U.S. v. Gaskell, 90-5958

• Decision Date: 25 February 1993
• Docket Number: No. 90-5958,90-5958
• Citation: 985 F.2d 1056
• Parties: 37 Fed. R. Evid. Serv. 159 UNITED STATES of America, Plaintiff-Appellee, v. Robert GASKELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1056

985 F.2d 1056

37 Fed. R. Evid. Serv. 159

UNITED STATES of America, Plaintiff-Appellee, v. Robert GASKELL, Defendant-Appellant.

No. 90-5958.

United States Court of Appeals Eleventh Circuit.

Feb. 25, 1993.

Roberta Fine, Key West, FL, for defendant-appellant.

Harriett R. Galvin, Linda Collins Hertz, Carol Herman, Asst. U.S. Attys., Miami, FL, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and BIRCH, Circuit Judges, and CLARK, Senior Circuit Judge.

BIRCH, Circuit Judge:

The defendant, Robert Gaskell, was convicted of involuntary manslaughter of his infant daughter in violation of 18 U.S.C. § 1112. He appeals his conviction, arguing that a government witness was allowed to conduct an unscientific and prejudicial demonstration of "shaken baby syndrome," using a model of an infant. Gaskell also contends that the district court improperly excluded the testimony of a defense expert witness and erroneously instructed the jury on the required elements of proof for involuntary manslaughter. We REVERSE Gaskell's conviction.

I. BACKGROUND

Robert Gaskell was the father of Kristen Gaskell, who was born on July 7, 1989. Beginning in September, 1989, Kristen had a series of problems with her health, including fevers and vomiting. On at least four occasions prior to her death, Kristen was treated for recurring vomiting, either in an emergency room or after admission as a hospital patient.

On February 10, 1990, Kristen vomited again and was cleaned up by Gaskell and Kristen's mother, Diane Gaskell. Shortly thereafter, Diane left to go shopping, leaving Kristen in Gaskell's care. That day, at approximately 4:55 p.m., the Gaskells' neighbors, Janet and Scott Young, returned home from the circus. Both Janet and Scott were certified as emergency medical technicians. Scott testified that as they arrived home, Gaskell ran out of his open door yelling that Kristen was not breathing. Janet and Scott attempted to revive Kristen. Both testified that Kristen appeared pale, with the blue skin tint associated with a lack of oxygen. Both testified that there was vomit on the rug and in Kristen's mouth and nose, and that the odor of a baby's vomit was discernable around Kristen. Janet removed a small amount of white, milky fluid from Kristen's mouth using a turkey baster. Using procedures modified for infants, Janet and Scott performed cardiopulmonary resuscitation ("CPR") on Kristen. Shortly thereafter, emergency medical technicians arrived and continued the attempt to revive Kristen. Kristen was pronounced dead at approximately 6:01 p.m. on February 10th.

At trial, both the government and the defense presented expert medical testimony regarding the cause of Kristen's death. Dr. Robert John Nelms, the Medical Examiner for Monroe County, Florida, performed an autopsy on Kristen on the day following her death. Dr. Nelms testified that Kristen did not die of asphyxiation. He observed what he characterized as a "ligature" mark on Kristen's neck as well as signs of internal trauma indicating a head injury. He concluded that Kristen had died either as the result of strangulation or from being struck on the head with some object. Dr. Roger Mittleman of the Dade County Medical Examiner's Office also testified for the government. Dr. Mittleman disagreed with some of Dr. Nelms's conclusions. He testified that the "ligature" mark was merely a skin rash and that Kristen most likely had died of "shaken baby syndrome," a category of internal head trauma. Dr. Mittleman testified that forcefully shaking an infant can result in fatal injury because of the delicacy of an infant's brain and the inability of the undeveloped muscles in an infant's neck to restrain the movement of its head.

Over the objection of defense counsel, Dr. Mittleman was allowed to conduct a demonstration of shaken baby syndrome by manipulating a rubber infant mannequin used to practice infant CPR techniques. Dr. Mittleman forcefully shook the doll before the jury so that the head repeatedly swung back against the doll's back and then forward onto the doll's chest. He testified that the neck of the CPR doll was stiffer than an infant's and, thus, greater force was required to produce the head movement associated with shaken baby syndrome. Dr. Mittleman added that the degree of force required was "above and beyond what we consider child care. We are all taught to support the baby's head." R6-23.

Dr. Glenn Wagner, the Assistant Armed Forces Medical Examiner at the Armed Forces Institute of Pathology and a specialist in pediatric pathology, testified for the defense. Dr. Wagner concluded that Kristen did not asphyxiate as a result of vomiting, but had died of internal head trauma suggestive of shaken baby syndrome. He added that the injuries could have been inflicted if Gaskell had panicked, reached down into the playpen and quickly lifted Kristen by her arms. On cross-examination, he stated that Kristen's injuries would require forceful shaking, but that he could not determine whether the injuries resulted from a panicked attempt to revive Kristen or from deliberate child abuse. Dr. Bruce McIntosh, a pediatrician at St. Vincent Medical Center in Jacksonville, Florida, also testified for the defense. He concluded that Kristen had been shaken in a misguided attempt to revive her and that her injuries were consistent with shaken baby syndrome.

Gaskell was not allowed to present the testimony of Linda Certa, Director of the Community Services Board of Prince William County Virginia. Certa is the director of a national program designed to educate parents, caretakers, and hospital personnel about shaken baby syndrome. Gaskell's counsel represented that Certa would testify as to the lack of knowledge on the part of many parents regarding the dangers of shaking an infant. Further, counsel stated that Certa would testify that she was familiar with cases in which a parent attempted to resuscitate an infant by shaking and that this practice was at one time medically recommended. Gaskell also sought the introduction of a videotape used by Certa to inform parents about shaken baby syndrome. The trial court excluded Certa's testimony and the videotape on the ground that this evidence was cumulative of other testimony. Further, the court ruled that the testimony as proffered was irrelevant because it would involve other cases of shaken baby syndrome and would not be probative of Gaskell's mental state.

Gaskell testified in his defense. He stated that he had left Kristen alone for about five minutes while he was in the bathroom. When he returned, Kristen was not breathing and was covered in vomit. He testified that he had picked her up "real quick" and had shaken her in an attempt to resuscitate her. R7-151-52.

Following argument by counsel, the trial court instructed the jury on the elements of second-degree murder and the lesser, included offenses of voluntary and involuntary manslaughter. With regard to involuntary manslaughter, the court charged the jury regarding the elements of proof as follows:

Number one, again, that Ms. Gaskell, Kristen, was killed as a result of an act by the defendant.

Number two, that in the circumstances existing at that moment, at that time, the defendant's act either was by its nature dangerous to human life or was done with a reckless disregard for human life and, third, that the defendant either knew that that type of conduct, that reckless indifference, was a threat to the lives of others or knew of circumstances that would reasonably cause the defendant to foresee that that type of conduct that he did might be a threat to the life of the child.

R8-184 (emphasis added).

After commencing deliberations, the jury sent a note to the court with the following question: "Can you reword the third condition for involuntary manslaughter? It seems confusing." R2-78. The court provided a revised instruction regarding the third element: "The Defendant either knew or should have foreseen that such conduct was a threat to the lives of others." Id.

The jury acquitted Gaskell of second-degree murder and voluntary manslaughter, but found him guilty of involuntary manslaughter. Gaskell appeals his conviction.

II. EVIDENTIARY RULINGS

A. The Demonstration by Dr. Mittleman

Gaskell argues that Dr. Mittleman's demonstration of shaken baby syndrome using a rubber infant mannequin was irrelevant and unfairly prejudicial. "As a general rule, the district court has wide discretion to admit evidence of experiments conducted under substantially similar conditions." Barnes v. General Motors Corp., 547 F.2d 275, 277 (5th Cir.1977). The burden is on the party offering a courtroom demonstration or experiment to lay a proper foundation establishing a similarity of circumstances and conditions. Id. Although the conditions of the demonstration need not be identical to the event at issue, "they must be so nearly the same in substantial particulars as to afford a fair comparison in respect to the particular issue to which the test is directed." Id. (quoting Illinois Central Gulf R.R. Co. v. Ishee, Mississippi, 317 So.2d 923, 926 (Miss.1975)). ¹ Further, experimental or demonstrative evidence, like any evidence offered at trial, should be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed.R.Evid. 403.

In the presence of the jury, the government proposed that Dr. Mittleman should use the doll "to demonstrate the amount of force which would be necessary to cause [Kristen's] injuries[.]" R6-24. Moreover, the demonstration was conducted during a segment of Dr. Mittleman's testimony concerning the degree of force required to produce the fatal injuries. The conditions of the demonstration, offered for this purpose, were not sufficiently similar to the alleged actions of the defendant to allow a fair...