Andrews v. State

BELL, C.J. The petitioner, Kurt Nichols Andrews, was arrested and tried, in the Circuit Court for Montgomery County, for the ⁴ death of his infant daughter, Kristin Andrews, 1 which, it was alleged, was caused by “Shaken Baby Syndrome.” Shaken Baby Syndrome is characterized by violent acceleration and deceleration forces being applied to an infant, whose head is disproportionately heavy, whose neck muscles are weak, and whose brain is unmyelinated and soft, making it more susceptible to trauma. The petitioner was found not guilty of second degree depraved heart murder, involuntary manslaughter, and child abuse. He was convicted, however, of reckless endangerment, for which he was sentenced to a term of five years imprisonment. After unsuccessfully appealing his conviction to the Court of Special Appeals, the petitioner filed a petition for Writ of Certiorari with this Court, which we granted.

Andrews v. State, 362 Md. 34 , 762 A.2d 968 (2000). In this Court, the petitioner argues that the trial court erred by allowing a demonstration, using a doll that did not have the same characteristics as the infant child alleged to have been shaken, to be conducted before the jury for the purpose of showing the amount of force necessary to cause an injury associated with Shaken Baby Syndrome, and by permitting the expert witness, called by the respondent, the State of Maryland, to testify on the basis of that demonstration. We agree. Accordingly, we shall reverse.

I. As acknowledged by the State, the facts of the case sub judice are largely undisputed. Kristin Andrews was bom prematurely, at a gestational age of 23& weeks, 2 weighing only one pound and eight ounces, in Mercy Hospital on May 6, 1997. As a result, she was plagued with severe health complications, including intraventricular brain hemorrhage, sustained at birth, patent ductus arteriosus (a hole in the heart), ⁵ and Respiratory Distress Syndrome. Kristin required eight blood transfusions as a result of anemia of prematurity.

In addition, Kristin suffered from periodic bouts of apnea, a cessation of breathing for 20 seconds or more, and bradycardia, a slowing of the heart rate to less than 100 beats per minute. Kristin was also treated for an e-coli infection and monitored for retinopathy of prematurity, a condition in which blood vessels to the eye develop abnormally, resulting in the eye becoming engorged, possibly leading to detachment of the retina. She was unable to self-feed and required an arterial line to the umbilicus for formula, antibiotics and fluids. Kristin remained hospitalized for a period of 89 days after birth, requiring during that period, numerous medications and medical equipment.

Due to the Respiratory Distress Syndrome caused by the premature development of her lungs, she required an artificial surfactant 3 to prevent lung collapse; medication to stimulate the brain center to breathe; a diuretic to prevent pulmonary edema; a powerful steroid to decrease inflammation of the lungs; and supplemental oxygen to assist her breathing. Her first 28 days of life were spent in the Neonatal Intensive Care Unit. The remainder of Kristin’s hospital stay was spent in the Stepdown Unit, which was one level higher than a traditional newborn nursery. Throughout her hospitalization, Kristin was under constant monitoring as a result of apnea and bradycardia attacks.

Some of those attacks required medical intervention. The petitioner and Debbie Young, Kristin’s mother and the petitioner’s fiance, visited their daughter daily while she was hospitalized. Testimony adduced at trial indicated that both parents bonded strongly with Kristin and that, the petitioner, Ms. Young, Ms. Young’s seven-year old son and Kristin appeared to be a caring and loving family. Kristin was discharged from the hospital on August 2, 1997, about the same time she would have been born at full-term. ⁶ Although she was allowed to leave the hospital, she continued to have health problems associated with her premature birth: Kristin was diagnosed as having bronchial pulmonary dysplasia, damage to the lungs associated with Respiratory Distress Syndrome in premature infants.

Thus, Kristin was sent home with a 24-hour a day monitor and instructions for the continued administration of medication designed to stimulate breathing. Both of her parents were instructed in the use of the monitor and cardiopulmonary resuscitation (CPR) of infants. The record indicates that the leads to the monitor sometimes became detached, which would trigger an alarm. In addition, the monitor would sound an alarm when the memory was full indicating that the monitor, required servicing.

The alarms resulting from a loose lead or a full memory are different from the alarm sounded when triggered by an apnea event. Nevertheless, whenever an alarm sounded, the petitioner or whoever was caring for her would have to check on Kristin to determine whether the alert from the monitor was a false alarm or a true alarm. Kristin also required on-going medical evaluation. In one such followup examination, Kristin’s doctor noted that she exhibited abnormally rigid muscle tone which suggested a brain injury that may become more apparent as Kristin developed.

As a consequence of Kristin’s need for heightened medical care and attention that her parents had been trained to provide, the petitioner and Ms. Young agreed that, because Ms. Young, a nursing assistant, earned a higher salary than petitioner, she would keep her job and the petitioner would quit his employment and care for their daughter full time. AlS a result, the petitioner acted as Kristin’s primary caretaker from the moment she was discharged from the hospital until her death. The record indicates that the petitioner took Kristin to all of her followup examinations with her doctors. During this time, Kristin’s weight increased to eleven and-a-half pounds, which was characterized as excellent weight gain.

Kristin’s last recorded apnea event took place on September 5, 1997. ⁷ In October of 1997, Ms. Young was offered a position as a medical assistant with Kaiser Permanente. Although the position was located in Towson, Maryland and the family resided in Baltimore County, acceptance of the job was dependent on Ms. Young traveling to Rockville, Maryland for a three-day training seminar. Ms. Young being unfamiliar with the Rockville area, the petitioner and Ms. Young agreed that the petitioner would drive Ms. Young to the training seminar. Due to financial difficulties, however, to avoid wasting gas making the return trip to Baltimore and back to Rockville to pick Ms. Young up at the conclusion of the training and concerned that no one would be available to pick up Ms. Young’s seven-year old son after school, the couple also decided that the entire family would accompany Ms. Young to Rockville and would remain there the entire day while Ms. Young attended the training seminar.

The family left for Rockville at about 6:00 a.m. on October 27, 1997 and arrived at the Kaiser Permanente garage at approximately 8:00 a.m. The leads from Kristin’s monitor detached several times that morning, causing the monitor to sound an alarm. The petitioner remained in the car with the two children. During a break in the training session, between 9:00 a.m. and 10:00 a.m., Ms. Young returned to the car to check in on the family.

She testified that all was well during this visit which lasted approximately fifteen minutes. Ms. Young returned to the car shortly after noon, when she received her lunch break. She testified that, once again, the entire family appeared fine and that no one seemed frustrated by the wait. The petitioner fed Kristin a bottle and burped her at approximately 2:45 p.m.

At the conclusion of the feeding, according to accounts given by the petitioner to medical personnel, Kristin began choking and stopped breathing. Testimony at trial also indicated that the petitioner informed the medical personnel that he had unsuccessfully attempted to resuscitate Kristin by performing CPR and shaking her gently. A passerby in the garage, flagged by petitioner, was able to place a call from the garage office to 911 at 2:54 p.m. ⁸ The log on Kristin’s monitor indicated that between 11:05 a.m. and 2:59 p.m. the monitor had registered 20 “loose lead” alarms and 16 “full memory” alarms. 4 The last loose lead alarm occurred at approximately 2:47 p.m. and lasted until the monitor was turned off at 2:59 p.m. Emergency medical technician, Captain Michael Prete, arrived at the scene at approximately 2:59 p.m.

Captain Prete noticed that Kristin was lying on the back seat of the vehicle, unconscious, not breathing with some blueness around her lips, indicating a lack of oxygen in the body. Captain Prete unsuccessfully attempted to arouse Kristin by tapping her on the feet. He then covered her nose and mouth with his mouth and blew two breaths of air into Kristin’s lungs. At this point, Captain Prete noticed a rise and fall in Kristin’s chest and that she began to vomit a milky substance.

Unable to detect a pulse, Captain Prete then began CPR and proceeded to transfer her by ambulance to Shady Grove Adventist Hospital. During the ambulance ride, Prete noted that he was able to stimulate a spontaneous pulse in Kristin, however, she never breathed on her own and required the assistance of an “ambu-bag” which contained 100 percent oxygen. Although, Kristin vomited a couple more times in the ambulance, the emergency technicians were able to keep her airways clear. The technician administered epinephrine, a medication designed to increase Kristin’s slow ventricular heart rate.

Arriving at the hospital at 3:18 p.m., the hospital personnel immediately suctioned milk and vomitus from Kristin’s airways. Kristin’s eyes and body were unresponsive to light or touch. She was wheezing and her hands and feet were blue. Dr. Rebecca Salness, a pediatric emergency physician, and Dr. Allison Goodman, a pediatric intensive care physician, unsuccessfully continued CPR and the administration of various medicines for more than two hours.

Nevertheless, Kristin never regained consciousness and was pronounced dead at 5:25 p.m. Dr. Salness recorded her diagnostic impression as ⁹ electro-mechanical disassociation (pulseless electrical activity, and consequently, no circulation), aspiration vomitus (inhaled vomit, or milk in the breathing system blocked, totally or partially, the airway); complications of respiratory problems associated with premature birth, disseminated intravascular coagulopathy (clotting problem caused by oxygen deprivation to the brain) and cardiorespiratory arrest (heart and breathing stopped). Dr. Salness testified at trial that the chances of survival for a child after a choking event similar to Kristin’s was “very good” if CPR is administered soon after. She further indicated that patients usually respond to the CPR quickly or would “die within 30 minutes or maybe an hour,” and that it was unusual to perform CPR on a person for as long as they had on Kristin.

An autopsy was performed on Kristin’s body the day after her death. Dr. James Laren Locke was the assistant medical examiner on duty that day. The autopsy of Kristin Andrews was initiated by Dr. Ling Lee, a post graduate research pathologist with a special interest in research into Sudden Infant Death Syndrome (SIDS); however, it was completed by Dr. Locke. 5 Dr. Locke testified that a technician cut and removed Kristin’s skullcap, and that “40 to 50 milliliters of blood,” in fluid form, escaped as the skull cap was removed, a “very little” amount being captured in a specimen cup. Dr. Locke believed the presence of the blood to be evidence of an acute and recent subdural hemorrhage.

He also noted a subarachnoid hemorrhage of the brain which he also thought was recent, and bruising along the optic nerve sheath. Dr. Locke did not obtain complete medical records for Kristin and was unaware that she had been diagnosed with intraventricular hemorrhaging in her brain while in Mercy Hospital. He was further unaware that Kristin was evaluated for retinopathy of prematurity and that there had been blood in a spinal ¹⁰ tap (which can indicate blood in the subarachnoid space in the brain) done at Mercy Hospital. Having marked on the death certificate that the cause of death was “pending,” Dr. Locke consulted with two pathology specialists, Dr. Juan Troncosa, a neuropathologist and Dr. W. Richard Green, an ophthalmologic pathologist, advising them of what he knew and of his conclusions.

On November 12, 1997, without obtaining Kristin’s medical records or waiting for the reports from the pathology specialists, he changed the cause of death on Kristin’s death certificate from “pending investigation” to “homicide,” “head trauma as a result of shaking.” 6 The petitioner was subsequently arrested and charged with the murder of his infant daughter. At the petitioner’s trial, Dr. Locke was accepted as an expert witness for the prosecution, over defense objections. He testified that he had determined the cause of Kristin’s death to be consistent with “Shaken Báby Syndrome.” He further testified that, in his determination, the cause of Kristin’s death was inconsistent with any other findings. Although Dr. Troncosa, the neuropathologist, was not called as a witness, Dr. Locke did testify as to the contents of the report that he wrote.

That report disagreed with Dr. Locke and, instead, concluded that there was no evidence of a recent subdural hemmorrhage, as Dr. Locke had concluded as a result of the autopsy he conducted. The neuropathology report further concluded that there was no evidence of a swelling, tearing or bruising of the brain or shifting of the brain tissue. Dr. Locke also acknowledged that the neuropathologist had examined the spinal cord and the cervical medullary junction (where the spinal cord meets the brain), two areas susceptible to injury from shaking, but found no signs of injury. Dr. W. Richard Green, the consulting ophthalmologic pathologist, testified at trial as an expert in ophthalmology and ¹¹ pathology.

He stated that, based on the post-mortem examination of Kristin’s eyes, he noticed evidence of internal and external hemorrhaging of the optic nerve, hemorrhaging of the retina, and bleeding in the circumferential macula folds of the eyes. 7 Dr. Green testified that the specimen showed massive, diffuse hemorrhages in both eyes, which he believed occurred at least 6 days prior to Kristin’s death, perhaps more. Concluding that Kristin’s injuries could have resulted in two ways: (i) increased intervascular pressure as a result of chest compressions; or (ii) Shaken Baby Syndrome, Dr. Green’s determined that the results of the examination were consistent with a diagnosis of Shaken Baby Syndrome. Dr. Green did not believe that the chest compressions used in CPR could result in the type of injuries sustained by Kristin, but acknowledged that some studies had shown that CPR compressions can cause retinal hemorrhages in children. Dr. Green discounted the possibility that hemorrhaging found in Kristin’s sample were produced by CPR because he had never seen the degree or pattern of hemorrhaging found in Kristin’s specimen with any of the cases he examined after “vigorous CPR.” Dr. Green acknowledged that in the cases he referred to, the CPR lasted about 30 minutes, whereas the CPR on Kristin lasted almost two and a half hours.

He also acknowledged that none of the 76 child eye pathology exams he had done for the medical examiner involved premature infants, and none involved infants with a history of retinopothy of prematurity. Dr. Green further testified that the force of the chest compressions required to cause retinal bleeding would be less on the supple chest of a neonate. The prosecution called Dr. Barbara Craig as its final expert witness. Accepted as an expert in pediatrics, child abuse and the anatomy and physiology of head injuries in children, Dr. Craig opined that Kristin’s death resulted from Shaken Baby Syndrome.

She testified that the minimal criteria to justify ¹² the forensic medical diagnosis of shaken baby syndrome would be: (i) a baby who was well who suddenly became unconscious; (ii) the subdural hemorrhage described by Dr. Locke and the subarachnoid hemorrhage shown by the autopsy of the brain; and (iii) the absence of any major head injury, such as that caused by, for example, a car accident. She further stated that retinal hemorrhages are not a necessary factor in the diagnosis, but can result from Shaken Baby Syndrome. The defense called both fact and character witnesses and three expert witnesses. Dr. Michael Baden was accepted as an expert witness in the area of pathology, forensic pathology and child abuse for the defense.

He testified that, in his opinion, to a reasonable degree of medical certainty, Kristin’s death was not the result of Shaken Baby Syndrome. Dr. Baden opined that Kristin’s death was a result of choking on her formula resulting in an apnea and bradycardia event from which she did not recover. Dr. Baden’s opinion was based on his review of Kristin’s complete'medical history, including some 700 pages of records from her initial hospitalization at Mercy Hospital following birth, her pediatric records and ophthalmology records, the printouts from Kristin’s monitor, the reports from the consulting specialists, the autopsy report, tissue slides, photographs and police reports. From these records, he concluded that Kristin suffered a brain hemorrhage at birth, severe anemia (Kristin had less than a third of the red blood cells that she should have had), abnormal blood vessels in the retina because of the prematurity, and severe episodes of apnea and bradycardia.

Dr. Baden submitted that the physicians at Mercy Hospital were able to stabilize Kristin for 89 days and that she lived for an additional 85 days thereafter; however, he concluded that she was nevertheless still a very sick child. Dr. Baden agreed with the conclusion of the emergency room physician, that Kristin’s death was a result of cardiac arrest and pulmonary arrest triggered by choking on vomitus. Dr. Baden’s conclusions were also consistent with (i) the account given by the petitioner to the emergency room personnel and ¹³ (ii) the treating physician’s attempts to remove vomitus from Kristin’s airways. Dr. Baden expressly disagreed with the conclusion reached by Dr. Locke that Kristin’s death was caused by the subdural hemorrhage.

He opined that the blood that escaped during the autopsy of Kristin’s brain was the result of post-mortem bleeding and not a subdural hemorrhage. Dr. Baden testified that he disagreed with “the transient observation of the pathologist who saw the subdural, and in no way documented it, and [in] ... my own experience [of] over 39 years, that it is a common mistake beginners make to misinterpret accumulations of blood in the back of the scalp with a subdural hemorrhage because of the post-mortem seepage of blood after the dura is cut.” Dr. Baden noted that subdural hemorrhages do not appear in liquid form at the autopsy, rather they appear as clotted blood, which can be photographed and examined. In addition, a death resulting from a subdural hemorrhage would show signs of swelling. The post-mortem examination, consistent with the obseiwations of the treating emergency room physicians, indicated no evidence of swelling.

Dr. Baden concluded that the CPR efforts used to resuscitate Kristin could account for any abnormality in the brain and eyes. In addition to Dr. Baden’s testimony, the defense presented an expert in ophthalmologic pathology and ophthalmological findings associated with Shaken Baby Syndrome and an expert in neurologic traumatic injury of the head and neck. Both experts agreed with Dr. Baden that Kristin’s death was not a result of Shaken Baby Syndrome, but rather, was the result of a lack of oxygen caused by choking. Against this background of conflicting expert testimony, the prosecution was allowed to conduct an in-court demonstration.

The demonstration — intended to show the force necessary to cause Shaken Baby Syndrome — was performed before the jury, using a doll designed for infant CPR training, by Dr. Barbara Craig. Defense counsel objected to the use of the CPR doll, arguing that the prosecution had not laid a proper ¹⁴ foundation, either a showing of a sufficient similarity between the doll and Kristin or that Dr. Craig possessed the expertise to demonstrate the amount of shaking force required to cause the injuries. The trial court rejected defense counsel’s request for an in camera voir dire of Dr. Craig. Deferring its ruling until the prosecution had established the foundation, it believed that Dr. Craig’s basis of knowledge “would go to the weight rather than the admissibility of any demonstration,” and, thus, should be challenged by cross-examination.

Although the prosecutor argued that the foundation for the demonstration had been laid, offering two reasons: (i) the nurse from Shady Grove Hospital who testified had demonstrated a gentle shaking motion which Petitioner had shown her to explain how he had attempted to stimulate Kristin to begin breathing; and (ii) Dr. Craig had already laid a foundation by her testimony about her review of pertinent studies, her attendance at seminars, and her knowledge of biomechanics, the trial court informed him that he had “to ask her how she is able to determine the amount of force, her basis of knowledge.” This prompted the prosecutor to inquire: “Q [PROSECUTOR]: And now by way of kind of defining what you mean by violent shaking, I want to ask you a couple of foundational questions. “When you talk about the shaking that is necessary to cause these injuries, I guess I am getting to the basis of your knowledge for how much shaking would be involved. “So let me start by saying is that issue, the degree of force necessary to cause injuries like the one you have listed, is that something that is within the literature in the field of child abuse and head injuries in children? “A [DR. CRAIG]: Yes. It is. “Q: Is that same issue, the degree of force necessary for these injuries, something that is a topic of scholarly publishing and conversation and debate in the context of national seminars as well as more localized seminars? “A: Yes. It is. ¹⁵ “Q: Is it an issue that you discuss with your peers in the field? “A: Yes.

It is. “Q: Is it an issue that you have had some knowledge about from your treatment of surviving children from Shaken Baby Syndrome and the manifestation of injury that they have? “A: Yes. It is. “Q: And have you had the occasion to review the findings of the autopsies and studies that stem from autopsies when it comes to the amount of force necessary to cause these types of injuries. “A: Yes. I have.” The trial judge then ruled, based on this testimony, that Dr. Craig could demonstrate the amount of force necessary to cause Shaken Baby Syndrome by using the CPR doll. Defense counsel renewed his objection, reiterating at a bench conference that he did not believe a proper foundation had been laid.

He detailed his reasons: “[DEFENSE COUNSEL]: There has been no evidence that this doctor has testified about that she is aware of actual studies that show how much force is necessary. “And, in fact, the only study has [sic] been done again suggests that the force — simply a shaking is not sufficient to cause the injuries she has described. “She has not testified that Kristin Andrews’ physical condition is sufficiently similar to the doll that is going to be used both in her size, weight, and the relationship between her weight and size and her head, the development of the neck in the doll with the neck in Kristin Andrews — all of those factors she has not testified about. “She has not talked at all about any principles of physics that would lead her to the basis to think that she could have an actual opinion of shaking. “She has not said that she had people who have shaken children describing how violently they are or that that has been described in the literature. ¹⁶ “She has not done anything [sic] of those things, and for that reason, I do not believe that it is an expert opinion.” ■The trial judge reiterated her previous ruling: “That would go to the weight of [the expert’s] opinion rather than the admissibility of the demonstration.” Thereafter, the following colloquy occurred in front of the jury prior to the actual demonstration: “Q [PROSECUTOR]: Now we have used this doll, State’s exhibit 6, for purposes of talking about CPR. And I want to ask you first of all — and this is compared to babies in general and then compared to Kristin Andrews — can you tell us what the similarities and differences are .by the way of weight and flexibility