State v. Davis

• Decision Date: 22 September 2011
• Docket Number: (CC 02C45953,SC S058641).,CA A134216
• Citation: 261 P.3d 1197,351 Or. 35
• Parties: STATE of Oregon, Petitioner on Review,v.Terry Dean DAVIS, Respondent on Review.
• Court: Oregon Supreme Court

351 Or. 35

261 P.3d 1197

STATE of Oregon, Petitioner on Review,

v.Terry Dean DAVIS, Respondent on Review.

(CC 02C45953

CA A134216

SC S058641).

Supreme Court of Oregon, En Banc.

Argued and Submitted March 7, 2011.Decided Sept. 22, 2011.

On review from the Court of Appeals.^*Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause for petitioner on review. Rolf C. Moan, Assistant Attorney General, filed the briefs. With him on the briefs were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.George W. Kelly, Eugene, argued the cause and filed the brief for respondent on review.WALTERS, J.

In this criminal case, the state argues that the Court of Appeals erred in reversing one of the trial court's rulings excluding certain evidence. Defendant, in response, challenges two of the trial court's other evidentiary rulings excluding evidence, which the Court of Appeals had affirmed.¹ Defendant was charged with murder and manslaughter based on allegations that he shook the victim, his 15–month–old daughter, and inflicted fatal abdominal and brain injuries on the night that she died. Defendant contended that the victim's autopsy revealed that the victim had been injured at least several days before the night of her death and that nothing that he intentionally did to the victim on that evening caused the catastrophic brain hemorrhage that killed her. As relevant to this case, defendant attempted to introduce evidence that the victim had been subjected to physical abuse throughout her short life; that a friend of the victim's mother saw the victim four days before her death and concluded that the victim looked like the friend's own daughter, who had suffered a brain injury as a baby; and that that friend relayed that conclusion to the victim's mother. In each instance, the trial court excluded the evidence. Defendant was convicted of one count of murder and one count of manslaughter.

Defendant appealed his convictions to the Court of Appeals and that court reversed the judgment of the trial court, concluding that the trial court erred in excluding testimony that, four days before the child's death, a friend told the victim's mother that the victim resembled the friend's child, who had suffered a brain injury. State v. Davis, 235 Or.App. 327, 230 P.3d 987 (2010). However, the Court of Appeals affirmed without discussion the trial court's rulings as to the evidence of the victim's prior physical abuse and the statement of the mother's friend that, four days before she died, the victim resembled the friend's own child, who had suffered a brain injury. Id. We granted the state's petition for review and, for the reasons that follow, now affirm in part and reverse in part the decision of the Court of Appeals,

Except where noted, the following facts are undisputed. Defendant's daughter, the victim in this case, was 15 months old when she died on June 30, 2002. The victim lived with her mother, Ecklund, and several of Ecklund's other children. Ecklund and defendant were not married and lived apart. The victim stayed with defendant overnight at his home from time to time.

The Court of Appeals described the events of the days preceding the child's death as follows:

“Ecklund, the victim, and Ecklund's other children vacationed in Mexico and California in the middle of June 2002. During the trip, the victim fell off a motel bed. Ecklund told police later that she ‘couldn't get there fast enough’ and that the victim hit the ‘top of her head’ in the fall. Ecklund testified, however, that the victim exhibited no signs of distress after the fall.

“Shortly after the family's return to Oregon, on June 24, the victim had an overnight visit with defendant. She returned to Ecklund's care the following day. On June 25, Ecklund noticed that the victim was not feeling well; she was vomiting and her eyes were ‘glassy.’ Ecklund asked her friend Payne, a registered nurse, to stop by and examine the victim. ² Payne did so and noticed that the victim was unresponsive. The trial court excluded as hearsay Payne's testimony that she had told Ecklund that the victim's condition looked just like that of Payne's daughter when she had suffered a traumatic brain injury years before. Payne tested the victim for dehydration by pinching the victim's skin and noticed that the victim's eyes were glassy and somewhat ‘rolled up’ in her head; Payne recommended that Ecklund have the victim examined by a doctor. During her testimony at trial, Ecklund did not recall Payne's visit or recommendation.

“Ecklund took the victim to Santiam Hospital a few hours after Payne's examination. There, the victim was evaluated, treated for dehydration and a viral infection, and given intravenous fluids. Her symptoms resolved, and the victim returned home the next morning.

“Defendant testified that, on June 29, around 7:00 p.m., he picked up the victim for an overnight visit. The victim was fussing and crying when defendant arrived, but showed no other signs of illness or injury. Once they arrived at defendant's home, defendant gave the victim a bath and changed her diaper. He then began doing some household chores while the victim, another child of defendant, and defendant's small dog played together in the garage. When defendant returned to the garage, he found the victim lying on her side on the floor. Defendant testified that the other child told him that the small dog had knocked over the victim. Defendant picked up the victim, but decided that she seemed unhurt.

“Later that evening, defendant ordered a pizza, which was delivered after 10:00 p.m. The victim was uninterested in the pizza, but ate a few pieces of pineapple. The victim spat up or vomited, and defendant testified that he noticed that the victim had a blank affect and had become limp. He called Ecklund at 10:58 p.m. to tell her that something was wrong with the victim and asked Ecklund to come to his house to help. A few minutes later, when Ecklund arrived, she found the victim limp and unresponsive and told defendant to call 9–1–1. Defendant made the call and told the dispatcher that the victim had recently eaten pineapple and spat up and that he was concerned about a possible allergic reaction.

“Paramedics arrived at defendant's home around 11:00 p.m. They found the victim lying on the floor with defendant, Ecklund, and defendant's other child nearby. Defendant told the paramedics that the victim had not suffered any trauma, but had been sitting on the couch and went suddenly limp. The paramedics found the victim unresponsive but breathing, with a body temperature of 92.7 degrees. The paramedics also noticed a small bruise on her forehead and some bruising on her abdomen. The paramedics testified that Ecklund did not tell them about the victim's visit to Santiam Hospital several days previously. The paramedics decided to transport the victim to Salem Hospital after determining that she rated extremely low on a scale measuring brain functioning.”

Davis, 235 Or.App. at 330–31, 230 P.3d 987.

Defendant and Ecklund followed the ambulance in a car to Salem Hospital. At Salem Hospital, doctors questioned Ecklund and defendant. Defendant told the emergency room physician that the child had not suffered any trauma or injury that evening, and had not experienced any vomiting or other illness. Ecklund did not mention her discussion with Payne, the victim's visit to the hospital four days earlier, or the victim's treatment for dehydration. Testing revealed that the victim had a subdural hematoma ³ and needed surgery to relieve the resulting pressure on the brain. Because Salem Hospital does not have pediatric neurosurgeons on staff, the treating physicians decided to transport the victim to Oregon Health Sciences University Hospital (OHSU) in Portland. At OHSU, doctors performed surgery to relieve the pressure on the victim's brain. Subsequent testing showed that the victim's brain was no longer functioning, and she was taken off life support on June 30, 2002.

A medical examiner performed an autopsy the next day. The autopsy revealed, among other things, that the victim had about a quart and a half of blood in her abdomen, which was due to tear in the mesentery, the lining of the abdominal cavity that connects to parts of the small intestine. In addition, the victim's brain was swollen, the subdural hematoma on the right side of the victim's head had been removed by the surgeons who had tried to save her, and the victim had retinal hemorrhaging and bleeding at the base of the optic nerve. The medical examiner later testified that the retinal hemorrhage and brain injury were caused by acceleration and deceleration of the victim's head, which would have been caused either by violent shaking, a violent shake followed by a slam, or a single slam. The medical examiner also stated that the injuries were “acute” and had to have occurred within 24 to 36 hours of the victim's death; according to him, the microscopic evidence was not consistent with an older abdominal injury. Finally, he concluded that the cause of the victim's death was homicide.

In addition to those findings related to the cause of death, the autopsy and a radiology test revealed that the victim had suffered other injuries in the weeks and months before her death. Among other things, the victim had healing fractures to three ribs and a healing fracture on the femur, as well as possible old fractures on her tibia and fibula.

Defendant was initially charged in 2002 with various crimes arising out of the victim's death, including murder by abuse and manslaughter. To support the murder-by-abuse charge, the state relied on, among other things, the healing leg and rib fractures and an expert's opinion that the victim had suffered child abuse. The case went to trial in 2003. At that trial, the victim's entire medical history was admitted into evidence. The jury found defendant guilty of manslaughter but could...