(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued February 19, 2003 -- Decided June 19, 2003
LaVECCHIA, J., writing for a majority of the Court
The issue in this appeal is whether a jury may be instructed that, as a matter of law, a victim’s determination to be removed from life support is a foreseeable event that does not remove or lessen criminal responsibility for death.
This case involves an automobile accident in which the victim suffered catastrophic injuries
and was consequently placed on life support. On December 29, 1995, sixty-six-year-old William
Patrick was driving northbound on Route 1 in South Brunswick when defendant, with
a blood alcohol content (BAC) between .19 and .22, struck Patrick’s vehicle from
behind. Patrick had to be removed from his vehicle with the “jaws of
life” and transported to the Robert Wood Johnson University Hospital. He suffered numerous
injuries, including a fracture of the spinal column, resulting in paralysis from the
chest down, a “flailed chest,” contusion and puncture of his lung, a head
injury, fractured sinuses, and a broken hip. Patrick was placed on a ventilator
and underwent various surgical procedures. Among other complications, Patrick suffered from a number
of infections, sepsis, and experienced several bouts with pneumonia. On March 13, 1996,
Patrick was transferred to the Kessler Institute for Rehabilitation (Kessler). While there, Patrick
was unable to breathe on his own and suffered from multi-organ system failure.
In addition, doctors at Kessler determined that he was “significantly” brain injured. Although
Patrick improved somewhat during the month of April, by early May he again
experienced severe infections and pneumonia. On May 30, 1996, Patrick was removed from
the ventilator and two hours later was pronounced dead. The Deputy Middlesex County
Medical Examiner determined that the cause of death was sepsis and bronchopneumonia resulting
from multiple injuries from the motor vehicle accident. It was undisputed at trial
that Patrick had expressed to his family a preference not to be kept
alive on life support.
Defendant was charged with first-degree aggravated manslaughter in contravention of N.J.S.A. 2C:11-4a. Defense
counsel filed a motion to dismiss the indictment, contending that the removal of
the ventilator constituted an independent intervening cause that insulated defendant from criminal liability.
The trial court denied that motion, holding that the removal of life support
was not an intervening cause and stating its intention to instruct the jury
to that effect at trial. Consistent with that intention, the trial court included
in its jury charge on causation an instruction concerning intervening cause and a
victim’s determination to remove life support. In pertinent part, the trial court instructed
the jury: “the removal of life supports, in this case a ventilator, is
not sufficient intervening cause to relieve the defendant of criminal liability.” The trial
court added that the causal link is not broken “as long as you
find that the death was the natural result of the defendant’s actions.”
The jury acquitted defendant of aggravated manslaughter, but convicted him of the lesser-included
offense of second-degree vehicular homicide. Defendant appealed, arguing that the trial court erred
when it instructed the jury that removal of life support was not an
intervening cause if death was the “natural result” of defendant’s actions. The Appellate
Division agreed and reversed the conviction.
The Supreme Court granted the State’s petition for certification.
HELD: The trial court did not err in instructing the jury that a
victim’s decision to invoke his right to terminate life support may not, as
a matter of law, be considered an independent intervening cause capable of breaking
the chain of causation triggered by defendant’s wrongful actions.
1. The public policy of this State, as developed by case law, beginning
with In re Quinlan,
70 N.J. 10, cert denied sub nom. Garger v.
New Jersey,
429 U.S. 922,
97 S. Ct. 319,
50 L. Ed 2d
289 (1976), and through legislative enactments such as the “New Jersey Advance Directive
for Health Care Act,” clearly recognizes that an individual has the right to
refuse devices or techniques for sustaining life, including the withholding of food and
the removal of life support. (Pp. 11-16)
2. Causation is an essential element of the charges of aggravated manslaughter and
second-degree vehicular homicide, and is defined by the New Jersey Code of Criminal
Justice (Code). The causation requirement of the Code contains two parts, a “but-for”
test and, when applicable, a culpability assessment: “Although the jury may find that
the defendant’s conduct was a ‘but-for’ cause of the victim’s death . .
. it may nevertheless conclude . . . that the death differed in
kind from that designed or contemplated [or risked] or that the death was
too remote, accidental in its occurrence, or dependent on another’s volitional act to
justify a murder conviction.” State v. Martin,
119 N.J. 2, at 13. Although
our Code, like the Model Penal Code (MPC), does not identify what may
be an intervening cause, removal of life support, as it relates to causation,
should be judged only by the criteria of the Code, assuming that the
law recognizes the possibility that removal can be an intervening cause. Generally, to
avoid breaking the chain of causation for criminal liability, a variation between the
result intended or risked and the actual result of defendant’s conduct must not
be so out of the ordinary that it is unfair to hold defendant
responsible for that result. A defendant may be relieved of criminal liability for
a victim’s death if an “independent” intervening cause has occurred, an act that
breaks the chain and in effect becomes the cause of the victim’s injury.
(Pp. 16-20)
3. Removal of life-sustaining treatment is a victim’s right. It is thus foreseeable
that a victim may exercise his or her right not to be placed
on, or to be removed from, life support systems. Because the exercise of
the right does not break unexpectedly, or in any extraordinary way, the chain
of causation that a defendant initiated and that led to the need for
life support, it is not an intervening cause that may be advanced by
defendant. We do not view the trial court’s jury instruction as constituting an
improper comment on the quality of the evidence nor do we agree with
defendant that the trial court directed a verdict on causation. The trial court’s
statement was correct as a matter of law and its effect was not
the equivalent of directing a verdict when the charge is read a whole.
Decisions from other jurisdictions have reasoned similarly and have held that removal of
life support is not an independent intervening cause in varied, but related, settings.
Similarly, courts have denied requests by defendants for a jury instruction charging that
a victim’s removal from life support constitutes an independent intervening cause sufficient to
relieve the defendant of criminal liability. (Pp. 20-29)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED
to the trial court for reinstatement of the judgment of conviction.
JUSTICE ALBIN filed a separate, dissenting opinion, in which JUSTICE LONG joins, stating
that the trial court’s jury instruction deprived defendant of the opportunity to have
the jury decide the essential issue of causation and that a judge cannot
direct a verdict against a defendant on an element of an offense, even
where evidence of guilt appears overwhelming.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, VERNIERO, and ZAZZALI join in JUSTICE LaVECCHIA’s
opinion. JUSTICE ALBIN filed a separate dissenting opinion, in which JUSTICE LONG joins.
SUPREME COURT OF NEW JERSEY
A-
26 September Term 2002
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
SONNEY PELHAM, a/k/a ZEKE,
Defendant-Respondent.
Argued February 19, 2003 – Decided June 19, 2003
On certification to the Superior Court, Appellate Division, whose opinion is reported at
353 N.J. Super. 114 (2002).
Mark Paul Cronin, Deputy Attorney General, argued the cause for appellant (Peter C.
Harvey, Acting Attorney General of New Jersey, attorney; Lisa Sarnoff Gochman, Deputy Attorney
General, of counsel and on the briefs).
Susan Brody, Assistant Deputy Public Defender, argued the cause for respondent (Yvonne Smith
Segars, Public Defender, attorney).
The opinion of the Court was delivered by
LaVECCHIA, J.
This criminal appeal focuses on a disputed jury instruction involving the subject of
causation. Defendant was convicted of second-degree death by auto, in contravention of N.J.S.A.
2C:11-5. At trial, the court instructed the jury that a car-accident victim's voluntary
removal from a respirator was legally insufficient as an independent intervening cause and
thus incapable of breaking the chain of causality between defendant’s acts and the
victim’s death. Specifically, the charge informed the jury that if it found “that
the defendant’s actions set in motion the victim’s need for life support[,] the
causal link between the defendant’s actions and the victim’s death is not broken
by the removal or refusal of life support as long as you find
that the death was the natural result of the defendant’s actions.” The Appellate
Division reversed and remanded for a new trial because, in its view, "the
charge to the jury on intervening cause deprived defendant of his constitutional right
to have the jury in a criminal trial . . . decide all
elements of the charged offense." State v. Pelham,
353 N.J. Super. 114, 126
(2002). We reverse.
It is beyond dispute that individuals have the right to self-determination in respect
of medical care generally and, specifically, in respect of rejecting or removing life
support devices or techniques. We conclude that the jury may be instructed, as
a matter of law, that a victim's determination to be removed from life
support is a foreseeable event that does not remove or lessen criminal responsibility
for death.
The facts of the horrific car accident in which defendant, Sonney Pelham, was involved are summarized from the trial record. On the evening of December 29, 1995, William Patrick, a sixty-six-year-old lawyer, was driving his Chrysler LeBaron in the right lane of northbound Route 1 in South Brunswick. At approximately 11:42 p.m., a 1993 Toyota Camry driven by defendant struck the LeBaron from behind. The LeBaron sailed over the curb and slid along the guardrail, crashing into a utility pole before it ultimately came to rest 152 feet from the site of impact. The Camry traveled over a curb and came to rest in a grassy area on the side of the highway.
Two nearby police officers heard the collision and rushed to the scene. The officers found Patrick, still wearing his seatbelt, unconscious and slumped forward in the driver’s seat. The rear of the LeBaron was crumpled through to the rear tire and the backseat, and the convertible top was crushed. Patrick was making “gurgling” and “wheezing” sounds, and appeared to have difficulty breathing. His passenger, Jocelyn Bobin, was semi-conscious. Emergency crews extricated the two using the “jaws of life” and transported them to Robert Wood Johnson University Hospital (Robert Wood Johnson). Bobin was treated and later released.
At the accident scene, Officer Heistand smelled an odor of alcohol on defendant’s breath, and noted that he was swaying from side to side and front to back. He had no injuries, but was “belligerent.” Heistand believed defendant was intoxicated. Three field sobriety tests were conducted. Defendant failed all three. He was placed under arrest for driving while intoxicated, transported to the police station, and later taken to Robert Wood Johnson for a blood alcohol test. He eventually consented to be tested approximately two hours after the accident. Two separately administered tests indicated that defendant’s blood alcohol content (BAC) at that time was .18 to .19. Experts assessed his BAC between .19 and .22 at the time of the accident.
Patrick’s condition was critical on his arrival at Robert Wood Johnson. He had suffered a constellation of injuries, including a spinal column fracture that left him paralyzed from the chest down and a “flailed chest,” a condition in which the ribs are broken in multiple places causing uneven chest wall movement during each breath. Other injuries included a contusion and puncture of his lung, a head injury, fractured sinuses, and a broken hip. The catastrophic injuries Patrick experienced made it virtually impossible for him to breathe on his own. Paralysis rendered him unable to use his abdominal muscles and he had aspirated contents of his stomach that were now lodged in his airway despite an implanted nasal gastric tube. He was placed on a ventilator. Within five days of the accident, Patrick experienced “Adult Respiratory Distress Syndrome,” a diagnosis indicating that his lungs had begun to fail. His heart beat was rapid and irregular, and his blood pressure was dropping because of the turmoil within his body. Low blood pressure triggered the start of kidney failure.
Patrick’s paralysis rendered him at an increased risk for pulmonary thromboemboli, or blood clots. Accordingly, doctors implanted a vena cava filter through the major vein in the groin area and into the major blood vessel to the heart. The filters were intended to trap clots that form in the lower extremities. A ventilator tube inserted through Patrick’s throat was converted to a surgical airway through his neck and into his windpipe. Because Patrick was unable to feed himself, he was fed initially by a tube inserted through his nose to the stomach, and later by a tube directly into the stomach. In addition, because paralysis left him unable to control his bladder or bowels, a Foley catheter was inserted.
During his hospitalization, Patrick continually had bladder and urinary tract infections as a result of the catheter, and sepsis occurred. He also experienced antibiotic-resistant infections common to hospital settings, as well as numerous bouts with pneumonia.
On March 13, 1996, Patrick was transferred to the Kessler Institute for Rehabilitation (Kessler), because it specialized in the care of patients with spinal cord injuries. When he arrived, Patrick was unable to breathe on his own, and was suffering from multi-organ system failure. Medication was required to stabilize his heart rhythm. He was extremely weak, with blood-protein levels that placed him at high risk of death. He was unable to clear secretions in his airways, and thus his oxygen levels would drop requiring medical personnel repeatedly to clear the secretions. Complications from the ventilator caused pneumonia to recur due to his inability to cough or to protect himself from bacteria. Bowel and urinary tract infections continued.
While at Kessler, Patrick also was monitored by psychiatric staff. He presented as depressed, confused, uncooperative, and not engaged psychologically. At times he was “hallucinating,” even “psychotic.” The staff determined that he was “significantly” brain injured. Nonetheless, Patrick was aware of his physical and cognitive disabilities. During lucid moments, he expressed his unhappiness with his situation, and, on occasion, tried to remove his ventilator.
Patrick improved somewhat during the month of April, but then his condition rapidly regressed. By early May, severe infections returned, as well as pneumonia. It was undisputed at trial that Patrick had expressed to his family a preference not to be kept alive on life support. Because of his brain damage, his lack of improvement, and his severe infections Patrick’s family decided to act in accordance with his wishes and remove the ventilator. He was transferred to Saint Barnabas Medical Center and within two hours of the ventilator’s removal on May 30, 1996, he was pronounced dead. The Deputy Middlesex County Medical Examiner determined that the cause of death was sepsis and bronchopneumonia resulting from multiple injuries from the motor vehicle accident.
Defendant was charged with first-degree aggravated manslaughter in contravention of N.J.S.A. 2C:11-4a. Defense counsel filed a motion to dismiss the indictment, contending that the removal of the ventilator constituted an independent intervening cause that insulated defendant from criminal liability. See footnote 1 The trial court held that the removal of life support was not an intervening cause and denied the motion. State v. Pelham, 328 N.J. Super. 631, 638-39 (Law Div. 1998). In its decision, the court stated its intention to instruct the jury to that effect at trial. Ibid.
At trial, defendant’s arguments focused on the reliability of the blood evidence and challenged the integrity of the chain of custody. He contended that the destruction of blood evidence, along with the inconsistent results of both BAC tests, demonstrated the unreliability of the results. Although the State produced expert testimony that Patrick's death was causally connected to the injuries he suffered as a result of the accident, defendant did not counter with a medical expert to refute the causal connection between Patrick’s death and his accident injuries.
Consistent with its earlier stated intention, the trial court included in its jury charge on causation an instruction concerning intervening cause and a victim's determination to remove life support. On those points, the trial court instructed the jury as follows:
To establish causation the State must prove two elements beyond a reasonable doubt. First, that but for defendant’s conduct William Patrick wouldn’t have died. Second, William Patrick’s death must have been within the risk of which the defendant was aware. If not it must involve the same kind of injury or harm as the probable result of the defendant’s conduct and must also not be too remote, too accidental in its occurrence or too dependant [sic] upon another’s volitional act to have a just bearing on the defendant’s liability or on the gravity of the offense. In other words, the State must prove beyond a reasonable doubt that William Patrick’s death was not so unexpected or unusual that it would be unjust to find the defendant guilty of aggravated manslaughter.
Now, it is alleged that the victim William Patrick died approximately five months
after the collision which occurred on December 29, 1995. With regard to the
issue of remoteness there is no requirement that the State prove that the
victim died immediately or within a certain period of time after the collision.
Nevertheless, you may consider the time that elapsed between the collision and Mr.
Patrick’s death along with all of the other evidence in the case in
determining whether the State has proven beyond a reasonable doubt that the defendant
caused William Patrick’s death as I’ve defined that term.
The State alleges that William Patrick died as a result of medical complications
from the injuries which he sustained in the collision. Subject to the definition
of causation which I have already given you the State may satisfy its
burden of proving causation by proving beyond a reasonable doubt that William Patrick
died from medical complications that resulted from injuries which he sustained in the
collision provided that these injuries and medical complications were the precipitating and contributing
causes of his death.
With regard to the issue of accident, if you find that Mr. Patrick’s
death resulted from preexisting medical conditions independent of the injuries and accompanying medical
complications which he received as a result of the collision as the defendant
contends then you must find him not guilty. If you find that Mr.
Patrick died as a result of prior medical conditions being exacerbated or made
worse by the collision you are instructed that criminal liability is not lessened
because the victim is not in excellent health.
In other words, if you find beyond a reasonable doubt that the defendant’s
conduct accelerated or worsened any preexisting medical condition or illness which Mr. Patrick
had thereby resulting in his death and meets the other conditions of causation
then you should find the defendant caused Mr. Patrick’s death.
Let me now instruct you on what an intervening cause is and what
it’s not. An intervening cause is a cause which breaks the original chain
of causation. In that regard you have heard testimony that on May 30,
1996 William Patrick was taken off the ventilator pursuant to his wishes and
that he died several hours later. I instruct you that the removal of
life supports, in this case a ventilator, is not a sufficient intervening cause
to relieve the defendant of criminal liability. In other words, the removal of
life supports from Mr. Patrick who is not brain dead was not a
sufficient intervening cause to relieve Mr. Pelham from criminal liability.[
See footnote 2]
If you find that the defendant’s actions set in motion the victim’s need
for life support the causal link between the defendant’s actions and the victim’s
death is not broken by the removal or refusal of life support as
long as you find that the death was the natural result of the
defendant’s actions.
The jury acquitted defendant of aggravated manslaughter, but convicted him of the lesser-included
offense of second-degree vehicular homicide. He was sentenced to a custodial term of
seven years with a mandatory parole ineligibility period of three years. In the
appeal from his conviction, defendant argued, among other points, that the trial court
erred in instructing the jury that removal of life support was not an
intervening cause if death was the “natural result” of defendant’s actions. The Appellate
Division agreed and reversed the conviction.
Pelham, supra, 353 N.J. Super. at 126-27.
See footnote 3
We granted the State's petition for certification, 174
N.J. 545 (2002).
New Jersey has been in the forefront of recognizing an individual's right to refuse medical treatment. It is now well settled that competent persons have the right to refuse life-sustaining treatment. In re Farrell, 108 N.J. 335 (1987). Even incompetent persons have the right to refuse life-sustaining treatment through a surrogate decision maker. In re Conroy, 98 N.J. 321 (1985).
The parameters of the right to refuse medical treatment were first addressed in the seminal case In re Quinlan, 70 N.J. 10, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed.2d 289 (1976). We concluded that the right to decide whether to forego life-sustaining treatment was “a valuable incident [to the] right of privacy” afforded by both the New Jersey and United States Constitutions. Id. at 41. Any interest the State might have in preservation of life “weakens and the individual’s right to privacy grows as the degree of bodily invasion increases and the prognosis dims.” Ibid.
As we explained, because Karen Ann Quinlan's prognosis was “extremely poor,” any State-asserted interest in preserving life was outweighed by her right to self-determination. Ibid. The “bodily invasion” involved in her care was extensive, including constant nursing care, antibiotics, a catheter, a respirator, and a feeding tube. Ibid. We held that the only practical way to protect Ms. Quinlan’s right to refuse treatment when she was incompetent was to permit her guardian to determine whether Ms. Quinlan would have refused life-sustaining treatment. Id. at 41-42. Cognizant of the liability risk attendant when physicians carry out such wishes, we also made clear that a doctor’s termination of treatment, and consequent acceleration of death, is not homicide. Id. at 51-52 (stating that act of removing life support simply allows “expiration from existing natural causes”). Since the 1976 decision in Quinlan, numerous other courts, including the United States Supreme Court, have recognized the so-called “right to die.” See Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed.2d 224 (1990) (recognizing that competent person has Fourteenth Amendment liberty interest in refusing unwanted medical treatment).
Quinlan was only the first of several opinions in which we were called on to address issues involving the right to refuse treatment. Nearly ten years later, in Conroy, supra, 98 N.J. at 365, we considered whether a decision maker could refuse life-sustaining treatment on behalf of an elderly, infirm, and incompetent patient who was expected to die within a year but who still had some limited conscious interaction with her environment.
In Conroy, we focused on the extent to which the individual previously had indicated his or her desire to be subjected to life-sustaining treatment. Id. at 362-63. In setting forth guidelines for those circumstances, we started from the baseline that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.” Id. at 346 (quoting Schloendorff v. Soc’y of N.Y. Hosp., 211 N.Y. 125, 129-30 (1914)). We observed that the right of self-determination is tempered by the State’s countervailing interests, including: (1) preservation of life; (2) prevention of suicide; (3) protection of innocent third parties; and (4) safeguarding the integrity of the medical profession. Id. at 348-49. However, those state interests usually will not preclude a competent person from refusing treatment for himself or herself. Id. at 349. As we explained,
[r]efusing medical intervention merely allows the disease to take its natural course; if death were eventually to occur, it would be the result, primarily, of the underlying disease, and not the result of a self-inflicted injury. . . .
Recognizing the right of a terminally ill person to reject medical treatment respects
that person’s intent, not to die, but to suspend medical intervention at a
point consonant with the “individual’s view respecting a personally preferred manner of concluding
life.” The difference is between self-infliction or self-destruction and self-determination.
Relying on the common-law right of self-determination, we established two tests (the “limited-objective” best interests test and the “pure-objective” test) for use in determining whether life support may be terminated for individuals who are no longer competent to express their wishes. Id. at 365.
Two years later, we employed the tests in a trio of cases that differed from Conroy. In re Farrell, supra, 108 N.J. at 335; In re Peter, 108 N.J. 365 (1987); and In re Jobes, 108 N.J. 394 (1987). In deciding those appeals, we again emphasized that “the fateful decision to withdraw life-supporting treatment is extremely personal. Accordingly, a competent patient’s right to make that decision generally will outweigh any countervailing state interests.” In re Jobes, supra, 108 N.J. at 426-27. Importantly, in recognition of the fundamental societal question involved, we called on the Legislature to set guidelines in respect of refusal of treatment. In re Farrell, supra, 108 N.J. at 342. Thirty-eight states already had enacted laws addressing the right to refuse treatment. Id. at 342 n.2.
In 1991, the Legislature responded by enacting the “New Jersey Advance Directives for Health Care Act,” which provides procedures and standards for the implementation of so-called “living wills” or “advance directives.” L. 1991, c. 201. In its findings, the Legislature declared:
This State recognizes, in its law and public policy, the personal right of the individual patient to make voluntary, informed choices to accept, to reject, or to choose among alternative courses of medical and surgical treatment.
[N.J.S.A. 26:2H-54a.]
The Act is intended to prevent the loss of “the right to control decisions about one’s own health care . . . in the event a patient loses decision making capacity and is no longer able to participate actively in making his own health care decisions.”
N.J.S.A. 26:2H-54c. It enables “competent adults to plan ahead for health care decisions through the execution of advance directives, such as living wills and durable powers of attorney, and to have the wishes expressed therein respected.” Ibid.
Thus, the public policy of this State, as developed by case law and through legislative enactment, clearly recognizes that an individual has the right to refuse devices or techniques for sustaining life, including the withholding of food and the removal of life support. We turn then to examine the effect to be given to a victim’s exercise of that right in the context of a homicide trial.
A.
Defendant was charged with aggravated manslaughter, which, according to the New Jersey Code of Criminal Justice (Code), occurs when one "recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4a. The trial court charged the jury on aggravated manslaughter and the lesser-included offense of second-degree vehicular homicide, defined as "[c]riminal homicide . . . caused by driving a vehicle or vessel recklessly." N.J.S.A. 2C:11-5a. Causation is an essential element of those homicide charges.
The Code defines “causation” as follows:
a. Conduct is the cause of a result when: (1) It is an antecedent but for which the result in question would not have occurred; and
(2) The relationship between the conduct and result satisfies any additional causal requirements imposed by the code or by the law defining the offense.
. . . .
c. When the offense requires that the defendant recklessly or criminally negligently cause
a particular result, the actual result must be within the risk of which
the actor is aware or, in the case of criminal negligence, of which
he should be aware, or, if not, the actual result must involve the
same kind of injury or harm as the probable result and must not
be too remote, accidental in its occurrence, or dependent on another's volitional act
to have a just bearing on the actor's liability or on the gravity
of his offense.
The causation requirement of our Code contains two parts, a “but-for” test under which the defendant’s conduct is “deemed a cause of the event if the event would not have occurred without that conduct” and, when applicable, a culpability assessment. State v. Martin, 119 N.J. 2, 11-13 (1990) (discussing Code changes); see also II New Jersey Code: The Final Report of the New Jersey Law Commission § 2C:2-3 commentary at 49-51 (1971) (II N.J. Code). Under the culpability assessment,
[w]hen the actual result is of the same character, but occurred in a different manner from that designed or contemplated [or risked], it is for the jury to determine whether intervening causes or unforeseen conditions lead to the conclusion that it is unjust to find that the defendant’s conduct is the cause of the actual result. Although the jury may find that the defendant’s conduct was a “but-for” cause of the victim’s death . . . it may nevertheless conclude . . . that the death differed in kind from that designed or contemplated [or risked] or that the death was too remote, accidental in its occurrence, or dependent on another’s volitional act to justify a murder conviction.
Our Code, like the Model Penal Code (MPC), does not identify what may be an intervening cause. Martin, supra, 119 N.J. at 12-13. Instead, the Code "deals only with the ultimate criterion by which the significance of such possibilities ought to be judged.” Id. at 13 (quoting II N.J. Code § 2C:2-3 commentary at 50) (emphasis added). Removal of life support, as it relates to causation, should be judged only by the criteria of the Code, assuming that the law recognizes the possibility that removal can be an intervening cause. The dissent cites the text of N.J.S.A. 2C:2-3c and suggests that the reference to “another’s volitional act” supports having the jury determine whether a crime victim’s removal from life support constitutes an independent intervening cause. While “another’s volitional act” undoubtedly would require a jury to consider whether, for example, a doctor’s malpractice in treating a crime victim constituted an intervening cause that had broken the chain of causation after a criminal defendant’s act, we do not believe, as the dissent suggests, that the Legislature intended the reference to “another’s volitional act” to include a crime victim’s decision to be removed from life support.
"Intervening cause" is defined as "[a]n event that comes between the initial event in a sequence and the end result, thereby altering the natural course of events that might have connected a wrongful act to an injury." Black's Law Dictionary (7th ed. 1999). Generally, to avoid breaking the chain of causation for criminal liability, a variation between the result intended or risked and the actual result of defendant's conduct must not be so out of the ordinary that it is unfair to hold defendant responsible for that result. Wayne R. LaFave & Austin W. Scott, Jr., Handbook on Criminal Law § 35 (1972); see also Martin, supra, 119 N.J. at 14. A defendant may be relieved of criminal liability for a victim’s death if an “independent” intervening cause has occurred, meaning “an act of an independent person or entity that destroys the causal connection between the defendant’s act and the victim’s injury and, thereby becomes the cause of the victim’s injury.” People v. Saavedra-Rodriguez, 971 P.2d 223, 225-26 (Colo. 1998) (explaining Wharton’s rule on intervening cause); see generally Charles E. Torcia, 1 Wharton's Criminal Law § 26 (15th ed. 1993) (stating that independent intervening cause that defendant cannot foresee is sufficient to relieve defendant of criminal responsibility for homicide). The question we address, then, is whether the removal of the victim's life support may constitute, as a matter of law, an “independent intervening cause,” the significance of which a jury may evaluate as part of a culpability analysis.
B.
The longstanding, clear policy of this State recognizes the constitutional, common-law, and now statutorily based right of an individual to accept, reject, or discontinue medical treatment in the form of life supporting devices or techniques. An ill or injured person has that personal right and is free to exercise it, at his or her discretion, directly or through a family member or guardian acting in accordance with the person’s wishes. In other words, a person’s choice to have himself or herself removed from life support cannot be viewed as unexpected or extraordinary.
Decisions from other jurisdictions have reasoned similarly and have held that removal of life support is not an independent intervening cause in varied, but related, settings. See footnote 4 Courts have confronted whether a victim's removal from life support renders a homicide verdict against the weight of the evidence and have rejected the contention that there was insufficient evidence to support a conviction when the victim expired following his or her removal from life support. See, e.g., State v. Fierro, 603 P.2d 74 (Ariz. 1979); Porter v. State, 823 S.W.2d 846 (Ark. 1992); People v. Saldana, 121 Cal. Rptr. 243 (Ct. App. 1975); State v. Guess, 692 A.2d 849 (Conn. App. Ct. 1997), aff’d, 715 A.2d 643 (Conn. 1998); Johnson v. State, 404 S.E.2d 108 (Ga. 1991); People v. Caldwell, 692 N.E.2d 448 (Ill. App. Ct. 1998); Ewing v. State, 719 N.E.2d 1221 (Ind. 1999); Carrigg v. State, 696 N.E.2d 392 (Ind. Ct. App.), transfer denied, 706 N.E.2d 165 (Ind. 1998); Spencer v. State, 660 N.E.2d 359 (Ind. Ct. App. 1996); State v. Meyer, No. 01-1373, 2 002 WL 1332798 (Iowa Ct. App. June 19, 2002); People v. Bowles, 607 N.W.2d 715 (Mich. 2000); State v. Olson, 435 N.W.2d 530 (Minn. 1989); State v. Meints, 322 N.W.2d 809 (Neb. 1982); People v. Laraby, 665 N.Y.S.2d 180 (App. Div. 1997), aff’d, 703 N.E.2d 756 (N.Y. 1998); People v. Velez, 602 N.Y.S.2d 758 (Sup. Ct. 1993); State v. Johnson, 381 N.E.2d 637 (Ohio 1978); Eby v. State, 702 P.2d 1047 (Okla. Crim. App. 1985); Commonwealth v. Kostra, 502 A.2d 1287 (Pa. Super. Ct. 1985); State v. Ruane, 912 S.W.2d 766 (Tenn. Crim. App. 1995); Felder v. State, 848 S.W.2d 85 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 829, 114 S. Ct. 95, 126 L. Ed.2d 62 (1993).
Thus, in Bowles, supra, the defendant contended on appeal that the State’s evidence on causation was insufficient because “the victim’s death was caused by the intervening cause of removal from life support systems that were required to sustain the life of the victim.” 607 N.W. 2d at 717. In its affirmance of the defendant’s conviction, the Supreme Court of Michigan observed that “the implementation of a decision to terminate life-support treatment is not the cause of the patient’s subsequent death. Instead, the discontinuance of life-support measures merely allows the patient’s injury or illness to take its natural and inevitable course.” Ibid. (quotation omitted). The court concluded that the case involved “no separate intervening cause. Rather, we find in these facts only the unsuccessful efforts of the medical community to overcome the harm inflicted by the defendant, and the acceptance by the victim’s family of the reality of the fatal injuries.” Id. at 718.
Similarly, courts have denied requests by defendants for a jury instruction charging that a victim's removal from life support constitutes an independent intervening cause sufficient to relieve the defendant of criminal liability. See, e.g., People v. Funes, 28 Cal. Rptr.2d 758 (Cal. Ct. App. 1994); In re J.N., 406 A.2d 1275 (D.C. 1979); State v. Yates, 824 P.2d 519 (Wash. Ct. App.), rev. denied, 833 P.2d 1390 (Wash. 1992). In Yates, supra, because life support had been removed from one of the defendant’s victims who had been in a persistent vegetative state following a gunshot wound to her head, the defendant argued that the jury should have been given the following instruction:
In determining whether or not [the victim]
died as a result of the defendant’s acts,
the State has the burden of proving beyond a
reasonable doubt that the removal of food
and water was not a new independent cause of
death.
The court agreed with the trial court’s rejection of the requested instruction, stating:
When life support is removed, the cause of death is not the removal, but whatever agency generated the need for the life support in the first instance. Here, then, the removal of food and water could not have been a legally cognizable cause of death, and the court properly refused the proposed instruction.
The California Court of Appeals reasoned similarly in Funes, supra, when it held that the defendant was not entitled to an instruction on intervening causes because “as a matter of law, the decision to withhold antibiotics was not an independent intervening cause. Consequently, the court was not required to instruct on [that] issue.” 28 Cal. Rptr. 2d at 768. The court noted that a duty exists to instruct on an issue that is supported by the evidence, and conversely, that no such duty arises in respect of an issue unsupported by the evidence. Ibid. Because an independent intervening cause absolving the defendant from criminal liability must be “unforeseeable” or an “extraordinary and abnormal occurrence,” the Court concluded that on the facts of the case before it “the decision to withhold antibiotics was, as a matter of law, not an independent intervening cause. Instead, it was a normal and reasonably foreseeable result of defendant’s original [criminal] act.” Id. at 769. There was no other reasonable inference from the evidence; the removal of life support was determined not to be independent from the defendant’s criminal act. Ibid. See also People v. Olah, 2 000 WL 33418962 (Mich. Ct. App.) (affirming trial court’s determination to charge jury that “[r]efusing medical treatment is foreseeable”), appeal denied, 619 N.W.2d 547 (Mich. 2000). Cf. Fecske v. State, 757 So.2d 548 (Fla. Dist. Ct. App.), rev. denied, 776 So.2d 1073 (Fla. 2000) (holding that trial court erred in instructing jury that independent intervening cause could not be found as matter of law because malpractice was possible proximate cause of death); Weir v. State, 777 So.2d 1073 (Fla. Dist. Ct. App.), rev. denied, 796 So.2d 539 (Fla. 2001) (distinguishing Fecske, and holding that trial court correctly instructed jury on preexisting condition that “alone would not excuse a defendant from guilt”).
We agree with the widely-recognized principle that removal of life support, as a matter of law, may not constitute an independent intervening cause for purposes of lessening a criminal defendant’s liability. Removal of life support in conformity with a victim’s expressed wishes is not a legally cognizable cause of death in New Jersey. See In re Conroy, supra, 98 N.J. at 351. As aptly put by the District of Columbia Court of Appeals, “[t]he defendant’s desire to mitigate his liability may never legally override, in whole, or in part, the decisions of the physicians and the family regarding the treatment of the victim.” In re J.N., supra, 406 A. 2d at 1282. Thus, both the trial court and the Appellate Division correctly concluded that defendant was not entitled to dismissal of the indictment for aggravated manslaughter on the basis that the removal of Patrick’s life support constituted an independent intervening cause relieving defendant of criminal liability. Pelham, supra, 328 N.J. Super. at 639, aff’d, 353 N.J. Super. at 123-24. See also State v. Watson, 191 N.J. Super. 464 (App. Div.), certif. denied, 95 N.J. 230 (1983).
Removal of life-sustaining treatment is a victim’s right.
It is thus foreseeable that a victim may exercise his or her right not to be placed on, or to be removed from, life support systems. Because the exercise of the right does not break unexpectedly, or in any extraordinary way, the chain of causation that a defendant initiated and that led to the need for life support, it is not an intervening cause that may be advanced by the defendant. The question is whether it was impermissible for the trial court to have so instructed the jury. The Appellate Division viewed the trial court’s instruction as, in effect, directing a verdict for the prosecution because the instruction constituted an improper comment on the quality of the evidence. That, the court concluded, impermissibly invaded the province of the jury. We disagree.
Causation is a factual determination for the jury to consider, but the jury may consider only that which the law permits it to consider. The purpose of the charge to the jury is to inform the jury on the law and what the law requires. Martin, supra, 119 N.J. at 15 (stating “[jury] charge is a road map to guide the jury . . . . [T]he court must explain the controlling legal principles and the questions the jury is to decide.”); State v. Green, 86 N.J. 281, 287-88 (1981) (observing that “trial court should explain to the jury in an understandable fashion its function in relation to the legal issues involved. Entailed is a comprehensible explanation of the question that the jury must determine, including the law of the case applicable to the facts that the jury may find”) (citing Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591-92 (1966) (stating that “court's instructions must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them”)).
Our courts have recognized other circumstances in which a jury is not permitted to consider certain facts. For example, a defendant’s criminal liability is not lessened by the existence in the victim of a medical condition that, unbeknownst to the defendant, made the victim particularly vulnerable to attack. State v. Hofford, 169 N.J. Super. 377 (App. Div. 1979). The trial court here recognized as much when it correctly instructed the jury to that effect. Similarly, we now hold that a defendant’s criminal liability may not be lessened by a victim’s subsequent decision to discontinue life support. Therefore, although the trial court must be careful not to suggest that it is directing a verdict on causation, see infra ___ (slip op. at 28), here, the court’s instruction viewed in its entirety informed the jury that it could not consider the victim’s removal from life support as an intervening cause of his death so long as the death was the natural result of defendant’s actions. That is, if defendant’s actions set in motion the victim’s need for life support, without which death would naturally result, then the causal link is not broken by an unforeseen, extraordinary act when the victim exercises his or her right to be removed from life support and thereupon expires unless there was an intervening volitional act of another, such as gross malpractice by a physician. See footnote 5 The trial court’s statement was correct as a matter of law and its effect was not the equivalent of directing a verdict when the charge is read as a whole.
This case is not like State v. Ingenito, 87 N.J. 204, 213-14 (1981) (concluding that permitting operation of collateral estoppel would have effect of making finding for injury on element of charged offense), or State v. Ragland, 105 N.J. 189, 195-96 (1986) (finding that referring jury to its earlier verdict in severed trial on unlawful possession of weapon operated, in effect, as directed finding on element of offense). In this case, the court did not direct a verdict on causation; rather, the jury was instructed on what it could not consider as part of its determination of the causation question. Further, the jury properly was told that it could consider remoteness in respect of the length of time that passed between the date of the accident and the date on which Patrick expired after having been removed from life support (as well as the cause and progression of his medical complications). Thus, the jury could not consider removal as the cause of death when determining causation but it could consider whether the causal link was broken by remoteness in time of death.
In conclusion, we hold that there was no error in instructing the jury that a victim’s decision to invoke his right to terminate life support may not, as a matter of law, be considered an independent intervening cause capable of breaking the chain of causation triggered by defendant’s wrongful actions. The judgment of the Appellate Division is reversed and the matter remanded to the trial court for reinstatement of the judgment of conviction.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, VERNIERO, and ZAZZALI join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate dissenting opinion in which JUSTICE LONG joins.
SUPREME COURT OF NEW JERSEY
A- 26 September Term 2002
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
SONNEY PELHAM, a/k/a ZEKE,
Defendant-Respondent.
ALBIN, J., dissenting.
“Hard facts make bad law” is an old saw and an apt description
of the resolution of this appeal. In this vehicular homicide case, William Patrick,
a sixty-six-year-old lawyer, suffered multiple devastating injuries when his car, which was stopped
at a light, was rear-ended by this drunk-driving defendant. The majority opinion describes
at length the victim’s gruesome injuries, painful hospitalizations, and medical treatment. After the
passage of five months during which his condition continued to deteriorate, Patrick, in
accordance with his wishes, was taken off a ventilator, and died several hours
later.
Defendant was charged with aggravated manslaughter in the death of Patrick and convicted
of the lesser-included offense of vehicular homicide. The question before this Court concerns
the charge to the jury in which the trial judge, in essence, directed
a verdict on the element of causation. The judge instructed the jury that
the removal of the ventilator was not “a sufficient intervening cause to relieve
the defendant of criminal liability,” provided that “defendant’s actions set in motion the
victim’s need for life support” and the victim’s “death was the natural cause
of defendant’s actions.” In reversing defendant’s conviction, the Appellate Division, in a thorough
and thoughtful opinion by Judge Wallace, held that “the trial judge’s instructions on
intervening cause deprived defendant of the opportunity to have the jury decide the
essential issue of causation.” State v. Pelham,
353 N.J. Super. 114, 126 (App.
Div. 2002). I agree with Judge Wallace and add these words in dissent
from the majority’s decision.
Proof of causation is an element of every criminal offense and, until today,
was no different from other elements that must be submitted to the jury.
The New Jersey Code of Criminal Justice (Code) reserves to the jury the
ultimate authority to determine whether intervening circumstances break the chain of causation of
criminal culpability. In this case, the Code required the jury to determine whether
the manner of Patrick’s death, which followed from the voluntary removal of life
support, was “too remote, accidental in its occurrence, or dependent on another’s volitional
act to have a just bearing on the actor’s liability or on the
gravity of his offense.” N.J.S.A. 2C:2-3c. The general and broad language of that
provision was intended to apply to the infinite number of variables that arise
in the unique circumstances of each new case, including that of this defendant.
Causation was a matter that the jury should have been trusted to decide
correctly.
Instead, the majority ignores the statutory language that governs this case and imports
into the law of causation its own moral and philosophical preferences as it
departs from the bedrock principle that a judge cannot direct a verdict against
a defendant on an element of an offense, even where evidence of guilt
appears overwhelming. State v. Anderson,
127 N.J. 191, 205 (1992). The majority has
carved from the Code’s broad language on causation an inflexible rule that, in
all cases, a victim’s termination of medical care to support life may never
be considered an independent intervening circumstance capable of breaking the chain of causation.
The majority has come to that conclusion because it finds that the victim’s
removal of life-sustaining treatment is always foreseeable.
I object not so much to the wisdom of that new rule of
law, as to its failure to find any support in the text of
the Code. The Code’s drafters left to the jury the commonsense judgment of
distinguishing those cases in which intervening circumstances “would have a just bearing on
the actor’s liability or on the gravity of his offense.” N.J.S.A. 2C:2-3c. Our
jurisprudence has traditionally deferred to the jury the delicate and difficult task of
deciding the facts on which a defendant’s guilt or innocence depends. State v.
Ingenito,
87 N.J. 204, 211-12 (1981).
The majority’s new rule is not only at odds with the Code and
the fundamental right of an accused to have the jury decide each element
of an offense, but will also have unanticipated consequences as it is reflexively
applied to future cases. The jury will no longer be permitted to consider
whether the chain of causation is broken in homicide cases where the victim
refuses to take antibiotics or other benign medication necessary to sustain life without
interfering with the enjoyment of life; where the victim declines a blood transfusion
for religious or other reasons; or where the victim decides that he no
longer wishes to continue using a medical device, such as a respirator or
dialysis machine. The removal of a ventilator or the refusal to take medication
or to allow a blood transfusion, all of which may be necessary to
sustain life, may or may not, depending on the circumstances, “have a just
bearing on the actor’s liability or on the gravity of his offense,” but
the ultimate decision always has been one for the jury.
The application of a general rule, such as the Code’s on intervening circumstances,
necessarily will lead to varied outcomes, depending on the facts of a particular
case. The understanding that two separate juries might decide the same case differently
is an acknowledgement of the lack of perfection in our system of justice.
That jurors, through their collective experience and humanity, are the conscience of the
community is not a weakness, but a strength and the reason why, I
suspect, we have not lost faith in the jury as the best means
of delivering justice. In its quest for consistency, the majority sacrifices the patient
application of a general rule intended to apply to particular facts to render
a just result.
This case is not about a patient’s right to self-determination, to decide the
course of his medical treatment, including its termination, or the right to die
with dignity. The majority conflates the right of the patient to self-determination with
the right of the accused to have his case decided by a jury.
A patient’s right to refuse or terminate life-sustaining medical treatment is indisputable. N.J.S.A.
26:2H-53 to –78; In re Conroy,
98 N.J. 321, 347-55 (1985). That right
is not in conflict with a defendant’s right to have a jury decide
whether he should be held criminally liable for causing the death of a
victim who elects to terminate his life. U.S. Const. amend. VI; N.J. Const.
art. I, ¶ 9. The defendant and prosecutor have no standing to interfere with
the patient’s decision-making process regarding the course of his medical treatment. It is
highly improbable that a crime victim would remain on life support solely for
the purpose of assuring that a defendant who victimized him would not be
charged with homicide. It is equally improbable that a victim would decline medical
intervention for the purpose of assuring a homicide prosecution.
Our jurisprudence and the legislative histories of our Code and the Model Penal
Code (MPC) provision upon which our criminal causation provision was patterned do not
support the path taken by the majority. A defendant is not guilty of
vehicular homicide unless death “is caused by driving a vehicle . . .
recklessly.” N.J.S.A. 2C:11-5a (emphasis added). Causation is a material element that must be
proved by the State beyond a reasonable doubt. N.J.S.A. 2C:1-13a, -14h(1)(a), -14i; N.J.S.A.
2C:2-2.
See footnote 6
N.J.S.A. 2C:2-3 addresses the causation requirements of reckless homicide. First, the defendant’s conduct
must be a “but-for” cause of the victim’s death. N.J.S.A. 2C:2-3a(1); State v.
Martin,
119 N.J. 2, 11 (1990). Second, because vehicular homicide requires that the
defendant acted recklessly,
the actual result must be within the risk of which the actor is
aware or,
. . . if not, the actual result must involve the same kind
of injury or harm as the probable result and must not be too
remote, accidental in its occurrence, or dependent on another’s volitional act to have
a just bearing on the actor’s liability or on the gravity of his
offense.
[N.J.S.A. 2C:2-3c.]
Our causation provision, although not identical to its MPC source, is firmly rooted
in MPC § 2.03,
See footnote 7
and has been construed by this Court accordingly. See Martin,
supra, 119 N.J. at 11-19 (construing N.J.S.A. 2C:2-3a and -3b consistently with their
respective sources, MPC § 2.03(1) and (2)). The premise underlying each code’s causation provision
is that variations between the actual result of a defendant’s conduct and that
contemplated, designed, or probable under the circumstances are to be treated as “problems
of culpability rather than metaphysical problems of causation.” Id. at 11. See also
II The New Jersey Penal Code, Final Report of the New Jersey Criminal
Law Revision Commission cmts. 1 & 3 on N.J.S.A. 2C:2-3 at 49-51 (1971)
(N.J. Final Report); MPC § 2.03 cmt. 2 at 258 (1985); MPC § 2.03 cmts.
1 & 2 at 132 (Tentative Draft No. 4 1955) (MPC Tentative Draft).
Both codes avoid the vague concept of “proximate cause,” and focus on whether
a remote result of which a defendant’s conduct was a “but-for” cause “bears
on the defendant’s culpability for the offense.” Martin, supra, 119 N.J. at 11.
New Jersey is only one of two states that have adopted MPC § 2.03
and explicitly added the intervening volitional conduct of others as a factor to
be considered in determining causation.
See footnote 8
The inclusion of that factor in cases of
human intervention is based on “deeply engrained common sense ideas about causality and
responsibility,” where the issue “properly turn[s] on the voluntariness of the intervening actor’s
conduct — to the extent that his intervention is independent and voluntary, the defendant’s
liability should be diminished.” MPC § 2.03 cmt. 3 at 262. Moreover, only New
Jersey has incorporated the term “just” bearing into its causation provision. Despite the
American Law Institute’s (ALI) debate on the wisdom of putting “undefined questions of
justice to the jury” by including the optional term “just” in its final
MPC provision, our Code’s drafters, by adopting that term, surely believed its proponents’
rationale that its inclusion “ha[d] the merit of putting it clearly to the
jury that the issue it must decide is whether . . . it
would be just to accord” significance to the actual result’s remoteness, accidental quality,
or dependence on another’s volitional act in determining liability. MPC § 2.03 cmt. 3
at 261 n.16.
N.J.S.A. 2C:2-3b and –3c “deal explicitly with variations between the actual result and
that designed, contemplated or risked.” N.J. Final Report, supra, cmt. 3 on N.J.S.A.
2C:2-3b, -3c at 50. “The actual result is ‘to be contrasted with the
designed or contemplated []or . . . probable[] result in terms of its
specific character and manner of occurrence.’” Martin, supra, 119 N.J. at 12 (emphasis
and alteration added) (quotingMPC, supra, § 2.03 cmt. 3 at 260 n.13). “Thus, when
the actual result occurs in the same manner and is of the same
character as the designed or contemplated [or probable] result, the causation requirement is
satisfied.” Ibid. On the other hand, if the actual result does not occur
in the same manner as the designed, contemplated, or probable result, “‘the culpabil