State v. Lilly
| Decision Date | 14 May 1985 |
| Docket Number | No. 84-K-2167,84-K-2167 |
| Citation | 468 So.2d 1154 |
| Parties | STATE of Louisiana v. Peggy LILLY. 468 So.2d 1154 |
| Court | Louisiana Supreme Court |
Robert J. Roux, Lake Charles, Alton T. Moran, New Orleans, for defendant-applicant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Byran Bush, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-respondent.
Peggy Lilly was indicted and charged with the negligent homicide of her eight day old son, a violation of La.R.S. 14:32. She pled not guilty, waived trial by jury, and was found guilty as charged by the trial judge and sentenced to serve five years with the Department of Corrections, the maximum sentence provided for the offense.
The First Circuit Court of Appeal affirmed the conviction. 459 So.2d 1313 (1984). We granted writs to review the sufficiency of the evidence resulting in her conviction. 463 So.2d 595 (1985).
A detailed examination of the evidence is as follows:
The child was delivered by an ambulance driver on August 7, 1980, on the way to the Earl K. Long Hospital in Baton Rouge, Louisiana. The mother, who had received no pre-natal care, and the baby were both discharged from the hospital on August 9, 1980, purportedly in good physical condition. However, the child's medical records indicate that the baby's fever was anywhere from normal to 100? during his three day stay in the hospital.
The infant had been at home, in defendant's care, for five days immediately preceding his death. An autopsy indicated that the cause of death was pneumococcal meningitis with a secondary diagnosis being pneumococcal pneumonia. The autopsy also revealed that there were abrased areas on the face and right wrist and multiple areas of hemorrhaging beneath the scalp. The grand jury's true bill was returned based on the mother's failure to obtain medical treatment for the child.
The mother of defendant's "common-law" husband, James Jones, stayed with defendant after her dismissal from the hospital. On the morning of the child's death, she asked her daughter, Avis Hutchinson, who was a nurse's aid and had worked for ten and one-half years in the neonatal intensive care nursery at Earl K. Long Hospital, to come and examine the child. On arrival, she found the child laying across defendant's lap. Defendant would not permit Ms. Hutchinson to get near her to examine the child or use the telephone to call for help. Finally, Ms. Hutchinson went to a neighbor's house to call the fire department for emergency assistance.
Kenneth Mizell of the Baton Rouge Fire Department arrived at defendant's residence in response to the call and observed the emergency medical technician trying to get the baby away from defendant with defendant protesting that there was nothing wrong with her child. He testified that there was nothing that could be done for the child, but the mother would not give him up, evidently not aware that the infant had expired. Finally, mother and baby were transported to the hospital by the medical technician.
Lonnie Callahan of the East Baton Rouge Sheriff's Office also saw the baby that morning. According to him, the baby did not look right and was not moving.
None of these witnesses had seen the child before his death. However, two members of defendant's family did testify regarding the child's condition during his five days at home.
James Scott Lilly, age 7 at the time of his brother's death, testified to playing with the baby, changing his diaper, feeding him a bottle, hearing him cry "quite a lot" and seeing the baby vomit a couple of times. His opportunity to observe the child was limited as he was not at home during the eight day period for more than a day and a night.
James S. Jones, defendant's "common-law" husband and the child's natural father, was the other family member to testify. He stated that he worked twelve hours a night, seven days a week. He saw the baby every day and had last seen the baby about four o'clock the evening before he died. At that time, he testified that the child seemed fine. During the five days prior to the baby's death, he bottle fed the child and observed the mother holding and feeding the child. He did not recall ever seeing the child vomit. On the day that the child died, Jones stated that the child was crying a lot, but stopped after he stuck a bottle in the infant's mouth. He also testified that the baby was scheduled to go to the doctor for a ten day checkup, which was two days after he died. He recalled that the baby was a little warm but did not regard that as unusual. When questioned by the court, Jones remarked that the baby "took food alright", that he never noticed any high fever and never noticed any vomiting or bulging of the baby's soft spot on top of his head.
The State's case and the trial court's reasons for judgment rested primarily on the testimony of Dr. James A. Freeman, the pathologist who assisted in the autopsy. According to Dr. Freeman, pneumococcal meningitis would be manifested "generally" by high fever, lack of appetite, "usually" a stiff neck and extremities, and projectile vomiting. As this form of meningitis was due to an infection around the covering of the brain, he explained that this type of vomiting was caused by pressure inside the skull. In the newborn, the soft bones and openings (fontanelles) in the skull could serve as a pressure valve, thus causing the head to bulge. Meningitis, he explained, is caused by germs which are usually found in the throat and invade the body when resistance is low. According to the doctor, a baby with high fever would show such signs as crying, being cross or erratic and sleeping abnormally long. He had not seen the baby prior to the autopsy.
As a result of the autopsy, Dr. Freeman stated that the child weighed 8 pounds two ounces at birth and seven and one-half pounds at death. This ten percent weight loss was characterized by him as unusual since normal babies gain 20% of their weight in the first week. Examination of the three marks on the baby revealed that the skin was off each spot and that the one on the wrist was possibly infected. They were diagnosed as being more than a day old. The doctor was unable to state exactly how they were caused but believed them to be a result of either a burn or an abrasion. The scrotum area had a purplish discoloration from more blood settling there than usual. He opined that this was caused by either a post mortem change or a bruise.
When questioned as to the reasonableness of a layman recognizing the symptoms of an eight day old baby with pneumonia or pneumococcal meningitis, he responded that it usually takes a matter of days to get as much pneumonia and infection over the brain as described in the autopsy. He hoped that even a layman would detect at least some change, enough to seek medical attention. The incubation process was fairly rapid, the pathological process "generally" took a matter of days and the germ could have been contracted in the hospital. Dr. Freeman did admit that in the hands of different people there would be different degrees of recognition of the disease or its symptoms and that the smaller and younger the neonate, the more difficult the symptoms would be to detect. The major signs were fever and for the child to stop eating. The doctor testified that it was not unusual for parents to want to treat the child themselves. He had also seen parents not bring in their child with fever as high as 106?.
At the close of the State's case, defense counsel moved for a directed verdict of acquittal. He argued that the only people who saw the child before his death testified that he did not have the symptoms which Dr. Freeman said accompanied pneumococcal meningitis. Counsel stressed that there had been insufficient evidence presented by the State to show if and when any of these symptoms had manifested themselves to the degree that the mother's failure to take the child to the doctor amounted to criminal negligence.
The trial judge basically concluded that the father's testimony was incredible and rejected as worthless the testimony of the 11 year old son. He stated that the most convincing testimony was that of Dr. Freeman who had examined the child's expired body. He recounted the symptoms which Dr. Freeman stated "would have manifested themselves" and opined his belief that these symptoms "had to have occurred" several days prior to the child's death. The judge was convinced that the symptoms were present and that the defendant's failure to observe them and react to them by obtaining medical care was the cause of the death of the child.
In affirming defendant's conviction against the allegation of insufficient evidence, the court of appeal relied on the assessment of the medical testimony...
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