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State v. Batiz

Court of Criminal Appeals of Tennessee, Nashville

November 1, 2019

STATE OF TENNESSEE
v.
KYLE ALEX BATIZ

          Session November 15, 2018

          Appeal from the Circuit Court for Montgomery County No. 63CC1-2014-CR-817 William R. Goodman, III, Judge.

         The Defendant, Kyle Alex Batiz, was convicted of aggravated child abuse and reckless homicide and was sentenced, respectively, to concurrent sentences of 21 years at 100% and 3 years at 30 percent. On appeal, he argues that the evidence was insufficient to sustain the conviction for aggravated child abuse; the trial court erred by not suppressing his text messages and statement to police; the trial court erred by allowing a forensic pathologist to testify regarding matters not within her expertise; he should have been sentenced as an especially mitigated offender; and the conviction for aggravated child abuse should be reversed because of cumulative errors that occurred during the trial. We have reviewed the record in this matter and conclude that the issues raised by the Defendant are without merit. Accordingly, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

          Kevin McGee, Nashville, Tennessee, and William D. Massey, Memphis, Tennessee, for the appellant, Kyle Alex Batiz.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Kimberly Lund, Assistant District Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams, P.J., and Norma McGee Ogle, J., joined.

          OPINION

          ALAN E. GLENN, JUDGE.

         FACTS

         On May 15, 2014, while in the sole care of the Defendant, her stepfather, the one-year-old victim was fatally injured. The Defendant called 911 and ultimately was charged with the death of the victim. According to the Defendant, the injuries resulted from the victim's falling from a two-foot ottoman onto a toy. The State's witnesses testified that the injuries to the victim were so devastating that they could not have resulted from such a fall. We will set out the proof in this matter.

         Suppression Hearing

         The trial court heard the Defendant's motions to suppress on February 10, 2016. The Defendant sought to suppress his statements made to police and text messages obtained from his phone. He asserted these statements were elicited in violation of the Fourth and Fifth Amendments, and the text messages were obtained in violation of the Fourth Amendment.

         Officer Arthur Bing, a patrol officer with the Clarksville Police Department ("CPD"), testified at the hearing that his supervisor called him to the Defendant's apartment on May 16, 2014, because there was "an individual who needed transportation voluntarily down to a different office, at Special Operations." Officer Bing affirmed that the Defendant was not restrained "in any way" when he arrived at the apartment, and it was Officer Bing's understanding that "this individual was not in police custody[.]" Officer Bing transported the Defendant to the Special Operations Unit ("SOU") office, and the Defendant rode unrestrained in the backseat because Officer Bing "ha[d] two loaded weapons as part of [his] patrol unit[, ]" and not allowing individuals to ride in the front seat "keeps people from getting access to those." As a matter of general practice, Officer Bing kept the Defendant's "wallet, phone, and a vaporizer" in the front seat of the patrol car during the trip to the SOU. Officer Bing explained that whenever he transports an individual, he "collect[s] their personal belongings and hold[s] them until [they] get to the location, and then [he] will give them back to them[, ] and they agree to it." The Defendant's personal items were not placed in an evidence envelope. He stated that he normally placed personal items "on [his] front patrol bag . . . right on top of there . . . in the passenger seat area."

         When Officer Bing and the Defendant arrived at the SOU, the building had closed for the day. Detective Michael Ulrey had to open the building because Officer Bing did not have a key. Officer Bing "had to open the door [of the patrol car] for [the Defendant]" because there were no handles on the inside of the backseat. Officer Bing walked behind the Defendant into the SOU, without touching him or placing him in restraints. Detective Ulrey took the Defendant to an interview room, and Officer Bing waited at the SOU because the Defendant "would need a ride back to his home" and affirmed that he was "sort of like a chauffeur[.]" On cross-examination, Officer Bing explained that a key was not needed to exit the SOU building. He affirmed that a person in the backseat of a patrol vehicle could not exit the vehicle unless someone opened the backseat door from the outside. Officer Bing agreed that the Defendant had voluntarily gone to the SOU and voluntarily walked from Officer Bing's patrol car into the building.

         Detective Ulrey testified that he worked as a death investigator in the CPD's SOU division. He was assigned to investigate the victim's death and arrived at the Defendant's apartment shortly after the victim was transported to the hospital. He encountered the Defendant inside the apartment and described the Defendant's demeanor as "visibly upset" but "very cooperative." Detective Ulrey explained that the Defendant "answered all [his] questions" and "agreed to assist [Detective Ulrey] in . . . anything that [he] thought needed to happen." The Defendant signed a consent form for Detective Ulrey to bring in a team to search and process the apartment. Detective Ulrey explained to the Defendant that he would need to "come back to [Detective Ulrey's] office to sit down so [Detective Ulrey] could take a formal statement[.]" The Defendant agreed to do so without hesitation. When asked why Detective Ulrey did not take the Defendant's statement in the apartment, he explained that the team processing the apartment was "very meticulous on what they do[, ] and his apartment was going to get crowded[, ] and it's standard practice when documenting statements from people[] for [police] to take them back to our office." He further explained that his office had audio/video recording capabilities, unlike the Defendant's apartment.

         Detective Ulrey affirmed that the Defendant was not in custody while he was in Officer Bing's patrol car, and he even told other officers that the Defendant "was going down voluntarily." Detective Ulrey affirmed that "there had been no decision at that point to arrest [the Defendant.]" While driving from the Defendant's apartment to the SOU, Detective Ulrey received a phone call from Detective Ewing, who was at the hospital with the victim. Detective Ewing "explained to [Detective Ulrey] the bruising and placements of the bruising on [the victim]'s body."

         Upon arriving at the SOU, Detective Ulrey had to let Officer Bing and the Defendant into the building because it was locked. Detective Ulrey explained that during business hours, the SOU has a receptionist who controls "traffic coming in and out [] via the front door into the lobby[, ]" and he affirmed that "people can come into [the SOU] lobby from the outside" during business hours. However, the receptionist always locked the exterior door when she left at the end of the work day, and if "investigators have someone coming in, [they] are responsible for meeting them and bringing them to the door." Officer Ulrey agreed that a key was not needed to exit the SOU when the doors were locked. The Defendant was led to an interview room with two unlocked doors and remained unrestrained and not in custody. Detective Ulrey affirmed that if "you are in the [interview] room and the doors are unlocked," there is nothing "keeping you from opening the door and going out[.]" The Defendant "never asked to leave" and did not "express any reservation about going into that [interview] room and talking to [Detective Ulrey.]" The interview was both audio and video recorded.

         Upon entering the interview room, Detective Ulrey explained to the Defendant the requisite forms that needed to be addressed, specifically the interview sheet, the Miranda waiver, and the Sudden Unexplained Infant Death Investigation ("SUIDI") form. Detective Ulrey filled out the interview sheet with the Defendant, which is filled out "in all cases" and "documents who [police] are talking to and just general information about" that person. Although the Defendant was not in custody and Detective Ulrey had not made the decision to arrest him, Detective Ulrey read the Defendant his Miranda rights because "there were enough questions with this case[] that I was afraid [the Defendant] may make some incriminating statement to me during our conversation[, ] and I wanted him to fully understand his rights that were reduced to writing." After Detective Ulrey explained his Miranda rights to the Defendant, the following exchange occurred:

[The Defendant]: . . . [i]s there anyway way I could-'cuz my-my dad's, uh, girlfriend is a lawyer; is there any way I-I'd be able to talk to her first?
Detective Ulrey: Before you talk to me at all?
[The Defendant]: . . . [A]bout anything.
Detective Ulrey: . . . [If] you are asking to talk to an attorney, that is absolutely shutting me down.
[The Defendant]: Okay. Then no-
Detective Ulrey: That-
[The Defendant]: No.
Detective Ulrey: . . . I'm just-I want you to understand I'm trying to figure out what happened.
[The Defendant]: Okay.
Detective Ulrey: If you are telling me that you want to talk-you-you understand your rights; if you're telling me you wanna [sic] talk to an attorney before you talk to me, then I can't talk to you anymore.
[The Defendant]: Okay.
Detective Ulrey: Okay. Um . . .
[The Defendant]: I don't have any problem-
Detective Ulrey: But it-
[The Defendant]: I don't have a problem with you talking to me.
Detective Ulrey: Okay. All right.
[The Defendant]: I don't.
Detective Ulrey: I just don't-wanna [sic] make that clear.
[The Defendant]: Okay.
Detective Ulrey: All right. All right. Um if you would, just sign here.
[The Defendant]: Okay.

         Based on this exchange, Detective Ulrey did not believe that the Defendant was asking for an attorney. If the Defendant had, Detective Ulrey testified that he would have "shut down the interview and walked out." After this exchange, Detective Ulrey started going over the SUIDI form, which "is a standard form given to [police] by the State [that] . . . the medical examiner uses . . . in their investigation, during the autopsy." Detective Ulrey acknowledged that the Defendant did not finish filling out the SUIDI form but explained that Ms. Denny, as the victim's primary caretaker, completed a SUIDI form with Detective Ewing.

         The Defendant was given water and a restroom break during the interview at the SOU. Detective Ulrey walked the Defendant to the restroom because it was "a secure area . . . they require us to just escort [the public] at least to the bathroom." He did not enter the restroom with the Defendant but waited outside. Detective Ulrey agreed that he "had a fair amount of information about the death of the [victim]" even prior to the Defendant's restroom break, and Detective Ulrey did not "think there had been any other adults present" at the Defendant's apartment based on the information he had. After Detective Ulrey walked the Defendant back to the interview room, he went and spoke with Detective Ewing, who had just returned to the SOU from the hospital. Detective Ewing showed Detective Ulrey photographs of the victim at the hospital, including the bruising on her body. Detective Ulrey returned to the interview room after speaking with Detective Ewing. The Defendant "was still being very cooperative, so . . . we just still had [a] conversation during the course of the investigation."

         Detective Ulrey affirmed that "at some point" during the interview, the Defendant explained that he had sent Ms. Denny test messages "to explain what had happened." The Defendant gave his consent for Detective Ulrey to look at the text messages on his cell phone, and the Defendant "even gave [Detective Ulrey] his unlock code for the phone." Detective Ulrey stated that he was also able to view the text messages on Ms. Denny's cell phone.

         After speaking with the Defendant, Detective Ulrey "made the decision that [he] had enough probable cause to arrest [the Defendant.]" Detective Ulrey stated that he made the decision to arrest the Defendant after he "demonstrated striking his child and the force that he hit [the interview room] table and then also the way he described squeezing his child and the relevance of the bruises . . . from his hands onto that child[.]" Detective Ulrey testified that the entire length of his interview with the Defendant was "maybe an hour, an hour and a half," including the restroom break and the discussion about the Miranda waiver and other forms. Following the interview, Detective Ulrey spoke with the Defendant's wife, Rebecca Denny, who had been speaking with Detective Ewing. Detective Ulrey allowed Ms. Denny to go into the interview room to speak with the Defendant.

         On cross-examination, Detective Ulrey affirmed that when he arrived at the Defendant's apartment, he did not have "reasonable suspicion to detain" the Defendant and "would have had no reason to stop him" if he decided to leave his apartment. Detective Ulrey acknowledged that he was carrying his weapon and that the Defendant knew that he was an investigator when the Defendant agreed to go to the SOU to give a statement. He also thought that the Defendant learned of the victim's death before Detective Ulrey arrived at his apartment. Detective Ulrey testified that after receiving the call from Detective Ewing regarding the victim's bruises, he had "reasonable suspicion to detain [the Defendant, ]" and the Defendant was therefore not free to leave during the minutes between the Defendant sitting in the interview room alone and the start of the interview. Detective Ulrey rejected the assertion that he interviewed the Defendant "with the intention of getting a confession[.]"

         Regarding the discussion about the Miranda waiver, Detective Ulrey testified on cross-examination that he "wanted to clarify whether [the Defendant] was actually asking for an attorney" after the Defendant mentioned his father's girlfriend. He further explained that "as [he] was trying to clarify with [the Defendant], [the Defendant] actually interrupt[ed] [Detective Ulrey] and sa[id] no, no, no, I want to continue." Detective Ulrey testified that after hearing the Defendant's first explanation of what had happened, he did not believe the Defendant's assertion that the bruising on the victim's body had occurred when she fell on her toys, and he agreed that he did not have probable cause to arrest the Defendant at that point. The decision that there was probable cause to arrest the Defendant came from "a conglomeration" of the Defendant "slam[ing] [the interview room] table demonstrating he hit her or hitting [her] twice in the abdomen," or when the Defendant "did some type of crazy Heimlich maneuver by compressing her insides or when we figured out that bruis[es] on her back were consistent with where his fingers would be while he was squeezing her." Detective Ulrey reiterated that he did not believe that the Defendant was asking for a lawyer.

         Following the suppression hearing, the trial court denied the Defendant's motions to suppress. The trial court found that police placing the Defendant in the backseat of Officer Bing's patrol car constituted a detention. However, the trial court went on to explain it was "appropriate that there be a brief investigatory detention, which would be supported by reasonable suspicion[, ]" given that "the Defendant was the only other individual present in the apartment at the time that the [victim] sustained a fatal injury." The trial court further found that even if the detention was not justified, "the taint of the unlawful seizure had been sufficiently attenuated from the subsequent voluntary consent of the Defendant." The trial court additionally noted that Ms. Denny had also given consent to search the apartment. With respect to the Miranda waiver, the trial court reviewed the exchange between Detective Ulrey and the Defendant and found that the Defendant's signing the Miranda waiver form "serve[d] as a knowing voluntar[]y waiver of the Defendant's right to counsel for purposes of the interview."

         Trial

         Shane Givens, Deputy Director of Montgomery County 911, testified that two 911 telephone calls were received on May 15, 2014, from the address where the Defendant and the victim were located. A recording of these telephone calls was played for the jury.

         Marjorie Crist testified that she was a paramedic employed by Montgomery County Emergency Medical Services. On May 15, 2014, she responded to a "CPR in Progress" call at the address where the victim and the Defendant were located. At the scene, she observed a "one-year-old female on the floor with a male subject doing CPR on her." Paramedic Crist immediately picked up the victim and began chest compressions while carrying her to the ambulance. The victim did not have a pulse and was "very pail [sic]" with "dark bruising on her abdomen." Paramedic Crist continued to try to resuscitate the victim during transport to the hospital, but she was not breathing and did not have "any sort of electrical activity."

         Richard McKee testified that he was employed by Clarksville Fire and Rescue and had responded to the call regarding the victim. The rescue truck he was riding in arrived after the police officers and the ambulance. He stated that "[e]verybody was just getting supplies to the upstairs" when he arrived. Upon seeing Paramedic Crist carrying the victim to the ambulance, Mr. McKee followed her to the ambulance and eventually took over chest compressions. He noticed that the victim did not have a pulse and had bruising on "the top of her forehead and her torso."

         CPD Officer Michael Hackney testified that he and his partner answered a call to the Defendant's apartment on May 15, 2014. After the Defendant answered Officer Hackney's knock on the door, he followed the Defendant into a bedroom, where he saw the Defendant performing CPR on the victim. The victim was not breathing, and she "was pale, almost a yellowish jaundice color. [S]he had thrown up[, ] and it was still on her face." The Defendant was performing "very fast and very shallow" CPR, like "he wasn't really doing anything for the child." Officer Hackney observed multiple bruises on the victim's chest and abdomen. After Paramedic Crist carried the victim to the ambulance, Officer Hackney began "to log everyone that came" to the scene.

         At the apartment, the Defendant told Officer Hackney that the victim had fallen off an ottoman and hit her head on some toys, despite the Defendant's "grabb[ing] her by the ankle" as she fell. The Defendant said he put her to bed with a bottle and soon saw that she had not drunk from it. When she subsequently vomited, he called 911. When the Defendant was told that the victim had died, he vomited and became upset, yelling profanities and tearing a towel rack from the wall. This behavior lasted "roughly ten[]minutes[.]" Officer Hackney recalled that the Defendant called his father and asked him to come to Clarksville because "something had happened." The Defendant next telephoned Ms. Denny and told her he had "failed her." The Defendant also called the hospital, which informed him that the victim had died, and his mother. At one point, Officer Hackney "had to like pull [the Defendant] off the balcony" because he was afraid that the Defendant "was going to try and jump or do something crazy."

         CPD Officer Jeffrey Derico testified that he was part of the crime scene team that was called to the Defendant's apartment on May 15, 2014. Officer Derico identified photographs that he had taken at the Defendant's apartment, including photographs of the ottoman that the Defendant said the victim fell from and the toys that were beside it. CPD Detective Scott Beaubien testified that he was also part of the crime scene team that was called to the Defendant's apartment on May 15, 2014. He collected multiple pieces of evidence from the apartment, including one of the toys that were beside the ottoman. CPD Sergeant Terry Minton testified that he was the CPD evidence department coordinator. He affirmed that the toy collected from the Defendant's apartment had remained in the evidence room from the time Detective Beaubien collected it until it was brought in to the trial court.

         Kathy Denny, the victim's grandmother and the Defendant's mother-in-law, testified that the Defendant called her on May 15, 2014. Kathy[1] said that the Defendant said, "I'm so sorry" during the call and sounded "[r]eally very calm." The Defendant told Kathy that the victim "fell off the ottoman; she hit her stomach on a toy, and [he] tried to grab her[, ] and her head hit the floor." Kathy did not know that the victim had died at the time of the telephone call.

         Dr. Rachel Root testified as an expert in emergency medicine and stated that she was an emergency room physician at the hospital where the victim was taken on May 15, 2014. The victim was not breathing and her heart had stopped when she arrived at the emergency room. Electrical activity never restarted in the victim's heart, and Dr. Root eventually decided to terminate the resuscitation efforts when "her pupils were fixed and dilated," which indicated significant brain damage, and it was clear that electrical activity was not going to restart. Dr. Root testified that the victim was pale and had numerous bruises on her chest, abdomen, back, hairline, and left temple, and her abdomen was distended. These markings were not caused by resuscitation attempts in the emergency room.

         The victim's mother, Rebecca Denny, testified that she married the Defendant when the victim was five months old. Although he seemed genuinely to care for the victim, he was stricter with her than was Ms. Denny. On May 15, 2014, Ms. Denny gave the victim a bath before leaving for work, and she testified that the victim did not have any bruises or markings at that time. Ms. Denny stated that the victim "had fallen on some [toy] blocks" earlier in the day, and the blocks left small nonvisible bumps on the victim's lower back but no bruising. The victim had also hit her head on the bathtub faucet the day before, leaving "a small bump in the center of her forehead." Ms. Denny affirmed that the victim was learning to walk and had previously "bumped her head on the wall." She also affirmed that several weeks prior, she heard the victim "grasp [sic] for air[, ] and her face went blank." The victim "bruised like a peach" but was otherwise healthy. The aforementioned markings were not visible in the victim's postmortem photographs. After giving the victim a bath, Ms. Denny arranged for a friend to drive the victim to her babysitter's house because Ms. Denny's car was not working, and the Defendant later picked the victim up from the babysitter's house.

         Ms. Denny testified that she received a text message at work from the Defendant several hours after she had arrived, stating that the Defendant "snapped on [the victim] accidentally for moving around on the ottoman and knocking over" the Defendant's electronic cigarette. He specifically told Ms. Denny that he "snapped and hit her stomach[, ] and it left a mark." Ms. Denny asked "how bad it [was, ]" and the Defendant told her it was "[n]ot bad[, ] you can just see a lil [sic] print[.]" The Defendant then sent Ms. Denny another text message, explaining that the victim's "toys were on the ground[, ] she fell right on them[.] And I had her dressed[, ] she threw up[.]" Ms. Denny asked if the victim had bruises from the incident, and the Defendant told her that the victim's "face [wa]s fine[, ]" but she had bruises on "[h]er sternum and her stomach." At this time, Ms. Denny did not leave work to return to their residence because she "didn't think [the Defendant] was capable of anything close to this."

         The Defendant thereafter called Ms. Denny and told her that the victim was not breathing and asked what he should do. Ms. Denny told him to call an ambulance, and a friend drove her back to the apartment. She arrived at their apartment as the ambulance was leaving with the victim, and Ms. Denny followed behind in "an EMT first responder truck" but did not know any details about the victim's condition. When she arrived at the hospital, hospital staff had Ms. Denny sit outside the exam room while they tried to resuscitate the victim.

         On cross-examination, Ms. Denny rejected the assertion that the victim was anemic. She explained that although anemia "was suspected when [the victim] was a newborn, [they] had her hematocrit under control." Ms. Denny explained the details of the victim's "gasping for air" several weeks earlier, stating that the Defendant "picked [the victim] up by her shoulders and patted her on the stomach[, ]" causing her to "cough really hard" and "spit up" before breathing normally again. On redirect examination, Ms. Denny affirmed that she had "minimized things" in her police statement immediately after the ...


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