State v. Mitchell

• Decision Date: 10 January 2005
• Docket Number: No. 3918.,3918.
• Citation: 362 S.C. 289,608 S.E.2d 140
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Nathaniel MITCHELL, Appellant.

362 S.C. 289

608 S.E.2d 140

The STATE, Respondent, v. Nathaniel MITCHELL, Appellant.

No. 3918.

Court of Appeals of South Carolina.

Heard December 7, 2004.

Decided January 10, 2005.

Assistant Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Warren Blair Giese, of Columbia, for Respondent.

ANDERSON, J.:

Nathaniel Mitchell (Mitchell) was found guilty of homicide by child abuse. Mitchell argues the circuit court should have charged involuntary manslaughter as a lesser included offense. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Nathaniel and Sonya Mitchell were acting as foster parents for Hodari, Nautica, and Passion Gardner. While under the Mitchells' care, Passion, who was approximately two years and three months of age, died from severe head injuries. Mitchell was indicted and tried for homicide by child abuse under S.C.Code Ann. § 16-3-85.

At trial, numerous physicians testified for the State that Passion's injuries were not only consistent with, but a result of shaken baby syndrome. They further opined that trauma of that type and severity could not have been inflicted accidentally. Passion arrived at the hospital alive, but in critical condition. Dr. Hubbird was called to assist the effort to resuscitate Passion. At trial, he described her condition:

A. . . . [Her] eyes were widely dilated. . . . I saw hemorrhages, areas of bleeding into the retina on both eyes. . . .

. . . .

. . . [T]he main thing that I was noticing, I came into the E.R., the child was in the emergency department in a bed intubated, not moving, and the pupils were widely dilated so neurologically I already knew the child was quite devastated.

. . . .

Q. Did the C.T. scan in fact confirm that the child had — when you say neurological, do you mean brain damage?

A. Brain damage, yes.

Q. And what did the C.T. scan show?

A. . . . It showed what we call a subdural hematoma, meaning there's a collection of blood. . . .

. . . It showed the subdural hematoma and it showed swelling of the brain itself.

. . . [T]here was so much swelling on the right side that the brain was pushed over against the left, there was some midline shift. Midline shift is very dangerous. Any swelling of the brain is dangerous, but midline shift in particular means that there's massive, massive swelling and that causes massive damage.

Dr. Hubbird then asseverated as to the likely cause of Passion's injuries:

A. My examination, with the subdural hematoma, with the retinal hemorrhages, and the abnormal neurological findings is the evidence of big time swelling and neurological deficit, that indicated child abuse. That's what causes it, that's what it is.

. . . .

A. This is — those three things together virtually is diagnostic, meaning it tells us what it is. They used to call it — and a lot of people still call it shaken baby syndrome.

Q. And when you say shaken baby syndrome, what type of trauma is inflicted on this child to cause these injuries?

A. Shaken baby syndrome is violent whiplash type shaking of an infant or small toddler. It has to be very violent. The human brain is meant to take a nice — you know, if you fall you might be a little dazed. We are meant to take a quick trauma to the brain, if it's just a one time deal, I mean, you wake up like that, and it doesn't usually cause a big problem.

But back and forth, sustained shaking and violent shaking, the brain is not meant to take that and it causes bleeding, retinal hemorrhages, and all that then causes the swelling of the brain.

Q. And Doctor, in your expert opinion — and you mentioned could a fall, say from even like a countertop or a bed or even from several feet, could that cause these types of injuries?

A. No. The only trauma that I know of, and I've never seen this, but from what's reported, that can cause anything even similar is a big time automobile accident, either head-on or side impact where the child is ejected from the car. And I guess it's a potential from a several story fall, but then you'd see associated other injuries as well.

. . . .

Q. Could a child cause these types of injuries, say a three year old?

A. No ma'am. A three year old wouldn't have the strength. Generally in head injuries, it's — a serious injury is caused by serious forces. Violent forces cause big injuries.

. . . .

Q. What about just — If I, as a grown person, were picking the child up in the air and its head goes back, could that cause these types of injuries? Could this be accidental in any way?

A. No this was not accidental.

Q. So taking a child and lifting it in the air or slightly shaking it wouldn't cause this?

A. No, this would be violent, violent shaking. . . .

Dr. Linda Christmann was qualified as an expert and explained the force necessary to sustain the injuries to Passion:

Q. . . . Doctor, the hemorrhages that you saw, could they have even been caused by falling down say a flight of stairs?

A. No they could not.

. . . .

Q. Doctor, in your opinion, could this have been an accidental shaking?

A. No.

Another expert, Dr. Close, corroborated the opinions of Drs. Hubbird and Christmann:

Q. And, Doctor, how would you characterize the type of shaking and/or trauma that would be necessary to inflict this on a two year old, three month child?

A. That would be brutal. I've seen children fall. Kids come to the hospital after falling out of shopping carts and things like that. You don't see bleeds from that kind of trauma. You see this bleed from bad car wrecks. You see it — when I was a resident, when a child that had fallen out of a window — a third floor window. It's significant trauma.

One physician testified for the defense that his examination of the child was inconclusive. He further stated the rebleeding of an existing head injury could have caused the death.

At trial, Mitchell averred that he discovered Passion and her brother, Hodari, playing in the toilet. He stopped them, spanked both with his belt, cleaned them up, and let them leave to play while he cleaned up the bathroom. Thereafter, Hodari directed Mitchell's attention to Passion, who was facedown in the hallway. The jury did not credit Nathaniel Mitchell's testimony and found him guilty. He was sentenced to twenty-five years imprisonment.

LAW/ANALYSIS

I. Involuntary Manslaughter Is Not a Lesser Included Offense

The circuit court declined to charge the jury on involuntary manslaughter. The court found (1) involuntary manslaughter is not a lesser included offense of the specific, statutorily defined crime of homicide by child abuse, and (2) the facts did not support involuntary manslaughter. The question of whether involuntary manslaughter is a lesser included offense of homicide by child abuse is a novel issue of law in South Carolina.

A. Elements Test

"The test for determining when an offense is a lesser included offense of another is whether the greater of the two offenses includes all the elements of the lesser offense." State v. Elliott, 346 S.C. 603, 606, 552 S.E.2d 727, 728 (2001); accord Murdock v. State, 308 S.C. 143, 144, 417 S.E.2d 543, 544 (1992)

. "If the lesser offense includes an element not included in the greater offense, then the lesser offense is not included in the greater." Hope v. State, 328 S.C. 78, 81, 492 S.E.2d 76, 78 (1997).

One commentator on South Carolina courts has written that in recent years our courts have "tended to parse the elements of offenses quite closely, often finding two offenses contain separate elements and therefore that one offense is not contained within the other." William Shepard McAninch & W. Gaston Fairey, The Criminal Law of South Carolina 51 (4th ed. 2002). An example is Hope v. State, 328 S.C. 78, 492 S.E.2d 76 (1997). In Hope, the court determined entering without breaking is not a lesser included offense of first degree burglary. The supreme court explained that first degree burglary is defined in part as entering a dwelling without consent, whereas the alleged lesser included offense involves entering without breaking. Id. at 81-82, 492 S.E.2d at 78-79.

In Stevenson v. State, 335 S.C. 193, 516 S.E.2d 434 (1999), the court determined resisting arrest is not a lesser included offense of assault and battery of a high and aggravated nature: "ABHAN requires proof of circumstances of aggravation which is not required for resisting arrest. Resisting arrest requires proof that the person assaulted is a law enforcement officer which is not an element of ABHAN." Id. at 200, 516 S.E.2d at 438. The Stevenson court addressed lesser included offenses to ascertain whether the double jeopardy clause was violated by convicting the defendant on charges of ABHAN and resisting arrest. Id. at 198-200, 516 S.E.2d at 436-439. The court did this by relying on the "same elements" test created in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In this way, the elements test used to determine lesser included offenses apparently is an artifact of double jeopardy jurisprudence.

S.C.Code Ann. § 16-3-85 (2003) provides:

(A) A person is guilty of homicide by child abuse if the person:

(1) causes the death of a child under the age of eleven while committing child abuse or neglect, and the death occurs under circumstances manifesting an extreme indifference to human life.

Involuntary manslaughter is defined as: "(1) the unintentional killing of another without malice, but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm; or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others." State v. Reese, 359 S.C. 260, 597 S.E.2d 169 (Ct.App.2004) (emphasis added) (citing State v. Tyler, 348 S.C. 526, 529, 560...