People v. Bonilla

• Decision Date: 19 September 1983
• Citation: 467 N.Y.S.2d 599,95 A.D.2d 396
• Parties: The PEOPLE, etc., Respondent, v. Robert BONILLA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 599

467 N.Y.S.2d 599

95 A.D.2d 396

The PEOPLE, etc., Respondent, v. Robert BONILLA, Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 19, 1983.

William E. Hellerstein, New York City (David Samel, New York City, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Michael Yoeli, Asst. Dist. Atty., Brooklyn, N.Y., of counsel), for respondent.

Before TITONE, J.P., and LAZER, GULOTTA, NIEHOFF and RUBIN, JJ.

RUBIN, Justice.

This appeal raises the question of whether a defendant who has inflicted a mortal wound on another person can escape a homicide conviction because of the acts of hospital doctors in removing the victim's kidneys and spleen for transplant and thereafter disconnecting life support systems. In essence, defendant's principal contention is that the People have not proven beyond a reasonable doubt that he "cause[d] the death" of the victim (Penal Law, § 125.00). Additionally, he claims that the trial court erred in not instructing the jury on the definition of death.

After considering all of the circumstances of this case, it is clear that the evidence adduced at trial was sufficient to support the jury verdict. The trial court's charge was meticulous and exhaustive and allowed for a full range of possible verdicts. Key concepts of intent and causation were presented. It was not reversible error for the trial court to have refused to define death.

The underlying physical facts constituting the crimes charged are not in dispute. Defendant was acquainted with a small-time marijuana dealer named Orlando Miranda also known as "Little Man". The two became enemies and apparently had several arguments. Defendant felt that Miranda was deliberately harassing and embarrassing him in front of his cohorts. Finally, on the evening of February 6, 1979, defendant saw Miranda outside of the cleaning store where defendant was employed, at which time Miranda gave him "a bad look". Prior to this, defendant had been drinking and had consumed somewhere between one and one and one-half quarts of rum with three other friends. Defendant borrowed a 32-caliber pistol from a friend, and went to the area where Miranda could normally be found. He located Miranda and kept him under observation for about two hours, waiting until he was alone. He then approached Miranda and attempted to buy some marijuana from him. An argument ensued and defendant pulled out the gun and fired at least twice at Miranda. One bullet entered the right earlobe, passed through the right side of the brain, bruising but not destroying the brainstem ¹, and came to rest in the left rear portion of the brain. The other bullet appears to have entered the body through the right shoulder and exited the left chest near the breastbone.

The defendant fled the scene and shortly thereafter, at about 10:30 P.M., a police car arrived. A police officer immediately radioed for an ambulance, but when none appeared within a few minutes, he placed Miranda in his police car and rushed him to Brookdale Hospital. When the victim arrived at the hospital emergency room, he was comatose, but had some slight reaction to noxious stimuli. Within minutes his condition deteriorated. He became totally unresponsive and remained so thereafter. He was placed on a respirator and various drug therapies were undertaken without result. On the following day, February 7, he was totally areflexic--completely unresponsive to all stimuli. His respiration and blood pressure were artificially supported. Two electroencephalograms (EEGs) ² were reported to be "flat". ³ Dr. Meyer Rosenberg, chief of neuro-surgery at the hospital, pronounced Miranda's condition to be cerebral death. Shortly thereafter the victim's mother signed a consent and Miranda's kidneys and spleen were removed for donation.

Investigation by the police ultimately led to defendant and, in April of 1979, he was arrested. He confessed twice to the shooting, first to a detective, and then to an Assistant District Attorney, waiving his right to an attorney in both instances. He was indicted and charged with murder in the second degree and criminal possession of a weapon in the second degree.

At trial the evidence as to the actual cause of death was provided by the Brookdale Hospital report, the autopsy report and the testimony of three physicians. Dr. Rosenberg, the attending physician, and Dr Milton Wald, the medical examiner, testified for the People and Dr. H. Richard Beresford testified for the defense. All three medical witnesses were highly qualified.

Dr. Rosenberg first saw Miranda on the morning of February 7, 1979, at around 9:00 A.M. Prior to examining him he had received a medical history. At the time of the examination Miranda was on a mechanical respirator. Dr. Rosenberg proceeded to subject him to a series of standard tests and found him to be totally areflexic, i.e., without reflex. Testimony revealed that these tests included: touching cotton to the eyeball to see if the eye closed; flashing light on the pupil to see if it would constrict; turning the head to one side to detect eye movement (doll's eye test); and pinching the side of the neck to see if the eye would dilate to the painful stimulus. Miranda was completely immobile and unresponsive to light or to any other stimulus. The doctor also tested Miranda for spontaneous respiration by disconnecting the mechanical respirator for two or three minutes. Miranda was unable to breathe without the aid of the machine and it was reconnected.

At trial, the doctor stated that he did not perform another common test known as the colonic or ice water test whereby a physician introduces ice water into the ear canal and watches for eye movement in the direction of this uncomfortable stimulus. Based on his previous experience with head injuries such as Miranda's, he considered the "constellation" of tests used sufficient. On the following day, February 8, 1979, Dr. Rosenberg went through some of the same tests once again, with identical results. By this time, he had also been notified of the results of two EEGs which confirmed his diagnosis. He accepted the oral report that they were flat though he did not personally evaluate the EEGs. After this final examination, Dr. Rosenberg pronounced Miranda "brain dead". Dr. Rosenberg testified that he had seen other gunshot wounds of the type that Miranda had received and to his knowledge no one had ever survived a wound or trauma of this nature. He attributed the direct cause of death to the gunshot wound and its secondary effect on the brain. Beginning at about 9:25 P.M., Miranda's kidneys and spleen were removed for transplant. Hospital records disclose that anesthesia was not used during the operation though the victim remained on the respirator.

Dr. Milton Wald, the medical examiner, testified that he performed the autopsy on Miranda on February 9, 1979. He detailed the locations of the bullet wounds, and noted the removal of the deceased's kidneys. He stated, repeatedly and without qualification, on both direct and cross-examination, that Miranda's death was solely attributable to the bullet wound to the skull and brain:

"Q Could you say specifically and unequivocally, doctor, that the death of Orlando Miranda was solely attributable to the gunshot wounds?

"A Yes, sir.

"Q You can say that?

"A Yes, sir.

"Q Unequivocally?

"A Yes.

"Q That's based upon your examination or is that also based upon the determination of brain death as received by you from Brookdale Hospital?

"A Without the determination of brain death. Without that.

"Q And without the transplant?

"A Without the transplant.

"Q Death was caused solely by the--

"A Gunshot wound of head and brain."

Dr. Wald described the sticky, soft texture of the victim's brain as being consistent with brain death. However, he could not specify when brain death occurred nor could he prognosticate how long Miranda would have survived in a vegetative state or otherwise were it not for other intervening factors.

Dr. H. Richard Beresford, both a physician and a lawyer, qualified as an expert witness for the defense in the field of medicine and neurology. He, of course, did not examine Miranda but he had inspected the Brookdale Hospital records and the autopsy report. He elaborated on certain tests which he felt were essential to an examiner in order for him to make a finding of brain death, and expressed the opinion that the tests that had been administered did not meet current neurologic criteria. Dr. Beresford voiced doubt as to whether Miranda was actually "brain dead" when he was so pronounced. He did not, however, testify that Miranda was alive at that time or that the surgery or removal from the respirator was the cause of death. His judgment was based on his evaluation of the hospital records which did not specify all of the diagnostic tests performed by Dr. Rosenberg. Two unlisted tests (the doll's eye test and the spontaneous respiration test), considered essential by Dr. Beresford, were actually performed.

Dr. Beresford admitted that there were varying criteria acceptable to the medical community for determination of brain death, with no single definitive procedure required. He disagreed with the method used by Dr. Rosenberg in testing for spontaneous respiration and with his evaluation of the two EEGs. Reading from the hospital record, he noted an entry concerning the first EEG stating that it was "normal". Dr. Rosenberg had relied on an oral report that this same EEG was "flat", indicating that there was no brain activity at that particular time. The second EEG exhibited "artefacts" which are signs of electrical activity. Dr. Beresford was not clear whether these artefacts could be attributed to a source other than the brain or if in fact this EEG was indeed "flat". The doctor further stated that the EEG was a means of measuring higher level brain function, and not a test that would exclusively...