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BURNETT v. LOCKHART

January 31, 1989

LARRY BURNETT, PLAINTIFF,
v.
A. L. LOCKHART, Director, Arkansas Department of Correction, DEFENDANT



The opinion of the court was delivered by: ROY

 ELSIJANE T. ROY, UNITED STATES DISTRICT JUDGE.

 The Court has received the Magistrate's recommended disposition in this matter, as well as the respondent's objection and petitioner's reply.

 The petitioner filed a pro se petition on June 29, 1987, raising four grounds for relief. Subsequently, with leave of Court, he filed an amended petition, asserting six additional grounds for relief.

 The Magistrate found merit to petitioner's contention that there is insufficient evidence to support the conviction on the charge of murder in the first degree, and therefore did not address the other points raised by petitioner. The Magistrate recommended that the writ be issued within 120 days of the filing of the District Court's Judgment unless the state (a) undertakes to retry the petitioner within that period of time, or (b) appropriately resentences petitioner for a lesser included offense.

 The Court has reviewed the record and applicable law and hereby refuses to adopt the Magistrate's recommended disposition. Because of this Court's holding, the matter is hereby remanded to the Magistrate for further findings on the other points raised in the petition.

 Petitioner was convicted in a jury trial of first-degree murder in the death of his thirteen-month-old son. The first-degree murder charge was based upon the allegation that the petitioner, with the premeditated and deliberate purpose of causing the death, caused the death by starvation, beatings, and abuse. The Magistrate set out the governing standard in habeas review of this type of claim as being whether the record shows that no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). Jackson also requires that we grant deference to the Arkansas Supreme Court's rejection of this claim. See Thomerson v. Lockhart, 835 F.2d 1257, 1259 (8th Cir. 1987).

 The major issue involved in this analysis is whether there is support in the record for the jury's finding that the petitioner, with the premeditated and deliberated purpose of doing so, caused the death of his son.

 Michael Davis, an emergency medical technician who was called to attend to the child on May 11, 1984, testified that the child looked "thin and dehydrated" when he arrived. He stated that the child had "an extremely distended stomach, and his eyes were -- he had black marks underneath the eyes . . .". He also noticed bruises up and down the child's spine when he was suctioning the child out. He noticed that his left foot and right calf had some puncture marks on the leg and underneath the puncture areas were large hematomas or bruises. He noticed the child's nose was swollen.

 Dr. Mike Miller, the physician who first saw the child on May 11 at Baptist Hospital, administered life-saving procedures unsuccessfully. Afterwards, he did a full examination of the child and "found him to be very emaciated, malnourished, appearing -- uh, having several bruises all over his body. Uh, he had some scrapes on -- particularly my recollection -- on the back and, uh, some areas that appeared to be human bites." Dr. Miller and a pediatrician suspected that the child may have been abused, and desired an autopsy.

 The prosecution's fourth and fifth witnesses were Robert Bohannon and Tom Waggoner, both employees of the Pulaski County Sheriff's Department who spoke with petitioner and his wife following their child's death on May 11. As stated by the Magistrate, the petitioner's explanation of the child's physical state at the time of death was that the child previously had a hernia operation, was ill due to cutting teeth, had broken his nose in a fall while trying to stand, and had scratched himself.

 According to Mr. Waggoner, Mrs. Burnett said a choking spell started the events which led to the child's death, that he had been disinterested in eating since February, when he began teething, and that he had been bitten by an older child.

 Dr. Becky Williams testified that she had seen the infant twice, the last time on July 29, 1983, at which time the child exhibited good growth and development, particularly in light of his premature birth.

 Dr. Donna Brown, a medical examiner at the Arkansas Crime Laboratory who performed the autopsy on the child, testified that there were multiple bruises, at least fifteen, to the face which were oval shaped in size and present over the forehead and front part of the face. Her testimony was not only graphic but critical, since she was in the best position to describe the nature and extent of the injuries as well as the cause of the death. Some of her testimony is set out below.

 " The nose was very flattened and almost cauliflour [sic] in its shape. The upper and lower extremities had at least thirty bruises. Some of them were larger than an inch, others smaller. There were scratch marks to the right back of the head, also to the back side of the right lower leg.

 "In addition to that the child appeared very skinny and had a very large abdomen that was very tight. Uh, it can be likened to the tightness of a drum.

 "Q All right. The bruises, could you make any determination as to their age by your examination?

 "A They were red-brown in coloration. This is consistent with their having been present for several days.

 "A There were some to the outer aspects of the arms as well as to the tops of the hands. These were also reddish in coloration and were more consistent with just a few days old. The entire range of injuries characterized by bruises that could have been there as long as a couple of weeks.

 "Q Doctor, was there any indication that any of these bruises had been caused either through the efforts of an EMT in a life-saving situation or a hospital injecting or inserting intravenous needles or anything like that?

 "A In my opinion the ones to the hands were not in any way related to injuries that were due to venae puncture marks such as trying to start I.V. fluids in a hospital setting.

 "There were some puncture wounds to the chest which would be correlated with medical intervention procedures.

 "Q Doctor, did you make an examination of the child's mouth and lip area?

 "A Yes, sir, I did. In addition to the nose being markedly flattened, there were bruises to the middle portion of the nose which had scab and puss. In addition, inside the mouth, called the frenulum, which is the thin membrane that attaches the lip to the gums, had extensive tears. These were created at sometime in the past. There was no immediate swelling around these and, in essence, the mucosa on the inside of the mouth was torn on the inside of the lip. But there were no bruises to the outside of the lip.

 "Q Doctor, do you have an opinion as to what could have caused such a tearing as you have described to the jury?

 "A Yes, sir, I do.

 "Q What is that?

 "A These type of injuries are characteristic of the child having received some blows to the mouth area such as a fist seen in a punch. Using myself as an example, blows like this, punches head-on, causing the lip to get pushed upward and downward and causing tears inside the mouth.

 "Q Doctor, based on your examination, would such a damage to the mouth and, also, to the nose, would that be consistent with a child falling, say a child trying to stand up and walk to fall on the floor?

 "A No, it would not. I would expect bruises on the outside of the lips if a child were to fall face forward onto the floor.

 Q Would a fall, say face forward on the floor, have sufficient force to break a nose like you have ...


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