State v. McDaniel

238 W.Va. 61

792 S.E.2d 72

State of West Virginia, Plaintiff Below, Respondent

v.Summer McDaniel, Defendant Below, Petitioner

No. 15–0641

Supreme Court of Appeals of West Virginia.

Submitted October 5, 2016

Filed: October 12, 2016

Jonie E. Nelson, Esq., Nelson Legal Services, LC, Petersburg, West Virginia, Counsel for the Petitioner.

Patrick Morrisey, Esq., Attorney General, Shannon Frederick Kiser, Esq., Assistant Attorney

General, Gordon Lee Mowen, II, Assistant Attorney General, Charleston, West Virginia, Counsel for the Respondent.

Chief Justice Ketchum :

This case is before this Court upon the appeal of Summer McDaniel ("McDaniel") from the June 23, 2015, order of the Circuit Court of Hardy County imposing sentence upon her conviction of involuntary manslaughter, concealment of a deceased human body and other offenses, following a jury trial, relating to the death of her twenty-six-day-old infant son ("infant").

The State maintained that McDaniel and Joseph Christy ("Christy"), the infant's putative father, left the State of Colorado with the infant and four other children, where child protective proceedings were pending, and stopped at a campsite in Hardy County. At the campsite, knowing the infant was sick, neither McDaniel nor Christy made any attempt to get medical help, and the infant, suffering from significant weight loss, died of malnutrition and dehydration. The infant was then buried in a concealed, shallow grave near the campsite.

McDaniel, emphasizing that the autopsy found the infant's cause of death to be undetermined, raises a number of assignments of error, particularly relating to the State's evidence of the events in Colorado. McDaniel asks this Court to set her convictions aside and grant her a new trial.

Upon review, this Court is of the opinion that McDaniel's assignments of error are without merit, and we affirm her convictions regarding the death of the infant. Moreover, we affirm the sentencing order entered in the Circuit Court of Hardy County on June 23, 2015.

I. Factual Background

On June 9, 2014, McDaniel gave birth to an infant son in the State of Colorado. The infant was McDaniel's fifth child. A toxicology report concerning the birth revealed the presence of illicit drugs in both McDaniel and the infant. As later described by the Colorado Department of Human Services, McDaniel tested positive for methamphetamine, and the infant tested positive for amphetamine, thus placing the welfare of the infant at risk.¹

While in the hospital, McDaniel was served by a caseworker for the Colorado Department of Human Services with a Notice of Preliminary Protective Proceeding. The Notice concerned the infant and McDaniel's other four children, ages eleven and under, and directed McDaniel to (1) comply with family treatment drug court services and recommendations, (2) comply with all recommendations made by the Colorado Department of Human Services and (3) notify the Department of any changes in address or telephone number. Custody of the children was to remain with McDaniel, subject to the Department's protective supervision.

On June 17, 2014, the Colorado Department of Human Services filed a neglect petition against McDaniel and Christy with regard to all five children. The petition alleged, inter alia , that McDaniel has a history of substance abuse which places the children at risk.² In the meantime, McDaniel, Christy and the children left Colorado and drove to West Virginia. They arrived at a campsite in the George Washington National Forest in Hardy County in early July 2014.

On July 5, 2014, a Jeep, reported as stolen, was pursued and stopped by police officers on Interstate 79 near Morgantown, West Virginia. Christy was driving the Jeep, and McDaniel and four children were passengers. The children were unrestrained by seat belts or child seats. Christy, identified as a fugitive from justice, was taken into custody. Both Christy and McDaniel were charged with child neglect. According to the police report, Christy told the police that he had "just lost and buried his son the previous day [July 4, 2014]." Christy stated that the four children were sleeping in a tent at the campsite while he, McDaniel and the infant slept in the Jeep. Christy maintained that, at some point during the night, their two-year-old child climbed into the Jeep and unintentionally slept on top of the infant, resulting in the infant's death. The infant was twenty-six days old.

Later, on July 5, 2014, Christy and McDaniel were transported to the campsite in the George Washington National Forest where they guided police officers to the location where the infant was buried.

II. Procedural Background

On October 6, 2014, the Hardy County grand jury returned an indictment charging Christy and McDaniel jointly with the following offenses relating to the death of the infant: count 1, involuntary manslaughter; count 2, child neglect resulting in death; count 3, conspiracy to commit child neglect resulting in death; count 4, concealment of a deceased human body; count 5, conspiracy to conceal a deceased human body; and count 6, child neglect creating a substantial risk of death.³

Between November 2014 and January 2015, the State filed four notices of its intent to use Rule 404(b) evidence at trial.⁴ All the evidence noticed concerned the events in Colorado and consisted of hospital records; the toxicology report; test results showing the presence of methamphetamine and amphetamine in McDaniel and the infant at the time of the infant's birth; McDaniel's lack of prenatal care regarding the infant; and documents concerning the Preliminary Protective Proceeding which outlined McDaniel's responsibilities pursuant to the authority of the Colorado Department of Human Services.

Significantly, the State's third notice of intent to use Rule 404(b) evidence, which concerned the hospital records and lack of prenatal care, stated: "The State does not believe this evidence is really 404(b) evidence but that it is rather ‘res gestae’ but the State is disclosing that it plans to use this evidence to give the [defendants] the opportunity to object." All four notices of intent to use Rule 404(b) evidence stated that the purpose of the evidence was to "tell the complete story."

The circuit court conducted two pre-trial hearings concerning the Rule 404(b) evidence. The first hearing was conducted in December 2014 followed by an order entered on December 29, 2014. The circuit court concluded that the evidence was admissible as part of the res gestae and also admissible under Rule 404(b). The court found that the hospital records and toxicology report were "credible and believable." The presence of the illicit drugs was determined to be part of the res gestae as "inextricably intertwined with the events as they allegedly occurred."

In the alternative, the presence of the illicit drugs was found admissible under Rule 404(b), i.e. , the "act" occurred; was committed by McDaniel; was relevant; was close in time to the incidents giving rise to the indictment; and the probative value thereof outweighed the prejudicial effect. On the latter point, the circuit court noted that the inflammatory effect of testimony concerning methamphetamines and amphetamines would be mitigated by a limiting instruction.

In January 2015, a second Rule 404(b) hearing was conducted followed by an order entered on January 15, 2015. The circuit court concluded that the evidence would be admissible "as tending to prove the Defendant's neglect of the child from before birth until the child's death."

McDaniel's trial began on January 27, 2015. Shortly before McDaniel's trial Christy entered guilty pleas to four counts of the indictment. The counts to which he pled guilty are not set forth in the appendix record before this Court. The State's theory at trial was that McDaniel and Christy, ignoring the services and recommendations of the Colorado authorities regarding the infant, left Colorado and ultimately arrived at a campsite in the George Washington National Forest with the infant and the other four children. There were little or no baby supplies for the infant, such as baby bottles, diaper bags, powder, or diaper rash cream. On July 4, 2014, at the campsite, or prior thereto, McDaniel was aware that the infant was sick because the infant looked pale and was vomiting. However, neither McDaniel nor Christy made any attempt to get medical help. The infant, twenty-six days old and suffering from substantial weight loss, died of malnutrition and dehydration. The deceased infant was buried in a concealed, shallow grave in the National Forest. The location of the deceased infant was not revealed to law enforcement until after Christy and McDaniel, in a stolen vehicle, were pursued and stopped on Interstate 79 on July 5, 2014.⁵

Although McDaniel did not testify, her defense at trial rested largely on the autopsy report which stated that the infant's death was undetermined and that the infant was drug free. McDaniel presented evidence that the other four children were normal and well-fed. Moreover, although her counsel described Christy as controlling and as "the guy that entered the plea,"⁶ defense counsel also told the jury that Christy said that the two-year-old unintentionally slept on the infant on July 4, 2014, resulting in the infant's death. Finally, the defense asserted that, although McDaniel did not initially disclose the infant's grave site, she then cooperated with police and assisted in locating the infant's grave, within forty-eight hours of the infant's death.

At the conclusion of the trial, the jury found McDaniel guilty on all counts. Thereafter, the circuit court denied McDaniel's combined motion for directed verdicts of acquittal or for a new trial. On June 23, 2015, the circuit court entered a final order directing McDaniel to serve consecutive penitentiary sentences of three to fifteen years for child neglect resulting in death; one to five years for concealment of a deceased...