State v. Biechelle

The opinion of the court was delivered by: Darigan, J.


Before this Court is Defendant Daniel Biechele’s (“Defendant”) motion to dismiss one hundred counts of a grand jury indictment pursuant to R.I. Super. R. Crim. P. 12. Defendant faces two hundred manslaughter counts based on G.L. 1956 § 11-23-1. The first one hundred counts charge Defendant with involuntary manslaughter resulting from criminal negligence; the second one hundred counts charge Defendant with involuntary manslaughter resulting from the commission of an unlawful act (“misdemeanor manslaughter”). Defendant moves to dismiss counts the misdemeanor manslaughter counts for failure to state an offense under Rhode Island law and for failure to provide fair warning…


Defendant was the “tour manager”of “Great White,” a band that performed at The Station, a nightclub located in Warwick, Rhode Island. On February 20, 2003, the Defendant allegedly ignited pyrotechnic devices (“D.O.T. Class C” Fireworks — Classification 1.4) inside the Station as part of the band’s performance. The ignition of the pyrotechnics would constitute a misdemeanor if the Defendant was not licensed to possess, control, or use the pyrotechnics under § 11-13-1. The State alleges that the pyrotechnics started a fire inside The Station that proximately caused the deaths of one hundred people.


Section 11-23-3 requires that “[e]very person who shall commit manslaughter shall be imprisoned not exceeding thirty (30) years.” It is settled law in Rhode Island that because manslaughter is not defined within the statute, it takes the same meaning as defined in common law.

Involuntary manslaughter in Rhode Island is defined as “an unintentional homicide without malice aforethought committed either in performance of an unlawful act not amounting to a felony or in the performance of a lawful act with criminal negligence.” State v. Hallenbeck, 878 A.2d 992, 1008 (R.I. 2005); see State v. Lillibridge, 454 A.2d 237, 240 (R.I. 1982). This definition clearly creates two distinct theories of involuntary manslaughter: one based on criminal negligence theory and one based on unlawful act theory (“misdemeanor manslaughter”).


Defendant first claims that the State failed to allege the Defendant engaged in conduct that constitutes a misdemeanor under Rhode Island law. Defendant also argues § 11-13-1 does not apply to pyrotechnics. Further, Defendant contends § 11-13-1 failed to give adequate warning of the offense, in violation of due process protection. Defendant asserts that the firework misdemeanor’s thirty-day statute of limitation precludes the State from bringing a manslaughter charge after thirty-days.

Defendant contends that even if the ignition of the pyrotechnics constituted a misdemeanor under § 11-13-1, manslaughter could not be appropriately charged because the Defendant lacked the criminal scienter necessary for such a serious conviction.

Defendant avers Rhode Island case law requires the misdemeanor underlying a misdemeanor manslaughter charge to be malum in se, and contends the firework statute is malum prohibitum. Additionally, Defendant argues that the indictment requires no criminal mens rea in violation of fundamental due process guarantees and State case law.


The State asserts the clear language of the statute indicates the pyrotechnic devices used by the Defendant required a permit or prior approval under § 11-13-1 (“firework statute”). Further, the State argues that a reasonable person would know that the Defendant’s conduct was within the ambit of the firework statute. The State avers the thirty-day statute of limitation for the firework misdemeanor is irrelevant, as the State does not seek to bring charges under the firework statute. Finally, the State contends that there is an element of criminal mens rea imbedded both in the misdemeanor and in the proximate cause required between the misdemeanor and the deaths. Thus, the State asserts that the level of criminal culpability embedded in the misdemeanor manslaughter counts is sufficient to satisfy due process guaranties and is also consistent with Rhode Island case law.


The State must first prove some criminal mens rea on the part of the Defendant in the possession, control, and ignition of the pyrotechnic devises. Although the statute on its face does not require any mental culpability, a criminal statute prohibiting possession of a specified object has repeatedly been held to require both intentional control of the object and knowledge of the object’s nature. State v. Kaba, 798 A.2d 383, 392 (R.I. 2002); State v. Gilman, 110 R.I. 207, 215, 291 A.2d 425, 430 (1972). This holding has applied to many different criminal statutes. Such knowledge can be inferred from the acts, declarations, or conduct of the accused. State v. Colbert, 549 A.2d 1021, 1024 (R.I. 1988).

As the State recognized in oral argument (Hr’g Tr. 56), the rule to strictly construe verbs relating to possession in criminal statutes extends to the misdemeanor underlying the Defendant’s indictment. Essentially, in order to prove the underlying misdemeanor, the State will not only have to prove the Defendant’s possession and use of the pyrotechnics without a permit, but also must prove the Defendant intentionally controlled the pyrotechnics and knew of the characteristics of the devices. This is not to say the State will have to prove that the Defendant knew his conduct was illegal, but rather that the Defendant knew he was dealing with devices which had a combustible or explosive composition or that contained a substance prepared for the purpose of producing a visible or audible effect by combustion, explosion, deflagration, or detonation. See Section 11-13-1.


Whether the unlawful possession, control, and ignition of pyrotechnic gerbs could potentially serve as the requisite misdemeanor for a manslaughter conviction is a novel question in Rhode Island. The Court agrees with the Defendant’s suggestion that without some element of mens rea, conviction of the Defendant would be inconsistent with both Rhode Island law and State and Federal Constitutional guarantees. However, the Court does not agree that the indictment as it stands does not require any underlying criminal mens rea; further, the Court holds that the criminal culpability required to convict the Defendant is consistent with state law and constitutional protections.

The allegation of manslaughter based on the firework misdemeanor is consistent with state law and constitutional protections. “To inflict substantial punishment upon one who is morally entirely innocent, who caused injury through reasonable mistake or pure accident, would so outrage the feelings of the community as to nullify its own enforcement.” Sayre, PublicWelfare Offenses, 33 Colo. L. Rev. 55, 56 as in Morissette v.United States, 342 U.S. 246, 256 (1952). As manslaughter carries substantial punishment of up to thirty years, it would be unjust to convict the Defendant unless the Defendant had some guilty mental stateHowever, in addition to the knowledge implied in the misdemeanor, there is also criminal culpability embedded in the misdemeanor manslaughter theory of involuntary manslaughter.

In State v. McLaughlin, the Rhode Island Supreme Court articulated that proximate cause is an element of the crime of misdemeanor manslaughter621 A.2d 170 (R.I. 1993). In McLaughlin, the Court stated “[i]n order to find defendant guilty of involuntary manslaughter under the misdemeanor manslaughter theory, the state must prove two elements beyond a reasonable doubt. It must show first that a misdemeanor occurred and then that such misdemeanor was the proximate cause of the victim’s death.” Id. at 177 (emphasis added).


The requirement that the illegal conduct proximately cause the manslaughter eliminates concerns that the culpability required to convict the Defendant is too insignificant to uphold a manslaughter conviction. Logically, the Defendant’s conduct must be of the type that could proximately cause death. LaFave’s Substantive Criminal Law identifies how states have limited the use of misdemeanor manslaughter through proximate cause. Section 15.5(c) at 803-806 (2d ed. 2003).12 States which adhere to the malum in se/malum prohibitum distinction generally do not require proof of proximate cause if the misdemeanor is malum in se. Id. Those states would apply the three variations of limiting the underlying misdemeanor to malum prohibitum crimes; other states would use the variations as to all crimes. The three variations are

1) the unlawful act must proximately cause the death,

2) the unlawful excess must proximately cause the death, or

3) the unlawful act must amount to criminal negligence. Id.

The Court in McLaughlin adopted the first position, as it states the criminal conduct must proximately cause the death.

The proximate cause limitation is perfectly consistent with the Rhode Island Supreme Court’s reasoning in other criminal cases. In State v. Benoit, the defendant, while intoxicated beyond twice the legal limit, was driving in the high-speed lane. 650 A.2d 1230, 1231(R.I. 1995). A car carrying one passenger, driving in the opposite direction of the defendant, crossed the dividing line and hit the defendant. The passenger in the other car was killed, and the driver of the other car was injured. The defendant was charged by way of information with § 31-27-2.2 and § 31-27-2.6. These statutes appeared to create a strict liability standard if an intoxicated defendant was operating a vehicle and death or injury resulted from such operation. Plainly, the operation of the vehicle was a “but for” cause of the accident; without the defendant’s presence on the highway, no accident would have occurred. However, the Court held proof that the manner of operation proximately caused the death was necessary. Id. at 1234. In terms of proximate cause, the simple fact that the defendant was intoxicated while driving did not make it foreseeable that a car traveling at a high rate of speed would cross the center divider and strike the defendant’s car. Because the State admitted that it could not prove the defendant’s truck was anywhere but in its lane and only alleged the mere presence of the car on the highway, the Court dismissed the countsBenoit, 650 A.2d at 1234. The Court rejected the State’s theory of strict liability and embraced the limitation that proximate cause must be shown between the manner of operation and not just the operation itselfId. at 1233-1234. The Court also clarified that no showing of negligence or recklessness was necessary to convict the defendant under the two statutes. Id. at 1233. Sensibly, a harmless misdemeanor could not serve as the proximate cause of a death because death is not the natural consequence of harmless action.


With respect to the proximate cause inquiry, State v. Benoit is also significant because of the Court’s focus on the facts of the case, not the general category of the crime. Drunk driving is a crime that the court blatantly (descaradamente) considered to be conduct that proximately causes death. (“We note that the amount of human carnage resulting from alcohol-related motor vehicle accidents is horrific.”) However, the Court did not consider whether the category in which the conduct was classified could proximately cause the crime, but rather looked to see if defendant’s specific actions proximately caused the crime.

The Defendant’s contention that malum prohibitum crimes should be categorically excluded without inquiry into the specific facts would be contradictory to previous reasoning of the Rhode Island Supreme Court. The inquiry of this Court should not be whether a firework misdemeanor can underlie a misdemeanor manslaughter conviction, but whether the Defendant’s alleged unlawful possession, control, and ignition of the pyrotechnics, in light of the specific circumstances and facts, could create a foreseeable risk of death. Although the Defendant had a duty under the statute to refrain from possession, control, and ignition of pyrotechnics without a permit, failing to do so does not automatically mean his conduct made death foreseeable. The alleged facts indicate that conditions in The Station nightclub might have been unusually dangerous, possibly constituting an intervening cause of death. Depending on the facts and circumstances, the effect of the pyrotechnics may not have been foreseeable. However, proximate cause and knowledge are facts for the jury to decide and are not appropriate for this Court to address in a motion to dismiss counts in an indictment.


This Court believes that the indictment sufficiently meets the modern day requirements of misdemeanor manslaughter articulated in McLaughlinBecause McLaughlin and other recent Rhode Island criminal law cases fail to adhere to the malum inse/malum prohibitum distinction, this Court does not believe it is necessary or appropriate to add any additional requirements to the crime of misdemeanor manslaughter. Proximate cause implicates a culpable mental state; a separate element for criminal culpability is not required.

Classification of the alleged firework misdemeanor as malum in se or malum prohibitum is unnecessary. If the State can prove the Defendant disregarded the statutory requirements for possession and use of the pyrotechnic devices, and that disregard caused a foreseeable risk of death to hundreds of people, the Defendant’s conduct would not be blameless. However, if the facts show that such disregard did not exist or did not create a foreseeable risk of death, then the Defendant could not be convicted of manslaughter.

This Court declines to dismiss the misdemeanor manslaughter counts on their face by promulgating a new judicial rule creating categorical limitations on the type of misdemeanor the State could use as the basis of a manslaughter charge. As this issue has not been presented to the Supreme Court of Rhode Island, it would be their prerogative to use these facts to further limit misdemeanor manslaughter if the court was so inclined. This Court notes that misdemeanor manslaughter has fallen into disfavor on a national level, and has been criticized as being harsh and archaic. However, it remains a viable cause of action in this jurisdiction. The Court leaves any further review and or limitation to the Supreme Court of Rhode Island.

Taken from:

People v Snyder

Garry, J.

After the January 1996 death of her daughter (born in 1993), defendant was arrested and charged with, among other things, three counts of murder in the second degree, including intentional murder, depraved indifference murder, and depraved indifference murder of a person under 11 years old. She was also charged with attempted intentional murder of her son (born in 1992), and multiple counts of both assault in the first degree and reckless endangerment. In 2001, defendant was convicted by jury verdict of depraved indifference murder, assault in the first degree (four counts) and reckless endangerment in the first degree (eight counts), and was thereafter sentenced to an aggregate prison term of 50 years to life.

A person is guilty of depraved indifference murder when, “[u]nder circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25). Defendant’s convictions of assault in the first degree required proof that, “[u]nder circumstances evincing a depraved indifference to human life, [she] recklessly engage[d] in conduct which create[d] a grave risk of death to another person, and thereby cause[d] serious physical injury to another person” (Penal Law § 120.10). Likewise (igualmente, asimismo, así como), to support defendant’s conviction of reckless endangerment in the first degree, the People were required to prove that “under circumstances evincing a depraved indifference to human life, [she] recklessly engage[d] in conduct which create[d] a grave risk of death to another person” (Penal Law  § 120.25).

Although defendant advances a variety of challenges to her convictions, her primary challenge on appeal relates to the legal sufficiency and weight of the evidence. She argues that the evidence does not support a finding that she committed any of the acts alleged, that she possessed the necessary mens rea or that she caused injury to either of her children. We reject these contentions.

The People’s case was based entirely on the theory that defendant attempted to cause breathing problems in both of her children by suffocating them for the purpose of collecting government benefits. To that end, the People presented extensive testimony from the numerous pediatricians, specialists, nurses, emergency personnel and social workers who cared for the children or otherwise interacted with defendant and her children from the birth of defendant’s son in 1992 until the death of defendant’s daughter in 1996. The mostly circumstantial evidence established that both children were admitted to the hospital” after experiencing difficulty breathing and being rushed to the emergency room” on numerous occasions following their births for what appeared to be apnea episodes. Each episode occurred during daytime hours, defendant was the only person present when the symptoms began and she was the sole source of information as to what occurred. Although numerous tests were performed, the results were routinely normal and medical personnel were unable to determine any organic cause for the children’s identical breathing problems. One such test performed on defendant’s daughter revealed that her apnea originated in the lung area, rather than in the brain, indicating that it was caused by something blocking her airway. According to various medical witnesses, there were other indicators that the children’s problems were caused by suffocation, including reports of blood in their noses or mouths and certain recorded information on heart and respiratory rate monitors, which signified that their lungs were healthy but that the oxygen flow had been interrupted for a period of time.

Medical personnel who came in contact with defendant and her children at the hospital observed more than one incident that caused them to suspect that defendant was suffocating them. After one such incident, Donald Swartz, the pediatric pulmonologist for defendant’s son, directed that defendant not be left alone with the child while he was in the hospital, and he experienced no further apnea episodes during the remainder of his hospital stay. Swartz thereafter discharged the son with orders that he not be left alone at home with defendant and made arrangements for nurses to regularly visit the home. When the son was later readmitted to the hospital, defendant and the child’s father requested that Swartz not be involved in caring for him.

Subsequently, defendant’s daughter was referred to Daniel Shannon, a pediatrician at Massachusetts General Hospital, who diagnosed her with a sinus node dysfunction with a possible seizure disorder and recommended surgery to implant a pacemaker. Despite such surgery, the daughter’s apnea episodes continued and she was admitted to the emergency room several times thereafter with reported seizures. No seizures were ever documented during her hospital stays and none were actually witnessed by medical personnel.

Ultimately, in January 1996, defendant’s daughter was rushed to the local hospital emergency room in respiratory and cardiac arrest. She was transferred to another hospital, where she died a few days later. Her death was determined to have resulted from a lack of oxygen and inadequate blood flow to the brain. The chief medical examiner who performed the autopsy on defendant’s daughter testified that he was unable to rule out suffocation as the cause of death, and that he believed that the manner of death was “consistent with a homicide.” The People’s expert witness similarly testified that, in her opinion, both children’s frequent hospitalizations resulted from suffocation, which carried a significant risk of death, and that the death of defendant’s daughter was, in fact, caused by suffocation.

Pamela Marshall, an inmate at the Franklin County Jail when defendant was incarcerated there after her arrest, also testified for the People. According to Marshall, defendant spoke with her about the case on one occasion and told Marshall that she and her husband had been having financial difficulties and decided to try to get disability benefits for her children after learning that a friend had received such benefits for a child who was having breathing problems. During that conversation, defendant described several incidents – which were consistent with the testimony of other witnesses – in which she had attempted to induce such breathing problems in her children. Defendant also told Marshall that, on the day her daughter was taken to the hospital just prior to her death, she had attempted several times to put a pillow over her face in order to cause breathing problems in anticipation of the arrival of a home health nurse that day. Defendant stated that she “didn’t mean for it to go as far as it did,”but that the nurse who was scheduled to come to the house had arrived late.

In addition, a claims representative for the Supplemental Security Income (hereinafter SSI) program testified regarding defendant’s applications for disability benefits on behalf of her children based upon alleged lung problems/obstructive apnea, which applications were ultimately successful. The People attempted to demonstrate a correlation between the timing of various aspects of the application process” including reviews of entitlement to benefits and payments made” and the occurrence or “remission” of the children’s apnea events in order to prove that defendant induced their problems at particular times in her effort to obtain or maintain eligibility for such benefits.

Dapheny Wright, a salesperson for a mobile home company, testified that she first encountered defendant and her boyfriend in 1995 when they purchased a mobile home. Wright was concerned about their ability to secure financing for the purchase, as their income consisted of public assistance and SSI benefits. When Wright asked defendant whether the SSI benefits were permanent, defendant responded that the benefits were for her daughter, who was disabled due to “respiratory problems and weak blood,” that she anticipated the condition to be a long-term disability and that the benefits would continue for the rest of the child’s life. Wright further testified that defendant and her boyfriend presented themselves at her office on January 19, 1996″ within days of the death of defendant’s daughter” and informed her that they had lost their daughter, who was their main source of income, and indicated that they were in danger of losing their home.

“In reviewing the legal sufficiency of a verdict, we must view the evidence in the light most favorable to the People, and determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury . . . and as a matter of law satisfy the proof and burden requirements for every element of the crime[s] charged” (People v Somerville, 72 AD3d 1285, 1286 [2010] [internal quotation marks and citations omitted]; see People v Snow, 79 AD3d 1252, 1255 [2010], lv denied 16 NY3d 800 [2011]). We readily conclude that the record contains legally sufficient evidence that defendant repeatedly suffocated her children knowing that she was subjecting them to a grave risk of death and caused them serious physical injury, and that, in doing so, she recklessly caused the death of her daughter. The element of mens rea” an element of all the charges upon which defendant was convicted” requires further discussion, as the law has evolved substantially since the date of her conviction. At the time of defendant’s conviction, the Court of Appeals had established an objective view of depraved indifference relative to the circumstances under which the crime was committed (see generally People v Register, 60 NY2d 270 [1983], cert denied 466 US 953 [1984]). Here, the jury was charged, and defendant was convicted, under that view of the law. In a series of more recent cases (see generally People v Suarez, 6 NY 3d 202 [2005]; People v Payne, 3 NY3d 266 [2004]; People v Gonzalez, 1 NY3d 464 [2004]; People v Hafeez, 100 NY2d 253 [2003]), culminating in People v Feingold (7 NY3d 288 [2006]), the Court of Appeals clarified depraved indifference as a mens rea element. Defendant’s direct appeal was pending when this change in the law occurred, and so we must decide defendant’s legal sufficiency claims in accord with the law as it now exists (see People v Jean-Baptiste, 11 NY3d 539, 541-542 [2008]; People v Vasquez, 88 NY2d 561, 573 [1996]; People v George, 43 AD3d 560, 562 [2007], affd 11 NY3d 848 [2008]).

Mens rea may be demonstrated by circumstantial evidence (see People v Manos, 73 AD3d 1333, 1334 [2010], lv denied 15 NY3d 807 [2010]). In the event of an unintentional killing of a single individual, depraved indifference may be established, as relevant here, where the “‘defendant” acting with a conscious objective not to kill but to harm” engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim'” (People v Taylor, 15 NY3d 518, 523 [2010], quoting People v Suarez, 6 NY3d at 212; see People v Smith, 41 AD3d 964, 966 [2007], lv denied 9 NY3d 881 [2007]). The defendant’s actions must “reflect wanton cruelty, brutality or callousness [and be] combined with utter indifference to the life or safety” of the victim (People v Varmette, 70 AD3d 1167, 1169 [2010], lv denied 14 NY3d 845 [2010] [internal quotation marks and citations omitted]; see People v Ford, 43 AD3d 571, 573 [2007], lv denied 9 NY3d 1033 [2008]). The Court of Appeals has stated that “‘depraved indifference is best understood as an utter disregard for the value of human life” a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not'” (People v Feingold, 7 NY3d at 296, quoting People v Suarez, 6 NY3d at 214). As set forth above, the proof here revealed that defendant repeatedly suffocated her two helpless children and forced them to undergo unnecessary medical procedures, callously causing repeated injury to each of them without regard to the risk of grievous harm posed by her actions, which ultimately resulted in her daughter’s death. Defendant’s indifference to the lives and safety of her children was further demonstrated in the testimony describing her behavior on the day that she last suffocated her daughter; the person whom defendant later described as a “home health nurse” arrived at defendant’s home to find that the child was not breathing, had no pulse, was limp, colorless and “ice cold,” and that defendant had not called for help. This individual, a parent monitor, testified at trial that although she repeatedly instructed defendant to perform rescue breathing, defendant did not do so. Instead, defendant “just [sat] there,” tearless and doing nothing, while the monitor summoned rescue personnel and tended to the child. Defendant’s state of apparent unconcern continued at the hospital; while medical personnel attempted to resuscitate her daughter, defendant remained outside the treatment room, calmly eating snacks.

The evidence revealed that defendant’s sole reason for wishing that her children would not die as a result of her repeated, brutal acts was so that she might continue to torture them, and thereby continue to receive disability benefits. This wish to be able to indefinitely continue brutalizing her children for financial gain does not and cannot constitute anything but the most “‘utter disregard for the value of human life'” (People v Feingold, 7 NY3d at 296, quoting People v Suarez, 6 NY3d at 214) and for her children’s lives. Indeed, defendant’s wish to continue to profit from her children’s pain and suffering was cruelly depraved. Her desire for her children to continue living only to serve her cruel purpose cannot legally be deemed to constitute even the smallest shred of concern for their lives or safety. Thus, we find that the evidence of depraved indifference is legally sufficient to support defendant’s convictions (see People v McLain, 80 AD3d 992, 996 [2011], lv denied 16 NY3d 897 [2011]; People v Manos, 73 AD3d at 1334-1338; People v Varmette, 70 AD3d at 1169-1171; People v Ford, 43 AD3d at 572-574 [2007]).


Taken from:

People v. Knoller

On January 26, 2001, two dogs owned by defendant Marjorie Knoller and her husband, codefendant Robert Noel, attacked and killed Diane Whipple in the hallway of an apartment building in San Francisco. Defendant Knoller was charged with second degree murder (Pen. Code, § 189) and involuntary manslaughter (§ 192, subd. (b)); codefendant Noel, who was not present at the time of the attack on Whipple, was charged with involuntary manslaughter but not murder. Both were also charged with owning a mischievous animal that caused the death of a human being, in violation of section 399. After a change of venue to Los Angeles County, a jury convicted defendants on all counts. Both moved for a new trial.


Defendant Knoller (…) contacted Dr. Donald Martin, a veterinarian for 49 years, and on March 26, 2000, he examined and vaccinated the dogs. With his bill to Knoller, Dr. Martin included a letter, which said in part: “I would be professionally amiss [sic] if I did not mention the following, so that you can be prepared. These dogs are huge, approximately weighing in the neighborhood of 100 pounds each. They have had no training or discipline of any sort. They were a problem to even get to, let alone to vaccinate. You mentioned having a professional hauler gather them up and taking them. . . . Usually this would be done in crates, but I doubt one could get them into anything short of a livestock trailer, and if let loose they would have a battle. [¶] To add to this, these animals would be a liability in any household, reminding me of the recent attack in Tehama County to a boy by large dogs. He lost his arm and disfigured his face. The historic romance of the warrior dog, the personal guard dog, the gaming dog, etc. may sound good but hardly fits into life today.” Knoller thanked Dr. Martin for the information and said she would pass it on to her client.

Between the time defendants Noel and Knoller brought the dogs to their sixth-floor apartment in San Francisco and the date of the fatal mauling of Diane Whipple on January 26, 2001, there were about 30 incidents of the two dogs being out of control or threatening humans and other dogs. Neighbors mentioned seeing the two dogs unattended on the sixth floor and running down the hall.

There were also instances when defendants’ two dogs attacked or threatened people. David Moser, a fellow resident in the apartment building, slipped by defendants Knoller and Noel in the hallway only to have their dog Hera bite him on the “rear end.” When he exclaimed, “Your dog just bit me,” Noel replied, “Um, interesting.” Neither defendant apologized to Moser or reprimanded the dog. Another resident, Jill Cowen Davis, was eight months pregnant when one of the dogs, in the presence of both Knoller and Noel, suddenly growled and lunged toward her stomach with its mouth open and teeth bared. Noel jerked the dog by the leash, but he did not apologize to Davis. Postal carrier John Watanabe testified that both dogs, unleashed, had charged him. He said the dogs were in a “snarling frenzy” and he was “terrified for [his] life.” When he stepped behind his mail cart, the dogs went back to Knoller and Noel. On still another occasion, the two dogs lunged at a six-year-old boy walking to school; they were stopped less than a foot from him.

On January 26, 2001, Whipple telephoned Smith to say she was going home early. At 4:00 p.m., Esther Birkmaier, a neighbor who lived across the hall from Whipple, heard dogs barking and a woman’s “panic-stricken” voice calling, “Help me, help me.” Looking through the peephole in her front door, Birkmaier saw Whipple lying facedown on the floor just over the threshold of her apartment with what appeared to be a dog on top of her. Birkmaier saw no one else in the hallway. Afraid to open the door, Birkmaier called 911, the emergency telephone number, and at the same time heard a voice yelling, “No, no, no” and “Get off.” When Birkmaier again approached her door, she could hear barking and growling directly outside and a banging against a door. She heard a voice yell, “Get off, get off, no, no, stop, stop.” She chained her door and again looked through the peephole. Whipple’s body was gone and groceries were strewn about the hallway. Birkmaier called 911 a second time.

An autopsy revealed over 77 discrete injuries covering Whipple’s body “from head to toe.” The most significant were lacerations damaging her jugular vein and her carotid artery and crushing her larynx, injuries typically inflicted by predatory animals to kill their prey. 

On February 8, 2001, both defendants appeared on the television show Good Morning America and basically blamed mauling victim Whipple for her own death. Defendant Knoller claimed that Whipple had already opened her apartment door when something about her interested Bane. He broke away, pulled Knoller across the lobby, and jumped up on Whipple, putting his paws on either side of her. Knoller said she pushed Whipple into Whipple’s apartment, fell on top of Whipple, and then tried to shield Whipple with her own body. But Whipple’s struggles must have been misinterpreted by the dog, and when Whipple struck Knoller with her fist, the dog began to bite Whipple. Knoller claimed that Whipple had ample opportunity to just slam the door of her apartment or stay still on the floor.

Codefendant Noel did not testify, but he presented evidence of positive encounters between the two dogs and veterinarians, friends, and neighbors. Asked whether she denied responsibility for the attack on Whipple, Knoller gave this reply: “I said in an interview that I wasn’t responsible but it wasn’t for the—it wasn’t in regard to what Bane had done, it was in regard to knowing whether he would do that or not. And I had no idea that he would ever do anything like that to anybody. How can you anticipate something like that? It’s a totally bizarre event. I mean how could you anticipate that a dog that you know that is gentle and loving and affectionate would do something so horrible and brutal and disgusting and gruesome to anybody? How could you imagine that happening?”

In rebuttal, the prosecution presented evidence that the minor character of defendant Knoller’s injuries—principally bruising to the hands—indicated that she had not been as involved in trying to protect mauling victim Whipple as she had claimed. Dr. Randall Lockwood, the prosecution’s expert on dog behavior, testified that good behavior by a dog on some occasions does not preclude aggressive and violent behavior on other occasions, and he mentioned the importance of training dogs such as Bane and Hera not to fight.


Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. (§ 187, subd. (a).) Malice may be express or implied. (§ 188.) At issue here is the definition of “implied malice.” Defendant Knoller was convicted of second degree murder as a result of the killing of Diane Whipple by defendant’s dog, Bane. Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder. (See §§ 187, subd. (a), 189.) Section 188 provides: “[M]alice may be either express or implied. It is express when there is manifested a deliberate intention to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

The statutory definition of implied malice, a killing by one with an “abandoned and malignant heart” (§ 188), is far from clear in its meaning. Indeed, an instruction in the statutory language could be misleading, for it “could lead the jury to equate the malignant heart with an evil disposition or a despicable character” (People v. Phillipssupra, 64 Cal.2d at p. 587) instead of focusing on a defendant’s awareness of the risk created by his or her behavior. “Two lines of decisions developed, reflecting judicial attempts ‘to translate this amorphous anatomical characterization of implied malice into a tangible standard a jury can apply.’ ” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 103, quoting People v. Protopappas (1988) 201 Cal.App.3d 152, 162-163.) Under both lines of decisions, implied malice requires a defendant’s awareness of the risk of death to another.

The earlier of these two lines of decisions, as this court observed in People v. Nieto Benitezsupra, 4 Cal.4th at page 103-104, originated in Justice Traynor’s concurring opinion in People v. Thomas (1953) 41 Cal.2d 470, 480, which stated that malice is implied when “the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death. (We here refer to this as the Thomas test.) The later line dates from this court’s 1966 decision in People v. Phillipssupra, 64 Cal.2d at page 587: Malice is implied when the killing is proximately caused by “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’ ” (The Phillips test.)


As discussed in the preceding part, the great majority of this court’s decisions establish that a killer acts with implied malice only when acting with an awareness of endangering human life. This principle has been well settled for many years, and it is embodied in the standard jury instruction given in murder cases, including this one. The Court of Appeal here, however, held that a second degree murder conviction, based on a theory of implied malice, can be based simply on a defendant’s awareness of the risk of causing serious bodily injury to another.

In cases decided shortly before and after Conley, we reiterated the established definition of implied malice as requiring an awareness of the risk that the defendant’s conduct will result in the death of another. One year before Conley was filed, we stated in People v. Washington (1965) 62 Cal.2d 780, 782, that implied malice required a “conscious disregard for life.” Conley did not at all suggest that it intended to depart from the view expressed in Washington*. And two months after Conley, this court in People v. Phillipssupra, 64 Cal.2d at page 582, endorsed its earlier statement in Washington that implied malice requires a “conscious disregard for life.” (Italics added.)

We conclude that a conviction for second degree murder, based on a theory of implied malice, requires proof that a defendant acted with conscious disregard of the danger to human life. In holding that a defendant’s conscious disregard of the risk of serious bodily injury suffices to sustain such a conviction, the Court of Appeal erred.


* Conley no sugirió en absoluto que tuviera la intención de apartarse de la opinión expresada en Washington.

Read: California couple guilty in dog mauling case


“Que Vuelvan a Casa”, la nueva campaña de El Comercio

Que Vuelvan a Casa es una campaña de El Comercio destinada a apoyar a la Policía Nacional del Perú en la tarea de encontrar a menores desaparecidos.

Recuerda que ahora el Mininter cuenta con la web, donde se publica información sobre niñas, niños y jóvenes desaparecidos.

De otro lado, recuerde que la policía informa que de tener información sobre alguna persona desaparecida debe comunicarse de inmediato a los teléfonos 330 – 7068; 431-8140 ó al RPM #942072845. También puede escribir a los correos electrónicos, de la División de Investigación de Personas Desaparecidas PNP. Las oficinas de esta división se encuentran en la sede de la Dirección de Investigación Criminal, ubicada en la cuadra 4 de la Av. España, en el Cercado de Lima.


People v. Kolzow

Justice FROSSARD delivered the opinion of the court:

Following a bench trial, defendant Donna Kolzow was convicted of involuntary manslaughter for the death of her three-month-old son, who died of heat stroke after she left him unattended in a car for four hours. She was sentenced to three years’ probation, with the conditions of counseling and six months in custody in the Cook County Department of Corrections.

On appeal, defendant presents the following issues: (1) whether the evidence was sufficient to support the conviction of involuntary manslaughter beyond a reasonable doubt; (2) whether the court properly admitted the results of an “experiment” as to temperatures inside a car; (3) whether the court improperly relied on matters outside the record in convicting defendant; and (4) whether, in the alternative, the sentence should be vacated as the court considered matters outside the record and whether this sentence was excessive.

We affirm.


Defendant related the following in her statements to police: On the night of August 11, 1996, defendant was out with her three-month-old baby, Jeffrey. From 11 p.m. until 2 a.m., she and the child were driving around in a car with a friend of defendant, Eileen Hoover. While driving around, defendant called Officer Jeffrey Simpson, an on-duty Riverside police officer, whom she and Hoover later met at a parking lot around 1 a.m. After feeding the child with a bottle at approximately 2 a.m., she drove Hoover home. In her initial statement to police, defendant said that she and the baby spent the night at Hoover’s home until she drove home at 6:30 a.m. However, in a subsequent statement, defendant said that after she dropped Hoover off at home, she ran into Officer Simpson again, who asked her to meet him at the Riverside Swim Club. She met him, got out of the car to talk and drove home around 4:30 a.m. She and the baby arrived home around 5 a.m., but instead of going inside, defendant parked her car in a nearby parking lot and read a book. She stated that she did not go inside because she did not want to wake her sleeping stepmother. At 6:30 a.m., defendant said she noticed her stepmother’s car was gone and parked her car in front of the house. She turned off the engine, closed the driver’s window, and locked the car. Leaving the baby in the car, defendant then went in the house. She stated she immediately went to the bathroom as she had diarrhea. Defendant said she then set the alarm for 9:30 a.m., lay on the couch and fell asleep. She said she forgot about the baby, who was locked outside in the car.

Defendant stated the alarm never went off and that she awoke at 10:30 a.m. on her own. She said she remembered the baby was still in the car when she noticed he was not in the playpen. She went out to the car and saw the child’s face was completely purple. After bringing him into the house, she said she felt his hands and knew he was dead. She then called her father and her workplace. When her sister called the house, defendant told her the baby was dead.

Officer James Glosniak of the Hillside police department arrived at the scene shortly after 11 a.m. on August 12, 1996, in response to a call from one of defendant’s relatives. He testified that, when he arrived, the rear windows of the car were down about four inches and the front windows were closed. He said the car was facing west. The child was inside the house, and the officer found no pulse. The child’s body was still warm, and his cheeks and hands were a dark, reddish purple color. Defendant told the officer that she had left the baby in the car from 7 a.m. until 10:30 a.m. that morning with the windows rolled up. However, when later asked whether she had rolled the windows down, she stated she had not touched anything in the car since she removed the baby. Realizing that the child could not be resuscitated, Officer Glosniak called his supervisor to the scene.

An autopsy conducted the next day revealed the baby died of heat stroke, and Dr. Edmond Donoghue of the Cook County medical examiner’s office concluded that “parental neglect [was] a significant factor” in the child’s death. Donoghue noted that the baby’s nutrition, hydration and cleanliness were good and stated on cross-examination that it appeared the child had been well cared for.

After obtaining a search warrant, detectives retrieved an alarm clock from defendant’s apartment. Detective Heldt said the clock was displaying the correct time before it was removed from the apartment, and the alarm was set for 6 a.m.. On cross-examination, the detective acknowledged he did not test the alarm to see if it functioned properly.

On August 15, 1996, Hillside police detectives conducted an experiment in an attempt to determine the temperature inside a car under circumstances similar to those under which the baby died. Detectives used defendant’s car and a newer model of her car which was borrowed from a local dealer and parked the vehicles in a sunny parking lot facing west. In each car they placed an infant seat and a thermometer covered by a paper bag to block any direct sunlight. The thermometers were positioned so that they could be read from outside the car. The rear windows in defendant’s car were left down four inches and the windows in the dealership’s car were all closed. The parties stipulated as to the hourly temperatures on the mornings of August 12 and August 15; temperatures were slightly higher on August 12, the day the baby died, than on August 15, the day the experiment was conducted. At trial, the court allowed State witness Detective Wollenberg to testify as to the results of the experiment and the hourly temperatures inside each of the cars.

George Gourley, who lived across the street from one of defendant’s friends, was also called as a State witness. He testified that a few days prior to baby Jeffrey’s death, he was sitting on his front porch when he saw defendant park her car on the street and go inside the friend’s house. He testified that it was a very hot evening, and the windows of the car were rolled up. About 20 minutes later, defendant came out of the house and retrieved the baby, who had been in the car. Gourley further testified that “at least half a dozen times” he witnessed defendant leave the child unattended in a parked car while she went inside her friend’s house. Defendant called no witnesses and presented no evidence.



Defendant first challenges the sufficiency of the evidence supporting her conviction. Specifically, she asserts that the evidence fails to prove she acted recklessly by leaving her three-month-old son unattended in a car for four hours, resulting in his death.

The standard of review on a challenge to the sufficiency of evidence in a criminal case is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Thomas, 178 Ill.2d 215227 Ill.Dec. 410687 N.E.2d 892 (1997). A court should apply this standard regardless of whether the evidence is direct or circumstantial and should not substitute its judgement for that of the finder of fact on questions involving the weight of the evidence or the credibility of the witnesses. People v. Sutherland, 155 Ill.2d 1, 17, 182 Ill.Dec. 577610 N.E.2d 1 (1992). A criminal conviction will not be set aside on review unless the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of defendant’s guilt. People v. Devine,295 Ill.App.3d 537, 540, 229 Ill.Dec. 796692 N.E.2d 785 (1998).

Under the Illinois Criminal Code of 1961, a person commits involuntary manslaughter when he or she “unintentionally kills an individual without lawful justification * * * [and] his [or her] acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he [or she] performs them recklessly.” 720 ILCS 5/9-3 (West 1996). Recklessness is defined as follows:

A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, * * * and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. 720 ILCS 5/4-6 (West 1996).

Defendant asserts that in the present case, there was no evidence she knew the car would become so overheated that it was a danger to her baby and thus there was no evidence she consciously disregarded any risk. Therefore, she argues, there was insufficient proof of recklessness. We disagree, and find the record contains sufficient evidence to support a conviction for involuntary manslaughter; specifically, that defendant left her three-month-old son in the vehicle, consciously disregarding a substantial and unjustifiable risk of death or great bodily harm to her son.

We find that a rational trier of fact could certainly interpret the evidence presented, including the statement of defendant herself, as supporting the conclusion that defendant acted recklessly in leaving her baby unattended in the car. The evidence in the record supports the State’s theory, and the trial court’s conclusion, that defendant left the child unattended in an effort to get some uninterrupted sleep. First, defendant claimed to have set her alarm before she lay down to go to sleep, supporting the inference she purposely intended to nap rather than just fall asleep. In addition, she waited outside her stepmother’s home from 5 a.m. to 6:30 a.m. even though she had been up all night, thereby avoiding any possibility that her decision to leave the child unattended would be questioned by the stepmother. Also, before defendant went into the house, leaving the baby in the car, she locked the car and closed the windows, further supporting the conclusion that she did not plan to come immediately back out to retrieve the child after going to the bathroom. Finally, the car was found with each back window opened about four inches, which indicates defendant was planning to leave the child in the car and knew it could become hot.

The trial court simply did not find defendant’s claim that she “forgot” the child to be credible. A trial court’s determination as to the witnesses’ credibility and the weight given to their testimony is entitled to great deferencePeople v. Patrick, 298 Ill.App.3d 16232 Ill.Dec. 237697 N.E.2d 1167 (1998).

Defendant also asserts that, because she was a new mother, she was unaware of the danger of leaving the child unattended in the car, and she argues there was no indication she knew how high the temperature in the car could get. However, defendant was not charged with murder for intentionally killing her child; she was charged with involuntary manslaughter, which requires a mental state of recklessness. See 720 ILCS 5/9-3 (West 1996). In general, a defendant acts recklessly when he or she is aware that his conduct might result in death or great bodily harm, although that result is not substantially certain to occur. People v. DiVincenzo,183 Ill.2d 239233 Ill.Dec. 273700 N.E.2d 981 (1998). We believe a reasonable person would be aware of the risks in leaving a three-month-old infant unattended in a parked car for four hours on a summer day, and find the evidence supports the trial court’s finding that defendant acted recklessly by consciously disregarding that clear and obvious risk.


Taken from

Pantalla roja falsa advertencia de virus: Scam, Estafa en internet. Solo quitalo con el Administrador de Tareas

Cuando estes navegando en una pagina web y de pronto te aparezca un mensaje en rojo, o de la policia, o incluso del FBI que indica que te estan rastreando y que has sido detectado por ingresar a una pagina “prohibida”, cuando en realidad estas viendo una receta para preparar una torta, no te asustes, es una advertencia pero sobre un falso virus.

La pagina te puede estar indicando en un audio que se repite incesantemente que hay un virus en tu PC o laptop y debes, tienes que llamar a cierto numero de telefono. No lo hagas. No llames a nadie, es solo un scam, una estafa. Si llamas a ese numero seguramente te robaran informacion y la usaran para obtener tus claves, cuentas de banco, emails, etc. La finalidad de estas paginas es robar tu identidad en internet para cometer actos ilicitos en otros lugares del mundo en tu nombre. Ten cuidado, no llames a ese numero.

Si bien no puedes cerrar la pagina o realizar otra accion, no te desesperes. La solucion es simple: solo presiona Ctrl+Alt+Del y se abrira el administrador de tareas. Una vez que aparece el administrador de tareas, tienes que buscar la referencia de la pagina que te esta causando problemas y que puede estar bajo la firma de Microsoft o Google o Firefox. Lo importante es simplemente “terminar la tarea” de esa pagina haciendo click en ella en el administrador de tareas. Luego de ello, puedes borrar tu historial, buscar los cookies y borrarlos tambien. Listo.

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