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State v. West

Court of Appeals of Missouri, Eastern District, Fourth Division

April 24, 2018

LISA M. WEST, Defendant/Appellant.

          Appeal from the Circuit Court of St. Charles County 1411-CR03507 Honorable Richard K. Zerr



         Lisa M. West (Defendant) appeals from the judgment upon her conviction following a jury trial for involuntary manslaughter in the first degree, in violation of Section 565.024, RSMo 2000.[1] The trial court sentenced Defendant to five-years' imprisonment. We affirm.

         Factual and Procedural Background

         Defendant was charged by substitute information in lieu of indictment with involuntary manslaughter in the first degree, by recklessly causing the death of Victim by striking his head, or by striking his head against an object, or by shaking him, or by a combination thereof. Defendant challenges the sufficiency of the evidence to support her conviction. Viewed in the light most favorable to the verdict, the following evidence was adduced at trial:

         At approximately 8 a.m. on the morning of September 8, 2009, Victim's mother dropped off Victim, who was 18 months old, at Defendant's house for daycare supervision. Defendant's two youngest children, who were two and four years old, were also present in the house. Between 8:05 and 8:10 a.m., Victim's mother left for work and Victim was in a high chair eating. Before Victim's mother left, Victim seemed happy. Victim's mother testified that prior to that day, Victim's health was "good" with no problems. She also testified that Victim did not have any bruises anywhere on his head when she dropped him off at Defendant's house on the date of the incident.

         At 8:16 a.m., Victim's mother received a phone call from Defendant, who seemed frantic and hysterical. Defendant told Victim's mother that Victim had fallen down the stairs; Defendant asked whether she should call 911. When asked what had happened, Defendant told Victim's mother that she went downstairs into the basement to turn on the light, Victim followed her, and Victim fell and hit his head on the corner of the wall. When asked how Victim was doing, Defendant told Victim's mother that Victim was not opening his eyes, he was moaning a little bit, and he was breathing "funny." Victim's mother told Defendant to call 911. Victim's mother testified that Defendant never mentioned Victim's presence on the stairs or that Victim had hit his head on the floor.

         At 8:21 a.m., Officer Spencer Grarup ("Officer Grarup") arrived at Defendant's house to assist with the medical call. Officer Grarup testified that he observed Victim lying on the floor of the living room, unresponsive. Officer Grarup also testified that Victim had a pulse, but he had abnormal breathing and dilated eyes, which caused the officer to suspect a head injury. Officer Grarup testified that he did not observe any outward injuries to Victim's body. Officer Grarup observed that there were 12 carpeted stairs leading down to the basement of Defendant's house.

         Officer Grarup also testified that later that day Defendant recounted a different version of the incident. Defendant told Officer Grarup that after feeding the children breakfast, she left the children upstairs in the living room area while she went to the basement. While Defendant was using the bathroom in the basement, she stated that she heard "a series of loud thuds followed by a loud bang." When Defendant came out of the bathroom, she found Victim lying at the bottom of the stairs and crying. Defendant stated that she then picked Victim up and carried him upstairs to the living room, where he began to breathe abnormally.

         Officer Grarup and Detective Donnie Hovis ("Detective Hovis"), who was later involved in investigating the incident, both testified that they examined the walls enclosing the stairway and found no dents, scuffs or anything consistent with a child having hit his head on the wall. Additionally, no blood, other bodily fluids, or hair were observed on the stairs.

         At approximately 8:24 a.m., Captain David Dalton ("Captain Dalton") and Monica Foeller ("Ms. Foeller"), paramedics with the St. Charles County Ambulance District, arrived at Defendant's home. The paramedics found Victim lying on his back, flaccid, unresponsive to verbal or painful stimuli, breathing "slightly fast" and irregularly, with an irregular heartbeat and dilated pupils in both eyes that were unresponsive to light. Victim's symptoms were consistent with traumatic brain injury and significant pressure on his brain, which are usually seen in victims of high speed motor vehicle accidents. Victim's body did not have any outward signs of trauma, including any injuries-such as bruises, red marks, carpet burns, etc.-typically seen on children who had fallen down the stairs.

         Captain Dalton testified that Defendant told him that she had noticed Victim falling down the stairs and that she had gone down the stairs to pick him up and bring him up to the living room. When Ms. Foeller asked Defendant if the stairs were hard or soft, Defendant told her that they were "hard stairs." In the 911 tape played before the jury, Defendant stated that Victim tripped on his sandal.

         Samantha Tackaberry ("Ms. Tackaberry"), whose child had also been supervised in Defendant's home in the past, testified that Defendant had recounted to her that she had "cracked the door to the basement" as she was getting ready to take the kids downstairs, that she started feeling nauseous, that she heard Victim screaming and crying when she came out of the bathroom, and that she then ran down to the bottom of the stairs. Ms. Tackaberry testified that Defendant stated to her that at this point, she picked up Victim who became unresponsive.

         At trial, Defendant testified that shortly after Victim's mother left on the morning of the incident, Defendant took Victim out of the high chair when he was done eating and put him by the aquarium. Defendant testified that she went downstairs to turn on the lights, went to use the restroom because she was feeling nauseated, heard "a noise, " heard the baby crying, ran out, and found Victim at the bottom of the landing with his head against the wall. Defendant testified that her son "was a couple steps up from" Victim. Defendant testified that she picked Victim up and brought him upstairs, called Victim's mother, and then called 911.

         Defendant denied physically harming Victim but admitted that Victim was in her care when he got hurt.

         After Victim arrived at Cardinal Glennon Children's Hospital, Dr. Ann DiMaio[2] ("Dr. DiMaio"), an attending physician in the pediatric emergency department and member of the child protection team at the hospital, testified that she examined Victim in the emergency room. Dr. DiMaio testified that she observed Victim was intubated and not breathing on his own, he was unresponsive, his pupils were dilated and unresponsive to light, his heart rate was irregular, and he was exhibiting very abnormal posturing or spontaneous neurological movements. Dr. DiMaio also testified that she observed a small, dime-sized bruise on Victim's "right forehead." While she observed no other bruises at that time, Dr. DiMaio testified that bruises sometimes take some time to develop.

         Dr. DiMaio testified that thereafter Victim underwent an emergency CT, which showed a "huge subdural hematoma" and evidence that his "brain was shifted." Victim underwent emergency surgery, during which the subdural hematoma was removed to control the swelling. Victim was subsequently declared "brain dead." After surgery, Victim developed a swollen, black and blue bruise around his right eye, which later was determined to be "massive retinal hemorrhages."

         Dr. DiMaio testified that in her many years of experience she had commonly seen children in the emergency room who had fallen down stairs. She testified that the "majority of injuries of children who fall down stairs are minor [such as] bumps or lumps, . . . some cuts, abrasions, bruises, " and that no child in her experience had died as the result of falling down stairs. Dr. DiMaio testified that she had never seen a fatal subdural hematoma in a child who had fallen down the stairs under their own power and that the only reasonable explanation for Victim's injury was abusive head trauma. Dr. DiMaio also testified that Victim's retinal hemorrhages were consistent with abusive head trauma and would have been "immediately incapacitating." Dr. DiMaio concluded that Victim's death was caused by abusive head trauma.

         Dr. Kamal Sabharwal ("Dr. Sabharwal") also testified on behalf of the State. Dr. Sabharwal, a medical examiner for multiple counties in the St. Louis area, is board certified in anatomic pathology and forensic pathology and testified that he performed Victim's autopsy. Dr. Sabharwal testified that during Victim's autopsy he observed a "faint light blue contusion or bruise" "just lateral - or to the side of the right eyebrow, " and a small bruise just above that. Dr. Sabharwal also testified that Victim's right eyelids contained areas of bleeding beneath the surface of the skin. Dr. Sabharwal testified that he did not believe the eye injury was the result of surgery, but had instead become visible after the surgery. Dr. Sabharwal also observed that Victim's brain was swollen, there was a subdural hematoma on the right side of the brain, there was a subarachnoid hemorrhage, retinal hemorrhages, and optic nerve sheath hemorrhage of the type caused by an inflicted traumatic injury. Dr. Sabharwal did not observe any injuries consistent with Victim falling down the stairs. Instead, he believed Victim's death was a homicide resulting from an inflicted head trauma and blunt impact to the eye. Dr. Sabharwal also testified that the internal injuries to the eyes and the brain could also have been caused by "violent shaking."

         Dr. Mary Case ("Dr. Case"), the chief medical examiner for several counties in the St. Louis area, who was board certified in anatomical pathology, forensic pathology, and neuropathology, testified for the State that she examined Victim's brain and eyes following Dr. Sabharwal's autopsy. Dr. Case testified that she had written a subchapter in the Encyclopedia of Forensic and Legal Medicine regarding stairway falls involving children, in which she had summarized numerous existing studies, including the results of those falls. Dr. Case testified that based on her years of experience and knowledge on the subject, young children are most vulnerable to "inertial brain injury, " in which there is a "very marked, abrupt movement of the head, " and that violent movement often results in subdural hemorrhages, subarachnoid hemorrhages, diffuse axonal injury, and retinal hemorrhages, all injuries which were observed in Victim.

         Dr. Case agreed with Dr. Sabharwal's conclusion that the discoloration of Victim's right eye was caused by trauma to the area surrounding the eye rather than by surgery, and that it had not developed prior to the surgery because "it is not unusual for bruises not to show up until a day or two afterwards." Dr. Case also observed the presence of a subdural hemorrhage, subarachnoid hemorrhage, optic nerve sheath hemorrhage, and retinal hemorrhages, which she specifically described as "very significant" and having a "very distinctive pattern that is highly correlated with abusive head injury as opposed to accidental head injury."

         Based on her examination of the medical evidence, Dr. Case testified that it was her opinion that Victim's injuries and death were the result of an inflicted inertial brain injury by impact and not an accidental fall. Dr. Case opined that something had struck Victim's head that caused it to move-either by acceleration or deceleration-very abruptly. Dr. Case testified that based on the results of multiple studies, as well as her experience as a forensic pathologist for over 40 years, children who fall down the stairs under "their own power" tend not to suffer fatal injuries. Dr. Case also opined that the evidence showed Victim's diffuse brain injury would have resulted in a "very rapid onset of unconsciousness, " and therefore it could not have occurred before Victim was dropped off at Defendant's house.

         At the close of all evidence, the jury found Defendant guilty, as charged, of first-degree involuntary manslaughter.[3] Following the jury's recommendation, the trial court sentenced Defendant to five-years' imprisonment. This appeal follows.[4]

         Dr. Case's Testimony

         In Point I, Defendant argues that the trial court erred in allowing Dr. Case, even absent a Frye[5] hearing, to testify at trial about her ability to distinguish traumatically caused from non-traumatically caused brain injuries because "the protocol/methodology lacked even the basic requirements for being scientifically reliable . . . such that it should have been excluded." We disagree.

         As an initial matter, we note Defendant waived appellate review of the admission of Dr. Case's testimony when trial counsel affirmatively told the trial court that it could forgo holding a Frye hearing and instead rely on the court's finding in State v. Evans, 517 S.W.3d 528 (Mo. App. S.D. 2015) in determining the admissibility of Dr. Case's testimony. Evans, 517 S.W.3d at 540.

         The relevant evidence showed that before trial, Defendant filed a motion requesting a Frye hearing in order to determine the admissibility of Dr. Case's testimony. In support of the motion, Defendant claimed that Dr. Case had previously testified that she had "personally developed" the protocol, that it involved "subjective determinations, " but that she had not published any articles to "address or describe this protocol/methodology."

         To address the allegations in Defendant's motion, the trial court held a pre-trial hearing during which the following exchange occurred:

[Defense Counsel]: ….I don't know that there's any reason to do a Frye hearing when we've already had a decision from the Court of Appeals and the State Supreme Court not taking it up as ample precedent on this very issue.
THE COURT: I think so too. So long as you're willing to stipulate that we don't need to hear any evidence on it, then I can rule on it based upon your motion.
[Defense Counsel]: I hope-that's exactly why I put the case in like the way I did.
THE COURT: ….So if you're willing to stipulate that I can review the ruling from Rolla that addresses the-that case and take for this case the same findings made by that judge relating to the opinions that are expected to be addressed by . . .-[Dr.] Case in this case, then maybe we can resolve it just by me issuing an order on Monday.
I need you to tell me that on the record so otherwise I have to afford your client what I would normally afford a ...

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