Deese v. State

Decision Date17 December 2001
Docket NumberNo. 138 Sept. Term, 1999.,138 Sept. Term, 1999.
Citation367 Md. 293,786 A.2d 751
PartiesGary A. DEESE v. STATE of Maryland.
CourtMaryland Court of Appeals

Sherrie B. Glasser, Asst. Public Defender, (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Diane E. Keller, Asst. Atty. Gen., (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL, and THEODORE G. BLOOM, (retired, Specially Assigned), JJ.

RODOWSKY, Judge.

Gary Deese (Deese) was convicted by a jury in the Circuit Court for Baltimore County of child abuse, a felony under Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 35C. Based on the commission of a homicide in the perpetration of that felony, Deese was also convicted of second degree felony murder. The court sentenced Deese to twenty years incarceration for the felony murder, merging the sentence for child abuse. Deese appealed, and, before the Court of Special Appeals heard the case, this Court issued a writ of certiorari on its own motion. 357 Md. 481, 745 A.2d 436 (2000). Deese's primary contention is that there is no offense of second degree felony murder.

In Fisher v. State, 367 Md. 218, 786 A.2d 706 (2001) this Court held that felony murder in the second degree, predicated on child abuse, or on any other inherently dangerous felony not enumerated in the first degree murder statutes, is a cognizable offense under the common law of this State. Deese's remaining contentions on appeal concern whether the court erred in accepting a witness as an expert and whether the evidence was sufficient to convict.

Beginning in August 1997, Deese lived with his girlfriend, Julie Faust (Faust), and her child, Kyle Faust (Kyle). Kyle was born on January 19, 1995, and died on February 8, 1998. The three initially lived with Deese's parents, but, at the time of the events relevant to this case, they resided in a separate apartment. While Faust was working, Kyle would go to day care; while she was not working, Faust, Deese's mother and, for short intervals, Deese himself, supervised Kyle. In January 1998, Kyle suffered a break of unknown origin in his leg. Later that month Deese's mother pointed out to Faust that Kyle had a "soft spot" in the middle of the back of his head. Faust consulted her pediatrician, Dr. John O'Donovan, who diagnosed it as a subgaleal hematoma, or blood on the outside of the skull due to an injury such as a fall. He advised Faust that such an injury is not uncommon among children of Kyle's age and that it required no special care to heal.

Approximately one week later, on February 6, Faust again brought Kyle to see Dr. O'Donovan because Kyle had a fever of 102 degrees. Dr. O'Donovan diagnosed an ear infection, prescribed antibiotics, and noticed swelling on Kyle's left cheek which did not especially concern him. Faust testified that the next day, February 7, Kyle's fever spiked to 105 degrees and that she called Dr. O'Donovan, who advised her to wait out the fever. The fever broke that same day. Because Faust had to work that day, Deese supervised Kyle between 9:00 a.m. and 2:00 p.m.

On February 8, according to Faust, Kyle's temperature was normal and he began to feel better. Faust testified that she fed and bathed Kyle in the morning and that, while bathing him, she noticed no marks or bruises anywhere on him. Faust then put Kyle to sleep in his bedroom and closed the door. Kyle's bedroom was adjacent to the living room. Deese, who was "miserable" with a toothache, was resting in the living room. That morning Deese's mother came to the apartment to pick up some items. Around noon Faust went grocery shopping. She could not recall if Deese's mother was still in the apartment at that time. Faust returned two hours later to find Deese still resting in the living room and Kyle's bedroom door still closed. Deese told Faust that Kyle "hadn't stirred." Faust left Kyle undisturbed for a "couple hours," but then became concerned. She entered Kyle's room and found him "stiff," immobile, and with his eyes open. She "screamed" for Deese, who called emergency assistance and who relayed instructions to Faust on how to perform CPR. Faust moved Kyle's body from his bed to the floor so that she could perform CPR on him.

Samuel Snyder (Snyder), the district lieutenant for Emergency Medical Services, received a call at 4:14 p.m. on February 8 to Faust's apartment, where he and other technicians arrived within three minutes. Although Kyle already was dead by this time, Snyder and others attempted to resuscitate him. While trying to intubate Kyle, Snyder noticed that Kyle's jaw, one of the first joints to seize up in rigor mortis, was stiff, and Snyder concluded that "maybe this child had been down for quite some time." Once Kyle was transferred to the ambulance, Snyder removed Kyle's shirt and observed "fairly extensive" bruises on his chest, on his shoulders, at the scalp line on his head, and his upper forearm. Snyder acknowledged that the bruise on the chest could have been a result of the CPR previously performed by Faust, but also stated that the other bruises were round, and possibly indicative of a thumb. These bruises were "in a place where a person would grab a child." Snyder acknowledged that, because he could not remember the color of the bruises and because the color could not be conclusively determined from post-mortem photographs, he did not know whether the bruises were "recent" or "a week old." Snyder also observed lividity, i.e., pooling of blood in the body after the heart stops pumping, which indicated that Kyle "could have been dead for hours" by the time Snyder arrived.

Kyle was taken to Franklin Square Hospital's Emergency Department where Dr. Albert Romanosky, the clinical director of that department and an emergency physician, pronounced Kyle dead on arrival. Dr. Romanosky testified that he observed "multiple bruises over [Kyle's] body," including "several bruises around the head." Some bruises may have been "older bruises, five to seven, five to ten days old," while others were "more recent." Dr. Romanosky also noticed two abrasions. Using photographs at trial, he identified bruises behind the right armpit and on the buttocks area, and a "black and blue area" on the left side of Kyle's head that was consistent with a bruise and which had been soft to the touch.

On February 9, Drs. Steven Robinson and Margarita A. Korell of the Office of the Chief Medical Examiner performed an autopsy; on June 19, they reported their findings to the Baltimore County State's Attorney's Office. This report identified the cause of death as "blunt force injuries to head" and the manner of death as "undetermined," rather than as homicide. On September 9, 1998, Dr. Korell and Dr. John E. Smialek, the Chief Medical Examiner, submitted a supplemental report which identified the manner of death as homicide due to "blunt force head injuries." At trial, the State did not call any physician from the medical examiner's office, but instead entered in evidence the autopsy and supplemental reports as a public record and pursuant to Maryland Code (1982, 1994 Repl.Vol.), § 5-311(d)(2) of the Health-General Article.1 Deese called Dr. Korell in his case in chief, questioning her about the changed opinion as to the manner of death. Dr. Korell admitted to having met with prosecutors and police before filing the supplemental report and that new medical tests did not account for the change. On cross-examination by the State, Dr. Korell explained that she was "suspicious from day one," but was waiting to receive an "alternate explanation" as to how Kyle had been bruised; after no such explanation was forthcoming, she concluded that the manner of death was homicide.

The State entered the autopsy and supplemental reports into evidence during the direct examination of Dr. Allan R. Walker. He is an assistant professor of pediatrics and director of pediatric emergency medicine at Johns Hopkins University, as well as the director of that hospital's "child protection team." The latter is "a team which attempts to educate people around the University and the hospital about child abuse and neglect." Deese contends in this Court (see Part I, infra) that Dr. Walker was unqualified to opine because he was "not an expert in the field of forensic pathology."

Dr. Walker read portions of the autopsy report describing "evidence of injury" and located the injuries on photographs of Kyle's body. This evidence included the following: "bruising[ ] present over the left side of the head"; "softening and swelling present over the left parieto-occipital cavity"; "five separate contusions" identified "on the left side of the forehead"; "a one-eighth inch abrasion present on the right side of the head just above the eyebrow"; a "subdural hemorrhage" in the brain; swelling of the brain; other brain injuries, such as a contusion in the left hemisphere in the cerebellum; retinal hemorrhages, and other injuries. Dr. Walker explained that the soft spot on the back of Kyle's head noticed by Deese's mother and Faust before Kyle's death does not cause death and typically "resolve[s itself] without any problems." Dr. Walker concluded that "this child died of brain injury, as a result of trauma," and identified retinal hemorrhages as evidence of Kyle's having been shaken. He did not disagree with Dr. Korell's conclusion that blunt force trauma caused death, but explained on cross that "there was shaking plus impact." Describing the degree of force necessary to cause the observed injuries, Dr. Walker stated that "these ... are the sorts of injuries that we see in children who have been accidentally injured in motor vehicle crashes or in falls from heights from more than a couple of stories[.]" The "almost immediate[ ]" effect of such injuries would be "coma, unconsciousness, or death."

On cross-examination, Dr. Walker acknowledged that the autopsy report...

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