IN THE SUPREME COURT OF THE STATE OF WEST VIRGINIA

MARYBETH DAVIS

vs.

STATE OF WEST VIRGINIA

PETITION FOR APPEAL

 

I. KIND OF PROCEEDING AND NATURE OF THE RULING

This appeal arises from a criminal conviction on September 15, 1997 in the Circuit Court Greenbrier County, West Virginia of the Appellant Marybeth Davis, on one count of attempted poisoning and one count of first degree murder. Marybeth Davis was accused of the attempted poisoning of her infant son, Seth Davis, in 1981 and the murder by poisoning of her daughter, Tegan Davis in March, 1982. The Circuit Court denied a Motion for Dismissal on the basis of the denial of Due Process for the delay of prosecution. The matter proceeded to trial by jury. The Jury returned a verdict of guilty on both counts and recommended no mercy on the murder conviction.

The Circuit Court denied the Appellant's Motion for a Directed Verdict of Acquittal and Motion for New Trial. In conformance with Rule 3(b) of the West Virginia Rules of Appellate Procedure, the Appellant files this Petition for Appeal.

II. STATEMENT OF FACTS OF THE CASE

The criminal investigation of this matter began in 1982 following the death of Tegan Davis and Dr. Anne Hooper's findings on autopsy of a residue that she described as being timed released diet pills. The case was assigned to Trooper J.W. Childers who worked with the prosecuting attorney, the late Ralph Hayes, for investigation. All of the police records involving the investigation in 1982 were reported as being lost [Spradlin, R. 1354, Motion Hearing, R. 95, 96]. J. W. Childer's memory of any of the details is now clouded [Motion Hearing R. II 9 etc]. Ralph Hayes refused to present the case for indictment. The medical records reveal that the prosecution was aware of the theory of Munchausen by Proxy in 1985, [Motion Hearing, Def. ex. 1,2,3]. There is no reported activity on the case from 1985 to 1995. [Motion hearing, [R. 121, 122]

In 1995 the authorities in Greenbrier County created a task force for investigating child abuse cases. Even though the cases were thirteen and fourteen years old, the State reopened the matter, with Trooper Spradlin as the investigating officer [Motion Hearing, R. 94]. The police contacted Dr. Gary Davis, husband of the accused, in the early part of 1996 and informed him that they were investigating another matter. Believing that his wife was not the subject of the investigation, Dr. Davis gave a statement that relied upon his fourteen (14) year old memory after being misled by Trooper Spradlin into thinking that he was talking about another event. [R. 837]. Dr. Davis gave a statement that can be interpreted that he was not with Marybeth Davis on the 29th or 30th of September, 1981. Dr. Davis recanted the statement at trial, and accused the State of editing his statement. [R. 743, 747.1 He was adamant he was with his wife during the time she stands accused. [R. 782].

The State resisted a "Due Process" Motion for pre-indictment delay on the basis that the State had found new evidence in that (1) they had gained new insights into Munchausen by Proxy, a mental disorder in which a persons usually the mother. attempts to gain sympathy by injuring her child, (2) Dr. Dorothy Becker, the State's Pediatric Endocrinologist, had become more confirmed in her belief of the reliability of certain tests that were taken, namely an insulin and C-Peptide test, (3) that the State had gained new evidence due to the conversation with Dr. Davis, that the defendant had exclusive control of Seth Davis during the time period that he might have been injected with insulin [Motion Hearing, R. 128-130].

The State, at trial, never introduced any evidence of the actual conversation between Dr. Davis and Trooper Spradlin. The record further reveals. that the original investigating officer was aware of Munchausen by Proxy. [Def. Motion 1,2,3]. The only new evidence was that Dr. Dorothy Becker had become more certain, in regards to her C-Peptide test. Dr. Becker, in fact, testified, "she would make the same diagnoses without the C-Peptide levels" (Dr. Becker, September 12, 1997 R. p. 12, line 10).

The defendant contends as follows:

The Davis' came to Lewisburg in order for Gary Davis, husband of Marybeth Davis, to attend the West Virginia School of Osteopathic Medicine. On July 17, 198 1, the defendant's son, Seth Davis, was born. From the beginning, he displayed medically documented symptoms of a liver dysfunction, ie., jaundice and two high Bilirubin reports [R. 778, 864, 86 ' 5, 943]. On September 24 and 25, 198 1, lethargy was reported indicating a number of possible problems, although normal blood sugars were reported [R. 780]. On the evening of September 29, 1981, the defendant and her husband went to Dr. Aldrich at the West Virginia School of Osteopathic Medicine Clinic and a determination was made that, if the child was not better by morning,,, a referral to a specialist would be made [R- 947, 783]. Normal blood sugars were again reported, although the child was again lethargic. At 8:30 a.m., September 3rd, 1981, a determination was made to refer the child to a specialist at Pittsburgh. When the parents went home to pack for the trip to Children’s Hospital in Pittsburgh, the child had a seizure and was rushed to the Greenbrier Valley Hospital. They arrived at approximately 11:02 a.m. There he was seen first by Dr. Nathaniel Harris, who was soon assisted by Dr. Aldrich. Dr. Aldrich ultimately took over the care of the child [R. 949]. A blood sample was drawn which revealed a normal blood sugar of "72" but an abnormally low spinal sugar of "11" (referred to as the "72" draw). The medical records do not show the exact time that an IV was started or at what volume [R- 955]. Dr. Nathaniel Harris [Harris R. 21,22], Dr. Joe Aldrich {R. 920, 952), and Dr. Gary Davis [R. 790], testified at trial that the blood sample was properly taken and was accurate. The child was maintained from 12:00 noon until approximately 3:15 p.m., on either a D5, (5%, a very low amount of glucose) or saline solution (both referred to as a maintenance IV). The child was not being treated for low blood sugar (hypoglycemia) at any time while at Greenbrier Valley Hospital. His seizures were controlled and he remained lethargic, but semi-conscious. It was decided to air-vac him to Pittsburgh.

At 3:15 p.m., a flight medical nurse from Pittsburgh arrived and by dextro-stick measurement, determined that Seth had an extremely low blood sugar [R.334]. On. the flight to Pittsburgh, Seth had another rapid drop of blood sugar and several extremely low readings of blood sugar [R. 339] at his arrival at Pittsburgh. 345 -347) The, Pittsburgh medical team could not control his blood sugars on either a D-10 or D-12 dextrose. Each of these recordings of low blood sugars was followed by a large administration of glucose D-50 (50% glucose) [R. 223, 349] [Becker, Aug. R.16]. His blood sugars did not return to normal until 2:30 a.m., September 31, 1981. On arrival at Pittsburgh Children's Hospital, a blood sample was drawn which later tests revealed, contained a High insulin level and six weeks later showed a zero C-Peptide reading. These results were interpreted by the then Pittsburgh Associate Professor, Dorothy Becker, as indicating that exogenous (injected) insulin possibly had been administered.

These details are of importance because Marybeth Davis was accused of administering insulin to Seth Davis on the 30th day of September, 1981, However, at trial, three pediatric endocrinologists, (the branch of medicine that involves the use of insulin in the endocrine system, including human growth hormone) testified that, if the blood draw of "72" was accurate, (a normal blood sugar), there was no insulin in existence, then or now, that could have been injected prior to admission to Greenbrier Valley Hospital that would have caused a seizure, returned to normal and three hours later caused repeated falls in blood sugar. [Becker. Aug., R. 5 1, Lovinger 1174, 1175, Willis R. 1273],

The Father, Gary Davis, testified that he was with his wife, Marybeth Davis, throughout the time period of September 29 and 30th [R. 784, 785-86) and at no time saw her with any insulin or apparatus to inject Seth Davis [R. 7861, None of the doctors detected a site where insulin could have been injected [R. 784,7891 R. 951,2]. Dr. Aldrich testified that any injection of insulin over two (2) cc's would have left a bruise or other tell tale mark, which was not found. [R. 951].

The State showed, through their expert witness, Dr. Dorothy Becker, that the insulin levels taken at Pittsburgh Children's Hospital were the highest that she had ever seen. [Aug. R. 20, 21]. The defendant's two expert witnesses.. Dr. Robert Lovinger, head of the Endocrine division of Children's Hospital of Richmond, Virginia, and Dr. Dale Willis, an assistant professor at Commonwealth Medical School, a specialists in insulin levels in newborns [1269], both testified that the high insulin levels were explained by the administration of high doses of glucose administered to Seth prior to admission at Pittsburgh Hospital [R, 12761. They indicated that the child's natural response to the administration of the large bolus of glucose, would be to have high insulin levels [R. p. 1180] [Willis 1275]. They supported their conclusions with the review of all available literature in the field as well as their Experience. Dr. Becker conceded Seth Davis received twice the glucose of any test subject, [Becker, Sept., R. 25]. This reduced her testimony to a guess, not a medical fact.

Dr. Dorothy Becker, the State's expert, who had not recently reviewed the medical records at Greenbrier Valley Hospital, [R. 77], testified that, she believed the insulin was exogenous due to the low C-Peptide test that was performed six weeks after admission at Pittsburgh Children's Hospital.2

Seth Davis. after being released from Pittsburgh Children's Hospital, was referred to the genetics department at the University of Virginia in 1981. There the geneticists disregarded the test results of Pittsburgh and made a working diagnosis of Leigh's Disease, [R. 801-2] a genetic syndrome. This working diagnoses was confirmed by Yale University.3 [R. 963].

While reviewing the records in preparation for the trial, the defense expert discovered that the test for human growth hormone deficiency had been overlooked by Pittsburgh Children's Hospital. This was the only test for human growth hormone found. [R. 237] 'Me test results were not returned from the laboratory until after Seth was discharged. [R. II 95]. The tests that they had performed revealed a 5.1 human growth hormone level. This test result should have been a minimum of 10., [R. 1193] as the minimum standard used by experts at Pittsburgh Children's Hospital, and if Seth Davis had been average, should have recorded at least a twenty (20) [R. II 92] under such circumstances. Dr. Lovinger, a pioneer in human growth hormone deficiency testing [R. II 5 8], who has published numerous publications in the field, and is recognized by the State as an expert in Human Growth Hormone Deficiency [Sept. R. 27], testified that in his opinion, Seth Davis suffers from Human Growth Hormone Deficiency and this diagnoses explains Seth Davis' symptoms, both before September 30, 1981 to his present symptoms of being profoundly mentally retarded [R. p. 1 194]. Dr. Dale Willis concurred in his diagnoses [R. 1280]. Both testified that the symptoms displayed by Seth Davis were explained by natural causes and not by the injection of insulin [R. 1194] [R. 1286]. The laboratory test upon which they based their diagnosis was performed by Children's Hospital of Pittsburgh. Dr. Becker was brought back for a rebuttal and testified that "some" hospitals use a "4.5" for measurement of human growth hormone. [Sept. 9, R. 27] Dr. Lovinger testified that Children's Hospital of Pittsburgh uses a "10. " [R. II 92] Medical literature states that anything below a "7.0" as severe human growth hormone deficiency under these circumstances. [Biochemistry In Clinical Practice 2nd Ed. Williams and Marks, p-303, Rules of Evidence 20 1 b(2)].

Dr. Becker had apparently not reviewed, the human growth hormone deficiency test results [Aug. R. 74]. When she saw them on her deposition, she acknowledged that they were low but, her response was that there must have been other tests. [Aug., R. 74 and R. 237] Dr. Basil Zitelli, the pediatrician for the State, testified that there were no other tests run. [R. 237, 11951. He could offer no explanation as to why other tests were not performed. Although, invited by defense counsel to provide any other tests, the State could not so. [Aug. R. 74]. Dr. Becker's only rebuttal was. that the child's blood sugar returned to normal too rapidly Human Growth Hormone Deficiency. [Sept. R 9, 14, 23]. She argued elsewhere that the duration of the low blood sugar was hours. [Sept. p. 9, 23]. She acknowledged that he had high insulin and high cortisol reading which are ideal conditions for human growth hormone deficiency tests [Sept., R. 27]. She had not review the Greenbrier Valley Hospital records to know what point in time she was measuring "too rapidly" from.4 [R. 17, 18, 49, 77, 78].

A geneticist. Dr. Barry Wolf, called by the defense testified that human growth hormone deficiency can be caused by liver lipid genetic problems. He further indicated that he relied upon the CT Scans taken in 1982. a year later. of Seth Davis, by Dr. Michael Sisk, a neurologist, and that they indicated a continuing deterioration of his brain which is indicative to him of a metabolic disorder [R. 1326-8], consistent with human growth hormone deficiency. Dr. Wolfe offered to name 20 genetic diseases consistent with Seth's symptoms. [R. 1324] 5. The State called no geneticists and offered no testimony countering the working diagnoses of' Leigh's Disease.

The defense contends that Seth's hypoglycemia and severe mental retardation were due to natural causes. either Leigh's disease. the working diagnosis for 16 years: human hormone growth deficiency as shown on the 5.1 test and his present symptoms, or one of twenty genetic diseases that produce these symptoms. The defense contended the high Insulin was due to the body's response to the high dose of glucose and the zero C-Peptide test was due to the freezing and thawing of the sample.

 

Tegan Davis

On. March 10. 1982, three year old Tegan Davis, who had a totally unremarkable medical history [R. 775], displayed flu like symptoms, was vomiting, and was complaining of burning of the urine. Two urine tests on March 8, 1982 showed positive for bacteria infection which responded to an antibiotic [RI526] explaining the burning of the urine. Two nurses for the State testified that, on March 10, 1982, Tegan Davis appeared to be reasonably normal [R. 361, 389], and was not displaying any of the symptoms that would be associated with lethal caffeine poisoning. On the evening of March 10, Tegan Davis began to show signs that she was hallucinating [R. 813] and was taken immediately t6 the Greenbrier Valley Hospital. There, a third nurse testified, that as of midnight, Tegan was requesting a pizza and wanted to go home [R. 462]. Tegan Davis had been vomiting and was believed to be dehydrated. Dr. Aldrich began administering a high dose of glucose in the form of Dextrose "50" [R. 1530] and later administered Mannitol to prevent swelling in the brain [R. 1557]. Mannitol is a sugar that is used to control brain swelling. Blood gas samples at 2:00 a.m., and 4:00 a.m., were taken but had to be sent to Richmond for further testing. When the test results were returned, the two tests showed extremely elevated levels of ammonia, ten times normal [R. 980, 1532], the key symptom for Reye's Syndrome. There are no reported cases of high ammonia levels with caffeine poisoning,[R.631]. Tegan further had normal blood pressure through outher hospital stay. (High blood pressure is a hallmark of caffeine poisoning) [R. 987].

Tegan Davis went into a coma and died at approximately 9:00 a.m., March 11, 1982. Dr. Joseph Aldrich, the treating physician, first thought it was rapid onset of Leigh's Disease similar to Seth Davis, her brother, but upon receiving the ammonia levels, changed his diagnoses to Reye's Syndrome [R. 980].

On autopsy, Dr. Anne Hooper, a pathologist at WVSOM, found something in Tegan's intestine which she identified as being "time-released" caffeine capsules. It was reported to the parents that a massive amount of caffeine had been found in her intestine, and they then searched the home. The only substance found containing caffeine were some empty blister packs of Dexatrim which was reported to Dr. Aldrich who reported this to Dr. Hooper [R. 1009]. Both parents believed, incorrectly, that a massive amount of caffeine had been found. They believed that if the child had been poisoned, it was by an accidental ingestion of the diet pills,, Dexatrim. However, neither parent had actually reviewed the records until after the indictment [R. 761, 823] , and did not know that only trace amounts of caffeine were found in her tissue.

No tests were actually performed on the substances found in Tegan's intestines [R. 628]. In 1982, Dr. Hooper, after being informed that there were only trace amounts of caffeine found on four out of the five tests, challenged the chemist on the validity of the test., but the State stuck to the validity of their tests[R. 562, 563]. Dr. Hooper, in her autopsy, reconciled this obvious discrepancy between her theory of death and the test results by concluding, "Tegan Davis distributed caffeine differently from any other reported subject" [R. 563]. Two toxicologists testified on the levels of caffeine found; Dr. Scharman for the State, Dr. Shipe for the defense. Caffeine poisoning is extremely rare. Once a person ingests large amounts of caffeine, the body's response is to vomit the substance, [R. 629] [R. 1113]. There 's no recognized standard data for the therapeutic, toxic or lethal levels of caffeine, [R. 632]. Both toxicologists working independently of each other, developed their levels from the few reported cases.

Dr. Scharman. the State's expert, in analyzing the data used the highs and lows of the reported test subjects known to have died of caffeine. Dr. Shipe, the defense expert, using almost the same data, used the mean or average caffeine levels found to compare the data.

During the autopsy of Tegan Davis, five tests for caffeine were performed (three on tissue, one on bile, and one on blood). The tests revealed 6.6 ml in her blood. All other tests, particularly the tissues, were ten times less than the blood [R. 562]. Dr. Scharman testified [R. 614] that .5 ml percent is equal to two cups of coffee. Then, she testified 1. 1 ml and up as her lethal range. This means that four and one half cups of coffee or more is within her lethal range. She concedes this is a very wide range [R. 614]. All other experts for the State then relied upon her lethal range. Dr. Zitelli did not even know what the lethal range \was upon which he testified [R. 259, 260].

Dr. Scharman testified 5.6 cause seizures and cardiac problems. This appears to be the low of her toxic range. Tegan. of course, had no reported cardiac problems or seizures.

All experts agreed that caffeine causes no harm until it reaches the tissues [R. 564]. All tissue tests were ten times less than her blood test. Dr. Shipe, the defense expert, using the mean or average of the lethal range found that the caffeine levels in Tegan's tissue were only 5% to 6% of his calculated lethal level.

Dr. Scharman even using her method of four and one-half cups of coffee as the lethal range, could not place a single test performed on Tegan's tissue into her lethal range category [R. 632]. Children over eight months of age distribute caffeine the same as adults.

The appealant asks the court to take judicial notice that four and one-half cups of coffee is seldom lethal.

Dr. Scharman appears to totally abandon her chemical tests. Even though Dr. Scharman is not a medical doctor, she switches her opinion to the clinical symptoms of Tegan. She refers to this as her toxidrome [R. 615]. She then only calls the 6.6 in the blood, where it would cause no harm, a "significant level." [R. 617] She never once calls this lethal.

The State had no factual basis to argue that the caffeine level in Tegan's blood was ever any higher than it was at her death. The high ammonia levels recorded are proof that Tegan's liver was not able to remove any caffeine consumed. No expert rebutted Dr. Aldrich who, when questioned on the the only of higher caffeine levels prior to death, testified this could not be considered because of the liver failure [ 1034, 1036, 1048]. Further proof that no higher levels of caffeine were possible, is found in the testimony of three State witnesses who testified that Tegan appeared reasonably well on the day before she died. She had even requested a pizza nine hours before her death [R. 361, 389, 462).

On cross-examination, Dr. Scharman conceded that she cannot compare caffeine poisoning to Reye's Syndrome symptoms.[R. 634]; that Dexatrim is excluded due to the absence of "PPA" [R. 625]; that the high ammonia levels are not reported for any case of caffeine poisoning, [R. 63 1], and that Tegan's normal blood pressure is inconsistent with caffeine poisoning, [R. 634]. She further concedes Tegan's tissue tests did not fall into any lethal levels reported. [R. 632]. Dr. Zitelli, for the State, conceded caffeine was not associated with high ammonia levels [R. 25 1 ] and is consistent with Reye’s syndrome [R. 252].

More significantly, Dr. Scharman was- only able to prove that it was lawful to produce this time released caffeine capsule. She could not name a single product by name or its manufacturer. [R. 625]. There is no medical use for the timed-released caffeine capsule [R. II 14], thus the State could not even prove the existence of the murder weapon [R. 11 18]. At no time did Dr. Scharman testify that the level of caffeine is lethal. She bases her entire conclusion on the clinical symptoms and Dr. Hooper's conclusion that the substances found in Tegan's intestine is caffeine residue, [R. 627], which was never tested.

Dr. Scharman and Dr. Hooper had., pre-trial, developed an elaborate half-life theory of the caffeine poisoning whereby Tegan had been administered caffeine over a several day period and then had excreted the caffeine from her tissue. Knowing Tegan's health a few days before her admission to the hospital was very important," [Hooper-Pre-trial, R. 64]." However, the State never developed this half-life theory through Dr. Scharman or Dr. Hooper. They attempted to resurrect it through Dr. Aldrich, whose testimony was that no half-life-theory could be accurately computed because Tegan's high ammonia levels indicated that she was having liver failure, her system would not have excreted any caffeine. [ R. 1048, 1034, 1036] Dr. Zitelli could not even name the lethal levels [R. 259, 260]. Dr. Shipe testified death is quick after reaching the lethal level [R. 1146].

In closing argument [R. 171 1 ] the prosecutor stated "Dr. Scharman told you that little baby was full of caffeine. It was a lethal amount, 6.6 milligrams percent, that was a lethal amount." The prosecutor then argues a half-life theory that Dr. Scharman never offered and kept quoting, "and the important thing to focus on is that she said all of these numbers are lethal," [R. 1711 ]. Of course, no toxicologist testified to this.

The State based their theory that a diet pill was used. Of course, the absence of the "PPA" excluded Dexatrim (the only link to the Davis's home), [R. 625, 1142] and any diet pill with PPA [R. 1142]. The State attempted to use Dr. Sopher. who stated that he had conferred with a "current toxicologist" [R. 1090] who indicated that the "PPA" might not have shown up." The State then improperly argued that [R. 1712] Dr. Sopher said, "I talked to the person running the toxicology lab in 1982, and the only way that phenylpropenalimine (PPA) would have shown up is if they had been specifically tested for." Dr. Sopher never talked to the person who ran the 1-@b in 1982, and, of course, in 1982, they were looking for diet pills specifically Dexatrim. Both toxicologists who testified at trial, indicated it should have shown up. [R. 625]. Of course, even Dr. Sopher's explanation on the test should still leave the reader with the serious question as to why no symptoms of "PPA" poisoning were reported. In diet pills, the timed-release device is attached to the "PPA" and not the caffeine. No one wants to be awake twelve hours later. The point is, residue found Would have to have been the residue of timed-released attached to PPA if diet pills were, in fact, used.

The defense was that Tegan died of Reye's Syndrome as was the diagnoses in 1982. The defense contends the caffeine was due to Coke Syrup prescribed to control nausea as testified to by Marybeth Davis [R. 1438. Dr. Aldrich [R. 974] and documented in the medical records. Nothing Tegan ingested could have been eliminated due to liver failure. [R.974] The State did not even realize Reye's Syndrome was a liver disease [R. 1520]. Dr. Gary Davis, father of the children, testified that he had now reviewed the medical literature and the records, and testified that, as a physician, the cause of death of Tegan Davis was Reye's Syndrome. [R. (1@41 ]. Dr. Aldrich. the treating physician, testified that Tegan died of Reye's Syndrome as lie ]lad stated in 1982. [R. 874, 980-98 1 ]. Dr. Aldrich diagrammed on the chalkboard the symptoms of caffeine poisoning,, and Reye's Syndrome, and explained why all of the symptoms were consistent with Reye's Syndrome when many of the symptoms were inconsistent with caffeine poisoning, particularly the normal blood pressure, [R. p. 841, 842, 987]. Dr. Jason Amar, a Board Certified Gastroenterologist and pathologist, testified the death of Tegan Davis was due to Reye's Syndrome [R. 1523], and went over all of the symptoms of the laboratory and the physical findings., and showed why all symptoms were consistent with Reye's Syndrome. Of the sixteen symptoms associated with Reye's Syndrome, Tegan had all sixteen. The pathology report also indicated Reye's Syndrome was the cause of death [R. 1558-1566]. Dr. Amar. as a gastroenterologist. testified that he saw, on scoping his patients, substances identical to those found in Tegan’s intestine [R. 1575]. Dr. Shipe, defense toxicologist, testified that, in his opinion, Tegan Davis did not die of caffeine poisoning. [R. 1101]. Further, he testified he could find no product that existed in 1982 that was a time released caffeine capsule. [R. 1118]. Even he thought she died of Reye's syndrome [R. 1149], but didn't feel qualified to go beyond his expertise.

Dr. Barry Wolfe, a geneticist with over 3 10 publications in the field of genetics, was called for the defense. He testified that the same liver/lipid genetic disease could have caused Seth Davis's Human Growth Hormone Deficiency and the Reye's Syndrome in Tegan Davis. [R. 1329, 1333]. Dr. Wolfe believed it was possible that Seth Davis and Tegan Davis had the same genetic disorder often found in siblings both associated with the liver[R. 1329]. Dr. Wolfe offered to name twenty such genetic diseases that overlapped the symptoms of both children. The court besmirched the testimony of Dr. Barry Wolfe.

 

III. THE ASSIGNMENTS OF ERROR RELIED UPON APPEAL

AND THE MANNER IN WHICH THEY WERE DECIDED IN THE LOWER TRIBUNAL

The Court violated the defendant's due process rights under the Constitutions of West Virginia and the United States of America in the following particulars:

A. The lower court committed reversible error by denying the appellant's motion for judgment of acquittal.

B. The lower court committed reversible error by failing to grant the appellant's motion to dismiss for pre-trial indictment delay of fourteen (I 4) and fifteen (I 5) years.

C. The lower court committed reversible error by failing to instruct on the malice, an essential element of the crime of first degree murder..

D. The lower court committed reversible error when it failed to instruct on lesser included offenses.

E. The opening statement and closing argument of the prosecuting attorney constituted gross misconduct.

F. The prosecuting attorney committed misconduct in the trial and pre-trial in the following

particulars:

a. the State used and argued pejured testimony;

b. the State secreted exculpatory evidence;

 

IV. Argument

A.

DIRECTED VERDICT OF ACQUITTAL

At the conclusion of all evidence, the defendant moved that all charges against her be dismissed because of insufficiency of evidence. That motion was denied. The defendant now contends that the trial court erred in not granting a motion for 'judgment of acquittal in accordance with Rule 290 of the West Virginia Rules of Criminal Procedure. In raising factual insufficiency of the prosecution's case, the defendant. of course, accepts the familiar principle that an appellate court will reverse only if no reasonable jury Could have found the defendant guilty beyond a reasonable doubt. Indeed, in State v. LaRock, 196 W.Va. 294. 470 S.E.2d 613 (1996), this Court stated:

"The function of the appellate court, when reviewing the sufficiency of the evidence to support a criminal conviction, is to examine evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of defendant's guilt beyond a reasonable doubt: thus, relevant inquiry is whether, after reviewing evidence in light most favorable to the prosecution. any rational trier of fact could have the essential elements of the crime proved beyond a reasonable doubt."

In reviewing the evidence, this Court considers the evidence, all reasonable inferences that may be drawn from that evidence, and all credibility determinations in the light most favorable to the verdict. Notwithstanding the limited scope of appellate review, a conviction on less than proof beyond a reasonable doubt is constitutionally infirm Linder the Due Process Clause of the West Virginia Constitution, Article 3, 10 and the Fifth Amendment to the United States Constitution. "Guilt beyond a reasonable doubt cannot be premised on pure conjecture." State v. Guthrie, 194 W.Va. 657, 670, 461 S.E.2d 163, 176 (1996). Since it is the jury's duty to acquit unless guilt is established beyond a reasonable doubt, the reviewing court may properly inquire whether the evidence, considered most favorably to the State, was such as to pen-nit a rational conclusion by the 'jury that the accused was guilty beyond a reasonable doubt. Therefore, at this juncture. the function of this Court is to examine the record and determine if the jury could rationally choose the hypothesis that supports guilt rather than the hypotheses that are consistent with innocence.

We note initially that this case consists mostly of circumstantial evidence. Of course, under Githrie, evidence of this nature need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and the Jury is free to choose among reasonable constructions of the evidence. If, however, the evidence gives equal or nearly equal circumstantial support to a theory of guilt and to a theory of innocence, an appellate court is obliged to reverse the conviction, as under these circumstances a reasonable jury must necessarily entertain a reasonable doubt. Thus, following the standard of Guthrie and LaRock, Marybeth Davis is entitled to a judgment of acquittal unless a reasonable trier of fact, could find that the State has proven all of the following beyond a reasonable doubt.

Because the indictment charges crimes both as to Seth 'and Tegan, the defendant separates her argument as to each alleged victim for purposes of clarity. Several reasons are advanced as to why the evidence was insufficient as to Seth Davis. First, the defendant contended at trial that Seth's symptoms were caused by natural causes consistent with Leigh's syndrome or either human growth hormone deficiency or a genetic disease.6 Thus, the initial inquiry must necessarily be on whether the State's evidence was sufficient to counter or refute the evidence of the defendant's experts who diagnosed Seth's symptoms as either Leigh's Syndrome, human growth hormone deficiency or another genetic disorder that has the same symptoms. At the beginning, Seth had a working diagnosis of Leigh's Syndrome. This finding was made by the University of Virginia and Yale's departments of genetics which served as the undisputed working diagnosis for sixteen (16) years. [R.801,802]. This diagnosis was made contemporaneously after reviewing the Pittsburgh Children's Hospital medical records in 1981. [R. 801, 802]. Significantly, the State did not do any independent testing nor did it offer any evidence from any doctor especially a geneticist. It seems apparent that the lower court erroneously accepted the State's theory that Leigh's Syndrome was somehow excluded by the defendant when she also offered evidence that his symptoms were consistent with human growth hormone deficiency or a similar genetic disease. The defendant notes parenthetically that the trial court would not permit the defendant to show the overlap of the diseases or syndromes through Dr. Barry Wolf, the geneticist. [R. 133 1]. The burden of proof is on the State to prove the absence of natural causes and no evidence was offered to exclude this defense. Most telling is the fact that Dr. Becker even conceded she could not exclude Leigh's syndrome. [Aug, R. 57].

Second,' the diagnosis of the only geneticist who testified stated that the clinical symptoms of Seth Davis were caused by one (1) of twenty (20) genetic diseases [R. 1327, 29, 331 [See footnote 5]. Dr. Barry Wolf testified that Seth's symptoms could be medically consistent with either human growth hormone deficiency or one of twenty diseases. The State did not do any testing or offer any rebuttal testimony to Dr. Wolf. The State never even conferred with a geneticist. The only rebuttal came from the trial court who commented in the presence of the jury that the doctor had to testify to some specific genetic disease to a reasonable degree of medical certainty.7 [R. 1330].

Third, Dr. Lovinger, a pioneer in human growth hormone deficiency (Dr. Lovinger's research team set the first standard for human growth hormone deficiency) [R. 1158] and Dr. Willis, both Board Certified Pediatric Endocrinologists based their diagnosis of human growth hormone deficiency, not only on the clinical symptoms of Seth Davis, but also on the 5.1 stress test of Pittsburgh Children's Hospital. Experts at Pittsburgh Children's Hospital use a I 0.0 as the cut off point for severe human growth hor-mone deficiency [R II 92] which means that Seth had one half (1\2) of what the medical community has found to be severe human growth hormone deficiency. The State countered by stating through Dr. Zitelli [R. 235, 237] and Dr. Becker that there Must have been more test to run [Aug. R. 19]. However, neither of these experts or the State could produce such tests [Aug. R 741 and there is clear indication that no further tests were conducted because the laboratory results for the human growth hormone deficiency test were returned on the date Seth Davis was discharged. [R. 1195] Nothing in the record shows more tests were performed for human growth hormone deficiency. [ Aug. R. 19]. Zitelli concedes no other tests were run [R. 251]. Dr. Becker conceded the human growth hormone test was taken under ideal stress test conditions of high cortisol and high insulin [Aug. R. 27]; nevertheless, Dr. Becker excluded human growth hormone deficiency because the child's blood titers returned to normal "too rapidly" [Aug. R. 17]. The difficulty with Dr. Becker's conclusion, as she also conceded. is that she had not reviewed the records and would therefore not have known the time frame in which the child's blood sugar returned to normal. She also testified that the sugar levels "took hours" to return to normal [Aug. R. 9.23]. Furthen-nore, so that Seth's blood sugar could return rapidly to non-nal, Seth Davis was given more than twice the glucose I.V, of any other test subject [Aug. R. 25]. Thus, Dr. Becker's opinion is nothing more than pure conjecture and without any medical or scientific foundation. Finally, Dr. Becker is totally rebutted by the testimony of two pediatric endocrinologists (one who specializes in insulin levels in newborns), Dr. Lovinger and Dr. Willis, that the high insulin was due to the high administration o glucose [R. 1276, 1180]. At age sixteen (I 6) Seth Davis is four foot three inches tall and weighs only fifty seven pounds, a condition of Human Growth Hormone Deficiency [R. 1197]. There is no other explanation offered to explain his short stature.

Fourth, to support the jury verdict, it would be necessary for the jury to believe the normal blood sugar sample of "72" on Seth's admission to Greenbrier Valley Hospital was totally in error. This requires some explanation. Obviously, if the blood sugar was normal, then a massive amount of insulin could not have recently been injected. All three Pediatric Endocrinologist were in agreement on this point. [Becker R. 5 1, Lovinger R. 1174-75, Willis R. 1273].

Explained another way, unless the draw of "72" was "totally" in error there is "no weapon" i.e. there is no insulin made that would drop the blood sugar to the point of causing a seizure, then return to normal and then hours later cause rapid drops of blood sugar while glucose is being administered. Needless to say, if there in no insulin that is made that can repeat these symptoms, no crime was committed. This point is undisputed.

The State's total case was built on the theory that the normal blood sugar test was totally in error. All three doctors who were present each testified that, to their best memory, the blood draw was accurate. These doctors did not question its results then or now. [Dr. Harris R. 21,22, Aldrich R. 920, 952, Davis R. 790]. No nurse or any eyewitness testified to the contrary.

Where, then, did the State get this theory and what evidence supports it? Dr. Oberdorph, who was with the Pittsburgh Flight medical team, arrived at 3:15 p.m. She was not present when the events took place, but left a note stating "sample taken with IV tubing." No other note or explanation of its significance is offered in the record. She did not identify her source, the site the IV was running, what type of IV she was referring to, or any intent associated with the note. Since Dr. Oberdorph did not testify, placing any significance on a random note was pure fabrication on the part of the State. 8

The proper medical procedure is to inject the needle, draw the sample, and then attach the IV to the needle. Dr. Aldrich testified this was the procedure he followed and that he never varied from it [R. 95 1].

He made a detailed memorandum of this in 1982 prior to his leaving the community for another job. He could not recall why he prepared this detailed memorandum or why it was undated [R. 92 1 ] (presumably in 1982 he would have recalled). The State accused him of creating this document as part of a cover-up. He vigorously denied these accusations. [R. 925].

The State even went so far as to introduce State Exhibit #13 that covered up the portion of the medical record showing that a second IV was running in the scalp, (probably started by Harris, though his and Aldrich's memory are uncertain). [Defendant's Exhibit 6 shows the full notation of the medical record].

The State. in a hypothet, promised Dr. Becker that a doctor and all nurses present would testify the draw was contaminated by the glucose (sugar) in the IV [Aug. 82, 83]. Of course, no doctor, nurse, eyewitness. or medical evidence supported this theory. All other testimony is pure conjecture.

It is undisputed Seth was maintained in the Emergency Room from I 1:00 a.m. until 3:15 p.m. on only extremely small amounts of sugar (5% sugar in water). It is also undisputed that Seth Davis had no recorded symptoms of low blood sugar in this period. Therefore, this fact alone is entirely inconsistent with a massive amount of insulin being injected.

The State offered no rebuttal testimony to Dr. Lovinger's and Dr. Willis's testimony that the continued dropping of blood sugar while in the exclusive control of the Pittsburgh Medical team could not have been caused by any known insulin. [R. 1272, 1273, 1174-76] (Dr. Willis is a specialist in insulin levels in newborns).

If there is no insulin that would produce these symptoms, then there is no "weapon" and i%-Marybeth Davis is entitled to a directed verdict of acquittal.

Fifth. The State had but one circumstance to base their case. This circumstance was the recording of a 320 insulin on Seth by a sample taken at Pittsburgh Children's Hospital. Dr. Becker testified this was tile highest insulin she has ever seen.- From this reading the State wants to draw the conclusion that Marybeth injected insulin.9

A review of the records shows why this is a fallacious argument. The measurement of Seth Davis's blood sugar from 3:15 p.m. until his admission at Pittsburgh Children's Hospital were all done by dextro-stick, which is not particularly accurate, especially in low levels [Sept. R. 23]. Each time a rapid drop of blood sugar was recorded the nurses administered large doses of glucose to pull his blood sugar to normal. These were in D50, meaning 50% sugar in the IV fluids. Dr. Willis refers to this as "bucket fulls." [R. 1275]. Drs. Lovinger and Willis testified that, under these circumstances, Seth's body would respond by producing large amounts of insulin to combat these large amounts of sugar. Not only are Drs. Lovinger and Willis specialists in insulin levels in newborns, but they have also reviewed the medical literature and found other I scientific authorities to show where children had recorded insulin levels as high as 560 when under the same circumstances as Seth. [R. 1277]

They both testified, under these circumstances, Seth's insulin level was 'not high' and was explained by the recorded events, which are inconsistent with a crime. [R. 1276, 1180].

The State's expert, Dr. Becker, admitted she'd not recently reviewed the medical literature on this subject. [Aug. R. 30, Sept. R. 60]. Dr. Becker also agreed Seth had received twice the glucose of any test subject she was familiar with. (Interestingly, Nurse Foster testified she had twice seen a high insulin recorded naturally in her experience [R. 336]).

Some explanation needs to be made of the zero C-Peptide test. After the 320 insulin test was reported, Dr. Becker attempted to determine whether the insulin was natural or artificial. If C-Peptide is found it must be produced by the body. If it is absent, it might be artificial, or naturally degraded due to freezing and thawing.

The problem with the theory is that C-Peptide, after it delivers the insulin, has no useful purpose and degrades quickly on its own.

The degrading is accelerated at room temperature or if it is frozen and thawed [Aug. R. 69]. Any heat (even room temperature) or freezing and thawing destroys the C-Peptide and therefore tests would show a zero C-Peptide even when natural insulin was involved.

This is the reason all medical protocols require the sample be drawn and frozen within one hour and the test for C-Peptide performed immediately after the first thawing.

Seth's sample was drawn and sent to the general laboratory of the hospital. For a four day period, how it was handled is unknown. The medical records show that the sample was not ordered to have special handling - in particular STAT (expedient return). Six weeks after Seth's admission to the Pittsburgh Children's Hospital, Seth's sample was tested by Dr. Becker and a zero C-Peptide was found. Dr. Becker concedes she can't account for the handling of the sample in the four day period prior to it coming to her laboratory [Aug. R. 69]: admits it was frozen and thawed numerous times for other tests [Aug. R. 70], and says her own laboratory won't accept a sample for testing for C-Peptide if it is ever frozen and thawed, even once (presumably Seth's is the only exception to her rule). Her own protocol requires it not be frozen and thawed. [Aug. R. 30].

Drs. Aldrich, Willis [R. 1297], and Lovinger [R. 1186] (who ran a Commercial Endocrine Lab in 1982 doing C-Peptide tests) all testified the sample was not reliable and the zero C-Peptide test did not support the State's theory.

The State's case on Seth Davis is entirely circumstantial. Every aspect of the State's case is contradicted and rebutted by all the eye witnesses and by numerous doctors whose qualifications arguably exceed any Doctor testifying for the State, including Dr. Becker.

Tegan Marie Davis: Now, as to Tegan Davis, while the State offered some evidence contradicting the diagnosis of Reyes Syndrome made by the treating physician and corroborated by the pathology report; Dr. Wolfe. Dr. Aldrich, Dr. Amar and the child's father, Dr. Gary Davis, a licensed osteopathic physician, all testified that. based on the clinical symptoms, Tegan Davis died of Reyes Syndrome or a genetic mimic of Reyes Syndrome. In particular Tegan Davis had high ammonia levels, the hallmark of Reyes Syndrome. Tegan further had normal to low blood pressure, throughout her illness that is totally contrary to caffeine poisoning. [R. 634, 841, 842, 987]. Two State's witnesses Dr. Scharman and Dr. Zitelli agreed that low blood sugar is inconsistent with caffeine poisoning [R. 251, 252].

The State countered the contention of Reyes Syndrome by claiming 1) that the child's brain swelling was not sufficient to have caused death by Reyes Syndrome 2) that the ammonia levels were due to an unspecified dying process and 3) the child had high blood sugar. 10

First, Dr. Jason Amar testified that Mannitol had been administered by Dr. Aldrich to control brain swelling [Amar, R. 1557]. This testimony was not rebutted. Thus, lack in brain swelling is explained by the administering of a drug. Further, Reyes Syndrome causes swelling in the brain tissue as shown in the pathology report. This can, but does not always, cause the entire brain to swell [R 1561-63].

Second, the State never identified the dying process. When a person dies, and for a time period thereafter, the ammonia levels do increase. However, they do not increase twelve to fifteen times normal as were found in Tegan five to seven hours before her death. The State's toxicologist, Dr. Scharman [R. 63 1 ] and Dr. Zitelli agree high ammonia levels are not associated with caffeine poisoning. Dr. Wolfe (Pediatrician and Geneticist for the defense) testified "you don't get high ammonia tests at the end when you're dying. It's indicative of something going on in the liver, and consistent with that metabolic disease, and it's consistent with Reyes Syndrome." [R. 1324].

Pursuant to Rule 20 1 (b) (2) of the West Virginia Rules of Evidence, this Court can and should take judicial notice of the fact that the ammonia levels can be three times normal due to the dying process, but anything over three time normal is considered diagnostic, the symptoms of a specific disease. [Interpretation of Diagnostic Tests, 6th Ed. Wallach. Little Brown. p. 64]. Again, it must be noted that the samples were taken five and seven hours before her death and were 12 to 15 times normal. Dr. Scharman and Zitelli's concession that high ammonia has never been listed as a symptom of caffeine poisoning stands as proof positive another process was going on that caused Tegan's death.11

The third reason, that Tegan had high blood sugar, is answered as follows: 1) children diagnosed with Reyes Syndrome are reported to have low blood sugar in only 40% to 60% of the reported cases. [R. 997] Further the State offered no rebuttal to the defense experts who attributed this to the D-50 glucose (sugar) given on admission to control dehydration [R. 997, 1569]. Just as Tegan would not have been able to eliminate any caffeine from her system due to liver failure, likewise any sugar administered would not be eliminated.

The State would have had to prove that the residue found throughout Tegan's intestine on autopsy was the remains of time released caffeine capsules. This residue was never tested for its chemical content [R. 628], a glaring oversight.

Dr. Scharman, the State's only toxicologist, was called to prove this residue was, in fact, the remains of caffeine capsules. All other State's witnesses deferred to her.

Dr. Scharman, however, rests her opinion on the assumption which she was called to prove. Dr. Scharman based her opinion on the acceptance, as fact, that the residue found was the remains of caffeine [R. 627-28]. What, then, supports this assumed fact?

Dr. Hooper identified it on sight alone. Dr. Donovan, who also witnessed the autopsy, testified this could not be done on visual examination alone [R. 606]. Dr. Amar, a Gastroenterologist, testified he sees identical residue on scoping his patient's intestines. [R. 1574]

Dr. Scharman was called by the State to analyze the chemical tests performed on Tegan's fluids and tissues to try to prove that the residue was caffeine, and that her death was due to the administering of caffeine. Five chemical tests were performed, three on her tissue and two on the fluids (blood and bile). 6.6 ml was found in the blood. All other tests, in particular the tissue tests, were 10 times less [R. 562].

Dr. Scharman testified .5 ml percent is equal to two cups of coffee [R. 614]. She then testifies 1. 1 ml and up as her lethal range. This means 4 and one-half cups of coffee or more is in her lethal rang [614]. Dr. Scharman established a toxic or lethal level. In fact, Dr. Scharman never testified that the chemical tests even support the State's theory. She only calls it a "significant level." [R. 617].

Dr. Scharman switched her testimony away from the chemical tests to the symptoms recorded on Tegan. She calls this her toxidrome [R. 615]. Dr. Scharman, on cross examination, concedes that because she is not a medical doctor, she cannot compare caffeine poisoning to Reyes Syndrome [R. 63334]. She concedes Dexatrim is excluded due to the absence of PPA [R. 625]. Although, she testified time-released capsules are reported to be legally on the market. she cannot name a single product or manufacturer that produced time-released caffeine capsules [R. 625]. Dr. Scharman concedes that the .the ammonia levels are not reported for any case of caffeine poisoning [631] and that Tegan's normal blood pressure Is inconsistent with caffeine poisoning [R. 634]. Dr. Scharman calls caffeine an appetite suppressant [R. 613. 633], but can't reconcile this with Tegan asking for a pizza nine hours before her death. [R. 633].

Dr. Scharman's opinion of caffeine death is totally contrary to the facts and is based on the assumption the residue found is from caffeine. [R. 627-28].

Dr. Shipe, the defense expert, was the only expert to analyze the chemical tests of Tegan. Dr. Snipe, as a toxicologist at the University of Virginia, has analyzed caffeine levels in newborns for over twenty years [R. 1 102]. He analyzed the data from the few reported cases and developed toxic and lethal levels.

All experts agreed no harm is caused by caffeine until it reaches the tissue [564, 1118]. Dr. Shipe testified that on all three tissue tests. Tegan's level of caffeine was only 5 to 6% of the lethal level. No one rebutted this testimony.

The State's attorney wanted to develop a theory that the caffeine levels were once higher, but no one rebutted the testimony of Dr. Aldrich that the high ammonia levels indicated the liver was not working and could. therefore, not remove any ingested caffeine from her blood. [R. 1034].

The defense contended that Coke syrup was given to Tegan to control her nausea prior to her admission. The defense contends that since her body would not remove any caffeine, the 6.6 in her fluids is explained by the ingestion of Coke syrup.

The most glaring weakness of the State's case is the total absence of proof that a "murder weapon" ever existed. There is no medical use for "time released" caffeine. [R. 11 14]. Dr. Scharman produced a list showing it was lawful to produce time released caffeine in 1982. Dr. Scharman could not name a single product name or manufacturer of time released caffeine [R. 625].' The State never showed a product that would leave the residue found.

Without some positive evidence of the existence of a "murder weapon," i.e. time released caffeine capsules that leave the residue that the State relies upon, no reasonable trier of facts could come to any other conclusion than that the murder by time released caffeine was impossible. Dr. Shipe, defense expert, testified poisoning over a period of time with caffeine is impossible [R. II 13]. No one rebutted this by showing how it could be done.

The State went beyond the indictment to try to show Dexatrim as the weapon. Dexatrim contains PPA, an appetite suppressant. Both toxicologists agreed that the absence of PPA excluded Dexatrim [R. 625, 1142]. Dr. Sopher testified that he had conferred with a current chemist who informed him PPA might not show up [R. 1090]. 'Me State never offered any other testimony to show the general toxicological test was bad. The State cannot build on this theory because they can offer no explanation as to why Tegan displayed no symptoms for PPA poisoning.

The defense was straight forward. Seth Davis' symptoms then and now are consistent with natural causes. Tegan Davis died of Reyes Syndrome or a genetic mimic of Reyes Syndrome. Without the other tests rebutting the evidence relied upon by Zitelli and Becker, (i.e. tests for human growth hormone deficiency and an insulin that can reproduce this time line of low blood sugars in Seth), and without the production of a product causing caffeine poisoning and some explanation as to how the crime was committed, the defense is entitled to a directed verdict of acquittal. 'Me State's case fails as a matter of law. The evidence, it not balanced favorably to the defense, is at the very least equal to or nearly equal to the circumstances offered by the State.

B.

DUE PROCESS DENIED TO EXCESSIVE DELAY OF PROSECUTION

A delay of fourteen (14) and fifteen (15) years between the commission of a crime and the

commencement of prosecution is presumptively prejudicial and therefore, unless rebutted, a denial of Due Process .under the Constitutions of the United States and the State of West Virginia. See Dickey v. Florida, 398 U.S. 30. 90 S. Ct. 1564, 26 L.Ed.2d.26 (1970); State ex rel. Leonard v. Hey, W.Va, 269 S.E. 2d 394

(1980). Syllabus Point I of Hey states:

"A delay of eleven years between the commission of a crime and the arrest or indictment of a defendant, his location and identification having been know throughout the period, is presumptively prejudicial to the defendant and violates his right to due process of law, U.S. Constitutional Amendment XIV, and W.Va Constitutional Article 310. The presumption is rebuttable by the government."

The salutary policy of Hey is to ensure that criminal prosecutions are based upon reasonably "fresh" evidence. In most jurisdictions, the guarantee against a citizen being subjected to overly stale criminal charges is provided by statutes of limitations. Of course, West Virginia does not have a statute of limitations applicable to this case. See State v. Carrico, 189 W.Va 40, 43, 427, S.E. 2d 474, 477 (1993) ("West Virginia has no statute of limitations affecting felony prosecutions"). Nevertheless, as the United States Supreme Court stated in United States v. Marion, 404 U.S. 307, 324, 92 S Ct. 455, 465, 30 L.Ed.2nd 468 (197 1), "the statute of limitations does not fully define [a defendant's] rights with respect to events occurring prior to Indictment." Thus. primary reliance is placed on the Due Process Clause of West Virginia and the United States Constitutions which protect the defendant against oppressive pre-accusation delay. In this regard, the claim of the defendant is straightforward, e.g., the lengthy delay before the commencement of prosecution impaired her ability to mount an effective defense in violation of her right to due process.

In deciding due process challenges based upon pre-indictment delay, the pivotal point is whether the defendant can make a showing of prejudice that is attributable to the delay. At this juncture, the analysis Linder the West Virginia Due Process Clause differs substantially from the federal rule. Under federal law, if no actual prejudice is shown or demonstrated, there can be no due process violation and the inquiry comes to an end.12 Under the West Virginia analysis, the need to demonstrate actual prejudice is directly dependent upon the length of the delay. As previously suggested, this Court has adopted a burden-shifting mechanism to measure the need for a showing of actual prejudice. Under Hey, once a defendant has demonstrated excessive pre-accusation delay coupled with a showing that the prosecution had knowledge of the identity and location of the defendant, a presumption of prejudice arises shifting the burden to the prosecution to prove either reasonable diligencel3 or the lack of prejudice. On the other hand, if the defendant can make no showing that the delay is presumptively prejudicial, Hey requires that the effect of the shorter delay be determined "by weighing the reasons for the delay against the impact of the delay upon the defendant's ability to defend [her]self " Syllabus Point 2, in part, Hey. Of course, when the delay is not presumptively prejudicial, the defendant has the burden of showing how the delay prejudiced her case. 14 See Syllabus Point 1, State v. Richey, 171 W.Va. 342, 298 S.E. 2d 879 (1982). Under either standard, the defendant sub judice prevails because the prosecution has failed to rebut the presumption of prejudice or otherwise show justifiable and legitimate reasons for the fourteen and fifteen year delay.

In the case at hand, the State halted its investigation and closed its file in 1985 and did not reopen the case until 1995.15 No activity was shown on this investigation for over ten (10) years. Although the reopening was triggered by the curiosity of a State Police Trooper who was employed for a child abuse committee,16 to avoid dismissal in this case, the State asserts three reasons for the protracted delay: (a) that it was not until ten years later or more that Dr. Davis, the children's father, gave a statement indicating the defendant had the exclusive custody and control of Seth Davis on September 30, 198 1; (b) it was not until ten years later that Dr. Becker, a potential witness for the State, had become more certain as to her test results of the C-Peptide-. and (c) it was not until ten (10) years later that the State had a greater appreciation of Munchausen by Proxy Syndrome because it was now published in textbook for six (6) years.

These pre-textual reasons do not provide any justification that would excuse the delay complained of herein. First, it is necessary initially to place these proffered reasons in a proper context by again underscoring the fact that two (2) crimes are alleged in this case, each with a different factual basis and each requiring separate analysis. Second, as to Seth Davis, the statement that Dr. Davis was not with his wife was never used at the trial and was recanted by sworn testimony from the witness stand. There is no indication Dr. Davis presence or absence could not have been proven in 1981 by Dr. Kenzie, the next door neighbor who, at the time of the acts alleged in the indictment, was living.

As to the second reason offered that Dr. Becker was more certain of her test, the record shows Dr. Becker testified that she did not need the C-Peptide test in order to make her analysis. Dr. Becker states, "I would make the same diagnoses without the C-Peptide levels. I do not need the C-Peptide levels to come to my conclusion. It does not give credence to that conclusion." (R. 12). Her comments only applied to Seth Davis. Her test results remained the same. No new literature was offered.

Although the third offered reason applies to both Seth and Tegan,17 Munchausen by Proxy Syndrome, was used by the State, not as a diagnoses, but as a suggestion of motive. This disorder was first mentioned in the literature as early as 1977 and it became part of the general literature of the medical profession as early as the 1990's, six years before the indictment. 18

The difficulty for the State is that the above explanations are not justification for the delay, but are reasons for the reopening of an otherwise forgotten investigation. Under West Virginia law, the state must show an exercise of reasonable diligence for the inertia it exhibited in the first ten year period and some plausible justification for the delay for the next six years. Syllabus Point I of Carrico provides as follows:

"It is the government's duty to proceed with reasonable diligence in its investigation and preparation for arrest, indictment and trial. If it fails to do so after discovering sufficient facts to justify indictment and trial, it violates its due process right." (Emphasis added).

The prosecution's position appears to be that it has no obligation to minimize the prejudicial nature of an otherwise lengthy delay by completing its investigation into a "mysterious" death and illness with dispatch and "reasonable diligence." The prosecution's position overlooks the Constitutions' guarantee of a fair trial which is protected and reinforced by the Due Process Clause. Thus, while it is true "that prosecutors are under no duty to file charges as soon as probable cause exists [or] before they are satisfied that they will be able to establish the suspect's guilt beyond a reasonable doubt," Lovasco, 431 U.S. at 791, 91 S.Ct. at 2049, the Due Process Clause provide some "protection against oppressive delay," in the bringing of charges. Id. 431 U.S. at 789. 97 S.Ct. at 2048. And though the protection is limited, the Lovasco Court indicated that dismissal would be compelled in those cases where the defendant could demonstrate prejudice and the government’s justification was not sufficient enough to outweigh the prejudice to the Defendant's case.

Juxtaposed against the State's lack-of any reasonable articulation for the delay, are the following factors demonstrating actual prejudice to the defendant:

Loss of Memory. As can be expected, loss of memory and forgetfulness plagued the defendant throughout tile trial. Several examples are illustrative: First, the accuracy of the blood draw of "72" was significant to the defendant's case. 19 Dr. Aldrich was cross-examined on his memory. [R. 95 1 ]. Dr. Nat Harris, the Emergency Room physician at Greenbrier Valley Hospital, who was present and may have performed the initial draw of "72" could not be examined regarding the accuracy of the draw because the trial court ruled his memory was insufficient regarding the draw of "72." [Harris, R. 22]. While the defendant does not contest to the court's ruling, the ruling excluding this important evidence stands as a vivid demonstration as to how the defendant was prejudiced by the delay. Second, the testimony of Dr. McGregor and Nurse Pack was critical on the issue of motive and the alleged criminal scheme of the defendant. In testifying more than fourteen years after the event, they both relied upon their memories. Their in-court testimony was, in fact. contrary to their own hand written medical records taken contemporaneously with the events and conversation in question. Dr. McGregor testified that on her first meeting with the defendant on September 30, 1981 when the child was brought to the hospital, the defendant Unasked whether her child was going to be institutionalized [R. 3051. The obvious implication from this testimony is that the defendant was unconcerned with the present medical condition of her child and with the prospects of the child's survival. Not only was this testimony contrary to what other witnesses who were present stated, but Dr. McGregor's records show that the conversation on institutionalization took place on October 5, 1981 [R. 3 1 0-1 I] under entirely different circumstances. Even more prejudicial, Nurse Pack testified at trial that fourteen years ago while at the hospital she saw the defendant inject Tegan with something, and it could have been anything. When asked whether this injection was Thiamine and whether she had charted it as such, she said no. In the Greenbrier Valley nursing notes, Nurse Pack's notes indicates that she recorded in her own handwriting and signed that Thiamine was injected into Tegan. Dr. Aldrich testified he authorized her to administer the Thiamine [R. 976]. Third, Dr. Aldrich could have explained why he generated a detailed report on Seth prior to his leaving the community. [R. 894] He was cross-examined on his memory.[R. 915].

 

Loss of Witnesses. Several important witnesses were unavailable due to the delay. First, the person who performed the original drug screen test for caffeine on Tegan Davis would have been available to testify as to whether the test would have been specific for a "PPA" or not and further tests for "PPA" might have been performed if needed. Second, the actual technician who performed the C-Peptide test and the chain of custody at that institution would have been available in order to determine whether the sample had been mishandled and this significant development would not have been left to the speculation of Dr. Becker as to whether it was a proper test or not. Various witnesses would have been able to testify to the normality of the defendant's behavior, instead of relying on the skewered testimony of the State's witnesses. The alleged affair between Dr. Aldrich and the defendant could have been rebutted as well as the allegations involving missing letters by witnesses other than the defendant and her alleged paramour. Had this evidence been available, the improper reference to the affair would have appeared less damaging. Dr. McKenzie could have testified as to whether Gary Davis was on rotation or with his wife.

 

Loss of Evidence. First, Dr. Becker, a state expert, testified that the insulin level that was in Seth, was the highest she had ever seen.20 This damaging testimony would certainly have been subject to substantial medical challenge. Had there not been a fourteen year delay the labs protocol and method for C-Peptide test conducted under Dr. Becker's supervision would have been available for review. Likewise, the initial sample of Seth Davis for testing of insulin would have been available. Second, the delay impaired the defendant's ability to present relevant psychiatric testimony to rebut the alleged mental disorder of Munchausen by Proxy in 1981 and 1982. When the state of mind or mental status is one of the key elements of the crime, it places an unfair burden upon the defendant as years passed to establish what the state of mind was when the alleged crime occurred. The appropriate demeanor of the defendant would not be left to the guesswork of lay witnesses and the jury. The failure to visit Seth after several years couldn't be raised. Fourth, because of the delay the defendant could not prove the unavailability of mail ordered caffeine capsules that would leave the suggested residue. There is but one company that the defense could find that even made a timed-released caffeine capsule in 1982. That company's mail order list would have been available to determine whether an order had been made from the defendant. This was not the Thompson's Pharmaceutical alluded to by Trooper Spradlin. Thompson did make Dexatrim, but not caffeine capsules. Fifth, the defendant was prejudiced by the very loss of the State's records of their own initial investigation. Pittsburgh Children's Hospital records show that they sent Trooper Childers information on Munchausen by Proxy in 1982 which would have indicated that the State knew full well of Munchausen by Proxy at least fifteen years before the trial. Trooper Childer's testimony was that he could not remember whether the information was sent or not. Incidentally, Munchausen by Proxy Syndrome does not apply to a murder case because death is not the intent of the perpetrator.

 

Closing Argument. On the issue of mercy, the State argued that the defendant should not be given mercy because she had fifteen (I 5) years of mercy due to the State's inertia. [R. 1716]. In addition to being facetious. this argument uses a delay caused by the State's to the defendant's detriment for sentencing purposes. Obviously, the State should not be permitted to benefit from its own wrongdoing. In conclusion, the prosecution chose to call to a halt its investigation of the defendant in 1985. No evidence was offered at the hearing or trial to explain the State's reasons for doing so. The only justification offer a single fact that was not already available to the prosecution upon reasonable diligence in 1981 and 1982. Indeed, the reasons offered do not apply to the homicide case against Tegan Davis except for Munchausen by Proxy, which was not offered as a diagnosis but only as a motive. Clearly, if this Court is to perform a balancing test, the vast amount of prejudice, actual and presumed, counsels in favor of the defendant on this issue. This case falls squarely within the ruling in Hey: "A five-year delay might cause no such clear-cut loss, but misrecollections and forgetfulness are equally as damaging. If a five-year delay were caused by police or prosectitional inertia, prosecution should be barred... " Hey, 296 S.E. 2d. at 398 (Emphasis added).

In West Virginia, once the defendant has shown prejudice there is no additional requirement that the defendant must also prove improper prosecutional motive before securing a due process violation. Indeed, the Fourth Circuit Court of Appeals agrees. In Howell v. Barker, 904 F. 2d. 889 (4th Cir. 1990), the Court stated:

[Requiring proof of improper prosecutorial motive] would mean that no matter how egregious the prejudice to a defendant, and no matter how long the pre-indictment delay, if a defendant cannot prove improper prosecutorial motive, then no due process violation has occurred. his conclusion, on its face, would violate fundamental conceptions of justice, as well as the community's sense of fair play. Moreover, this conclusion does not contemplate the difficulty defendants either have encountered or will encounter in attempting to prove improper prosecutorial motive.

904 F. 2d. at 895. In Howell, the Court held that a twenty-five month delay in serving the defendant with an arrest warrant constitutes an unconstitutional pre-indictment delay. Whether the excessive delay and the resulting prejudice was by design, negligence or inertia, it is the responsibility of the prosecution. Nor does the fact that the delay was caused by the previous prosecutors give rise to an excusable justification. "The prosecutor's office is an entity and as such it is the spokesman for the Government." Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L. Ed. 2d 104 (1972).

 

C.

FAILURE TO INSTRUCT ON MALICE IS REVERSIBLE ERROR

The lower court committed reversible error by constructively amending the indictment and by failing to instruct the jury on all essential elements of the offense of first degree murder. The indictment against Marybeth Davis reads as follows:

"The Grand Jury in the State of West Virginia, in and for the body and the County of Greenbrier, upon their oaths present, that on March 7, 1982 through March 10, 1982 in the said County of Greenbrier, Marybeth Davis did unlawfully, feloniously, willfully, maliciously, knowingly, deliberately and intentionally did kill and murder by poison to-wit: a lethal dose of caffeine, one Tegan Marie Davis age three against the peace and dignity of the State of West Virginia and in violation of West Virginia Code 61-2-l."

The trial court ruled that a killing by poison did not require proof of the usual and traditional elements of first degree murder.21 The charge delivered by the trial court did not include such elements as "feloniously", "maliciously", "knowingly", "deliberately", or "premeditatedly." Thus, the instruction changes the language of the indictment from "feloniously" to "unlawful", adds "Intentionally", and omits "maliciously" and "deliberately murder." In another portion of the charge, the Court instructed the jury that according to West Virginia law, murder in the first degree is committed when "one person kills another by unlawfully, willfully, and intentionally administering poison to that person." Because of these changes, the defendant contends that, the Court committed constitutional error as matter of law by failing to instruct on an essential element of the offense,22 and by making a substantial, constructive amendment to the indictment in violation of the "Grand Jury" Clause embodied in Article 3, 4 of the West Virginia Constitution.

First, the trial court was obligated to instruct that "malice" must be proved beyond a reasonable doubt before a conviction of first degree murder by poison could be returned. It is axiomatic in the jurisprudence of this State that the distinguishing element between murder and manslaughter is "malice." See State vs. Hatfield 169 W.Va. 191, 286 S.E. 2d 402 (1982). Our cases have repeatedly made clear that malice expressed or implied is an essential element of murder of the first or second degree. See State vs. Starkey 161 W.Va. 5 17, 244 S.E. 2d 219 (1978). State ex-rel, Combs vs. Boles, 151 W.Va. 194, 151 S.E. 2d. 115(1966), State vs. Lewis, 133 W.Va. 584, 57 S.E. 513 (1949). West Virginia Code 61-2-1 [1991] states:

Murder by poisoning, lying in wait, imprisonment, starving, or by any willful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custody, or a felony offense of manufacturing or delivering a controlled substance as defined in Article 4 [ 6OA-4-401 er seq] chapter 60-a of this code, is murder in the first degree. All other murder is murder in the second degree.

This statute has been interpreted several times by this Court. In State v. Harper, 179 W.Va. 24, 365 S.E. 2d. 66 (1987), this Court gave the following construction of the statue:

In State v. Abott, 8 W.Va. 741, 770-72 (1875), this Court recognized that the language "murder by poisoning, lying in wait, imprisonment, starving" does not require that premeditation or a specific intent to kill has been shown, but to elevate the homicide to first degree murder killing with malice must be proved and one of the four enumerated acts must be established.- "If it be proved that the killing was such character that under ordinary circumstances, it would have been murder at common law, and the fact of lying in wait exists, the fact will make it a case of murder in the first degree." Id. 8 W.Va. At. 770-71. See also State v. Sims, 162 W.Va. at 221-22, 248 S.E. 2d at 840." (Emphasis added).

179 W.Va at 27, 365 S.E. 2d. at 69. The construction given to the statute by this Court is supported by the national authorities. For example in Perkins and Boyce, Criminal Law, p. 129 (3rd Ed. 1982), the authorities state:

Such a statute, let it be emphasized, makes no attempt to define murder. "It has no application until a murder has been established........ This is peculiarly important in cases of death by poison. Homicide effected by means of poison, might be committed with malice aforethought or it might be committed without malice of forethought but under circumstances amounting to criminal negligence, or it might be committed without malice aforethought or such want of care to be denominated criminal negligence. In the latter event, it would be no crime at all, but excusable homicide. If the killing by poison was without malice aforethought but under circumstances amounting to criminal negligence, it is manslaughter at common law and hence, does not come within the terms of this statute at all but remains manslaughter.

Having established that malice is a necessary element to murder, the issue simply becomes whether it was reversible error not to give a "malice" instruction. There is a class of errors that cannot be reviewed for their harmlessness and one of the errors in that class is the failure to instruct on an element of the crime, if the jury never otherwise made the constitutionally required fmding.23 See State v. Wyatt, 198 W.Va 530, 483 S.E.2d 147 (1996); State v. Barker, 176 W.Va 553, 346 S.E.2d 344(1986); United States v. Aramony, 88 F.3d 1369, 1387 (4th Cir. 1996). Under West Virginia law, if it can be shown from the instruction as a whole that the instruction on malice or it functional equivalent was given in other parts of the charge, the "instruction as a whole doctrine" allows the court to treat the error as harmless or no error at all. See State v. Martin, 177 W.Va. 758, 356 S.E. 2d 629 (1987).

To be certain that there was no instruction given on "malice." In reviewing the instruction as whole, the only language that could possibly be considered as the equivalent of malice instruction is the following part of the first degree murder instruction: "and at the time of administering the poison the defendant had the intent to kill or do serious bodily injury or did so because her conduct evinced a "depraved heart." The problem with this instruction is obvious. The instruction presents alternative ways for the jury to find the requisite state of mind. Merely having an intent to kill or an intent to do serious bodily harm would not necessarily constitute second degree murder. Again, the chief distinction between murder and manslaughter is malice and not the intent to kill. State v. Kirtley, 162 W.Va. 126, 128, S.E. (1942) (suggesting the murder requires malice: "[I]f in such the death of the aggressor results, even if intentional, it cannot be traced to a malignant heart..." citing State v. Galford, 87, W.Va. 358, 105 S.E. 237 (19 ); United States v. Croft, 124 F. 3d. 1109(9th Cir. 1997) (suggesting both "malice aforethought" and "intent to kill" must be found by the jury). In State v. Douglas, 28 W.Va. 297, 299 (1886), this Court stated:

"... [t]he source of which said malice is not only confined to a particular 'II will to the deceased, but is intended to denote ... an action flowing from a wicked and corrupt motive, a thing done malo animo. where the fact has been attended with such circumstances as carry in them plain indication of a heart regardless of social duty and fatally bent on mischief."

In State v. Hamrick, 74 W.Va. 145, 81 S.E. 703 (1914), this Court discusses a similar situation:

Of instruction number seven (7), it is said that among other things, it told the jury that if the killing "is done willfully, deliberately and premeditatedly but without malice, it is murder in the second degree." This is error of course, for killing without malice expresses or implied is not murder, and if the defendant had been found guilty of murder in the second degree, the judgment would have been reversed..."

(74 W.Va. at 147,@81 S.E. at ) The interesting point raised by the discussion in Hamrick is that terms such as "willful" or "deliberately and premeditatedly" were not considered an adequate substitute for a malice instruction. The case at hand is another example of that genre. It is obvious that terms such as "intent to kill" or "intent to inflict serious bodily harm" are also not sufficient. While the reference to a "depraved heart" gets closer to the concept of malice,24 the context in which it is stated is not enough to inform the jury of its responsibility. But, even if it is considered legally sufficient by this Court, the lower court gave the jury alternate theories only one of which included "a depraved heart." By instructing in the disjunctive, the lower court deprived the jury from being required to make this critical and essential finding.

When a trial court submits a case to the jury on two or more alternate theories, one of which is the subject of an erroneous instruction, there can be no finding of harmless error. Under these circumstances, the determination of whether the error was harmless is guided by Yates v. United States, 354 U.S. 298, 31 I12, 77 S. Ct. 1064, 1072-73, 1 L Ed. 2d. 1356 (1957). Under Yates, reversal is required when a case is submitted to a jury on two or more alternate theories, one of which is legal [as opposed to factually] inadequate, the jury returns a general verdict, and it is impossible to discern the basis on which the jury actually rested its verdict. See Yates, 354 U.S. at 311-12, 77 S Ct. at 1072-73; see also Griffin v. United States, 502 U.S. 46, 52, 112 S. Ct. 466, 470-71, 116 L Ed. 2d. 371 (1991). When it cannot be determined that the conviction rested entirely on a legally adequate ground, it is then impossible to say that the error in submitting the legally inadequate ground to the jury was harmless beyond a reasonable doubt. In applying Yates, a reviewing court must attempt to ascertain what evidence the jury reasonably credited in order to convict the defendant under the instructions given. Because of the substantial reliance by the State on the Munchausen by Proxy motive, it is more than probable that the jury found only an intent to do serious bodily harm. Thus. under Hamrick, the instructions were insufficient to cover the concept of malice.

The error arising from the failure to instruct on malice is compounded by the trial court's confusing instructions on intent. The instructions by the court told the jury that there were two intents that were essential, i.e., the intent to poison and the intent to kill or do serious bodily injury or that she did so because her conduct evinced a depraved heart. The court next instructed the jury that as far as intent is concerned that they could "infer as matter of fact that a person intended to do what she does and that she intends to do that which is the natural or probable consequence of her act." The court then concluded the instruction that "[Therefore, the court instructs the jury that intent may be inferred by the jury from all the facts and circumstances of this case." A fair analysis of the instruction would indicate that the court told the jury that if a certain result happened then the defendant intended it and because the defendant intended it, she is guilty of first degree murder. First, the instruction is in violation of State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994). The lesson of Jenkins is that an instruction telling the jury that intent may be inferred from the mere circumstance of the use of a deadly weapon must be rationally based on facts of the case and where those facts suggest otherwise, the instruction is erroneous and should not be given. There are no facts that would rationally support an intent to kill or an intent to do serious bodily injury.25 Second, the instruction and its logic is nonsensical but more importantly, this instruction cannot possibly serve as an adequate substitute for "malice." "Failure to afford a criminal defendant the fundamental right to have the jury instructed on all essential elements of the offense charged has been recognized as plain error." State v. Barker, 176 W.Va. 553, 558, 346 S.E. 2d. 344, 349 (1986).

Secondly, there is the problem that the judge constructively amended the indictment by failing to instruct on malice. As suggested earlier, the. indictment alleged malice and that the element was of course eliminated from the trial Judge's charge to the jury. There is a per se rule prohibiting a judge from making substantive amendments to an indictment. See State v. Adams, 195 W.Va. 277, 456 S.E.2d 4 (1995). Under Adams. an amendment is prohibited if it is prejudicial, changes the offense or constitutes a substantive change to the indictment. This general rule in this and other jurisdictions, is that a constructive amendment occurs when the charging terms of the indictment are altered, either literally or in effect, by the prosecution or court after the grand jury has last passed upon them. This rule prevents a person from being tried for a crime other than the one for which he or she was indicted contrary to Article 3, 5 of the West Virginia Constitution.26 In State v. Blankenship, 198 W.Va. 290, 480 S.E. 178 (1996), this Court in Syllabus Point I stated: "An instruction which informs the jury that it can return a verdict of guilty of a crime charged in the indictment by finding that the defendant committed acts constituting a crime not charged in the indictment is reversible error." Here. the constructive amendment occurred when the charging terms to the jury did not include as a necessary element of murder the concept of malice.

 

D.

FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSES IS REVERSIBLE ERROR

The failure of the lower court to instruct on lesser included offenses requires that the first-degree murder conviction be reversed. The trial court presented to the jury only two choices in reference to the murder charge - first degree murder or not guilty. The State's case, when reduced to its analytical essence, is that the defendant had control over the deceased victim at the time she became ill and died by a lethal dose of caffeine. Assuming the facts as alleged by the prosecution are true, there is more than a possibility that the legal consequence of defendant's actions was something less than murder. Indeed, it is clear that in West Virginia not every homicide is murder. See State ex rel Combs v. Boles, 151 W.Va. 194, 151 S.E.2d 115 (1966).

The law that has evolved for the last one hundred and fifty years is that if a lesser-included offense instruction is appropriate, the defendant is entitled to have it given. See State v. Stalnaker, 167 W.Va. 225, 279 S.E.2d 416 (198 1); State v. Goff, - W.Va. -, 221 S.E.2d 891 (1976). Generally, a lesser charge is proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses. In other words, the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. See State v. Horton, 170 W.Va. 395 , 294 S.E.2d 248 (1982); State v. Lotik, 169 W.Va. 24, 285 S.E.2d 432 (1981).

The State's theory of the case was that defendant was the common but primary caretaker when two of her children were allegedly poisoned. The State had no evidence to show how, when, where, or with what instrumentality the defendant acted. The State contended that Seth's high insulin levels on admission to Pittsburgh Children's Hospital and a zero C-Peptide reading on a sample frozen and thawed numerous times, indicated that he 'was most likely injected by the defendant with exogenous insulin. On Tegan, the State contended that the child was administered time-released caffeine over a several day period, which overcame the body's natural response to vomit excessive caffeine. Presumably, the child reached a lethal level of caffeine and then excreted the caffeine to the toxic level found in her stomach fluids and the trace amounts found in her tissue. Of course, the State had no direct evidence to prove that the defendant gave either of these children the drugs as suggested. To prove her motive, the State introduced evidence that the defendant met the profile of Munchausen by Proxy, a mental disorder in which a person, usually the mother, attempts to gain sympathy by injuring her child. Because of the verdict, it seems apparent that the jury agreed. Munchausen by Proxy has a substantial limitation to it as a motive for criminal action. When properly applied it means that a parent will cause a child to become sick so as to gain sympathy for the mother. As suggested at trial, it is not a reason or motive to commit "murder." Assume that the defendant did administer these drugs merely to cause a sickness, but not to kill. A jury could very well find that there was no malice or intent to kill. Still, the defendant could be convicted of a homicide but not murder. Therefore, the State's own evidence justified the giving of the lesser-included manslaughter verdict.27 The same evidential base that supported the giving of a murder instruction also creates the same support for a manslaughter instruction.

Based on the evidence in the record, the jury could plausibly convict the defendant on involuntary manslaughter and acquit her of all higher offenses. Instead, the jury faced an all or nothing dilemma, acquit or convict on the only instructed charge, first degree murder. The United States Supreme Court explicitly recognized this danger of placing a jury in this equivocal position in Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993. 1997-1998, 36 L.Ed.2d 844 (1973). Although discussing the construction of the Major Crimes Act (now 18 U.S.C. 1155, 3242), the Court stated in reference to the criminal defendant's claim to a lesser included offense instruction:

True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged. and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction -- in this context or any other -- precisely because lie should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubt in favor of conviction. [Emphasis in original.]

Significantly, in its discussion of the lesser included offense doctrine, the Court stressed a jury's rational approach to an offense based upon the evidence stating:

Although the lesser included offense doctrine developed at common law to assist the prosecution in cases where the evidence failed to establish some element of the offense originally charged, it is now beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater. (Emphasis added) (footnote omitted).

The State's case is entirely circumstantial. There is no evidence of how the so called lethal dose of caffeine was introduced into the victim's body. The element differing the crimes, murder and manslaughter, is malice and, if the jury makes no affirmatively finding as to malice, it may consistently find the defendant innocent of the greater and guilty of the lesser included offense. Indeed, the classic test to warrant a refusal to submit lower degrees or included crimes is that "every possible hypothesis" but the higher crime be excluded (Cardoza, Ch. J., People v. Moran, 246 N.Y. 100, 103, 158 N.E. 35, 36). Murder simply is not the only permissible conclusion to be drawn from these facts. It has been repeatedly written that, if upon any view of the facts, a defendant could properly be found guilty of lesser degree of an included offense, the trial court must submit such lower offense. And it does not matter how strongly the evidence points towards guilt of the crime charged in the indictment, or how unreasonable it would be, as a court may appraise the weight of the evidence, to acquit of that crime and convict of the less serious. Consequently, although originally intended merely to prevent the prosecution from failing where some element of the crime charged was not made out, the doctrine of lesser-included instructions, given expression in West Virginia jurisprudence redounds to the benefit of the defendant as well.

 

PROSECUTOR'S OPENING AND CLOSING ARGUMENT CONSTITUTED MISCONDUCT

Most courts have employed a two-pronged test for determining whether a prosecutor's misconduct in closing argument ... so affected the trial with unfairness as to make the resulting conviction a denial of due process."' Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464,2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeCliristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974).28 Specifically, the defendant must show [1] that the prosecutor's remarks were improper and [21 that the prejudicially affected the defendant's substantial rights so as to deprive her of a fair trial. See State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995); State v. Suggs, 193 W.Va. 388, 456 S.E.2d 469 (1995).

We turn first to whether the opening statement of the prosecution was improper when he stated that "This is a case about the poisoning of a healthy perfectly beautiful little ten week old boy. And this is a case about an evil mother. That is what this case is all about. "(Emphasis added). [R.85].29 The prosecution in Its final part of the opening statement attempted to explain the reason for the protracted delay in bringing this case to trial: "The lawmakers in this state have determined that certain crimes are so serious that there is no statute of limitations, and you can prosecute people for violating the laws at any time. This is one of them .... The only crime worst than murder in the first degree is murder in the first degree by a mother of her own child...... [R. 106] He theta stated that "A mother is like God to a little child. And this woman betrayed that trust. She betrayed that love. She deserves no mercy. She's been free for 15 (fifteen) years while Seth has lingered in the nursing home and Tegan has been dead. She's guilty. She deserves no mercy......

 

Perhaps the most damaging part of the opening statement concerned an alleged affair the defendant was having with one of the expert witnesses, Dr. Aldrich: "And there is more evidence, ladies and gentlemen. There is evidence that involves the pediatrician, Dr. Aldrich. We are going to bring in people that are going to testify that there was something between the defendant and Dr. Aldrich. They are going to say she had a hold on him somehow. We don't know exactly how, what it was. Were they having an affair? We don't know. The testimony is going to be that she had a hold on him." [R. 101]. The prosecution goes on to suggest that the affair may have been the reason that Dr. Aldrich failed to take adequate medical care of the deceased child.

The opening statement in its cumulative form constitutes plain and reversible error. Although the defendant did not object to these prejudicial comments made by the prosecution, this Court is being asked to review the errors under the plain error rule.30 In Syllabus Point 7 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 1 14 (1995), this Court stated: "ft]o trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affect substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the Judicial proceedings." Further explication of the plain error rule came in State v. Marple, 197 W.Va. 47,475 S.E.2d 47 (1996):

Plain error creates a limited exception to the general forfeiture policy pronounced in rule 103(a)(1) of the West Virginia Rules of Evidence in that where a circuit court's error lessens or destroys one's faith in the judicial process, an appellate court has discretion to correct error despite the defendant's failure to object. This salutary and protective device recognizes that in a criminal case, where defendant's liberty interest is at stake, the rule of forfeiture should bend slightly, if necessary to prevent grave injustice.

197 W.Va. at 52, 475 S.E.2d at 52. This opening statement is a perfect fit for plain error review. First, referring to the defendant as an "evil woman" is clear error. ABA Standards 3-5.8 reads as follows: "The prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant." In the case of State v. Moss, 180 W.Va. 363, 376 S.E.2d 569 (I 988) the Court said, "The trial court in the prosecution for First Degree Murder committed plain and reversible error by failing to intervene in prosecutor's closing argument which expressed personal opinion as to the credibility as to the State's witnesses, characterized and depicted a psychopath with a diseased criminal mind." Significantly, Moss was based on a plain error review. The comments made by the prosecutor in Moss are indistinguishable from the one made in the case sub judice.31

Secondly, the prosecutor is both disingenuous and misleading when he discusses the statute of limitation. He suggests that only special crimes such as this one are not affected by the statute of limitations. .The truth is there are no statutes of limitations in felony cases in West Virginia. He also suggests erroneously that the crime committed here is a special kind of first-edge murder case because a mother is the defendant and a child is the victim. Again, this statement is misleading. Similarly, the prosecution argues that the defendant deserves no mercy because she has bad fifteen years of mercy caused by the delay in initiating this prosecution. This comment, like the ones dealing with how the defendant betrayed her "trust" and "love" are not appropriate comments for opening statement. See State v. Smith, 190 W.Va. 374, 438 S.E.2d 554 (1993).

Finally, the most egregious errors of all are the reference made by the prosecution to the possibility of an "affair" between the defendant and Dr. Aldrich and the comments of the defendant's right to remain silent. 'the prosecutor knew at the time he made the statement concerning the affair that he had no evidence to back it up.32 By going beyond his provable evidence, the prosecutor "'violated a fundamental rule, known to every lawyer, that argument is limited to the facts in evidence.’ " United States v. Wilson. 135 F.3d 291, 298 (4th Cir. 1998) (quoting United States ex rel Shaw v. De Roberts, 755 F.2d 1279, 1281 (7th Cir. 1985).33

After making the above statement regarding an affair, the prosecution made other insinuations concerning the relationship of the defendant and Dr. Aldrich. While examining Teresa Ann Spencer, the prosecution developed the following:

Q. Did you observe the interaction between the defendant and Dr. Aldrich during the time you worked on the pediatric floor?

A. Yes.

Q. Would you describe their relationship to the jury?

A. they were close. She called him by his first name. Called him at home a lot you know. She would tell us that she called him for different things she needed.

Q. Was it unusual for a nurse to call a doctor by his first name.?

A. No, it's not [R. 401-02]

Not being pleased with the answers he received from the first witness, the prosecution propounded the following questions to Carol Beckett:

Q. Did you ever observe the relationship between Dr. Aldrich and the defendant?

A. I know they talked to each other on the phone a lot because I took the calls and would have them transferred, primarily at nighttime.

Q. You worked the night shift, is that right?

A. Not always. But I did work - I worked all three shifts.

Q. Did you think that unusual in any ways?

A. I did. Because I knew her husband was on rotation when the calls were coming in. I also used to wonder who was taking care of the children at nighttime.

Q. When you say her husband was on rotation, do you mean out of town, in town, did you know?

A. Out of town. But usually - I can remember, usually, after an incident, like if Seth got sick, she would always want somebody to call Gary, get him home, always want somebody to call Gary, get him home, get him home.

Q. Did that happy (sic) often?

A. I don't think that happened often. But I can remember that happening. [R. 495]

 

Finally, after all the sound and fury, the prosecution concedes in an in camera hearing "[w]e've never alleged she was having an affair." [R. 589] Although the prosecution did not directly allege an affair, he strongly suggested it. Thus, the defendant had her character viciously attacked by insinuation.34 Insinuation exacerbates the prejudice. First, because the prosecution offers no real evidence to support his insinuation, there is no real opportunity to rebut or discredit the insinuation except by a blanket denial by the defendant. Second. the jury was never told of this concession by the prosecution. To the contrary, judging from the verdict, it is probable that the 'jury felt the prosecution knew more than he had introduced. In any event, the insinuation was error and it was never corrected of record. It is axiomatic where the prosecutor's comments are repeated and particularly inflammatory, a reversal is required notwithstanding the presence of other factors that would ordinarily weigh heavily in the other direction (e.g., the lack of defense objection). See Gershman, 13.2(b), supra.

The prosecution commits error by commenting on the defendant's right to remain silent and she has no obligation to prove anything during the trial:

 

The Defendant - I will get into the burden of proof in a minute. The defendant doesn't have to prove anything. She can sit there through the course of this trial Her lawyer can sit there and not say a word. Not utter one peep. Not offer any evidence, any witnesses, and you still have to find her not guilty if we don't prove our case. [R.87]

Again, it is basic that a prosecutor during opening statement can mention only facts he in good faith expects to prove with admissible evidence. It follows, then, that the prosecution cannot anticipate and comment on the defense's case since he has no control over what the defendant will say or do. This prohibition is particularly in criminal cases. Because a defendant has a constitutional right to remain silent and not to present evidence, it is always improper for a prosecutor to mention the defense case. Here, the transgression of the prosecution crosses over into the constitutional area. See Grifjzn v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). What is clear about Griffin and its progeny is the defendant must pay no adverse price for exercising his right to remain silent. To protect this sacred right, courts have restricted comments by the prosecution on the defendant's right to be silent.

Turning to the closing argument, the prosecution took license to argue matters outside the record. First, the prosecution attempts to discredit Gary Davis, the husband of the defendant, by offering in argument a statement that was never introduced into evidence. Gary Davis had testified that he too had access to Seth Davis on September 30, the critical morning when the sickness occurred. Both the defendant and Gary Davis had testified that Gary was present with the defendant on this crucial date. In an effort to show an inconsistency, the prosecution stated Gary's statement to Sergeant Spradlin was inconsistent with his in-court testimony: "What Gary told Sergeant Spradlin was, 'I was on call with Dr. McKenzie, and I got a phone call from my wife around 10:30 or so in the morning, and I went home. And when I arrived at home, the child was seizing." [R. 1690]. The problem is the State never introduced into evidence the conversation between Dr. Aldrich and Trooper Spradlin. A prosecutor should have no doubt as to the impropriety of refer-ring to statements of witnesses that were not introduced into evidence. See B.Gershman, Prosectitonial Misconduct 10.6 (1988). Closing argument must be based on admitted evidence, reasonable inferences from that evidence, and matters of common knowledge. Therefore, mentioning missing, unadmitted, or inadmissible evidence is improper and objectionable, whether the fact or evidence mentioned is true or not does not matter. If the fact mentioned was not proved during trial by presenting evidence on that point, it does not "exist" as far as the jury is concerned since the jury should base its verdict only on the admitted evidence and the applicable law.

Secondly, the prosecution then suggested that the defendant was hiding evidence from the jury that was unfavorable to her case. Specifically, the prosecutor stated: "Where's the test that he had done for this genetic defect, this genetic disease? Did he test Gary? The defendant, Seth, bow about Gary Jr., the child that they had after Seth and Tegan? No tests." [R. 1703] Again the prosecution goes outside the record because genetic testing of Gary Richard Davis, Seth's brother, was never brought out or discussed in trial. Nor is there any evidence that would make this a reasonable inference.

Third, the prosecution in its closing argument stated: "And she gives Seth a little bit on the 28th, a little bit on the 29th, and a massive that does the job that she wanted on the 30th." 'Mere was absolutely no evidence that insulin had been administered on the 28th and 29th. Without some record support for this argument, it was both improper and illegal. Quite the contrary, the medical records prove that Seth's blood sugars were also normal on these dates, ruling out any insulin injection. [R. 780]

Fourth, the State argued that Dr. Scharman said the child was full of caffeine, a total distortion of the evidence. In addition, the State argued that PPA was not tested for in 1982. This was not only not supported by the evidence, it goes beyond the indictment.

That brings us to the second prong of the test - whether the defendant's substantial rights were prejudiced to the point of denying her a fair trial. Several factors are relevant: (1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive-. (3) absent the remarks, the strength of the prosecution's case; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.

Everything done above was deliberately made to mislead the jury or to prejudice the defendant. These are not isolated examples.35 They were cumulative in nature. See State v,. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977) (court finds cumulative effect of prosecutor's improper argument results in reversal). Repeatedly, it has been shown throughout this petition that the State's case was based on circumstantial evidence. Absent the insinuations and arguments 6f matters outside the record, the case for the State was extremely weak. And while the improper evidence did not add any probative proof to the case for the State, it definitely had the tendency to arouse passion and emotions against the defendant.

 

F.

KNOWING USE OF PERJURED TESTIMONY AND THE WITHHOLDING OF EXCULPATORY EVIDENCE:

Throughout the trial, the prosecution repeatedly made it known that, unlike the defense expert witnesses, the State's expert witnesses were receiving no remuneration for their services and testimony. As an example, Dr. Basil Zitelli, a State's expert witness, was asked "How much are we paying you today, Doctor? Answer: I am not receiving anything for this." (R. 275). In his opening statement, the prosecution made reference to the state's expert witnesses. After excepting only one of them, the prosecutor stated: 14 none of these physicians are charging us for their time to come down here, which is very rare." (R.96) Indeed, the prosecution's theme throughout the trial and in closing arguments was, compare our witnesses to "the paid people that the defendant brought in to tell you whatever story fit with the defendant after fifteen (I 5) years." R. 1756) The State further referred to defense witnesses as paid guns. The State deliberately misled the jury.36 The State provided not only for the five guests at the Greenbrier but also other witnesses by paying their accommodations, airfare and meals.

The prosecution failed to disclose that some of their witnesses were receiving various forms of gratuities as a result of their testimony:

1) Dr. Elizabeth Scharman, State Toxicologist was paid three hundred dollars ($300) per hour, twenty-seven hundred ($2700) for her morning's testimony.37

2) Dr. Becker received a private plane to the Greenbrier Hotel and free stay at the Greenbrier.

3) Dr. Sharon McGregor, a Greenbrier Hotel guest, air fare paid.

4) Dr. Zitelli, a Greenbrier Hotel guest, air fare paid, wine bills paid.

5) Nurse Foster, a Greenbrier Hotel guest.

6) Dr. Haddad, Greenbrier guest and private plane passenger. 38

The issue raised here is twofold. First, the prosecution misled the jury into believing that their expert witnesses were testifying as part of a moral duty with no benefits at all for their services. Obviously, this substantially bolstered their credibility. Second, after creating this false and misleading impression, the prosecution made no effort to set the record straight or to disclose the exculpatory evidence of the benefits they were receiving.39 Either of these alone is reversible error, and when combined the errors are overwhelming.

 

Without doubt, the Court in Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed.791 (1935), made clear that a deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with "rudimentary demands of 'justice." In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), the Court said, "[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." In Brady v. Maryland, 375 U.S. 83, 83 S.Ct. II 94, 1 0 L.Ed.2d 215 (1963), the Court reminded those who might have thought otherwise that due process is offended by the prosecutor who hides evidence in his possession which might be favorable to the defendant.40 Together with Napue, Brady certainly stands for the proposition that "suppression" of evidence, like connivance at known perjury, destroys a fair trial. To complete the spectrum, in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Court stated "[w]hen the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within the general rule."

There is no doubt that the evidence elicited and the statements made by the prosecution were misleading. If the prosecution had complied with the trial court's general order, the defense would have had the ammunition to refute the false suggestion of the prosecution. See State v. James, 186 W.Va. 1 73, 41 1 S.E.2d 692, (W.Va. 1991) (this Court acknowledges as the United States Supreme Court has done "[Impeachment evidence, however as well as exculpatory evidence, falls within the brady rule." See United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The prosecution was duty bound to erase or correct the problem and even if he contends that the statements or evidence were technically correct, this court should straight out reject such an argument:

 

We do not believe ... that the. prosecution's duty to disclose false testimony by one of its witnesses is to be narrowly and technically limited to those situations where the prosecutor knows that the witness is guilty of the crime of perjury. Regardless of the lack of intent to lie on the part of the witness, Giglio and Napue require that the prosecutor apprise the court when he knows that his witness is giving testimony that is substantially misleading. This is not to say that the prosecutor must play the role of defense counsel, and ferret out ambiguities in his witness's responses on cross-examination. However, when it should be obvious to the Government that the witness' answer, although made in good faith, is untrue, the government's obligation to correct that statement is as compelling as it is in a situation-where the Government knows that the witness is intentionally committing perjury.

 

United States v. Harris, 498 F.2d II 69 (3d Cir. 1974) (emphasis added). Again, Bagley suggests that the failure to disclose impeachment evidence is even more egregious than the failure to disclose exculpatory evidence. This so because the defense not having the impeachment evidence loses its opportunity to effectively confront and cross-examine the witness.

IN CONCLUSION

The State totally failed to show a crime was committed. The State could not explain how any insulin. or combination of insulins could reproduce the symptoms in Seth Davis. The State could not show how caffeine could be administered and not be vomited. The State could not produce a product name or manufacturer that produced a time-release caffeine capsule. Without a murder weapon to inflict the harm, or an explanation as to its use, Marybeth Davis is entitled to a directed verdict of acquittal.

One fact does stand out. Dr. Gary Davis, the father and a physician, stood by his wife. Dr. Joseph Aldrich, the Board Certified treating physician, stuck to his diagnosis of sixteen years. Dr. Lovinger and Willis, both Pediatric and Board Certified Endocrinologist, not only attributed the insulin in Seth to natural causes, they give an explanation as to Seth's symptoms then and now. The defense contends Seth Davis suffers from a defect, whether it falls under Leigh's Syndrome, Human Growth Hormone Deficiency, or a specific genetic defect makes no difference, it is a crime of nature and not man. Dr. Barry Wolfe, Pediatrician and Geneticist attempted to explain why both children, Tegan and Seth, as brother and sister could have the same genetic disease arrising from a liver defect. Dr. Jason Amar, the only Board Certified Hepatologist and Gastroenterologist, testified Tegan died of Reyes Syndrome, a liver disease. Dr. Shipe, Board Certified Toxicologist, testified Tegan did not die of caffeine poisoning. All of these witnesses agreed on one thing. No crime was committed. Their testimony is supported by the medical records, the institutions of Yale and University Departments of Genetics, and the pathology report.

When children suffer from such grave illnesses as these, it is easy to appeal to the petty passions of man. One wants to put the blame on something one can touch or comprehend. Science and medicine are like a God, very difficult to understand.

Children are born everyday with genetic- diseases. Their symptoms are hard to explain. Blaming a mother or father for a genetic defect is like burning a witch for the death of a cow.

The passage of time raised one question. How could a women commit such a terrible crime, rehabilitate herself, and then have raised two healthy children (Katie Beth, 13 and Gary Richard, 11)? Like many other questions, the State offers no answer. These children need their mother. The interests of justice demand Marybeth Davis be restored to her children as a free person.

 

 

Respectably submitted from Frank Cleckley.

 

Paul S. Detch

Co-Counsel for Appellate Process

Trial Counsel of Record

Lewisburg, WV

 

 

 

1 Dr. Becker in the course of her two court appearances testified at least 60 times that she couldn't remember the details of the records.

2 Natural insulin has C-Peptides, artificial insulin does not. C-Peptide degrades to zero on its' own.

3 Leigh's Syndrome is a rare, inherited, neurometabolic disorder. There appear to be several different types of genetically determined enzyme defects that can be labeled as Leigh’s Syndrome. Symptoms are associated with progressive neurological deterioration and may include loss of appetite, generalized weakness, lack of muscle tone, and episodes of lactic acidosis, seizure activity and hypoglycemia (all symptoms that Seth displayed). The progressive deterioration leads to severe mental retardation. The symptoms are similar to Human Growth Hormone Deficiency. Leigh's Syndrome embodies a number of diagnoses of deterioration of the brain. Once a specific cause of the syndrome is identified, then it is no longer referred to as Leigh’s Syndrome, but is referred to by the particular metabolic disorder that has been diagnosed such as Human Growth Hormone Deficiency or whatever specific diagnosis is made. New and more accurate tests have been developed since 1981 and the definition of Leigh's Syndrome has narrowed, and the genetics possibilities broadened. Leigh's Syndrome was the "working diagnosis" on Seth for fourteen (14) years. No physician has ever said Seth does not have Leigh's Syndrome. Even Dr. Becker concedes she can not rule out Leigh's Syndrome. [Aug. R.57].

4 Dr. Becker mistakenly testified the human growth lion-none tests were returned quickly. [Aug., R. 70]

5 Pyruvate carboxylase deficiency, Pyruvate dehydrogenase deficiency several types, Phosphoenolpyruvate carboxykinase deficiency, Biotidase deficiency, 3-hyroxy-3-methylglutaric acidemia, 3-methyglutaconic aciduria, Non-ketotic hypoglycemia, Medium chain acyl-CoA dehydorgenase deficiency, Long chain acyl-CoA dehydrogenase deficiency, Short chain acyl-CoA dehydrogenase deficiency, Glutaric aciduria type II, Ethylmalonic-adipic acidemia, Mitochondrial oxidative phosphorylation defects (multiple disorders, including mitochondrial gene defects, Fructose 1,6-diphosphatase deficiency, Frutose 1-phosphate aldolase b deficiency, Lysomal acid phosphatase deficiency, Fumarase deficiency.

8 To have affected the sample, the sample would have had to be drawn either from the exact site the IV was running or immediately down stream from it, so the sample would be recording the sugar from the IV and not Seth's blood. If the sample was taken from another site from where the IV was running it would be accurate because sugar from the IV diffuses throughout the body. It must be remembered that this was only a maintenance IV, with very little glucose (sugar), started only to keep access to a vein open.

7 The comments of the trial court reflects a fundamental misunderstanding of the medical issue involved in this case and of the Rules of Evidence. It was not necessary for the geneticist to reduce his findings to a specific genetic disease. Had the lower court not intervened, the witness would have explained that the symptoms of Seth were consistent with several diseases and none of them was more or less prevalent than the other. The significance of his testimony was that it refuted the conclusion reached by the State's witnesses in that the symptoms found in Seth were the result of natural causes. Also, the West Virginia Rules of Evidence do not require that an expert witness qualify his or her testimony to a reasonable degree of medical certainty. To the contrary, to be admissible under Rule 702, the testimony merely needs to be reliable and helpful to the jury. See Gentry v.Mangumi, 195 W.Va. 512, 520 n.5, 466 S.E.2d 171, 179 n.5 (1995) ("counsel is no longer required under Rule 702 to ask a witness whether his or her opinion is given under the " to a reasonable degree of medical certainty" standard) . [R. 1329]

10 Hyperglycemia (high blood sugar) was offered as a reason to exclude Reye's syndrome [R. 539].

11 Although this was the diagnosis of the treating physician and pathologist report in 1982, the prosecuting attorney did not even know Reyes Syndrome is a liver disease. [R. 1520). The State never called a liver specialist to rebut Dr. Amar.

12 In Marion, the Supreme Court stated that the Due Process Clause of the Fifth Amendment affords limited protection against pre-indictment delay, and would require dismissal if it were shown that the pre-indictment delay: (1) caused substantial prejudice to the defendant's right to a fair trial, and (2) that the delay was an intentional device to gain tactical advantage over the accused. See Marion, 404 U.S. at 324, 92 S Ct. 2044, 2049, 52 L. Ed. 2d 752 (1977). Lovasco requires courts to determine whether the defendant has suffered actual substantial prejudice due to the pre-indictment delay; and to consider the prosecutor's reasons for the delay and whether the length of the delay, when balanced a-against the reasons for delay, "violates those fundamental conceptions of justice which lie at the base Of Our civil and political institutions."

13 Several of the West Virginia cases hold that the burden-shifting mechanism is not triggered where, although is a lengthy period of delay. Se State v. Carrico, supra; Hundley V. Ashworth, 181 W.Va. 379, 382, S.E. 2d. 486 (1995). Probably, these cases fit better under the balancing prong of Hey, as opposed to the prejudice prong. As this Court ruled in State V Petrice, 183 W.Va. 695, 700, 398 S.E. 2d 521, 526 (1990), although the delay of two and a half years is prima facie excessive, the State showed that there was a legitimate purpose justifying the delay. Thus, there was no need to dismiss the indictment. Nevertheless, the weight of West Virginia authority would make the delay in the case of subjudice prima facie excessive. See Leonard supra (holding the delay of eleven years is presumptively prejudicial); Bess supra (holding a delay of twenty months did not, by itself, require dismissal); State v. Simmons, 171 W.Va. 722, 301 S.E. 2d. 812 (1983) (holding a delay of seventeen months did not, by itself, require dismissal); State v. Bennett, 172 W.Va 123, 304 S.E. 2d. 28 (1983)(holding the delay of seven months did not by itself, require dismissal); State v. Allman, 177 W.Va. 365, 368, 352 S.E. 2d. 116, 119 (1986)(holding a delay of eleven months "was not so long as to be prima facie excessive"); State v. Petrice, 183 W.Va. 695, 700, 398 S.E. 2d 521, 526 (1990)(refusing to dismiss the indictment because although tile delay of two and one-half years is primafacie excessive, the State showed that the delay was not "a deliberate device to gain an advantage over" the defendant).

14 When the delay is not primafacie excessive, the defendant bears the burden of proving that the delay prejudiced her case. If the defendant clears this hurdle of establishing prejudice, the prosecution is required to come forward and prove its reasons for the delay. These reasons are then balanced against the defendant's prejudice to determine whether she has been denied due process.

15 The criminal investigation of this matter began in 1982 following the death of Tegan Davis based upon Dr. Hooper's autopsy findings of a residue that she described as being timed released diet pills. The investigation was conducted by Trooper J. W. Childers and the prosecuting attorney tile late Ralph Hayes. At the time of the trial, all of the records involving the investigation in 1982 were reported as being lost. The prosecuting attorney, Ralph Hayes, refused to present the case for indictment. The medical records reveal that the prosecution was aware of the theory of Munchausen by Proxy in 1982. There was no reported activity on the case from 1985 to 1995 [Motion Hearing, Exhibit 1,2,3].

In 1995 the authorities in Greenbrier County created a joint task for investigating child abuse cases. Even though the cases were thirteen and fourteen years old, the State reopened this matter, with Trooper Michael Spraldin as the investigating officer. The police contacted Dr. Gary Davis, husband of the accused, in the early part of 1996 and falsely informed him that they were investigating Dr. Joseph Aldrich, the attending physician for both Davis children, and for an event that took place in Toledo, Ohio. Believing that his wife was not the subject of investigation, Dr. Davis gave a statement that relied upon his fourteen (14) year memory and was mislead by Trooper Spraidin into thinking that lie was talking about another event. Dr. Davis gave a statement that can be interpreted that lie was not with the defendant on the 29th or 30th of September, 1981. A reading of the transcript of the phone conversation reveals, however, that the officer purposely mislead Dr. Davis into believing that lie was discussing an event that happened the previous week. Dr. Davis recanted the statement at trial.

16 There is no evidence that Marybeth Davis, the defendant, constituted a new threat to society of which her past conduct needed to be investigated or that a "new fact" was discovered, such as a body being found or a key witnesses being located.

17 Thus, the only new matter on the Tegan Davis allegations, is that the Munchausen by Proxy Syndrome became included in various general textbooks six years before the indictment. It is still not adopted by the American Psychiatric Association or other learned societies as being capable of a medical or psychiatric diagnoses. These societies do not diagnose Munchausen by Proxy unless, there is a direct analysis of the party believed to be suffering from it. All that the State offered it for was establishing a suggestion of motive. "The affirmation or-the negation of motive, may be evidentially helpful but it is not, like malice or intent, an essential element." State v. Koontz, 117 W.Va. 35, 42 S.E. 2d (1936). Motive, of course is not an element of the crime and is not a fact. The problem with munchausen by Proxy is that, unless it is proven that the parent, in deed, harmed the child, no crime is committed. Further, Munchausen by Proxv, the intent by the parent is to do harm, not murder the infant. The State offers no explanation as to why a six year delay from the time Munchausen by Proxy appears in the textbooks to the time of the indictment is reasonable.

18 Only one of these reasons even applies to the alleged homicide Tegan Davis, Munchausen by Proxy Syndrome. The other two are limited entirely to Seth Davis. Defense Exhibits 1,2,3 Pretrial Motion p. 106 indicates that articles were to be sent to Childers by Children's Hospital of Pittsburgh on Munchausen by Proxy.

19 All three (3) Board Certified Pediatric Endocrinologists agreed that if, the blood draw was accurate and that Seth Davis had normal blood sugars on admission to Greenbrier Valley Hospital, there is no insulin that could have been injected and reproduced his symptoms. (R. 51, 1174, 1175, 1273 . See explanation above.

20 The defense contended Seth Davis suffered from Human Growth Hormone Deficiency as indicated by his short stature four foot, three inches and fifty-seven pounds at age sixteen and the 5.1 Human Growth Hormone Test at Pittsburgh Children's Hospital taken under ideal conditions of high insulin and high cortisol. Further testing was barred because of the fear that Seth Davis would not survive a similar stress test

21 To the contrary, the court limited its instruction on first degree murder that the State had to prove to the following: (1) "That on or about March 7-10, 1982; (2) in Greenbrier County, West Virginia (3) the defendant, Marybeth Davis; (4) unlawfully; (5) willfully and intentionally; (6) administered a poison; (7) to the victim, Tegan Marie Davis; (8) which resulted in the death of; (9) Tegan Marie Davis; (10) and at the time of administering poison the defendant had the intent to kill or do serious bodily injury because her conduct evinced a depraved heart."

22 There is little doubt that the giving of an erroneous instruction on an element of an offense is constitutional error. See United States v. Doherty, 867, F 2d. 47, 58 (lst Cir. 1989); See also Pope v. Illinois, 481 U.S. 497, 502-04, 107 S Ct. 1918, 1921-23, 95 L Ed. 2d. 439 (1987).

23 It is necessary to distinguish the type of instructional error complained of in this case. Here, tile error is one of noninstruction as oppose to one of misinstruction. Misinstruction occurs when the Court instructs on malice, but gives the jury the wrong standard to apply. See Johnson v. United States,- U.S. , 117 S Ct. 1544, 137 L Ed. 2d 718 (1977) (recognizing this distinction between misinstruction and non instruction). Johnson makes clear that error on misinstruction is subject to harmless error analysis. In this case, the error is one of noninstruction and it falls into the class of errors that cannot be found as harmless, irrespective or defendant's ability to establish prejudice.

24 The term "malice" is used in various ways, but the standard definitions normally emphasize that a definition that a defendant acted wrongfully with a wicked heart and without any justification, excuse, mitigation, mistake or accident. Several instructions approved by this and other courts contain language such as "malice" is a wrongful intent to kill or injure another and indicates a wicked or depraved spirit intent on wrongdoing. And a "wrongful" act is an unlawful act. In some measure the malice. requirement reverses the usual rubric, a person intends the consequence of his or her own act.

25 The use of "caffeine" as a murder weapon must raise some doubt. Caffeine is expelled from the body when it reaches even a toxic level. [R. 629, 1113]. Dr. Shipe, defense toxicologist, states it is impossible to even murder by caffeine over a period of time. [R. 1113].

26 The purpose underlying the rule against amendments, constructive to otherwise, include notice to the defendant of the charges he will face at trial, notice to the court that it may determine if the alluded facts are sufficient in law to support a conviction, prevention of further prosecution for the same offense, and finally of "paramount importance," the assurance that a group of citizens independent of prosecutors or law enforcement officials have reviewed ' the allegations and determined that the case is worthy of being presented to a jury for a determination of the defendant's guilt or innocence.

27 Of course, the defendant is familiar with the line of cases that suggest where the defendant denies that she was in anyway responsible for the death, a lesser-included instruction is not required. See State v. Gum 172 W.Va. 534, 309 S.E.2d 32 (1983); State v. Hardway, 182 W.Va. 1, 385 S.E.2d 62 (1989). The defendant does not challenge the logic or wisdom of these cases, but she does contend this limited holding is inapplicable where the evidentiary base for the lesser-included instruction comes from the State's proof. In other words, it is defendant's position that whether a lesser-included instruction should be given depends on the evidentiary support for it by looking at the whole record.

28 Although this standard is appropriate only for habeas cases, see Darden, supra ("the appropriate standard of review for such a claim on writ of habeas corpus is 'the narrow one of due process. and not the broad exercise of supervisory power"), the defendant believes she easily meets this higher standard.

29 For reasons not entirely clear from the record, the prosecution in its opening argument referred to the cast of prosecutors in the 0. J, Simpson case: "Okay, I know what you think. So what? So what? I got to do more than that, right? Marshe Clark and Chris Darden showed the (rapid, indiscernible diction) - to show you this defendant did it." It is clear that the prosecutor improperly sought to invoke emotions by referring to this infamous case. Any reference to the Simpson case was both improper and irrelevant.

30 The most obvious defect in the opening statement is that prosecution went far beyond the bounds of a fair opening statement and gave the equivalent of a closing argument. "The purpose of the opening statement is narrow and limited to a brief statement of the issues and an outline of what counsel believes he can support with competent and admissible evidence." A.B.A. Standards, The Prosecuting Function and the Defense Function, 119 (1971). The improprieties of the prosecutor are legion. Other examples: the State referred to a malpractice attorney for the hospital being in the courtroom [1005]. The State had Gary Davis criminally charged on the eve of trial for refusing to permit the State to videotape Seth until a search warrant was obtained. He was in Michigan talking to his mother in Pennsylvania, there was no West Virginia connection whatsoever. The State told Dr. Aldrich in a recorded telephone conversation the defense was going to accuse him of injecting insulin into Seth Davis [tape revealed and made a part of the record post trial].

31 Moss stands unequivocally for the proposition that where the prosecutor's comments are clearly excessive, but defense has not objected, it is the trial judge's duty, on his or her own initiative, to interrupt, admonish the offender and instruct the jury. See also United States v. Sawyer, 347 F.2d 372 (4"' Cir. 1965). (indicating agreement, notwithstanding recognition that defense silence may be due to a concern that an objection and curative instruction would serve to "focus [juror] attention on an aspect of the case unfairly prejudicial to his client").

32 Although this Court may evaluate improper statements during opening statement differently than those during closing argument, see State v. Hottinger, 194 W.Va. 716, 720, 461 S.E.2d 462, 466 (1995) (per curiam), that distinction is only applicable where the prosecution did not know or had no reason to know that the evidence would be unavailable at the evidentiary phase of the trial. The opening statement should not refer to particular evidence "unless there is a good faith and reasonable basis for believing that such evidence will be tendered and admitted in evidence." A.B.A. Standards 3-5.5. Thus, it is well established that a prosecutor should refi-ain from referring to questionable evidence that may poison the jury's mind against the defendant or cite items of highly questionable evidence. See United States v. Brockington, 849 F.2d 872 (4th Cir. 1988). In extraordinary cases such as this one, a prosecutor's opening remarks have been so inflammatory, or the judge's response so inadequate that appellate reversals have been granted. See LaFaye and Israel, 24.5(a).

33 ABA Standard 3-3.5 reads "A prosecutor should not allude to any evidence unless there is a good faith and reasonable basis for believing such evidence will be tendered and admitted into evidence."

34 Not only was her character attacked but also Dr. Joseph Aldrich, the treating pediatrician.

35 The State frequently went beyond propriety. Other examples are referring to a malpractice attorney being present in the Court Room [ 1 005], having Gary Davis criminally charged on the eve of the trial, and advising Dr. Aldrich prior to trial the defense was accusing him of injecting insulin into Seth Davis. [Aldrich tapes revealed post trial].

36 The State's witnesses were, in fact, being compensated and is discussed at length below. The State secreted their compensation to their witnesses and to date have still not made a full disclosure as to the compensation. The Charleston Gazette Newspaper revealed that five of the State's witnesses including Dr. Zitelli, were housed at the Greenbrier Hotel, and had received free air transportation. Two of the witnesses were ferried by a private airplane of which the private contributor contributed $2400. Dr. Zitelli had his airfare, room service and a $51.20 liquor bill paid by the County. They attempted to solicit moneys from other wealthy Lewisburg residents.

37 Dr. Elizabeth Schannan, State Toxicologist was paid three hundred dollars per hour for her testimony. She received twenty-seven hundred dollars ($2700) for her half days work which was compensated through the County Commission after trial. The State has never revealed the full amount that she was paid for her preparation time. This information was not provided by the prosecution as part of the trial court's general order.

Rather, the fee arrangement and payment was not discovered until after the trial, by the defense. When the matter was brought out during a post trial hearing, the prosecution acknowledged the payments.

38 The accommodation listed above were not provided equally to their other witnesses. Dr. Joseph Aldrich and Dr. Gary Davis who were subpoenaed by the State were provided only the statutorily allotted compensation. The State cannot argue that the guests at the Greenbrier were experts and that Dr. Aldrich and Dr. Davis were only fact witnesses. Two of the witnesses ]loused at the Greenbrier, Nurse Foster and Dr. McGregor were fact witnesses only. Nor does this explain why the State put five witnesses up at the Brier Inn motel and paid their transportation and meals on the prosecutor's personal credit card.

39 A conviction that is, in fact, the knowing use of perjured testimony in violation of the defendant's due Process Rights must be reversed if there is any reasonable likelihood that such false testimony could have effected the judgment of the jury. United States v. Espinozo, 641 F.2d 153, cert. (denied, 454 U.S. 841, 102 S.Ct. 153, 70 L.2d. 125, (1981).

40 The prosecution also violated the trial court's General Order 92-P-05 which provides for disclosure of certain matters without a formal request. Specifically, the order provides for the following mandatory disclosure: "Any material or information which tends to negate the guilt of the defendant as to the offense charged, which is exculpatory in nature and any [and] all inducements given to the witnesses for the State in exchange for their testimony at the defendant's trial." This order conforms to the rule announced in State v. James, 186 W.Va. 173, 411 S.E.2d 692 (1991), to the effect that "[t]he prosecution must disclose any and all inducements given to its witnesses in exchange for their testimony." 186 W.Va. at 175, 411 S.E.2d at 694. As stated in James, this evidence is crucial as impeachment evidence to show the bias or motive of the witness. Also, in this case, the evidence was necessary to rebut the impression created by the prosecution that his witnesses did not gain anything other than moral satisfaction for their testimony.

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