Regina Lea Frank v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner
Argued at Norfolk, Virginia
REGINA LEA FRANK
MEMORANDUM OPINION * BY
v. Record No. 0824-98-1 JUDGE SAM W. COLEMAN III
MAY 25, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Junius P. Fulton, III, Judge
Lenita J. Ellis for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General;
Richard B. Smith, Assistant Attorney
General, on brief), for appellee.
Regina Lea Frank was convicted by bench trial of
second-degree murder for the death of her two-month-old son,
Zachary Frank. On appeal, Frank contends that the trial court
erred in denying a motion to suppress her oral and written
statements and that the evidence was insufficient to support the
conviction. Finding no error, we affirm.
I. BACKGROUND
When an appeal challenges the sufficiency of the evidence or
the denial of a suppression motion, we view the facts in the light
most favorable to the prevailing party and grant to that party all
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
reasonable inferences fairly deducible therefrom. See
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975) (regarding sufficiency appeals); Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)
(regarding suppression motion appeals).
On Monday, November 25, 1996, two-month-old Zachary Frank
stopped breathing in his father’s arms. Mr. Frank attempted CPR
while awaiting assistance. When paramedics responded, they found
the baby unconscious and having agonal respirations of eight per
minute. Paramedics attempted to intubate the child twice but
failed. They noted that the airway was clear and then ventilated
the baby with a bag valve mask. The baby responded and began to
cry after which paramedics administered “blow by” oxygen.
Zachary’s breathing returned to the normal range of about sixty
breaths per minutes. The baby’s eyes were deviated, and he was
posturing, or arching his back. When they arrived at the King’s
Daughters Hospital, at 6:03 p.m., the baby’s color was restored,
and he continued to breathe on his own. At the hospital, doctors
administered meningitis antibiotics in accordance with hospital
policy.
At trial, the Commonwealth called three medical expert
witnesses who described the baby’s medical condition and opined
that the cause of death was shaken baby syndrome.
Dr. Christopher Foley, a pediatric intensive care physician,
treated Zachary for most of the baby’s time at the hospital. He
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first examined Zachary between 9:30 and 10:00 p.m. the night he
arrived. Dr. Foley testified that Zachary was critically ill,
pale and mottled, had low blood pressure, was on heart medication
and was on life support. A CT scan of Zachary’s head on November
25, revealed subdural and subarachnoid hemorrhages, 1 and loss of
gray-white differentiation, indicating swelling of the brain.
Upon further examination, Dr. Foley also discovered retinal
hemorrhaging.
Doctors administered an EEG which indicated that Zachary’s
brain had “suffered a global insult” that affected the vast
majority of his brain. Despite administering phenobarbital
medication, the child continued to experience seizures causing
further injury to the brain. Zachary had signs and symptoms of
brain death thirty-six to forty hours after arrival at the
hospital. Ultimately doctors performed a “flow study” on
Zachary’s brain revealing that the brain was receiving no blood
flow, and he was clinically dead. On December 1, at 1:00 p.m.,
doctors pronounced him dead.
Dr. Donald Lewis, a pediatric neurologist at the King’s
Daughters Hospital, assisted as a consultant for Zachary on the
morning of November 26. Dr. Kinnison, an Assistant Chief Medical
Examiner for the Commonwealth, performed an autopsy on Zachary.
1
Dr. Foley testified that subdural hemorrhaging refers to
blood beneath the thick dura of the brain whereas subarachnoid
hemorrhaging refers to blood directly against the brain.
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All three experts opined that Zachary’s cause of death was shaken
baby syndrome. Each acknowledged that establishing the time of
injury was imprecise, but each testified that the injuries could
have occurred seventy-two hours before the CT scan.2
In addition to establishing that Zachary’s constellation of
injuries was consistent with shaken baby syndrome, the experts
also ruled out numerous other possibilities. The experts
testified that neither aggressive CPR, lack of oxygen, meningitis,
meningitis prophylactics, antibiotics, reflux, reflux medication,
apnea, failed intubation attempts, phenobarbital, nor the
cryprecipitate blood transfusions or any combination of these
events would have caused the combination of symptoms that
afflicted Zachary. According to Dr. Lewis, “there is no other
explanation [than shaken baby syndrome] that causes this
constellation of injuries.”
Prior to the incident, Zachary had been treated for reflux.
Additionally, on Saturday, November 23, 1996, doctors at King’s
2
Dr. Foley testified that the CT scan showed the presence of
old and new blood indicating two separate injuries, one of which
would have occurred within approximately seventy-two hours and
one of which would have occurred four or five days earlier.
Lewis testified that the injuries would have occurred within
twenty-four to seventy-two hours. Kinnison stated that the
symptoms could appear anywhere from immediately after the injury
to seventy-two hours after the injury. She also stated that
injuries sometimes occur three, four, or even five days before
the symptoms appear. All the witnesses agreed that a shaken
baby sometimes shows no apparent signs of injury for three or
more days.
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Daughters’ outpatient clinic diagnosed Zachary with a viral
infection but did not notice anything else unusual and did not
prescribe any medication. Family members testified that on
November 24 and 25, Zachary had cold symptoms but otherwise
appeared normal.
Police Investigator Ingram first spoke to the defendant at
the hospital on November 26, the day after Zachary’s admission to
the hospital. Mrs. Frank had left the hospital and had slept for
about four hours that evening, which she testified was about her
normal amount of sleep.
At Ingram’s request, the Franks met with him at the police
station at 3:12 p.m. on November 26. Ingram, Investigator
Goldberg, and Child Protective Services worker Brent Ramey were
present. Prior to interviewing Mrs. Frank, Ingram advised her of
her rights. Mrs. Frank executed a Norfolk Police Department Legal
Rights Advice Form PD-381. She was not restrained and did not
appear intoxicated or under the influence of drugs. During the
course of the interviews, the officers neither threatened Mrs.
Frank, raised their voices, nor made any promises.
Initially, Mrs. Frank denied injuring her child and suggested
that her daughter may have inflicted the injury. At 5:07 p.m.,
officers decided to interview Mr. Frank. Officers asked Mrs.
Frank if she wanted to use the bathroom or if she needed a drink.
After interviewing Mr. Frank, the investigators brought Mrs. Frank
back into the interview room where she agreed to take a polygraph
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test. At 6:50 p.m., prior to the polygraph, Regina Frank stated
“If I did it, I don’t remember doing it.” At 7:13 p.m., she
stated, without prompting, “How can you tell if I did it if I
don’t remember doing it.” At 7:15 p.m., in reference to Friday
evening, Frank stated
I was in a good mood all weekend but I
was frustrated that I couldn’t help Zachary
and that he was sick. My older daughter
frustrated me by asking me if she could
watch the same movie over and over again. I
gave in and let her. Sometimes I raise my
voice at my daughter and I almost struck her
out of frustration.
At 7:16 p.m., she stated, “I sometimes take out my
frustrations by cleaning up the house and throwing things at the
wall but not at people.” Investigators Ingram and Goldberg made
notes of these statements.
Between 7:19 and 8:20 p.m., Investigator Crank performed a
polygraph examination on Mrs. Frank. After the examination,
Ingram informed Mrs. Frank that the test indicated a ninety-nine
percent probability of deception. At 8:34, Mrs. Frank stated:
“Both kids were getting me upset and my older daughter wanted to
watch the same movie over and over and I shook the swing and
probably took him out and shook him. I lost control so much I can
only remember some parts.” Upon departing the polygraph room,
investigators offered Mrs. Frank a beverage.
Investigators again advised Mrs. Frank of her legal rights
and thereafter obtained an eight minute taped statement. During
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the statement, Mrs. Frank admitted to being frustrated at her
daughter’s behavior and by Zachary’s crying. She admitted that on
Friday, she shook the swing upon which Zachary sat. Ingram asked,
“Didn’t you tell me you shook the swing violently?” She
responded, “Yes sir.” When asked if her husband or anyone else
shook the child she responded “No.” When asked, “How do you feel
that he acquired these injuries,” she responded, “By me shaking
him.”
A stenographer transcribed the tapes and at 11:05 p.m.,
investigators presented Mrs. Frank with the transcripts to review.
She pointed out several errors which Ingram corrected, she added
one phrase, and she signed every page. At 11:10 p.m.,
investigators arrested Mrs. Frank.
Prior to the polygraph, Ingram held a picture of Zachary up
close to Mrs. Frank and he said, “Mommy, help me.” Ingram also
asked Frank if she believed in God and when she responded in the
affirmative, he said “well if you didn’t do this . . . can you
invoke the Lord and tell him to help us find who [did this] and
can you look God in the eyes . . . at judgment day . . . and tell
him that [you] didn’t have anything to do with this.” Frank held
her hands up in the air with her fists balled, and Ingram said
“can’t you open your heart . . . . [H]olding your hand in a fist
is an indication that your blocking something . . . . [L]et him
in, call him out.”
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II. ANALYSIS
A. SUPPRESSION MOTION
In an appeal challenging a ruling on a motion to suppress, we
consider the evidence in the record from both the suppression
hearing and the trial. See Woodson v. Commonwealth, 25 Va. App.
621, 625, 491 S.E.2d 743, 745 (1997). “While we are bound to
review de novo the ultimate questions of law, we ‘review findings
of historical fact only for clear error.’” Id. at 625, 491 S.E.2d
at 745 (quoting Ornelas v. United States, 517 U.S. 690, 699
(1996)).
Even when a suspect waives his or her Fifth and Sixth
Amendment rights, a confession made involuntarily is inadmissible.
See Morris v. Commonwealth, 17 Va. App. 575, 579, 439 S.E.2d 867,
870 (1994). The voluntariness of a statement is “ultimately a
legal rather than a factual question, but subsidiary factual
questions are entitled to a presumption of correctness.” Williams
v. Commonwealth, 234 Va. 168, 172, 360 S.E.2d 361, 364 (1987).
Therefore, we determine whether the facts, viewed in the light
most favorable to the Commonwealth, support the trial court’s
legal conclusion that Regina Frank gave her statements
voluntarily.
Based on the totality of the circumstances, Frank’s will was
not “overborne,” nor was her “‘capacity for self-determination
critically impaired.’” Thomas v. Commonwealth, 244 Va. 1, 15-16,
419 S.E.2d 606, 614 (1992) (quoting Gray v. Commonwealth, 233 Va.
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313, 324, 356 S.E.2d 157, 163 (1987)). Her statements were the
“product of an essentially free and unconstrained choice.” Id.
In examining the totality of circumstances a court must
consider a number of factors including age, intelligence,
background and experience with the criminal justice system, the
purpose and flagrancy of any police misconduct, the length of the
interview, and moral and psychological pressures placed on an
accused from authorities. See Morris, 17 Va. App. at 579, 439
S.E.2d at 870.
Frank was twenty-nine years old. According to her testimony
she had completed high school and later earned a nursing assistant
certificate. A psychiatrist called by the defense testified that
despite a below average IQ, Frank was competent at the time of the
offense and that her memory was intact. The psychiatrist also
testified that Frank showed signs of emotional blunting probably
as a result of sexual abuse and chaos surrounding her life
especially during puberty.
She had slept for four hours prior to the interrogation -- a
normal amount for her -- and she was not under the influence of
drugs or alcohol at the time of the interview. She “agreed
willingly to” meet Ingram at the station, and she was not
restrained in any way upon arrival.
Ingram advised Frank of her Miranda rights. Frank executed
the advisory form and detectives again advised her of her rights
prior to the taped statement. During the course of the entire
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interview, Frank never invoked her right to silence or to have an
attorney present. She never appeared confused or emotionally
upset. From the time she arrived at the station house until the
time she was arrested, eight hours elapsed. However, during that
time she had numerous breaks, and investigators offered her
multiple opportunities to use the restroom or obtain a beverage.
Additionally, Frank made statements that justifiably raised the
investigators’ suspicions less than four hours after her arrival
at the station.
Frank argues that investigators used the polygraph as an
instrument of coercion rendering her statements involuntary. The
purpose of requiring that admitted statements be voluntary is to
insure that “the admission or confession is trustworthy as
testimony.” Owens v. Commonwealth, 186 Va. 689, 700, 43 S.E.2d
895, 900 (1947); see Jones v. Commonwealth, 214 Va. 723, 726, 204
S.E.2d 247, 249 (1974). Although the results of polygraph
examinations are not admissible, we have not applied a similar per
se prohibition to statements obtained before or after voluntary
polygraph examinations. See e.g., id. at 727, 204 S.E.2d at 249
(“We do not agree . . . that because polygraph testing is not
admissible, any statement by defendant made to the polygraph
operator in the pretesting conditioning period, or as a
preliminary to the testing, should also be excluded.”). We find
that the unreliability and inadmissibility of a polygraph
examination as an investigative tool does not render substantive
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statements per se involuntary. The same standards apply to
confessions obtained with the use of a polygraph examination as
apply to other confessions. See Jenner v. Smith, 982 F.2d 329,
334 (8th Cir 1993); Bae v. Peters, 950 F.2d 469, 475 (7th Cir.
1991); J. Smith, Admissibility in evidence of confession made by
accused in anticipation of, during, or following polygraph
examination, 89 A.L.R. 3d 230, 233-34 (1979).
Here, Ingram explained to Frank that the results of polygraph
tests are generally not admissible in court and that she had a
right to refuse the test. Frank agreed to take the test and never
stated that she did not wish to do so. Undoubtedly, telling Frank
that she “failed” the test had an impact on her willingness to
speak, but nothing about its effect on Frank raises a concern
about the reliability or voluntariness of her statement. There is
simply no evidence that the polygraph exam coerced Frank’s
statement.
Similarly, the investigators’ use of religion as an
investigative tool does not render Frank’s statement involuntary.
See Rodgers v. Commonwealth, 227 Va. 605, 615, 318 S.E.2d 298,
303-04 (1984). We find that based on the totality of the
circumstances, including an assessment of Frank’s background and
psychological condition, and having considered all the
investigative tools employed, Frank’s statements were voluntary
and reliable.
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Frank also contends that alleged oral and written statements
attributed to her were unreliable. The three individuals present
at the interview reported substantially similar statements, and
Frank reviewed and corrected her recorded statement. Furthermore,
on appeal, we defer to the fact finder’s assessment of the
credibility of evidence. See Schneider v. Commonwealth, 230 Va.
379, 382, 337 S.E.2d 735, 736-37 (1985). Accordingly, the trial
court did not err in admitting and accepting the statements.
B. SUFFICIENCY OF THE EVIDENCE
1. Standard of Review
Frank challenges the sufficiency of the evidence to support
her conviction. She contends the evidence was insufficient to
show that the cause of Zachary’s death was homicide. Frank claims
that even if the cause of death was homicide, there was
insufficient evidence to establish that she was the criminal
agent. Finally, she claims that even if she was the cause of
death, there was insufficient evidence to establish the element of
malice.
As stated earlier, we view the evidence in the light most
favorable to the Commonwealth and grant to the Commonwealth all
reasonable inferences fairly deducible therefrom. See
Higginbotham, 216 Va. at 352, 218 S.E.2d at 537. We discard any
evidence of the accused in conflict with the Commonwealth’s
evidence, and we regard all the Commonwealth’s credible evidence
as true. See Boblett v. Commonwealth, 10 Va. App. 640, 651, 396
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S.E.2d 131, 137 (1990). Furthermore, circumstantial evidence is
as competent and entitled to as much weight as direct evidence on
appeal. See Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d
864, 876 (1983).
Finally, as the appellant points out, in a wholly
circumstantial case, the evidence must exclude every reasonable
hypothesis of innocence. However, the Commonwealth need not
exclude every possible theory of innocence, rather it must
exclude only those which flow reasonably from the facts and
raise a reasonable doubt of guilt. See Payne v. Commonwealth,
216 Va. 265, 272, 217 S.E.2d 870, 875 (1975). Whether a
particular hypothesis is reasonable, is a question of fact
binding on appeal unless plainly wrong. See Lovelace v.
Commonwealth, 27 Va. App. 575, 586, 500 S.E.2d 267, 273 (1998).
Moreover, the Commonwealth need not actively negate every
reasonable theory of innocence, instead it is sufficient if the
evidence as presented has the effect of excluding those
theories. See Orange v. Commonwealth, 191 Va. 423, 443, 61
S.E.2d 267, 276 (1950). If, based on the Commonwealth’s
evidence, the fact finder justifiably could have excluded all
reasonable hypotheses of innocence, or determined that any
possible hypothesis of innocence was less than reasonable, then
we must affirm. We defer to the fact finder because the
inferences to be drawn from proven facts are the province of the
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fact finder so long as they are reasonable and justified. See
Higginbotham, 216 Va. at 353, 218 S.E.2d at 537.
When the appellant presents an hypothesis of innocence on
appeal, the burden is on the appellant to show that the facts as
found by the fact finder do not exclude a reasonable theory that
is consistent with the defendant’s innocence. See generally
Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384,
387 (1991) (“The burden is on the party who alleges reversible
error to show by the record that reversal is the remedy to which
he is entitled.”). It is in this context that the Virginia
Supreme Court has said that the hypotheses which the
Commonwealth must exclude are those that actually flow from the
evidence rather than those that merely arise from the
imagination of the appellant. See e.g., Black v. Commonwealth,
222 Va. 838, 841, 284 S.E.2d 608, 609 (1981). Thus, to prevail,
appellant must show that the facts as established in the record,
viewed in the light most favorable to the Commonwealth, do not
exclude a reasonable hypothesis that would render the appellant
innocent.
2. Cause of Death
Drs. Foley, Lewis, and Kinnison each testified that Zachary
Frank exhibited the unique constellation of physiological
conditions indicating shaken baby syndrome. Each doctor further
testified that the combination of symptoms combined with the
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complete absence of external trauma could only be consistent with
shaken baby syndrome which Dr. Lewis described as
the phenomena that occurs when a baby,
usually a small child because of the weight
involved, is vigorously shaken to and from
in such a fashion that the blood vessels
which are surrounding the brain are sheered.
It causes a great deal of bleeding around
the brain and with sufficient force tears
the inside lining of the retina of the eye.
Frank argues that the doctors’ opinions are unreliable
because they were based on a mistaken understanding of the
history. However, Frank fails to point out any particular
mistaken understandings and, in any event, the medical experts
based their opinions on the results of direct examinations rather
than on the child’s history.
Frank also argues that the Commonwealth failed to exclude all
reasonable hypotheses of innocence. She suggests that the medical
experts did not rule out other causes of death. We disagree. The
evidence of the medial experts in conjunction with Frank’s
admission was sufficient to permit the fact finder to exclude
every other hypothesis of death that flows reasonably from the
evidence. The experts ruled out every hypothesis that Frank
suggested at trial. On appeal, Frank seems to suggest that while
none of the hypotheses of injury suggested at trial could account
for the constellation of symptoms Zachary exhibited, an
aggregation of these causes could have resulted in the symptoms.
Thus, if the child had meningitis, if the doctors administered too
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much phenobarbital, and if the emergency personnel or the father
subjected the child to overly aggressive CPR, it was possible that
similar symptoms could have appeared. However, expert testimony
indicated that research only theorized that aggressive CPR could
cause retinal hemorrhaging. Additionally, there was no evidence
that the child received too much phenobarbital. Finally, Dr.
Lewis testified that Zachary was only treated for meningitis as a
matter of hospital routine procedure -- when acutely ill children
are admitted they are routinely treated for meningitis.
Therefore, in view of the aforementioned standards of review, the
evidence excluded all hypotheses of death other than shaken baby
syndrome.
3. Criminal Agency
Frank argues that the evidence was not sufficient to show
that she caused the fatal injury. Frank points out that the
Commonwealth called no witnesses who had direct knowledge of the
three or four hour period after the paramedics delivered Zachary
to the hospital and before Dr. Foley’s first examination. Frank
appears to argue that even if Zachary died from shaken baby
syndrome, the evidence does not exclude every reasonable
hypothesis of innocence because the Commonwealth has not credibly
established the events that transpired during that three or four
hour period. We disagree.
Frank admitted that she was the criminal agent. Thus, the
evidence proved that she was the criminal agent and this evidence
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excluded every reasonable hypothesis of innocence. Frank admitted
that out of frustration she shook the baby on Friday, November 22,
1996. When asked, Frank also stated that no one else had shaken
the baby. The baby was admitted to the hospital on Monday,
November 25, 1996 -- roughly seventy-two hours later. All three
medical experts testified that it would be normal for symptoms to
appear around seventy-two hours after the injury. There is no
evidence that supports an hypothesis that a hospital worker, or
some unknown agent, caused the shaken baby syndrome injuries
during the three or four hour period after Zachary’s admission,
and conversely, there is ample evidence that Frank was the
criminal agent. See e.g., Webber v. Commonwealth, 26 Va. App.
549, 561-65, 496 S.E.2d 83, 88-90 (1998) (finding evidence that
the defendant shook and slapped a baby in combination with medical
evidence of causation and timing sufficient to convict defendant
of second degree murder).
4. Malice
Finally, Frank argues that even if the trial court did not
err by finding that Frank caused the injury and death, there was
insufficient evidence for the trial court to find malice, and,
therefore, the Commonwealth did not sustain its burden of proving
second degree murder.
To convict Frank of second degree murder, the Commonwealth
had to prove malice aforethought. See Perricllia v. Commonwealth,
229 Va. 85, 91, 326 S.E.2d 679, 683 (1985). Whether Frank acted
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with malice is a question for the fact finder. See Essex v.
Commonwealth, 228 Va. 273, 280, 322 S.E.2d 216, 220 (1984).
Malice may be implied from conduct, for example, when a purposeful
and cruel act is committed against another without any or with
only slight provocation. See Pugh v. Commonwealth, 223 Va. 663,
668, 292 S.E.2d 339, 341 (1982). Frank cites language in Essex
for the proposition that when an act is committed out of
negligence, malice may not be implied. See Essex, 228 Va. at 280,
322 S.E.2d at 220.
[A] common theme running through
[definitions of malice] is a requirement
that a wrongful act be done willfully or
purposefully. This requirement of
volitional action is inconsistent with
inadvertence. Thus if a killing results
from negligence, however gross or culpable,
and the killing is contrary to the
defendant’s intention, malice cannot be
implied.
Id. (internal quotation marks and citations omitted). Here,
however, the evidence shows that Frank willfully and
deliberately shook Zachary Frank.
“Implied malice may be inferred from conduct likely to
cause death or great bodily harm, willfully or purposefully
undertaken.” See Canipe v. Commonwealth, 25 Va. App. 629, 642,
491 S.E.2d 747, 753 (1997) (quotation marks and citation
omitted). Moreover, the fact finder may infer that a person
intends the natural and probable consequences of his actions.
See Campbell v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d
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1, 4 (1991) (en banc). Additionally, “the comparative
weaknesses of the victim and the strength of the aggressor may
be considered” in determining the probable consequences of an
aggressor’s acts. Id. at 485, 405 S.E.2d at 5.
Experts testified that the injury that Frank inflicted
required Zachary’s head to go violently forward and backward and
that the only comparable injury they encounter occurs when
children are thrown from motor vehicle accidents. Because of
the extreme violence required to cause the injury, and because
Frank admitted that she willfully and violently shook the baby,
the trial court was entitled to infer malice.
III. CONCLUSION
We find that based on the totality of the circumstances
surrounding the interrogation, Mrs. Frank’s will was not
overborne, nor was her capacity for self-determination critically
impaired. Therefore, the trial court did not err in refusing to
suppress her statements. Additionally, we find that the
Commonwealth produced sufficient evidence to establish that
Zachary Frank died of shaken baby syndrome and that it was Mrs.
Frank’s conduct that caused the fatal injuries. Finally, we find
that the trial court did not err in inferring implied malice from
Mrs. Frank’s willful and violent shaking of the infant.
Accordingly, we affirm the trial court’s decision.
Affirmed.
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