Assigned on Briefs March 3, 2015.
Appeal from the Criminal Court for Shelby County No. 12-06-111 J. Robert Carter, Jr., Judge.
Stephen Bush, District Public Defender; Harry E. Sayle III (on appeal), and Donna Armstard and Cathy Kent (at trial). Assistant District Public Defenders, Memphis, Tennessee, for the appellant, Sebastian Pegues.
Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Amy P Weirich, District Attorney General; and Carrie Shelton-Bush and Eric Christensen, Assistant District Attorneys General for the appellee. State of Tennessee.
ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which ROBERT H. MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.
ROBERT W. WEDEMEYER, JUDGE.
I. Background and Facts
This case arises from the death of a three-month-old infant girl. A Shelby County grand jury indicted the victim's step-father, the Defendant, for two counts of first degree felony murder, one count of aggravated child abuse, and one count of aggravated child neglect.
At the January 2014 trial on these charges, the parties presented the following evidence: Felecia Nunn testified that she worked as a 911 dispatcher in Memphis, Tennessee, and received a call on June 25, 2012, from a residence located on South Greer. Ms. Nunn testified that the caller was a male. A recording of the 911 call was played for the jury. During the 911 call, the caller said that he needed an ambulance because his baby was "slowly breathing" and "look[s] like she's gonna die." The caller said that the baby was his daughter. The caller stated that the baby was dozing off and not crying between breaths. He stated that he had given the baby Tylenol. The caller stated that the baby was weak and "slowly dying in [his] arms. . . ." Ms. Nunn instructed the caller to perform CPR by blowing air into the baby's mouth. The caller followed her instructions and then told Ms. Nunn that he thought the baby was dead. The caller then told Ms. Nunn that emergency personnel had arrived. Ms. Nunn said this particular caller stood out to her because he was very calm. Ms. Nunn instructed the caller to begin CPR until firefighters arrived and took over.
Jason Ikner testified that he was a paramedic in Memphis, Tennessee, and that on June 25, 2012, he responded to a residence located on South Greer due to a baby in distress. When he arrived at the home, he was met by the Defendant. The Defendant took Mr. Ikner inside his home and said that his daughter, the victim, was a baby and was having trouble breathing. Mr. Ikner found the victim in a back bedroom lying on an adult-sized bed. The Defendant told him the victim had been sick, had taken medication, and was not breathing well. Mr. Ikner testified that the victim was "definitely . . . in distress." He said that he immediately noticed that the victim was "very depressed like lethargic." He stated that the victim had a "fixed" look on her face and was not breathing at a normal rate for a baby. The Defendant told him he had given the victim Tylenol and showed him the dosage, which Mr. Ikner said was not a large dose.
Mr. Ikner testified that the ambulance arrived quickly to transport the victim. He did not perform CPR at that time because she was still breathing. He explained the term "depressed, " stating that it was a medical term related to the victim's respiratory rate and how she interacted with her surroundings. Mr. Ikner said:
What would be normal like for a baby to cry, coo, breathe fast, movements. None of that was present. It was very slow, delayed. And normally when you . . . get in an infant's face or wave something in an infant's face it grabs their attention and immediately they shift their focus. The baby, she never appeared like that. Like when I was assessing her . . . she just kind of had an abnormal gaze that wasn't directed at me. It was more just a far off look.
Mr. Ikner recalled that there was another child in the house, the victim's older sibling. The sibling and the Defendant were the only two people in the house. He said that, when he left the house with the victim, she was breathing but "deteriorating."
When he got into the ambulance with the victim, Mr. Ikner informed the other paramedics that the victim was "about to crash" or go into cardiac arrest. He said they immediately laid the victim on the stretcher and put the "EKG leads" on to monitor her heart rate. At that moment, her heart stopped and CPR was administered. He testified that the victim's pulse did eventually return.
On cross-examination, Mr. Ikner said that the paramedics intubated the victim inside the ambulance, meaning they tried to inflate her lungs with oxygen through a tube down her throat.
Dr. Marco Ross testified that he was the Deputy Chief Medical Examiner for Shelby County. He was admitted as an expert in the field of forensic pathology. Dr. Ross identified the autopsy report of the victim, which was entered into record. He stated that he conducted the autopsy on the victim's body and that she weighed sixteen pounds and was three months old at the time of the autopsy.
In his examination of the victim's body, Dr. Ross found a bruise on her right temple consistent with blunt force trauma to that area. On the back of the victim's head, Dr. Ross found a hemorrhage, which he explained as an area of bleeding in the tissue. He testified that there was a similar area of hemorrhage on the right front part of the victim's scalp. Dr. Ross said that, after removing part of the victim's skull, he found a small area of hemorrhage on the right side of the victim's brain. Dr. Ross identified pictures of those injuries, and they were admitted as evidence. He stated that all of the victim's injuries to her head appeared to be acute injuries, meaning that they occurred within twenty-four hours before her death. Dr. Ross testified that it would have taken a minimum of two blows to the victim's head to create those injuries.
Dr. Ross identified pictures of areas of bruising on the victim's torso region, specifically her lower chest and upper part of her abdomen. Dr. Ross testified that he found injuries on the victim's ribs. The victim's fifth through ninth ribs were fractured on her right side, and her third through eighth ribs were fractured on her left side. The eighth and ninth ribs on her backside, where they attach to the spine, had "calluses" indicative of older fractures to those ribs. He testified that the injuries to the ribs on her right side also appeared to be acute. The injuries to her left side were a minimum of two weeks old. Pictures of the injuries to the victim's ribs were identified and admitted as evidence.
Dr. Ross testified that he could not completely rule out that the victim's rib injuries were caused by CPR, but he stated that his interpretation of the injuries was more consistent with pressure or impact from the side of the body, rather than the front, which would be consistent with CPR. He agreed that the injuries were more consistent with injuries sustained from blunt force trauma. He testified that there were hemorrhages in the immediate vicinity of the fractured ribs consistent with blunt force trauma. Based on the fracture lines on the victim's ribs, Dr. Ross testified that the victim had suffered broken ribs during three different events.
Dr. Ross testified that the victim had suffered bleeding in her right lung, as well as in her heart. Pictures of the bleeding in the victim's lung and heart were identified and admitted as evidence into the record. The presence of the hemorrhage inside the victim's lung indicated that the victim had suffered blunt force trauma rather than injuries sustained during CPR. Dr. Ross testified that the victim had two lacerations on her liver, which he described as "complex, " indicative of a "crush type of injury to the liver." Pictures of the injuries to the victim's liver were identified and admitted as evidence into the record. Dr. Ross agreed that it would take a "significant amount of force" to cause this type of injury to the liver. He characterized the injuries to the victim's liver as severe, caused by a very significant impact.
Dr. Ross testified that the victim also suffered hemorrhaging to her duodenum, the connection between her stomach and small intestine, as well as to her pancreas and kidney. He testified that the victim's adrenal gland was split open by a large laceration consistent with a severe injury. He agreed that an adult punching the victim would cause that type of laceration. Dr. Ross testified that, due to her internal injuries, the victim had bled at least half of her blood volume internally.
Dr. Ross testified that he determined the cause of the victim's death to be multiple blunt force injuries. He stated that the victim's injuries were very severe and "associated with a high mortality." He testified that he typically associated these types of injuries with car accidents because of the amount of force necessary to cause the same crushing of the liver suffered by the victim. He stated that, had the victim been resuscitated, she probably would have had to have her liver removed to stop the internal bleeding. He described the injury to her liver as "very, very severe" and stated that the victim would have been in severe pain after sustaining these injuries. Dr. Ross stated that the victim likely went into shock within a matter of minutes after sustaining the injury to her liver. Based on the severity of the injuries, Dr. Ross stated that the victim probably suffered them close to the time that she died.
On cross-examination, Dr. Ross agreed that the victim arrived at his office with medical equipment on her body, left in place so that he could ascertain whether any of her injuries or marks were related to the medical equipment. He clarified that the temple, where the victim had a bruise, was on the side of the head between the eye and the ear. He agreed that, near the injury to her temple, the victim had a mark where tape had been placed on her head by medical personnel. He stated that the tape and any piece of medical equipment that had been taped to her head would not have caused her injury. Dr. Ross stated that the injuries to the child's liver and abdomen would have been by someone forcefully squeezing her abdomen, ...