A defendant who, while eluding a police officer, caused an accident that fatally injured another driver, could not escape liability for murder in the commission of a felony by arguing that “gross medical negligence” was the reason for the victim’s death. The court said the defendant’s evidence demonstrated that his criminal acts not only “put into operation” the events causing the victim’s death, but also directly caused the death.
On the evening of March 29, 2013, while eluding a police officer, appellant drove his SUV through a red light and hit another vehicle. The victim was transported to the Virginia Commonwealth University Medical Center. Despite receiving medical care, he died the following morning.
At trial, Dr. Jennifer Bowers, the Assistant Chief Medical Examiner, testified as an expert in forensic pathology. Dr. Bowers told the jury that the victim died from “blunt force injury to the torso.” On cross-examination, Dr. Bowers acknowledged that the victim was not treated for a pericardial effusion or tamponade because “[i]t was not caught in time;” however, she also stated that the victim’s condition may not have been stable enough for treatment even if it had been observed, given the extent of his injuries.
Appellant filed a motion in limine to admit expert evidence that medical malpractice contributed to the victim’s death. After considering the proffered testimony, the court denied appellant’s motion to introduce evidence of medical malpractice.
A jury convicted appellant of murder in the commission of a felony.
Appellant asserts that the court erred by excluding evidence of medical malpractice because it deprived him of his due process right to assert a defense. He contends that his proffered evidence was admissible to establish that an unforeseeable intervening cause negated his liability for felony murder.
Virginia courts have long recognized that “[a]n intervening act which is reasonabl[y] foreseeable cannot be relied upon as breaking the chain of causal connection between an original act of negligence and subsequent injury.” Appellant suggests that this court “should create a new exception to the felony murder doctrine in which gross medical negligence in the course of treating the victim is an unforeseeable intervening cause that relieves an accused of liability for felony murder.” However, neither the law nor the facts support adopting the proposed “exception” in this case.
Despite appellant’s claim that the victim’s death resulted not from his felonious acts, but from negligent medical care at the hospital, he failed to proffer any evidence that the alleged medical malpractice was a superseding event that acted as the sole cause of death. Dr. Doloresco, appellant’s expert, could not conclude that treating the pericardial effusion would have resulted in the victim’s survival, given the severity of the blunt force trauma he sustained. He agreed that the blunt force trauma injuries were fatal and the victim would have died if his injuries went untreated. Although Dr. Doloresco testified that the failure to treat the pericardial effusion was a breach of the standard of care, he also agreed that the pericardial effusion was caused by the blunt force trauma from the accident. Therefore, appellant’s proffered evidence demonstrated that his criminal acts not only “put into operation” the events causing the victim’s death, but also directly caused the victim’s death.
Appellant’s proffered evidence was incapable of showing that the victim’s death resulted solely from medical malpractice. Accordingly, any evidence of medical malpractice was collateral, irrelevant and properly excluded from the jury’s consideration.
Additionally, the court did not deny appellant’s due process right to assert a defense. Dr. Doloresco’s testimony would have supported the commonwealth’s theory of the case: that the victim died as a result of injuries he sustained in a car accident that was “related in time, place, and causal connection” to appellant’s commission of felony eluding. Because appellant’s proffered evidence was not relevant, material, or favorable to his defense, the court did not err by excluding it.
Porter v. Commonwealth, Record No. 1761-17-2, Dec. 26, 2018. CAV (O’Brien) from Chesterfield Cir. Ct. (Hauler). Kevin E. Calhoun for Appellant, Liam A. Curry for Appellee. VLW No. 018-7-337, 7 pp.