Labastida v. State

• Decision Date: 20 December 1996
• Docket Number: No. 25685,25685
• Parties: Kriseya J. LABASTIDA, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1334

931 P.2d 1334

112 Nev. 1502

Kriseya J. LABASTIDA, Appellant, v. The STATE of Nevada, Respondent.

No. 25685.

Supreme Court of Nevada.

Dec. 20, 1996.

Hamilton & Lynch, Reno, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.

OPINION

STEFFEN, Chief Justice:

Appellant Kriseya J. Labastida's infant son died of injuries inflicted by his father, who cohabited with Labastida. Labastida insisted that she had no knowledge of the father's violent abuse. Labastida was acquitted of first-degree murder and child abuse, but convicted of second-degree murder and child neglect. The latter two convictions resulted in sentences of life in prison and a consecutive twenty years, respectively. Although Labastida insists that her convictions are infirm, we conclude that she was fairly tried and convicted and therefore affirm.

FACTS ¹

On November 20, 1992, Thunder Michael Lightfoot Strawser was born to Labastida, a twenty-four-year-old, first-time mother, and Michael Strawser. At the time, Labastida and Strawser cohabited in a small, poorly illuminated, downstairs apartment. Although all areas of the apartment were within hearing distance of the other areas, the bedroom could not be seen from the kitchen area.

Thunder lived for only seven weeks. At approximately 3:00 p.m. on January 9, 1993, the baby stopped breathing, and Labastida frantically called 911. When the paramedics arrived, one paramedic observed evidence of injury to the infant despite the dimly-lit environment of the apartment. The paramedic who carried Thunder from the bedroom to improved lighting in the kitchen, testified that he felt a "crackling" associated with injuries suffered by the child. In the kitchen, the paramedic observed bites and bruises in various stages of aging on the child's body. Shortly thereafter, the infant's battered, broken, and bitten little body was taken to A deputy coroner testified to seeing bruises on the baby's buttocks, marks on his face, and a "vivid" bite mark on the baby's foot. The pathologist who performed the autopsy noted many abrasions and skin breaks, extensive bruising covering fifty to seventy-five percent of the baby's face and body, bite marks on the baby's face, a massively enlarged chin, and a frenulum tear--at least twenty-four hours old--which was consistent with blunt, generally nonaccidental, trauma to the mouth. The pathologist also observed conspicuous and extensive bruising on the baby's buttocks, and injuries to the baby's penis and scrotum. In addition, she noted that the infant's skin was puffed out from the chin to the nipples, indicative of air dissecting through the lungs into the surrounding tissues (the cause of the "crackling" sound heard by the paramedic). X-rays revealed seventeen bone fractures that were at least a week old, including nearly all of the baby's ribs in the back, a finger, and three fractures of the right leg.

Washoe Medical Center, where the child soon died.

After paramedics took Thunder to the hospital, Labastida and Strawser voluntarily agreed to go with police investigators to the police station. According to police officers, Labastida appeared upset but was not hysterical.

The police first interviewed Strawser, who hesitantly admitted to committing some abuse and claimed that he concealed his actions from Labastida by abusing the baby behind closed doors or while she was asleep. Strawser stated that he began abusing the infant three weeks prior to his death by shaking him when Labastida was not in the room. He claimed that he convincingly lied to Labastida about the causes of the baby's apparent bruises and injuries, telling her that the baby had fallen off a bed and off the washing machine. Strawser also advised Labastida against obtaining medical assistance, encouraging her with indications that the baby was getting better and that through their prayers the baby would be healed.

After investigators interviewed Strawser and received a report from the coroner's office, they interviewed Labastida. Upon hearing that her baby died, Labastida began to cry and was visibly upset. Labastida told the investigators that Thunder cried incessantly and that she had taken him to a pediatrician a few days after his birth and then again two weeks later, believing that the infant had gas. Labastida also consulted a breast-feeding specialist because of an alleged belief that her baby was suffering from colic, and that a change in her diet might be helpful to the child.

Labastida attributed the bruises and lacerations on the baby's face, stomach, and neck to the baby's uncut fingernails and his habit of pinching himself. She ascribed other bruises on the child to such of her activities as tying his bootie too tight, touching his wrist, and leaving him in a swing too long, thus causing bruises on his buttocks. ² She claimed that she had only noticed the bruises the last three days of his life and believed that he was just a tender baby, easily subject to bruising. Labastida attributed the baby's difficult breathing and swollen glands to a cold. She indicated that she had wanted to take him to a hospital earlier that morning, but Strawser persuaded her that the child was getting better.

When an investigator mentioned that the infant had suffered bone fractures, Labastida initially opined that the broken bones resulted from the emergency CPR performed before taking the child to the hospital. She expressed total disbelief upon learning that the ribs in his back had been broken for some time prior to his death. Labastida told the investigators that she failed to recognize that Thunder's incessant crying was due to abuse by a man she naively trusted. Because Strawser changed the baby at night Labastida and Strawser were both charged with one count of murder, one count of child abuse causing substantial bodily harm, and one count of child neglect or endangerment causing substantial bodily harm. Subsequently, the State also filed a notice of intent to seek the death penalty against both Strawser and Labastida. ³

she claimed not to have seen any abuse, but remembered that the baby would scream at night. Labastida admitted to seeing Strawser playfully pinch and bite the baby's skin. She also observed Strawser "manhandling" or burping Thunder too roughly (hitting the baby's back with a closed fist) on one occasion, and on other occasions, tossing him up in the air roughly, but she disclaimed ever seeing Strawser hit, shake, bite, throw or otherwise injure the baby.

Prior to the commencement of trial, Strawser entered a plea of guilty to all three counts. Labastida, outside the jury's presence, unsuccessfully challenged the sufficiency of the Information on grounds that the aiding and abetting charge did not separately define the acts committed by either defendant.

At trial, the State called several medical experts who described the torturous, painful, and sometimes bloody abuse suffered by the tiny victim. An expert on bites described the apparent bruising and lacerations that many of the severe bites must have immediately produced. He testified that a nursing mother should have seen the severity of the injuries to the baby's mouth, neck, and face and that one who changed and bathed the baby should have noticed the obvious bites on his stomach and the gruesome bites on his buttocks.

The pathologist who performed the autopsy testified that a nursing mother, one changing diapers, and one trained in anatomy and physiology (as Labastida allegedly was) would have seen the injuries to the baby's mouth and throat and other external injuries. The pathologist indicated that "the baby actually died from overwhelming infection due to seepage of contaminated debris Labastida's landlady, who lived upstairs, testified that Labastida rarely left the small basement apartment. ⁵ The landlady testified that she heard the painful sounding screams from the baby four or five times during the last two weeks of his life. The morning after a night when the baby screamed for two hours, the landlady tried to convince Labastida to take the baby to the doctor, but Labastida sternly insisted that the baby only had the colic. During this visit, the landlady recalled Labastida staring intensely and very fiercely at Strawser. Labastida, however, never spoke harshly of Strawser to the landlady.

into the chest cavity." ⁴

Strawser also testified, admitting to the abuse and claiming that Labastida did not recognize that the baby was being abused and that he convincingly concealed his actions from her and lied to her about the cause of the child's injuries. ⁶ Labastida did not testify at trial.

During the jury's deliberations, the clerk of the court inadvertently delivered excluded evidence to the jurors. This "nonevidence" consisted of a magazine with a baby on the cover; the baby was defaced, with a goatee, angled eyebrows, and horns. Also written on the cover was a new caption stating, " 'Devil Babies.' Do you have one?" The magazine was found in Labastida's apartment several weeks after Thunder's death and was given to the police. The trial court had rejected the magazine as evidence because there was no foundational basis for its admission. The jurors saw the cover of the magazine, but did not peruse its pages. The parties' counsel were informed of the error later that evening. The district court convened the jurors and advised them that the magazine was not admitted into evidence because it was not connected to Labastida and directed the jury not to consider the magazine's defaced cover. The jurors agreed to disregard the magazine. Labastida unsuccessfully moved for a mistrial, arguing that the magazine's cover was highly prejudicial.

Two other incidents of note also occurred: First, as the jury was breaking for lunch, three alternate jurors were escorted into...