State v. Taylor, 12394

Decision Date05 November 1973
Docket NumberNo. 12394,12394
Citation515 P.2d 695,163 Mont. 106
PartiesSTATE of Montana, Plaintiff and Respondent, v. Andrew TAYLOR, Defendant and Appellant
CourtMontana Supreme Court

Robert A. Tucker, Great Falls, Jack L. Lewis, argued, Great Falls, for defendant and appellant.

Robert L. Woodahl, Atty. Gen., Helena, Thomas J. Beers, Asst. Atty. Gen., appeared, Helena, J. Fred Bourdeau, County Atty., Great Falls, Neil E. Ugrin, Deputy County Atty., argued, Great Falls, for plaintiff and respondent.

CASTLES, Justice.

This is an appeal by defendant Andrew Taylor from a judgment of the district court of Cascade County entered on a jury verdict of second degree murder. Defendant was sentenced to life imprisonment.

The facts of this case are repelling. However, our inquiry as appears hereinafter is whether or not defendant had had a fair trial: and not whether defendant may be guilty or innocent.

On the morning of December 22, 1971, Victoria Lynn Mullen died at Columbus Hospital in Great Falls, Montana. Death was caused by a massive subdural hematoma, i. e. a bleeding into the cranial cavity in the space separating the brain and the membrane lining the boney vault. Within six days of her death Vicky Mullen would have been two years old.

Vicky was the child of defendant's wife, Linda Taylor, by a previous marriage. The Taylors were married early in November 1971, and the marriage continued at least until after the trial of this cause. Shortly after the marriage defendant, an enlisted man in the United States Air Force, was reassigned to Malmstrom Air Force Base in Great Falls. It was the State's theory that shortly after the Taylors arrived in Montana the defendant embarked on a course of conduct which culminated in Vicky's death.

While there is a great deal of testimony in the record implicating defendant in Vicky's death, the most damaging is that of defendant's wife, Linda Taylor. Testifying over defendant's continuing objection based on the marital privilege provisions of sections 93-701-4(1) and 94-8802, R.C.M.1947, Mrs. Taylor indicated that defendant frequently spanked the child very hard, often hard enough to leave bruises, when she soiled herself or misbehaved. She testified: that shortly after the family arrived in Montana defendant began to spank the child with a stick for wetting ber pants and on at least one occasion there was blood on the stick following a spanking; that defendant spanked the child on numerous occasions with a plastic stick and beat her with a belt leaving severe bruises, this also as punishment for misbehavior; that when Vicky refused to eat defendant would slap her, slam her head very hard against the back of the high chair and beat her head with a stick.

In another incident, Mrs. Taylor testified defendant became angry over the child's refusal to walk in a shopping center parking lot and backhanded her hard enough to knock her down. This occurred on December 13 or 14, 1971. On another occasion, defendant slapped the child for wetting her pants, causing her to strike her head against the armrest of the couch and go into convulsions. This occurred on the evening preceding the child's death. Mrs. Taylor also testified that on December 18, 1971, defendant tied a belt around the child's feet, strapped the belt to the doorknob and then opened and closed the door several times, causing the child to bang her head against the door. Also, that same evening he strapped the belt over the top of a door and suspended the child head down and then opened the door very quickly causing Vicky to fall to the floor on her head.

At trial, Mrs. Taylor admitted having made a number of prior statements as to the cause of Vicky's injuries hich were inconsistent with her testimony at trial. She indicated the earlier accounts were false and that her account at the time of trial was true and accurate. However, under cross-examination, she did specifically affirm an earlier statement in which she said 'He never really intentionally meant to hurt her. It was his way of disciplining her.' She also testified the defendant played with the child, kissed her, often gave her treats of cookies and would look in on her at night to see if she was covered.

Mrs. Taylor's testimony was supported in part by the testimony of Mr. and Mrs. Hyatt. The Hyatts were close friends of the Taylors and the two families visited frequently. Both Hyatts testified as to defendant's punishment of the child. Mrs. Hyatt confirmed one incident, testified to by Mrs. Taylor, when defendant spanked Vicky hard enough to produce bruises. She testified that on another accasion after defendant spanked Vicky, there was blood on his hand and her bottom. Mr. Hyatt testified he heard or saw defendant discipline Vicky on a number of occasions and that in his opinion the discipline administered by defendant was far too severe for a child of Vicky's age. Both Hyatts agreed the spankings they saw or heard being administered were for the purpose of disciplining Vicky for some misbehavior. They also testified that on occasion defendant displayed affection toward the child by hugging and kissing her.

Defendant testified on his own behalf and acknowledged disciplining the child by spanking and standing her in a corner as punishment for various misdeeds. Defendant also recalled the parking lot incident of December 13 or 17 when Vicky was having trouble walking but denied slapping her on that occasion. He denied over having hit her with a belt, denied ever having hung the child from a door, and denied hitting her with sticks. In general, defendant denied mistreating Vicky in any of the ways testified to by his wife. He stated he knew of one fall which accounted for some of Vicky's bruises and that his wife had told him of other falls which would explain some of the other injuries.

The extent of Vicky's injuries was testified to by Dr. John Pfaff, Jr., a pathologist who performed the autopsy. He testified that the cause of death was bleeding which occurred in the space between the brain and the membrane lining of the skull. This bleeding was estimated to have begun approximately 10 to 13 days prior to death. However, the doctor believed there were episodes of rebleeding caused by injuries to the head which occurred between the time of the first injury and the time of death. Dr. Pfaff further stated that the entire scalp was swollen and had a 'boggy' consistency, suggesting bleeding over the entire scalp. This condition was consistent with his finding that the bleeding which caused Vicky's death was the result of one or a series of severe blows, with the area of initial bleeding being subsequently aggravated and enlarged by other severe blows to the head.

In further testimony, Dr. Pfaff stated the autopsy examination revealed additional multiple injuries. While these injuries were not directly related to the cause of death, they did tend to corroborate the testimony of Mrs. Taylor and the Hyatts as to repeated severe disciplinings of the child. These injuries included multiple bruises and abrasions of the face and neck areas; multiple bruises on both arms and legs; rather large bruises on both upper legs and the area of the things; and, at least two areas of hemorrhage in the abdomen resulting from severe blunt force impacts. The majority of these injuries had been inflicted from three to fourteen days prior to the child's death.

Dr. McKenzie testified he treated the child on December 3, 1971, and that he examined her again on December 9, 1971, at which time he noticed head and face injuries which would be classified as contusions and abrasions. He also testified that his examination of December 9 would have revealed a massive subdural hematoma, but he ascertained none. However, he did indicate that his examination would not have revealed that a bleeding process, which could end in a massive subdural hematoma, had begun.

Mrs. Taylor testified that following Vicky's death defendant gathered up the child's clothes and forced her to go with him to the dump where he discarded the bloody clothes, after giving a false name to the proprietor of the dump. Defendant, on the other hand, testified it was Mrs. Taylor who picked up the clothes, and that he took them to the dump and gave a false name and address there to protect his wife.

Finally, there was testimony by defendant's cell mate that defendant had told him he spanked the child with a belt and hit her with a belt, because she was a spoiled brat. He also testified defendant had said he did not really mean to hurt her, he was just trying to correct her.

At the close of the evidence, the district court refused defendant's offered instructions on voluntary and involuntary manslaughter. It also refused defendant's request for change in the general cautionary instruction regarding the credibility of witnesses which would have specifically instructed the jury to consider prior inconsistent statements as possibly repelling the presumption that each witness spoke true. Over defendant's objection, the court gave two instructions regarding the burden of proof to the effect that the State had only to prove guilt beyond a reasonable doubt.

On appeal, defendant raises numerous issues for review which we shall consider in this order:

(1) That the district court erred in refusing defendant's offered instructions on voluntary and involuntary manslaughter.

(2) That it was error to allow defendant's wife to testify over his objection.

(3) Corpus delicti was not established beyond a reasonable doubt.

(4) That it was error to admit over objection testimony 'considering the possibility of Battered Child Syndrome'.

(5) That testimony as to other injuries was improper.

(6) That the jury was not properly instructed regarding prior inconsistent statements.

(7) That it was error to qualify the State's burden of proof with the word 'only' in two of the court's instructions.


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