State v. Holliday
| Decision Date | 15 February 2022 |
| Docket Number | 54383-4-II |
| Parties | STATE OF WASHINGTON, Respondent, v. MICHAEL DAVID HOLLIDAY, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Michael David Holliday was convicted of second degree murder after a medical examiner and several doctors determined that abusive head trauma caused the death of an 11-month-old child in Holliday's care. Holliday appeals his conviction, arguing the trial court violated his right to present a defense when it excluded evidence of his reputation for peacefulness and his prior experience caring appropriately for young children. Holliday also argues his trial counsel was constitutionally ineffective because counsel failed to call a second medical expert witness.
We hold that the trial court did not violate Holliday's right to present a defense. The trial court did not abuse its discretion when it excluded evidence of Holliday's reputation for peacefulness and prior childcare experience and Holliday was able to present evidence to support his theory of the case. Holliday also fails to show that his trial counsel's performance was deficient because the expert witness in question changed his opinion significantly before trial, subjecting him to impeachment. We affirm.
One evening in June 2017, Holliday was babysitting KP. Holliday had been dating KP's mother for a few months. Occasionally, Holliday kept KP overnight so that KP's mother could study and sleep. On the night prior to this incident, KP was in Holliday's sole care.
The next morning, medical personnel responded to a 911 call from Holliday reporting that KP was unresponsive. KP was hospitalized, but he never recovered. He died a few days later.
The Pierce County Medical Examiner performed an autopsy of KP and concluded that KP's death was caused by "blunt force injury to the head," which "may have included shaking, striking the head against a stationary object, or both," although he believed shaking was the "more likely" cause of death. 3 Verbatim Report of Proceedings (VRP) at 588. The medical examiner explained that KP's acute subdural hematomas, retinal hemorrhages, and lack of an impact point on the scalp or skull caused him to be "close to a hundred percent" certain KP's injuries were the result of shaking. Id. at 589. He determined that KP's manner of death was homicide.
The State charged Holliday with second degree murder, alleging that he committed or attempted to commit first degree assault of a child and, "in the course of and in furtherance of" the assault, caused KP's death. Clerk's Papers (CP) at 184. The State added an aggravating circumstance that Holliday knew or should have known that the victim was "particularly vulnerable or incapable of resistance." CP at 185.
The State relied on the opinions of numerous medical professionals, including pediatricians, emergency room physicians, intensivists, and pathologists, who concluded that KP's injuries were consistent with abusive head trauma. For example, Dr. Yolanda Duralde, the former Director of the Child Abuse Intervention Department at Mary Bridge Children's Hospital, testified that "the most common injuries that reflect abusive head trauma are subdural hemorrhages; no other external findings, so no contact injuries; and severe retinal hemorrhages." 2 VRP at 334.
KP's injuries included bilateral subdural hemorrhages, meaning bleeding outside of the blood vessels in his brain on both the right and left sides, as well as severe retinal hemorrhages, meaning bleeding outside of the blood vessels in the tissue at the back of his eyes. He did not have any external injuries to his scalp or skull that would have been consistent with bumping or falling on his head. "[T]his constellation or all of these findings together usually show that the child was likely shaken." 3 VRP at 507.
Several of the medical professionals explained that a "sudden acceleration-deceleration of the brain tissue," or "shearing forces," can damage brain tissue and break neuronal connections, as well as cause bleeding. 2 VRP at 268. Shearing forces can cause small veins within the brain to break, and the broken veins may cause subdural hemorrhages. The cause of a "subdural hemorrhage is almost always traumatic," 3 VRP at 577, so its presence makes the "suspicion for a traumatic event much higher," 2 VRP at 279.
Shearing forces may also cause hemorrhaging from the "fragile" vessels in the retina. 3 VRP at 637. "There's really nothing else that causes widespread, multiple layered retinal hemorrhages except for the forces that you see in shaking." 2 VRP at 364; see also 3 VRP 509 (). A finding of multiple retinal hemorrhages is considered "very consistent with traumatic brain injury and shaken baby" and "extremely indicative of inflicted child trauma." 2 VRP at 276; 3 VRP at 637. An ophthalmologist who testified for the State said that the degree of damage in KP's eyes was "probably in the top 5 percent" of cases he had seen and that, in his opinion, the damage was "almost certainly caused by inflicted trauma, specifically shaken infant." 3 VRP at 643, 646.
Additionally, "the jelly part of the eye" that is against the retina "can pull on the retina" as it is shaken back and forth. Id. at 637-38. This movement will Id. at 638. KP had choroidal folds in both eyes. KP showed all of these indicators of having been violently shaken.
Holliday maintained that he did not violently shake KP. He told one of the responding officers that KP "seemed to have fainted" and that after KP dropped his bottle, Holliday "couldn't wake him up." 1 VRP at 28. Holliday said that "he picked [KP] up and shook him," and "at one point he splashed water on the child's face to try to wake him up, and it didn't work." Id. Holliday consistently described what happened both to another responding officer and later in a formal interview. See, e.g., id. at 130 (). The only significant departure in Holliday's formal interview was when he said, CP at 147.
To explain KP's death, Holliday relied on an abnormal autopsy finding that KP had a superior sagittal sinus thrombosis. A thrombus is a blood clot, and the superior sagittal sinus is a blood vessel that "sits on top of the brain" and "collects blood to return it to the heart." 3 VRP at 583.
A blood clot in the brain is "uncommon," but it may develop due to an infection or dehydration that affects "the composition of the blood." 4 VRP at 854-55.
Holliday's expert witness, Dr. Kris Sperry, described a thrombus as "an actual process," similar to "bricklayers building a wall . . . one layer at a time" that could eventually "interrupt or block the blood flow." Id. at 850. He explained, "Any type of infection[, ] such as pneumonia, . . . can lay the groundwork for the blood to be abnormal or changed enough such that this thrombus will start to form and grow." Id. at 855. He theorized the blood clot began to develop at least a few days prior to KP's collapse because there were some medical reports indicating KP "had a fever for three days before this event and had been vomiting." 5 VRP at 939. Additionally, the receiving emergency room physician suspected KP was septic, which he explained as suffering from "an overwhelming infection." 2 VRP at 440. However, Sperry could not determine precisely when the blood clot started forming because the oldest part of it, "the root . . . where this thing started to grow from," was not examined during the autopsy. 4 VRP at 856.
Sperry argued that the clot grew and put pressure on the small veins in KP's brain and ultimately caused them to break. He opined that this caused subdural bleeding, that the subdural bleeding caused a rapid rise in intracranial pressure, and that the rapid rise in intracranial pressure caused KP to suddenly lose consciousness and stop breathing. He believed that after the clot blocked the blood flow to KP's brain and caused him to stop breathing, KP's brain cells died from the lack of oxygen. Sperry also connected the blood clot to KP's retinal hemorrhages, saying, "[J]ust about anything that results in bleeding inside the brain or on the surface of the brain or causes . . . the pressure inside of the skull on the brain to increase, that will result in retinal hemorrhages." 5 VRP at 904.[1]
The State filed a Frye[2] motion to exclude the testimony of Dr. Todd Lefkowitz, an ophthalmologist whom the defense wanted to call as an expert witness. The State argued that, as an ophthalmologist, Lefkowitz was not qualified to discuss any "neurological findings or speculation about whether or not a thrombosis was or was not present" in KP's brain prior to his death, as well as whether the thrombosis could have caused the retinal damage and choroidal folds that occurred in KP's eyes. VRP (Dec. 16, 2019) at 113.
At an evidentiary hearing, Lefkowitz admitted that the degree of retinal hemorrhaging seen in this case is "mostly associated with nonaccidental head trauma." Id. at 54. He explained, however, that he "can't rule . . out" the theory of a blood clot causing the retinal hemorrhages in KP's eyes. Id. at 55. He testified that based on the "clinical picture, the history, [and...
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