JOSEPH WAYNE BURDEN v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 14, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No. 96-CA-0478-MR
JOSEPH WAYNE BURDEN
v.
APPELLANT
APPEAL FROM McLEAN CIRCUIT COURT
HONORABLE DAN CORNETTE,JUDGE
ACTION NO. 95-CR-000008
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * *
BEFORE: ABRAMSON, GARDNER and GUIDUGLI, Judges.
GUIDUGLI, JUDGE.
Joseph Wayne Burden (Burden) was convicted of
reckless homicide, after a jury trial, and sentenced to one year
imprisonment.
Burden appeals from the judgment and final
sentencing entered by the McLean Circuit Court on February 13,
1996, which denied him probation.
We affirm.
On March 24, 1995, an arrest warrant was signed by the
McLean District Judge for the arrest of Burden on the charge of
murder (KRS 507.020) indicating that on March 19, 1995, in McLean
County, Kentucky, Burden had “unlawfully under circumstances
manifesting extreme indifference to human life, wantonly engaged
in conduct which created a grave risk of death to Colton Samuel
Burden and did in fact cause the death of said infant, 12 days of
age.
Defendant’s actions included the infliction of blunt trauma
upon said child and the shaking of said infant, resulting in the
child’s death in violation of KRS 507.020.”
was indicted on the murder charge.
Subsequently, Burden
The indictment alleged that
Burden had “murdered Colton Samuel Burden by striking him in the
head with an unknown object or striking the head against an
unknown object.”
After several continuances the case was tried
before a jury on January 31, 1996.
At the conclusion of the
evidence the jury found Burden guilty of the lesser offense of
reckless homicide and recommended incarceration in the state
penitentiary for the minimum period of one year.
Burden appeals
said conviction and sentence as a matter of right.
The testimony presented at trial reveals that on
March 19, 1995, Burden, his wife Karen, and their twelve day old
son Colton, were at home together.
At 6:00 a.m. Karen awoke to
feed the baby who was alert at that time.
Again, at 10:00 a.m.
that morning Karen fed Colton who was “alert” and “normal” as she
took care of him.
Around 11:30 a.m. Karen left to go for a walk
with a neighbor leaving Colton in the care of Burden.
gone for approximately twenty minutes.
had to change the baby’s diaper.
Karen was
During this period Burden
When Karen returned Burden was
just finishing changing the diaper and Colton was still crying.
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Burden said he had tried to give the infant a bottle, but that he
had choked on it.
Karen went directly into the kitchen to
cleanup and the baby continued in the care of Burden in the
living room.
After several minutes passed Burden came into the
kitchen and said to Karen that “he’s turning blue.”
panicked and started screaming.
the child and “shook” him.
one answered the telephone.
Karen
At this point Burden picked up
Karen tried to call the doctor but no
Instead of calling 911 they then
decided to take the baby to the hospital thinking they could get
him there quicker than waiting on the ambulance.
On the way to the hospital Colton stopped breathing and
his heart also stopped.
The parents then stopped at a relative’s
house because they knew that Melissa and Jessica Huckleberry, who
lived there, were nurse’s aides and knew CPR.
Huckleberry started CPR and 911 was called.
Melissa
After a few minutes,
an EMT arrived and took over the administration of CPR.
Within
minutes the ambulance arrived and another EMT continued the CPR
and attempted to ventilate Colton on the way to the hospital.
Despite these medical efforts and other basic life support
measures attempted at the hospital, the infant never regained any
activity.
All attempts to revive Colton were futile and he was
declared dead after several minutes at the hospital.
Dr. Tracey Corey-Handy, the Commonwealth’s forensic
pathologist, performed the autopsy on Colton Burden in Louisville
on March 20, 1995, the day after his death.
The autopsy revealed
the infant died as a result of blunt head trauma.
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The child had
subdural hematomas over the surfaces of his brain.
This was
evidenced by three (3) separate impact sites of the scalp which
were indicative of an accelerative/decelerative motion occurring
in Colton’s head.
Although Dr. Corey-Handy acknowledged that she
could not say who inflicted these injuries, she added that they
were not accidental injuries and that to inflict such injuries
would require someone of adult strength or stature.
Dr. Jack Newton, Karen’s obstetrician/gynecologist, who
delivered Colton, testified that Colton’s death could have been
caused by several factors other than blunt head trauma.
Dr.
Newton explained that the thick mucus in the airway could have
caused the death, or even improperly administered CPR.
He also
testified that the baby choking could cause the fragile blood
vessels in the brain to rupture, or even the resuscitation
efforts if the child had been “banged around” when placed on a
hard surface could cause the bruising and aggravated the
situation.
Several other witnesses testified at trial as to their
observations as to how the CPR was administered and to their
observations of Burden on the day in question.
Based upon all
the evidence the jury returned a verdict of guilty as to reckless
homicide.
On appeal Burden raises three (3) issues of error which
he believes requires reversal.
We will address each issue
separately as it was raised by appellant.
First, Burden alleges
the trial court erred in denying his motion for a directed
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verdict based upon the insufficiency of the evidence.
On
appellate review, the test of a directed verdict is, if under the
evidence as a whole, it would be clearly unreasonable for a jury
to find guilt, only then is the defendant entitled to a directed
verdict of acquittal.
186 (1991).
Commonwealth v. Benham, Ky., 816 S.W.2d
The reckless homicide statute, KRS 507.050 provides:
(1) A person is guilty of reckless homicide
when, with recklessness he causes the death
of another person.
KRS 501.020 provides, in part, that the following definition
applies in the Kentucky Penal Code:
(4) “Recklessly”-A person acts recklessly
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 the result will occur
or that the circumstance exists. The risk
must be of such nature and degree that
failure to perceive it constitutes a gross
deviation from the standard of care that a
reasonable person would observe in the
situation.
Burden argues that the Commonwealth failed to produce
evidence of substance and further failed to produce “no more than
a mere scintilla of evidence.”
Benham, supra; See also, Edwards
v. Commonwealth, Ky., 906 S.W.2d 343, 347 (1995).
Burden claims
the evidence of record reveals a prosecution theory of
supposition and speculation insufficient to meet the
Commonwealth’s burden on a motion for directed verdict.
We do
not agree.
The Supreme Court set forth the standard for a directed
verdict in Benham, at 187:
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On motion for directed verdict, the trial
court must draw all fair and reasonable
inferences from the evidence in favor of the
Commonwealth. If the evidence is sufficient
to induce a reasonable juror to believe
beyond a reasonable doubt that the defendant
is guilty, a directed verdict should not be
given. For the purpose of ruling on the
motion, the trial court must assume that the
evidence for the Commonwealth is true, but
reserving to the jury questions as to the
credibility and weight to be given to such
testimony.
In the case sub judice, the evidence clearly placed Burden as the
individual with exclusive control of the child immediately prior
to the onset of his medical crisis.
shaken the infant.
Burden admitted that he had
Prior to his control over the child and his
activity with the child, the baby was normal and alert.
Dr. Corey-Handy, the Commonwealth’s pathologist, stated the
infant sustained subdural hematomas consistent with an adult
“taking a baby and shaking the baby and slamming the baby down so
that its head hit the mattress.”
Despite Burden’s other
explanations and theories as to how the death occurred, there was
more than sufficient evidence to overcome Burden’s motion for a
directed verdict.
The next issue raised by Burden relates to Dr. Newton’s
opinion as to the cause of death of Colton.
The Commonwealth
objected to the following question asked of Dr. Newton:
In reviewing the autopsy
the ambulance run sheet,
records and photos, what
to the cause of death of
-6-
report, looking at
the other medical
is your opinion as
this baby?
The Commonwealth objected questioning whether or not Dr. Newton
would be “qualified in the area of determining cause of death.”
After allowing further qualification of the witness, including
voir dire cross-examination, the trial court sustained the
objection.
Thus, Dr. Newton was not permitted to testify as to
his opinion of the cause of death of Colton.
Burden did not
request that Dr. Newton’s excluded testimony be offered by avowal
under RCr 9.52.
It is well-settled that without an avowal to
show what the witness would have said, an appellate court has no
basis for determining whether an error in excluding the proffered
testimony was prejudicial.
S.W.2d 839 (1992).
Caudill v. Commonwealth,Ky., 833
Despite appellant’s failure to comply with
RCr 9.52, we will nonetheless examine his argument.
Burden
contends that the trial court’s ruling placed him at a great
disadvantage because it required him “to extract Dr. Newton’s
opinions in hypothetical questions in stark contrast to the
Commonwealth’s pathologist’s ability to render an expert medical
opinion as to cause of death.”
We do not agree.
KRE 702 permits a witness qualified as an expert “by
knowledge, skill, experience, training or education” to testify
as to his opinion in his area of expertise.
The decision as to
whether a witness is a qualified expert and the limits of his
expertise are matters which fall within the sound discretion of
the trial court.
(1992).
Bush v. Commonwealth,Ky., 839 S.W.2d 550, 555
A review of Dr. Newton’s testimony relative to his
qualifications, certifications, training and expertise leads us
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to the conclusion that the trial court did not abuse its
discretion in this matter.
We have no doubt that Dr. Newton is a
very qualified and highly regarded physician in his field of
expertise-gynecology and obstetrics.
However, by his own
testimony it is obvious that, although he is a medical doctor, he
is not trained or qualified to determine the cause of death or
its origin.
We perceive no error in the trial court’s ruling on
this issue.
Also, as the Commonwealth points out, Dr. Newton did
testify as to the other possible causes of Colton’s death which
contradicted the forensic pathologist’s explanation.
Specifically, Dr. Newton testified as follows:
Q And as a hypothetical question, when a
child, from your experience in dealing with
thousands of these babies, when it has mucus
thick in the airway, can CPR, especially if
administered improperly, do more harm than
good?
A
Yes, sir.
Q And in fact, what is the first rule of
being a physician?
A
Do no harm.
Q Could the mucus think in the airway, as
described in the ambulance sheet, cause the
death of an infant?
A Yes, sir.
airway.
*
As a mechanism of obstruction of
*
*
Q Now, you were describing how the
capillaries wills start becoming or having
acidic blood in them?
-8-
A Yes, sir. And this results in further
decomposition, particularly the vessels of a
newborn brain, and the intrauterine brain or
fetus. The vessels of a newborn brain are
not supported by connected tissues structures
that older children and adults have. And,
therefore, are more likely to be prone to
rupture as a result of acidosis, lactic
acidosis, a low blood PH. This is done,
proven and shown by studies of Dr. Gluck, for
example. Microscopic studies of brain
tissues. I’m not talking about gross
studies. I’m talking about microscopic
studies, which would indicate hemorrhages
around the ventricles of the brain, which are
indicative of an anoxic event, initiating the
cause of death.
Q Okay. Now when you say anoxic event, tell
the jury what you mean by that?
A Lack of oxygen.
Q So, in laymen’s terms, if a baby is
choking, that’s going to make the blood
vessels in the brain more subseptible (sic)
to hemorrhaging. Is that a correct
statement?
A Yes, If a baby chokes long enough that the
oxygen tension, oxygen levels drop, and the
carbon dioxide levels build up, which makes
them more acidosis, and the metabolism gets
reversed from the normal production of
glucose down to carbon dioxide, water and
energy molecules, if that gets stopped at the
level where it produces lactic acid and
pyruvic acid, you have more acidosis. These
vessels become very fragile. They rupture.
Resuscitative attempts, such as I’ve read
here, would result in increased intracranial
pressure.
There will be increased intracranial flow of
blood to anybody’s brain in distress to
preserve the brain.
Q Is this the body’s natural reaction to
preserve the most important organ of the
brain, correct?
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A Yes, sir. It is a natural reaction for the
body to do that.
Q So, not only is the blood acidic, but
there’s more of it in the brain when a
choking occurs?
A Yes, sir. And engorging, this is a stress
reaction. Then Resuscitative efforts,
particularly as I see here with the--it says
intubation unsuccessful, bag--they bagged the
baby, forcing, struggling, no oxygen going
through and a lot of increased intrathoracic
pressure with cardiac--cardiopulmonary
resuscitation, these vessels rupture.
Q And hypothetically, if resuscitation
efforts included moving the child around,
putting it on a hard surface, banging on the
child causing bruises, would that aggravate
that situation?
A I think it would.
Yes, sir.
Q And cause some rupturing?
A Yes, sir.
I would.
*
*
*
Q All right. You know, I want to be very
clear about this. When it’s described as
mucus thick in the airway in a child this
age, is that a life threatening situation?
A Yes, sir.
Q Would untrained efforts of CPR aggravated
that?
A Yes, sir.
Q Now, I’m going to show you photos of the
autopsy that the jury has already seen. I
want you to review those. Those are for the
record Commonwealth Exhibit 9 and 10.
First of all, have you seen brain injuries of
this type before?
A Yes, sir.
In adults.
-10-
Q And have you also seen them in children in
car accidents and things like that?
A I have not attended autopsies of many
children in accidents.
Q All right. What would you expect the
condition of the skull to be if there were
intentionally inflicted blows to cause that
type of hemorrhaging?
A I’d expect to see a cracked skull.
showing fractures of the skull.
X-rays
Q And although there were, from the
pathologist’s testimony, three separate blows
or wounds, it revealed no, absolutely no
fracture of the skull, did it?
A From what I understand, there were no skull
fractures evidence.
Q Would the choking process have enabled this
type of hemorrhaging to occurred (sic)
without cracking the skull?
A Yes, sir.
Q So even though the child wasn’t--well, in
other words, this type of hemorrhaging could
have occurred with much less force if the
child was choking?
A Yes, sir.
Q Is that a fair statement?
A The vessels of the brain are of an extreme
fragile state just being born. Get worse as
the acidosis increases and the struggle to
make the infant--the brain survive, increases
the risk of this happening, and it wouldn’t
take much force to do the damage.
You have to treat these babies like orchids
in winter, very carefully.
Q Especially under these choking type of
situations?
A Yes, sir.
-11-
Q The good doctor from Louisville also shows
us Commonwealth’s Exhibit #7, showing how a
baby if placed with some force on a hard
surface that can cause brain injury. Is this
the position you would put an infant in in
attempting CPR?
A Yes, sir.
Q And would--if the child were placed on a
hard surface, too hard, and a choking
situation, how much force would have had to
been used to cause these type of hemorrhages,
with the choking situation you described?
A Children like this, you put your hand down
and lay them down. I don’t know exactly. It
wouldn’t take much. Pop - (demonstrating) and you’ve done the damage.
*
*
*
Q Have you ever seen this type of injury
without a cracked skull?
A. No, sir.
Q Would you expect this injury without a
cracked skull even in a 12 day old?
A No, sir.
Q Would the process that you’ve described in
choking have allowed for this type of injury
without the force enough to crack the skull?
A I think it could.
Yes, sir.
Q Okay. When a baby chokes does it matter
how healthy it is?
A No, sir.
Q I mean you could have the healthiest baby
in the world, and if it chokes, it’s going to
die?
A And lose it.
Yes, sir.
Q He asked you about putting this child down
on a cushioned surface. Let me ask you about
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if these CPR attempts were attempted out on a
porch, or a metal chair?
A That would be more of a blow to the already
fragile circulation of the baby.
Q To the already fragile?
A Yes, sir.
Q So, it would make these type of rupturings
and hemorrhaging more likely?
A I would think so.
Yes, sir.
Q Without the force necessary to cause a
skull fracture?
A Yes, sir.
Thus, Dr. Newton’s testimony assisted in placing appellant’s
theory of the case before the jury even without giving a specific
opinion as to cause of death.
Any error, therefore, was harmless
since Burden suffered no prejudice by the trial court’s ruling.
See e.g.: Commonwealth v. Donovan, Ky., 610 S.W.2d 601 (1980);
Hill v. Commonwealth, Ky. App., 779 S.W.2d 230 (1989).
The final issue raised by appellant concerns the trial
court’s denial of a motion for a continuance.
On January 16,
1996, Burden filed a motion to continue the jury trial scheduled
for January 31, 1996.
Defense counsel asserted that his expert
witness, a forensic pathologist, was unavailable.
After a
hearing on the motion, the trial court denied the continuance
noting that there was “no affidavit in the record and the court
having no evidence before it... .”
Without the continuance,
appellant argues he was forced to try the case without his own
forensic pathologist which resulted in undue prejudice.
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At first blush this issue would appear problematic.
However, a thorough review of the record tells another story.
First, the appellant was indicted on May 15, 1995, and trial
originally set for July 12, 1995.
On that date both parties
moved for a new trial date, which was granted.
set for October 10, 1995.
Trial was then
On the day before the trial was to
start, Burden requested a second continuance.
This motion was
granted and trial was then rescheduled for December 15, 1995.
Before this trial date appellant sought yet another continuance.
The trial court granted this request and rescheduled the trial
for January 31, 1996.
Burden’s fourth motion for a continuance
filed on January 16, 1996, included no affidavit as required by
RCr 9.04.
This rule requires an affidavit be attached to a
continuance motion specifically setting forth what the witness
will prove.
In part, RCr 9.04 provides:
A motion by the defendant for a postponement
on account of the absence of evidence may be
made only upon affidavit showing the
materiality of the evidenced expected to be
obtained, and that due diligence has been
used to obtain it. If the motion is based on
the absence of a witness, the affidavit must
show what facts the affiant believes the
witness will prove, and not merely the effect
of such facts in evidence, and that the
affiant believes them to be true.
In Pennington v. Commonwealth,Ky., 371 S.W.2d 478 (1963), the
trial court denied the defendant’s continuance motion because,
like appellant, he also failed to include an affidavit with his
continuance motion stating the materiality of the missing
witness.
On appeal, the Court upheld the trial court’s ruling
-14-
since “[t]here is no basis on which the trial court could have
judged, nor on which this court can say now, that the absence of
the witness was prejudicial.”
Pennington, 371 S.W.2d at 479.
Appellant failed to comply with RCR 9.04 and provide
the court with the basis for his request.
In his previous motion
for a continuance, Burden had complied and the requested
continuance was granted.
Additionally, appellant had the
opportunity to take his alleged expert’s testimony by deposition
or seek another expert to assist him at trial.
The second important factor that the record reveals on
the issue is that when the case was called for trial, appellant
announced he was ready to proceed.
By affirmatively stating that
he was ready to proceed with the trial, Burden effectively waived
any alleged error regarding his motion for a fourth continuance.
Stepp v. Commonwealth, Ky., 608 S.W.2d 371 (1980).
For the
foregoing reasons, we cannot say that the trial court abused its
discretion in denying Burden’s motion for a continuance.
Dishnan
v. Commonwealth, Ky., 906 S.W.2d 335 (1995).
Having thoroughly reviewed the record, we find no error
in the trial court’s rulings in this case.
Hence, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Vincent Aprile, II
Assistant Public Advocate
Frankfort, KY
A. B. Chandler, III
Attorney General
Michael L. Harned
Assistant Attorney General
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Frankfort, KY
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