Sivo v. Wall

644 F.3d 46, 2011 U.S. App. LEXIS 13302, 2011 WL 2568002

• Court: Court of Appeals for the First Circuit
• Decided: June 30, 2011
• Docket: 10-1836
• Status: Published

Opinions

BOUDIN, Circuit Judge.

Derek Sivo, convicted of first-degree child abuse in state court, appeals from the federal district court’s denial of his petition for a writ of habeas corpus. The charge against Sivo was that he inflicted injuries on John W. Jr. (“J.J.”), the then two-and-a-half-year-old son of Sivo’s girlfriend, Kimberly Mathieu (“Kim”). Sivo’s central claim now before us is one of insufficient evidence. We outline briefly the central facts and prior proceedings.¹

On November 1, 2001, Kim and J.J. woke up at around 7:30 or 8:00 a.m. and went out for breakfast. J.J. said that he did not feel well and wanted to stay home that day. Kim left for work at around 11:15 a.m., leaving J.J. in the care of her boyfriend, Sivo. Kim called home between 3:30 and 4:30 p.m. and Sivo said that J.J. was sick.

Upon Kim’s return home from work at around 6:30 p.m., Sivo told Kim that J.J. was not feeling well and had earlier that day fallen down some of the stairs that led to their basement apartment. Sivo reported that when J.J. fell, he was not crying and seemed mostly okay. When Kim went in to check on J.J., who was sleeping, he awoke and said “Hi, Mommy,” and then resumed his sleep; Kim felt that J.J. was running a “little fever,” and so she gave him Motrin and checked on him periodically during the night.

The next morning, on November 2, 2001, J.J. did not wake up as usual at 7:30 or 8:00 a.m. When Kim awoke at 10:00 a.m. and realized that J.J. was still sleeping and found him “not responsive,” she called J.J.’s pediatrician, Dr. Cheryl Flynn. When Kim brought J.J. to Dr. Flynn’s office later that day, Dr. Flynn found that J.J. was barely awake but “arousable”; was having trouble “holding] himself up”; and “could not bear [his own] weight or walk.” At Dr. Flynn’s direction, J.J. was taken to Hasbro Children’s Hospital.

At the hospital, J.J. was found to be in an “altered level of consciousness” and was “virtually nonresponsive.” J.J. was treated by Dr. John Allison Duncan III, chief of neurosurgery at Brown University Medical School and an expert in pediatric neurosurgery, and Dr. Seth Asser. They determined that he had incurred a subdural hematoma — a collection of blood on the surface of the brain — and was suffering increased intercranial pressure that threatened his life.

In an emergency operation, the surgeons removed two blood clots from J.J.’s brain — a “fresh” one caused by an injury that the doctors determined occurred sometime between a few days to a few hours before the surgery, and an older one that was four to eight weeks old. While the surgery saved J.J.’s life, he suffers significant complications from his injuries, including weakness on his right side, lack of peripheral vision, speech problems and a permanent limp. Hasbro’s Child Protection Team contacted the police.

A detective from the Cranston Police Department arrived at Hasbro at 7:00 p.m. the same evening, questioned Kim and one of J.J.’s doctors and then summoned Sivo. Sivo came to the station at 10:40 p.m. and repeated what he had told Kim earlier: that J.J. fell down the last few stairs on the way down to their basement apartment; that J.J. was not crying after the fall, and only indicated that his “butt” and the back of his head hurt; and that J.J. napped later that day because he was ill. Sivo also gave similar statements to other investigators.

On February 13, 2002, the Cranston Police Department filed a criminal information charging Sivo with one count of first-degree child abuse of a child under the age of five, in violation of state law. R.I. Gen. Laws § 11-9-5.3 (2002). The offense occurs when “a person having care of a child ... knowingly or intentionally ... [ijnflicts upon a child serious bodily injury.” Id. § 11-9-5.3(b)(1). Serious bodily injury is defined to include injury that creates a substantial risk of death, causes protracted impairment of function or evidences subdural hematoma. Id. § 11-9-5.3(c).

At trial, the jury heard — in addition to what is recounted above — testimony from all three doctors who saw J.J. on November 2. Doctors Duncan and Asser testified that the subdural hematomas must have been caused by a severe blow such as a fall from a significant height; that the injury was “non-accidental”; that (according to Dr. Duncan) a fall down the stairs could explain the injury only if J.J. were thrown down the stairs and landed primarily on his head; and that (according to Dr. Asser) child abuse was the likely cause. None of the three doctors identified signs of abuse other than the subdural hematomas.

Sivo presented as a witness Dr. Thomas Morgan, a neurologist; Dr. Morgan gave as his medical opinion J.J. was not the victim of abuse: J.J. had none of the telltale signs of being abused, including facial bruises, a black eye, a broken jaw, chest or pelvic injuries, fractured skull, broken ribs or swollen tissue. Dr. Morgan suggested that the subdural hematomas were likely caused by an August 2001 seizure that resulted in J.J. becoming weaker on his right side and more prone to falls.

Dr. Morgan further testified that J.J. was predisposed to developing subdural hematomas, and so any fall — including a fall down the stairs — -could have triggered one; and that the lack of external evidence of abuse and J.J.’s behavior on November 1-2 — at first normal but becoming progressively weaker and more lethargic— was consistent with Dr. Morgan’s assessment. Dr. Morgan conceded that he never examined J.J., but instead based his conclusions on a review of police reports,, medical records and an interview with Kim.

There was conflicting evidence on yet another matter. According to Kim, falling was not unusual for J.J.; she claimed that after two falls in August 2001, J.J. began falling frequently, a matter that concerned Kim enough to raise it with J.J.’s pediatrician. J-J.’s maternal grandmother, Roseann Mathieu (“Roseann”), and his biological father, John W. Sr., testified for the state, asserting that J.J. was not clumsy and fell no more than an average two-year-old. Roseann also testified that J.J. often did not want to go to Sivo’s home.

At the close of evidence, Sivo moved for a judgment of acquittal, which was denied. On October 23, 2002, the jury found Sivo guilty of first-degree child abuse; he was later sentenced to twenty years imprisonment, twelve to serve and eight suspended with probation. Although the Rhode Island Supreme Court ordered a hearing in the trial court on Sivo’s new trial motion, that motion failed and the Rhode Island Supreme Court ultimately affirmed the conviction and sentence.

Thereafter, a federal district court considered a habeas petition by Sivo, 28 U.S.C. § 2254 (2006), ultimately denying relief but granting a certificate of appealability on one issue, id. § 2253(c)(2), namely, “whether the denial of Sivo’s motion for judgment of acquittal violated his constitutional rights.” Our review of the district court is de novo, Santiago v. OBrien, 628 F.3d 30, 33 (1st Cir.2010), but our review of the underlying state court determination — that the evidence against Sivo was sufficient — is more restricted.

Specifically, under the habeas statute, factual determinations by state trial and appellate courts are presumed correct unless disproved by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Clements v. Clarke, 592 F.3d 45, 47 (1st Cir.), cert. denied, — U.S.-, 130 S.Ct. 3475, 177 L.Ed.2d 1070 (2010). As to legal issues, the state court legal ruling must stand unless it is contrary to Supreme Court precedent or amounts to “an unreasonable application of’ clearly established such precedent, 28 U.S.C. § 2254(d)(1), which requires more than mere disagreement by the federal court, McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir.2002) (en banc).

The federal constitutional rule invoked by Sivo is based on the due process clause of the Fourteenth Amendment and set forth in Jackson v. Virginia, 443 U.S. 307, 313-16, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The standard under Jackson is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319, 99 S.Ct. 2781. The Rhode Island court evaluated Sivo’s claim under state law doctrine equivalent to Jackson, see State v. Day, 925 A.2d 962, 974 (R.I.2007), so the “unreasonable application” test governs, Foxworth v. St. Amand, 570 F.3d 414, 426 (1st Cir.2009), cert. denied, — U.S.-, 130 S.Ct. 1710, 176 L.Ed.2d 197 (2010).

In practice habeas review under Jackson, constrained by doctrines already described, is reserved for unusual cases and its standard “is rarely met where there is plausible evidence to support a verdict.” Tash v. Roden, 626 F.3d 15, 20 (1st Cir.2010). Put differently, Jackson applies where there is no substantial evidence of guilt or where the evidence amounts to little more than colorable speculation. O’Laughlin v. O’Brien, 568 F.3d 287, 300-01 (1st Cir.2009), cert. denied, — U.S.-, 130 S.Ct. 1142, 175 L.Ed.2d 991 (2010). In this case the evidence against Sivo was circumstantial but it was nevertheless substantial.

First, the two doctors who were most closely involved in treating J.J. for the subdural hematoma testified that it could only have occurred with an extremely powerful blow or by being thrown from a considerable height and was not consistent with a mere stumble down a few stairs. The defense expert disagreed but he had not examined J.J., and in any event the jury, which heard the witnesses testify, is entitled to evaluate their credentials and the persuasiveness of their explanations. See United States v. Calderon, 77 F.3d 6, 10 (1st Cir.1996).

Second, Sivo was alone with J.J. for the pertinent period. The state’s medical testimony was that once J.J.’s injury occurred, he would not have been able to function normally: Dr. Asser testified that J.J.’s injury would not be “consistent with any kind of lucid interval,” and that J.J. would likely have been groggy, would not have been able to stand or walk, would not respond if someone talked to him or moved him, and would have been moaning. Yet, Kim’s testimony indicates that, at breakfast the same day and before he was entrusted to Sivo, J.J. was functioning normally even if he did not feel well.

Third, Sivo’s own statement to Kim during their phone call — he did not testify at trial — confirmed that J.J.’s condition worsened while he was in J.J.’s care and he was asleep and apparently groggy when his mother arrived home, worse the next morning and by that afternoon almost unable to function. Combined with the medical testimony, this fairly indicates that something occurred while J.J. was in Sivo’s care that precipitated the injury.

Fourth, both Dr. Duncan and Dr. Asser testified that the injury was consistent with J.J. having been hit hard with a hard object; there was no evidence that he had fallen from a great height or been in a car crash; and the only explanation provided before trial by Sivo (that J.J. had stumbled down a few stairs) was ruled out by Dr. Duncan as sufficient to cause so serious an injury. Roseann’s testimony that J.J. did not want to be left with Sivo reinforced, if only slightly, the likelihood that Sivo had struck the child.

On appeal, Sivo points out that no one can show exactly how the injury was incurred, but that is of little help to his position. If the jury could rationally conclude that the only plausible injury was a fierce blow and that only Sivo was around to administer it, the precise motive, weapon and other details are not critical to the chain of reasoning. Nor does the lack of obvious signs of prior abuse absolve Sivo. A single act of great violence is as much a violation as a string of episodes.

Sivo also says that the state failed to rule out all other possible scenarios that would be consistent with Sivo’s innocence, but that is not part of the state’s burden: “ ‘[bjeyond a reasonable doubt’ does not require the exclusion of every other hypothesis; it is enough that all ‘reasonable’ doubts be excluded.” Stewart v. Coalter, 48 F.3d 610, 616 (1st Cir.), cert denied, 516 U.S. 853, 116 S.Ct. 153, 133 L.Ed.2d 97 (1995). In fact, Dr. Asser testified that there was no reasonable explanation other than deliberate violence for this injury.

Sivo also submitted to this court articles published in medical journals that express the view that subdural hematomas can arise in some children for reasons other than abuse and severe trauma.² However, one such article explains that in a study of the causes of subdural hematomas, only four percent of those caused by accident were the result of falls, all from a height of “greater than 10 feet onto unyielding surfaces,” Kenneth Feldman et ah, The Cause of Infant and Toddler Subdural Hemorrhage: A Prospective Study, 108 Pediatrics 636, 643 (2001), and discusses an extensive body of literature that suggests that “stairway falls are unlikely to cause serious infant and toddler injury,” id. at 637.

What is more, the articles are not evidence presented to the jury and the question is whether a rational jury could convict on the evidence before it. Leftwich v. Maloney, 532 F.3d 20, 27 (1st Cir.2008). For habeas claims generally, the record is that developed in the state court, Cullen v. Pinholster, — U.S.-, 131 S.Ct. 1388, 1398-99, 179 L.Ed.2d 557 (2011), save in very limited circumstances not present here — for example, when evidence was not discoverable through due diligence at the time of the trial, see 28 U.S.C. § 2254(e)(2); Leftwich, 532 F.3d at 27 & n. 6.

This case is readily distinguishable from O’Laughlin, 568 F.3d at 287. There, the defendant was a highly plausible suspect in a murder, but there was no evidence that he had in fact been present — let alone uniquely present — at the time that murder occurred. J.J. was unquestionably in Sivo’s custody, and the explanation for the injury given in Sivo’s statement to the police was directly contradicted by the testimony of two doctors.

In sum, the Rhode Island Supreme Court did not unreasonably apply the Jackson standard in upholding the jury’s verdict, and the district court did not err in denying the petition for habeas.

Affirmed.

1 . The facts are primarily drawn from the Rhode Island Supreme Court’s decision affirming Sivo's conviction, State v. Sivo, 925 A.2d 901 (R.I.2007), and are supplemented when necessary with facts from the record when they are consistent with the Rhode Island Supreme Court’s findings, see Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir.), cert. denied 549 U.S. 892, 127 S.Ct. 198, 166 L.Ed.2d 161 (2006).

2 . E.g., Thomas Pittman, Significance of a Subdural Hematoma in a Child with External Hydrocephalus, 39 Pediatric Neurosurgery 57, 57-58 (2003) (noting that some conditions “predispose a child to develop a subdural hematoma after even minor injury,” and discussing specifically one condition — external hydrocephalus — that might make children especially prone to developing subdural hematomas).