Summary
holding that evidence of "battered child syndrome", based as it was on objective evidence of injuries and the idiosyncratic nature of those resulting from battering, was admissible at the trial of a mother and father accused and convicted of criminally negligent homicide in the death of their four-year-old son where the parents had contended that the child's injuries were accidental
Summary of this case from Miles v. ConwayOpinion
Argued September 19, 1973
Decided October 18, 1973
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, GEORGE R. DAVIS, J.
Paul R. Shanahan and George S. Howlett for appellants. Leo F. Hayes, District Attorney ( John A. Cirando and Patrick Connelly of counsel), for respondent.
The defendant-appellants, Charles and Marlene Henson, stand convicted, among other crimes, of criminally negligent homicide (Penal Law, § 125.10) in connection with the death in 1970 of their four-year-old son Kip. They seek a reversal on essentially two grounds: first, that the evidence fails to establish their guilt beyond a reasonable doubt and, second, that the introduction into evidence of matters concerning the defendants' alleged prior conduct toward Kip constituted reversible error.
Kip's brief and unfortunate life ended sometime before noon on Sunday, August 23, 1970. Between 11:00 and 11:30 A.M. on that day, Michael Corbett, a member of the North Syracuse Volunteer Fire Department, responded to an emergency call that a "boy had stopped breathing" at the Henson residence on Catherine Street. Upon arriving there, Corbett went into a bedroom where he found Kip lying in his bed, next to his father, who, ostensibly, was attempting mouth-to-mouth resuscitation. For about 10 or 15 minutes Corbett and his partner attempted their own resuscitative efforts — using a resuscitator to apply oxygen into the child's lungs and an aspirator to attempt to remove the "thick mucus" which had accumulated in his mouth and throat — although no "vital signs of life" were detected; he appeared, Corbett testified, to be dead. In any event, rushed by ambulance to St. Joseph Hospital in Syracuse, he was pronounced dead on arrival.
The doctor at the hospital observed that the little boy "looked quite sallow," that "his body was covered with many black and blue marks, his face was dirty" and that the bruises were "over all extremities; several on the leg, several on the arms, abdomen, chest [and] genitals." A later, detailed autopsy report confirmed these observations and, significantly, it was also determined that Kip had been suffering from "acute bilateral bronchial pneumonia" and that that sickness was the immediate cause of his death. On being informed that the child was indeed dead, Marlene exclaimed, "`Oh God, what will they do to us now.'"
In addition to Kip, the Hensons had three other children — Randy, Kim and Charles. On the day Kip died, Randy and Kim were removed by the Onondaga County Department of Social Services to foster homes where, apparently, they still are. Charles, now nine years old, has been a resident of the Rome State School for mentally retarded children since 1966.
Each of the defendants, separately taken into custody for questioning, made statements to the police. Initially, they disclosed that both parents were aware that the child was sick some days before his death. Actually, Marlene admitted that she was aware that he had been suffering from "congestion in his chest" since August 20, a full three days before he died. Despite their awareness of his condition, on August 22, they acknowledged that they went to a bar and did not return until about 3:00 A.M. of the 23rd; that they each had had about "five or six" beers; that in preparation for their evening out they had hired a 19-year-old babysitter, Dolores Klochaney, to look after their children and had actually tied Kip in his bed "by laying him on his back * * * with his hands at his sides and putting a rope around his waist and arms."
This, the Hensons said, was necessary to prevent Kip from "wander[ing]" around and from "pick[ing]" at scabs on his head.
Their statements further revealed that Mrs. Henson, after taking the babysitter home, did not return to her house until 5:00 A.M.; that, while she was gone, Mr. Henson just "stayed up," listening to the radio, although he was aware that Kip was breathing "the same, real hard"; that at about 9:30 A.M., Kip tried to say something to his mother but was "gurgling" so she could not understand him; that shortly thereafter his eyes began "rolling back in his head" and his right cheek and lips started "turning blue" and that a white foam-like liquid came from his nose. It was only at this point that the Hensons took any steps to obtain medical attention: Marlene picked up the telephone and asked the operator "to send help with some oxygen". As already indicated, when the volunteer firemen, who responded, arrived a few minutes later, Kip appeared "dead".
With respect to the bruises which literally covered the youngster's body, Mrs. Henson told the police that the infant had "been falling out of his bed" for several days preceding his death. She further stated that she had "a discipline problem" with Kip and that because of this she occasionally "slapped" him across the face, "struck" him with her husband's belt and "spanked" him with a "pingpong" paddle; that, when the paddle "disappeared," she used a "wooden cooking spoon" and, more recently, her hand.
Similarly, when confronted by the examining doctor at the hospital, she had stated that "he'd been stumbling around the house and falling into furniture".
On the basis of these statements to the police, the Hensons were arrested on the next day and, following further investigation into the matter, were charged with criminal responsibility for their child's death in a four-count indictment, manslaughter in the second degree (Penal Law, § 125.15), criminally negligent homicide (§ 125.10), endangering the welfare of a child (§ 260.10, subd. 1) and third degree assault (§ 120.00). The jury found both defendants guilty on those counts charging criminally negligent homicide and endangering the welfare of the child and, in addition, found Mrs. Henson guilty of assault. She was sentenced to an indeterminate term in prison of up to four years, and her husband was placed on probation for five years. The Appellate Division unanimously affirmed the convictions ( 41 A.D.2d 701), and the appeal is here by leave of a judge of this court.
The indictment covered the period from August 14 — the last day Kip attended the Head Start program at a local elementary school — until August 23, the date of his death.
Evidence of Guilt
Contrary to the defendants' contention that there was insufficient proof of criminally negligent homicide to justify its submission to the jury, the evidence of guilt is overwhelming.
Section 125.10 of the Penal Law recites that one "is guilty of [the crime of] criminally negligent homicide when, with criminal negligence, he causes the death of another person." Subdivision 4 of section 15.05 of the Penal Law, which defines "Criminal negligence", provides that
"A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."
Although the criminally negligent offender, the court recently pointed out in People v. Haney ( 30 N.Y.2d 328, 333), is guilty of a "culpable failure to perceive the [proscribed] risk," the reckless offender — subject to prosecution for the more serious crime of second degree manslaughter (Penal Law, § 125.15) — is guilty of "consciously disregard[ing] the risk." In the course of its opinion, the court went on to declare (p. 334):
"Criminally negligent homicide, in essence, involves the failure to perceive the risk in a situation where the offender has a legal duty of awareness. It, thus, serves to provide an offense applicable to conduct which is obviously socially undesirable. `[It proscribes] conduct which is inadvertent as to risk only because the actor is insensitive to the interests and claims of other persons in society.' (Model Penal Code, Tent. Draft No. 9, supra, at p. 53.) The Legislature, in recognizing such conduct as criminal, endeavored to stimulate people towards awareness of the potential consequences of their conduct and influence them to avoid creating undesirable risks. [Authorities cited.]"
There is no doubt that, in the case before us, the record evidence warranted the verdict that the defendants' failure to provide prompt medical care for their son reflected "a culpable failure to perceive a substantial and unjustifiable risk" of death, constituting "a gross deviation from the standard of care that a reasonable [parent] would observe". In short, there was more than ample proof that Kip was obviously, even to the untrained eye, a very sick child in the days before his death. Indeed, in addition to the defendants' own statements to the police, the testimony of Dolores Klochaney, the baby-sitter, is shockingly eloquent not alone of the little boy's grave plight but also of his parents' gross insensitivity to his welfare. Thus, on arriving at the Henson home at about 9:30 or 10:00 o'clock on the evening of August 22, she was told by the child's mother that he had had a cold that week, that he might be "pesty" and that she was "not to bother with him"; in fact, the girl testified, "she told me to ignore him if he called." Moreover, she added, the Hensons left without telling her where they were going and without leaving any telephone number at which they could be reached. Some time after their departure, Kip's condition worsened significantly; he began "breathing very hard, real hard" and a "red" substance began drooling out of his mouth. Frightened by those developments, the girl called her parents for help but, because she was so excited, hung up on them before they answered and immediately commenced applying "hot compresses" to Kip and then anxiously waited in the living room for the Hensons to return.
When they did finally arrive, Dolores, who noticed that they had been drinking, emphatically told Mrs. Henson that Kip "seemed awful sick" and went on to describe how the child had been acting. The mother, however, paid little attention and, although, on the way home, Dolores continued to try to impress upon the older woman that Kip seemed to be extremely ill, she "tried to change the subject" and "started to talk about one of the other kids".
Despite the babysitter's frightening description of Kip's condition, the record is devoid of any effort on the part of the Hensons to provide him with medical care until it was too late. In fact, the evidence justifies the conclusion that they actually exacerbated the child's condition; they admitted tying Kip on his back in bed which, quite obviously, made it even more difficult for him to cough up the mucus which for some days had been accumulating in his throat and mouth. Indeed, their daughter Kim, who was eight years old at the time of the trial, testified that her parents tied Kip in bed "almost every night" and that, on the day before her brother died, he "was in his bedroom trying to move a truck, and if he didn't move quite fast, my mother would hit him." "He was sick", Kim continued, "he couldn't move too fast, and when my mother hit him, when he tried to cry, he couldn't cry."
Bearing on all this, and adding weight to the almost irresistible inference of outrageous neglect, was the expert medical testimony adduced by the prosecution. That testimony established that Kip, on August 13, was healthy, "mentally alert" and "oriented" and that in the succeeding days — during which he was in the sole custody of his parents — "something happened that changed [him] from a normal, healthy child to a child who was susceptible to a type of illness [bronchial pneumonia] that we [do] not see in a * * * child of that age." Their testimony also indicated that, although the "terminal event" which caused his death was "acute bilateral bronchial pneumonia", the child's death was the product of all the "many fresh and recent injuries" he had suffered during the last few days of his life. And, finally, as one of the doctors stressed, the injuries suffered by Kip, even complicated, as they were, by the bronchial pneumonia, could have been treated "almost up to the last moment" of his life.
Among others who testified were Dr. Luciano Modesti, a neurosurgeon who examined Kip on August 13, the day before he returned home from the Head Start program; Dr. Martin Hilfinger, the Medical Examiner for Onondaga County who performed the autopsy on Kip; Dr. Milton Helpern, the Chief Medical Examiner for New York City, whose testimony was based, among other things, on the autopsy report; and Dr. Herbert Louri, a neurologist who had participated in the care of Kip during two previous hospitalizations at the Upstate Medical Center.
There is no need to dwell further upon the evidence adduced at the trial. It is perfectly clear, from what has already been written, that the defendants' guilt was established almost beyond all doubt.
Admissibility of Evidence of the Defendants' Prior Conduct Toward Kip
It was the defendants' claim that the horrible abrasions and bruises which covered Kip's body had been incurred accidentally, that he "stumbled" around, frequently fell out of bed and was, in short, accident prone. To refute the claim and demonstrate that the injuries were not accidental or the result of any innocent or justifiable conduct but were, in fact, beatings, criminally administered, the People called several witnesses — including, among others, his teachers in the Head Start program in which he was enrolled until August 14, the director of a private nursery school he attended in 1969 and a foster mother with whom he had been placed temporarily in 1967 — who testified that he was not a problem child or accident prone but was, instead, an average little boy, well-co-ordinated and well-behaved.
In addition, proof was introduced that, on numerous occasions prior to the period covered by the indictment (August 14-August 23, 1970), Kip, while in the sole custody of his parents, suffered injuries similar to those in evidence upon his death. Thus, for example, the child's foster mother testified that in 1967, about a week or two after Kip had left her home, Mrs. Henson told her that Kip had "scratched" his face, explaining that the child had "fallen down some steps." Similarly, Mrs. Nancy Parody and her daughter, Carol, neighbors and sometime babysitters, testified that they had seen Kip in June of 1968 and that his face was all black and blue. It was Mrs. Henson's story that Kip had fallen against a "chicken wire" fence. A public health nurse testified to similar observations in 1968 and early 1969 which also were explained away by Mrs. Henson as accidental or the result of Kip "picking" at himself. And a caseworker with the Onondaga County Protective Services Department testified that in April, 1969, she was at the Henson residence and observed that Kip had "bruises around his eyes, both his eyes were blackened underneath; there were black and blue marks around both ears, his mouth, and there was a sore, a cut in the back of his head". Mrs. Henson, she stated, pointed to a child's chair less than a foot tall and asserted that Kip had "fallen out" of it.
Completely without merit is the defendants' point that the introduction of the evidence just set out constituted reversible error on the ground that it was merely "designed to show a propensity or criminal bent to commit the crimes charged". It is a well-recognized exception to the general rule, excluding evidence of collateral conduct, that such evidence is admissible if, among other things, it tends to negative the defense of "accident" or mistake. (See, e.g., People v. Molineux, 168 N.Y. 264, 293; People v. Dales, 309 N.Y. 97, 101; see, also, 2 Wigmore, Evidence [3d ed., 1940], §§ 302, 312, 325, pp. 196, 215, 228; Richardson, Evidence [9th ed.], § 175, p. 159.) And it is especially warranted in cases such as the one before us, where the crime charged has occurred in the privacy of the home and the facts are not easily unraveled. (See, e.g., United States v. Woods, 484 F.2d 127; State v. Silva, 153 Me. 89, 98-99; see, also, Wood v. State, 248 Ark. 109, 115; State v. Sanchez, 94 Idaho 125, 128; State v. Bradford, 259 La. 381, 392-394; Commonwealth v. Cutler, 356 Mass. 245, 248-249; cf. State v. Parmenter, 74 Wn.2d 343.)
The defendants, however, insist that there was "no proof" that the mother's explanation as to the cause of the earlier injuries was "untrue." This argument, of course, overlooks what is precisely the theory underlying the admissibility of such evidence — namely, that the credibility of the "accident" explanation diminishes as the instances of similar alleged "accidental" injury increase. (See, e.g., State v. Silva, 153 Me. 89, 98-99, supra; see, also, United States v. Woods, 484 F.2d 127, supra.)
Admissibility of Expert Medical Testimony Concerning the "Battered Child Syndrome"
In the course of questioning one of the medical experts called by the People, the prosecutor asked three or four questions designed to elicit testimony about the so-called "battered child syndrome." Defense counsel objected and, in each instance, the objection was sustained. Nevertheless, the defendants now urge, in effect, that the questions themselves prejudiced the jury against them. Certainly, the mere mention of the "syndrome" could not have prejudiced the jurors; the harm, if any, would have arisen only had the questions been answered. However, quite apart from this, the trial court would have been entirely justified in allowing the witness to respond to the questions as part of the prosecution's offer of circumstantial proof that the deceased infant's injuries were not accidental. It follows, therefore, that the questions complained of, even if answered, may not be said to have prejudiced the defendants.
One of the questions put to him was, "is a battered-child syndrome, or an abused child, a recognized medical diagnosis"; another was, "what is a battered-child syndrome?"
This view finds ample support in decisions not only of various Family Courts in this State in child abuse proceedings (see, e.g., Matter of Young, 50 Misc.2d 271, 272-274; Matter of S, 46 Misc.2d 161, 162; cf. Matter of Santos, 71 Misc.2d 789; Matter of Abeena H., 64 Misc.2d 965) but also of courts in criminal prosecutions in other jurisdictions. (See, e.g., State v. Loss, 295 Minn. 271, 278-281; People v. Jackson, 18 Cal.App.3d 504, 507; see, also, Commonwealth v. Paquette, 451 Pa. 250, 254-255.)
Initially developed following extensive research more than a decade ago, "the diagnosis of the `battered child syndrome' has become an accepted medical diagnosis." ( People v. Jackson, 18 Cal.App.3d 504, 507, supra; see, also, State v. Loss, 295 Minn. 271, 278-281, supra, and, generally, Kempe, Silverman, Steele, Droegemueller Silver, The Battered Child Syndrome, 13 Journal of American Med. Assn. [1962], p. 105.) "A finding * * * of the `battered child syndrome'", the court in People v. Jackson pointed out (18 Cal.App.3d, at p. 507), "is not an opinion by the doctor as to whether any particular person has done anything" but, rather, it "simply indicates" that a child of tender years found with a certain type of injury "has not suffered those injuries by accidental means." Thus, although the decision to admit such expert testimony is within the discretion of the trial court (see, e.g., People v. Jackson, 18 Cal.App.3d 504, 507, supra), there is little doubt of its relevancy in prosecutions of the kind before us.
As indicated, the diagnosis is used in connection with very young children, around three or four years old, and is based upon a finding that such a child exhibits evidence, among other injuries, of subdural hematoma, multiple fractures in various stages of healing, soft tissue swellings or skin bruising. Also pertinent to the diagnosis is evidence that the child is generally undernourished and that the severity and type of injury in evidence on his body is inconsistent with the parents' story of its occurrence. (See, e.g., People v. Jackson, 18 Cal.App.3d 504, 507, supra; State v. Loss, 295 Minn. 271, 278-281, supra; Kempe, Silverman, Steele, Droegemueller Silver, The Battered Child Syndrome, 13 Journal of American Med. Assn. [1962], p. 105.) This sort of expert medical testimony — that the victim is a "battered child" — coupled with additional proof — for instance, that the injuries occurred while the child was in the sole custody of the parents — would permit the jury to infer not only that the child's injuries were not accidental but that, in addition, they occurred at the culpable hands of its parents. (See, e.g., State v. Loss, 295 Minn. 271, 280, supra.)
The orders appealed from should be affirmed.
Judges BURKE, BREITEL, JASEN, JONES and WACHTLER concur; Judge GABRIELLI taking no part.
Orders affirmed.