State v. Tanner

• Decision Date: 15 November 1983
• Docket Number: No. 17752,17752
• Parties: STATE of Utah, Plaintiff and Respondent, v. Kathy TANNER, Defendant and Appellant.
• Court: Utah Supreme Court

Page 539

675 P.2d 539

STATE of Utah, Plaintiff and Respondent, v. Kathy TANNER, Defendant and Appellant.

No. 17752.

Supreme Court of Utah.

Nov. 15, 1983.

Brooke Wells, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

The defendant and appellant, Kathy Tanner, appeals from her conviction for manslaughter in the death of her three-year-old daughter. The defendant was tried before the court and sentenced to an indeterminate term of not less than one or more than fifteen years in prison. The defendant here argues that there was insufficient evidence to support the verdict, that some evidence was erroneously admitted, and that some evidence was erroneously excluded.

The key evidence in this case is the mute testimony of the body of three-year-old Tawnya Tanner. There is no question that she died on March 21, 1980, of "subdural hematoma associated with multiple contusions of the body," as stated in the autopsy report. That report, the contents of which were stipulated to by the defendant, enumerated the many contusions scattered over the child's body literally from head to foot. The contusions are clearly visible in the photographs admitted in evidence, as are the bulges of the scalp where the severely bruised brain protruded through the craniotomy sites. At trial the court permitted the prosecution's medical experts to testify regarding the condition of the child's body, the nature of the injuries and the cause of death. This testimony included the witnesses' observations regarding the "battered child syndrome." The defendant claims error in the admission of this battered child syndrome testimony and the admission of instances of prior bad acts that she alleges were presented "to establish that Tawnya was a victim of the Battered Child Syndrome."

The issue of the admissibility of "battered child syndrome" testimony has not previously been presented to this Court. ¹ The development of the medical-social concept of the battered child syndrome is traced in McCoid, "The Battered Child & Other Assaults Upon the Family: Part One" 50 Minn.L.Rev. 1 (1965). The author points out that the "development of the concept of the battered child syndrome has moved from an initial identification of physical phenomenon [sic] to concern with the causative factors outside of the body of the child." Id. at 19. Early publications concentrated on the identification of the pattern of injuries observed, but in the 1950s, articles began to address the origins of the trauma, including the role of the parents. Increasingly, as attention and research focused on the problem and statistics were assembled, the medical profession became aware of the abusive character of the injuries and the grave danger to the helpless child in the custody of an abusive caretaker. Id. at 4-8. McCoid summarizes:

From this review, it appears that by early 1965, there had come a recognition of a distinctive phenomenon called "the battered child syndrome" which, though it begins with a pattern of injuries to the child, is really descriptive of a pattern of conduct on the part of the parents or others who are to guard the welfare of the child. The medical description can perhaps best be summarized as multiple injuries in various stages of healing, primarily to the long bones and soft tissues and frequently coupled with poor hygiene and malnutrition, but peculiarly identified by the marked discrepancy between the clinical or physical findings and the historical data provided by the parents. Described in terms of the conduct of the parents or their characteristics, the studies seem to confirm that the abuser is likely to be an emotionally immature individual from almost any walk or stratum of society, a person who probably suffers from the pressures of marital difficulties or economic circumstances or other emotional pressures not directly related to the child himself, so that the child becomes merely a focus for generalized frustration or anger and an outlet for the poorly controlled aggressiveness of the parent.

Id. at 18-19.

Over the past fifteen years, cases discussing the use of battered child syndrome evidence have appeared with increasing frequency in the state reporters. The battered child syndrome has become a well-recognized medical diagnosis, which must be testified to by an expert witness:

The diagnosis is dependent on inferences, not a matter of common knowledge, but within the area of expertise of physicians whose familiarity with numerous instances of injuries accidentally caused qualifies them to express with reasonable probability that a particular injury or group of injuries to a child is not accidental or is not consistent with the explanation offered therefor but is instead the result of physical abuse by a person of mature strength.

State v. Mulder, 29 Wash.App. 513, 629 P.2d 462, 463 (1981). In People v. Jackson, 18 Cal.App.3d 504, 95 Cal.Rptr. 919 (1971), the court pointed out that "[a]n expert medical witness may give his opinion as to the means used to inflict a particular injury, based on his deduction from the appearance of the injury itself." Id. at 507, 95 Cal.Rptr. at 921. Such testimony is not accusatory, but only indicates the cause of death. Similarly, when an expert testifies as to the existence of the "battered child syndrome," he expresses no opinion regarding a defendant's culpability, but rather testifies that, as the witness in Jackson stated:

"[I]t would take thousands of children to have the severity and number and degree of injuries that this child had over the span of time that we had" by accidental means. In other words, the "battered child syndrome" simply indicates that a child found with the type of injuries outlined above has not suffered those injuries by accidental means. This conclusion is based upon an extensive study of the subject by medical science.

Id. ² In Bludsworth v. State, Nev., 646 P.2d 558 (1982), the defendants argued that evidence of bruises and a bite mark on the body of the child was incompetent because there was no prior establishment that either defendant was responsible for the injuries. The court affirmed the admission of the evidence, stating:

Admissibility of the bite mark and other bruise evidence does not depend on connecting either defendant to the infliction of the injury. It is independent, relevant circumstantial evidence tending to show that the child was intentionally, rather than accidentally, injured on the day in question.

Id. at 559. In People v. DeJesus, 71 Ill.App.3d 235, 27 Ill.Dec. 448, 389 N.E.2d 260 (1979), the defendant claimed error in the use of battered child syndrome evidence, arguing that it suggested to the jury that the defendant was guilty of prior offenses. The court held that the expert's diagnosis and explanation of medical terms of art do not indicate wrongdoing on the part of a particular defendant, but merely describe the nature of the injuries. See also State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978); State v. Goblirsch, 309 Minn. 401, 246 N.W.2d 12 (1976).

The defendants in these cases frequently argue that evidence of injuries other than that which is the immediate cause of death, i.e., any evidence of the battered child syndrome, is incompetent or is more prejudicial than probative. Again, we emphasize that evidence regarding the child's physical condition does not directly indicate the culpability of any particular defendant. In Ashford v. State, Okl.Crim., 603 P.2d 1162 (1979), an 8-month-old baby was found to have injuries from five days to two weeks old and partially healed fractures from four to eight weeks old, in addition to a fatal subdural hemorrhage. The court held that "[i]n a case of this nature, the past injuries are admissible to counter any claim that the latest injury happened through accident or simple negligence. The pattern of abuse is relevant to show the intent of the act." Id. at 1164 (emphasis added). In other words, the pattern of abuse is relevant to show that someone injured the child intentionally, rather than accidentally.

Battered child syndrome evidence is most frequently cited as admissible to show absence of accident. It is relevant to claims of accidents by the child, e.g., "She was clumsy and fell a lot," as well as accidents by the adult, "I tripped while I was carrying him." Expert testimony as to types of injuries, their size, location and severity, together with evidence of their varying age and progress in healing, allows the lifeless or preverbal victim to testify in the only way possible. We are satisfied that the concept of the battered child syndrome is grounded in scientific research and is widely accepted in the medical community. Our research shows that all courts which have addressed the question have affirmed the admission of expert medical testimony regarding the presence of the battered child syndrome. We therefore conclude that in appropriate factual circumstances, testimony regarding the battered child syndrome is admissible when given by a properly qualified expert witness. ³ We caution trial courts to weigh carefully the probative value against the potential for undue prejudice that may be created by the use of the term "battered child syndrome." The term should not be applied broadly or as a generalization. The expert should be able to testify in detail regarding the nature of the child's injuries and whether the explanation given for the injuries is reasonable. Any deficiencies in the testimony, however, go to its weight rather than to its admissibility. The weight and credibility to be given an expert's testimony are matters to be decided by the factfinder. Defense counsel may of course challenge the testimony on cross-examination, but such challenge goes to the weight to be given the testimony, not to its admissibility. See State v. Clayton, Utah, 646...