MARYBETH DAVIS

vs.

STATE OF WEST VIRGINIA

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.

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)].

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.

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.

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.

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.

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].

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].

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 3§10. 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.

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.

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 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.

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."

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.

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..."

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.

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).

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

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.

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.

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).

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]

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.

F.

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

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

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