Craig v. Com.

• Decision Date: 19 December 2000
• Docket Number: Record No. 3058-99-3.
• Court: Virginia Court of Appeals
• Parties: William Joseph CRAIG v. COMMONWEALTH of Virginia.

538 S.E.2d 355

34 Va. App. 155

William Joseph CRAIG v. COMMONWEALTH of Virginia.

Record No. 3058-99-3.

Court of Appeals of Virginia, Salem.

December 19, 2000.

Francis Chester, Churchville, for appellant.

John H. McLees, Jr., Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: ELDER, FRANK and HUMPHREYS, JJ.

FRANK, Judge.

William Joseph Craig (appellant) appeals his conviction of involuntary manslaughter on an indictment charging second degree murder. On appeal, he contends the trial court erred in granting an instruction offered by the Commonwealth on the lesser-included offense of involuntary manslaughter. Finding no error, we affirm the judgment of the trial court.

I. BACKGROUND

Appellant lived with his wife, Susan, and their three daughters, Joanne, McKayla, and Grayson. In October 1997, McKayla and Grayson, who were twins, were five and onehalf months old. On October 3, 1997, Grayson had been in the local hospital for three days with double pneumonia. While she was hospitalized, Susan and Susan's mother took turns attending her, while appellant stayed home and cared for McKayla and Joanne.

On October 3, 1997, Susan learned that Grayson was to be discharged that day. She called appellant at work and asked him to come home to watch McKayla while she brought Grayson home from the hospital. Appellant arrived home between 1:30 p.m. and 2:00 p.m.

McKayla did not feel well and was "fussy" that day. Because taking her for rides in the car often soothed her, and because he needed cigarettes, appellant took her for a ride in the car. He would later testify that during the ride, he had to stop suddenly, which first threw McKayla forward in her front-seat car seat and then jolted her back. He said this occurred around 2:45 p.m. According to appellant, this incident again made McKayla fussy, but she soon calmed down. When he arrived home with McKayla around 3:00 p.m., he described her as awake, clinging, and "lovey dovey" with him. Susan, who had not yet left for the hospital, described McKayla as "sleepy."

Susan left for the hospital shortly after appellant and McKayla returned, leaving appellant as the sole caretaker of McKayla. She said McKayla was "fine" when she left. According to appellant, McKayla got fussy again. He tried to feed her and she ate some baby food carrots, but she then spit the rest out. He rocked her and put her to bed around 3:30 p.m. He checked on her several times thereafter. He said she moved from her original position.

McKayla stayed in her crib, on her stomach, and was in that position when Susan came home at approximately 5:30 p.m. Appellant left for work when Susan's mother arrived with the other twin, Grayson. He waited so he could see Grayson before he left for work. Appellant left around 6:35 p.m. and arrived at work ten minutes later. He remained at work until 9:30 p.m. and then returned home.

Susan's mother arrived at the home around 6:00 p.m. and remained for approximately two hours. She checked on McKayla from time to time during this period but did not remember seeing her move and did not hear her cry.

During the time Susan was home between 5:30 p.m. and 9:15 p.m., she looked in on McKayla periodically. Between 8:00 p.m. and 9:15 p .m., she checked on her at least three times and stated that "as far as [she] knew, [McKayla] was fine." Susan did not testify as to whether or not McKayla moved at any time during this period. According to appellant, she moved once around 5:20 p.m. Neither Susan nor her mother noticed anything amiss until about 9:15 p.m., when Susan realized that McKayla had not moved at all and was unresponsive. Susan picked McKayla up, but the baby was "lifeless." She took McKayla out of the crib but nothing could rouse the baby. When appellant came home from working late, he found Susan distraught, with the baby unconscious on the bed.

An ambulance took McKayla to the Augusta Medical Center. There, the emergency room physician found her "in grave distress," and "near death." She was unconscious, limp, barely breathing, and undergoing seizures. A CAT-scan of her head was, at first, misread by the radiologist as being normal, but the physician soon caught the error and saw that it showed a head injury, which involved internal swelling and pressure on the brain. There were no external bruises or similar signs of injury. The doctor asked appellant and Susan if the baby had been injured, and Susan replied that she had not.

The doctor concluded that the baby had a head injury. McKayla was put on a respirator to assist her breathing and was taken by helicopter to the University of Virginia Medical Center for more sophisticated treatment.

Upon McKayla's arrival at the University of Virginia Medical Center, the pediatric intensive care specialist found her totally without muscle tone, unresponsive, and "very deeply comatose." Repetition of the tests for infection and other causes were negative, and the doctor concluded that her severe brain swelling had been caused by child abuse. Susan told him the child had not been abused but mentioned an incident the day before when another child had accidentally hit her with a toy truck. The doctor told appellant and Susan there was nothing they could do to keep McKayla alive.

In addition to the emergency room doctor from Augusta Medical Center and the pediatric intensive care specialist from the University of Virginia Medical Center, two other doctors, a forensic pathologist, who performed the autopsy, and one of the leading pediatric neuropathologists in the country, who had reviewed the autopsy findings and materials, testified about the cause of McKayla's death. Both opined that she died of "shaken baby syndrome." The other possible causes for her symptoms had been repeatedly ruled out by testing.

Shaken baby syndrome involves internal ruptures of blood vessels around the brain, causing fatal internal pressure on the brain and injury to the spinal column, which causes impaired blood supply to the brain. The doctors explained the cause of this constellation of injuries as "a child is held by an adult and shaken very violently," "repeated strong shakings of the individual," and "the child has been shaken repeatedly, so that the baby's head goes back and forth, back and forth." They testified that, because of the strong repetitive force required for this injury, the car seat incident described by appellant could not possibly have caused it. Moreover, they agreed that the sort of injuries suffered by McKayla would have rendered her unconscious "within seconds to minutes" if the car seat incident had caused her injuries. Therefore, she would not have been able to remain awake and clinging, as both appellant and Susan described her upon the return from the car ride, and would not have been able to eat, then refuse food, remain awake, and then fall asleep, as appellant described her doing before he put her in the crib.

Susan testified she had not shaken the baby and did not see anyone else do so. Appellant also denied doing anything to harm McKayla and said he did not know how McKayla had been injured.

Appellant was indicted for second degree murder and was tried before a jury on July 13-14, 1999. The Commonwealth offered an instruction for murder and the lesser-included offense of involuntary manslaughter. Over appellant's objection, the trial court instructed the jury on second degree murder and involuntary manslaughter. The jury returned with a verdict of guilty of involuntary manslaughter.

II. ANALYSIS

Appellant contends the trial court erred in granting the Commonwealth's instruction on involuntary manslaughter. Appellant argues that while the accused may ask for an instruction on a lesser-included offense, the Commonwealth may not. Appellant cites a law review article for the proposition that the accused has the right to bar a lesser-included offense instruction and "go for broke," has a right to insist on a verdict of guilt on the charged offense or acquittal of that offense. Alternatively, appellant contends the evidence did not support an instruction on involuntary manslaughter.

We reject appellant's contention that the accused has a right to control the Commonwealth's submission of an instruction on the lesser-included offense. Appellant cites no authority, nor can we find any, to support his position. Appellant cites a number of federal and state decisions, including decisions from Virginia, holding that an accused is entitled to an instruction on the lesser-included offense if evidence supports such an instruction. However, that is not the issue raised by appellant.

Appellant cites State v. Wallace, 175 W.Va. 663, 337 S.E.2d 321 (1985), which refutes his position. The Supreme Court of Appeals of West Virginia rejected the argument that the state, by choosing to indict the accused for the greater offense, is foreclosed from seeking a lesser verdict from the jury, stating,

[t]his argument ignores the generally recognized origin of the concept of lesser included offenses which is that it was originally developed to aid the prosecution as summarized in Beck v. Alabama, 447 U.S. 625, 633, 100 S.Ct. 2382, 2387-88, 65 L.Ed.2d 392, 400 (1980).

Id. at 324.

Hagans v. State, 316 Md. 429, 559 A.2d 792 (1989), also cited by appellant, further belies his position. In Hagans, the Court of Appeals of Maryland, referring to lesser-included offenses, stated:

"The doctrine is a valuable tool for defendant, prosecutor, and society. From a defendant's point of view, it provides the jury with an alternative to a guilty verdict on the greater offense. From the prosecutor's viewpoint, a defendant may not go free if the evidence fails to prove an element essential to a finding of guilt on the greater offense. Society may receive a benefit because, in the latter situation, courts may release fewer defendants acquitted of the greater offense. In addition, the punishment

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