McCARTY v. STATE

McCARTY v. STATE
2002 OK CR 4
41 P.3d 981
73 OBJ 573
Case Number: CF-1999-1599
Decided: 02/05/2002
RYAN OWEN McCARTY, Appellant -vs- STATE OF OKLAHOMA, Appellee

[41 P.3d 983]

SUMMARY OPINION

JOHNSON, VICE PRESIDING JUDGE:

¶1 Appellant, Ryan Owen McCarty, was convicted by a jury of three counts of First Degree Murder, in violation of

¶2 Appellant raised the following propositions of error:

1. The evidence presented at trial was insufficient to sustain the convictions under the requirements of the fourteenth Amendment of the United States Constitution and under Article II, § 9 of the Oklahoma Constitution because the State presented insufficient independent evidence to corroborate the confessions of the Appellant;

2. The evidence presented by the State was insufficient to support the jury's verdict that Mr. McCarty was guilty of first degree Murder of Ms. Chisholm's unborn fetus;

3. Mr. McCarty was deprived of effective assistance of counsel in violation of the sixth and fourteenth amendments to the United States Constitution and Article II, §§ 7 and 20 of the Oklahoma Constitution;

4. The trial judge abused his discretion in defining viability in the manner chosen during Mr. McCarty's trial, thus violating Appellant's fourteenth Amendment rights to the United States Constitution and Article II, § 20 of the Oklahoma Constitution. Moreover, there is a void in both the statutes and uniform jury instructions regarding viability, thus necessitating this Court to properly define viability of a fetus;

5. Mr. McCarty's rights to due process and a fair trial under the sixth and fourteenth Amendments to the United States Constitution and corresponding provisions of the Oklahoma constitution were violated by the admission of highly prejudicial and inflammatory color photographs; and,

6. The accumulation of errors deprived Mr. McCarty of a fair trial.

¶3 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, briefs and exhibits of the parties, we have determined that relief is required on Appellant's second proposition of error for the reasons set forth below.

¶4 A state's interest in protecting fetal survival becomes compelling at viability. Spencer by and through Spencer v. Seikel,

¶5 In the Oklahoma statutes regulating abortion, see

¶6 The Oklahoma legislature has drawn a firm line as to intent with regard to imposing [41 P.3d 984] criminal liability for the death of a viable fetus. See

¶7 These statutes emphasize that before criminal liability for homicide of a fetus may be imposed, there must be a showing that the fetus was viable and potentially able to live outside of the womb of the mother, and the presumption of viability begins with a showing the fetus had attained a gestational age of 24 weeks.

¶8 Therefore (1) when the fetus has not attained viability and/or is less than 24 weeks gestation, a charge of first degree murder is not appropriate; (2) when the unborn child is not viable and/or is less than 24 weeks, but evidence shows the unborn child is "quick" within the mother's womb, liability may be imposed for manslaughter in the first degree (see

¶9 A criminal charge will not stand for causing the death of an unborn child who is not yet quick within its mother's womb.

¶10 At trial, two witnesses testified as to the gestational age of Ms. Chisholm's fetus. The physician attending her pregnancy testified the fetus was "around 22 weeks" gestation; the medical examiner testified the fetus was "approximately 22 to 23 weeks." The medical examiner testified the survival rate would be "very low" for such an underdeveloped fetus and gave the fetus a 10% to 20% chance of survival even with extensive medical care. The medical examiner looked up the "survivability rate" for a fetus in a medical textbook; he admitted that the book only contained survivability rates for fetuses beginning at 24 weeks and that he "made a slight extrapolation" to arrive at the survivability of a 22 week fetus.

¶11 The testimony and evidence, viewed in a light most favorable to the State, does not establish Ms. Chisholm's fetus was viable at the time of Ms. Chisholm's death or that it even was "presumptively viable" (having attained the gestational age of 24 weeks), and we therefore cannot sustain Appellant's conviction for first degree Murder of the unborn fetus in Count III. However, the evidence was sufficient to show beyond a reasonable doubt that Chisholm was carrying a living fetus up to the time of her death, and the fetus had matured beyond 14-15 weeks gestation. This evidence would support a conviction for Death of a Quick Child, which is manslaughter under

¶12 Proposition one does not warrant relief. Substantial independent evidence corroborated Appellant's confessions, and the evidence was sufficient to sustain the convictions for first degree Murder on Counts I and II. Spuehler v. State,

¶13 No relief on Appellant's third proposition of error is required, as the claim addressed counsel's performance in his defense against Count III, and we have ordered Appellant's conviction in Count III modified. We further decline to grant relief on Appellant's fourth proposition of error and decline to adopt and define viability for purposes of establishing a uniform jury instruction. The trial court did not abuse its discretion in its definition of viability and the instructions, as a whole, fairly and accurately stated the law. Omalza v. State,

¶14 Lastly, we find the admission of State's Exhibit 26 was error. The photograph of the unborn fetus, extracted from its mother's body post-mortem, was not relevant on the issue of viability; the photograph was misleading, and was highly inflammatory and prejudicial.

Decision

¶15 The Judgment and Sentences imposed in Counts I and II are AFFIRMED. Count III is hereby MODIFIED to Manslaughter in the first degree, and the sentence in Count III is MODIFIED to twenty years imprisonment.

APPEARANCES AT TRIAL

JACK McCURDY
112 SOUTH 4TH
YUKON, OKLAHOMA 73099
ATTORNEY FOR DEFENDANT

GARY McCURDY
ASSISTANT DISTRICT ATTORNEY
CANADIAN COUNTY
301 NORTH CHOCTAW
EL RENO, OK 73036
ATTORNEY FOR THE STATE

APPEARANCES ON APPEAL

KATHERINE JANE ALLEN
APPELLATE DEFENDER
OKLAHOMA INDIGENT DEFENSE SYSTEM
1623 CROSS CENTER DRIVE
NORMAN, OK 73019
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL
KELLYE BATES
ASST. ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73104-4894
ATTORNEYS FOR APPELLEE

OPINION BY: JOHNSON, V.PJ.:

RB

FOOTNOTES

Knowledge the woman was pregnant is a necessary element for a first degree manslaughter conviction under

In prosecutions where the State seeks to impose criminal liability for causing the death of an unborn quick child, by committing a willful act against the mother, a prosecution under either statute is proper and which statute the State elects to proceed under will depend upon the extent of the defendant's specific intent. To give meaning to both statutes, we believe the legislature intended § 713 to cover those situations in which the State could not show knowledge of the pregnancy and the specific intent to destroy the child.

LUMPKIN, PRESIDING JUDGE: CONCUR IN RESULT

¶1 I concur in the results reached by the Court in this opinion. However, I have concern regarding some of the analysis.

¶2 It is undeniable that science and medicine have progressed greatly since the institution of most of the preambles to our criminal statutes. See Nealis v. Baird,

Our decision that this protection extends to viable human fetuses is clearly in accord with legislative intent. Moreover, in light of the civil liability which can be imposed under Oklahoma law for the wrongful death of a viable human fetus, it would be most unjust to refuse to extend protection to a viable human fetus under Oklahoma's general homicide statute. (internal cites omitted)

Id.

¶3 We recognized in Hughes that "a viable human fetus is nothing less than human life". Id. Citing to the Massachusetts case of Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984), we adopted the language [41 P.3d 986] that "[a]n offspring of human parents cannot reasonably be considered to be other than a human being . . . first within, and then in normal course outside, the womb". Id. at 1325. The decision in Hughes overrules prior caselaw that held a viable fetus is not a "person" within the meaning of

¶4 Too often Courts, and sometimes individuals, use the word "fetus" as some type of generic reference to a non-entity. Etymology of the word reveals "middle English, from Latin, act of bearing young, offspring; akin to Latin fetus newlyd fruitful." And, in further application, "an unborn or unhatched vertebrate, especially after obtaining the basic structural plan of its kind; developing human from usually three months after conception to birth." See Merriam-Webster's Collegiate Dictionary.

¶5 While I concur in the results this Court reaches in this case based on application of statutory language, at the same time I recognize the Court has created three stages in the progression from conception to birth. The first stage is itself the act of conception, which is not addressed or discussed as a part of the resolution of the issues raised in this case. The second phase is the one created by the Court's opinion in its resolution of the issues before the Court at this time. That is, the status of a child being "quick" under the provisions of the legislative language contained in

¶6 Under the Court's action today in creating the second phase pursuant to the correct interpretation of the statutory language in Section 713, we have a "quick" child. And, the evidence presented in this case could lead a finder of fact to determine either that the child was or was not viable. Thus, under Oklahoma law, a "quick" nonviable child is still a human being for purposes of the application of the provisions of Section 713, pursuant to the statutory language.

¶7 I find the Court's almost hypnotic focus on the provisions of

¶8 In addition to that liability for the death of an unborn viable child, the Court in this opinion correctly finds that the Oklahoma Legislature [41 P.3d 987] has also carved out the additional liability of a defendant who causes the death of an unborn child who may not have reached the state of medical viability but, under the statute is a "quick" child. That is well within the prerogative of the Legislature and it is appropriate this Court should enforce that prerogative through this decision. As our Legislature has stated in

¶9 Under the facts of this case, I find the jury, as trier of fact in this case, could have interpreted and applied the evidence to find this was a viable unborn child and believe the evidence supports affirming the conviction for murder, first degree, in Count III. However, due to the Court's adoption of the interpretation of the statutory language in

FOOTNOTES

CHAPEL, J., CONCURRING IN PART, DISSENTING IN PART:

¶1 I concur in part and dissent in part. First, I concur in affirming the First Degree Murder convictions and sentences in Counts I and II. I also agree that we must reverse McCarty's first-degree murder conviction for the death of the unborn fetus (Count III). However, I write separately to explain my reasoning as I believe we should be very clear in setting forth our resolution of the issue of viability. In Hughes v. State,

¶2 The opinion then turns to Section 713,

¶3 The early Oklahoma legislature adopted Section 713 from the Dakota Territory penal code. Section 713 was originally part of a series of statutes designed to prohibit abortion, although no published cases show any prosecutions for that reason.

¶4 Section 713 prohibits the willful killing of an unborn quick child. The word "quick" is not as easy to define as it seems. Research shows that fetal homicide discussions refer to "quick", "quick with child", and "quickening", often apparently interchangeably. As the majority notes, "quick child", while not defined by statute, is defined in Black's Law Dictionary as "able to move within the womb."

¶5 When Section 713 was first adopted in the late nineteenth century, "quick child" and "quickening" were, for all practical purposes, the same thing. The only reliable way to tell whether a fetus was capable of movement in the womb was by waiting until the mother felt it move. As this usually happens between 16 and 20 weeks into a pregnancy, by the time a child was "quick" enough for movement to be felt, it was already relatively close to our modern parameters of viability. Technology has advanced to the point where we can determine movement in the womb well before the mother feels movement. Many pregnant women who have sonograms at 11 to 15 weeks are amazed at the sight of the fetus kicking, swimming and jumping, often vigorously, even though they have felt no sensation of movement. For this reason, while the definition of "quick" - whatever that is - may not have changed since Section 713 was adopted, its practical meaning is very different. Taking the most common definition, that a quick child is one capable of movement within the womb, we leave open the possibility that Section 713 applies to the killing of a fetus as early as eleven weeks, if that fetus is proved to be capable of movement.

¶6 In order to resolve the issue of the applicability of Section 713 when a fetus is "quick", we look at the remaining language. The statute's first requirement is that the killing be willful. The penal code defines "willfully" as "simply a purpose or willingness to commit the act or the omission referred to", without any intent to injure another.

¶7 Recognizing the inescapable conclusion that § 713 as interpreted in Tarver cannot support a conviction in this case, the majority, in a footnote, overrules Tarver. Without analysis, the majority concludes that § 713 does not require a defendant know the woman against whom he acts is pregnant. Instead, the majority suggests the companion abortion statute, § 714, provides an intent requirement for prosecutions for the intentional death of an unborn quick child. This completely disregards both the statutory history and case law surrounding the statutes and the language of § 714 itself. That statute prohibits as manslaughter any person from administering, prescribing, advising a woman or procuring a substance for her, or using any instrument with an intent to destroy an unborn quick child. This contains very different elements from the simple prohibition against killing an unborn child by attacking a pregnant woman found in § 713.

¶8 Rather than giving meaning to both statutes, the majority decision renders them meaningless. Under this reading, § 713 refers to a general intent homicide. If, in the course of committing a crime, a defendant attacks a complete stranger whose pregnancy is not immediately apparent by eye, and her fetus dies, the defendant is automatically liable for manslaughter. This does not further the legislative purpose of punishing a homicidal attack on an unborn child. How can it, where the defendant does not know the child exists? Furthermore, the specific nature of § 714 is diluted. The majority states, "which statute the State elects to proceed under will depend upon the extent of the defendant's specific intent."

¶9 Other states with statutes similar to § 713 have recognized the knowledge requirement we described in Tarver. Nevada and Washington have homicide statutes which, like Oklahoma's, punish the willful killing of an unborn quick child by any injury to the mother.

¶10 This requirement that the defendant have knowledge of the pregnancy separates criminal liability for manslaughter under Section 713 from other homicide statutes, including other manslaughter statutes.

¶11 A defendant charged under the homicide statutes may also be liable for an unintended homicide if it is charged as felony murder. The willful killing of an unborn quick (but not viable) child is not listed within the enumerated crimes authorizing a felony murder charge.

¶12 Applying all the elements of Section 713 to the facts of this case, I agree that evidence supports the finding that Felicia Chisholm's unborn child was a quick child under the statute. However, I find no evidence McCarty knew Ms. Chisholm was pregnant. Indeed, there is no evidence McCarty knew Ms. Chisholm at all or had ever seen her. This tragic murder occurred when McCarty set a fire intended for one set [41 P.3d 992] of victims, and killed another. He is certainly liable for the murders of Ms. Chisholm and Mr. LeBleu, but no evidence suggests McCarty willfully killed Ms. Chisholm's unborn quick child. Consequently I cannot agree to modify McCarty's conviction to reflect a conviction under Section 713.

¶13 Finally, I would clarify the majority holding setting forth when a prosecution for murder or manslaughter is appropriate. The majority states liability for manslaughter under Section 713 may be imposed where (1) a fetus is not viable and/or is less than 24 weeks in gestation (so first degree murder is not appropriate) and (2) evidence shows the unborn child is quick. Tarver also requires that, for liability under Section 713, the defendant is aware the woman is pregnant. The majority then describes eligibility for first degree murder by adding a third category, where the unborn child has reached the 24th week of pregnancy and medical testimony states it is viable. I would clarify this language because in some cases prosecution for first-degree murder would be appropriate where an unborn child is viable even if the pregnancy has not reached 24 weeks, or where the fetus has reached the 24th week of pregnancy and no evidence rebuts the presumption of viability. Following Hughes, I would hold that first degree murder charges are appropriate where the unborn child is viable, which may be proved through evidence that the fetus has reached 24 weeks or is capable of life outside the womb, with or without artificial aid.

FOOTNOTES

Strubhar, J., Concurring in Part; Dissenting in Part:

¶1 I concur in affirming Counts I & II, the First Degree Murder convictions and sentences. I agree that this Court should reverse Count III, the First Degree Murder conviction for the death of the unborn fetus; however, I dissent to the modification of the conviction to First Degree Manslaughter under

FOOTNOTES

11

LILE, JUDGE: SPECIALLY CONCURS

¶1 This is not an abortion case. This is a murder case. The Court begins by citing Spencer by and through Spencer v. Seikel,

"We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." Roe v. Wade, 93 S. Ct. 705,

The Courts, even in abortion cases have recognized that viability presupposes medical assistance. As stated in Roe, it is the "...point at which the fetus becomes 'viable', that is, potentially able to live outside the mother's womb, albeit with artificial aid." Id.

¶2 So, even for the purposes of these abortion cases and clearly in the context of homicide, viability means ability to live after delivery, with or without medical treatment.

¶3 There are no competing rights to weigh against the state's right to protect potential life in the case of homicide. Appellant obviously has no protected right to kill someone else's unborn infant. The State may prohibit the taking of human life by Homicide from the first spark of that life. Title