82 Hawai'i 304, State v. Robinson

• Decision Date: 10 July 1996
• Docket Number: No. 18756,18756
• Citation: 922 P.2d 358
• Parties: 82 Hawai'i 304 STATE of Hawai'i, Plaintiff-Appellee, v. Kristen J. ROBINSON, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 358

922 P.2d 358

82 Hawai'i 304

STATE of Hawai'i, Plaintiff-Appellee, v. Kristen J. ROBINSON, Defendant-Appellant.

No. 18756.

Supreme Court of Hawai'i.

July 10, 1996.

Rose Anne Fletcher, Deputy Public Defender, on the briefs, Honolulu, for defendant-appellant.

Maurice M. Arrisgado, Deputy Prosecuting Attorney, on the briefs, Honolulu, for plaintiff-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

MOON, Chief Justice.

Following a jury trial, defendant-appellant Kristen J. Robinson appeals from her conviction and sentence for assault in the first degree, in violation of Hawai'i Revised Statutes (HRS) § 707-710 (1993). ¹ On appeal, Robinson contends that the trial court erred by: (1) giving a misleading and/or insufficient instruction that could have confused the jury; (2) refusing to instruct the jury that it was entitled to consider all the circumstances surrounding her extrajudicial admission and weigh it accordingly; (3) refusing to instruct the jury on the included offense of assault in the third degree; and (4) sentencing her to a mandatory minimum sentence where the "aggravating factor" of the victim's age was not submitted to the jury. Because we believe that the jury instructions, when read and considered as a whole, were prejudicially insufficient and had the potential to mislead the jury, we vacate Robinson's conviction and remand this case for a new trial consistent with this opinion. Notwithstanding Robinson's final two contentions, we discern no other error.

I. BACKGROUND

Robinson's conviction was based upon the injuries sustained by the victim, an eleven-month-old male child (victim), for whom Robinson had contracted to provide day care. The victim's parents, Lee and Megan Jones [hereinafter, collectively, the Joneses], were both enlisted in the United States Navy and lived on the Naval base in Wahiawa. Lee Jones was commissioned to a ship, and Megan Jones (Mrs. Jones) worked as a cryptographer on the Wahiawa base.

Beginning in late July or early August 1991, the Joneses engaged the services of Robinson, who was nineteen years old at the time, also lived on the Naval base, and had undergone training for certification by the Navy as a child care provider. The written contract between the Joneses and Robinson provided, inter alia, that Robinson care for the victim from Mondays through Fridays while Mrs. Jones was at work and that she notify the Joneses if the victim sustained any injuries, major or minor.

At trial, Mrs. Jones testified to the following sequence of events and the victim's symptoms in the weeks preceding November 21, 1991:

November 10 (Sunday) Because the victim had a "nasty croupy cough," Mrs. Jones took him to Schofield Emergency Medical Clinic. The doctor instructed her to give him Robitussin and advised that otherwise he was fine. At this time, the victim's behavior was normal.

November 11 & 12 The victim was in Robinson's care from 6:45 a.m. to 3:00 p.m. on both days and was behaving normally.

November 13 The victim was in Robinson's care. Near the end of her work day, Robinson called Mrs. Jones, advising that the victim had been lethargic, hadn't eaten, had slept more than usual that day and had begun vomiting. Mrs. Jones picked up the victim and took him to Tripler Army Medical Center Emergency Room, where she was told that the victim probably had a stomach virus.

November 14 Mrs. Jones took the victim to Robinson's residence for approximately half an hour, while she sought permission to take time off from work to attend to her child. Mrs. Jones retrieved the victim at 7:00 a.m. and took him to Pearl Harbor Medical Clinic. The doctor there prescribed antibiotics and a nasal decongestant.

November 15 The victim stayed with Mrs. Jones all day. She took him back to the same doctor at the Pearl Harbor Medical Clinic for a recheck.

November 16 (Saturday) The victim was still lethargic, but he was not vomiting as much and was able to hold down more of his bottle.

November 17 (Sunday) Lee Jones arrived home from his ship. The victim seemed somewhat improved and was able to eat. That evening, however, he was restless, crying, and pulling at the sides of his head as though he had an ear infection. He slept in bed with the Joneses, but only fitfully.

November 18 Mrs. Jones took the victim to Robinson's home. Robinson called Mrs. Jones during the day and told her that the victim started vomiting again and was really fussy and crying a lot. Mrs. Jones picked up the victim and took him to Tripler Army Medical Emergency. The doctor told her that there was fluid in the victim's ears, to keep him on the antibiotics, and to give him "Pedialyte" to prevent dehydration. The victim cried most of the night; at other times, he was lethargic and would not play.

November 19 Mrs. Jones took the victim to Robinson's. He slept for most of the day. Mrs. Jones was unable to get him an appointment with the doctor that evening.

November 20 Mrs. Jones stayed home from work and took the victim to the doctor at Pearl Harbor. The doctor told Mrs. Jones that the victim might be having an allergic reaction to the decongestant and to discontinue its use.

Robinson testified that, when Mrs. Jones dropped off the victim between 6:00 and 6:30 on the morning of November 21, 1991, he looked pale and that he had slept most of the day. At about 2:45 p.m., Robinson woke him to get him ready to go home. She changed his diaper and sat him on the floor while she went into the kitchen to throw away the dirty diaper and get him some juice. She heard him fall over, and, concerned that he was going back to sleep, went to pick him up. When she picked him up, he was stiff and unresponsive. After tickling the bottom of his feet and rubbing his cheek, he remained unresponsive. At that point, she grabbed her own ten-month old son in her other arm and ran with the two boys to a neighbor's house. Robinson asked the neighbor to watch her son while she took the victim to the clinic on base, about two blocks from her home, but the clinic was closed. Robinson then flagged down an acquaintance, who was driving by, and they took the victim to the Schofield Barracks emergency room. When they arrived at the emergency room, the victim was unconscious and having seizures. Meanwhile, Robinson's neighbor called Mrs. Jones, who arrived at the Schofield emergency room and rode with the victim in the ambulance to Tripler Army Medical Center.

The victim was identified as a "suspected child abuse and neglect" patient. At trial, three of the doctors who had been involved with the diagnosis and treatment of the victim's injuries were called as witnesses. Anthony G. Botinni, M.D., was deputy chief of neurosurgery at Tripler when the victim was admitted. Dr. Bottini testified that when he saw the victim, the victim's status was "critical." The victim was unconscious, not breathing for himself, and had been admitted to the intensive care unit. A CT scan showed that the victim had a very extensive subdural hematoma over his right cerebral hemisphere and three skull fractures. Dr. Bottini offered his expert opinion that, given the extensive underlying injuries and the absence of any external scalp laceration or a scalp contusion, there must have been force applied across a very broad surface where the skin itself was cushioned, for example, by the arm of a couch or a carpeted floor. When questioned regarding his opinion on whether the skull fractures could have been caused by the victim's head striking a bookshelf, Dr. Bottini opined that it was "more than improbable and perhaps impossible." Dr. Bottini explained:

[T]he only place that would be accessible on this [book]shelf would be an edge or a corner. And something like that striking a baby's head that hard would not only disrupt the scalp but probably produce a different fracture pattern where the fracture, rather than being this linear spider-like fracture, would probably be driven in.... Driven in, depressed.

He also expressed the opinion that the fractures could not have been caused solely by "Shaken Baby Syndrome," but would require blunt trauma. Specifically, Dr. Bottini testified:

Shaken Baby Syndrome, sudden acceleration and deceleration and rotation of a child may produce other things. I mean it may produce some bleeding on the surface of the skull, it may produce some of these hemorrhages at the back of the eye, but to have a fracture pattern like this and to have the extensive area of these injuries, I think it requires impact.

Dr. Bottini described the kind of symptoms a child would exhibit after sustaining the type of injuries that the victim presented:

as you have brain swelling and the pressure increases inside a child's skull they become less responsive, they become lethargic, irritable.... [T]hey respond by crying, by decreased activity, frequently and very characteristically by vomiting. Children with head injuries typically vomit. And in severe injuries they progressively have a declining level of consciousness and potentially coma.

As to when the trauma occurred, Dr. Bottini could only say that it did not occur more than ten days to two weeks before the victim was brought to Tripler on November 21 and that it was possible that the trauma occurred on more than one occasion.

James Olson, M.D., assistant chief of opthamology at Tripler, testified that his first examination of the victim was on November 22, 1991. His examination revealed that the victim had retinal hemorrhages (blood inside the eyes) that impaired his vision. He explained that retinal hemorrhaging was consistent with shaken baby syndrome, although he could not say for certain that shaking caused the hemorrhaging in this case.

A child has a much larger head in proportion to the body, so if a child is picked up around the thorax or the chest and shaken back and forth the head flops around quite vigorously.... It's possible for the vessels that go into the brain...