Limber v. State

• Decision Date: 30 October 1978
• Docket Number: No. CR78-103,No. 2,CR78-103,2
• Citation: 572 S.W.2d 402,264 Ark. 479
• Parties: Andrew J. LIMBER, Jr. and Darlene Ann Warburton Limber, Appellants, v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

Page 402

572 S.W.2d 402

264 Ark. 479

Andrew J. LIMBER, Jr. and Darlene Ann Warburton Limber, Appellants, v. STATE of Arkansas, Appellee.

No. CR78-103.

Supreme Court of Arkansas, Division No. 2.

Oct. 30, 1978.

Bill Webster, Frank Lady, Jonesboro, for appellants.

Bill Clinton, Atty. Gen., by Ray E. Hartenstein, Asst. Atty. Gen., Little Rock, for appellee.

HICKMAN, Justice.

Andrew J. Limber, Jr. and Darlene Ann Warburton Limber were jointly charged and tried for the second degree murder of Michael Brad Warburton, the nineteen month old male child of Mrs. Limber. An amended information charged each as an accomplice of the other, responsible for the other's actions whether committed in the presence or absence of the other. Their cases were tried to a Craighead County jury and he was found guilty of second degree murder, and she was found guilty of manslaughter; he was sentenced to twenty years and she was sentenced to five years in the Arkansas Department of Correction. They have both appealed their convictions alleging numerous errors. However, we find no error requiring reversal of their convictions.

The State presented thirteen witnesses in this trial and each defendant took the witness stand. In addition, Limber called one character witness.

Essentially the State's charge and proof was that the child died as result of child abuse caused by the two appellants, acting together, or separately, but both responsible for the abuse. The defendants explained that any injuries the minor child suffered were caused by accidents and not as a result of intentional abuse. Certain injuries could not be explained by them.

Limber and Mrs. Limber lived together for a period of seven or eight months before the child died on April 21, 1976. They were not married until after charges were filed in this case. She has one other minor child, Christian, about three years old. During the period of time in question they lived in two places, Paragould and Jonesboro.

Several witnesses testified that prior to Brad's death they had observed bruises on his face and a bandaged leg. Limber's sister, Ollie Decker, testified that on several occasions she noticed that Brad was bruised or injured. About two months before his death, he had bruises on his face which covered the side of his face, and he appeared to be in quite a bit of pain. She was told that he had fallen on a tricycle. About six weeks before his death, he was bruised around his waist; she was told by Mrs. Limber that he had fallen off the bed or something. About two or three weeks before his death, he had a bandage from the ankle to above his knee. The old bruises still showed; he appeared to be in pain and didn't want anybody to touch him.

John Westmoreland, an investigator for the Arkansas State Police, testified that a few hours after Brad's death he viewed the body in the morgue and there were numerous injuries on the body. He stated there were blue bruises on the face, forehead, side of the neck, arms, legs and hands and what appeared to be cigarette burns on the right side of the forehead and neck. He also stated that there were cuts on the forehead and under the chin; that the end of the penis and the scrotum were blue and bruised; that there was a red, inflamed area encircling the base of the penis. He described the stomach as scratched, swollen and tight like a balloon. Photographs graphically corroborated the testimony of the investigator.

Westmoreland also testified that Mrs. Limber gave several statements during four interviews. Since this was a joint trial, any reference to Limber was stricken from the statement. In the first interview she stated that she had seen another person hit Brad on the mouth causing it to bleed; and, that in her opinion, Christian had been hit too hard on the buttocks. In the second interview, she stated that Brad had been spanked too hard; that the spankings gradually got worse; and that the spankings were done by another person for discipline purposes relative to potty training. She explained that Brad's penis was cut when he was jerked off a potty seat. She said that Brad's hands had been bruised when Christian ran over them with a tricycle, and that he received scratches on the neck, a cut on the head, and a bump on the forehead in a car accident on April 17th. She stated that on April 20th, the day before he died, he fell off a hobby horse and cut his chin, and also fell off the bed. She also observed another person kick him between the rectum and testicles.

She had no explanation for the internal and external stomach injuries, nor for bruises along the spine, on the back of his head and legs. Neither did she explain why she allowed this to go on, nor why she failed to take preventive measures.

Another investigator for the Arkansas State Police, David Davidson, interviewed Limber the day Brad died. He testified that Limber explained that the child had been in five minor accidents and any injuries he suffered were as a result of the accidents. On April 17th, Limber suddenly stopped the car, and Brad fell from the back seat into the floor where an entrenching tool and some pop bottles were laying. A day or two later Brad fell into the floor of a car that Limber's father was driving when he made a sudden turn. The bruises on the hands were caused when Christian ran over them with his tricycle about a week before the child's death. On April 20th, Brad cut his chin when he fell off a toy horse; and, he hit the back of his head when he fell off the bed.

Davidson said Limber stated that he didn't know how Brad's leg was injured; that Limber offered no explanation for certain injuries on the child's legs, arms, genital area, and internal organs. Limber did admit that he spanked both children with his hands, and that he spanked Brad about once a week on the buttocks leaving a bruised impression of his four fingers because Brad was wetting the bed every other night. He also admitted that he had a "good temper if someone walked on him", and that he and Mrs. Limber fussed about the children.

A doctor, who was qualified as an expert witness in the field of forensic pathology, testified that this was a classic case of child abuse. He testified that no part of the body was uninjured, and described "innumerable" injuries in great detail. Bruises over the spine created a "line of damage", and were especially obvious; these bruises were of varying ages. There was a cut on the chin less than a week old which should have been sutured but wasn't. There were several abrasions on the face, and the hands were "remarkedly altered by bruises especially over the extensor surfaces" and palms. There were extensive fractures of the ribs on both the right and left sides, which occurred three weeks to 120 days prior to death. Although the doctor could not state positively that the fractures occurred at different times, he said there was evidence to that effect. The injury that fractured the right ribs also caused fibrous scarring of the covering of the liver which adhered to the abdominal wall.

The doctor also described other injuries which he characterized as unusual: a lesion on the neck which had the appearance of a cigarette burn; a constricting lesion around the base of the penis, and cuts and bruises on the head of the penis; and two "very major contusions" on the head which were sustained approximately one to two weeks before death. An autopsy revealed massive hematomas in the scalp; he described these injuries as potentially fatal. (The doctor testified that there were more than twenty head injuries, including these two.)

The doctor stated, however, that the most significant injuries, in addition to the potentially fatal head injuries, were those to the abdomen. He testified that approximately one and one-half to three weeks prior to death the small intestine had been lacerated by a powerful, blunt trauma, and that the force necessary to cause such an injury was comparable to a "blow of a fist or something like that from a powerful adult, or a shoe." This injury also damaged the left adrenal gland and the pancreas. He further testified that the stomach would begin to swell within a day or two of such an injury, and was associated with severe pain, somewhat like that induced by an untreated gunshot wound. He also noted that this injury and the injury which caused the fractured ribs did not occur at the same time.

The doctor said that although the immediate cause of the child's death was peritonitis and sepsis caused by a ruptured intestine, it was his diagnosis that all the innumerable injuries were due to numerous and multiple episodes where the child was beaten. In answer to a hypothetical question by the prosecuting attorney, the doctor stated that even if the child were involved in the several accidents described by the defendants, those accidents would not have caused all the injuries.

Evidence was admitted that the other child, Christian, had both arms broken in an incident that occurred in the home on about the 22nd day of November, 1975. There was a slight conflict in the testimony regarding how this incident or accident occurred. One witness, however, testified that he had been told by Limber that the child had been pulled between the parties, Limber and Mrs. Limber, in an argument about putting the child to bed.

A Service Specialist for Arkansas Social Services testified that as a result of this incident a "protective service case" was opened by Social Services. During her investigation of the incident, both defendants told her that Christian's arms were broken while Limber was playing with him.

Mrs. Limber's testimony regarding Christian was that she and Limber were sitting on the...