In re Fero

• Decision Date: 01 February 2018
• Docket Number: No. 92975-1,92975-1
• Citation: 190 Wash.2d 1,409 P.3d 214
• Parties: IN RE the Personal Restraint of Heidi Charlene FERO, Respondent.
• Court: Washington Supreme Court

190 Wash.2d 1

409 P.3d 214

IN RE the Personal Restraint of Heidi Charlene FERO, Respondent.

No. 92975-1

Supreme Court of Washington.

Argued June 6, 2017

Filed Feb. 1, 2018

Rachael Rogers, Clark County Prosecuting Attorney, P.O. Box 5000, 1013 Franklin Street, Vancouver, WA, 98666-5000, for Petitioner.

J. Christopher Baird, Margaret Cecelia Hupp, Perkins Coie LLP, 1201 3rd Ave., Ste. 4900, Seattle, WA, 98101-3099, Kate Huber Innocence, Project Northwest, P.O. Box 85110, Seattle, WA, 98145-1110, for Respondent.

Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., 206 10th Ave. S.E., Olympia, WA, 98501-1311, Mary Kathleen Webber, Snohomish County Prosecutor's Office, MSC 504, 3000 Rockefeller Ave., Everett, WA, 98201-4061, as Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys.

Taylor S. Ball, Attorney at Law, 1201 3rd Ave., Ste. 2200, Seattle, WA, 98101-3045, as Amicus Curiae on behalf of The Innocence Network.

Neil Martin Fox, Law Office of Neil Fox, PLLC, 2125 Western Ave., Ste. 330, Seattle, WA, 98121, as Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

Jeffrey Erwin Ellis, Law Office of Alsept & Ellis, 621 S.W. Morrison St., Ste. 1025, Portland, OR, 97205-3813, as Amicus Curiae on behalf of National Association of Criminal Defense Lawyers.

Cindy Arends Elsberry, Washington Defender Association, 110 Prefontaine Pl. S., Ste. 610, Seattle, WA, 98104-2626, as Amicus Curiae on behalf of Washington Defender Association.

González, J.¶1 On a January night in 2002, Heidi Charlene Fero called emergency responders seeking help for an injured child. Minutes later, paramedics arrived and found fifteen-month-old Brynn Ackley unconscious and limp, with bruising on her face. Brynn's treating physicians later determined that she had suffered severe and debilitating injuries consistent with shaken baby syndrome : retinal hemorrhaging (bleeding in the eyes), cerebral edema (brain swelling), subdural hematoma (brain bleeding ), a leg fracture, and large bruises on her pelvic and vaginal areas. 2 Verbatim Report of Proceedings (VRP) (Mar. 11, 2003) at 183-85, 191; VRP (Mar. 13, 2003) at 13-14. Fero was charged and convicted of first degree child assault. In 2014, many years after her judgment became final, she filed a personal restraint petition contending that the medical community's evolving understanding of shaken baby syndrome is newly discovered evidence that would undermine the expert evidence as to the causes and timing of Brynn's injuries. We hold that this evidence would not probably change the result at trial. In re Pers. Restraint of Brown , 143 Wash.2d 431, 453, 21 P.3d 687 (2001). We therefore dismiss Fero's petition.

BACKGROUND

¶2 On January 7, 2002, Fero was babysitting Brynn and her four-year-old brother, Kaed, as she had occasionally done since October or early November 2001. At around 2:00 p.m. that day, Brynn and Kaed were dropped off at Fero's home by their mother, Breanne Franck. Fero's then-boyfriend, Dustin Goodwin, watched Kaed and Brynn as well as Fero's children, Rachel and Derrick. Fero returned home around 3:00 p.m. and Goodwin left for work. For the rest of the night Fero was alone caring for the four children.

¶3 Around 7:45 p.m., Fero called Jason Ackley, Brynn and Kaed's father. She reported that Kaed had pushed his sister's head into a wall and Brynn could not walk on one leg. Fero asked how best to discipline Kaed. A few hours later, Fero called her mother, panicked because Brynn was unresponsive. Fero's mother instructed her to call 911 immediately.

¶4 When paramedics arrived, they found Brynn "limp, like a rag doll" with obvious bruises on her face and chest, and blood in her mouth. 1 VRP (Mar. 11, 2003) at 39-41. Fero explained to the emergency responders that she had not personally witnessed Brynn's injuries and her daughter told her Kaed had swung Brynn into the wall "like a baseball bat." Id. at 40. While in transport to the hospital, paramedics observed Brynn's facial bruising grow rapidly.

¶5 At the hospital, multiple physicians examined and treated Brynn. One emergency room doctor reviewed her CAT (computed axial tomography ) scan, which showed severe brain injury caused by a blood clot, bleeding, and swelling; another physician discovered hemorrhaging in both her eyes and another found she had a displaced fracture of her left tibia, bruising on her pelvis, and laceration on her vagina. Brynn underwent emergency surgery to remove the blood clot and a piece of bone from her skull to allow her brain to swell. Later, Brynn's therapists predicted that as a result of her trauma, she would likely never live without the need of a caregiver.

¶6 Fero was charged with first degree child assault. At trial, the defense argued that Kaed caused Brynn's injuries. Fero testified that Kaed was difficult to care for and was often aggressive toward his sister.¹ Kaed's father echoed this characterization, clarifying that while Kaed sometimes pushed and pinched Brynn, he never injured her and described the behavior as "hard" playing. Id. at 126-30, 144.

¶7 Goodwin, Fero's then-boyfriend, testified that on January 7, 2002, Brynn's mother had carried the infant into the house in her car seat—an unusual occurrence according to Goodwin because normally the child was brought in first, her mother then returning to the car to retrieve the car seat separately. Goodwin also asserted that during his brief time watching the children until Fero returned from work, Brynn appeared upset, refused to play, and cried whenever her leg was touched.

¶8 Unlike Goodwin, Breanne Frank testified she saw no bruises or injuries to the child when she brought her to Fero's apartment. Frank stated that her daughter had no trouble walking and that she carried Brynn into the home as usual, retrieving the car seat after. Regarding her son, Frank admitted that she had heard about Kaed pinching his sister and had seen him kick and jump on her. She acknowledged Kaed could be mean to his sister, but Frank thought it was only sibling rivalry that caused slight bruises and never injured Brynn.

¶9 Fero testified to the timeline of Brynn's injuries and remarked on the little girl's behavior while at Fero's home. She explained that Brynn was "distant" and remained sitting wherever Fero set her instead of following Fero around as she had in the past, 5A VRP (Mar. 17, 2003) at 75.

Fero also stated she gave Brynn a bath that evening, noticing a large bruise on the child's pelvis which "disturbed" her. Id. at 77. Fero dressed Brynn and put her in the playpen downstairs where Kaed and Rachel were watching television. Fero then took her son, Derrick, upstairs. While bathing Derrick, Fero's daughter reported that Kaed was hurting Brynn; Fero checked downstairs and saw Kaed on the couch and Brynn in her crib. Fero went back upstairs to tend to her son. Soon Rachel returned to her mother's side saying that Kaed was once more hurting his sister by banging Brynn's head against the wall.

¶10 Downstairs, Fero saw Kaed scramble out of Brynn's crib; the little girl was on her hands and knees, "shaking and trembling more than [Fero had] seen a child do before." Id. at 82. Fero picked her up and saw a small amount of blood in her mouth. She asked Kaed what he had done and he responded that he was a Power Ranger. After comforting Brynn, Fero said the infant closed her eyes, relaxed, and appeared to fall asleep.

¶11 Fero then put Brynn on the futon and called Ackley at about 7:45 p.m. Both Fero and Ackley testified that she told him about Brynn's inability to walk on one leg and seeing Kaed push Brynn's head into a wall. But Fero did not mention any bleeding or bruising, according to Brynn's father; moreover, Ackley testified that Brynn was running around with no trouble and had no bruises when he left for work that day. Goodwin's testimony largely agreed with this version of events, adding that Fero had told him about the bruises and bleeding in Brynn's mouth.

¶12 After calling Ackley, Fero proceeded to clean the house, checking on the children intermittently. At approximately 9:45 p.m., Fero noticed Brynn's eyes were lidded and that something was not "right." Id. at 88. When her attempts to wake Brynn were unsuccessful, Fero called her mother and then 911.

¶13 Police arrived at Fero's home after Brynn was taken to the hospital. Fero provided a written statement explaining how Kaed jumped out of the crib and that Fero saw blood in Brynn's mouth; she also stated that she checked on Brynn "in a few minutes" after putting her on the futon and found she was unresponsive. Id. at 102-03. Fero testified that she did not remember writing the statement or telling an officer that five minutes had passed from when she put Brynn on the futon and when she noticed Brynn's eyes were half open. Further, Fero admitted to telling the 911 operator that Kaed was " 'chasing [his] sister' " and that when she came downstairs, she saw Kaed bash Brynn's head into a wall. Id. at 98-99. Fero said she was too upset to think clearly and so could not remember saying these things to the investigators.

¶14 Kaed and Rachel also testified at trial. Six-year-old Rachel stated that Brynn was injured when Kaed "push[ed] her into the wall" and hit her with toys. Id. at 43. She testified that when she saw this, she went upstairs to tell Fero, who checked on the children downstairs. Rachel remembered telling the police officer that Kaed hit Brynn with toys, and that no one had instructed her to say it. Rachel also told police that Brynn was running around playing the day she was injured.

¶15 Five-year-old Kaed testified that he heard Brynn crying upstairs the night she was hurt. Kaed stated that he went upstairs and saw Fero giving a bath to Brynn and another child. He also said that Fero took Brynn downstairs and laid her on the couch. Later, according to Kaed, Fero yelled at him because she believed he did something to the little girl. Kaed testified that he...