State v. Wyatt

• Decision Date: 12 December 1996
• Docket Number: No. 23260,23260
• Citation: 198 W.Va. 530,482 S.E.2d 147
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Julie WYATT, Defendant Below, Appellant.

Page 147

482 S.E.2d 147

198 W.Va. 530

STATE of West Virginia, Plaintiff Below, Appellee, v. Julie WYATT, Defendant Below, Appellant.

No. 23260.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 17, 1996.

Decided Dec. 12, 1996.

[198 W.Va. 533] Syllabus by the Court

1. A person acts knowingly with respect to a material element of an offense when: (1) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (2) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

2. West Virginia Code § 61-8D-2(b) is not impermissibly vague by reason of its incorporation of the definition of "custodian" from the provisions of W.Va.Code § 61-8D-1(4). However, in a prosecution under W.Va.Code § 61-8D-2(b), an accused is entitled to instructions defining the term knowingly, requiring that the defendant have knowledge that the charged failure of another to act is both malicious and intentional and that the accused had an awareness that by allowing another to engage in such malicious and intentional conduct, the child was being denied necessary food, clothing, shelter or medical care.

3. "To trigger application of the 'plain error doctrine', there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syllabus point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

4. " ' "Instructions in a criminal case which are confusing, misleading or incorrectly state the law should not be given." Syllabus Point 3, State v. Bolling, 162 W.Va. 103, 246 S.E.2d 631 (1978).' Syllabus Point 4, State v. Neary, W.Va. , 365 S.E.2d 395 (1987)." Syllabus point 9, State v. Murray, 180 W.Va. 41, 375 S.E.2d 405 (1988).

5. "It is reversible error to give an instruction which is misleading and misstates the law applicable to the facts." Syllabus point 4, State v. Travis, 139 W.Va. 363, 81 S.E.2d 678 (1954).

6. "The trial court must instruct the jury on all essential elements of the offenses charged, and the failure of the trial court to instruct the jury on the essential elements deprives the accused of his fundamental right to a fair trial, and constitutes reversible error." Syllabus, State v. Miller, 184 W.Va. 367, 400 S.E.2d 611 (1990).

7. " '... [I]t is usually not error for the trial court to comply with a request of the jury in the matter of re-reading to them instructions that they may wish to hear.' State v. Price, 114 W.Va. 736, 740, 174 S.E. 518, 520 (1934)." Syllabus point 3, State v. Pannell, 175 W.Va. 35, 330 S.E.2d 844 (1985).

James M. Cagle, E. Joseph Buffa, Jr., Charleston, for Appellant.

Kristen L. Keller, Chief Deputy Prosecuting Attorney, Beckley, for Appellee.

ALBRIGHT, Justice:

Appellant, Julie Wyatt, appeals ¹ her convictions of child abuse and child neglect with bodily injury, malicious assault, and murder of a child by failure to provide medical care. Appellant first challenges the constitutionality of W.Va.Code § 61-8D-2. In addition, along with various other alleged errors, she argues that jury instructions related to the charge of murder by failure to provide medical care were erroneous and confused the jury, that the court erred in refusing to permit expert testimony on "battered women's syndrome," and that the court erred in allowing the contents of a letter prepared by the state medical examiners office to be read to the jury in violation of the confrontation clause. Because we find that the jury instruction related to the charge of murder by failure to provide medical care was misleading and misstated the applicable law, we reverse the June 22, 1995 order of the Circuit Court of Raleigh County and remand for a new trial.

FACTS

Appellant Julie Wyatt, defendant below, lived with Kevin Browning and his two young sons, Derek, age two-and-one-half, and Derek's four-year-old brother. On the morning of February 4, 1994, Derek collapsed into a coma. He was taken to the hospital, where he died on February 8, 1994. Thereafter, Ms. Wyatt gave a statement to the police in which she explained that she was alone with the two children at the time of Derek's collapse. She stated further that on February 4, 1994, Derek behaved normally, until he suddenly collapsed.

Ms. Wyatt was subsequently indicted and tried for child abuse resulting in bodily injury, child neglect resulting in bodily injury, first degree murder of a child caused by failure or refusal to provide medical care, malicious assault, and first degree murder. She was tried on that indictment before a jury.

Evidence at trial indicated that Derek had been beaten over a period of days before his collapse. Ms. Wyatt alleged that Derek's father, Kevin Browning, inflicted those beatings. The evidence further indicated that Derek's body was covered with bruises, especially his feet, which were totally black. Derek also had a bald spot on the back of his head, which Ms. Wyatt explained was the result of Kevin Browning repetitively pushing Derek backwards, causing him to hit his head on the floor. Ms. Wyatt further alleged that she failed to seek help for Derek because her relationship with Kevin Browning, who was absent at the time of the child's collapse, had been violently abusive over a period of time. Ms. Wyatt testified that, at the time immediately prior to the child's collapse, she was afraid to seek medical attention for the child, and thus report the extensive abuse inflicted on the child by Kevin Browning, for fear he would return and further abuse her. However, upon the child's collapse, Ms. Wyatt immediately ran for help.

Kevin Browning, who had originally been charged with the same offenses, testified at the trial after pleading guilty to child abuse resulting in injury and child neglect resulting in injury and after the remaining charges against him of murder and malicious wounding had been dismissed. Despite his prior plea of guilty, Kevin Browning testified that he had never injured the child and had pleaded guilty only due to the advice of counsel and because he perceived that he had neglected to properly look after the children. ² He testified further that although he never personally witnessed any abuse, he believed Julie Wyatt, his live-in girl friend of several years, perpetrated the abuse. He stated that although he was aware that Ms. Wyatt was a strict disciplinarian, he did not realize that she had inflicted such injuries until he saw his son in the hospital. He explained that he did not previously observe the bruises on his son because Derek was always dressed in footed sleepers that covered his body. He explained further that he never bathed Derek or changed his diaper, and thus he never saw the child unclothed.

It was apparently undisputed that the child died of shaken baby syndrome. The State offered medical evidence that the injuries causing the child's collapse and subsequent death probably occurred near the time the child collapsed and was also related to a history of mistreatment on prior days. The defense countered with expert evidence tending to show that the collapse was caused by injuries occurring the previous evening.

In light of Ms. Wyatt's assertions that she feared for her safety by reason of her abusive relationship with Kevin Browning, the defense attempted to pursue a battered woman syndrome theory of defense. In support of this theory, defense counsel offered the testimony of an expert witness, a psychologist, Dr. Veronen. The State objected to the use of the theory and also objected to the expert's testimony on the grounds that it did not satisfy the criteria for scientific expert testimony. After in camera testimony by the expert, the trial court refused to allow her to testify regarding battered women's syndrome, but ruled that the expert would be permitted to testify regarding the appellant's mental state at the time of the alleged offense. Trial defense counsel ultimately declined to call the expert to testify before the jury.

At the conclusion of trial, Ms. Wyatt was found guilty on all but the last count, which charged the traditional elements of first degree murder. The jury also returned a recommendation of mercy with its verdict of guilty of first degree murder of a child caused by failure or refusal to provide medical care. By order dated June 22, 1995, the Circuit Court of Raleigh County sentenced Ms. Wyatt to three sentences of two-to-ten years each for the child abuse, child neglect, and malicious assault counts, and life with mercy for her conviction of first degree murder by failure to provide medical care, with all sentences to run concurrently. ³ It is from this order that Ms. Wyatt now appeals.

COUNT III

Appellant, who is represented here by counsel retained for appeal and not by counsel appointed for trial, assigns several errors. We begin by discussing those assignments directly related to Count III of the indictment. ⁴ Appellant contends here that Count III is based on an unconstitutionally vague statute, that the count was duplicitous, and that the trial court erred in instructing the jury on the elements of the crimes charged by Count III and in re-reading that instruction to the jury during its deliberations.

Constitutionality: Here appellant contends that W.Va.Code § 61-8D-2 (1988) ⁵ is unconstitutionally vague because it applies to a custodian, as defined by W.Va.Code § 61-8D-1(4), which reads as follows:

"Custodian" means a person over the age of fourteen years who has or shares actual physical possession or care and custody of a child on a full-time or temporary basis, regardless of whether such person has been granted custody of the child by any contract, agreement or legal proceeding. "Custodian" shall also include, but not be limited to, the spouse of a...