Warren v. State, BC-485

• Decision Date: 27 September 1985
• Docket Number: No. BC-485,BC-485
• Citation: 10 Fla. L. Weekly 2250,475 So.2d 1027
• Parties: 10 Fla. L. Weekly 2250 Beverly WARREN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1027

475 So.2d 1027

10 Fla. L. Weekly 2250

Beverly WARREN, Appellant, v. STATE of Florida, Appellee.

No. BC-485.

District Court of Appeal of Florida First District.

Sept. 27, 1985.

Michael E. Allen, Public Defender, and David A. Davis, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and John M. Koenig, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

Appellant was charged by indictment with one count of first degree murder and two counts of child abuse. She was convicted by a jury of the lesser included offense of aggravated battery, but was found guilty as charged of the child abuse counts. Appellant contends that the trial judge erred in denying her motions for judgment of acquittal on all counts. Appellant also contends that the trial judge reversibly erred in denying her pretrial motion to sever one of the child abuse counts from the remaining counts of the indictment. Finding that no reversible error has been shown, we affirm.

The indictment returned below charged that appellant and her husband, Paul Warren, caused the death of their four-month old daughter, Contessa, sometime between 12:00 midnight and 4:20 A.M. on the morning of October 24, 1983. The indictment also charged the Warrens with willfully, or with culpable negligence, denying Contessa necessary medical treatment the day Contessa was discovered dead, October 24, 1983, and with child abuse in allowing their son William to be severely bruised on his head on October 20, 1983. ¹ Prior to trial, appellant filed a motion to sever the child abuse offense relating to William from the trial on the other two counts relating to Contessa. This motion was denied. The trial judge did grant in part appellant's motion for judgment of acquittal as to the first degree murder count, based on the court's finding that insufficient evidence was presented at trial on the issue of premeditation. The homicide charge was submitted to the jury on a charge of second degree murder.

The testimony at trial disclosed that appellant found Contessa dead in her crib at approximately 4:20 A.M. the morning of October 24, 1983. An autopsy performed the same day by Dr. Peter Lipkovic revealed bruises of varying colors covering a large portion of the right side of Contessa's head. Dr. Lipkovic testified that Contessa died from a brain hemorrhage caused by an accumulation of blood between her dura membrane and brain, a condition known as subdural hematoma. Dr. Lipkovic opined that the cause of Contessa's subdural hematoma was the same as for the bruises along her face; that is, an open-handed blow of moderate force. Dr. Lipkovic further opined that the time of Contessa's death was somewhere between 12:00 midnight and 4:20 A.M. on October 24, 1983.

Expert testimony relating to William was provided by Dr. Mark Steinberg, who examined William on October 24, 1983, in conjunction with an investigation of alleged child abuse by the Warrens begun by the state attorney's office after Contessa was discovered dead. Dr. Steinberg found that William suffered from large bruises on his left cheek, two black eyes, a small hemorrhage of the white part of his left eye, and severe diaper rash, as well as older healing bruises on both elbows. Dr. Steinberg opined that William's facial bruises were three to five days old, and that they had been caused by an open-handed blow by an adult.

Appellant's theory of defense at trial was that the injuries of Contessa and William were caused by a third child, Anthony, who was two-and-one-half years old at the time of the incident in question, October 20, 1983. According to appellant, on that day she heard a loud noise in the younger children's bedroom while they were in her custodial care (no other adults were present at this time), appellant having previously placed Contessa and William on a bed supported by cinder blocks. Appellant testified that she discovered the bed knocked off its cinder block support, William lying sprawled on the floor and Anthony standing over Contessa with a toy truck in his hand. ² Appellant theorized that Anthony had pulled William from the bed, and had hit Contessa with the toy truck.

However, a number of witnesses testified below that they noticed no bruises on either child's face until two days after appellant discovered Anthony in the other children's bedroom. Linda Davis, a visitor to the Warren residence on October 20, testified that she observed no bruises on the faces of either William or Contessa on that date. This testimony was corroborated as to Contessa by Lila Williams, an employee of the Lafayette County Health Center who saw both appellant and Contessa at the health center on October 21. On the other hand, both Mr. and Mrs. James Warren, appellant's father and mother-in-law, testified that they noticed "minor bruises" on Contessa and William on October 22, 1983.

James Warren also testified that both children were "lively and playful" on Sunday, October 23, the evening prior to the date of Contessa's death. This testimony contrasted with the testimony of Dr. Lipkovic that, in his opinion, Contessa could not have suffered subdural hematoma on October 20 and continued to behave normally on the evening prior to her death. Dr. Lipkovic explained that the region of the brain where Contessa received her injuries has a high concentration of motor functions relating to the opposite side of the body. Accordingly, Dr. Lipkovic testified, he would have expected Contessa's injury on the right side of her skull to have impacted on her ability to control the left side of her body. Appellant's expert witness, Dr. Joseph Burton, agreed with Dr. Lipkovic that, based on the severity of the blow causing Contessa's injuries, visible changes in Contessa's left-side reactions should have been noticed within a few hours after Contessa received the fatal blow. Testifying with specific regard to appellant's theory that Anthony caused the injuries to the children for which appellant was charged, Dr. Lipkovic opined that he could exclude the toy truck as the source of Contessa's injuries, both because of the nature of the injuries as compared to the physical configuration of the truck and because a two-and-one-half year old child could not generate the force necessary to strike the open-handed blow that caused these injuries. ³ Likewise, Dr. Steinberg testified that, in his opinion, William could not have received his injuries from being pushed out of bed by Anthony but, rather, was injured by two separate, open-handed blows.

Appellant also presented testimony below from which she raises in this court the alternative theory that her husband, Paul, was the person who caused the injuries to Contessa and William. ⁴ She testified that on the evening prior to Contessa's death, October 23, the Warren family visited Mr. and Mrs. James Warren, leaving around midnight. Appellant testified that she placed Contessa and William in bed after the family arrived home at approximately 12:15 A.M., and proceeded to her bedroom across the hall, where her husband was already in bed asleep. Appellant admitted to being awakened around 3:00 A.M. that night, allegedly by a family cat crawling in through a kitchen window. Appellant denied hearing her husband rise anytime during the night, and also denied hearing any crying or other noise in the children's bedroom. Instead, appellant testified, she was awakened at 4:20 A.M. by a co-worker of her husband, who asked her to wake her husband up for work. Appellant testified that she went to the children's room to check them prior to awaking her husband, and found Contessa dead at this time. Appellant's husband did not testify at the trial below.

Appellant first contends on appeal that the circumstantial evidence adduced was insufficient to support her convictions for aggravated battery and child abuse of Contessa, or child abuse of William. She points out that where, as here, the...