State v. Hieb
| Decision Date | 30 October 1986 |
| Docket Number | No. 51502-6,51502-6 |
| Parties | STATE of Washington, Petitioner, v. Peter Jacob HIEB, III, Respondent. |
| Court | Washington Supreme Court |
Norm Maleng, King County Pros., Rebecca Roe, Deputy Pros., Seattle, for petitioner.
Washington Appellate Defender, Kim Wakefield, Eric Nielsen, Seattle, for respondent.
Confrontation clause and harmless error issues are raised in this case involving a second degree murder conviction for the death of a 20-month-old child. We affirm the conviction.
In September, 1982, Mildred Turner and her two children, 3-year-old Shawna and 16-month-old Addy Kay, moved in with the respondent Peter Hieb. Three months later, on December 13, 1982, Addy Kay died from head injuries suffered between December 6 and 10.
Her autopsy showed that during the prior 3 months she had sustained a broken collar bone, a broken rib, 3 broken bones in her right arm, a broken thigh bone, and had numerous bruises on her face, abdomen, and legs. The fractures and bruises were in various stages of healing, indicating that they had occurred at different times.
On December 15, 1982, the King County Prosecutor charged Hieb with second degree murder. In his omnibus application, Hieb moved to have Shawna declared incompetent to testify. Evidently, this motion was never ruled upon. During the pretrial motions when the court asked whether Shawna would be a witness, the prosecutor replied she would not. Hieb also moved to exclude, as inadmissible hearsay, statements Shawna had made to King County Deputy Prosecutor Mary Kay Barbieri on December 11, 1982. However, Hieb made no argument that admission of Shawna's statements would violate his constitutional right to confront the witnesses against him.
The trial court ruled that Shawna's statements to Barbieri were admissible as excited utterances and as present sense impressions. The court also ruled that the State could present evidence of the bruises and broken bones Addy Kay had suffered in the last few months of her life.
Because of the issues before the court, the evidence presented at trial must be outlined in detail. In September, 1982, Mildred Turner and her two children, 3-year-old Shawna and 16-month-old Addy Kay took up residence with Peter Hieb in an apartment in Des Moines, Washington. In mid-September, Addy Kay's face was covered with bruises. Peter told Mildred that Addy Kay had been hurt playing on a trampoline at a friend's house.
Shortly thereafter Shawna had a large bruise on her forehead. Peter told Mildred he had gotten mad at Shawna and thrown her on the bed. Because he threw her too hard, Shawna's head hit the wall, leaving an indentation in the wall. Mildred asked Peter not to discipline her children.
Later in October, Addy Kay had bruises on the right side of her face. Mildred assumed she had fallen out of bed. Addy Kay's maternal grandmother with Mildred's permission took her to the doctor on October 25. Later, during the week of October 25, Addy Kay was favoring her right arm. Another visit to the doctor's office revealed the arm was broken, and it was casted. More bruises appeared on Addy Kay's face and chest in mid-November.
During the first week of December, Peter took the cast off Addy Kay's arm. That same week, Addy Kay had a rope burn mark around her neck. Peter told Mildred he had grabbed Addy Kay by her shirt.
Also, in early December, another incident occurred while Peter was vacuuming. Mildred left the room and heard Addy Kay cry out in pain. When she went to check on Addy Kay there was a new bruise on her cheek and temple. Peter said he had hit the love seat where Addy Kay was sitting while vacuuming.
On Thursday, December 9, 1982, Mildred noticed a dent in the closet door in the girls' room. That night Peter stayed with the children while Mildred went out with a girlfriend in the evening. The neighbor upstairs testified she heard what she thought were doors slamming downstairs for about 45 minutes on that Thursday about 7:30 p.m. The next morning, Mildred noticed another dent in the wall in the girls' room. When asked, Peter said he didn't know how the dents had gotten there. Later he said they were caused by his throwing a ball against them.
On Friday, December 10, 1982, Addy Kay was favoring her arm again and was taken to the doctor. It was thought to be rebroken and was put in a soft cast. Addy Kay went to bed about 7 p.m. that night.
The next morning, December 11, 1982, Peter woke Mildred up at 5:45 a.m. saying Addy Kay's breathing wasn't right. They checked her, and Mildred had Peter turn Addy Kay on her side. They returned to bed. A few minutes later, they couldn't hear any breathing. The medics were called and Mildred began mouth-to-mouth resuscitation. Peter took Addy Kay's pillows from the room and replaced them with pillows from his bed. Addy Kay's pillow appeared to have blood on it.
Two firemen arrived first at 6 a.m. and were met and directed to the apartment by Peter. They entered a bedroom and found Mildred doing mouth-to-mouth resuscitation on Addy Kay. Addy Kay was not breathing and had no pulse. They began CPR. They noticed a large bruise on one side of her face and a soft cast on her right arm.
At approximately 6:10 a.m., two medics arrived and took over. They testified that the child appeared pale and bluish at first and later they noticed blood in the child's airway, a scar mark on her neck and bruising over her body. After 30-40 minutes, they were able to get blood pressure and a full heart rate. Around 7 a.m., they took the child to Harborview Medical Center. Addy Kay was later transferred to Children's Orthopedic Hospital. Two days later on December 13, 1982 at about 1 p.m. Addy Kay was pronounced dead.
Because of the injuries, the police had been called to the apartment by the emergency personnel. One officer, Kenneth Schnorr, testified that he noticed the child was bruised on her face and right leg, and that there were dents and blood splatters on the bedroom wall. He described the dents as "approximately five feet up [from the floor] and probably three to four inches across and maybe a quarter of an inch indentation into the wall, [with] cracks going out the plasterboard from the center of the indentation." Report of Proceedings I, at 79. He also noticed a bloodstained pillow in the adults' bedroom.
The children's babysitter at daycare and a mother of another child at the same daycare testified to the progression of bruises and injuries noticed on the children.
Doctor Harry Bonnell, assistant King County Medical Examiner, Dr. David Brewer, Pediatric Radiologist at Children's Orthopedic Hospital, and Dr. Bruce Beckwith, Director of Pathology at Children's Orthopedic Hospital, testified for the State about various injuries discovered at the autopsy. Addy Kay's arms, legs, face, chest, and abdomen had multiple bruises of multiple ages. She also had several fractured bones in various states of healing. They were: (1) a right leg fracture which was 1 to 3 weeks old; (2) two healing fractures of the right forearm of differing age; (3) a fresh fracture of the upper right arm which was at most 5 days old; (4) an older healing fracture of the collarbone which was 3 to 6 weeks old; and (5) a rib fracture which was 2 to 3 weeks old.
Addy Kay also had a hemorrhage in the mesentery in the abdomen which was at most 90 hours old and an avulsion of the upper lip which was at most 5 days old. An avulsion is when the lip tears away from the gum. Both of these injuries are caused by severe blunt trauma.
Dr. Brewer also testified that in particular the fractures of the humerus (upper right arm), femur (right leg), and rib were indicative of child abuse, because they involve the strongest bones in the body and these bones seldom injure accidentally. All three doctors testified that the number and severity of injuries inflicted at different times over approximately 2 months led to the inescapable conclusion of child abuse.
According to Doctors Bonnell and Beckwith, the cause of death was subdural hematoma. Subdural hematoma occurs by violent shaking or by a blow to the head. The injury was 4 to 7 days old from the time of death. Indicative of what could cause a subdural hematoma would be a free fall from at least a distance of 10 or 12 feet onto a hard surface, such as a concrete or linoleum floor. It requires a very serious blow, not a corrective slap.
Mary Kay Barbieri was allowed to testify about her conversation with Shawna in the afternoon of December 11, 1982, after Addy Kay had been taken to the hospital. When Barbieri arrived, Shawna was withdrawn and wary. Her affect changed during the conversation at times becoming very agitated, angry, and visibly upset. Their conversation began with them playing with Legos. They built a house and Barbieri asked Shawna who she lived with. Shawna replied, "[M]ommy and Peter [Hieb]." Report of Proceedings I, at 91. Barbieri then asked whether Addy Kay lived there too. Shawna erupted, saying: " Report of Proceedings I, at 92. When Barbieri then asked Shawna what Peter had done, Shawna "just became extremely agitated and started hitting the Legos that were on the counter, just knocking them around and destroying our little house that we had built." Report of Proceedings I, at 92. After playing with Shawna for a while to calm her down, Barbieri asked Shawna whether she had been watching when Addy Kay got killed. Shawna said, "Yes, but I shutted my eyes so Peter wouldn't see me." Report of Proceedings I, at 93. Pressed further, Shawna again became agitated. Barbierithen gave Shawna some dolls, a Peter doll and an Addy Kay doll, to use to show what had happened. Shawna became upset, pushed the "Peter doll" away, picked up the "Addy Kay doll," and "just started going, 'Bad doll, bad girl, bad girl,'...
To continue reading
Request your trial
-
State v. Neslund
... ... Page 554 ... evidence nonetheless violated Neslund's confrontation rights. A confrontation error is of constitutional magnitude and may be raised for the first time on appeal. State v. Hieb, 107 Wash.2d 97, 108, 727 P.2d 239 (1986). While the rule against hearsay and the Confrontation Clause generally protect similar values, "the overlap is not complete." United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 1126 n. 5, 89 L.Ed.2d 390 (1986). Thus, either ground may support an ... ...
-
State v. Norlin
...review denied, 111 Wash.2d 1026 (1988); State v. Hieb, 39 Wash.App. 273, 282-84, 693 P.2d 145 (1984), rev'd on other grounds, 107 Wash.2d 97, 727 P.2d 239 (1986); see also United States v. Houser, 929 F.2d 1369, 1373 (9th Cir.1990); State v. Terrazas, 189 Ariz. 580, 944 P.2d 1194, 1197-98 (......
-
State v. Wilcoxon
...the victims identifying the defendants as his attackers. Id. at 415, 426, 705 P.2d 1182.¶ 67 The following year, in State v. Hieb, 107 Wash.2d 97, 109–10, 727 P.2d 239 (1986), we reaffirmed our adherence to the “overwhelming untainted evidence” test. The defendant, Hieb, was convicted of th......
-
State v. James
...the first time on appeal, we use the overwhelming untainted evidence test to determine whether error is harmless. State v. Hieb, 107 Wash.2d 97, 109-10, 727 P.2d 239 (1986). That test requires a finding of harmless error if the untainted evidence admitted is so overwhelming as to necessaril......
-
Washington's Closed-circuit Testimony Statute: an Exception to the Confrontation Clause to Protect Victims in Child Abuse Prosecutions
...unavailability test to determine whether the admission of declaration against penal interest was proper); State v. Hieb, 107 Wash. 2d 97, 727 P.2d 239 (1986) (applying unavailability test to excited utterance); State v. Parris, 98 Wash. 2d 140, 654 P.2d 508 (1982) (applying unavailability t......
-
§ 48.07 SPECIAL EVIDENTIARY CONSIDERATIONS
...intended as assertions of fact or opinion. In re Dependency of Penelope B., 104 Wn.2d 643, 709 P.2d 1185 (1985); see also State v. Hieb, 107 Wn.2d 97, 727 P.2d 239 (1986). IN RE DEPENDENCY OF PENELOPE B., 104 Wn.2d 643, 709 P.2d 1185 (1985). This case involved a dependency action. The alleg......
-
TABLE OF CASES
.... . . . . . . 30.06[3] Hicks v. Hicks, 69 Wash. 627, 125 P. 945 (1912) . . . . . . . . . . . . . . . . . . . . . 69.02[3] Hieb; State v., 107 Wn.2d 97, 727 P.2d 239 (1986) . . . . . . . . . . . . . . . . . . . . 48.07[1][a] Higbee v. Shorewood Osteopathic Hosp., 105 Wn.2d 33, 711 P.2d 306 (......
-
What Would Happen if Videotaped Depositions of Sexually Abused Children Were Routinely Admitted in Civil Trials? a Journey Through the Legal Process and Beyond
...693 P.2d 145,151-52 (1984) (court implies witness would be unavailable if found incompetent), rev'd on other grounds, 107 Wash. 2d 97, 727 P.2d 239 This notion makes sense. If ruled incompetent, a "witness" cannot even take the stand. FED. R. Evid. 104(a). Furthermore, "unavailability" refe......