State v. Ostlund

• Decision Date: 15 December 1987
• Docket Number: No. C5-87-390,C5-87-390
• Citation: 416 N.W.2d 755
• Parties: STATE of Minnesota, Respondent, v. Janet Marie OSTLUND, Appellant.
• Court: Minnesota Court of Appeals

Page 755

416 N.W.2d 755

STATE of Minnesota, Respondent, v. Janet Marie OSTLUND, Appellant.

No. C5-87-390.

Court of Appeals of Minnesota.

Dec. 15, 1987.

Review Denied Feb. 24, 1988.

Syllabus by the Court

1. A conviction may be based on circumstantial evidence and will be upheld if the reasonable inferences from such evidence are consistent only with guilt and inconsistent with any rational hypothesis except that of guilt.

2. Where reputable doctors present conflicting expert opinions on the cause of death, the trier of fact must determine the credibility of the witnesses and the weight to be given their testimony.

3. Prosecutor's cross-examination did not amount to prejudicial misconduct.

4. Cross-examination of defendant concerning a prior inconsistent statement made to detective and contained in the 5. Trial court properly limited defense closing argument by not allowing comment on the state's failure to call a particular witness where witness's name had been disclosed before trial and both parties knew the nature of his testimony.

sworn complaint is proper, and not inadmissible hearsay, even though the detective was not called as a witness at trial.

6. Trial court did not err in admitting Spreigl evidence.

7. Trial did not err in failing to give a jury instruction on the lesser included offense of first degree manslaughter.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Thomas L. Johnson, Hennepin Co. Atty., Vernon E. Bergstrom, Chief, Appellate Section, J. Michael Richardson, Asst. Co. Atty., Minneapolis, for respondent.

Ronald I. Meshbesher, Steven J. Meshbesher, John P. Sheehy, Meshbesher, Singer & Spence Ltd., Minneapolis, for appellant.

Heard, considered and decided by WOZNIAK, P.J., and FOLEY and CRIPPEN, JJ.

OPINION

FOLEY, Judge.

Appellant Janet Marie Ostlund was charged by complaint ¹ with second degree murder in the unintentional killing of her infant daughter Maria by shaking her and causing massive injury to her brain. After a jury trial, appellant was convicted. The trial court denied defense motions for a judgment of acquittal at the close of the state's case and after the verdict. The trial court also denied appellant's motion for a new trial. We affirm.

FACTS

Appellant married David Ostlund in January 1983. The couple wanted to have children but experienced problems of infertility. They decided to adopt a child in the fall of 1983.

Hope International approved them for adoption. In August 1985, appellant and her husband flew to Miami to pick up the child whom they had already named Maria Catherine. Maria was 15 months old and had been born in El Salvador. She had several health problems when she arrived. She was underweight and malnourished, had badly infected ears, and scabies. She could barely sit up or crawl. Appellant took her to Dr. Mace Goldfarb, a pediatrician, who detected a heart murmur, and informed appellant that Maria was developmentally delayed and possibly mentally retarded.

On July 14, 1986, appellant and her husband had a quarrel about doing work in the yard and around the house. David left the house at approximately 6:30 p.m. to go to a friend's house. David's children by a previous marriage also left the house at about 7:00. Appellant was alone with Maria. Appellant claims that she was watering plants in the living room, and Maria had climbed up on the couch to look at some little figurines that were on a shelf on the wall.

Appellant claims that she had her back turned and then heard a thump, and when she turned around she saw Maria lying face up on the kitchen linoleum near the couch. Maria was not moving. Appellant took her to North Memorial Hospital, arriving at approximately 7:19. Maria had suffered a severe brain injury. She was transfered to Minneapolis Children's Hospital, where she died at about 6:00 p.m. on July 15 of closed head trauma due to swelling of the brain with the presence of subdural bleeding on the brain.

ISSUES

1. Is the state's evidence sufficient to sustain the conviction of second degree murder?

2. Did the prosecutor commit prejudicial misconduct?

3. Did the trial court err by ordering defense counsel to refrain from commenting in closing about the state's failure to produce a witness?

4. Did the trial court err in admitting Spreigl evidence?

5. Did the trial court err by failing to instruct the jury on the lesser included offense of first degree manslaughter?

6. Should a new trial be granted in the interests of justice?

ANALYSIS

1. Sufficiency of the Evidence

The state's theory, based primarily on circumstantial evidence including medical opinion testimony, was that Maria's injuries were caused by a violent shaking. A conviction may be based on circumstantial evidence and will be upheld if the reasonable inferences from such evidence are consistent only with the defendant's guilt and inconsistent with any rational hypothesis except that of guilt. State v. Anderson, 379 N.W.2d 70, 75 (Minn.1986), cert. denied, 476 U.S. 1141, 106 S.Ct. 2248, 90 L.Ed.2d 694 (1986). The court will examine the evidence by viewing it in the light most favorable to the verdict and will assume that the jury disbelieved any testimony in conflict with the result it reached. State v. Daniels, 361 N.W.2d 819, 826 (Minn.1985).

Appellant argues that the state's experts' medical opinions are insufficient as a matter of law to prove beyond a reasonable doubt that Maria's death was a homicide. The state called six medical experts to testify about the cause of Maria's injuries. Dr. Goldfarb, Maria's pediatrician and the attending physician when Maria was brought in to the Children's Hospital on July 14, testified:

Q. [By the prosecutor] Doctor, based on your training and experience and your examination on July 14th and 15th of Maria Ostlund, do you have an opinion to a reasonable medical certainty whether the injuries that you saw in Maria Ostlund could have been sustained as described by Janet Ostlund in a fall from a couch that has a back which at it's highest point is 32 inches high?

A. I believe that the findings were inconsistent with that kind of fall.

Q. * * * do you have an opinion as to whether the injuries Maria suffered on July 14th of 1986 were consistent with a child who had been shaken?

A. I think the injuries were consistent with that, yes, I do, with the shaking.

Dr. Lindsey Thomas, deputy medical examiner at the Hennepin County Medical Examiner's office who performed an autopsy on Maria, testified:

Q. [By the prosecutor] * * * do you have an opinion as to the cause of Maria Ostlund's death?

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A. The cause of death was the brain swelling and subdural bleeding due to a closed head injury, and specifically, the type of closed head injury that I believe caused these injuries was a shaking or whiplash type of injury.

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Q. * * * do you have an opinion to a reasonable medical certainty as to whether Maria Ostlund suffered these injuries in a fall from a couch, the highest point of which is 32 inches?

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A. * * * [I]t is inconceivable that these injuries could have occurred from a fall off a couch.

Q. Why is that?

A. My experience has been and studies have shown that children that fall from height such as a couch in a home do not sustain significant brain injuries.

In rebuttal, Dr. John MacDonald, a pediatric neurologist who participated in Maria's care on July 15th, testified:

Q. [By the prosecutor] Do you have an opinion, to a reasonable medical certainty, as to whether Maria Ostlund suffered that injury from a fall off a couch, the highest point of which is 32 inches?

A. I would have a very hard time accepting that degree of injury from that type of fall.

Q. * * * do you have an opinion, to a reasonable medical certainty, as to the mechanism that resulted in her injuries?

A. From the facts that I have and the exam I did, I would have to conclude that the most likely primary diagnosis would be a shaken baby syndrome.

In rebuttal, Dr. David Dassenko, a pediatric intensive care physician who participated in Maria's care on July 15, testified:

Q. [By the prosecutor] Do you have an opinion, to a reasonable medical certainty, as to whether the injury that Maria Ostlund had and you were treating her for, occurred from a fall onto a linoleum floor from a couch of which the highest point is 32 inches?

A. * * * well, I've never seen, I should say, a fatal head injury from that type of thing, in my experience.

In rebuttal, Dr. Richard Fox, director of pulmonary and critical care services at Minneapolis Children's Hospital who treated Maria on July 14, testified:

Q. [By the prosecutor] * * * Do you have an opinion, to a reasonable medical certainty, of whether a fall from a couch onto a linoleum surface would produce the brain injury that Maria Ostlund had?

A. Well, I find it almost unbelievable.

The state's last medical expert, Dr. Garry Peterson, Hennepin County Medical Examiner, testified in rebuttal:

Q. [By the prosecutor] Do you have an opinion as to, not how, but what caused that brain injury?

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A. The explanation that I reached was that there was a shaking that caused commotion to the head, tearing the bridging veins and a collection of subdural hemmorrhage and injury to the brain that caused the swelling and set the process in motion.

The defense also called six medical experts to testify about the cause of Maria's injuries. Dr. William Rodman, an ophthalmologist who examined Maria's eyes on July 15, testified:

Q. [By Mr. Meshbesher] Did you do a complete exam of Maria's eyes?

A. * * * yes.

Q. What do you feel was the significant finding in Maria?

A. I think the significant finding was that the retina wasn't being profused, * * * the retina was totally without blood when I saw it, so that my assumption was that something had choked off the artery to the retina * * *.

Q. Is what you found caused by shaking?

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A. * * * I can't make the connection between these eye findings and...