State v. Pickens, ED 93494.

• Decision Date: 25 January 2011
• Docket Number: No. ED 93494.,ED 93494.
• Citation: 332 S.W.3d 303
• Parties: STATE of Missouri, Respondent,v.Judy PICKENS, Appellant.
• Court: Missouri Court of Appeals

332 S.W.3d 303

STATE of Missouri, Respondent,
v.
Judy PICKENS, Appellant.

No. ED 93494.

Missouri Court of Appeals, Eastern District, Division Three.

Jan. 25, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied March 1, 2011. Application for Transfer Denied March 29, 2011.

[332 S.W.3d 306]

Gwenda R. Robinson, St. Louis, MO, for appellant.Chris Koster, Atty. Gen., Shaun J. Mackelprang, Richard A. Starnes, Asst. Attys. Gen., Jefferson City, MO, for respondent.LAWRENCE E. MOONEY, Judge.

Courts are no strangers to tragedy. But, in this case, we must recount crimes that are almost beyond our imagining. After hearing evidence from forty-eight witnesses over four days, a jury convicted the defendant, Judy Pickens, of killing her young son and poisoning her young daughter by giving them the drug Clonidine.¹

[332 S.W.3d 307]

Yet the defendant complains on appeal only about the testimony of a single witness. At trial, the State called Dr. Michael Armour, a forensic psychologist, who testified about “factitious disorder by proxy,” a mental disorder also known as “Munchausen syndrome by proxy.” A person with this disorder either induces or fakes symptoms in another person, typically someone the individual has control over, when no external motivation to do so is apparent except to take on the role of the sick patient. The defendant raises three objections to the testimony. First, she contends Dr. Armour's response to two hypothetical questions violated Section 552.030(5) RSMo 2000,² which limits the use of information from pretrial mental-health examinations. Second, she asserts the doctor's responses invaded the province of the jury. And third, she maintains the doctor's general testimony about the disorder should have been excluded because the diagnosis has not achieved general acceptance by the psychiatric community and thus does not meet the Frye³ standard for the admission of expert testimony. We affirm.

Factual and Procedural Background

On the morning of September 28th, 2004, the defendant brought her three-year-old son to his daycare center for the day.⁴,⁵ The son was usually very jovial, high-spirited, and rambunctious, but on that day was very lethargic, withdrawn, and “out of touch.” The center's coordinator told the defendant that her son did not look well. The defendant replied that both her son and her five-year-old daughter had been ill. She stated that she thought the children had gotten sick from eating food bought from a street vendor over the weekend. The defendant insisted that her son stay at the center and instructed the coordinator to call her if her son got worse or didn't feel any better as the day progressed, and she would come pick him up. After the defendant left, the son refused to eat his breakfast, which was unusual. He went to class for only ten to fifteen minutes before being sent to the office because he was sick. The coordinator of the early-childhood department let the defendant's son sleep in her office. The young boy would wake up every few minutes, still very lethargic, and would cry and complain that his stomach and head hurt. The center called the defendant at 9:00, 9:30, and 10:20 that morning about her son's condition. No other children in the daycare center were sick at this time.

Meanwhile, at Ashland Elementary School, the defendant's daughter, normally friendly, talkative, and sweet, was now incoherent and drowsy. Her kindergarten teacher had trouble waking her up after rest time. School officials tried to reach the defendant, and eventually contacted her at her workplace. While waiting to be picked up, the young girl slept on the classroom floor. No other children in the class were sick, and neither a virus nor flu was going around the school.

After several calls to the defendant's workplace, which was also a daycare center,

[332 S.W.3d 308]

the defendant told the receptionist that the receptionist either needed to look after the class the defendant was watching or pick up her children. The receptionist decided to pick up the defendant's children. She picked up the defendant's daughter first, noting that the girl looked “very ill.” She had to physically help the young girl to the car because the girl could not walk on her own. The receptionist then picked up the defendant's son, who also looked “very ill.” The receptionist brought the two children back to the daycare center and took them to their mother in her classroom.

Sometime later that day, the defendant took her two children to the office of their pediatrician, Dr. Margaret Schmandt. By this time, the children were ill with vomiting, diarrhea, and fever. Dr. Schmandt's partner diagnosed the children with viral gastroenteritis. The doctor sent the children home with directions to rest and drink fluids. He instructed the defendant to call if the children's symptoms did not improve.

Three days later, on October 1st, the defendant brought the children back into Dr. Schmandt's office. Dr. Schmandt was alarmed at how ill and dehydrated the children appeared. The defendant told Dr. Schmandt that a number of other children at the daycare her children attended were out sick with the same kind of symptoms. Dr. Schmandt sent the children to the CARES Unit, a part of the emergency room at Children's Hospital in St. Louis, for tests and IV fluids.

At the CARES Unit, the defendant reported that the children had a temperature, had been lethargic, and had been complaining of abdominal pain and headache. She again stated that other children at daycare were sick with flu-like symptoms. The doctors treated the children for vomiting and gave them IV fluids for dehydration. They also gave the children popsicles and juice, which the children were able to tolerate. Because the children improved with the treatment and lab results were not abnormal, the doctors discharged the children and sent them home. They instructed the defendant to give the children small amounts of fluid frequently, to get stool samples for testing, and to come back if the children got worse.

The defendant called Dr. Schmandt three days later, on October 4th, and reported that the children were not better. Dr. Schmandt instructed the defendant to bring the children back to the CARES Unit. At the hospital, the children looked much worse than on their prior visit. Upon arrival, the defendant's son was dry-heaving and was not talking, and when the pediatric resident first saw the children, the defendant's daughter was also dry-heaving. The defendant's son had lost five pounds over three days. The defendant stated that she could not “get a handle” on the vomiting and the diarrhea and that the children had been “very, very sick.” She stated that she had been up with the children and had not slept, that she was unable to keep the children hydrated, and that the children could not keep anything down by mouth, but instead just kept vomiting. At this point, the children had been sick for about six days with vomiting, diarrhea, and fevers up to 104 degrees. The children were admitted and moved into a hospital room together.

The children stayed in the hospital room together from October 4th through October 9th. During that time, the children experienced “copious amounts” of vomiting and diarrhea. They could not keep anything down by mouth. The doctors ordered numerous tests to discover the cause of the children's illness, but the tests came back normal or very close to normal. The

[332 S.W.3d 309]

doctors could discover no medical reason for the children's symptoms.

The defendant stayed in the hospital room with the children nearly the entire time they were in the hospital. Indeed, one doctor who saw the children three to four times a day did not recall ever seeing the defendant leave the children's room. The defendant was very “attentive” and “active” in the children's care, even changing the children's diapers, changing the bed linens, and offering to clean the bathroom, all of which were jobs normally performed by the nursing staff. The defendant's level of involvement was such that the doctors and nurses considered it “almost refreshing” and “exciting” to see a parent so involved with the care of her children. The defendant told the doctors that “multiple” classmates at both of the children's schools were sick with similar symptoms. But she never mentioned the story she had told the daycare-center coordinator about the children eating food from a street vendor.

After the children were admitted to the hospital, doctors consulted two infectious-disease specialists to help determine the origin of the children's illness. The specialists spoke with the defendant, who, for the first time since being at the hospital, mentioned food from a street vendor. However, the defendant's explanation varied from her earlier story. She now related that on the day the children were sent home from school ill, a coworker had bought her a chicken sandwich from a street vendor and brought it back to work for her, leaving it on her desk. The defendant explained that the children ate that sandwich. Because the defendant had asserted that the children had eaten something from their mother's workplace that may have made them sick, the defendant's supervisor later spoke to the defendant. Contrary to the earlier explanation she had given at the hospital, the defendant told her supervisor that a coworker had bought her a sandwich and brought it to the office, but that the children did not eat it, so she took it home and put it in the refrigerator.

In their search for the cause of the children's illness, doctors contacted the public-health department because they were worried about a potential outbreak, especially because the defendant had said that other children, as well as one of her coworkers, were sick with a similar illness. Officials discovered nothing wrong at either the son's daycare center or at the center where defendant worked. Indeed, they found no one at either location had...