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Suchey v. State

Court of Appeals of Arkansas, Division II

September 18, 2019

PAUL SUCHEY, JR. APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT [NO. 16JCR-13-1109] HONORABLE BRENT DAVIS, JUDGE.

          Craig Lambert, for appellant.

          Leslie Rutledge, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.

          BART F. VIRDEN, JUDGE

         Paul Suchey, Jr., was convicted in the Craighead County Circuit Court of first-degree battery and was sentenced to thirty-five years' imprisonment. This court upheld his conviction in Suchey v. State, 2016 Ark.App. 225, 490 S.W.3d 320. Suchey filed a Rule 37 petition alleging ineffective assistance of counsel, and after a hearing, the court denied his petition. Suchey appeals the trial court's denial of his petition. We affirm.

         I. Relevant Facts

         At the trial, the following relevant testimony was offered. Britney Hockett was living with Suchey, who is now her ex-husband, and their infant son, L.S., at her parents' home. Because Suchey is disabled, he cared for L.S. while Hockett worked two jobs. On the morning of September 2, 2013, Hockett was scheduled to work from 9:30 a.m. to 5:00 p.m. Hockett said that when she awoke around 7:30 a.m., L.S. was "his normal self" and that she left for work around 8:30 a.m. Her parents left that morning around 10:30 a.m. Hockett's mother, Debbie, said that she thought L.S. seemed "fine" when she returned home briefly around 2:00 p.m. According to Hockett's sister, Dana Johnson, L.S. was "very happy and giggling" when she saw him around 2:00 p.m. Debbie came home again around 4:00 p.m. to prepare supper, and she left shortly afterward.

         When Hockett arrived home around 6:20 p.m., Suchey told her that a barking dog had wakened L.S. from his nap, which caused him to become "fussy." Hockett could not comfort the baby, who continued to cry. When Johnson stopped by around 7:00 p.m., L.S. was crying and moaning, and Johnson offered to hold him. Unlike Hockett, Johnson held the baby such that the right side of his head was not pressed against her arm, and L.S. calmed down. It was then that Johnson commented that L.S.'s head seemed "deformed." On closer inspection, Johnson said it looked as though L.S. had "an egg-shaped tumor" on the right side of his head.

         Hockett drove L.S. to the hospital by herself because Suchey had insisted on following them in his own vehicle. Hockett testified that she and her family were crying and "all panicked" but that Suchey sat playing a game on his phone. Hockett testified that she was told by the doctor that L.S. had one of the worst skull fractures he had seen and that it looked like L.S. had been struck in the head with a baseball bat. Debbie recalled that when the doctor was speaking, Suchey never looked at him or at L.S. Debbie testified that she asked Suchey whether he had done something to the baby and that Suchey only looked at her but said nothing.

         Joe Robinson, a patrolman with the Jonesboro Police Department, was dispatched to the hospital with a report of possible child abuse. Robinson said that he could not get much information from Hockett and the grandmother because they were crying. Suchey, on the other hand, did not show much emotion. Suchey first told Robinson that he did not know what had happened to the baby. He then said that while he was bouncing the baby on his knees, the baby slipped and hit his head on Suchey's knee. Next, Suchey said that as he was carrying the baby down the hallway, his legs just "gave out," he lost his balance, and the baby's head hit a door frame. Robinson said that Suchey quickly changed the subject to his disability. Sergeant Brad Rossman, who was also with the Jonesboro Police Department, testified that he had been informed by doctors that L.S.'s injury was caused by blunt-force trauma and that he told Suchey the baby could not have been hurt in the manners he had described to Robinson. According to Rossman, Suchey said, "That's my story[,] and I'm sticking to it."

         Dr. Mickey Deal, an emergency-room physician at St. Bernard's Medical Center in Jonesboro, described feeling fluid and moving bones when he touched L.S.'s head and diagnosed a depressed skull fracture. During direct examination, Dr. Deal stated that the parietal plates in an infant's skull are not easy to break and that a break results from a substantial impact. He further stated that such injuries were generally caused by being struck with objects like a hammer, a baseball bat, or steel-toed boots; however, on cross-examination, he acknowledged that falls against hard objects such as bricks or door frames could cause such injuries. Dr. Deal said that skull fractures like L.S.'s are potentially life threatening and that surgery is generally considered. Dr. Deal determined that L.S. needed to see a neurosurgeon immediately, so the baby was airlifted to Memphis.

         Dr. Karen Lakin, a physician at Le Bonheur Children's Hospital in Memphis, who is board certified in both general pediatrics and child-abuse pediatrics, and an assistant professor of pediatrics at the University of Tennessee, testified that a 3-D CT image of L.S.'s head showed a large crack all the way across his skull, separation, and some depression, which she diagnosed as a complex skull fracture. Dr. Lakin stated that it took a lot of concentrated force to cause that injury. Dr. Lakin said that such fractures are caused by significant blows to the head resulting from, for example, a car accident, a fall from a balcony, or being struck with a baseball bat, a hammer, or a brick. According to Dr. Lakin, L.S. also suffered subdural bleeding, the pain from which she described as "the worst headache" one could ever have. She further stated that the subdural bleeding in connection with the complex fracture was "a very serious injury" and that such trauma to a three-month-old infant is "certainly life threatening." When asked how such trauma could threaten a baby's life, Dr. Lakin said that any major impact or trauma to the brain that results in a fracture is "a significant injury," which increased the risk for complications that may not be apparent until later in life. Dr. Lakin noted that treating infants can be difficult because they cannot say what happened, how much the injury hurts, and how long the pain lasts. On cross-examination, Dr. Lakin explained that the amount of force that caused the injury could not be quantified and that she could not determine whether the force was accidentally or intentionally applied.

         A jury convicted Suchey of first-degree battery, a Class Y felony. During the sentencing phase, Suchey stated to the jury, "I still don't know if it was actually me that hurt my son. If it was, I'm sincerely sorry about it." Suchey was sentenced to thirty-five years' imprisonment.

         In his Rule 37 petition, Suchey asserted that counsel was ineffective for the following reasons: (1) counsel pressured Suchey not to take the stand in his defense; thus, the decision was not made knowingly, voluntarily, or intelligently and resulted in prejudice;[1] (2) counsel failed to present testimony or evidence to support Suchey's defense. Specifically, Suchey alleges that counsel did not present testimony or evidence to rebut medical-expert testimony regarding the cause of L.S.'s head injury, and counsel did not investigate or present evidence regarding the medication Suchey was taking at the time of L.S.'s injuries that caused him to have a "flat" and unemotional demeanor.

         Suchey requested and was granted a hearing. A summary of the relevant testimony at the Rule 37 hearing follows. Dr. Douglas Holland, a family physician with experience in cardiac life support, advanced-trauma life support, and pediatric life support and helicopter service, disputed that the two-millimeter depression in L.S.'s skull was a serious injury because infants' skulls are "flexible" and that the brain is protected by the flexibility of the skull. Dr. Holland agreed with Dr. Lakin's testimony that L.S.'s medical chart showed that he had bleeding under the fracture. Dr. Holland stated that he did not interpret L.S.'s injuries as intentionally inflicted, that Dr. Deal unnecessarily upset L.S.'s family by "overinterpreting" L.S.'s ...


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