Filed Washington State Court of Appeals Division Two
December 20, 2016 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 47572-3-II
Respondent,
v.
HECTOR FRANCISCO SAAVEDRA RUIZ, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Hector Francisco Saavedra Ruiz appeals from his second degree
murder conviction, asserting that misleading expert testimony violated his due process and fair
trial rights. Saavedra Ruiz also requests that we waive the imposition of appellate costs if the
State prevails in this appeal. Because resolution of Saavedra Ruiz’s claim requires examination
of matters outside the record, we cannot address it in this direct appeal. Accordingly, we affirm
Saavedra Ruiz’s conviction. Because the State has stated that it will not seek costs on appeal
should it prevail, we need not address Saavedra Ruiz’s request to waive such costs.
FACTS
On February 10, 2014, Kayla Des Rochers gave birth to her daughter Natalie. Saavedra
Ruiz was Natalie’s father. Des Rochers and Natalie lived in Olympia and would drive to
Kingston about once a week to visit Saavedra Ruiz. On July 15, Des Rochers took Natalie to her
doctor for a wellness exam, which showed that Natalie was healthy. On the following day, Des
Rochers drove with Natalie to Kingston for their weekly visit with Saavedra Ruiz. No. 47572-3-II
Saavedra Ruiz told Des Rochers that he wanted to take Natalie to the restaurant where he
worked to show her off to his coworkers. Des Rochers opposed the idea because Natalie was
sleeping and because Saavedra Ruiz had never been alone with the baby for a long period of
time. Des Rochers ultimately allowed Saavedra Ruiz to take Natalie to his work.
Saavedra Ruiz was away with Natalie for approximately one hour. During that time, Des
Rochers sent him several text messages and attempted to call him. When Saavedra-Ruiz
returned to his apartment, Des Rochers saw that Natalie was not moving and did not appear to be
breathing. Des Rochers tried to call 911, but Saavedra Ruiz grabbed her phone and put it in his
back pocket. Someone eventually called 911.
Paramedics arrived and determined that Natalie did not have a pulse and was not
breathing. After giving Natalie medication to revive her heartbeat and intubating her,
paramedics transferred her to Harrison Medical Center – Silverdale. Upon arrival, Natalie’s
emergency room doctor believed that she was likely brain-dead. A couple hours later, Natalie
was transferred to Mary Bridge Children’s Hospital in Tacoma. Despite extensive efforts,
Natalie died at the hospital on July 18.
On January 16, 2015, the State charged Saavedra Ruiz by first amended information with
second degree murder, alleging that he caused Natalie’s death in the course of committing or
attempting to commit second degree child assault.1 The State further alleged sentencing
enhancements that Saavedra Ruiz committed the crime against a family member, knew the
victim was particularly vulnerable, and used his position of trust to facilitate the crime.
1 The State filed a second amended information on March 30, 2015, but Saavedra Ruiz was not arraigned on it.
2 No. 47572-3-II
Several medical professionals testified at trial. Pierce County Medical Examiner, Dr.
Thomas Clark, testified that he had performed Natalie’s autopsy. Clark stated that Natalie had a
bruise on her left cheek that was likely caused by blunt force trauma. Clark also stated that
Natalie had a fracture located underneath her skull bleeding within her scalp, suggesting that
Natalie’s scalp was impacted by “a large blunt surface with some degree of force.” Report of
Proceedings (RP) at 398. Additionally, Clark described injuries to Natalie’s retinas, noting a
strong correlation between such injuries and infants who have been shaken. Clark opined that
Natalie was alive at the time her injuries were inflicted, that her symptoms would have appeared
very quickly, and that her death “was a result of blunt force injury to the head.” RP at 408.
Dr. John Whitt, a pediatric intensivist at Mary Bridge Children’s Hospital, testified that
Natalie’s brain injuries were consistent with “‘nonaccidental trauma,’ ‘child abuse,’ or ‘shaken
baby syndrome.’” RP at 443. Whitt further testified that Natalie’s head injury caused her death.
Michele Breland, a pediatric nurse practitioner at Mary Bridge Children’s Hospital, testified that
Natalie’s symptoms would have been apparent immediately after the event causing injuries to
her brain. Breland stated that it would have been obvious that Natalie was not normal following
a shaking event or an event causing her skull fracture.
At closing, the State referred to the above expert testimony, stating:
We know from the testimony of Michele Breland that the injuries—the brain itself is surrounded by layers. And Ms. Breland went over what those layers were and what Natalie’s injures were in this case. Now, she had an occipital skull fracture, which is a skull fracture right on the back of her head. In the brain there are these—what they call “bridging veins.” And those veins supply blood to the brain. The brain is also made up of nerves. And when—when a baby is shaken, or in Natalie’s case slammed against the surface, those nerves can be sheared. And once those nerves are broken, they can no longer communicate with the rest of the body, with the brain. They can no
3 No. 47572-3-II
longer tell Natalie to breathe, to swallow, to do any of the things that a normal person would be able to do. That’s what occurred in this case.
RP at 566-67 (emphasis added).
The jury returned a verdict finding Saavedra Ruiz guilty of second degree murder. The
jury also returned special verdicts finding that Saavedra Ruiz and Natalie were members of the
same family, Saavedra Ruiz committed his crime against a particularly vulnerable victim, and
Saavedra Ruiz used a position of trust to facilitate his crime. Saavedra Ruiz appeals his
conviction.
ANALYSIS
Saavedra Ruiz contends that the State violated his rights to due process and a fair trial by
presenting misleading expert testimony at trial. Specifically, he contends that expert testimony
regarding shaken baby syndrome was misleading because it was based on outdated science. But
Saavedra Ruiz does not identify anything within the record showing that this expert testimony
was misleading or based on outdated science. Instead, Saavedra Ruiz relies on our decision in In
re Pers. Restraint of Fero, 192 Wn. App. 138, 367 P.3d 588 (2016), to argue that he is entitled to
a new trial based on the allegedly misleading testimony. Saavedra Ruiz’s reliance on Fero is
misplaced.
In Fero, we granted postconviction relief from the petitioner’s first degree child assault
conviction based on the petitioner’s submitted declarations from medical experts regarding a
“paradigm shift in the medical community’s understanding of head trauma in children.” 192
Wn. App. at 149. For example, a declaration from pediatric neuroradiologist Dr. Patrick Barnes
stated:
4 No. 47572-3-II
Given the new medical research on lucid intervals, the testimony of the State’s experts to the effect that [the victim] would have immediately gone unconscious is unsupported by the medical literature.
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Filed Washington State Court of Appeals Division Two
December 20, 2016 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 47572-3-II
Respondent,
v.
HECTOR FRANCISCO SAAVEDRA RUIZ, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Hector Francisco Saavedra Ruiz appeals from his second degree
murder conviction, asserting that misleading expert testimony violated his due process and fair
trial rights. Saavedra Ruiz also requests that we waive the imposition of appellate costs if the
State prevails in this appeal. Because resolution of Saavedra Ruiz’s claim requires examination
of matters outside the record, we cannot address it in this direct appeal. Accordingly, we affirm
Saavedra Ruiz’s conviction. Because the State has stated that it will not seek costs on appeal
should it prevail, we need not address Saavedra Ruiz’s request to waive such costs.
FACTS
On February 10, 2014, Kayla Des Rochers gave birth to her daughter Natalie. Saavedra
Ruiz was Natalie’s father. Des Rochers and Natalie lived in Olympia and would drive to
Kingston about once a week to visit Saavedra Ruiz. On July 15, Des Rochers took Natalie to her
doctor for a wellness exam, which showed that Natalie was healthy. On the following day, Des
Rochers drove with Natalie to Kingston for their weekly visit with Saavedra Ruiz. No. 47572-3-II
Saavedra Ruiz told Des Rochers that he wanted to take Natalie to the restaurant where he
worked to show her off to his coworkers. Des Rochers opposed the idea because Natalie was
sleeping and because Saavedra Ruiz had never been alone with the baby for a long period of
time. Des Rochers ultimately allowed Saavedra Ruiz to take Natalie to his work.
Saavedra Ruiz was away with Natalie for approximately one hour. During that time, Des
Rochers sent him several text messages and attempted to call him. When Saavedra-Ruiz
returned to his apartment, Des Rochers saw that Natalie was not moving and did not appear to be
breathing. Des Rochers tried to call 911, but Saavedra Ruiz grabbed her phone and put it in his
back pocket. Someone eventually called 911.
Paramedics arrived and determined that Natalie did not have a pulse and was not
breathing. After giving Natalie medication to revive her heartbeat and intubating her,
paramedics transferred her to Harrison Medical Center – Silverdale. Upon arrival, Natalie’s
emergency room doctor believed that she was likely brain-dead. A couple hours later, Natalie
was transferred to Mary Bridge Children’s Hospital in Tacoma. Despite extensive efforts,
Natalie died at the hospital on July 18.
On January 16, 2015, the State charged Saavedra Ruiz by first amended information with
second degree murder, alleging that he caused Natalie’s death in the course of committing or
attempting to commit second degree child assault.1 The State further alleged sentencing
enhancements that Saavedra Ruiz committed the crime against a family member, knew the
victim was particularly vulnerable, and used his position of trust to facilitate the crime.
1 The State filed a second amended information on March 30, 2015, but Saavedra Ruiz was not arraigned on it.
2 No. 47572-3-II
Several medical professionals testified at trial. Pierce County Medical Examiner, Dr.
Thomas Clark, testified that he had performed Natalie’s autopsy. Clark stated that Natalie had a
bruise on her left cheek that was likely caused by blunt force trauma. Clark also stated that
Natalie had a fracture located underneath her skull bleeding within her scalp, suggesting that
Natalie’s scalp was impacted by “a large blunt surface with some degree of force.” Report of
Proceedings (RP) at 398. Additionally, Clark described injuries to Natalie’s retinas, noting a
strong correlation between such injuries and infants who have been shaken. Clark opined that
Natalie was alive at the time her injuries were inflicted, that her symptoms would have appeared
very quickly, and that her death “was a result of blunt force injury to the head.” RP at 408.
Dr. John Whitt, a pediatric intensivist at Mary Bridge Children’s Hospital, testified that
Natalie’s brain injuries were consistent with “‘nonaccidental trauma,’ ‘child abuse,’ or ‘shaken
baby syndrome.’” RP at 443. Whitt further testified that Natalie’s head injury caused her death.
Michele Breland, a pediatric nurse practitioner at Mary Bridge Children’s Hospital, testified that
Natalie’s symptoms would have been apparent immediately after the event causing injuries to
her brain. Breland stated that it would have been obvious that Natalie was not normal following
a shaking event or an event causing her skull fracture.
At closing, the State referred to the above expert testimony, stating:
We know from the testimony of Michele Breland that the injuries—the brain itself is surrounded by layers. And Ms. Breland went over what those layers were and what Natalie’s injures were in this case. Now, she had an occipital skull fracture, which is a skull fracture right on the back of her head. In the brain there are these—what they call “bridging veins.” And those veins supply blood to the brain. The brain is also made up of nerves. And when—when a baby is shaken, or in Natalie’s case slammed against the surface, those nerves can be sheared. And once those nerves are broken, they can no longer communicate with the rest of the body, with the brain. They can no
3 No. 47572-3-II
longer tell Natalie to breathe, to swallow, to do any of the things that a normal person would be able to do. That’s what occurred in this case.
RP at 566-67 (emphasis added).
The jury returned a verdict finding Saavedra Ruiz guilty of second degree murder. The
jury also returned special verdicts finding that Saavedra Ruiz and Natalie were members of the
same family, Saavedra Ruiz committed his crime against a particularly vulnerable victim, and
Saavedra Ruiz used a position of trust to facilitate his crime. Saavedra Ruiz appeals his
conviction.
ANALYSIS
Saavedra Ruiz contends that the State violated his rights to due process and a fair trial by
presenting misleading expert testimony at trial. Specifically, he contends that expert testimony
regarding shaken baby syndrome was misleading because it was based on outdated science. But
Saavedra Ruiz does not identify anything within the record showing that this expert testimony
was misleading or based on outdated science. Instead, Saavedra Ruiz relies on our decision in In
re Pers. Restraint of Fero, 192 Wn. App. 138, 367 P.3d 588 (2016), to argue that he is entitled to
a new trial based on the allegedly misleading testimony. Saavedra Ruiz’s reliance on Fero is
misplaced.
In Fero, we granted postconviction relief from the petitioner’s first degree child assault
conviction based on the petitioner’s submitted declarations from medical experts regarding a
“paradigm shift in the medical community’s understanding of head trauma in children.” 192
Wn. App. at 149. For example, a declaration from pediatric neuroradiologist Dr. Patrick Barnes
stated:
4 No. 47572-3-II
Given the new medical research on lucid intervals, the testimony of the State’s experts to the effect that [the victim] would have immediately gone unconscious is unsupported by the medical literature. It is impossible to tell from the radiology or otherwise in the medical record when [the victim] was injured, and there is a significant chance that she was injured before she arrived at Ms. Fero’s home.
Fero, 192 Wn. App. at 150. Dr. Barnes concluded that “‘[a]t the time of Ms. Fero’s trial, many
doctors would have agreed with the doctors for the state . . . . However, shaken baby syndrome
theories as applied in this case are no longer supported by the scientific literature.’” Fero, 192
Wn. App. at 150 (alteration in original). Similarly, a declaration from pediatric forensic
pathologist Dr. Janice Ophoven concluded:
Based on the medical records, my review of the literature, and my experience as a pediatric forensic pathologist . . . it is my opinion that much of the medical testimony presented during Ms. Fero’s 2003 trial is no longer scientifically valid in light of recent advances in the medical community’s understanding of the natural, accidental and non-accidental causes of cerebral edema, subdural hematoma and retinal hemorrhages.
Fero, 192 Wn. App. at 151.
We held that these declarations constituted newly discovered evidence that would have
likely changed the results of the petitioner’s trial and, thus, granted the petition and remanded for
a new trial. Fero, 192 Wn. App. at 154-61, 165.
Because the petitioner in Fero was collaterally attacking her conviction, she was
permitted to rely on submitted declarations that were not part of the trial record to support her
claim. See State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995) (A personal restraint
petition is the appropriate means of having reviewing court consider matters outside the trial
record.). In contrast with Fero, Saavedra Ruiz must rely solely on the trial record to support his
claims on direct appeal. McFarland, 127 Wn.2d 338. Because nothing in the trial record
5 No. 47572-3-II
demonstrates that the State presented misleading expert testimony at trial, Saavedra-Ruiz’s due
process and fair trial claims cannot succeed.
Moreover, even if Saavedra Ruiz could rely on the same outside-the-record evidence
cited in Fero showing that previous theories regarding shaken baby syndrome have been
undermined by new scientific research, it would not likely assist in his claims. Although the
expert medical testimony presented in Saavedra Ruiz’s trial linked symptoms of Natalie’s brain
injuries with shaken baby syndrome, it is clear from the record that the State did not allege that a
shaking event caused her death.
Unlike the victim in Fero, Natalie suffered a skull fracture. Here, Dr. Clark testified that
Natalie’s death was caused by blunt force trauma to the back of her head. Dr. Whitt was less
specific as to Natalie’s cause of death, stating only that her head injury caused her death. And,
although Dr. Whitt linked her symptoms with “shaken baby syndrome,” he used the term
interchangeably with “nonaccidental trauma,” and “child abuse.” RP at 443. Whitt did not
testify that in his opinion Natalie died as a result of shaken baby syndrome. Finally, Breland
testified that Natalie’s injuries could have been caused by a shaking event or by the event
causing her skull fracture, but the State was clear during closing arguments that it was not
relying on an inference that Saavedra Ruiz caused her death by shaking her. At closing, the State
argued:
And when—when a baby is shaken, or in Natalie’s case slammed against the surface, those nerves can be sheared. And once those nerves are broken, they can no longer communicate with the rest of the body, with the brain. They can no longer tell Natalie to breathe, to swallow, to do any of the things that a normal person would be able to do. That’s what occurred in this case.
6 No. 47572-3-II
RP at 567 (emphasis added). Because it is clear that nothing in the trial record supports Saavedra
Ruiz’s claim that the State relied on outdated and misleading expert testimony, we do not
speculate as to how extra-record evidence would support Saavedra Ruiz’s claim.
The State did not violate Saavedra Ruiz’s due process or fair trial rights. Accordingly,
we affirm his conviction.
Saavedra Ruiz requests that we waive the imposition of appellate costs due to his
inability to pay such costs. Because the State has indicated that it will not seeks appellate costs
in this matter, we need not address Saavedra Ruiz’s waiver request.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J. We concur:
Maxa, A.C.J.
Sutton, J.