People v. Dellinger

Citation209 Cal.Rptr. 503,163 Cal.App.3d 284
CourtCalifornia Court of Appeals
Decision Date28 December 1984
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Leland Roy DELLINGER, Defendant and Appellant. G 000570.
OPINION

WALLIN, Associate Justice.

A jury found appellant, Leland Dellinger, guilty of first degree murder of his two year old stepdaughter, Jaclyn. The trial court denied Dellinger's motion for a new trial, but reduced the conviction to second degree murder. Since several of the errors pointed out by Dellinger prejudiced his ability to receive a fair trial, the conviction must be reversed.

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On May 29, 1979, Dellinger picked up Jaclyn from a babysitter. When Diana Dellinger Pena (Pena), her mother, arrived home from work shortly after 6 p.m., Dellinger called for her to hurry. From the top of the stairs she saw Dellinger talking on the telephone and bending over Jaclyn, who was lying unconscious on the kitchen counter. A pan was on the stove and the gate above the stairs was open. Pena asked if Jaclyn was breathing. Dellinger began to cry, banged the counter with his fist, and said, "Jackie, why are you doing this to me?"

Paramedics arrived at the apartment at 6:13 p.m. Dellinger was administering mouth to mouth resuscitation. The paramedics rushed Jaclyn to the hospital where she died at 7:45 p.m.

The police questioned Dellinger about Jaclyn's injuries. He stated that after returning home with Jaclyn, he began preparing dinner and left her watching television. He heard a thud and rushed out of the kitchen to find Jaclyn lying on the first landing of the carpeted staircase. He immediately moved her to the kitchen counter and called the paramedics. He admitted giving her wine that afternoon. Pena testified that upon returning to the apartment, she saw a baby bottle "pretty much full" of wine. The toxicologist found no alcohol in Jaclyn's blood.

After completing the first autopsy, Dr. Richard Fukumoto, a pathologist, determined the major cause of death was swelling of the brain due to blunt force trauma to the head, with a skull fracture. He ruled the cause of death was accidental. There was evidence of a spiral type fracture of the lower left leg probably caused by a twisting motion exerted by another person. Three months later toxicological results were received by the coroner showing the presence of cocaine in Jaclyn's blood and large quantities in her liver and stomach. Dr. Fukumoto then determined that cocaine was probably a contributing cause of her death. He contacted Dr. Thomas Noguchi, Coroner for Los Angeles County, who consulted with Dr. Carley Ward, a biomedical engineer. Together they conducted a further investigation into Jaclyn's death.

As a result of her investigation, Dr. Ward concluded the force of a fall down the stairs could not have caused the injuries Jaclyn suffered. Dr. Fukumoto thereafter recharacterized the cause of death as criminal and Dr. Noguchi concurred. At trial, Dr. Noguchi testified the injuries were not caused by a fall down the stairs. A second autopsy in June of 1980, showed a contusion of the cervical spinal cord which probably resulted from the same blunt force causing the head injury.

The defense produced two experts to testify that Jaclyn could have received her injuries from a fall down the stairs: Dr. Werner Goldsmith, a mechanical engineer and impact specialist, and Dr. Irving Root, a pathologist for the San Bernardino County Coroner's Office.

Jaclyn's babysitter was allowed to testify that one day in April 1979, she noticed a purplish handprint on Jaclyn's lower back. When Dellinger picked up Jaclyn that afternoon, he said he had spanked Jaclyn during the night but did not realize how hard he hit her until he saw the bruise the next morning.

The babysitter also testified that three weeks before her death, Jaclyn could not walk. The babysitter took Jaclyn to the doctor and a cast was put on her left leg. Ten days later the cast was removed, but Jaclyn continued having trouble walking. She had always been clumsy. Pena testified that Jaclyn could not walk because of new orthopedic shoes.

Pena and Dellinger were married five months before Jaclyn's death and Dellinger had begun proceedings to adopt Jaclyn. Pena was allowed to testify Dellinger used cocaine before they were married but she had no knowledge of his using cocaine since moving into the apartment. She assumed he was no longer using it. She further testified that about two months before Jaclyn's death, Dellinger gave Jaclyn wine to calm her down after she complained of pain in her leg. Pena did not use cocaine and denied ever giving Jaclyn narcotics or alcohol.

The apartment manager had not wanted the Dellingers to move into the apartment because the stairs were dangerous for a small child. However, he relented when Dellinger installed a latticework gate.

In the fall of 1979, Dellinger submitted to a polygraph examination at the Orange Police Department. The polygraph examiner determined Dellinger appeared truthful in his denial of the offense. After an evidentiary hearing, the trial court refused to admit the examiner's testimony.

I

Was a proper foundation established for admission of a biomedical engineer's expert opinion on the amount of force needed to sustain the injury to the child's head?

Dellinger objected to the introduction of Dr. Carley Ward's expert opinion as a biomedical engineer. He contends the People failed to meet their threshold burden of proving the reliability of the underlying scientific techniques. After a lengthy evidentiary hearing the trial court found the field of biomechanics was not new and introduction of the testimony was supported somewhat by Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 169 Cal.Rptr. 66. Dr. Ward used two techniques to determine the amount of force Jaclyn's head could have sustained if she had fallen down the stairs: anthropomorphic dummy experiments and finite element analysis.

1. The Anthropomorphic Dummy Experiments

Dr. Ward obtained an anthropomorphic dummy similar to Jaclyn in height and weight. She went to the apartment where the injury occurred and had a police officer drop the dummy down the stairs from many different positions. Dr. Ward determined Jaclyn must have fallen backwards to incur her head injuries. She also concluded Jaclyn could not have fallen further than the fifth step without being pushed. The fifth step was selected as the site of the worst impact. She did not stage any falls from the railing above the stairs.

The dummy had a special metal, metnite, on the back of its head. From the indentations in the metal, Dr. Ward determined the amount of force the head sustained on impact. She measured the indentations and then referred to a chart prepared by General Motors. The chart indicated the force from the test falls was 17.95 pounds per square inch (p.s.i.). However, relying on "known injury criteria," she determined it would take 34 p.s.i. to cause the brain damage and skull fracture suffered by Jaclyn. She concluded from the dummy experiment that Jaclyn could not have sustained her injuries from a fall down the stairs.

2. The Finite Element Analysis

Dr. Ward verified her findings with another procedure, a finite element analysis. The characteristics of a structure (the brain and skull in this case) were fed into a computer, a force was mathematically applied, and the computer then predicted the pressures and stresses in the brain and skull. The force used in the analysis was the impact force developed by Ward at the apartment. Again Dr. Ward's work indicated the stress Jaclyn would have received from a fall down the stairs could not have resulted in brain injury or skull fracture.

The seminal case in determining the foundational requirements for introduction of expert opinion based on new scientific techniques is People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240. 1 Kelly emphasizes it is not our task to determine the accuracy of the proffered scientific techniques, but only to assure that the People meet the burden of showing a scientific consensus supporting their use at this time, the qualification of Dr. Ward to give an opinion on the subject, and the scientific validity of the procedures used. (Id., at p. 30, 130 Cal.Rptr. 144, 549 P.2d 1240.)

The Attorney General, echoing the trial court's finding, argues Kelly is not applicable because the field of biomechanics is not new, relying on Pineda v. Los Angeles Turf Club, supra, 112 Cal.App.3d 53, 169 Cal.Rptr. 66. However, neither the reliability of the field of biomechanics nor the qualifications of the expert were challenged in Pineda and the court never ruled on the foundational issues. The expert, who referred to principles of biomechanics, also based his opinion on the statements of five eyewitnesses, and a videotape of the accident. Pineda simply did not purport to accept the scientific validity of the general field of biomechanical engineering.

No one took home movies of Dellinger babysitting that afternoon nor were there any eyewitnesses to aid Dr. Ward in her evaluation. Consequently, we must apply the three-part Kelly test to determine the foundational reliability of both the anthropomorphic dummy experiments and the finite element analysis. The People failed to meet their burden of proof on each of the three foundational elements.

First, "the reliability of the method must be established, usually by expert testimony." (People v. Kelly, supra, 17 Cal.3d at p. 30, 130 Cal.Rptr. 144, 549 P.2d 1240.) There are no reported California cases in which an anthropomorphic dummy was used in any situation. Dr. Ward testified she did not know of any experiments conducted using an anthropomorphic dummy in...

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