People v. Portellos

Decision Date13 November 2012
Docket Number301333.,Docket Nos. 301190
Citation827 N.W.2d 725,298 Mich.App. 431
PartiesPEOPLE v. PORTELLOS.
CourtCourt of Appeal of Michigan — District of US

OPINION TEXT STARTS HERE

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Ana I. Quiroz, Assistant Prosecuting Attorney, for the people.

Daniel J. Rust, for defendant.

Before: MURPHY, C.J., and O'CONNELL and WHITBECK, JJ.

PER CURIAM.

In these consolidated appeals, defendant, Emily Portellos, appeals as of right her convictions, following a jury trial, of second-degree murder 1 and first-degree child abuse.2 The trial court sentenced Portellos to serve 86 to 180 months' imprisonment for her child abuse conviction and 10 to 20 years' imprisonment for her second-degree-murder conviction. The trial court departed downward from the sentencing guidelines' recommended minimum sentence range for the second-degree-murder conviction. The prosecution appeals as of right the trial court's downward departure from the sentencing guidelines and its scoring of offense variables (OVs) 3, 5, and 19. We affirm Portellos's convictions, but vacate Portellos's sentence for second-degree murder and remand for resentencing.

I. FACTS

This case arises out of the tragic death of Baby Portellos, a newborn, during the early morning hours of October 14, 2008.

A. BACKGROUND FACTS

At the time of the baby's birth, Portellos was 28 years old and lived with her mother and brother. Marianne Wright, Portellos's special-education teacher, testified that Portellos was learning-disabled and required extra time to process information, but was not mentally retarded. Wright testified that although Portellos would work well in routine environments, she would not perform well when making quick decisions and judgments.

Portellos worked at a childcare center in Livonia starting in 2004. Kimberly Avendt, the director of the center, testified that Portellos was very good with children and was trustworthy. Avendt testified that Portellos had completed coursework in child development and was waiting for her associate's degree certificate. Avendt testified that Portellos was trained in first aid, CPR, and sudden infant death syndrome. Susan Ianitelli, Portellos's coworker, testified that Portellos was able to handle the paperwork associated with the job after Ianitelli taught her how.

Portellos previously gave birth in 2006. In December of that year, Portellos became ill with sharp abdominal pains. Portellos saw her family doctor, Dr. Muhammed Wasiullah. He examined Portellos and suspected that she might be pregnant. Wasiullah observed that Portellos'sentire abdomen was swollen, but she did not have a “baby bump.” He did not suspect that she was in the final stages of pregnancy. Wasiullah sent Portellos to the emergency room, where she gave birth. Mary Portellos, Portellos's mother, testified that she was shocked that Portellos gave birth. Portellos placed the baby for adoption. Portellos missed six weeks' work, and she explained to coworkers that a cyst had enlarged her abdomen.

In the summer of 2008, a coworker patted Portellos's abdomen and asked if Portellos had “anything to tell.” Portellos denied that she was pregnant. Ianitelli advised Portellos to seek medical treatment because she might have another cyst. In July 2008, Mary Portellos and an aunt both saw Portellos undressed, but did not realize she was pregnant. Demetra Christos (a friend of the family) and Marilyn Murphy (the baby's paternal grandmother) testified that they saw Portellos in September and October 2008 at family gatherings, but Portellos did not appear pregnant.

B. FACTS SURROUNDING BABY PORTELLOS'S DEATH

On the morning of October 14, 2008, Mary Portellos woke at about 6:00 or 7:00 a.m. and called out to Portellos that it was time to get ready for work. Portellos told her that she was ill and could not go to work. Mary Portellos went back to sleep. Avendt testified that around 8:00 a.m., Portellos called her and said that she was sick with food poisoning. Another coworker, Erica Bishop, testified that Portellos called her and said she was sick with bad cramps and intended to go the hospital. Ianitelli testified that she was concerned and exchanged text messages. Portellos informed Ianitelli that she was bleeding and was “going to die.”

Mary Portellos woke again at about 10:30 or 11:00 a.m. and went to Portellos's room to check on her. She saw that Portellos was pale and weak and that there was a large quantity of blood on the bed and the floor. Portellos told Mary Portellos that she was having a bad menstrual cycle. Mary Portellos insisted that she go to the emergency room. Portellos fainted in the hallway, and Mary Portellos called for an ambulance. Mary Portellos testified that Portellos was going in and out of consciousness, but when emergency medical services arrived, she heard Portellos tell the technician that she was not pregnant.

Dr. Michael Prescott, the emergency room physician, testified that when Portellos arrived, he was alarmed because she was bleeding copiously. Prescott acknowledged that Portellos's blood loss, heart rate, and outward signs were consistent with hemorrhagic shock. He tested Portellos for pregnancy, and the test was positive. He suspected that Portellos was having a miscarriage. Portellos asked Prescott not to discuss her condition with her mother, but Mary Portellos had been present when the pregnancy test showed a positive result. Prescott called the on-call obstetrician-gynecologist, Dr. Shari Maxwell.

Maxwell testified that Portellos was hemorrhaging and that her situation was life-threatening. Maxwell testified that Portellos was in too much pain to cooperate with an examination. When Maxwell asked Portellos to consent to anesthesia, Portellos responded by asking Maxwell not to discuss her condition with Mary Portellos. Portellos eventually signed the consent form. Maxwell operated on Portellos, removed a placenta that remained in Portellos's uterus, and stopped the bleeding. Rachel Pagden, a clinical therapist employed by the hospital, notified the Plymouth Township Police Departmentthat Portellos had received postdelivery treatment but the status of the baby was unknown.

Detective Mary Linton testified that she spoke with Portellos at the hospital after Portellos came out of anesthesia. Pagden was also present. Portellos initially told Linton that she had miscarried. Linton testified that she told Portellos that she knew Portellos had given birth, but Portellos would not admit that she had until Linton agreed not to tell Mary Portellos. Portellos told Linton that she did not want her mother to know about the baby because her mother would kill her. After Linton agreed not to tell Portellos's mother, Portellos informed her that she had given birth, but the baby was stillborn.

Portellos told Linton that she went into labor at around 1:00 a.m., gave birth at about 3:00 a.m., and that the baby was born feet first. Portellos told Linton that the baby had gasped for breath and lay still and that it did not cry. Portellos told Pagden that she was afraid that her mother would hear the baby crying. When asked whether the baby had been breathing, Portellos would only say that it “maybe gasped.” Portellos told Linton that she wrapped the baby in towels or sheets and put it in a garbage bag next to her bed. Pagden and Linton testified that they did not ask Portellos how much time had passed between when the baby was born and when Portellos put it in the bag or whether the baby was alive when Portellos put it in the bag.

Portellos told Linton that she read books on labor and childbirth and that she intended to leave the baby at the fire department so that her mother would not find out. Portellos repeatedly informed Linton that she would return home and “bring the baby to you guys.”

Plymouth Township Police searched Portellos's room. Officers found the baby inside a garbage bag next to Portellos's bed. One of the officers testified that the bag was open and that he could see a baby inside. Another officer testified that the bag was shut and that he could see a rose-colored towel in the bag. This officer further testified that the baby had been wrapped very tightly in the towel. She was pronounced dead at the scene.

Valerie Lundgren, a labor and delivery nurse at St. Mary Mercy Hospital, testified that she worked the evening of October 15, 2008, and that she checked on Portellos while making her rounds. Lundgren testified that when she asked Portellos if she had a support system, Portellos told her that she intended to take the baby to the fire department and place it for adoption and that she “intended to sneak it out to the fire station in a bag or garbage bag [.] Lundgren testified that she had to explain that that rule only applied to living children.

Deborah Answorth, the nursing director of the birthing center at St. Mary, testified that she spoke with Portellos on the morning of October 15 at the hospital. Portellos told Answorth that she thought that she might have been pregnant for two weeks. Portellos told Answorth that she did not want her mother to know that she was pregnant.

Answorth testified that Portellos told her that she delivered the baby feet first and that it moved but did not cry. She testified that Portellos told her that she cut the baby's umbilical cord and that a lot of blood came out. She testified that Portellos told her that “after a time she thought the baby was not alive and then put it in ... a bag next to the bed.” Answorth testified that Portellos said she placed the baby in the bag a few hours after it was born.

Answorth testified that doctors always deliver a baby in a breech position by cesarean section because these deliveries are dangerous and breech babies often need to be resuscitated after birth. She testified that normally a...

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6 cases
  • People v. Lockridge
    • United States
    • Court of Appeal of Michigan — District of US
    • February 13, 2014
    ...sentence imposed is more proportionate than a sentence within the guidelines recommendation would have been.” People v. Portellos, 298 Mich.App. 431, 453, 827 N.W.2d 725 (2012) (quotation marks and citations omitted). Defendant's 8–year minimum term of imprisonment is an upward departure fr......
  • Maison v. Brewer
    • United States
    • U.S. District Court — Eastern District of Michigan
    • November 16, 2020
    ...was sufficient evidence of malice to support Petitioner's felony murder and first-degree child abuse convictions. People v. Portellos, 827 N.W.2d 725, 728 (Mich. Ct. App. 2012), overruled on other grounds by People v. Calloway, 895 N.W.2d 165 (Mich. 2017). Accordingly, Petitioner is not ent......
  • People v. Calloway
    • United States
    • Michigan Supreme Court
    • May 19, 2017
    ...treatment in relation to the incident or required professional treatment because of the incident. See People v. Portellos , 298 Mich.App. 431, 449, 827 N.W.2d 725 (2012) (affirming the trial court's refusal to assess points for OV 5 when there was no evidence that members of the victim's fa......
  • People v. Wright, 317086
    • United States
    • Court of Appeal of Michigan — District of US
    • December 4, 2014
    ...Whether afamily member of the victim has actually sought professional treatment is not determinative. People v Portellos, 298 Mich App 431, 449; 827 NW2d 725 (2012) (citing MCL 777.35(2)). Rather, 15 points may be assessed "if the serious psychological injury to the victim's family may requ......
  • Request a trial to view additional results

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