News
Criminal
Jun. 24, 2002
Pool Drowning Convictions Often Overturned on Appeal
Focus Column - By Laurie L. Levenson - It's that time of the year again. Summer is near and tragedy is in the air. Accidental drowning is one of the leading causes of death for young children. See National Center for Injury Prevention and Control Statistics (1999). Ordinarily, a drowning leads to civil actions against the owner of the pool or the adult responsible for the child. However, in extreme cases, a drowning also can lead to criminal charges.
Focus Column
By Laurie L. Levenson
It's that time of the year again. Summer is near and tragedy is in the air. Accidental drowning is one of the leading causes of death for young children. See National Center for Injury Prevention and Control Statistics (1999). Ordinarily, a drowning leads to civil actions against the owner of the pool or the adult responsible for the child. However, in extreme cases, a drowning also can lead to criminal charges.
Under California law, a person responsible for the drowning of another may be guilty of involuntary manslaughter or even second-degree murder. Second-degree murder is the unlawful killing of a human being with malice aforethought. People v. Nieto-Benitez, 4 Cal.4th 91 (1992).
Malice may be express or implied. Express malice exists when the defendant intends to kill the victim. Implied malice occurs when the defendant, even though not intending to cause the victim's death, nonetheless acts in a manner that demonstrates a conscious disregard for human life. People v. Swain, 12 Cal.4th 593 (1996).
Involuntary manslaughter may be charged when a killing is committed "in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." Penal Code Section 192(b).
Thus, if a pool owner either commits a violation that leads to the victim's death, or takes risks that a reasonable person would not take in those circumstances, he or she may face charges of involuntary manslaughter for the death of a child in her pool.
Rarely do drownings result in criminal charges. Most pool accidents do not involve criminal conduct. Rather, they are sad misfortunes that may require that the victim's family be compensated, but do not require that the defendant be punished. See CALJIC No. 4.45 (When a person commits an act or makes an omission through misfortune or accident under circumstances that show neither criminal intent or purpose, nor criminal negligence, the person does not thereby commit a crime.)
However, in those situations where the drowning was clearly more than accidental, prosecutors have been willing to file criminal charges. For example, in People v. Bohana, 84 Cal.App.4th 360 (2000), Donald James Bohana was charged with murder for the drowning death of his girlfriend, Delores Jackson.
On the night of Aug. 26, 1994, Jackson arrived at Bohana's house for a late dinner. At 3:34 a.m. on Aug. 27, Bohana called 911 to report "someone fell in my pool" and was "drowning." By the time paramedics arrived, Bohana was kneeling near Jackson's body. Paramedics tried to resuscitate her but were unsuccessful. They noticed, however, that the victim expelled large amounts of water and alcohol when they performed CPR on her, indicating that there had been no prior attempts to resuscitate.
When sheriff's deputies initially questioned Bohana, he was uncooperative. After several hours, he finally gave his story of what had happened that evening. Bohana claimed that the couple drank alcohol, talked, listened to music and danced. Then, they disrobed and hopped into the Jacuzzi. After 20 minutes to 40 minutes in the Jacuzzi, they went for a swim. Bohana then got out of the water as Jackson continued to swim. Bohana said he jumped back into the water when he saw Jackson struggling, but she resisted his help. Then, he tried to extend to her a pool pole, but it was too short for her to grab. He then ran to call 911 for help. When he returned to the pool, Jackson was no longer moving and was lying motionless at the bottom of the pool. He claimed to have retrieved her body and placed it on the deck so he could resuscitate her.
The autopsy told a different story. When examined, Jackson had numerous bruises on her upper chest and breasts, a torn earlobe and a laceration on her shoulder. She also had a blackened red eye and scratches on her lips and face. There was also an indication that Jackson had been suffocated into unconsciousness. Overall, her injuries were consistent with Jackson either falling into the pool while being beaten by Bohana or being pushed into the pool.
Prosecutors argued that she was unable to rescue herself because she could not swim and was injured or unconscious from the beating. They called Jackson's family members to testify that Jackson could not swim and had a morbid fear of water.
At trial, the defendant claimed that he didn't commit any act that caused Jackson to drown. He also did not ask for an instruction on the lesser included offense of involuntary manslaughter. The jury returned a verdict of second-degree murder.
Of course, Bohana is the rare case. The appellate court found that there was ample evidence of implied malice. By forcing Jackson, a nonswimmer, into the deep end of his swimming pool, either before or after beating her, Bohana was responsible for her death.
In the typical backyard drowning, the defendant does not engage in affirmative acts to cause the victim's death. Rather, the death occurs because of some negligence by the defendant. In those situations, it is much less likely that the appellate courts will uphold a finding of criminal liability.
For example, Elizabeth Davis of Nashville, Tenn., was charged with involuntary manslaughter for the drowning death of her 2-year-old son. See State v. Davis, 798 S.W.2d 268 (Tenn. 1990). Davis lived in an apartment with her husband, her mother and her 2-year-old son, Michael. Before the drowning, Michael was seen playing with other little children at the apartment complex.
Later that afternoon, Davis and her husband began looking for Michael. Thinking that he might have wandered into nearby woods, Davis looked there first. In the meantime, a neighbor spotted the child in the shallow end of the pool and pulled him out. Davis' mother, a licensed nurse, tried to resuscitate the child but was unsuccessful.
The prosecution's case focused on the operation of the pool, the victim's attraction to it and Davis' prior neglect of the boy. Prosecutors called witnesses to testify that Michael was a precocious little boy attracted to the pool. On at least one occasion, he had walked down the steps of the pool into the water with his shoes on. Neighbors also testified that Michael often was left unsupervised in his play.
In her defense, Davis and her husband testified that she was not a neglectful parent but was overwhelmed with trying to raise a very active and curious 2-year-old while ill with morning sickness from her new pregnancy. The jury showed no mercy. It convicted Davis of involuntary manslaughter.
Davis challenged her conviction. The Tennessee Court of Criminal Appeals, citing a key California case, People v. Rodriguez, 186 Cal.App.2d 433 (1960), reversed the conviction. Under both California and Tennessee law, criminal negligence requires more than "mere inattention" or a "mistake in judgment." Rather, the defendant's conduct must be so careless that there are "knowable and apparent potentialities for resulting in death." Rodriguez.
As had the California court, the Tennessee court refused to blame the parents for the child's accidental death. It wrote, "'[M]ust a parent never leave a young child [in the care of others] on risk of being adjudged guilty of manslaughter if some unforeseeable occurrence causes the death of the child?' We think not."
Although appellate courts have been hostile to charging accidental drownings as manslaughter, prosecutors continue to bring such charges. For example, in People v. Riggs, 2 S.W.3d 867 (Mo. 1999), the mother of three young children was convicted of involuntary manslaughter when she allowed her 2-year-old to wander away and drown in a nearby pond. The appellate court was willing to reverse her conviction for involuntary manslaughter but upheld a conviction for child endangerment.
In Nevada, Paula Martineau and Georganna Lagen were charged with involuntary manslaughter and child abuse for the death of their 27-month-old daughter. Martineau v. Angelone, 25 F.3d 734 (9th Cir. 1994). The child died hours after she had been thrown repeatedly in the pool to teach her how to swim. After being convicted on both charges, the defendants appealed. Years later, their convictions were overturned.
Prosecutors have even charged pool owners who have no relationship with the victim with manslaughter for pool-related deaths. See People v. Lancing Terrace Apartments Inc., 332 N.Y.S.2d 705 (1972) (owners of apartment complex charged with manslaughter for failing to adequately fence their pool).
Ultimately, the defendants may succeed in getting their cases dismissed, but prosecutors and juries still take these cases seriously. They don't seem to join in the appellate courts' belief that "[m]ere lack of foresight, stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however serious the consequences may happen to be, do not constitute culpable negligence." Lancing Terrace Apartments.
Overall, it is unlikely, but not impossible, that adults will be charged with the death of youngsters who die in pool accidents. Yet when adults do not use good judgment or care, they can face criminal liability. For example, in Tongay v. State, 79 So.2d 673 (Fla. 1955), Russell Tongay encouraged his 51/2-year-old girl to dive off a high platform. When she hit the water, the child ruptured her small intestine and died. Tongay's conviction for manslaughter was affirmed.
Severe neglect can be the basis of a manslaughter charge, but only in the most extreme cases. In general, the safety of children depends more on the moral conscience of adults than on the power of the criminal-justice system.
Laurie L. Levenson is professor of law and William M. Rains Fellow at Loyola Law School in Los Angeles.
By Laurie L. Levenson
It's that time of the year again. Summer is near and tragedy is in the air. Accidental drowning is one of the leading causes of death for young children. See National Center for Injury Prevention and Control Statistics (1999). Ordinarily, a drowning leads to civil actions against the owner of the pool or the adult responsible for the child. However, in extreme cases, a drowning also can lead to criminal charges.
Under California law, a person responsible for the drowning of another may be guilty of involuntary manslaughter or even second-degree murder. Second-degree murder is the unlawful killing of a human being with malice aforethought. People v. Nieto-Benitez, 4 Cal.4th 91 (1992).
Malice may be express or implied. Express malice exists when the defendant intends to kill the victim. Implied malice occurs when the defendant, even though not intending to cause the victim's death, nonetheless acts in a manner that demonstrates a conscious disregard for human life. People v. Swain, 12 Cal.4th 593 (1996).
Involuntary manslaughter may be charged when a killing is committed "in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." Penal Code Section 192(b).
Thus, if a pool owner either commits a violation that leads to the victim's death, or takes risks that a reasonable person would not take in those circumstances, he or she may face charges of involuntary manslaughter for the death of a child in her pool.
Rarely do drownings result in criminal charges. Most pool accidents do not involve criminal conduct. Rather, they are sad misfortunes that may require that the victim's family be compensated, but do not require that the defendant be punished. See CALJIC No. 4.45 (When a person commits an act or makes an omission through misfortune or accident under circumstances that show neither criminal intent or purpose, nor criminal negligence, the person does not thereby commit a crime.)
However, in those situations where the drowning was clearly more than accidental, prosecutors have been willing to file criminal charges. For example, in People v. Bohana, 84 Cal.App.4th 360 (2000), Donald James Bohana was charged with murder for the drowning death of his girlfriend, Delores Jackson.
On the night of Aug. 26, 1994, Jackson arrived at Bohana's house for a late dinner. At 3:34 a.m. on Aug. 27, Bohana called 911 to report "someone fell in my pool" and was "drowning." By the time paramedics arrived, Bohana was kneeling near Jackson's body. Paramedics tried to resuscitate her but were unsuccessful. They noticed, however, that the victim expelled large amounts of water and alcohol when they performed CPR on her, indicating that there had been no prior attempts to resuscitate.
When sheriff's deputies initially questioned Bohana, he was uncooperative. After several hours, he finally gave his story of what had happened that evening. Bohana claimed that the couple drank alcohol, talked, listened to music and danced. Then, they disrobed and hopped into the Jacuzzi. After 20 minutes to 40 minutes in the Jacuzzi, they went for a swim. Bohana then got out of the water as Jackson continued to swim. Bohana said he jumped back into the water when he saw Jackson struggling, but she resisted his help. Then, he tried to extend to her a pool pole, but it was too short for her to grab. He then ran to call 911 for help. When he returned to the pool, Jackson was no longer moving and was lying motionless at the bottom of the pool. He claimed to have retrieved her body and placed it on the deck so he could resuscitate her.
The autopsy told a different story. When examined, Jackson had numerous bruises on her upper chest and breasts, a torn earlobe and a laceration on her shoulder. She also had a blackened red eye and scratches on her lips and face. There was also an indication that Jackson had been suffocated into unconsciousness. Overall, her injuries were consistent with Jackson either falling into the pool while being beaten by Bohana or being pushed into the pool.
Prosecutors argued that she was unable to rescue herself because she could not swim and was injured or unconscious from the beating. They called Jackson's family members to testify that Jackson could not swim and had a morbid fear of water.
At trial, the defendant claimed that he didn't commit any act that caused Jackson to drown. He also did not ask for an instruction on the lesser included offense of involuntary manslaughter. The jury returned a verdict of second-degree murder.
Of course, Bohana is the rare case. The appellate court found that there was ample evidence of implied malice. By forcing Jackson, a nonswimmer, into the deep end of his swimming pool, either before or after beating her, Bohana was responsible for her death.
In the typical backyard drowning, the defendant does not engage in affirmative acts to cause the victim's death. Rather, the death occurs because of some negligence by the defendant. In those situations, it is much less likely that the appellate courts will uphold a finding of criminal liability.
For example, Elizabeth Davis of Nashville, Tenn., was charged with involuntary manslaughter for the drowning death of her 2-year-old son. See State v. Davis, 798 S.W.2d 268 (Tenn. 1990). Davis lived in an apartment with her husband, her mother and her 2-year-old son, Michael. Before the drowning, Michael was seen playing with other little children at the apartment complex.
Later that afternoon, Davis and her husband began looking for Michael. Thinking that he might have wandered into nearby woods, Davis looked there first. In the meantime, a neighbor spotted the child in the shallow end of the pool and pulled him out. Davis' mother, a licensed nurse, tried to resuscitate the child but was unsuccessful.
The prosecution's case focused on the operation of the pool, the victim's attraction to it and Davis' prior neglect of the boy. Prosecutors called witnesses to testify that Michael was a precocious little boy attracted to the pool. On at least one occasion, he had walked down the steps of the pool into the water with his shoes on. Neighbors also testified that Michael often was left unsupervised in his play.
In her defense, Davis and her husband testified that she was not a neglectful parent but was overwhelmed with trying to raise a very active and curious 2-year-old while ill with morning sickness from her new pregnancy. The jury showed no mercy. It convicted Davis of involuntary manslaughter.
Davis challenged her conviction. The Tennessee Court of Criminal Appeals, citing a key California case, People v. Rodriguez, 186 Cal.App.2d 433 (1960), reversed the conviction. Under both California and Tennessee law, criminal negligence requires more than "mere inattention" or a "mistake in judgment." Rather, the defendant's conduct must be so careless that there are "knowable and apparent potentialities for resulting in death." Rodriguez.
As had the California court, the Tennessee court refused to blame the parents for the child's accidental death. It wrote, "'[M]ust a parent never leave a young child [in the care of others] on risk of being adjudged guilty of manslaughter if some unforeseeable occurrence causes the death of the child?' We think not."
Although appellate courts have been hostile to charging accidental drownings as manslaughter, prosecutors continue to bring such charges. For example, in People v. Riggs, 2 S.W.3d 867 (Mo. 1999), the mother of three young children was convicted of involuntary manslaughter when she allowed her 2-year-old to wander away and drown in a nearby pond. The appellate court was willing to reverse her conviction for involuntary manslaughter but upheld a conviction for child endangerment.
In Nevada, Paula Martineau and Georganna Lagen were charged with involuntary manslaughter and child abuse for the death of their 27-month-old daughter. Martineau v. Angelone, 25 F.3d 734 (9th Cir. 1994). The child died hours after she had been thrown repeatedly in the pool to teach her how to swim. After being convicted on both charges, the defendants appealed. Years later, their convictions were overturned.
Prosecutors have even charged pool owners who have no relationship with the victim with manslaughter for pool-related deaths. See People v. Lancing Terrace Apartments Inc., 332 N.Y.S.2d 705 (1972) (owners of apartment complex charged with manslaughter for failing to adequately fence their pool).
Ultimately, the defendants may succeed in getting their cases dismissed, but prosecutors and juries still take these cases seriously. They don't seem to join in the appellate courts' belief that "[m]ere lack of foresight, stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however serious the consequences may happen to be, do not constitute culpable negligence." Lancing Terrace Apartments.
Overall, it is unlikely, but not impossible, that adults will be charged with the death of youngsters who die in pool accidents. Yet when adults do not use good judgment or care, they can face criminal liability. For example, in Tongay v. State, 79 So.2d 673 (Fla. 1955), Russell Tongay encouraged his 51/2-year-old girl to dive off a high platform. When she hit the water, the child ruptured her small intestine and died. Tongay's conviction for manslaughter was affirmed.
Severe neglect can be the basis of a manslaughter charge, but only in the most extreme cases. In general, the safety of children depends more on the moral conscience of adults than on the power of the criminal-justice system.
Laurie L. Levenson is professor of law and William M. Rains Fellow at Loyola Law School in Los Angeles.
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