(dissenting):
In my view, the court below did not err when it concluded that the military judge had properly excluded evidence of negligent medical care given to the victim. Admittedly, there can be circumstances under which intervening negligence on the part of those rendering medical assistance can be so extreme as to constitute an intervening cause that will absolve liability for homicide. For example, if someone is in the hospital for a minor leg injury and he receives an erroneous prescription that kills him, the person who inflicted the leg injury cannot be held liable for the homicide. The present case is far different, however, and is much more akin to the Cooke case where, in a prosecution for involuntary manslaughter, this Court concluded that there was no intervening cause. United States v. Cooke, 18 MJ 152 (1984).
In the present case, the victim was almost dead before he was pulled out of the water. While it is possible that excellent medical care might have prevented him from dying, it seems clear from the undisputed evidence offered by the prosecution that the maltreatment that he had received from appellant contributed substantially to his death. After all, the victim was limp when he was pulled out of the pool with no respiration, no pulse, and face and lips that there were blue or off-color. Even though appellant’s conduct that induced this condition may have been only reckless or negligent — rather than intended to injure — the absence of extraordinary medical assistance did not constitute an intervening cause under these circumstances. The military judge recognized this and properly excluded the evidence. I would affirm the decision below which so held.