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State v. Atencio

The Court of Appeals of Washington, Division Three
Jun 7, 2005
127 Wn. App. 1055 (Wash. Ct. App. 2005)

Opinion

No. 21636-5-III

Filed: June 7, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of Benton County. Docket No: 99-1-00147-1. Judgment or order under review. Date filed: 06/27/2001. Judge signing: Hon. Vic L. VanderSchoor.

Counsel for Appellant(s), Christopher Scott Tait, Attorney at Law, 102 N 5th Ave, Yakima, WA 98902-2642.

Counsel for Respondent(s), Scott Wayne Johnson, Benton County Prosecutors Office, M/S G, 7122 W Okanogan Pl, Kennewick, WA 99336.

Andrew Kelvin Miller, Benton County Prosecutors Office, M/S G, 7122 W Okanogan Pl, Kennewick, WA 99336.


Kevin Atencio was found guilty of first degree manslaughter for the death of his four-month-old son Dominic. At trial, the medical examiner testified that Dominic's death was caused by a blunt impact injury to the head. Mr. Atencio later requested a new trial when he learned that the medical examiner was under investigation for stealing prescription drugs and drug use. Mr. Atencio argued a new trial was required on due process grounds because the prosecution's failure to inform him of the investigation undermined confidence in the verdict. Alternatively, Mr. Atencio maintained a new trial was required because the medical examiner's testimony was not corroborated by the testimony of other witnesses. On appeal, Mr. Atencio challenges the court's denial of his motion for a new trial and the court's decision allowing testimony concerning Mr. Atencio's prior military conviction. We affirm Mr. Atencio's conviction.

FACTS

On October 12, 1997, Kevin Atencio, his wife, Gracie, and their four-month-old son Dominic were living with Ms. Atencio's parents. At 9:00 a.m., Ms. Atencio left for work and her parents left for church, leaving Mr. Atencio home to care for Dominic. Four hours later, Mr. Atencio called 911 to report that Dominic had stopped breathing.

Officers arriving at the home noticed a purplish bruise on Dominic's forehead. Mr. Atencio told the officers that Dominic received the bruise two hours earlier when Mr. Atencio was holding him. According to Mr. Atencio, Dominic reared back, and then moved forward, striking Mr. Atencio on the cheek.

Dominic was transported to Kennewick General Hospital. When Dominic arrived at the hospital, he was limp, his pupils were fixed and dilated, and he was being `bagged' because emergency personnel had been unable to intubate him. The emergency room physician noted that Dominic had retinal hemorrhage in the right eye. A CT scan revealed swelling to the brain; x-rays revealed fractures to the ribs. The emergency room physician concluded that Dominic's respiratory arrest, neurological compromise, fractured ribs, retinal hemorrhage, and probable coma were consistent with shaken baby and child abuse syndrome.

Approximately 40 minutes after Dominic arrived at the hospital, the on-call pediatrician arrived. She observed that Dominic had been intubated, but that he was limp, cold, and comatose. Like the emergency room physician, the pediatrician observed retinal hemorrhage in the right eye. She also found a bruise on the back of Dominic's head and on his forehead.

Initially, the pediatrician noticed that Dominic's fontanel area was flat; 90 minutes later the pediatrician observed this area start to bulge, indicating increased intracranial pressure. Based on these symptoms, the pediatrician concluded that Dominic suffered a severe head injury, direct impact to the head, or, perhaps, shaken baby syndrome. Her initial diagnosis was nonaccidental head injury.

Within four hours of Mr. Atencio's 911 call, Dominic was air-transported to Sacred Heart Hospital in Spokane. Upon his arrival, Dominic was seen first by Dr. Brutocao, and later by his partner, Dr. Cecelia Kuyper. Both physicians are pediatric intensivists.

At trial, Dr. Kuyper explained Dr. Brutocao's admission report. Dr. Brutocao found rib fractures of varying ages and retinal hemorrhage. The retinal hemorrhage was also confirmed by an ophthalmologist. Dr. Brutocao concluded that Dominic suffered from a "[c]losed head injury with diffuse cerebral edema and intracranial hypertension." Report of Proceedings (RP) at 47. In Dr. Brutocao's view, this injury was "likely secondary to nonaccidental trauma shaken baby syndrome." RP at 47-48.

A CT scan was performed at Sacred Heart that revealed a subdural hematoma. Dr. Kuyper testified that a subdural hematoma could be caused by blunt force or by shaking. She concluded the development of fontanel swelling after Dominic's admission to the Kennewick hospital indicated an acute injury occurred hours before the swelling developed. She also concluded that Dominic's injuries were caused by nonaccidental trauma. This diagnosis was consistent with the conclusions of the treating physicians at the Kennewick hospital.

On October 13, life support was withdrawn because it was determined that Dominic was clinically brain dead.

Dr. George Lindholm. On October 14, 1997, Dr. George Lindholm performed an autopsy on Dominic. Dr. Lindholm concluded that Dominic died from a subdural hematoma with cerebral edema caused by blunt impact injury to the head.

During the autopsy, Dr. Lindholm also found a second, older, subdural hematoma and additional, healing rib fractures. Like the treating physicians, Dr. Lindholm also found retinal hemorrhage, but he disagreed with the other physicians as to the significance of the hemorrhage. According to Dr. Lindholm, there were factors other than child abuse or trauma that might explain retinal hemorrhage. Dr. Lindholm was asked about the timing between the injury and when Dominic stopped breathing. Dr. Lindholm testified that the period could have been anywhere from a few minutes to a few days.

Dr. Teri Lewis. Dr. Lindholm was not sure if there was a distinctive difference in the age of the callus on the healing rib fractures. Consequently, he recommended that a pediatric radiologist be consulted. A pediatric radiologist, Dr. Teri Lewis, testified that her examination of the x-rays revealed one rib fracture approximately 10 to 14 days old and another rib fracture that was older. Dr. Lewis did not find it unusual that she could not see the third fracture discovered by Dr. Lindholm during the autopsy. An autopsy provides a three dimensional view and her review of the x-rays provided only a two dimensional view. Also, a recent fracture would be difficult to see on an x-ray if the fracture had not had time to begin healing and develop a callus.

Dr. Kenneth Feldman. Dr. Kenneth Feldman testified as an expert for the State. After reviewing all of Dominic's records, Dr. Feldman concluded that Dominic died of inflicted head injury. Dr. Feldman found the six bruises on Dominic significant because medical research indicates that only one-half of one percent of all babies under six months of age had even one bruise. Dr. Feldman opined that Mr. Atencio's statement concerning the cause of Dominic's injuries was not consistent with Dominic's injuries. Specifically, Dr. Feldman felt that a baby with Dominic's injuries would have been knocked unconscious at the time of the trauma. In Dr. Feldman's view, Dominic most likely suffered the trauma on the day he was admitted to the hospital.

Verdict. Dominic died on October 13, 1997. The trial took place in February and March 2001. Mr. Atencio was convicted of first degree manslaughter on March 14, 2001.

Post-Trial Proceedings. On September 14, 2001, Mr. Atencio filed a supplemental motion for a new trial based on allegations of misconduct by Dr. Lindholm. One month earlier, a search warrant was issued authorizing a search of Dr. Lindholm's residence, vehicle, and trash cans. Physical evidence developed by the Washington State Patrol supported the conclusion that Dr. Lindholm was stealing prescription drugs from the morgue and growing marijuana at his residence. No evidence was developed of prescription drug abuse by Dr. Lindholm prior to 2000.

In connection with the motion for a new trial, Mr. Atencio asked for, and received, orders for the expenditure of public funds to hire a forensic pathologist and private investigator.

At the hearing on the motion for a new trial, Detective Tim Scott testified that he was present during Dominic's autopsy and did not observe anything indicating that Dr. Lindholm was intoxicated. At the conclusion of the hearing, the court found that, based on the court's notes during the trial, Dr. Lindholm had been a good witness. The court made a written finding that: `The trial court finds that during his testimony in court, Dr. Lindholm was lucid, coherent and objective and did not appear to be affected by the use of any drug.' Clerk's Papers (CP) at 7. The court also found that Dr. Lindholm's testimony was corroborated by other testimony.

The trial court denied the motion for a new trial.

Mr. Atencio appeals.

ANALYSIS

Motion for a New Trial. Mr. Atencio contends a new trial is required on due process grounds and because of the newly-discovered evidence related to Dr. Lindholm's misconduct.

Brady Violation. Mr. Atencio contends a new trial is required on due process grounds because of the State's Brady violations. Proof of a Brady violation requires: (1) exculpatory or impeaching evidence that is favorable to the defendant; (2) willful or inadvertent suppression of that evidence by the State; and (3) resulting prejudice. See Brady, 373 U.S. at 87; In re Pers. Restraint of Delmarter, 124 Wn. App. 154, 167, 101 P.3d 111 (2004).

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

Mr. Atencio fails to establish a Brady violation because he cannot satisfy the suppression element. At the conclusion of the hearing on the motion for a new trial, the court found that: `In March of 2001, when Dr. Lindholm testified at trial, neither the prosecution nor law enforcement was aware of any allegations concerning drug or alcohol abuse by Dr. Lindholm.' CP at 7. Mr. Atencio does not challenge this finding and has failed to show a willful or inadvertent suppression of evidence by the State.

Moreover, Mr. Atencio fails to establish the prejudice element of the Brady analysis. Under a Brady analysis, prejudice exists "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." In re Pers. Restraint of Benn, 134 Wn.2d 868, 916, 952 P.2d 116 (1998) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)). However, in this context, reasonable probability is not determined by an inquiry into the likelihood of a different verdict. Instead, the court must determine whether the suppression of the evidence undermines confidence in the verdict. Benn, 134 Wn.2d at 916 (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995)).

Given the record here, it is unlikely that the evidence allegedly suppressed by the State undermined the confidence in the verdict. Dominic's autopsy took place in 1997 and there was no evidence of drug use by Dr. Lindholm prior to 2000. Moreover, Dr. Lindholm's trial testimony was coherent and consistent, and other physicians also testified that the cause of Dominic's death was nonaccidental head injury. Additionally, Dr. Lindholm's testimony included evidence from the autopsy.

Newly-discovered Evidence. We conduct our review of the trial court's decision denying Mr. Atencio's motion for a new trial based on newly-discovered evidence for an abuse of discretion. See State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981).

Mr. Atencio suggests a new trial is required because the evidence concerning Dr. Lindholm's misconduct constitutes newly-discovered evidence. A new trial may be granted based on newly-discovered evidence when the evidence (1) will probably change the result of the trial, (2) was discovered after the trial, (3) could not have been discovered before trial by the exercise of due diligence, (4) is material, and (5) is not merely cumulative or impeaching. Id. at 222-23. In some cases, a new trial might be warranted if impeaching evidence devastates a witness's uncorroborated testimony regarding an essential element of the crime. State v. Savaria, 82 Wn. App. 832, 838, 919 P.2d 1263 (1996). Under these circumstances, the evidence must be critical, not merely impeaching. Id.

Mr. Atencio contends a new trial is required because of Dr. Lindholm's misconduct and his pivotal role in the State's case. Mr. Atencio points out that Dr. Lindholm was the only expert who performed an autopsy and his findings were relied upon by other physician witnesses. In response, the State concedes that Mr. Atencio established the second and third requirements, but argues that a new trial is inappropriate here because there is no showing that the newly-discovered evidence is material and not merely cumulative and impeaching.

Mr. Atencio first argues that the evidence of Dr. Lindholm's misconduct is not merely impeaching, but devastating. But the essential part of Dr. Lindholm's testimony was corroborated by other testimony. Testimony and medical records revealed that the emergency room physician, the pediatrician, the pediatric intensivists, the radiologist, the ophthalmologist, and Dr. Feldman all agreed that Dominic was the victim of a nonaccidental head injury. Moreover, the prosecution admitted photographs, CT scans, and x-rays showing Dominic's bruises, retinal hemorrhaging, and rib fractures, as well as two subdural hematomas. Here, the newly-discovered evidence, if believed, does not cast serious doubt on whether the alleged crime occurred.

Next, Mr. Atencio points out that Dr. Lindholm's testimony was uncorroborated because Dr. Lindholm found three rib fractures while other physicians found only two fractures. This inconsistency does not go to an essential element of the crime. Moreover, Dr. Lewis, the pediatric radiologist, explained that a rib fracture might be visible during an autopsy but not on an x-ray.

Mr. Atencio also maintains that Dr. Lindholm's testimony is uncorroborated because he found a second, older, subdural hematoma, while other physicians diagnosed only the newest one.

The second subdural hematoma was documented by a photograph admitted at trial. The second subdural hematoma was also corroborated by Dr. Feldman who reviewed the case after the autopsy, examining the slides and x-rays. While Mr. Atencio now argues that Dr. Lindholm's discovery of a second hematoma was uncorroborated, at the time of trial, defense counsel used the existence of this hematoma as part of his defense. Mr. Atencio's expert witness, Dr. Thomas Schweller, testified that Dominic may not have died from the more recent trauma, but, instead, as the result of rebleeding from the older hematoma caused by an earlier, low level trauma.

Moreover, even if we assume these two discoveries by Dr. Lindholm were uncorroborated, these inconsistencies are not material to the case. All of the treating physicians concluded that Dominic's injuries were most likely the result of shaken baby or inflicted brain trauma.

Finally, Mr. Atencio argues that had he known of the State's investigation of Dr. Lindholm, he would have obtained an expert to conduct a second autopsy. However,

the court granted Mr. Atencio's post-trial request to hire a forensic pathologist but no new evidence or testimony was submitted to the court. In short, there is no Brady violation here and the court did not abuse its discretion by denying the motion for a new trial.

Prior Conviction. Prior to trial, the State filed a motion in limine regarding character evidence. The prosecutor took the position that he should be allowed to examine a defense witness about Mr. Atencio's prior criminal conviction if Mr. Atencio used that witness to put his own character into evidence. The court took the motion under advisement at that time.

At trial, defense counsel elicited testimony from a defense witness, Christy Mathews. In response to examination by defense counsel, Ms. Mathews testified that she allowed Mr. Atencio to babysit for her two-year-old child on occasion during a three- to five-month period and that Mr. Atencio loved the child. Outside the presence of the jury, the prosecutor asked the court for permission to ask Ms. Mathews if she was aware that Mr. Atencio had a 1988 criminal conviction for damage to private property. The court allowed the question.

Mr. Atencio asserts that the court abused its discretion by allowing the prosecutor to cross-examine Ms. Mathews about Mr. Atencio's prior military conviction. Mr. Atencio contends that the admission of this evidence was improper under ER 609(a)(2).

ER 609(a)(2) governs the use of a conviction to attack the credibility of a witness. Here, the prosecutor's question concerning Ms. Mathew's knowledge of Mr. Atencio's prior conviction was not admitted to attack the credibility of the witness, but, instead, to cross-examine Ms. Mathews in her role as a character witness. As a result, ER 405(a), not ER 609(a)(2), applies.

ER 405(a) provides:

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation. On cross examination, inquiry is allowable into relevant specific instances of conduct.

Consequently, when a defendant presents evidence of his or her character, the State may inquire further to determine the reliability of that evidence. A defendant's character witness may be cross-examined about his personal knowledge of specific incidents of misconduct. State v. Styles, 93 Wn.2d 173, 175, 606 P.2d 1233 (1980) (quoting State v. Donaldson, 76 Wn.2d 513, 518, 458 P.2d 21 (1969)). The purpose of this type of cross-examination is to impeach the testimony of the character witness, not to discredit the defendant, even though that may be its effect. State v. Kelly, 102 Wn.2d 188, 194, 685 P.2d 564 (1984). The question of whether this limitation has been exceeded is best left to the trial court which is best able to evaluate the prosecution's motives during cross-examination. We review only for an abuse of discretion. Absent a manifest abuse of discretion, the ruling of the trial court will not be disturbed. Styles, 93 Wn.2d at 176-77.

The court did not abuse its discretion here.

Statement of Additional Grounds for Review. In his statement of additional grounds for review, Mr. Atencio maintains that one of the physician witnesses, Dr. Sharon Ahart, had lost her license to practice in Illinois. We need not address this issue as its resolution is not helpful or dispositive here.

We affirm Mr. Atencio's conviction.

The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

SWEENEY, A.C.J., and SCHULTHEIS, JJ., Concur.


Summaries of

State v. Atencio

The Court of Appeals of Washington, Division Three
Jun 7, 2005
127 Wn. App. 1055 (Wash. Ct. App. 2005)
Case details for

State v. Atencio

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. KEVIN LLOYD ATENCIO, Appellant

Court:The Court of Appeals of Washington, Division Three

Date published: Jun 7, 2005

Citations

127 Wn. App. 1055 (Wash. Ct. App. 2005)
127 Wash. App. 1055