State v. Pineda

• Decision Date: 28 January 2000
• Docket Number: No. 23783-1-II.,23783-1-II.
• Citation: 992 P.2d 525,99 Wash.App. 65
• Parties: STATE of Washington, Appellant, v. Kelly Anne PINEDA, Respondent.
• Court: Washington Court of Appeals

992 P.2d 525

99 Wash.App. 65

STATE of Washington, Appellant, v. Kelly Anne PINEDA, Respondent.

No. 23783-1-II.

Court of Appeals of Washington, Division 2.

January 28, 2000.

Pattie Mhoon (Court Appointed), Tacoma, for Respondent.

Randall Avery Sutton, Kevin M. Anderson, Kitsap Co. Dep. Pros. Atty's, Port Orchard, for Appellant.

MORGAN, J.

The trial court dismissed a second degree manslaughter charge because the State could not prove corpus delicti. We affirm.

In early 1998, Kelly and Salvador Pineda lived in Bremerton with their two-year-old son, Angelo. On February 22, 1998, they had a daughter, Amber. Thereafter, Kelly, Salvador, Angelo and Amber shared the same bed, a futon.

Salvador worked the 4 p.m. to midnight shift at a Seattle restaurant. Kelly generally waited up for him, "dressed nice," according to his later testimony.¹ Once he was home, they would retire together.

On the morning of March 2, 1998, Kelly and Salvador took Amber to a doctor for a routine physical examination. The doctor thought that Amber was healthy and that Kelly and Amber were bonding well.

During the afternoon of March 2, Salvador left for work in normal fashion. He got home at approximately 2:40 a.m. on March 3.² After looking for something to eat in the kitchen, he went to the futon on which Kelly, Angelo and Amber appeared to be sleeping. Kelly was dressed, her hair was neatly arranged, and she was wearing make up, earrings and a necklace. Amber looked pale, so he picked her up and found that she was "thoroughly flat, no breathing, no nothing."³ He woke Kelly, told her "[s]omething is wrong here," and called 9-1-1.⁴

Paramedics took Amber to the hospital, where she was pronounced dead. Her body did not show any sign of foul play.

Kelly and Salvador reacted differently. Kelly did not manifest emotion, while Salvador wept openly.

On March 3, about 12 hours after Amber's death, Detectives Lopez and Cronk interviewed Kelly at the family home. She was calm, polite, and did not cry; at times, she even laughed or giggled. Detective Lopez thought that "[h]er demeanor was other than what I would call the demeanor for a mother who had just lost her child."⁵

On March 4, about 36 hours after Amber's death, the two detectives interviewed Kelly, by herself, at the police station. The interview lasted more than five hours. The detectives did not advise Kelly of her right to remain silent or her right to obtain counsel, and Kelly did not seek to invoke those rights.

During the interview, Detective Lopez used, in his words, a "ruse" or "deceptional lie."⁶ He later testified:

Q: [by defense counsel]: And you used a rouse [sic] in the case of Kelly Pineda on March 4th of 1998?

A: [by Lopez]: Yes, sir, I did.

Q: How many times did you lie to Kelly?

A: It was one time, but it entailed two different instances or information.

Q: Okay. And could you please detail that for me, please?

A: Sure.... I had recently done a death investigation involving a female by the name of Beth.[⁷] I told her that Beth had held her child ... face down into.. a changing table, and that the baby had suffocated, and but the mother had done that on accident, unintentionally.

Q: And what was the purpose of telling her about that?

....

A: [S]ome of the information ... gave me an indication that Kelly had done something to the child, to Amber, and I was trying to determine at that point if she would provide further information on what had happened, or if she would deny further information on what happened.

....

Q: What was the other rouse [sic] that you used?

....

A: I don't consider it two separate rouses [sic]. I consider it all in one, because it was all said in the same basic time frame, was that my own wife, when she was a teenager had done something similar to that.... [W]hat she had done wasn't something she had meant to do. It was just basically an accident.[⁸] During the interview, the detectives intentionally withheld some but not all of the information they had received from Dr. Emmanuel Lacsina, the forensic pathologist who autopsied Amber's body. As Detective Lopez later explained:

Q: And were there any other rouses [sic] that you recall using?

A: No, sir.

Q: How about when you told her about the possible causes of death for Amber, that you had received from Dr. Lacsina?

A: I don't consider that a rouse [sic]. Basically what that is, is I just left out some information that I had received.

Q: So leaving out information is not misleading?

A: Well, I suppose you could say I was misleading, but ... the reason it was left out was because there was a possibility that Kelly had caused the death of her child, that giving her an out with saying one of the possibilities was SIDS, that she's going to jump onto that. She's not going to admit to what she did.

....

Q: And you told Kelly that you had spoken to Dr. Lacsina?

A: Yes, sir, I did.

Q: And you told her that Dr. Lacsina had advised you that the possible causes of death were smothering or suffocation?

A: Yes, sir.

Q: And you intentionally left out the possibility of SIDS?

A: Yes, sir, I did.

Q: In point of fact, Dr. Lacsina told you that SIDS was a possible cause of death?

A: He said at that point, that there was similarities in all three of those kind of deaths.

Q: Dr. Lacsina advised you that his autopsy revealed that the child could have died from SIDS, suffocation, or smothering; isn't that true?

....

A: [T]hat's basically what he was advising, yes.

Q: And he further advised you that the cause of death was unknown, didn't he?

A: At that point, yes.

Q: Until your investigation was concluded?

A: Yes, sir.

Q: And you asked him not to put a conclusion in his autopsy report until you had completed your investigation, did you not?

....

A: [I]t's a common practice, that when we're doing an investigation in conjunction with the coroner's office ... on a suspicious death, that the coroner will normally wait until an investigation process is completed so that he can review that along with his autopsy results, to come with the conclusion of a death. That's ... the way that I understand that death investigations or possibly suspicious deaths are done.

Q: You told Kelly that there were indications of petechia[e] on Amber's eyelids; is that true?

A: Yes, I did.[⁹]

Q: And you told her that that indicated that her baby had died of either smothering or suffocation?

A: I said that was indications of that.

Q: How many times did Kelly tell you that she ... didn't see how Amber could have been suffocated or smothered?

A: I would have to look and count in the report.

....

Q: [I]t was several times, wasn't it, or many times?

A: I think there was at least two, maybe there might have been a few more.¹⁰ The detective also asked Kelly to take a Computerized Voice Stress Analyzer test. The record does not show the nature of this test or whether it is scientifically reliable. Kelly agreed to take the test, which lasted about an hour. After completing the test, Kelly was told by Detective Lopez that it "had come out deceptive."¹¹ She responded "that she didn't see how that could happen, because she ... was being truthful."¹²

At various points in the interview, the detectives suggested to Kelly that she might have unintentionally "rolled on to ... Amber, causing her to stop breathing,"¹³ or that she might have "unintentionally done something like place a pillow or hand around Amber's nose because she was upset at Amber for doing something...."¹⁴ Near the end of the interview, Detective Lopez stated outright that he thought Kelly "had killed the baby intentionally."¹⁵ According to Detective Lopez, Kelly angrily responded

that what had happened was accidental, and that she must have fallen asleep, because she could not remember anything past the point of what she had told us. What she had told us is what she had done, laying on the baby, holding her hand over the baby, placing her chest over the baby and then she says she had fallen asleep, and past that point, she couldn't remember anything. And then I asked her, did you intentionally suffocate___or did you suffocate the baby. She says, "It's possible, but I can't remember that," and then she wanted to go home. She was tired, and prior to that point, she stated that what I told you is true, but ... [it is] possible that I didn't fall asleep immediately afterwards, so what I took it to be is that ... she continued with the suffocation. That's my gist of what I remember from her.[¹⁶]

Also on March 4, Dr. Lacsina performed an autopsy in which he examined Amber's body both externally and internally. While examining externally, he did not "note any sign of injury or bruising,"¹⁷ or "anything that would provide [him] with a means to determine the cause of death[.]"¹⁸ While examining internally, he likewise was unable "to find any evidence of disease or other pathology that would explain the cause of death[.]"¹⁹ While examining internally, the doctor found "some evidence of petechia[e]"— "little tiny pinpoint hemorrhages"— "around the heart and lungs[.]"²⁰ He apparently did not find petechiae around the face or eyes. He did not think that petechiae around the heart and lungs explained the cause of death— "nobody seems to know exactly what causes these particular hemorrhages," and "they are seen in a variety of situations"²¹ — but he did think that petechiae around the heart and lungs "are much less common" in suffocation cases than in SIDS cases, and that petechiae occur around the heart and lungs in "80 to 85 percent" of SIDS cases.²²

After his external and internal examinations, Dr. Lacsina spoke with Lopez and Cronk, who told him about the statements Kelly had made. Based on Kelly's statements, Dr. Lacsina then concluded that the cause of Amber's death "was asphyxiation as a result of suffocation or smothering."²³ According to his later testimony: Q: How was it that you excluded SIDS in this case, as a cause of death?

A: The exclusion of SIDS is...