State v. Hooper

• Decision Date: 29 April 1981
• Docket Number: No. 79-1580-CR,79-1580-CR
• Citation: 101 Wis.2d 517,305 N.W.2d 110
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Laura Mae HOOPER, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

Page 110

305 N.W.2d 110

101 Wis.2d 517

STATE of Wisconsin, Plaintiff-Appellant, v. Laura Mae HOOPER, Defendant-Respondent-Petitioner.

No. 79-1580-CR.

Supreme Court of Wisconsin.

Argued April 1, 1981.

Decided April 29, 1981.

Glenn L. Cushing, Asst. State Public Defender, for petitioner.

David J. Becker (argued), Asst. Atty. Gen., and Bronson C. La Follette, Atty. Gen., on brief, for appellant.

COFFEY, Justice.

This is a review of a decision of the court of appeals, 98 Wis.2d 753, 300 N.W.2d 79, reversing an order of the circuit court for Manitowoc county, the Hon. Thomas J. Williams, presiding. The circuit court, on the motion of defense counsel after the preliminary hearing and prior to arraignment, dismissed the criminal information charging the defendant, Laura Mae Hooper, with second degree murder, contrary to sec. 940.02(1), Stats., ¹ on the grounds that "there was not sufficient credible evidence adduced at the Preliminary Examination to support the ..." specific charge set forth therein.

This case concerns the death of the defendant's eight and one-half month old daughter, Amanda Sally Hooper. The district attorney, following a John Doe proceeding investigating the cause of Amanda's death ² issued a criminal complaint, charging the defendant, Laura Mae Hooper, with the crime of second degree murder in causing her child's death by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life. After the preliminary examination, the court found that a felony had probably been committed and that the defendant had probably committed it and bound the defendant over for trial in accordance with sec. 970.03(7), Stats. ³ The district attorney then issued an information charging Laura Hooper with second degree murder (as charged in the complaint) and the defendant filed a motion to dismiss the information on the grounds that "there was not sufficient credible evidence adduced at the preliminary examination ... to support a bindover ...," to the trial court.

At the hearing on the motion to dismiss, the trial court, after hearing counsels' initial arguments, expressed the opinion that the evidence introduced at the preliminary examination failed to establish probable cause that the defendant committed second degree murder. ⁴ After hearing the trial court's expression of opinion early in the preliminary hearing, the defendant shifted the premise of her motion to dismiss from that of alleging the insufficiency of the evidence to support the bindover to one alleging the insufficiency of the evidence to support the crime of second degree murder issued by the district attorney, and, adopting the trial judge's reasoning, argued that probable cause had not been established to demonstrate a violation of sec. 940.02(1), Stats. At the conclusion of the hearing, the court granted the motion and entered a written order dismissing the case, reciting that: "It is hereby ordered that (this action) be dismissed in that there was not sufficient credible evidence adduced at the Preliminary Examination to support the charge set forth in the information, to-wit: a violation of Section 940.02(1) of the Wisconsin Statutes."

The state appealed the trial court's ruling to the court of appeals. In reversing the trial judge, the appellate court held that after the defendant had been bound over for trial, the decision as to the particular charge to be filed against her was within the discretion of the district attorney, provided the charge was based on the evidence adduced at the preliminary examination. Therefore, the court held that a proper review of the trial court's dismissal of the information "requires an examination of the preliminary evidence ab initio to determine if the district attorney had a reasonable basis upon which to file a charge of second-degree murder." The appellate court, upon review of the testimony elicited at the preliminary hearing, concluded that it provided a "reasonable basis" for the issuance of the charge of murder in the second degree.

The following evidence was adduced at the preliminary hearing.

Dr. Ali Mir, a pediatrician and Amanda Hooper's physician, testified that he was called to the Two Rivers Community Hospital on the afternoon of September 25, 1978 to examine the child. When he arrived at the hospital and examined Amanda, he found her to be dark blue in color (cyanotic) with no respiration or heartbeat and, while attempting to resuscitate her, observed that she had scratches on her face, a bruise on her nose and bumps on both her chest and lower left leg. He noted that the bumps on her chest and leg were not of recent origin. Failing to resuscitate her over a two-hour period, he pronounced her dead.

While attempting to revive Amanda, Dr. Mir spoke with the defendant and her husband, Robert Hooper, and asked them what had happened. Mr. Hooper's only answer was that the child had "slipped through the high chair."

Following the pronouncement of Amanda's death, Dr. Mir continued his post-mortem examination, including the taking of x-rays and gastric juices for a toxic material scan. According to his recollection, the x-rays revealed fractures of the left tibia and of a number of ribs on the left side.

Dr. Mir also related Amanda's past medical history, stating that she was abnormal at birth (January 4, 1978) in that she suffered from hydrocephalus (enlarged head), cleft palate and was a poor eater resulting in her inability to gain weight. However, the last time that he saw Amanda prior to her death, August 1, 1978, he concluded that she had overcome the problem of hydrocephalus as that condition was arrested shortly after birth and that she was beginning to gain weight. He further noted that a complete physical examination of Amanda at that time (August 1, 1978) revealed that she was in a good general condition without any fractures and testified that he had not observed any bumps or bruises on the child on or prior to August 1, 1978. He related that the Hoopers called on September 6, 1978 and reported that Amanda had a bump on her back. An appointment was scheduled to examine her, but the Hoopers failed to show up at the assigned time. On cross-examination, Dr. Mir testified that he had no reason to suspect child abuse during the period he was treating Amanda (February 10th to August 1, 1978) and felt that the parents were handling the child well, considering her physical problems (hydrocephalus, cleft palate and failure to gain weight).

James E. Powers, the coroner for Manitowoc County, when called to the witness stand, testified that he was summoned to the Two Rivers Community Hospital on the evening of September 25, 1978 after Dr. Mir suspected child abuse. At the hospital, Powers made a brief, visual examination of the infant's body and noted that she had bruises on her forehead, chin and under her chin; scratches on her face; "an unusual swelling in (sic) the left leg between the knee and ankle(;) a swelling of the rib cage in the back ... on the left side;" as well as "an apparent cut on the lip (and) a swelling around the nose." Powers testified that following his examination, he pronounced the child dead and signed the death certificate. Since child abuse was suspected, Powers ordered an autopsy and called the Two Rivers Police Department requesting a detective to observe and investigate.

The autopsy, performed by a pathologist, Dr. John Henry Fodden, reflects that Amanda had suffered several serious injuries, described as follows: (1) two distinct linear fractures of the skull bone, one at the top or vertex of the skull and the other centrally placed at the back of the skull, almost at the nape of the neck, causing a swelling of the brain and concussive brain damage; (2) a complete transverse linear fracture of the left tibia (the larger bone in the lower part of the leg); (3) a diagonal linear fracture of the lower end of the left humerus (upper arm bone); (4) complete transverse linear fractures of three ribs on the child's back left side, all three fractures ranging from two and one-half to three and one-half inches from the backbone; (5) a "squashed, healed fracture of the nose;" and (6) five bruises about her face, four of which were in a line on the upper part of her forehead along the hairline, the fifth was centrally located under the chin; and (7) an inflamation of the lungs labelled "lipid or interstitial" pneumonitis. None of the fractures were of a compound nature, but each was evidenced by a bruise directly over the site of the break. Further, Dr. Fodden testified that the fractured ribs and tibia could have been discernible by a layman upon close examination in that the rib fractures were evidenced by swelling and puffiness in the area of the breaks and that the tibia fracture area "would move readily" when one picked up the child's left foot and wiggled it with movement of the "great toe."

The examining pathologist testified that none of Amanda's injuries were incurred on the day of her death and offered the following opinions as to their respective proximity to the date of death: the two separate skull fractures were both approximately one week old; the fracture of the left humerus was approximately two weeks old; the rib fractures were between two and three weeks old; the broken tibia was approximately four weeks old; the fracture of the nose was at least six weeks old; the facial bruises were between three days and one week old; and the inflammation of the lungs originated after the skull fractures, within the week of death.

Dr. Fodden also testified to the degree of force necessary to cause each fracture, characterizing such force as "violent," "considerable" and "directly applied" to the site of the break. He based this testimony on the resilient nature of the bones in a child's body of this age and the fact that the most common type of fracture resulting from accidental falls of children of Amanda's age are "g...