State v. Davis

• Citation: 205 W.Va. 569,519 S.E.2d 852
• Decision Date: 28 June 1999
• Docket Number: No. 25812.,25812.
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Mary Beth DAVIS, Defendant Below, Appellant.

519 S.E.2d 852

205 W.Va. 569

STATE of West Virginia, Plaintiff Below, Appellee, v. Mary Beth DAVIS, Defendant Below, Appellant.

No. 25812.

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1999.

Decided June 28, 1999.

Concurring Opinion of Chief Justice Starcher September 8, 1999.

Mark Burnette, Esq., Prosecuting Attorney, Lewisburg, West Virginia, Attorney for the Appellee.

Franklin D. Cleckley, Esq., Morgantown, West Virginia, Paul S. Detch, Esq., Lewisburg, West Virginia, Attorneys for the Appellant.

MAYNARD, Justice:

This appeal was brought by Mary Beth Davis, defendant below, from the Circuit Court of Greenbrier County. The defendant appeals her convictions for attempt to injure her infant son by poison and first degree murder of her infant daughter. The circuit court sentenced the defendant to life imprisonment without parole for the murder conviction and to a consecutive sentence of 3-18 years imprisonment for the attempt to injure by poison conviction. In this appeal, the defendant assigns the following errors: (1) insufficiency of evidence to support the convictions, (2) failure to dismiss for pretrial indictment delay, (3) failure to instruct jury on malice, (4) failure to instruct on lesser included offenses, and (5) prosecutorial misconduct. For the following reasons, we affirm.

I. STATEMENT OF FACTS

The record indicates that the defendant is married to Gary Davis.¹ The Davises were married on November 19, 1977. Two children were born to the marriage. The first child, Tegan, was born on February 27, 1979. The second child, Seth, was born on July 18, 1981. The defendant began her career as a registered nurse in 1972. Mr. Davis entered medical school at the West Virginia School of Osteopathic Medicine in Lewisburg, West Virginia in 1979.²

On September 30, 1981, the Davises rushed Seth to Greenbrier Valley Hospital after he appeared to have a seizure.³ While at the hospital, blood was drawn from Seth and it showed a normal blood sugar level of 72. However, a test of his spinal fluid revealed an abnormal low reading of 11. It appears that Seth's condition was grave and after about three hours at the hospital, medical officials decided to have him flown to Pittsburgh Children's Hospital (PCH). Upon arrival at PCH, it was discovered that Seth had an abnormal and dangerous level of insulin in his body. The insulin level was 320. The treating physician at PCH, Dr. Dorothy Becker, concluded that someone had injected Seth with insulin.⁴ Dr. Becker reported her suspicions to Seth's treating physician in West Virginia, Dr. Joseph Aldrich, and instructed Dr. Aldrich to report suspected child abuse to West Virginia officials. Dr. Aldrich did not make such a report. As a result of the large quantity of insulin in Seth's body, he sustained massive brain damage and severe retardation. At trial it was revealed that Seth lives in a state of vegetation.⁵

On March 10, 1982, the defendant rushed Tegan to Greenbrier Valley Hospital.⁶ Tegan had been vomiting and complaining of burning of the urine. Tegan was admitted to the hospital. It appears that during the late evening hours of Tegan's admission, Nurse Helen M. Pack observed the defendant injecting something into Tegan. Nurse Pack testified regarding the incident as follows:

Q. Did there come a time during the evening that you observed the defendant give Tegan a shot?

A. Yes. At 2:15, Dr. Aldrich was out of the room, and Mary Beth came in, went over to Tegan and gave her a shot. And I said, "Well, what was that Mary Beth?" And she said, "That was thiamine." She says, "Now, you can chart that it was 100 milligrams of thiamine."

Q. Did you chart it?

A. I said, "Mary Beth, I can't chart that's 100 milligrams of thiamine, because I didn't give it and I don't know for sure what's in there."

Q. Did you try to determine what was in the syringe?

* * *

Q. Can a registered nurse give a shot without an order?

A. On her own? Not unless the doctor leaves like an order to say, "use this if necessary." But there has to be some sort of a—or some standing order, what they called "standing orders," that he leaves with the patient, that if you need these, you can use anything on this list, and write it as an order. It's like a standing order. But he didn't have any standing orders for Tegan.

* * *

Q. If a doctor was going to order a shot to be given, who would he order to do it?

A. I would be the one to give it. Mary Beth, she was an R.N., but at that point, she was the child's mother. I was the nurse in charge. I was the one to be caring for the child.

Q. Have you ever known a doctor to give an order for a mother to inject a patient?

A. Not unless it would be something at home. Not in the hospital, no.⁷

Tegan took a turn for the worse at some point after being injected with a substance by the defendant. On the morning of March 12, 1982, plans were made to transfer Tegan to a larger hospital, however Tegan died in the ambulance before it reached the hospital, and she was brought back to Greenbrier Valley Hospital.

An autopsy was performed on Tegan by Dr. Anne Hooper. Dr. Hooper reported that Tegan's death was a homicide caused by caffeine overdose. Dr. Hooper found inside of Tegan's stomach "beads" of caffeine pills which had been contained in pill capsules. Dr. Hooper opined that because of the lethal quantity of caffeine found in Tegan's intestinal tract, the child had to have been fed the pills over a short period of time. On the evening of Tegan's death, Mr. Davis discovered an empty blister pack, that had contained diet capsule pills, in a tied-up garbage bag on his back porch.⁸

Law enforcement officials began an investigation into Tegan's death in 1982, but halted it at some point prior to 1985. The case was reopened in 1995. In November of 1996, a grand jury returned an indictment charging the defendant with attempting to injure Seth by poison and first degree murder of Tegan.⁹ The defendant was subsequently convicted and sentenced on both charges. This appeal was prosecuted assigning the following as errors: (1) insufficiency of evidence to support the convictions, (2) failure to dismiss for pretrial indictment delay, (3) failure to instruct jury on malice, (4) failure to instruct on lesser included offenses, and (5) prosecutorial misconduct.

II. DISCUSSION

A. Insufficiency of Evidence

The defendant's first assignment of error is that the State's evidence was insufficient to support her convictions. This Court set out the standard of review for a sufficiency of the evidence claim in State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). We held in Syllabus Point 1 of Guthrie that:

The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.¹⁰

We further elaborated in Syllabus Point 3 of Guthrie, in part, that:

A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.

The record shows that the defendant's convictions were based upon circumstantial evidence. This Court has previously ruled that we may accept any adequate evidence, including circumstantial evidence, as support for a conviction. Guthrie, 194 W.Va. at 668, 461 S.E.2d at 174. It was noted in Guthrie that:

Circumstantial evidence ... is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some case point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.

Guthrie, 194 W.Va. at 668, 461 S.E.2d at 174, quoting, Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137-38, 99 L.Ed. 150, 166 (1954)

. With these principles in view, we will examine the evidence for sufficiency separately as to each conviction.

1. Conviction for attempted poisoning of Seth.

The record in this case is clear that Seth lives in a state of vegetation. The evidence is clear that prior to September 30, 1981, Seth's physical condition was not that of vegetation. The State presented evidence to show that on the morning of September 30, 1981, the defendant was at home alone with Seth and Tegan. Mr. Davis disputed this fact at trial and testified that he believed he was home with the defendant. However, the State presented a statement that Mr. Davis gave to an investigating officer wherein Mr. Davis indicated he received a call at the Osteopathic School from the defendant telling him to come home because Seth was ill. The State also called the "rotation" record keeper from the Osteopathic School to testify that Mr. Davis was on rotation with a Dr. Andrew...