Court of Criminal Appeals of Tennessee, Nashville
Session June 17, 2014
Appeal from the Circuit Court for Coffee County No. 37, 894F L. Craig Johnson, Judge
Roger J. Bean (at trial and on appeal) and Bradley Eldridge-Smith (on appeal), Tullahoma, Tennessee, for the appellant, Thomas Fancher Greenwood.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Charles Michael Layne, District Attorney General; and Marla R. Holloway and Jason Michael Ponder, Assistant District Attorneys General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which Norma McGee Ogle, J., and Larry J. Wallace, Sp. J., joined.
ROGER A PAGE, JUDGE
I. Procedural History
In a four-count indictment, appellant was charged with felony murder during the perpetration of aggravated child abuse, felony murder during the perpetration of aggravated child neglect, aggravated child abuse, and aggravated child neglect for the March 9, 2010 events culminating in the death of the victim, the two-year-old child of appellant's then-girlfriend, R.K. Following a jury trial, appellant was found guilty of reckless homicide as a lesser-included offense of felony murder during the perpetration of aggravated child abuse, felony murder during the perpetration of aggravated child neglect, aggravated child abuse, and aggravated child neglect. The jury imposed a sentence of life in prison for the felony murder conviction. After a sentencing hearing on the remaining convictions, the court imposed two twenty-year sentences for aggravated child abuse and aggravated child neglect, resulting in an effective sentence of life in prison.
The State called the victim's mother, R.K., as its first witness. R.K. testified that at the time of the trial, she resided with her parents in Coffee County so that she could attend college. In March 2010, she lived on Circle Drive in Tullahoma. She explained that the victim was born two months premature and that he was hospitalized for almost a month before being released. When the victim was three months old, he became sick, and R.K. took him to the hospital. He required breathing treatments every time he was sick because the congestion would be severe. The victim also had asthma.
R.K. elaborated that when the victim was a baby, his asthma would intensify if he had a cold with congestion. She had to administer breathing treatments to diminish the congestion and clear his lungs. As the victim grew older, he became ill less frequently and, accordingly, experienced fewer asthma attacks. R.K. explained that the victim was sick mostly during the winter months. He did not experience asthma attacks when running, like many children did; rather, his attacks were brought on by illness and congestion in his lungs.
R.K. stated that between Christmas 2009 and March 9, 2010, the victim's breathing was "really good, " and he had not experienced any asthma attacks. She further explained that the improvement in the victim's asthma coincided with her moving from an apartment into the Circle Drive residence because the apartment below her had been infested with mold. She said that when she moved from her former residence, the victim's asthma "all of a sudden stopped."
R.K. recalled that the victim was "always playing, running around" outside. He played ball with R.K.'s nieces and nephews. His activity was never limited by his asthma.
R.K. testified that she met appellant in high school. He played baseball, and she was on the softball team. She graduated from Tullahoma High School in 2005. After graduating, she had no further contact with appellant until they met again during a chance encounter approximately one month before the victim's death. R.K. said that she trusted appellant and had no reason not to do so. Appellant began staying with R.K. approximately nine days before the victim's death. His stay was temporary in nature because he was waiting to rent a house with a friend and the process was going to take around two weeks.
R.K. related that appellant had epilepsy. She witnessed a "little" seizure before he moved into her house. She described that he was lying on the sofa, and he "twitched" and his telephone fell from his hand. The episode was over in two to three seconds, and appellant displayed no lasting effects. When appellant moved into R.K.'s house, he brought his anti-seizure medication with him and took it each morning.
R.K. stated that on March 9, 2010, her sister Jennifer was involved in a custody hearing, and R.K. had been subpoenaed to testify. Appellant said that he would "be happy to" watch the victim. R.K. was scheduled to be the first witness and thought her testimony would move quickly. The victim typically went to bed around 10:00 to 10:30 each night and awoke at 10:00 to 10:30 each morning, so R.K. expected appellant to have to watch the victim for about thirty "waking" minutes. Before R.K. left for the courthouse that day, she checked the victim's breathing out of habit and left her house around 7:30 a.m. She and her family arrived at the courthouse at 8:30 a.m.
During the 10:00 hour, R.K. walked to her car and retrieved her telephone. She texted appellant to check on the victim, and appellant reported that he was fine. R.K. learned that the witness order had been changed and that she would be the last witness called. Shortly thereafter, appellant sent R.K. a text reporting that the victim had bitten him. R.K. tried repeatedly to call appellant, but he did not answer his telephone. Finally, after R.K. admonished him via text message to answer his telephone because he was caring for her child, he returned the call. Appellant then reported that the victim had ingested some children's Motrin. R.K. instructed him to watch the victim and to call 9-1-1 if he began acting strangely. Appellant subsequently told R.K. that he had suffered a seizure while holding the victim and that he had dropped him, bumping the victim's head in the process. She again instructed appellant to call 9-1-1 if the victim exhibited unusual behavior. She asked appellant if the victim was stumbling, and he responded that the victim was fine and was playing in his room.
Meanwhile, the court adjourned for lunch. R.K. testified that when they returned to court, she called appellant to speak with the victim, but appellant advised that the victim was sleeping. R.K. was initially worried about the victim's sleeping after suffering a bump on the head, but she reasoned that a couple of hours had passed and relaxed. Appellant said they had been playing outside. R.K. instructed appellant to check the victim's breathing and not to let him sleep for too long.
R.K. recounted that she was on the witness stand when appellant tried to call her again. She called back when she was finished, and appellant explained that the victim had experienced an asthma attack and was in an ambulance. Appellant handed the telephone to a paramedic, who advised that they were proceeding to the hospital because the victim had suffered an asthma attack.
R.K. arrived at the emergency room, and appellant met her as she was walking in. He stated, "'I hope they do not get me for child neglect.'" She had to wait before being escorted into a small room in the treatment area, where she was informed that the victim presented with multiple bruises. She turned to appellant and began yelling at him and asking what he had done to the victim. She heard someone say that the victim had passed away, and she "lost it." Emergency room personnel took her to see the victim. At trial, she reviewed pictures and confirmed that when she left home that morning, the victim had none of the injuries depicted therein except for a small pink mark on his head where he had bumped it and the scab had already come off.
On cross-examination, R.K. stated that the victim was always excited to see appellant and that she had told an officer that she had never seen appellant harm the victim. She acknowledged that at 1:02 p.m., appellant sent her a text when she was in court stating that the victim was "grinding his teeth, making his mouth bleed, " but she never received the text; she learned of the text at a later time. She also did not receive the 1:46 p.m. text stating that the victim was "just dead to the world." Appellant recorded a video of the victim at 12:17 p.m. that clearly showed the victim was in distress, but he had no marks on him at that time. R.K. was later shown the video by a detective; she did not receive it from appellant. R.K. confirmed that she had taken the victim to the doctor seventeen times in 2008, twelve times in 2009, and six times after moving from her apartment into her house.
On re-direct examination, R.K. reviewed her cellular telephone records and explained that she attempted to call appellant fifty-nine seconds before he sent the "dead to the world" text and that he called her ten seconds after he sent it. They had a conversation of more than five minutes in length, but appellant never mentioned the victim's being in distress or having any injuries.
The State's next witness was John Talley, a dispatcher for the Coffee County 9-1-1 service. Through him, a recording of the 9-1-1 call was entered.
Derrick Watson, a Coffee County Emergency Medical Services ("EMS") paramedic, testified next. He responded to the 9-1-1 call at Circle Drive. Appellant met him at the door holding the victim, whom Mr. Watson described as "limp, pulseless, and apneic, which means not breathing." Mr. Watson asked appellant about any medical issues, and appellant advised that the victim had asthma. Mr. Watson carried the victim to the ambulance and removed his clothing to assess his injuries. His partner, Patrick Robinson, began CPR and ventilating the victim with 100% oxygen. The fire department then arrrived, and personnel entered the ambulance and took over two-finger CPR while Mr. Watson retrieved the "advanced airway kit" and prepared to intubate the victim. Mr. Watson secured the victim's airway and connected him to a cardiac monitor, which showed no signs of life. The victim had no blood pressure, no pulse, and no respirations. Mr. Watson inserted an intraosseous needle into the bone of the victim's leg to administer fluids and epinephrine to no avail. They transported the victim to the hospital while continuing resuscitative efforts. Upon arrival, they placed the victim in a hospital bed.
Mr. Watson described the injuries he observed on the victim's body as follows: bruising around the neck; bruising or a contusion above an eye; bruising in the abdominal area; and bruising along the spinal column. He confirmed that during the life-saving efforts, nothing was inserted into the victim's nose. He noted blood in the victim's airway when he intubated the victim. He clarified, "The call came out as an asthma attack, but it was cardiac arrest." Police arrived at the scene shortly after EMS. Mr. Robinson had called them because he "suspected some type of abuse." Mr. Watson said that "typically, " he would not tell a parent over the telephone that their child was in cardiac arrest and that he had never done so.
On cross-examination, Mr. Watson admitted that he had not been informed that the 9-1-1 operator had instructed appellant to reach into the victim's mouth and attempt to remove phlegm. He acknowledged that he observed blood-tinged phlegm in the airway.
On re-direct examination, Mr. Watson denied that any of the resuscitative efforts caused injury to the victim. He was "100% positive" about that fact. He further explained that when he first began treating the victim, his core was warm, but his extremities "were cool to the touch."
Mr. Watson explained, on recross-examination, that he heard "breath sounds over the appropriate lung fields" while Mr. Robinson was ventilating the victim but that the victim never breathed on his own.
The State called Officer Matthew Walker with the Tullahoma Police Department as its next witness. He testified that as a matter of protocol, he responded to a "call of CPR in progress" for a child having difficulty breathing. When he arrived, appellant told him that he had suffered a seizure and dropped the victim, causing the victim to strike his head on a bed rail. According to appellant, "a few moments later, " the victim had trouble breathing so he "hooked" him to an asthma machine. The treatment was not successful, so appellant dialed 9-1-1. The operator instructed him to perform CPR. Officer Walker said that appellant was "very calm."
After the ambulance left, Officer Walker drove to the hospital and was told that the victim had passed away. Appellant traveled to the hospital with a family member. When Officer Walker saw appellant outside the hospital, he asked appellant to come inside so someone could speak with him. Officer Walker also saw the victim with "multiple marks all about his body." He then notified investigators.
The State's next witness was Amy Vickers, a registered nurse at Harton Regional Medical Center's emergency room. She was the "recorder" for the victim's case, which meant that she made entries and signed the records. She was present when the EMS call came in and when the ambulance arrived at 3:06 p.m. She observed that the victim had multiple bruises and was unresponsive. The victim's treatment team consisted of Ms. Vickers, three other nurses, Dr. Clifford Seyler, and another doctor. The victim presented with no signs of responding to emergency treatments. Dr. Seyler pronounced the victim dead at 3:17 p.m. The victim's mother arrived and was escorted to a small private room in the treatment area. Ms. Vickers and Dr. Haley entered the room and delivered the news to R.K. R.K. began screaming, "'What did you do to my baby?'" Appellant did not answer. R.K. continued screaming and crying, "'Why did you hurt my baby?'" Dr. Haley asked what had happened. Appellant said that the victim had ingested children's Motrin in an unknown amount and that he texted R.K., who instructed him to watch the victim carefully. He reported that they went outside to play and that when they came back inside, he was carrying the victim when he experienced a grand mal seizure, which caused him to drop the victim and fall on top of him. Appellant stated that when he awakened, he took his anti-seizure medication, Depakote. He reported that the victim was crying, which brought about an asthma attack. He utilized the nebulizer, and the victim coughed up phlegm then gasped for air. Appellant then called 9-1-1 and was instructed to stick his finger in the victim's mouth to remove the phlegm. He stated that he then began CPR.
Ms. Vickers described appellant's demeanor as he relayed the events as "flat and nonemotional, no change in his voice, just very matter of fact." She said that his affect continued in this manner even when R.K. was screaming. She recalled appellant's saying to R.K., "'I'm sorry. I didn't do nothing [sic] wrong.'" R.K. was sobbing and fell from her chair to the floor, crying, "'My baby, my baby.'"
R.K. wished to see the victim, so Dr. Haley left the room to check on the victim's status. Ms. Vickers testified that she sat on the floor with R.K. and that R.K. rested her head on Ms. Vickers's shoulder and continued to cry until Dr. Haley returned. They all then walked down the hall to view the victim. As they neared the room, R.K. said that she did not want appellant to be there. When they entered the treatment room, R.K. began screaming and saying that she wanted to die. She cried, "'What happened to my baby? Please bring my baby back. What happened to him? Where did all these bruises come from?'" Dr. Seyler asked R.K. if she had any information about the bruises on the victim. She responded that he did not have any previously except for a small pink mark on his face from a scratch that was healing. R.K. touched the victim's face and told him she loved him. At trial, Ms. Vickers identified photographs of the victim depicting the various injuries on his body, including scratches about his face, bruising around his right eye, an abrasion on his chin, abrasions and scratches on the back of his neck, and bruising around his neck.
The State's next witness was Investigator Tyrone Brazier, a detective with the Tullahoma Police Department. He and his partner, Investigator Dale Stone, were en route to Harton Hospital on March 9, 2010, on an unrelated matter when they received a call to investigate an incident there involving an injured child. When they arrived, Officer Walker briefed them on the circumstances of the case. Detective Brazier walked into the emergency room waiting area and saw appellant, whom he knew. He told appellant why they were present and asked him to accompany them outside to talk. Appellant said that "'things weren't looking too good for him right then.'"
Appellant accompanied them to the police department, where Detective Stone conducted an interview with appellant, and Detective Brazier participated from time to time. Detective Brazier later visited R.K.'s Circle Drive residence where he videotaped and photographed areas of the house, including pills scattered on the floor and the nebulizer, and collected evidence, including Blackberry cellular telephones and some of appellant's clothing.
Tullahoma Police Department Detective Dale Stone was the State's next witness. Detective Stone elaborated that when they spoke with appellant outside of Harton Hospital, he indicated that he had suffered a seizure and dropped the victim. Detective Stone asked if appellant would agree to continue the interview at the police department because several people had walked by and were upset and he believed they needed to speak more privately. Appellant accompanied them voluntarily and rode in the front seat of Detective Brazier's vehicle. At the police department, Detective Stone read appellant his rights.
Detective Stone recalled appellant's version of the day's events as follows: Appellant reported that R.K. left the house at 9:30 a.m. He awoke at 10:00 a.m. and woke up the victim. He took a shower and gave the victim a bath. Around noon, they went outside to play. The victim was playing and kicking a football when he began to cough. They went inside. Thirty to forty-five minutes later, around 1:00 p.m., the victim began to cough more, and appellant administered a breathing treatment with the nebulizer. The victim turned "light blue, " so appellant called 9-1-1. He used a suction instrument to remove mucus from the victim's nose and throat. The victim stopped breathing, so appellant called 9-1-1 again, and the ambulance arrived shortly thereafter. Detective Stone asked appellant if that was everything, and appellant said that it was.
Because appellant's initial recitation of the events did not include his having a seizure, Detective Stone asked appellant to elaborate on that point. Appellant added that approximately fifteen minutes before he administered the breathing treatment to the victim, he experienced a seizure while holding the victim and that when he fell, the victim struck his head on the side of the bed rail. When appellant regained consciousness, the victim was beside the bed crying, and appellant noticed that the victim had a "busted" lip, so he used a pants leg to wipe off the blood. He also applied a cold compress to a cut on the back of the victim's head. He reported that the victim said, "'Cold, cold, '" when he did so. Appellant told Detective Stone that at 12:17 p.m., he recorded a video of the victim after the fall because he believed that he "wasn't acting right" and wanted to show it to R.K. He showed the video to Detective Stone and gave him permission to make a copy of it. Detective Stone said that the video showed that the victim was in distress but that he had no visible injuries at that time. Detective Stone said that appellant reported that he had failed to take his Depakote that morning and that he had experienced seizures since he was ten or eleven years old.
At that point in the interview, they took a break, and Detective Jason Kennedy entered the room to ask further questions. He had taken photographs of the victim and asked appellant about each one. Appellant gave the following explanations for the listed injuries: laceration on the back of the head, from the fall; busted lip, from the fall; bruises on his back (one large and several small), one small one from the fall and others "could have been" from playing outside when appellant "swung [the victim] around"; cut under chin, fell outside on the deck; and fingerprints on his neck, appellant's grip when he had the seizure. Appellant also explained that the victim had bitten him earlier, so appellant bit him back on the leg and the arm to "teach him a lesson" and then spanked him.
On cross-examination, Detective Stone acknowledged that it seemed that appellant was incorrect about the time line of the day's events. He also confirmed that questioning of appellant was an interview, not an interrogation, and that appellant was not in custody and could have left.
On redirect examination, Detective Stone recalled that appellant attributed the victim's black eye to an injury on a prior occasion. Appellant offered no explanation for the injuries that were obviously sustained after the 12:17 p.m. video that was allegedly recorded after the fall. On recross-examination, he confirmed that appellant's first call to 9-1-1 was placed at 2:32 p.m.
The State called Investigator Jason Kennedy with the Tullahoma Police Department as its next witness. He was working a different case at the hospital on March 9, 2010, when he was directed to investigate the instant case. He arrived in the emergency room area between 3:00 and 3:30 p.m. and was met by Detective Stone. Detective Stone advised that a child had died under suspicious circumstances and asked Detective Kennedy to take pictures and gather more information.
When Detective Kennedy saw the victim, he observed several bruises on his face, his chest, his back, his lower back, and his pelvic region. With the assistance of Dr. Seyler, Detective Kennedy moved the victim about to take pictures. When Detective Kennedy spoke with R.K., she was very upset. She pointed out a mark on the victim's nose and one on his forehead that had been there before the day in question, but with regard to the remaining injuries, "[s]he just said, in tears, 'These weren't here. I don't know what happened.'"
Detective Kennedy testified that following his interview with R.K. and his taking photographs of the victim, he drove to the police department and spoke with other detectives. He also viewed the video that appellant had recorded. He then entered the interview room to ask appellant some questions. Appellant reported that he had experienced a seizure. When asked about all of the other injuries on the victim, he replied, "'He's a crash kid. He runs into things.'" At that time, Detective Kennedy left the room and printed off four pictures: one of the bruising around the victim's neck; one of the back of the victim's head where a "knot" had formed; one of the victim's back depicting several bruises; and one of the victim's face. Appellant explained the bruises on the victim's back by saying, "'Well, that is probably from where I was outside earlier playing with [the victim], lifting him up in the air, twisting him around.'" With regard to the bruises on the victim's neck, appellant replied, "'Well, duh. Them [sic] are my fingerprints because when you have a seizure, you grip.'" Appellant said that the picture of the back of the victim's head reflected the injury he sustained when he struck his head on the bed rail during appellant's seizure.
Detective Kennedy recalled appellant's explanation of the time line, which was consistent with Detective Stone's testimony. He explained that in the video, the victim had no apparent injuries on his body. When questioning appellant about that fact, he responded, "'That's the way it happened.'" Detective Kennedy asked appellant why over two hours had elapsed between the video recording and his 9-1-1 call, but appellant "really couldn't give a good explanation." Appellant was not able to explain any injury that the victim sustained following the recording of the video. Detective Kennedy seized appellant's telephone as evidence and released him that evening. Detective Kennedy stated, "[M]y suspicion was that there was something more that happened, but I could not be sure until we had the autopsy performed the next morning."
Accordingly, Detective Kennedy attended the victim's autopsy the following morning. As a result of the findings, Detective Kennedy "obtained more probable cause to obtain an arrest warrant" for appellant. He called in the information to his supervisor, and other officers effected appellant's arrest. When Detective Kennedy arrived at the police department, he repeated appellant's rights to him and advised him about the charges being brought against him. Upon questioning, appellant said, "'I have already told you. I don't want to confuse things or mix things up.'"
Detective Kennedy testified that as part of his investigation, he searched R.K.'s home on Circle Drive. He provided a copy of a layout he had prepared along with photographs of the residence that he had taken. He also seized the following pieces of evidence: a "cut-off" pair of pants from the bedroom where the alleged fall occurred; three towels with "reddish-brown stains" found near the bed; a pair of brown "cut-off" pants from R.K.'s bedroom; a pair of pants and a shirt belonging to the victim that had reddish-brown stains; a green towel found in the living room; a clothing tag with a reddish-brown stain and a fingerprint in the stain; a pair of the victim's boots found on the kitchen table; and a cutting of fabric from a kitchen chair that had a reddish-brown stain. Detective Kennedy took a buccal swab from appellant and submitted it for analysis along with the physical evidence.
The State introduced the cellular telephones of appellant and R.K. through Detective Kennedy. He identified the clothing worn by appellant on March 9 and March 10 that was also taken into evidence. Finally, through Detective Kennedy, the State introduced the left side of the bed frame upon which the victim allegedly struck his head.
Detective Kennedy further testified that he was present during the entire autopsy of the victim, including the time that the medical examiner took photographs. He identified external photographs of the victim taken during the autopsy, described the injuries that he observed, and relayed appellant's explanation for each injury. During Detective Kennedy's testimony, the State played the video that appellant recorded of the victim. Detective Kennedy confirmed that appellant was never able to provide an explanation for why there were no visible injuries on the victim at that time.
The State called Tennessee Bureau of Investigation ("TBI") Special Agent Forensic Scientist David Hoover as its next witness, and he was accepted by the court as an expert in the field of latent print analysis. Agent Hoover testified that he received some clothing tags and two trophies to analyze and compare with the known fingerprints of appellant. He positively matched appellant's left palm print to a latent print on one of the clothing tags.
The State's next witness was TBI Special Agent Forensic Scientist Chad Johnson, who testified as an expert in the field of forensic serology. As part of his analysis, Agent Johnson received a blood standard from the victim and a buccal swab from appellant. He identified the victim's blood on a pants leg, a Winnie the Pooh towel, a shirt and pair of pants of the victim, a purple towel, a cutting from a dining room chair, one of appellant's t-shirts, and a clothing tag that had appellant's palm print on it. He also identified appellant's blood on a green towel. Agent Johnson's analysis of the bed rail failed to reveal the presence of blood.
TBI Special Agent Criminal Investigator Joel Wade, an expert in computer forensics, testified next. He analyzed two Blackberry Storm cellular telephones that belonged to appellant and R.K. and prepared a report isolating both telephones' activity on March 9, 2010. Agent Wade noted that appellant's telephone contained a video of the victim that was last played on March 9, 2010, at 6:18:26 p.m.
On cross-examination, Agent Wade acknowledged that due to the "volatile" nature of the memory in cellular telephones, there was the possibility that some text messages or telephone calls may have been missing from his report. He testified that upon further analysis, he could positively state that the video of the victim was recorded at 12:17:22 p.m.
The State's next witness was Dr. Clifford Seyler, a pediatrician of thirty-eight years, who was accepted by the trial court as an expert in the field of pediatrics. He was present at Harton Hospital on March 9, 2010, and responded to the pediatric code involving the victim in this case. He arrived at the examining room about the same time as the victim, and he encountered EMS attempting to resuscitate the victim. He observed that a breathing tube had been inserted and that personnel were performing CPR. He immediately assessed the victim but could not discern a heartbeat or breath sounds. He ordered the tube to be removed, and CPR continued using the "bag-to-mask" method. Medications were administered, and an IV line was established so that fluids could be given. The electrodes attached to the victim's chest revealed that he was in "asystole, " meaning that he did not have a heartbeat. After twenty to twenty-five minutes of resuscitative efforts, the victim did not respond, and Dr. Seyler "called the code."
Dr. Seyler testified that he was unable to obtain a "satisfactory answer" for the multiple bruises and abrasions observed on the victim, so his preliminary diagnosis of the victim's injuries and death was child abuse. Dr. Seyler described the injuries to the victim, noting first that he had blood collected around his nostrils. The victim also had a hyphema in his right eye, which resulted from trauma to the eye that caused it to fill with blood. He also noticed petechia in the victim's eye. Dr. Seyler observed a "linear lesion" on the back of the victim's scalp that had crusted and clotted blood on it and "three-finger-like" contusions to the neck that could have been caused either by direct pressure or a slap to the neck. The inside lining of the victim's cheek was macerated or injured on both sides. There were several small bruises on the victim's chest, but they did not form a pattern. When they turned the victim over, Dr. Seyler observed multiple bruises on the victim's back that appeared to be in the shape of a shoe complete with tread marks. On the victim's extremities, Dr. Seyler noted multiple bruises. He stated that he also noticed "livor, " a condition in which, upon death, the blood drains from the highest point in the body to the lowest point. Dr. Seyler testified, "In my experience, with over 75 deaths in my whole career, I had not seen it set in that fast from resuscitation . . . . It indicated to me that the child was, at the time of arrival, really dead at that point in time and that all our efforts were for naught . . . ."
Dr. Seyler stated that R.K. was escorted into the examining room and that he questioned her about the victim's condition premortem. He identified some photographs of the victim that were taken in the emergency room and confirmed that neither he nor anyone on the treatment team handled the victim in such a way as to cause any of the injuries.
Dr. Seyler was asked to describe the symptoms of an asthma attack. He described that in a mild attack, one might exhibit a persistent cough or "wheeze" when he exhales. In a moderate attack, one might struggle to breathe and may not be as active as usual because of the struggle. During a severe attack, a child would limit his activity to that necessary to breathe, and one would witness the chest heaving. The child might also become cyanotic, or his skin would turn blue in appearance. Against that backdrop, Dr. Seyler viewed the video that appellant took of the victim at 12:17 p.m. on March 9, 2010, and opined that the victim did not display signs or symptoms of an asthma attack in the video. Rather, he stated that the victim had ataxia, which is "the inability to move the body in a coordinated fashion" while walking or standing.
On cross-examination, Dr. Seyler denied that resuscitative efforts could have caused the injuries he viewed on the victim. He also stated that if appellant had been instructed to manually remove the phlegm from the victim's throat, that would have been an incorrect instruction because phlegm "is not going to do anything except maybe lubricate the area." He said that it would be "extremely unusual" for phlegm to be present to such an extent as to clog the airway and that he had not witnessed such an occurrence in his thirty-eight years of practice.
On redirect examination, Dr. Seyler further explained that in the video, the victim was "markedly ataxic." He described, "[The victim] can't [sic] hardly stand on his own two feet. He is confused. He's disoriented. He doesn't seem to hear well. His name is called twice, and he doesn't turn around and reflect that he has heard that. He is desperately trying to stay afoot, and his balance is way off." Dr. Seyler opined that a common cause of ataxia was injury to the brain and that he would have ordered a CT scan if a child had presented to the emergency room in that condition.
Dr. Seyler generalized that a "vigorous, active child is going to bruise." He named the most likely places to find bruises on children and noted that the bruises on the victim in this case "were not in common areas for us to see." He concluded, "[T]he fact that there is a "sheer large number of these bruises that I can't explain, that brings my child abuse antenna sky high." Dr. Seyler opined that "the hand marks on the neck are almost pathognomonic of child abuse. Pathognomonic means you can make the diagnosis of child abuse on the basis of those marks on the neck." Finally, with regard to the video, Dr. Seyler said:
I can tell that this child is not more than mildly wheezing. If he is wheezing at all, he is only wheezing because he doesn't have the other associated signs and symptoms of somebody who is in extremis for asthma. If you have labored respirations, his chest would be heaving. He would be sitting still. He wouldn't be moving around, and if you look at the video, anybody . . . would say that child is in extreme danger and severely ill at that point in time, severely ill, not just a little bit ill, severely ill.
The State called Captain Frank Watkins with the Coffee County Sheriff's Department as its next witness. He served as the administrative captain and was responsible for the technology utilized in the jail, including the telephone system. He was asked to retrieve the recordings of two telephone calls between appellant and his mother, Marsha Greenwood, while appellant was incarcerated. Those recordings were entered into evidence.
The State then called medical examiner Dr. Amy McMaster as an expert witness in the field of forensic pathology. Dr. McMaster performed the autopsy on the victim's body. She stated that in the course of her external examination of the victim, she observed multiple blunt trauma injuries to different areas of his body. She described several abrasions, or scratches, on the victim's extremities. She noted the following injuries on his head, neck, and torso areas: multiple abrasions and contusions on the face; a black eye with abrasions on the upper and lower lid; a large abrasion on the back of the head; a linear abrasion on the side of the neck; some bruising behind the right ear; a large linear abrasion on the left side of the back; a "complex" or group of abrasions on the right upper back; a linear abrasion on the left mid-portion of the back; an area of "patterned contusions, " or bruises with a pattern or regularity, on the lower back/buttocks area; small abrasions on the lower back and left buttock; a dark red round contusion on the right lower abdomen; and round contusions on the left pelvic area.
Dr. McMaster characterized the bruise behind the victim's ear as "significant" because of its location. She described it as a "protected area" that would "somewhat raise your suspicion." She explained that upon beginning the internal examination, she noted blood in the "deeper portion of the abdomen" that exuded from an "extensive hemorrhage in the mesentery of the [small] bowel." She noted bleeding in the supporting tissue around the stomach and in the area surrounding the right part of the large bowel. There was an "extensive hemorrhage" in the back of his body behind his kidneys. She characterized this area, also, as "another protected area" and stated that a hemorrhage in that location indicates a significant blunt trauma. Dr. McMaster opined that it would require "a fairly significant amount of force to do that" and not "just a trivial fall or a trivial bump into something." The victim also had a hemorrhage around his pancreas, which is deep within the abdomen. When examining the victim's spine, Dr. McMaster found extensive "diffuse" or widespread hemorrhaging in different layers surrounding both the upper and lower spinal cord. She testified that the only explanation for the hemorrhages was blunt trauma and that the injuries would have required more than one blow. She said that the injuries she observed on the victim were not what one would see "with a normal activity of a toddler" and that they would have resulted "from something that generate[d] quite a bit of blunt trauma, either being hit, . . . kicked, falling out of a second- or third-story window, [or] falling down a bunch of stairs." Moreover, in her training and experience, "there was no way that [CPR], either by a trained or untrained person, would explain the extensive injuries that we see in different areas of [the victim's] body."
With regard to the injuries on the victim's face and head, Dr. McMaster testified that perhaps some of the abrasions or contusions around the victim's mouth could have resulted from CPR but that none of his other facial injuries could have been explained that way. The abrasion underneath the victim's chin was large and was not a typical injury a toddler received. The linear abrasion on the back of the victim's head was surrounded by contusions just below it and would have resulted from more than one blow. Dr. McMaster characterized the injuries on the victim's head as having resulted from "multiple blows." During the internal examination of the victim's head, Dr. McMaster noted diffuse subgaleal hemorrhages on the back of the scalp, on the left side, and on the right side that were caused by blunt trauma. He had a patchy subarachnoid hemorrhage that could have been caused by other means, none of which were present in this case. He also had diffuse, extensive bleeding over his brain on both sides measuring about forty milliliters. Neither type of hemorrhage could have been caused by CPR. Dr. McMaster characterized the victim's head injuries as "extremely serious[, ] . . . lethal, even without any of the injuries" she observed. She said that the bleeding in the abdominal organs was more difficult to "quantify" because of the location but that the injuries would have been painful and could have caused shock. She could not definitively state whether the abdominal injuries would have been fatal. The multiple injuries, taken together, would have been more severe than had they occurred separately.
Dr. McMaster noted that she found ibuprofen in the victim's blood but that it was not a level of concern. Due to the abrasions on the victim's neck, she performed a special neck dissection and noted a hemorrhage to the submandibular gland, which was located in that area. She also noted a hemorrhage in the victim's eye, which was consistent with blunt trauma.
Dr. McMaster opined that the cause of death was multiple blunt force trauma. The "mechanism" of death was swelling of the brain. She considered asthma as a cause of death but determined that it made "no medical or scientific sense in a child that has extensive bleeding around his brain, extensive bleeding with his internal organs, evidence of blunt trauma on the outside of the body as well, . . . to certify the cause of death as asthma when there are injuries to explain his death." She testified with medical certainty that the victim's death was not precipitated by resuscitative efforts. The State reviewed appellant's version of the events surrounding the victim's death, and Dr. McMaster stated that her opinion did not change. She explained the symptoms that the victim would have experienced as follows:
[W]ith swelling of the brain, . . . they will begin to have an altered consciousness. They will begin to be quite not themselves, for lack of a better term. They will have difficulty with their orientation as to where they are. Eventually, once the brain swells enough, then they will begin to become unresponsive. They will begin to have difficulty breathing, and that is specific with brain injury. With the abdominal injury, [it] would be painful. He also might have difficulty breathing just because of the muscle – the motion of ...