Schmidt v. Commonwealth, Record No. 1104-16-4
| Decision Date | 23 January 2018 |
| Docket Number | Record No. 1104-16-4 |
| Court | Virginia Court of Appeals |
| Parties | DAVID MICHAEL SCHMIDT v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Alston, Chafin and Senior Judge Haley
Argued at Fredericksburg, Virginia
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Crystal A. Meleen (John A. Keats; Keats & Meleen, PLC, on brief), for appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
David Michael Schmidt ("appellant") appeals his convictions of felony child abuse and felony murder, after a jury found him guilty in the Circuit Court of Prince William County ("trial court"). On appeal, appellant asserts (1) that the trial court erred by admitting an autopsy report containing a portion created by a non-testifying witness, and (2) that his convictions cannot stand because they violate the Double Jeopardy Clause. For the reasons stated below, we disagree and affirm the trial court.
On August 5, 2013, Officer Jacob Davis ("Davis") of the Haymarket Police Department was dispatched to a residence on a report of an unresponsive infant. Davis found the infant in an upstairs room where appellant was performing chest compressions. Appellant stated that R.S. suddenly stopped breathing while appellant was changing his diaper. The infant was R.S.,appellant's son. Davis observed that R.S. was a bluish-green color and that his eyes were open in a blank stare. Davis noticed no other signs of visible trauma. Davis and another officer began performing lifesaving efforts while waiting on an ambulance. R.S. was transported to the emergency room, where physicians ordered multiple tests including a CT scan of R.S.'s head. The scan revealed bleeding on the brain, otherwise known as a subdural hematoma. The ER physician opined that the hematoma was subacute, meaning it had occurred "somewhere between 24 hours and three weeks" prior.
R.S. was transferred to the Pediatric Intensive Care Unit ("PICU") at Fairfax INOVA Hospital, where attending physicians examined his condition. Dr. William Dockery ("Dr. Dockery") performed the primary exam and noted an absence of any apparent external injury or trauma. Dr. Dockery performed tests on R.S. and found no brain activity whatsoever - R.S. did not respond to painful stimuli, he never opened his eyes, and he never moved any of his extremities. Another CT scan of R.S.'s head showed subdural blood between the brain and skull, as well as brain swelling. Technicians also performed a chest x-ray and Dr. Dockery observed healed rib fractures on R.S.'s right side, which he classified as indicative of possible previous trauma. When asked, both appellant and R.S.'s mother provided no explanations for the healed fractures. A few days later, doctors removed R.S. from life support, and he died.
Detectives began investigating the circumstances and learned that appellant was R.S.'s primary caretaker on the date of the incident. Appellant reported nothing unusual about that day - he had fed and changed R.S.'s diaper during the morning and had him do "tummy time."1 Appellant stated that during the afternoon diaper change, R.S.'s legs stiffened, his arms began flailing, and then R.S. became nonresponsive.
After an investigation, local law enforcement charged appellant with felony child abuse and felony murder based on the theory that R.S. sustained his injuries due to "shaken baby syndrome." The matter was set for a jury trial.
Dr. Dockery testified that after considering R.S.'s symptoms, he concluded based on a high degree of medical certainty that R.S. had suffered a "severe catastrophic trauma-type injury." Dr. Dockery opined that the trauma was so severe that unless appellant could provide another explanation for the injury, it was probably caused by a violent shaking movement during which R.S.'s head whipped back and forth so violently that the blood vessels between the brain and skull sheared and caused blood leakage, resulting in the subdural hematoma.
Dr. Constance DiAngelo ("Dr. DiAngelo"), the principal author of the autopsy report on R.S., testified that the head injury played a direct role in R.S.'s death and stated that some blunt force trauma had occurred and caused subdural bleeding. During the course of the autopsy investigation, Dr. DiAngelo contacted Dr. Bennet Omalu ("Dr. Omalu"), an internationally-renowned neuropathologist, and asked him to conduct an additional analysis on samples taken from R.S.'s brain. Dr. Omalu prepared stain slides of samples taken from R.S.'s brain, which were sent to his lab in Lodi, California. Dr. Omalu later provided his observations to Dr. DiAngelo, which documented various data findings but contained no conclusions about cause of death or the relative age of the brain injuries. Dr. DiAngelo included Dr. Omalu's notes in her final autopsy report.
In addition to Dr. Dockery and Dr. DiAngelo, the parties each called additional expert witnesses at trial, but Dr. Omalu was not among them - he did not testify nor was he subpoenaed by either party. While the various experts disagreed on four specific medical findings, they agreed on many others, including the existence of subdural bleeding. The experts markedly disagreed that the brain injuries were caused by abusive head trauma or "shaken babysyndrome," as well as when the injuries were sustained. None of the experts presented by the Commonwealth or the appellant ever referenced Dr. Omalu's report.
At the conclusion of the jury trial, the jury convicted appellant of felony child abuse and felony murder and recommended eleven years of incarceration, which the trial court imposed. This appeal followed.
Appellant's first assignment of error argues that the trial court erred in admitting the autopsy report in violation of the Confrontation Clauses of the United States and Virginia Constitutions. We disagree.
Appellant's first assignment of error asserts that the trial court violated his constitutional rights under the Confrontation Clause by admitting the autopsy report, because a portion of it was prepared by Dr. Omalu, a witness that did not testify at trial.
Constitutional arguments present questions of law that this Court reviews de novo. Magruder v. Commonwealth, 275 Va. 283, 289, 657 S.E.2d 113, 115 (2008); Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005). "When reviewing the sufficiency of the evidence to support a conviction, ourt will affirm the judgment unless the judgment is plainly wrong or without evidence to support it." Mayfield v. Commonwealth, 59 Va. App. 839, 850, 722 S.E.2d 689, 695 (2012) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)).
The Sixth Amendment to the United States Constitution provides, in relevant part, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with thewitnesses against him." U.S. Const. amend VI.2 Between 1980 and 2004, courts addressed Confrontation Clause challenges under the test enunciated by the United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 66 (1980), which allowed the admission of a non-testifying witness' statements if those statements could be considered "reliable" pursuant to a judicial determination.
In Crawford v. Washington, 541 U.S. 36, 51-52 (2004), the United States Supreme Court abandoned the Roberts test and classified certain specific types of evidence as "testimonial." Under Crawford, when evidence is testimonial, it cannot be introduced at trial without a testifying witness unless that witness is unavailable and the defendant previously had an opportunity to cross-examine the witness on that evidence. Id. at 53-54. Testimonial evidence is provided through Id. at 51 (internal quotations omitted) (alteration in original). Thus, when considering a challenge to evidence allegedly admitted in contravention of the Crawford definition, the Court must initially determine whether the evidence is "testimonial" or not because evidence that is "nontestimonial" may potentially be admitted without a witness.
Since it decided Crawford, the United States Supreme Court has authored two other significant decisions that explore the definition of "testimonial." In 2009, the United States Supreme Court decided Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). While Crawford involved the admission of oral statements, Melendez-Diaz considered whether forensic certificates of analysis, scientific documents produced after laboratory testing of substances, are "testimonial." Id. at 307. The certificates of analysis in Melendez-Diaz confirmed that asubstance recovered from the defendant was cocaine. Id. at 308. The Court concluded that the certificates were "incontrovertibly a 'solemn declaration or affirmation made for the purpose of establishing or proving some fact,'" that being whether the defendant possessed a controlled substance. Id. at 310 (quoting Crawford, 541 U.S. at 51).
Two years later, the United States Supreme Court addressed whether a certificate of analysis could be admissible if the testifying analyst "did not sign the certification or personally perform or observe the performance of the test reported in the certification." See Bullcoming v. New Mexico, 564 U.S. 647, 657 (2011). The Court held that such "surrogate testimony" does not comport with the requirements of the Confrontation Clause because the "testifying analyst could not convey what the performing analyst knew or observed about the particular test the certification concerned," limiting the defendant's ability to cross-examine...
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