State v. Brooks, No. 27446-9-II (Wash. App. 3/9/2004)
Decision Date | 09 March 2004 |
Docket Number | No. 27446-9-II,27446-9-II |
Court | Washington Court of Appeals |
Parties | STATE OF WASHINGTON, Respondent, v. CAYCE LEE BROOKS, Appellant. |
Appeal from Superior Court of Clark County. Docket No. 98-1-00226-3. Judgment or order under review. Date filed: 04/04/2001. Judge signing: Hon. John F Nichols.
Counsel for Appellant(s), Edward L. Dunkerly, Attorney at Law, 613 SW Utah St, Camas, WA 98607-2540.
Counsel for Respondent(s), Kimberley Robert Farr, Attorney at Law, Clark Co Pros Attys Offc, PO Box 5000, Vancouver, WA 98666-5000.
A jury convicted Cayce Lee Brooks of first degree assault of a child, Z.B. Brooks appeals, claiming numerous errors relating to the medical testimony, jury instructions, expert witnesses, and prosecutorial misconduct. We find that the trial court did not err in its evidentiary rulings, nor did it abuse its discretion by refusing to instruct the jury on Z.B.'s traumatic birth. And although we find that the State's comments during closing argument were improper, we conclude that this error was harmless. Thus, we affirm.
On November 22, 1997, Brooks took custody of a two-day-old baby boy. She named him Z.B. and was in the process of adopting him. On February 2, 1998, Brooks called 911 to report that Z.B. had stopped breathing and that there was an unusual fluid coming from his mouth.
According to the transcript of the 911 call, Brooks said, III-A Report of Proceedings (RP) at 188. Brooks indicated to several of the people who responded to her call for aid that she had been roughhousing with Z.B., who was then 74 days old, by throwing him into the air and tossing him onto her bed. She also indicated that she left the child alone to prepare a bottle and when she returned she found that he was not breathing and a white milky substance was oozing from his mouth.
Z.B. was taken to the Southwest Washington Medical Center where he was observed by Dr. Elo Wobig in the emergency room. Dr. Wobig ordered a CT scan and, based on its results, transferred Z.B. by a pediatric transport team to Emanuel Hospital in Portland, Oregon, where there were pediatric intensive care and neurosurgery services available. At Emanuel, Dr. Cynthia Christofani examined the child and concluded that the injuries were the result of a non-accidental head trauma inconsistent with Brooks's account.1
After Dr. Monica Clare Wehby performed emergency neurosurgery on Z.B., Dr. William Bennett, a pediatric radiologist, did a full skeletal survey and magnetic resonance imaging (MRI) and discovered unhealed fractures of the top and bottom end of Z.B.'s left leg and a possible fracture of Z.B.'s right thigh bone. These injuries are caused by a simultaneous twisting of the child's legs and are non-accidental. The CT scan revealed an older or chronic (old) subdural hematoma on Z.B.'s brain as well as new or acute subdural hematomas and brain contusions on both sides.
Dr. Christofani also consulted with Dr. Michael Lukschu, a member of the Child Abuse Response and Evaluation Service team at Emanuel. Dr. Lukschu examined Z.B., read the other reports, and concluded that Z.B.'s injuries appeared to be non-accidental.
Dr. Rod Belkin, a diagnostic radiologist, also reviewed Z.B.'s CT scan. Dr. Belkin noted the chronic subdural hematoma on the right side of Z.B.'s brain. He testified that he believed this wound to be at least a week old. He also noted acute subdural hematomas on both the left side and the right side of the front temporal junction of Z.B.'s brain.
Based on these examinations, Z.B.'s doctors determined that he was suffering from shaken baby syndrome (SBS) and had been abused.
After an 11-day jury trial at which each of the treating physicians testified as described above, a jury convicted Brooks of one count of first degree assault of a child. She appeals, objecting to the court's admission of evidence of SBS and raising numerous errors, including the trial court's refusal to instruct the jury on her defense that Z.B.'s injuries were the result of a traumatic birth and were therefore an accident.
We have thoroughly reviewed the record and determined that (1) there was no evidence to support Brooks's claim of accident and the trial court properly refused to instruct the jury on Brooks's accident defense; (2) trial court did not err in allowing the witnesses to testify that Z.B. was diagnosed with SBS; (3) evidence that both of Z.B.'s legs were broken by an intentional twisting motion 4 to 10 days before they were x-rayed was properly admitted to show intent and lack of mistake and accident; (4) admitting medical evidence and testimony from Z.B.'s treating physicians was not cumulative and did not violate Brooks's right to confrontation; (5) the trial court properly refused to enforce Brooks's subpoena requesting production of a consulting medical expert witness's tax records; (6) the trial court properly denied Brooks's motion to pay expert witnesses at public expense because Brooks was not indigent and the State constitution only requires payment in advance of expenses in existence at the time of the constitution's enactment, e.g., court costs, subpoena fees; and (7) the trial court properly limited cross examination of the State's rebuttal witness, Dr. John Stirling.
In addition, we determine that Brooks was not denied effective assistance of counsel. (1) Her counsel's failure to object to hearsay evidence was tactical. (2) Brooks had no right to be present for the taking of exceptions to the court's instructions and she was only briefly absent. (3) Even if trial counsel should have objected to the assault Instruction No. 5, it was a proper statement of the law on this evidence. Also, given Instruction No. 6's definition of assault, error, if any, was harmless. Furthermore, the trial court did not err by refusing to give a unanimity instruction because assault of Z.B. was a continuing offense and did not require a unanimity instruction. And the prosecutor's comments during closing argument did not deprive the appellant of her right to a fair trial. Thus, we affirm.
Brooks challenges the trial court's admission of evidence of "shaken baby syndrome," claiming that it is not generally accepted in the scientific community. She also asserts that she was denied the right to a fair trial when the trial court allowed the witnesses and parties to use the phrase "shaken baby syndrome," but she fails to cite any legal authority requiring exclusion of the phrase. See RAP 10.3(a)(5). See also State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999) ( ).
Although use of the phrase "shaken baby syndrome" should be avoided because it suggests the ultimate fact to be determined by the jury, here the State, the defense counsel, and numerous witnesses repeatedly used the phrase. Brooks cites no legal authority precluding the use of the phrase. Moreover, during trial, Brooks used the term and cannot now object.2 Error, if any was invited. State v. Wakefield, 130 Wn.2d 464, 475, 925 P.2d 183 (1996) ( ).3
Nor did Brooks preserve objection to the admission of SBS evidence at trial. Prior to trial Brooks moved to restrict the testimony of the diagnosis of SBS. After reviewing our decision in State v. Kunze,4 the court required the State demonstrate that evidence of SBS was generally accepted in the pediatric medical community by submitting articles and publications. After reviewing them and hearing the State refer to articles in People Magazine and the Oregonian referencing shaken baby syndrome, the trial court acknowledged that the term had achieved widespread use in the community, but it required that the State provide further testimony from the witnesses that the diagnosis was recognized in the medical community and was not just an "urban myth" before it would admit testimony that Z.B.'s diagnosis was SBS. II RP at 157. The State provided numerous medical journal articles demonstrating widespread acceptance of the term "shaken baby syndrome"5 and the trial court denied the defense motion to exclude the testimony subject to the State's providing further medical foundation for the syndrome through the testimony of its witnesses. The State's medical witnesses testified that the diagnosis of "shaken baby syndrome" was widely used in the pediatric community and a defense witness testified that SBS was taught in medical schools throughout the country. SBS refers to a constellation of injuries usually involving subdural hematomas, bilateral retinal hemorrhaging, and other bilateral injuries inconsistent with the reported mechanism of injury. The defense did not renew its motion to strike the evidence, request further hearing, or renew its motion to exclude evidence of the diagnosis. Thus, the matter is not preserved for our further review.6 When an evidentiary ruling on a motion in limine is tentative, a defendant who fails to seek a final ruling on the evidence waives any objection. State v. Riker, 123 Wn.2d 351, 369, 869 P.2d 43 (1994). The defense acquiesced in the process used by the trial court and did not request further hearing or otherwise preserve its objection to admission of the SBS diagnosis.
Brooks next argues that the trial court erred in admitting the evidence of Z.B.'s multiple injuries, including leg fractures that may have occurred at a different time. During a pretrial hearing, Brooks objected to the evidence of Z.B.'s unhealed broken legs under ER 404(b), claiming that it was evidence of other bad acts unrelated to the shaking and the brain damage that occurred on February 2,...
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