State v. Soucy

• Decision Date: 31 January 1995
• Docket Number: No. 90-363,90-363
• Citation: 139 N.H. 349,653 A.2d 561
• Parties: The STATE of New Hampshire v. Dennis J. SOUCY.
• Court: New Hampshire Supreme Court

Page 561

653 A.2d 561

139 N.H. 349

The STATE of New Hampshire v. Dennis J. SOUCY.

No. 90-363.

Supreme Court of New Hampshire.

Jan. 31, 1995.

John P. Arnold, Atty. Gen. (Jeffrey W. Spencer, Asst. Atty. Gen., on the brief and orally), for State.

W. Kirk Abbott, Jr., Asst. Appellate Defender, Concord, by brief and orally, for defendant.

HORTON, Justice.

The defendant, Dennis Soucy, was convicted of manslaughter, RSA 630:2 (1986), and first degree assault, RSA 631:1 (1986) (current version at RSA 631:1 (Supp.1994)), after a jury trial in Superior Court (Nadeau, J.). He argues, inter alia, that the trial court erroneously excluded evidence that the victim would not have died but for the negligence of his treating physicians, and that his twin convictions of manslaughter and assault violate the double jeopardy clause of part I, article 16 of the New Hampshire Constitution. We reverse the manslaughter conviction, conditionally vacate the assault conviction, and remand.

The following facts are supported by the evidence. One evening, Robert Duval walked unannounced and uninvited into Soucy's home. Soucy severely beat Duval, kicking him twice in the side and punching him in the face. The force of these blows fractured several of Duval's facial bones and ribs, collapsed one of his lungs, and punctured his spleen. The attack ended outdoors, where Soucy struck Duval with a lawn chair and then left him. Later, a friend of Duval happened to discover the stricken man in Soucy's yard and brought him to the hospital. Physicians detected and treated all of his injuries except the lacerated spleen, which slowly bled until he died three days later. Soucy was charged with manslaughter and first degree assault.

An offer of proof, prior to trial, disclosed that two medical experts were willing to testify at trial that Duval would not have died if the spleen's tear had been discovered earlier and repaired. Such failure to notice the injury, they each said, was negligence, but neither termed the negligence "gross." Soucy sought to present this evidence to the jury as a supervening cause of Duval's death, sufficient to relieve him of criminal responsibility for manslaughter. The trial court, however, ruled against such admission, adopting the State's argument that evidence of medical malpractice could not be admitted as a supervening cause unless the malpractice constituted gross negligence and was the "sole" cause of death. The court ruled as a matter of law that the alleged negligence was not the sole cause of Duval's death, and it did not submit that issue to the jury.

On appeal, the parties dispute the proper formulation of the supervening cause test. The focus on which supervening cause test should have been applied, however, ignores a more fundamental problem; namely, even if the trial court properly embraced the sole cause test, the defendant should have been allowed to introduce evidence of medical negligence so that the jury could determine whether that test was met. As we explained in State v. Williams, 133 N.H. 631, 633, 581 A.2d 78, 80 (1990), part I, article 15 of the New Hampshire Constitution entitles a criminal defendant to a jury determination on all the factual elements of the crime charged. In Williams, the defendant was charged with securities fraud based on the sale of limited partnership interests. At trial, the judge ruled as a matter of law and instructed the jury that the limited partnership interests at issue were securities for purposes of determining whether the defendant committed securities fraud. We held that inasmuch as a determination that the limited partnership interests were securities was a fact essential to conviction for securities fraud, the trial court judge erred in instructing the jury that the fact had been established. Because the trial court's error was tantamount to directing a verdict on that factual element, we refused to engage in a harmless error analysis. Id. at 634, 581 A.2d at 81.

In the present case, the defendant was charged with manslaughter, RSA 630:2, I(b), defined as recklessly causing the death of another. Whether the defendant "caused" the death is a factual element of the crime, and therefore one which must be determined by the jury. Here, the defendant contended that he did not "cause" the death because of the supervening medical negligence. The proper role of the trial court here, then, was to determine the proper supervening cause test, admit appropriate medical evidence relevant to whether that test was met, and instruct the jury as to that test. In the present case, specifically, the defendant should have been allowed to introduce evidence of medical negligence so that the jury could decide whether the sole cause test embraced by the trial court was met. The fact that the supervening cause test used by the trial court included a gross negligence requirement does not affect this conclusion because, once the standard of care is established by expert testimony, the jury can determine for itself the degree of deviation from that standard. Jamas v. Krpan, 116 Ariz. 216, 568 P.2d 1114, 1115 (App.1977). Accordingly, we hold that the trial judge's exclusion of this evidence and removal of part of the causation issue from jury determination was error. Because such a violation of a defendant's right to trial by jury renders a trial fundamentally unfair, we do not apply a harmless error analysis. See Williams, 133 N.H. at 634, 581 A.2d at 80.

Although the causation element must be submitted to the jury, not all potential defenses to the element are jury issues. Only defenses raised and supported by some evidence fall to the province of the jury. State v. Hast, 133 N.H. 747, 749, 584 A.2d 175, 176 (1990); State v. Aubert, 120 N.H. 634, 635, 421 A.2d 124, 125 (1980).

It may be argued that whereas only "some evidence" is required to get a pure defense to the jury, an affirmative defense, requiring the defendant to prove the matter on a balance of the probabilities, could be taken from the jury when no reasonable juror could find that the burden was met. A pure defense is a denial of an element of the offense, while an affirmative defense is a defense overriding the element. See United States v. Bailey, 585 F.2d 1087, 1125-26 (D.C.Cir.1978) (Wilkey, J., dissenting), reversed, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980); People v. Frye, 7 Cal.App. 4th 1148, 10 Cal.Rptr.2d 217, 223 (1992); 21 Am.Jur.2d Criminal Law § 183, at 338 (1981). The former must be negated by the State by proof beyond a reasonable doubt and must be submitted to the jury for determination. Cf. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). The latter need not be negated by the State. The burden of proof to establish an affirmative defense is on the defendant, who must carry this burden on a balance of the probabilities. See State v. Little, 121 N.H. 765, 772, 435 A.2d 517, 521 (1981); see also RSA 626:7, I(b) (1986) (regarding burden of proof in matters statutorily defined as affirmative defenses under the New Hampshire Criminal Code).

The issue of supervening cause falls into the former category. Causation is an element of the crime of manslaughter. The State must prove, beyond a reasonable doubt, the existence of a causal link from the criminal act to the death. Although not statutorily defined as either a "defense" or as an "affirmative defense" under the New Hampshire Criminal Code, assertion of supervening cause is an effort to negate this link. If, in the presence of an alternate cause, the causal link remains, causation is established. If, in the presence of an alternative cause, the link is broken, causation is not established. Thus, if some evidence is offered, otherwise admissible, which is reasonably calculated to provide a reasonable doubt on the issue of causation, it must be admitted, and the element of causation, with the supported defense, must be submitted to the jury.

We now turn to the double jeopardy issue. The State concedes that, in this particular case, separate convictions for manslaughter and assault violate double jeopardy. While the defendant argues that we must accordingly vacate his assault conviction, he also concedes that if we reverse his manslaughter conviction, the State may elect either to retry the whole case or to reinstate the vacated assault conviction. We therefore conditionally vacate the defendant's assault conviction and leave this election to the State. Because the State may elect to try the defendant again for manslaughter, we will address those issues raised by the parties likely to arise on retrial.

A core issue at a retrial would certainly be the proper formulation of the supervening cause test. The State argues that the sole cause test embraced by the trial court is the proper one, while the defendant...