State v. Jaco

• Court: Missouri Supreme Court
• Writing for the Court: Stephen N. Limbaugh, Jr.
• Citation: State v. Jaco, 156 S.W.3d 775 (Mo. 2005)
• Decision Date: 11 January 2005
• Docket Number: No. SC 85594.,SC 85594.
• Parties: STATE of Missouri, Respondent, v. Christy L. JACO, Appellant.

156 S.W.3d 775

STATE of Missouri, Respondent, v. Christy L. JACO, Appellant.

No. SC 85594.

Supreme Court of Missouri, En Banc.

January 11, 2005.

As Modified on Denial of Rehearing March 1, 2005.

Terry J. Flanagan, John W. Peel, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. General, Breck K. Burgess, Assistant Atty. General, Jefferson City, for respondent.

STEPHEN N. LIMBAUGH, JR., Judge.

A jury convicted Christy L. Jaco of abuse of a child for causing the death of her thirteen-month-old child in violation of section 568.060, RSMo 2000. Pursuant to section 557.036, RSMo Supp.2003, the court bifurcated Jaco's trial. After the jury was unable to agree on the appropriate sentence during the penalty phase, the trial court sentenced Jaco to twenty years in prison. Because Jaco challenges the validity of section 557.036, this Court has exclusive appellate jurisdiction. Mo. Const. art. V, sec. 3. The judgment is affirmed.

I. Facts

The facts, which this Court reviews in the light most favorable to the verdict, State v. Christeson, 50 S.W.3d 251, 257 (Mo. banc 2001), are as follows:

The victim was born on October 1, 2000, to Jaco and Jeremy Brooks. Shortly after the child was born, Jaco's friends and acquaintances began noticing that the child suffered from numerous bruises. They observed that her child continued to incur bruises even after Jaco discontinued her relationship with Brooks and moved into an apartment with her new boyfriend, Matthew Eckhoff, and his two children in July of 2001. They also testified that Jaco "slapped" and "shook" her child when she became upset with him.

The acts that led to the child's death occurred on November 21, 2001. About 9:50 p.m., Eckhoff was cleaning the kitchen of the apartment, Jaco was getting ready for work, and the child, who was on the couch in the living room and had been suffering from bronchitis, became fussy and started crying. Eckhoff looked into the living room area from the kitchen and saw Jaco standing between the couch and the coffee table. He saw her lift up the child by placing her hands under his armpits and shake the child so violently that "his head rocked back about five or six times." Jaco then took the child to his bedroom, and Eckhoff heard "three pounds" against the bedroom wall. She then came out of the bedroom, closed the door nearly all the way, and told Eckhoff that the child was finally asleep. At that point, Eckhoff heard no other sounds coming from the child's room.

Around 10:15 or 10:20 p.m., Jaco left for work, and Eckhoff, who thought that the child was sleeping, laid down on the couch and began reading. Sometime between 11:30 p.m. and 12:30 a.m., Eckhoff heard the child coughing and got up to check on him. Upon discovering that the child was not breathing, Eckhoff performed mouth-to-mouth resuscitation and then called Jaco and 911. An ambulance soon arrived and transported the child to a local hospital, but he was later transferred to Cardinal Glennon Children's Hospital in St. Louis.

By that time, he was in a coma. A CAT scan revealed that the child had sustained serious brain injuries, which were consistent with being severely shaken. Other injuries included: blood in the back of his neck, which was consistent with a whiplash injury; two large bruises to his scalp; a bruise to his left cheek; marks, scrapes, and abrasions to the back of his head; a brown bruise under his left eye; a bruise to his left jaw; two parallel red lines on the back of his head; a red abrasion on his scalp; a mark with a circular pattern of little dots around the outside of it on his forehead; bruises on his thighs; an old injury to his penis; a fractured left clavicle, which was "between one week [and] one month old" and was also consistent with being severely shaken; a fractured right tibia, which was "between two weeks and two months old" and was consistent with an injury caused by twisting the child's ankle; and a red mark on the palm of his left hand. On November 23, 2001, the child was declared legally dead. An autopsy revealed that he died of a closed head injury.

II. Photograph Exhibit

Jaco first alleges that the trial court erred in refusing to admit a photograph, which she claims was the only photograph tendered by either party that accurately demonstrated Eckhoff's vantage point from the kitchen while he watched the shaking incident in the living room.

At trial, the state presented several photographs of the apartment, taken shortly after the offense, purporting to show that Eckhoff would have had a clear view of Jaco shaking the child from Eckhoff's location in the kitchen. Thereafter, during the testimony of Jaco's father, Jaco offered into evidence Defense Exhibit J, the photograph in question, which was taken in the living room after Jaco and Eckhoff had vacated the premises and about a year and a half after the offense. The prosecutor objected to the photograph on the grounds that it was not an accurate representation of the apartment at the time of the offense and that the apartment now had different furniture that made the photograph confusing. In a conference out of the hearing of the jury, Jaco's counsel admitted that the furniture in the apartment had been changed by a different tenant, but argued that the photograph was still admissible because the walls and layout of the apartment had not changed. The trial court sustained the objection, finding the photograph inadmissible because the different furnishings threw everything "out of kilter" so that the photograph was "misleading."

Photographs are admissible if they accurately and fairly represent what they purport to depict and tend to prove or disprove any elements of the charged offense. State v. Middleton, 995 S.W.2d 443, 462 (Mo. banc 1999). They must show relevant facts that will aid the jury. State v. Stephens, 708 S.W.2d 345, 350 (Mo.App.1986); State v. Shipman, 568 S.W.2d 947, 954 (Mo.App.1978). In general, differences in the conditions of the subject depicted between those conditions existing at the time of the crime and those at the time the photograph was taken go to the weight of the evidence, not admissibility. Id. However, photographs in which the different conditions are confusing or misleading should be rejected. See, e.g., Jordan v. Abernathy, 845 S.W.2d 86, 88 (Mo.App. 1993); Bellistri v. City of St. Louis, 671 S.W.2d 405, 407 (Mo.App.1984). Ultimately, the determination of the admissibility of photographs lies in the sound discretion of the trial court. State v. Ervin, 979 S.W.2d 149, 161 (Mo. banc 1998).

On the record before us, it cannot be said that the trial court abused its discretion in refusing to admit Defense Exhibit J. It is difficult to determine from the photograph where Jaco was standing when she shook the child, and that difficulty is due in large part to the fact that the furniture used by Eckhoff to describe where Jaco was standing is not shown. As a result, the photograph would have provided neither the judge nor the jury a frame of reference from which they could have determined whether the photograph fairly and accurately demonstrated the line of sight between the kitchen and the precise point in the living room where the incident occurred. Even though changes in the condition of the scene depicted generally go to the weight of the evidence rather than admissibility, the trial court was well within its discretion in determining that the changes or discrepancies here would confuse and mislead the jury rather than aid the jury. The point is denied.

III. Profile Evidence

Jaco next alleges that the trial court abused its discretion by refusing to allow her counsel to cross-examine Dr. Martin Keller, a doctor who treated the victim, and Dr. Jane Turner, a doctor who conducted the autopsy, about profile evidence — scientific studies and statistics concerning the propensities of different types of persons to abuse children.

According to Jaco's offer of proof, Dr. Turner, drawing on her experience and review of certain studies published in authoritative treatises, journals and periodicals, would have testified:

a) That children living in households with one or more male adults not related to them are at an increased risk for maltreatment, injury or death. Moreover, that these same children were subjected to abuse or even death as a result of shaking or blunt trauma.

b) That scientific studies demonstrate that children living in households with adult men unrelated to them are eight (8) times more likely to die of abuse than children living with one or both biological parents.

c) That most perpetrators of shaking and/or blunt trauma to children are unrelated males.

d) That [a] risk factor for infant children being abused is where the child is living with a stepfather or the mother's boyfriend.

e) That scientific studies have established that a common accidental injury explanation/defense offered by perpetrators is that the baby was in some form of distress, choking or not breathing and the perpetrator mildly shook the baby in a vain error to revive the baby.

Expert testimony relating to profile evidence is admissible in the discretion of the trial court to describe behaviors and characteristics commonly observed in victims, e.g., State v. Silvey, 894 S.W.2d 662, 671 (Mo. banc 1995) (expert testified that he had observed several behavioral indicators in victim that were consistent with sexual abuse), or to determine the cause of an injury to a victim, e.g., State v. Candela, 929 S.W.2d 852, 865-66 (Mo.App.1996) (expert testified that victim suffered from shaken baby syndrome). However, profile evidence is not admissible to show a defendant's responsibility for injury to a victim. See id. at 866. This victim/defendant distinction is necessary to accommodate the general rule that while an expert may express an opinion regarding an ultimate issue in a case, the expert may not express an opinion on the guilt or innocence of the...