State v. Worthen

• Decision Date: 23 August 1988
• Docket Number: No. 20328,20328
• Citation: 765 P.2d 839
• Parties: STATE of Utah, Plaintiff and Appellee, v. Scott G. WORTHEN, Defendant and Appellant.
• Court: Utah Supreme Court

Page 839

765 P.2d 839

STATE of Utah, Plaintiff and Appellee, v. Scott G. WORTHEN, Defendant and Appellant.

No. 20328.

Supreme Court of Utah.

Aug. 23, 1988.

David L. Wilkinson, Sandra L. Sjogren, Salt Lake City, for plaintiff and appellee.

D. Gilbert Athay, Salt Lake City, for defendant and appellant.

STEWART, Justice:

Scott G. Worthen was convicted by a jury of second degree murder for the death of his stepdaughter, three-year-old Heidi Pavich. On appeal, he asserts that the trial court erred in (1) unduly limiting the scope of voir dire examination; (2) not allowing him to call the prosecutor as a witness or to introduce into evidence a letter written by the prosecutor; (3) denying him due process of law because the prosecutor failed to disclose material exculpatory evidence; and (4) denying his motion for a new trial. He also asserts that the evidence was insufficient as a matter of law to support a finding of "depraved indifference" under the second degree murder statute.

I. THE FACTS

Kathleen and Mike Pavich were married in 1977 and had two daughters, Jodi and Heidi. Heidi was the younger daughter. When the Paviches divorced, Kathleen was awarded custody of the two children.

The defendant, Scott Worthen, met Kathleen in September, 1981. In December, 1981, he began living with her, and in September, 1982, they were married. During the month of April, 1982, six months before her death, when Heidi was twenty-six to twenty-eight months old, she began to suffer multiple bruises and injuries, and several different physicians treated her for those injuries. Frequently, Kathleen and Scott's explanation for Heidi's injuries was that she had fallen down stairs or out of bed. For example, in June, 1982, the explanation was that Heidi had an inner ear problem that caused her to lose her balance. Heidi's personality also changed during the last two to three months of her life. She no longer liked to feed herself and regressed from being toilet trained to incontinence. Her moods were very erratic. Sometimes she was playful like a normal child, but at other times she would lie down and stare, as if she were afraid to go to sleep.

On the weekend before Heidi's death, Mike Pavich picked up the girls for a weekend visitation. On Saturday and Sunday Heidi acted normally. On Monday morning, Heidi did not eat her cereal, but drank the milk from her cereal. (We refer to the times she ate on this day because of their relevance in light of the expert testimony in determining when the fatal injury was sustained.) When she arrived at the day-care center, she asked for a drink. Two day-care center employees testified that they did not see anything unusual about Heidi that day. She ate her lunch and seemed all right when she left at 3:30 p.m. While at home that afternoon, in Kathleen's custody, Heidi asked for and ate part of a cookie and went outside to play with her mother and sister. At 5:15 p.m., when the defendant arrived home, Heidi was fine, and Kathleen left the house to go to a spa. Heidi refused to eat after her mother returned home around 7:30 p.m.

Scott Worthen testified concerning his version of the events which occurred the evening of Heidi's death. Shortly after Kathleen left, Scott served Heidi a bowl of stew, but Heidi did not eat it. When Heidi informed Scott that she needed to go to the bathroom, he took her into the bathroom and told her to get on the toilet. She wandered out of the bathroom and into her bedroom, where defendant found her and picked her up. She then had a bowel movement that soiled his leg; she also began to look pale and vomited. Defendant left Heidi in the bathroom for the next forty-five minutes while he and Jodi ate dinner and worked on projects. Kathleen phoned ten or twelve minutes after she left for the spa, and Scott told her that he was trying to feed the girls and that Heidi had soiled his leg. Kathleen asked Scott if she should come home, and he replied that she should go to the spa and that he and Jodi would clean up.

Heidi looked ill when Scott retrieved her from the bathroom. He prepared her for bed and laid her down on the bed with towels to protect the bedding. He then stepped out on the porch to get some fresh air. Heidi threw up in her bed, rolled over in the vomit, and got it in her hair. The defendant tried to rinse the vomit off Heidi in the shower, but she resisted being held under the spray. While she was fighting, Scott pulled her into the spray, and because there was not enough water pressure to remove the vomit from Heidi's hair, Scott held her close to the shower head. Heidi's continued fighting caused her to slip out of his hands. When the defendant grabbed her, they both fell backwards, and he hit his head and she landed on his chest. After the shower, Worthen put her back in bed, but she vomited again prior to Kathleen's return. Worthen returned to her bedroom and found Heidi trying to crawl under her bed. She had spit up a little, and defendant cleaned her up.

When Kathleen returned from the spa, both Heidi and Scott were wet from the shower and Jodi and Scott were dressing Heidi. At that time, Scott informed Kathleen that Heidi would probably have red marks on her chest because he and Heidi had slipped in the shower and he had grabbed her really hard and "dug her." Kathleen then took over, and Scott and Jodi left for about forty-five minutes. Heidi told her mother that her "tummy" hurt and continued wretching. Although Kathleen gave Heidi coke syrup, her stomach did not settle down, and she continued wretching at approximately twenty to thirty-minute intervals for an uncertain period of time. Finally, Heidi fell asleep.

At about 3:30 a.m., Scott Worthen responded to Heidi's screams. He found her in the kitchen beside some spilled milk and told her to go back to bed while he cleaned up the milk. Before he went back to bed, he checked on Heidi. Finding that she was "ice cold," he prepared a bath for her. While Heidi was bathing, her tongue moved slowly in and out of her mouth, and her eyes rolled to one side of her head. Kathleen came to help, and Heidi became alert again. Worthen commented that he thought Heidi had the flu, which she had been experiencing on and off for the previous two weeks, and then he went back to bed leaving Heidi with Kathleen, who put her back to bed.

Worthen awoke again at 5:00 a.m. Before dressing for work, he went into Heidi's room. Heidi was facing the window, and he was immediately aware that she was not breathing. He attempted to resuscitate her while Kathleen phoned for help. Paramedics and police officers soon arrived and were unable to revive Heidi.

Roger Anderson, a deputy county sheriff, made a routine examination of Heidi's body. He testified that both rigor mortis and liver mortis were present in the body, although neither process was completed. Her body was covered with many bruises, her abdomen was distended and rigid, and there were about seventeen small abrasions on her chest. Dr. Monique Ryser, State Medical Examiner, conducted an autopsy and determined the cause of death to be multiple blunt injuries which resulted in a completely transected duodenum, causing severe peritonitis. The duodenum is behind the stomach and directly in front of the vertebral column. Dr. Ryser was uncertain whether the blow that had caused the injury had come from the front or the back. However, she testified:

To tear the organ the way the organ is torn [requires that the organ be] compressed against the backbone by a blow that comes either from the front to back, or back to front, and presses all the tissue together, so that the two structures are cut or torn over the sharp bone that is your vertebral spine.

The blow comes--well, whichever direction the blow comes from, what happens is all the tissue from the skin, the front of the belly, are literally pushed back so they almost come in contact with your backbone. What is in between is crushed or torn.

In her initial testimony, Dr. Ryser testified that the blunt force which caused the injury could be inflicted by a fist, a foot, a hand, a knee, an elbow, or some type of instrument, such as a piece of wood. On cross-examination, she stated that the injury could also have resulted from the child's being pushed into an object by a sibling. On rebuttal, she emphasized the severity of force necessary to inflict the injury, asserting that a fall from two stories onto a protruding blunt object would cause the same injury and stated she would expect to see an injury similar to Heidi's in an adult who was in an automobile collision if the car was traveling over fifty miles per hour.

Dr. Ryser testified that the injury which caused Heidi's transected duodenum occurred at most twenty-four to forty-eight hours prior to Heidi's death, but that the probable time of the injury was twelve hours or less before death. Dr. Ryser also stated that Heidi's injury was an unusual injury which she had never seen before. She indicated that a child who had a transected duodenum would not want to eat, but that if she did eat, she would vomit. She also stated that Heidi's death was a homicide.

In addition, Dr. Ryser testified that Heidi had suffered many other bruises and injuries that were in various states of healing. There were bruises near her eye, on her chin, just below her right nipple, on the left side of her chest, above and below her navel, above her left hip, on and above her left knee, on the inner portion of the back of her knee, on her right forearm, on the back of her left thigh and on her back and scapular area. An internal examination of Heidi's scalp revealed two bruises on the midline of her head, four overlapping bruises on her forehead, and five overlapping bruises in front of and above her ear. Heidi also had a fractured rib which was healing and was several weeks old. Based on the injuries that she found, Dr. Ryser concluded that Heidi was a battered child.

Dr. William Palmer...