Sissoko v. State, 613, Sept. Term, 2016

• Decision Date: 09 April 2018
• Docket Number: No. 613, Sept. Term, 2016,613, Sept. Term, 2016
• Parties: Moussa SISSOKO v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

236 Md.App. 676
182 A.3d 874

Moussa SISSOKO
v.
STATE of Maryland

No. 613, Sept. Term, 2016

Court of Special Appeals of Maryland.

April 9, 2018

Argued by Claire Caplan (Paul DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Argued by Sarah P. Pritzlaff (Brian E. Frosh, Attorney General, on the brief), Baltimore, MD, for Appellee.

Panel: Eyler, Deborah S., Kehoe, Arthur, JJ.

Eyler, Deborah S., J.

182 A.3d 876

236 Md.App. 679

In this appeal, we consider the interplay of the Frye – Reed general acceptance test and Rule 5–702 as they apply to expert testimony that an infant's death was caused by abusive head trauma, the current medical nomenclature for what used to be known as shaken baby syndrome.

In 2002, a jury in the Circuit Court for Montgomery County convicted Moussa Sissoko, the appellant, of first-degree murder, child abuse, and child abuse resulting in death, in the death of his 11–week–old son, Shane. The State's theory of prosecution was that the appellant killed his son by violently shaking him, slamming him against a soft surface, or both. The court sentenced the appellant to life in prison, plus 20 years. In a post-conviction proceeding more than ten years later, he was granted a new trial on the ground that his trial counsel had been ineffective by failing to adduce expert medical testimony to rebut the State's expert medical testimony on abusive head trauma.

Before his retrial, the appellant filed a motion to preclude the State from introducing expert medical testimony that Shane's injuries and death resulted from abusive head trauma.

236 Md.App. 680

After a five-day evidentiary hearing, the court denied the motion. Thereafter, the appellant elected a bench trial. The court convicted him on all three counts and sentenced him to life, all but fifty years suspended.

On appeal, the appellant presents two questions, which we have rephrased slightly:

I. Did the trial court err or abuse its discretion by denying his motion to exclude expert medical testimony that Shane's fatal brain injuries resulted from abusive head trauma ?

II. Was the evidence legally sufficient to sustain the appellant's convictions?

For the following reasons, we shall affirm the judgments of the circuit court.

FACTS AND PROCEEDINGS

The appellant began dating Tiffany Paris in 1999, when she was a senior in high school. In October 2000, Paris learned that she was pregnant. At that time, she was living at home with her mother, Patricia Sherman (known then as Patricia Paris), in Wheaton. The appellant was living at home with his mother, Danuta Guzowski, in Silver Spring. The appellant was planning to start community college in Florida in January 2001. He asked Paris not to tell his mother about the pregnancy because he feared she would refuse to pay his college tuition.

In January 2001, the appellant moved to Florida. For the next six months, he maintained only sporadic contact with Paris. The appellant's mother learned that Paris was pregnant and, as he had feared, informed him that she would no longer pay his college tuition and that he had to get a job.

In June 2001, the appellant returned to Maryland and moved into Sherman's house, with Paris. On June 29, 2001, Paris gave birth to Shane at Holy Cross Hospital. The vaginal delivery was uncomplicated and Shane was a healthy baby.

The appellant lived with Paris and Shane at Sherman's house for about two months. Paris returned to work in August,

236 Md.App. 681

when Shane was 6 weeks old. The appellant began working as a locksmith. From Monday through Thursday, Shane was cared for by a babysitter at the babysitter's house. Paris was off on Fridays, but worked on Saturdays. The appellant or Sherman cared for Shane on Saturdays, at Sherman's house.

Near the end of August, the appellant moved out of Sherman's house and in with

182 A.3d 877

a friend.¹ By September 9, 2001, he was living at his mother's house.

Meanwhile, when Shane was less than two months old, the appellant contacted State Farm Insurance ("State Farm") about purchasing a life insurance policy on Shane. On August 18, 2001, the appellant met with State Farm agent Ronald Menza and applied for a $750,000 "universal life" policy on Shane's life, with himself (the appellant) as the sole beneficiary. Because State Farm would not permit the appellant to apply for a policy on Shane's life unless he also applied for a policy on his own life, the appellant did so. He applied for a term life policy on his own life with a value of $50,000, the minimum policy value offered by State Farm. He named his sister as the beneficiary on that policy. Menza advised the appellant that before the policy on Shane's life would be "bound," Shane would need to undergo a medical examination and the appellant would need to pay the first monthly premium.

The appellant arranged for Shane's medical examination to be performed on Saturday, August 25, 2001, when Paris would be at work and he would be caring for Shane at Sherman's house. He did not tell Paris that he had applied for life insurance for Shane. Paris and Sherman got home before the person who performed the examination had left. The appellant lied to them about the person's identity, saying he was an insurance agent who was there to discuss bundling renter's,

236 Md.App. 682

auto, and health insurance. He also lied to Paris about telephone messages from State Farm that were left for him at Sherman's house.

On September 14, 2001, the appellant mailed the first monthly premium payment on the policy on Shane's life, in the amount of $134, to State Farm. That night, he stayed at Sherman's house with Paris and Shane.² Paris was scheduled to work the next day, a Saturday, and the appellant was supposed to watch Shane.

On the morning of September 15, 2001, the appellant fed Shane a bottle of formula at 6:00 a.m. and Paris fed him a bottle at 9:00 a.m. The appellant asked Paris to drop him and Shane off at his mother's (Guzowski's) house on her way to work, saying that his mother wanted to spend some time with Shane. As Paris testified, it was unusual for the appellant to care for Shane at his mother's house.³ In fact, Guzowski did not know in advance that the appellant was bringing Shane to her house that morning.

Just after 10:00 a.m., Paris dropped the appellant and Shane off at Guzowski's house. According to Guzowski, Shane was "jolly." She played with him for a short time. When Shane became fussy, the appellant prepared a bottle of formula and took him to his (the appellant's) bedroom, on the second floor of the house. The appellant kept Shane there for several hours. Paris called the appellant twice to check on Shane, at 11:00 a.m. and 12:20 p.m. Both times, the appellant told her that Shane was fine. Guzowski, who was cleaning the house and making stew,

182 A.3d 878

walked by the appellant's open bedroom door at one point and observed Shane lying on the appellant's bed on his back, moving his hands.

236 Md.App. 683

Around 1:00 p.m., the appellant went downstairs, got some stew for lunch, and took it to his bedroom to eat. Shane was still on the bed. An hour later, the appellant went back downstairs and told Guzowski that Shane's nose was bleeding and that he might need to go to the hospital. Guzowski and the appellant rushed upstairs. Guzowski wiped mucous and blood off Shane's nostrils. Shane did not react and did not appear to be breathing. Guzowski yelled for the appellant to call 911. She straddled Shane and began performing CPR. In his call to 911 (at 2:04 p.m.), the appellant told the operator: "My baby stopped breathing, and there's blood coming out of his nose." When asked when Shane had stopped breathing, the appellant replied: "I don't know. I just started seeing blood come out of his nose. He was sleeping, and then blood just started rushing out of his nose."

Emergency personnel responded to the house in minutes. They found Shane in full cardiac arrest, bleeding from his nose and mouth. His lips were turning blue, he was not breathing, and he had no pulse. There were petechial hemorrhages on his forehead.⁴ He was transported by ambulance to Holy Cross Hospital, arriving at 2:27 p.m.

Just before 5:00 p.m., at Holy Cross Hospital, the appellant was interviewed by Detective Kenneth Penrod, with the Montgomery County Police Department's Homicide/Sex Division.⁵ Detective Penrod reduced the appellant's oral statement to writing. The appellant made corrections to the written statement and initialed it. In the statement, the appellant said that after he took Shane into his bedroom at his mother's house, he put him on the bed. He and Shane were alone in his bedroom for over an hour, during which time he watched television. Shane "became ‘fussy,’ " so the appellant gave him 6 ounces of formula. He then placed Shane...