State v. Molina
| Decision Date | 05 May 2006 |
| Docket Number | No. S-04-1230.,S-04-1230. |
| Citation | 271 Neb. 488,713 N.W.2d 412 |
| Parties | STATE of Nebraska, Appellee, v. Germai R. MOLINA, Appellant. |
| Court | Nebraska Supreme Court |
Jerry L. Soucie and James R. Mowbray, of Nebraska Commission on Public Advocacy, and, on brief, Gerard A. Piccolo, Hall County Public Defender, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein, for appellee.
Germai R. Molina was convicted of second degree murder and child abuse resulting in death, arising out of the death of his 2-year-old daughter, Diana Molina. Molina was sentenced to a term of imprisonment of not less than 80 years to life on each conviction, sentences to be served consecutively. Molina appeals from his convictions and sentences. For the reasons that follow, we affirm the judgment of the district court.
Diana, born September 18, 2000, was brought to the emergency room at St. Francis Hospital in Grand Island, Nebraska, at approximately 3:30 a.m. on July 23, 2003, by Molina and his wife, also named Diana (Mrs. Molina). Diana did not have a pulse and was not breathing on her own. When Dr. Barry Hoover, the emergency room physician, asked what had occurred, Molina "replied something about the child had fallen down some stairs and then he made a comment about something that a cousin had injured the child."
After a half hour of attempted resuscitation, Diana was pronounced dead. Dr. Hoover observed that Diana's body was covered from head to toe with bruising and swelling and had abrasions or superficial lacerations in the shape of a line. Dr. Hoover testified that he
[n]oticed that she had a lot of bruising to her right ear, she had a smaller amount of bruising to the left ear; she had what we call periorbital ecchymosis or you can think of it as racoon eyes, she had bruising around both eyes; she had bruising and abrasion or a superficial laceration to the chin.
Dr. Hoover also testified that Diana
had on her back what we would call confluent ecchymosis. That means that there was bruising to the extent that the individual bruises melded into one large bruise almost; they — they overlapped each other. I mean, there was just a tremendous amount of bruising on the back and the front of the torso. She also had multiple linear abrasions or superficial lacerations, and again, by that I mean, injuries or markings on the body that were in a fine linear pattern just like you would draw a straight line and those were oriented at various angles.
Dr. Hoover opined that Diana's injuries were not consistent with a fall down the stairs, but had been caused by blunt force trauma, inflicted by a belt or similar item within 24 to 36 hours before Diana's death. The pediatrician on call for the hospital who had assisted with Diana's care also observed Diana's injuries and similarly opined that the injuries were inconsistent with falling downstairs and had not been caused accidentally.
Dr. Jerry Jones, a pathologist at the University of Nebraska Medical Center, performed an autopsy on Diana the day after her death. Dr. Jones testified that Diana's body was covered with bruises and abrasions that were indicative of blunt trauma. Dr. Jones stated that the extent of the bruising indicated that "[t]his young lady underwent a horrendous beating prior to when — before she died." Dr. Jones identified particular bruises as defensive wounds, indicating that Diana "was trying to protect herself." Dr. Jones also identified severe hemorrhages on the front of Diana's scalp, back of the scalp, and midoccipital scalp, which injuries were "proof positive of impacts to the head," and hemorrhaging on the surface of Diana's brain.
Dr. Jones opined that based on these findings, he was "certain" that Diana's death was caused by fatal blunt impact to the head. Based upon microscopic examinations of sections taken from the injuries, Dr. Jones opined that Diana's injuries had been sustained within 24 to 36 hours before her death. Specifically, Dr. Jones testified to a reasonable degree of medical certainty that the cause of Diana's death was "blunt trauma to the head with acute subdural and subarachnoid hemorrhage and diffuse brain swelling with compression of the brain stem" and that there was "no possibility that these could have been sustained as a result of any accidental event." Dr. Jones stated:
These injuries were all inflicted and they were all part and parcel of the same beating, and again as I indicated, this child endured a horrific beating all over her body including her head before her death, and again to reiterate, there is no possibility that this distribution and pattern and extent of these injuries could have been sustained in any accidental manner whatsoever.
Tim Meguire, an investigator with the Grand Island Police Department, began the investigation into Diana's death. Meguire testified that when he made contact with Molina at the hospital, Molina said that Diana had been injured falling down the stairs at the family's home. After viewing Diana's body, Meguire accused Molina of not being entirely truthful. When Meguire explained that the bruising he had observed did not seem to be consistent with falling down the stairs, Molina said that "some of the bruising had been — been there when he brought Diana up from El Salvador; again, that some of the family down there was abusing — abusing her." When Meguire said that the marks on Diana's body were more consistent with being struck by a belt, Molina admitted to spanking Diana for urinating on the floor. Meguire said that when Molina was told that Diana was dead, he "cried for a few moments."
Meguire placed Molina under arrest at the hospital and interviewed Molina later that morning in an interrogation room at the Grand Island police station. With one stipulated redaction, a video recording of the interview was played for the jury.
Molina said in the interview that the day before Diana's death, he woke up in the afternoon and went to register his car. He borrowed some money to pay for the registration and then went to the car dealer to get the title so he could register the car. He talked for a while with a friend who worked in automobile parts and then went to the Department of Motor Vehicles at about 4:30 p.m. Molina said he then went home and watched television with his wife.
The family lived in a two-story house in Grand Island. Molina and his wife slept in the basement with Diana and her younger sister. The living room and kitchen were on the ground floor of the residence, and the bathroom and two bedrooms were on the upper floor. Molina's parents, Manuel and Nohemy Molina, slept in one of the upstairs bedrooms; Molina's sister, her son, and Molina's brother slept in the other bedroom.
After a time, Mrs. Molina went upstairs to cook food and Molina said he continued watching television in the basement with Diana. Molina went upstairs, and when he came back downstairs, Diana had urinated on the floor. Molina stated that he "spanked" Diana with a belt "four or five times" and then gave Diana some wipes and told her to clean it up, which she did. Molina said he went upstairs and told his wife what had happened, and she went downstairs and scolded Diana. They ate, and then Diana was given an apple to eat while Mrs. Molina did dishes and Molina returned to watching television. He was joined by his wife after Diana and her younger sister went to sleep. Molina said he and Mrs. Molina went to bed at about 1 a.m.
Molina said in the interview that about 2:30 a.m., Diana woke up and had to use the bathroom. Molina said he took her upstairs to use the bathroom, then cleaned her up. Molina said that as he was taking Diana back to bed, he turned at the top of the basement stairs to turn off the lights, and that Diana tripped and fell down the stairs. Molina said that when he got to her, she was unconscious. Molina said he splashed cold water on her face and rubbed alcohol on his hands and then on her nose, but Diana was unresponsive. He said he heard her heart beating, and he and Mrs. Molina attempted mouth-to-mouth resuscitation but did not know how. Molina put Diana in his car to take her to the hospital.
Molina explained in the interview that when he and his wife moved from El Salvador, Diana did not come with them because of concerns for her health. Diana had been left in El Salvador with her grandmother until Molina went on a bus to get her, about 1½ weeks before her death. When Molina was asked about the marks on Diana's body, Molina said that the marks on Diana's back were there when he picked up Diana in El Salvador. Molina said his wife's cousin in El Salvador had beaten Diana for breaking things.
However, Molina admitted in the interview that he had "spanked" Diana with a belt each of the four times she had urinated in the bedroom, striking five or six blows each time. Diana had, according to Molina, been "spanked" in that way twice in the 2 or 3 days preceding the interview. Molina also admitted that he had "got kind of mad" when Diana urinated in bed and hit her a bit more that time. Molina also said that Diana had defecated in her pants about a week before the interview and had been "spanked" with a belt about six times on that occasion. Molina said that he had not shaken Diana or struck her with anything other than a belt. Molina admitted that he picked Diana up once by her hair, about 3 or 4 days before the interview, and told her to clean up where she had urinated. Diana's hair came out, and Molina said it was the last time he had done that. Molina...
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