Johnson v. State

• Decision Date: 23 July 1992
• Docket Number: No. 77831,77831
• Citation: 602 So.2d 1288
• Parties: Jennifer Clarice JOHNSON, Petitioner, v. STATE of Florida, Respondent. 602 So.2d 1288, 61 U.S.L.W. 2100, 17 Fla. L. Week. S473
• Court: Florida Supreme Court

Page 1288

602 So.2d 1288

Jennifer Clarice JOHNSON, Petitioner, v. STATE of Florida, Respondent.

No. 77831.

602 So.2d 1288, 61 U.S.L.W. 2100, 17 Fla. L. Week. S473

Supreme Court of Florida.

July 23, 1992.

Louise F. Melling and Eric Lieberman of Rabinowitz, Boudin, Standard, Krinsky & Lieberman, for The Nat. Emergency Civ. Liberties Committee, Lynn M. Paltrow, for American Civ. Liberties Union Foundation, New York City, James Sweeting, III, Orlando, and James K. Green for American Civ. Liberties Union Foundation of Florida, Inc., West Palm Beach, for petitioner.

Robert A. Butterworth, Atty. Gen. and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for respondent.

Stephan E. Lawton and Thomas N. Bulleit, Jr. of Hogan & Hartson, Washington, D.C., David Orentlicher, for American Medical Ass'n, Chicago, Ill., and John E. Thrasher for Florida Medical Ass'n, Inc., Jacksonville, amicus curiae for The American Medical Ass'n, The American Academy of Pediatrics, The American College of Obstetricians and Gynecologists, and The Florida Medical Ass'n.

Nadine Taub, Rutgers University, School of Law, Newark, N.J., and Jerri Blair of Lockett & Blair, P.A., Tavares, amici curiae for The American Public Health Ass'n, The American Medical Women's Ass'n, Inc., The American Nurses Ass'n, The American Society of Addiction Medicine, The American Society of Law & Medicine, The Ass'n of Maternal and Child Health Programs, The Bucks County Council on Alcoholism and Drug Dependence, The Center for Law and Social Policy, The Center for Science in the Public Interest, The Coalition on Alcohol and Drug Dependent Women, The Drug Policy Foundation, The Florida Chapter of the Nat. Organization for Women, The Florida Feminist Task Force, The Florida Nursing Students' Ass'n, The Illinois Alcoholism and Drug Dependence Ass'n, The Legal Action Center, The Louisiana Coalition for Maternal and Infant Health, The Mariposa Women's Center, The Monroe County Coalition for Choice, The Nat. Abortion Rights Action League, The Nat. Ass'n of Alcoholism and Drug Abuse Counselors, The Nat. Ass'n of Social Workers, The Nat. Black Women's Health Project, The Nat. Council on Alcoholism and Drug Dependence, The Nat. Council of Negro Women, Inc., The Nat. Latina Health Project, The Nat. Lawyers Guild, Southern Region, The Nat. Perinatal Ass'n, The Nat. Women's Health Network, Project Healthy Choices, The Winter Park Area Chapter of The Nat. Organization for Women (Winter Park Area NOW), and The Women's Legal Defense Fund.

Wendy K. Mariner, Boston, Mass., and Jary C. Nixon, Tampa, amicus curiae for The American Soc. of Law and Medicine.

Charlene Miller Carres, Tallahassee, amicus curiae for A Group of Florida legislators.

Dawn Euringer of Hayden & Milliken, P.A., Peggy Fisher, Barbara Greenof Freidin, Hirsh, Green & Gerrard, P.A., Marisa Tinkler Mendez of Black & Furci, P.A., Sally Richardson of Shutts & Bowen, Miami, and Jill Traina, Coral Gables, amicus curiae for Florida Ass'n for Women Lawyers, Dade County Chapter, Inc.

Alison B. Marshall of Miller, Canfield, Paddock and Stone, Washington, D.C., amicus curiae for Nat. Ass'n for Perinatal Addiction Research and Educ. (NAPARE).

HARDING, Justice.

We have for review Johnson v. State, 578 So.2d 419, 420 (Fla. 5th DCA 1991), in which the Fifth District Court of Appeal certified the following question as one of great public importance:

WHETHER THE INGESTION OF A CONTROLLED SUBSTANCE BY A MOTHER WHO KNOWS THE SUBSTANCE WILL PASS TO HER CHILD AFTER BIRTH IS A VIOLATION OF FLORIDA LAW?

Our jurisdiction is based on article V, section 3(b)(4) of the Florida Constitution, and we answer the certified question in the negative.

The issue before the court is whether section 893.13(1)(c)(1), Florida Statutes (1989), permits the criminal prosecution of a mother, who ingested a controlled substance prior to giving birth, for delivery of a controlled substance to the infant during the thirty to ninety seconds following the infant's birth, but before the umbilical cord is severed.

Johnson presents four arguments attacking the applicability of section 893.13(1)(c)(1) to her conviction: 1) the district court's interpretation of the statute violates the legislature's intent; 2) the plain language of the statute prevents her conviction; 3) the conviction violates her constitutional rights of due process and privacy; and 4) the State presented insufficient evidence to show that she intentionally delivered cocaine to a minor. The Court received amicus briefs on Johnson's behalf from the American Medical Association, the American Public Health Association, the American Society of Law and Medicine, a group of Florida legislators, the Florida Association of Women Lawyers, and the National Association for Perinatal Addiction Resources and Education. The State contends that the district court correctly found that the statute's plain language prohibits the delivery of the controlled substance to a minor, and that the conviction does not violate Johnson's constitutional rights.

We adopt Judge Sharp's analysis concerning the insufficiency of the evidence to support Johnson's conviction and her analysis concerning the legislature's intent in section 893.13(1)(c)(1). However, we note that Judge Sharp's analysis did not clearly state the rules of statutory construction in the criminal context. Although Judge Sharp correctly applied the rule of strict construction, she failed to apply the other paramount rule of criminal statutory construction, the rule of lenity. Sec. 775.021(1), Fla. Stat. (1989).

The rules of statutory construction require courts to strictly construe criminal statutes, and that "when the language is susceptible to differing constructions, [the statute] shall be construed most favorably to the accused." Sec. 775.021(1). In strictly construing criminal statutes, we have held that only those terms which are " 'clearly and intelligently described in [a penal statute's] very words, as well as manifestly intended by the Legislature' " are to be considered as included in the statute. State v. Wershow, 343 So.2d 605, 608 (Fla.1977), quoting Ex parte Amos, 93 Fla. 5, 112 So. 289 (1927). We find that the legislative history does not show a manifest intent to use the word "delivery" in the context of criminally prosecuting mothers for delivery of a controlled substance to a minor by way of the umbilical cord. This lack of legislative intent coupled with uncertainty that the term "delivery" applies to the facts of the instant case, compels this Court to construe the statute in favor of Johnson. The text of Judge Sharp's dissent is as follows:

Johnson appeals from two convictions for delivering a controlled substance to her two minor children in violation of section 893.13(1)(c)1., Florida Statutes (1989). ¹ The state's theory of the case was that Johnson "delivered" cocaine or a derivative of the drug to her two children via blood flowing through the children's umbilical cords in the sixty-to-ninety second period after they were expelled from her birth canal but before their cords were severed. The application of this statute to this concept of "delivery" presents a case of first impression in this state. Because I conclude that section 893.13(1)(c)1. was not intended to apply to these facts, I would vacate the convictions and remand for the entry of a judgment of acquittal.

The record in this case establishes the following facts. On October 3, 1987, Johnson delivered a son. The birth was normal with no complications. There was no evidence of fetal distress either within the womb or during the delivery. About one and one-half minutes elapsed from the time the son's head emerged from his mother's birth canal to the time he was placed on her stomach and the cord was clamped.

The obstetrician who delivered Johnson's son testified he presumed that the umbilical cord was functioning normally and that it was delivering blood to the baby after he emerged from the birth canal and before the cord was clamped. Johnson admitted to the baby's pediatrician that she used cocaine the night before she delivered. A basic toxicology test performed on Johnson and her son was positive for benzoylecgonine, a metabolite or "breakdown" product of cocaine.

In December 1988, Johnson, while pregnant with a daughter, suffered a crack overdose. Johnson told paramedics that she had taken $200 of crack cocaine earlier that evening and that she was concerned about the effects of the drug on her unborn child. Johnson was then taken to the hospital for observation.

Johnson was hospitalized again on January 23, 1989, when she was in labor. Johnson told Dr. Tompkins, an obstetrician, that she had used rock cocaine that morning while she was in labor. With the exception of finding meconium stain fluid in the amniotic sack, ² there were no other complications with the birth of Johnson's baby daughter. Approximately sixty-to-ninety seconds elapsed from the time the child's head emerged from her mother's birth canal until her umbilical cord was clamped.

The following day, the Department of Health and Rehabilitative Services investigated an abuse report of a cocaine baby concerning Johnson's daughter. Johnson told the investigator that she had smoked pot and crack cocaine three to four times every-other-day throughout the duration of her pregnancy with her daughter. Johnson's mother acknowledged that Johnson had been using cocaine for at least three years during the time her daughter and son were born.

At Johnson's trial, Dr. Tompkins testified that a mother's blood passes nutrients, oxygen and chemicals to an unborn child by a diffusion exchange at the capillary level from the womb to the placenta. The umbilical cord then circulates the baby's blood (including the exchange from its mother) between the placenta and the child. Metabolized cocaine derivatives in the mother's blood thus diffuse from the womb to the placenta, and then reach the baby...