State v. Bordis

• Citation: 905 S.W.2d 214
• Parties: STATE of Tennessee, Appellee, v. Michael Arthur BORDIS, Sr., Appellant.
• Decision Date: 24 February 1995
• Court: Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

Page 214

905 S.W.2d 214

STATE of Tennessee, Appellee, v. Michael Arthur BORDIS, Sr., Appellant.

Court of Criminal Appeals of Tennessee,

at Nashville.

Feb. 24, 1995.

Permission to Appeal Denied by

Supreme Court July 10, 1995.

Mark J. Fishburn, Nashville, for appellant.

Charles W. Burson, Atty. Gen. and Reporter, Nashville, TN, Kathy Morante Principe, Associate Solicitor General, Nashville, Nicholas Bailey and Katrin Miller, Asst. District Attorneys General, Nashville, for appellee.

OPINION

WADE, Judge.

The defendant, Michael Arthur Bordis, Sr., was convicted of first degree murder and sentenced to a term of life imprisonment. In addition to his challenge to the sufficiency of the evidence, the defendant submits the following issues for appellate review:

(1) whether the trial court erred by admitting into evidence photographs of the victim; and

(2) whether the trial court erred by allowing as evidence prior acts of misconduct on the part of the defendant.

We find the evidence insufficient to support a first degree murder conviction; we also hold that the failure to exclude certain of the evidence requires a reversal of the conviction and a remand for a new trial.

Between 2:00 or 3:00 A.M. on Saturday, April 6, 1991, the defendant approached Metro Police Officers Raymond Rader and Ronnie Barnes in a Nashville parking lot and asked for help because his infant child had stopped breathing. The officers followed him back to his apartment and found the defendant's wife, Claudette Pittman Bordis, ¹ crying and holding her three-month-old son, Michael Bordis, Jr., in her arms. Officer Rader described the infant as having an "ash color ... kind of grayish," "cold to the touch," and with his arms in an upright position. There was no pulse. Doctors later determined that the victim had died of malnutrition and dehydration.

Officer Rader, who described the defendant as "a little excited," examined each of the two bedrooms in the apartment. The second contained a crib and a single-sized bed/playpen where the victim's half-brother Matthew Pittman, age 3 or 4, was found asleep. Because the room had no lights, the officer used a flashlight. There was a bottle in the baby's crib. The room had the smell of feces with an ammonia-type odor "like a lot of urine had been spilled." The officers described the room as "trashy." There was feces in a plastic dish in the window sill. While Matthew did not appear to be malnourished, he did have a black eye; and later, at the police station, Matthew ate two packages of crackers, two packages of doughnuts, and drank soft drinks.

Sergeant Barnes testified that the defendant told him "that the [victim] had not been eating very well lately." When asked about whether he had taken the victim to a doctor, the defendant indicated that he and his family had only recently moved to the area and did not yet have a doctor. Sergeant Barnes testified that the defendant showed little emotion during their conversations.

Detective Johnny Lawrence testified that he arrived at the defendant's apartment after the victim had been taken to the hospital. The defendant and his wife sat in the living room comforting each other; an older child, Matthew, was in their room. Initially, Detective Lawrence suspected that the victim had suffered infant death syndrome. When asked about the incident, the defendant explained that when he arrived at his home from work at about 2:30 A.M., he first observed his wife on the couch and then went to the bedroom to check on the children. He called his wife when he discovered something was wrong and she attempted to resuscitate the victim. Meanwhile, the defendant left to get help.

Later, Detective Lawrence saw the victim's body at the hospital. He described his appearance as similar to photographs he had seen of starving children in Africa. After consulting with the doctor, Detective Lawrence instructed another officer to transport the defendant and his wife to police headquarters for more intensive questioning.

Detective Lawrence, Officer Steve Stone, and Investigator Jim Mason all testified that the first thing they noticed when entering the apartment was the smell coming from the children's room. Each observed trash throughout their bedroom, smears of feces over portions of an ice chest and the walls, the feces in the dish in the window sill, and a training potty turned over on the floor. A bottle in the baby's bed apparently contained old or spoiled milk. There also appeared to be either vomit or milk on the blanket in the crib. Officers noted that there was rice cereal for babies, baby food and a half empty can of baby formula in the apartment.

Steve Proesch, an emergency medical technician who had been called to the defendant's apartment, testified that the victim was pale and emaciated by the time of his arrival. Rigor mortis and liver mortis had set in. Proesch described the parents as "upset."

Eureva Elmore, a Social Counsellor for the Department of Human Services, interviewed the defendant and his wife only hours after the discovery of the victim's death. Portions of the statement she acquired included the following information:

[The defendant] told [her] that he had come home ... [about 2:30] a.m. that morning, and had gone in to check on the baby, which was something that he normally did, that as soon as he saw the baby, he realized something was wrong. And he called for his wife to come in there. She ... then gave mouth to mouth resuscitation and asked him to go get the police. He said that since they didn't have a telephone he had walked down to use the pay phone but had ... run into two police officers who came back to the home with him.

* * * * * *

He [also stated] that they had noticed the baby had been thin, but they didn't think ... the baby had any medical problems.

* * * * * *

He told [her] that he had ... been investigated in Illinois for slapping Matthew.

* * * * * *

He said that they kept very little food in the house because they mostly ate out.

When asked about the appearance of the children's room, the counsellor described it as "very nasty" and "totally unke[m]pt." The defendant told her that he had noticed that the baby was losing weight but thought that it was due to his formula and that a change had been recently made. The defendant also told her that he believed the victim to be doing better on the new formula.

During this interview of the defendant, Claudette Bordis responded to many of the questions asked. She told Ms. Elmore that she had fed the victim at 8:00 P.M., only hours before his death, and then put him to bed. She indicated that she thought the victim might be allergic to milk and confirmed that they had changed his formula some two or three weeks before his death. She claimed that the victim had consumed from two to six bottles of the formula per day and acknowledged that the defendant, who from all appearances rarely changed or bathed the victim, seldom saw the victim without clothing.

Ms. Elmore, who spent the day the body was discovered with the victim's older brother, Matthew, described Matthew as constantly eating or wanting something to eat.

Dr. Julia Goodin, Deputy Chief Medical Examiner for Middle Tennessee, performed the autopsy and found dehydration and malnutrition to be the cause of death. The victim's medical records indicated that he weighed 9 pounds and 6 ounces when he was born; at the time of the autopsy, the victim weighed approximately 7 pounds and 10 ounces. Dr. Goodin testified that the child was obviously malnourished. She described his skin as just "lying on top of the bone" with no fat at all. Other visible signs of malnutrition were protruding ribs, a "scaphoid and sunken in abdomen," a drawn face, and sunken eyes. A bald spot on the back of the victim's head indicated that he had rarely been moved. Dr. Goodin testified that the victim would have been very lethargic prior to his death and observed that his green abdomen was a sign that decomposition had begun by the time the body was discovered. At the time of the autopsy, it was Dr. Goodin's opinion that the child had been dead for at least 24 hours; this would have made the estimated time of death at 10:30 A.M. the previous day, some sixteen hours before the discovery of the body. She did not think it was possible that the victim had been fed, as indicated by Ms. Bordis, at 8:00 P.M. the previous evening, only six or seven hours before the arrival of the police.

Dr. Goodin noted that there were several internal signs of malnutrition and dehydration. The victim's body cavities were dry and the organs were smaller than normal. Other than the signs of malnutrition, the victim's organs appeared to be functional. There was no indication of any disease. The examination of the stomach established that the child had not been recently fed. Autopsy results ruled out all other possible causes of death. In Dr. Goodin's view, the child would have been able to accept nourishment had it been supplied.

The defendant testified on his own behalf at trial. He stated that he had moved from Illinois to Nashville in mid-December of 1990 and was employed as an assistant manager at Wendy's. In January of 1991, two weeks after his wife gave birth to the victim, Ms. Bordis and her two sons moved to Nashville to join the defendant. During direct examination by his defense counsel, the defendant admitted that he had once slapped Matthew when they lived in Illinois and had talked to Child Services there about it. He testified, however, that his relationship with Matthew had improved and that his relationship with the victim was good. He stated that he and his wife had argued about how she kept house but that he "had learned to live with the fact that that's the way [his] house was going to be." He believed that she had the time to keep the house clean and that he preferred not to work all day and then come home and perform what he believed to be her duties.

...