State v. Morley , 2019 UT App 172 ( 2019 )

2019 UT App 172THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
TISHA LYNN MORLEY,
Appellant.
Opinion
No. 20170957-CA
Filed October 24, 2019
Second District Court, Ogden Department
The Honorable Scott M. Hadley
No. 141900806
Emily Adams and Cherise M. Bacalski, Attorneys
for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee
JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
concurred.
APPLEBY, Judge:
¶1 A jury convicted Tisha Lynn Morley of child abuse
homicide and she was sentenced to five years to life in prison.
Morley contends she received ineffective assistance of counsel
when her attorney failed to object to (1) the testimony of one of
the State’s expert witnesses and (2) the State’s introduction of
certain photographs and a video depicting a toddler attempting
to pick up a cardiopulmonary resuscitation (CPR) doll. Morley
urges us to either direct the district court to enter judgment for
the lesser included offense of negligent homicide or remand the
case for a new trial. We affirm.
State v. Morley
BACKGROUND 1
Victim’s Injury and Death
¶2 The morning of February 19, 2014, began as any other for
one mother (Mother). On her way to work, she dropped off her
two sons, a three-year-old (Brother) and an eight-month-old
(Victim), at Morley’s in-home daycare. Mother recalled Victim
“was his normal self, smiling, happy, playful.”
¶3 Morley claimed that, later in the morning, she left Victim
on a mat on the floor with several three- and four-year-old
children, including Brother, while she disinfected toys in another
area of the house. The children were left unsupervised, playing
with blocks and other games for about twenty minutes. Upon
Morley’s return, Victim was still on the mat and was crying
uncontrollably and seemed tired but would not take a nap. She
said Victim remained tired and fussy throughout the day—at
times inconsolable—and he had vomited. Despite this, after
Mother sent Morley a text message at 3:09 p.m. asking how the
boys were doing, Morley responded at 4:19 p.m. they were “ok”
and Victim “ha[d] slept a lot.” She reported Victim had eaten a
little but “absolutely would not take a bottle” and was currently
sleeping.
¶4 The boys’ father (Father) arrived shortly after 5:00 p.m. to
pick up Victim and Brother. Victim had vomited and was limp,
unresponsive, and cold to the touch. Morley sprinkled water on
1. “On appeal from a jury verdict, we view the evidence and all
reasonable inferences in the light most favorable to that verdict
and recite the facts accordingly. We include conflicting evidence
as relevant and necessary to understand the issues on appeal.”
State v. Dozah, 2016 UT App 13, ¶ 2, 368 P.3d 863 (quotation
simplified).
20170957-CA 2 2019 UT App 172State v. Morley
his face in an attempt to awaken him, to no avail. Father took the
boys home, where he met Mother, and the family rushed Victim
to the emergency room.
¶5 At the hospital, a CAT scan revealed Victim had “a severe
skull fracture.” He was flown to a children’s hospital where,
three days later, Mother and Father were told he would never
regain consciousness. Mother and Father removed life support
and Victim died hours later.
¶6 An autopsy revealed significant bruising behind Victim’s
right ear, a skull fracture, brain swelling, and bleeding in both
eyes. Both of his arms had fractures to the humerus, 2 an injury
which the medical examiner testified was “an uncommon site for
a fracture” and is “most commonly seen . . . in child abuse.” The
medical examiner concluded the cause of Victim’s death was
blunt force injury to the head and classified the death as a
homicide. An ocular pathologist analyzed Victim’s eyes and
found significant retinal hemorrhaging in each of them, which
indicated “non-accidental trauma . . . consistent with abusive
head trauma.”
The Investigation
¶7 Based on Victim’s injuries, the police were notified about
“a child that had received a head injury,” and an officer was
directed to interview Morley because Victim was injured at her
house. When the officer asked Morley where Victim could have
hit his head, Morley theorized he could have banged it on the
highchair because he had been “rocking his head back and
forth” while sitting in it. The officer examined the highchair,
which was made of pliable plastic with rounded corners. The
2. The humerus is “the long bone of the upper arm.” Humerus,
Webster’s Third New International Dictionary (1968).
20170957-CA 3 2019 UT App 172State v. Morley
officer told Morley he was looking for something harder or
sharper that could have caused a skull fracture. Instead of
responding to the officer, Morley addressed her husband,
inquiring whether he knew about a large, crescent-shaped crack
on the top of their changing table. Morley wondered if her
three-year-old daughter caused the crack because she often
climbed onto the table to get into the attached crib. 3 Morley said
the crack had “just now” come to her attention and she could not
remember whether she changed Victim on it the day he was
injured. When the officer inspected the changing table, the crack
was covered with a blanket and a support beam was visible
through the crack.
¶8 In the following days, investigators interviewed some of
the children who were at Morley’s house for daycare when
Victim was injured. A few weeks later, they were notified that
another child (Child), who was not interviewed initially, claimed
Brother was the one who hurt Victim. Child told investigators
Brother picked up Victim with one hand, threw him down,
kicked him, slammed his head in a door, and jumped on him
when Morley went downstairs and left Victim unattended with
the older children. Child also told investigators Brother drew on
Victim’s face and Victim was bleeding, but there was no
evidence that either of these things occurred. Child also claimed
Victim was already dead by the time Morley returned from
disinfecting toys.
¶9 In an attempt to corroborate Child’s claim, investigators
obtained a CPR doll; it was several inches shorter than Victim.
They stuffed its chest with weights to make it weigh slightly
over 12.5 pounds to get closer to Victim’s weight of about 17
3. Indeed, several days later, Morley’s daughter told
investigators she broke the table after climbing onto it to get into
the crib.
20170957-CA 4 2019 UT App 172State v. Morley
pounds. Investigators then made a video recording of Brother
attempting to pick up the doll; although it was shorter and
lighter than Victim, Brother was able to lift only part of it a few
inches off the ground. This experiment led investigators to
conclude Brother was physically unable to inflict the injuries
Victim sustained.
¶10 The State charged Morley with child abuse homicide on
the theory that, in a fit of frustration and rage, she grabbed
Victim by the arms, shook him, and slammed his head on the
changing table. Morley’s defense centered on the theory that
Brother inflicted the injuries when she left the children
unattended. Morley maintained that her daughter caused the
crack on the changing table.
The Trial
¶11 At trial, the State called five experts to testify: the child
abuse pediatrician who had consulted on Victim’s case at the
children’s hospital, the ocular pathologist who examined
Victim’s eyes, the medical examiner who performed the autopsy,
a pediatric neuroradiologist who reviewed Victim’s MRI and
CAT scans (collectively, Other Experts), and the biomechanical
engineer (Engineer) who opined on the force necessary to cause
Victim’s injuries.
¶12 Engineer ruled out constrained force as the source of
Victim’s skull fracture, which is when “one side of the head is
against another object” and “force is applied opposite that,”
because there was not “an equal and opposite force on the face.”
Instead, Engineer said the skull fracture was caused by “an
unconstrained impact” and the crack in the table “was caused by
a round object connected to something.” Engineer testified
Victim’s humeri were fractured when his upper arms were
constrained while his torso was moved; essentially, “you grab
the arms and shake.” Engineer also said Victim’s brain
20170957-CA 5 2019 UT App 172State v. Morley
hematomas were likely caused by “not only shaking, but also an
impact. And it doesn’t have to be on cement or something really
hard.” Engineer concluded Victim’s injuries were explained by
“one event”: “an adult grabbed [Victim], shaking him, forcibly
causing his head to strike a firm object which is perfectly
explained by the fracture in this changing table.”
¶13 Morley’s trial counsel (Trial Counsel) 4 cross-examined
Engineer. He emphasized Engineer’s lack of a medical degree
and that Engineer never examined the changing table or any
doors at Morley’s house to see whether they could have been
used to cause Victim’s injuries until after he had written his
report. Trial Counsel also challenged Engineer’s assertion that he
was aware of all relevant peer-reviewed literature by identifying
several studies that may have contradicted Engineer’s opinion.
Trial Counsel addressed Engineer’s testimony during closing
argument by attacking his methods and conclusions. He told the
jury Engineer “came into court and testified with all the answers
despite having . . . never done a child abuse homicide case” or
“criminal matter,” and he was “[n]ot a medical doctor in any
fashion.”
¶14 The Other Experts agreed Victim’s injuries were
consistent with abusive trauma. The child abuse pediatrician
said picking up Victim and slamming his head on the changing
table was “a very likely cause of his injuries,” and he did not
believe the injuries could have been caused by a three-year-old
child. The pediatric neuroradiologist testified Victim’s injuries
“were caused by the hands of an adult” and his skull fracture
could be from “impact to a flat surface.” The medical examiner
could not definitively identify who caused Victim’s injuries but
she found it unlikely a three-year-old child could have caused
4. Morley was represented by two attorneys at trial; for ease of
reading, we refer to them collectively as Trial Counsel.
20170957-CA 6 2019 UT App 172State v. Morley
them. She further opined that the scenario Child described
would not cause the bilateral humerus fractures Victim
sustained. The ocular pathologist opined the hemorrhaging in
Victim’s eyes could be caused only by force “consistent with an
unrestrained motor vehicle accident” and it was “doubtful” a
three-year-old could have been the cause. His findings indicated
Victim suffered “a non-accidental trauma . . . consistent with
abusive head trauma.”
¶15 In addition to the expert testimony, the State offered
photographs of the CPR doll on the changing table as a visual
aid to demonstrate how an object such as a child’s head could
create the large, crescent-shaped crack in the table. The base of
the doll’s head lined up with the crack. To counter Morley’s
claim that Brother was the actual source of the injuries, the State
also introduced the video of Brother attempting to lift the CPR
doll. Trial Counsel did not object to the admission of any of these
exhibits (collectively, the CPR Doll Depictions).
¶16 During cross-examination and closing argument, Trial
Counsel attacked the State’s use of the CPR Doll Depictions:
And you’ve seen the photographs. I don’t know if
anyone noticed—I sure hope so. They put this doll
on it to make it line up [with the crack on the
changing table]. Perfectly, by the way. . . . [Y]ou’ll
see the photos as you deliberate. They had to
spread the legs out entirely. And we asked on
cross-examination whether they took any other
photos, any other alignments, and they said no.
Trial Counsel also reminded the jury Brother had been
“apprehensive” in the video and he was never instructed to pick
up the doll by the arms or while he was standing.
¶17 The district court instructed the jury on child abuse
homicide and the lesser included offense of negligent homicide.
20170957-CA 7 2019 UT App 172State v. Morley
After a twelve-day trial, the jury found Morley guilty of child
abuse homicide and she was sentenced to prison for five years to
life. Morley appeals.
ISSUE AND STANDARD OF REVIEW
¶18 Morley contends Trial Counsel was ineffective for not
objecting to Engineer’s testimony and the introduction of the
CPR Doll Depictions. “When a claim of ineffective assistance of
counsel is raised for the first time on appeal, there is no lower
court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as
a matter of law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336
P.3d 587 (quotation simplified).
ANALYSIS
¶19 “The Sixth Amendment to the United States Constitution
provides a criminal defendant ‘the right . . . to have the
Assistance of Counsel for his defence.’” Menzies v. State, 2014 UT
40, ¶ 71, 344 P.3d 581 (quoting U.S. Const. amend. VI). The
United States Supreme Court has held “the right to counsel is the
right to the effective assistance of counsel.” Strickland v.
Washington, 466 U.S. 668, 686 (1984) (quotation simplified). To
show ineffective assistance of counsel, an appellant must
overcome the “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance,” id.
at 689, and must show both (1) objectively deficient performance
and (2) prejudice. Id. at 687–88. Because the appellant must
prove both Strickland prongs, “it is not necessary for us to
address both components of the inquiry if we determine that a
defendant has made an insufficient showing on one.” Menzies,
2014 UT 40, ¶ 78 (quotation simplified). We conclude Morley
was not prejudiced by Engineer’s testimony and Trial Counsel
20170957-CA 8 2019 UT App 172State v. Morley
was not deficient by not objecting to the admission of the CPR
Doll Depictions.
Engineer’s Testimony
¶20 Morley alleges Trial Counsel was ineffective in failing to
object to Engineer’s testimony at trial because Engineer was the
only expert to “absolutely link[] Ms. Morley with [Victim’s]
injuries.” We conclude Morley suffered no prejudice. 5
¶21 “In making [the prejudice] determination, an appellate
court should consider the totality of the evidence, taking into
account such factors as whether the errors affect the entire
evidentiary picture or have an isolated effect and how strongly
the verdict is supported by the record.” Gregg v. State, 2012 UT
32, ¶ 21, 279 P.3d 396 (quotation simplified). An appellant “must
demonstrate prejudice by showing that there is a reasonable
5. Morley also argues Trial Counsel was deficient because he
failed to object to Engineer’s testimony that “an adult grabbed
[Victim], shaking him, forcibly causing his head to strike a firm
object” and “the injuries that [Victim] had . . . are best explained
by shaking accompanied by a strike.” We note Engineer’s
testimony may have exceeded the scope of his expertise. Utah’s
appellate courts have not weighed in on the issue of whether the
testimony of biomechanical engineers without medical degrees
should be confined to the impact certain forces have on the
body, not medical causation. But as Morley points out, other
courts have done so. See, e.g., Smelser v. Norfolk S. Ry., 105 F.3d
299, 305 (6th Cir. 1997), abrogated on other grounds by General Elec.
Co. v. Joiner, 522 U.S. 136 (1997); Gostyla v. Chambers, 171 A.3d 98,
103 (Conn. App. Ct. 2017); Norfolk & W. Ry. v. Keeling, 576 S.E.2d
452, 457 (Va. 2003). But because Morley has not shown she was
prejudiced by Engineer’s testimony, we do not reach the merits
of this deficient performance argument.
20170957-CA 9 2019 UT App 172State v. Morley
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” State v.
Vallejo, 2019 UT 38, ¶ 39, 449 P.3d 39 (quotation simplified).
When an appellant contends her trial counsel should have
objected to arguably inadmissible evidence, she must “show a
reasonable probability that the verdict would have been
different absent the excludable evidence.” State v. Edgar, 2017 UT
App 54, ¶ 13, 397 P.3d 656 (quotation simplified).
¶22 Even without Engineer’s testimony Morley cannot show a
reasonable probability that the result of this proceeding would
have been different. Collectively, testimony of the Other Experts
strongly supports the jury’s verdict, and Morley has not argued
their testimony should have been excluded.
¶23 The medical examiner agreed with Engineer that all of
Victim’s injuries “happened at about the same time.” She was
unable to explain exactly how they occurred but ruled out the
possibility that Brother, “a 30-pound three-year-old[,] kicked
[Victim], picked him up by one hand, dropped him, slammed his
head in the door, and stepped on him.” She also testified
“grabbing [Victim], shaking him, [and] slamming him into that
changing table” “potentially could” have caused all of Victim’s
injuries.
¶24 The child abuse pediatrician opined that “grab[bing]
[Victim] by the upper arms, shak[ing] and slam[ming] him
down” on the changing table was “a very likely cause of
[Victim’s] injuries.” He also testified it was “extraordinarily
unlikely” and “inconceivable”—though not impossible—that a
three-year-old could cause “this constellation of findings.”
¶25 The ocular pathologist testified that although the
hemorrhaging in Victim’s eyes could be caused by a door being
slammed on his head, the force required would have to be the
“equivalent of a motor vehicle accident.” He agreed with
20170957-CA 10 2019 UT App 172State v. Morley
Engineer that “an object hitting” Victim “could” cause the
injuries, “[w]ith significant enough force.”
¶26 The pediatric neuroradiologist was called as the State’s
rebuttal expert. He testified that the constellation of Victim’s
injuries “strongly points to abusive trauma or inflicted injury”
and said “one traumatic event could explain these findings.” He
ended by telling the jury the “shaking and shaking impact
was . . . likely [the] mechanism to bring all these injuries to an
explanation.”
¶27 Considering the totality of the evidence in this case,
including the extensive testimony from the Other Experts, the
admission of Engineer’s testimony—even if in error—does not
undermine our confidence in the jury’s verdict. See Vallejo, 2019
UT 38, ¶ 39. The State’s evidentiary picture as a whole
overwhelmingly supported its theory that Victim’s injuries were
not caused by a three-year-old child. Rather, Morley, the only
person over the age of five with access to Victim during the
period he was injured, caused these injuries. Thus, Morley’s
argument that no other evidence “absolutely links” her to
Victim’s injuries outside of Engineer’s testimony fails.
¶28 In light of the testimony of the Other Experts given at
trial, we conclude Morley was not prejudiced by Engineer’s
testimony.
The CPR Doll Depictions
¶29 Morley argues Trial Counsel rendered ineffective
assistance by failing to object to the admission of the CPR Doll
Depictions. Morley contends these exhibits were irrelevant or,
alternatively, substantially more prejudicial than probative.
¶30 An appellate court is “highly deferential” when reviewing
trial counsel’s performance. State v. Vallejo, 2019 UT 38, ¶ 38, 449
P.3d 39. Trial counsel is not deficient when “making tactical
20170957-CA 11 2019 UT App 172State v. Morley
decisions, and courts will not question such decisions unless
there is no reasonable basis supporting them.” State v. Garcia,
2017 UT App 200, ¶ 19, 407 P.3d 1061 (quotation simplified). “To
satisfy this test, [the appellant] must overcome the strong
presumption that [her] trial counsel rendered adequate
assistance by persuading the court that there was no conceivable
tactical basis for counsel’s acts or omissions.” State v. Nelson,
2015 UT 62, ¶ 10, 355 P.3d 1031 (quotation simplified). We
conclude Morley has not rebutted the strong presumption that
her Trial Counsel’s decision not to object to the admission of this
evidence was a reasonable trial strategy.
¶31 The CPR Doll Depictions were used during the testimony
of several witnesses. When Engineer testified, he used the
photographs to explain that “the physical dimensions and
location of the head in relationship to the fracture and the length
and breadth of the changing table [were] consistent with” his
opinion. Three officers used the CPR Doll Depictions when they
testified, explaining why they decided to add weight to the doll,
put it on the table, and see whether Brother could lift it. One of
the officers also explained the CPR doll was shorter than Victim
but “[i]t was the closest [he] could get to [Victim’s] size.”
Another officer testified that the photographs of the CPR doll on
the changing table were taken “[t]o see if it would be consistent
with [Victim] having his head slammed into the table.”
¶32 Trial Counsel did not object to the introduction of any of
the CPR Doll Depictions and instead highlighted to the jury their
deficiencies. He cross-examined the officers, asking whether they
had tried positioning the CPR doll elsewhere on the table.
Additionally, during closing, Trial Counsel pointed out that the
video “experiment” with Brother barely took four minutes,
Brother seemed distracted the entire time, and the doll’s legs
kept falling off, which seemed to deter Brother from trying to lift
it.
20170957-CA 12 2019 UT App 172State v. Morley
¶33 We conclude this was a reasonable trial strategy. Rather
than seek exclusion of the CPR Doll Depictions, Trial Counsel
chose to use the exhibits against the State. Trial Counsel
emphasized the shortcomings in the CPR Doll Depictions to
argue the State was not interested in discovering the truth but
instead used unreliable experiments and inaccurate
demonstrations to affirm its view of the case. Because Morley
has not shown that no reasonable attorney would have used this
evidence in the way Trial Counsel did, Morley cannot establish
deficient performance.
CONCLUSION
¶34 Morley has not established prejudice resulting from Trial
Counsel’s failure to object to Engineer’s testimony or deficiency
in Trial Counsel’s failure to object to the introduction of the CPR
Doll Depictions. We therefore conclude Morley did not receive
ineffective assistance of counsel. Affirmed.
20170957-CA 13 2019 UT App 172