State v. Schlitter, 13–0346.

CourtUnited States State Supreme Court of Iowa
Citation881 N.W.2d 380
Docket NumberNo. 13–0346.,13–0346.
PartiesSTATE of Iowa, Appellee, v. Zyriah Henry Floyd SCHLITTER, Appellant.
Decision Date10 June 2016

881 N.W.2d 380

STATE of Iowa, Appellee,
Zyriah Henry Floyd SCHLITTER, Appellant.

No. 13–0346.

Supreme Court of Iowa.

June 10, 2016.
Rehearing Denied July 13, 2016.

881 N.W.2d 384

Mark C. Smith, State Appellate Defender, Shellie L. Knipfer, Assistant Appellate Defender, and Zyriah Schlitter, pro se, for appellant.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Jerry Vander Sanden, County Attorney, and Nicholas Maybanks and Lisa Epp, Assistant County Attorneys, for appellee.

CADY, Chief Justice.

In this appeal from convictions of involuntary manslaughter by commission of public offense and child endangerment resulting in death, we primarily consider a claim of ineffective assistance of trial counsel based on the failure to challenge the sufficiency of evidence to support the submission of all four alternative means of committing the crime of child endangerment. On our review, we conclude trial counsel was ineffective, and a new trial must be granted. We affirm the decision of the court of appeals in part and vacate in part, reverse the judgment and sentence of the district court, and remand the case for a new trial.

I. Background Facts and Proceedings.

Zyriah Schlitter met Nicole King in 2006 and they entered into a relationship. They began sharing a residence and eventually had a daughter, K.S., on September 23, 2008. The relationship ended in late 2009. In February 2010, Schlitter and King agreed that Schlitter would be the temporary primary custodian of K.S. Schlitter was living with his grandparents at the time. He was also dating a woman named Amy Parmer. Schlitter would often stay overnight at Parmer's apartment. Parmer had two children.

On March 1, 2010, Schlitter took K.S. to a medical clinic for a health checkup required for admission to a day-care center. A clinic nurse updated K.S.'s vaccines and found her to be in good health.

K.S. was accepted by the day-care facility on March 2 and attended day care for the remainder of the workweek. Schlitter and K.S. then stayed with Parmer and her children at her apartment over the weekend. Parmer cared for K.S. on Sunday evening while Schlitter attended a financial management class at church for a couple of hours.

On Monday morning, March 8, Schlitter dropped K.S. off at the day-care center. Later that morning, a day-care worker

881 N.W.2d 385

observed a bruise on K.S.'s forehead and around one eye. She also saw marks on the side of K.S.'s chin and discovered makeup had been applied to cover up the bruises. Parmer stopped by the day-care center during the afternoon to check on K.S. and was asked about the injuries. Parmer said K.S. bruised her eye from a fall and was accidentally struck on the forehead by a Pack 'n Play® falling out of a closet.

Schlitter did not take K.S. to the day-care center on March 9. K.S. had a fever, and Schlitter took her to the medical clinic. He told a nurse that K.S. had not been sleeping well and had little appetite. The nurse inquired about the bruise on her forehead. Schlitter responded that K.S. fell into a coffee table. K.S. was diagnosed with conjunctivitis and prescribed Motrin ® and eyedrops.

Over the next few days, Schlitter's father and grandparents provided day care for K.S. K.S. would cling to Schlitter when he was present. On March 10, K.S. had a fever of 104°. Schlitter called the clinic to report the fever. He was told to continue the Motrin ® and eyedrops and to call the next day if there was no improvement. On March 11, Schlitter called the clinic to report that K.S. vomited. He also reported the Motrin ® would only briefly keep her fever under control, and an appointment was scheduled for the next day. Schlitter took K.S. to the clinic on March 12. Medical providers diagnosed K.S. with an ear infection and prescribed an antibiotic. No new bruising was observed. On March 13, her temperature returned to normal.

Schlitter and K.S. again stayed at Parmer's apartment on the weekend. King exercised visitation with K.S. for a period of time. She did not notice any bruises on her face or body.

Schlitter dropped K.S. off at the day-care center on Monday, March 15. Workers at the center again observed bruising on her forehead and face. K.S. acted listless and sad. She slept more than normal, did not play, and did not want to interact. When Schlitter was asked about the new facial bruises, he responded that K.S. liked to beat on herself. Workers at the day-care center reported their observations to the Iowa Department of Human Services (DHS). An investigator for the DHS met with Schlitter on March 16. Schlitter admitted to spanking K.S. and told the investigator that K.S. listened better to Parmer. K.S. was not removed from Schlitter's care.

On March 17, K.S. spent the day with King. K.S. was detached and often cried. Schlitter called the medical clinic on March 18 to report that K.S. was very sleepy. The next day, her condition seemed to improve.

Schlitter and K.S. again spent the weekend with Parmer. On Sunday, March 21, K.S. was sleepy, and she often cried. She also clung to Schlitter. At 5:15 p.m., Schlitter left K.S. in the care of Parmer so he could attend the Sunday evening financial management class.

At 7:45 p.m., Parmer called 911 and reported that K.S. was barely breathing. An ambulance arrived at the apartment and transported K.S. to a hospital in Cedar Rapids. Medical personnel at the hospital found her in a decorticate posture. Her pupils were fixed and dilated. The doctor observed hemorrhages in her eyes. She exhibited limited reaction to pain stimuli. After the doctors told Schlitter that her injuries were likely the result of child abuse, he entered the room where K.S. was being treated and told her “I'm sorry.”

K.S. was promptly airlifted to the University of Iowa Hospitals & Clinics. Family

881 N.W.2d 386

members gathered to be with her and tension surfaced between King and Schlitter. King blamed Parmer for the injuries, and Schlitter blamed the day care.

Medical tests and scans of K.S.'s brain showed significant swelling. Despite extensive medical efforts, K.S.'s condition continued to deteriorate. She remained in a coma, which doctors believed would likely never change. K.S. was kept alive by a ventilator and a feeding tube. On Sunday, March 28, King and Schlitter agreed to the removal of life support systems. K.S. died.

On July 11, 2011, the State charged Schlitter and Parmer with murder in the first degree and child endangerment resulting in death. The trials were severed, and Schlitter went to trial on December 3, 2012.

The medical testimony at trial described the injuries to K.S. as nonaccidental or abusive trauma. The medical professionals generally agreed that K.S. had suffered multiple head trauma events. The testimony came from the emergency room doctors and nurses at both hospitals, as well as neurologists, pathologists, an ophthalmologist, radiologist, doctors in the pediatric intensive care unit, and the head of the child protection team.

The external injuries included bruises on K.S.'s cheeks and under her chin; scrapes or red marks on her left shoulder, the nape of her neck, her left ear and cheek, upper right portion of her chest, and her right underarm area; contusions on her right upper arm and left and right inner thighs; and an infected lesion on her left labia. K.S.'s internal injuries included subdural hematomas in the brain and around the spinal cord, as well as other brain injuries. An MRI revealed that K.S. suffered a massive stroke on the left side of her brain, but revealed no evidence that K.S.'s injuries were caused by strangulation.

Multiple doctors testified that the bruises on K.S.'s face and body were different colors, indicating they had occurred at different times. The retinal hemorrhages, brain blood clots, and subdural membranes indicated injuries that could be up to a few weeks old. The blood found in her brain showed signs of fresh bleeding, older bleeding that had happened over two days before the recent injury, and a recent bleeding within hours of K.S. becoming symptomatic. Moreover, with repeated injuries to the same part of the brain, some of the new injury clouded evidence of the older injury.

The time frames suggested by the different doctors' testimonies sometimes conflicted. The estimates ranged from minutes to hours, within a day, a twelve- to twenty-four-hour period estimate, and an “hours to days” time frame. One doctor stated she could not accurately estimate the timing, but that she had not seen any child awake with the kinds of injuries found in K.S. Almost all the medical professionals were clear that a specific time of the injuring event could not be pinpointed due to individual-specific rates of healing, the age of the patient, an unknown rate of bleeding, and uncertainty concerning the number and frequency of injuries.

Dr. Resmiye Oral, the head of the child protection team, specializes in treating and consulting in cases of child abuse. She met with a statewide multidisciplinary team made up of the physicians, law enforcement, DHS employees, and medical examiners involved in K.S.'s case. Dr. Oral collected all of the reports of the physicians and...

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