Lloyd v. United States

64 A.3d 405, 2013 WL 258176, 2013 D.C. App. LEXIS 14
CourtDistrict of Columbia Court of Appeals
DecidedJanuary 24, 2013
DocketNo. 10-CF-1507
StatusPublished
Cited by3 cases

This text of 64 A.3d 405 (Lloyd v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lloyd v. United States, 64 A.3d 405, 2013 WL 258176, 2013 D.C. App. LEXIS 14 (D.C. 2013).

Opinion

TERRY, Senior Judge:

After a jury trial, appellant was convicted of first-degree cruelty to children.1 On appeal, he argues (1) that the trial court abused its discretion by permitting the jury to see an illustration of a fist punching a child’s liver, and (2) that the trial court plainly erred when it allowed the prosecutor to question him about whether two other witnesses had fabricated their testimony against him. We agree with appellant that the illustration should not have been shown to the jury without a cautionary instruction, but we hold that any error was harmless. We also agree that the prosecutor’s questioning (which [407]*407elicited no objection from defense counsel) was clearly improper, under long-established case law, but in the context of this case it was not so prejudicial that the court’s failure to correct it sua sponte amounted to plain error. We therefore affirm appellant’s conviction.

I

Shortly after 2:00 p.m. on December 16, 2009, appellant called the Naval District Dispatch Center because he was concerned about two-year-old A.M., who was temporarily staying in his home.2 Within minutes, medical personnel arrived at appellant’s home at Bolling Air Force Base.3 As they entered, they found A.M. lying on his back on the living room floor; his eyes “were beginning to roll.” When Sergeant Kimberly Herrera, one of the medical technicians, asked what had happened, appellant told her that he found A.M. in that state when he returned from another part of the house, where he had gone to get a clean diaper for A.M. Appellant said that he thought A.M. might have had “a seizure.” 4

The paramedics found that A.M.’s respiration and heart rate were well below normal, so they decided to take him immediately to the hospital. Upon his arrival at the base medical center, he was unconscious and in critical condition. One of the doctors who treated him, Dr. Bruce Klein, testified that A.M. had “numerous bruises ... to the right side of [his] face ... around his [left] eye, to his anterior abdomen, his flanks posteriorly, his upper left thighs and adjacent pelvis,” unreactive pupils, and symptoms of a severe brain injury. Further examinations, including a CT scan, revealed that A.M. had “a large sub-dural hematoma with brain shift.” His liver function tests were “markedly abnormal,” and there was retinal hemorrhaging in his right eye. He had suffered a displaced left clavicle fracture, an uncommon injury for such a small child. He was taken immediately to the operating room for emergency surgery, and thereafter he remained in the hospital for almost a month, followed by three weeks at a rehabilitation center. Dr. Klein concluded that A.M.’s injuries were “non-accidental” and that they were inconsistent with a fall “down a few stairs” a day or two earlier, as appellant had described to the police.5

Prior to trial, appellant moved in limine to prevent the government from introducing into evidence Government Exhibit 64, which depicted a cross-section of a child’s torso and a fist making blunt-force contact with the liver. The prosecutor said that the image was being offered to “show how [408]*408the liver [could] be injured.” She asserted that the image was “relevant” because Dr. Cindy Christian, one of the government’s expert witnesses, would testify that A.M. had “liver bruising” which was the result of “blunt force trauma, such as a punch, kick, things like that.” The prosecutor added that she did not intend to offer the image into evidence, but instead simply wanted to show it to the jury. Defense counsel argued that it was “inflammatory to even show it,” but the court rejected that argument, stating, “I don’t agree with that. As long as she’s going to be talking about this ... to illustrate her testimony, I’ll rule on it finally during the trial. But I think that’s an appropriate use of it.”

Later, during her direct examination, Dr. Christian described the bruising of A.M.’s liver as the result of a “blunt impact injury to the abdomen.” At that point, the government showed Exhibit 64 to the witness without objection. Dr. Christian described the exhibit as “a diagram from [a] ... collection of [a] kind of blunt impact injury to the abdomen of a child and how it can cause liver injury.”

So you’re looking at a cross-section ... as if [you] took a knife and sliced me in half and kind of opened me up and showed you what we’re doing.

Dr. Christian added:

[I]n young children, the liver sits a little lower down. It’s not quite as protected by the ribs as it is in an older child or an adult. So if you punch a child in the belly or kick a child in the belly, or there’s blunt impact in the belly, you can cause injury to that liver ... bruising ... bleeding ... [and] tears in the liver.

With respect to A.M.’s injuries, Dr. Christian said:

He had multiple bruises to his chest, to his abdomen, to his flanks, to his groin area.... Whether those were punches or kicks, I can’t say. I was not there. There was no specific imprint mark. But they are all evidence of impact. That liver contusion is evidence of blunt impact into the abdomen.6

Defense counsel, during his cross-examination of Dr. Christian, showed her the exhibit again (and showed it again later to the defense expert, Dr. Stephens) and discussed the liver more generally. During that testimony, Dr. Christian agreed that the illustration was “just an example of ... something that could have caused blunt trauma to the liver.”

II

Appellant, citing our decisions in Hammond, v. United States, 501 A.2d 796 (D.C.1985), and Burleson v. United States, 306 A.2d 659 (D.C.1973), argues that the government’s use of Exhibit 64 created a “mental tendency” in the jurors to prove what it portrayed, even though the exhibit was entirely speculative. Both parties agreed that the child had suffered a blunt impact injury. The central question, appellant contends, was about the cause of the injury, and the illustration of the use of a fist to cause injury to the liver purported to show only one possible answer.

The government counters that the exhibit was admissible (even though it was not actually admitted into evidence) because it illustrated the testimony of its expert that very young children were par[409]*409ticularly susceptible to blunt impact injuries. Distinguishing the Burleson case, the government argues that in this case, unlike Burleson, there was nothing remote or conjectural about the exhibit with respect to its connection to appellant or the charged crime. The government adds that any “mental tendency” to believe that a punch caused the injury was tempered by Dr. Christian’s testimony that a punch was simply “just an example of ... something that could have caused blunt trauma to the liver.”

Before turning to the merits, we must first address our standard of review. Appellant contends that the trial court abused its discretion by permitting the exhibit to be shown to the witness and seen by the jury.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Shepherd v. United States
District of Columbia Court of Appeals, 2023
Marques An'Rico Johnson v. United States
118 A.3d 199 (District of Columbia Court of Appeals, 2015)
Tawanda Sheffield, Steven D. Lewis, and Allen Butler v. United States
111 A.3d 611 (District of Columbia Court of Appeals, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
64 A.3d 405, 2013 WL 258176, 2013 D.C. App. LEXIS 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lloyd-v-united-states-dc-2013.