Opinion
No. COA10-252
Filed 7 December 2010 This case not for publication
Appeal by Defendant from judgment entered 7 August 2009 by Judge Jack W. Jenkins in Onslow County Superior Court. Heard in the Court of Appeals 16 September 2010.
Attorney General Roy Cooper, by Assistant Attorney General K. D. Sturgis, for the State. Richard E. Jester for Defendant.
Onslow County No. 07 CRS 58179.
Facts
On 10 July 2009, Defendant Hassan Anthony Saeidifar was indicted on one count of first degree murder and one count of felony child abuse causing serious bodily injury. Defendant was tried before a jury at the 27 July 2009 term of Criminal Superior Court for Onslow County, the Honorable Jack W. Jenkins presiding.
The evidence at trial tended to show the following: In late August 2007, Defendant and his wife, both of whom were active duty Marines, lived in Jacksonville, North Carolina with their three-month-old son Charles, the victim in this case. Defendant's sister, accompanied by her young daughter, had been staying with Defendant since mid-August and assisting with the care of Charles.
Charles is a pseudonym.
On the night of 23 August 2007, Defendant's sister and her daughter slept in the same room as Charles; Defendant's sister went to sleep around 3:00 a.m. Around 7:00 a.m. on 24 August 2007, Defendant's wife left for work. Shortly thereafter, Defendant's sister was awakened by Charles' crying. Defendant's sister fed Charles, placed him in a car seat on the couch in the living room, and went back to sleep until shortly before 2:00 p.m.
Defendant awoke around 8:30 a.m. and, after observing Charles awake in the living room chewing on his hand, showered and left the home to run errands. Defendant returned home to shave and then left again, this time with Charles, around 9:30 a.m. While running his errands with Charles, Defendant stopped by his office at Marine Corps Air Station Cherry Point to show Charles to his commanding officers. Defendant's Master Sergeant took Charles to see other officers, but returned Charles to Defendant after about five minutes. Defendant testified that at some point during the morning, while Defendant was driving and Charles was crying in the backseat, Defendant reached back to give Charles his pacifier, but in doing so scratched Charles' lip.
Defendant returned home with Charles around 2:00 that afternoon. When the two arrived home, Defendant's sister observed that Charles was fussy. Defendant's sister played with Charles for a few minutes before Defendant took Charles and put him to bed. After hearing Charles crying from the bedroom, Defendant's sister picked Charles up and carried him out to the living room. At that point, Defendant's sister observed Charles being somewhat fussy. Defendant's sister also noticed a cut on Charles' lip. After Defendant's sister cleaned the blood from Charles' lip, Defendant took Charles from his sister, tried to comfort him, and then put Charles back in the bedroom.
When Defendant heard Charles crying in the bedroom, Defendant went into the bedroom. Defendant's sister followed and observed Defendant wiping Charles' mouth, at which point Defendant explained to his sister that he had scratched Charles' mouth earlier that morning. Defendant and his sister then left the bedroom.
While the two were out in the living room, Defendant cleaning the kitchen and his sister talking on the phone, they again heard Charles cry. Defendant went into the bedroom to check on Charles and when Defendant came out of the bedroom with Charles in his arms, Defendant told his sister that "something is wrong with my baby." Defendant's sister attempted to resuscitate Charles and told Defendant to call 911.
Firefighters arrived first at Defendant's home and attempted to resuscitate Charles. When paramedics arrived shortly thereafter, they found Charles in full cardiac arrest, pale and cool to the touch. A firefighter reported that he noticed a bruise on Charles' lip and a paramedic reported a "very large, swollen bruised lip." The paramedics detected no pulse from Charles and after several unsuccessful attempts to revive Charles, they gave him epinephrine and eventually elevated his heart rate.
After Charles' heart rate was sufficiently elevated, he was transported by ambulance to a hospital in Jacksonville, and then ultimately to Pitt County Memorial Hospital in Greenville, North Carolina. Doctors determined that Charles had not breathed or had a heartbeat on his own from at least 3:55 until 4:33 p.m. on 24 August 2007. For several days Charles was kept alive on a ventilator until he was pronounced brain dead and removed from life support on 29 August 2007.
The autopsy conducted after Charles' death revealed a prior fractured rib and a prior subdural hematoma, neither of which were the causes of death. Ultimately, the pathologist concluded that the cause of Charles' death was a closed head injury caused by blunt force trauma. This conclusion was based on bleeding and swelling in the brain, along with fresh retinal hemorrhages in Charles' eyes, swelling and bleeding on the undersurface of the scalp, a contusion and abrasion behind Charles' ear, a scrape on his forehead, and the bruising and swelling on his lip. The pathologist who performed the autopsy testified at trial that the subdural hematomas and retinal hemorrhaging were not the type of injuries that could be self-inflicted by a child Charles' age.
Following the presentation of evidence, Defendant moved the court to dismiss the charges based on insufficient evidence. The court denied Defendant's motion and instructed the jury on first-and second-degree murder, involuntary manslaughter, and intentional child abuse inflicting serious bodily injury. On 7 August 2009, after the jury returned verdicts of not guilty of intentional child abuse inflicting serious bodily injury and guilty of involuntary manslaughter, the trial court sentenced Defendant to 16 to 20 months imprisonment. Defendant appeals.
Discussion I. Denial of Defendant's motion to dismiss
Defendant first argues that the trial court erred by denying his motion to dismiss on the ground that the evidence was insufficient to support the conclusion that Defendant caused Charles' injuries.
When a defendant moves for dismissal, the trial court is to determine only whether there is substantial evidence of each essential element of the offense charged and of defendant being the perpetrator of the offense. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). "Any contradictions or discrepancies [in the evidence] are to be resolved in favor of the State and do not warrant dismissal." State v. Daye, 83 N.C. App. 444, 446-47, 350 S.E.2d 514, 516 (1986). Further, the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). As applicable to this case, "[w]here an adult has exclusive custody of a child for a period of time and during such time the child suffers injuries which are neither self-inflicted nor accidental, the evidence is sufficient to create an inference that the adult inflicted an injury." State v. Perdue, 320 N.C. 51, 63, 357 S.E.2d 345, 353 (1987).
Defendant's sole argument is that the evidence was not sufficient to support an inference that Defendant inflicted Charles' injuries. As Defendant does not dispute that Charles' injuries were neither self-inflicted nor accidental, Defendant's only challenge to the sufficiency of the evidence rests on whether Defendant had exclusive custody of Charles during the time Charles suffered his injuries. See id.
At trial, pediatrician Dr. Kathleen Previll and pathologist Dr. M.G.F. Gilliland, both medical experts called by the State to testify as to the injuries sustained by Charles, testified to apparently inconsistent estimates of the period of time during which Charles was injured. Dr. Gilliland testified that on Charles' death certificate, he noted the probable time of injury as approximately noon to 1:00 p.m. on 24 August 2007, "plus or minus an hour or so on each side." Dr. Gilliland further testified that the time stated on the death certificate was the "narrowest part of the window," but that Charles was not injured "until after about 9:00 in the morning." Dr. Gilliland posited that "[b]y the time the child was seen to be somewhat fussy, and he was being put down for a nap, [Charles] probably was already injured." Defendant's sister's testimony tended to show that Charles was fussy immediately before he was put down for a nap around 2:00 p.m. that day. Therefore, the period during which Charles was injured, according to Dr. Gilliland, was between approximately 9:00 a.m. and 2:00 p.m. on 24 August 2007.
Dr. Previll, however, testified that Charles' injury could have occurred anywhere between the time of his evening feeding on 23 August 2007 and the time when he stopped breathing at 3:30 p.m. on 24 August 2007. Dr. Previll later extended this window, testifying that Charles could have sustained his injuries any time in the twenty-four hours before he stopped breathing.
Defendant argues that because Charles was not in Defendant's sole custody for the entire period described by Dr. Previll, the evidence did not support the inference that Defendant inflicted Charles' injuries. Although Defendant may be correct that Charles was not in Defendant's exclusive custody during the entire period of time estimated by Dr. Previll in which Charles may have been injured, Charles was in Defendant's nearly exclusive custody during the entire period of time estimated by Dr. Gilliland. Defendant testified that he left his home with Charles around 9:30 a.m. and did not return until shortly before 2:00 p.m. Except for five minutes during this time period when Defendant's Master Sergeant was showing Charles around Defendant's office, Charles was in Defendant's exclusive custody. Accordingly, while the inference that Defendant inflicted Charles' injuries is not supported by Dr. Previll's estimate of the period during which Charles was injured, that inference is supported by Dr. Gilliland's estimate of when Charles was likely injured. See Perdue, 320 N.C. at 63, 357 S.E.2d at 353.
As noted supra, in reviewing a defendant's motion to dismiss, the evidence is to be considered in the light most favorable to the State, Powell, 299 N.C. at 99, 261 S.E.2d at 117, and any contradictions or discrepancies are to be resolved in favor of the State. Daye, 83 N.C. App. at 446-47, 350 S.E.2d at 516. Because Dr. Gilliland's estimate of the period of time during which Charles was injured supports the inference that Defendant inflicted Charles' injury, and because Dr. Previll's estimate does not, it is clear that the period of time estimated by Dr. Gilliland is more favorable to the State. Accordingly, resolving this contradiction in favor of the State, i.e., considering the injury period to be between 9:00 a.m. and 2:00 p.m. on 24 August 2007, we conclude that the evidence tending to show that Defendant had nearly exclusive custody of Charles during the period in which Charles was injured was sufficient to support the inference that Defendant inflicted Charles' injuries.
We further conclude that this inference, when considered with Dr. Gilliland's opinion that the cause of death was a closed head injury caused by blunt force trauma, Dr. Gilliland's and Dr. Previll's opinions that Charles' injuries were not self-inflicted, Defendant's admission that he scratched Charles' face, and Defendant's sister's testimony that Charles' face was bloody when she first held him around 2:00 p.m., is sufficient and substantial evidence of each element of the offense with which Defendant was charged and that Defendant was the perpetrator of the offense. Accordingly, the trial court did not err in denying Defendant's motion to dismiss. Defendant's argument is overruled.
II. Exclusion of Defendant's expert's testimony
Defendant next argues that the trial court erroneously excluded testimony by Dr. Stanton Kessler, who was called by Defendant to testify as an expert pathologist.
Prior to trial, pursuant to N.C. Gen. Stat. § 15A-905, the State served a discovery motion for Defendant to disclose the names of expert witnesses and to produce a report of each expert's opinion. Section 15A-905(c)(2) provides that the trial court, upon motion of the State, must order the defendant to:
Give notice to the State of any expert witnesses that the defendant reasonably expects to call as a witness at trial. Each such witness shall prepare, and the defendant shall furnish to the State, a report of the results of the examinations or tests conducted by the expert. The defendant shall also furnish to the State the expert's curriculum vitae, the expert's opinion, and the underlying basis for that opinion. The defendant shall give the notice and furnish the materials required by this subdivision within a reasonable time prior to trial, as specified by the court.
N.C. Gen. Stat. § 15A-905(c)(2) (2009) (emphasis added). Pursuant to the State's motion, Defendant supplied the State with Dr. Kessler's report.
At trial, during the direct testimony of Dr. Kessler, the State objected to Dr. Kessler's testimony that tuberculosis was a possible cause of death based on the medical records of Charles' mother. During voir dire of Dr. Kessler, the State objected to the testimony on grounds that Dr. Kessler's opinion that tuberculosis was a possible cause of death was not stated in Dr. Kessler's report and that the underlying basis for that opinion — Charles' mother's medical records — were not properly served in discovery in violation of section 15A-905. Defense counsel asserted that "it's my understanding that we did send [the mother's records] to the D.A.'s office and then they sent us a copy of the same records back to our office, which we already have." The State countered that Charles' mother's records were never received. Defense counsel offered no additional argument or evidence to suggest that the State had received the records.
After hearing arguments on the issue, the trial court exercised its discretion to exclude the "one or two statements by [Dr. Kessler] regarding positive [tuberculosis] tests and the possibility it could be [tuberculosis], and the possibility it could have something to do with brain injury or death[.]"
On appeal, Defendant first argues that Charles' mother's records were properly served on the State such that exclusion of Dr. Kessler's opinion was improper. However, Defendant's only support for this argument is trial counsel's assertion that "we did send [the mother's records] to the D.A.'s office and then they sent us a copy of the same records back" and the prosecutor's response that "the records I sent was [sic] from when the child was born." Defendant contends that this exchange proves that "the information the State claimed it did not have, it returned to [Defendant's] counsel."
Far from proving that the State received Charles' mother's records, the above exchange merely illustrates the fact that Defendant claims to have given Charles' mother's records to the State while the State claims to have received and returned only Charles' birth records. Accordingly, armed only with this "he said, she said" exchange from the transcript and Defendant's barely comprehensible argument that the State somehow conceded the issue before the trial court, we cannot conclude that the trial court abused its discretion in precluding Dr. Kessler from testifying as to his opinion that tuberculosis was a possible cause of Charles' death.
Defendant's next argument cites various cases for the proposition that abuse of discovery procedures by the State often merits no sanction, or some sanction less than exclusion of evidence. See, e.g., State v. McClintick, 315 N.C. 649, 340 S.E.2d 41 (1986); State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988); State v. Hall, 93 N.C. App. 236, 377 S.E.2d 280, disc. rev. denied, 324 N.C. 579, 381 S.E.2d 777 (1989). Defendant contends that by excluding Dr. Kessler's testimony, rather than recessing the trial to give the State time to respond or simply allowing Dr. Kessler to testify, the trial court placed an unfair burden on Defendant.
However, as discussed in each case cited by Defendant, section 15A-910, which governs failure to comply with discovery procedures in a criminal action, provides that where the trial court determines that "a party has failed to comply with this Article[, including section 15A-905,] . . . the court in addition to exercising its contempt powers may . . . [p]rohibit the party from introducing evidence not disclosed[.]" N.C. Gen. Stat. § 15A-910(a) (2009). Although any sanction imposed for failure to comply with discovery procedures is permissive rather than mandatory, the application of the remedies available under section 15A-910 is entirely within the sound discretion of the trial court. See, e.g., State v. King, 311 N.C. 603, 619, 320 S.E.2d 1, 11 (1984). Because Defendant presents no evidence to support his argument that the trial court abused its discretion, or placed an unfair burden on Defendant, we must conclude that the trial court's decision to preclude certain testimony of Dr. Kessler was not an abuse of the court's sound discretion. Accordingly, Defendant's argument is overruled.
III. Denial of Defendant's motion for a mistrial
Finally, Defendant argues that the trial court erred by failing to declare a mistrial after the court learned that "a juror attempted to improperly influence other jurors."
The incident in question was brought to the court's attention by a deputy assigned to provide security for the courtroom. During a break in the proceedings, the deputy informed the trial judge that juror eight reported to the deputy that juror eight had made a slashing gesture with his hand flat across his throat. The trial judge then called the deputy to the stand to testify as to his conversation with juror eight.
The deputy testified that juror eight stopped the deputy outside the courtroom, told the deputy about the gesture, and then apologized for the action. The deputy also testified that another juror had overheard the conversation between the deputy and juror eight and had said to juror eight, "You're just going to get yourself in trouble."
Following questioning of the deputy, the court called juror eight to the stand and questioned him about the gesture. Juror eight stated that he made the gesture during a scheduling conference with the judge while both attorneys were at the bench. Juror eight asserted that there was no evidence being presented at the time and that the gesture was intended only to indicate that he was tired from work the night before, and not to indicate any opinion as to the evidence or the parties.
Following the questioning of juror eight, and with the consent of the parties, the court discharged juror eight and forbade him from having any further discussions with the remaining jurors. The court replaced juror eight with an alternate juror.
The court then inquired of three other jurors identified by juror eight as having seen the gesture as to whether they indeed had seen the gesture. Two of these jurors said they had seen the gesture, and one said she had not seen it, but had heard about it after the fact. The court then called the entire jury in and asked them the following questions: (1) "[H]ave any of you been talking about this case among yourselves or with others?" (2) "Have any of you seen or heard anything outside the evidence presented and matters addressed by the court on the record that has had any impact on your ability to be fair and impartial in this case?" (3) "[I]s there any reason any of you think you cannot be fair and impartial in this case at this time?" The jurors answered each of these questions in the negative.
Before the court dismissed the jurors, the court repeated to the jury its general instructions on not discussing the case among themselves or with anyone else and on not forming or expressing an opinion on the case until directed to do so by the court. Once the jury left the courtroom, Defendant moved the court to declare a mistrial. After hearing arguments on the motion, the trial court stated as follows:
[I]n the court's discretion, the court does not find that there has been substantial and/or irreparable prejudice to the [D]efendant's case, that the standards imposed by the general statutes in 15A-1061, as has been interpreted by the appellate courts, and also any other standards applicable to motions of this nature inherent in the law, the court does not believe that this rises to the level of justifying a mistrial; and, therefore, in the court's discretion, the court is going to deny the [D]efendant's motion for a mistrial.
On appeal, Defendant argues that his constitutional right to an impartial and competent jury "was violated by the [t]rial [c]ourt's failure to sua sponte declare a mistrial in this case[.]" We note that, at trial, Defendant argued a statutory basis — N.C. Gen. Stat. § 15A-1061 — rather than a constitutional basis for his motion for a mistrial. Although we decline to address Defendant's constitutional question as it was not raised and passed upon in the court below, State v. Fuller, 166 N.C. App. 548, 555, 603 S.E.2d 569, 575 (2004), we will address the merits of Defendant's argument for a mistrial under section 15A-1061.
Mistrials based on prejudice to a defendant are governed by N.C. Gen. Stat. § 15A-1061, which provides as follows:
Upon motion of a defendant or with his concurrence the judge may declare a mistrial at any time during the trial. The judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.
N.C. Gen. Stat. § 15A-1061 (2009).
A trial court's ruling on a motion for mistrial is not reviewable on appeal absent the appearance of a manifest abuse of discretion. See, e.g., State v. Bailey, 97 N.C. App. 472, 477, 389 S.E.2d 131, 134 (1990).
In an appropriate exercise of its discretion, following the discovery of juror eight's misconduct, the trial court here took swift action by discharging juror eight and examining the remaining jurors as to their continuing ability to decide the case fairly and impartially. Cf. State v. Lippard, 152 N.C. App. 564, 574-75, 568 S.E.2d 657, 663-64 (finding no abuse of discretion where, after learning of improper conduct, trial court discharged the offending juror, questioned the remaining jurors as to their impartiality, and found that there was no evidence to support defendant's allegation of prejudice), appeal dismissed, disc. rev. denied, cert. denied, 356 N.C. 441, 573 S.E.2d 159 (2002). Based on its consideration of all the circumstances surrounding the gesture and its effect on the jury, the trial court then made its reasoned and rational decision based on the lack of evidence of any prejudice to Defendant. Because "[t]he trial judge is in a better position to investigate any allegations of misconduct, question witnesses and observe their demeanor, and make appropriate findings[,]" State v. Harris, 145 N.C. App. 570, 576, 551 S.E.2d 499, 503 (2001) (quoting State v. Drake, 31 N.C. App. 187, 190, 229 S.E.2d 51, 54 (1976)), disc rev. denied, appeal dismissed, 355 N.C. 218, 560 S.E.2d 146 (2002), we cannot conclude, based on the record before this Court, that the trial court abused its discretion in denying Defendant's motion for a mistrial.
Nevertheless, Defendant argues that because a juror admitted to hearing about the gesture after the fact, it is clear that the jurors were discussing the case and that the jurors indicated the contrary to the judge only because "they recognized they could be in trouble and they avoided that trouble by saying what the Judge wanted to hear." In response to a similar argument by defense counsel, the trial court stated for the record that "the court gave the jurors a fairly extensive period of time to basically make eye contact with the court, to indicate their answer[.]" As noted above, the trial judge is in the best position to investigate misconduct and question witnesses and observe their demeanor. Harris, 145 N.C. App. at 576, 551 S.E.2d at 503. We further note that it is not implausible that a juror could hear about a situation without actually discussing that situation with another juror. Although we understand the concerns raised by Defendant, in light of the trial court's thoughtful conclusion that there was no evidence of unfair prejudice, a conclusion which was based on a prompt and thorough investigation of juror eight's conduct, we cannot conclude that the single fact that one juror heard about juror eight's gesture, but denied discussing the case, could somehow result in substantial or irreparable prejudice to Defendant's case.
Accordingly, we hold that the trial court did not abuse its discretion in denying Defendant's motion for a mistrial. Defendant's argument is overruled.
Defendant received a fair trial, free from error.
NO ERROR.
Judges ELMORE and JACKSON concur.
Report per Rule 30(e).