The defendant, Dennis Soucy, was convicted of manslaughter, RSA 630:2 (1986), and first degree assault, RSA 631:1 (1986) (current version at RSA 631:1 (Supp. 1994)), after a jury trial in Superior Court (Nadeau, J.). He argues, inter alia, that the trial court erroneously excluded evidence that the victim would not have died but for the negligence of his treating physicians, and that his twin
The following facts are supported by the evidence. One evening, Robert Duval walked unannounced and uninvited into Soucy’s home. Soucy severely beat Duval, kicking him twice in the side and punching him in the face. The force of these blows fractured several of Duval’s facial bones and ribs, collapsed one of his lungs, and punctured his spleen. The attack ended outdoors, where Soucy struck Duval with a lawn chair and then left him. Later, a friend of Duval happened to discover the stricken man in Soucy’s yard and brought him to the hospital. Physicians detected and treated all of his injuries except the lacerated spleen, which slowly bled until he died three days later. Soucy was charged with manslaughter and first degree assault.
An offer of proof, prior to trial, disclosed that two medical experts were willing to testify at trial that Duval would not have died if the spleen’s tear had been discovered earlier and repaired. Such failure to notice the injury, they each said, was negligence, but neither termed the negligence “gross.” Soucy sought to present this evidence to the jury as a supervening cause of Duval’s death, sufficient to relieve him of criminal responsibility for manslaughter. The trial court, however, ruled against such admission, adopting the State’s argument that evidence of medical malpractice could not be admitted as a supervening cause unless the malpractice constituted gross negligence and was the “sole” cause of death. The court ruled as a matter of law that the alleged negligence was not the sole cause of Duval’s death, and it did not submit that issue to the jury.
On appeal, the parties dispute the proper formulation of the supervening cause test. The focus on which supervening cause test should have been applied, however, ignores a more fundamental problem; namely, even if the trial court properly embraced the sole cause test, the defendant should have been allowed to introduce evidence of medical negligence so that the jury could determine whether that test was met. As we explained in State v. Williams,
In the present case, the defendant was charged with manslaughter, RSA 630:2,1(b), defined as recklessly causing the death of another. Whether the defendant “caused” the death is a factual element of the crime, and therefore one which must be determined by the jury. Here, the defendant contended that he did not “cause” the death because of the supervening medical negligence. The proper role of the trial, court here, then, was to determine the proper supervening cause test, admit appropriate medical evidence relevant to whether that test was met, and instruct the jury as to that test. In the present case, specifically, the defendant should have been allowed to introduce evidence of medical negligence so that the jury could decide whether the sole cause test embraced by the trial court was met. The fact that the supervening cause test used by the trial court included a gross negligence requirement does not affect this conclusion because, once the standard of care is established by expert testimony, the jury can determine for itself the degree of deviation from that standard. Jamas v. Krpan,
Although the causation element must be submitted to the jury, not all potential defenses to the element are jury issues. Only defenses raised and supported by some evidence fall to the province of the jury. State v. Hast,
It may be argued that whereas only “some evidence” is required to get a pure defense to the jury, an affirmative defense, requiring the defendant to prove the matter on a balance of the probabilities, could be taken from the jury when no reasonable juror could find that the burden was met. A pure defense is a denial of an element of the offense, while an affirmative defense is a defense overriding the element. See United States v. Bailey,
The issue of supervening cause falls into the former category. Causation is an element of the crime of manslaughter. The State must prove, beyond a reasonable doubt, the existence of a causal link from the criminal act to the death. Although not statutorily defined as either a “defense” or as an “affirmative defense” under the New Hampshire Criminal Code, assertion of supervening cause is an effort to negate this link. If, in the presence of an alternate cause, the causal link remains, causation is established. If, in the presence of an alternative cause, the link is broken, causation is not established. Thus, if some evidence is offered, otherwise admissible, which is reasonably calculated to provide a reasonable doubt on the issue of causation, it must be admitted, and the element of causation, with the supported defense, must be submitted to the jury.
We now turn to the double jeopardy issue. The State concedes that, in this particular case, separate convictions for manslaughter and assault violate double jeopardy. While the defendant argues that we must accordingly vacate his assault conviction, he also concedes that if we reverse his manslaughter conviction, the State may elect either to retry the whole case or to reinstate the vacated assault conviction. We therefore conditionally vacate the defendant’s assault conviction and leave this election to the State. Because the State may elect to try the defendant again for manslaughter, we will address those issues raised by the parties likely to arise on retrial.
A core issue at a retrial would certainly be the proper formulation of the supervening cause test. The State argues that the sole cause test embraced by the trial court is the proper one, while the defendant urges that we adopt a test which would relieve a defendant of criminal responsibility when he can establish that, but for gross medical negligence, the victim would not have died. We decline to adopt either test presented by the parties and instead adopt a test requiring that when, within the causal chain required to be proven for conviction of manslaughter, there is evidence of two causal acts, the criminal act alleged and medical malpractice, the causal link is broken only when
We note that the purpose of all of these tests is to determine whether medical malpractice on a victim is a supervening cause of the victim’s death, thus breaking the causal connection between the beating and the death in the eyes of the law and relieving the defendant of criminal responsibility. See generally W. LaFave & A. Scott, Criminal Lal § 35, at 257-58 (1972). The causal connection at issue is legal causation, or proximate cause, and is a question in manslaughter cases that arises when “the actual result of the defendant’s conduct varies . . . from the result which his conduct created a risk of happening.” Id. § 35, at 251.
In the absence of legislative guidance, many courts have struggled with the question of legal causation in cases such as this, where there was evidence that the victim would have survived had it not been for negligent medical care. The overwhelming majority have attempted to establish bright-line tests for determining the limits of legal causation. As the defendant points out, courts in several jurisdictions have applied the rule that gross medical negligence constitutes a supervening cause if, but for the gross negligence, the victim would have lived. See, e.g., People v. Calvaresi,
The issue as to the proper supervening cause test exists because the legislature has defined the crime of manslaughter, as charged here,
Next, the defendant contends that he should have been allowed to discover records generated by the hospital’s internal review committee. The defendant does not dispute that these records were originally confidential and privileged under RSA 151:13-a (1990), but argues that this privilege was waived when Dr. Butler, who appointed and convened the committee, communicated some of the committee’s findings to the State Medical Examiner. RSA 151:13-a, III, however, is explicit that the privilege may only be waived by a “hospital board of directors or trustees,” and we held in In re “K”,
The defendant further contends that even if the privilege was not waived, the trial court still erred in refusing to disclose the information after in camera review because this information was necessary to his defense and included exculpatory evidence. Upon review of the committee’s records, however, we find no error on the part of the trial court.
The defendant raises claims of abuse of trial court discretion on evidentiary matters, both in discovery and at trial. In light of our holding in this case, we do not address these issues, leaving them to the sound discretion of the trial court, in the event of retrial, under the circumstances then existing.
Manslaughter conviction reversed; assault conviction conditionally vacated; remanded.