observing that "[the court] has previously held that, where an inherently dangerous instrumentality was employed, a homicide occurring during the commission of a felony is a natural and probable consequence presumed to have been intended. Such evidence is sufficient to allow a jury to find a purposeful intent to kill"Summary of this case from State v. Brown
Decided October 18, 1978.
Criminal law — Aggravated murder — "Specific intention" to kill, construed — Sufficiency of evidence — Proximate cause of death determined, how.
APPEAL from the Court of Appeals for Hamilton County.
At approximately 1:30 p.m. on November 1, 1975, Otto H. Baum, as owner-manager of an apartment building located at 215 East University Avenue, Cincinnati, began to collect the November rent from his tenants. It was his custom to carry large sums of money on his person while he collected rent in order to cash tenants' government checks.
As Baum approached the third floor apartment rented by appellant, Willie Johnson, appellant and his brother, Bobby Johnson, emerged from a stairway which led from the third floor to the attic, wearing ski masks. Appellant, holding a .20 gauge, H. R single-shot sawed-off shotgun and a pair of handcuffs, indicated his intention to rob Baum and ordered him to hand over his wallet. Baum refused to do so, advanced toward appellant and reached for the barrel of the shotgun. A struggle for possession of the gun ensued during which the shotgun discharged, damaging a wall. As appellant regained control of the shotgun, he struck Baum on the left side of his head with the weapon's barrel. Baum then tore appellant's shirt and appellant again struck him on the left side of the head with the barrel of the shotgun.
As Baum slumped to the floor, appellant and his brother placed one end of the handcuffs to Baum's right wrist and the other end of the handcuffs to the stairway railing. Appellant then removed Otto Baum's wallet, containing approximately $500, from his pocket.
Appellant and his brother placed their ski masks and the shotgun, which appellant had broken-down, into a paper bag and ran from the apartment building. The two were seen running from the building by residents Carrie Steward, Dorothy Echoles and by Shirley Echoles, who had called the police after hearing the shotgun blast.
At approximately 1:47 p.m., Patrolmen Gary R. Viering and Ralph Ruwan of the Cincinnati Police Department arrived at the 215 East University address, where they found Otto Baum and freed him from the staircase banister. Attempts to communicate with Mr. Baum were unsuccessful since he was in a semi-conscious to unconscious state. Baum was bleeding from the head and vomiting.
An ambulance arrived at approximately 1:55 p.m. The paramedics proceeded to administer first aid to Baum, and transported him to the emergency room of Cincinnati General Hospital.
An examination by Drs. Ronald Hill and Charles Johnson included an X-ray which revealed that Baum had suffered a skull fracture. The doctors dressed and sutured the left side of the patient's head and placed him in a recovery room.
Later that evening, Dr. Michael Walus, chief neurosurgery resident at the hospital, determined that the patient's physical condition was deteriorating. He was becoming comatose and the right side of his body was nearly paralyzed.
An angiogram was taken which revealed the presence of a blood-clot inside the skull and immediate surgery for the removal of the clot was ordered.
During the operation, in which the blood clot was successfully removed, the patient suffered a severe loss of blood and a brief cardiac arrest.
On November 2, 1975, electronic monitoring devices used to measure brain activity, indicated brain death, although respiration was continued through artificial means. On the following four days, further scanning of Mr. Baum's brain showed no activity.
On November 6, 1975, Dr. Walus ordered that the oxygen supply to the respirator be discontinued and, shortly thereafter, Otto Baum was pronounced dead.
On December 16, 1975, appellant and his brother were indicted by the Hamilton County grand jury on one count of aggravated murder, in violation of R.C. 2903.01(B) with specification as to that count under R.C. 2929.04(A)(7), and one count of aggravated robbery, in violation of R.C. 2911.01(A)(1). The defendants were separately tried.
At his own trial, appellant admitted his participation in the robbery and to his beating of Baum, but denied that he had intended to kill the victim.
Dr. Walus testified at trial that Otto Baum "died from massive head trauma." Dr. Robert Ritterhoff, deputy coroner for Hamilton County who examined the body of Mr. Baum, testified that the cause of death was a "massive comminuted broken-up [skull] fracture" resulting from the application of an external force. Appellant offered no evidence to dispute the testimony of the physicians, except for the fact that Dr. Walus had discontinued the oxygen supply to the artificial respirator on November 6.
On February 3, 1976, the jury found appellant guilty as charged on both counts of the indictment and as to the specification to the first count.
At the mitigation hearing held on June 14, 1976, the requisite psychiatric reports were submitted but no further evidence was presented.
Determining that none of the mitigating circumstances enumerated in R.C. 2929.04(B) were present in the case, the trial court sentenced appellant to death on the aggravated murder count, and to 7 to 25 years imprisonment on the aggravated robbery charge.
The Court of Appeals affirmed appellant's convictions and sentences on November 9, 1977.
The cause came before this court upon appeal as a matter of right.
Mr. Simon L. Leis, Jr., prosecuting attorney, Mr. William E. Breyer, Mr. F. David Albanese and Mr. Joseph G. Carr, for appellee.
Ms. Cheryl D. Grant and Mr. Robert R. Hastings, Jr., for appellant.
Appellant has presented four propositions of law.
Appellant proposes that the trial court erred in overruling appellant's motion for acquittal and, in the alternative, seeks reduction of the aggravated murder charge to involuntary manslaughter upon the ground that the state failed to prove beyond a reasonable doubt that appellant "purposely cause[d] the death," under R.C. 2903.01(B), of Otto Baum.
R.C. 2901.22(A) defines "purposely" as follows: "A person acts purposely when it is his specific intention to cause a certain result * * *." (Emphasis added.)
Although appellant admitted at trial to his participation in the robbery and his assault upon Otto Baum, he denied that he specifically intended to kill Baum.
The determination of whether appellant had the required culpable mental state must be made with a view to the totality of circumstances surrounding the beating of Otto Baum. As this court stated in paragraph four of the syllabus in State v. Huffman (1936), 131 Ohio St. 27:
"The intent of an accused person dwells in his mind. Not being ascertainable by the exercise of any or all of the senses, it can never be proved by the direct testimony of a third person and it need not be. It must be gathered from the surrounding facts and circumstances under proper instructions from the court."
Appellant contends that the following facts militate against a finding that he intended to kill Otto Baum: appellant, as well as his brother, wore a ski mask during the robbery, which he argues would have been superfluous if he had intended to kill Baum; appellant, although armed with a sawed-off shotgun, did not shoot Baum; appellant handcuffed Otto Baum to the railing, which he claims would have been unnecessary if appellant intended to kill Baum.
We are not persuaded by such an interpretation of the facts. What the evidence adduced at trial indicates is that appellant, a young man, intending to rob his elderly landlord, criminally assaulted the man by striking him twice on the head with the barrel of a shotgun. The landlord was then handcuffed to a banister, where he was later discovered by police, bleeding and vomiting from what two physicians described, at trial, as an extensive skull fracture.
It is a fundamental principle that a person is presumed to intend the natural, reasonable and probable consequences of his voluntary acts. State v. Nabozny (1978), 54 Ohio St.2d 195; State v. Lockett (1976), 49 Ohio St.2d 48; State v. Perryman (1976), 49 Ohio St.2d 14; and State v. Eaton (1969), 19 Ohio St.2d 145.
This court recently held, in State v. Lockett, supra, that where an inherently dangerous instrumentality is employed in the commission of an aggravated robbery, a homicide which occurs during the robbery is a natural and probable consequence thereof. It is clear, therefore, that appellant, under this proposition of law, can not escape liability for the fatal consequences of his criminal assault upon the deceased.
The mere fact that the shotgun was not fired at Baum, but used as a club by appellant, does not negate the presumption of an intent to kill since such a weapon is capable of causing death by either method.
In view of the foregoing, it was not error for the trial court to overrule appellant's motion for acquittal and to deny the requested reduction of the murder charge.
Appellant makes two arguments which, in essence, present the single issue of whether the beating suffered by Baum at the hands of appellant was the proximate cause of his death. Appellant argues that the proximate cause of Otto Baum's death was the termination of the supplemental oxygen supply to the artificial respirator ordered by Dr. Walus.
It is the general rule that one who inflicts injury upon another is criminally responsible for that person's death, regardless of whether different or more skillful medical treatment may have saved his life. State v. Lytle (1975), 194 Neb. 353, 231 N.W.2d 681; People v. Paulson (1967), 80 Ill. App.2d 44, 225 N.E.2d 424. This rule has been qualified where there has been a gross or willful maltreatment of the patient by the medical personnel, Parsons v. State (1852), 21 Ala. 300; Crews v. State (1932), 44 Ga. App. 546, 162 S.E. 146, which is shown to have been an independent intervening cause of the patient's death. State v. Cox (1960), 82 Idaho 150, 351 P.2d 472.
There was testimony at trial by both the coroner and attending physician that the proximate cause of death was severe head trauma as a result of an extensive skull fracture. This evidence was uncontroverted, but for the bare assertion that Dr. Walus decided to no longer continue the supplemental oxygen supply to the patient after four days of testing showed brain death.
Appellant contends further that the trauma suffered by the patient while in surgery caused a cardiac arrest which ultimately caused the death of the deceased. The evidence does not support such a contention. Defense presented no evidence that the actions by Dr. Walus or any other member of the staff of Cincinnati General Hospital constituted medical malpractice. The essence of Dr. Ritterhoff's testimony was that he could separate the trauma Baum may have suffered as a result of the surgery from that caused by the beating inflicted by appellant, which he concluded ws the proximate cause of death. Appellant did not present any evidence to the contrary.
The question of cause of death was properly submitted to the jury by the trial court and there was sufficient evidence from which the jury could conclude beyond a reasonable doubt that appellant proximately caused the death of Otto Baum. Appellant's propositions of law are without merit and overruled.
Appellant's fourth proposition attacks the constitutionality of the statutory procedure in Ohio for the imposition of the death penalty. Appellant argues that the unbridled discretion granted to the Juvenile Court to determine which juveniles will be bound over to the General Division of the Court of Common Pleas for criminal prosecution as an adult is constitutionally impermissible. This argument was specifically rejected by this court in State v. Harris (1976), 48 Ohio St.2d 351.
Appellant contends that the Ohio death penalty statute is unconstitutional for failure to provide for review of all capital cases by this court in that all those cases in which the Court of Appeals reverses the death penalty are not reviewed by this court. This argument is without merit. This court reviews all cases in which the death penalty is to be imposed. Those cases in which the Court of Appeals has reversed the death sentence cease to be capital cases, which this court is mandated to review.
Appellant's final proposition is that the mitigating circumstances found in R.C. 2929.04(B) are unconstitutionally limited in scope. In view of Lockett v. Ohio (1978),
U.S. ___, 57 L.Ed. 2d 973, which held the statute to be violative of the Eighth and Fourteenth Amendments, the proposition is sustained.
This court having previously modified the judgment of the Court of Appeals by reducing appellant's sentence of death to life imprisonment, the judgment of the Court of Appeals as to appellant's conviction is hereby affirmed.
HERBERT, CELEBREZZE, P. BROWN, SWEENEY and LOCHER, JJ., concur.
LEACH, C.J., not participating.
Since, under the Supreme Court's decision in Lockett v. Ohio (1978), ___ U.S. ___, 57 L. Ed. 2d 973, the defendant will not receive the death penalty as a result of the majority's presumption concerning the natural and probable consequences of using an inherently dangerous instrumentality in a robbery, I concur.