State v. Hayes
| Decision Date | 08 July 2003 |
| Docket Number | No. A-02-888.,A-02-888. |
| Parties | State of Nebraska, appellant and cross-appellee, v. Vernon E. Hayes, Jr., appellee and cross-appellant. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Lancaster County: Karen Flowers, Judge. Affirmed.
Jon Bruning, Attorney General, and Kimberly A. Klein, and Gary E. Lacey, Lancaster County Attorney, and Amy G. Jacobsen for appellant.
Dennis R. Keefe, Lancaster County Public Defender, and Kristi J. Egger Brown for appellee.
Vernon E. Hayes, Jr., was charged in the district court for Lancaster County, Nebraska, with homicide by child abuse, a Class IB felony, in violation of Neb. Rev. Stat. § 28-707 (Cum. Supp. 2002). After a jury trial, Hayes was found guilty and was subsequently sentenced to 22 to 30 years in prison. The State appeals, asserting that the sentence was excessively lenient, and Hayes cross-appeals.
On October 10, 1998, the Lincoln Police Department responded to an early morning "911" medical emergency call from Hayes, regarding 22-month-old Wyatt Campbell. Officer Todd H. Danson arrived at Hayes' residence, located in Lincoln, at approximately 1:51 a.m. The Lincoln Fire Department was already present at the scene, and a minute after Officer Danson's arrival, an ambulance crew arrived. Officer Danson testified that Hayes; Hayes' mother, Judith S. Feigenbaum; Hayes' girl friend and Wyatt's mother, Francisca Pleines; and a boarder were present at the home.
While Officer Danson secured the scene, the ambulance crew attended to Wyatt. Wyatt was found to be unresponsive, and he was immediately transported to Lincoln General Hospital, now Bryan LGH Medical Center West. Dr. James E. Smith, the treating emergency room physician, noted that Wyatt had multiple contusions to his head and was nonresponsive. Wyatt was intubated and taken into surgery at 4 a.m. While in surgery, Wyatt died at approximately 5:49 a.m.
On December 4, 1998, the State of Nebraska filed an information in the district court for Lancaster County, charging Hayes with homicide by child abuse pursuant to § 28-707. On June 8, 1999, Hayes filed a motion to suppress his statements obtained by Lincoln police officers on the morning of October 10, 1998, on the ground that the officers violated his constitutional rights. After several hearings, the district court sustained Hayes' motion to suppress. The State appealed to a single judge of this court, pursuant to Neb. Rev. Stat. § 29-116 (Cum. Supp. 2002), and on November 14, 2000, the single judge affirmed the district court's order of suppression. See State v. Hayes, No. A-00-515, 2000 WL 1701666 (Neb. App. Nov. 14, 2000) ().
On December 29, 2000, the trial court heard various pretrial motions, and at the conclusion of the hearing, Hayes was given leave to reopen a previous rule 404 motion, see Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 1995). Subsequently, the trial court scheduled a hearing for January 22, 2001, so that the State could disclose any potential rule 404 evidence. After disclosure on that date, the trial court determined that a rule 404 hearing was necessary with respect to three witnesses Pleines, Michael Carmen, and one other witness. The hearing occurred over several days, and while the matter was pending on briefs, Hayes filed a motion for discharge on speedy trial grounds. This motion was heard by the district court on May 8, and on May 11, the court overruled Hayes' motion. Hayes timely appealed to this court.
On May 15, 2001, the trial court ruled on the pending rule 404 hearing, finding:
[A]ny evidence the State intends to offer to prove trauma to Wyatt['s] head on the Thursday or Friday preceding his death is not an other crime, wrong or act and is admissible. Through Dr. Okoye, the State offered evidence that head injuries led to Wyatt['s] death and could have occurred any time in the 48 hours prior [to] his death. Therefore, evidence of acts tending to prove trauma to Wyatt['s] head during this time constitute[s] evidence of the crime with which [Hayes] is charged and are not subject to 404(2) analysis. I find that the probative value of such evidence is not outweighed by its prejudicial effect. Acts that occurred months or weeks prior to Wyatt's death or that did not involve head trauma are other crimes, wrongs or acts and are subject to 404 analysis.
. . . .
With respect to the acts that occurred months or weeks prior to Wyatt['s] death or that did not involve head trauma, I find that the State failed to meet its burden under Neb. Rev. Stat. § 27-404(3) and the evidence is not admissible.
Approximately 8 months later, on January 29, 2002, we affirmed the district court's ruling on Hayes' motion for discharge, holding that Hayes' statutory and constitutional rights to a speedy trial had not been infringed. See State v. Hayes, 10 Neb. App. 833, 639 N.W.2d 418 (2002) ().
On May 10, 2002, the district court, after a motion from the State, clarified its March 15, 2001, rule 404 order. The trial court found that evidence that Hayes had choked Wyatt in the days immediately preceding Wyatt's death, although such was not the cause of death, was admissible as evidence of the crime with which Hayes was charged and that such evidence did not run afoul of Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 1995). The trial started on May 14, 2002.
Feigenbaum testified that on October 10, 1998, she resided with Hayes, Pleines, Wyatt, and a boarder. Feigenbaum testified that she left her place of employment between approximately 12:30 and 1 a.m. on October 10 and proceeded straight home. Feigenbaum stated that once she arrived home, she turned on her computer and began to use the Internet. Feigenbaum testified that Hayes, Pleines, and Wyatt were not home at the time. Feigenbaum stated that between approximately 1 and 1:30 a.m., Hayes, Pleines, and Wyatt arrived home. Feigenbaum stated that after approximately 10 to 15 minutes, she turned off the computer and went to use the telephone. Feigenbaum testified that while on the telephone, she started hearing noises, "like perhaps someone running up the stairs very fast," and felt "something was not right." Feigenbaum testified that she hung up the telephone, went up the stairs, and saw Hayes and Wyatt in the bathroom. Feigenbaum testified that Hayes was holding Wyatt in the bathtub while talking on the telephone to "911" personnel. Feigenbaum stated that Wyatt appeared "real quiet" and "limp," had difficulty breathing, and had a small trickle of fresh blood coming from his mouth. Feigenbaum testified that she did not know where Pleines was at this time. Feigenbaum stated that she and Hayes carried Wyatt into her office and laid him on the floor; shortly thereafter, emergency personnel arrived.
On cross-examination, Feigenbaum testified that on September 28, 1998, Pleines and Wyatt went to Feigenbaum's place of employment and that Feigenbaum noticed Wyatt had bright red "rug burns starting from his . . . left eyebrow down the left side of his face, to about his cheekbone." Feigenbaum stated that Wyatt's injuries appeared new and that Pleines told her Wyatt had fallen down. Feigenbaum further testified that she did not recall Wyatt crying a lot while they resided with Hayes and that she did not recall hearing any unusual noises on October 10, such as "slapping kicking, [or] hitting."
Dr. Smith testified that he treated Wyatt in the emergency room at the hospital on October 10, 1998. When Wyatt first arrived at the hospital, he was not breathing adequately, so Dr. Smith sedated and intubated Wyatt. Dr. Smith also noted that Wyatt's right pupil was fixed and dilated, so Dr. Smith conducted a CAT scan. Dr. Smith testified that the CAT scan revealed that Wyatt had a "very, very large subdural hematoma on the right side of his brain . . . causing lack of blood [flow] to the normal area of the brain." Dr. Smith stated that he was told by Hayes that Wyatt had been ill with cold symptoms a couple of days previously and that in the early morning hours on October 10, Wyatt had difficulty breathing and became unresponsive, so Hayes put water on him in the bathtub in an attempt to revive him.
Dr. Smith testified that after the CAT scan, he contacted Dr. Tim J. Watt, the on-call board-certified neurosurgeon. While waiting for Dr. Watt to arrive, Dr. Smith administered medication to Wyatt to try to decrease the pressure inside Wyatt's brain. Dr. Smith also testified that he drew Wyatt's blood and conducted ordinary x rays. Dr. Smith's examination of Wyatt revealed bruising to Wyatt's right forehead, right frontal region, chest, torso, rib region, and left ear; abrasions on the left side of his neck and lower chin; and an old rib fracture.
Dr. Smith testified that he turned over Wyatt's care to Dr. Watt around 4 a.m., but that around 5:25 a.m., Dr. Watt asked him to assist in resuscitating Wyatt because Wyatt "coded." Dr. Smith testified that he was unable to resuscitate Wyatt, and Wyatt died at approximately 5:49 a.m.
Dr. Watt testified that when he arrived at the hospital, he looked over the CAT scan and concluded that Wyatt had suffered a severe brain injury with massive bleeding. Dr. Watt stated that Wyatt had a huge blood clot underneath his skull, putting pressure on his brain, consistent with early brain death. Dr. Watt testified that after his initial assessment of Wyatt, his opinion was that Wyatt's "likelihood of survival [was] somewhere between slim and none." Nonetheless, Dr. Watt began a surgical procedure known as a craniotomy. Dr. Watt testified that despite his team's efforts, Wyatt died of a brain injury at 5:49 a.m. Dr. Watt noticed that Wyatt's body was...
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