People v. Flenon

• Decision Date: 29 August 1972
• Docket Number: Docket No. 11698,No. 1,1
• Citation: 202 N.W.2d 471,42 Mich.App. 457
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony FLENON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 471

202 N.W.2d 471

42 Mich.App. 457

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony FLENON, Defendant-Appellant.

Docket No. 11698.

Court of Appeals of Michigan, Division No. 1.

Aug. 29, 1972.

Leave to Appeal Denied Nov. 14, 1972.

Released for Publication Dec. 8, 1972.

Charles Campbell, Detroit, Carl Ziemba, Detroit (of counsel), for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Luvenia D. Dockett, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and McGREGOR and BRONSON, JJ.

BRONSON, Judge.

Defendant was convicted by jury verdict of murder in the first degree and sentenced to life imprisonment. M.C.L.A. § 750.316; M.S.A. § 28.548. He appeals this conviction as a matter of right raising several allegations of error.

In the early morning hours of March 21, 1970, defendant left a house in Detroit carrying a shotgun for the avowed purpose of 'getting back' at an unidentified person. He proceeded down the street until he encountered a group of persons including Carl Johnson, the deceased. Upon realizing the defendant had a gun, the group dispersed. Defendant chased the deceased, cornered him behind a parked car and shot him in the upper part of his leg.

Carl Johnson was rushed to a hospital where his right leg was amputated high above the knee because of the severity of the wound. Five weeks later, Carl Johnson was released and returned home. Within a short period of time he substantially weakened and was readmitted to the hospital where he died. The cause of death was found by the doctor performing the autopsy to be serum hepatitis and pneumonia.

Defendant's first allegation of error is that there was an insufficient causal connection between the gunshot wound and death by serum hepatitis to sustain his conviction. The causation necessary in a criminal case was enunciated by this Court in People v. Scott, 29 Mich.App. 549, 185 N.W.2d 576 (1971). Therein the Court reversed defendant's conviction for manslaughter since the jury was charged that guilt would result if defendant's acts were the 'proximate cause' of the deceased's death. The Scott Court found the following statement from another jurisdiction persuasive and incorporated it in the holding: ¹

"Tort liability concept of proximate cause has no proper place in prosecutions for criminal homicide and more direct causal connection is required for conviction." ²

Further guidance is provided by People v. Geiger, 10 Mich.App. 339, 346, 159 N.W.2d 383 (1968). The Geiger Court was confronted with evidence that defendant had beaten his wife and that she subsequently died of asphyxiation precipitated by choking to death on her own vomitus. The Geiger Court held that 'the evidence * * * would permit a jury to find that the injuries were "'reasonably calculated to cause death"' and that the wounds "'contributed mediately or immediately to the death."" ³ Thus, a defendant's conviction should only be sustained where there is a reasonable ⁴ and direct causal connection between the injury and death. ⁵

The causation problem in the instant case is compounded by defendant's allegation that serum hepatitis constituted an independent intervening cause suspending his liability. The concept of medical mistreatment becoming an intervening cause was considered in People v. Cook, 39 Mich. 236 (1878). ⁶ There the victim received medical treatment including the administration of morphine after being shot by defendant. Since the victim's death was attributed to the morphine, defendant claimed that this medicine produced death independent of the wound and suspended his liability. The Cook Court found that morphine was a proper and appropriate medicine given by competent and skillful physicians. The legal principles applied by the Cook Court depended upon whether the wound was considered mortal and were summarized by its statement that:

'In a case where the Wound is not mortal, the injured person may recover, and thus no homicide have been committed. If, however, death do result, the accused will be held responsible, unless it was occasioned, not by the wound, but by Grossly erroneous medical treatment. But where the Wound is a mortal one, there is no chance for the injured person to recover, and therefore the reason which permits the showing of death from medical treatment does not exist.' ⁷ (Emphasis added.)

Although the Cook Court did not clearly indicate the nature of the wound at issue, it concluded that the victim's death could not be attributed to the independent act of a third person. Failing to find the wound inflicted in the present case from which the deceased initially recovered to be mortal, the type of medical treatment rendered requires further inquiry.

The Court in People v. Cook, Supra, terminated the defendant's responsibility only if the medical treatment was Grossly erroneous. This principle was affirmed by the Court's statement in People v. Townsend, 214 Mich. 267, 278--279, 183 N.W. 177 (1921), that:

"He who inflicted the injury is liable even though the medical or surgical treatment which was the direct cause of the death was Erroneous or unskilful, or although the death was due to the negligence or failure by the deceased to procure treatment or take proper care of the wound." (Emphasis added.)

This standard which requires something more than ordinary negligence before exculpating a defendant is sound. ⁸ The concept of an intervening cause is predicated upon foreseeability. ⁹ Since humans are not infallible, a doctor's negligence is foreseeable and cannot be used by a defendant to exonerate himself from criminal liability.

An application of these standards to the instant case requires an understanding of the alleged intervening cause. The only expert witness testifying at trial was offered by the people. This witness discussed the disease of serum hepatitis and opined that the deceased contracted this disease from the blood transfusion received during the operation to amputate his leg. After indicating that the deceased received a total of 11 pints of blood during medical treatment, he testified that there was a 100 percent possibility of Exposure to the disease after receipt of six pints of blood. The incidence of death after such exposure is .01 percent to three percent. ¹⁰ This testimony leads us to the conclusion that the victim's exposure to serum hepatitis upon receiving a blood transfusion necessitated by the injury inflicted by the defendant is clearly foreseeable. Whether the victim contracts the disease and dies depends upon his susceptibility to it. Defendant must take his victim as he finds him and may not escape liability because a majority of the people are able to withstand contraction of the disease or death following such contraction. This disease injected through medical intervention is similar to the injection of morphine causing death in the Cook case and cannot itself constitute an intervening cause.

The medical evidence concerning this disease similarly precludes a finding that the medical profession's inability to prevent or cure such a prevailing disease constitutes gross mistreatment or an intervening cause. This disease cannot be cultured, precluding experimental testing except by human volunteers, is impossible to detect or screen out from blood, and its cause is currently unknown. ¹¹ The justifiable conclusion based upon this data is that serum hepatitis is an unavoidable risk indigenous to blood transfusions.

Notwithstanding this conclusion, we are not unaware that a new trend in civil law is developing which permits damages against doctors, hospitals, and blood centers for the contraction of serum hepatitis from a blood transfusion. ¹² Although recovery has been based upon the theories of negligence, breach of warranty, and strict liability, ¹³ such is insufficient to constitute an intervening cause Vis-a-vis criminal liability. The policy considerations permitting recovery by persons contracting serum hepatitis against another responsible for placing blood carrying that disease into the market place are not applicable to a defendant. A deceased's civil cause of action for injuries or death does not eliminate a defendant's responsibility for an injury which placed the deceased in a position of peril. If this Court conceded that the medical profession, its hospitals, or blood centers were negligent, such negligence would be unavailing to the present defendant. Negligence in failing to prevent the contraction of serum hepatitis would not reach the proportions of error necessary to satisfy the standard of grossly erroneous mistreatment announced above. The present record affords defendant no comfort and his claim of an intervening cause is rejected. ¹⁴

Defendant's second allegation of error challenges the trial judge's restrictions upon his cross-examination of the prosecution's expert witness. Upon direct examination the people's expert witness testified that serum hepatitis was a disease caused by a virus which destroys the liver. He indicated that infectious hepatitis and serum hepatitis were the two categories into which the virus is divided. The distinctions between the two types of virus are few. Infectious hepatitis has an incubation period from two to eight weeks, is transmitted through the mouth and intestinal tract and can be passed from person to person, thereby creating a public health problem. Serum hepatitis has an incubation period from two to six months, is transmitted through the bloodstream and is introduced through blood transfusions, vaccinations, tattooing, or injections. The color of deceased's body, diminished weight of his liver and fluid in his lungs led the medical expert to conclude that death was caused by hepatitis and pneumonia. The absence of needle marks on the victim's body or knowledge of other circumstances in which...