State v. Bieber

• Decision Date: 19 October 2007
• Docket Number: No. DA 06-0156.,DA 06-0156.
• Citation: 339 Mont. 309,2007 MT 262,170 P.3d 444
• Parties: STATE of Montana, Plaintiff and Appellee, v. Sabine Halvorson BIEBER, Defendant and Appellant.
• Court: Montana Supreme Court

170 P.3d 444

2007 MT 262

339 Mont. 309

STATE of Montana, Plaintiff and Appellee, v. Sabine Halvorson BIEBER, Defendant and Appellant.

No. DA 06-0156.

Supreme Court of Montana.

Submitted on Briefs January 17, 2007.

Decided October 19, 2007.

Rehearing Denied November 7, 2007.

For Appellant: Robert L. Stephens, Jr., Southside Law Center, Billings, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, Kathy Seeley, Assistant Attorney General, Carlo Canty, Assistant Attorney General, Helena, Montana, Dennis Paxinos, Yellowstone County Attorney, Billings, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 In January 2003, one-year old Dane Heggem (Dane) died while in the care of the Tiny Tots Daycare located in Laurel, Montana (Tiny Tots), and co-owned by Sabine Bieber (Bieber) and Denise Smith (Smith). Postmortem testing revealed that Dane had an elevated level of diphenhydramine (DPH) in his system. DPH is an active ingredient in cold and allergy medications such as Benadryl® and has strong sedative properties. Further investigation indicated that the DPH had been administered to Dane at Tiny Tots. Bieber was subsequently charged with one count of negligent homicide, three counts of criminal endangerment, and one count of tampering with physical evidence, all felony charges. A jury found her guilty of negligent homicide and two counts of criminal endangerment. Bieber appeals. We affirm.

ISSUES

¶ 2 A restatement of Bieber's issues on appeal is:

¶ 3 Did the District Court err when it denied her Motion to Suppress?

¶ 4 Did the District Court abuse its discretion in admitting the opinion testimony of the State's expert and in refusing to conduct a Daubert hearing?

¶ 5 Did the District Court abuse its discretion in admitting M.R. Evid. 404(b) (Rule 404(b)) evidence of "other acts" and refusing offered cautionary instructions?

¶ 6 Did the District Court abuse its discretion in refusing offered defense jury instructions?

¶ 7 Did the District Court abuse its discretion in failing to instruct the jury in response to jury questions and in subsequently providing an Allen-type instruction after the jury was deadlocked?

¶ 8 Is reversal for cumulative error required?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 9 On January 31, 2003, at approximately 2:45 p.m., the Laurel Police Department (LPD) dispatcher received an emergency call from Tiny Tots reporting that a one-year old child at the facility was not breathing. When ambulance staff arrived, they learned that Dane had not responded to cardiopulmonary resuscitation (CPR) being performed by Bieber. He was not breathing, was slightly blue in color and unresponsive. He was transported by helicopter to St. Vincent's Hospital in Billings where he was pronounced dead at 3:49 p.m.

¶ 10 While Dane was being transported to Billings, officers from the LPD arrived at the day-care. Bieber and Smith consented to a police search of the facility at that time and both Bieber and Smith described the day's events leading up to the emergency call to 9-1-1. Neither woman mentioned administering any medication to Dane.

¶ 11 An autopsy was performed on February 2, 2003, resulting in a preliminary conclusion of a natural death. A subsequent toxicology report issued around February 11, 2003, however, revealed "quite elevated" DPH levels in Dane's blood and urine. According to the police investigation to that date, Dane was not ill on January 31 nor had his parents given him any prescription or over-the-counter (OTC) medication on January 31. His parents also reported that Dane had not received nor needed any medication during the several weeks leading up to the day of his death. Upon notification of the toxicology results, the LPD contacted the Montana Department of Justice (DOJ) and Agent Gary Hatfield (Hatfield) was assigned to assist the LPD with its investigation.

¶ 12 Subsequent interviews with Dane's parents revealed that his mother had given Dane a pediatrician-recommended dosage of DPH on two occasions only since his birth — once when Dane was around six months and the other time in mid-December 2002. Both times were to counteract allergic reactions. She said that, to her knowledge, Dane had not had any medication containing DPH since mid-December 2002. Dane's mother also told investigators that the only medication she authorized Tiny Tots to administer to Dane was gas relief drops developed for infants and children.

¶ 13 On February 14, 2003, a Department of Public Health and Human Services (DPHHS or the Department¹) day-care inspector, Tana Johnson, arrived at Tiny Tots to conduct an unannounced inspection and investigation. Hatfield had arranged with Johnson's DPHHS supervisor to attend the inspection as well. Johnson and Hatfield arrived at approximately 10:30 a.m. Johnson explained that she was there to conduct a regulatory inspection and Hatfield introduced himself. Hatfield claims to have told Bieber at or near the front door that he was conducting a criminal investigation in conjunction with the LPD, and indicated he asked Bieber to sign a consent form, which she did. Bieber claims that Hatfield did not identify himself as a criminal investigator until the facility inspection was concluded and it was then that he requested that she sign a consent form.

¶ 14 Near the end of a room-by-room facility tour, Johnson noticed a clear plastic dose cup generally packaged with OTC liquid medicines. The dose cup which was filled with a red liquid to a line indicating "adult dosage" was on an open kitchen shelf next to a full baby bottle that appeared to contain baby formula. When questioned by Johnson, Bieber indicated it was DPH and showed Johnson the 12-ounce bottle of Diphedryl from which it had been poured. Johnson asked the age of the child to receive the medication and Bieber told her it was for a six-year old and that the child's mother had poured out the dose when she dropped her child off that morning. However, according to the forms signed by parents authorizing day-care staff to administer medication, there was no authorization by the six-year old child's parents to administer DPH. When Johnson advised Bieber that she would receive a written deficiency for failing to obtain permission in writing from the parents for this particular medication, Bieber took the full dose cup and dropped it into a sink of soapy dishwater. Hatfield retrieved the cup from the sink, photographed it, the bottle of Diphedryl and the general area, and put both the dose cup and the Diphedryl bottle into evidence containers and later transferred them to LPD for submission for analysis. Subsequent analysis revealed the presence of DPH in both items.

¶ 15 After leaving Tiny Tots, Johnson and Hatfield contacted the six-year old child's mother who had purportedly poured the dose cup. She denied having done so; therefore, Johnson and Hatfield decided to interview other parents of children attending Tiny Tots Daycare. The parents of an eight-month old child authorized Hatfield to submit recently-disposed of diapers for testing for foreign substances in their child's urine. Analysis indicated that two of three diapers revealed the presence of doxylamine, an antihistamine with sedative properties that should not be administered to children less than twelve years of age without doctor's orders. Upon notification that the child's diapers contained doxylamine, the child's mother reported that she had not given the child any medication for several days leading up to the day the diapers were disposed of nor had Bieber or Smith told her that either of them had administered medication to her child.

¶ 16 With parental permission, other children's diapers were collected and analyzed and the presence of DPH was detected. After being told by one of the older children attending the day-care that all the children got dark-colored liquid medicine at lunch time, this child provided a urine sample which likewise tested positive for DPH.

¶ 17 On February 21, 2003, the doctor who performed the autopsy amended his report to conclude that Dane's cause of death was "undetermined" rather than "natural." On February 26, 2003, DPHHS suspended the registration of Tiny Tots as a group day-care facility. On March 12, 2003, Dane's death certificate was issued with a finding that the cause of death was DPH toxicity and the manner of death was homicide.

¶ 18 On July 14, 2003, the State's motion for leave to file an Information against Bieber and Smith was granted. Both women were charged with one count of felony negligent homicide, three counts of felony criminal endangerment, and one count of felony tampering with physical evidence. Arrest warrants were issued. On March 25, 2004, the State's motion to dismiss charges against Smith without prejudice was granted. The case then proceeded exclusively against Bieber. A jury trial was held from August 16-30, 2005, at the conclusion of which the jury found Bieber guilty of negligent homicide relative to Dane, and two counts of criminal endangerment for knowingly engaging in conduct that created a substantial risk of death or serious bodily injury to two other young children who attended the day-care. In October 2005 Bieber was sentenced to a term of twenty years in the Montana Women's Prison with fifteen suspended for the negligent homicide charge. She was sentenced to a term of ten years, all suspended, for each criminal endangerment count to run consecutively to the homicide count. She filed a timely appeal.

¶ 19 Additional facts will be addressed below as needed for our analyses.

STANDARDS OF REVIEW

¶ 20 Motion to Suppress: The standard of review of a district court's denial of a motion to suppress evidence is whether the court's findings are clearly erroneous. To determine whether a finding of fact is clearly erroneous, this Court ascertains whether the finding is supported by substantial evidence, whether the district court...