People v. McCovery
| Decision Date | 21 July 2022 |
| Docket Number | 348895 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DEMARCO TRAYMAN PRYOR MCCOVERY, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Otsego Circuit Court LC No. 18-005512-FC
Before: GLEICHER, C.J., and SERVITTO and LETICA, JJ.
Defendant appeals as of right his jury trial conviction of first-degree child abuse, MCL 750.136b(2). The trial court sentenced defendant to 20 to 50 years' imprisonment, which was an upward departure from the sentencing guidelines. We affirm.
This case arises out of the death of one-year-old AN. At the time of AN's death, defendant was in a relationship with the child's mother. On June 28, 2018, defendant was watching AN and her two siblings while their mother was at work.[1] Defendant laid AN down at 11:15 a.m., and returned to check on her six minutes later. As defendant picked AN up, she vomited a yellow liquid, and her arm went stiff. Defendant changed AN's diaper, changed his shirt and loaded all three children and the dog into the car to go to the hospital. The hospital was only 31/2 miles away, and defendant believed that he could arrive there more quickly than summoning an ambulance.
However, defendant ran out of gas and, because he had no cash, had to stop at four gas stations until he found one that would assist him. As a result, the trip to the hospital took 27 minutes.[2]
Upon arrival at the hospital, an emergency technician removed AN from her car seat and observed that her fingers, toes, feet and lips were blue. Medical personnel attempted to resuscitate AN, but were unsuccessful. The forensic pathologist, Dr. Brian Hunter, ultimately determined that AN's cause of death was asphyxia because of mechanical restriction of chest wall motion and obstruction of the airway coupled with the prone or facedown sleep position.[3] A mechanical restriction of the chest wall would not necessarily result in a bruise or mark on the outside of the body. Dr. Hunter further concluded that the manner of AN's death was homicide.
Hospital workers train new parents on safe sleep practices before being discharged from the hospital.[4] Basically, new parents are advised that the infant should sleep in the crib alone on a tight fitted sheet. There should be no blankets, pillows, or other stuffed items in the crib. It is explained to the new parents that if these guidelines are not followed the infant could die. While defendant was not AN's biological father, testimony at trial established that he nevertheless was repeatedly trained on safe sleep practices, including instruction that an infant should not be swaddled in a blanket and should be placed on her back to sleep, by two different Child Protective Services (CPS) workers.[5] Moreover, the Pack N' Play where AN slept contained a warning label cautioning users about the danger of suffocation from blankets and pillows.
After AN's death, defendant voluntarily agreed to travel to the local Michigan State Police post for an interview with detectives. Defendant initially told detectives that AN vomited and then stopped breathing, so he performed chest compressions, but was unable to revive her. As the interview continued, the detectives expressed skepticism that AN's death occurred as defendant described. The detectives posited that her death was an accident, and defendant eventually admitted that he was aggravated with AN because she would not stop crying. He told detectives that he then tightly wrapped AN in an adult blanket to the point that she could not move her arms.
Additionally, defendant demonstrated that the blanket covered AN's nose and that he placed her facedown on a pillow. Defendant further admitted AN died as a result of suffocation.
Defendant was arrested and charged with first-degree child abuse and first-degree felonymurder, MCL 750.316(1)(b), for causing AN's death. After defendant was arrested, he reenacted and verbally described how he wrapped AN in a large blanket like a "paper towel roll." His reenactment was videotaped, and the video was played for the jury. During defendant's reenactment, a CPS worker remarked that what defendant did could have killed AN; defendant affirmed that observation.
The jury convicted defendant of first-degree child abuse, but acquitted him of first-degree felony-murder. After defendant filed his claim of appeal in this Court, he moved for a remand to the trial court for an evidentiary hearing to determine whether he was denied the effective assistance of counsel. Defendant asserted that defense counsel was deficient for failing to obtain the opinion of a pathology expert and that defense counsel was ineffective for failing to move to suppress defendant's statements made during the second portion of the police interview because the interview became custodial and defendant was not given his Miranda[6] rights. This Court granted the motion to remand.[7]
Thereafter, the trial court held an evidentiary hearing. In a 35-page written opinion and order, the court denied defendant's request for a new trial, finding that defendant was not deprived of the effective assistance of counsel at trial. This appeal followed.
First, defendant alleges the evidence presented at trial was insufficient to support his first-degree child abuse conviction. We disagree.
A challenge to the sufficiency of the evidence is reviewed de novo. People v Thorne, 322 Mich.App. 340, 344; 912 N.W.2d 560 (2017). The evidence is examined in a light most favorable to the prosecution to determine whether a rational trier of fact could conclude that the prosecutor proved the elements of the crime beyond a reasonable doubt. People v Miller, 326 Mich.App. 719, 735; 929 N.W.2d 821 (2019). "Minimal circumstantial evidence and reasonable inferences can sufficiently prove the defendant's state of mind, knowledge, or intent." Id. "It is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences." People v Hardiman, 466 Mich. 417, 428; 646 N.W.2d 158 (2002).
"A person is guilty of child abuse in the first degree if the person knowingly or intentionally causes serious physical harm or serious mental harm to a child." MCL 750.136b(2); People v Lane, 308 Mich.App. 38, 57; 862 N.W.2d 446 (2014). A person is a parent, guardian, or anyone "who cares for" or "has authority over a child regardless of the length of time that a child is cared for or "subject to the authority of that person." MCL 750.136b(1)(d). "Knowingly or intentionally" means that to convict a defendant of first-degree child abuse, the prosecution must prove that the defendant intended to cause serious physical harm or that he knew that serious physical harm would be caused by his actions. People v Maynor, 470 Mich. 289, 295-296; 683 N.W.2d 565 (2004). "Serious physical harm" is defined as "any physical injury to a child that seriously impairs the child's health or physical well-being, including, but not limited to, brain damage, a skull or bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury, poisoning, burn or scald, or severe cut." MCL 750.136b(1)(f).
Viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence presented at trial for the jury to find defendant knew that his actions would cause serious physical harm to AN.[8] Miller, 326 Mich.App. at 735. In his interview with the detectives, defendant admitted he was frustrated that AN was crying. In this agitated state, defendant wrapped AN tightly in a large blanket several times like a paper towel roll. The blanket covered her nose and mouth, and she was unable to move her arms.[9] He then placed AN facedown on a pillow and left the room for six minutes. When he returned, she was no longer crying. CPS workers testified that they had previously instructed defendant that it was important to remove any blankets, pillows, or stuffed animals from the crib with AN to avoid suffocation.[10] And, during a surprise visit a couple of months before AN's death, one worker discovered AN sleeping with a small (2'x3') receiving blanket and pillow. The worker had defendant remove AN and the extra items, and, again, warned defendant about the dangers presented. While defendant argues that these safe sleep instructions were specifically directed at a child under one, the record reflects that defendant was informed that these best practices were to continue even after the child turned one.
Additionally, after defendant discovered that AN was nonresponsive and suspected that she was dead, he took the time to change her diaper, change his shirt, and elected to drive to the hospital with all the children and the dog. Although the hospital was located 31/2 miles away, the trip took 27 minutes, not the typical 9 minutes, because defendant had difficulty purchasing gas.[11] AN did not have a pulse when she arrived at the hospital and resuscitation efforts were unsuccessful. Defendant did not provide information to medical personnel regarding her condition prior to her arrival to facilitate her resuscitation, and staff at the hospital found defendant uncooperative and disruptive. A forensic pathologist determined that AN died from asphyxia because of restricted chest wall motion and restricted airway. Consequently, the exact danger about which defendant was repeatedly warned occurred when he disregarded proper sleep conditions.
Nonetheless defendant contends that his actions were merely negligent and did not rise to the level of first-degree child abuse. He cites to the testimony from CPS workers that failure to comply...
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