Sasaki v. Com.
| Decision Date | 06 October 1972 |
| Parties | Yasuo SASAKI, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
William H. Allison, Jr., Louisville, Robert Allen Sedler, Lexington, Ellen Mosen James, Louisville, for appellant.
John B. Breckinridge, Atty. Gen., M. Curran Clem, Asst. Atty. Gen., Frankfort, Frank Benton, III, Commonwealth Atty., Newport, for appellee.
Robert C. Cetrulo, Covington, Robert F. Greene, Burlington, for amicus curiae of Northern Kentucky Right to Life Committee.
GARDNER, Commissioner.
Dr. Yasuo Sasaki was convicted of the crime of using an instrument with intent to procure the miscarriage of a pregnant woman, a violation of KRS 436.020(1), and his punishment was fixed at $1,000 fine and one year and nine months in the reformatory. We affirm.
Kathleen Iatrides, a divorcee with two children, upon belief that she was pregnant consulted Dr. Sasaki, who confirmed her thoughts of pregnancy. As testified to by Mrs. Iatrides, Dr. Sasaki agreed to and did perform an abortion for a fee of $300. While Dr. Sasaki denied performing the abortion, he does not now raise the question of sufficiency of evidence to submit the case to the jury. His contentions are that the court erred in the selection of the jury and that the convicting statute is unconstitutional.
KRS 436.020 provides:
'(1) Any person who prescribes or administers to any pregnant woman or to any woman whom he has reason to believe pregnant, at any time during the period of gestation, any drug, medicine or other substance, or uses any instrument or other means, with the intent to procure the miscarriage of that woman, unless the miscarriage is necessary to preserve her life, shall be fined not less than five hundred dollars nor more than one thousand dollars, and confined in the penitentiary for not less than one nor more than ten years.
'(2) If, by reason of any of the acts described in subsection (1) of this section, the miscarriage of the woman is procured and she does miscarry, causing the death of the unborn child, whether before or after quickening time, the person violating the provisions of subsection (1) of this section shall be confined in the penitentiary for not less than two nor more than twenty-one years.
The voir dire examination was rather lengthy and meticulous. Appellant persistently asked individual members of the jury panel if they were Catholics and because of that had such religious scruples against abortions that they might be prejudiced against appellant simply because he was being tried for an offense involving an abortion. Four of the panel stated categorically that they were against abortions. As one put it, 'I don't believe in abortions, period.' They were excused for cause. Two members offered the comment that, if appellant hadn't performed the abortion he wouldn't be on trial. They were excused for cause. Appellant of course does not complain of error regarding the members of the panel who were excused but he insists the judge was in error in refusing to let him interrogate the remaining jurors, and that if he had been permitted to cross-examine them it might have developed that they, like others who were excused, were so prejudiced against any person being tried on an abortion charge they could not be unbiased jurors.
After eleven jurors were selected and appellant had used all peremptory challenges except one, the court summoned the attorneys to chambers but the record does not disclose what transpired. Upon return to open court the following colloquy took place:
The court then conducted the voir dire as follows:
Appellant insists that he was denied the right of examining jurors as guaranteed by RCr 9.38:
The court is of the opinion that appellant did not properly preserve the error, if there was one. Whether the result of the in-chambers conference was that appellant agreed to the court's handling the voir dire or whether appellant objected is not disclosed by the record. If there was an unfavorable ruling made in chambers, it was incumbent upon appellant to see to it that the proceedings were made a part of the record. We are of the opinion that appellant did not make known to the court the action which he desired the court to take nor his objection to the action of the court as required by RCr 9.22. In Blanton v. Commonwealth, Ky., 429 S.W.2d 407 (1968), where the defendant contended that the trial court's comments concerning parole prevented him from having a fair trial, we held that the error was not properly preserved for appellate review where the only objection to the comments was, 'Show my objection to the remarks regarding parole.'
It is also noted that the court's conduct of the voir dire, though somewhat abbreviated, continued to cover essentially the same line of questioning used by appellant with prior jurors. Without any objection from appellant, it might well be assumed that the court's questioning was satisfactory to appellant.
Appellant vigorously insists that KRS 436.020 is unconstitutional. The same arguments advanced here regarding the unconstitutionality of this statute were addressed to the federal court wherein a three-panel district court held the statute was constitutional. See opinion written by Judge Mac Swinford, 344 F.Supp. 587, filed in the Eastern District of Kentucky, May 19, 1972. We find Judge Swinford's opinion so well written and dispositive of the issues raised here that we adopt the opinion as our own and copy it almost in full as follows:
'The plaintiffs make two primary constitutional attacks: (1) it is contended that the statute is too vague, and (2) it is argued that the statute is too broad in that it infringes upon certain fundamental rights of the plaintiffs. Additional constitutional arguments are made, however, it is the court's opinion that the arguments, to be discussed later, are not substantial.
'Kentucky Revised Statute 436.020 reads as follows: (The statute quoted is copied in full earlier in the opinion and will not be repeated here.)
'Plaintiff Crossen, a duly licensed and practicing obstetrician and gynecologist, alleges that the statute is unconstitutionally vague for the reason that it renders him criminally liable for performing a medical operation in terms too uncertain to inform him of the proscribed conduct. More precisely it is argued that the phrase 'necessary to preserve her life' does not describe what the probability of a woman's death must be in order to legalize the performance of an abortion. Several examples are given where a pregnancy carried to term could result in a probable reduction of a woman's normal life span, but which would not result in her immediate demise. In other words, Dr. Crossen argues that there are relatively common medical situations where the woman is in no danger of imminent death, but where an abortion would help to assure the fulfillment of her normal life expectancy by preventing the exacerbation of existing health problems. Crossen contends that it is impossible, under the wording of the statute, to determine whether an abortion may be performed to save a woman from a future but untimely death, or whether such an operation may be performed within the strictures of the law only if it is necessary to save the woman from certain and imminent death. Put simply, is the phrase 'necessary to preserve her life' unconstitutionally nebulous?
'The accepted test in determining the required precision of statutory language imposing criminal liability is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Anderson v. United States, 215 P.2d 84 (6 Cir. 1954); and Roberts v. United States, 226 F.2d 464 (6 Cir. 1955). This test is qualified to the extent that it is understood that the due process clause of the Constitution does not require impracticable or impossible standards of specificity. United States v. Carter, 311 F.2d 934 (6 Cir. 1963).
'The court is of the opinion that the phrase 'necessary to preserve her life' is not unconstitutionally vague, albeit perhaps technically imprecise. The phrase means, and is generally understood to mean, that an abortion is unavailable except if it is...
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