P. v. Brown



















Filed 9/29/10 P. v. Brown CA4/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115 >.



COURT
OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION
ONE



STATE
OF CALIFORNIA






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THE PEOPLE, Plaintiff and Respondent, v. KENNETH BROWN, JR., Defendant and Appellant.

D056113 (Super. Ct. No. FVI700087)

APPEAL from
a judgment of the Superior Court
of San
Bernardino County, Eric N. Nakata, Judge. Affirmed.



A jury
convicted Kenneth Brown, Jr. of second
degree murder (Pen. Code, § 187, subd. (a)[1]) and
assault causing death of a child under eight years old (§ 273ab). The court sentenced him to 25 years to life
on count 2, and 15 years to life on count 1 stayed under section 654.

Brown
contends the trial court improperly denied his section 1118.1 motion for a
judgment of acquittal on grounds insufficient evidence supported his
convictions. He further contends: (1)
his constitutional rights to due process
and a fair trial were violated because the medical expert provided improper
opinion testimony, thus usurping the jury's factfinding function; (2) the jury
was improperly permitted to hear a recording of his interview with detectives
that included a discussion regarding his amenability to taking a polygraph
test; and (3) he received ineffective assistance of counsel. We affirm the judgment.

FACTUAL AND
PROCEDURAL BACKGROUND

>Prosecution Case

In December
2006, Maricia Tinsley gave birth to Brown's daughter, named Unique. The family, including Tinsley's other
children, lived in Apple Valley.

Tinsley
testified that approximately 40 days later, on February 2, 2007, the family went to a mall in
Victorville, and Tinsley did not notice anything wrong with Unique. They returned home between 9:00 p.m. and 10:00
p.m. Approximately one hour
later, Tinsley left for an errand with Danielle Stanley, leaving Brown to
babysit Unique. Tinsley telephoned home
and asked an older daughter about Unique and was told, "She's
okay." Tinsley telephoned again, asked
to speak to Brown, but was told he did not wish to speak with her. She returned home at approximately midnight, and from outside saw someone running
from the bathroom. She asked Brown if it
was him and he initially denied it, but he did not satisfactorily explain why
his heart was beating fast. He later
admitted running from the bathroom, but denied her suggestion that he had
brought a woman into the house. Tinsley
remained unconvinced by his answer and told him he had to leave the house. Brown then told her, "[S]omething bad
happened." Tinsley immediately
grabbed Unique, who was lying face down on the bed, a position she disapproved
of because of the risk of death. She
noticed Unique's color was blue and her body was lifeless, and she began to
scream that Unique was dead.

Stanley,
who was residing at Tinsley's house, testified Unique had not been crying or
fussy that night before she and Tinsley left for their errand. When they returned home and discovered
Unique's problems, Stanley called
911. Brown told the operator he thought
Unique had vomited, and afterwards she inexplicably stopped breathing. The operator instructed Brown on how to
perform CPR. Brown told the operator
that after he blew into her mouth she breathed but later she became pale. Tinsley drove Brown and Unique towards the
hospital. En route, paramedics met them
and took Unique into an ambulance. She
had no heartbeat and no respiratory rate, and they performed CPR. Brown told the paramedics Unique had choked,
he had cleared her airway, she seemed okay and he put her on the bed, but later
she became unresponsive. Tinsley told
them that Unique had no history of problems relating to her heart, breathing,
asthma, seizure activity or medication use.

Dr. Hiachi
Lin testified that Unique arrived at the emergency room in full arrest. His team worked on her for approximately an
hour and revived her briefly but her heart stopped and she died from what he
concluded was sudden infant death syndrome (SIDS). Dr. Lin questioned Brown regarding Unique's
medical problems, but Brown did not say she had fallen or was dropped.

San
Bernardino County Deputy Sheriff Thomas Levan interviewed Brown while Unique
was in the emergency room. Brown said
that Unique had stopped breathing and he suctioned her nose, cleaned her, and
put her on the bed. She started having
difficulty breathing another time and he again used the suction. He later could not find a pulse and started
breathing into Unique's mouth and applying compressions on her chest. He felt a pulse, took her back to the bedroom
and placed her on the bed. He did not
feel a need to call 911.

Dr. Steven
Trenkle of the San Bernardino County Coroner's office performed an autopsy on
Unique. In his external examination of
her body, the only unusual thing he noted was redness on her abdomen. During the internal examination, he discovered
extensive laceration of the liver and severe hemorrhaging from several of her
vital organs, including her kidneys, pancreas and lungs, resulting in a loss of
approximately one-third of her blood.
The bleeding also affected her psoas muscles and the back wall of her
abdominal cavity. Dr. Trenkle testified
that the bleeding of those parts was significant because, "this is a
relatively protected part of the abdomen.
So to get hemorrhage this far back, the force of the injury had to go
through all of the organs which were between the stomach or the skin and the
backbone. . . . So all of this
hemorrhage is due to an injury directed from the front."

Dr. Trenkle
testified Unique had multiple rib fractures on the front side of both the right
and left sides of the fifth through ninth ribs.
He explained, "Children, particularly infants, their bones are
still forming, particularly their ribcage is very pliant and so it's hard to
fracture a child's ribs with the kind of force that's generally done with CPR
as opposed to an adult." The
autopsy also disclosed subdural hemorrhage, which "occurs when blood
vessels that travel between the dura and the brain are stretched or torn." Unique's brain injury resulted from a
"moving head injury rather than a stationary head injury that was struck
with something." Unique also had
hemorrhage around the optic nerve.

Dr. Trenkle
testified that Unique's injuries to her organs were from a blow while the body
was stationary. He added that such force
would also be produced if the body is moving and the abdomen lands on something
with enough force. He determined that
the main cause of death was blunt force injuries that caused a lacerated liver
and in turn "extensive intraabdominal hemorrhage," but her other
injuries also contributed to her death.

When the
prosecutor asked Dr. Trenkle to clarify the amount of force he was referring
to, the doctor compared it to a high speed "freeway-type" accident
where an infant is unsecured and thrown out of the car. Dr. Trenkle ruled out a fall from a baby
swing, being held by an adult, tossed in the air and falling on the ground or
any normal adult-infant interactions as causes of Unique's multiple injuries.

On February 5, 2007, San Bernardino
County Sheriff Homicide Detective John Gaffney investigated Unique's death and
interviewed Brown, who was hospitalized.
Brown stated he had been babysitting her that night, and used a suction
bulb to remove phlegm from her mouth. He
lay next to her and they both slept. He
awoke at about 1:30 a.m. and she was
not responsive. He breathed on her mouth
and was "hitting on the baby's chest." He "freaked out" but thought he had
fixed the problem and therefore he did not call 911.

On February 6, 2007, Detective Gaffney
interviewed Brown at the sheriff department headquarters, and a video recording
of it was played for the jury. Brown
initially maintained the same version of events he had related the previous
day. Detective Gaffney eventually told
Brown that he was not telling the entire truth because the autopsy had showed
Unique's injuries were serious, and moreover the pathologist had stated Unique
died shortly after receiving the injuries.
Brown asked what those injuries were.
Detective Gaffney replied the injuries could not have been caused like
Brown had explained. Brown then said he
had omitted to mention that he had placed Unique in the swing and was playing
with her without buckling her in. She
fell out and hit a rail and then the ground.
He admitted, "To tell you the truth that's when I tried to kill
myself and I did play with her rough."

Detective
Gaffney recognized Brown's new version of the incident was closer to the truth,
but still incomplete. He told Brown
about Unique's specific injuries as stated in the autopsy report. Brown changed his story again: "[O]kay, she really wasn't really in the
swing. I played with her in a different
sort of way and I tried, you know, I dropped her when she was in the air and
she did hit the floor kind of hard and she did hit the swing but she wasn't
inside the swing." Brown added,
"It probably was when I was catching, I was throwing her in the air, I
probably caught her too hard from grabbing her and when the second time I, I
didn't really catch her really good and she did hit the ground." After that incident, "She was not
breathing right." Brown accepted
that he had lied by not previously relaying this information, admitting,
"But I left parts out. And I tried
to rearrange it just a little bit so, if you call that lying that is lying 'cause
leaving parts out of the story, that's lying.
So I did that." He
continued, "I did, I know I hurt her rather bad that's why she was
breathing like she was. . . . I dropped
her the wrong way and she, she landed real hard you could hear when she landed. Now I was, I was, I was scared out, my my my
fucking mind to call the police and the paramedics. . . . I didn't know how her momma was going to come
home and say to me. I didn't, know,
know, know what was wrong with her. I
knew she was injured but I didn't know how bad."

Detective
Gaffney countered that even if Brown had dropped Unique, it would not have
caused her injuries, including the fractured ribs. Brown elaborated, "[I]t could have been,
I was squeeze, I know I was squeezing 'cause I bit the shit out of my lip so
have to be squeezing the stuff out of her." He added, "So I, I probably did break
her ribs." The detective asked why
Brown had bitten his lip, and Brown answered, "Cause I, was pressure. The more pressure I put into it." Brown then admitted that Unique had not
fallen from the swing as he had earlier asserted.

The
following morning, the detective again disputed Brown's version of the incident
and Brown again explained Unique's injuries:

"Detective: She
didn't die from breathing problems.
That's not how she died.

"[Brown:] So
how, how . . .

"Detective: I
told you how she died!

"[Brown:] I
don't know how it happened.

"Detective: She
died from an injury to her brain. . .

"[Brown:] And
that was . . .

"Detective: . . . a massive, a massive injury to her
liver.

"[Brown:] And I
was. . .

"Detective: And
broken ribs.

"[Brown:] And
all that could have happened when I was doing CPR.

"Detective: We
told you . . .

"Brown:] Cause I
did uh, uh, CPR a gang of times, when she was not breathing. That all could of happened during that
time. Now every time you ask me, I told
you that."

At the
close of the People's case-in-chief, Brown unsuccessfully moved for a judgment
of acquittal on grounds of insufficient evidence under section 1181.1.

>Defense Case

On March 15, 2007, jail authorities
confiscated Brown's letter written to his cousin. Brown testified he wrote it knowing it would
be diverted to the prosecutor. Brown
offered a new version of the incident in the letter: It got late and Tinsley had not returned
home, therefore, he decided to leave Tinsley, taking Unique with him to the
home of either her godfather or his mother.
He walked to the home of a friend, "Mr. T.," but nobody was
there. He then changed his mind about leaving
Tinsley and thought he should at least to talk to her about their
differences. As he was walking back home
he saw two men walking and thought he recognized one of them. One of them grabbed Brown's sweater and tried
to pull him, and they got in an altercation.
One of them asked Brown what he was carrying. Brown replied that it was a baby, and one of
the men punched Brown in the back of his head and he fell forward and Unique
also fell. He got up and ran home.

At trial,
Brown testified in accord with his version of the incident in the letter and
disavowed his previous versions. During
cross-examination, the prosecutor asked him if he thought Unique was injured in
the fight. He replied, "This is
probably a good probability that she was because he was punching quite a
while." He testified that when he
got home he checked Unique for injuries but found none, and instead she was
breathing and appeared to be sleeping.
He put her on the bed, covered her with a sheet and cleaned his face in
the bathroom. Tinsley arrived home
shortly afterwards. He admitted that he
had lied to Detective Gaffney about the incident, stating, "I basically
thought that Ms. Tinsley wasn't going to be with me if I told [Gaffney] the
truth so I just -- he said, how did this happenâ€