United States v. Henderson

Opinion of the Court

COX, Judge:

Contrary to his pleas, appellant was convicted by a military judge sitting alone as a *78general court-martial of involuntary manslaughter, false swearing, sale of cocaine, and two specifications of transfer of cocaine, in violation of Articles 119 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 919 and 934, respectively. His sentence to confinement for 119 months, forfeiture of all pay and allowances, reduction to E-l, and a dishonorable discharge was approved by the convening authority. The Court of Military Review affirmed the findings and sentence in an unpublished opinion.

We granted review of the following issue:

WHETHER THE EVIDENCE IS SUFFICIENT AS A MATTER OF LAW TO SUSTAIN A FINDING OF GUILTY AS TO THE SPECIFICATION OF CHARGE I (INVOLUNTARY MANSLAUGHTER).

Finding the evidence to be legally sufficient, we affirm.

Appellant was convicted of involuntary manslaughter by culpable negligence under Article 119(b)(1) on the basis of a specification reading as follows after findings:

In that Specialist Four Garry L. Henderson, US Army, Medical Company B, Tripler Army Medical Center, did, at Tripler Army Medical Center, Hawaii, an installation under military control, on or about 16 June 1981, by culpable negligence unlawfully kill Specialist Four Myers W. Hickman, a member of Medical Company B, Tripler Army Medical Center, by making available to the said Specialist Four Myers W. Hickman a large quantity of cocaine, then knowing of Specialist Four Myers W. Hickman’s propensity to abuse cocaine and then knowing that the said Specialist Four Myers W. Hickman would inject a large amount of the cocaine into his body; by permitting the said Specialist Four Myers W. Hickman to utilize his (the accused’s) room in which to inject the drugs into his body.

The Government had the burden of proving beyond a reasonable doubt that the following occurred:

(1) Myers W. Hickman was dead;
(2) his death resulted from the acts of appellant, as alleged; and
(3) appellant’s acts constituted culpable negligence.

Para. 1986, Manual for Courts-Martial, United States, 1969 (Revised edition).

Without question, the Government proved that Myers Hickman was dead and that his death resulted from an overdose of cocaine. Appellant disputes, however, the sufficiency of the evidence either to establish a causal connection between appellant’s acts and the death or to establish that appellant was culpably negligent.

I

The evidence showed that appellant reported finding the unconscious body of Hickman lying on the lanai (veranda) adjacent to appellant’s barracks room at approximately 0900 hours on June 16, 1981. A small amount of blood was observed around the mouth, where a tooth was chipped and the lower lip lacerated. Emergency rendering of first aid and cardiopulmonary resuscitation was unsuccessful and Hickman was pronounced dead-on-arrival at the Army hospital. An autopsy revealed the cause of death was cocaine intoxication. A forensic pathologist testified that the high levels of cocaine found in Hickman’s body were usually fatal.

Appellant often supplied cocaine to his enlisted friends at Tripler Army Medical Center. The decedent was one of these friends. On June 15, the day before Hickman’s death, Hickman told Specialist Four Carl Youney that he had run “into a whole lot of cocaine and” was going to a party that night. According to Youney, Hickman injected cocaine whenever it was available to him and had “almost killed himself” before by overdosing on cocaine. During the week before his death, Hickman had been depressed and had discussed suicide with several friends.

On the evening of June 15, Hickman and a group of friends gathered at appellant’s off-post apartment. Appellant mentioned to Private First Class Cynthia Scovel that *79Hickman was in a back room shooting up cocaine and saying that he was going to die. To her expression of concern, appellant commented that Hickman was a big boy.

Hickman left appellant’s apartment late that evening to report for duty as an operating room technician. The next morning, appellant and Hickman were seen together in the barracks. They came by the room of Dean Peters around 0745 hours and asked him if he wanted to “party” with them, stating that they were “going to go get fired up.” Peters declined their invitation. A short while later, Hickman was dead.

Although the record does not reveal who injected the lethal dose of cocaine into Hickman’s body, appellant’s admissions provided support for the Government’s theory that appellant provided Hickman with the cocaine used to overdose and that appellant was present when it was injected. Appellant called Timothy Wagoner on the morning of June 16 to tell him what had happened in the barracks. He related that Hickman had overdosed and that he had carried him out on the lanai. He asked Wagoner to keep a bag containing ten grams of cocaine for him, as appellant “felt ... the heat was on him.” Appellant also told his barracks roommate that he had provided Hickman with cocaine the night before his death.

Bloodstains and a portion of a tooth broken out of Hickman’s mouth were found on the floor of appellant’s room in the barracks, providing circumstantial evidence that appellant moved Hickman’s unconscious body from appellant’s room to the lanai after Hickman collapsed. According to medical testimony, Hickman most likely collapsed immediately after injecting the fatal dose of cocaine, with brain death occurring within 5 minutes.

When announcing findings, the military judge stated:

I could not find beyond a reasonable doubt that a sale of cocaine occurred between the accused and Myers W. Hickman on or about 15 June. I did find beyond a question of a doubt, however, that the accused made available to Myers Hickman sufficient quantities of cocaine that once ingested caused the death of Myers Hickman.

II

Appellant maintains that the evidence fails to establish that he was the source of the fatal dose of cocaine. The military judge’s finding that appellant “made available” cocaine to Hickman under the facts of this case is equivalent to a finding that appellant “provided,” “supplied,” or “furnished” the illegal drug to Hickman. Although there was no direct evidence on this point, there is competent circumstantial evidence from which the military judge could have found beyond a reasonable doubt that appellant furnished Hickman the fatal dose. As pointed out by appellate government counsel:

Considering that appellant provided Hickman cocaine the night before Hickman’s death, that the two were together that night and early the next morning, and that appellant possessed cocaine that morning, it is implausible that any other person supplied Hickman’s fatal dose of cocaine.

Appellant further argues that, even assuming he did provide the cocaine which Hickman used to overdose, this was not a culpably negligent act. Culpable negligence is defined as

a degree of carelessness greater than simple negligence. It is a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others of that act or omission. Thus, the basis of a charge of involuntary manslaughter may be a negligent act or omission which, when viewed in the light of human experience, might foreseeably result in the death of another, even though death would not, necessarily, be a natural and probable consequence of the act or omission.

Para. 1986, Manual, supra.

Therefore, it is not necessary that appellant in fact foresaw a fatal outcome. The *80test is whether a reasonable person, in view of all the circumstances, would have realized the substantial and unjustifiable danger created by his acts or omissions. United States v. Brown, 22 M.J. 448 (C.M. A.1986). See United States v. Mazur, 13 M.J. 143, 145 (C.M.A.1982) (Everett, C.J., concurring).

The fact that cocaine has been designated a controlled substance by Congress, standing alone, means that it has been determined to be potentially harmful, that it will only be available illicitly, and that there will be a lack of quality control. Furthermore, merely providing a controlled substance is “an act inherently dangerous to human life.” See United States v. Sargent, 18 M.J. 331, 339 n. 6 (C.M.A.1984), quoting United States v. Moglia, 3 M.J. 216, 217 (C.M.A.1977). See generally An-not., 32 A.L.R.3d 589 (1970). Specifically, the unlawful furnishing of cocaine is conduct “inherently dangerous to human life.” See Heacock v. Commonwealth, 228 Va. 397, 323 S.E.2d 90 (1984).1 In United States v. Ettleson, 13 M.J. 348, 361 n. 15 (C.M.A.1982), this Court referred to “the noxious effects of cocaine,” citing statistics from the Centers for Disease Control to demonstrate the increase in “the rate of cocaine-related deaths” and emergencies between 1976 and 1980.

Thus, appellant’s act of unlawfully making available cocaine, a restricted drug, to Hickman is compelling evidence of his culpable negligence. Moreover, it is clear that appellant knew of Hickman’s propensity to use cocaine excessively and recklessly. Only the night before, Hickman spoke of dying from the same substance.2 In view of all the information available, appellant knew or should have known the risk he created by making available a large quantity of cocaine to Hickman to inject.

Although appellant may not have personally inserted the needle into Hickman’s arm, he nevertheless assisted Hickman’s wrongful use of the cocaine that killed him.3 See para. 156, Manual, supra. Appellant actively aided and abetted the injection of the lethal dose by making available a large quantity of cocaine knowing it would be injected, by permitting the privacy of his room to be utilized for the injection, by encouraging the decedent to “get fired up,” and by his presence during the consumption of the cocaine.4 We conclude *81that the evidence is sufficient as a matter of law to establish appellant’s culpable negligence.5

The decision of the United States Army-Court of Military Review is affirmed.

Judge SULLIVAN concurs.

. In Heacock v. Commonwealth, 228 Va. 397, 323 S.E.2d 90 (1984), it was held as a matter of law that the unlawful distribution of cocaine is conduct potentially dangerous to human life, for purposes of determining whether one who feloniously distributes cocaine is guilty of second-degree murder when the recipient dies of an overdose. The Virginia statute defines murder in the second degree as "[t]he killing of one accidentally ... while in the prosecution of’ a felony "other than those specified in” the first-degree and capital-murder statutes. Code § 18.-2-33. In Heacock, as in the present case, the record did not show who administered the fatal injection. But see State v. Aarsvold, 376 N.W.2d 518 (Minn.App.1985) (sale of cocaine not appropriate felony on which to base felony-murder under Minnesota statute).

. Although Hickman discussed suicide in the week before his death, the evidence does not establish that he intended to commit suicide or that appellant caused the death in the execution of some sort of suicide pact. Cf. United States v. Varraso, 21 M.J. 129 (C.M.A.1985), cert. denied, — U.S. -, 106 S.Ct. 1645, 90 L.Ed.2d 190 (1986) (murder conviction upheld where accused’s acts were proximate cause of death, even if decedent intended to commit suicide).

. Convictions of involuntary manslaughter under Article 119(b)(1), Uniform Code of Military Justice, 10 U.S.C. § 919(b)(1), have been routinely upheld where the culpable negligence consisted of somehow assisting the victim to illegally use a restricted drug. See United States v. Dinkel, 13 M.J. 400 (C.M.A.1982) (assisted injection of heroin by holding victim’s arm); United States v. Mazur, 13 M.J. 143 (C.M.A.1982) (assisted victim to inject heroin); United States v. Romero, 1 M.J. 227 (C.M.A.1975) (helped victim insert syringe of heroin into vein); United States v. Monroe, 50 C.M.R. 423 (N.C.M.R.1975) (furnished heroin and means for injecting it); United States v. Uno, 47 C.M.R. 683 (A.C.M.R.1973) (furnished opium and helped victim prepare it for injection); United States v. Thibeault, 43 C.M.R. 704 (A.C.M.R. 1971), pet. denied, 20 U.S.C.M.A. 671, 43 C.M.R. 413 (1971) (injected victim with epinephrine).

. Thus, it is unnecessary for us to decide whether the sole act of distributing (or "making available” or "furnishing”) a controlled substance to a person who uses it and dies as a result would constitute culpable negligence per se.

. Compare People v. Edwards, 39 Cal.3d 107, 216 Cal.Rptr. 397, 702 P.2d 555 (1985) (evidence sufficient to support involuntary-manslaughter conviction in accidental heroin overdose case based on misdemeanor-manslaughter theory where accused aided and abetted use by copurchasing drug with decedent); State v. Randolph, 676 S.W.2d 943 (Tenn.1984) (although seller was not present at injection, proof of sale of heroin to victim who died the next day following self-administered overdose could support conviction for second-degree murder or involuntary manslaughter); Sheriff, Clark County v. Morris, 99 Nev. 109, 659 P.2d 852 (1983) (felonious sale of chloral hydrate with presence of seller during consumption by buyer of lethal dose proper predicate for felony-murder); State v. Thomas, 118 N.J.Super. 377, 288 A.2d 32 (1972) (manslaughter conviction upheld where jury could reasonably find that regular, natural and likely consequence of sale of heroin was user’s death), with State v. Mauldin, 215 Kan. 956, 529 P.2d 124 (1974) (felony of selling heroin alone not sufficient to fall within scope of felony-murder statute); State v. Dixon, 109 Ariz. 441, 511 P.2d 623 (1973) (sole act of selling heroin to purchaser who voluntarily and out of presence of seller injects lethal quantity and dies as a result does not constitute second-degree murder).