Hodgins v. State, 97-169

• Decision Date: 16 July 1998
• Docket Number: No. 97-169,97-169
• Citation: 962 P.2d 153
• Parties: Travis William HODGINS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 153

962 P.2d 153

Travis William HODGINS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 97-169.

Supreme Court of Wyoming.

July 16, 1998.

Sylvia L. Hackl, State Public Defender; and Donna D. Domonkos, Appellate Counsel, for Appellant(Defendant).

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General, for Appellee(Plaintiff).

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and TAYLOR, ^* JJ.

MACY, Justice.

Appellant Travis Hodgins appeals from the judgment and sentence which was entered after a jury convicted him of aggravated assault and battery.

We affirm.

ISSUES

Hodgins requests our review of the following issues:

ISSUE I.

Was the appellant denied a fair trial when the State introduced hearsay testimony to buttress its expert's opinion that Tyler's injuries were caused by nonaccidental trauma?

ISSUE II.

Was the appellant denied a fair trial as guaranteed by the due process clauses of the United States and Wyoming constitutions because of prosecutorial misconduct during the opening and closing argument?

ISSUE III.

Did the trial court abuse its discretion when it ordered the appellant to pay for the long term medical costs of Tyler Hodgins when the appellant has no reasonable ability to pay $2,116.66 per month while incarcerated?

FACTS

Tyler Hodgins was born to Hodgins and his wife on September 19, 1995, approximately five weeks before he was due. Being otherwise healthy, Tyler was born with a clubfoot, and he also developed a mild case of jaundice. Both conditions were being treated when Tyler was sent home from the hospital.

On October 10, 1995, when Tyler was twenty-one days old, his mother left him in Hodgins' care while she attended a class from 6:00 p.m. until 9:00 p.m. Before she left for her class, Tyler was fine. Upon returning home, she noticed that Tyler was irritable, would not eat, appeared limp, and seemed to be having trouble breathing. Hodgins told her that her daughter, who was At the hospital, the doctors determined that Tyler had a diffuse cerebral edema which involved nearly two-thirds of his brain tissue. They decided to have him flown to Children's Hospital in Denver, Colorado, for specialized treatment.

then approximately eighteen months old, had fallen on Tyler while he was lying on the couch. Hodgins called the Riverton Memorial Hospital emergency room and described Tyler's symptoms to the nurse. Because Tyler was having respiratory problems, the nurse told Hodgins to immediately bring him to the hospital. Apparently, Hodgins interpreted that to mean they should watch Tyler and bring him to the emergency room if he got worse. The next morning, Tyler's condition was noticeably worse. He was very pale, his right eye was droopy, his breathing was shallow, and he screamed as if he was in pain when his mother picked him up. He was taken to the hospital that morning and was admitted at approximately 9:45 a.m.

In Denver, tests revealed that Tyler's brain was dying due to its extreme swelling. Facts which were significant to the diagnosis were that Tyler suffered a severe cerebral edema (swelling of the brain), questionable subarachnoid hemorrhaging (blood between the space of the skull and the lining of the brain), preretinal hemorrhaging (bleeding at the back of the eye), and a subdural hematoma (a collection of blood) without first exhibiting signs of hypoxia (not enough oxygen to the brain). Accordingly, the doctors determined that the most probable cause of Tyler's condition was nonaccidental trauma or, more specifically, shaken baby syndrome. The later discovery of leg and rib fractures was consistent with the diagnosis.

Hodgins explained to the doctors that Tyler's half-sister fell on him while he was lying on the couch. He also related an incident which had occurred one or two days earlier when the sister had either tipped Tyler's cradle over or dropped Tyler while she was lifting him out of the cradle. The doctors believed that these events would not have caused the type of injuries that Tyler was suffering from.

Hodgins was charged with one count of aggravated assault and battery under WYO. STAT. § 6-2-502(a)(i) (1997). He was convicted by a jury and ordered to serve a nine- to ten-year term of imprisonment in the Wyoming State Penitentiary. He was also required to pay a maximum sum of $2,116.66 per month for Tyler's long-term care. Hodgins appeals from his conviction.

DISCUSSION

A. Hearsay Testimony

Hodgins complains that, while one of the prosecution's expert witnesses, Kent Hymel, M.D., was testifying, the prosecution introduced hearsay testimony through two exhibits. The State counters that the challenged exhibits were admissible under the business records exception to the hearsay rule.

At the pretrial conference and motions hearing in this case, the defense stipulated to the admission of the medical reports and records offered by the prosecution, indicating that they were admissible under the business records exception to the hearsay rule. At the trial, the defense did not object to the exhibits being introduced.

Hodgins specifically complains about Dr. Hymel's references to the prosecution's exhibit number four and the defense's exhibit number 548. With regard to the defense's exhibit, Hodgins challenges the following exchange which occurred between the prosecutor and Dr. Hymel:

Q. (BY [THE PROSECUTOR] ) Dr. Hymel, I'm going to hand you what I've--or what has been admitted as Defendant's Exhibit 548. That's the handwritten op[h]thalmological--the handwritten eye consult, isn't it?

A. Yes, it is.

Q. And that document has no date on it, as I think we determined.

A. Not that I'm--not that I see either.

Q. And this eye specialist notes the preretinal hemorrhages, does [he] not?

A. Yes. But ... I don't know this person. I don't know if he's an eye specialist. He's answering in writing an op[h]thalmology report. I'm presuming he is, but I don't know.

Q. Okay. The person who wrote this down, who we assume, since we've--we suggested it came from Children's and it pertains to Tyler--this person notes the preretinal hemorrhages that you referred to yesterday, correct?

A. Yes, he does.

Q. And those are the ones--among those constellation of eye findings, which you told the jury recent literature and in your experience is--that are just a dead ringer, a dead telltale sign for inflicted trauma; is that correct?

A. I didn't use those words--

Q. I know you didn't.

A. --"dead ringer" or "telltale sign," and I don't want to use the words "inflicted trauma." I'm saying they're highly specific for severe trauma, accidental or inflicted.

Q. All right. All right. But this person has an opinion, right, on the second page.

A. Yes. This author wrote an opinion.

Q. And you've told us you don't know this person.

A. Correct.

Q. This is someone else that you're not familiar with at Children's.

A. That's correct.

Q. And what was that person's opinion?

A. "Compatible with non-accidental trauma."

Q. So in other words, another medical person is saying the same thing you're saying.

A. It appears so.

(Emphasis added.) Regarding the prosecution's exhibit, Hodgins complains about the following discussion which the prosecutor had with Dr. Hymel:

Q. (BY [THE PROSECUTOR] ) With respect to State's Exhibit 4, which is the eye consultation, Doctor. In the assessment, the doctor does in fact note those possible causes for the hemorrhaging, retinal hemorrhaging, correct?

A. Yes, he does.

Q. And then there's the last statement [which] says--or it's not the last, Doctor--yes, it is--Dr. Sargent agreed with the above findings stating that, "The most likely etiology was non-accidental trauma."

Is that correct?

A. That's what's written here.

Q. Do you think it's fair, then, from this document, to take it that that was Dr. Sargent's opinion as the most likely cause?

A. He signed it.

Q. And if I'm reading this right, he did not actually dictate this note, did he? It appears that Dr. Dimartelli actually dictated the note because of the statement, "I reviewed these findings with Dr. Sargent, and he agrees."

A. It appears that. But Dr. Sargent signed it, and therefore is responsible for what is says.

Q. Absolutely. And that's one more medical person's opinion that the most likely cause was non-accidental trauma, right?

A. It appears that way.

Q. Officially. And it's possible to conclude that both these op[h]thalmologists had the same opinion.

A. That's possible. But only one person signed it.

(Emphasis added.)

Because the defense allowed the challenged testimony to be admitted into evidence without objecting, we must review Hodgins' claimed error under our plain error standard.

A three-part test has been established for determining whether an error may achieve the status of plain error. First, the record must be clear as to the incident which is alleged as error. Second, the party claiming that the error amounted to plain error must demonstrate that a clear and unequivocal rule of law was violated. Finally, that party must prove that a substantial right has been denied him and as a result he has been materially prejudiced.

Bradley v. State, 635 P.2d 1161, 1164 (Wyo.1981). See also Johnson v. State, 936 P.2d 458, 465 (Wyo.1997).

W.R.E. 803(6) is a firmly rooted exception to the exclusionary hearsay rule. That rule allows business records which meet certain requirements to escape the exclusionary nature of the hearsay rule.

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

....

(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was...