State v. Widdison, 980297.

• Decision Date: 13 July 2001
• Docket Number: No. 980297.,980297.
• Citation: 28 P.3d 1278,2001 UT 60
• Parties: STATE of Utah, Plaintiff and Appellee, v. Bobbie Dawn WIDDISON, Defendant and Appellant.
• Court: Utah Supreme Court

28 P.3d 1278

2001 UT 60

STATE of Utah, Plaintiff and Appellee, v. Bobbie Dawn WIDDISON, Defendant and Appellant.

No. 980297.

Supreme Court of Utah.

July 13, 2001.

Mark L. Shurtleff, Att'y Gen., Laura B. Dupaix, Robert Parrish, Asst. Att'ys Gen., Salt Lake City, Dexter Anderson, Millard County, for plaintiff.

Ronald J. Yengich, Vanessa Ramos Smith, Randall T. Gaither, Salt Lake City, for defendant.

DURHAM, Justice:

¶ 1 A jury convicted defendant Bobbie Dawn Widdison of murder, a first degree felony under section 76-5-203(1) of the Utah Code, for the death of her nine-month old daughter. Widdison was also convicted of two counts of second degree felony child abuse under section 76-5-109(2)(a) of the Utah Code, and four counts of class A misdemeanor child abuse under section 76-5-109(3)(a) of the Utah Code. Widdison appeals her convictions, alleging numerous errors at trial. We affirm.

BACKGROUND¹

¶ 2 On February 22, 1996, at 12:26 a.m., nine-month-old Breanna Loveless, the daughter of defendant, was pronounced dead. Breanna died from the effects of multiple blunt trauma injuries, inflicted over a one-month period prior to her death.²

I. ABUSE OF BREANNA

¶ 3 Breanna was born May 22, 1995, in Delta, Utah. Defendant had moved to Delta in August 1994 with her first two daughters from a previous marriage, five-year-old J.W., and four-year-old C.W. Breanna's father was Rick Sanders ("Rick"), a man whom defendant met and dated for only three weeks shortly after moving to Delta. Defendant was unhappy to learn she was pregnant.

¶ 4 After Breanna was born, she lived in a small apartment with defendant, J.W., and C.W. In November 1995, Travis Widdison (Travis)³ began living with defendant and her daughters. Defendant had known Travis for years, and they soon became a couple. Neither defendant nor Travis worked but were home together most of the time.

¶ 5 Prior to January 1996, Breanna had been generally healthy, with the exception of recurring ear infections. Breanna regularly visited her father, Rick, and her paternal grandparents, Claude and Meridean Sanders (Mr. and Ms. Sanders), who often kept her overnight.

¶ 6 On January 12, 1996, Breanna went to visit her father and grandparents. Ms. Sanders and Rick became alarmed when they saw Breanna because her face was bruised and she had a bad sore under her nose. Fingertip-size bruises covered her forehead and both her cheeks, and the nose sore was so bad that Breanna could not drink from her bottle.

¶ 7 Ms. Sanders and Rick took Breanna to see Dr. Stephen Shamo, who prescribed ointment for Breanna's nose sore. Dr. Shamo was not particularly troubled by the bruises; however, Ms. Sanders contacted the Division of Child and Family Services (DCFS) before taking Breanna home. Soon after Ms. Sanders arrived at home with Breanna, defendant called and demanded to know if Ms. Sanders was responsible for a DCFS caseworker coming to her apartment. Ms. Sanders admitted that she had called DCFS because she was concerned about Breanna's bruises and nose sore. Defendant claimed the bruises were caused by Breanna lying on toys or her bottle. Defendant then told Ms. Sanders that she would never see her grandchild again and ordered her to bring Breanna home in fifteen minutes, or she would have Ms. Sanders arrested for kidnaping. Ms. Sanders immediately took Breanna home. This visit was the last time Rick saw his daughter alive.

¶ 8 On January 30, defendant took Breanna to see Dr. Shamo to have him check on Breanna's cold and look at several new bruises on the baby's body. Dr. Shamo noted that the bruises on Breanna included one on the right side of her forehead, a raised red mark on the back of her head, a lesion above her left ear, and three diagonal parallel red marks on her back. Defendant claimed that Breanna got the bruises by becoming trapped between her crib mattress and its railing.

¶ 9 On February 7 or 8, defendant called Ms. Sanders and offered to let her see Breanna again if Ms. Sanders would pay defendant's electric bill. The Sanders paid the $126 bill, gave defendant an additional $20, and on February 9, Ms. Sanders picked up Breanna for an overnight visit. This was the first time the Sanders had seen Breanna since January 12, and the Sanders were shocked at her appearance. Breanna was listless, had visibly lost weight, and had bruises all over her back, arms, and legs. Soon after Ms. Sanders noticed the bruises, defendant called to explain that Breanna's bruises had been caused by her being caught under the crib mattress. That night, Breanna did not play as she usually did, and she could not put her full weight on her legs.

¶ 10 On February 11, Breanna again came for an overnight visit with the Sanders. Before picking her up, Ms. Sanders called defendant to find out if Breanna was ready. While on the phone with defendant, Ms. Sanders heard Breanna crying loudly in the background. Defendant later claimed that Travis was washing Breanna's face, which caused her to cry. However, J.W., who was with defendant and Breanna at the time, later reported she saw defendant punch Breanna on the shoulder.

¶ 11 After Ms. Sanders took Breanna to her home, Breanna seemed very uncomfortable and whimpered a lot. Breanna was so miserable that Ms. Sanders did not change her into pajamas that night, but removed only her pants and left on her pullover shirt. When Ms. Sanders removed Breanna's shirt the next day, she saw that Breanna's shoulder was red and swollen. Ms. Sanders took Breanna home and told defendant that Breanna needed to go to the hospital to have her shoulder checked.

¶ 12 After some delay, defendant took Breanna to the hospital where Breanna was diagnosed with a broken collarbone. The attending nurse noted that Breanna's body was marked with multiple bruises in different stages of healing on several areas of her body. The hospital notified DCFS, and a caseworker arrived to investigate. Defendant claimed that Breanna must have broken her collarbone when she was stuck in her crib or while at her grandmother's house. The caseworker allowed Breanna to go home with defendant with the understanding that DCFS would monitor her home twice each day.⁴ This was the last day Ms. Sanders saw Breanna alive.

II. BREANNA'S DEATH

¶ 13 On February 21, defendant took her two older children grocery shopping in the afternoon, while Travis and Breanna stayed at the apartment. At the store, defendant became angry with her two children and loudly verbally abused them for twenty minutes in front of Shannell Jeffrey Bird, a cashier. Bird heard defendant yell at the children saying she "was going to be arrested in the store for child abuse because she was going to f* * *ing kill them."

¶ 14 That night, at the apartment, defendant and Travis gave Breanna medicine for her cold at about 9:30 or 10:00 p.m. Having put the children to bed, defendant and Travis left them alone and went next door to play video games. Defendant returned to the apartment sometime between 10:30 and 11:00 p.m. to check on Breanna. Shortly after midnight, Travis went back to check on the children and found that Breanna was not breathing. Travis immediately retrieved defendant from next door. Defendant called emergency services while Travis attempted to perform CPR.

¶ 15 Deputy Sheriff Brett Nielsen arrived at the apartment at approximately 12:20 a.m. on February 22. He immediately noted several bruises on Breanna's forehead and a red mark under her chin. He checked for a pulse, but found none. The baby's body was cold and hard, her chest rigid. Breanna was transported to the hospital where doctors determined, based on the state of rigor mortis and lividity patterns, that Breanna had been dead for approximately two hours before she arrived at the hospital.

¶ 16 Later that morning, at about 2:00 a.m., a DCFS caseworker arrived at defendant's apartment to take J.W. and C.W. into protective custody. Defendant became upset and said "she would kill herself if the other children were removed." She became hysterical, saying, "You think I f* * *ing beat my baby, then f* * *ing strangled her and I went to the bathroom and f* * *ing played with myself and had a f* * *ing orgasm." Defendant then threatened, "If you take my other kids, there will be another murder here." At that point, no one had suggested that Breanna had been murdered.

III. JURY SELECTION

¶ 17 Defendant and Travis were charged with Breanna's murder and with various counts of child abuse. Prior to trial, in November 1996, defendant filed a motion to change venue because several witnesses for the State were physicians known by many residents in the small community, and because of extensive pre-trial publicity, including several newspaper articles regarding the case. The trial court denied the motion, but provided that defendant could raise the issue again at trial.

¶ 18 Trial commenced on April 30, 1998. There were ninety-nine prospective jurors who each answered an extensive written questionnaire based on questions posed by both the prosecution and the defense. Although these written questionnaires were destroyed after the trial was finished, subsequent questioning of potential jurors during voir dire was conducted based on their answers to the written questionnaire. Defense counsel was given free rein in questioning jurors and was not limited in any way.

¶ 19 During jury selection, defendant moved three times to change venue based on allegations of gossip and wide discussion in the community about the case. The three motions were denied, with the trial court indicating that it would deal with the issue later if it could not impanel an impartial jury. ¶ 20 After interviewing sixty-seven potential jurors, the court qualified twenty-nine. Of those twenty-nine, defense counsel had challenged only three. None of the three jurors challenged by the defense ended up sitting on the jury. After seating a panel of eight jurors and two alternates, defendant...