State v. Bluff

• Decision Date: 19 July 2002
• Docket Number: No. 990808.,990808.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Ferosa BLUFF, Defendant and Appellant.
• Court: Utah Supreme Court

52 P.3d 1210

2002 UT 66

STATE of Utah, Plaintiff and Appellee, v. Ferosa BLUFF, Defendant and Appellant.

No. 990808.

Supreme Court of Utah.

July 19, 2002.

Mark L. Shurtleff, Att'y Gen., Karen Klucznik, Asst. Att'y Gen., Salt Lake City, for plaintiff.

Edward K. Brass, Salt Lake City, for defendant.

INTRODUCTION

DURHAM, Chief Justice:

¶ 1 Ferosa Bluff ("Bluff") appeals her conviction of first degree felony murder under Utah Code section 76-5-203, second degree felony child abuse under Utah Code section 76-5-109, and second degree felony sexual abuse of a child under Utah Code section 76-5-404.1 in connection with the death of her three-year-old child.

BACKGROUND

¶ 2 "On appeal, we recite the facts from the record in the light most favorable to the jury's verdict and present conflicting evidence only as necessary to understand issues raised on appeal." State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

¶ 3 On October 21, 1998, Rebecca Bluff, three years, ten months old, was pronounced dead at Primary Children's Hospital. Her death was caused by blunt force trauma injuries sustained while in the care of her mother, Bluff.

¶ 4 Approximately two weeks prior to October 21, 1998, Bluff, accompanied by her two daughters, Rebecca and Sarah, left her home in Canada to live with Andrew ("Andrew") and Suzanna Fedorowicz ("Suzanna") in Utah. Before her arrival in Utah, Rebecca had been a normal, healthy child with no known health problems. On October 21, 1998 at about 3:00 p.m., two weeks after Rebecca's arrival in Utah, an emergency dispatcher received a 911 call describing a child in full cardiac arrest at the Fedorowiczs' residence, purportedly from falling down the stairs the preceding day. The paramedics and fire department responded to the call and found Rebecca lying naked and wet on the bathroom floor, where Bluff and Andrew had been performing CPR on her lifeless body. Bluff and Andrew stated they had placed Rebecca in a tub of cold water to revive her after she fainted. The paramedics and other emergency personnel observed that Rebecca was in a severe state of hypothermia, not breathing, and lacked a pulse; also, her pupils were fixed, dilated, and glazed, indicating her death before their arrival. Neither the paramedics nor the other emergency personnel were able to revive Rebecca, and she was officially pronounced dead at Primary Children's Hospital at 3:58 p.m.

¶ 5 The autopsy showed that, prior to her death, Rebecca suffered severe internal and external bruising and bleeding, including serious bruises on her arms, legs, feet, and face. An especially severe bruise—a large solid purple bruise—extended from the bottom of her buttocks to the bottom of her shoulder blades. Rebecca also had a "very bright purple bruise around her genitals." In addition to the external bruising, Rebecca suffered severe internal injuries and internal hemorrhaging leaving "virtually no blood left in [her circulatory system]."

¶ 6 After Rebecca was pronounced dead at the hospital, Dr. Howard Kadish, a doctor specializing in pediatric emergency medicine, performed a full examination of Rebecca's body. He testified at trial that the linear marks on Rebecca's buttocks were consistent with injuries inflicted with a belt, rod, hand, or other similar linear tool. Bruises on Rebecca's legs were consistent with being repeatedly hit or beaten with a long object. He further testified that Rebecca's bruises were not likely from a fall, but were the result of non-accidental trauma, as the pattern injuries¹ on Rebecca's body were inconsistent with a fall down the stairs.

¶ 7 Dr. Timothy J. Kutz, a pediatrician specializing in child abuse and neglect, testified that Rebecca may have fallen down some stairs, but that the injuries that killed her were intentionally inflicted, not accidental. He also testified that he had never seen bruising on a child as extensive as Rebecca's bruising.

¶ 8 Dr. Maureen Frikke, a forensic pathologist, performed an autopsy on Rebecca's body. Dr. Frikke testified that Rebecca suffered extensive pattern and non-pattern bruising. Dr. Frikke stated that, in her opinion, not all of the bruises were inflicted at once, but were inflicted over a short period of time. Dr. Frikke testified that Rebecca had pattern bruises on her right arm, cheek, and legs, consistent with grasping and pinching; a "wrap-around" bruise on her left arm; numerous linear bruises that wrapped around from her left hip to the front of her thigh and then to the back of her thigh; and linear bruises that wrapped around her left leg near her knee. Rebecca also had four lacerations on the back of her head that appeared to have been inflicted by a knife-like instrument. None of the cuts showed signs of healing.

¶ 9 Dr. Frikke further testified that leather straps with buckles and D-rings found in the Fedorowiczes' apartment would have inflicted injuries consistent with the pattern injuries on Rebecca's arms. The linear wrap-around injuries on Rebecca's legs were consistent with being struck by looped cords or looped rope. Rebecca had pattern injuries on both of her lower calves that were consistent with being bound or restrained by ropes, cords, or the same D-ring leather straps that could have caused the pattern injuries to Rebecca's arms. Bruises on the bottoms of Rebecca's feet were consistent with being beaten with a stick or a rod. Dr. Frikke testified that Rebecca's lower back and buttocks had extensive parallel pattern injuries and abrasions that were consistent with being struck by cords or a whip. In addition to the external pattern and non-pattern injuries, Dr. Frikke also explained that Rebecca suffered trauma injuries to her genitalia, causing hemorrhaging. According to Dr. Frikke, Rebecca also experienced interior irritation and swelling to the left side of the vagina.

¶ 10 Dr. Frikke opined that Rebecca would have manifested her pain and discomfort from her multiple injuries and bruising through crying or, at a minimum, through extreme irritability.

¶ 11 Bluff claimed that Rebecca's injuries were caused exclusively by a fall down the stairs on the day before her death. Bluff stated that she had been with her children "24/7" since they moved in with the Fedorowiczs, and that she had never left the children alone with the Fedorowiczs during her stay. Although Bluff claimed she did not spank or punish her children, Andrew admitted that he had spanked Rebecca on numerous occasions for disciplinary reasons. Bluff asserted, however, that she would have known if anyone had spanked or abused her children.

¶ 12 Bluff further contended that, even though she was the primary caregiver, taking care of all her children's needs, she did not notice any of Rebecca's extensive injuries until she and Andrew undressed Rebecca to place her in a cold bath in an attempt to revive her on the day of her death. Bluff stated that, prior to Rebecca's fainting, Rebecca did not display any signs of injury, discomfort, or other evidence that would have alarmed Bluff or called attention to Rebecca's extensive injuries.

ISSUES

1. Gruesome Photographs

¶ 13 Bluff submitted a motion in limine to exclude all photographic evidence of the victim. Bluff specifically objected to four color autopsy photographs of Rebecca, State's exhibits one through four. Exhibit one shows Rebecca's bruised lower buttocks and thighs with a metric card lying on one leg. Exhibit two is a photo of Rebecca lying face down on the medical examiner's table showing the extensive bruising on her backside and buttocks. Exhibit three depicts a photo of Rebecca's buttocks showing bruising, abrasions, and scratching. Exhibit four is a photo of the back of Rebecca's head shaven to show the extensive bruising to the back and side of the head. Additionally, this photo shows several lacerations that were previously hidden under the hairline.

¶ 14 At the hearing on the motion in limine to suppress the photographs, the trial judge initially determined that not one of the State's photographic exhibits, including exhibits one through four, was gruesome because the photographs did not unfairly depict Rebecca's injuries or her condition. The trial judge further substantiated his ruling by noting the photographs' lack of blood, body contortions, and facial contortions. The trial judge did acknowledge that State's exhibits two and four could potentially be gruesome, but concluded that the disparate versions of the events leading up to Rebecca's death offered by witnesses created "an unusual probative value for the[ir] admissibility...."

2. Videotape Evidence

¶ 15 In the Fedorowiczs' apartment, and in another apartment nearby, which the Fedorowiczs rented, investigating officers found a cat-o'-nine-tails,² leather straps that were about two inches wide and ten to twelve inches long with D-rings and buckles, leather straps connected to an O-ring with one strap connecting to a buckle and the other strap having holes for the buckle, another whip with a two-inch handle and six-inch pliable leather strap, and two three-foot-long chains with clasps at the ends. Each of these items was introduced into evidence.

¶ 16 The State sought to introduce into evidence a videotape wherein Bluff, Andrew, and Suzanna engaged in sadomasochistic sexual activities using items similar to the whips and restraints found by the officers. Bluff submitted a motion in limine to suppress the videotape evidence and any photographs of Bluff engaging in consensual sexual activities with other adults. The court initially took the matter under advisement subject to a sufficient evidentiary foundation by the State's expert witnesses, and later denied Bluff's motion to exclude the videotape.

¶ 17 The State did not play the videotape for the jury, but presented a description of its contents through an officer who, after viewing the videotape, testified about two different scenes involving Bluff, Andrew, and Suzanna. The officer...