Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of St. Charles County 1411-CR03507
Honorable Richard K. Zerr
HONORABLE MARY K. HOFF, JUDGE.
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. The trial court sentenced Defendant to
five-years' imprisonment. We affirm.
and Procedural Background
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
denied physically harming Victim but admitted that Victim was
in her care when he got hurt.
Victim arrived at Cardinal Glennon Children's Hospital,
Dr. Ann DiMaio ("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.
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."
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.
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."
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.
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
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.
close of all evidence, the jury found Defendant guilty, as
charged, of first-degree involuntary
manslaughter. Following the jury's recommendation,
the trial court sentenced Defendant to five-years'
imprisonment. This appeal follows.
Point I, Defendant argues that the trial court erred in
allowing Dr. Case, even absent a Frye 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.
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.
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
address the allegations in Defendant's motion, the trial
court held a pre-trial hearing during which the following
[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