State v. Coleman

221 A.3d 932

STATE of Maine

v.Brandon J. COLEMAN

Docket: Cum-19-5

Supreme Judicial Court of Maine.

Argued: October 8, 2019

Decided: December 23, 2019

Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Brandon J. Coleman

Jennifer Ackerman, Dep. Dist. Atty. (orally), Cumberland County District Attorney's Office, Portland, for appellee State of Maine

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

HJELM, J.

[¶1] On a summer evening in 2017, a seven-week-old child, while alone with her father at their residence, lost consciousness and was rushed to the hospital. The infant's treating physicians determined that she had suffered subdural hematomas, retinal hemorrhages, and external bruising—a constellation of injuries caused, in this case, by traumatic child abuse. The child's father, Brandon J. Coleman, was charged with two counts of aggravated assault and one count of assaulting a child younger than six years old.

[¶2] Coleman proceeded to trial (Cumberland County, Cashman, J. ), where a jury found him guilty of all charges. Coleman appeals from the judgment of conviction ultimately entered by the court, asserting that the State engaged in prosecutorial misconduct during the trial, that the court's instructions to the jury on the elements of the aggravated assault charges were erroneous, and that the evidence was insufficient to support the conviction for one of the aggravated assault charges. We affirm the judgment.

I. BACKGROUND

[¶3] We draw the following account of the case from the procedural record and from the evidence as viewed in the light most favorable to the State. See State v. Adams , 2019 ME 132, ¶ 2, 214 A.3d 496.

[¶4] In July of 2017, Coleman and his girlfriend lived in an apartment in Portland with their infant daughter. In the weeks after the child's birth, she had no known health problems. During the evening hours of July 1, 2017, the child's mother was at work, and Coleman was caring for the child by himself. Earlier that day when the mother was caring for the child, the child was experiencing no sign of distress and was, according to her mother, "her normal self." Coleman later reported to the child's treating physicians and an investigator that over the course of the evening, the child began to cry and then "went limp in his arms as if she had died." Coleman eventually called 9-1-1. Medical first responders brought the child to the hospital, where she was found to have subdural hematomas, retinal hemorrhages, and external bruising.

[¶5] Several months later, in September of 2017, Coleman was indicted for one count of Class A aggravated assault, 17-A M.R.S. § 208(1)(A-1) (2018),¹ one count of Class B aggravated assault, 17-A M.R.S. § 208(1)(A) (2018),² and one count of Class C assault on a person younger than six years of age, 17-A M.R.S. § 207(1)(B) (2018).³ He pleaded not guilty to all charges.

[¶6] In November of 2018, the court conducted a four-day jury trial. In support of the allegation that the child's injuries resulted from abuse inflicted by Coleman, the State presented the testimony of Dr. Lawrence Ricci, a board-certified child-abuse pediatrician. Dr. Ricci concluded that, given the nature and extent of the child's injuries and the absence of evidence that she was injured accidentally, the child had sustained abusive head trauma—a formal medical diagnosis, which he stated was "clear-cut" in this case. Dr. Ricci explained that the injury resulted from acceleration/deceleration of the child's head due to shaking or blunt trauma or both. The State also offered testimony from the child's neurologist and radiologist that the injuries were caused by trauma and were not attributable to natural causes. The neurologist concluded that, due to the child's extensive injuries, she would continue to suffer severe neurological delays and faced the possibility of cerebral palsy, epilepsy, intellectual disabilities, and impaired verbal communication and vision.

[¶7] Coleman contended that the child was not assaulted but rather that her condition resulted from a nontraumatic medical emergency. To support that theory, Coleman presented testimony from Dr. Joseph Scheller, a board-certified pediatric neurologist, who told the jury that the child had suffered a venous stroke and was not the victim of trauma. Dr. Scheller stated that the child possibly had thrombophilia, a potentially deadly vascular condition that causes an abnormal amount of clotting. The following exchange occurred during the State's cross-examination of Dr. Scheller:

Q. Now, at what point, Dr. Scheller, did you reach out to any one of these doctors and say [the child] potentially has this life-threatening disease?

A. I haven't done it.

Q. Is it not your obligation as a doctor if you believe a child has a deadly disease that has gone undiagnosed to reach out and to alert them to that?

A. Well, I did so in the letter. I don't know who the letter was shared with and I'm not her treating physician, I'm a physician who is consulted by her lawyer so I am playing a completely different role.

....

Q. And you've taken a medical ethics class, have you, sir?

A. Sure.

[¶8] At this point, Coleman objected, stating, "I think he talked about his role in this case as being a consultant, not a treater and I don't think we're talking about rules of ethics here, I think we are going too far afield." The court overruled the objection, and the State continued its cross-examination:

Q. So I asked you about your medical ethics class. You took that, that's a standard class you take in medical school, right?

A. Yes. Yes, ma'am.

Q. And as part of that class and as part of all of your education to become a doctor let alone a pediatrician if you see a child that you believe has an undiagnosed potentially life-threatening disorder are you not medically obligated to tell her doctors?

A. Correct.

Q. You are not medically obligated to do that?

A. The way I understand my course, yes, ma'am. I have seen 100 children in my children's schools that have asthma and I don't walk over to them and say, you know, you have a potentially life-threatening condition, has your pediatrician explained that to you. Oh, using an inhaler, okay, good luck in your soccer game.

[¶9] In its closing argument, the prosecutor drew on that part of Dr. Scheller's testimony and, without objection, told the jury,

Now, I suggest to you that Dr. Scheller may have some doubts about that theory that [the child] does in fact have this clotting disorder because if he really believes that [the child] did, if he really believes that [the child] has this disorder that could strike at any time and he didn't pick up that phone and he didn't reach out to those doctors is his testimony worth your trust? Are his conclusions worth your trust as jurors?

[¶10] After the parties' summations, the court instructed the jury both orally and in writing on the elements of the three charges. The court gave the following instruction on the elements of aggravated assault as charged in count 1, which alleged a violation of section 208(1)(A-1) :

With respect to the first charge under the law in Maine a person is guilty of aggravated assault as charged in Count 1 if he intentionally or knowingly or recklessly causes serious bodily injury to a family or household member who is less than six years of age where the bodily injury caused serious permanent disfigurement or loss or substantial impairment of the function of any bodily member or organ.

....

... In the context of Count 1 serious bodily injury is defined in our law as physical pain or physical illness or any impairment of physical condition that causes serious permanent disfigurement or loss or substantial impairment of the function of any bodily member or organ.

[¶11] The court's instructions on count 2, which alleged a violation of section 208(1)(A), included the following:

Under the law in Maine a person is guilty of aggravated assault as charged in Count 2 if he intentionally or knowingly or recklessly causes serious bodily injury to a family or household member who's less than six year[s] of age that created a substantial risk of death or extended convalescence necessary for recovery of physical health.

....

Now, in the context of Count 2 the definition of serious bodily injury is defined in our law as physical pain or physical illness or any impairment of physical condition which creates a substantial risk of death or extended convalescence necessary for recovery of physical health.

Neither party objected to the court's instructions.

[¶12] The jury found Coleman guilty of all three charges. After holding a sentencing hearing a month later, on the charge of Class A aggravated assault the court imposed a twenty-year prison term with six years suspended and six years of probation, and the court imposed concurrent sentences on the other two charges. Coleman filed a timely appeal from the resulting judgment of conviction. See 15 M.R.S. § 2115 (2018) ; M.R. App. P. 2B(b)(1).

II. DISCUSSION

[¶13] We address Coleman's appellate contentions seriatim.

A. Prosecutorial Misconduct

[¶14] Coleman first asserts that the prosecutor engaged in misconduct by implying, during cross-examination and her closing argument to the jury, that Dr. Scheller was unethical because he did not notify the child's doctors of his opinion that the child might have a potentially life-threatening congenital medical condition that had resulted in her medical crisis.⁴

[¶15] Coleman's assertion implicates several different standards of appellate review. He did not make any objection to the first part of the State's cross-examination of Dr. Scheller at issue, meaning that our review of that part of his challenge is for obvious error. See M.R.U. Crim. P. 52(b) ; see also State v. Dolloff , 2012 ME 130, ¶¶ 35, 53, 58 A.3d 1032 (explaining and applying the obvious error standard of review to unpreserved claims of prosecutorial misconduct). Then, when Coleman did object, it was in the...