207 F.3d 1222 (10th Cir. 2000), 99-7008, United States v Wood

Docket Nº:99-7008
Citation:207 F.3d 1222
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. C. DOUGLAS WOOD, Defendant - Appellant.
Case Date:March 29, 2000
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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207 F.3d 1222 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff - Appellee,


C. DOUGLAS WOOD, Defendant - Appellant.

No. 99-7008

United States Court of Appeals, Tenth Circuit

March 29, 2000

Appeal from the United States District Court for the Eastern District of Oklahoma. D.C. No. 98-CR-3-S

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Clark O. Brewster (Guy A. Fortney with him on the briefs), Brewster, Shallcross & De Angelis, Tulsa, Oklahoma, for the appellant.

Douglas Adam Horn, Special Assistant United States Attorney (Robert B. Green, United States Attorney with him on the brief), Muskogee, Oklahoma, for the appellee.

Before SEYMOUR and LUCERO, Circuit Judges and KIMBALL, District Judge.[*]

LUCERO, Circuit Judge.

C. Douglas Wood is a physician who, in 1998, was indicted for the first-degree murder of Virgil Dykes, a patient under his care at the Veterans Administration hospital in Muskogee, Oklahoma. The case was tried to a jury, and submitted on charges of first-degree murder and the lesser included offenses of second-degree murder and involuntary manslaughter. A verdict was entered acquitting Dr. Wood of the first- and second-degree murder charges, but convicting him of involuntary manslaughter. The case comes to us for review on direct appeal. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3231. Appellant advances several claims of error: (1) denial of his motion for judgment of acquittal as to all charges; (2) wrongful prosecution; (3) delay of prosecution; (4) denial of jury instructions on his theory of the case; (5) admission of expert testimony that stated an opinion as to the his mental state; and (6) admission of unduly prejudicial testimony. Concluding that Dr. Wood was denied a fair trial because of cumulative error, we reverse and remand for retrial on the charge of involuntary manslaughter.


We begin with a recitation of the events leading to Dr. Wood's indictment. Virgil Dykes was an 86-year-old man, suffering from severe abdominal pain when he arrived at the Veterans Administration hospital in Muskogee, Oklahoma, on February 5, 1994. Dr. Wood had not previously treated Dykes, but because he was the attending physician that day, he diagnosed and operated on Dykes to repair a perforation in the proximal duodenum which had led to diffuse perotonitis. Over the next eight days, patient Dykes remained under Dr. Wood's care in the surgical intensive care unit. On the morning of February 13, Dr. Glen Lytle, the chief of surgery, Dr. Rocky Morgan, a fifth-year resident, and Dr. Randall Bass, a first-year intern, made hospital rounds. A morning blood test revealed that patient Dykes had an extracellular potassium level of 3.2 milliequivalents (mEq) per liter. That level was below the lower limit of the range the hospital considered normal--3.3 to 5.5. At around 9 a.m., Dr. Morgan ordered that patient Dykes be given 40 mEq of potassium

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chloride (KCl) to raise his potassium level. Nurse Kinsey administered the KCl in an elixir form through a nasogastric tube directly into Dykes's stomach. Based on a discussion with Dr. Morgan, Dr. Bass prescribed Lasix, a diuretic drug commonly used to remove fluid from a patient's lungs, which has the side effect of reducing potassium levels. Soon after giving patient Dykes the elixir of KCl, Nurse Marla Kinsey withdrew 170 ccs of fluid from his stomach, which indicated he was not absorbing the KCl. She then returned approximately 100 ccs of the fluid to the patient's stomach.

Dr. Wood arrived at the hospital at 11 a.m. and, upon reviewing patient Dykes's chest x-rays from earlier that morning, stated that he was drowning from pulmonary edema--excess fluid in his lungs. Dr. Wood then ordered Nurse Kinsey to prepare 40 mg of Lasix and an IV bag with 40 mEq of KCl in 100 ccs of saline solution. When Nurse Kinsey informed Dr. Wood that the most rapid rate at which she could administer the KCl solution was over the course of an hour, he ordered her to draw up a syringe of 40 mEq of KCl in 30 to 50 ccs of saline. Nurse Kinsey prepared the KCl solution in a 60 cc syringe, but refused to administer it, believing it to be dangerous. Nurse Martha Hardesty, who was also present, told Dr. Wood that hospital policies permitted a maximum dosage of 40 mEqs of KCl over one hour. Dr. Wood then took the syringe from Nurse Kinsey and administered the KCl himself. Dr. Bass, Nurse Kinsey, Nurse Hardesty, and Dr. Wood gave conflicting testimony regarding how much KCl was administered how quickly.

During the injection the heart monitor flat-lined and patient Dykes stopped breathing. Dr. Wood stopped injecting and made one or two precordial thumps (sharp concussions to the chest) in an effort to restart Dykes's heart. Dr. Bass and Nurse Kinsey also engaged in resuscitation efforts, including chest compressions. After two to four minutes, Dr. Wood pronounced Dykes dead.

Following nearly four years of investigation, the government obtained an indictment charging Dr. Wood with first-degree murder in violation of 18 U.S.C. § 1111(a). After the district court denied Dr. Wood's motion to dismiss for prosecutorial delay, the case went to trial. At the close of the government's case, Dr. Wood moved for judgment of acquittal pursuant to Fed. R. Crim. P. 29(a). The district court denied the motion. Dr. Wood made another motion for judgment of acquittal at the close of all evidence, at which time the district court exercised its discretion to reserve its ruling until after the jury returned its verdict. See Fed. R. Crim P. 29(b). The district court instructed the jury on first-degree murder as well as the lesser included offenses of second-degree murder and involuntary manslaughter. The jury returned a verdict of guilty to the charge of involuntary manslaughter and not guilty on the greater offenses. Following the jury verdict, Dr. Wood renewed his Rule 29 motion, which the district court again denied.

Departing downward from the sentencing range applicable under the United States Sentencing Guidelines, the district court sentenced Dr. Wood to 5 months imprisonment, 36 months supervised release, a $100 assessment, and a $25,000 fine. Dr. Wood appeals his conviction.1


Dr. Wood alleges the district court erred in denying his motions for judgment of acquittal pursuant to Fed. R. Crim. P. 29(a) because there was insufficient evidence of premeditation and malice aforethought to sustain the murder charges and the evidence of gross negligence is insufficient to support his conviction for involuntary manslaughter.

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In reviewing both the sufficiency of the evidence to support a conviction and a denial of a motion for judgment of acquittal, this court must review the record de novo to determine whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt. See United States v. Schluneger, 184 F.3d 1154, 1158 (10th Cir. 1999), cert. denied, (2000); United States v. Voss, 82 F.3d 1521, 1524-25 (10th Cir. 1996). Contrary to Dr. Wood's assertions, the evidence necessary to support a verdict "'need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt.'" United States v. Wilson, 182 F.3d 737, 742 (10th Cir. 1999) (quoting United States v. Parrish, 925 F.2d 1293, 1297 (10th Cir. 1991)). When reviewing the denial of a motion for judgment of acquittal made at the close of the government's case-in-chief, we look only to evidence entered into the record at the time of the motion, that is, when the government rested. See Fed. R. Crim. P. 29(b). This is true even though the district court could have reserved ruling on the motion until the jury returned its verdict. See id.


Before addressing the merits of these arguments, we pause to delineate the elements of the three degrees of homicide submitted to the jury: first-degree murder, second-degree murder, and involuntary manslaughter. All three offenses involve the unlawful killing of a human being. See 18 U.S.C. §§ 1111(a), 1112(a). The difference between them is the requisite mens rea. First-degree murder, as applicable to this case, requires both malice aforethought, see 18 U.S.C. § 1111(a), and the specific intent to commit an unlawful killing, see United States v. Sands, 968 F.2d 1058, 1064 (10th Cir. 1992). A killing is committed with the requisite specific intent if it is "willful, deliberate, malicious, and premeditated." 18 U.S.C. § 1111(a). Second-degree murder, by contrast, is a general intent crime, see United States v. Soundingsides, 820 F.2d 1232, 1242 (10th Cir. 1987), that requires only malice aforethought, see 18 U.S.C. § 1111(a). "[S]econd degree murder's malice aforethought element is satisfied by: (1) intent-to-kill without the added ingredients of premeditation and deliberation; (2) intent-to-do-serious-bodily-injury; (3) depraved-heart; or (4) commission of [certain felonies]." United States v. Pearson, 159 F.3d 480, 486 (10th Cir. 1998) (citing Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law at 648 (2d ed. 1986)). We have also held that malice aforethought "may be established by evidence of conduct which is reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm." Soundingsides, 820 F.2d at 1237 (citing United States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978)); see also United States v. Joe, 8 F.3d 1488, 1500 (10th Cir. 1993). The concepts of "depraved heart" and "reckless and wanton...

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