Court of Criminal Appeals of Tennessee, Knoxville
April 28, 2015 Session
Direct Appeal from the Criminal Court for Knox County No. 96976 Mary Beth Leibowitz, Judge
Mike Whalen, Knoxville, Tennessee, for the appellant, Danny Branam.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Charme P. Allen, District Attorney General; Joan S. Stewart and Christopher M. Rodgers, Assistant District Attorneys General, for the appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Timothy L. Easter, JJ., joined.
ROBERT W. WEDEMEYER, JUDGE
This case arises from the death of the victim, B.S., a nineteen-month-old child. The Defendant was in a relationship with the victim's mother and living with them at the time of the victim's death. For his involvement in the victim's death, a Knox County grand jury indicted the Defendant for one count of felony murder committed during the perpetration of aggravated child abuse and one count of aggravated child abuse.
The parties presented the following evidence at trial: Leslie Wakefield testified that she was working as a security officer at Big Oaks Apartments on Tuesday, April 5, 2011. She stated that around 7:00 p.m. that night, a tenant, Brittany Stinnett, approached her with the "lifeless body" of B.S. in her arms and asked for help because B.S. was not breathing. Ms. Wakefield told Ms. Stinnett to take B.S. back inside, and she followed her into Ms. Stinnett's apartment. Once inside, Ms. Wakefield noticed that B.S. was "covered with bruises" on her head, torso, arms, and legs. Ms. Wakefield asked what had happened to the baby, and Ms. Stinnett responded that she had fallen out of her crib. Ms. Wakefield left the apartment and called 911 to send investigators to the scene, because the situation was a "possible child abuse." When the ambulance arrived, Ms. Wakefield led the medical technicians to the apartment and stayed on the scene while it was being processed by the Knoxville Police Department. Ms. Wakefield testified that she did not see the Defendant anywhere on the scene.
Captain Dean Fontaine testified that he was a Knoxville firefighter who responded to the scene at 7:00 p.m. on April 5, 2011. Captain Fontaine entered the apartment and found B.S. on the couch in a diaper and in "obvious respiratory distress." She was "only breathing about eight times a minute, " about a third of what a child should have been breathing. He noticed that B.S. had "quite a bit of bruising" on her left forehead, left jaw, both knees, and on her face above her mouth. He testified that she also had "numerous small bruises" all over her face and body. Captain Fontaine attempted to put an oral airway inside B.S.'s mouth, but her "jaws were clenched" preventing insertion. He testified that B.S.'s pupils were fixed and dilated, the "classic signs of a closed head injury." "Judging by the bruising and the overall scene, " Captain Fontaine "determined this was probably a case of child abuse."
The ambulance arrived to transport B.S. to the hospital, and Captain Fontaine rode in the ambulance and performed several techniques to help B.S. breathe. He could not locate a site on her body to insert an IV because all of her limbs were bruised.
James Perry, a paramedic, testified that when he arrived at the apartment on April 5, 2011, he found B.S. lying on the couch surrounded by firefighters. The first thing he noticed was bruising on B.S.'s legs, and he noticed she was not breathing very well. He was told that she fell out of her crib, and he went to look at the crib. Mr. Perry noticed that the crib was broken, but he did not think the crib looked high enough off the ground to cause the injuries he had seen on B.S.
Dr. Carlos Angel testified that he was a pediatric surgeon at East Tennessee Children's Hospital and the University of Tennessee Hospital. He was present in the emergency room when B.S. was brought to the hospital, and he stated that the first thing he noticed was her bruises. B.S. was placed on a ventilator. The neurosurgery department was called to examine for possible head injuries. Dr. Angel testified that B.S.'s injuries were not consistent with an accident or fall. He explained:
If a child falls from a height . . . he [or she] might have a loss of consciousness. [He or she] might have a closed head injury. That's all possible. But there's no reason for a child to have multiple bruises and bruises . . . [of] different ages. . . . And then you see that this child had bruises in different stages of resolution. So it looks like this child might have been traumatized multiple times.
On cross-examination, Dr. Angel agreed that B.S.'s injuries could have "theoretically" been accidental. He stated that he was not aware if she had a habit of climbing on things. He stated that, based upon his examination of B.S.'s injuries, he suspected abuse, which was why he called Child Protective Services.
Officer Danielle Wieberg testified that she was an evidence technician with the Knoxville Police Department and that she responded to a request to photograph the injuries of a child at the University of Tennessee Hospital on Tuesday, April 5, 2011. Officer Weiberg arrived at the hospital and began photographing B.S.'s injuries, which she described as bruises "all over" B.S.'s body. Officer Wieberg said that B.S. was not conscious when she photographed her body. Those photographs were admitted into evidence. From the hospital, Officer Wieberg went to the apartment where the victim was living. She took photographs of the entire apartment, including the crib where B.S. slept. Those photographs were also admitted into evidence. From the photographs, Officer Wieberg noted that a "red blood like substance type stain" was found on B.S.'s pillow in her crib and a bamboo stick was found on the floor of B.S.'s room. Officer Wieberg noted that B.S.'s room had carpeted floor, and she photographed the thickness of the carpet and underlying pad by pulling both up from the floor.
Officer Wieberg identified items found at the apartment: two Kroger receipts from April 4, 2011, and a Walmart receipt, Dollar General Store receipt, and a Western Union receipt, all dated April 5, 2011. Also collected from the apartment was the victim's crib, crib mattress, and bedding. Officer Wieberg recalled that two hours elapsed between the time that she received the call to the hospital and when she arrived at the apartment.
Dr. Mary Palmer, a pediatric emergency medicine physician, testified as an expert in the fields of pediatric emergency room medicine and pediatric child abuse. Dr. Palmer arrived at the hospital the day after B.S.'s admission, and she examined her. Dr. Palmer also reviewed B.S.'s hospital records on that day, which were admitted into evidence.
Dr. Palmer testified that B.S.'s emergency room records stated that she was unresponsive when EMS personnel found her. The history contained in the records stated that B.S. had suffered a six-foot fall and that the parents had reported that she jumped out of her crib. Dr. Palmer noted that the records included documentation of the injuries and bruises on B.S.'s body. After examining B.S.'s body, Dr. Palmer wrote her own consultation report, which she read aloud for the jury:
[Nineteen] month old [victim] with (1) extensive bruising focused on head (both sides) and back and buttocks and thighs and knees. (2) [Three] areas of unusual patterned abrasions on right lower abdomen and bilateral medial thighs. (3) Intracranial bleeding and swelling consistent with significant closed head injury, and (4) Retinal hemorrhages per ICU M.D., to be confirmed by ophthalmology consistent with shaking injury.
Skeletal survey for boney injury held now for blood pressure instability, none underlined of the injuries above are consistent with any accidental mechanism of injury, but rather are a pattern of repeated blows with great force, and in some places abrasions consistent with pinching or dragging on the skin.
The injuries are life threatening with certainty of impairment if the child survives. And the pain inflicted was severe. Will follow.
Dr. Palmer identified photographs of B.S.'s body, which depicted the injuries and abrasions on B.S.'s face and head. She stated that the multiple distinct areas of injury made it impossible that they were caused by one fall. Dr. Palmer testified that the bruising on the side of B.S.'s head was consistent with a blow to the head. She stated that some of the injuries to B.S.'s head were more than a day old, and she recalled that it was the opinion of the other emergency room physicians that B.S.'s injuries were at different stages of healing.
Dr. Palmer identified photographs of injuries to B.S.'s torso. The injuries "gave the impression of the skin being pinched with an instrument or with a hand . . ., or possibly if a belt was used . . . ." Dr. Palmer stated that she concluded that the injuries were not accidental. She also identified injuries to B.S.'s legs and bottom, which she said were not consistent with accidental falls. Dr. Palmer identified a "healed burn" on B.S.'s right leg, which she described as non-accidental.
Dr. Palmer testified that B.S.'s intracranial injury was "substantial and significant" and not consistent with her falling on any surface. She stated that "there's no accidental mechanism that I can conceive of or that has been presented . . . that would explain [B.S.'s injuries] even in some minority much less the totality." Dr. Palmer further stated:
[B.S.'s] injuries were so substantial even in the skin findings as to lead to concern for abuse, but then in addition the CT scans and her medical course leading to her death were consistent with severe shaking and impact injury to the head that's just not consistent with an accidental mechanism.
On cross-examination, Dr. Palmer agreed that she spoke to the police about B.S.'s case and relied on their information regarding what proposed injury mechanisms caused B.S's injuries. She agreed that she did not speak with B.S.'s family about what had happened or about B.S.'s behavior and temperament. Dr. Palmer stated that the only information she was given about B.S. was that she jumped out of her crib multiple times.
About B.S.'s injuries, Dr. Palmer agreed that the pinch marks on her skin could have been caused by a broken piece of B.S.'s crib, which was shown to her. She agreed that she did not examine the crib or any of the toys in the room and therefore could not determine whether they could have caused B.S.'s injuries, however she restated that B.S.'s extensive injuries could not have been sustained from falling on those items. She explained: "The bruises on [B.S.'s] body were over every body surface. In areas not normally impacted by children when they fall. In a number [of areas] that we couldn't even count, in such a way that in many times they ran together[.]" She agreed that children die from injuries caused by toys or falling out of cribs. She also agreed that if B.S. was falling off furniture regularly and "running crazy, " that would explain her multiple bruises of varying ages.
On redirect-examination, Dr. Palmer testified that she "could not conceive of a force" that would have caused B.S.'s injuries to her head within the confines of the bedroom where the crib was.
On recross-examination, Dr. Palmer agreed that she had not determined who of the people living with B.S. had inflicted the injuries on her body.
Brittany Stinnett, the victim's mother, testified that she lived in an apartment with the Defendant, the victim, her second child, "Phoenix, " and Michael Stinnett. Mr. Stinnett slept on the couch, and she, the Defendant, and Phoenix slept in a room together. B.S. had her own room but sometimes slept in the room with Ms. Stinnett and the Defendant. On Sunday, April 3, Ms. Stinnett took B.S. and Phoenix to church with Ms. Stinnett's mother. Photographs were taken of the family at church, and Ms. Stinnett identified them. Ms. Stinnett recalled that, after they returned home that day from church, she remembered the Defendant took B.S. into her bedroom. She stated that B.S. spent most of the time in her bedroom. This was because the Defendant told Ms. Stinnett that she and B.S. had too strong of a bond and that B.S. would cry all the time when the Defendant took care of her. She did not believe that she had too strong of a bond with B.S. Ms. Stinnett denied being scared of the Defendant, stating that she was in love with him.
Ms. Stinnett testified that the Defendant would threaten to leave her, and she would cry and beg him not to leave. Because of this threat, Ms. Stinnett allowed him to put B.S. in the bedroom. She stated that "this" "happened all the time" and that B.S. spent most of her time in her bedroom. Ms. Stinnett recalled that she was starting a new job on Monday, April 4, 2011, and woke up at 4:00 a.m. that morning. When she woke up, she found the Defendant sitting at a computer with B.S. sitting next to him in a chair. She did not notice anything odd about B.S.'s demeanor. Ms. Stinnett recalled that she left for work before 7:00 a.m. and that the Defendant was the only person awake. She returned home around 7:45 p.m. that evening, at which time the Defendant put B.S. to bed, and the couple went grocery shopping. Ms. Stinnett testified that the Defendant put B.S. to bed most of time. She stated that, when she kissed B.S. before she went to bed, Ms. Stinnett observed bruising on B.S.'s head.
Ms. Stinnett stated that Mr. Stinnett stayed at the apartment with B.S. while she, the Defendant, and Phoenix went grocery shopping. When they returned from the grocery store, Ms. Stinnett carried Phoenix and the groceries into the apartment while the Defendant went straight inside; this was because the Defendant was "on no trespassing" orders for the apartment complex. B.S. was still in bed when they returned from the grocery, and Ms. Stinnett did not see her again that night. Ms. Stinnett went to bed while Mr. Stinnett and the Defendant stayed awake.
Ms. Stinnett testified that on Tuesday, April 5, 2011, she awoke and got Phoenix ready to leave the house while the Defendant got B.S. ready to leave. Ms. Stinnett was due in court that morning, and she remained at the courthouse until about noon, after which the Defendant's sister, Linda, and her child arrived to pick up Ms. Stinnett, the Defendant, B.S., and Phoenix. The group went to Walmart at approximately 2:30 p.m and then returned to the apartment. The Walmart security video was played for the jury. Ms. Stinnett identified in the video herself, the Defendant, the Defendant's sister and her child, B.S., and Phoenix. Ms. Stinnett stated that B.S. was sitting in the shopping cart and being active, "looking around" and raising her arms. Ms. Stinnett recalled that she noticed bruises on B.S.'s face and head while they were at Walmart. After they arrived back at the apartment, the Defendant put B.S. to bed while Ms. Stinnett took care of Phoenix.
Sometime later, Ms. Stinnett left the apartment to go to Kroger, Dollar General, and Western Union. When she returned, Mr. Stinnett was standing outside the apartment on the phone saying, "the baby's not breathing." When Ms. Stinnett went inside the apartment she found the Defendant walking out of Ms. Stinnett's and his bedroom with B.S. in his arms. B.S. looked "limp, " and Ms. Stinnett took her from the Defendant and undressed B.S. Ms. Stinnett called her mom and then went outside with B.S. and told the apartment complex security guard she needed help. The security guard told her to go back inside her apartment, and Ms. Stinnett took B.S. back inside and lay on the couch with her until the ambulance arrived. Ms. Stinnett stated that before she could notify the security guard of her need for help, the Defendant left the apartment to avoid detection since he was not allowed on the premises.
Ms. Stinnett said that ambulance technicians would not let her ride in the ambulance, so she rode with her mom and Phoenix to the hospital. At the hospital, Ms. Stinnett was not allowed to see B.S., and doctors also examined Phoenix. Detectives asked Ms. Stinnett for permission to search her house, which she granted them, and then she spoke with the detectives. Ms. Stinnett agreed that she did not tell them the truth about what happened at first. She later gave another statement to detectives.
While at the hospital, Ms. Stinnett sent text messages to Mr. Stinnett about a safe in her apartment that she thought might contain a gun. She denied that there were drugs in the house but said that she, the Defendant, and Mr. Stinnett sometimes snorted Suboxone and got high from it.
About B.S.'s care, Ms. Stinnett testified that the Defendant was the one who usually fed, clothed, dressed, and put B.S. to sleep. Ms. Stinnett agreed that she was not involved with B.S.'s care and that she let the Defendant take care of B.S. because Ms. Stinnett did not think he would harm the baby. She said that Mr. Stinnett would take care of B.S. for short periods of time but that the Defendant spent the most time with B.S.
Ms. Stinnett stated that she lied to the police because she was scared and did not want the Defendant to get in trouble. Ms. Stinnett agreed that she was arrested in this ...