RE: Commonwealth v. Tammy Futrell
Page 9

inconsistent with a conclusion that the infant died as a result of a criminal act.? Id. at 22] . In the
same way, the Court ?nds SIDS to be fatal to the Conunonwealth?s position in the case at bar.

Meson

One of the concerns emphasized by the Commonwealth is the alleged substandard
conditions at Little Eagles Day Care. Because of its af?liation with a church, the day care center
is not subject to the regulations applicable to secular day care centers. The Commonwealth quite
accurately argued that had Little Eagles Day Care been subject to the regulation and inspection
required of secular day care centers, many of the SIDS risk factors would not have been present.
While the Court is certainly sympathetic with the concerns expressed by the the
remedy for this situation lies in the sound discretion of the General Assembly, not with the
judiciary.

The Count holds that there can be no proximate cause of death when SIDS is the sole
cause of death because, by de?nition, no legal or medical cause of death can be ascertained. The
Court, in following the Supreme Court of Virginia?s decision in Fairfax Hospital, also holds that
evidence of exposing an infant to SIDS risk factors cannot be used to prove proximate cause.
Because there is no dispute that SIDS was the sole cause of Dylan?s death, the Commonwealth,
as a matter of law, cannot prove beyond a reasonable doubt that the Defendant?s or her
employees? alleged acts or omissions were a proximate cause of Dylan's death. Accordingly, the
Court will dismiss the Defendant?s felony homicide indictment.

Sincerely,

harles Poston
Judge