Opinion
No. 27446-9-II.
Filed: March 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No. 98-1-00226-3. Judgment or order under review. Date filed: 04/04/2001. Judge signing: Hon. John F Nichols.
Counsel for Appellant(s), Edward L. Dunkerly, Attorney at Law, 613 SW Utah St, Camas, WA 98607-2540.
Counsel for Respondent(s), Kimberley Robert Farr, Attorney at Law, Clark Co Pros Attys Offc, PO Box 5000, Vancouver, WA 98666-5000.
A jury convicted Cayce Lee Brooks of first degree assault of a child, Z.B. Brooks appeals, claiming numerous errors relating to the medical testimony, jury instructions, expert witnesses, and prosecutorial misconduct. We find that the trial court did not err in its evidentiary rulings, nor did it abuse its discretion by refusing to instruct the jury on Z.B.'s traumatic birth. And although we find that the State's comments during closing argument were improper, we conclude that this error was harmless. Thus, we affirm.
FACTS
On November 22, 1997, Brooks took custody of a two-day-old baby boy. She named him Z.B. and was in the process of adopting him. On February 2, 1998, Brooks called 911 to report that Z.B. had stopped breathing and that there was an unusual fluid coming from his mouth.
According to the transcript of the 911 call, Brooks said, "I think I hurt [my baby]. I think I did. I was playing really hard with him. I do that all the time. I think I hurt him." III-A Report of Proceedings (RP) at 188. Brooks indicated to several of the people who responded to her call for aid that she had been roughhousing with Z.B., who was then 74 days old, by throwing him into the air and tossing him onto her bed. She also indicated that she left the child alone to prepare a bottle and when she returned she found that he was not breathing and a white milky substance was oozing from his mouth.
Z.B. was taken to the Southwest Washington Medical Center where he was observed by Dr. Elo Wobig in the emergency room. Dr. Wobig ordered a CT scan and, based on its results, transferred Z.B. by a pediatric transport team to Emanuel Hospital in Portland, Oregon, where there were pediatric intensive care and neurosurgery services available. At Emanuel, Dr. Cynthia Christofani examined the child and concluded that the injuries were the result of a non-accidental head trauma inconsistent with Brooks's account.
Dr. Christofani noted bilateral retinal hemorrhages which are caused by violent shaking of the child's head causing the brain to impact the interior of the skull.
After Dr. Monica Clare Wehby performed emergency neurosurgery on Z.B., Dr. William Bennett, a pediatric radiologist, did a full skeletal survey and magnetic resonance imaging (MRI) and discovered unhealed fractures of the top and bottom end of Z.B.'s left leg and a possible fracture of Z.B.'s right thigh bone. These injuries are caused by a simultaneous twisting of the child's legs and are non-accidental. The CT scan revealed an older or chronic (old) subdural hematoma on Z.B.'s brain as well as new or acute subdural hematomas and brain contusions on both sides.
Dr. Christofani also consulted with Dr. Michael Lukschu, a member of the Child Abuse Response and Evaluation Service team at Emanuel. Dr. Lukschu examined Z.B., read the other reports, and concluded that Z.B.'s injuries appeared to be non-accidental.
Dr. Rod Belkin, a diagnostic radiologist, also reviewed Z.B.'s CT scan. Dr. Belkin noted the chronic subdural hematoma on the right side of Z.B.'s brain. He testified that he believed this wound to be at least a week old. He also noted acute subdural hematomas on both the left side and the right side of the front temporal junction of Z.B.'s brain.
Based on these examinations, Z.B.'s doctors determined that he was suffering from shaken baby syndrome (SBS) and had been abused.
After an 11-day jury trial at which each of the treating physicians testified as described above, a jury convicted Brooks of one count of first degree assault of a child. She appeals, objecting to the court's admission of evidence of SBS and raising numerous errors, including the trial court's refusal to instruct the jury on her defense that Z.B.'s injuries were the result of a traumatic birth and were therefore an accident.
We have thoroughly reviewed the record and determined that (1) there was no evidence to support Brooks's claim of accident and the trial court properly refused to instruct the jury on Brooks's accident defense; (2) trial court did not err in allowing the witnesses to testify that Z.B. was diagnosed with SBS; (3) evidence that both of Z.B.'s legs were broken by an intentional twisting motion 4 to 10 days before they were x-rayed was properly admitted to show intent and lack of mistake and accident; (4) admitting medical evidence and testimony from Z.B.'s treating physicians was not cumulative and did not violate Brooks's right to confrontation; (5) the trial court properly refused to enforce Brooks's subpoena requesting production of a consulting medical expert witness's tax records; (6) the trial court properly denied Brooks's motion to pay expert witnesses at public expense because Brooks was not indigent and the State constitution only requires payment in advance of expenses in existence at the time of the constitution's enactment, e.g., court costs, subpoena fees; and (7) the trial court properly limited cross examination of the State's rebuttal witness, Dr. John Stirling.
In addition, we determine that Brooks was not denied effective assistance of counsel. (1) Her counsel's failure to object to hearsay evidence was tactical. (2) Brooks had no right to be present for the taking of exceptions to the court's instructions and she was only briefly absent. (3) Even if trial counsel should have objected to the assault Instruction No. 5, it was a proper statement of the law on this evidence. Also, given Instruction No. 6's definition of assault, error, if any, was harmless. Furthermore, the trial court did not err by refusing to give a unanimity instruction because assault of Z.B. was a continuing offense and did not require a unanimity instruction. And the prosecutor's comments during closing argument did not deprive the appellant of her right to a fair trial. Thus, we affirm.
ANALYSIS 1. Admissibility of Evidence of SBS
Brooks challenges the trial court's admission of evidence of "shaken baby syndrome," claiming that it is not generally accepted in the scientific community. She also asserts that she was denied the right to a fair trial when the trial court allowed the witnesses and parties to use the phrase "shaken baby syndrome," but she fails to cite any legal authority requiring exclusion of the phrase. See RAP 10.3(a)(5). See also State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999) (appellate court need not address an argument unsupported by authority or argument).
Although use of the phrase "shaken baby syndrome" should be avoided because it suggests the ultimate fact to be determined by the jury, here the State, the defense counsel, and numerous witnesses repeatedly used the phrase. Brooks cites no legal authority precluding the use of the phrase. Moreover, during trial, Brooks used the term and cannot now object. Error, if any was invited. State v. Wakefield, 130 Wn.2d 464, 475, 925 P.2d 183 (1996) (invited error precludes setting up error then complaining of it on appeal).
Brooks's citations to the record do not support her claim that she challenged the admissibility of testimony regarding SBS. The objections to testimony were on different grounds.
At one point the trial court asked the State to provide literature using the term "shaken baby syndrome."
Nor did Brooks preserve objection to the admission of SBS evidence at trial. Prior to trial Brooks moved to restrict the testimony of the diagnosis of SBS. After reviewing our decision in State v. Kunze, the court required the State demonstrate that evidence of SBS was generally accepted in the pediatric medical community by submitting articles and publications. After reviewing them and hearing the State refer to articles in People Magazine and the Oregonian referencing shaken baby syndrome, the trial court acknowledged that the term had achieved widespread use in the community, but it required that the State provide further testimony from the witnesses that the diagnosis was recognized in the medical community and was not just an "urban myth" before it would admit testimony that Z.B.'s diagnosis was SBS. II RP at 157. The State provided numerous medical journal articles demonstrating widespread acceptance of the term "shaken baby syndrome" and the trial court denied the defense motion to exclude the testimony subject to the State's providing further medical foundation for the syndrome through the testimony of its witnesses. The State's medical witnesses testified that the diagnosis of "shaken baby syndrome" was widely used in the pediatric community and a defense witness testified that SBS was taught in medical schools throughout the country. SBS refers to a constellation of injuries usually involving subdural hematomas, bilateral retinal hemorrhaging, and other bilateral injuries inconsistent with the reported mechanism of injury. The defense did not renew its motion to strike the evidence, request further hearing, or renew its motion to exclude evidence of the diagnosis. Thus, the matter is not preserved for our further review. When an evidentiary ruling on a motion in limine is tentative, a defendant who fails to seek a final ruling on the evidence waives any objection. State v. Riker, 123 Wn.2d 351, 369, 869 P.2d 43 (1994). The defense acquiesced in the process used by the trial court and did not request further hearing or otherwise preserve its objection to admission of the SBS diagnosis.
97 Wn. App. 832, 988 P.2d 977 (1999), review denied, 140 Wn.2d 1022 (2000).
The articles themselves are only referred to, but not included, as exhibits in the record on appeal. Brooks does not contend that they were not presented, only that a defense expert witness was preparing to write an article challenging the medical community's acceptance of the syndrome.
There is no case in Washington that has specifically ruled that SBS is generally accepted in the scientific community, but other jurisdictions have ruled that SBS is a "generally accepted diagnosis" in the medical field. See State v. Lopez, 306 S.C. 362, 367, 412 S.E.2d 390 (1991); State v. McClary, 207 Conn. 233, 246, 541 A.2d 96 (1988); In re Matter of Lou R., 131 Misc.2d 138, 142, 499 N.Y.S.2d 846 (1986).
Z.B.'s treating and consulting physician witnesses acknowledged widespread discussion of the SBS in the medical literature: Although the defense experts disputed the State's experts' conclusions, the term "shaken baby syndrome" was recognized as being in widespread usage in the field of pediatric medicine. State's witness, Dr. Lukschu, testified that SBS has been "studied . . . and reported extensively" and is a "recognized medical diagnosis generally accepted in the scientific community." VII-A RP at 1286. Defense witness, Dr. Ronald Uscinski, also testified that the term "shaken baby syndrome" is used and taught in pediatrics, although he declined to say it was generally accepted, saying that neurosurgeons do not generally accept the pediatric view of SBS. Defense witness, Dr. Werner Goldsmith, testified to reading several hundred articles on SBS, despite his belief that SBS can be "overemphasized" in many cases. And the State's expert witness, Dr. Stirling, testified on rebuttal that SBS is discussed in pediatric and neurology textbooks. See, e.g., Donna L. Wong, Whaley Wong's Nursing Care of Infants and Children 705 (Mosby-Year Book, Inc. 1995) ("Violent shaking of children, especially infants under 6 months old (shaken baby syndrome), can cause fatal intracranial trauma without signs of external head injury.").
2. Evidence of Z.B.'s Broken Leg and Other Injuries
Brooks next argues that the trial court erred in admitting the evidence of Z.B.'s multiple injuries, including leg fractures that may have occurred at a different time. During a pretrial hearing, Brooks objected to the evidence of Z.B.'s unhealed broken legs under ER 404(b), claiming that it was evidence of other bad acts unrelated to the shaking and the brain damage that occurred on February 2, 1998. Although Brooks cited ER 404(b) at trial, she argued only that the evidence was more prejudicial than probative. See ER 403. Nevertheless, the trial court conducted the proper ER 404(b) balancing analysis and admitted the evidence solely to prove intent and lack of mistake or accident, and indicated that it would so instruct the jury if the defense desired.
ER 404(b) reads:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
ER 403 reads that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
We review the trial court's decision to admit evidence under ER 404(b) for manifest abuse of discretion. State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997); State v. Hepton, 113 Wn. App. 673, 687, 54 P.3d 233 (2002), review denied, 149 Wn.2d 1018 (2003); State v. Greathouse, 113 Wn. App. 889, 918, 56 P.3d 569 (2002), review denied, 149 Wn.2d 1014 (2003). Evidence of other crimes or misconduct must be logically relevant to a material issue before the jury, and the probative value must outweigh the prejudicial effect. Greathouse, 113 Wn. App. at 918. In challenging the trial court's decision, Brooks cites contradictory medical evidence, but she fails to address the proper legal issue of whether the trial court abused its discretion by admitting evidence of Z.B.'s broken legs to show intent or lack of mistake.
Z.B.'s treating physician, Dr. Bennett, testified that Z.B.'s spiral leg fracture injuries were not accidental. He testified that, with the lack of swelling and no evidence of healing, it is suggested that Z.B.'s leg was recently twisted and broken no more than 4 and 10 days prior to Dr. Bennett's February 3 examination. But it could have occurred on February 2, 1998, the day Brooks called for emergency assistance. On February 2, Brooks's mother, Eloda Henry, took care of Z.B., feeding and changing him throughout the day while Brooks was at work. Henry did not indicate that she played with Z.B. physically the way Brooks did and testified that Z.B. was fine when Brooks picked him up after work that day.
Injuries of this type are generally caused by holding the leg and violently jerking or twisting the leg.
Later that same day, Z.B. lapsed into a coma. In her 911 call, Brooks admitted to hurting him, saying that she had been playing really hard with him and that she did that all the time. She later admitted that her form of rough play included shaking and tossing Z.B. into the air and onto the bed. Brooks admitted that she hurt her baby. And there was no evidence that anyone else injured Z.B. Brooks claimed only that she did so unintentionally while playing with the child.
The doctors who treated Z.B. found wounds of varying types inflicted at different times and on both sides of Z.B.'s body; the likely result of non-accidental trauma. Dr. Bennett testified to the presence of chronic and acute subdural hematoma. Dr. Bennett found an acute subdural hematoma on the right side of Z.B.'s brain, along with another older subdural hematoma. Dr. Bennett testified that, in his opinion, Z.B.'s injuries were caused by severe head trauma. Dr. Wehby agreed that the injuries were the result of non-accidental trauma. Dr. Wehby testified that either violent shaking or repeatedly throwing a baby on a surface such as a bed could cause these types of injuries. Dr. Wehby testified that the injuries were inconsistent with Brooks's account of the playful events immediately preceding Z.B.'s coma. The trial court did not abuse its discretion in admitting evidence of Z.B.'s multiple injuries to rebut Brooks's claim that she injured Z.B. unintentionally while playing with him.
3. Admission of Z.B.'s Test Results
Brooks objects for the first time on appeal to the trial court's decision to admit x-rays of Z.B.'s injuries because they were not authenticated under ER 901(a). Brooks also objects to the admission of photographs of Z.B.'s bruises.
When the State moved to admit the x-rays, Brooks's counsel stated that they did not object, "so long as . . . they're within the scope of the discovery that was provided." VI-A RP at 950. The failure to object to the admissibility of evidence precludes our review of that issue unless the error is manifest and affects a constitutional right. State v. Mendoza-Solorio, 108 Wn. App. 823, 834, 33 P.3d 411 (2001); RAP 2.5(a)(3). Brooks's claim is not of constitutional magnitude and, thus, she is precluded from challenging the admission of x-rays on appeal. Brooks also objects to admission of Z.B.'s MRI results. The State moved for admission, Brooks's counsel inquired into the evidence, and again decided not to object. Brooks is precluded from challenging admission of the MRI.
Brooks's counsel did, however, object to the photographs of Z.B.'s bruises, stating that they did not help the jury. This is a different objection than the ER 901 foundational challenge she now raises on appeal. We review objections to evidence on the same ground asserted at trial. State v. Stevens, 58 Wn. App. 478, 485-86, 794 P.2d 38, review denied, 115 Wn.2d 1025 (1990). Even if an ER 901 challenge could have been brought at trial, Brooks is precluded from raising this challenge for the first time on appeal.
Brooks made a foundation objection when the photographs were first presented but stated she had "no objection" after the State established the foundation. When the State moved to admit the photographs again, Brooks then objected, claiming the photographs did not help the jury.
The authentication test requires "evidence sufficient to support a finding that the matter in question is what its proponent claims." In re Personal Restraint of Connick, 144 Wn.2d 442, 455, 28 P.3d 729 (2001) (quoting ER 901(a)). The witness authenticated the photographs during testimony.
Finally, we consider Brooks's challenges to the admission of Z.B.'s CT scans. When offered, Brooks's counsel asked several questions establishing a foundation for the CT scan evidence and again elected not to object to the evidence. Later in the trial, the State moved to admit Z.B.'s other CT scans and Brooks then objected for lack of authentication. Dr. Bennett, while not the doctor who performed the MRI, testified to the authenticity of the second CT scan. Evidence can be authenticated by the testimony of a witness other than the witness who created the document that the "matter is what it is claimed to be." ER 901(b)(1). The second set of CT scan evidence was properly authenticated.
The trial court also admitted other CT scans Brooks submitted. While Brooks's brief is unclear as to which CT scans she objects to, she is precluded from objecting to the CT scans she offered under the invited error doctrine. Thus, Brooks's challenges to the admission of Z.B.'s x-rays and MRI results are wholly without merit and not properly preserved for our review.
The invited error doctrine applies when the defendant sets up the error and later complains about it on appeal. In re Personal Restraint of Call, 144 Wn.2d 315, 328, 28 P.3d 709 (2001).
4. Denial of Right to Confrontation
Brooks next claims that her failure to object to the admission of Z.B.'s x-rays, CT scans, and MRI results does not preclude review because her constitutional right to confrontation was violated when the doctors testified from Z.B.'s x-rays, CT scans, and MRIs. Article I of the Washington Constitution provides the right of confrontation by stating that "the accused shall have the right . . . to meet the witnesses against him face to face." Wash. Const. art. I, sec. 22. She argues that she was not allowed to confront the producers of these exhibits or the technicians. As noted above, failure to object to the admissibility of evidence precludes appellate review of that issue unless the error is manifest and affects a constitutional right. Mendoza-Solorio, 108 Wn. App. at 834; RAP 2.5(a)(3). Here, Brooks had the full opportunity to cross examine the witnesses against her. Objection to the taking and processing of these internal photographs is directed to the foundation and authentication of the exhibits, not the testimony adduced at trial. Such objections are waived if not raised and do not implicate a defendant's right to confront the witnesses. State v. Roberts, 73 Wn. App. 141, 145, 867 P.2d 697 (evidence need not be authenticated when party fails to make ER 901 objection at trial), review denied, 124 Wn.2d 1022 (1994). The witnesses against Brooks were the treating and consulting physicians who used the x-rays, MRIs and CT scans, and pictures of Z.B.'s internal injuries to diagnose and treat Z.B. It was their observation and interpretation of the films, not the evidence of the method used to take the picture, that was admitted to prove the extent and intentional cause of Z.B.'s injuries; Brooks's right to confront theses witnesses was not abridged.
Dr. Belkin testified that he routinely studies x-rays, MRIs, and CT scans and consults with other physicians to come to a diagnosis. Dr. Bennett also testified to his familiarity with the films taken on Z.B. and that he studied these films to diagnose and treat Z.B. Dr. Wehby testified to studying the scans to aid in her decision to perform brain surgery on Z.B. Another of the State's witnesses, Dr. Cristofani, testified to ordering a CT scan to determine whether Z.B. was having seizures and enlisting Dr. Bennett to diagnose Z.B. based on this CT scan. See State v. Garrett, 76 Wn. App. 719, 722, 887 P.2d 488 (1995) (medical records admissible as business records) (citing State v. Ziegler, 114 Wn.2d 533, 538-39, 789 P.2d 79 (1990)). The x-rays, CT scans, and MRIs are little more than photographs of Z.B.'s internal organs and as such are admissible with testimony that they are what they appear to be. ER 1001(b). See State v. Newman, 4 Wn. App. 588, 593, 484 P.2d 473, review denied, 79 Wn.2d 1004 (1971). Brooks's right to cross examine the witnesses against her was not implicated when the trial court admitted testimony of physicians who relied on these photos to diagnose and treat Z.B. without first requiring testimony from the photographer. Moreover, Brooks failed to object at trial, thus we decline to consider her argument further on appeal.
5. Dr. Stirling's Tax Records
Brooks issued a subpoena duces tecum for Dr. Stirling's income tax records to determine what he was paid for his services as an expert witness. Brooks argues that the trial court's failure to enforce the subpoena violated Brooks's constitutional right to compulsory process and that the State must prove a compelling State interest before being excused from producing the requested records.
Courts have recognized a limited constitutional right to discovery within the right to compulsory process. State v. Gonzalez, 110 Wn.2d 738, 750, 757 P.2d 925 (1988). To assert this right, the defendant must make a plausible showing that the item of undisclosed evidence is favorable and material to the defense. Gonzalez, 110 Wn.2d at 750. In re Personal Restraint of Brennan, 117 Wn. App. 797, 805, 72 P.3d 182 (2003) (defendant must show that the evidence was suppressed by the State and that there was prejudice, as well as impeaching). The scope of discovery is within the discretion of the trial court, and we will not disturb the exercise of that discretion absent manifest abuse. State v. Mak, 105 Wn.2d 692, 704, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986).
Brooks requested documents of compensation Dr. Stirling received from the State (county), as well as his tax returns. Brooks's stated purpose was to demonstrate that Dr. Stirling, who testified on rebuttal as a consulting expert, was biased in favor of the State. The trial court required that the State's counsel find out if Dr. Stirling could provide Brooks's requested information on the witness stand. Dr. Stirling gave the general information Brooks requested to the State's counsel and the trial court determined that discovery of the actual documents was not necessary. Brooks received Dr. Stirling's compensation information through testimony and did not show a necessity to obtain the undisclosed tax documents initially requested. The trial court did not abuse its discretion by requiring Brooks's counsel to elicit the information through examination and, thus, limiting the scope of an otherwise unduly burdensome and chilling discovery request.
6. Cumulative Evidence
Brooks claims that the State's witnesses provided testimony that was unduly prejudicial, repetitive, and cumulative. Evidence is unfairly prejudicial if it is likely to elicit an emotional response, rather than a rational decision. State v. Stackhouse, 90 Wn. App. 344, 356, 957 P.2d 218, review denied, 136 Wn.2d 1002 (1998). The trial court has considerable discretion in balancing the relevancy or probativeness of evidence against its prejudicial effects and a trial court's decisions will not be overturned absent manifest abuse of discretion. State v. Reay, 61 Wn. App. 141, 148, 810 P.2d 512, review denied, 117 Wn.2d 1012 (1991). Brooks objected at trial to the testimony of various doctors as being cumulative under ER 403. The State called five treating physicians to testify to different aspects of Z.B.'s condition, Dr. Lukschu to provide a diagnosis, and Dr. Stirling as a rebuttal witness.
ER 403 allows the trial court to limit the presentation of relevant evidence, stating that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, . . . or needless presentation of cumulative evidence." ER 403. State v. Weiss, 73 Wn.2d 372, 378, 438 P.2d 610 (1968) ("The limitation of testimony to avoid unnecessary repetition is [reviewed for] . . . abuse of discretion."). Evidence is cumulative and unfairly prejudicial if it is additional proof of the same kind to the same point. In re Personal Restraint of Brown, 143 Wn.2d 431, 454, 21 P.3d 687 (2001); State v. Williams, 96 Wn.2d 215, 223-24, 634 P.2d 868 (1981); ER 403. But to be cumulatively prejudicial, the evidence must be of the same kind and used only to corroborate evidence that has already been corroborated and need not continue to be corroborated. See Williams, 96 Wn.2d at 224. Although here all seven physicians reached the same conclusion, each analyzed and commented on different aspects of the evidence from a couple of different specialties: emergency room evaluation, neurosurgery, pediatrics, radiology, etc.
Dr. Rod Belkin Diagnostic Interpreted CT scans Radiologist and described injuries on the CT scan.
Dr. Elo Wobig Emergency Initial diagnosis Medicine was that Z.B. suffered trauma.
Dr. William Pediatric Interpreted a Bennett Radiologist skeletal survey, MRI, and additional CT scan.
Dr. Clare Pediatric Operated on Z.B. Wehby Neurosurgeon because of subdural hematoma.
Dr. Cynthia Pediatric Reviewed all medical Cristofani Intensive Care reports that Z.B. Specialist suffered non-accidental trauma.
Dr. Michael Pediatrician Expert on detecting Lukschu child abuse.
Dr. John Pediatrician State's rebuttal Stirling expert on child abuse.
Thus, the trial court did not abuse its discretion in allowing the testimony.
7. Payment of Expert Witness Fees
Brooks claims the trial court erred by refusing to authorize payment of her expert witness fees at public expense. CrR 3.1(f) allows an indigent defendant to move for state funds to pay expenses for expert witnesses. State v. Adams, 77 Wn. App. 50, 54, 888 P.2d 1207, review denied, 126 Wn.2d 1016 (1995). The rule incorporates constitutional requirements by recognizing that funds must be provided when necessary for an adequate defense. State v. Hermanson, 65 Wn. App. 450, 452, 830 P.2d 674, review denied, 120 Wn.2d 1016 (1992) (quoting State v. Kelly, 102 Wn.2d 188, 200, 685 P.2d 564 (1984)). A trial court's denial of the defendant's motion for funds will not be reversed absent a showing of an abuse of the trial court's discretion and substantial prejudice to the defendant's ability to present her defense. See Hermanson, 65 Wn. App. at 452-53 (quoting State v. Aamold, 60 Wn. App. 175, 177, 803 P.2d 20, review denied, 117 Wn.2d 1016 (1991)). Brooks must show that the expert was necessary to her defense, and that the denial was an abuse of the court's discretion that caused substantial prejudice to her defense.
Brooks relies on the state constitutional provision that "[i]n no instance shall any accused person before final judgment be compelled to advance money or fees to secure the rights herein guaranteed," and she suggests that this provision relieves her from the requirement of making any showing of financial or evidentiary need. But case law does not support this claim. Adams, 77 Wn. App. at 54 ("indigent defendant may move for state funds for expert services [and] . . . must demonstrate that the requested expert services are necessary to an adequate defense"); Hermanson, 65 Wn. App. at 453 (trial court has discretion to determine whether expert services are "necessary"). Brooks failed to demonstrate that the expert was necessary for an adequate defense, that she was indigent, and that the denial caused substantial prejudice. Because she was not indigent and made no showing that an expert was necessary to her defense and otherwise unavailable to her, the trial court did not abuse its discretion in denying Brooks's request that the State pay the expert witnesses she selected to present her defense.
Wash. Const. art. I, sec. 22.
The constitutional provision at issue applies to those fees and costs in existence in 1889 when the constitution was drafted.
8. Impeachment of Dr. Stirling
Brooks claims that the trial court improperly limited her trial counsel's ability to impeach or challenge Dr. Stirling's credibility and expertise by excluding quotes from articles disagreeing with Dr. Stirling. The trial court ruled that the articles were irrelevant on the question of Dr. Stirling's expertise.
The scope of cross examination lies within the sound exercise of the trial court's discretion. State v. Israel, 113 Wn. App. 243, 289, 54 P.3d 1218 (2002), review denied, 149 Wn.2d 1013 (2003). ER 611(b) allows a trial court to limit the scope of the cross examination or permit inquiry into other issues beyond the scope of direct when appropriate. Brooks offered evidence of articles disagreeing with Dr. Stirling's writings to prove Dr. Stirling's "lack of expertise." Pro Se Br. of Respondent at 5. But although the articles may have disputed Dr. Stirling's conclusions, they had no bearing on his expertise, which is determined by knowledge, skill, experience, training, or education. ER 702; State v. Ortiz, 119 Wn.2d 294, 309-10, 831 P.2d 1060 (1992).
If Brooks wished to challenge Dr. Stirling's conclusions, she could either do so through her own expert or through cross examination, which she did. In addition, we note that the fact that numerous articles are written in response to Dr. Stirling is some indication that he is a recognized authority. Moreover, Brooks did not challenge Dr. Stirling's expert qualifications at trial and the record is not sufficient to allow review of the merits of her belated claim. State v. Florczak, 76 Wn. App. 55, 72-73, 882 P.2d 199 (1994), review denied, 126 Wn.2d 1010 (1995).
Brooks also claims that her right of confrontation was violated apparently because she was not able to successfully challenge Dr. Stirling's testimony. But Brooks presented expert witnesses who disagreed with Dr. Stirling's conclusion that Z.B.'s injuries were the result of intentional abuse. And she challenged Dr. Stirling's opinions on cross examination leading to his acknowledgement that subdural hemotoma would not likely be the result of abuse if it was the only injury on a child. The trial court's only limitation on Dr. Stirling's cross examination was that if the defense presented impact testimony on cross, the State could present evidence to refute this testimony. The trial court did not abuse its discretion in so ruling and the ruling did not abridge Brooks's confrontation rights.
9. Rebuttal Testimony
Brooks next argues that the trial court improperly allowed Dr. Stirling to testify as a rebuttal witness because she did not raise new matters in her defense and that the State's rebuttal was merely a repetition of their case in chief. The State asserts that Dr. Stirling was called to respond to the appellant's theories presented through the testimonies of Dr. Uscinski and Dr. Goldsmith.
Rebuttal evidence is evidence admitted to permit the State to answer new matters presented by the defendant. State v. White, 74 Wn.2d 386, 394, 444 P.2d 661 (1968). The admission of rebuttal evidence is within the discretion of the trial court and will not be reversed absent manifest abuse of discretion. White, 74 Wn.2d at 395.
Dr. Stirling was called by the State to answer the defense's theory that Z.B.'s injuries were caused by a difficult birth. This theory was based on the speculative testimony of Dr. Goldsmith, a biomechanical engineer, and Dr. Uscinski, a neurosurgeon.
The defense claimed that Z.B. was not suffering from SBS. Dr. Goldsmith testified that subdural hematomas can be caused by the birth process, rebleeding of chronic subdural hematoma, or traumatic injury, and that Z.B.'s injuries could not have resulted from shaking. Dr. Uscinski also speculated that Z.B.'s subdural hematoma was the result of a chronic subdural hematoma that originated from Z.B.'s birth. But the defense presented no evidence of Z.B.'s actual birth circumstances. The State properly provided Dr. Stirling as a rebuttal expert witness to answer the unsubstantiated theory the defense presented. See State v. Buckner, 74 Wn. App. 889, 893, 876 P.2d 910 (1994), aff'd, 133 Wn.2d 63 (1997), overruled on other grounds by State v. Thomas, 138 Wn.2d 630, 980 P.2d 1275 (1999). Thus, the trial court did not abuse its discretion by allowing the State to call Dr. Stirling to give his expert opinion that Z.B.'s injuries were the result of SBS and not the result of a birth trauma.
Dr. Belkin indicated that the older subdural hematoma was difficult to age but was possibly a week old. Z.B. was 10 and a half weeks old on February 2, 1998, the date Brooks called 911.
10. Z.B.'s Special Needs
Brooks claims that the trial court erred when it would only allow her to admit evidence of Z.B.'s special needs if the State mentioned Z.B.'s future prognosis. Brooks and the State stipulated that Z.B. has recovered from his injuries and is living in Seattle. Based on this stipulation, the trial court ruled that evidence of Z.B.'s "special needs" could only be introduced if the State introduced evidence of Z.B.'s future prognosis. Brooks sought to introduce a witness to testify that Z.B.'s injuries may have been caused by his birth mother's use of alcohol during pregnancy. Relying on hearsay, the State objected to referring to Z.B. as a "special needs" child, but agreed not to discuss the future effects of Z.B.'s injuries if Brooks did not mention Z.B.'s special needs.
Neither the reasons for the parties' stipulation nor the respective objections are entirely clear on this record. But it is clear that the parties did enter into the stipulation and the trial court did not abuse its discretion by enforcing it. The record shows clearly that Brooks agreed to this stipulation. Any error was invited and under the invited error doctrine, Brooks is prohibited from setting up an error at trial and then complaining of it on appeal. State v. Wakefield, 130 Wn.2d 464, 475, 925 P.2d 183 (1996).
11. Alleged Violation of the Stipulation
Brooks claims that the State violated the stipulated agreement when Dr. Stirling testified to Z.B.'s future prognosis and that the trial court should have struck Dr. Stirling's entire rebuttal testimony. The State disputes that Dr. Stirling violated the stipulation and argues that even if he did, Brooks cannot make this claim for the first time on appeal because the trial court cured any prejudice by striking the specific testimony and giving a curative instruction.
Our review of the record establishes that the testimony Brooks objected to did not pertain to Z.B.'s prognosis. Dr. Stirling only refused to agree that Z.B. suffered no ill effects from the incident because signs of such injuries may not appear until the "children are five or six years of age." XII-B RP at 2922. We agree with the State that this statement did not violate the stipulation. Nevertheless the trial court struck the statement. Brooks cites no legal authority that would require the trial court to strike Dr. Stirling's entire testimony and we could find none. Moreover, under the agreement, Brooks's remedy would be to raise the claim that Z.B. was a "special needs" child. Thus, the trial court did not abuse its discretion in striking a limited portion of Dr. Stirling's testimony. State v. Madison, 53 Wn. App. 754, 766, 770 P.2d 662, review denied, 113 Wn.2d 1002 (1989) (scope of expert's testimony within the trial court's discretion).
12. Ineffective Assistance of Counsel
Brooks next claims that her trial counsel was ineffective for failing to object to cumulative and impermissible hearsay testimony and by having the trial court overrule his objections. The State asserts that Brooks's trial counsel's evidentiary decisions were tactical and not ineffective.
To establish ineffective assistance of counsel, the defendant must prove (1) that his counsel's performance was deficient, and (2) that prejudice resulted. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Representation is not deficient performance if it is attributable to matters of trial strategy or tactics. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). There is a strong presumption that counsel has rendered adequate assistance and has made all significant decisions in the exercise of reasonable professional judgment. State v. Glenn, 86 Wn. App. 40, 45, 935 P.2d 679 (1997), review denied, 134 Wn.2d 1003 (1998). Since the presumption runs in favor of effective representation, Brooks must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel. McFarland, 127 Wn.2d at 336.
Only in "egregious circumstances" or testimony central to the State's case will the failure to object to evidence constitute ineffective assistance. State v. Neidigh, 78 Wn. App. 71, 77, 895 P.2d 423 (1995). If the failure to object could have been a legitimate trial tactic, then there is no ineffective assistance. Neidigh, 78 Wn. App. at 77. Brooks's counsel may have wanted to avoid calling attention to the evidence or alienating the jury by challenging her own 911 call. Moreover, the 911 call was admissible as an admission under ER 801(d)(2) and excited utterance under ER 803(a)(2). Counsel was not ineffective for failing to raise an invalid objection. See Glenn, 86 Wn. App. at 48 (defense counsel's trial tactic may be to avoid attention to certain damaging testimony). Here the failure to object to evidence appears to have been a legitimate trial tactic. Brooks has not proven that her counsel was ineffective.
13. Defendant's Presence During Discussion of Instructions
Brooks also claims that her right to be present at trial was violated when counsel took exception to some of the jury instructions in her absence. Brooks also argues that trial counsel was ineffective in failing to propose an accident instruction that would require the State to prove beyond a reasonable doubt that the injuries were not accidentally inflicted.
It is not clear from the record that Brooks was not present, but the State responds that Brooks was only absent for a short period during the instructions hearing. We will assume that she was not present for a short time.
Nevertheless, Brooks has not shown that her constitutional right to be present was violated. A right to be present exists only in matters resolving factual disputes and not matters of law. In re Personal Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835, 870 P.2d 964, cert. denied, 513 U.S. 849 (1994). A defendant's right to be present exists beyond that required for factual determinations only if "his presence has a relation, reasonably substantial, to the [fullness] of his opportunity to defend against the charge." Lord, 123 Wn.2d at 306 (quoting United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985)). Brooks claims that her presence was required because she could have reminded counsel to propose an instruction that the burden of disproving that an event was an accident lies with the State. Because taking exceptions and objections to the court's instructions to the jury are legal matters, Brooks's constitutional right to be present was not violated. No other claim of right was preserved for our review.
Again, Brooks claims that we must review her momentary absence from the instructional conference claim by alleging ineffective assistance of counsel. The standards for establishing ineffective assistance of counsel are outlined in McFarland, cited above. 127 Wn.2d at 334-35. As Brooks presents the argument, to prevail she must show that any reasonably competent attorney would have requested the accident instruction and that it would have resulted in a different outcome at trial. State v. Brett, 126 Wn.2d 136, 200, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996), habeas corpus granted on other grounds, 142 Wn.2d 868 (2001).
We note that Brooks hired the same attorneys who represented her at trial to handle her appeal.
Looking at the jury instructions, the jury could only convict if it found that the appellant "intentionally" assaulted the child. Because the jury found that the appellant acted intentionally, it also found that Brooks's acts were not accidental. Z.B.'s doctors and other experts testified that Z.B.'s injuries were the result of non-accidental trauma. Moreover, even if Brooks's accident instruction was proposed, the record did not contain sufficient evidence to warrant giving the instruction. The defense theory at trial was that Z.B. sustained a brain injury during a traumatic birth and that it ruptured when Brooks was playing with the child. But there was no evidence that Z.B.'s birth was traumatic or that he sustained a subdural hematoma as a result. Although the evidence was not conclusive, Dr. Belkin testified that in his opinion the older hematoma was possibly a week old. Z.B. was 74 days old on the day of these events. Expert testimony regarding the age and timing of his injuries placed them weeks after birth and was inconsistent with the defense expert's theory that Z.B.'s hematoma was caused by the rupture of an unsubstantiated birth injury. The evidence in the record is insufficient to support the giving of the accident instruction as Brooks requests and the instructions given clearly required the State to prove beyond a reasonable doubt that Brooks's actions were intentional.
Brooks claimed that Z.B. was brain damaged during birth but provided no evidence to support her claim. Moreover, she admitted frequently tossing her 10-1/2-week-old child in the air and onto her bed. Babies of that age are unable to maintain head and neck control and tossing is an intentional act. Donna L. Wong, Whaley Wong's Nursing Care of Infants and Children 521 (Mosby-Year Book, Inc. 1995).
14. Assault Instruction
Brooks also alleges that her trial counsel was ineffective for not objecting to Instruction No. 5, the assault instruction. Brooks claims that she was prejudiced because the instruction improperly made the offense a strict liability offense. The instruction Brooks challenges for the first time on appeal reads "[a]n assault is an intentional touching or striking of the person or body of another." Clerk's Papers (CP) at 424. Assault is not defined in the criminal code and the courts rely on common law definitions. State v. Bland, 71 Wn. App. 345, 353, 860 P.2d 1046 (1993). There are three definitions accepted in Washington:
(1) an attempt, with unlawful force, to inflict bodily injury upon another [attempted battery]; (2) an unlawful touching with criminal intent [actual battery]; and (3) putting another in apprehension of harm whether or not the actor intends to inflict or is capable of inflicting that harm [common law assault].
Bland, 71 Wn. App. at 353 (quoting State v. Walden, 67 Wn. App. 891, 893-94, 841 P.2d 81 (1992)). Here, the trial court incorporated the common law definition of assault into the "to convict" instruction. Thus, in this case, to convict Brooks of assault of a child, the jury must necessarily have found that Brooks "assaulted" Z.B. and inflicted "great bodily harm" as required by the criminal code. RCW 9A.36.011; RCW 9A.36.120. The uncontested instruction correctly stated the law and did not relieve the State of its burden to prove all elements of the offense beyond a reasonable doubt. State v. Jackson, 87 Wn. App. 801, 813, 944 P.2d 403 (1997), aff'd, 137 Wn.2d 712 (1999); State v. Rasul, 95 Wn. App. 175, 187, 974 P.2d 916, review denied, 139 Wn.2d 1006 (1999).
Brooks also claims here that the intentional touching instruction removed the reckless element from the jury's consideration. But the record does not support her claim. There is no reason to believe that a jury cannot consider that a defendant intentionally touched a victim and recklessly caused bodily harm. See RCW 9A.36.021(1)(a); see also State v. Esters, 84 Wn. App. 180, 185, 927 P.2d 1140 (1996), review denied, 131 Wn.2d 1024 (1997).
15. Unanimity Instruction
For the first time on appeal, Brooks challenges the court's instructions for failing to require the jury to unanimously find that a specific assault caused a specific injury. Brooks also claims that under the court's instructions, the jury could have convicted her without finding that the injury was recklessly inflicted. Again Brooks argues that her trial counsel was ineffective for failing to object or propose an alternative instruction to the one she seeks to challenge on appeal.
The State argues that Brooks's argument fails on two grounds. The first ground is that a jury is required only to find unanimously that Brooks committed one offense because Z.B.'s abuse was based on a continuing course of conduct. The State also claims that because Brooks's counsel never took exception to the instructions now complained of at trial, we are precluded from reviewing Brooks's challenge. See State v. Dent, 123 Wn.2d 467, 479, 869 P.2d 392 (1994) (failure to take exception to trial court's instructions precludes appellate review).
When two or more acts constitute the offense charged, the jury must agree unanimously on the same act to convict the defendant. State v. Crane, 116 Wn.2d 315, 325, 804 P.2d 10 (1991). But when it is alleged that the defendant was engaged in a "continuing course of conduct," unanimity as to each act is not required. State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995). We review the facts in a commonsense manner to determine whether several acts constitute a continuing course of conduct. Fiallo-Lopez, 78 Wn. App. at 724. Several factors may be considered. Identity of a single victim alone is insufficient to establish a continuing course of conduct. Fiallo-Lopez, 78 Wn. App. at 724. Several different acts at different times tend to indicate separate acts. Fiallo-Lopez, 78 Wn. App. at 724. But several acts securing the same objective or the fact that the crime is properly charged as a continuing offense tend to demonstrate continuous conduct. Fiallo-Lopez, 78 Wn. App. at 724.
It is in the nature of child abuse that it is an often escalating "systematic pattern of abuse" that falls under the continuing course of conduct exception. State v. Doogan, 82 Wn. App. 185, 192, 917 P.2d 155 (1996). Moreover, crimes relating to infant abuse are "particularly appropriate" for application of the continuous conduct exception because, as here, the child victim is often "preverbal." State v. Craven, 69 Wn. App. 581, 589 n. 7, 849 P.2d 681, review denied, 122 Wn.2d 1019 (1993). The evidence of child abuse is the child's physical injuries and expert testimony as to their cause. Craven, 69 Wn. App. at 589 n. 7. There are rarely actual witnesses to testify to any single abusive act, although the results are clearly evident. Craven, 69 Wn. App. at 589 n. 7.
Even if the defense had timely requested a unanimity instruction on this record, the trial court was not required to give it. Z.B.'s injuries included both acute and chronic subdural hematoma, as well as unhealed spiral leg fractures, meaning that he sustained the injuries over a period of time and that the assault fell under the continuous conduct exception. Therefore, Brooks's counsel was not ineffective.
16. Prosecutorial Misconduct in Closing Argument
Brooks asserts that the State committed misconduct in the closing argument by referring to "out of town" doctors, appealing to sympathy and prejudice, and arguing about giving Z.B. "his day in court."
To establish prosecutorial misconduct, the defendant must prove that the prosecutor's conduct was improper and that his conduct prejudiced the defendant's right to a fair trial. State v. Johnson, 113 Wn. App. 482, 492, 54 P.3d 155 (2002), review denied, 149 Wn.2d 1010 (2003). To establish prejudice, the defendant must prove that there is a substantial likelihood that the misconduct affected the jury's verdict. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998). We review a prosecutor's comments during closing argument "in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury." Brown, 132 Wn.2d at 561. And failure to object constitutes waiver of the objection unless the comment was so flagrant or ill-intentioned that it causes an enduring prejudice that could not be cured by instruction. Brown, 132 Wn.2d at 561. A new trial is not required if the misconduct could have been cured by instruction, but the appellant did not request one. Brown, 132 Wn.2d at 561.
Brooks asserts that the prosecutor made three improper statements in closing argument. Two of the statements refer to the fact that defense witness, Dr. Uscinski, was not a local doctor. The third statement asked the jury to give the victim, Z.B., "his day in court." Defense counsel only objected to two of the statements. Brooks argues that the prosecutor referred to Dr. Uscinski as being from "out of town" to suggest that either his theory is rarely advocated and that the defense had to look all over the country to find such an expert or to raise prejudice against a non-local witness. Brooks does not argue that there was a substantial likelihood that the jury verdict would have been different but for these improper statements. And we see no reason to presume that the jurors disregarded the evidence, the court's instructions, and their oaths and rendered a verdict based on this comment about an expert witness's home.
The statement was likely improper. See State v. Reed, 102 Wn.2d 140, 143, 684 P.2d 699 (1984) (referring to "city lawyers com[ing] down here [to] make your decision" and "city doctors who drive down here in their Mercedes Benz" were improper).
Brooks also claims that the State's request to give Z.B. "his day in court" was designed to appeal to the passion and prejudice of the jury. Our Supreme Court has held that comments that appeal to "the jury to act as a conscience of the community are not impermissible, unless specifically designed to inflame the jury." State v. Finch, 137 Wn.2d 792, 842, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999) (quoting United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984)). Moreover, comments that might elicit sympathy for the victim are not necessarily improper. State v. Davis, 141 Wn.2d 798, 873, 10 P.3d 977 (2000) (prosecutor's comment that the defendant had acted as a "judge, jury, and executioner" for the victim was not improper.)
The State's comments appear to have been improperly designed to appeal to the jury as a conscience of the community, but they do not appear to have been designed to inflame the jury's passion and override its duty to follow the law and base its decision on the evidence. Although it is self evident that an infant would not appear to testify at trial, such comment might not be improper in circumstances where the alleged victim was unable to attend and testify. Here, the unobjected statement was improper, but harmless, as it was not so flagrant or inflammatory as to deprive Brooks of her right to a fair trial.
Finally, Brooks cites several statements made by the State during closing argument that she claims were improper and constitute misconduct. Brooks's counsel never objected to the comments at trial and they are not so inflammatory and ill-intentioned as to require further analysis. State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990) (absence of objection indicates comment not prejudicial in the context of the trial), cert. denied, 498 U.S. 1046 (1991). Brooks is precluded from challenging these statements for the first time on appeal. See Brown, 132 Wn.2d at 561.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, J. and BRIDGEWATER, J., concur.