State v. Merrill

450 N.W.2d 318, 1990 Minn. LEXIS 26, 1990 WL 2659

• Court: Supreme Court of Minnesota
• Decided: January 19, 1990
• Docket: C7-89-766
• Status: Published

Opinions

SIMONETT, Justice.

Defendant has been indicted for first- and second-degree murder of Gail Anderson and also for first- and second-degree murder of her “unborn child.” The trial court denied defendant’s motion to dismiss the charges relating to the unborn child but certified for appellate review two questions:

1. Do Minn.Stat. §§ 609.2661(1) and .2662(1) (1988) [the unborn child homicide statutes] violate the fourteenth amendment of the United States Constitution as interpreted by the United States Supreme Court in Roe v. Wade, by failing to distinguish between viable fetuses and nonviable fetuses and embryos, and by treating fetuses and embryos as persons?

2. Are [said statutes] void for vagueness?

On November 13, 1988, Gail Anderson died from gunshot wounds allegedly inflicted by the defendant. An autopsy revealed Ms. Anderson was pregnant with a 27- or 28-day-old embryo. The coroner’s office concluded that there was no abnormality which would have caused a miscarriage, and that death of the embryo resulted from the death of Ms. Anderson. At this stage of development, a 28-day-old embryo is 4-to 5-millimeters long and, through the umbilical cord, completely dependent on its mother. The Anderson embryo was not viable. Up to the eighth week of development, it appears that an “unborn child” is referred to as an embryo; thereafter it is called a fetus. The evidence indicates that medical science generally considers a fetus viable at 28 weeks following conception although some fetuses as young as 20 or 21 weeks have survived. The record is unclear in this case whether either Ms. Anderson or defendant Merrill knew she was pregnant at the time she was assaulted.

Defendant was indicted for the death of Anderson’s “unborn child” under two statutes entitled, respectively, “Murder of an Unborn Child in the First Degree” ¹ and “Murder of an Unborn Child in the Second Degree.”² These two statutes, enacted by the legislature in 1986, follow precisely the language of our murder statutes, except that “unborn child” is substituted for “human being” and “person.” See footnote 4, infra. The term “unborn child” is defined as “the unborn offspring of a human being conceived, but not yet born.” Minn.Stat. § 609.266(a) (1988).

This legislative approach to a fetal homicide statute is most unusual and raises the constitutional questions certified to us. Of the 17 states that have codified a crime of murder of an unborn, 13 create criminal liability only if the fetus is “viable” or “quick.” Additionally, two noncode states have expanded their definition of common law homicide to include viable fetuses. See Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984); State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984). Arizona and Indiana impose criminal liability for causing the death of a fetus at any stage, as does Minnesota, but the statutory penalty provided upon conviction is far less severe. Ariz.Rev.Stat.Ann. § 13-1103(A)(5) (1989) (5-year sentence); Ind.Code Ann. § 35-42-1-6 (Burns 1985) (2-year sentence).

Before discussing the Minnesota statutes, three preliminary observations must be made. First, to challenge successfully the constitutional validity of a statute, the challenger bears the very heavy burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional. E.g., Wegan v. Village of Lexington, 309 N.W.2d 273, 279 (Minn.1981); Contos v. Herbst, 278 N.W.2d 732, 736 (Minn.1979), appeal dismissed sub nom., Prest v. Herbst, 444 U.S. 804, 100 S.Ct. 24, 62 L.Ed.2d 17 (1979). Second, there are no common-law crimes in this state. Minnesota is a “code state,” i.e., the legislature has exclusive province to define by statute what acts constitute a crime. State v. Soto, 378 N.W.2d 625, 627 (Minn.1985). And, third, the role of the judiciary is limited to deciding whether a statute is constitutional, not whether it is wise or prudent legislation. AFSCME Councils 6, 14, 65, and 96 AFL-CIO v. Sundquist, 338 N.W.2d 560, 570 (Minn.1983). We do not sit as legislators with a veto vote, but as judges deciding whether the legislation, presumably constitutional, is so.

I.

Defendant first contends that the unborn child homicide statutes violate the Equal Protection Clause. Defendant premises his argument on Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), which, he says, holds that a nonviable fetus is not a person. He then argues that the unborn child criminal statutes have impermissibly “adopted a classification equating viable' fetuses and nonviable embryos with a person.” ³

Assuming the relevance of defendant’s stated premise, defendant has failed to show that the statutory classification impinges upon any of his constitutional rights. The equal protection clause of the Fourteenth Amendment requires that all persons similarly situated be treated alike under the law. Matter of Harhut, 385 N.W.2d 305, 310 (Minn.1986). Defendant does not claim, nor can he, that he is within the class the statutes are designed to benefit, namely, unborn children. Rather, it appears, defendant is claiming he is in the class burdened by the law.

If we understand defendant correctly, he is claiming the statutory classification, by not distinguishing between viable and nonviable fetuses, exposes him to conviction as a murderer of an unborn child during the first trimester of pregnancy, while others who intentionally destroy a nonviable fetus, such as a woman who obtains a legal abortion and the doctor who performs it, are not murderers. In other words, defendant claims the unborn child homicide statutes expose him to serious penal consequences, while others who intentionally terminate a nonviable fetus or embryo are not subject to criminal sanctions. In short, defendant claims similarly situated persons are treated dissimilarly.

We disagree. The situations are not similar. The defendant who assaults a pregnant woman causing the death of the fetus she is carrying destroys the fetus without the consent of the woman. This is not the same as the woman who elects to have her pregnancy terminated by one legally authorized to perform the act. In the case of abortion, the woman’s choice and the doctor’s actions are based on the wom-án’s constitutionally protected right to privacy. This right encompasses the woman’s decision whether to terminate or continue the pregnancy without interference from the state, at least until such time as the state’s important interest in protecting the potentiality of human life predominates over the right to privacy, which is usually at viability. Roe v. Wade, 410 U.S. at 163, 93 S.Ct. at 731. Roe v. Wade protects the woman’s right of choice; it does not protect, much less confer on an assailant, a third-party unilateral right to destroy the fetus.

As defendant points out, the United States Supreme Court has said that an unborn child lacks “personhood” and is not a person for purposes of the Fourteenth Amendment. Roe v. Wade, 410 U.S. at 158, 93 S.Ct. at 729. The focus of that case, however, was on protecting the woman from governmental interference or compulsion when she was deciding whether to terminate or continue her pregnancy. “[T]he right in Roe v. Wade can be understood only by considering both the woman’s interest and the nature of the State’s interference with it.” Maher v. Roe, 432 U.S. 464, 473, 97 S.Ct. 2376, 2382, 53 L.Ed.2d 484 (1977). Significantly, the Roe v. Wade court also noted that the state “has still another important and legitimate interest in protecting the potentiality of human life.” Roe v. Wade, 410 U.S. at 162, 93 S.Ct. at 731 (emphasis in original). Even laws which directly impact on abortion are constitutional so long as the statute itself does not impinge on the woman’s decision. See, e.g., Webster v. Reproductive Health Services, — U.S. -, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989) (state prohibition of use of public facilities and employees to perform abortion unless life of woman endangered upheld). In our case, the fetal homicide statutes seek to protect the “potentiality of human life,” and they do so without impinging directly or indirectly on a pregnant woman’s privacy rights.

The state’s interest in protecting the “potentiality of human life” includes protection of the unborn child, whether an embryo or a nonviable or viable fetus, and it protects, too, the woman’s interest in her unborn child and her right to decide whether it shall be carried in útero. /"The interest of a criminal assailant in terminating a woman’s pregnancy does not outweigh the woman’s right to continue the pregnancy. In this context, the viability of the fetus is “simply immaterial” to an equal protection challenge to the feticide statute. Smith v. Newsome, 815 F.2d 1386, 1388 (11th Cir.1987).

We conclude that sections 609.2661(1) and 609.2662(1) do not violate the Fourteenth Amendment by failing to distinguish between a viable and a nonviable fetus.

II.

A more difficult issue, as the trial court noted, is whether the unborn child criminal statutes are so vague as to violate the Due Process Clause of the Fourteenth Amendment. Defendant claims the statutes are unconstitutionally vague because they fail to give fair warning of the prohibited conduct and because they encourage arbitrary and discriminatory enforcement.

A state criminal statute is void for vagueness if it fails to define the criminal offense “with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). A statute imposing criminal penalties must meet a high standard of certainty. State v. Newstrom, 371 N.W.2d 525, 528 (Minn.1985). If the description of the forbidden conduct is vague, Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 689-90, 88 S.Ct. 1298, 1306, 20 L.Ed.2d 225 (1968), or if its wording leaves doubt as to which persons fall within the scope of the law, Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939), the statute may violate the Due Process Clause.

A.

Defendant first contends that the statutes fail to give fair warning to a potential violator. Defendant argues it is unfair to impose on the murderer of a woman an additional penalty for murder of her unborn child when neither the assailant nor the pregnant woman may have been aware of the pregnancy.

The fair warning rule has never been understood to excuse criminal liability simply because the defendant’s victim proves not to be the victim the defendant had in mind. Homicide statutes generally provide that a person is guilty of first- or second-degree murder upon proof that the offender caused the death of a person with intent to cause the death of that person or another. See, e.g., State v. Sutherlin, 396 N.W.2d 238, 240 (Minn.1986). Because the offender did not intend to kill the particular victim, indeed, may not even have been aware of that victim’s presence, does not mean that the offender did not have fair warning that he would be held criminally accountable the same as if the victim had been the victim intended. W. LaFave & A. Scott, Handbook on Criminal Law 254 (1972).

In this case, the indictments charge defendant for first and second degree murder of an unborn child under section 609.2661(1) and section 609.2662(1) for causing the death of an unborn child with “intent to effect the death of the unborn child or another, to-wit: Gail Stephanie Anderson, an adult female.”⁴ Ordinarily, the doctrine of transferred intent applies when the intent being transferred is for the same type of harm. If the harms are different, intent is not transferable. W. La-Fave, supra, at 243. For example, an intent to murder cannot substitute for the intent required to convict for the malicious destruction of property that may have inadvertently been damaged during the murderous assault. In this case, defendant seems to be arguing that an intent to kill the mother is not transferable to the fetus because the harm to the mother and the harm to the fetus are not the same. We think, however, .the harm is substantially similar. The possibility that a female homicide victim of childbearing age may be pregnant is a possibility that an assaulter may not safely exclude. We conclude, therefore, that the statutes provide the requisite fair warning.

B.

Defendant next contends that the unborn child criminal statutes are fatally vague because they do not define the phrase “causes the death of an unborn child.” As a result, defendant argues, the statutes invite or permit arbitrary and discriminatory enforcement. See, e.g., State v. Peterfeso, 283 Minn. 499, 501-02, 169 N.W.2d 18, 19 (1969).

Defendant argues that the statute leaves uncertain when “death” occurs, or, for that matter, when “life” begins. People will differ on whether life begins at conception or at viability. People may differ on whether death is the cessation of brain activity (an activity not present in an embryo) or the cessation of a functioning circulatory system. The problem, says defendant, is that absent statutory criteria, judges and juries will provide their own definitions which will differ, leaving the statutes vulnerable to arbitrary and discriminatory enforcement. This argument, we think, attempts to prove too much.

Some background is necessary to put the issue in its proper perspective. In 1985 this court, in State v. Soto, 378 N.W.2d 625 (Minn.1985), held that when the legislature referred to the death of a “human being” in the homicide statutes, the term “human being” was being used in its well-established common-law sense of a person born alive. Consequently, we held that the homicide statutes did not apply to the death of an 8-month-old fetus yet unborn. The legislature was free, of course, if it wished to do so, to create a crime to cover feticide. Traditionally, the crime of feticide imposed criminal liability for the death of a “viable” fetus, that is, a fetus at that stage of development which permits it to live outside the mother’s womb, or a fetus that has “quickened,” that is, which moves within the mother’s womb.

Apparently in response to Soto, the legislature has enacted criminal statutes to cover feticide. In so doing, it has enacted very unusual statutes which go beyond traditional feticide, both in expanding the definition of a fetus and in the severity of the penalty imposed. The statutes in question impose the criminal penalty for murder on whoever causes the death of “the unborn offspring of a human being conceived, but not yet born.”

Whatever one might think of the wisdom of this legislation, and notwithstanding the difficulty of proof involved, we do not think it can be said the offense is vaguely defined. An embryo or nonviable fetus when it is within the mother’s womb is “the unborn offspring of a human being.” Defendant argues, however, that to cause the death of an embryo, the embryo must first be living; if death is the termination of life, something which is not alive cannot experience death. In short, defendant argues that causing the death of a 27-day-old embryo raises the perplexing question of when “life” begins, as well as the question of when “death” occurs.

The difficulty with this argument, however, is that the statutes do not raise the issue of when life as a human person begins or ends. The state must prove only that the implanted embryo or the fetus in the mother’s womb was living, that it had life, and that it has life no longer. To have life, as that term is commonly understood, means to have the property of all living things to grow, to become. It is not necessary to prove, nor does the statute require, that the living organism in the womb in its embryonic or fetal state be considered a person or a human being. People are free to differ or abstain on the profound philosophical and moral questions of whether an embryo is a human being, or on whether or at what stage the embryo or fetus is en-souled or acquires “personhood”. These questions are entirely irrelevant to criminal liability under the statute. Criminal liability here requires only that the genetically human embryo be a living organism that is growing into a human being. Death occurs when the embryo is no longer living, when it ceases to have the properties of life.

Defendant wishes to argue that causing the death of a living embryo or nonviable fetus in the mother’s womb should not be made a crime. This is an argument, however, that must be addressed to the legislature. Our role in the judicial branch is limited solely to whether the legislature has defined a crime within constitutional parameters. Indeed, in this case, our role is further limited to answering only the two specific questions certified to us for a ruling. We answer both questions no.

Certified questions answered.

KELLEY, J., concurs in part, dissents in part. WAHL and KEITH, JJ., dissent.

1 . Minn.Stat. § 609.2661 (1988), provides in part:

Whoever does any of the following is guilty of murder of an unborn child in the first degree and must be sentenced to imprisonment for life:

(1) causes the death of an unborn child with premeditation and with intent to effect the death of the unborn child or of another;

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2 . Minn.Stat. § 609.2662 (1988), provides in part:

Whoever does either of the following is guilty of murder of an unborn child in the second degree and may be sentenced to imprisonment for not more than 40 years:

(1) causes the death of an unborn child with intent to effect the death of that unborn child or another, but without premeditation;

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3 . In the trial court, defendant also raised issues relating to substantive due process and cruel and unusual punishment. The trial judge did not certify those issues to us.

4 . Apparently the parties agree that the word "another," as it is used in the feticide statutes, refers to another person.