People v. Eulo

Chief Judge Cooke.

These appeals involve a question of criminal responsibility in which defendants, charged with homicide, contend that their conduct did not cause death.

The term "death", as used in this State's statutes, may be construed to embrace a determination, made according to accepted medical standards, that a person has suffered an irreversible cessation of breathing and heartbeat or, when these functions are artificially maintained, an irreversible cessation of the functioning of the entire brain, including the brain stem. Therefore, a defendant will not necessarily be relieved of criminal liability for homicide by the removal of the victim's vital organs after the victim has been declared dead according to brain-based criteria, notwithstanding that, at that time, the victim's heartbeat and breathing were being continued by artificial means.

I

People v. Eulo

On the evening of July 19, 1981, defendant and his girlfriend attended a volunteer firemen's fair in Kings Park, Suffolk County. Not long after they arrived, the two began to argue, reportedly because defendant was jealous over one of her former suitors, whom they had seen at the fair. The argument continued through the evening; it became particularly heated as the two sat in defendant's pick-up truck, parked in front of the home of the girlfriend's parents. Around midnight, defendant shot her in the head with his unregistered handgun.

The victim was rushed by ambulance to the emergency room of St. John's Hospital. A gunshot wound to the left temple causing extreme hemorrhaging was apparent. A tube was placed in her windpipe to enable artificial respiration and intravenous medication was applied to stabilize her blood pressure.

Shortly before 2:00 a.m., the victim was examined by a neurosurgeon, who undertook various tests to evaluate damage done to the brain. Painful stimuli were applied and yielded no reaction. Various reflexes were tested and, again, there was no response. A further test determined that the victim was incapable of spontaneously maintaining respiration. An electroencephalogram (EEG) resulted in "flat," or "isoelectric", readings indicating no activity in the part of the brain tested.

Over the next two days, the victim's breathing was maintained solely by a mechanical respirator. Her heartbeat was sustained and regulated through medication. Faced with what was believed to be an imminent cessation of these two bodily functions notwithstanding the artificial maintenance, the victim's parents consented to the use of certain of her organs for transplantation.

On the afternoon of July 23, a second neurosurgeon was called in to evaluate whether the victim's brain continued to function in any manner. A repetition of all of the previously conducted tests led to the same diagnosis: the victim's entire brain had irreversibly ceased to function. This diagnosis was reviewed and confirmed by the Deputy Medical Examiner for Suffolk County and another physician.

The victim was pronounced dead at 2:20 p.m. on July 23, although at that time she was still attached to a respirator and her heart was still beating. Her body was taken to a surgical room where her kidneys, spleen, and lymph nodes were removed. The mechanical respirator was then disconnected, and her breathing immediately stopped, followed shortly by a cessation of the heartbeat.

Defendant was indicted for second degree murder. After a jury trial, he was convicted of manslaughter. The Appellate Division unanimously affirmed the conviction, without opinion.

People v Bonilla

At approximately 10:30 p.m. on February 6, 1979, a New York City police officer found a man lying faceup in a Brooklyn street with a bullet wound to the head. The officer transported the victim in his patrol car to the Brookdale Hospital, where he was placed in an intensive care unit. Shortly after arriving at the hospital, the victim became comatose and was unable to breathe spontaneously. He was placed on a respirator and medication was administered to maintain his blood pressure.

The next morning, the victim was examined by a neurologist. . . . The doctor found no reflex reactions and no response to painful stimuli. The mechanical respirator was disconnected to test for spontaneous breathing. There was none, and the respirator was reapplied. An EEG indicated an absence of activity in the part of the brain tested. In the physician's opinion, the bullet wound had caused the victim's entire brain to cease functioning.

The following day, the tests were repeated and the same diagnosis was reached. The victim's mother had been informed of her son's condition and had consented to a transfer of his kidneys and spleen. Death was pronounced following the second battery of tests and, commencing at 9:25 p.m., the victim's kidneys and spleen were removed for transplantation. The respirator was then disconnected, and the victim's breathing and heartbeat stopped.

An investigation led to defendant's arrest. While in police custody, defendant admitted to the shooting. He was indicted for second degree murder and criminal possession of a weapon. A jury convicted him of the weapons count and of first degree manslaughter. The conviction was affirmed by a divided Appellate Division.

II

Defendants' principal point in each of these appeals is that the respective Trial Judges failed to adequately instruct the juries as to what constitutes a person's death, the time at which criminal liability for a homicide would attach. It is claimed that in New York, the time of death has always been set by reference to the functioning of the heart and the lungs; that death does not occur until there has been an irreversible cessation of breathing and heartbeat.

There having been extensive testimony at both trials concerning each victim's diagnosis as "brain dead," defendants argue that, in the absence of clear instruction, the juries may have erroneously concluded that defendants would be guilty of homicide if their conduct was the legal cause of the victims' "brain death" rather than the victims' ultimate state of cardiorespiratory failure. In evaluating defendants' contentions, it is first necessary to review: how death has traditionally been determined by the law; how the principle of "brain death" is now sought to be infused into our jurisprudence; and, whether, if at all, this court may recognize a principle of "brain death" without infringing upon a legislative power or prerogative.

A person's passing from life has long been an event marked with a variety of legal consequences. A determination of death starts in motion the legal machinery governing the disposition of the deceased's property . . . It serves to terminate certain legal relationships, including marriage . . ., and business partnerships . . . The period for initiation of legal actions brought against, by, or on behalf of the deceased is extended. And, in recent times, death marks the point at which certain of the deceased's organs, intended to be donated upon death, may be transferred . . . In the immediate context, pertinent here, determination of a person's "death" is relevant because our Penal Law defines homicide in terms of "conduct which causes the death of a person" . . .

Death has been conceptualized by the law as, simply, the absence of life: "Death is the opposite of life; it is the termination of life" . . . But, while erecting death as a critical milepost in a person's legal life, the law has had little occasion to consider the precise point at which a person ceases to live.

When the question arises as to when death occurs, it has been deemed one of fact . . ., in which the fact finder may be called upon to evaluate expert medical testimony . . . This has usually been in the context of an attempt by parties to prove the relative survivorship of two or more people killed in a common disaster, when the order of death affected the distribution of the decedents' estates. And, while many of the efforts by parties attempting to prove survivorship are based on circumstantial evidence as to the relative times of death . . ., it is clear that the criteria used for determining death have been the medical standards . . . of irreversible cessation of cardiac and respiratory functions . . .

Within the past two decades, machines that artificially maintain cardiorespiratory functions have come into widespread use. This technical accomplishment has called into question the universal applicability of the traditional legal and medical criteria for determining when a person has died.

These criteria were cast into flux as the medical community gained a better understanding of human physiology. It is widely understood that the human brain may be anatomically divided, generally, into three parts: the cerebrum, the cerebellum, and the brain stem. The cerebrum, known also as the "higher brain," is deemed largely to control cognitive functions such as thought, memory, and consciousness. The cerebellum primarily controls motor coordination. The brain stem, or "lower brain," which itself has three parts known as the midbrain, pons, and medulla, controls reflexive or spontaneous functions such as breathing, swallowing, and "sleep-wake" cycles.

In addition to injuries that directly and immediately destroy brain tissue, certain physical traumas may indirectly result in a complete and irreversible cessation of the brain's functions. For example, a direct trauma to the head can cause great swelling of the brain tissue, which, in turn, will stem the flow of blood to the brain. A respiratory arrest will similarly cut off the supply of oxygen to the blood and, hence, the brain. Within a relatively short period after being deprived of oxygen, the brain will irreversibly stop functioning. With the suffocation of the higher brain all cognitive powers are lost and a cessation of lower brain functions will ultimately end all spontaneous bodily functions.

Notwithstanding a total irreversible loss of the entire brain's functioning, contemporary medical techniques can maintain, for a limited period, the operation of the heart and the lungs. Respirators or ventilators can substitute for the lower brain's failure to maintain breathing. This artificial respiration, when combined with a chemical regimen, can support the continued operation of the heart. This is so because, unlike respiration, the physical contracting or "beating" of the heart occurs independently of impulses from the brain: so long as blood containing oxygen circulates to the heart, it may continue to beat and medication can take over the lower brain's limited role in regulating the rate and force of the heartbeat.

It became clear in medical practice that the traditional "vital signs" -- breathing and heartbeat -- are not independent indicia of life, but are, instead, part of an integration of functions in which the brain is dominant. As a result, the medical community began to consider the cessation of brain activity as a measure of death.

The movement in law towards recognizing cessation of brain functions as criteria for death followed this medical trend. The immediate motive for adopting this position was to ease and make more efficient the transfer of donated organs. Organ transfers, to be successful, require a "viable, intact organ." Once all of a person's vital functions have ceased, transferable organs swiftly deteriorate and lose their transplant value. The technical ability to artificially maintain respiration and heartbeat after the entire brain has ceased to function was sought to be applied in cases of organ transplant to preserve the viability of donated organs.

Thus, the first legal recognition of cessation of brain functions as a criterion for determining death came in the form of a Kansas statute enacted in 1970. Denominated "[an] Act relating to and defining death," the statute states, in part, that death will be deemed to have occurred when a physician applying ordinary medical standards determines that there is an "absence of spontaneous respiratory and cardiac functions and . . . attempts at resuscitation are considered hopeless . . . or . . . there is the absence of spontaneous brain function."

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In New York, the term "death", although used in many statutes, has not been expressly defined by the Legislature. This raises the question of how this court may construe these expressions of the term "death" in the absence of clarification by the Legislature. When the Legislature has failed to assign definition to a statutory term, the courts will generally construe that term according to "its ordinary and accepted meaning as it was understood at the time" . . . If the term at issue has been judicially defined prior to its use in a statute, however, that definition will be assigned to the term, absent contrary indications . . . In every case, of course, the term must be read in accordance with the apparent purpose of the statute in which it is found . . .

Bearing these principles in mind, it must be added that statutory construction is not "a ritual to be observed by unimaginative adherence to well-worn professional phrases" . . . For, as this court has observed, "[few] words are so plain that the context or the occasion is without capacity to enlarge or narrow their extension" . . . This is particularly true when a "word . . . must be applied under changed conditions" . . . The guiding principle is that there must always be fidelity to the fair import of the term . . .

It has been called to this court's attention that the Legislature has, on a number of occasions, had bills before it that would expressly recognize brain-based criteria for determining death and has taken no affirmative action . . . This legislative void in no way impedes this court from fulfilling its obligation to construe laws of the State. Indeed, advances made in medical science have caused a focus on the issues of when a jury may find criminal responsibility for homicide, of when physicians may transfer donated organs, and of when a person's body may be accorded the dignity of final repose. It is incumbent upon this court to instill certainty and uniformity in these important areas.

We hold that a recognition of brain-based criteria for determining death is not unfaithful to prior judicial definitions of "death", as presumptively adopted in the many statutes using that term. Close examination of the common-law conception of death and the traditional criteria used to determine when death has occurred leads inexorably to this conclusion.

Courts have not engaged in a metaphysical analysis of when life should be deemed to have passed from a person's body, leaving him or her dead. Rather, they have conceptualized death as the absence of life, unqualified and undefined . . . On a practical level, this broad conception of death as "the opposite of life" was substantially narrowed through recognition of the cardiorespiratory criteria for determining when death occurs. Under these criteria, the loci of life are the heart and the lungs: where there is no breath or heartbeat, there is no life. Cessation manifests death.

Considering death to have occurred when there is an irreversible and complete cessation of the functioning of the entire brain, including the brain stem, is consistent with the common-law conception of death . . . Ordinarily, death will be determined according to the traditional criteria of irreversible cardiorespiratory repose. When, however, the respiratory and circulatory functions are maintained by mechanical means, their significance, as signs of life, is at best ambiguous. Under such circumstances, death may nevertheless be deemed to occur when, according to accepted medical practice, it is determined that the entire brain's function has irreversibly ceased.

Death remains the single phenomenon identified at common law; the supplemental criteria are merely adapted to account for the "changed conditions" that a dead body may be attached to a machine so as to exhibit demonstrably false indicia of life. It reflects an improved understanding that in the complete and irreversible absence of a functioning brain, the traditional loci of life -- the heart and the lungs -- function only as a result of stimuli originating from outside of the body and will never again function as part of an integrated organism.

This court searches in vain for evidence that, apart from the concept of death, the Legislature intended to render immutable the criteria used to determine death. By extension, to hold to the contrary would be to say that the law could not recognize diagnostic equipment such as the stethoscope or more sensitive equipment even when it became clear that these instruments more accurately measured the presence of signs of life.

Moreover, the Legislature has consistently declared, from the time it adopted the Field Commission's draft of a Penal Code in 1881 through several recodifications, that our Penal Law should be construed "according to the fair import of [its] terms to promote justice and effect the objects of the law" . . . It is the first object of our Penal Law "[to] proscribe conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests . . . Therefore, in the instant matters, to construe our homicide statute to provide for criminal responsibility for homicide when a defendant's conduct causes injury leading to the victim's total loss of brain functions, is entirely consistent with the Legislature's concept of death.

One must be careful to distinguish the effect of this decision -- determining when a person has died -- from issues raised in related but qualitatively distinct cases -- determining when a person may be allowed to die. In Matter of Storar . . ., this court reviewed two separate applications brought on behalf of two terminally ill patients. One sought permission to terminate extraordinary medical care. The other sought permission, over the patient's mother's objection, to administer medically necessary blood transfusions that would have prolonged the patient's short-lived life. A personal right to decline medical care, founded at common law, was applied in the first case as there existed clear and convincing evidence that this was the patient's personal desire. But, in the second case, the court held that, in the absence of such evidence of personal intent (there, due to the patient's incompetence), a third party has no recognized right to decide that the patient's quality of life has declined to a point where treatment should be withheld and the patient should be allowed to die . . .

Today's decision is no retreat from the holding. Under existing law, third parties are without authority to determine on behalf of the terminally ill that they should be permitted to die. This court will make no judgment as to what is for another an unacceptable quality of life. But, when a determination has been made according to accepted medical standards that a person has suffered an irreversible cessation of heartbeat and respiration, or, when these functions are maintained solely by extraordinary mechanical means, an irreversible cessation of all functions of the entire brain, including the brain stem, no life traditionally recognized by the law is present in that body.

III

Each defendant correctly notes that the respective Trial Judges did not expressly instruct the juries concerning the criteria to be applied in determining when death occurred. Whether medically accepted brain-based criteria are legally cognizable became an issue in these cases when the respective juries heard testimony concerning the victims being pronounced medically dead while their hearts were beating and before artificial maintenance of the cardiorespiratory systems was discontinued. To properly evaluate whether these diagnoses of death were legally and medically premature and, therefore, whether the subsequent activities were possibly superseding causes of the deaths, the juries had to have been instructed as to the appropriate criteria for determining death: irreversible cessation of breathing and heartbeat or irreversible cessation of the entire brain's functioning.

The courts here adequately conveyed to the juries their obligation to determine the fact and causation of death. The courts defined the criteria of death in relation to the chain of causation. By specifically charging the juries that they might consider the surgical procedures as superseding causes of death, the courts made clear by ready implication that death should be deemed to have occurred after all medical procedures had ended.

The trial courts could have given express instructions that death may be deemed to have occurred when the victims' entire brain, including the brain stem, had irreversibly ceased to function. On the facts of these cases, that would have been the better practice. But, as mentioned, the brain-based criteria are supplemental to the traditional criteria, each describing the same phenomenon of death. In the context of a criminal case for homicide, there is no theoretical or practical impediment to the People's proceeding under a theory that the defendant "[caused] the death" of a person, with death determined by either criteria.

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A review of the records, viewed in a light most favorable to the People, indicates that there was sufficient evidence for a rational juror to have concluded beyond a reasonable doubt that each defendant's conduct caused the victim's death and that the medical procedures were not superseding causes of death . . .

An expert medical witness for defendant Bonilla cast some aspersions on the particular diagnostic tests performed by the doctors in that case. In the face of that testimony, however, there was substantial testimony by other experts indicating that the diagnostic tests comported with accepted medical practice. Defendant Eulo offered no rebuttal to the testimony that the pronouncement of death was made in accordance with accepted medical practices. Thus, there was sufficient evidence for both juries to have found beyond a reasonable doubt that the medical decisions did not break the causal chain linking defendants' conduct and the victims' deaths.

IV

Defendant Eulo's other arguments have been considered and found to be either unpreserved or without merit.

Accordingly, in each case, the order of the Appellate Division should be affirmed.