Akers v. State

1

MOIRA E. AKERS v. STATE OF MARYLAND

No. 0925-2022

Court of Special Appeals of Maryland

January 30, 2024

UNREPORTED ^[*]

Circuit Court for Howard County Case No. C-13-CR-19-000367

Shaw Ripken, Tang, JJ.

OPINION

Ripken, J.

The State of Maryland charged Appellant, Moira E. Akers ("Appellant") with multiple offenses arising from the death of her newborn child ("Baby A") in November of 2018. Following a series of pretrial hearings, in April of 2022 a jury in the Circuit Court for Howard County found Appellant guilty of second-degree murder and first-degree child abuse. The court imposed an aggregate sentence of 30 years of incarceration, and Appellant noted a timely appeal. In addition, If/When/How: Lawyering for Reproductive Justice ("Amicus"), a non-profit advocacy organization, submitted an amicus brief arguing that Appellant's convictions should be overturned. For the reasons to follow, we shall affirm.

ISSUES PRESENTED FOR REVIEW

Appellant presents the following issues for our review:^[1]

I. Whether the circuit court abused its discretion in admitting expert testimony concerning the hydrostatic float test.

II. Whether the circuit court erred in admitting evidence that Appellant did not seek prenatal care, and evidence of Appellant's internet searches related to abortion.

III. Whether the circuit court erred in concluding that Appellant's statements to a law enforcement officer were voluntary.

IV. Whether the evidence was sufficient to sustain Appellant's convictions.

FACTUAL AND PROCEDURAL BACKGROUND

In November of 2018, first responders were dispatched to a Howard County residence due to a report that a thirty-seven-year-old woman was experiencing severe vaginal bleeding. Upon arrival, an EMT, Thomas Sullivan ("EMT Sullivan") found Appellant sitting in her living room with her husband and two children. Appellant reported that she had been experiencing heavy vaginal bleeding for the past several hours. When EMT Sullivan asked Appellant if there was any chance that she was pregnant, she replied "no." Appellant provided no explanation for the bleeding, although her husband noted that she recently had an ectopic pregnancy.^[2] EMT Sullivan asked Appellant if she wanted to be transported to a hospital and she replied, "yes." Once at the hospital, Appellant was transitioned into the care of a nurse.

At the hospital, Appellant spoke to a nurse and a doctor, but did not initially disclose that she had been pregnant. However, after a doctor observed a severed umbilical cord protruding from her vagina, Appellant indicated that she had delivered an infant in her home prior to being transported to the hospital, but that the baby was "not alive" and was "in a closet at home in a Ziploc bag." In response to medical inquiries, Appellant also stated that she had confirmed that she was pregnant in May of 2018, but at no point had she received any prenatal care. At the time of the discussion, Appellant was "calm and answering questions" from hospital staff. Although Appellant was aware her husband was present in the hospital's waiting room, Appellant declined to allow him to enter her room.

Hospital staff notified emergency medical services of Appellant's statements, and EMT Sullivan was directed to return to Appellant's home in an effort to recover the baby. Upon arriving at the home, EMT Sullivan and a law enforcement officer discovered blood throughout the upstairs bathroom, hallway, and bedroom. Inside a closed bedroom closet, EMT Sullivan discovered a large plastic bag filled with bloodied towels; under the towels in the bag was an infant who showed no signs of life. EMT Sullivan confirmed the baby was deceased by checking the pulse and using a cardiac monitor; no CPR or other artificial ventilation of the lungs was performed.

Following a medical procedure, Appellant was interviewed by Detective Weigman of the Howard County Police Department ("Det. Weigman"). During that interview, Appellant stated to Det. Weigman that she had delivered a stillborn child, which she placed in a bag in the closet. Additional facts will be incorporated as they become relevant to the issues.

DISCUSSION

I. The Circuit Court Did Not Abuse Its Discretion in Permitting Expert Testimony Regarding the Hydrostatic Float Test.

A. The Pretrial Motion to Exclude Expert Testimony

Prior to trial, the State noted its intent to introduce the testimony of Doctor Nikki Mourtzinos ("Dr. Mourtzinos"), the Attending Medical Examiner who conducted the autopsy of Baby A and concluded that the cause of death was homicide due to asphyxia. Appellant made a motion in limine seeking to preclude Dr. Mourtzinos from discussing the results of one of the tests conducted during the autopsy, the hydrostatic float test ("HFT").

The court conducted two hearings focusing on the reliability and scientific value of the HFT in the context of the autopsy results.^[3] The circuit court examined the admissibility of evidence under Maryland Rule of Evidence ("Md. Rule") 5-702, which requires a court to determine, in relevant part, "whether a sufficient factual basis exists to support the expert testimony."

During the hearings, the State presented the testimony of Dr. Mourtzinos, who conducted the autopsy and determined that Baby A was born alive. The State also called Doctor David Fowler ("Dr. Fowler") who, at the time the autopsy was performed, was the Chief Medical Examiner for the State of Maryland. Both doctors were certified as experts in forensic pathology without objection, and both testified that the HFT was a test that should be used and considered under the circumstances of the case. Appellant asserted that the HFT was not reliable evidence and presented the testimony of her own expert in forensic pathology, Doctor Gregory Davis ("Dr. Davis").

Dr. Mourtzinos, the state's primary witness, testified that the HFT, also known as the "flotation test" or "lung float test," is a commonly employed test in forensic pathology used to determine if an infant's lungs had at any point been aerated. Dr. Moutzinos opined that when in utero, a fetus's lungs are filled with liquid, not air; as the child is born and breathes, the lungs become aerated and inflate. The aeration of the lungs is an "important data point" in determining if a child has been born alive, as under Maryland law, a child who takes even one unassisted breath after being completely expelled or extracted from the mother's body is considered to have been born alive. See § 4-201(n) of the Health - General Article ("HG") of the Maryland Code.

The HFT involves removing the lungs, ensuring that air has not been artificially introduced into them, and placing them in water. The analysis is-if the lungs float, they have been aerated; if the lungs sink, they have not been aerated. There are slight differences in how the test may be performed-it can be conducted with either complete lungs, or pieces of lung tissue. A practitioner will generally also submerge the liver or spleen, both of which are solid organs that do not float under normal circumstances, as a control.

Dr. Mourtzinos testified that the HFT results only show if the lungs were aerated and will not conclusively prove if the child did take a breath or not. This is because lungs can be aerated via other means, such as via CPR or decomposition. She stated that in forensic pathology, the HFT, or indeed any test, should not be and is not used exclusively to determine if a child was born alive; instead, practitioners look for concordance across a variety of tests. In this case, Dr. Mourtzinos testified that the results of the HFT indicated that the lungs had been aerated, and that there was no evidence of air being introduced by means other than breathing, and that those results were consistent with a variety of different tests which in her opinion were also indicative of live birth.^[4]

Testifying for the State, Dr. Fowler discussed a 2013 peer-reviewed German study which evaluated the efficacy of the HFT. The study determined that out of a sample size of 208 babies, all of whom were delivered by medical professionals, the lungs of every stillborn baby sank-there we no cases where the lungs of a stillborn baby floated. The test had an accuracy rate of 98 percent, with two "false negatives," where the lungs of a non-stillborn baby sank.^[5]

Nevertheless, the State's experts agreed that the HFT is "controversial" in the medical community. Both experts agreed the bulk of the scientific literature, even while advocating for the use of the HFT, noted that the HFT should be conducted alongside other tests. Both experts also agreed that the test is of very limited value for determining live birth if the lungs were aerated by other means, such as CPR or decomposition. The State's experts testified that the HFT was appropriate in this case, where there was no indication CPR or other artificial aeration had been attempted on the victim, and there was no sign of decomposition in the victim's body. Additionally, at no point did either Dr. Mourtzinos or Dr. Fowler assert that the HFT results alone were sufficient to result in a determination of live birth.

The defense expert, Dr. Davis, opined that several experts in the field of forensic pathology do not advocate for the use of the HFT, and believed it and other test results were inconclusive in this case. Dr. Davis also testified that in addition to breathing, CPR, or decomposition, air can enter a baby's lungs through the birthing process itself, or via the mishandling of the body after death.^[6] Dr. Davis also testified that although he personally does not place any value in the HFT, he both conducts it in his autopsies and teaches it to his forensic pathology students. Dr. Davis further stated...