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S.C. Curtails Criminal Liability for Failure to Protect Child
Evans Pens Majority Opinion Reversing Second-Degree Murder Conviction Based on Mother’s Failure to Act, Limiting Duty to Prevent Harm to Those Who Know Deadly Conduct Is Occurring; Guerrero, Corrigan Dissent
By Kimber Cooley, associate editor
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—KERO BRITTNEY COLLINS appellant |
The California Supreme Court yesterday overturned, in a divided opinion, the second-degree murder conviction of a mother accused in the death of her two-month-old son at the hands of the boy’s father—the defendant’s live-in boyfriend who was a known methamphetamine user had a history of abusing both her and the child—holding that murder liability based on a parent’s failure-to-protect only attaches if the party knows that a fatal act is occurring.
Appealing her conviction was Brittney Collins, who was charged with the October 2017 death of her child at the hands of the boy’s father, Matthew Norwood.
Collins admitted to police that Norwood had physically assaulted her and the child, saying Norwood was often “too high” to deal with the infant, and would push down on the baby’s chest hard “enough to probably break a rib.”
During the interview with police—during which they pressed her to say what she thought happened based on her “mother’s instincts”—she commented that “he chokes me so why would he not choke a baby.”
Collins admitted to hearing loud thumps in the weeks before the fatal incident but said checks on the baby revealed nothing out of the ordinary. On Oct. 17, 2018, she heard another loud thud coming from the room where Norwood was taking care of the infant and failed to investigate.
The child died a few weeks later from blunt force trauma and had injuries consistent with being swung by his leg onto a hard surface. A jury found Collins guilty of second-degree murder for failing to protect her son from his father and Kern Superior Court Judge Charles R. Brehmer sentenced her to 15 years to life in prison.
On March 30, 2023, Div. Five of this district’s Court of Appeal affirmed the conviction.
Justice Kelli Evans wrote the opinion, joined in by Justices Goodwin H. Liu, Joshua P. Groban, and Martin J. Jenkins, reversing the judgment and directing the trial court to vacate the mother’s conviction. Evans wrote:
“We hold…that the evidence was insufficient to convict Collins of second degree murder. Applying the law governing implied malice murder in the distinct context of a prosecution based on a failure-to-protect theory, the evidence fails to establish Collins harbored the requisite mens rea to convict her of second degree murder under either a direct aider and abettor theory or a direct perpetrator theory.”
Judgment Reversed
Justice Leondra Kruger concurred in the judgment and majority opinion as to all matters but one section of dealing with actus reus.
Liu wrote separately, in a concurring opinion joined in by Groban and Evans, to emphasize the potential for gender disparity in failure-to-protect cases, saying:
“I write to express concern that failure-to-act liability carries a significant risk of unfairly punishing women who do not live up to gendered and class-based expectations of motherhood. In many ways, our society valorizes motherhood, but it also comes down hard on ‘bad mothers.’ An awareness of this potential bias, as with any bias, properly informs our review of this case.”
Chief Justice Patricia Guerrero penned a dissent, joined in by Justice Carol Corrigan, saying that the majority failed to give deference to the jury’s decision and “wrongly grafts an additional element onto” the “established standard” for implied malice murder in this context.
Evans’ View
Evans said:
“As an initial matter, the parties agree that Collins’s liability—as either an aider and abettor or a direct perpetrator—would be based on her parental duty to act. Typically, liability for a crime requires an individual to engage in affirmative conduct. However, criminal liability may be based on a ‘negative act’—a willful omission or failure to act—where there is a duty to act….
“We join the majority of our sister courts in recognizing a parent’s failure to act can constitute an affirmative act for the purposes of criminal liability in some situations.”
She noted that there are “additional complexities” when dealing with circumstances where the killer is a parent and physically abusive toward the other caregiver.
Taking these complexities into account, she concluded:
“[F]ailure to protect homicide liability is limited to situations wherein the parent knew of the perpetrator’s intent to commit the charged crime because they saw it being carried out, or because they had reason to know, to a substantial degree of certainty, that it was occurring or would occur and failed to act in conscious disregard for life.”
Direct Aider, Abettor
The prosecution relied on two alternative theories of liability—that Collins acted as an aider and abettor of the murder by failing to act and that she was the direct perpetrator of an implied malice murder. As to the aider and abettor theory, Evans wrote:
“For murder liability to attach to a parent as an aider and abettor based on their failure to protect, the parent must knowingly fail to protect their child from the life-endangering act for the purpose of facilitating that life-endangering act and such failure to act must in fact assist in the commission of the life-endangering act.”
Considering the facts of the case, Evans concluded that “evidence is insufficient to establish that Collins harbored the requisite knowledge and intent to convict her of implied malice murder as an aider and abettor.”
She acknowledged that testimony had established that Norwood had been angry at Collins earlier in the day after she confronted him about his drug use and that he had damaged her phone in retribution, but said:
“In the law generally, courts must consider evidence of intimate partner violence as a mitigating circumstance or evidence that otherwise diminishes culpability….The law of failure-to-protect homicide, too, recognizes that it is problematic to use the fact that an individual has been abused by their partner to hold that individual criminally liable for their partner’s conduct….Norwood’s volatility towards Collins and damage to her property failed to establish Collins knew Norwood would commit a life endangering act against [the child] later that day.”
Past Abuse
Turning to the allegations of past abuse, she opined:
“While the evidence of Norwood’s past abuse is distressing, what Norwood did the day he killed [his son]—swinging him by the leg and slamming his head into the wall or floor—was different in kind from any of the prior acts of abuse Collins had witnessed. Viewed in the light most favorable to the judgment, the evidence of Collins’s knowledge regarding Norwood’s past acts of abuse does not support a reasonable inference that Collins knew Norwood intended to commit life-endangering abuse.”
Evans added:
“[W]e emphasize it is improper to infer a parent’s knowledge that another person intends to commit a life-endangering act against their child based on gendered expectations of parenthood. Here, police questioned Collins about her ‘mother intuition.’….Assumptions about what Collins should have done based on outmoded, gendered notions of a mother’s—as compared to a father’s—role in caring for a child are not proper in determining a mother’s liability for murder based on a failure to protect.”
The justice commented that “[b]ecause we hold there was insufficient evidence that Collins harbored the requisite mens rea, we need not determine whether Collins committed an omission that was sufficient to establish the actus reus required for aiding and abetting implied malice murder.” However, she clarified that “[t]he prosecution must prove that any steps the parent failed to take carry a high probability of preventing or stopping the life-endangering act.”
Direct Perpetrator
Evans noted that “[t]o sustain Collins’s verdict of second degree murder based on a direct perpetrator theory of liability, there must be sufficient evidence that Collins’s failure to protect” involved a high probability that the actions would result in death, that she knew her failure to act placed her child in mortal danger and was done with conscious disregard, and that her inaction proximately caused the tragic outcome.
She reasoned:
“[I]t is true that a reasonable jury could infer that Collins knew to a substantial degree of certainty that Norwood might commit an act of serious, but nonlethal, abuse based on her knowledge of Norwood’s state and having witnessed his past acts of abuse….[H]owever, there was insufficient evidence that Collins subjectively appreciated her failure to act was life endangering, because she had no reason to know to any substantial degree of certainty that Norwood would commit a life-endangering act…”
Guerrero’s Dissent
Guerrero said:
“The majority characterizes this matter as a ‘close case’…and it may have been—for the jury….But when the jury’s verdict is challenged for lack of evidence, what might appear to be a close case for the jury is a straightforward case on appeal.”
Saying that the majority opinion wrongly considered the evidence without the deference due to a trier in fact, she wrote:
“Contrary to the majority’s position, when viewed through the lens of the correct standard of review, the jury’s verdict is amply supported by the evidence. The majority focuses on the alternate theory of aiding and abetting, but the prosecution’s primary theory at trial was Collins’s liability as a direct perpetrator of implied malice murder. The basic substantive elements of that crime are—or should be—undisputed….Although the majority wrongly grafts an additional element onto this established standard, it is clear that a reasonable jury could find each…element beyond a reasonable doubt based on the evidence presented at trial.”
She added:
“Because the evidence supports Collins’s liability for implied malice murder based on her own failure to protect [her son], and no other error appears, it is unnecessary to address whether Collins would also be liable as a direct aider and abettor….The judgment against Collins should be affirmed, and I respectfully dissent from the majority’s contrary conclusion.”
The case is People v. Collins, 2025 S.O.S. 44.
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