State v. Pankow

• Citation: 144 Wis.2d 23,422 N.W.2d 913
• Decision Date: 29 March 1988
• Docket Number: No. 87-0834-CR,87-0834-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Sandra K. PANKOW, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

Page 913

422 N.W.2d 913

144 Wis.2d 23

STATE of Wisconsin, Plaintiff-Respondent, v. Sandra K. PANKOW, Defendant-Appellant.

No. 87-0834-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 9, 1987.

Opinion Released March 29, 1988.

Opinion Filed March 29, 1988.

[144 Wis.2d 28] Donald T. Lang, Asst. State Public Defender, Milwaukee, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and William L. Gansner, Asst. Atty. Gen., Wisconsin Dept. of Justice, Madison, for plaintiff-respondent.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

Sandra Pankow appeals her convictions, two counts of second-degree murder, sec. 940.02, Stats. The events leading to criminal charges occurred during a five-year period while Pankow was engaged in baby-sitting a number of children in her home. Three infants died in separate incidents while in Pankow's care.

The deaths of Kristin Hamilton on December 29, 1980, and Shawn Bloomer on August 10, 1982, were originally diagnosed as sudden infant death syndrome (SIDS). After the third death, Tyler Kloes on October 25, 1985, Outagamie County Coroner Phil Russell arranged for an autopsy of Tyler Kloes to be conducted at University Hospitals in Madison, Wisconsin. The cause of death was initially listed as "probable SIDS." However, the university pathologists eventually arrived at a diagnosis of asphyxia.

The pathologists then reinvestigated the deaths of Kristin Hamilton and Shawn Bloomer. A review was initially conducted of microscopic tissue slides taken from various internal organs during the original autopsies. The infants' bodies were then exhumed and transported to Madison for further study. The pathologists concluded that the deaths of Kristin Hamilton and Shawn Bloomer were also due to asphyxia.

Three counts of second-degree murder were charged against Sandra Pankow. Following a two-week jury trial, Pankow was convicted in the deaths of Kristin Hamilton and Tyler Kloes, but was acquitted with regard to the death of Shawn Bloomer.

Pankow presents five claims on review: (1) The evidence was insufficient to support the conviction, (2) the trial court erred by admitting expert testimony regarding the mathematical improbability of three occurrences of SIDS in the same household within five years, (3) the prosecution improperly failed to preserve for defense examination potentially exculpatory physical evidence, (4) the trial court improperly denied a motion for mistrial based on the admission and subsequent striking of "other acts" testimony, and (5) a new trial is required in the interest of justice. We reject these claims and affirm the conviction.

SUFFICIENCY OF EVIDENCE

The first issue raised by Pankow is the assertion that the evidence was insufficient to prove beyond a reasonable doubt that Tyler Kloes's death was a homicide. Pankow also contends that the evidence fails to establish beyond a reasonable doubt that she caused the deaths of either Kristin Hamilton or Tyler Kloes. Pankow insists that the evidence suggests that her son, Christopher, was the individual most likely responsible for any misconduct that may have caused the deaths.

The standard of review for assessing the sufficiency of the evidence is well established. We emphasize initially that our appellate function is not to retry the issues. See State v. Balistreri, 106 Wis.2d 741, 763, 317 N.W.2d 493, 503 (1982). We will not substitute the judgment of the jury merely because certain evidence is in conflict or would support a different result. When a defendant challenges the sufficiency of the evidence, the test on review is whether the evidence is so insufficient in probative value and force that as a matter of law no reasonable jury could have found guilt beyond a reasonable doubt. State v. Wyss, 124 Wis.2d 681, 693, 370 N.W.2d 745, 751 (1985). In this regard, we consider the evidence before the jury and all reasonable inferences in the light most favorable to the verdict. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

A criminal conviction can be based in whole or in part upon circumstantial The test for circumstantial evidence is whether it is strong enough to exclude every reasonable hypothesis of innocence. State v. Drusch, 139 Wis.2d 312, 326, 407 N.W.2d 328, 334 (Ct.App.1987). This does not mean, however, that if any of the evidence brought forth at trial suggests innocence, the jury cannot find the defendant guilty. Peters, 70 Wis.2d at 34, 233 N.W.2d at 426. The function of the jury is to decide which evidence is credible and which is not, and how conflicts in the evidence are to be resolved. The jury may thus, within the bounds of reason, reject testimony suggestive of innocence. Id.

                evidence.   Peters v. State, 70 Wis.2d 22, 33-34, 233 N.W.2d 420, 426 (1975).  Circumstantial evidence is often more probative than direct evidence, and it is clear that circumstantial evidence alone may be sufficient to convict.   Wyss, 124 Wis.2d at 692, 370 N.W.2d at 751
                

We turn to a summary of the evidence in the light most favorable to the conviction. We begin with the testimony of several children whom Pankow also baby-sat.

Jeremy Olk testified that when babies cried, Sandra Pankow tied a towel around their mouths. He witnessed Sandra Pankow tie a dish towel around a baby's mouth and put the baby in a crib in the basement when the baby cried. Jeremy testified that Christopher Pankow was not in the basement at the time and that he never saw Christopher do anything to the babies.

Deanna Olk also testified that babies, including Kristin Hamilton, slept in a crib in Pankow's basement. The crib was entirely covered by a blanket held by clothespins. The blanket extended down the sides of the crib to the floor.

Lisa Hamilton testified that babies took their naps in a playpen in the basement. Lisa specifically testified that on the day Kristin died, Kristin was sleeping in the basement.

David Janssen testified to one occasion when he and Christopher Pankow went into the Pankows' basement to get a Popsicle. Christopher Pankow showed David a baby in the crib with a towel around the baby's mouth. The baby's hands were also tied. Janssen testified that a cloth sheet covered the entire top of the crib and hung down the sides. David did not see who tied up the baby.

Judith Olson testified that in early 1984, while walking up to Pankow's house to pick up her son, Isaac, she heard someone yelling. Olson testified that when she walked in the door, Sandra Pankow was in the shower. Christopher Pankow was standing near the open bathroom door while talking to Sandra. When Christopher noticed Olson, he looked surprised and proceeded to the basement. Olson testified that she then observed her son in a playpen entirely covered by a wooden board. Olson testified that her son was confined to laying down because of the wooden covering. Christopher lifted up the wooden covering and handed Olson her son.

Sandra Pankow testified that Kristin Hamilton and Tyler Kloes were sleeping in upstairs bedrooms when she discovered they were not breathing. Christopher Pankow testified that he witnessed his mother take a sleeping Tyler Kloes to his bedroom, that he then went outside, and the next time he saw Tyler he was dead in Sandra's arms. Christopher also testified that Kristin Hamilton was sleeping in his parents' bedroom at the time of her death. Christopher later testified, however, that he did not see Kristin in his parents' bedroom, and that he could not recall where he saw Kristin.

Christopher Pankow testified as a defense witness that he tied up babies and covered their mouths. On cross-examination, however, the prosecutor showed Christopher his preliminary hearing testimony. He was asked whether he had anything to do with the three deaths. Christopher Pankow answered, "No." Christopher later admitted that he was not even home the day Shawn Bloomer died.

Christopher Pankow testified that at no time were babies put in the basement to sleep. Paula Jannusch, a neighbor of the Pankows, testified that on the day Tyler Kloes died, Christopher Pankow told her A tape recording of an emergency "911" telephone call made October 25, 1985, the date of Tyler Kloes's death, in Christopher Pankow's voice, was produced at trial. When the dispatcher asked what happened, the voice responded, "He wasn't choking on anything. He was just downstairs sleeping."

[144 Wis.2d 33] shortly after the ambulance left that the baby was sleeping downstairs. Approximately one-half hour later, Christopher came back and told her that the baby was asleep upstairs in a crib in Sandra Pankow's bedroom.

Numerous medical experts also testified. Pathologist Andrew Dodge conducted the autopsy on Tyler Kloes at University Hospitals on October 26, 1985. Dr. Dodge found petechia on the surface of the lungs and thymus larger than in prior SIDS cases he had seen. Dr. Dodge also noted significant cerebral edema, a heavy wet brain, as well as congestion of the vessels in the brain, findings not usually present in SIDS cases. Based on these findings, Dr. Dodge concluded that Tyler Kloes's death was most likely the result of asphyxia.

Pathologist Robert Huntington testified that the petechia on the lungs and thymus were larger than those usually seen in SIDS cases. The swollen and wet brain was also not usual in SIDS. Another suspicious circumstance was the atypically brief period between the child being placed in the crib and being discovered. Dr. Huntington indicated in his opinion there was a 95-97% probability that the death of Tyler Kloes was caused by homicidal asphyxiation.

In the case of Kristin Hamilton, Dr. Huntington studied the original autopsy slides and the exhumed body. He testified that both microscopic review of the slides and gross examination of the exhumed lungs revealed petechia larger than in the normal SIDS case. According to Dr. Huntington, the slides also reflected...