2009-795 The State of New Hampshire v. Walter Hutchinson, Jr.

Following a jury trial in Superior Court (Nadeau

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Lisa L. Wolford

court, and therefore we do not recite them in their entirety. See State v. The facts of this case are well-documented in two prior opinions of this

insufficient evidence of causation of death. We affirm. argues that the trial court erred in denying his motion to dismiss for possibility of parole. See RSA 630:1-a (2007 & Supp. 2010). On appeal, he killing of Kimberly Ernest, and sentenced to life in prison without the defendant, Walter Hutchinson, Jr., was convicted of first-degree murder for the

and orally, for the defendant.

attorney general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 State v. Sweeney favorable to the State, could have found guilt beyond a reasonable doubt. prove that no rational trier of fact, viewing the evidence in the light most In a challenge to the sufficiency of the evidence, the defendant must

court’s decision on interlocutory appeal. See appealed the trial court’s denial of his motion to dismiss. We affirmed the trial The defendant sought to bar the charges on double jeopardy grounds and which is causation of death. See The State subsequently brought murder charges against the defendant. Here, the defendant was convicted of first-degree murder, an element of

element of legal causation. Ernest’s health as a result of his actions do not establish the necessary causation, the State needed to prove not only that the prohibited result would developing certain illnesses. His sole argument is that the admitted risks to in the first degree if he purposely causes the death of another). “To establish that Ernest’s brain injury, and consequent immobility, increased her risk of RSA 630:1-a, I (a person is guilty of murder vegetative state for the fourteen years prior to her death. Nor does he dispute caused Ernest’s permanent brain injury, leaving her in a persistent, nearprove that he caused Ernest’s death. He does not contest that his actions, 151 N.H. 666, 673 (2005). On appeal, the defendant asserts that the evidence was insufficient to

comfort measures. She died several hours later. respiratory infection. At that point Ernest’s family chose to treat her only with transported to the hospital, where x-rays indicated she had developed a seizure, which lasted approximately forty-five minutes. She was then Ernest’s death. Thereafter, the defendant was tried and convicted of first-degree murder for

those measures, Ernest’s oxygen levels dropped and she sustained a second medication, Dilantin, and placed on oxygen by way of nasal catheter. Despite treatment, and was additionally treated with an extra dose of her seizure five minute seizure. She was again administered Robitussin and nebulizer Two days later, Ernest’s temperature rose again and she sustained a three to personnel administered Tylenol and Robitussin, as well as nebulizer treatment. chest congestion and a fever, and was wheezing and coughing. Nursing home her death, Ernest exhibited signs of illness. On November 3, 2005, she had fourteen years until her death on November 6, 2005. In the days leading up to comatose state in the Rockingham County Nursing Home for approximately damage. See Hutchinson I, 137 N.H. at 592. Ernest remained in a near twenty-one-year-old former girlfriend, causing her to sustain severe brain defendant guilty of attempted murder for beating and strangling Ernest, his the following undisputed facts. On October 8, 1991, a jury found the N.H. 591 (1993) (Hutchinson I). By way of brief background, however, we note Hutchinson, 156 N.H. 790 (2008) (Hutchinson II); State v. Hutchinson, 137 hypoxia caused uncontrolled seizures, which in turn caused additional p. 3 suffered from hypoxia, a decrease in oxygen due to strangulation, and that the for approximately three to three and one half hours. He testified that Ernest assault, testified that in the immediate aftermath of the assault Ernest “seized” Regional Hospital, where she was hospitalized for two weeks following the Dr. John Robinson, a neurologist who treated Ernest at the Portsmouth

unlikely.” these circumstances and having any kind of meaningful life [wa]s very, very believed “the chances of somebody [in Ernest’s condition] recovering under had no history of seizures. He further testified that at the time of treatment he first treated Ernest after the assault, testified that prior to the assault Ernest Dr. David Heller, the emergency room physician at Exeter Hospital who

minutes. defendant, testified that the defendant stated he choked Ernest for five to ten she collapsed. Dr. Albert Drukteinis, a forensic psychiatrist who evaluated the strangled her for at least four minutes and continued to strangle her even after and that after she regained consciousness and attempted to flee, he caught and testified that he beat Ernest’s head into the floor until she lost consciousness, testimony from his 1991 attempted murder trial. In that trial, the defendant beyond a reasonable doubt. At trial, the State introduced the defendant’s support the jury’s finding that the defendant’s conduct caused Ernest’s death Upon review, we conclude that the evidence in this case was sufficient to

death was a natural and direct consequence of the defendant’s conduct. Lamprey and Seymour, whether there was sufficient evidence that Ernest’s would not have occurred but for the defendant’s conduct, and, in keeping with issue before us is whether there was sufficient evidence that Ernest’s death Seymour, and the defendant does not challenge those instructions. Thus, the the trial court instructed the jury on causation consistent with Lamprey and immediate consequence” instruction given in Seymour. Id. at 367-68. Here, defendant’s actions, was substantially the same as the “natural, direct and instruction that the prohibited result must be the “direct result” of the the “direct and substantial factor” language, in combination with an and immediate consequence.” Lamprey, 149 N.H. at 367. We concluded that cause, a substantial factor from which the event follows as a natural, direct without which the event would not have occurred, and the predominating State v. Seymour, 140 N.H. 736, 746 (1996), that “a legal cause is the cause Id. at 367. We analyzed the instructions in light of our previous holding in death as a cause that is a “direct and substantial factor” bringing about death. considered the propriety of jury instructions that described a legal cause of result.” State v. Lamprey, 149 N.H. 364, 366 (2003). In Lamprey, we defendant’s conduct was the legal (or proximate) cause of the prohibited not have occurred but for the conduct of the defendant, but also that the that while he indicated on the death certificate that Ernest died of natural p. 4 preventing aspiration and maintaining control of her seizures. Singer testified years at the nursing home and that concerns for Ernest’s health included Singer testified that he provided medical attention to Ernest for nearly fourteen Nursing Home, testified that he prepared the death certificate for Ernest. Dr. Karl Singer, an attending physician at the Rockingham County

initial injury. from brain damage similar to Ernest’s die within five years of sustaining the lungs due to her immobility. He testified that the majority of people suffering risks to Ernest’s life were pneumonia, infections, seizures, and clots in the from the Portsmouth Regional Hospital, also testified that the most significant Northeast Rehabilitation Hospital where Ernest was treated after her discharge Dr. James Whitlock, a neurologist and chief medical officer at the

provided by the nursing home in which she resided. assault was, in his medical opinion, a testament to the extraordinary care He further testified that the fact that Ernest lived for fourteen years after the

you and I take for granted. supervise all of our everyday vegetative functions, the things that So these patients die from the lack of the ability of the brain to

. . . .

bloodstream is impaired. the lungs so that the ability to get oxygen from the lungs into the because [she is] immobile and then breaking off and traveling up to attack, urinary tract infection, blood clots forming in the legs that [she] would succumb to . . . pneumonia, infection, heart assault, testified that Ernest exhibited decerebration, i.e. suffered a severe hypoxic or anoxic brain injury of any type . . . is The anticipated eventual cause of death in a patient who has Dr. Clinton Miller, a neurosurgeon who also treated Ernest following the

such as Ernest, typically have a shortened life expectancy and that: of the brain. He went on to testify that persons with severe brain damage, for a period between three to five minutes, irreversible death occurs in the cells brain injury. Miller further testified that when the brain is deprived of oxygen and that uncontrolled seizures were the predictable consequence of hypoxic concussive closed head injury, most likely attributable to acute strangulation,” Ernest suffered from “severe, hypoxic brain injury, possibly combined with limbs, and that this indicated a sign of serious brain injury. He testified that

irreversible brain cell death. impairment of her breathing. Robinson further testified that this cycle causes conclusion that Ernest’s heightened risk of developing illness could p. 5 The defendant takes the position that this evidence merely supports a

another person.” underlying event was the attempted strangulation 14 years ago at the hands of cause that led to her death -- even though it was delayed 14 years, that final was homicide, death at the hands of another, and that “th[e] final underlying that, to a reasonable degree of medical certainty, the cause of Ernest’s death infectious bacteria into her lungs, and, eventually, her death. Duval stated Ernest’s immobility and that they combined to cause seizures, aspiration of in the lungs. Duval testified that she believed these conditions were caused by that reaches the brain. She also had pulmonary edema – excess fluid retention artery that supplies blood to the lungs, which would have decreased the oxygen autopsy revealed that she had a pulmonary embolism, a blood clot, in the main sustained fourteen years prior to her death. Duval explained that Ernest’s Ernest’s death, both of which she attributed to the severe brain damage Ernest Duval also testified to two additional health problems that contributed to

pneumonia in the lungs. 5 seizures, and that x-rays revealed that she had aspiration contents and she started seizing again, that medical staff were not able to control the caused her death, and, therefore that the evidence is insufficient to establish into the lungs. Duval further testified that on the day before Ernest’s death aspiration pneumonia, as a result of aspiration of saliva or gastric contents have Duval testified that during those seizures Ernest was at risk for developing term care, which required the continuous administration of seizure medication. partial seizures every one to two months throughout her fourteen years of longworkers were initially able to stop the seizures, Ernest continued to have assault, Ernest was found unresponsive and seizing. Although emergency Duval explained that Ernest’s medical records indicated that after the

strangulation. So it all dates back to 14 years previously.” injury she suffered on that day in 1991. And that was because of the related to the seizures she was having, and that directly related to the brain Ernest “essentially stopped breathing, but it was a complication that directly be complications resulting from the 1991 brain injury. Duval testified that performed an autopsy of Ernest and determined the cause of Ernest’s death to Dr. Jennie Duval, deputy chief medical examiner, testified that she

put things in context,” and that this was “a very common error.” doctors “tend to focus on the last few minutes or hours and don’t really often the last 14 years of her life.” He stated that when filling out death certificates, the certificate “didn’t really reflect the whole nature of [Ernest’s] problem over of the cause of Ernest’s death when he filled out the death certificate and that certificate. He further testified that he had been too limited in his assessment causes, he “did not think about” Ernest’s brain injury when preparing the p. 6 Finally, we note the defendant’s argument that in Commonwealth v.

eliminated by her longer lifespan. points to no evidence that Ernest’s heightened risk for those complications was with severe brain injury and immobility are at risk. Moreover, the defendant evidence to show that Ernest died of the very complications for which persons of death directly caused by the strangulation. As noted above, there was ample projected for patients who are similarly brain injured, she had outlived the risk lived for fourteen years with her injuries, as opposed to the five years generally Nor do we find merit in the defendant’s contention that because Ernest

reasonable doubt that the robbery produced the stress which, in turn, caused convinced the victim had died of a heart attack, he was not convinced beyond a examiner, and sole expert witness in the case, testified that while he was condition who died of a heart attack after a purse-snatching. The medical are distinguishable. Embry concerned a victim with a pre-existing heart reasonable doubt. See Embry, 272 A.2d at 179. The facts in Embry, however, degree of medical certainty” was found insufficient to establish proof beyond a Embry, 272 A.2d 178 (Pa. 1971), expert testimony given to “a reasonable not the natural and direct cause of her death. strangulation which caused her immobility, or that the defendant’s assault was Miller suggested that Ernest’s death would have occurred without the restricted mobility. Under these circumstances, we do not conclude that Dr. immobile patients, and which cause the death of most people after age has Thus, his statement was an explanation of medical problems that occur in about the generally shortened lifespan of persons with severe brain injury. complications of immobility, and directly related to his previous testimony Miller’s statement was in answer to a question about the medical

illness.” We are not persuaded. have in the case of an otherwise healthy, mobile person with respiratory just as aptly proved that her death from respiratory illness occurred as it would that Ernest’s death might not have occurred but for strangulation, the evidence According to the defendant, this testimony suggests that “while it is possible Ernest’s death was just as likely to have occurred without the brain injury. the death of most of us,” and characterizes this testimony as an indication that hypoxic brain injury tend to “succumb to one of the routine things that cause The defendant points to testimony by Miller that patients with severe

strangulation. strangulation, and thus the cause of Ernest’s death was homicide by testified that Ernest died from complications which were directly related to her for which she was at risk due to her brain injury. Moreover, Duval specifically State further presented evidence that Ernest died of precisely those conditions profound damage to Ernest’s brain and the resulting associated risks. The legal causation. We conclude otherwise. The State presented evidence of the p. 7 7

Affirmed

DALIANIS, C.J., and HICKS and LYNN, JJ., concurred.

evidentiary item in context and not in isolation. See Our sufficiency of the evidence standard requires that we view each

consequence of the defendant’s conduct. for the defendant’s conduct and that her death was a natural and direct beyond a reasonable doubt, that Ernest’s death would not have occurred but adduced by the State, was sufficient to permit a rational jury to conclude, assault on her. We conclude that this evidence, along with the other evidence and Duval testified that Ernest’s death was caused by the defendant’s 1991 associated risks, including shortened life span due to immobility and infection, expert witnesses testified to Ernest’s brain damage, its cause, and the resultant 416, 424 (2003). Here, Ernest had no pre-existing medical condition, six

thorax”). death,” and his response was “The cause of death was a stab wound of the “can you give an opinion with reasonable medical certainty as to the cause of “entirely specious,” where the question presented to the medical examiner was insufficient evidence to prove cause of death beyond a reasonable doubt 851 (Pa. Super. Ct. 19 p. 7 79) (finding appellant’s argument that there was opinion in fact established causation. Id.; cf. Com. v. Alston, 410 A.2d 849, expert testified based on the proper standard, but, rather, whether the expert’s the victim’s heart attack. Id. Thus, the issue in Embry was not whether the