Com. v. Golston

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore HENNESSEY; BRAUCHER
Citation366 N.E.2d 744,373 Mass. 249
Decision Date26 August 1977

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366 N.E.2d 744
373 Mass. 249
COMMONWEALTH

v.
Siegfried GOLSTON.
Supreme Judicial Court of Massachusetts, Suffolk.
Argued May 3, 1977.
Decided Aug. 26, 1977.

Page 746

John P. White, Jr., Boston (Joseph H. Walsh, Brockton, with him), for defendant.

Thomas J. Mundy, Jr., Asst. Dist. Atty. (Daniel Engelstein, Asst. Dist. Atty., with him), for the Com.

Thomas E. Finnerty, Dist. Atty., amicus curiae and Richard M. Lane, Asst. Dist. Atty., Boston, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.

BRAUCHER, Justice.

The defendant appeals his conviction of murder in the first degree. Among numerous

Page 747

other errors, he claims that the death of the victim was not properly established. We hold that the trial judge correctly accepted the medical concept of "brain death"; alternatively, any error in this respect was harmless beyond a reasonable doubt. We also overrule the defendant's other assignments of error, and we affirm his conviction.

There was evidence of the following facts. About 2 p. m. on Sunday, August 24, 1975, the victim, a white man thirty-four years old, came out of a store in Dorchester and walked toward his car. The defendant, a black man of eighteen, tiptoed behind him and hit him on the head with a baseball bat. The defendant then went into a building, changed his clothes, and crossed the street to the store, where he worked. When asked why he had hit the man, he said, "For kicks." The victim was taken to a hospital. There a large portion of the front of his skull was removed to relieve pressure on his brain, and he breathed with the aid of an artificial respirator. On August 26, his blood pressure, heartbeat and pulse were not observable, he failed to breathe when taken off the respirator for two minutes, and an electroencephalogram failed to reveal any cerebral electrical activity. On August 28, he again made no attempt to breathe when taken off the respirator, there were no reflex actions or responses to painful stimulation, and a second electroencephalogram showed no evidence of brain wave activity. After consultation with the victim's family, the respirator was removed on August 31, and his heart stopped.

1. The proof of "brain death." There was medical testimony that on August 25 only the part of the victim's brain responsible for the most primitive responses, the brain stem, was still to some degree working. On August 26 the remaining brain stem functions, such as responding to painful stimuli and gasping for air, had disappeared; the victim never again exhibited any signs that his brain stem or cortex was functioning. In the opinion of the responsible physician, the victim was then dead, having reached the stage of irreversible "brain death." This opinion was confirmed by an electroencephalogram on August 26 and by another on August 28. The removal of the respirator on August 31 was in accordance with good medical practice. An autopsy the next day revealed a brain without architecture, a decomposed, jelly-like mass, consistent with a brain dead for substantially more than two days. The medical examiner concluded that the victim had been dead since August 28.

According to the testimony, a definition of "brain death" was developed by the Harvard Ad Hoc Committee in 1968. The traditional definition of death as the cessation of the heartbeat is erroneous; death does not occur until the heart has stopped long enough so that there is complete loss of brain function. When the heart is maintained artificially, the brain function must be examined directly. The Harvard Committee developed basic clinical criteria, which are generally accepted by the medical community. Subsequent studies resulted in the establishment by an inter-agency committee of slightly less rigorous criteria, but the physicians attending the victim applied the original Harvard Committee criteria.

The three basic criteria were (1) unresponsiveness to normally painful stimuli, (2) absence of spontaneous movements or breathing, and (3) absence of reflexes. The diagnosis of "brain death" was to be confirmed by an electroencephalogram, and was to be observed over a twenty-four-hour period. No reported individual has ever survived when these criteria were met. In accordance with these criteria, several doctors testified that the victim was dead by August 28.

2. The judge's instructions on "brain death." The judge instructed the jury that "as a matter of law, the occurrence of a brain death, if you find it, satisfies the essential element of the crime of murder requiring proof beyond a reasonable doubt of the death of the victim. Brain death occurs when, in the opinion of a licensed physician, based on ordinary and accepted standards of medical practice, there has been a total and irreversible cessation of

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spontaneous brain functions and further attempts at resuscitation or continued supportive maintenance would not be successful in restoring such functions." The judge also submitted two questions to the jury, to be answered if they found the defendant guilty of murder in either the first or the second degree: (1) whether they found that the element of death in the crime of murder was satisfied by the proof of a brain death; (2) if so, whether the brain death occurred before or after the artificial life support was disconnected. The jury answered the first question, "Yes," and the second, "Before."

The defendant claims error in these instructions. He relies on the definition of "death" in Black's Law Dictionary 488 (rev. 4th ed. 1968): "The cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc." He cites a number of civil cases that have relied on that definition, the latest being Schmitt v. Pierce, 344 S.W.2d 120, 133 (Mo.1961) (simultaneous death). Accord, Estate of Schmidt, 261 Cal.App.2d 262, 273, 67 Cal.Rptr. 847 (1968). Cf. Ohashi v. Blanchard, 2 Mass.App. 863 a, 314 N.E.2d 887 (1974). He also cites Commonwealth v. Edelin, --- Mass. ---, --- b, 359 N.E.2d 4 (1976), where three Justices approved a modern medical definition of "liveborn infant" in terms of "heartbeat" and "respiration."

Thus, the defendant claims, the judge changed the law, invading the province of the Legislature. Moreover, he says, the change was retroactive, was not foreseeable by the defendant, and was an ex post facto law and a denial of due process of law, citing Bouie v. Columbia, 378 U.S. 347, 353-354, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), and Commonwealth v. Benjamin, 358 Mass. 672, 679-680, 266 N.E.2d 662 (1971). The result was to deprive the defendant of the possible defense that the victim would have lived more than a year and a day, on the basis of a decision to disconnect the respirator made by doctors and by the victim's family. Both the doctors and the family, it is argued, may have had an interest adverse to that of the defendant.

We reject these arguments. We recognize of course, as did the judge, that proof of the death of the victim is essential to a prosecution for murder. Moreover, although Black's Law Dictionary does not have the force of a statute or even a judicial decision, we accept its definition of death as "cessation of life" or "ceasing to exist," as did the judge. But its assertion that death is "defined by physicians" in a certain way does not freeze the medical definition for all time, and its references to respiration and pulsation must be taken to refer to spontaneous rather than artificially supported functions. Civil cases on miscellaneous issues such as simultaneous death do not necessarily control the law of homicide. Recent homicide cases in other jurisdictions support the judge's rulings. People v. Saldana, 47 Cal.App.3d 954, 958-959, 121 Cal.Rptr. 243 (1975). State v. Brown, 8 Or.App. 72, 75-76, 491 P.2d 1193 (1972). See In re Quinlan, 70 N.J. 10, 51-52, 355 A.2d 647 (1976); cf. New York City Health & Hosps. Corp. v. Sulsona, 81 Misc.2d 1002, 1007, 367 N.Y.S.2d 686 (N.Y.Sup.Ct.1975) (Uniform Anatomical Gift Act). Those rulings are also consistent with modern statutes in a number of States. 1

So far as we can ascertain, this court has never before decided the question when death occurs for the purposes of the law of homicide. The judge recognized the

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significant technological advances in the area of artificial life support and applied traditional principles, we think correctly, to the novel case presented. "The rules and principles of the common law . . . are broad and expansive enough to embrace all new cases as they arise." Commonwealth v. Webster, 5 Cush. 295, 322 (1850). The judge made an "evolutionary restatement" of the rule rather than a substantively new rule. See Commonwealth v. McHoul, 352 Mass. 544, 547, 226 N.E.2d 556 (1967). Proof of the same facts would permit conviction under either the old or the new formulation, and there was no lack of fair warning to the defendant. See Stokes v. Commonwealth, --- Mass. ---, --- c, 336 N.E.2d 735 (1975); Commonwealth v. Harrington, 367 Mass. 13, 21, 323 N.E.2d 895 (1975); Commonwealth v. Benjamin, 358 Mass. 672, 680, 266 N.E.2d 662 (1971).

It is true that we have several times recognized a common law rule " that to constitute criminal homicide the victim of the assault must die within a year and a day from the time of the infliction of the mortal wound." Commonwealth v. Pinnick, 354 Mass. 13, 15 n. 1, 234 N.E.2d 756, 757 n. 1 (1968). Commonwealth v. Vanetzian, 350 Mass. 491, 493 n. 1, 215 N.E.2d 658 (1966). Commonwealth v. Macloon, 101 Mass. 1, 6 (1869). Commonwealth v. Parker, 2 Pick. 550, 558 (1824). In none of those cases was the reference to the rule...

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68 practice notes
  • State v. Dilliner, No. 29993.
    • United States
    • Supreme Court of West Virginia
    • July 2, 2002
    ...not prejudicial to defendant because they allowed the court to verify that the jury followed its instructions); Commonwealth v. Golston, 373 Mass. 249, 260-61, 366 N.E.2d 744, 752 (1977) (submitting two questions to jury to answer if they found defendant guilty of murder not 4. See, e.g., W......
  • Com. v. Freiberg
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 6, 1989
    ...even if the death results from a single blow. Commonwealth v. Glass, supra 401 Mass. at 803, 519 N.E.2d 1311. Commonwealth v. Golston, 373 Mass. 249, 260, 366 N.E.2d 744 (1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54 L.Ed.2d 788 (1978). 4 We note also that "[t]his court has not requi......
  • Com. v. Best
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 17, 1980
    ...evidence of twenty-six lacerations with a crowbar is sufficient for a finding on the first-mentioned theory (see Commonwealth v. Golston, 373 Mass. 249, 260, 366 N.E.2d 744 (1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54 L.Ed.2d 788 (1978); Commonwealth v. Knowlton, 265 Mass. 382, 389......
  • Com. v. Judge
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 1, 1995
    ...Mass. 378, 393-394, 536 N.E.2d 571 (1989); Commonwealth v. Sinnott, 399 Mass. 863, 879, 507 N.E.2d 699 (1987); Commonwealth v. Golston, 373 Mass. 249, 260, 366 N.E.2d 744 (1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54 L.Ed.2d 788 (1978); Commonwealth v. Appleby, 358 Mass. 407, 415, 2......
  • Request a trial to view additional results
68 cases
  • State v. Dilliner, No. 29993.
    • United States
    • Supreme Court of West Virginia
    • July 2, 2002
    ...not prejudicial to defendant because they allowed the court to verify that the jury followed its instructions); Commonwealth v. Golston, 373 Mass. 249, 260-61, 366 N.E.2d 744, 752 (1977) (submitting two questions to jury to answer if they found defendant guilty of murder not 4. See, e.g., W......
  • Com. v. Freiberg
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 6, 1989
    ...even if the death results from a single blow. Commonwealth v. Glass, supra 401 Mass. at 803, 519 N.E.2d 1311. Commonwealth v. Golston, 373 Mass. 249, 260, 366 N.E.2d 744 (1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54 L.Ed.2d 788 (1978). 4 We note also that "[t]his court has not requi......
  • Com. v. Best
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 17, 1980
    ...evidence of twenty-six lacerations with a crowbar is sufficient for a finding on the first-mentioned theory (see Commonwealth v. Golston, 373 Mass. 249, 260, 366 N.E.2d 744 (1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54 L.Ed.2d 788 (1978); Commonwealth v. Knowlton, 265 Mass. 382, 389......
  • Com. v. Judge
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 1, 1995
    ...Mass. 378, 393-394, 536 N.E.2d 571 (1989); Commonwealth v. Sinnott, 399 Mass. 863, 879, 507 N.E.2d 699 (1987); Commonwealth v. Golston, 373 Mass. 249, 260, 366 N.E.2d 744 (1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54 L.Ed.2d 788 (1978); Commonwealth v. Appleby, 358 Mass. 407, 415, 2......
  • Request a trial to view additional results

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