Dowden v. Com.

• Citation: 536 S.E.2d 437,260 Va. 459
• Decision Date: 03 November 2000
• Docket Number: Record No. 992562.
• Court: Supreme Court of Virginia
• Parties: Douglas E. DOWDEN evidence. v. COMMONWEALTH of Virginia.

536 S.E.2d 437

260 Va. 459

Douglas E. DOWDEN evidence. v. COMMONWEALTH of Virginia.

Record No. 992562.

Supreme Court of Virginia.

November 3, 2000.

Bonnie H. Hoffman, Leesburg, for appellant.

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

Present: All the Justices.

HASSELL, Justice.

Douglas E. Dowden was tried before a jury in the Circuit Court of Loudoun County and convicted of the involuntary manslaughter of his son, Dyvon Dowden. He was sentenced in accordance with the jury's verdict to serve 10 years' imprisonment, and the circuit court suspended execution of seven years of that sentence. The Court of Appeals affirmed the circuit court's judgment and, here, Dowden challenges the sufficiency of the evidence to sustain his conviction.

I.

Applying well-established principles of appellate review, we will consider the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party below. Phan v. Commonwealth, 258 Va. 506, 508, 521 S.E.2d 282, 282 (1999); Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991).

The defendant and Tammy Lato were the unmarried parents of Dyvon Dowden, a seven-month-old male baby who weighed about 17 pounds. The baby and his parents lived in a house in Loudoun County with several other occupants, including James Reeder and his wife, Kim Reeder.

On July 6, 1997, Lato "put Dyvon to bed" at approximately 8:00 p.m. in a portable playpen located in a room that she shared with the defendant. Lato testified that Dyvon was a "[p]erfectly healthy" baby who could crawl, "stand up on things," walk on the couch, and hold his own bottle. Dyvon was "perfectly normal." Lato described Dyvon's general physical condition when she put him in the playpen as "[p]erfectly fine." When she placed him in the playpen at 8:00 p.m., she gave him a bottle of Pedialyte, which is a purple-colored liquid that her pediatrician had recommended she give to the baby. The playpen where she placed Dyvon was "an inch to two inches" away from a bed where the defendant was sleeping.

Lato went to sleep in the bed with the defendant about 1:30 a.m. on July 7, 1997. She awoke at approximately 3:00 or 3:30 a.m. When she got out of the bed, she could hear Dyvon moving in the playpen and making noise. As she left the bedroom to go to a kitchen and prepare a bottle of baby formula for Dyvon, there was nothing about his health that gave her any concerns.

After Lato had prepared the baby's bottle, she returned to the bedroom and tried to give the bottle to Dyvon, but he refused to take it. Dyvon, who was lying on his back, used both hands to "push [the bottle] away three times." Lato testified that after she tried to give Dyvon the bottle, "he started to make a gasping sound Ulust like the air had been knocked out of him."

Lato "pulled Dyvon" out of the crib and immediately noticed that "Nis arms were limp" and his skin "was cool." She placed the baby on the edge of her bed, and she "checked him over." The baby continued to "gasp" for air. She checked him because she was afraid that he may have been "bitten by a spider." The defendant, who Lato purportedly had awakened, also "checked" the baby and "looked in [the baby's] mouth."

Lato told the defendant that she was going to take Dyvon to a hospital. She left the bedroom and went to a living room to get the baby's car seat. The defendant picked up the car seat and placed the car seat and the baby in the car. Lato drove away in her car. The defendant did not accompany her, and he returned to the house, but he did not inform any of the other occupants of the house of the baby's condition.

After Lato drove her car away from the house, she realized that she did not know the location of a hospital. She drove her car into the parking lot of a convenience store, got out of her car, entered the store, and asked an attendant for the location of a hospital. The attendant told her to "go across the street to the rescue center."

Lato returned to her car and drove across the street to the Sterling Volunteer Fire Department. She knocked on the door, and Stacy Dawson, a volunteer with the Sterling Volunteer Fire Department, responded. Dawson, who had been trained and certified to perform cardiopulmonary resuscitation (CPR), but had let her certification lapse because she had been out of the United States, placed the baby on the floor and began to perform CPR.

Dawson testified that the baby "was absolutely just the whitest" baby she had ever seen, and the baby "looked like a doll." The baby "was very, very pale, almost yellowish but [had] no color in it. And the [baby's] eyes were closed . ..." Dawson also noticed that the baby "was very cold." Dawson lifted the baby out of the car seat, and he was "totally limp, just like a doll." She saw no movement in the baby, and he made no sounds. The baby did not have a discernable heartbeat, chest movement, or pulse.

While the emergency response personnel were trying to resuscitate the baby, Lato made a telephone call to the house where she lived and spoke with Kim Reeder, the defendant's sister-in-law. Kim Reeder informed the defendant's half-brother, James Reeder, that Lato had taken the baby to a fire station. James Reeder directed his wife to inform the defendant so that they could go to the station and be with Lato and the baby.

Richard Laughlin, a cardiac technician with the Sterling Rescue Squad, also described the condition of the baby that morning. He stated that the baby was "very white or ashen, or what I term 'china doll' appearance . [t]here was no eye movement, and it was a very limp infant, no movement at all." Laughlin examined the baby and concluded "that the [baby] was dead and [that Laughlin] needed to start trying to revive him."

Laughlin tried to intubate the baby, but the baby's airway was blocked. The baby was given a mask which was used to push oxygen through the mouth into the baby's lungs. Mike DePine, another emergency technician, administered "five blows" to Dyvon's back in an effort to clear his airway. When DePine administered "the blows," fluid emitted from the baby's mouth. A second set of five "blows" was administered to the baby's back, and additional fluid was emitted. Dyvon was taken to a hospital, and further efforts were made to resuscitate him. Eventually, Dyvon was declared dead.

James Reeder testified that when he returned from the hospital, he "was searching for a reason why a perfectly healthy baby could go to sleep at night and wake up and all of a sudden be dead." Two days after the baby's death, he spoke with the defendant about what might have happened. Reeder testified as follows:

"Q: On the second day after Dyvon's death, did you have occasion to ask or do you recall whether or not you asked [the defendant] what happened?

"A: Yes, I did.

"Q: What answer did you get?

"A: I got—he says he wasn't sure, he didn't know, that he might have, you know, he says—he wanted to know if he kicked the crib or something that—what would that be. And I said, well, you know, that would be some form of manslaughter because we come back from his lawyer's office when we discussed about that. And he said—I said it would be some type of manslaughter. And then he says, well, no matter what it is, I'm not going to let Tamm[y] take the fall, and that was all he said.

"Q: Did he ever explain what he meant by that by not going to let Tamm[y] take the fall?

"A: No. I asked him. He's a very quiet individual and he wouldn't say.

"Q: Did there come a point in time when he indicated to you that if he kicked the [baby], he didn't know it?

"A: No, I don't think he did. I think he might have stated that he could have kicked it, but I don't think he said he did kick it. He said he was just—I don't know what he was asking and why he was making a statement like that when he said it. It just baffled me.

"Q: The statement that baffled you was?

"A: Why he would ask, you know, if [he] kicked the baby

"Q: What is the charge?

"A: Yes, what would that be. And, you know, I don't understand that, and then I really didn't understand why he said he would cover for her.

"Q: My question is did there come a point in time on the second or third day when you had a conversation with [the defendant] that he used the word 'hypothetical'?

"A: Yes.

"Q: Would you please, as best you recall, what did he say?

"A: He said, hypothetically, if I kicked the crib, what would that be, and that was his statement.

"Q: James, you indicated, I believe, in your testimony that you were mad or upset with [the defendant]?

"A: I was upset with both of them, very. I mean

"Q: Did you ever accuse [the defendant] of doing anything to the [baby]?

"A: Being involved with what happened in there, yes.

"Q: What if any response did you get?

"A: None."

The Reverend Charles E. Grant, an emergency medical technician chaplain, had a conversation with the defendant at the hospital on the morning of July 7, 1997. Grant and the defendant were in a room while the hospital's emergency room personnel were trying to revive the baby. During the conversation, the defendant told Grant that the defendant was holding Dyvon and that the baby was alive when Lato prepared the baby's bottle of formula earlier that morning. Grant testified that the defendant's statement was unusual "because everything the mother had said up to then led us to believe that she was the only one awake when she ran out of the house with the baby, and I thought that was unusual." During defense counsel's cross-examination of Grant, the following exchange occurred:

"Q: Now, the statement that [the defendant] made to you, do you recall the exact words that he said, not the impression that you had, not the time frame you thought, the words that came out of his mouth?

"A: I'm positive that he said something to the effect that he held the baby while [the mother] was

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