Guba v. Com.

• Decision Date: 19 September 1989
• Docket Number: No. 0364-88-4,0364-88-4
• Citation: Guba v. Com., 383 S.E.2d 764, 9 Va.App. 114 (Va. App. 1989)
• Parties: Martha E. GUBA v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 764

383 S.E.2d 764

9 Va.App. 114

Martha E. GUBA v.COMMONWEALTH of Virginia.

Record No. 0364-88-4.

Court of Appeals of Virginia.

Sept. 19, 1989.

Thomas J. Morris, Sr., for appellant.

Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BENTON and DUFF, JJ.

DUFF, Judge.

Martha E. Guba appeals her conviction by a jury of the willful or knowing failure to provide necessary care for Ashley (spelled Ashleigh in the indictment) Snead, while in her charge, so as to cause or permit the child's life or health to be seriously injured, in violation of Code§ 18.2-371.1¹.She raises two points on appeal: (1) whether the trial court erred in failing to grant a mistrial or other appropriate relief due to the Commonwealth's failure to comply with a discovery order, and (2) whether the trial court erred in refusing to allow defense counsel to show bias and prejudice on the part of a Commonwealth witness.From our review of the record, our consideration of the briefs filed and the able arguments presented, we conclude that the Commonwealth failed to provide defendant with the discovery intended by the pre-trial order, with resulting prejudice to the extent meriting a new trial.As the second point is not necessary to our disposition of the case on appeal, we do not address it.

Martha E. Guba, age fifty-eight, operated a child care facility out of her home in Springfield, Virginia.She had cared for Ashley Snead five days a week for a number of months.On Monday, July 27, 1987, Ashley, who was then ten months of age, was brought to Mrs. Guba, as was the usual custom.As far as the record reveals, nothing untoward occurred that day.On Tuesday, July 28, 1987, Ashley was delivered at approximately 7:15 a.m.At 10:30 a.m., Mrs. Guba telephoned Ashley's mother and advised her that the child may have swallowed one Tylenol and that she was concerned about her welfare.Apparently, in the ensuing several hours there were one or two additional telephone calls about Ashley's condition.There was evidence that Mrs. Snead advised Mrs. Guba that she had checked with her doctor, who told her that one Tylenol was probably harmless but to keep an eye on the child.In the meantime, Ashley had been "put down" for a nap.At 1:30 p.m., Mrs. Guba noticed that the baby was perspiring.Checking later, she found her to be limp and not breathing.Mrs. Guba then called the "911" emergency number.Ashley was rushed to the emergency room of Fairfax Hospital, where she was pronounced dead.The diagnosis was infant sudden death syndrome.

On July 29, 1987, an autopsy was performed by Dr. Francis P. Field, which revealed imipramine poisoning as the cause of death.Imipramine is contained in the prescription drug Tofranil and for all practical purposes, the record reveals the two terms are used interchangeably.Police Investigator Healey told Mrs. Guba that the child had died from imipramine poisoning; Guba then gave the officer a Tofranil pill, which she stated she had just found under the microwave oven.The record further shows that Mrs. Guba stated she was not under a doctor's care, but that Tofranil had been given to her husband years ago in Atlanta.She also said she had thrown the Tofranil out a week before the tragedy; she then stated that the pills were thrown away on Monday or Tuesday.Ashley died on Tuesday, July 28, 1987.

At trial Dr. Henry Horn, a family practitioner, testified that he had prescribed inderal, cafergot and mepergan fortis for Mrs. Guba in March, 1986.She was given valium and 30 doses of Tofranil in June, 1986.The evidence further showed that Guba had received 100 doses of Tofranil on July 5, 1986, and various refills of the prescription up until the time of Ashley's death.

Prior to trial, various motions were filed and argued, one being a motion for discovery.After argument, a written order dated December 11, 1987, was entered, which provided, in pertinent part: "It is further adjudged that the Commonwealth supply the defendant with the time of the alleged offense as accurately as they are able to determine."This language was included in handwriting at the end of the order, initialed by the Court, pursuant to a ruling upon the request of the defense that the Commonwealth furnish information as to the time it was contended that the imipramine was ingested.A review of the transcript of the argument and the court's oral ruling leaves no doubt that the court intended that the Commonwealth would furnish any information available to it regarding the ingestion of the drug at "any time other than the time the child got there and left" on July 28.The Commonwealth's response was that the offense had occurred on July 28, 1987.

At trial, Dr. Anhn Huynh, a forensic toxicologist, testifying as a Commonwealth's witness, expressed the opinion that the imipramine had been ingested over a period of time, around three days or even longer.He described Ashley's condition as chronic, rather than acute intoxication, and expressed the opinion that between six to nine tablets had been ingested on the last day of the child's life.

Defense counsel argued that after receipt of the Commonwealth's response to discovery, he consulted a pathologist at Arlington Hospital regarding the need for expert testimony.He was advised...