Donohue v. State

• Citation: 801 So.2d 124
• Decision Date: 31 October 2001
• Docket Number: No. 4D99-3174.,4D99-3174.
• Parties: Bryan DONOHUE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

801 So.2d 124

Bryan DONOHUE, Appellant, v. STATE of Florida, Appellee.

No. 4D99-3174.

District Court of Appeal of Florida, Fourth District.

October 31, 2001.

Rehearing Denied December 20, 2001.

Bert Winkler, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, Bart Schneider and Melynda Melear, Assistant Attorneys General, West Palm Beach, for appellee.

KLEIN, J.

Appellant was convicted of second degree murder and robbery, both of which were enhanced as hate crimes. We reverse the murder conviction for a new trial because the trial court erred in excluding evidence of subsequent medical treatment which may have caused the victim's death. We affirm the robbery conviction.

The evidence showed that appellant left a group of friends, with whom he had been drinking and smoking marijuana, about 11:30 P.M., and returned about a half hour later. He told his friends that "some guy tried to rape me." Appellant had a "walkman" and a book bag which he had not been carrying when he left the group. Appellant was quoted as saying that the victim had called him "beautiful" and that he had hit and kicked the victim.

After some further discussion, appellant and another person went to find the victim. Others in the group followed them later and found the victim on the ground, covered with blood, and breathing heavily. The appellant admitted beating the victim again because he was a "faggot." One of the members of the group called 911, and paramedics were summoned, but the victim, who was taken to the hospital, died several days later.

The defense presented evidence, which was undisputed, that the paramedics who arrived on the scene had attempted to intubate the victim, in order to make it easier for him to breathe, but had been unsuccessful in doing so. A physician who examined the victim when he arrived at the hospital concluded, upon hearing stomach sounds coming from the breathing tube, that it had been inserted down the esophagus, not the trachea, which would cause asphyxiation.

The trial court would not permit defendant's pathologist to testify that the victim's death could have resulted from "mal-intubation." In doing so, the court relied on Rose v. State, 591 So.2d 195 (Fla. 4th DCA 1991). Rose is factually distinguishable from this case because in Rose it was undisputed that the injury, which was apparently untreated, resulted in death. Rose relied on Johnson v. State, 64 Fla. 321, 59 So. 894, 895 (1912), in which the court stated:

A defendant cannot escape the penalties for an act which in point of fact produces death, which death might possibly have been averted by some possible mode of treatment. The true doctrine is that, where the wound is in itself dangerous to life, mere erroneous treatment of it or of the wounded man suffering from it will afford the defendant no protection against the charge of unlawful homicide. See, also, Wharton on Homicide (3d Ed.) § 35, wherein it is said that the subsequent neglect or mismanagement must have been the sole cause of death.

Defendant's expert was unable to say, on the extensive proffer of his testimony, that the "mal-intubation" was the sole cause of the victim's death. He testified that the cause of death was deprivation of oxygen because of mal-intubation and blunt trauma, "probably both." He did testify that the various injuries sustained by the victim in the beating were not life threatening.

The trial court was persuaded by the state that under Rose and Johnson, if the defendant's actions put the stream of events in motion, the medical treatment cannot be the sole cause of death, and evidence of maltreatment is inadmissible. If that were really what our supreme court meant in Johnson, then this type of evidence would never be admissible, because in every case there would be no medical treatment but for the crime. In a case in which a victim's jaw was fractured in a battery, but the victim died as a result of subsequent negligent administration of anesthesia, the defendant could be charged with a homicide and would be precluded from proving that he did not cause the death. The issue in this case is not, as it appears to have been in some of the cases cited in Rose, whether the defendant should have been exonerated by the court because there was another cause of death. Appellant is seeking to admit evidence relevant only to the issues of whether (1) the beating was so severe that it was the product of a depraved mind, an element of second degree murder; and (2) the beating caused the death.

We conclude that Johnson, in which our supreme court adopted the principle that the subsequent treatment must have been the sole cause of death, did not involve admissibility of evidence, but was rather a case in which the defendant was seeking a court-ordered acquittal on the homicide charge. We come to that conclusion because the Johnson court adopted the rule from Daughdrill v. State, 113 Ala. 7, 21 So. 378 (1897), in which the issue was whether the jury should have been given an instruction based on deficient medical treatment. That instruction would have directed the jury to acquit if the State had not proved beyond a reasonable doubt that it was the knife wound, not the treatment, which killed the victim.

Limiting the admissibility of evidence of maltreatment to cases in which the treatment was the sole cause of the death would, in our opinion, be inconsistent with the following principle reiterated by the Florida Supreme Court in Rivera v. State, 561 So.2d 536, 539 (Fla.1990): "[W]here evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant's guilt, it is error to deny its admission." See also Vannier v. State, 714 So.2d 470, 472 (Fla....