance. After the man left the bank, Ms. Hebert called the main office for advice on what she should do, as she found the man's behavior odd. She was advised to call 911, which she did immediately thereafter. Ms. Hebert was still on the phone with the police when Ms. Broussard returned a second time to tell them the same truck which the armed man drove was now parked by Bank One. Ms. Hebert informed the [Pg 4] police of that fact. Ms. Hebert stated that personnel at the main office called other area banks to inform them about the armed man. Ms. Hughes said that the defendant sat in the chair but then saw him walk to a desk where a bank representative was sitting. Ms. Hughes subsequently saw the defendant leave the bank. She said that the defendant seemed nervous and fidgety, as though he did not have the time to wait. As soon as the defendant left the bank, Ms. Hughes saw the authorities immediately confront the defendant in front of the bank's door. Ms. Hughes testified the defendant never demanded money from her, never produced a gun while he was in the bank, and never reached over any teller's counter to grab for money. Ms. Hughes confirmed that the defendant only inquired about a checking account. Tiffany Thibodeaux handled new accounts at Bank One. She heard Ms. Hughes tell a customer, whom she later identified as the defendant, that he needed to speak with her for a new account. She called the defendant over to her desk after she finished with a customer. The defendant, who was wearing a baseball cap and dark sunglasses, told Ms. Thibodeaux that he was interested in opening a checking account but just wanted a brochure. Even so, Ms. Thibodeaux began to ask the defendant different questions regarding his banking needs. She stated the defendant was very short with his answers and did not talk much but just kept asking for a brochure. However, he answered questions regarding his home ownership and whether he had any other bank accounts. He told Ms. Thibodeaux that his name was "Roy." According to Ms. Thibodeaux, the defendant appeared very fidgety, as though he was in a hurry or did not have time to sit and talk. When Ms. Thibodeaux finished with her questions, she recommended a product and got up to obtain a brochure. She then walked back to her desk, handed the brochure to the defendant, shook his hand and walked him to the door. After the defendant left the bank, another teller told Ms. Thibodeaux to lock the door. After she did so, Ms. Thibodeaux saw all of the police officers outside and the defendant on his knees. Kevin Bourque, Greg Pete and James Altman were employed as police officers by the New Iberia City Police on May 28, 2004. They responded to a call from Regions Bank and were on their way to that location when they received the call that the person for whom they were looking had moved on to Bank One. The officers were met outside Bank One by one of the tellers, who informed them that the defendant was inside but had not made any threats. The teller told the police that Bank One had been alerted about the defendant by another bank. When the defendant walked out of Bank One, the officers confronted him with weapons drawn, requesting that the defendant put up his hands. After the defendant was handcuffed, the officers searched him. In the defendant's pockets, the police found an empty grocery bag and a revolver. A video recording of Ordodi's interrogation showed Ordodi professed he had no idea why the police arrested him. He continually stated that he had done nothing wrong. He told the detective that he went into both banks looking for a free checking account because his current account charged a monthly fee and he was shopping around for the best deal. The defendant claimed he had removed his license plate from the bumper but initially had no explanation for why he had done so. He later claimed he removed the license plate from the bumper in order to "look cool" and that the license plate had been in the back window of his truck. When the detective pointed out to him that the license plate was on the seat of his truck, he claimed the license had fallen down. He could not remember when he removed his license plate, but supposed it had been removed for a couple of months. Even when the detective, using an investigative tactic, told Ordodi someone had seen him remove the license that day, the defendant maintained he could not remember when the license plate was removed. Ordodi claimed the wrench found on the truck's front seat was for his truck battery even though the detective pointed out that the wrench was the proper size for the screws which had held the license plate onto his bumper. Ordodi claimed he carried a gun with him into the bank for security reasons and that his brother-in-law had given him the weapon. He told the detective that he had been robbed when he was an 11 year old paper boy. He admitted he did not have a concealed handgun permit but stated he usually carried a gun when he went to the bank. The defendant claimed he placed the gun in his pocket at home and, if anyone said differently, they were lying. However, after being asked to think again about when he armed himself, he stated he may have placed the gun in his pocket prior to entering Regions Bank. The defendant did not recall that he was carrying a plastic bag. When told that a plastic bag had been found in his pocket, he claimed he may have put a bag in his pocket after shopping the night before although he could not articulate a reason why he would have done so. The store which the defendant claimed to have visited the night before was not the name of the store on the bag found in his pocket. Ordodi told the investigator that he normally left his truck engine running when he did small errands. He claimed that, if he turned his truck off, the truck would stop running altogether. He stated there was a problem with the truck's engine which drained the batteries. Ordodi admitted to the investigator that he was in a financial bind but refused to discuss the matter further with him. He told the investigator that, had he intended to rob a bank, he would have done so. Ms. Ordodi testified that the defendant's truck had mechanical problems. The defendant used to leave the truck running when he ran errands. If he turned off the engine, the truck might not start and he would be left stranded. Ms. Ordodi had no personal knowledge of whether her ex-husband habitually carried a weapon with him when he did banking errands. After questioning, she recalled that the defendant told her about being robbed when he was a paper boy. Ms. Ordodi identified the weapon seized from the defendant as one which had been given to her by her brother. Ms. Ordodi acknowledged that she and the defendant separated four years prior to her testimony and that the separation was a traumatic experience for him. In addition, she related that the defendant was laid off from his job and suffered from illness. She noted that these experiences left the defendant depressed. The defense pointedly questioned the police witnesses about the misdemeanor crime of carrying a concealed weapon. In closing argument, the defense maintained that the defendant was guilty, at the most, of carrying a concealed weapon. The state, however, argued the totality of the circumstances established that the defendant committed an attempted armed robbery in that he had the specific intent to commit armed robbery and had performed various actions in furtherance of that intent. The jury found the defendant guilty of both counts of attempted armed robbery. After the trial judge denied the defendant's motion for post-judgment verdict of acquittal, the trial judge sentenced him to concurrent terms of three years at hard labor, with credit for time served. Finding that the defendant had committed crimes of violence under La. R.S. 14:2(13), the trial judge denied the defendant any diminution of sentence for good behavior. After reviewing the essentially uncontested facts of this matter, the court of appeal majority determined that the defendant's actions were not sufficient to constitute specific intent to commit armed robbery. Even assuming specific intent could be found, the court of appeal majority additionally found that the defendant's actions could not be characterized as being in furtherance of the commission of the offense, but were actions in mere preparation. "Acts in furtherance of the offense of armed robbery require more than that which is before us in this case." The court of appeal majority based its conclusion of evidentiary insufficiency on the fact that the defendant failed to initiate some manner of threatening action toward his intended victims and never demanded anything of value from anyone. The court of appeal reversed the defendant's conviction and sentence. Reasoning In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. "In order to prove that Ordodi was guilty of attempted armed robbery, the state had to prove the elements set forth in La. R.S. 14:64 and La. R.S. 14:27, which provide in pertinent part: A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
"Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." . Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. The determination whether specific intent exists is a fact question for the jury. The eyewitnesses who testified about the defendant's actions were not uniformly certain of the defendant's intent. When Ms. Broussard was asked on cross-examination whether she thought that the defendant was going to come into the bank and try to rob the bank, she replied, "Well, I don't know if I would have gone that far with it, but I knew it didn't look right." At most, Ms. Broussard believed that there was a possibility that the defendant would rob the bank. Ms. Hebert testified that she did not follow the bank's protocol of calling 911 after the defendant left Regions Bank. Instead, she called the main office to find out what she should do, "because [she] didn't want to report someone who [she] shouldn't have." According to Ms. Hebert, "[the defendant] didn't try to rob us. He never asked for money. And I didn't want to turn in somebody who may have been innocent." Even considering this evidence favorable to the defense, we find that a rational trier of fact could find proved beyond a reasonable doubt that the defendant had the requisite specific intent to commit an armed robbery for both counts of attempted armed robbery. Viewing the defendant's actions in the light most favorable to the prosecution, as we must on appellate review, we find that the defendant, who was despondent and in financial difficulties, armed himself with a loaded weapon and concealed it on his person. He traveled to each bank and entered, armed with a loaded weapon, and carrying a plastic bag. The defendant attempted to conceal his identity by giving a false name at each bank and wearing a baseball cap and sunglasses. The defendant removed the license plate from his truck in order to escape detection. The defendant left his truck engine running while he was inside each bank which would have aided his speedy escape. The defendant left each bank after entering and ascertaining each bank was crowded. These circumstances support the jury's determination that the defendant specifically intended to commit armed robbery. Having found that the defendant possessed the requisite specific intent to commit armed robbery, we must now review whether sufficient evidence was presented to prove beyond a reasonable doubt to a rational juror that the defendant did or omitted "an act for the purpose of and tending directly toward the accomplishing of his object," sometimes referred to as an "overt act." The attempt statute itself makes a distinction between actions which are "mere preparation," which are not sufficient to support a finding of an attempt, and an act for the purpose of and tending directly toward the accomplishing of his object, which is an essential element of the attempt statute. "Preparation" has been "generally defined as the devising or arranging of the means necessary for the commission of the crime." The difference between mere preparation and an overt act is not precisely defined. The Comments to the attempt statute state "[t]he distinction between preparation and an overt act sufficient for an attempt is one of nearness and degree which defies concise definition, and which can best be approximated by an examination of the jurisprudence." Thus, a defendant's actions which are mere preparation and those which are an act "for the purpose of and tending directly toward the accomplishing of [an] object" may be understood to exist on a continuum. Where a defendant's actions fall on the continuum is a fact question for the jury or trier of fact. "This court has previously admitted that "the distinction [between actions which are mere preparation and actions which constitute an overt act sufficient for attempt] is one of degree and is dependent on the particular facts of each case." Thus, the determination of a defendant's actions as being mere preparation or acts sufficient to constitute an attempt will be fact specific to each case. Viewing the evidence in the light most favorable to the prosecution, the defendant, while armed with a dangerous weapon, entered two different banks after committing several acts from which specific intent to commit an armed robbery could be found. The defendant left both banks after appearing nervous and distracted. The jurors heard evidence that both banks the defendant entered that morning were crowded. A rational juror could have found proved beyond a reasonable doubt that the defendant entered those banks with the specific intent to rob their employees of the valuables which were in their immediate control, but moved on in search of another bank whose employees he perceived were easier to rob. Nor is the defense aided by the defendant's argument that, if he had specific intent to commit armed robbery, he voluntarily withdrew by leaving the banks prior to demanding money. As this court noted in a case involving the charge of attempted aggravated rape, "[e]ven if he voluntarily withdrew, he did so at a point in time after culpability for an attempt had already attached." Holding Viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found proved beyond a reasonable doubt that the defendant had specific intent to commit armed robbery and committed an act for the purpose of and tending directly toward accomplishing his goal. The court of appeal erred in holding otherwise. We must reverse. Calogero, C.J., dissenting I dissent from the majority's conclusion that a rational finder of fact could have found beyond a reasonable doubt that the defendant had possessed the specific intent to commit armed robbery and also committed an act for the purpose of and tending directly toward accomplishing his goal...Neither the defendant's actions, outside and inside the banks, nor his personal financial and marital histories were sufficient to be construed as constituting specific intent to commit armed robbery. Moreover, none of the defendant's actions can be rationally deemed as overt acts for the purpose of and tending directly toward the completion of the offense of armed robbery; indeed, none of the defendant's acts or omissions, in my view, went beyond mere preparation. "Mere preparation to commit a crime shall not be sufficient to constitute an attempt"." Kimbal, J. dissenting I dissent from the majority's determination that a rational finder of fact could have found beyond a reasonable doubt that the defendant had specific intent to commit armed robbery and committed an act for the purpose of and tending directly toward accomplishing his goal. In my view, the evidence presented was insufficient to allow a rational juror to conclude beyond a reasonable doubt that defendant possessed both an actual specific intent to commit the offense, and performed an overt act directed toward that end. Defendant's actions, as shown by the state's evidence presented at trial, cannot properly be construed as anything other than mere preparation to commit the crime of armed robbery. Commentators have explained the attempt to commit a crime as follows: For a man to make up his mind to commit a crime, and to make preparations to commit it, is not an attempt. He must go further than mere preparation, and do some act directly tending to a carrying out of his unlawful intent. Procuring or loading a gun, or buying poison, or walking to a particular place, with intent to kill another, is not enough to make one guilty of an attempt to commit murder. The same is true of similar preparations to commit burglary, or robbery. In the instant case, defendant committed no act directly tending toward carrying out the crime of armed robbery. He made no threats toward anyone, he never demanded anything of value from anyone, he did not produce or brandish the gun inside the banks. Defendant never acted in a way suggesting he intended to rob either bank. In fact, eyewitnesses were uncertain whether defendant was going to rob the bank. The majority speculates that "defendant left each bank after entering and ascertaining each bank was crowded," but the state submitted no evidence suggesting that defendant was concerned by the number of people present in the bank or that he went to the second bank in hopes it would be less crowded. The evidence presented by the state shows only that defendant made preparations to commit armed robbery. Defendant's actions of removing his license plate, leaving his truck running in the parking lot, loading and concealing the gun, carrying a plastic bag, and wearing a baseball cap and sunglasses constitute preparation to rob a bank. None of these actions tend directly towards the commission of armed robbery. Questions for Discussion
MAY BAXTER RELY ON THE DEFENSES OF CONSENT AND FREE EXERCISE OF RELIGION TO JUSTIFY THE CIRCUMCISION OF HIS SON?
Armstrong, J. Issue Edwin Bruce Baxter appeals his conviction for second degree assault of a child, which arose from his attempt to circumcise his eight-year-old son at home. …He … contends that the trial court violated his due process right by excluding evidence of his religious motive and his son's consent to the procedure. … Facts After pondering chapter 17 of Genesis for several weeks, n1 Edwin Baxter concluded that God was directing him to circumcise his eight-year-old son, E.N.B. Baxter explained to E.N.B. that, although he normally should not let people touch his private parts, this was different. Baxter, who had no medical training, then numbed E.N.B.'s penis with ice and attempted to remove the boy's foreskin with a hunting knife. Afterward, he attempted to control the bleeding with an animal wound cauterizing powder. When this failed, he called 911, acknowledging that his son was eight years old. The passage in question recounts God's order to Abraham that all males must be circumcised or their souls will be cut off from the people and their covenant with God broken. Responding to the scene, medical and law enforcement personnel found E.N.B. lying in a dirty bathtub bleeding from the penis. The child's mother was also present. An ambulance took E.N.B. to a hospital, where a physician closed the laceration with sutures. The physician concluded that there would likely be scarring, but no permanent impairment. The State charged Baxter with second degree assault of a child. The case garnered some publicity in the county, and 28 of the 50 prospective jurors arrived at court with prior knowledge of the case from the media. The trial court excused any who expressed doubts about their ability to be impartial…. The court set forth the elements for second degree assault of a child in instruction. The first element was: "That on or about the 3rd day of September, 2004, the defendant committed the crime of assault in the second degree against E.N B, (male, 8/10/96)." According to the second element, the jury would have to find that E.N.B. was under the age of 13 at the time the assault occurred. The jury convicted Baxter of second degree assault of a child…. Reasoning Baxter argues that his right to a fair trial, as guaranteed by article 1, section 3 of the Washington Constitution and the fourteenth amendment of the United States Constitution, was violated when the trial court excluded evidence of his motive and the child's consent. The decision to proceed with the circumcision was a religious one, according to Baxter, to which his son consented. Because of this, Baxter contends that the trial court should have permitted him to argue consent. In determining whether consent is a defense in a criminal case, the courts have considered the particular act, the surrounding circumstances, and society's interest in the activity involved. In addition, courts have considered the individual minor's capacity to understand and appreciate the consequences of the conduct….In determining, then, whether a child can legally consent to an assault, we consider the particular act, the surrounding circumstances, society's interest in the activity, and the particular child's capacity to understand and appreciate the consequences of the act. Applying these factors to Baxter's attempted circumcision of his eight-year-old son, we hold that the trial court properly rejected Baxter's consent defense. First, the great weight of authority disfavors the defense of consent in assault cases. In Hiott, for example, the defendant and the victim were playing a game in which they shot BB guns at each other. The victim lost an eye, and the defendant was convicted in juvenile court of third degree assault. Noting that assaults in general are breaches of the public peace, and distinguishing this game from socially accepted athletic contests, we held that the defense of consent was not available. Similarly, "a child cannot consent to hazing, a gang member cannot consent to an initiation beating, and an individual cannot consent to being shot with a pistol." Second, although Baxter analogizes the act here to ritual circumcisions that have been performed for thousands of years and have never been held contrary to public policy, there are obvious distinctions. In the Hebrew faith, for example, ritual circumcisions are performed by mohels who are trained medical professionals or have at least been trained in the craft through apprenticeship. be qualified to perform the procedure and in some places are certified by hospitals. The law holds the mohel to "the professional standards of skill and care prevailing among those who perform circumcisions." The mohel uses special equipment, including a "finely honed blade of surgical steel" and a "non-restricting guard." The ritual circumcision is performed at infancy, where the procedure is simpler. By contrast, Baxter attempted to circumcise his eight-year-old son in a dirty bathtub, with no medical training, using a hunting knife and animal wound cauterizing powder as his tools. Even when performed by trained professionals, circumcision has been criticized by some for the pain it causes and its inherent risk of complications. Given these risks, performing a circumcision as Baxter did here violates public policy. Third, the law disfavors the notion that a child can consent to medical treatment. The age at which individuals are entitled to make their own medical decisions is 18 years. The age of majority at common law was 21 years. While the age of majority does not disqualify a minor from capacity to consent, a physician must "subjectively evaluate the capacity of a minor to give informed and meaningful consent to any type of medical care." If the capacity of an eight-year-old to consent to treatment by medical professionals is questionable, then the court should be highly doubtful of his capacity to consent to a medical procedure performed by a layman in unsanitary conditions. Finally, the record attributes to E.N.B. none of the indicia of capacity that would suggest an understanding and appreciation of the consequences of consenting to this procedure. That Baxter felt it necessary to explain to E.N.B. the difference between this procedure and an improper touching of his private areas suggests that E.N.B. lacked the capacity to consent. ….Moreover, there is a difference between consent and obedience. When a parent harms a child, and later says the child willingly agreed to the harmful activity, we view with skepticism the parent's claim that the child freely consented. Holding In conclusion, considering E.N.B.'s age and the circumstances surrounding the incident, the trial court did not err in precluding Baxter from asserting a consent defense. In a related claim, not discussed in his brief but raised by Baxter's counsel at oral argument, Baxter contends he should have been permitted to explain to the jury that his actions were motivated by religious exercise and the control of his son's upbringing. The parents' right to control their children's upbringing is cardinal. But the State may limit this right in the general interest of the youth's well-being. The State may interfere with the parents' rights to raise their children only where it "seeks to prevent harm or a risk of harm to the child." When parents defy the State's actions in protecting children, criminal liability may attach, even when the parents are acting in the interest of the child's religious upbringing. "Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves." And criminal liability may be imposed when parents voluntarily cause physical harm to their children for religious purposes. Here, the harm Baxter inflicted on his son triggered the State's right to impose criminal liability, and the religious motive did not affect the criminality of the act. Furthermore, the act was against public policy. State law prohibits cutting children as corporal punishment. . Both corporal punishment and religious practice are grounded in the parents' beliefs as to the best interests of the child, and as parental control over the child's upbringing does not justify cutting the child as punishment, it does not justify cutting the child as a religious exercise. Cutting a child's genitalia is also disfavored in public policy. Congress and several states have passed legislation outlawing female circumcision, also known as female genital mutilation. Commentators have analogized this procedure to male circumcision. While this point of view is certainly outside the mainstream of popular thought, the performance of a circumcision on an eight-year-old boy, by a layman using improper tools in an unsanitary environment, raises many of the dangers contemplated by Congress and other legislatures in their prohibitions of the female procedure. Thus, while Baxter had the right to control his son's care and upbringing, that right did not extend to the type of harm he inflicted on his son, and his religious motive was not a valid defense to the corresponding criminal liability. Accordingly, the trial court did not err in excluding evidence of that motive. Questions for Discussion
Chapter 8: Execution of Public Duties WAS THE POLICE OFFICER JUSTIFIED IN RAMMING THE FLEEING MOTORIST'S AUTOMOBILE BASED ON THE PRECEDENT OF TENNESSEE V. GARNER?
Scalia, J. We consider whether a law enforcement official can, consistent with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public-endangering flight by ramming the motorist's car from behind. Put another way: Can an officer take actions that place a fleeing motorist at risk of serious injury or death in order to stop the motorist's flight from endangering the lives of innocent bystanders? Facts In March 2001, a Georgia county deputy clocked respondent's vehicle traveling at 73 miles per hour on a road with a 55-mile-per-hour speed limit. The deputy activated his blue flashing lights indicating that respondent should pull over. Instead, respondent sped away, initiating a chase down what is in most portions a two-lane road, at speeds exceeding 85 miles per hour. The deputy radioed his dispatch to report that he was pursuing a fleeing vehicle, and broadcast its license plate number. Petitioner, Deputy Timothy Scott, heard the radio communication and joined the pursuit along with other officers. In the midst of the chase, respondent pulled into the parking lot of a shopping center and was nearly boxed in by the various police vehicles. Respondent evaded the trap by making a sharp turn, colliding with Scott's police car, exiting the parking lot, and speeding off once again down a two-lane highway. Following respondent's shopping center maneuvering, which resulted in slight damage to Scott's police car, Scott took over as the lead pursuitvehicle. Six minutes and nearly 10 miles after the chase had begun, Scott decided to attempt to terminate the episode by employing a "Precision Intervention Technique ('PIT') maneuver, which causes the fleeing vehicle to spin to a stop." Having radioed his supervisor for permission, Scott was told to "'go ahead and take him out.'" Instead, Scott applied his push bumper to the rear of respondent's vehicle. As a result, respondent lost control of his vehicle, which left the roadway, ran down an embankment, overturned, and crashed. Respondent was badly injured and was rendered a quadriplegic. Respondent filed suit against Deputy Scott and others under Rev. Stat. § 1979, 42 U.S.C. § 1983, alleging"violation of his federal constitutional rights, viz. use of excessive force resulting in an unreasonable seizure under the Fourth Amendment"[T]he United States Court of Appeals for the Eleventh Circuit affirmed the District Court's decision to allow respondent's Fourth Amendment claim against Scott to proceed to trial. Taking respondent's view of the facts as given, the Court of Appeals concluded that Scott's actions could constitute "deadly force" under Tennessee v. Garner , and that the use of such force in this context "would violate [respondent's] constitutional right to be free from excessive force during a seizure. Accordingly, a reasonable jury could find that Scott violated [respondent's] Fourth Amendment rights." The Court of Appeals further concluded that "the law as it existed [at the time of the incident], was sufficiently clear to give reasonable law enforcement officers 'fair notice' that ramming a vehicle under these circumstances was unlawful." Reasoning The first step in assessing the constitutionality of Scott's actions is to determine the relevant facts. "There is, however, an added wrinkle in this case: existence in the record of a videotape capturing the events in question. There are no allegations or indications that this videotape as doctored or altered in any way, nor any contention that what it depicts differs from what actually happened. The videotape quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals. For example, the Court of Appeals adopted respondent's assertions that, during the chase, "there was little, if any, actual threat to pedestrians or other motorists, as the roads were mostly empty and [respondent] remained in control of his vehicle." Indeed, reading the lower court's opinion, one gets the impression that respondent, rather than fleeing from police, was attempting to pass his driving test: The videotape tells quite a different story. There we see respondent's vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit.We see it run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up. Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury. That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape. Respondent urges us to analyze this case as we analyzed Garner , We must first decide, he says, whether the actions Scott took constituted "deadly force." (He defines "deadly force" as "any use of force which creates a substantial likelihood of causing death or serious bodily injury,") If so, respondent claims that Garner prescribes certain preconditions that must be met before Scott's actions can survive Fourth Amendment scrutiny: (1) The suspect must have posed an immediate threat of serious physical harm to the officer or others; (2) deadly force must have been necessary to prevent escape;and (3) where feasible, the officer must have given the suspect some warning. Since these Garner preconditions for using deadly force were not met in this case, Scott's actions were per se unreasonable. Respondent's argument falters at its first step; Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer's actions constitute "deadly force." Garner was simply an application of the Fourth Amendment's "reasonableness" test, to the use of a particular type of force in a particular situation. Garner held that it was unreasonable to kill a "young, slight, and unarmed" burglary suspect, by shooting him "in the back of the head" while he was running away on foot, and when the officer "could not reasonably have believed that [the suspect] . . . posed any threat," and "never attempted to justify his actions on any basis other than the need to prevent an escape," Whatever Garner said about the factors that might have justified shooting the suspect in that case, such "preconditions" have scant applicability to this case, which has vastly different facts. " Garner had nothing to do with one car striking another or even with car chases in general . . . . A police car's bumping a fleeing car is, in fact, not much like a policeman's shooting a gun so as to hit a person." Nor is the threat posed by the flight on foot of an unarmed suspect even remotely comparable to the extreme danger to human life posed by respondent in this case. Although respondent's attempt to craft an easy-to-apply legal test in the Fourth Amendment context is admirable, in the end we must still slosh our way through the fact bound morass of "reasonableness." Whether or not Scott's actions constituted application of "deadly force," all that matters is whether Scott's actions were reasonable. In determining the reasonableness of the manner in which a seizure is effected, "we must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Scott defends his actions by pointing to the paramount governmental interest in ensuring public safety, and respondent nowhere suggests this was not the purpose motivating Scott's behavior. Thus, in judging whether Scott's actions were reasonable, we must consider the risk of bodily harm that Scott's actions posed to respondent in light of the threat to the public that Scott was trying to eliminate. Although there is no obvious way to quantify the risks on either side, it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase. It is equally clear that Scott's actions posed a high likelihood of serious injury or death to respondent -- though not the near certainty of death posed by, say, shooting a fleeing felon in the back of the head, or pulling alongside a fleeing motorist's car and shooting the motorist. So how does a court go about weighing the perhaps lesser probability of injuring or killing numerous bystanders against the perhaps larger probability of injuring or killing a single person? We think it appropriate in this process to take into account not only the number of lives at risk, but also their relative culpability. It was respondent, after all, who intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight that ultimately produced the choice between two evils that Scott confronted. Multiple police cars, with blue lights flashing and sirens blaring, had been chasing respondent for nearly 10 miles, but he ignored their warning to stop. By contrast, those who might have been harmed had Scott not taken the action he did were entirely innocent. We have little difficulty in concluding it was reasonable for Scott to take the action that he did. But wait, says respondent: Couldn't the innocent public equally have been protected, and the tragic accident entirely avoided, if the police had simply ceased their pursuit? We think the police need not have taken that chance and hoped for the best. Whereas Scott's action -- ramming respondent off the road -- was certain to eliminate the risk that respondent posed to the public, ceasing pursuit was not. First of all, there would have been no way to convey convincingly to respondent that the chase was off, and that he was free to go. Had respondent looked in his rear-view mirror and seen the police cars deactivate their flashing lights and turn around, he would have had no idea whether they were truly letting him get away, or simply devising a new strategy for capture. Perhaps the police knew a shortcut he didn't know, and would reappear down the road to intercept him; or perhaps they were setting up a roadblock in his path. Given such uncertainty, respondent might have been just as likely to respond by continuing to drive recklessly as by slowing down and wiping his brow. Second, we are loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people's lives in danger. It is obvious the perverse incentives such a rule would create: Every fleeing motorist would know that escape is within his grasp, if only he accelerates to 90 miles per hour, crosses the double-yellow line a few times, and runs a few red lights. The Constitution assuredly does not impose this invitation to impunity-earned-by-recklessness. Instead, we lay down a more sensible rule: A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death. The car chase that respondent initiated in this case posed a substantial and immediate risk of serious physical injury to others; no reasonable jury could conclude otherwise. Scott's attempt to terminate the chase by forcing respondent off the road was reasonable, and Scott is entitled to summary judgment. The Court of Appeals' decision to the contrary is reversed. Stevens, J. dissenting Rather than supporting the conclusion that what we see on the video "resembles a Hollywood-style car chase of the most frightening sort," the tape actually confirms, rather than contradicts, the lower courts' appraisal of the factual questions at issue. More important, it surely does not provide a principled basis for depriving the respondent of his right to have a jury evaluate the question whether the police officers' decision to use deadly force to bring the chase to an end was reasonable. Omitted from the Court's description of the initial speeding violation is the fact that respondent was on a four-lane portion of Highway 34 when the officer clocked his speed at 73 miles per hour and initiated the chase.More significant -- and contrary to the Court's assumption that respondent's vehicle "forced cars traveling in both directions to their respective shoulders to avoid being hit" -- a fact unmentioned in the text of the opinion explains why those cars pulled over prior to being passed by respondent. The sirens and flashing lights on the police cars following respondent gave the same warning that a speeding ambulance or fire engine would have provided. The 13 cars that respondent passed on his side of the road before entering the shopping center, and both of the cars that he passed on the right after leaving the center, no doubt had already pulled to the side of the road or were driving along the shoulder because they heard the police sirens or saw the flashing lights before respondent or the police cruisers approached. A jury could certainly conclude that those motorists were exposed to no greater risk than persons who take the same action in response to a speeding ambulance, and that their reactions were fully consistent with the evidence that respondent, though speeding, retained full control of his vehicle. The police sirens also minimized any risk that may have arisen from running "multiple red lights," In fact, respondent and his pursuers went through only two intersections with stop lights and in both cases all other vehicles in sight were stationary, presumably because they had been warned of the approaching speeders. Incidentally, the videos do show that the lights were red when the police cars passed through them but, because the cameras were farther away when respondent did so and it is difficult to discern the color of the signal at that point, it is not entirely clear that he ran either or both of the red lights. In any event, the risk of harm to the stationary vehicles was minimized by the sirens, and there is no reason to believe that respondent would have disobeyed the signals if he were not being pursued. My colleagues on the jury saw respondent "swerve around more than a dozen other cars," and "force cars traveling in both directions to their respective shoulders," but they apparently discounted the possibility that those cars were already out of the pursuit's path as a result of hearing the sirens. Even if that were not so, passing a slower vehicle on a two-lane road always involves some degree of swerving and is not especially dangerous if there are no cars coming from the opposite direction. At no point during the chase did respondent pull into the opposite lane other than to pass a car in front of him; he did the latter no more than five times and, on most of those occasions, used his turn signal. On none of these occasions was there a car traveling in the opposite direction. In fact, at one point, when respondent found himself behind a car in his own lane and there were cars traveling in the other direction, he slowed and waited for the cars traveling in the other direction to pass before overtaking the car in front of him while using his turn signal to do so. This is hardly the stuff of Hollywood. To the contrary, the video does not reveal any incidents that could even be remotely characterized as "close calls." In sum, the factual statements by the Court of Appeals quoted by the Court, were entirely accurate. That court did not describe respondent as a "cautious" driver as my colleagues imply, but it did correctly conclude that there is no evidence that he ever lost control of his vehicle. That court also correctly pointed out that the incident in the shopping center parking lot did not create any risk to pedestrians or other vehicles because the chase occurred just before 11 p.m. on a weekday night and the center was closed. It is apparent from the record (including the videotape) that local police had blocked off intersections to keep respondent from entering residential neighborhoods and possibly endangering other motorists. I would add that the videos also show that no pedestrians, parked cars, sidewalks, or residences were visible at any time during the chase. The only "innocent bystanders" who were placed "at great risk of serious injury," were the drivers who either pulled off the road in response to the sirens or passed respondent in the opposite direction when he was driving on his side of the road. I recognize, of course, that even though respondent's original speeding violation on a four-lane highway was rather ordinary, his refusal to stop and subsequent flight was a serious offense that merited severe punishment. It was not, however, a capital offense, or even an offense that justified the use of deadly force rather than an abandonment of the chase. The Court's concern about the "imminent threat to the lives of any pedestrians who might have been present," while surely valid in an appropriate case, should be discounted in a case involving a nighttime chase in an area where no pedestrians were present. Although Garner may not, as the Court suggests, "establish a magical on/off switch that triggers rigid preconditions" for the use of deadly force, it did set a threshold under which the use of deadly force would be considered constitutionally unreasonable: "Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given." Whether a person's actions have risen to a level warranting deadly force is a question of fact best reserved for a jury.Here, the Court has usurped the jury's fact finding function and, in doing so, implicitly labeled the four other judges to review the case unreasonable. It chastises the Court of Appeals for failing to "view the facts in the light depicted by the videotape" and implies that no reasonable person could view the videotape and come to the conclusion that deadly force was unjustified. However, the three judges on the Court of Appeals panel apparently did view the videotapes entered into evidenceand described a very different version of events: "At the time of the ramming, apart from speeding and running two red lights, Harris was driving in a non-aggressive fashion (i.e., without trying to ram or run into the officers). Moreover, . . . Scott's path on the open highway was largely clear. The videos introduced into evidence show little to no vehicular (or pedestrian) traffic, allegedly because of the late hour and the police blockade of the nearby intersections. Finally, Scott issued absolutely no warning (e.g., over the loudspeaker or otherwise) prior to using deadly force." If two groups of judges can disagree so vehemently about the nature of the pursuit and the circumstances surrounding that pursuit, it seems eminently likely that a reasonable juror could disagree with this Court's characterization of events. Moreover, under the standard set forth in Garner , it is certainly possible that "a jury could conclude that Scott unreasonably used deadly force to seize Harris by ramming him off the road under the instant circumstances." The Court today sets forth a rule that presumes its own version of the facts: "A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death." Not only does that rule fly in the face of the flexible and case-by-case "reasonableness" approach applied in Garner, but it is also arguably inapplicable to the case at hand, given that it is not clear that this chase threatened the life of any "innocent bystander."In my view, the risks inherent in justifying unwarranted police conduct on the basis of unfounded assumptions are unacceptable, particularly when less drastic measures -- in this case, the use of stop stick or a simple warning issued from a loudspeaker -- could have avoided such a tragic result. In my judgment, jurors in Georgia should be allowed to evaluate the reasonableness of the decision to ram respondent's speeding vehicle in a manner that created an obvious risk of death and has in fact made him a quadriplegic at the age of 19. Questions for Discussion
WERE THE TWO FIFTEEN YEAR OLD JUVENILES PROPERLY TRANSFERRED TO THE ADULT SYSTEM FOR TRIAL ?
Ruffin, C. J. Issue Fifteen-year-olds S. K. K. and H. E. A. were each charged with first degree arson, four counts of attempted murder, and criminal trespass. Following a hearing, the juvenile court initially denied the State's request to transfer the cases to superior court pursuant to OCGA § 15-11-30.2. Thereafter, the juvenile court granted the State's motion to reconsider and transferred the case to superior court. S. K. K. and H. E. A. appeal, alleging that the evidence failed to support the transfer. S. K. K. also argues that the juvenile court erred by failing to offer reasons in support of the transfer in its order. H. E. A. further alleges that the lower court's ruling should be reversed because criminal prosecution in the superior court is too severe…. Facts Pursuant to OCGA § 15-11-30.2, a juvenile court may transfer a case to an appropriate court if, in its discretion, it determines that there are "reasonable grounds to believe that ... [t]he child committed the delinquent act alleged; ... [t]he child is not committable to an institution for the mentally retarded or mentally ill; ... [t]he interests of the child and the community require that the child be placed under legal restraint and the transfer be made; and ... [t]he child ... [w]as at least 15 years of age at the time of the alleged delinquent conduct. S. K. K. and H. E. A. allege that the evidence does not support
the transfer of the case to the superior court because reasonable
grounds did not exist to believe that they committed the delinquent
acts. The function of the appellate court is limited to ascertaining
whether there was some evidence to support the juvenile court's
determination. Determinations of a juvenile court made on an exercise
of discretion, if based upon evidence, will not be controlled by
this court." That same night, April's mother was awakened by the smell of smoke and managed to get herself and three children out of their burning trailer. The police responded to the emergency call at approximately 1:30 a.m. and found the trailer engulfed in flames. April's stepfather and another police officer ran into the burning trailer, not realizing that the children had already escaped. An officer testified that he observed S. K. K. and H. E. A. standing in the road near the trailer soon after he responded to the emergency call. According to the officer, they were the only civilians present in the area other than the family that lived in the trailer. Finally, H. E. A.'s sister testified that she smelled "gas" when H. E. A., S. K. K., and another male returned to her trailer between 12:30 a.m. and 1:00 a.m. Thus, we find that there was evidence to support the juvenile court's determination that there were reasonable grounds to believe that S. K. K. and H. E. A. committed the alleged delinquent acts. S. K. K. and H. E. A. also argue that the juvenile court erred in determining that the interests of the children and community merited a transfer to superior court. We disagree. Reasoning Although there was some evidence that at least one of the children would benefit from treatment, the State did not seek the transfers based on claims that they were not amenable to treatment in the juvenile system, and the juvenile court did not rely on that ground in its transfer orders. Instead, the State proceeded based upon the seriousness of the crimes and under the theory that the interests of the community far outweighed the interests of the children. During the transfer hearing, the juvenile court commented on the severity of the crimes alleged, describing them as "reprehensible" and "heinous." The court went on to say that "[t]he only thing this [c]ourt struggles with at this point is that you are juveniles, and that an adult court system is extremely severe, and that there's no rehabilitation at that point." In its initial order, the juvenile court denied the transfer, finding that it was not in the interest of the children or the community to transfer the cases because there was evidence that S. K. K. could benefit from treatment and that juvenile programs are more successful at rehabilitating children and because of the "severity of criminal prosecution in the adult [s]uperior [c]ourt." Thereafter, the court granted the State's motion to reconsider and transferred the cases to superior court, finding that the interests of the community and the children required the transfer. Specifically, the court concluded that because of the children's ages, there would be insufficient time for the juvenile system to provide adequate treatment in a secure facility, and that the children would be provided sufficient treatment if tried and convicted in superior court under the Georgia Youthful Offender Act of 1972. Holding We conclude that there was evidence to support the juvenile court's determination that the children's interest in treatment in the juvenile system was outweighed by the community's interest in treating them as adults. Furthermore, notwithstanding S. K. K.'s assertions to the contrary, the juvenile court did set forth the basis for its decision to transfer. Accordingly, the juvenile court did not abuse its discretion in ordering the transfers. H. E. A. broadly asserts that "[t]he severity of criminal prosecution in the adult [s]uperior [c]ourt, if convicted, is far too severe for a juvenile, even under the Youthful Offender Act." Although his argument in this regard is not entirely clear, he seems to suggest that the mere fact that he would receive less favorable treatment in superior court warrants reversal. We disagree. Treatment as a juvenile is not an inherent right but one granted by the state legislature, therefore, the legislature may restrict or qualify that right as it sees fit, as long as no arbitrary or discriminatory classification is involved." he legislature has specifically approved the transfer of juvenile delinquency petitions to an appropriate adult court provided that the juvenile court makes certain findings regarding the child, the acts alleged, and the interests of the community and the child. he juvenile court in this case made the requisite findings and …it did not abuse its discretion in transferring H. E. A.'s case to the superior court. Questions for Discussion
WAS THE DEFENDANT GUILITY OF FELONY MURDER?
Franson, C.J. Issue This appeal challenges the California felony-murder rule as it applies to an unintentionally caused death during a high speed automobile chase following the commission of a nonviolent, daylight burglary of an unattended motor vehicle. Solely by force of precedent we hold that the felony-murder rule applies and respondents can be prosecuted for first degree murder. Facts The pertinent facts are as follows: On Sunday, February 20, 1977, at about 8:30 a.m., uniformed Cadet Police Officer Guy Ballesteroz was on routine patrol in his vehicle, proceeding southbound on Blackstone Avenue in the City of Fresno. As the officer approached the Fresno Dodge car lot, he saw an older model Plymouth parked in front of the lot. He also saw respondents rolling two tires apiece toward the Plymouth. His suspicions aroused, the officer radioed the dispatcher and requested that a police unit be sent. Officer Ballesteroz kept the respondents under observation as he proceeded past the car lot and stopped at the next intersection. As he reached that point he saw the respondents stop rolling the tires and walk to the Plymouth on the street. Ballesteroz made a U-turn and headed northbound on Blackstone. The respondents got into the Plymouth and drove away "really fast." Thereafter, a high speed chase ensued which eventually resulted in respondents' car running a red light at the intersection of Blackstone and Barstow Avenues and striking another automobile which had entered the intersection. The driver of the other automobile was killed. Respondents were arrested at the scene. The chase from the car lot covered some 7 miles and lasted approximately 10 to 12 minutes. During the chase the respondents' car narrowly missed colliding with several other cars including two police vehicles that were positioned to block their escape. Later investigation revealed that four locked Dodge vans at the car lot had been forcibly entered and the spare tires removed. Fingerprints from both of the respondents were found on the jack stands in some of the vans. Reasoning Penal Code section 189 provides, in pertinent part: "All murder . . . which is committed in the perpetration of , or attempt to perpetrate, arson, rape, robbery, burglar y , mayhem, or [lewd acts with a minor], is murder of the first degree; . . ." This statute imposes strict liability for deaths committed in the course of one of the enumerated felonies whether the killing was caused intentionally, negligently, or merely accidentally. Burglary falls expressly within the purview of California's first degree felony-murder rule. Any burglary within Penal Code section 459 is sufficient to invoke the rule. Whether or not the particular burglary was dangerous to human life is of no legal import. The meaning of murder committed "in the perpetration of" a felony within Penal Code section 189 also is clear. The Supreme Court has stated that this language does not require a strict causal relation between the felony and the killing; it is sufficient if both are "parts of one continuous transaction." Flight following a felony is considered part of the same transaction as long as the felon has not rached a "place of temporary safety. Whether the defendant has reached such a place of safety is a question of fact for the jury. We deem it appropriate, however, to make a few observations concerning the irrationality of applying the felony-murder rule in the present case. In People v. Washington, 62 Cal.2d 777, 783, a case limiting the rule's application to killings committed by the defendant or his accomplice, our Supreme Court stated: "The felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. Although it is the law in this state. it should not be extended beyond any rational function that it is designed to serve ." The court elaborated: "We have thus recognized that the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application. Indeed, the rule itself has been abandoned by the courts of England, where it had its inception. It has been subjected to severe and sweeping criticism.. Holding If we were writing on a clean slate, we would hold that respondents should not be prosecuted for felony murder since viewed in the abstract, an automobile burglary is not dangerous to human life. The present case demonstrates why this is so. Respondents committed the burglary on vans parked in a dealer's lot on a Sunday morning. There were no people inside the vans or on the lot at the time. The respondents were not armed and presumably had no expectation of using violence during the burglary. Furthermore, treating the flight as part of the burglary to bootstrap the entire transaction into one inherently dangerous to human life simply begs the issue; flight from the scene of any crime is inherently dangerous. So, if a merchant in pursuit of a fleeing shoplifter is killed accidentally (by falling and striking his head on the curb or being hit by a passing automobile), the thief would be guilty of first degree felony murder assuming the requisite intent to steal at the time of the entry into the store. Such a harsh result destroys the symmetry of the law by equating an accidental killing resulting from a petty theft with a premeditated murder. In no sense can it be said that such a result furthers the ostensible purpose of the felony-murder rule which is to deter those engaged in felonies from killing negligently or accidentally. On the other hand, if the flight is divorced from the burglary the latter can be objectively evaluated as to its dangerous propensities, and the instant burglary would not be deemed dangerous to human life and would be outside the purview of the felony-murder rule. [W]hen the felony-murder statute was enacted in 1872, Penal Code section 459 required that the burglary occur in the nighttime and involve the entry of a "house, room, apartment, or tenement, or any tent, vessel, water craft, or railroad car . . . ." As defined, burglary was per se a crime dangerous to human life based on the probability of human occupancy of the described enclosures. Such danger to life was a common element in all of the felonies specified in section 189 (i.e., arson, rape, robbery, mayhem, or lewd acts upon a child). [I]it rationally can be argued that the Legislature did not intend to include an automobile burglary within the felony-murder rule. This conclusion is strongly supported by the legislative classification of burglary into degrees. Penal Code section 460 provides that every burglary of an inhabited dwelling house, trailer coach, or building committed in the nighttime, is burglary of the first degree. All other kinds of burglary are of the second degree. It would be reasonable to include only first degree burglary in the Penal Code section 189 definition of felony murder. Holding Nonetheless, as previously explained the force of precedent requires the application of the first degree felony-murder rule to the instant case. Questions for Discussion
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