McCarty v. State

2002 OK CR 4, 41 P.3d 981, 73 O.B.A.J. 573, 2002 Okla. Crim. App. LEXIS 3, 2002 WL 173156

• Court: Court of Criminal Appeals of Oklahoma
• Decided: February 5, 2002
• Docket: F-1999-1599
• Status: Published

Opinions

SUMMARY OPINION

JOHNSON, Vice Presiding Judge.

Appellant, Ryan Owen McCarty, was convicted by a jury of three counts of First Degree Murder, in violation of 21 0.S.Supp. 1998, § 701.7, in the District Court of Canadian County, Case No. CF 98-518. Following the verdicts, the Honorable Edward C. Cunningham, District Judge, sentenced Appellant to life imprisonment on each count and ordered the sentences to be served concurrently. From the Judgment and Sentences imposed, Appellant filed this appeal.

1 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.

T3 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.

14 A state's interest in protecting fetal survival becomes compelling at viability. Spencer by and through Spencer v. Seikel, 1987 OK 75, ¶ 17, 742 P.2d 1126. The determination of viability is a key issue when the State alleges a defendant has committed the murder of an unborn child. Id. at ¶ 18, 742 P.2d at 1130; see also Hughes v. State, 1994 OK CR 3, ¶4, 868 P.2d 730, 731 ("an unborn fetus that was viable at the time of injury is a 'human being' which may be the subject of a homicide. ..."). Viability measures the ability of a fetus to sustain life outside the mother's womb. Evans v. Olson, 1976 OK 64, ¶ 10, f. 3, 550 P.2d 924, 928.

15 In the Oklahoma statutes regulating abortion, see 63 O.S.Supp.1998, §§ 1-780-1-734, "viable" is defined as "potentially able to live outside of the womb of the mother upon premature birth, whether resulting from natural causes or an abortion." 63 O.S.Supp. 1998, § 1-730(3).¹ Also within these statutes, there is set forth a rebuttable presumption that "[aln unborn child shall be presumed to be viable if more than twenty-four (24) weeks have elapsed since the probable beginning of the last menstrual period of the pregnant woman...." 63 O.S.Supp.1998, § 1-732(B); see also Davis v. Fieker, 1997 OK 156, ¶ 15, f. 19, 952 P.2d 505, 509 ("Viability of the fetus is possible 24 weeks after a woman's last normal menstrual period." citing Ralph C. Benson, M.D., HANDBOOK OF OBSTETRICS AND GYNECOLOGY 65, 81 (1992)).

[6 The Oklahoma legislature has drawn a firm line as to intent with regard to imposing criminal liability for the death of a viable fetus. See 63 O.S.1991 § 1-781 (criminalizing certain abortions in Oklahoma); 63 O.S. 1991, § 1-782 (creating rebuttable presumption of viability at 24 weeks); and, 63 O.S. 1991, § 1-732(E) (providing that any person who performs or induces an abortion once a fetus has attained viability is guilty of homicide). Also see 21 O.S.1991, § 718. The legislature was clear and without reservation as to a "quick child". This statute provides the wilifal killing of an unborn quick child is manslaughter in the first degree.

T7 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.

18 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 21 0.9.1991, § 713); and (3) when the unborn child has reached 24 weeks gestation and medical testimony shows the unborn child is viable, then the charge should be First Degree Murder, in violation of 21 O.S.Supp.1998 § TOL.7.

19 A criminal charge will not stand for causing the death of an unborn child who is not yet quick within its mother's womb.² In most cases, this information should be available to the State at the time the charge is filed; however, we recognize that in some cases, whether the child is "quick," whether the child has attained a gestational age of 24 weeks, and/or whether the child is viable may be questions of fact to be submitted to the jury.

1 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 21 O.S.Supp.2000, § 713.³ Accordingly, under the facts presented here, we FIND Appellant's conviction for first degree Murder in Count III should be and is hereby MODIFIED to first degree Manslaughter, for causing the death of a quick child, and hereby MODIFY Appellant's sentence in Count III to twenty (20) years imprisonment.

[ 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, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-204; Tilley v. State, 1998 OK CR 48, ¶ 14, 963 P.2d 607, 612.

1 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, 1995 OK CR 80, ¶ 52, 911 P.2d 286, 303.

114 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, 12 0.S8.1991, $ 2408. As we have modified Appellant's conviction and sentence on Count III, no further relief is required. The other complained of photographs were properly admitted. Le v. State, 1997 OK CR 55, ¶ 25, 947 P.2d 535, 548, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998).

Decision

1 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.

LUMPKIN, P.J.: concurs in results. CHAPEL, J.;: concurs in part/dissents in part. STRUBHAR, J.: concurs in part/dissents in part. LILE, J.: specially concurs.

1 . This Court interprets the language "potentially able to live outside of the womb of the mother" to be without limitation and to therefore include those situations where the child needs medical assistance to live outside of the womb.

2 . Although "quick child" is not defined by statute, the term is generally defined as a fetus that has so developed as to move within the mother's womb. See Black's Law Dictionary 1415 (4th ed.1968)

3 . Relying on Tarver v. State, 1982 OK CR 156, 651 P.2d 1332, the dissent submits a conviction under 21 O.S.1991, § 713 cannot be sustained without showing the defendant knew the woman against whom he acted was pregnant. In Tarver, the Court held § 713 did not require the defendant to have a specific intent to kill, but then went on to say the State must prove the defendant committed his act "with the awareness that the death of the unborn quick child would likely result." - Such awareness is not required by the statutory language of § 713, and is not an essential element of the crime. To that extent, we believe that the language was dicta and that Tarver should be, and hereby is, overruled.

Knowledge the woman was pregnant is a necessary element for a first degree manslaughter conviction under 21 0.$.1991, § 714, which provides that "[elvery person ... who uses or employs any instrument or other means with the intent thereby to destroy such child ... is guilty in case the death of the child ... is thereby produced, of manslaughter in the first degree." (emphasis added).

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. -