State v. Fisk, 971462-CA

• Decision Date: 08 October 1998
• Docket Number: No. 971462-CA,971462-CA
• Citation: 966 P.2d 860
• Parties: 353 Utah Adv. Rep. 34 STATE of Utah, Plaintiff and Appellee, v. Michael James FISK III, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 860

966 P.2d 860

353 Utah Adv. Rep. 34

STATE of Utah, Plaintiff and Appellee, v. Michael James FISK III, Defendant and Appellant.

No. 971462-CA.

Court of Appeals of Utah.

Oct. 8, 1998.

Walter F. Bugden Jr. and Tara L. Isaacson, Bugden Collins & Morton, Salt Lake City, for Appellant.

Jan Graham, Atty. Gen., Thomas B. Brunker, and Craig L. Barlow, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before WILKINS, Associate P.J., and JACKSON and ORME, JJ.

OPINION

JACKSON, Judge:

Michael James Fisk III appeals from the magistrate's interlocutory order denying his motion to dismiss one count of child abuse. The State had previously filed charges against Fisk, but the magistrate dismissed those charges for insufficient evidence.

Fisk asserts that, because the magistrate dismissed the first charges against him, his due process rights would be violated if the State were allowed to refile charges against him. The State argues that it has presented new evidence sufficient to support refiling charges against Fisk under the standard articulated in State v. Brickey, 714 P.2d 644 (Utah 1986). The magistrate agreed with the State's contentions and denied Fisk's motion to dismiss.

Because this court lacks jurisdiction over the magistrate's order binding defendant over for trial, we must dismiss this appeal. However, we recognize that a motion in the district court to quash the magistrate's order, followed by an interlocutory appeal to this court, is likely. Thus, in the interest of judicial economy and providing guidance to the parties and the trial court, we also address the Brickey issues posed by this case. Cf. State v. Cloud, 722 P.2d 750, 755 (Utah 1986) (" '[W]hen a new trial or further proceeding is ordered, it is our duty to pass upon questions of law which may be pertinent and helpful in arriving at a final determination of the case' " on remand) (quoting Lopes v. Lopes, 30 Utah 2d 393, 518 P.2d 687, 688 (1974)).

BACKGROUND

Michael and Melissa Fisk were the legal guardians of two-year-old D.S. and his two siblings. On March 19, 1995, the Fisks brought D.S. to Primary Children's Medical Center, in full cardiac arrest. A CT scan revealed bleeding over the surface of his brain and substantial retinal bleeding. Although D.S. was resuscitated, the injuries to his brain have left him in a permanent vegetative state.

D.S. had additional injuries of varying ages, including earlier retinal hemorrhages and bruises on his forehead, ear lobe, arms, legs, and back. A CT scan of D.S.'s abdomen revealed calcified tissue in front of the vertebrae, indicating a prior severe extension or compression of his spine.

In April 1995, ¹ defendant and Ms. Fisk were each charged with a single count of child abuse. A preliminary hearing was held on July 18, 1995, before Judge Stephen Henriod, sitting as magistrate.

The State relied on evidence of D.S.'s old and new injuries to support its child abuse charges against defendant and Ms. Fisk. Dr. Helen Britton, a pediatrician and the interim director of the child protection team at Primary Children's Medical Center, testified about the approximate age of D.S.'s injuries, and that they could not have resulted from accidental trauma. However, Dr. Britton was not able to identify precisely the time at which D.S.'s injuries must have occurred. She could testify only that the newer injuries occurred within one week before March 19th, and that the older ones occurred more than one week before that date. Most importantly, she testified only that the massive brain injury that doctors observed on March 19, 1995, could not have been more than one week old.

Officer Beglarian testified that defendant said he and Ms. Fisk were with D.S. all day on March 19th. On that afternoon, defendant and Ms. Fisk fed D.S. oatmeal. When D.S. began choking on vomit, defendant took D.S. out of his highchair and laid him on his side. D.S. then lost consciousness and stopped breathing. After trying to resuscitate D.S., defendant and Ms. Fisk took D.S. to the hospital.

Further, defendant reported to Officer Beglarian that only he and Ms. Fisk cared for the children. The officer testified that she "assumed" from defendant's statements that he and Ms. Fisk were the children's primary caregivers. However, she could not testify about the number of hours during the day defendant was home with the children, and she acknowledged that she asked no questions on the subject of defendant's control over D.S. on March 19th.

The magistrate determined that the State had shown probable cause to believe that D.S.'s injuries were intentionally inflicted, but had not shown probable cause to connect either defendant or Ms. Fisk to those injuries. Consequently, the magistrate dismissed the information at the end of the July 18, 1995 preliminary hearing.

In November 1995, the State brought a juvenile court action in the interests of the Fisks' foster children. At those proceedings, Ms. Fisk gave her first sworn testimony about the events of March 19, 1995. For the first time, she included a detailed chronology of the critical period before she and defendant took D.S. to the hospital.

Ms. Fisk testified that she began feeding D.S. in the bedroom at about 3:15 p.m., and that defendant was also in the room. She finished feeding D.S. by 3:30 p.m. After she finished, she began brushing D.S.'s teeth, and D.S. then began to scream until he passed out. Ms. Fisk then took D.S. out of the highchair, put him on the floor, and left him in the bedroom alone with the defendant. About thirty minutes later, at 4:00 p.m., defendant brought D.S. out of the bedroom. D.S. was not breathing and had no heartbeat, and defendant and Ms. Fisk took him to the emergency room.

After the 1995 preliminary hearing, the Salt Lake District Attorney's office turned the case over to the Utah Attorney General's Child Abuse Unit. The Attorney General's office obtained an expert opinion from Dr. Marion Walker, a professor and head of the Division of Pediatric Neurosurgery at Primary Children's Medical Center.

Dr. Walker was able to more precisely establish the time frame during which D.S.'s injuries must have occurred. Dr. Walker noted that a CT scan done on March 3, 1995, showed no evidence of brain damage. ² However, at the time D.S. was admitted to the hospital on March 19th, D.S. had retinal hemorrhages and fresh bleeding over the surface of his brain.

Dr. Walker opined that D.S. could not have sustained this massive brain injury when Ms. Fisk asserted that D.S. was awake, alert, eating, and fussing--that is, before 3:30 p.m. on March 19th. The injury must have occurred sometime between 3:30 p.m. and 4:00 p.m., when D.S. stopped breathing and defendant carried him out of the bedroom. Dr. Walker concluded that only a shaking and bashing could have caused these injuries. Moreover, he concluded that even a prior head trauma could not explain the magnitude of the injury to D.S.'s brain.

On the strength of Ms. Fisk's juvenile court testimony and Dr. Walker's expert opinion, the State refiled charges against defendant on January 29, 1997. Defendant moved to dismiss the State's charges, arguing that the State was precluded from refiling charges by the Utah Supreme Court's decision in State v. Brickey, 714 P.2d 644 (Utah 1986).

The same magistrate heard defendant's motion to dismiss. The State argued that Ms. Fisk's juvenile court testimony and the opinion testimony of Dr. Walker were "new evidence" sufficient to allow refiling charges against defendant. The State contended that this new evidence showed that defendant had exclusive control over D.S. when his injuries must have occurred, that is, between about 3:30 and 4:00 p.m., when defendant was alone in the bedroom with D.S.

The magistrate denied defendant's motion to dismiss. He commented that if the State had presented the additional evidence at the 1995 preliminary hearing, he would have bound the case over. He also noted that the State could have discovered the additional evidence before the 1995 preliminary hearing. However, he concluded that the State acted in good faith in presenting its case, and that Dr. Walker's expert opinion "may" be "new evidence" under Brickey. ³ Id. at 645-48. Thus, the magistrate ruled that the State could proceed against defendant on the child abuse charge.

ANALYSIS

I. Jurisdiction

This court's jurisdiction is created by statute. See Utah Const. art. VIII, § 5. Under Utah law, we have jurisdiction over "interlocutory appeals from any court of record in criminal cases." Utah Code Ann. § 78-2a-3(2)(d) (1996). While the magistrate's order binding defendant over for trial was an interlocutory one, see State v. Jaeger, 886 P.2d 53, 55 (Utah 1994), the magistrate is not a court of record, see State v. Humphrey, 823 P.2d 464, 467-68 (Utah 1991). As a result, this court lacks jurisdiction to hear Fisk's appeal.

Fisk's proper course would have been to file a motion to quash with the district court. Had the district court "refused to quash [the] bindover order, the district court's ruling could then become the subject of an interlocutory appeal" to this court. Humphrey, 823 P.2d at 468 n. 9. Although this court erred when we failed to detect the jurisdictional defect earlier, the fact remains that we have no jurisdiction over Fisk's appeal from the magistrate's order. See Petersen v. Utah Bd. of Pardons, 907 P.2d 1148, 1151 (Utah 1995) ("[S]ubject matter jurisdiction is an issue that can and should be addressed sua sponte when jurisdiction is questionable.").

Accordingly, we dismiss Fisk's appeal for lack of jurisdiction.

II. Refiling Charges Under Brickey

Defendant argues on appeal that the State's good faith in presenting its case at the 1995 preliminary hearing does not constitute "other good cause" under State v. Brickey, 714 P.2d 644, 647 (Utah 1986). Defendant argues in the alternative that the magistrate lacked sufficient evidence to determine that the State acted in...