State v. Perez-Cervantes8/24/2000
rged beyond a reasonable doubt. Cause of death is an element of the crime of murder, and cause of death is an issue of fact that must be decided by the jury. There is absolutely no authority for a trial judge to decide that intentional ingestion of potentially lethal amounts of cocaine and heroin cannot, as a matter of law, serve as a valid intervening cause. The cases cited by the majority are almost exclusively sufficiency of the evidence challenges and in no way stand for this proposition. I would affirm the well reasoned decision of the Court of Appeals.
'Under the due process provisions of the Fifth and Fourteenth Amendments of the United States Constitution, the State must prove every element of an offense beyond a reasonable doubt.' State v. Lively, 130 Wn.2d 1, 11, 921 P.2d 1035 (1996). A causal nexus between the death of the victim and the criminal agency or conduct of the defendant is an essential element of murder. See, e.g., State v. Berlin, 133 Wn.2d 541, 550, 947 P.2d 700 (1997). In crimes, such as murder, which are defined to require specific conduct resulting in a specific effect, the State must prove the defendant's criminal act was both the 'cause in fact' and the 'legal' cause of the result. State v. Rivas, 126 Wn.2d 443, 453, 896 P.2d 57 (1995); State v. Dennison, 115 Wn.2d 609, 624, 801 P.2d 193 (1990). ''Cause in fact refers to the 'but for' consequences of an act-the physical connection between an act and an injury.'' Dennison, 115 Wn.2d at 624 (quoting Hartley v. State, 103 Wn.2d 768, 778, 698 P.2d 77 (1985)). When an unforeseeable act breaks the causal connection between the original act and the injury, such 'intervening cause' may excuse a defendant from legal accountability. State v. Little, 57 Wn.2d 516, 522, 358 P.2d 120 (1961); State v. Lovelace, 77 Wn. App. 916, 919, 895 P.2d 10 (1995).
Cause of death is a question of fact. State v. Engstrom, 79 Wn.2d 469, 476, 487 P.2d 205 (1971). As such, it must be evaluated by the jury, who is the ''sole and exclusive judge of the evidence, the weight to be given thereto, and the credibility of witnesses.'' State v. Fernandez-Medina, No. 67736-1, slip op. at 14 (Wash. Aug. 24, 2000) (quoting State v. Bencivenga, 137 Wn.2d 703, 709, 974 P.2d 832 (1999)); see State v. Strasburg, 60 Wash. 106, 119, 110 P. 1020 (1910); Strasburg, 60 Wash. at 133 (Morris, J., concurring) (constitutional error to remove consideration of questions of fact from the jury); United States v. Main, 113 F.3d 1046, 1050 (9th Cir. 1997) (causation is an issue of fact and its removal from the jury's consideration is reversible error). Here, the trial judge allowed the State to fully argue its theory of causation but prevented the defense from rebutting those arguments and admonished the defense for attempting to do so. This impermissibly tainted the jury's consideration of causation.
'Counsel are permitted latitude to argue the facts in evidence and reasonable inferences.' State v. Smith, 104 Wn.2d 497, 510, 707 P.2d 1306 (1985); see also State v. Ng, 104 Wn.2d 763, 778, 713 P.2d 63 (1985); State v. Kroll, 87 Wn.2d 829, 846, 558 P.2d 173 (1976); State v. Woolfolk, 95 Wn. App. 541, 547-48, 977 P.2d 1 (1999). Here, there was ample evidence from which defense counsel could have argued the State had failed to meet its burden on the element of causation. The testimony of Thomas' longtime girl friend established he had a history of drug abuse dating back to 1975. The testimony of the Pierce County medical examiner placed the following additional facts into evidence: (1) toxicology reports performed after Thomas' death revealed potentially life threatening amounts of cocaine and morphine in his syst
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