McIntire v. Commonwealth

192 S.W.3d 690, 2006 WL 1045054
CourtKentucky Supreme Court
DecidedJune 15, 2006
Docket2003-SC-0444-MR
StatusPublished
Cited by5 cases

This text of 192 S.W.3d 690 (McIntire v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McIntire v. Commonwealth, 192 S.W.3d 690, 2006 WL 1045054 (Ky. 2006).

Opinions

Opinion of the Court by

Justice JOHNSTONE.

Appellant, Joshua Mclntire, was convicted of complicity to murder and first-degree criminal abuse in the Bourbon Circuit Court and received a sentence of twenty years’ imprisonment for complicity to murder and ten years for criminal abuse, to be served concurrently. His appeal comes before this Court as a matter of right. Ky. Const. § 110(2)(b). Appellant asserts the following errors: 1) the improper amendment of the indictment, 2) the improper admission of expert testimony, and 3) insufficiency of the evidence. Because we find that the trial court erred in admitting expert testimony, we reverse the judgment.

The charges underlying this matter concern the abuse and death of Appellant’s four-month-old son, Jordan. A particularly detailed recitation of the facts is necessary to this opinion.

In early 2001, Appellant began a relationship with Chantal Roach. He left his pregnant girlfriend in Ohio and moved in with Roach’s family in Bourbon County, Kentucky. Soon, Roach was pregnant and their son, Jordan, was born on October 9, 2001. About three weeks after Jordan was born, Appellant and Roach rented their own apartment despite the fact that neither was employed. The baby was healthy and growing normally at this time; routine “well-baby” check-ups in October and November revealed no problems.

In the weeks following the move to the new apartment, family members began to notice bruises and burn marks on the baby. Teresa Edgington, Roach’s mother, noticed a bruise above Jordan’s eyebrow in December. Edgington testified that Appellant told her the baby had injured himself in the bassinette. Another bruise on his leg appeared later; Roach testified that she believed a tight seam in the [692]*692baby’s pajamas caused this bruise. Appellant apparently became concerned about Jordan during this time also. In fact, Appellant confronted Edgington and her husband because he suspected that they were abusing Jordan.

Shortly thereafter, Roach informed her mother that Jordan had a new injury — a black eye and blood in his eye. When Edgington saw the baby later, she also noticed that he had a burn mark on his left back shoulder. Appellant and Roach both claimed that the black eye occurred when a candle accidentally fell from above and hit the baby. Edgington, however, was suspicious and took photographs of the baby’s injuries.

Social services was notified of the bruise above Jordan’s eye on December 28 and, later that same day, social worker Betsy Dailey visited the apartment. Along with Edgington, Dailey took photographs of Jordan and examined him head to toe for additional bruising; they found none. Roach told Dailey that a candle had fallen from the wall and hit the baby. Dailey recommended that Roach take the baby to the emergency room for evaluation. Finding no indications of abuse, she took no further action and listed the claim as unsubstantiated.

Roach took Jordan to the emergency room the same day. Dr. Michael Chestnut examined Jordan’s bruise, which Roach told him was the result of an object falling onto the baby. Dr. Chestnut further testified that, aside from the bruise, Jordan appeared normal and healthy, and that he did not detect other signs of abuse. Nevertheless, because social services had recommended the ER visit, Dr. Chestnut ordered a follow-up visit with Jordan’s regular pediatrician, Dr. Don Stephens. Dr. Stephens examined Jordan the next day but did not detect any abnormality aside from the bruise. Because Roach told Dr. Stephens that she thought the baby bruised easily, a blood count was ordered. That test was performed in late January and returned normal results.

Meanwhile, beginning in January, Roach and Appellant began participating in the “HANDS” program for first-time parents. Social worker Francesca Mendoza was assigned to Jordan, and made three visits to the home prior to Jordan’s death. Mendoza’s reports and testimony indicate that she found Appellant and Roach to be interested, though uninformed, parents. She cautioned them about smoking in the house and putting the baby to bed on its stomach. Mendoza did, however, notice the small bruise on Jordan and that he had an unusual cry. Mendoza’s final report indicated her intent to keep her “eyes open” for further signs of abuse or neglect.

Jordan visited the emergency room again in mid-January for vomiting. Dr. Robert Biddle attended to Jordan and conducted a thorough evaluation of the baby. Dr. Biddle found no abnormalities other than a small, linear contusion to Jordan’s elbow. Though Dr. Biddle testified that such a bruise is unusual for a non-peram-bulatory child, he also testified that he saw no signs of abuse and that he was not suspicious of abuse. Pursuant to Dr. Biddle’s orders, Roach returned the next day to the emergency room and was seen by Dr. Chestnut. Dr. Chestnut testified that Jordan seemed healthy at that time and that he had no other concerns or observations about the child. Roach testified that, at the insistence of her mother, she also alerted Dr. Chestnut that Jordan’s eyes had been crossing “quite a bit.” According to Roach, she was told that this was a normal, temporary reaction to the vomiting. (It should be noted that Roach attributed this advice to Dr. Stephens during her testimony; the doctors’ records, how[693]*693ever, indicate that Dr. Chestnut performed the follow-up visit on Jordan.)

On February 6, 2002, Roach took Jordan to Edgington’s house for a visit; Edging-ton testified that Jordan seemed normal and healthy at that time. Later, Roach’s cousin, Kindra O’Neal, visited the couple at their apartment. Appellant was smoking marijuana that evening, and Roach complained that she was not feeling well. O’Neal offered to keep Jordan for the night, but Roach declined.

Roach testified that she put Jordan to bed at midnight that evening. Both she and Joshua testified that it was ordinary for Appellant to wake with the baby during the night, and for Roach to tend to the baby in the morning. Roach testified that she woke the next day, February 7, at 1:45 in the afternoon. After Appellant indicated to her that he had not been up with the baby diming the night, Roach checked on the baby. He was asleep and breathing, so she and Appellant left the baby and went into the living room. At 3:30, she heard Jordan sigh over the baby monitor, so she went into the bedroom to check on him. He was limp and wet, and would not wake up. Appellant’s testimony corroborated Roach’s version of events.

Appellant went to a neighbor’s apartment to use the phone, but was unable to reach Roach’s mother. Though the neighbor offered to drive them to the hospital, Roach insisted on waiting for her mother. An hour later, Appellant was finally able to reach Edgington, who came to the apartment and took them to the hospital. Jordan was in critical condition when he arrived at the hospital at 5:45 p.m. Dr. Biddle found significant trauma about the head including bruising and swelling. Due to the gravity of Jordan’s condition, he was transferred by helicopter to Kosair Children’s Hospital in Louisville. Further tests confirmed that Jordan had suffered several skull fractures as well as bleeding in the brain and a broken right arm. The next day, a pediatric ophthalmologist examined Jordan and discovered the full extent of his injuries including healed rib fractures, a leg fracture, new brain bleeding, retinal hemorrhaging, a split retina, and damage to the brain stem. The ophthalmologist concluded that these injuries were the result of non-accidental trauma consistent with shaking the infant.

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Related

Mayse v. Commonwealth
422 S.W.3d 223 (Kentucky Supreme Court, 2013)
Hamilton v. Commonwealth
293 S.W.3d 413 (Court of Appeals of Kentucky, 2009)
Parker v. Commonwealth
291 S.W.3d 647 (Kentucky Supreme Court, 2009)
McIntire v. Commonwealth
192 S.W.3d 690 (Kentucky Supreme Court, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
192 S.W.3d 690, 2006 WL 1045054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcintire-v-commonwealth-ky-2006.