People v. Stewart

WEISBERGER, CJ.

This case comes before us on the appeal of the defendant, Tracy Stewart, from a judgment of conviction entered in the Superior Court on one count of second-degree murder in violation of G.L. 1956 section 11-23-1. We affirm the judgment of conviction. The facts insofar as pertinent to this appeal are as follows.

On August 31, 1988 twenty-year-old Tracy Stewart (Stewart or defendant) gave birth to a son, Travis Young (Travis). Travis's father was Edward Young, Sr. (Young). Stewart and Young, who had two other children together, were not married at the time of Travis's birth. Travis lived for only fifty-two days, dying on October 21, 1988, from dehydration.

During the week prior to Travis's death, Stewart, Young, and a friend, Patricia McMasters (McMasters), continually and repeatedly ingested cocaine over a two- to three-consecutive-day period at the apartment shared by Stewart and Young. The baby, Travis, was also present at the apartment while Stewart, Young, and McMasters engaged in this cocaine marathon. . . . The primary source of funds from which the three obtained money for this cocaine spree was Stewart's and McMasters's Aid to Families with Dependent Children (AFDC) checks. . . .

The cocaine binge continued uninterrupted for two to three days. . . . McMasters testified that defendant was never far from her during this entire two- to three-day period except for the occasions when McMasters left the apartment to buy more cocaine. During this entire time, McMasters saw defendant feed Travis only once. Travis was in a walker, and defendant propped a bottle of formula up on the walker, using a blanket, for the baby to feed himself. McMasters testified that she did not see defendant hold the baby to feed him nor did she see defendant change Travis's diaper or clothes during this period.

Ten months after Travis's death defendant was indicted on charges of second-degree murder, wrongfully causing or permitting a child under the age of eighteen to be a habitual sufferer for want of food and proper care . . . and manslaughter. The second-degree-murder charge was based on a theory of felony murder. The prosecution did not allege that defendant intentionally killed her son but rather that he had been killed during the commission of an inherently dangerous felony, specifically, wrongfully permitting a child to be a habitual sufferer. Moreover, the prosecution did not allege that defendant intentionally withheld food or care from her son. Rather the state alleged that because of defendant's chronic state of cocaine intoxication, she may have realized what her responsibilities were but simply could not remember whether she had fed her son, when in fact she had not. . . .

The defendant was found guilty of both second-degree murder and wrongfully permitting a child to be a habitual sufferer. A subsequent motion for new trial was denied. This appeal followed. . . .

The defendant moved for judgment of acquittal on all three counts at the close of the state's case and again at the close of all the evidence. In regard to the felony-murder charge defendant claimed that the evidence was insufficient to prove that the crime of wrongfully permitting a child to be a habitual sufferer is an inherently dangerous felony. . . . The motion for judgment of acquittal [was] denied. . . .

Rhode Island's murder statute, section 11-23-1, enumerates certain crimes that may serve as predicate felonies to a charge of first-degree murder. A felony that is not enumerated in section 11-23-1 can, however, serve as a predicate felony to a charge of second-degree murder. . . . Thus the fact that the crime of wrongfully permitting a child to be a habitual sufferer is not specified in section 11-23-1 as a predicate felony to support a charge of first-degree murder does not preclude such crime from serving as a predicate to support a charge of second-degree murder.

. . . To serve as a predicate felony to a charge of second-degree murder, a felony that is not specifically enumerated in section 11-23-1 must . . . be an inherently dangerous felony. In re Leon. . . .

The defendant contends that wrongfully permitting a child to be a habitual sufferer is not an inherently dangerous felony and cannot therefore serve as the predicate felony to a charge of second-degree murder. In advancing her argument, defendant urges this court to adopt the approach used by California courts to determine if a felony is inherently dangerous. This approach requires that the court consider the elements of the felony "in the abstract" rather than look at the particular facts of the case under consideration. See, for example, People v. Patterson. . . . With such an approach, if a statute can be violated in a manner that does not endanger human life, then the felony is not inherently dangerous to human life. People v. Burroughs. . . . Moreover, the California Supreme Court has defined an act as "inherently dangerous to human life when there is 'a high probability that it will result in death.'" Patterson. . . .

In People v. Caffero . . ., a two-and-one-half-week-old baby died of a massive bacterial infection caused by lack of proper hygiene that was due to parental neglect. The parents were charged with second-degree felony murder and felony-child abuse, with the felony-child-abuse charge serving as the predicate felony to the second-degree-murder charge. Examining California's felony-child-abuse statute in the abstract, instead of looking at the particular facts of the case, the court held that because the statute could be violated in ways that did not endanger human life, felony-child abuse was not inherently dangerous to human life. . . . By way of example, the court noted that a fractured limb, which comes within the ambit of the felony-child-abuse statute, is unlikely to endanger the life of an infant, much less of a seventeen-year-old. . . . Because felony-child abuse was not inherently dangerous to human life, it could not properly serve as a predicate felony to a charge of second-degree felony murder. . . .

The defendant urges this court to adopt the method of analysis employed by California courts to determine if a felony is inherently dangerous to life. Aside from California, it appears that Kansas is the only other state which looks at the elements of a felony in the abstract to determine if such felony is inherently dangerous to life. . . . The case of Ford v. State . . . [is] cited in defendant's brief for the proposition that possession of a firearm by an ex-felon is not an inherently dangerous felony which can support a felony-murder conviction, actually holds that the attendant circumstances of the particular case should be considered in determining whether the underlying felony "created a foreseeable risk of death." . . . The Georgia Supreme Court reversed the conviction for felony murder holding that a status felony, including the possession of a firearm by a previously-convicted felon, is not inherently dangerous. The court explained that there could indeed be circumstances in which such a felony could be considered dangerous (for example when the possession of the firearm was coupled with an aggravated assault or other dangerous felony) but that such circumstances were absent in that case. It held that in that particular case, which did not involve an assault or other criminal conduct, the underlying felony of possession of a firearm by a previously convicted felon was not inherently dangerous and thus could not serve as a predicate to the charge of felony murder. . . .

We decline defendant's invitation to adopt the California approach in determining whether a felony is inherently dangerous to life and thus capable of serving as a predicate to a charge of second-degree felony murder. We believe that the better approach is for the trier of fact to consider the facts and circumstances of the particular case to determine if such felony was inherently dangerous in the manner and the circumstances in which it was committed, rather than have a court make the determination by viewing the elements of a felony in the abstract. We now join a number of states that have adopted this approach. . . .

A number of felonies at first glance would not appear to present an inherent danger to human life but may in fact be committed in such a manner as to be inherently dangerous to life. The crime of escape from a penal facility is an example of such a crime. On its face, the crime of escape is not inherently dangerous to human life. But escape may be committed or attempted to be committed in a manner wherein human life is put in danger. Indeed in State v. Miller . . ., this court upheld the defendant's conviction of second-degree murder on the basis of the underlying felony of escape when a prison guard was killed by an accomplice of the defendant during an attempted escape from the Rhode Island State prison. By way of contrast, the California Supreme Court has held that the crime of escape, viewed in the abstract, is an offense that is not inherently dangerous to human life and thus cannot support a second-degree felony-murder conviction. People v. Lopez. . . .

The amendment of our murder statute to include any unlawful killing "committed during the course of the perpetration, or attempted perpetration, of felony manufacture, sale, delivery, or other distribution of a controlled substance otherwise prohibited by the provisions of chapter 28 of title 21" lends further support for not following California's approach to determining the inherent dangerousness of a felony. G.L. section 11-23-1. . . . According to the statute a person who delivers phencyclidine (PCP), a controlled substance under section (e)(5) of schedule II of G.L. section 21-28-2.08. . ., to another person who then dies either as a result of an overdose or as a result of behavior precipitated by the drug use (such as jumping off a building because of the loss of spacial perception) could be charged with first-degree murder under section 11-23-1. Conversely, the California Court of Appeal has held that when viewed in the abstract, the standard used by California courts to determine whether a felony is inherently dangerous, the furnishing or selling of PCP is not a felony that carries a high probability that death will result. People v. Taylor. . . . Consequently, the California Court of Appeal held that the felony of furnishing PCP could not serve as a predicate to a charge of second-degree felony murder. . . .

The Legislature's recent amendment to our murder statute as well as this court's prior jurisprudence concerning second-degree felony murder . . . reinforces our belief that we should not adopt the California approach to determine whether a felony is inherently dangerous. The proper procedure for making such a determination is to present the facts and circumstances of the particular case to the trier of fact and for the trier of fact to determine if a felony is inherently dangerous in the manner and the circumstances in which it was committed. This is exactly what happened in the case at bar. The trial justice instructed the jury that before it could find defendant guilty of second-degree murder, it must first find that wrongfully causing or permitting a child to be a habitual sufferer for want of food or proper care was inherently dangerous to human life "in its manner of commission." This was a proper charge. By its guilty verdict on the charge of second-degree murder, the jury obviously found that wrongfully permitting a child to be a habitual sufferer for want of food or proper care was indeed a felony inherently dangerous to human life in the circumstances of this particular case. . . .

. . . [W]e are of the opinion that the evidence offered by the state was sufficient to prove beyond a reasonable doubt each of the elements of second-degree felony murder, including that the crime of wrongfully permitting a child to be a habitual sufferer was an inherently dangerous felony in its manner of commission. The defendant's motions for judgment of acquittal on the felony-murder charge on the ground that wrongfully permitting a child to be a habitual sufferer is not an inherently dangerous felony were properly denied.