Thomas Kusmider was convicted, after a jury trial, of murder in the second degree.He appeals, contending that Superior Court Judge Karl S. Johnstone erred in excluding evidence relating to the proximate cause of the victim's death. In Kusmider v. State I will outline the case, and I will give the facts, issue, and court holdings.
Facts On november 15 1982, Kusmider girlfriend told him that she had been sexual assaulted by an acquaintance. The acquaintance was Arthur Villella. Kusmider went to Villella house to confront him, and Kusmider shot Villella. A bullet hit Villella neck near his Adam's Apple. The bullet did not destroy any of his major arteries, but it damaged his small arteries sending blood down his wind pipes. When the ambulance came, Villella was…show more content… The issue Kusmider presented was that the paramedics was negligent in allowing Villella to pull out his tubes, and they did not restrain his arms. Kusmider believe that it was not the gunshot wound that killed Villella, but it was him pulling out the tubes. Kusmider insisted that the jury consider the negligence of the paramedics to be the reason for Villella death, and this over ride the gunshot wound as the proximate cause of death. Judge Johnstone would not let Kusmider pursue the issue before the jury. The judge ruled that negligence on the paramedics part could not prevent what was already happen. The judge basically said Villella was already dying from the gunshot wound. On appeal, Kusmider renewed his argument and issues, and said that he should have been able to present his evidence on the issue before the jury. The court believed that Kusmider argument was flawed. In every court case the State establish, and the jury must find the defendant conduct the cause for the crime. The actual cause of death was not the issue, but undisputed cause of death according to testimonies heard in the trail was the gunshot