State v. Madarash

116 Wash. App. 500
CourtCourt of Appeals of Washington
DecidedApril 15, 2003
DocketNo. 26267-3-II
StatusPublished
Cited by18 cases

This text of 116 Wash. App. 500 (State v. Madarash) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Madarash, 116 Wash. App. 500 (Wash. Ct. App. 2003).

Opinion

Houghton, J.

Tammy Madarash appeals her convictions of homicide by abuse and second degree felony murder of four-year-old Jennifer Kell, arguing that the evidence was insufficient to support a conviction and that the trial court erred in entering its findings of fact. We affirm the conviction of homicide by abuse but reverse the conviction of second degree felony murder.

FACTS

Jennifer Kell was born on December 1, 1994, to David and Becky Kell. When Jennifer was 11 months old, Becky Kell died from a heart attack. Within a month of Becky’s [503]*503death, David Kell and Madarash, his landlord, were living together. Early in their relationship, Madarash told a friend that Jennifer had “her mother’s attitude” and that she was going to “break her of that.” 9 Report of Proceedings (RP) at 1084. Jennifer was then barely a year old.

On September 15, 1999, at 6:52 p.m., a Longview paramedic, Jay Jones, responded to a 9-1-1 call from the Kell/Madarash residence. On arrival, he found Jennifer lying on the floor. Jennifer was vomiting heavily and diarrhea was leaking out of her diapers. She told Jones that she “hurt everywhere.” 2 RP at 44. Jennifer’s condition significantly worsened during the ambulance ride to the hospital. At that point, she began seizing and having difficulty breathing. At the hospital, staff observed an abrasion on the left side of Jennifer’s abdomen. Jennifer became comatose, and a CT scan revealed that she had cerebral edema.

Jennifer was transported to a pediatric hospital in Portland for intensive life support. At the hospital, Dr. Joseph Zenel, Jr., a pediatrician, noted several bruises on Jennifer’s body — on her left cheek, on the front of her chest, on her right shoulder, and on the front and back of her knees.

Zenel believed that the bruises were recent because they were evolving as he examined Jennifer. In addition, he believed that the bruises were likely inflicted by grabbing, rubbing, or from blows. He later testified the bruises suggested that Jennifer had struggled and been held down in place. Zenel also testified that the CT scan revealed “tremendous swelling of the brain to the point of almost obliterating the normal spaces that you find in the brain.” 4 RP at 423. He concluded that Jennifer most likely experienced a drowning episode, very acute water intoxication, or water ingestion.

Caroline Dodge, an intensive care pediatric nurse, assumed Jennifer’s bedside care the morning of September 16. Dodge later testified that she suspected that Jennifer was a victim of abuse and that she saw several bruises develop on Jennifer’s body throughout the day. That [504]*504evening, Jennifer was taken off life support. Fifteen minutes later, Jennifer was dead.

After three interviews with Madarash, Kelso police arrested her on September 17. Madarash told the officers several versions of what had happened to Jennifer. Her final account was that late in the afternoon on September 15, Jennifer had taken a sip of Madarash’s Diet Pepsi without permission. As punishment, Madarash forced Jennifer to drink a 48-ounce Diet Pepsi within a matter of minutes. After drinking the Diet Pepsi, Madarash told police Jennifer “burped up something... or vomited on herself.” 11 RP at 1376.

Madarash then pushed Jennifer, fully clothed, into a cold bath. She began throwing cups of cold water in Jennifer’s face, throwing them forcefully and continually, into her mouth and onto her face. Jennifer began coughing, crying, and pleading with Madarash to stop. Madarash told police that she said she “didn’t care if Jennifer didn’t like it” because she “wasn’t going to stop.” 11 RP at 1379. Jennifer put her hands in front of her face to block the water, and Madarash ordered Jennifer to put her hands down. Madarash continued to throw cups of water in Jennifer’s face and open mouth for 5 to 10 minutes.

Madarash also told police that because Jennifer began trying to climb out of the bathtub, she “grabbed Jennifer by the arm and pulled her down under the water . . . face down in the tub.” 11 RP at 1380. Madarash could not remember how long Jennifer was underwater. Jennifer again tried to climb out of the bathtub and slipped back underneath the water for two or three more seconds. Each time Jennifer tried to get out of the bathtub, Madarash threw cups of water in her face and mouth.

Madarash told detectives that when she finally allowed Jennifer to get out of the bathtub, she could tell that something was wrong because Jennifer was wheezing and had a rattling in her chest. Later that evening, Jennifer collapsed.

[505]*505Kevin Wolfe, a friend of David Kell, saw Madarash at the hospital. Wolfe later testified that while at the hospital, Madarash told him that Jennifer had stopped breathing and was dead. Wolfe then testified that Madarash lifted up her hair, said, “[S]ee, she threw up in my hair,” chuckled, and put her hair back down. 2 RP at 173.

By amended information, the State charged Madarash with homicide by abuse under RCW 9A.32.055 and second degree felony murder under RCW 9A.36.031(l)(d) and/or (f). The predicate felony was third degree assault.

At a bench trial, numerous witnesses testified about Madarash’s abusive treatment of Jennifer, giving the following examples:

(1) Madarash beat Jennifer with a wooden spoon, belt, spatula, or willow switch. Many times witnesses saw scratches, bruises, red marks, and welts on Jennifer’s face, arms, legs, and bottom. Several times Madarash abruptly jerked Jennifer by the arm and kicked her in the head, causing her to cry. Madarash also violently shook Jennifer, dragged her across a room by her hair, and burned her arm with a cigarette.

In addition, Madarash kneed Jennifer in the back with so much force that Jennifer bent over. Witnesses also saw Madarash tie Jennifer to her bed, hit her with a hanger, and throw her several feet across a room. As a result of this treatment, Jennifer was very frightened of Madarash. When Jennifer did express love to Madarash, Madarash would tell her, “I don’t love you. . . . You’re a bitch.” 6 RP at 769.

(2) Madarash forced Jennifer to stand in the corner, often in exaggerated and exhausting positions, for up to days at a time. If she fell asleep or cried, Madarash would slap her or throw cold water in her face.

(3) Madarash padlocked Jennifer in her room as punishment. When Jennifer asked to be let out to use the bathroom, Madarash often refused. Jennifer would then soil her panties, and Madarash would punish her for soiling herself. [506]*506Madarash also made Jennifer wear her soiled panties on her head or around her neck, causing Jennifer to cry.

(4) Madarash frequently put Jennifer into a cold bath, often fully clothed, and showered her with cold water. Jennifer became terrified of water and would cry and plead with Madarash to stop. Afterward, Jennifer was sometimes forced to stand shivering in the corner in her wet clothes. When other children threw water in her face while playing, Jennifer would start crying and screaming.

(5) Madarash force-fed Jennifer after she was full by cramming food down her throat so that Jennifer would gag or throw up.

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Cite This Page — Counsel Stack

Bluebook (online)
116 Wash. App. 500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-madarash-washctapp-2003.