State v. Amaro, 81-38-M

• Decision Date: 06 August 1982
• Docket Number: No. 81-38-M,81-38-M
• Citation: 448 A.2d 1257
• Parties: STATE v. William AMARO. P.
• Court: Rhode Island Supreme Court

Page 1257

448 A.2d 1257

STATE v. William AMARO.

No. 81-38-M.P.

Supreme Court of Rhode Island.

Aug. 6, 1982.

Dennis J. Roberts II, Atty. Gen., John J. McMahon, Sp. Asst. Atty. Gen., for plaintiff.

Dolbashian, Chappell, Chace & Forte, Paul M. Chappell, Portsmouth, Mandell, Aisenberg & Goodman, Martin W. Aisenberg, Mark S. Mandell, Providence, for American Civil Liberties Union as amicus curiae.

OPINION

MURRAY, Justice.

On February 21, 1979, an automobile driven by the defendant, William Amaro, collided with a vehicle driven by Kathleen Kenney, who was nine-months pregnant at the time. Immediately after the accident Mrs. Kenney was taken to Newport Hospital where she delivered a stillborn female fetus.

On September 11, 1979, defendant was charged by information with violating G.L.1956 (1969 Reenactment) § 31-27-1, as amended by P.L.1978, ch. 208, § 2, the Rhode Island vehicular-homicide statute. On November 14, 1979, defendant filed a motion to dismiss the information. The trial justice denied the motion, and defendant filed a petition for a writ of certiorari, which we granted on February 26, 1981.

The question presented by this case is a narrow one--whether a fetus is a "person" within the meaning of § 31-27-1. The statute, entitled "Driving so as to endanger, resulting in death," provides in pertinent part:

"(a) When the death of any person ensues as a proximate result of an injury received by the operation of any vehicle in reckless disregard of the safety of others, the person so operating such vehicle shall be guilty of 'driving so as to endanger, resulting in death.' "

The defendant argues that there is nothing in Rhode Island case or statutory law which would support the view that the term "person" in a criminal statute may be construed to mean a fetus. To do so, defendant asserts, would be to deprive him of fair warning of the conduct that the Legislature meant to proscribe when it enacted § 31-27-1; thus, his conviction under that statute would infringe upon the due-process rights guaranteed by the Fourteenth Amendment to the United States Constitution. The defendant also points out that although a different Superior Court justice reached an opposite conclusion in a criminal case involving § 31-27-1 in 1971, the Legislature did not act to amend § 31-27-1. The defendant further notes that the Legislature did, however, enact G.L.1956 (1981 Reenactment) § 11-23-5, as enacted by P.L.1975, ch. 231, § 1, which made it a crime willfully to kill "an unborn quick child" under certain circumstances. The defendant also argues that the Legislature has demonstrated its willingness to include the unborn quick child within the definition of "person" but did not do so. This lack of action, defendant contends, supports his position that the term "person" in § 31-27-1 does not include a fetus.

In its brief, the state argues that the trial justice's decision is supported by Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976) (holding that an unborn fetus was a "person" under the Rhode Island wrongful-death statute whether or not the fetus was viable at the time of the injury). We are also urged to reject defendant's "fair warning" argument on the ground that his conduct was criminal regardless of the nature or age of the victim. The state urges us to extend the holding in Presley to § 31-27-1 and to uphold the trial justice's refusal to dismiss the criminal information against defendant.

A brief was also filed in this matter by the American Civil Liberties Union, Rhode Island Affiliate (ACLU), as amicus curiae. The ACLU argues that since § 31-27-1 is a penal statute, it must be strictly construed and that any ambiguity about whether the offense charged falls within the ambit of the statute must be resolved in favor of the defendant. The ACLU argues that this court's decision in Presley, interpreting a civil wrongful-death statute, cannot be used to interpret the term "person" in a criminal statute, for words in remedial statutes are construed in their broad and general sense whereas words in penal statutes must be read narrowly. The ACLU further argues that at the time the Legislature enacted § 31-27-1 in 1950, the accepted common-law notion was that a fetus was not a "person" and could not be the subject of a prosecution for homicide unless it was first born alive. Finally, the ACLU points out that the Legislature had indicated that it is capable of distinguishing between an unborn child and a person born alive since it has enacted statutes--concerning workers' compensation and feticide--which acknowledge this distinction. For these reasons the ACLU concludes that the term "person" in the vehicular-homicide statute could not have been intended by the Legislature to mean an unborn fetus.

Clearly, the dispositive question in this case is whether the term "death of any person," as employed in § 31-27-1, includes the death of a fetus. The state correctly notes in its brief that a related issue was addressed by the plurality opinion in Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976). However, the state's argument that Presley is analogous to the instant case fails to account for an important distinction between the two cases.

General Laws 1956 (1969 Reenactment) § 10-7-1, the wrongful-death statute construed in Presley, was remedial in nature, and was thus properly subject to a liberal application. State v. Simmons, 114 R.I. 16, 327 A.2d 843 (1974). See Coletta v. State, 106 R.I. 764, 263 A.2d 681 (1970). In the instant case, however, we are concerned with a statute that is clearly penal in nature. Section 31-27-1 must therefore be narrowly construed and defendant must be given the benefit of any reasonable doubt as to whether the act charged is within the meaning of the statute. State v. Dussault, R.I., 403 A.2d 244 (1979); State v. Simmons, 114 R.I. 16, 327 A.2d 843 (1974).

In making this determination it is important to examine the state of the existing law when § 31-27-1 was enacted since the Legislature is presumed to be familiar both with this court's holdings, Little v. Conflict of Interest Commission of Rhode Island, R.I., 397 A.2d 884 (1979), and with the common law affecting the subject of the legislation. Loretta Realty Corp. v. Massachusetts Bonding & Insurance Co., 83 R.I. 221, 114 A.2d 846 (1955).

At common law, there could be no criminal conviction for homicide unless the fetus had been "born alive"; in other words, the fetus must have been totally expelled from the mother and have shown clear signs of independent vitality. See, e.g., Keeler v. Superior Court, 2 Cal.3d 619, 470 P.2d 617, 87 Cal.Rptr. 481 (1970); People v. Greer, 79 Ill.2d 103, 37 Ill.Dec. 313, 402 N.E.2d 203 (1980); State v. Dickenson, 23 Ohio App.2d 259, 263 N.E.2d 253 (1970), aff'd, 28 Ohio St.2d 65, 275 N.E.2d 599 (1971); People v. Guthrie, 97 Mich.App. 226, 293 N.W.2d 775 (1980); State v. Larsen, 578 P.2d 1280 (Utah 1978). See also, Roe v. Wade, 410 U.S. 113, 161-62, 93 S.Ct. 705, 731, 35 L.Ed.2d 147, 182 (1973). See generally, J. Dellapenna, The History of Abortion: Technology, Morality, and Law, 40 Univ.Pitt.L.Rev. 359 (1979).

The born-alive rule was well established at common law and had been indirectly acknowledged by this court by the time § 31-27-1 was enacted in 1950...