State v. Best

• Citation: 89 S.D. 227,232 N.W.2d 447
• Decision Date: 22 August 1975
• Docket Number: No. 11353,11353
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Barbara A. BEST, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 447

232 N.W.2d 447

89 S.D. 227

STATE of South Dakota, Plaintiff and Respondent, v. Barbara A. BEST, Defendant and Appellant.

No. 11353.

Supreme Court of South Dakota.

Aug. 22, 1975.

Samuel Schaunaman, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Kermit A. Sande, Atty. Gen., on the brief.

Laurence J. Zastrow, Rapid City, for defendant and appellant.

DUNN, Chief Justice.

The defendant, Barbara Best, was convicted by a Pennington County Circuit Court jury of second degree manslaughter on May 31, 1973, in the death of her child, Steven Best. She appeals claiming the trial court committed error (1) in admitting the transcript of a statement given by the defendant, and in allowing the transcript and the testimony of Deputy Sheriff Holloway concerning the statement to be introduced without prior evidence to establish the corpus delicti; (2) in allowing certain expert witnesses to testify as to their opinions concerning medical matters in which they had no experience or training; (3) in allowing the testimony of Dr. Buss partly based upon hospital records not admitted into evidence; (4) in allowing certain statements of the state's attorney in closing argument which were improper and prejudicial; and (5) in permitting testimony to be presented on the 'Battered Child Syndrome,' and in failing to direct a verdict of acquittal in favor of the defendant for lack of proof of child abuse, and in instructing the jury on the issue of child abuse. We affirm.

Steven Best was born on June 1, 1971, and was the first natural child of defendant and her husband, Daniel. They had adopted a child, Timothy, some eleven months previous to this birth. Shortly after the birth of Steven, the couple was transferred to Ellsworth Air Force Base at Rapid City, South Dakota.

On September 19, 1971, Steven was first treated at the base hospital. He was brought in by his parents and was examined by Dr. Gregory Jelinek. The parents complained that the baby had been crying, was very irritable and was suffering from diaper rash. Dr. Michael Kellum, base pediatrician, was called in and found no evidence of any infection nor any particular reason why the child should be crying. He did a palpitation of the bones, which proved negative, and could not detect any bone injury by feel. Dr. Kellum also noted that the end of Steven's penis was black. He asked that the child be returned to the clinic in one week, but this was not done.

On September 29, 1971, Steven, accompanied by his parents, was received at the emergency room of the base hospital. Dr. Robert Buss determined that he had suffered a fractured humerus of the left arm. Dr. Buss testified that this was an oblique fracture which would generally result from a torque-type (twisting) injury. The parents could not explain the injury other than to speculate that it might have happened in the crib. Dr. Buss set the arm and advised that the child be returned in one week. Steven was not returned until October 13th when Dr. Buss determined that the humerus had suffered a malalignment of the union. Dr. Buss testified that such a fracture was uncommon, and he discussed the possibility of child abuse at a staff meeting.

On November 15, 1971, defendant and her husband brought Steven to the hospital at Dr. Kellum's request. Upon examination, the doctor found evidence of poor diaper care, undernutrition and a slight bend in the left arm. Dr. Kellum suggested that the child be brought in every two to four weeks, and told defendant that unless some reason for Steven's failure to grow at the normal rate was found that he might have to be hospitalized.

On December 2, 1971, Dr. Kellum again examined Steven and found weight loss and a bruise on one of his cheeks. At this point the doctor ordered hospitalization for the child. During the hospitalization Steven gained weight and his irritability decreased. It was also discovered through X rays that, in addition to the arm fracture, he had previously suffered fractures of two left ribs and a possible fracture of one of his right ribs. In response to the question as to the incidence of such fractures in a child of Steven's age, Dr. Kellum testified that

'It's not very common at all, and because of the fact that it's not very common this is why we made the official legal move of labeling the child as a possible victim of Battered Child Syndrome.'

Dr. Kellum also testified that he felt there was no abnormality in Steven's bone structure was no particular susceptibility to bruising was indicated.

When informed of the rib fracture, defendant testified that she felt this could have been caused by the collapse of Steven's crib. According to the defendant's testimony, this crib had collapsed on at least five occasions.

Steven was released from the hospital on December 17, 1971, and was returned to the clinic on December 28, 1971. Dr. Kellum examined him and determined that weight had not increased and that he was suffering from a mild diaper rash and a cold. In the meantime, and on December 21, 1971, Kathy Daniels of the South Dakota Welfare Department had been assigned to the case and had made her first visit.

Steven was again examined at the base hospital on January 24, 1972. At that time Dr. Kellum observed a slightly raised bruise on his forehead and an area of pinhead type bleeding into the skin in the shape of an adult finger. When questioned, the parents speculated that Timmy had possibly hit Steven.

On February 23, 1972, Steven was admitted to the emergency room suffering from a skull fracture at the back of the head. Defendant stated that she had fallen down the stairs while carrying the child. Dr. Lawrence Mason, base pediatrician, also treated Steven and testified that such a fracture was relatively common.

Upon Steven's release from the hospital, he was taken into custody by the South Dakota Welfare Department and was placed in a foster home. During this period in the foster home Steven gained weight, his diaper rash cleared and he appeared happy and sustained no permanent damage from the skull fracture. He did suffer an ear infection during this period.

On September 15, 1972, Steven was released to his parents. From this date until the date of Steven's death, November 26, 1972, none of the doctors from the base hospital saw Steven. Mrs. Elaine Harrison was the volunteer social worker assigned to the case during this time and visited the Best home with her husband on a number of occasions. Neither of the Harrisons ever saw Steven struck with a closed hand or fist by either of the Bests during this time.

Mrs. Best testified that on the morning of November 26, 1972, she awakened and, after determining that the children were still asleep, began to eat breakfast. About 9 or 9:30 a.m. she heard Steven fussing and brought him downstairs. She testified that she went to a storage room where diapers were kept and heard a cry from Steven. Upon returning to the living room, Timothy was going up the stairs muttering that 'baby hurt.' Mrs. Best testified that she picked Steven up and rocked him until he stopped crying. She then changed his diaper and dressed him. A few moments later Mrs. Best placed Steven in his highchair. She testified that upon returning from preparing food for him he had 'stiffened up.' Mrs. Best called for her husband who came downstairs, and, after an application of ice on a bruise on Steven's head failed to revive him, Dr. Kellum was called. When Dr. Kellum arrived Mrs. Best explained that she thought Steven had possibly fallen on a telephone which was in the area where she found him. Steven was first taken to the Ellsworth Air Force Base hospital emergency room, and, upon his failure to respond, Dr. Kellum contacted Dr. Edward James, a neurosurgeon at St. John's McNamara Hospital, and Steven was transferred there. In spite of emergency treatment, the child died about 1 p.m. at the age of approximately 18 months.

At 2:30 p.m. on November 26, 1972, an autopsy was performed on Steven Best by Dr. John Elston, a pathologist. The autopsy revealed that Steven was suffering from malnutrition and that he had a large number of bruises of varying age on his forehead, face, abdomen, lower and upper extremities, back and buttocks. Dr. Elston found two fresh hemorrhages--one behind the left ear and one behind the right ear--and a small fracture behind the right ear. The autopsy also revealed a massive fracture behind the left ear with a displaced segment of the skull bone approximately two inches long which had lacerated the brain and a hairline fracture in the midline of the posterior of the skull. The autopsy further revealed that the cerebellum showed discoloration and healing which would have pre-existed the fracture and would have been caused by prior trauma to the skull. Dr. Elston testified that the cause of death was the massive fracture of the skull with the resulting laceration of the brain and the major vessels of the brain which had caused internal hemorrhaging in the skull. He stated that the fatal fracture was caused by a blunt, as opposed to a sharp, instrument; that the only way all of the fractures could have been caused by one blow 'would be for the head to have been struck on the left side and then hit against an object on the other side, such as a table or something of (that) sort;' that it was doubtful that the fractures could have been caused by a human fist. The doctor could not state whether or not the fractures were caused by a telephone, but he did state that they could have been caused by 'falling to a solid surface such as a concrete basement floor or something like that.' He stated that death from the massive fracture behind the left ear could have taken anywhere from two to six hours to occur.

Dr. Elston was asked to express his opinion as to whether or not a fall on a telephone could have produced the fracture, to which he indicated in the negative.

Dr. Edward James, the neurosurgeon,...