Washington v. State

• Decision Date: 27 July 1999
• Docket Number: No. 97-4538.,97-4538.
• Citation: 737 So.2d 1208
• Parties: Terrance WASHINGTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

737 So.2d 1208

Terrance WASHINGTON, Appellant, v. STATE of Florida, Appellee.

No. 97-4538.

District Court of Appeal of Florida, First District.

July 27, 1999.

Nancy A. Daniels, Public Defender; Randolph P. Murrell, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.

BROWNING, J.

A jury found Terrance Washington guilty of the charged offenses of first-degree murder (Count One) and aggravated child abuse (Count Two). The criminal acts were inflicted upon a 11-month-old male victim, A.H., who sustained extensive internal and external injuries on December 4, 1996, and died the next day despite extraordinary medical efforts to save him. The trial court adjudicated Washington guilty and sentenced him to life, with no possibility of parole, in Count One, and to a concurrent sentence of 15 years in Count Two. As grounds for reversal, Washington contends 1) that the evidence was insufficient to prove first-degree murder, second-degree murder, or aggravated child abuse; 2) that the trial court erred by unduly limiting defense counsel's cross-examination of the victim's mother, Nafeesa Howard ("Howard"), who, along with Washington, was the only custodian of the victim during the period when the injuries could have occurred; 3) that the lower tribunal erred in excluding evidence of Howard's physical and verbal abuse of her baby, the victim, in the weeks preceding his death; and 4) that it was error to death-qualify the jury in a case in which the State improperly sought the death penalty. Concluding that the trial court reversibly erred by unreasonably restricting the cross-examination of Howard and by excluding evidence relevant to that key witness' motive and credibility, we reverse Washington's conviction and remand for a new trial.

Motion for Judgment of Acquittal

As his first point, Washington argues that because the evidence was insufficient to prove first-degree murder, second-degree murder, and aggravated child abuse, the trial court erred in denying his motion for judgment of acquittal. The Supreme Court of Florida has characterized, as follows, the posture of a case when a defendant moves for judgment of acquittal:

A defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Where there is room for a difference of opinion between reasonable men as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the Court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail and not primarily the views of the judge. The credibility and probative force of conflicting testimony should not be determined on a motion for judgment of acquittal.

Lynch v. State, 293 So.2d 44, 45 (Fla.1974).

Washington's own statements to the police, made in an interview on the day after the victim was taken to Tallahassee Memorial Hospital, indicated that 16-year-old Washington and 19-year-old Howard were the only two individuals who were with the victim and his 2-month-old brother during the period when the injuries were inflicted.¹ In essence, the trial became a contest over whether the victim sustained his injuries while in Washington's sole custody and care; if not, then Howard was the only other reasonably possible suspect.

The State's witness Karen L. Marsh, a detective with the Leon County Sheriff's Office, testified that Washington had given a taped statement on December 5, 1996, at the sheriffs office. Washington told Marsh that on the date of the injuries, he had taken A.H. to the playground around 9:40 or 10:00 A.M. and remained with the child there for 30-45 minutes. He helped A.H. climb to the top of the sliding board, and he rode down the slide with the child the first time. During the second effort, he helped A.H. halfway up the steps, and the child rode down by himself. On the third attempt, A.H. climbed the steps by himself and fell from the second or third rung as Washington waited to catch him in front of the slide. Washington said that after falling to the ground, A.H. had cried a little bit but did not seem to be seriously hurt. Washington picked him up and walked over to make a call on a pay telephone. When Washington and A.H. returned to Howard's apartment (where Washington stayed intermittently), Howard and the other infant were there. Washington immediately informed Howard that A.H. had fallen from a slide. Washington told authorities that he then wiped sand off A.H. and cleaned the child's ears with a cold, wet washrag. Subsequently, he gave A.H. a bottle and laid him down. A.H. slept for about 10 minutes while Washington and Howard watched a movie. When A.H. woke up, he was given some more milk and was put back to bed.

Washington reported that subsequently, he and Howard heard funny noises, and she went first into the bedroom and then called Washington to come there. A.H. appeared to be having some kind of seizure; he was vomiting through his mouth and nose. His feet and hands were turning in. Howard told Washington to get a fork, which he used to prevent A.H. from choking on his tongue. Washington and Howard decided to take the child to the hospital emergency room.

Marsh testified that Washington told her that Howard had not shaken A.H. in Washington's presence. Washington did not indicate to Marsh that Howard was alone with A.H. anytime during the period in question except when Howard went into the bedroom after hearing noises. Marsh never asked Washington how much time elapsed between his return from the playground and the discovery that the child was in physical distress.

Detective Curtis Parker testified that he had assisted Detective Marsh in the initial, pre-arrest taped interview of Washington and had helped Sergeant Mike Wood conduct a follow-up, post-arrest untaped interview. Parker indicated that Washington had heard and understood his Miranda² rights, which he agreed to waive. The substance of the second interview was fairly consistent with the first, and Washington gave no confession to killing the baby.

Testifying for the State, Howard said that in December 1996, she lived with A.H. and Terrance, Jr., at the Briarwood Manor Apartments. On December 4, the babies had slept in the bed while Washington slept on the sofa. On that morning, A.H. did not seem fussy, and he had no trouble walking around. Howard said that around 10:00 or 10:30 A.M., Washington told Howard that he was taking A.H. to the playground behind the apartment complex. When Washington returned with the child 15-20 minutes later, A.H. was awake in Washington's arms. The child's hand was on his ear, which was a sign that he was sleepy. Washington was acting perfectly normal and did not seem upset or angry. He told Howard that A.H. had fallen off a sliding board and had vomited. Howard testified that the baby was neither dirty nor sandy, and that neither she nor Washington had washed sand off the child.

Howard testified that A.H. had a hickey or scratch mark on his head but was not crying or complaining when he returned with Washington from the playground. Howard said that she had not undressed A.H. or checked on him. When Howard left the apartment to purchase Gatorade for A.H. and to get breakfast for Washington, she left the two babies alone with him. When Howard returned to the apartment 30-45 minutes later, she started to fix a bottle for A.H., but Washington said this was unnecessary because A.H. already had drunk it. Howard testified that before sitting down to watch a rented movie, she went to check on A.H. and discovered that he was breathing funny and was twisting his hands outwardly. As A.H. appeared to be sleeping uncomfortably, Howard put him back in place. After the child turned out his hands again, Howard picked him up on both sides and called his name. A.H. seemed to have no control over his limbs. Howard denied violently shaking A.H., slapping his face, punching or hitting him, or otherwise hurting him during that time. Howard said that upon observing the child's distress, she called Washington to the room and told him that something was wrong with A.H. She asked Washington to hold the child's tongue. Howard did not observe any bruises on A.H., who was wearing a shirt and Pampers. Howard testified that she did not see Washington shake, strike, or otherwise hurt A.H. on December 4, 1996.

At the hospital, Howard told Dr. Thomas Truman that she had taken A.H. to the playground, where he fell off a sliding board. Howard also told the physician that she had been the only person with A.H. since 5:00 A.M. Howard testified that she had lied to the doctor because Washington had a warrant for his arrest, and she did not want to see him go to jail. When she arrived at the emergency room, Howard did not think Washington had done anything wrong to the child, and she wanted to protect him. After the medical authorities told Howard that A.H.'s injuries were not consistent with a fall from a sliding board, she confronted Washington and asked what he had done to her baby. Washington reported that A.H. had fallen from the second step from the top of the slide.

The primary treating physician, Dr. Truman, a board-certified pediatric intensive-care physician, testified that he was asked by an emergency-room physician to assist in caring for A.H. shortly after the critically ill child's 12:30 P.M. check-in on December 4, 1996. Truman...