State v. Buchhorn
| Decision Date | 13 August 2021 |
| Docket Number | 122,252 |
| Court | Kansas Court of Appeals |
| Parties | State of Kansas, Appellee, v. Carrody M. Buchhorn, Appellant. |
NOT DESIGNATED FOR PUBLICATION
Appeal from Douglas District Court; Sally D. Pokorny, judge.
William J. Skepnek, of The Skepnek Law Firm, P.A., of Lawrence, Keynen J. (K.J.) Wall, Quentin M. Templeton, and Russell J. Keller, of Forbes Law Group, LLC, of Overland Park, Stephan L. Skepnek, of The Sader Law Firm, of Kansas City, Missouri, and Kevin Babbit, of Fagan & Emert, LLC of Lawrence, for appellant.
Emma C. Halling, assistant district attorney, Kate Duncan Butler assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Atcheson, P.J., Hill and Cline, JJ.
This matter involves a child who died unexpectedly at the home daycare where Carrody M. Buchhorn worked. Buchhorn was the last person who admitted having contact with the child. After the Douglas County coroner ruled the child's death was instantaneous and caused by a blow to the head, a jury convicted Buchhorn of second-degree murder. We reverse Buchhorn's conviction and remand for a new trial because her trial counsel's constitutionally deficient performance prejudiced her right to a fair trial.
Nine-month-old O.O. was found unresponsive in a Eudora daycare crib following an afternoon nap. The owner called 911, while Buchhorn performed CPR on O.O. Despite Buchhorn's and first responders' efforts to resuscitate the baby, O.O did not survive.
During the investigation of O.O.'s death, police interviewed Buchhorn twice. She waived privilege in both interviews and consistently denied harming O.O. Buchhorn, a mother of two grown children, had no history of abuse or violence and no prior criminal history.
The Douglas County coroner, Dr. Erik Mitchell, performed the autopsy on O.O. Dr. Mitchell's autopsy revealed that O.O. had suffered a significant skull fracture but no brain swelling. Dr. Mitchell deduced that O.O. died instantly following a blow to the head, which he claimed released mechanical energy into the base of the brain causing "temporary cessation of function at the base of the brain" or "depolarization of neurons." He suspected that O.O. was stepped on.
Since Buchhorn was the last person who admitted having contact with O.O., the State charged her with first-degree murder and in the alternative, second-degree murder, a felonious, unintentional, but reckless killing of a human being. Buchhorn retained law partners Paul Morrison and Veronica Dersch to represent her.
Dr. Mitchell testified about his "depolarization theory" on O.O.'s cause of death at the preliminary hearing. He said he believed, "going on statistics," that O.O. died instantaneously due to "a direct effect on depolarization of neurons at the area of the base of the brain, upper spinal cord manila, [which] interferes with the ability to breathe, and that leads to death." He concluded O.O. had no "anatomic deformity or no anatomic reason to be dead other than the physical injury, and that this physical injury will release energy into the area that is critical for survival at the base of the brain."
Buchhorn's trial counsel did not elicit information about the foundation of Dr. Mitchell's depolarization theory or challenge it at the preliminary hearing. Her counsel did not ask Dr. Mitchell about the statistics on which he relied to develop his theory, nor did they ask Dr. Mitchell to identify any medical literature which may support or address this theory.
At trial, Dr. Mitchell recounted his opinion on O.O.'s cause of death. He again noted that O.O. had a skull fracture with little brain swelling, which caused him to conclude not much time had passed between the trauma and death. Dr. Mitchell said a skull fracture is not inherently fatal but becomes fatal if energy is transferred to the brain. He also testified that if someone were with O.O. when the injury occurred, that person would immediately recognize something was wrong with O.O. and that O.O. needed immediate care. Buchhorn's trial counsel raised no objections to Dr. Mitchell's testimony regarding his depolarization theory.
In addition to Dr. Mitchell's testimony, the State also admitted electronic messages from Buchhorn sent shortly before O.O.'s death, complaining about her low pay and disparaging the attitude of the daycare owner.
Buchhorn's trial counsel retained a forensic pathologist, Dr. Carl Wigren, to testify at trial. Dr. Wigren resided in Seattle, Washington, and was referred to them by another expert who was not taking any new cases. Dr. Wigren did not address Dr. Mitchell's depolarization theory in his testimony. Instead, he alternatively interpreted O.O.'s injuries. Dr. Wigren testified that he believed O.O.'s skull fracture showed signs of healing from an injury that was a few days to a week old. When asked if he knew what killed O.O., Dr. Wigren said, "I honestly don't."
The State relied heavily on Dr. Mitchell's opinion on O.O.'s cause of death in closing arguments. Because Dr. Mitchell contended that death by depolarization is nearly instant, the State repeatedly argued this theory implicated Buchhorn, as the last person to care for the child. The State also argued Dr. Mitchell was more credible than Dr. Wigren, noting his opinions were more reliable because of his "impressive" professional experience. Buchhorn's counsel argued the State presented only circumstantial evidence.
The jury deliberated for two days before returning a verdict of guilty on the lesser charge of second-degree, reckless murder.
After the verdict, Buchhorn hired new counsel and moved for a new trial. Among other issues, Buchhorn challenged the admissibility of Dr. Mitchell's depolarization theory under the Daubert standard for expert opinion testimony and raised several ineffective assistance of counsel claims, including (1) trial counsel failed to investigate Dr. Mitchell's testimony, (2) trial counsel failed to file an appropriate Daubert motion, and (3) trial counsel failed to present responsive expert testimony at trial. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
Several witnesses testified at the subsequent evidentiary hearing. Dr. Mitchell also produced materials for this hearing, after the jury trial, that he contended supported his theory of depolarization.
Failure to challenge depolarization theory
Dr. Sudha Kessler, a licensed physician and board-certified pediatric neurologist, testified for Buchhorn. She practiced pediatric neurology at the University of Pennsylvania Children's Hospital in Philadelphia, and she had extensive experience treating pediatric brain injuries and assessing the effect of head trauma. Dr. Kessler testified she investigated causes of death as a quality review panel member.
Dr. Kessler evaluated Dr. Mitchell's depolarization theory and found it to be unreliable. She testified that some energy, such as electrical or electromagnetic, can impact the signals of the brain cells, but not kinetic or mechanical energy, such as a force from a blow to the head. Dr. Kessler was "not aware of any circumstances in which mechanical energy directly translates into electrical change in the brain." Dr. Kessler had never heard or read about a brain death with no evidence of brain injury.
Dr. Kessler reviewed texts, published studies, and other sources of medical research, but she found no support for the proposition that mechanical energy can depolarize, interfere with, or disrupt the brain cells or nerves and cause instant death, without causing injury to the brain. Dr. Kessler also reviewed the literature Dr. Mitchell produced posttrial and testified she did not believe it supported Dr. Mitchell's theory. Dr. Kessler further noted:
Dr. Yu-Tze Ng, the Chief of Neurology at Children's Hospital in San Antonio and a tenured pediatrics professor at Baylor College of Medicine in Houston, also testified for Buchhorn. Dr. Ng testified he does not like using the term "depolarization" because that is something that happens normally. Dr. Ng also said he believed Dr. Mitchell was trying to imply a sudden cessation of the whole brain. Dr. Ng stated:
Dr. Ng testified that Dr. Mitchell's theory diverged from medical science. Dr. Ng said the articles Dr. Mitchell provided to support his theory actually contradicted Dr. Mitchell's claims. Dr. Ng stated that he did not know how O.O. died but, based on the evidence, O.O. did not die from a brain injury.
Dr Wigren also testified at the posttrial hearing. He stated he did not know Dr. Mitchell would present his theory of depolarization or that the theory would be such a...
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