State v. Ulin

• Decision Date: 30 March 1976
• Docket Number: No. 3172,3172
• Citation: 548 P.2d 19,113 Ariz. 141
• Parties: STATE of Arizona, Appellee, v. John Thomas ULIN, Appellant.
• Court: Arizona Supreme Court

Page 19

548 P.2d 19

113 Ariz. 141

STATE of Arizona, Appellee, v. John Thomas ULIN, Appellant.

No. 3172.

Supreme Court of Arizona, In Banc.

March 30, 1976.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer III, and Lynn Hamilton, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by Rudolph J. Gerber, Deputy Public Defender, Phoenix, for appellant.

HAYS, Justice.

John Thomas Ulin was convicted of second degree murder and sentenced to a term of ten years to life in the Arizona State Prison. This court has jurisdiction pursuant to the Ariz.Const. art. 2, § 4 and art. 6, § 5, and A.R.S. § 12--120.21.

Appellant was accused of beating to death his four-year-old stepdaughter.

On August 29, 1974 appellant and his wife were residing with the daughters of the wife's former marriage, one of whom was the victim. That morning appellant could not find his comb. When the girls were unable to find it, he punished them. The babysitter heard the sounds of smacks and cries coming from a bedroom. The girls were further punished by being made to spend the rest of the day in bed.

Late in the day appellant went to the victim's bedroom and found she had wet the bed. Appellant became extremely upset. He jerked the covers to remove her and she landed on the carpeted floor. Again the babysitter heard smacks and cries coming from the girls' bedroom. The victim was hit with such force that she urinated and had a bowel movement.

A few hours later the victim was found to be in an unconscious state. She was taken to the hospital. Within the next twenty-four hours her condition deteriorated. A craniotomy was performed to reduce pressure caused by the swelling of the brain. Shortly thereafter the victim died.

The Maricopa County Medical Examiner found large bruises all over the victim's head region, as well as the rest of the body. In the doctor's opinion, the child died as a result of the head injuries. He further testified it would have taken three strong blows, a fall from a considerable height, or an auto accident to have caused this type of skull injury.

This appeal raises the following issues:

1. Was the trial judge correct in refusing the requested instructions regarding medical malpractice as an independent intervening cause of death?

2. Did the trial court err in refusing to permit defense counsel to cross-examine and/or impeach his own witness?

3. Did the trial court err in failing to instruct the jury on voluntary manslaughter?

4. Was the instruction on second degree murder improper?

5. Did the trial court err in permitting the defendant's ex-wife to testify as to statements made to her by defendant during their marriage?

Appellant's primary defense was that the physician's intervening negligence was the proximate cause of the victim's death. Extensive medical testimony was presented. The defense submitted a series of jury instructions on the effect of medical malpractice as an intervening cause. The request for these instructions was denied.

'A defendant is entitled to an instruction on his theory of the case if reasonably supported by the evidence.' State v. Miller, 108 Ariz. 441, 445, 501 P.2d 383, 387 (1972).

Defendant's theory was not reasonably supported by the evidence.

Generally, one who unlawfully wounds another is held to the consequences flowing from such injury. Other contributing causes relieve the wrongdoer of the death of a victim only if they are the proximate cause of death. Drury v. Burr, 107 Ariz. 124, 483 P.2d 539 (1971). The rationale is that everyone is held to contemplate, and to be responsible for, the natural consequences of his own act. Wharton's Criminal Law and Procedure, vol. 1, p. 449 (1958).

Medical aid is a natural consequence flowing from a physical injury. Once an accused inflicts the injury which necessitates medical attention, he is held to assume certain risks attendant thereto.

Before a physician can be substituted for an accused as the proximate cause of death, he must have committed medical malpractice.

In a criminal setting, medical malpractice will break the chain of causation initiated by the accused, becoming the proximate cause of death, if it constitutes negligent and unskillful treatment and becomes the sole cause of death. State v. Myers, 59 Ariz. 200, 125 P.2d 441 (1942).

The question now becomes whether the physician's treatment of the victim was negligent and the sole cause of her death.

The victim was in serious shape when she was admitted into the hospital. Although given treatment, her condition grew steadily worse. Prior to surgery she was moribund and beyond retrieve. The treating physician performed a craniotomy; a surgical procedure used to take pressure off the brain. Shortly thereafter the victim died. The medical examiner testified that the victim died of head injuries. He further stated death would have occurred even if the craniotomy successfully relieved the pressure.

Defense counsel called as an expert witness the neurological surgeon who assisted in the operation. The expert testified that had an angiogram been given prior to surgery, plus additional medication, the victim's chances of survival might have improved from nothing to at best ten percent.

A doctor is not negligent for mere mistakes in judgment, but is liable where his treatment falls below the recognized standards of good medical practice in the community in which he practices. Kalar v. MacCollum, 17 Ariz.App. 176, 496 P.2d 602 (1972); and Almli v. Updegraff,8 Ariz.App. 494, 447 P.2d 586 (1968).

There was no evidence of negligence, nor that the doctor's treatment fell below recognized standards. At the most, appellant showed that an alternate mode of treatment may have increased the victim's chances to survive by ten percent. The doctor's treatment was clearly free from the degree of negligence required to become the sole cause of death. Thus the chain of causation leading from appellant's wrongful act to the victim's death was not broken.

A theory proposed by a party does not govern the giving of instructions, since theories are valueless unless reasonably supported by the evidence. The evidence was insufficient to support instructions on the effects of malpractices an an independent intervening cause. We find no error.

Second, appellant sought unsuccessfully to cross-examine his own witness. Defense counsel called the treating physician to testify as to his alleged medical negligence. The court was asked to declare him hostile or alternatively to call the doctor as the court's witness. Both requests were denied. Appellant contends this was error. There is no merit to this argument. Generally, one may not cross-examine his own witness. 'A trial court has broad discretion to permit one to cross-examine his own witness upon an adequate showing that the witness was hostile to the party calling him.' State v. Michael, 103 Ariz. 46, 436 P.2d 595, 601 (19...