State v. Cousin

• Decision Date: 27 September 1982
• Citation: 5 Ohio App.3d 32,449 N.E.2d 32,5 OBR 34
• Parties: , 5 O.B.R. 34 The STATE of Ohio, Appellee, v. COUSIN, Appellant. *
• Court: Ohio Court of Appeals

Page 32

5 Ohio App.3d 32

449 N.E.2d 32, 5 O.B.R. 34

The STATE of Ohio, Appellee, v. COUSIN, Appellant. ^*

Court of Appeals of Ohio, Third District, Seneca County.

Sept. 27, 1982.

Syllabus by the Court

1. R.C. 313.19 makes the coroner's verdict and death certificate the "legally accepted manner and mode in which such death occurred, and the legally accepted cause of death" only as to the physiological cause of death and the immediate mechanical, chemical or biological means by which death was caused, but does not extend to the determination of the criminal responsibility of any human agency involved in the causal chain.

2. In a criminal trial the function of the coroner is ultimately that of an expert witness, who expresses an opinion on a matter within the scope of his expertise, and not that of the courts which apply law to facts and assign criminal responsibility under the law.

3. Where circumstantial evidence alone is used to establish an element of the crime, the evidence must be such as to exclude any reasonable theory of innocence.

4. An alternative theory of innocence must be reasonable and it is a jury question where the alternative theory must be based upon testimony which is subject to rejection on grounds of credibility.

Thomas R. Spellerberg, Pros. Atty., and Elaine J. Knutson, Tiffin, for appellee.

Randall M. Dana, Public Defender and Jody Gabriel, Columbus, for appellant.

COLE, Presiding Judge.

This is an appeal from a judgment of conviction and sentence of the appellant by the Court of Common Pleas of Seneca County for the offense of voluntary manslaughter in violation of R.C. 2903.03(A). The defendant-appellant, Joselyn Cousin, asserts three assignments of error:

I. It is asserted that it is grounds for reversal when an indictment charging the defendant with murder is founded upon a death which has been determined by the county coroner to have been an accidental death and which ruling was not the subject of an operative order by the court of common pleas for a change thereof.

This general objection was the basis for a motion to dismiss early in the proceedings before the court of common pleas and essentially the assignment of error asserts that the trial court erred in not granting this motion.

The appellant's argument in support of this position is predicated upon the wording of R.C. 313.19 which reads as follows:

"The cause of death and the manner and mode in which the death occurred, as delivered by the coroner and incorporated in the corner's verdict and in the death certificate filed with the division of vital statistics, shall be the legally accepted manner and mode in which such death occurred, and the legally accepted cause of death, unless the court of common pleas of the county in which the death occurred after a hearing, directs the coroner to change his decision as to such cause and manner and mode of death."

In the present case the death certificate issued for Jimmy Joe White, the decedent, and the report of the coroner's inquest were both attached as exhibits to the motion to dismiss. In the death certificate under "cause of death" appears (on a state of Michigan Department of Health form):

"Immediate cause: cardiac tamponade and hypovolemic shock with left hemothorax.

"Due to or as a consequence of alcohol intoxication, stab wound left chest.

"Due to or as a consequence of personality disorder."

The use of a Michigan form was later explained by the fact that although death occurred in the city of Fostoria the decedent was a resident of Detroit. A similar certificate on an Ohio form was an exhibit at trial.

At item 25 appears the word "accident." The "date of injury" was February 24, 1981, at 5:24 p.m. and under "describe how injury occurred" appears "accidentally stubed [sic ] in a strugle [sic ] by the common law" [sic ].

In the report of the coroner's inquest appears the following:

"The deceased, Jimmy J. White, 6'4"' tall, heavily build, drunk (alcohol level .245) was pulling slightly bend over Ms. Joselin [sic ] Marie Cousin, 5' 2"" tall, toward himself, while she resisted with her right forearm, pushing herself away from him against his left chest. She did not realize or was aware of that she did have a knife in her right had [sic ] as she walked out of the kitchen while preparing supper. The knife during this struggle held by Miss Cousins [sic ] pierced the skin, the cartilage of the 2nd vertebrae and penetrated suddenly about four inches cutting into ascending aorta. The event was sudden, not realized by either person in the struggle. Mr. White started to walk toward the steps, stated he was hurt, turned back, grabbed Miss Cousins [sic ] by the neck in half Nelson, then slumped, avoiding falling on the two small children. On inspection of the scene and inquiry of police and EMS technicians first on the scene confirmed that this was a woman that called an ambulance because she stabbed the man.

"The subsequent inquiry of the only eyewitness on 2-26-81 (see enclosed) provided no inconsistent answers to the evidence on the scene. The 14"' taller man, capable of defense could not be stabbed downward at that heighth [sic ], hardly accessable [sic ] to the accused.

"The emotional reaction to the accidental deathly injury showed no iota of delay in securring [sic ] help and quite appropriate hysterical and grief reactions."

The verdict was "accidental."

It is contended that the coroner's determination of accidental death made this the "legally accepted manner and mode in which such death occurred, and the legally accepted cause of death" in the absence of action pursuant to the statute and an indictment could not be based on this death.

The trial court overruled the motion based on this argument stating that the coroner's finding of the cause of death is "a professional opinion which can be challenged."

This statute has been twice declared to be unconstitutional as applied to civil actions. State, ex rel. Dana, v. Gerber (1946), 79 Ohio App. 1, 70 N.E.2d 111 ; Roark v. Lyle (C.P.1953), 68 Ohio Law Abs. 177, 180 .

Both decisions are concerned with the attempt by the legislature to, in effect, vest judicial power in the coroner subject to the vague and indefinite procedure for apparent review by the court of common pleas. Section 1 of Article IV of the Ohio Constitution states:

"The judicial power of the state is vested in a supreme court, courts of appeals, courts of common pleas and divisions thereof, and such other courts inferior to the supreme court as may from time to time be established by law."

The office of coroner is in no place designated by the legislature as constituting a court. The determination of criminal responsibility is necessarily a judicial function and, if this section be interpreted as appellant would urge, then the coroner could prevent the normal operation of the courts in determining criminal responsibility for death. However, we do not believe it need be so interpreted.

The statute speaks of "manner and mode" of death and of "cause" of death and the real issue is what this requires. In our opinion the scope and meaning of these terms must be ascertained in the light of the entire section pertaining to the office of the coroner.

Under R.C. 313.02, certain professional training and qualification as a physician are the basic qualifications for the office. The coroner is charged with autopsies and making certain medical findings. Bodies are buried or cremated ultimately and examination immediately by a qualified expert is quite essential to make determination of the causes of death while the evidence is available. But this pertains to the medical or physiological cause of death and it is reasonably clear why this determination could be given a presumption of validity. This constitutes a medical opinion on a medical question. The evidence necessary to the determination is only available during a relatively short period, and the matter is peculiarly within the special area of expertise of the coroner.

The mode or manner can refer to the surrounding physical mechanisms associated with the death, as for example, the thrust of a knife, the course of a bullet or the blow of a blunt instrument. Such things are intimately associated with the causal chain leading to the physiological change that resulted in death. However, this is as far as the assigned quality of expertise required for a coroner may go. The assigning of ultimate causes, human intents and criminal responsibility is a matter for a different agency of inquiry, and is ultimately the subject matter of judicial inquiry. To say that the coroner is empowered by R.C. 313.19 to forestall prosecution, prevent further inquiry by prosecutors and police and grand juries from indicting is to interpret the section far more broadly than is warranted or required. We would conclude that limiting the meaning of "cause, manner and mode" to the immediate physical and physiological mechanisms involved in the death is fully compatible with the skills of the coroner, his required expertise and with the clearly evident necessities of the situation. As to human causation and criminal responsibility--these fall outside his area of expertise and to lend to his ventures into this area any degree of finality or presumption of correctness, we believe, goes far beyond the scope of the statute and is wholly inconsistent with the general patterns of law enforcement and justice.

We would note that in R.C. 313.09, pertaining to records of the coroner, appears the following:

"* * * The coroner shall promptly deliver, to the prosecuting attorney of the county in which such death occurred, copies of all necessary records relating to every death in which, in the judgment of the coroner or prosecuting attorney further investigation is advisable." (Emphasis added.)

This indicates the legislature contemplates further investigation by the prosecutor irrespective of the opinion of the coroner.

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