State v. Navy

• Decision Date: 31 July 2006
• Docket Number: No. 4143.,4143.
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Kenneth NAVY, Jr., Appellant.

Page 549

635 S.E.2d 549

The STATE, Respondent, v. Kenneth NAVY, Jr., Appellant.

No. 4143.

Court of Appeals of South Carolina.

Heard March 7, 2006.

Decided July 31, 2006.

Rehearing Denied September 25, 2006.

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, Senior Assistant Attorney General Norman Mark Rapoport; and Solicitor Warren Blair Giese, all of Columbia, for Respondent.

BEATTY, J.:

Kenneth Navy appeals his conviction for homicide by child abuse, arguing the trial court erred in: (1) admitting three inculpatory statements; and (2) refusing to grant a new trial as a result of the State's treatment of defense witnesses and closing argument. We reverse.

FACTS

On February 9, 2003, Navy and his neighbor, Terry Crocker, were at Navy's residence watching television. Navy's twenty-three-month-old son, Kenneth Navy, III (the "victim"), was upstairs taking a nap. At some point the victim became distressed, and 911 was called. Emergency workers responding to that call observed Navy administering CPR to the victim. The victim was transported to the hospital and pronounced dead shortly after arrival. Navy informed the emergency workers, the nurse who greeted him at the hospital, and a child life specialist at the hospital that the victim had been born four months premature, had lung and heart problems, and had fallen from his highchair a few days prior to his death without any serious injuries. Navy also stated he went upstairs to check on the victim, who had been fussy that day, he went downstairs to get the victim a bottle, and the victim was not breathing when he returned. Navy gave essentially the same version of events to a police detective at the hospital and to the coroner.

The coroner examining the victim's body discovered four rib fractures that had occurred at different times over a period of weeks prior to the victim's death. The coroner opined the victim had been suffocated. A tipster called and met with another coroner from the same office to say that she believed the victim had been suffocated and pushed down the stairs. The tipster, whom police were able to identify, wished to remain anonymous and was not identified at trial because she feared retaliation from her family and Navy's family.

After learning of the autopsy results and the information from the tipster, Lieutenant James Smith and Sergeant Lancy Weeks drove to Navy's home on the day of the victim's funeral visitation and asked if Navy would be willing to accompany them to the police station for more questioning. After Navy inquired as to whether the questioning could wait until after the funeral, he was informed that it could not wait. Navy was not placed under arrest, but he agreed to ride with the officers in their car to the police station. Navy was not given his Miranda¹ warnings, and he gave a statement at 9:50 a.m. describing the events on the day the victim died. Navy initially stated that he went to check on the crying victim in his crib, he patted him on the back to comfort him, and he went downstairs to get a bottle. Upon his return, he realized the victim was having difficulty breathing, he panicked, ran up and down the stairs, and then returned to find the victim lifeless. The officers typed up the statement ("first written statement"), had Navy sign it, and then informed a shocked Navy that the victim died from suffocation and had broken ribs.

Smith then asked Navy to describe exactly how he comforted the victim. Navy stated he may have popped the victim on his back and patted the victim on his mouth to stop him from crying ("oral statement"). Navy was then given his Miranda warnings, and he signed a written waiver agreeing to talk with police at 11:35 a.m. In his second written statement given at 11:40 a.m., Navy indicated he put his hand over the victim's mouth when he could not get the child to be quiet. He stated he did not hold his hand there. Navy further stated: "I knew I knocked out his breath and I figured he would catch it by the time I got back up to the room. I heard him making that noise. It was like he was still trying to catch his breath. That was when I panicked. He quit breathing . . . ." Navy admitted he could have placed his hand over the victim's nose as well.

After taking Navy's second written statement, Weeks consulted with the coroner. The coroner opined that Navy had to have held his hand over the victim's mouth and nose for more than just a brief period. Police confronted Navy with this information and Navy gave a third written statement at 12:25 p.m. in which he said he could have held his hand over the victim's mouth and nose for a minute, but not more than two minutes. Navy stated the child was gasping for breath when he removed his hand. Navy was questioned for a total of approximately three hours.

Navy was placed under arrest for homicide by child abuse. He moved to suppress the oral statement and the second and third written statements prior to trial. After the Jackson v. Denno² hearing, the trial court denied the motion to suppress, finding the first statement was not a custodial statement and the second and third statements were given after Navy was given his Miranda warnings.

At trial, the State presented evidence that although the victim had serious lung difficulties immediately after his premature birth, the victim was healthy at the time of his death. Dr. Teresa Baggett, the pediatrician who treated the victim a few months prior to his death, testified that when the victim was born, he required oxygen and an apnea monitor for a few months, later suffered from an asthma-type condition called reactive airway disease, and required treatment with Albuteral, a nebulizer, monthly shots, and injections of Synergist to protect him from the respiratory syncytial virus (RSV). Dr. Baggett stated the victim was having difficulty breathing in August 2001, and the parents were instructed to perform aggressive chest physiotherapy, or pounding of the chest, to loosen lung secretions. At his October 2002 visit, the victim was wheezing and had an ear infection. However, when the victim returned for a follow up visit in November 2002, Dr. Baggett testified his lungs were clear and she advised the victim's mother to decrease the frequency of his nebulizer treatments.

A radiologist examined the victim's x-rays from his August 2001 treatment and from his autopsy. The radiologist testified that although the first of the three August 2001 x-rays was of poor quality, the other two showed no rib fractures. The radiologist also opined that the four rib fractures visible in the victim's autopsy x-ray were caused by forceful trauma and could not have occurred from a fall or during aggressive chest physiotherapy or CPR. Further, Dr. Clay Nichols, the coroner who conducted the victim's autopsy, testified the victim's lungs were clear, normal, and not inflamed or filled with mucous at the time of death.

Navy presented evidence to show that he was not a violent person, that the victim's death could have resulted from his lung deficiencies, and that the rib fractures were old fractures from August 2001 that had not healed. Navy's orthopedic surgery expert, Dr. Thomas Trancik, testified the victim had four rib fractures based on the first August 2001 x-ray, which was of poor quality. He admitted he could not locate the fractures in the subsequent two August 2001 x-rays. Trancik also opined the rib fractures could be consistent with the administration of CPR at the time of the victim's death. During cross-examination, the State commented that Trancik was "no expert," Navy objected to the comment, it was struck from the record, and Navy did not request further instructions to the jury or a mistrial.

Navy's neighbor, Terry Crocker, Navy's sister, the victim's speech therapist, Navy's wife, and Navy's father all testified that they never witnessed Navy being violent with his children. Crocker, who was in Navy's home at the time the victim stopped breathing, testified that Navy was not upset that day, that he witnessed Navy go upstairs to check on the victim, and that Navy returned downstairs very fast, saying the victim was not breathing.

Navy testified he never abused his children and did not suffocate his son. During cross-examination, the solicitor asked Navy to admit that "every time we took a break when the jury was gone you were laughing and cutting up, weren't you?" Navy's objection was sustained and no further instructions were requested. When the solicitor began screaming at Navy, the court instructed the solicitor to treat Navy "with respect." The State also brought out on cross-examination of the defense witnesses that although Navy had never been convicted of a violent crime, police had been called to his home numerous times for violent arguments, he had been suspended from high school for punching a coach, he had been accused of attempting to assault a sixteen-year-old girl, and he had been in a physical altercation with his father.

Navy was convicted of homicide by child abuse and sentenced to twenty years imprisonment. His motion for a new trial was denied, and this appeal follows.

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only and is bound by the factual findings of the trial court unless clearly erroneous. State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001). Appellate review of whether a person is in custody for Miranda purposes is limited to a determination of whether the trial judge's ruling is supported by the record. State v. Evans, 354 S.C. 579, 583, 582 S.E.2d 407, 409 (2003). Further, the trial court's decision to deny a motion for a new trial will not be disturbed absent an abuse of discretion. State v. Covington, 343 S.C. 157, 163, 539 S.E.2d 67, 69 (Ct.App.2000).

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