US v. Vallo

• Decision Date: 23 January 2001
• Docket Number: 00-2078,Nos. 99-2328,s. 99-2328
• Citation: 238 F.3d 1242
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CLAUDINE ANN VALLO, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID EDWARD CHINO, Defendant - Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1242

238 F.3d 1242 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CLAUDINE ANN VALLO, Defendant - Appellant.

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID EDWARD CHINO, Defendant - Appellant.

Nos. 99-2328, 00-2078

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

January 23, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. No. CR-98-572-JP), (D.N.M.), (D.C. No. CR-98-572-JP, (D.N.M.)

[Copyrighted Material Omitted] Jonathan Gurston (Norman C. Bay, United States Attorney, and Jason Bowles, Assistant United States Attorney, on the briefs), Albuquerque, New Mexico, for Plaintiff - Appellee United States of America.

Jerry Daniel Herrera, Albuquerque, New Mexico, for Defendant - Appellant Claudine Ann Vallo.

Dawn T. (Penni) Adrian, Albuquerque, New Mexico, for Defendant - Appellant David Edward Chino.

Before BRORBY, EBEL, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Defendants-Appellants David Chino and Claudine Vallo were jointly tried and convicted of second-degree murder, 18 U.S.C. 2, 1111(a), 1153(a), of Zachary Vallo, age sixteen months. Mr. Chino also was convicted of multiple counts of assault on Zachary Vallo, 18 U.S.C. 113(a)(6), 1153(a). He was sentenced to 12 months with 1 year of supervised release on the assault counts and 210 months on the second-degree murder count with 3 years of supervised release, all terms concurrent. Ms. Vallo was sentenced to 240 months with 3 years of supervised release.

On appeal, both Mr. Chino and Ms. Vallo contend that the evidence was insufficient to convict them of second-degree murder. Ms. Vallo also argues that the second-degree murder count against her should have been dismissed based upon prosecutorial vindictiveness, and that she should have been granted a downward adjustment for acceptance of responsibility. We have jurisdiction pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742(a) and we affirm.

Background

In view of the challenges to the sufficiency of the evidence, we review the pertinent trial evidence in some detail. On July 25, 1998, Valerie Chino, David's mother, brought Zachary into the Acoma-Laguna-Canoncito Clinic. Zachary was not breathing, and "appeared to be having a seizure, posturing¹ and was limp, listless, unresponsive." Trial Tr. ("Tr.") at 110 (Dr. Scherf). Zachary also had contusions on his head, face, and chest. Id. at 112.

Zachary was immediately flown to the University of New Mexico Hospital ("UNM Hospital") in Albuquerque where he remained in critical condition. The doctors who cared for him there testified that he continued to posture, indicating deep, "ongoing evolution of brain injury." Id. at 513-14 (Dr. Katz). The doctors found that Zachary had subdural hematomas, internal bleeding on the brain, on both the sides and the back of his brain. Tr. at 311, 515-16. At trial, doctors testified that the extent of Zachary's injuries could not have been caused by the child falling from a stroller into some rocks, or falling off a wagon. E.g., id. at 516. Several doctors testified that Zachary had been the victim of child abuse based on the types of injuries he had received and the fact that the family had no explanation for the injuries. Tr. at 114-15, 317-18.

As a result of his injuries, Zachary died on July 27, 1998, two days after being brought to the hospital. The medical examiner performed an autopsy and concluded that Zachary had died of non-accidental head wounds and that the death was a homicide. Id. at 85-86. The autopsy confirmed that Zachary had subdural hemorrhaging on both sides and the back of his brain. Id. at 77. There was bleeding around the optic nerves of his eyes, specifically, "bleeding along the retina or the back portion of the eye where the retina had actually been torn away from the back of the eye . . . ." Id. (Dr. McFeeley). Zachary's brain also showed evidence of a prior brain injury, one that probably occurred several days before Zachary's death. Id. at 80. In addition, Zachary had thirteen bruises and abrasions on his head and neck, three on his chest and abdomen, seven on his arms, and seventeen on his legs. Id. at 74.

As to the timing of the fatal brain injury, the medical examiner concluded that the fatal injury had occurred "very shortly before the child was originally taken to the hospital," less than forty-eight hours before his death. Id. at 80-81. At trial, other expert medical testimony concurred with this conclusion. Id. at 520-21 (Dr. Katz), 534, 542-43 (Dr. Wilson). The medical examiner testified that the subdural hemorrhaging could not have been caused by a simple fall out of a stroller or wagon or from a "slight push off of a chair." Id. at 99-100 (Dr. McFeeley); see also id. at 62-63, 81-82. However, throwing a child to the ground with "substantial impact" or "a lot of force" could cause these types of injuries. Id. at 62-63. Subdural hemorrhaging is "almost invariably . . . due to trauma," such as "a shaking kind of an injury, an acceleration-deceleration that would tear those small [blood] vessels . . . , or an impact with something, or the combination of those." Id. at 81. The kind of force necessary to produce the type of retinal injury found in Zachary would be "a violent kind of . . . shaking." Id. at 91-92. At trial, another medical expert agreed with this conclusion, stating that Zachary died by "the infliction of violent trauma . . . in the form of some type of acceleration forces, a combination of shaking and blunt force trauma which scrambled his brain." Id. at 534 (Dr. Wilson).

At the time of his death and for the preceding several months, Zachary had been living with his mother, Claudine Vallo, and her boyfriend, David Chino, on the Acoma Pueblo in New Mexico. David Chino was not Zachary's natural father. Before his mother moved in with David Chino, Zachary had no medical history of seizures and his medical checkups reflected no bruises or other signs of abuse. Id. at 296, 303, 305-06 (Dr. Green). During the trial, Joseph and Irene Thompson, two of Claudine Vallo's other children, testified to witnessing incidents of David Chino hitting, shaking, and throwing Zachary into a wall. Tr. at 182-85, 442, 444-45. Claudine Vallo not only witnessed some of these incidents of abuse, but told her other children to ignore the sounds of the abuse. Id. at 183-85. During questioning by the FBI, David Chino admitted that he had trouble controlling his anger and that approximately two months before Zachary's death, he had dropped Zachary into his crib from a height of about two and a half feet in order to get Zachary to stop crying. Id. at 413.

Claudine Vallo testified at trial that in the late afternoon of July 25, 1998, the day Zachary was taken to the hospital, she was home with Zachary and had prepared something for him to eat. Id. at 666-67. Zachary was sitting next to his mother in a chair with no arms. When Zachary did not drink his milk, Ms. Vallo got angry and pushed him off the chair. Id. at 667-68. Zachary fell to the floor and hit the top of his head. Id. at 668, 670. Ms. Vallo picked him up and put him back in the chair, but Zachary still would not drink his milk. Again, Ms. Vallo became angry and pushed Zachary out of the chair. Id. at 669. He landed on the floor on the side of his head. Id. at 670. Zachary cried a little bit and Ms. Vallo picked him up, told him she was sorry, and put him in his crib. Id. A little while later, Ms. Vallo noticed that Zachary was having a series of seizures. Id. at 670-71. According to Ms. Vallo, David Chino arrived home a few minutes later. Id. at 671.

At trial, two witnesses testified that on July 25, 1998, David Chino left work around 4 p.m. "upset," "enraged," and "furious." Tr. at 163-64 (Leland Robert Vallo), 402 (Brian Todd Hamrick). In an interview with the FBI, Mr. Chino stated that on that same day, he arrived home from work around 6:15 p.m. and saw Zachary lying on the floor motionless. Mr. Chino picked Zachary up and shook him, but the child did not respond. Tr. 413-14. Mr. Chino took Zachary outside and directed someone to contact his mother, Valerie Chino, to take Zachary to the hospital.

Mr. Chino and Ms. Vallo did not accompany Zachary to the hospital on July 25 as they were worried about child abuse questions. Id. at 414-15, 672. They did make a short visit to Zachary on July 26, but left soon after the police arrived. Id. at 127-29, 140. After leaving the hospital, Mr. Chino and Ms. Vallo went to a friend's house and "kicked back" and "drank some beer." Id. at 457. Neither mentioned Zachary.

After Mr. Chino and Ms. Vallo were arrested, the government held two debriefing sessions with Ms. Vallo in an attempt to work out a plea in exchange for her testimony against Mr. Chino. At the time of the debriefings, Ms. Vallo was charged with assault resulting in serious bodily injury and accessory after the fact to second-degree murder. Based on subsequent medical information and the government's belief that Ms. Vallo had not been completely truthful during the debriefings, the government charged Ms. Vallo with second-degree murder. Before doing so, the government communicated to Ms. Vallo its concerns. Ms. Vallo decided she was no longer interested in a plea and asserted her right to a trial. Before the trial began, Ms. Vallo filed a motion to dismiss the homicide count due to prosecutorial vindictiveness. I R. (99-2328), Doc. 51. The district court held an evidentiary hearing on the motion and then denied it. I R. (99-2328), Doc. 73.

At the close of the government's case, both Mr. Chino and Ms. Vallo moved for judgments of acquittal on the second-degree murder counts, which the district court denied. Tr. at 565, 571. The motions were renewed at the conclusion of the evidence and renewed in writing following the trial pursuant to Fed. R. Crim. P. 29(c). I R. (00-2078), Doc. 126; I R. (99-2328), Doc. 128. Again, the court denied the motions. I R. (00-2...