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Washington v. State

Court of Appeals of Arkansas, Division II

November 30, 2016

TERRANCE WASHINGTON APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. CR-13-1091] HONORABLE JOHN N. FOGLEMAN, JUDGE

         AFFIRMED

          Bryan Donaldson, for appellant.

          Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

          BRANDON J. HARRISON, Judge

         A jury convicted Terrance Washington of grievously injuring then three-month-old T.W. by violently shaking him. Washington was sentenced to 10 years' imprisonment. He appealed the sentencing order and now argues that the circuit court erred when it admitted an unauthenticated CT scan of T.W.'s brain and refused him the opportunity to obtain testimony from his own mother, and another witness, that T.W.'s mother may have injured the baby.

         Was the Computed Tomography (CT) Scan of T.W.'s Injured Brain Properly Authenticated?

         Washington does not argue that the State failed to prove beyond a reasonable doubt that he committed a first-degree battery against baby T.W., so it is enough to report that T.W. was taken to LeBonheur Children's Hospital in Memphis, Tennessee, on 23 November 2013, after his mother, Dominique Roberts, called 911. A few days later, T.W. was diagnosed as being a victim of a "severe shaking episode" by child-abuse specialist Dr. Karen Laken. Given the severity of his head injuries, hospice care was arranged. But T.W. survived, though he is now nourished through a feeding tube, and suffers from seizures and cerebral palsy.

         Dr. Laken was not only a consulting doctor on T.W.'s case at LeBonheur; she also appeared as an expert witness for the State during Washington's criminal trial. On direct examination, the doctor testified that, before the trial, she had reviewed medical records from T.W.'s hospitalization and follow-up outpatient evaluations related to his physical and occupational therapies. The doctor made clear that she had relied on medical records of other doctors and nurses when she formed her opinion, all of which is information an expert in her field might commonly rely on. While on the stand, Dr. Laken said that T.W. experienced an acute subdural hemorrhage on the right side of his brain, explained the physiology behind the condition, its effect on his health, and that it was a traumatic injury given the child's clinical presentation. The doctor also told the jury about a special type of fracture that T.W. had suffered in his right femur-an atypical "chip" fracture consistent with "torsional action" a limb may undergo when a child is violently handled. Apart from Dr. Laken's testimony about the fracture, an X-ray of T.W.'s injured leg was received as evidence, without objection, during the State's case-in-chief. Washington did, however, object to the admission of State's Exhibit 11, a paper copy of a CT scan of a human brain.

         Dr. Laken identified Exhibit 11 (a black-and-white paper copy) as being a CT scan of T.W.'s injured brain and agreed that it would help the jury understand the acute trauma he had suffered. Washington objected to the exhibit based on chain of custody, lack of authentication, and hearsay. The circuit court then asked the State to further lay a foundation. When questioned by the prosecutor, Dr. Laken said that she "believed" the image was taken on November 24, that it was part of T.W.'s medical record, and that she had examined him on November 26. She also said that the image was normally used and relied on by doctors handling a case like T.W.'s. This colloquy occurred when Washington's attorney asked about the image:

Defense counsel: How do you know this is the medical records of [T.W.]?
Dr. Laken: These are the ones I just looked at before I came.
Defense counsel: That's the only way you know that?
Dr. Laken: These are also the ones that I submitted to [the prosecutor].
Defense counsel: And where did you obtain them from?
Dr. Laken: From LeBonheur, from the records.
Defense counsel: The custodian of the ...

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