Criminal – Fetus – Involuntary Manslaughter

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Where a defendant was convicted of the involuntary manslaughter of his girlfriend and her unborn fetus, the convictions did not violate the double jeopardy clause or any other constitutional principle.

Convictions affirmed; motions to correct sentences affirmed.

Validity Of Convictions

“The defendant claims that the term ‘viability,’ as applied to a fetus under criminal homicide statutes, is unconstitutionally vague because it has not been defined by the Legislature or by the courts. A statute is unconstitutionally vague if ‘men of common intelligence must necessarily guess at its meaning.’ … If a statute has been clarified by judicial explanation, however, it will withstand a challenge on grounds of unconstitutional vagueness. … A claim of facial vagueness is properly brought before trial. …

“In the civil context, we defined a ‘viable fetus’ to be ‘a fetus’ so far formed and developed that if then born it would be capable of living.’ … In Commonwealth v. Cass, [392 Mass. 799, 807 (1984)], decided six years before the deaths in this case, we extended protection under our criminal law to viable fetuses. … By the time of these deaths in 1990, the defendant was on notice that killing a ‘viable fetus,’ as defined in the common law, is a punishable offense. As such, the term had been defined and it is not unconstitutionally vague. The issue properly was deemed waived. …

“The defendant claims that the Commonwealth’s burden of proof was lowered when the trial judge defined viability as ‘having reached such a stage of development as to be potentially able of living outside the mother’s womb, notwithstanding artificial aid’ (emphasis added). Relying on a California case, the defendant argues that the proper definition of viability is that the fetus must attain such form and development of organs as to be “‘normally capable of living outside of the uterus” … a better than even chance a probability’ (emphasis added). People v. Davis, 7 Cal. 4th 797, 814 (1994).

“The word ‘potential,’ as defined in Black’s Law Dictionary 1168 (6th ed. 1990), means ‘[e]xisting in possibility but not in [f]act. Naturally and probably expected to come into existence at some future time, though not now existing’ (emphasis added). Thus, the term ‘potentially’ connotes a degree of probability greater than a ‘possibility,’ the term which the court in People v. Davis, supra, found lacking because it impermissibly lowered the threshold for viability to the point where a fetus incapable of surviving outside the womb would nonetheless be considered viable. Given that the trial judge’s use of the term ‘potentially’ had the effect of instructing the jury that they had to find that Noblin’s fetus had a ‘better than even chance’ for survival before they could convict the defendant, the instruction given here did not lower the Commonwealth’s burden. …

“The Supreme Court had addressed the meaning of ‘viability’ on two occasions before the defendant’s trial. In Colautti v. Franklin, 439 U.S. 379, 388-389 (1979), the Court said, ‘Viability is reached when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus’ sustained survival outside the womb, with or without artificial support.’ In Roe v. Wade, 410 U.S. 113, 160 (1973), the Court said that a fetus is viable if it is ‘potentially able to live outside the mother’s womb, albeit with artificial aid’ (emphasis added). The issue had been sufficiently developed at the time of the defendant’s trial to alert him that it was a live issue. It is waived.

“Although we have concluded that the judge’s instruction, taken from Roe v. Wade, supra, was adequate, the definition of ‘viability’ used in Colautti v. Franklin, supra (‘reasonable likelihood of the fetus’ sustained survival outside the womb, with or without artificial support’), is preferable. It employs familiar language most often used in jury instructions, and should be used in trials occurring hereafter.

“… The defendant’s contention that the Commonwealth should be required to show that he knew of the fetus’s existence and viability is without merit. The defendant was convicted of involuntary manslaughter, a crime which does not require proof of awareness of a particular victim. … The Commonwealth need only prove wanton and reckless conduct resulting in the death of a person. Wantonness and recklessness are determined by the conduct involved, not the resulting harm. …

“The Commonwealth reasonably could not be required to prove that the defendant knew the fetus was viable because viability is an issue that involves a medical judgment. … Thus, the defendant’s awareness of the fetus’s existence and viability was irrelevant. The issues of existence and viability also had been sufficiently developed as of the time of the defendant’s trial for him to have raised it at that time. They are waived.

“Even if these issues had not been waived, the result would not be different. At trial, the defendant presented evidence of alibi, a strategy which was not unreasonable in the circumstances. The ability to instill reasonable doubt that he had killed Noblin would necessarily benefit his defense of the indictment alleging that he killed her fetus. Interjecting issues about the defendant’s knowledge of the existence of the fetus or its viability would have diluted his alibi defense. They also are issues that appear to have had little chance of success. The defendant lived with Noblin and their four year old daughter approximately three days a week at Noblin’s apartment. There was evidence that the defendant knew that Noblin was pregnant, and that he was the father of her fetus. … The jury easily could have found that the defendant was aware of the existence of the fetus. The medical testimony regarding viability was uncontroverted and strong. We may presume that the defendant’s failure to raise the issues means that he was either not interested in them, or that he thought they were not critical to his case. … They appear to have been selectively omitted as live issues for good reason. …”

Concurring Opinion

Abrams, J., joined by Marshall, C.J. “In Commonwealth v. Cass, 392 Mass. 799, 808 (1984), the court extended the vehicular homicide statute to include a viable fetus. … I joined in the dissent to that case, see id. at 809 (Wilkins, J., dissenting, with whom Liacos and Abrams, JJ., joined), because ‘[t]he public policy of the Commonwealth in the creation of crimes is not for this court to determine, but for the Legislature.’ … Subsequently, in Commonwealth v. Lawrence, 404 Mass. 378 (1989), the court affirmed convictions of the murder in the first degree of a sixteen year old girl and the involuntary manslaughter of her twenty-seven week old fetus. … In my concurrence to that case, I reiterated my commitment to the views expressed by the dissent in Cass, and I noted that ‘[t]he court’s decision does not make clear what one must know, or should know, about the pregnancy, the condition of the fetus, and viability at the time of the acts of violence.’ …

“Given that Cass and Lawrence remain the law of this Commonwealth, I concur in the court’s decision in the instant case. If one takes as a premise that a viable fetus in utero can be the victim of a homicide, then the court’s legal conclusions follow. However, I continue to adhere to the views expressed in the dissent in Cass and in my concurrence in Lawrence.

“If a ‘person of ordinary intelligence’ cannot determine that ‘his contemplated conduct is forbidden’ by a law, then that law runs afoul of the due process required by our Constitution. … This case, like Cass and Lawrence, does not directly raise the issue of the scienter required for a conviction of homicide of a viable fetus in utero because the defendant was convicted of involuntary manslaughter. ‘The Commonwealth need only prove wanton and reckless conduct resulting in the death of a person. Wantonness and recklessness are determined by the conduct involved. …’ …

“However, the court also writes that ‘[t]he Commonwealth reasonably could not be required to prove that the defendant knew the fetus was viable because viability is an issue that involves a medical judgment.’ … In support of this dictum, the court quotes my concurrence in Lawrence, supra at 399 (Abrams, J., concurring), that ‘[t]he mental element needed for conviction of murder cannot depend on a medical determination that can only be made by experts after the fact.’ …

“It was the concern that a person of ordinary intelligence might not be able to determine that he or she was committing two homicides that prompted me to write the words quoted by the court. … Where proof offered at a criminal trial focuses on the victim’s medical status and not the defendant’s acts and state of mind, I think the court strays from the purposes of the criminal laws. ‘The focus of a criminal trial must be on the defendant’s mental state, not the victim’s physical condition.’ …

“As I observed in Lawrence, supra, ‘[s]uch issues …. are not before us in this case. They await a case-by-case determination.’ However, the fact that such issues continue to lurk in the law of homicide as this court has extended that law suggests to me that the creation of crimes is best left to the Legislature, as it always had been until Cass, supra.”

Commonwealth v. Crawford (Lawyers Weekly No. 10-019-00) (17 pages) (Spina, J.) (Abrams, J., joined by Marshall, C.J., concurring) (SJC) Motion to correct sentences heard by Volterra, J.; additional postconviction motions heard by Donovan, J., in Superior Court. Matthew S. Rabinowitz on appeal for the defendant; John P. Zanini and Lisa Scalcione Dreitlein for the commonwealth (Docket No. SJC-07770).