McCarty v. State

by teachings Management impact American from the of the fall. There is hence Burns,27 Systems, longer Inc. v. is no avail no competent support compens- evidence to establishing injury's able for an causal nexus ability heightened dangers based on from employment. work-connected risks to the hazards of quo. locus in 3(7) § [now The 1986 amendment of 1 15 The court's reliance on Larson's aber- 3(10)],28 requires which the source of a abridgement employer's rational of an immu- compensable injury to be nity idiopathic from for falls to in- purely to be one that does not stem from a objects clude all falls onto workplace familiar personal risk-plainly contravenes explicit - - - is inconsistent with Oklahoma's statu- teachings yore court's in Fox.29Claimants tory mandate that calls exclusion from longer rely positional-risk can no on the theo compensability "personal risks." ry. re-adoption today plainly Its would allow today's 16 cannot adoption countenance ordinary risks to ambient be combined with of a distorted definition for enhanced work- idiopathic creating falls for an accident's place risks. The return court's to the teach- compensability.30The law now demands that ings jurisprudence every of Fox will allow responsible injury risk for a claimant's be injury by spontaneous fall occasioned causally being per connected to the work systemic internal failure to become com- formed. If the risk stems from neutral or pensable, effectively scuttling thus personal sources, presence their must ex statutory require standards. The latter an ordinary ceed forces of hazards to which injury employ- to arise out of claimant's general public exposed. Whether nonpersonal ment and stem from risk Flanner, injured, working when near sources. offending coffee maker is of no conse {17 There here support no record quence. What makes a difference is the the court's conclusion that the trial judge perimeter absence of within forees of her refusing recovery. erred in to allow I would fall operated severity to increase the sustain denying compensation. her order harm from the fall she sustained. VI

SUMMARY idiopathic

€14 An employee's fall at an workplace compensable is not it unless work-generated shown that interplay risks in Ryan McCARTY, Appellant, Owen (and internally with the spontaneously) in- danger duced fall elevated the exposure to harm. The burden onwas this claimant Oklahoma, Appellee. STATE danger-increasing to show that forces were unleashed presence No. F-1999-1599. of the coffee mak- perimeter er in the of Flanner's fall. No Appeals Court of Criminal of Oklahoma. such showing attempted. has been In this posed case scenario the coffee maker Feb. ordinary more than an hazard of claimant's job opportunity milien-perhaps an of in-

cluding exposure to thermal harm. This elevating severity injury

falls short of employee's injury 903 P.2d 288. that the source of the be from work-related, purely personal, a risk, than a rather (10), 0.S.Supp.1997 For the terms of 85 longer may injury No be viewed as supra see note 5. worker, compensable solely because the while in employment, exposed the course of came to be holding, supra 29. For the Fox see note 22. some risk of harm that is not shown to be work- legislative amending 30. intent in the terms connected. of 85 0.$.1981 was doubtless to require OK, McCurdy, Yukon, Attorney for

Jack at trial. Defendant McCurdy, Gary Assistant District Attor- Reno, OK, ney, County, El Attor- Canadian ney for the State at trial. Defender, Allen, Appellate

Katherine Jane System, Indigent Nor- Oklahoma Defense OK, man, Attorney appeal. Appellant on General, Edmondson, Attorney W.A. Drew Bates, General, Kellye Attorney Okla- Asst. OK, Attorneys Appellee City, homa appeal.

SUMMARYOPINION provisions of the Oklahoma constitu- tion were violated the admission of JOHNSON, Presiding Judge. Vice highly prejudicial inflammatory Appellant, Ryan McCarty, Owen and, photographs; color jury by a of three counts of First convicted deprived 6. The accumulation of errors Murder, Degree 0.S.Supp. violation of McCarty Mr. aof fair trial. 701.7, 1998, § in the District Court of Cana- County, No. Follow- dian Case CF 98-518. thorough T3 After consideration of the verdicts, ing the Honorable Edward C. appeal, including entire record before us on Cunningham, Judge, Ap- District sentenced record, original transcripts, briefs and pellant imprisonment life on each count to parties, exhibits of the we have determined to be con- and ordered sentences served required Appellant's relief is second currently. Judgment From and Sen- proposition of error for the reasons set forth imposed, Appellant appeal. tences filed below. 2 Appellant following proposi- 1 raised the protecting 14 A state's interest fetal error: tions of compelling viability. survival becomes at Seikel, Spencer by through Spencer presented 1. The evidence at trial was 75, ¶ 17, 1987OK 742 P.2d 1126. The deter to sustain the convictions

insufficient requirements four- viability key mination of is a issue when the teenth Amendment of the United alleges a State defendant has committed the States Constitution and under Article ¶ 18, murder of unborn child. Id. at II, § 9 of the Oklahoma Constitution 1130; Hughes P.2d at see also presented because State insuffi- OK CR ("an 3, ¶4, unborn independent cient evidence to corrobo- injury fetus that was viable at the time of ais Appellant; rate confessions of the being' may subject 'human be the of a ..."). Viability homicide. measures the abili presented by 2. The evidence the State ty of a fetus to sustain life outside the moth support jury's to was insufficient Olson, er's womb. Evans v. McCarty guilty verdict that Mr. was ¶ 10, 3, f. degree Murder Ms. Chisholm's fetus; regulating 15 In the Oklahoma statutes abortion, O.S.Supp.1998,§§ McCarty deprived see 63 1-780-1- 3. Mr. was of effective "potentially "viable" is defined as able to assistance of counsel violation of the upon live outside of the womb of the mother sixth and fourteenth amendments birth, premature resulting Ar- whether from nat the United States Constitution and O.S.Supp. ural causes or an abortion." 63 II, §§ 7 ticle and 20 of the Oklahoma 1-730(3).1 Constitution; § Also within these stat utes, presump there is set forth a rebuttable judge trial The abused his discretion pre tion that child shall be "[aln unborn viability in defining the manner chosen twenty-four sumed to be if more than trial, during McCarty's Mr. thus violat- elapsed probable weeks have since the ing Appellant's fourteenth Amendment beginning period of of the last menstrual rights to the United States Constitu- O.S.Supp.1998, woman...." II, § tion and Article 20 of the Okla- Fieker, 1-732(B); § see also Davis Moreover, homa Constitution. there is ¶ ("Viabil 156, 15, 19, OK f. a void in the statutes both and uniform ity possible of the fetus is 24 weeks after a jury regarding viability, instructions period." woman's last normal menstrual cit necessitating prop- thus this Court M.D., Benson, ing Ralph C. HANDBOOK fetus; erly viability define of a OF OBSTETRICS AND GYNECOLOGY McCarty's rights process 5. Mr. to due (1992)). and a fair trial under the sixth and [6 legislature fourteenth Amendments to the The Oklahoma has drawn United corresponding regard imposing firm States Constitution and line as to intent with interprets language "potentially where the needs 1. This those situations able to live outside of the womb of the mother" the womb. assistance to live outside of to be limitation and to therefore include however, filed; recognize we some a viable liability for the death of criminal (criminaliz cases, "quick," § whether 1-781 whether the child O.S.1991 fetus. See 63 Oklahoma); age of 24 gestational attained a 63 O.S. the child has ing abortions certain presump weeks, (creating whether the child is viable 1-782 rebuttable and/or weeks); and, questions O.S. of fact to be submitted tion of 1-732(E) any person (providing jury. an abortion once or induces performs who trial, as to 1 10 At two witnesses testified guilty of homi has attained fetus gestational age Ms. Chisholm's fetus. O.S.1991, cide). 718. The Also see attending pregnancy physician her testi- without reservation legislature clear and was gesta- 22 weeks" fied the fetus was "around provides "quick This statute to a child". tion; examiner testified the medical of an the wilifal "approximately to 23 weeks." The degree. manslaughter in the first rate examiner testified survival an underdevel- "very would be low" for such emphasize that be T7 These statutes oped gave the a 10% to 20% homicide of a fetus fetus and fetus criminal for fore even with extensive medi- chance of survival showing a imposed, there must be be up examiner looked cal care. The medical potentially viable and able that the fetus was in mother, "survivability rate" for a fetus a medi- to live outside of womb textbook; only cal he admitted that the book begins with presumption of and the survivability fetuses gestation contained rates for be- showing attained a a the fetus had ginning at 24 and that he "made a age weeks al of 24 weeks. slight extrapolation" to arrive at the surviva- (1) when the fetus 18 Therefore bility 22 of a week fetus. is less than has not attained and/or {11 evidence, degree charge testimony a of first gestation, and weeks (2) State, appropriate; when the light murder not in a most favorable to the is viewed than not is less child is viable and/or does not Ms. Chisholm's fetus was establish time of Ms. death or weeks, Chisholm's but evidence shows womb, (hav within the mother's "quick" child is "presumptively it viable" even was manslaughter in liability may imposed weeks), for age ing gestational attained the (see 0.9.1991, 713); § degree the first Appellant's therefore cannot sustain and we (3) reached 24 the unborn child has when degree first Murder of the conviction for testimony gestation and medical weeks However, in III. unborn fetus Count viable, then the shows the unborn beyond to show a evidence was sufficient Murder, in charge Degree First should be carrying was reasonable doubt Chisholm § O.S.Supp.1998 TOL.7. violationof death, living up to the time of her a beyond 14-15 the fetus had matured charge A will not stand for criminal support gestation. would This evidence who is causing the death of an unborn child Child, Quick yet quick within its mother's womb.2 for Death of a which not conviction O.S.Supp.2000, cases, manslaughter is under should be avail most this information pre- Accordingly, the facts 713.3 under charge is at the time able State required by Although "quick stat- Such awareness is not child" is not defined result." - ute, generally statutory as a fetus that language the term is defined an essen- and is not extent, developed within the mother's has so as to move we tial element of the crime. To that (4th Dictionary womb. See Black's Law language dicta and that believe that ed.1968) be, is, Tarver should overruled. hereby State, Relying Knowledge 1982 OK CR on Tarver the woman was is neces- manslaughter sary degree a first element for the dissent submits conviction O.S.1991, § 713 cannot be sustained under 0.$.1991, conviction pro- showing the defendant knew the woman ... who uses or em- vides "[elvery person Tarver, against whom he acted was ploys or other means with the instrument require § 713 did the defen the Court held guilty thereby destroy such child ... is intent kill, have a but then dant intent thereby pro- ... in case the death of the child say prove the defen went on to the State must (em- degree." in duced, of the first his act "with the awareness that dant committed added). phasis likely quick would the death of the unborn here, Appellant's we FIND conviction sented degree, in the first and the in sentence Count degree III Murder in Count should twenty years imprison- III is MODIFIED to hereby degree be and is MODIFIED to first ment. Manslaughter, causing the death of a hereby Appel- MODIFY LUMPKIN, P.J.: concurs in results. twenty in III lant's sentence Count J.;: CHAPEL, part/dissents in concurs years imprisonment. part. [ Proposition one does not warrant re independent lief. Substantial evidence cor STRUBHAR, part/dissents J.: concurs confessions, Appellant's roborated and the part. evidence was sufficient to sustain the convic LILE, specially J.: concurs. degree tions for first Murder on Counts I State, Spuehler and II. 1985 OK CR LUMPKIN, Presiding Judge: Concur ¶ 7, 202, 203-204; Tilley Result. 48, ¶ 14, € 1 I concur in the results reached Appellant's proposi 1 13 No relief on third opinion. I have con- required, tion claim of error as the ad regarding analysis. cern some of the performance in dressed counsel's his defense 12 It is undeniable that science and medi III, Ap Count and we have ordered greatly cine progressed have pellant's since the insti conviction in Count III modified. grant Appel preambles tution of We further decline to relief on most of the to our erimi- proposition lant's Baird, fourth of error and decline nal statutes. See Nealis v. State, adopt viability (Okl.1999);Hughes purposes and define 868P.2d 730 establishing jury a uniform instruction. The (Okl.Or.1994). opinion recog As the Court's trial court not abuse in did its discretion its nizes, this evolution is continuous and cannot instructions, definition of and the as be tethered to a finite standard of review as whole, fairly accurately and stated the law. protection society. of life within our State, 80, ¶ 52, Omalza v. O.S.1981, recognized Hughes We in that "was in an protect enacted effort to Lastly, addition, we find the admission of human life". Id. at 784. photo State's Exhibit error. Court 26 was The stated fetus, graph of the unborn extracted from its protection Our that decision this extends to body post-mortem, mother's was relevant clearly viable human fetuses in accord viability; on photograph the issue of Moreover, legislative light intent. in misleading, highly inflammatory and was liability imposed the civil which can be 0.S8.1991,

prejudicial, $ 2408. As we wrongful under Oklahoma law for the Appellant's have modified conviction and sen fetus, death of a viable human it would be III, tence on Count no further relief is re unjust protection most to refuse to extend quired. complained The photo other to a human fetus under Oklahoma's State, graphs properly were admitted. Le v. (internal general homicide statute. cites ¶55, 25, 535, 548, 1997OK CR cert. omitted) denied, 118 S.Ct. Id. L.Ed.2d 702 recognized 1 3 in Hughes We that "a viable Decision nothing human fetus is less than human life". Citing Id. to the Massachusetts case of Com- Judgment 1 15 imposed and Sentences in Counts I and II AFFIRMED. are Count Cass, monwealth v. 392 Mass. hereby (1984), Manslaughter

III is MODIFIED to adopted language N.E.2d 1324 we prosecutions impose specific where give the State seeks to extent the defendant's intent. To statutes, causing meaning legisla- criminal the death of an to both we believe the by committing a willful act ture intended 713 to cover those situations in mother, against prosecution knowledge under either which the State could not show proper pregnancy destroy statute is and which statute the State intent to proceed depend upon elects to under will child. hypnotic almost focus "(aln 1 7 I find the Court's parents cannot of human offspring 0.S.Supp.1998, § 1- provisions of 63 on the other than a

reasonably to be be considered 732(B), twenty-four-week within, it relates to the in and then being ... human statute, giving in period described outside, Id. at the womb". course normal That meaning than it deserves. more pri- statute Hughes overrules The decision presump a rebuttable only creates statute is not a held a viable fetus or caselaw "(aln O.S.1981, pre unborn child shall be meaning tion that "person" within twenty-four if more than sumed to be viable § 652. probable elapsed since the weeks have Courts, indi- and sometimes 4 Too often period of a beginning of the last menstrual viduals, type of "fetus" as some use the word pre A rebuttable woman...." non-entity. Etymolo- to a generic reference can be rebutted both for sumption is one that English, from gy reveals "middle of the word period at a lesser offspring; akin Latin, bearing young, act of previously, the Oklahoma As stated weeks.1 And, in fur- newlyd fruitful." to Latin fetus Supreme in Nealis v. Baird Court or unhatched application, "an unborn ther recognized Hughes vertebrate, obtaining the ba- after especially daily progressions medical sci the almost kind; developing plan of structural its sic ence, the time to move back which continues usually months after con- three human from outside the an unborn child is viable when Webster's See Merriam ception to birth." stated, Hughes womb. As our decision Dictionary. Collegiate at the time "an fetus that was viable this Court I concur the results While injury being' which be the is a 'human application of reaches in this case based O.S.1981, subject of a homicide under recog- statutory language, at the same time (homicide is the of one human stages in has three nize the Court created another')." Therefore, if medical being conception to birth. progression from eighteen- tomorrow stated that science conception, act of stage itself the The first week, sixteen-week, un or or fourteen-week part as a not addressed or discussed which is womb, and child was viable inside the born in the raised this of the of issues resolution by as a result of actions a defendant died one created phase is the case. second the elements of level which constituted opinion in its resolution of the by the Court's homicide, pros that defendant could be then is, at time. That before the Court this issues upon a sustained the ecuted and conviction being "quick" under the the of a child status homicide warranted evidence for the level of language con- Thus, provisions legislative of the by proved. the law is the elements And, 0.S$.1991,§ in the third tained society, lia determining that in our there is who, on that the viable child phase is bility taking of the life of an unborn for the viability, is considered attaining the status of upon lability arises a determi child and a "human at this time as under the law viability of that unborn child. nation of the being". improve and As medical science continues to stages and earlier comes at earlier today in action cre- T6 Under the Court's be, process, birth individuals should of the cor- ating phase pursuant the the second be, put on notice that their acts and will statutory language interpretation rect of the child, of that unborn which lead to death And, "quick" child. in we have a Section that level of via once the child has attained could lead presented in this case the evidence evidence, by the bility as determined either that the a finder fact to determine can, will, taking and make them liable for Thus, not viable. under child was or was child. of the life of that unborn law, "quick" nonviable child Oklahoma liability In to that for the T8 addition appli- of the being purposes a human for still child, in pursu- of an viable the Court death unborn provisions cation of the Section opinion correctly finds Okla- statutory language. this ant to the necessary to render further discussion It is not Montana, of Sandstrom v. requirements S.Ct. 61 L.Ed.2d 39 in the time, however, this any presumption liability application must meet to criminal CHAPEL, J., Part, Concurring in Legislature has also carved out homa liability Dissenting in Part. of a defendant who causes additional may an unborn child who the death of part T1 in part. I coneur and dissent in the state of medical have reached First, affirming Degree I in concur the First but, "quick" the statute is a child. Murder in convictions and sentences Counts prerogative of the That is well within the agree I II. I also that we must reverse Legislature appropriate and it is this Court McCarty's first-degree murder conviction for through prerogative enforce that this should (Count III). of the the death unborn fetus Legislature in 21 decision. As our has stated separately my explain I write ©.S.1991, 691, "homicide is the reasoning very as I believe we should be Therefore, being by one human another". setting clear forth our resolution of the instances, talking each of these we are about State,1 viability. Hughes issue of this taking being a human of the life of Court abandoned "born alive" rule and by Legislature. defined Whether fetus, determined that viable at born, just a child a mature individual be injury, being may human the time of is a adult, child, quick un- a viable unborn or a subject prosecution. of a homicide child, in an born our statutes were enacted prosecution order to sustain a for first-de protect by life effort to human as defined murder, gree un the State must show the fact, I Legislature. Due to that Oklahoma agree I born child was viable. with the propose appropriate it is more to refer to the majority's conclusion that "viable" means the stages protected ap- life human with separately apart fetus is able to live from i.e., child, words, propriate un- mother, or aid.2 without artificial generic rather born than the Following Hughes, we continue use strict term to dehumanize the issue which seems viability standard to determine criminal cul i.e., us, before fetus. pability. The Oklahoma statutes abortion case, presumption

T9 Under facts of this find the create a rebuttable that a fetus presumption, at 24 As a is viable weeks.3 case, jury, trier of fact in could however, interpreted applied the evidence to find it be overcome evidence showing, example, this was viable unborn child and believe the that 26-weelw-old supports affirming developed enough the conviction utero are not evidence twins any significant survive for time outside the murder, degree, III. Count How- ever, uterus, adoption showing due to the of the or that a Court's 22-weelw-old case, question In either fetus is viable. interpretation statutory language 0.8.8upp.2000, relating capable the fetus is survival whether majority I taking agree of an individual for the of the life of a after with the that birth. nonviable, quick join presented suggesting but I in the re- no evidence was by here As there sults reached this Court. 22-week-old fetus was viable. 3, 730, Supreme support). CR The Court 1. 1994 OK 868 P.2d 731. The Okla- cial Oklahoma capacity Supreme a as the homa Court earlier ruled there was has also referred to to determining wrongful cause of action under the death statute live outside the uterus without death a must Nealis for the of viable unborn child. Evans v. whether fetus survive unaided. 98, 438, Olson, 64, 924, Baird, (the OK 996 447 1976 OK. 925. P.2d inde- moment when unborn child can survive mother); Fieker, of its Davis v. Thornburgh College 2. v. American pendently Obstetricians - 156, 505, (citing P.2d n. 17 OK Gynecologists, 747, 2169, and 476 U.S. 106 S.Ct. Heritage dictionary "live American definition Wade, (1986); 90 L.Ed.2d 779 Roe v. Evans, womb"); develop outside 160, 730, 705, 93 S.Ct. 35 L.Ed.2d 147 dictionary (citing P.2d at n. 3 Webster's regarding Oklahoma case law the mean uterus"). "living definition outside ing ambiguous. explicitly of "viable" is Without Black's defines fetal as life which contin- defining a term, this Court has cited South "indefinitely by ues outside the womb natural or living case defined "viable" as Carolina life-supportive systems." Black's Law artificial Hughes, aid. 868 P.2d at 733 without artificial (5th Ed.). Dictionary 1404 (without support). the aid of The Okla artificial Supreme Court has cited definitions which homa Seikel, 1-732(B) ("if provide support. Spencer O.S.Supp.1998, § 3. 63 more than for artificial (sustained begin elapsed probable 24 weeks have since the womb, ning period"). of the menstrual survival outside the with or without artifi- last injure Hughes In we cited Section 713 could sus- them. nothing suggest the fetus womb, allowing punishment of one who as for the and it was tain life outside the pregnant pre- violence a woman old, rebut commits the State failed to I fact, was not viable. sumption that the fetus destroys within her.7 In the fetus pro majority there would be no agree with the without Section therefore degree quick, murder children. McCarty's conviction for first tection for nonviable unborn cannot stand. killing prohibits 1 4 the willful Section 7183,4 opinion "quick" then turns to Section quick The child. The word of an unborn killing the "willful providing easy statute to define as it seems. Re is as by any injury an child commit fetal discussions search shows that homicide person upon child", of the mother" is first ted "quick", "quick refer majority manslaughter. applies degree The interchange "quickening", apparently often notes, child", doing ably. majority "quick us. As the this statute to the facts before so, again special creates a this Court onee statute, not defined is defined while category general intent homicide.5 As Dictionary move Black's Law as "able to below, forth I do not believe Section 718 The Sloane Dorland set within womb."8 applied in case. I therefore can be dictionary "quick defines child" as a modify portion opinion dissent far with discernible movement so devel ing McCarty's conviction to one of first de oped and matured as to be able to survive 718. gree under Section the aid of medical the trauma birth with characteristics we use to define a care-the early legislature 18 The Oklahoma - viable fetus.9 Sloane Dorland also defines adopted 718 from the Dakota Terri Section "quick" "pregnant as and able to feel tory originally penal code. Section 718 was movements," notes that a fetus fetal designed pro part of a series of statutes normally "quick" four and becomes at about abortion, although published cases hibit recent medical die- half months.10 Several any prosecutions reason.6 show "quick" and able view, tionaries define my longer anything has this statute no movement, "quickening" as the to feel fetal constitutionally protected right to with do movement, recognizable fetal and have expresses legislative in to abortion. It "Quicken "quick no definition for child".11 punish criminal a homicidal attack tent to ing" generally to denote the first child. The has a vital used State of the fetus in the womb felt protecting interest the lives of unborn motion "Quick legal term mother.12 with child" as a children, punishing and in those who would O.S.1991,§ definition, legislature the Rhode has 4. 21 713. land Island developed "quick defined child" as one so far e.g., OK See, Fairchild CR trauma and matured as to be able survive the denied, 532 U.S. 121 S.Ct. cert. of birth with the aid of medical care. R.L.Gen. (first degree 149 L.Ed.2d 1004 § 11-23-5, Ann. Laws crime). general abuse intent murder category appears creating special to be Id. of homicide: of a child or fetus punished regard to intent. Dictionary Cyclopedic 11. Taber's Medical (18th Ed.1997) (estimating "quickening" occurs originally 6. The Dakota statutes indexed these pregnancy, noting 20th week but from 18th to of Compiled of the crimes under "Abortion". Laws week); early it be as as 10th Stedman's (1887). Dakota, Pinzel, 1289 Henrie of Territory (esti- (26th Ed.1995) Dictionary 1479 Derryberry Medical and the Current Status the Okla- of mating "quickening" from 16th to 20th occurs Laws, homa Abortion 10 Tulsa Law Journal 273 (1974) pregnancy); (discussing compan- Mustrated Medi- the week of Dorland's decision under (28th Ed.1994) Dictionary (estimating cal 1399 statute, Section which as man- 714, ion punished slaughter prescribing, procuring, "quickening" week of or administer- occurs from 16th 20th ing any pregnancy). to a woman with the substance child). destroy the intent to (6th Ed.); Dictionary Law 1247 Web- 12. Black's Hughes, 868 P.2d at 733 n. 3. Explorer Dictionary Medical 579 ster's New (1999); Medical Dorland's Illustrated Dictionary (6th Ed.) Dictionary 8. Black's Law 1247 - Ed.1994); (28th Sloane-Dorland Annotated 1399 (from (1987) Dictionary Medical-Legal Medical-Legal Dic- 597-98 9. Sloane-Dorland Annotated - tionary pregnancy); Med- Following week of American 597 the Sloane Dor- 16th to 18th

989 weeks, However, early killing of a fetus as as eleven if "having its conceived".13 means proved capable of that fetus is to be movem preg the state of use was to mean earliest ent.15 nancy in the movement of the felt-i.e., quickening.14 was T6 In to resolve the issue of the order applicability of Section 718 when a fetus is adopted first Section 718 was 15 When "quick", remaining look at lan we century, "quick child" the late nineteenth requirement guage. The statute's were, practical purposes, for all "quickening" killing penal that be willful. The code way thing. only to tell reliable the same "willfully" "simply purpose defines or capable of movement in whether a fetus was willingness the act to commit or omis by waiting until mother the womb was injure to", referred intent sion usually happens be felt it move. As this However, the act ther.16 or omis ano pregnancy, by 16 and 20 into tween sion referred to Section 713 is act "quick" enough a child was the time resulting quick of an unborn felt, already relatively to be it was movement by injury to its mother. In Tarver v. viability. parameters of close to our modern State,17 element, we determined "willful Technology point to the where has advanced child," quick killing of an unborn refers to in the can determine womb we movement mind, subjective perpetrator's of state the mother feels movement. well before requires injure that he the mother Many pregnant sonograms women who the death of an with the awareness that sight at of 11 to 15 weeks are amazed likely quick to result. The swimming kicking, jumping, the fetus requires specific no intent to kill statute though they have felt vigorously, often even but the attacker must be reason, no sensation of movement. For this a result could ensue. This aware that such "quick"-whatever of while the definition necessarily implies perpetrator that is-may changed since that not have Section attacking knows that the woman he is adopted, practical meaning is knowledge 713 was its pregnant.18 could be Such very Taking the most common different. proven direct or cireumstantial evidence. definition, capable that a child is one apply 718 cannot unless the defen Section womb, open we leave movement within the dant of the existence of the unborn knows child.19 applies 718 possibility that Section O.S.1991, Encyclopedia Medicine 842 16. 21 ical Association (from (1989) pregnancy); 16th to 20th week of Dictionary Illustrated Medical Melloni's 156, 1332, My 17. 1982 OK CR 1334-5. pregnan- fourth or fifth month of {about specific requires intent conclusion that Tarver (2nd Dictionary cy); English Oxford Vol.XII preg- to kill but does mandate awareness 1989) ("'quicken'" stage defined as the Edition not conflict the Court's does nancy, analysis life; signs of pregnancy at which the child shows general Fairchild v. intent "quickening" sensation of move- defined as first State, 49, 998 P.2d 611. fetus). sug- one author ment early quickening gests common law held Tarver, the defendant was aware In eighth the sixth and week of occurred: between (his wife) eight months mother Wasserstrom, pregnancy. Based on Homicide 6, 533, State, Burrows v. CR Child, 671, 686, Killing ALR 5th Unborn 1250, 460 U.S. S.Ct. denied, cert. WL 1032152. not 75 L.Ed.2d we held a defendant could subsequently prosecuted Section 713 Ed.) (6th Dictionary 13. Black's Law (his wife) victim was 7 where evidence the % pregnant was introduced in the first months (2nd Dictionary English Vol XIII 14 14. Oxford stage capital his trial for her murder. (use 1450). 1989) Edition first noted OK CR State, Hooks S.Ct. denied, cert. Ga. S.E.2d 15. See Brinkley aware L.Ed.2d the defendant was (1984) (terms "quick" child" and "unborn (his girlfriend) pregnant 24 weeks victim vagueness using common-law defini- void for with his child. tions, preg- where defendant she was mother told and mother had nant, old, fetus was 16 weeks requirement movement). 19. awareness does not conflict This felt fetal The Eleventh Cir- already Georgia Supreme vio- the Oklahoma Court's conclusion cuit later found the statute did not with protection rights. born alive is a equal in Nealis that a nonviable fetus late this defendant's (11 Cir.1987). Nealis, a Nealis, 996 P.2d at 453-54. Newsome, Smith v. 815 F.2d 1386 person. majority § 714 is diluted. The nature inescapable conclusion Recognizing the states, statute the elects to interpreted in Tarver cannot "which State § 713 as depend upon the extent of proceed under will case, majori- the in this support a conviction specific the defendant's intent." This is footnote, Tarver. Without ty, in a overrules only § 714 § if the overall intent of majority concludes that case analysis, statutory disregarded. language, That taken know the require a defendant wom- does not whole, ways person a in which a In- as refers to an whom he acts is destroying stead, companion or assists a woman a majority suggests the advises fetus-iLe., By reading statute, abortion. one provides § an intent abortion isolation, majority phrase in renders the for the inten- requirement prosecutions quick child. remainder of the statute useless. of an unborn This tional death statutory disregards completely both the his- similar to 19 Other states with statutes tory surrounding the statutes and case law recognized knowledge § re 713 have § 714 That language itself. stat- Nevada quirement we described Tarver. any manslaughter person prohibits ute as Washington have homicide statutes prescribing, advising administering, a from Oklahoma's, which, punish like the willful her, procuring a substance for or woman or quick by any injury killing of an unborn child using any with an intent to de- instrument other make an mother.21Five states stroy quick child. This an unborn contains act criminal where the unborn simple pro- very elements from the different willfully any injury to the mother killed against killing hibition be murder if it resulted in her would § attacking a woman found in 7183. prohibits manslaughter death.22 Arizona giving meaning T8 Rather than both recklessly causing knowingly or the death of statutes, majority any stage by physical decision renders them an unborn child at § meaningless. reading, injury re to the mother which would be murder Under if the mother were to die.23 South Dakota If, general in the fers to a intent homicide. crime, committing intentionally killing a human prohibits a defendant course of by causing injury to its mother.24 Illinois stranger complete pregnan whose attacks an un cy immediately apparent by eye, prohibits "the intentional homicide of is not dies, automatically knows her fetus the defendant born child" where the defendant pregnant.25 jurisdictions This does not fur woman is Several manslaughter. liable for - statutes, legislative purpose punishing reported under these ther the cases pros or deal criminal abortion homicidal attack on an unborn child. How the cases it, involving where the defendant does not know ecutions. Of the cases convictions can Furthermore, for homicide of an unborn most do not the child exists? case, sought "per- civil to determine was a declaring rights who ception), children, of unborn wrongful applying statute to all Missouri laws. son" under death statutes. That question context is far removed from the of crim- statuies, with the homicide an un combination subsequently "per been deemed a inal under the various homicide statutes. born child has manslaughter, Knapp, son" for both State (Mo.1992), degree S.W.2d and first Majority n. 3. opinion murder, Holcomb, 956 S.W.2d State W.D.1997). (Mo.App. State, § 200.210; 21. Nev. Rev. Wash.Rev.Code § There are cases Ann. 9A.32.060. no reported 13.1103(A)(5). § 23. Ariz.Rev.Stats. construing only from Nevada this statute. Washington charging from are old cases cases § "Human fe- S.D.Codified Laws 22~17-6. manslaughter performed where defendants or any tus" is elsewhere defined as individual homo procured abortions. sapiens to live birth. S.D.Codi- from fertilization Dakota, 22-1-2(50A). § fied Laws North hand, recklessly other includes as § § 782.09; 22. Fla.Stat.Ann. Ga.Code Ann. 16- 5-80; 750.322; Mich.Comp.Laws § Ann. Miss. causing child. N.D.Stats. the death of an unborn 97-3-37; § § Code Ann. R.I.Gen.Laws Ann. 11- 1987 ch. 12.1-17.1-03. adopted also this statute. Mo. 23-5. Missouri (b). 9-1.2(@)(3), ch. State.Ann.1949 559.090. Missouri de- IIl.Comp.Stats.Ann. general child" human leted and substituted a statute The statute defines "unborn this statute (life defining beginning until child" at con- from fertilization birth. "unborn However, touch of intent. on issues that the mother preg of the unborn child is Tarver, types courts have held that these nant. That state of mind is may require pregn statutes awareness of the particular unborn child who is the victim of contrast, ancy.26 In California has deter the attack-the attacker must be aware that person may mined that a be liable for malice particular unborn may child exists and be by injury murder of a fetus to the mother at killed as a result of his attack on the mother. any embryonic stage, time after the or about course, majority Of reading turns weeks, eight being aware that simple into a codification of the transferred However, pregnant.27 mother is the Califor intent rule. An attack on a mother which considerably nia statute is broader than See results the unintended death of her un 713, requires tion as it neither a willful act known unborn manslaughter. Again, specifies nor the victim must an unborn this legislative cannot serve the purpose of quick child.28 preventing homicidal attacks on unborn chil requirement This that the defendant dren. knowledge pregnancy separates 111 A charged defendant under the homi manslaughter criminal under See cide statutes also be Hable unin for an statutes, tion 713 from other homicide includ tended if charged felony homicide it is ing other statutes.29The Ari murder. The willful killing of an unborn Supreme zona Court bas noted that (but viable) child not listed with transferred intent doctrine is not available in the authorizing enumerated erimes a felo crime, requires spe this as the statute ny charge.32 murder finding cific of the defendant's mental state 112 Applying all the elements of Section agree. you toward the unborn child.30 I If case, 713 to the agree facts malice, intending particular act with to kill a supports finding evidence that Felicia person, your person action kills a third Chisholm's unborn a quick child was you harm, you did not intend to are liable for person's murder, death.31 Unlike malice under the statute. I find no evi- McCarty dence knew require any Section 713 does not Ms. Chisholm was intent Indeed, harm any particular person. there It does not no evidence require, homicide, even like other types of McCarty knew Ms. Chisholm at all or had her, perpetrator recklessly. act tragic Howev ever seen This murder occurred er, under Section 718 an attacker McCarty must know when set a fire intended for one set 495, McCall, People Gillespie, 875, Ill.App.3d (Fla. 1984) v. 458 So.2d 2d DCA 382, (defendant (1995) (feticide IIl.Dec. 659 N.E.2d 12 apply statute does not in vehicular homi- knowledge pregnancy); must have allege Willis v. cide case where State did not defendant State, (Miss.1988) (evidence child). willfully 518 So.2d 667 killed the unborn showed defendant knew or should have known of pregnancy, obviously as victim was seven months Davis, 797, Cal.4th People Cal.Rptr.2d pregnant, personally); and defendant knew her (1994). 50, 872 P.2d 591 State, 541, Brinkley v. 253 Ga. 322 S.E.2d 49 (discussing whether statute void for Cal.Stats.1970, 187(a). vagueness trial court noted mother told defen old, pregnant, dant she was majority reading, 29. Under course, already movement); and mother had felt fetal expression legislative statute becomes an in- (Mo.1955) (inju Harness, State v. 280 S.W.2d 11 potentially manslaugh- tent that one is liable for ry capable causing was not death to the moth child-bearing ter for attack on a woman of er, child); carrying Passley who was defendant's age. State, 327, (1942) (no 194 Ga. 21 S.E.2d 230 mother, injury capable causing death to the 30. State v. 166 Ariz. 152, Amaya-Ruiz, apparent where defendant beat her with intent to (1990), 1260, 1281, cert. denied, 500 U.S. child). State, Taylor kill the unborn See also 111 S.Ct. 114 L.Ed.2d 129 (Miss. 795 So.2d 2001 WL 723189 June 2001) (applies design discussion of deliberate 31. Short v. necessary require for malice murder to intent denied, cert. 120 S.Ct. child); ment for murder of Keller, State v. 145 L.Ed.2d 683. Cir.1991) (La.App. (first-degree 592 So.2d 1365 upheld murder where defendant intended to kill 701.7(B). O.S.Supp.1998,§ State v. 32. 21 child); both the mother and her LILE, Judge: Specially Concurs. He is certain- victims, another. killed Ms. Chisholm murders of ly liable for This is a an abortion case. T1 This is not suggests LeBleu, evidence no but and Mr. by citing begins The Court murder case. un- willfully Chisholm's killed Ms. McCarty Seikel, Spencer v. by through Spencer I cannot Consequently quick child. born case, 1126, negligence to re- McCarty's conviction modify to agree in interest "[a] state's proposition for the under Section a conviction flect compelling becomes protecting fetal survival conclusion viability." this Spencer drew at majority clarify the I would Finally, T13 Wade, directly from Roe for prosecution when holding setting forth case. an abortion 35 L.Ed.2d S.Ct. The appropriate. is murder or (to right privacy mother's to weighed the Roe manslaughter un- liability for majority states abortion) right to against the state's elect (1) may where imposed be der Section abortions) (to proscribe potential life protect less than is fetus is not and/or right prior to and found that (so is degree murder first gestation in and after and at privacy paramount, evidence shows appropriate) prohibiting in viability, the State's interest requires also quick. Tarver unborn child is The Roe paramount. becomes abortions de- that, Section for difficulty of its deci acknowledged the is aware the woman fendant sion, that: | recognizing eligibility then majority The describes question difficult need not resolve the "We cate- a third adding degree murder first those trained begins. When of when life reached the child has the unborn gory, where medicine, phi disciplines of respective medical testimo- pregnancy and 24th week to arrive theology unable losophy, and are clarify this I ny it is viable. states would consensus, judiciary, at this prosecution cases language some because knowl of man's point in the development appropriate be first-degree murder would position speculate as to edge, in a is not if the viable even child is an unborn where Wade, U.S. Roe v. the answer." weeks, or reached has not pregnancy 35 L.Ed.2d 93 S.Ct. 24th week of reached the fetus has where the Courts, cases have rec- even in abortion pre- evidence rebuts and no pregnancy viability presupposes medical ognized that Following Hughes, I viability. sumption Rog, "... stated in it is assistance. As charges degree murder would hold that 'viable', that the fetus becomes point at which appropriate where the are is, outside the moth- able to live potentially through evi- viable, may proved be Id. womb, artificial aid." with er's albeit 24 weeks or has reached that the fetus denee So, purposes of these even for womb, with or capable life outside clearly in the context cases and abortion aid. without artificial homicide, viability ability to live after means treatment. delivery, or without Part; STRUBHAR, J., Concurring in weigh rights to competing There are Dissenting in Part. protect potential right the state's II, the affirming Counts I & obvi- Appellant concur 1 I life in the case of homicide. right convictions and sen kill someone Degree ously protected Murder First has no may prohibit The State unborn infant. else's re should agree this Court tences. III, from Degree taking Murder Homicide the First of human life verse Count 0.8.1991, that life. Title spark fetus; the first of the unborn for the death conviction more inclusive however, absence of a the modification I dissent to statute, case. question Manslaughter un answers the Degree First conviction to prohibi- reason to § 718. I see no there is no constitutional der 0.8.1991 broader, legislation and I would reverse Tarver v. more inclusive overrule State1 tion on children protect unborn that could further IIL. Count P.2d 1332. 1. 1982 OK CR statutes,

from homicide. Under our current prose-

death of a viable unborn child

cuted as other homicide case. If the viable, quick,

child was not but nevertheless manslaughter. Leg-

the crime would be constitutionally provi-

islature enact could protect

sions which would the life of the

unborn, non-quick child from homicide.

2002 OK CIV APP 28 Duly HUTSON, Appointed

Tim as the

Acting Representative of the ESTATE Raymond HUTSON, Deceased, OF - Appellant,

Plaintiff/ SUREDDI, M.D.,

Koteswar Rao Du HMA, Inc.,

rant Medical Center d/b/a Oklahoma, Defendants/Ap

Southeastern

pellees.

No. 95349. Oklahoma, Appeals

Court of Civil

Division No. 2.

July

Rehearing Dec. Denied

Certiorari Denied Feb.

Case Details

Case Name: McCarty v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Feb 5, 2002

Citation: 41 P.3d 981

Docket Number: F-1999-1599

Court Abbreviation: Okla. Crim. App.