State v. Weaver

• Decision Date: 18 September 1996
• Docket Number: No. 94-834,94-834
• Citation: 554 N.W.2d 240
• Parties: STATE of Iowa, Appellant, v. Mary Catherine WEAVER, Appellee.
• Court: Iowa Supreme Court

Page 240

554 N.W.2d 240

STATE of Iowa, Appellant, v. Mary Catherine WEAVER, Appellee.

No. 94-834.

Supreme Court of Iowa.

Sept. 18, 1996.

Thomas J. Miller, Attorney General, Doug Marek, Deputy Attorney General, and Julie H. Brown and Virginia Barchman, Assistant Attorneys General, for appellant.

Paul Rosenberg of Paul Rosenberg & Associates, Des Moines, for appellee.

Considered by McGIVERIN, C.J., and HARRIS, LARSON, TERNUS, and SCHULTZ, ^* JJ.

McGIVERIN, Chief Justice.

Consolidated appeals come to us involving: (1) a direct appeal by the State of the district court's latest decision on remand to grant defendant's second motion for new trial; and (2) an appeal and application for further review by defendant from an earlier court of appeals decision affirming her convictions for murder in the first degree and child endangerment.

We affirm on the State's appeal of the district court's ruling granting defendant a new trial. Therefore, we dismiss the defendant's appeal and application for further review as moot.

I. Background facts and proceedings. On January 23, 1993, eleven-month-old Melissa Mathes died after suffering respiratory arrest while in the care of her babysitter, defendant Mary Weaver. At approximately 11:14 a.m. on January 22 (the day preceding Melissa's death), defendant telephoned 911 and reported that Melissa was not breathing. Melissa had been placed by her mother, Tessia Mathes, in the care of the defendant at approximately 10:20 that morning. The autopsy results showed Melissa had both old and recent (acute) injuries including a "skull fracture, subdural hematoma, bleeding in the brain, [and] bilateral retinal hemorrhages, which were consistent with shaken baby syndrome." (Emphasis added.)

Dr. Robert Robinson, who performed the autopsy with assistance by Dr. Robert Folberg and Dr. Robert Schelper, estimated Melissa's skull fracture to be seven to ten days old. Others opined that it was possible the skull fracture was only five days old. Dr. Robinson estimated that the subdural hemorrhage detected during the autopsy was one to two weeks old, the sagittal sinus thrombus (blood clot in the brain) was estimated to be seven to ten days old, and necrosis (cell death in the brain) was estimated to be seven to ten days old.

In regard to acute injuries, the autopsy showed Melissa had suffered from diffuse subarachnoid hemorrhage, contusion (frontal cortex), bilateral retinal hemorrhage, and bilateral anterior chamber hemorrhage. The autopsy also led the examining physicians to conclude the acute conditions preceding Melissa's death would have been nonsubtle and immediate and that they occurred shortly before she was admitted into Marshalltown Hospital in response to the defendant's 911 telephone call. ¹

After Melissa's death, the State charged defendant with murder in the first degree, see Iowa Code § 707.2(2) (1993), and child endangerment, see id. § 726.6(1)(b). Defendant waived her right to a jury trial and the case was tried to the court.

On March 22, 1994, the district court, Judge Carl E. Peterson, convicted defendant of both charges. After entry of the verdict but prior to sentencing, defendant filed her first motion for a new trial based on alleged newly-discovered evidence. ² See Iowa R.Crim.P. 23(2)(b)(8). Following a hearing, that motion was denied. ³

Next, the court sentenced defendant on both charges based on the verdict. Defendant appealed the judgment of conviction and we transferred the case to the court of appeals. On direct appeal, defendant raised three contentions: (1) that the district court abused its discretion in failing to grant a new trial based on the newly-discovered evidence contained in the affidavits of two witnesses (McElroy and Lovig); (2) that there was insufficient evidence to support defendant's convictions; and (3) that the district court abused its discretion in excluding evidence of an alleged conversation between Melissa's mother, Tessia, and a Kimberly Smuck. After considering defendant's contentions, the court of appeals affirmed defendant's convictions.

Defendant sought further review of the court of appeals decision. Defendant also filed a motion for limited remand for the purpose of filing in the district court a second motion for a new trial based on additional alleged newly-discovered evidence. We granted defendant's application for further review and the motion for limited remand.

Pursuant to our order and pending resolution of the application for further review, the case was remanded to the district court to determine the merits of defendant's second motion for a new trial based on alleged newly-discovered evidence. As in defendant's initial motion for a new trial, defendant claimed in her second motion filed in district court that after the verdict was entered three new witnesses came forward with evidence concerning an alleged incident that purportedly occurred within one hour before Melissa's respiratory arrest. The three new witnesses, Evelyn Braack, Flossie Wall, and Elaine Kail, claimed that following Melissa's death, they had a conversation with Tessia Mathes during which Tessia stated that, while she was dressing Melissa in her snowsuit, Melissa accidentally hit her head on a coffee table. Wall and Kail claim Tessia further stated that Melissa was knocked unconscious during the incident.

Unlike the affidavits of Robin McElroy and Mistry Lovig relied on in the first motion for new trial, the affidavits of two of the new witnesses, Wall and Kail, refer to the trauma causing unconsciousness in Melissa. Defendant admits that, as asserted by the State, the affidavits and any statements Tessia may have made to the three women constitute hearsay statements. Defendant contends, however, that the hearsay statements were admissible for various reasons including compliance with Iowa rule of evidence 803(24). Defendant also contends that these affidavits impeach Tessia's trial testimony and statements to police investigators that Melissa fell off her "cookie monster" chair and suffered no significant trauma just prior to being transferred to defendant's care on January 22, 1993. ⁴

The State filed a resistance to defendant's second motion for new trial. In its resistance, the State contended that the affidavits and proposed testimony represented inadmissible hearsay, the evidence was merely cumulative or impeaching, and admission of the evidence probably would not change the result of the trial.

A hearing was held on defendant's motion before district court Judge Allan L. Goode. In contrast to Judge Peterson's ruling denying defendant's first motion for new trial, Judge Goode granted defendant's second motion for new trial. At the hearing on the second motion for new trial, the defendant called only one of her medical experts who testified at trial, Dr. Rose, to give an opinion concerning the significance of the newly-discovered evidence. Defendant also called a medical expert, Dr. Brian Blackbourne, who did not testify at defendant's trial, to give his opinion on the relevance and materiality of the new evidence. The court summarized defendant's experts' evaluation of the significance of the new witnesses' statements in relation to the cause of Melissa's death as follows:

In substance, both experts agree that Melissa's vulnerable neurological state on the morning of January 22nd [due to the alleged fall from the cookie monster chair or the alleged coffee table incident on January 22, 1993], coupled with the trauma described by the new witnesses, offers a reasonable medical explanation of the acute conditions that precipitated the respiratory arrest and ultimate death.

....

Dr. Blackbourne state[d] that the organizing subdural hematoma, sagittal sinus thrombosis and parietooccipital lobe necrosis would [have] increase[d] the severity of a subsequent injury from striking the head on a coffee table by increased bleeding and edema. He believe[d] that the recent injuries [were] consistent with a blunt trauma injury from the head striking a fixed object, causing a contra coup frontal contusion and producing the subarachnoid hemorrhage.

....

Defendant's experts testified that the contusion on the back of the head [left occiput] is consistent with and corroborates the episode of trauma described by the three affiants. The autopsy report describes the bruise as "a 1.5 X 1.0 cm raised blue contusion with ill-defined borders on the scalp of the left occiput."

(Emphasis added.) The court recognized, however, that Melissa's retinal bleeding identified at the autopsy could not be attributed to the alleged striking of her head on a coffee table while in the care of her mother:

... Dr. Blackbourne concedes that the [alleged] trauma doesn't explain everything that was observed at the autopsy, such as certain bleeding of the eyes. At the time of trial, the evidence indicated that the traumatic angle recision and anterior chamber hemorrhages, which are not usually associated with shaken baby syndrome, were the result of an unexplained direct trauma. Dr. Blackbourne acknowledges that the bilateral retinal hemorrhages are not well explained.

In its ruling, the court also summarized the testimony of the State's expert witnesses concerning the significance of the new evidence:

They all testified that the new evidence does not change their prior opinions [that defendant's actions caused the death of Melissa]. In their judgment, the blunt trauma would not explain some of the findings at autopsy, and they continue to disagree with the opinion of Dr. Rose regarding a rebleed of the subdural hemorrhage and the cause of death.

According to their testimony, the description that Melissa was acting normal when the defendant picked her up [from Tessia's house] is incompatible with a lethal head trauma. Although Dr. Smith agrees with the general proposition that a head trauma and unconsciousness can be followed by a period of lucidity, depending on the degree...