Hughes v. State

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: CHAPEL; LANE; JOHNSON, Vice P.J., and STRUBHAR; JOHNSON; STRUBHAR
• Citation: Hughes v. State, 868 P.2d 730, 1994 OK CR 3 (Okla. Crim. App. 1994)
• Decision Date: 24 January 1994
• Docket Number: No. F-92-1083,F-92-1083
• Parties: Treva Lanan HUGHES, Appellant, v. The STATE of Oklahoma, Appellee.

Page 730

868 P.2d 730

Treva Lanan HUGHES, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-92-1083.

Court of Criminal Appeals of Oklahoma.

Jan. 24, 1994.

An Appeal from the District Court of Oklahoma County; Eugene Mathews, District Judge.

Bill Pipkin, Moore, for appellant.

Evan Gatewood, Asst. Dist. Atty., Oklahoma City, for State.

Susan B. Loving, Atty. Gen., Jennifer Miller, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

CHAPEL, Judge:

On August 2, 1990, Appellant, Treva LaNan Hughes, while intoxicated, drove her vehicle into oncoming traffic and collided with another vehicle. The driver of the other vehicle, Reesa Poole, was nine months pregnant and expected to deliver in four days. The collision caused Poole's stomach to hit the steering wheel of her car with such force that the steering wheel broke. Poole was taken to a hospital where an emergency cesarean section was performed. When the baby was delivered, the only sign of life was an extremely slow heartbeat. A pediatrician immediately began resuscitation efforts, which were unsuccessful.

After a jury trial in the District Court of Oklahoma County before the Honorable Eugene Mathews, District Judge, Hughes was convicted, in Case No. CRF-90-4297, of First Degree Manslaughter under 21 O.S.1981, § 711(1) ("[h]omicide is manslaughter in the first degree ... [w]hen perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor"). The jury also convicted Hughes of Driving Under the Influence While Involved in a Personal Injury Accident, in violation of 47 O.S.Supp.1985, § 11-904. Hughes received an eight-year prison sentence for the manslaughter conviction and a six-month suspended sentence for the driving under the influence conviction.

Pursuant to the Rules of the Oklahoma Court of Criminal Appeals, Rule 11.3, 22 O.S.1993, Ch. 18, App., Hughes applied to be placed on the Accelerated Docket of this Court. A verified consent to placement on the Accelerated Docket was attached to the application. The propositions or issues were presented to this Court in oral argument on October 14, 1993, pursuant to Rule 11.5(c).

Hughes argues as her sole proposition of error that her manslaughter conviction should be reversed on the basis of the common law "born alive" rule. Because Oklahoma has neither altered nor abolished this remnant of the common law, it remains in effect pursuant to 22 O.S.1981, § 9. See also Elliott v. Mills, 335 P.2d 1104, 1111 (Okl.Cr.1959). Under the "born alive" rule, "[a] child can not be the subject of homicide until its complete expulsion from the body of the mother, and must be alive and have independent existence." 1 O. Warren, Warren on Homicide § 55 (1938). In this case of first impression, Hughes claims that the fetus Ms. Poole was carrying was not born alive and that its death cannot be considered a homicide. We now abandon the common law approach and hold that whether or not it is ultimately born alive, an unborn fetus that was viable at the time of injury is a "human being" which may be the subject of a homicide under 21 O.S.1981, § 691 ("Homicide is the killing of one human being by another").

The dissent adopts the State's position that the "born alive" rule would not prohibit a manslaughter conviction in this case because the fetus in question was born alive. It is asserted that the fetus had a heartbeat at birth and the Legislature has determined that any fetus born with a heartbeat is in fact born alive. While this argument is superficially appealing, it has no merit. The evidence presented at trial established that the baby was dead when delivered.

The fetus did have a weak heartbeat. It was, however, brain dead according to the doctor to whom it was handed immediately upon delivery. Additionally, according to the testimony, the fetus had no blood pressure, no respiration and did not respond to any resuscitative efforts. We are not prepared to hold that a brain dead fetus was alive when born simply because its heart was beating weakly. Moreover, the statute relied upon by the State is a "vital statistics" statute. See 63 O.S.Supp.1986, § 1-301(e). The State has an interest in reporting high incidence of live births. We will not overreach and extend a statute intended for statistical purposes to a homicide case where an individual's liberty is at stake.

Today's decision abandoning the "born alive" rule is based in significant part upon its origins, history and purpose. Common law authorities refer to the born alive rule as early as the 1300's. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 Valparaiso L.R. 563, 581 (1987). ¹ The born alive rule was necessitated by the state of medical technology in earlier centuries. Id. at 567.

In fact, as late as the nineteenth century, prior to quickening "it was virtually impossible for either the woman, a midwife, or a physician to confidently know that the woman was pregnant, or, it follows, that the child in utero was alive." Id. at 573. Hence, there was no evidence of life until quickening. Id.

Yet, the quickening of a fetus did not constitute proof that the fetus was alive in the womb at any particular moment thereafter. The health of a child within the womb could not be determined until the child was observed after birth. Id. at 575. "As a result, live birth was required to prove that the unborn child was alive and that the material acts were the proximate cause of death, because it could not otherwise be established if the child was alive in the womb at the time of the material acts." Id.

Advances in medical and scientific knowledge and technology have abolished the need for the born alive rule. Specifically, the medical and scientific evidence before us establishes that the child within Poole's womb was a living, viable fetus at the time of the collision and that this child died as a result of the placental abruption which occurred when Poole's stomach hit and broke the steering wheel of her car.

Although in the minority, two states have expressly rejected the born alive rule: Massachusetts and South Carolina. ² The Massachusetts court addressed the question of whether a viable fetus is a "person" under that state's vehicular homicide statute in Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984). In reaching its decision, the Cass court first acknowledged that it had previously held that a viable fetus was a person under the Massachusetts wrongful death statute. The court also noted that the legislature was presumed to have knowledge of judicial decisions and that the words of a statute are to be given their ordinary meaning. Id. 467 N.E.2d at 1325. The Cass court then reasoned that:

In keeping with approved usage, and giving terms their ordinary meaning, the word 'person' is synonymous with the term 'human being.' An offspring of human parents cannot reasonably be considered to be other than a human being, and therefore a person, first within, and then in normal course outside, the womb. As will be shown later in this opinion, heretofore the law has not recognized that the pre-born could be the victims of homicide because of difficulties in proving the cause of death; but problems in proving causation do not detract from the personhood of the victim.

Id. (Emphasis added). The court then concluded that, since the legislature was presumed to have knowledge of the court's earlier decision regarding the personhood of a viable fetus under the wrongful death statute, the legislature contemplated that a viable fetus would be a person under the subsequently enacted vehicular homicide statute. Id. 467 N.E.2d at 1325-26.

The Cass court also established an alternative rationale to support its decision, assuming that the legislature had not considered the issue. In that event, the court reasoned, the legislature intended the term "person" be defined by "reference to established and developing common law." Id. 467 N.E.2d at 1326. The court then rejected the born alive rule, stating:

The rule has been accepted as the established common law in every American jurisdiction that has considered the question. But the antiquity of a rule is no measure of its soundness. 'It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.' ... It is time to reexamine the grounds upon which this ancient rule was laid down.

The rationale offered for the rule since 1348 is that 'it is difficult to know whether [the defendant] killed the child or not....' ... That is, one could never be sure that the fetus was alive when the accused committed his act. However, difficulty of proving causation is no sound reason for denying criminal liability. Medical science now may provide competent proof as to whether the fetus was alive at the time of a defendant's conduct and whether his conduct was the cause of death. ... We do not consider [fear of speculation] a sufficient reason for refusing to consider the killing of a fetus a homicide.

We think that the better rule is that infliction of prenatal injuries resulting in the death of a viable fetus, before or after it is born, is homicide. If a person were to commit violence against a pregnant woman and destroy the fetus within her ³, we would not want the death of the fetus to go unpunished. We believe that our criminal law should extend its protection to viable fetuses.

Id. 467 N.E.2d at 1328-29 (citations omitted) (footnotes omitted).

One day later, South Carolina also rejected the born alive rule in State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984). As in Cass, the Horne court acknowledged that it had previously held that a viable fetus was a person in the context of a wrongful death action. The Horne court then stated that "[i]...