State v. Hudson

680 N.W.2d 603

268 Neb. 151

STATE of Nebraska, appellee, v. Elmore HUDSON, Jr., appellant.

No. S-03-056.

Supreme Court of Nebraska.

June 10, 2004.

A. Michael Bianchi, of Bianchi & Vander Schaaf, L.L.C., L.L.O., Omaha, for appellant.

Jon Bruning, Attorney General, and James D. Smith, Lincoln, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

I. NATURE OF CASE

After trial to a jury, Elmore Hudson, Jr., was convicted of first degree murder, attempted second degree murder, and two counts of use of a deadly weapon to commit a felony. Hudson was sentenced to life imprisonment for the first degree murder conviction, 30 years' imprisonment for the attempted second degree murder conviction, and 20 years' imprisonment for each of the two use of a deadly weapon to commit a felony convictions, the sentences to be served consecutively. Hudson appeals, claiming errors in the trial court's communication with the jury after deliberations had begun, the State's failure to prove proximate cause, and the admission of expert testimony regarding certain matters related to the deceased victim's treatment and prognosis.

II. BACKGROUND

On January 29, 2001, Hudson and Derreck Jones broke into the apartment of Victor Rodriguez and his girl friend, Margarite Salgado, located in Omaha, Nebraska, with the intent to steal money and drugs. Jones testified that upon kicking down the door to the apartment, Hudson began repeatedly striking Rodriguez in the back of the head with a wooden softball bat he had brought with him. After punching Salgado in the face several times, Jones began searching the apartment for money and marijuana while Hudson began hitting Salgado with the bat. When Hudson and Jones left the apartment, Rodriguez and Salgado were apparently unconscious. Testimony adduced at trial indicates that on January 31, Salgado apparently regained consciousness and was able to go for help. Both Salgado and Rodriguez were taken by ambulance to St. Joseph Hospital. Rodriguez was transported to the hospital as a "Code 3," which meant he had life-threatening injuries and was determined to be near death.

Because Hudson argues that his assault upon Rodriguez did not cause Rodriguez' death, we will set out in detail the medical treatment rendered to Rodriguez. Upon admittance to St. Joseph Hospital, Rodriguez was diagnosed as having sustained a severe traumatic brain injury and was in a coma. Rodriguez sustained a large laceration to the left frontal part of his scalp, exposing the bone; a laceration just to the right top of his scalp; and a large entry to the back of his head. Rodriguez also sustained multiple fractures to the back section of his skull. Upon admission to St. Joseph Hospital, the record indicates Rodriguez had a 30-percent chance of death and was at risk of developing pneumonia, infection, abnormal bone formation, hydrocephalus (a buildup of pressure in the brain), and seizures. Moreover, due to the extent of Rodriguez' brain injury, Rodriguez was also at risk for impaired swallowing. A swallowing evaluation performed at St. Joseph Hospital showed that Rodriguez was in danger of having whatever he swallowed end up in his lungs, commonly referred to as "gastric aspiration." As a result, a feeding tube was placed through Rodriguez' abdominal wall to assist him with eating.

Dr. Jose Poblador, a licensed rehabilitation physician and director of brain injury rehabilitation at the Madonna Rehabilitation Hospital (Madonna Center) in Lincoln, Nebraska, testified on behalf of the State. Poblador's testimony revealed that he attended Ohio University, College of Osteopathic Medicine, in Athens, Ohio, and has specialized training in treating traumatic brain injuries. Upon Rodriguez' admittance into the Madonna Center on March 27, 2001, Poblador described Rodriguez as restless, incoherent, not able to follow or respond to simple commands, speaking only infrequently, not capable of symmetrical eye movement, unable to walk without substantial assistance, and pulling at his feeding tube even after the Madonna Center staff placed both of Rodriguez' hands in mittens. Rodriguez' condition while at the Madonna Center required that he receive constant, 24-hour-per-day, one-on-one care by nursing staff to prevent him from crawling out of bed or pulling on his feeding tube.

As a result of these apparent difficulties, Poblador ordered that nurses check Rodriguez' vital signs, blood pressure, and temperature at least every 8 hours. Poblador also followed up on orders from Rodriguez' gastroenterologist at St. Joseph Hospital that Rodriguez receive a new feeding tube. Poblador testified that replacement of the old feeding tube with a new one in a different location became necessary when the Madonna Center personnel began experiencing difficulty feeding Rodriguez and giving him fluids and medication through the original tube. The gastroenterologist discovered that the feeding tube was pulled from its hole through the abdominal wall. On April 12, 2001, the old feeding tube was pulled and a new tube placed in a different location. At that time, the gastroenterologist reinitiated the tube feeding at its previous rate of 95 cc per hour and water at 250 cc four times per day. At that time, Rodriguez was also placed on medication to improve the movement of residuals of the tube feeding from Rodriguez' stomach into the small intestine.

After the feeding tube was replaced, Madonna Center medical staff regularly checked the residuals of the tube feeding in Rodriguez' stomach at designated times. Within a few days after the tube replacement, the Madonna Center nurses reported that Rodriguez was not tolerating the tube feeding. As a result, the Madonna Center physician assigned to Rodriguez at the time decreased the feeding rate to 50 cc, and then to 30 cc on April 14, 2001. Poblador testified that Rodriguez' demonstrated intolerance to tube feeding is a common complication of a traumatic brain injury. On April 17, the gastroenterologist gave an order to change the tube feeding from a continuous delivery to a bullous delivery, which, for Rodriguez, meant 250 cc delivered into the tube fives times daily. Poblador testified that the primary reason for changing from continuous to bullous tube feeding is typically to allow the patient more mobility. However, Poblador testified that in Rodriguez' case,

the more important reason for him [to change to bullous tube feeding] is that he is agitated, restless and has shown previously a tendency to pull tubes, catheters. So, this having been the second tube already, [the gastroenterologist] could have been trying to provide more protection to the patient so that he doesn't pull the tube again.

On that same date, the gastroenterologist ordered that he be notified if Rodriguez' residuals exceeded 150 cc and that the residuals plus tube feeding should equal 250 cc with each bullous feeding.

On April 19, 2001, shortly after 3 p.m., medical records indicate that Rodriguez vomited. At approximately 6 p.m. that same day, Rodriguez' medical records indicate that his residuals measured at 190 cc and that his bullous feeding was withheld. At 9:45 p.m., Rodriguez' residuals were approximately 200 cc and the Madonna Center nursing staff again withheld Rodriguez' bullous feeding. At midnight, Rodriguez' residuals measured at 240 cc. Shortly thereafter, Rodriguez vomited again and became unconscious. The Madonna Center personnel immediately began administering emergency assistance to Rodriguez, and he was subsequently taken to BryanLGH Medical Center, where he died. Poblador agreed that the Madonna Center nurses' records did not reflect whether the gastroenterologist was contacted at the time Rodriguez' residuals moved above 150 cc; Poblador testified, however, that Rodriguez' residuals plus bullous feeding levels never exceeded 250 cc.

Poblador further testified, over objection, that Rodriguez' severe traumatic brain injury put him at high risk for gastric aspiration. Poblador concluded that the cause of Rodriguez' death was gastric aspiration, secondary to severe traumatic brain injury.

Dr. Robert E. Bowen, a pathologist who conducted an autopsy of Rodriguez, also testified on behalf of the State. Bowen testified that Rodriguez' head injuries were consistent with being hit by a baseball bat. Bowen also testified that other than the injuries to his head and a mild case of emphysema, Rodriguez was a fairly healthy individual. With respect to the cause of Rodriguez' death, Bowen's autopsy report states that "[t]he immediate cause of death of this individual is attributed to gastric aspiration with extensive bronchopneumonia. The proximate cause of death is attributed to blunt trauma to the head." At trial, Bowen confirmed the autopsy report, testifying to a reasonable degree of medical certainty that

the immediate cause of death ... was gastric aspiration. That is, food was removed—it was aspirated from his stomach into his lungs which triggered him to die. And this is a result of head injury, of blunt head injury, severe head injury, which made it so he wasn't able to swallow and protect his airway.

At the close of the State's case and again at the close of Hudson's case, Hudson moved to dismiss the charges against him, contending the State had failed to prove a prima facie case. Specifically, Hudson contended that the State failed to prove Hudson's assault was the proximate cause of Rodriguez' death. The trial court overruled both motions.

The jury convicted Hudson on all counts, and the trial court entered its order on the jury's verdict. Hudson subsequently filed a motion for new trial, alleging irregularities in the proceedings of the court and witnesses, that the verdict was not sustained by sufficient evidence and was contrary to law, and that several errors of law occurred at trial to which Hudson objected. In the motion for new trial, Hudson...