STATE v. NICHOLAS No. 11268-6-I.

34 Wn. App. 775 (1983)

663 P.2d 1356
FACTS:
On January 5, 1981, the victim, Ms. S., was awakened by an intruder in her house
and forcibly had intercourse with her. On June 25, 1981, Ms. S. was again raped
in her bed by an intruder.
K.C., a police dog, picked up a scent on the bushes near the victim's house, the
dog and Officer Kummerfeldt, his handler, ran down the street into a school yard,
where they found Nicholas. K.C. indicated that it was Nicholas' scent he was
following. Kummerfeldt described Nicholas as extremely sweaty and red-faced,
and as apparently having an erection.
Laboratory tests were performed on fingernail scrapings and a vaginal smear
taken from Ms. S., for comparison with Nicholas' blood type. The fingernail
scrapings proved to contain human blood, but in insufficient quantities to type.
The vaginal smear contained sperm. An acid phosphatase test showed positive
for a type O secretor which meant, since Ms. S. is a type O secretor, that the
rapist was either a type O secretor or a nonsecretor, categories covering about
60 percent of the population. Blood tests showed that Nicholas was a type A
nonsecretor, so he was not ruled out by the acid phosphatase test.
Issue: WON medical test results are admissible as evidence.
HELD:
Nicholas next contends that the results of the secretor type tests had no
relevance to the issue of identity, and established only that the sperm could
have come from 60 percent of the population. He argues that the test results
merely tended to include him in a class of people who might have committed the
rape, "thereby increas[ing] the probability of defendant's guilt without
connecting him, in any way, to the charged offense." People v. Sturdivant, 91
Mich.App. 128, 131, 283 N.W.2d 669, 670 (1979). He urges this court to follow
the Sturdivant case and hold that the testimony was prejudicial and irrelevant
and should have been excluded.
People v. Sturdivant, supra, holds irrelevant secretor test results which merely
place the defendant in a category of people who might have committed the
crime. Sturdivant has subsequently been disapproved by other panels of the
Michigan court, see, e.g., People v. Camon, 110 Mich.App. 474, 313 N.W.2d 322
(1981); People v. Horton, 99 Mich.App. 40, 297 N.W.2d 857 (1980), and even the
author of the Sturdivant opinion has subsequently qualified his holding in that
case by saying that the test is one of balancing probative value with prejudicial
effect, not a rule of irrelevance per se. See People v. White, 102 Mich.App. 156,
301 N.W.2d 837, 839 (1981) (Kelly, J., concurring); see also Annot., 46 A.L.R.2d
1000.

[2] In State v. Luoma, 88 Wn.2d 28, 558 P.2d 756 (1977), the court held that the
evidence the victim's blood type matched bloodstains found in the defendant's
car had probative value, and was admissible; that an objection goes to the
weight and not the admissibility of the evidence. Similarly, evidence which tends
to limit the field of possible perpetrators is relevant on the issue of identity. The
results of the acid phosphatase and secretor type tests tended to some degree to
make it more probable that Nicholas was guilty of the rape and burglary. ER 401.
Nicholas nowhere alleges prejudice which would merit exclusion of this evidence
pursuant to ER 403. The probative value of the evidence or the lack thereof could
be argued to the jury. The evidence was properly admitted.
R. v. Stillman, [1997] 1 S.C.R. 607
Supreme Court of Canada
Stillman was arrested for the murder of a teenage girl. The victim was found with
semen in her vagina and a human bite mark on her abdomen. At the police
station, Stillman's lawyers informed the police that he did not consent to provide
any bodily samples, including hair and teeth imprints, or to give any statements.
After the lawyers left, police took, under threat of force, scalp hair from accused
and he was made to pull some of his own pubic hair. Plasticine teeth impressions
were also taken. An officer interviewed the accused for an hour in an attempt to
obtain a statement. Throughout the interview, accused sobbed, and after
speaking with his lawyer, he was escorted to the washroom where he used a
tissue to blow his nose. The tissue containing the mucous was seized from the
wastebasket by the officer and used for DNA testing. Stillman was released but
subsequently re-arrested, at which time, a dentist took new teeth impressions
without the accused's consent and more hair, saliva samples and buccal swabs
were also taken from accused. Following a voir dire, the trial judge found that the
hair samples, buccal swabs and teeth impressions had been obtained in violation
of s. 8 of the Charter but nevertheless should be admitted. Stillman was
convicted of first degree murder and the conviction was upheld on appeal.
Issue
1. Can the police secure biological samples from an accused incidental to
arrest?
Decision
Appeal allowed, new trial ordered with the hair samples, teeth impressions, and
buccal swabs excluded.
The Crown argued that the hair and teeth were seized under the common law
power of search incident to lawful arrest. Cory, writing for the majority, held
there were three conditions for a search incident to arrest to be valid:
1. the arrest must be lawful;
2. the search must have been conducted as an "incident" to the lawful arrest;
and

3. the manner in which the search is carried out must be reasonable

The original rationale for this power was based on the need for the arresting
officers to prevent the escape of the person arrested and to protect themselves
by removing from the person arrested any weapon or tool that might facilitate
escape, the need to prevent evidence under the control of the detainee from
being destroyed, and the need to protect the safety of the arresting officers and
the public.
The common law power is eminently sensible and is essential for the protection
of police officers carrying out their all too often dangerous duties, however,
reasonable limits of that power have been defined to avoid abuses.
Cory considers Cloutier v Langlois where the scope of the common law power of
search upon lawful arrest was considered. The case established that such a
search does not require reasonable and probable grounds beyond the grounds
that were sufficient to support the lawfulness of the arrest itself. The case did
recognize three limitations to the common law power:
1. the power is a discretionary one and in certain circumstances the officer
may properly exercise his discretion not to conduct a search;
2. the search must be for a valid objective in pursuit of the ends of criminal
justice; and
3. the search must not be conducted in an abusive fashion.
However, Cory recognizes that the invasive nature of body searches demands
higher standards of justification; interference with a persons bodily integrity is a
breach of a persons privacy and an affront to human dignity. He finds in s.
487.05, which creates a warrant procedure for the seizure of certain bodily
substances for the purposes of DNA testing, a recognition by Parliament of the
intrusive nature of seizing bodily samples. The section requires that the police
have reasonable and probable grounds, as well as authorization from a judicial
officer, before they can make such seizures. Clearly, if this type of invasive
search and seizure came within the common law power of search incident to
arrest, it would not have been necessary for the government to create a parallel
procedure for the police to follow.
With regard to the tissue Stillman discarded, the police may ordinarily collect and
test these items without any concern about consent. However, it is a
fundamentally different situation when the accused is in custody where they
cannot prevent the authorities from taking possession of these items. Cory holds
that whether an accused has relinquished any privacy right in items which are
discarded would have to be determined on a case by case basis. However, in the
case at bar, Stillman had announced through his lawyers that he would not
consent to the taking of any samples of his bodily fluids.
As a result, Cory finds that the bodily samples were obtained in violation of
Stillman's rights under s. 8, and that they should be excluded under s. 24(2).

State v. Hemphill
No. 9029SC791.
Facts:
Defendant charged with second degree murder for the death of his baby
daughter. When defendant brought his baby to the pediatrician it was shown
that she had been dead for 3-4 hours. The autopsy showed there was swelling of
the brain, bleeding in the skull, and bruises on the brain and hemorrhage in the
lungs. The testifying physician stated that he believed the injuries were the
result of shaken baby syndrome and that the injury typically occurs when an
infants head is shaken violently while being held so that the skull itself is
maintained within the persons grasp and the brain is shaken inside the head.
Defendant testified that after feeding his daughter she vomited and was not
breathing and then took her to the hospital. Defendant later testified, upon
learning that the cause of death was declared as shaken baby syndrome, that he
had shaken he baby three or four times because she was choking. He testified
that he did not intend to harm the child when shaking her. Accused was
adjudged guilty at trial hence this appeal.
Issue:
Whether the evidence presented in the facts is sufficient to support conviction,
even though there was no established intent to injure.
Held:

Yes. The evidence that defendant shook the baby in the manner he did, causing
the injuries he did was sufficient to show he acted with recklessness of
consequences, though there may be no intention to injure a particular
person. The trial court did not error.
Malice comprehends not only particular animosity but also wickedness of
disposition, hardness of heart, cruelty, recklessness of consequences and a mind
regardless of social duty and deliberately bent on mischief, though there may be
no intention to injure a particular person.
An act that indicates a total disregard for human life is sufficient to supply the
malice necessary to support the crime of second degree murder.
Malice does not necessarily mean an actual intent to take human life; it can be
implied when an act which imports danger to another is done so recklessly or
wantonly as to manifest depravity of mind and disregard of human life.
Dissent
Defendant testified that because he was scared when the baby began to throw
up that the child was choking he shook her to clear the airway. This evidence is
uncontradicted and should be taken as true. The issue, therefore, is whether
the defendant acted with recklessness of consequences and therefore malice.
The evidence shows that defendant feared for the welfare of the child, which
caused him to act as he did. Moreover, the evidence shows he continued his
care for the childs wellbeing by taking her to the hospital. Evidence shows he
was beside himself with grief and that he personally requested an autopsy be
performed. This case presents evidence at most for conviction of involuntary
manslaughter.
People v. Jennings
96 N.E. 1077
Facts:
On the night of September 19, 1910, Clarence B. Hiller, his wife, and four
children were fast asleep when Mrs. Hiller had awoken and noticed the gas light
that they always kept on at night was not on. She alerted Mr. Hiller to this fact
and he went to investigate the situation. At the head of the stairway he
encountered an intruder and a struggle ensued. Both fell to the foot of the
stairway and Mr. Hiller was shot twice. He died moments later. Mrs. Hiller
screamed and the intruder fled. At the scene of the crime, three undischarged
cartridges and two lead slugs were found. Particles of sand were found in one of
the children's rooms. The point of entry was determined to be through a window
in the kitchen. The railing near this window had recently been painted and it was
here that the imprint of four fingers of someone's left hand was found imbedded
in the fresh paint.
At about 2:38 a.m. Thomas Jennings was spotted by police and was questioned
as to what he was doing out so late. The officers noticed he was injured and

when asked about this, he gave conflicting statements. They searched him and
discovered he was carrying a loaded revolver. He was immediately arrested and
taken to a doctor. Later, the police found out that Jennings had just been
released on parole in August 1910 after serving a sentence for burglary. His
fingerprint card was on file and was compared to the prints lifted at the Hiller
household. Four fingerprint experts at Jennings' trial declared the fingerprints
from the crime scene were a conclusive match to Jennings own prints. Based on
this evidence, Jennings was convicted of murder on February 1, 1911.
After his trial, Jennings appealed his case to the Supreme Court of Illinois. This
appeal was based primarily on the admissibility of fingerprint evidence.
Issue: WON fingerprints are admissible as evidence.
Held:
The Court recognized that standard authorities on scientific subjects discuss the
use of fingerprints as a system of identification, concluding that experience has
shown it to be reliable. Furthermore, these authorities state that this system of
identification is of very ancient origin, having been used in Egypt when the
impression of the monarch's thumb was used as his sign manual, that it has been
used in the courts of India for many years and more recently in the courts of
several European countries; that in recent years its use has become very general
by the police departments of the large cities of this country and Europe; that the
great success of the system in England, where it has been used since 1891 in
thousands of cases without error, caused the sending of an investigating
commission from the United States, on whose favorable report a bureau was
established by the United States government in the war and other departments.
The Court further stated that there is a scientific basis for the system of
fingerprint identification, and that the courts are justified in admitting this class
of evidence; that this method of identification is in such general and common
use that the courts cannot refuse to take judicial cognizance of it. The Supreme
Court of Illinois affirmed the lower court decision for the murder conviction.

People v. Geiger (Docket No. 2,178)

10 Mich. App. 339 (1968)
159 N.W.2d 383
Facts:
Defendant confronted his wife and her friend upon entering a bar. The wifes
friend was told by defendant to wait for his wife in the bar. Instead, she waited
in the car and watched defendant try to force his wife into his car. Testimony
suggests that defendant drove his wife to a nearby field and hit her two or three
times and pushed her to the ground in such a manner that she bumped her
head against the car. When his wife was knocked unconscious defendant picked

her up and put her in his car. Defendant then drove his wife to their trailer where
he tried to clean her off. He then left his wife in the trailer and drove to a friends
house. He convinced his friend to help him move his wifes car from the bar to
her parents home. Defendant conceded to his friend that he might be facing a
murder rap. Defendant returned home, blanketed his wife, and drove for 186
miles, finally stopping at a hospital where his wife was pronounced dead. The
cause of death was ruled that sometime after the beating (the wife) had
attempted to vomit and had choked to death on her own vomitus.
At trial defendant was charged with first degree murder, but the jury was
instructed only to consider second degree murder and manslaughter. Defendant
argues that there is no showing of malice and therefore should be no instruction
as to second degree murder.
Issue:
Was there evidence from which a jury could infer defendants alleged intent to
produce great bodily injury with the attendant likelihood that death would result
therefrom?
Whether the wifes death by asphyxiation absolves defendant of malicious intent.
Held:
Yes. A jury could infer that defendant had an intent equivalent to a criminal
purpose aimed against life based on her injuries. The defendants injuries alone
may not be enough to establish intent, but when it is presented against the
backdrop that he did not attend to the victims medical needs where they were
clearly needed, the jury can reasonably infer the required intent.
Yes. The wifes asphyxiation was the natural and probable consequence of the
beating from which a jury could find a causal connection between the assault
and the act of vomiting. A jury could find based on the evidence that injuries
were reasonably calculated to cause death and the injuries contributed
mediately or immediately to the death.
The immediate cause of death, asphyxiation, renders a finding of malice
impossible. It is true that the likelihood of death resulting from the head wounds
per se was medically improbable. Nevertheless, the likelihood of death resulting
as a natural and probable consequence of the beating was within the range of
medical testimony from which a jury could find a causal connection between the
assault and Mrs. Geiger's act of vomiting. The pathologist who performed the
autopsy testified that blows on the head, on the side of the face, or whatever the
blows indicated a trauma which resulted in minor brain and subarachnoid
damage that probably caused some degree of cerebral concussion, probably a
temporary thing. That would contribute to diminution of laryngeal reflexes which
would allow the asphyxiation.

Brackett v. Peters No. 91-3878.

11 F.3d 78 (1993)

Facts:
Defendant, a prisoner in state prison was convicted of felony murder. At the time
of the crime, defendant was 21 and had raped and severely beaten an 85 year
old widow, who he had previously done yard work for. Her hospital records show
a broken arm, a broken rib, and extensive bruising. While at the hospital,
defendant became depressed and refused to eat or be fed and became
progressively weaker. Her physical injuries were healing when she was
transferred to a nursing home, but her mental status deteriorated as she
continued her resistance to food. Her doctor ordered a nasal gastric feeding
tube for her but the tube could not be inserted, in part because facial injuries
inflicted by Bracket made insertion of the tube too painful. Defendant died ten
days after admission to the nursing home while a nurse was feeding her through
a syringe. The autopsy revealed that she died from a large amount of food being
stuck in her trachea, from which she asphyxiated.
Issue:
Whether a defendants asphyxiation after being fed through a syringe constitutes
sufficient causation of death after a beating and rape, such that defendant can
be convicted of felony murder.
HELD:
Yes, conviction upheld. Every event has multiple causes. For instance, the
victims age was a partial cause of her death. She was also senile, which is a
common cause of depression, which is commonly associated with loss of
appetite, which caused her weakened state, which caused her eventual death.
Were any of these conditions absent, she probably would not have died and each
made her death more likely. However, the existence of other causes that satisfy
the rule does not absolve the defendant of criminal liability.
It is sufficient that the murderers actions be one of the causes that led to death.
A rational fact finder could find that she would not have died in the absence of
the rape and assault and that the rape and assault made the event of her death
more likely. It is unlikely that she would have died regardless of his assault and
rape, which speaks to prong (2) of causation rule. It would not be a good
argument that had the defendant not raped and assaulted, she would have
entered the hospital and died one month later.
The defendants depression is not a supervening act which absolves him of
culpability. It is no more a supervening act than any other vulnerability of the
victim. Even if it can be argued that she committed suicide by not eating, her

depression could be demonstrated as a proximate cause of this, meeting both

prongs of causation. The defendant must take the victim as he finds her. This is
similar to taunting a schizophrenic, which leads to death or injury. The taunter
would be found criminally liable because his acts caused the resulting condition.
a criminal assailant is punishable as a first-degree murderer no matter how
feeble the spark of life that his blow extinguished.

PEOPLE v. EULO
[63 N.Y.2d 34 (1984)]
from conviction: 1st and 2nd degree manslaughter(Eulo), 1st degree manslaughter
and second degree criminal possession of a weapon (Bonilla).
Facts:
Eulo case; defendant shoots his girlfriend in the head after a heated argument
over the latters former suitor. The victim is rushed to the hospital and is
stabilized with an artificial respirator and medication to keep her cardiovascular
functions but suffers massive and irreversible brain injuries. She is later
examined twice by two neurosurgeons and is twice declared brain dead
(complete cessation of brain functions, even those for involuntary actions,
controlled by the brain stem such as breathing etc.) After the second
examination, four days after the shooting, her parents allow her organs to be
donated and for artificial respiration to cease.
Bonilla case; a NYC police officer finds a man lying on the street in Brooklyn with
a bullet wound to the head. He was later rush to an ICU but became comatose
upon arrival. He was similarly hooked up to an artificial respirator and given
medication to keep his heart pumping. Later heis examined by a neurologist and
declared brain dead (tests include a check of the reflexes with painful stimuli and
an EEG which measures electrical activity in the brain) the bullet wound caused
the victims entire brain to cease functioning. The next day tests were again
done with similar results. At this point the victims mother consented to the
donation of her sons organs and the termination of his artificial respiration.
Defendants in both cases argue: that the victims deaths were not attributable
to them since the victims cardio
-respiratory functions were still operable even after the attack and that it was the
transplantation which ended the lives of the victims. Thus they claim that they
should not be liable for homicide.
Issue(s): WON death corresponds to the cessation of
functioning rather than the cessation of brain activity.

cardio-respiratory

Held:
No. The court held that with the shifts in technology and the capability of
modern medicine to prolong life even when the brain has ceased any and all
functions, the legal definition of death should be reassessed in terms of a
definitive time, in this case the court approves of the attribution of death to the
complete cessation of brain functions even though cardio-respiratory functions

persist through artificial means. The point of this ruling is to clarify the terms of a
persons passing to avoid confusion as to the time of a persons expiry. In this
light factors such as the lack of even the most basic brain activity (that
attributed to the brain stem as basic involuntary actions), the inability to breath
independently and the lack of a reflex reaction to painful stimuli are
determinative of a state of death under the brain -based criteria for death.

PEOPLE v. BONILLA
[Court of Appeals of New York (1984)]Chief Judge Cooke Appeal from Appellate
Court Decision
Facts:
A man was found with a shot in the head but still alive. He was brought to the
hospital where he became comatose. He was placed on a respirator w/o w/c he
would not be able to breathe on his own. Tests were conducted and repeated but
showed same result - his entire brain ceased functioning due to the bullet wound.
His mother consented to a transfer of his kidneys and spleen. (1)Death was
pronounced following the 2nd battery of tests; (2) then the victim's kidneys and
spleen were removed for transplantation; (3) then the respirator was
disconnected so his breathing and heartbeat stopped.
Issue: W/N Bonilla is liable for his death or what constitutes a person's death,
the time at which criminal liability for a homicide would attach.
Held:
Yes, Bonillas act of shooting caused the death of victim. The term death as
used in New York statutes may be construed to embrace a determination, made
according to accepted medical standards, that a person has suffered an
irreversible cessation of breathing and heartbeat or, when those functions are
artificially maintained, an irreversible cessation of the functioning of the entire
brain, including the brain stem. Furthermore, modern medical thought has
established that the traditional vital signs of breathing and heartbeat are not
independent indicia of life, but are instead, part of an integration of functions in
which the brain is dominant. Thus, his conduct caused the death of victim (who
was pronounced brain dead and whose breathing and heart functions were
artificially maintained), and that medical procedures in removing vital organs
were not superseding causes of death, as determining death by brain-based
criteria has long been an accepted medical practice and attending physicians
were not acting without some legal authority in grounding their determinations
on brain-based criteria. Affirmed

State v. Fierro
No. 4271.
124 Ariz. 182 (1979)
603 P.2d 74
Facts:
Defendant charged with first degree murder. Victim went on a ride to find
marijuana driven by a friend. The friend driver heard his name called from
another car, stopped his car and walked over to another car where defendant
was sitting in the passenger seat. Victim remained in the car. Defendant told
friend driver that the Mexican mafia had instructed defendant to kill victim.
Friend driver told him to do it outside because he and his wife did not want to
see anything. Defendant began talking with victim. Friend driver got in a car
and began to drive away when defendant began shooting victim. Victim was
shot in the chest multiple times. He was taken to ICU, where examination
revealed he had suffered brain death; and he was declared dead shortly
thereafter. Prior to the announcement of death, friend victim, after reading
about the shooting and that victim was still alive reported the incident to his
probation officer. The doctor eventually pronounced him dead and the cause of
death being gunshot wounds.
Issues:
Whether a doctors termination of life support breaks the chain of natural
events or changes by way of human action the chain of natural events such
that a defendant can be found not guilty of causing homicide.
Whether one can be declared legally dead for purposes of homicide when he is
brain dead and sustained by life support.

Held:
No, conviction affirmed. The removal of life support did not change the chain of
natural events. When one injures another and the injury contributes mediately
or immediately to the death of such other. The fact that other causes contribute
to the death does not relieve the actor of responsibility, provided such other
causes are not the proximate cause of the death. Moreover, the defendant was
legally dead prior to the removal of life support. Death can be objectively be
determined by an ordinary layman when the condition of the body or the
nature of the wound is such that no other determination is reasonable. New
definitions of legal death encompass brain death as being legally sufficient to
declare death. Moreover, expert testimony demonstrates that the defendants
brain death was irreversible.

Midgett v. State
Supreme Court of Arkansas
729 S.W.2d 410 (1987)

Facts:
The victim had been abused by the Defendant in the form of brutal beatings
over a substantial period. The bruises had been noticed by teachers and
counselors, but the victim would not state where he got the injuries. On the date
of the victims death, the Defendant carried him into the hospital, stating that he
did not know what was wrong. An autopsy revealed that the victim was
malnourished and underdeveloped. He had recent bruises on his lips, the center
of the chest plate, forehead, the back part of the lateral chest wall, the soft
tissue near the spine, and the buttocks. There was discoloration of the abdominal
wall and prominent bruising on the palms of the hands. Older bruises were found
on the right temple, under the chin, and on the left mandible. Recent and healed
rib fractures were found. The victim died as a result of intra-abdominal
hemorrhage caused by blunt force trauma consistent with a human fist.
Issue:

Is the evidence of premeditation and deliberation sufficient to support a

conviction of first-degree murder?
Held:
No. A conviction of first-degree murder requires that the Defendant deliberately
and with premeditation kill the victim. Here, the evidence is substantial that the
Defendant severely abused the victim. The victim was bruised in several places
on his body and malnourished. On the Sunday before the Wednesday of the
victims death, the Defendant had been drinking heavily and delivered four
blows, two to the stomach and two to the back. There was no evidence that the
Defendant was doing any more than continuing his pattern of abuse. Therefore,
the evidence was insufficient to prove that the Defendant killed with
premeditation and deliberation. The Defendants conviction of first-degree
murder was incorrect, and it should be modified to second-degree murder. A
first-degree murder conviction requires that the prosecution prove that the
Defendant acted with premeditation and deliberation.
Dissent. The majority has usurped the power of the jury to find that the
Defendant intended to kill his son. Further, starving the boy, choking him and
beating him constantly provide sufficient evidence of intent to kill.