People v. Barnwell

• Decision Date: 08 April 1975
• Docket Number: Docket No. 19717,No. 1,1
• Citation: 60 Mich.App. 291,230 N.W.2d 400
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Cynthia BARNWELL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 400

230 N.W.2d 400

60 Mich.App. 291

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Cynthia BARNWELL, Defendant-Appellant.

Docket No. 19717.

Court of Appeals of Michigan, Division No. 1.

April 8, 1975.

Released for Publication June 26, 1975.

Riley & Roumell by John F. Brady, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Appellate Chief Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and D. E. HOLBROOK, Jr., and O'HARA, ^* JJ.

O'HARA, Judge.

This is an appeal involving a term which has come to be known to medical doctors, psychiatrists, psychologists, social workers and the courts as a 'battered child' case. The term has gained sufficient professional acceptance to be utilized in a judicial opinion.

The child's mother, defendant and appellant herein, was convicted on both counts of a two-count information charging manslaughter, M.C.L.A. § 750.321; M.S.A. § 28.553 and cruelty to a child, M.C.L.A. § 750.136; M.S.A. § 28.331.

As our Supreme Court has said, times without number, it would serve no purpose to spread on the pages of reported cases the details of the evidence of injuries in some manner sustained by the child: burns, bruises, a limp, a temporary withdrawal psychologically, and ultimately death. The case was tried to the court after proper waiver of a jury trial.

Three claims of error are made. The cause of death is challenged. We address ourselves first to that issue. The evidence is circumstantial. While it is true that from time to time the child was in the temporary care and custody of others, primarily she was under the control of the defendant mother.

The defense claims that causality could only have been arrived at from impermissible 'inference upon inference'.

An autopsy was performed by a pathologist under the direction of an expert in this field eminently well qualified and the author of many publications on forensic pathology. Additionally, a neurosurgeon testified with great specificity as to all of his findings. He was subjected to searching cross-examination. Finally, the trial judge asked the key question:

'The Court: Doctor, I have one question I want to ask you. In your opinion, what was the cause of death?

'A. In my opinion, the cause of death was trauma, some injury.'

At this point it becomes crucial to define legally what this testimony was. In our view it was a fact, pure and simple. There was nothing inferential about it.

We hasten to add that standing alone this fact did not in the slightest degree implicate defendant. No inference as to defendant's guilt could be drawn from it.

It follows then that we must scrutinize the record to determine what inferences of defendant's guilt could be permissibly drawn from that established fact. We also must add that the expert testified also that an arteriovenous malformation, while not a cause of death, might have contributed to it.

We deem it essential, at this point, to make crystal clear that the Fact that the neurosurgeon testified to another possible contributing cause does not preclude the trial court from making its finding from the fact testified to by the expert that death was caused by trauma. This is particularly true of the case at bar because the trial judge again asked the following crucial question and received the following answer:

'The Court: What I want to get clear in my own mind, because the issue is very important in this case, is that the child didn't die directly from a breakdown of the congenital defect that you found there?

'A. No, I don't think so. I think it was a contributing factor.'

The foregoing testimony was also testimony of fact. The trier of fact was as free to accept or reject it as he was any other asserted fact.

Assuming arguendo the trier of fact believed the cause of death to have been trauma, still no suggestion or implication of the slightest nature could have been inferred that defendant was responsible therefor. She was still assumed to be innocent.

The next step is to search the record further for evidence of what did cause the traumatic injury.

There is an infinity of possibilities. Playground accidents, falls at home, injury on the streets, all and many others could explain a traumatic injury. However, there is positive, affirmative testimony in the record which, if believed by the judge, would rule out the accidental injury.

'Q. (Prosecuting Attorney): Now, is there a way, Doctor, of telling whether trauma or an impact was sustained as a result of a fall, or as a result of a blow to that particular part?

'A. Yes, there is. The location of an injury deep inside the brain * * * as the one noted in this case is not, in my opinion, the result of a fall. I don't see how that injury could have been sustained in any other fashion but a blow to the top of the head.'

The foregoing testimony was factual by a qualified expert permitted under the rules of evidence to give opinion evidence. The trier of fact was entitled to accept or reject it as he could testimony of any other facts.

We have now reached the point where there is Fact testimony to two things totally unrelated to any inference. First, the cause of death was trauma. Second, the trauma was inflicted by a blow to the head.

From these two facts the trial judge made two separate and distinct permissible inferences. The first was that the blow causing death was inflicted by the defendant. The second is that the defendant was responsible for the gross, if not almost sadistic, maltreatment of the child. Such separate and distinct inferences are in no way an inference upon inference.

We find it difficult to believe that the deceased child could have made up the answer to a question posed to her on one of her many admissions to the hospital as to how she sustained a burn on the inside of her leg. Her answer was, 'Mommy burned me'. We have reviewed the whole record and we are convinced it sustains defendant's guilt beyond a reasonable doubt on both counts.

The remaining claim of error is purely legal as opposed to testimonial. Appellant states it thus:

'Was appellant denied due process of law when the original information charged appellant with voluntary manslaughter and the prosecution was allowed to amend the information, after both sides had rested, to add the new charge of involuntary manslaughter for which appellant was convicted?'

In Michigan the crime of manslaughter is not statutorily defined in terms of elements and degree. The relevant statute reads as follows:

'Any person who shall commit the crime of manslaughter shall be guilty of a felony punishable by imprisonment in the state prison, not more than fifteen (15) years or by fine of not more than seven thousand five hundred (7,500) dollars, or both, at the discretion of the court.' M.C.L.A. § 750.321; M.S.A. § 28.553.

Thus we are dependent upon case law for the elements of the offense and the degrees thereof, if any. In a recent case the Supreme Court had this to...