Court of Criminal Appeals of Tennessee, Nashville
Session May 12, 2015
Appeal from the Criminal Court for Davidson County No. 2011-D-2978 Seth Norman, Judge
Richard Strong (on appeal); and Kelly Young and Holly Troutman (at trial), Nashville, Tennessee for the appellant, Donald W. Higgins III.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.
JAMES CURWOOD WITT, JR., JUDGE
A Davidson County Criminal Court jury convicted the defendant of one count of aggravated child neglect for allegedly aiding in Suzanne Wiley's neglect of her daughter, M.D.
Doctor Deborah Lowen, a pediatrician at Vanderbilt Children's Hospital who was also a specialist in child abuse injuries, testified that she examined M.D. on August 3, 2011, following M.D.'s August 2, 2011 hospital admission. At that time, the victim's mother informed Doctor Lowen that she first observed burns on the victim's body on July 29, 2011. The victim's mother said that she put ointment and gauze onto the victim's blistered and peeling skin and that she gave the victim Tylenol for the pain.
Doctor Lowen explained that the victim suffered second- and third-degree burns to "between 20 and 30 percent of her body surface area from the buttocks down involving both legs and the genital area." At the time Doctor Lowen examined the victim, "[t]he skin was off and peeling." She said that when the injury was fresh, the skin would have blistered and that "[o]ver time the areas that were blistered will then pop and that skin will come off also." She testified that burns such as those suffered by the victim "will leak a lot of fluid, " leading to dehydration. The victim was dehydrated when she arrived at the hospital.
Doctor Lowen testified that, had the victim been brought to the hospital immediately after the injuries, she would have been treated with pain medication and provided a lot of intravenous fluids to ward off dehydration. She said that the victim's injuries would have been treated with sterile ointments and wrapped in sterile gauze that would have been changed on a set schedule.
Doctor Lowen said that the victim's wounds "needed to be cleaned extensively because they hadn't been" and that she required skin grafting to the deepest part of the wounds. She testified that the victim had undergone "a dozen surgical procedures" between the time of her initial hospitalization and the February 2014 trial and that she would require more procedures as she grew in order to minimize scarring and allow her to have a full range of motion in her ankles.
According to Doctor Lowen, proper care for the victim's wounds could not occur outside of a hospital setting. She opined that the delay in medical care increased the victim's scarring "[b]ecause the skin had a chance to start redeveloping, re-growing, in a non-healthy way." She added, "By the time she came in for medical care it was to[o] late to intervene in that process and to get it growing the correct way, and the burn surgeon is very clear about that also."
During cross-examination, Doctor Lowen clarified that she did not actually treat the victim but instead acted as "a consultant" in the victim's case. Doctor Lowen stated that the victim's mother told her that the victim had been burned when the victim turned on the hot water in the bathtub. She said that the victim's injuries were not consistent with the victim's having brief exposure to hot water running from the faucet but were consistent with the victim's having been "[p]laced into a tub of hot water." Doctor Lowen agreed that third-degree burns are not actually painful because burns that severe actually destroy the nerve endings. The second-degree burns, she said, would have been very painful. She said that the victim would likely have manifested that pain by crying, becoming lethargic, and not eating as much. Those signs of distress should have been obvious to the victim's mother. Doctor Lowen said that she had no contact with the defendant and had never even heard his name until she got the subpoena to testify in this case.
Carey King, the victim's maternal grandfather, testified that he spoke to the victim's mother on August 2, 2011, and learned that the victim had been burned. Mr. King asked the victim's mother to bring the victim to his store, where he was working on that day, so that he could examine the victim. When they arrived, the victim's mother was carrying the victim, who was "wrapped in a towel and she was very lethargic, very pale in color." When he opened the blanket to look at the injuries, he "was shocked, horrified, and taken aback at the extent of the injury." He recalled that the victim was wearing a shirt and a diaper and that her legs were wrapped in gauze. He said that he asked Ms. Wiley why she had not taken the victim to the hospital. He then telephoned his wife and Vanderbilt Children's Hospital. His wife drove the victim and the victim's mother to the hospital while Mr. King stayed behind to lock up his store.
Mr. King testified that the victim's mother "told so many stories" about how the victim received her injuries "that we can't even get them back right now." He said that, as far as he knew, no version provided by the victim's mother was the truth. He acknowledged that the victim's mother was resistant to taking the victim for treatment and that he "told her she needed to bring [the victim] out" so that he could examine the wounds. He explained that he "was in Special Forces and . . . was trained in understanding wounds, so [he] would have been able to tell her what she needed to do." Mr. King said that he had never met or heard of the defendant.
Lorelei King, the victim's maternal grandmother, testified that she telephoned the victim's mother on August 2, 2011, because she had been unable to get in touch with her the day before. Ms. King said that her daughter had not previously indicated that she had been staying with relatives of her boyfriend. She stated that she did not even know that the victim's mother had become involved with a man named Jarico Huey. Ms. King recalled that when she told the victim's mother that she sensed that something was wrong, the victim's mother began to cry. After some "probing, " the victim's mother told Ms. King that the victim had been burned. Ms. King said that she told the victim's mother to telephone Mr. King, explaining, "I knew that he would be able to extract the information from her and figure out what was wrong."
Ms. King testified that her husband telephoned her a few minutes later and told her to come to their store. When she arrived, Mr. King brought the victim out to her car "wrapped back up in a blanket, put her in a car seat, and told [Ms. King] to take her directly to the hospital." Ms. King recalled that the victim "was bleeding, she was wet, weeping, and black like charred." She said that the victim asked for a drink "because she was thirsty" and that when she handed the victim a bottle of water, the victim "kept drinking and drinking."
Ms. King testified that prior to her telephone call with the victim's mother on August 2, 2011, she had no knowledge of any injury to the victim. She said that she and her husband, not the victim's mother, insisted that the victim be taken to the hospital.
Ms. King said that since the victim's initial hospitalization, the victim had undergone "about 18" different surgeries and procedures, all of which had required general anesthesia. Only two of those procedures involved skin grafts, both of which occurred during the initial hospitalization. She said that one of the skin grafts was designed to save the victim's left foot, which the doctor had indicated might require amputation.
During cross-examination, Ms. King said that she spoke with the victim's mother approximately three times between the Friday when the victim received her injuries and the Tuesday when she discovered that the victim had been injured. She said that the victim's mother never indicated that the victim had suffered any injury. Ms. King also spoke to the victim, who was 18 months old at the time, and that the victim cried and asked to come to Ms. King's house. Ms. King said that it was not unusual for the victim to cry to come to her house. Ms. King said that the victim's mother told her that the victim had been in her care during the entire time following her injury. The victim's mother told Ms. King that she did not take the victim to the hospital because she was "[s]cared they were going to take her baby away."
Metropolitan Nashville Police Department ("Metro") Detective Michael Dale Clark testified that he investigated the victim's injuries. As part of that investigation, he asked the mother to provide a reenactment of the circumstances surrounding the injuries. The reenactment took place at a residence on Coventry Way. While at the residence, Detective Clark examined the water heater and determined that it was set to a temperature of "approximately 140 to 145." He tested the faucet on the bathtub and determined that the peak temperature of the water coming from that faucet was 145 degrees and that the faucet reached that temperature after approximately 15 seconds.
Metro Detective John Grubbs testified that he spoke with Doctor Lowen on August 3, 2011, and then interviewed Ms. King and the victim's mother. At that time, the victim's mother did not suggest that anyone else had been involved in the victim's injuries. During a follow-up interview on August 18, 2011, Detective Grubbs learned that the victim's mother was at work when the victim received her injuries. At that point, he conducted another interview of the victim's mother, and she told him that the victim had been with her boyfriend, Jarico Huey, when she was injured. Mr. Huey admitted during an interview with Detective Grubbs that he had caused the burns by placing the victim into scalding water.
During that second interview, the victim's mother also indicated that she and Mr. Huey "took [the victim] to another address where they remained for a period of four to five days." That other address was the residence where Mr. Huey lived with his family. Detective Grubbs later learned through interviews with Mr. Huey's family members that Mr. Huey's grandmother, mother, and the defendant, who is Mr. Huey's brother, along with the defendant's girlfriend, Candace Bennett, had all been present at the residence at some point while the injured victim was there. Detective Grubbs said that the defendant lived at that residence, which was owned by his grandmother, but he could not say with any certainty how often the defendant had been in the residence during the relevant period. Detective Grubbs testified that none of those individuals made any attempt to report the victim's injuries to the police or to the Department of Children's Services.
Detective Grubbs interviewed the defendant, and an audio recording of a portion of that interview was played for the jury.
During cross-examination, Detective Grubbs acknowledged that friends of the victim's mother initially colluded with the victim's mother to conceal the fact that the victim was in Mr. Huey's care when she received her injuries. When the victim's mother finally acknowledged that she had been untruthful about the source of the victim's injuries, she did not indicate that the defendant had been present when the victim was injured. The defendant is not related to the victim or the victim's mother, and he was not present at the Coventry Way address when the injury occurred. That address was the residence of the victim and her mother. The defendant had never resided at that address. The detective's investigation revealed only that the defendant and Ms. Bennett had seen the victim's injuries once while the victim and her mother were at the defendant's grandmother's house and that, after seeing the injuries, the defendant and Ms. Bennett then went to the store to purchase supplies to treat the injuries. The detective acknowledged that no evidence existed to show that the defendant had seen the victim more than one time after her injury.
At the conclusion of Detective Grubbs's testimony, the State rested. Following a full Momon colloquy, the defendant elected not to testify and chose to present no proof. After the jury convicted the defendant of aggravated child neglect, the trial court imposed a Range II sentence of 28 years' incarceration. The defendant filed a ...