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Cannon v. State

Supreme Court of Delaware

March 1, 2018

TRACY CANNON, Respondent Below, Appellant,
STATE OF DELAWARE, Petitioner Below, Appellee.

          Submitted: December 6, 2017

         Court Below: Family Court of the State of Delaware No. 1605005854

         Upon appeal from the Family Court. REVERSED.

          Garrett B. Moritz, Esquire (argued), Ross Aronstam & Moritz, LLP, Wilmington, Delaware; John P. Deckers, Esquire, The Law Offices of John P. Deckers, P.A., Wilmington, Delaware, Counsel for Appellant.

          Carolyn S. Hake, Esquire (argued), Delaware Department of Justice, Wilmington, Delaware, Counsel for Appellee.

          Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices, constituting the Court en Banc.


         In a girls' bathroom in a Wilmington high school, a verbal confrontation between two 16-year-old students, Tracy Cannon and Alcee Johnson-Franklin, [1]turned physical when Tracy threw Alcee to the ground and started throwing punches. Alcee tried to protect herself from the blows, and the two ended up on the floor of the bathroom, grappling and kicking at each other. It was over in less than a minute, but within two hours of the assault, Alcee was pronounced dead-not from blunt-force trauma, but from a rare heart condition that even Alcee did not know she had. This tragic result prompted the State to charge Tracy with criminally negligent homicide, and, after a five-day bench trial in Family Court, she was adjudicated delinquent.[2]

         Tracy appeals. She contends that no reasonable factfinder could have found that she acted with criminal negligence or, even if she did, that it would be just to blame her for Alcee's death given how unforeseeable it was that her attack would cause a 16-year-old to die from cardiac arrest. We agree. A defendant cannot be held responsible for criminally negligent homicide unless there was a risk of death of such a nature and degree that her failure to see it was a gross deviation from what a reasonable person would have understood, and no reasonable factfinder could conclude that Tracy's attack-which inflicted only minor physical injuries-posed a risk of death so great that Tracy was grossly deviant for not recognizing it. And even if-as the Family Court saw it-Tracy should have realized that her attack might have deadly consequences because she carried it out in the close confines of the bathroom (near its tile floor and hard fixtures), Alcee's death had nothing to do with those risks, and they were too far removed from the way that she died to blame Tracy for her death. We therefore reverse the Family Court's adjudication that Tracy was delinquent of criminally negligent homicide.



         A delinquency proceeding in Family Court is not a criminal prosecution, [3] but the burden on the State to prove its case is no lighter. Branding a juvenile "delinquent, " and subjecting her to "the stigma of a finding that [she] violated a criminal law" and the possible deprivation of her liberty, "is comparable in seriousness to a felony prosecution" and cannot be done "on proof insufficient to convict [her] were [she] an adult."[4] So when a juvenile challenges whether the record supports a finding of delinquency, we ask, just as we would were this an adult criminal case, whether the evidence, viewed in the light most favorable to the State, would permit a reasonable judge of the facts to find "the essential elements of the crime beyond a reasonable doubt."[5]


         A clear picture of the events leading up to Alcee's death emerged at trial. On the day before her fatal encounter with Tracy, Alcee, a 16-year old sophomore at Howard High School of Technology, sent a relatively innocuous text message to a friend warning her to be careful in her communications with schoolmates, some of whom might not be trustworthy. The text was sent to a group that included Tracy Cannon, one of Alcee's classmates. Believing that she was the butt of the comment, Tracy took offense and exchanged a series of text messages with Alcee that became increasingly contentious. After one of the messages, Alcee-who was in English class at the time-asked for and received permission to go to the bathroom. Under that pretense, she met Tracy and another girl in one of the school's bathrooms.

         According to one of Alcee's close friends, who was with her in English class, Alcee went to that bathroom expecting a fight, but she ended up returning to class ten or fifteen minutes later, unrattled and reporting that "nothing happened."[6] Alcee was similarly nonchalant about the encounter while discussing it with another friend later that day, who recalled that Alcee had "brushed it off . . . [and] didn't make it seem like a big deal."[7] But at trial, a hall monitor who had been near the bathroom that day testified that he had overheard "a lot of screaming . . . [and] loud noise."[8]

         Unfortunately, the quarrel did not end there. Later that day, the other student who had been in the bathroom with Alcee and Tracy posted a video on Snapchat of a portion of the argument, with the caption, "[Tracy] bouta fight her." The video also depicted Tracy, this other student, and a third student walking down a hallway at school, bragging that they intended to "get" Alcee.

         The next morning, Tracy and her allies made good on their taunt. Before first period, Tracy and the other two students followed Alcee as she walked into a bathroom. A number of other students crowded in behind, including Alcee's friend from English class. At trial, she described what happened next:

When they got in the bathroom, everyone was having a conversation. I really do not know . . . remember what they were talking about, but everyone was trying to solve the problem that [Alcee] told me was already solved [the day before].
So when we got in there, you know, everyone was talking quietly and having a peaceful conversation, and a crowd started hovering over everyone. And I turned around and it was a lot of people there. People started screaming, and I turned around for one second, and as soon as I turned back around, [Tracy] slammed [Alcee] on the ground. And all three girls before that dropped their bags as the crowd started screaming and yelling.[9]

         The testimony concerning what happened after Tracy "slammed" Alcee to the ground is limited, presumably because the prosecution relied upon a video of the encounter captured by one of the onlooking students, which picks up soon after Tracy attacked Alcee. The video lasts approximately 45 seconds, 20 seconds of which depicts a one-sided attack. Tracy yanked Alcee by her hair and started striking her-by and large ineffectually-with loosely-balled fists, before pulling her again by her hair. Alcee tried to defend herself, and the two of them ended up flailing at each other on the floor. Although the Family Court said that Tracy kicked Alcee in the face, the video shows both girls pushing against each other with their feet as they grappled on the floor, while some of the other students sought to pull them apart.

         Around that time, a teacher, hearing the commotion, entered the bathroom and dispersed the crowd. Tracy left with the other students, but the teacher found Alcee sitting on the floor with her hands behind her, her face pale. When she asked Alcee what happened, Alcee said, "they snuck me and then they jumped me."[10] The teacher ran for a nurse, who arrived to find Alcee laying on the floor, moaning and holding her abdomen. Emergency responders were called shortly thereafter, but before they could arrive, Alcee, who had been slipping in and out of consciousness, stopped breathing and lost her pulse. Despite intense efforts to revive her, Alcee was declared dead at the hospital, a little over an hour after Tracy's attack.

         Alcee's autopsy revealed that none of the blows Tracy inflicted were sufficient to cause her death or, for that matter, serious physical injury. The medical examiner found no outward evidence of trauma, other than some "minor soft tissue injuries, " which included contusions under her eyes, broken fingernails, and abrasions on her arms and one of her knuckles.[11] The cause of her death was found to be "sudden cardiac death due to [a] large atrial septal defect and pulmonary hypertension, " with the emotional and physical stress from the assault acting as a "contributing" cause.[12]

         At trial, Tracy's medical expert provided additional insight into the progression and incidence of Alcee's heart disease. He explained that her combination of heart conditions-an atrial septal defect coupled with pulmonary hypertension-is known as Eisenmenger Syndrome and is so rare in children that its incidence is difficult to accurately quantify. One study he cited found a combination of that nature in only 2.2 out of every million children (or 0.00022% of the juvenile population).

         There was no dispute at trial that Alcee's heart disease had been unknown to her, her family, or her pediatricians. Indeed, Tracy's medical expert found nothing in Alcee's medical records to suggest that she was at risk of sudden cardiac death. And in the absence of such a diagnosis, Alcee's life-threatening response to Tracy's attack was impossible to predict, "[even] by her pediatrician and certainly not by a lay person."[13] It is "extraordinarily rare, " Tracy's expert said, for emotional and physical stress to trigger the death of a 16-year old with no prior indication of cardiac disease.[14]


         Our observations about the feebleness of Tracy's blows and the lack of impact they had on Alcee's death are not intended to minimize the wrongfulness of Tracy's behavior. The record amply supports the Family Court's portrayal of the encounter as an "attack" and an "act of violence" that Tracy inflicted for nothing more than "a perceived slight on social media."[15] But as will be seen, we are constrained by the undisputed facts about the medical cause of Alcee's death. The Family Court adjudicated Tracy delinquent of criminally negligent homicide, not assault, so the issue before us is not whether Tracy should have to answer for assaulting Alcee, but whether she can be blamed for Alcee's death, despite the fact that her blows inflicted little physical harm and that it was not those blows (or even the potentially-dangerous environs of the bathroom) that proved fatal.



         To be liable for criminally negligent homicide, as the State charged, Tracy must have, "with criminal negligence, . . . cause[d] the death" of Alcee.[16] Those are two distinct requirements, both with special meaning under Delaware law, and both must be satisfied to find that she committed criminally negligent homicide.

         The first of those requirements requires proof that Tracy was criminally negligent. That requires more than just proof that she engaged in conduct that posed a risk of death. "All behavior that causes harm to some victim is, " in hindsight, "behavior that imposed some risk of that harm, "[17] and the mere fact that someone's behavior posed some risk of death is too slender a reed for criminal culpability. To be criminally negligent, Tracy's conduct must have posed a risk of death "of such a nature and degree that [her] failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."[18]Her failure to recognize that her behavior had deadly consequences must, in other words, have been so "abnormal" that her indifference to the risk of death is markedly disparate from how a reasonable person in her position would have grasped the situation.[19]

         And even a person who creates a risk of death of that degree is not responsible for the victim's death unless it was her risky behavior that caused it. This second requirement-causation-requires more than just proof that the defendant's conduct set a chain of events in motion that led to the victim's death. "But-for" causation is a necessary part of proving culpability, but that is just the start.[20] There must also be a sufficient relationship between the nature of the risk the defendant created and the way that the victim's death transpired for the defendant to be blamed for it. This principle is codified in section 263 of the Delaware Criminal Code, which provides that if the actual result of a defendant's conduct was "outside the risk of which . . . the defendant should be aware" and was "too remote or accidental in its occurrence to have a bearing on [her] liability or on the gravity of the offense, " then the defendant is not criminally responsible for what transpired.[21]

         Both of these requirements-criminal negligence and causation-must have been proved beyond a reasonable doubt for Tracy to have been adjudged delinquent of criminally negligent homicide.


         The Family Court found that both of these requirements were met. On the first requirement-criminal negligence-the court found that Tracy's attack posed a sufficiently obvious risk of death to blame her for not recognizing it, linking that risk not so much to what Tracy did as to where she did it:

The attack on [Alcee] had known potential consequences, risks. . . . A physical assault on another carries with it intended consequences that is to injure the victim. . . . While the extent of that injury may not specifically be intended or contemplated, the risk nevertheless exists. The attack carried out by [Tracy] in the close confines of the school bathroom stall posed risk of potential catastrophic physical harm including death by virtue of the tile floor, walls and fixtures. . . . It is within the realm of contemplation that a physical assault intended to cause injury could in fact result in death; that is death was clearly a risk of [Tracy's] conduct.[22]

         As for the second requirement-whether there was a sufficiently close link between the risk that Tracy created (death by hard bathroom surfaces) and the way that Alcee died (from a rare cardiac condition) to justify blaming Tracy's negligence for her death-the court concluded that there was:

For there to be criminally negligent homicide, the death must be the natural and probable consequence of the unlawful act and not the result of intervening causes. The natural and probable consequence of a physical attack on an individual is physical and emotional trauma which may, depending on the particular circumstances of the victim, result in varying degrees of physical harm, up to in its most severe degree, the death of the victim. . . . In this case, the evidence establishes beyond a reasonable doubt that the death of [Alcee] was caused by the action of [Tracy].[23]

         Tracy challenges both of the Family Court's findings. First, she believes that when the Family Court found that she had acted with criminal negligence, the court conflated the question of whether her attack posed some conceivable risk of death with whether that risk was so obvious that it was grossly abnormal of her to have not perceived it. She also stresses that she was only 16 at the time and that it is doubtful that a reasonable 16-year-old would realize that an attack like hers could have deadly consequences-let alone that it would be a gross deviation for a 16-year-old not to perceive that risk.

         Second, she argues that even if the location of the attack, in the close confines of the bathroom, did pose such an obvious risk of death, the Family Court gave short shrift to the fact that this risk had nothing to do with Alcee's death. Tracy points out, correctly, that although she raised it below, the Family Court never cited section 263, the part of the Delaware Criminal Code that requires an examination into whether the actual result of a defendant's negligent conduct was "outside the risk of which . . . [she] should be aware" and "too remote or accidental in its occurrence" to warrant a finding of criminal culpability. She believes that if the court had looked at the events through the lens of section 263, it would have realized that the risk the court admonished her for creating was too far removed from the way Alcee died to blame her for Alcee's death.

         We will take up these two contentions in turn.



         Both sides vigorously debate whether it was reasonable for the Family Court to find that Tracy acted with criminal negligence. Much of their disagreement centers on whether Tracy's perception of the risks of her conduct should be judged by the standard of a reasonable adult or a reasonable person of her own age.

         Tracy urged the Family Court to view the events of that day through the eyes of a "reasonable sixteen-year-old sophomore girl."[24] She pointed out that it is "well-established" in context of tort-law negligence that a juvenile's conduct must be measured against the standard of a reasonable person of the same age, experience, maturity, and capacity, [25] not a reasonable adult, and she argued that no less should be true in the context of criminal negligence, where it is not just money damages at stake, but criminal stigmatization. For support, she drew from research in the field of adolescent development, which has found that "adolescent brains are not yet fully mature in regions and systems related to higher-order executive functions such as impulse control, planning ahead, and risk avoidance."[26] That research played a central role in the United States Supreme Court's recent trilogy of juvenile-sentencing cases-Roper v. Simmons, [27] Graham v. Florida, [28] and Miller v. Alabama[29]-all of which recognized that there are "significant gaps between juveniles and adults, " which leave juveniles prone to "transient rashness, " a "proclivity for risk, " and an "inability to assess consequences."[30] Those characteristics not only inhibit their ability to conform to an adult standard of care, but they also make them less blameworthy when they fall short.

         At trial, Tracy offered testimony from an expert in adolescent development whose work informed both Roper and Miller. Echoing the Court's observations in those cases, he explained that even juveniles in their mid- to late-teens lag behind in the "development of higher-ordered, more advanced thinking abilities and the development of self-control and self-regulation, " which makes them "less likely to even consider whether something is risky, less likely to think about the harmful consequences that could come from doing something risky, and . . . less likely to think that those consequences are going to be very negative."[31] He opined that "it would be very unlikely that a kid getting into a fistfight would think that somebody might die as a result of it, " particularly given how "common it is for kids to get into fights at school" and how rare it is for a physical altercation among high school students to end in death.

         The State maintained that Tracy should be judged by an adult standard, but it was unable to muster a single example of a court that had rejected the notion that a juvenile facing a criminal negligence charge in a delinquency proceeding must be measured against the standard of a person her own age-except for cases where juveniles had engaged in certain characteristically-adult-like activities, like driving a car. Faced with that reality, the State was left to argue that when Tracy attacked Alcee, she was engaged in adult-like behavior, even though the so-called adult-activity exception tends to be confined in practice to juveniles operating some type of motorized vehicle, [32] and even though lashing out physically like Tracy did is quintessentially childlike behavior. The State also argued that Tracy-at 16-was too old for the special child-negligence standard, even though examples abound (in tort law, at least) of courts applying the child-negligence standard to juveniles until they reach the legal age of majority, [33] and even though it is a matter of both science and common sense that "a 16-year-old [still] customarily lacks the maturity of an adult."[34]

         The Family Court sided with Tracy, deeming it "altogether appropriate" to consider her age in determining whether it was grossly abnormal for her not to realize that her conduct could have deadly consequences.[35] But the court nonetheless concluded that it would be grossly deviant by even a reasonable-16-year-old standard not to perceive that risk, rejecting the evidence Tracy presented about adolescent development and risk-perception with an observation that "[e]ven reasonable 16-year-olds have standards."[36]

         Neither side was happy with the outcome. Tracy, of course, disagrees with the Family Court's ultimate assessment, while the State maintains that the Family Court erred by not holding her to an adult standard.

         We need not decide whether the Family Court was right to measure Tracy's conduct against a reasonable person of her own age, because in our view, no reasonable factfinder could conclude under even an adult standard that Tracy's attack posed such a risk of death that it was a gross deviation for her not to be aware of it.


         The Family Court properly recognized that to have acted with criminal negligence, Tracy must have "fail[ed] to perceive that her conduct created a risk of death" and "her failure to perceive such a risk [must be] a gross deviation from the standard of conduct that a reasonable person would observe in the situation."[37] And in line with that standard, the Family Court ultimately concluded that Tracy's ...

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