State v. Mergenthaler

• Decision Date: 20 January 1994
• Docket Number: No. 93-167,93-167
• Citation: State v. Mergenthaler, 263 Mont. 198, 868 P.2d 560 (Mont. 1994)
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Gregory John MERGENTHALER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 560

868 P.2d 560

263 Mont. 198

The STATE of Montana, Plaintiff and Respondent, v. Gregory John MERGENTHALER, Defendant and Appellant.

No. 93-167.

Supreme Court of Montana.

Submitted on Briefs Dec. 22, 1993.

Decided Jan. 20, 1994.

William F. Hooks, Appellate Defender, Helena, for defendant and appellant.

Joseph P. Mazurek, Atty. Gen., Elizabeth Griffing, Asst. Atty. Gen., Mike McGrath, Lewis and Clark Co. Atty., Carolyn Clemens, Deputy Co. Atty., Helena, for plaintiff and respondent.

NELSON, Justice.

Gregory Mergenthaler (Mergenthaler) appeals from a Judgment and Commitment of the First Judicial District Court, Lewis and Clark County, based on a jury verdict convicting him of negligent homicide. We affirm.

The issues on appeal are as follows:

1. Did the District Court err in denying Mergenthaler's motion to dismiss at the conclusion of the State's case?

2. Did the District Court err in allowing autopsy slides and a photograph of the victim, while alive, to be presented to the jury?

Mergenthaler began dating Donna Weinzetl (Donna) in November, 1991. Donna was the mother of Ashley Weinzetl (Ashley), who was born on November 29, 1990. Mergenthaler was convicted of negligent homicide in connection with the death of thirteen-month old Ashley on January 23, 1992.

A few weeks prior to her death, on the evening of January 12, 1992, Ashley was hospitalized because of the flu, which caused diarrhea and dehydration. She also suffered a febrile seizure, a common seizure which occurs in young children suffering from a fever or febrile illness. At the time she was hospitalized, she was placed on an I.V. and tested for meningitis. Dr. John Reynolds, the admitting doctor, saw no bruises or other injuries on Ashley. Dr. Reynolds testified that Ashley responded to treatment well, and by the morning of January 13, 1992, appeared to be a "nice normal happy baby." Ashley stayed in the hospital until January 15, 1992, in order to allow Dr. Reynolds time to complete testing of her urine, blood, and spinal fluids. When she was discharged, Dr Reynolds instructed Donna to feed the child Pedialyte, an oral electrolyte solution, and prescribed amoxicillin for an ear infection.

On January 18, 1992, Carole Keele, Donna's mother, babysat Ashley while Donna worked. Ms. Keele testified that Ashley ate normally that day. When Ms. Keele bathed Ashley, she noticed that Ashley had a bruise on her foot from where the I.V. had been placed, but testified that there were no other bruises on Ashley. She also testified that Ashley did not appear to be ill that day.

The next day, Ashley ate a normal breakfast, then Donna and Ashley attended church. Church members testified at trial that Ashley was not as active that day as she usually was, but that she appeared healthy and had no bruises or marks on her face. After church, Ashley ate lunch, took a nap, and played in the afternoon.

Later that afternoon, Mergenthaler called Donna and said he would come and pick Donna and Ashley up to visit at Mergenthaler's house. A short time after arriving there, Donna went to the grocery store to pick up fixings for dinner, and to rent a video. When Donna left the house, Ashley was asleep on top of Mergenthaler's bed. When Donna returned, Mergenthaler was holding Ashley and she was undressed except for a diaper. Mergenthaler told Donna that Ashley had vomited on the sheets and that he put her on the couch to run a bath. When he came out of the bathroom, Ashley was lying on the floor; Mergenthaler told Donna that Ashley fell off the couch. At this time, Donna noticed that Ashley had a bruise on the right side of her head.

Mergenthaler did not like what Donna had purchased for dinner, so she went back to the store and left Ashley with him. She also went to her apartment to get pajamas for Ashley. Upon her return to Mergenthaler's apartment, she prepared dinner and they watched the video. She also fed Ashley, who then went to sleep around 9:00 p.m. Donna then made another trip to her apartment to pick up blankets for Ashley. Upon her return, she decided to stay the night at Mergenthaler's apartment, so she returned to her apartment a last time to pick up her work clothes and curling iron.

Mergenthaler, Donna, and Ashley were sleeping in the same bed and, between 10:00 and 11:00 p.m., Ashley woke up crying and appeared to be having trouble breathing. Donna got up and dressed herself and Ashley in order to go to the emergency room. At that time, Donna noticed the bruises on Ashley's head were swollen. Mergenthaler asked to hold Ashley, which Donna allowed him to do. Within about five minutes, Ashley began breathing normally. At that time, Mergenthaler convinced Donna not to take Ashley to the emergency room.

During that night, Mergenthaler and Donna kept checking on Ashley, shining a small flashlight into her eyes every hour. Ashley slept through the night and her breathing appeared normal.

At 4:30 a.m. on January 20, 1992, Donna awoke and got ready for work. She left Mergenthaler's house at 5:30 a.m. and discovered her car would not start. Mergenthaler assisted her in getting the car started, then Donna left for work, leaving Ashley in Mergenthaler's care.

Mergenthaler testified that he went back to bed after helping Donna start her car, but awoke around 6:30 a.m. when Ashley began crying. Mergenthaler then changed her diaper and tried to give her a bottle, which she refused. He testified that he did feed her three jars of baby food and that she then "passed out, just fell asleep again." Mergenthaler then watched television and later realized he had not given Ashley the amoxicillin. When he went to give her the medicine, she was barely breathing. Mergenthaler testified that he tried to wake her up by shaking and slapping her and that he tried to pry her mouth open but her jaw was locked.

When he was unable to get Ashley to respond, Mergenthaler called his mother, who told him to call Donna. At about 9:00 a.m., Donna received a telephone call from Mergenthaler, telling her that Ashley's jaw was locked and that her body was limp. Donna testified that she told Mergenthaler to call 911, but he denies this statement. Donna called her doctor's office and the emergency room, then called Mergenthaler's apartment. When Mergenthaler answered the telephone, he told Donna the paramedics were there.

Donna went to the hospital and, upon her arrival, found that Ashley was in a trauma unit in critical condition. She was in a coma and unresponsive, with severe retinal hemorrhages. A CT scan showed that there were many areas of free bleeding within her head, including subarachnoid bleeding (at the bottom of the brain) and subdural bleeding (between the covering of the brain and the brain itself). The attending physician, Dr. Reynolds, diagnosed her condition as "whiplash shaken infant syndrome." Dr. Reynolds testified that he had never seen a child injured in that manner from revival efforts, and further testified that Ashley's injuries were not consistent with a fall from a couch. Dr. Reynolds also testified that Ashley could not have eaten breakfast the morning of January 20, 1992, let alone have eaten three jars of baby food. He believed the injuries had likely occurred within the previous twenty-four to forty-eight hours.

That afternoon, Ashley was flown to the hospital in Great Falls for specialized care. Dr. Ruggerie, a specialist in pediatric critical care, testified that, when Ashley arrived at the Great Falls hospital, his working diagnosis was child abuse. Dr. Ruggerie testified that Ashley's brain was so swollen that it had herniated, pushing the brain out of the skull through the base of the skull. He found her eyes dilated with significant retinal bleeding, with one retina partially detached.

Dr. Ruggerie noted significant external head injuries, including swelling on the right side of her face and bruises on both sides of the face and over the ears. Ashley also had small pinpoint bruising around the base of her head. Dr. Ruggerie agreed that the injuries were consistent with those of a baby who had been severely shaken. He also opined that the injuries had occurred within twenty-four hours of presentation.

Ashley died on January 23, 1992. Dr. Henneford performed an autopsy, which showed that she had died from swelling of the brain and bleeding within the cranial vault. The autopsy revealed that Ashley had severe bleeding within the brain, hemorrhaging of her retina, and one partially detached retina. Dr. Henneford testified that the hemorrhaging and bleeding were consistent with a "shaken baby episode." He did not believe that the injuries could be the result of a fall from a couch or from revival efforts. Dr. Henneford believed the injuries inflicted on Ashley occurred three to four days before her death on January 23, 1992.

All three doctors who testified at trial agreed that Ashley's head injuries could not have occurred through a fall from the couch. They also agreed that the health care providers could not have caused the significant bruising, nor could the bruising have occurred through choking or retching. Dr. Reynolds and Dr. Ruggerie confirmed that the injuries had no relation to the flu symptoms Ashley had earlier in the week, and agreed that none of the injuries were indicative of a febrile seizure.

On January 28, 1992, Mergenthaler was charged by information with negligent homicide. The above evidence was presented at a trial held August 31, 1992 through September 3, 1992, and the jury returned a guilty verdict. After a hearing on December 7, 1992, Mergenthaler was sentenced to ten years in prison and was ordered to pay restitution for all of Ashley's medical and funeral expenses as a condition of parole. From that Judgment and Commitment, Mergenthaler appeals.

I--MOTION TO DISMISS

Mergenthaler contends that the District Court erred in denying his motion to dismiss the information at the conclusion of the State's case. E...