FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. CR-13-1091]
HONORABLE JOHN N. FOGLEMAN, JUDGE
Donaldson, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
BRANDON J. HARRISON, Judge
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.
the Computed Tomography (CT) Scan of T.W.'s Injured Brain
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.
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.
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
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
Defense counsel: And where did you obtain them from?
Dr. Laken: From LeBonheur, from the records.
Defense counsel: The custodian of the ...