Davis v. Com.

• Decision Date: 19 March 1998
• Docket Number: 96-SC-123-TG,Nos. 95-SC-787-M,s. 95-SC-787-M
• Citation: 967 S.W.2d 574
• Parties: Sherman Dejuan DAVIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Melissa FELTS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 574

967 S.W.2d 574

Sherman Dejuan DAVIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Melissa FELTS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 95-SC-787-MR, 96-SC-123-TG.

Supreme Court of Kentucky.

March 19, 1998.

As Modified on Denial of Rehearing June 18, 1998.

Julie Namkin, Assistant Public Advocate, Frankfort, for Appellant Sherman Dejuan Davis.

Daniel T. Goyette, Frank Wm. Heft, Jr., Jefferson District Public Defender, Louisville, for Appellant Melissa Felts.

A.B. Chandler, III, Attorney General, Lana Grandon, Criminal Appellate Division, Samuel J. Floyd, Jr., Criminal Appellate Division, Office of Attorney General, Frankfort, for Appellees.

COOPER, Justice.

Appellants Sherman Dejuan Davis and Melissa Felts were jointly tried in the Jefferson Circuit Court for offenses alleged to have been perpetrated against Felts's two-year-old daughter, Sabrina Felts, who died on the night of May 20-21, 1994. Davis was convicted of wanton murder and first-degree criminal abuse and sentenced to confinement in the penitentiary for one hundred (100) years for murder and ten (10) years for criminal abuse. The sentences were ordered to be served consecutively for a total of one hundred and ten (110) years. Felts was convicted of first-degree criminal abuse and sentenced to confinement in the penitentiary for ten (10) years. Davis appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). Felts's appeal to the Court of Appeals was transferred to this Court pursuant to CR 74.02(2).

Davis began living in Felts's residence in January 1994. On February 11, 1994, Sabrina's paternal grandmother, Jeanette Johnson, noticed that Sabrina had two black eyes, fingernail marks on her jaw, and bruises on her neck. She took the child to a pediatrician, Dr. John Yusk, who notified Child Protective Services. Johnson questioned Felts about the injuries and was told that neither Felts nor Davis had hurt the child, but that Sabrina might have hit her head on a table. Later, Felts posited that her own mother, Debbie Thompson, might have inflicted the injuries. Dr. Yusk's physical examination of the child revealed bruising around both eyes, the upper lip, both sides of the neck, and the buttocks. Dr. Yusk testified that these injuries could not have resulted from a fall or any other normal activities of the child. Sabrina was placed in the temporary custody of her father, DeJuan Stratton, and lived with him and his mother, Mrs. Johnson, from February 17, 1994 until April 27, 1994. On the latter date, Sabrina was returned to the custody of Felts pursuant to a court order.

On May 13, 1994, Felts went out for the evening and left Sabrina in the care of Davis. When Felts returned the following morning, she noticed that Sabrina had a "busted" lip. Davis told her that another child had hit Sabrina and caused the injury.

On Saturday, May 14, 1994, Felts called Mrs. Johnson and asked her to take Sabrina to the hospital because of her busted lip. Johnson testified that when she picked up Sabrina at Felts's apartment for weekend visitation, Davis told her that he would no longer baby-sit Sabrina, because the child kept falling off the couch and bruising herself. On Sunday, May 15, Johnson noticed that Sabrina's lip was much worse. She informed Child Protective Services, then took Sabrina to Kosair Children's Hospital for treatment before returning her to Felts's custody that evening.

On Wednesday, May 18, 1994, Felts again went out for the evening and left Sabrina in Davis's care. The next day, Davis pointed out a bruise on Sabrina's back and told Felts that the child had suffered a seizure while he was watching her. He also suggested that Sabrina may have fallen off the couch and hit her head on the coffee table, because the table was out of place. Later that day, Felts remarked to a friend, Shawntane Finn, that she wondered why her baby got bruised every time she was left with Davis.

On Thursday, May 19, 1994, Felts displayed the child's bruises to other friends and stated that she did not believe Davis was abusing Sabrina, but that perhaps he was not watching her closely enough. Since Sabrina had not had another "seizure," Felts did not take her to a doctor, but treated her with over-the-counter medication.

On Friday, May 20, 1994, Felts again went out with friends and left Sabrina in Davis's care. At approximately 3:30 a.m. that night, Davis called Emergency Medical Services (EMS) and reported that Sabrina was unconscious and having difficulty breathing. When EMS personnel arrived, they found the child on the couch in the living room and not breathing. She was taken to the emergency room at nearby Sts. Mary & Elizabeth Hospital where she was diagnosed to be in full respiratory and cardiac arrest. She was resuscitated and transferred to Kosair Children's Hospital, where she died at approximately 4:00 p.m. the following afternoon.

Dr. William Smock, an assistant medical examiner trained in clinical forensics, examined Sabrina at Kosair Hospital and found her unconscious, comatose, and not breathing on her own. She had bruises on her face, back, cheeks, sides and legs. She also had bruises below her right eye, on her back and the sides of her chest, and on her right arm and buttocks. A CAT scan revealed massive swelling of the brain and blood inside the brain and skull. Smock testified that the child had two large skull fractures on the back of her head, consistent with blunt force trauma. It was his opinion that these injuries could not have been caused by a fall from the couch and that there was "no way" that a child with this type of injury could have walked around or interacted with others. Dr. Smock testified that if Sabrina was in full cardiac arrest at 3:00 a.m., she could not have sustained her injuries prior to 10:00 p.m. the previous evening. Dr. George R. Nichols, II, state medical examiner, testified that his autopsy examination revealed the cause of death was blunt force trauma to the head of sufficient severity to have caused "instantaneous symptomology," i.e., cessation of brain function, difficulty breathing, seizure activity, and coma. Dr. Nichols also testified that except for the injury to the child's lip, all of her injuries occurred simultaneously with the infliction of the skull fractures.

When Amy Lombard, a social worker, interviewed Davis on May 21, he told her that he was the only one who had access to Sabrina between 10:00 p.m. Saturday night when Felts left the residence, and 3:00 a.m. Sunday morning when he found Sabrina gasping for air. Davis testified that he put Sabrina to bed around midnight, and that when he went to her room to check on her, she was unconscious and was having difficulty breathing. He had no explanation for how the fatal injuries occurred. Tammy Hampton, Cathy Vessels and Sonya Carroll, who had been out with Felts on the night of May 20-21, all accompanied Felts to the hospital, then returned to Felts's apartment to retrieve the medication Sabrina had been taking. All three testified that Sabrina's bed was made and did not appear to have been slept in that night.

I. ERRORS ASSERTED BY DAVIS.

1. Failure to instruct on first-degree manslaughter.

With respect to the homicide charge, the jury was instructed on wanton murder with lesser included offenses of second-degree manslaughter and reckless homicide. Davis now argues the trial court erred in failing to instruct the jury on the offense of first-degree manslaughter based either on the theory that Davis did not intend to kill Sabrina, but instead only intended to cause her serious physical injury, or on the theory that he was acting under the influence of extreme emotional disturbance at the time he struck and killed Sabrina. At trial, however, during discussion of proposed jury instructions, Davis's attorney urged the trial court not to instruct the jury on first-degree manslaughter, and the court agreed not to do so. Davis acknowledges this issue is unpreserved, but nonetheless asks this Court to review the trial court's failure to give the instruction for palpable error pursuant to RCr 10.26. We decline to do so, because not only was any error in the trial court's failure to so instruct the jury unpreserved, it was also waived by Davis's counsel's request that no such instruction be given.

2. Out-of-court statements of Felts.

In addition to Shawntane Finn's testimony that Felts wondered why Sabrina got bruised every time she was left with Davis, Officer Diane Eisenback testified that Felts repeatedly stated at the hospital on the night of May 21 that "He killed my baby," and that "After we got her back, it all started happening." Finally, Eisenback testified that Felts admitted that she "should never have left last night."

There was neither an in limine motion to suppress these statements, KRE 103(d), nor a contemporaneous objection to their introduction. KRE 103(a)(1); RCr 9.22. Davis asserts the issue was preserved by a comment made by the trial judge at the conclusion of a pre-trial hearing on Felts's motion for a separate trial, viz:

The only thing that concerns me, and I've cautioned the Commonwealth as it relates to the incriminating statements made by one defendant against the other, against the other defendant being excluded in the case-in-chief because of the Bruton rule. That's my only concern, and the prosecutor has assured me that they're going to do that....

The issue of Felts's out-of-court statements had not been raised when this remark was made. Since the hearing was on Felts's motion for a separate trial, the judge's remark obviously related to the contents of a recorded statement which Davis had given to the police. Davis's in limine motion to suppress that statement was overruled at a separate hearing.

Regardless, there was no error in the admission of these statements. Felts was charged and convicted of intentionally permitting Davis to inflict serious physical injuries upon...