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Delaware Supreme Court Reverses Criminally Negligent Homicide Because Conduct was ‘Too Remote’ from Cause of Death

by Dale Chappell

Conduct that was “too remote” from the cause of death could not support criminally negligent homicide, the Delaware Supreme Court held, reversing a juvenile’s adjudication.

Tracy Cannon and Alcee Franklin-Johnson (pseudonyms), two 16-year olds, took their argument into a school bathroom where things turned physical. In less than one minute, it was over, and two hours later, Alcee was dead. However, the death was not from any injury sustained during her altercation with Tracy. Instead, she died from a very rare heart condition that even she didn’t know she had.

Nevertheless, Tracy was charged with criminally negligent homicide and was adjudicated delinquent in family court after a five-day bench trial. The judge, as the fact-finder, pinned blame on Tracy because her attack on Alcee was carried out “in the close confines of the school bathroom stall, which posed [a] risk of potential catastrophic physical harm including death by virtue of the tile floor, walls and fixtures.” The court also said Tracy was aware that her attack on Alcee would result in “physical and emotional trauma” that could result in her death and ruled that the evidence established beyond a reasonable doubt that Tracy had caused Alcee’s death. Tracy appealed, and the Delaware Supreme Court agreed to hear her case.

While a delinquency proceeding is not a “criminal prosecution,” the State’s burden is no different than an adult criminal case, so the legal principles are the same for both types of proceedings. To be liable for criminally negligent homicide, the State must prove the defendant (1) acted with criminal negligence and (2) caused the death of a person. To be liable for criminal negligence, the State must prove the defendant was “indifferent to the risk of death” and her conduct so “abnormal” that it would be a “gross deviation” from what a reasonable person would do in the same situation. To prove “causation,” the defendant’s “risky behavior” had to be the “but-for” cause of death. A mere chain of unforeseeable or highly improbable events that led to death is not enough.

Under § 263 of the Delaware Criminal Code, a defendant’s conduct that is “too remote” to have a bearing on her liability or the gravity of the offense cannot amount to criminal negligence. There also must be a sufficient relationship between the risk the defendant created and the cause of death. In this case, the risk created by Tracy involved hard bathroom surfaces, but Alcee died from a rare cardiac condition.

The Supreme Court noted that the autopsy revealed Tracy’s attack on Alcee did not cause her death, “or, for that matter, serious physical injury.” Alcee’s actual cause of death was “sudden cardiac death due to a large atrial septal defect and pulmonary hypertension.” Nobody knew about Alcee’s heart condition, not even her doctor. The syndrome, known as Eisenmenger Syndrome, occurs in only 2.2 out of every million live births.

To find a defendant criminally negligent, it is not enough that the risk of death was “within the realm of contemplation,” the Court said. The risk had to be enough that “failure to perceive it constitutes a gross deviation from the standard of care a reasonable person would exercise under the circumstances.” The Court found that Tracy’s attack on Alcee did not rise to the level of criminal negligence.

As for causation, the second element of criminally negligent homicide, § 263 provides that if the “actual result” of the defendant’s conduct is outside the risk the defendant “should be aware” of, causation cannot be found, unless it is “not too remote or accidental in its occurrence” to have caused the death.

The purpose of § 263 is to do away with the inconsistent language of the “proximate cause” standard and the “legal mumbo-jumbo” about whether a defendant can be held responsible for a series of events having little to do with the risk she created. Section 263 was designed for difficult cases like Tracy’s, the Court explained, yet the family court failed to appreciate this in the present case.

Applying § 263 to Tracy’s case, the Supreme Court concluded that, given the “statistical improbability” Alcee had a heart condition that would have made her vulnerable to death from the stress of an assault, Tracy’s actions were “too remote” and “too accidental in its occurrence” for her conduct to amount to criminally negligent homicide.

Accordingly, the Supreme Court reversed the family court’s adjudication of Tracy as delinquent of criminally negligent homicide. See: Cannon v. State, 181 A.3d 615 (Del. 2018). 

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Cannon v. State



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