Burnette v. Commonwealth

• Decision Date: 31 July 2012
• Docket Number: Record No. 1158–11–3.
• Citation: 729 S.E.2d 740,60 Va.App. 462
• Court: Virginia Court of Appeals
• Parties: Cecelia Leigh BURNETTE v. COMMONWEALTH of Virginia.

60 Va.App. 462

729 S.E.2d 740

Cecelia Leigh BURNETTE

v.COMMONWEALTH of Virginia.

Record No. 1158–11–3.

Court of Appeals of Virginia.

July 31, 2012.

David A. Oblon (Hilary D. Griffith; Albo & Oblon L.L.P., Arlington, on briefs), for appellant.

Rosemary V. Bourne, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: KELSEY and ALSTON, JJ., and ANNUNZIATA, S.J.

ALSTON, Judge.

Cecelia Leigh Burnette (appellant) was convicted in a jury trial of child abuse in violation of Code § 18.2–371.1. On appeal she contends: 1) the evidence was insufficient to sustain her conviction where the Commonwealth failed to prove that appellant committed the offense, knew that another committed the offense, or failed to provide the necessary care; 2) the trial court erred in admitting evidence of prior bad acts; 3) the trial court erred in precluding appellant from asking an expert witness on cross-examination whether he agreed or disagreed with specific scientific literature on the profile of abusive head trauma perpetrators; and 4) the trial court erred in admitting autopsy photos because the cause of death was not in dispute. We disagree and affirm the judgment of the trial court.

I. BACKGROUND

On appeal, we view “the evidence in the light most favorable to the Commonwealth, the party prevailing in the circuit court, and we accord the Commonwealth the benefit of all reasonable inferences deducible from the evidence.” Britt v. Commonwealth, 276 Va. 569, 573, 667 S.E.2d 763, 765 (2008) (citing Jay v. Commonwealth, 275 Va. 510, 524, 659 S.E.2d 311, 319 (2008); Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)).

A. Events of September 2, 2008

So viewed, the evidence indicated that on the morning of September 2, 2008, appellant took her eight-month-old daughter, M.B., to Dr. Anastasia Ketany's office, where Dr. Ketany examined M.B. and diagnosed her with an upper respiratory infection and ear infection. Dr. Ketany later testified at trial that the child appeared alert and appropriate during the examination and was observed drinking from a cup. Dr. Ketany also testified that appellant seemed rushed and angry at M.B.'s father, Adam Davis, during the examination.

Following the doctor's appointment, appellant returned to the home she shared with Joshua Cheek, her boyfriend, and left M.B. with Cheek while she went to the pharmacy to get a prescription filled for M.B.'s ear infection. While appellant was out, Cheek gave M.B. a bath, during which time he noticed she “did not look there at all,” like she was “in a daze.” While M.B. was seated in her bath chair, Cheek saw her head fall forward and then back.

Cheek removed M.B. from the tub, dressed her, and placed her in her swing. While M.B. was in the swing, Cheek noticed she appeared to have a seizure. Cheek stated that M.B. shook for three to five seconds and her eyes rolled toward the back of her head. Cheek removed M.B. from her swing, made multiple calls to appellant's cell phone, and, upon reaching appellant, described what happened. Appellant told Cheek “not to worry about it” and that she would be home in a minute. Appellant returned home forty-five minutes later.

After giving M.B. her medication and attempting to feed her, appellant placed M.B. back in her swing, where she remained most of the afternoon and appeared to be asleep. Around 3:30 p.m., appellant called the Child Protective Services employee previously assigned to a case involving M.B., asking if she planned to do a home visit that day. Appellant stated during the phone call that she did not want the employee to visit because M.B. was sick. Around 5:30 p.m., appellant left with Cheek's grandmother to pick up her car while Cheek played video games with M.B. next to him in her swing. While appellant was gone, Cheek saw M.B. shake again, and her eyes rolled back in her head, and she went “lifeless.” After being unable to reach appellant, Cheek called his mother and then 911.

Paramedics arrived and rushed M.B. to the nearest hospital, where physicians examined M.B. before transferring her to a hospital specializing in pediatric care. At the second hospital, physicians discovered that M.B. had sustained severe head trauma. Dr. Donald Kees examined M.B. and determined that she was brain dead. Doctors placed M.B. on life support, where she remained until September 4, 2008, when life support was removed and she died.

B. The Police Investigation and Grand Jury

Doctors who treated M.B. alerted police, who came to the hospital and interviewed appellant and Davis. During this time, appellant consistently informed doctors and police officers that she was not aware of any head trauma suffered by M.B. During these various conversations, appellant did not mention to any medical professionals that M.B. had previously experienced seizures or exhibited seizure-like activity.

Kevin Young, an investigative officer, interviewed appellant the day after her daughter was hospitalized. After being told that someone had shaken M.B. to death, appellant told Young that the only thing she could think of was that something had happened when she left M.B. with Cheek so she could get M.B.'s prescriptions. Appellant speculated that maybe when M.B. “went over into the bathtub,” Cheek had “grabbed her, freaked out and started shaking her.” Appellant also mentioned for the first time that Cheek stated over the phone when he called appellant that he was scared and that M.B. did not “look right.” Young then asked appellant when did M.B. first have a seizure, and appellant stated that it was when Cheek was bathing M.B. the day she died.

Tim Stanley, an investigative officer, also interviewed appellant the day after her daughter was hospitalized and on several other occasions. Appellant initially informed Stanley that M.B. lost consciousness at appellant's grandmother's house, but almost immediately backtracked and said that it happened at her home, because Stanley “knew it happened [at her home].” Appellant told Stanley that her grandmother watched M.B. while appellant went to get the child's prescription on September 2, 2008. Appellant also told Stanley that later in the afternoon a “friend” came over who was going to take her to get her vehicle, and she left M.B. with the “friend's son,” Cheek. Appellant told Stanley that when she returned, Cheek was standing in the driveway screaming that M.B. was not breathing and “they called 911.”

Stanley informed appellant that her story did not match what she told the first investigating officer and that he knew she was lying. Appellant apologized for lying and said she lied because she was in a messy custody battle with Davis. Appellant then admitted that Cheek was watching M.B. when appellant was getting the prescription. Appellant also informed Stanley that Cheek called her four or five times while she was getting the prescription, telling her to hurry up and get home. When appellant returned home, she gave M.B. a dose of the new medicine, attempted to feed her, and placed her in her swing.

Stanley interviewed appellant a second time shortly thereafter on September 9, 2008. During the second interview, appellant first mentioned that M.B. had bumped her head on a table the day she died.

In January 2009, appellant testified before a grand jury about the events leading up to M.B.'s death. During her testimony, appellant stated that Cheek told her that M.B. had a seizure-like episode on September 1, 2008, the day before M.B. was rushed to the hospital, while appellant was at work. Appellant stated she did not seek medical attention at that time because she thought Cheek was overreacting. Stanley, who was present during appellant's grand jury testimony, later testified at trial that appellant's grand jury testimony was the first time he heard anything about the child having a seizure on the day before she died.

Appellant also claimed during her grand jury testimony that she told Dr. Ketany or her nurse during M.B.'s September 2, 2008 appointment that M.B. “was having ... these episodes of going unconscious.” Dr. Ketany later testified at trial, asserting that appellant never mentioned M.B. having any seizures or exhibiting seizure-like behavior. According to Dr. Ketany, appellant also did not mention that M.B. hit or bumped her head before coming to the office. Dr. Ketany's nurse also testified that appellant never mentioned head traumas or seizures when she was examining M.B. prior to Dr. Ketany entering the room.

Police arrested appellant on October 2, 2009, on indictments for murder in violation of Code § 18.2–32 and felony child abuse in violation of Code § 18.2–371.1(A).

After appellant was arrested, Stanley interviewed appellant again. Appellant admitted to lying during her grand jury testimony. Appellant also informed Stanley for the first time that M.B. bumped her head on the sink and again “hard” on the changing station in Dr. Ketany's office bathroom on the morning of September 2, 2008.

C. Jury Trial

Appellant was tried by a jury beginning on March 15, 2011. Among other witnesses, the Commonwealth presented the testimony of Cheek, Stanley, and Young, describing the events of September 2, 2008, and the investigation into the child's death, as described above. Cheek specifically denied ever shaking or hurting the child.

1. Medical Evidence

Dr. Kees, an expert in pediatrics, testified at appellant's trial. He opined that M.B.'s injuries were caused by rapid acceleration and deceleration of the head. Dr. Kees testified he performed a CT scan on M.B., which revealed blood around M.B.'s brain and retinal hemorrhages that were too numerous to count, indicating a lethal amount of force, consistent with shaking, was applied to the child. Dr. Kees testified that M.B.'s injuries would have produced immediate symptoms, such as a decreased level of responsiveness or change in mental status that would progressively worsen over time. He...