Thursday, 17 March 2011

SBS: Colorado; Tember Rector court of appeals decision reversed by Supreme Court


The People of the State of Colorado, Petitioner,
Tember Terri Rector, Respondent.

John W. Suthers, Attorney General, Susan Eileen Friedman, Assistant Attorney General, Denver, Colorado, Attorneys for Petitioner.
Paul Grant, Parker, Colorado, Attorney for Respondent.

JUSTICE RICE delivered the Opinion of the Court.
A jury convicted respondent, Tember Rector, of felony child abuse. The court of appeals reversed the conviction, concluding that the trial court abused its discretion by failing to make sufficient findings regarding the reliability and potential prejudice of an expert's testimony and by failing to instruct the jury on the difference between medical and legal child abuse. We granted certiorari to review two of the evidentiary issues.1 We now reverse the court of appeals.
I. Facts and Proceedings Below
Tember Rector and her husband were three-year-old T.D.'s foster parents in 2004. T.D. suffered a severe head injury on February 2, 2004, while in Rector's care. Conflicting testimony was presented at trial regarding Rector's whereabouts during the time the injury occurred. Rector testified that she did not witness T.D.'s injury because she was in the shower while T.D. was watching television on the bed in the master bedroom. Rector testified that she heard a crash and jumped out of the shower to find T.D. sitting on the floor with his arm twisted and the contents of the nightstand knocked to the floor. In contrast, the responding paramedic testified that Rector told him she was downstairs when she heard the crash upstairs.
Rector called 9-1-1 and the Castle Rock Fire Department was dispatched to Rector's home. The People presented evidence that Rector waited forty-five minutes before calling for medical assistance. When the paramedics arrived, they found T.D. unconscious, unresponsive, and exhibiting signs of severe head trauma. T.D. was taken to the closest hospital and from there airlifted to Children's Hospital. The treating physicians diagnosed T.D. with non-accidental head trauma. T.D. suffered life-threatening brain injuries that included retinal hemorrhaging in both eyes and a right-side acute subdural hematoma that caused significant bleeding and swelling in his brain. T.D. underwent emergency neurosurgery at Children's Hospital to alleviate the pressure in his brain and survived the injury. Rector was charged with felony child abuse under section 18-6-401(1)(a) and (7)(a)(III), C.R.S. (2010).2
Prior to trial, Rector's counsel submitted a motion entitled Defense Motion to Restrict People's Experts Including Ken Winston from Making Medical Speculation. In that motion, Rector sought to exclude any speculative testimony by the People's experts and asked to have an evidentiary hearing in accordance with People v. Shreck, 22 P.3d 68 (Colo. 2001). Rector's motion was general in nature and specifically challenged only one expert, Dr. Ken Winston, and only with respect to testimony about shaken-baby syndrome. At a hearing held as a result of this and other motions, Rector argued that she was entitled to a Shreck hearing "to determine whether or not . . . [the] diagnosis and opinions that [we]re going to be used at trial by medical experts who were inferring a cause from the evidence . . . [were] reliable." Rector did not, however, point to specific expert testimony that she sought to exclude — other than shaken-baby syndrome testimony — and she argued that she required additional expert discovery. The trial court denied a Shreck hearing on shaken-baby syndrome, ordered additional expert discovery, and deemed the request for a Shreck hearing premature in light of the requested additional expert discovery. Rector did not make another request for a Shreck hearing.
Later, at the trial, several of T.D.'s treating physicians testified as medical experts for the People, including Dr. Andrew Sirotnak, a pediatrician and Director of the Child Protection Team, who examined T.D. at Children's Hospital; Dr. Arlene Drack, a pediatric ophthalmologist, who examined T.D. at the emergency room; and Dr. Ken Winston, the neurosurgeon who performed T.D.'s emergency surgery. They each testified to the severity of T.D.'s injuries and opined that the injuries were non-accidental or inflicted and unlikely to have been caused by a fall from a bed.
Prior to Dr. Sirotnak's testimony regarding T.D., the prosecution established Dr. Sirotnak's qualifications and moved for his admission as an expert in the fields of pediatric medicine and child abuse under CRE 702. Rector's counsel requested an opportunity to examine Dr. Sirotnak about his qualifications, but did not inquire about Dr. Sirotnak's qualifications or introduce any evidence to suggest he was not qualified in pediatrics or child abuse. Instead, Rector's counsel asked Dr. Sirotnak about the different definitions of medical child abuse and legal child abuse. Dr. Sirotnak declined to provide a legal definition of child abuse, but acknowledged that the legal definition of child abuse differs from the medical definition. Rector's counsel then stated that he objected to Dr. Sirotnak's qualification as an expert in the field of child abuse, but that he did not object to Dr. Sirotnak "rendering opinions about his understanding of the medical use of the term child abuse." The trial court admitted Dr. Sirotnak as an expert in pediatrics and child abuse.3
Dr. Sirotnak then testified that T.D. suffered a right-sided acute subdural hemorrhage, a shift in the tissue of the brain, and retinal hemorrhages. Dr. Sirotnak testified that his responsibilities at Children's Hospital included evaluating and diagnosing patients when abuse or neglect was suspected. According to Dr. Sirotnak, the medical diagnosis of child physical abuse takes into consideration the presence of a severe traumatic injury with no history of trauma to explain that injury. Dr. Sirotnak stated that the explanation offered by Rector did not account for the severity of T.D.'s injuries. Dr. Sirotnak concluded that, in his expert opinion, within a reasonable degree of medical certainty, T.D.'s injuries were the result of abuse. Rector's counsel made no objection to Dr. Sirotnak's trial testimony.
A jury convicted Rector of felony child abuse. She was sentenced to fifteen years in prison plus five years of mandatory parole. Rector appealed her conviction, arguing, among other issues, that the trial court erred in denying her a Shreck hearing related to Dr. Sirotnak's testimony regarding medical child abuse. The court of appeals reversed Rector's conviction and remanded for a new trial, concluding that the trial court abused its discretion in failing to make adequate inquiry or specific findings regarding the reliability and potential prejudice of Dr. Sirotnak's testimony under Shreck. The court of appeals further determined that Dr. Sirotnak's testimony that T.D.'s injuries resulted from child abuse was not proper because such testimony concerned the ultimate legal determination of Rector's guilt.4
III. Conclusion
The trial court did not abuse its discretion when it declined to hold a Shreck hearing. Rector's pretrial Shreck motion challenged testimony by Dr. Winston about shaken-baby syndrome — a diagnosis none of the experts intended to offer. The pretrial motion did not challenge testimony by Dr. Sirotnak or the medical diagnosis of child abuse and no subsequent Shreck challenge was raised. Likewise, no contemporaneous objection was made during Dr. Sirotnak's trial testimony to alert the trial court that Rector challenged the expert testimony as to reliability or prejudice. Whether Dr. Sirotnak's testimony about medical child abuse usurped the role of the jury was not properly before the court of appeals, nor did the admission of the testimony amount to plain error. Accordingly, we reverse the court of appeals.
March 14, 2011.
Supreme Court of Colorado, EN BANC.
Case No. 09SC708.

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