# Vasquez, Richard > Court of Appeals of Texas · April 20, 2015 URL: https://www.frixlaw.com/law-library/cases/4044250 ## Case - **Court:** Court of Appeals of Texas - **Decided:** April 20, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4044250 ## Opinion text WR 59,201-03 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 4/20/2015 12:00:00 AM Accepted 4/20/2015 8:11:52 AM ABEL ACOSTA WR 59,201-03 CLERK RECEIVED COURT OF CRIMINAL APPEALS EX PARTE RICHARD VASQUEZ 4/20/2015 ABEL ACOSTA, CLERK *** IN THE DISTRICT COURT 148TH DISTRICT NUECES COUNTY, TEXAS Returnable to THE TEXAS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS *** STATE’S MOTION TO DISMISS AS ABUSIVE SUBSEQUENT 11.071 APPLICATION FOR WRIT OF HABEAS CORPUS AND TO DENY MOTION TO STAY EXECUTION Douglas K. Norman State Bar No. 15078900 Assistant District Attorney 105th Judicial District of Texas 901 Leopard, Room 206 Corpus Christi, Texas 78401 (361) 888-0410 (361) 888-0399 (fax) douglas.norman@co.nueces.tx.us Attorney for the State 1 WR-59,201-03 EX PARTE § IN THE DISTRICT COURT § § 148TH JUDICIAL DISTRICT § RICHARD VASQUEZ § NUECES COUNTY, TEXAS COMES NOW the State of Texas, by and through its Assistant District Attorney for the 105th Judicial District of Texas, and pursuant to Texas Code of Criminal Procedure arts. 11.071 and 11.073, files this motion to dismiss as abusive the present subsequent application for writ of habeas corpus and to deny the motion to stay execution. EXPLANATION FOR UNTIMELY PLEADING The State is cognizant of this Court’s “Miscellaneous Rule 11-003" pertaining to procedures in death penalty cases involving requests for stay of execution and related filings, and if it applies to responsive pleadings such as this motion to dismiss Applicant’s subsequent application for writ of habeas corpus, the State offers this explanation for filing its motion less than seven days before the date of Applicant’s execution: Applicant’s execution is scheduled for Thursday, April 23, 2015. Applicant did not file his motion for stay of execution and his subsequent application for post-conviction writ of habeas corpus until late in the 2 afternoon of Wednesday, April 15, 2015, the last day permitted for such filings pursuant to this Court’s “Miscellaneous Rule 11-003.” Consequently, it was impossible for the State to read and file a response to the 92-page application and exhibits attached thereto prior to the expiration of the deadline for a timely filing in this case. The State has worked diligently to prepare such response and is filing this, its motion to dismiss Applicant’s subsequent application for writ of habeas corpus as quickly as it can. The State prays that this Court deem such circumstances as good cause for the untimely filing of this motion, if in fact this motion is considered a “pleading requesting affirmative relief in an impending execution case” under Miscellaneous Rule 11-003, and if in fact that rule applies to responsive pleadings such as this motion to dismiss. STATEMENT OF FACTS The State relies on this Court’s own knowledge of the facts of the case as set forth in its opinion on the direct appeal. In addition, the State would point this court to the following testimony that it believes to be particularly relevant to the present claims being made. Deputy Constable Eric Giannamore, the first person to arrive at the scene, asked Vasquez what had happened. Vasquez replied that Miranda was 3 brushing her teeth in a hall bathroom and fell off a wooden stool, hitting her head. Giannamore testified, however, that there was no wooden stool in the area. (R.R. XXXIV - 19-21, 74-77; XLI - State's Exh. 37). Emergency medical technician Eugenio Rangel asked what had happened and Vasquez replied that Miranda had fallen off a stool in the bathroom while brushing her teeth. While Vasquez kind of pointed when he said this, Rangel never saw a stool in the area. (R.R. XXXV - 76-78, 83, 85, 101, 108). As the paramedics cut Miranda's clothes off and turned her in order to place her on a back board, noticeable bruising of various stages was apparent down her back, as well as on her legs and arms. Miranda also had a bump on the back of her head and bruising around her eyes. There was no sign of toothpaste in Miranda's mouth. (R.R. XXXIV - 21-22; XXXV - 78- 82, 85-87, 93-98, 101-102, 108-112; XLI - State's Exh. 37-39). Dr. Michael Burke, a pediatric neurosurgeon, testified that Miranda had multiple bruises on her body. (R.R. XXXV - 95; XXXVI - 69-89; XLII - State's Exh. 60-63; C.R. I - 38-39, 51-53, 56-61, 69-71, 156-158). Burke said that her subdural hematoma was caused by trauma to the head and that Miranda's brain injuries were the equivalent to those she would have sustained had she been ejected from a car traveling 65 m.p.h. Miranda's injuries were consistent with being struck multiple times in the head. Burke 4 said his final diagnosis was severe brain injury from child abuse. He described this as a massive injury and summarized Miranda's condition by saying, "This child got the living daylights beat out of her to the point that she quit breathing and there was nothing that could be done at that point." (R.R. XXXVI - 78-79, 87, 91-94). Dr. Burke used his car accident and Shaken Baby Syndrome comments only as analogies to attempt to explain the force of the direct impact injuries in the present case and the lack of external signs, and he never testified or implied that Miranda had been in a car accident or that she had Shaken Baby Syndrome. (R.R. XXXVI - 92- 93). Leann Box, a sexual assault nurse examiner (SANE) at the hospital, testified that Miranda had extensive bruising in various stages of healing all over her body--head, face, chest, pelvic region, genitalia area, ankle, thigh, shoulder, back, and arms--and described each of those bruises. (R.R. XXXV - 175-185, 208-211; XLI - State's Exh. 46-48; C.R. I - 23, 27, 75-83, 175). There were multiple abrasions and tears on her labia majora, fossa, labia minora, fourchette, perineum, and anal area. Many were oozing tears, which meant they were fresh enough that they had not begun to scab, which generally started to occur within a few hours of injury. One such injury would have probably bled a great deal. Because very little blood was present 5 in the area when the examination took place, Box assumed it had been cleaned up. (R.R. XXXV - 185-197, 205-208, 211-215; XLII - State's Exh. 49-57; C.R. I - 18-21, 42, 50, 54-55, 72). The bruising on Miranda's hips was very consistent with injuries that could be caused by being held from behind while being sexually assaulted. The injuries to Miranda's genital-anal area were not consistent with a straddle injury. Rather, they were extremely consistent with someone or something passing over the area below the anus, tearing the top of the skin, skidding over the anus, and ripping apart the skin at the perineum. In over 200 sexual assault examinations, this was the first time Box had seen a complete full thickness tear at the perineum. (R.R. XXXV - 177, 197-200). In his formal statement to the police, Vasquez said that he had repeatedly asked Miranda why she always acted scared of him. She kept saying she was not scared of him until Vasquez "got pissed off" and pushed her. When she still replied that she was not scared of him, Vasquez told her to stop lying and hit her in the head. She did not fall down because he was holding her with his other hand. He hit her several more times. She just looked at him and looked stunned. He told her to go out and play and she went downstairs and out of the house. About 30 minutes later, Vasquez called out to Miranda through the window and told her to come inside and 6 brush her teeth or she would not get to go to his sister's house. When she walked in, Miranda's head was down. She went to Vasquez's mother's room and got the stool she used when she brushed her teeth. As she started to carry it to the other bathroom, she fell down. Vasquez told her to get up and go brush her teeth. Miranda staggered into the bathroom and began to brush her teeth. Then Vasquez heard what sounded like the stool tipping over. He called Miranda but she did not answer. He went in the bathroom and saw her lying on her back on the floor. He hit Miranda because he had a lot of anger because he couldn't straighten his life out. He could have hit her more than three times. He just lost it. He was sorry for what he did to her. (R.R. XXXIV - 56-59; XLI - Sx8). Dr. Lloyd White, the Nueces County medical examiner who performed an autopsy on Miranda's body, noted bruising all over her body and head of various ages. (R.R. XXXVI - 23-33, 40, 49-50; XLII - State's Exh. 58-59). The damage to Miranda's genital region was typical of blunt trauma--pressure exerted to the area that caused scrapes of the skin and membranes and caused tears of those membranes. They could have been the result of being poked with an object. A penis could cause bruising, laceration, and fairly severe injuries in small children. (R.R. XXXVI - 39- 40, 53-54, 58). White said the cause of Miranda's death was blunt force 7 injuries of the head and brain with cocaine intoxication as a contributing factor. He ruled the manner of death to be homicide. White could not say how many blows Miranda received but there were at least 20-30 areas of contusion on her body, including evidence of perhaps dozens of impacts to all areas of her head--back, under the chin, front, either side, and top. The bruising around Miranda's eyes, ear, surrounding face, and scalp, which was edematous, was due to recent impact. He could also not say how hard she was struck except that it was hard enough to produce fatal injury. He said it was very unlikely that Miranda would die from falling off the stool. White was of the opinion that the bruises to Miranda's back and chest were not the result of resuscitation efforts. The bruises to Miranda's hips were consistent with her being restrained and sexually assaulted from behind. (R.R. XXXVI - 38-43, 55-57; XLI - State's Exh. 45; C.R. I - 31-36). Dr. White explained that most fatal falls require at least 10 to 15 feet in height, but conceded that “[f]alls from so-called ground level or falls from a very low level producing fatal injuries are very, very rare; although they do occur.” (R.R. XXXVI - 41-42). Dr. James Lukefahr, a pediatrician who devotes a large part of his practice to child abuse, testified that he had reviewed the medical records and photographs in the case, and was of the opinion that Miranda's injuries 8 were the result of a sexual assault. He discussed the various injuries to the genital-anal area, noting in particular the large penetrating injury into the perineal body. That injury was quite deep as evidenced by deeper tissues which were visible in the photographs and the fact that a doctor had had to repair it with sutures that were completely buried well beneath the surface of the skin. Lukefahr said that the injuries were not consistent with a straddle injury. The bruises on Miranda's hips were very unlikely to be accidental because they were localized in an area that would generally be well cushioned by clothing. Lukefahr opined that they were sustained during the sexual assault and were probably the result of being restrained during the time the really violent act of penetration was occurring in Miranda's anal area. The injuries were also unusually symmetrical. They were more consistent with Miranda being conscious and struggling when they occurred than being sustained when she was unconscious. There was a suggestion that Miranda's anus had been penetrated but Lukefahr could not say for sure. The fact that semen was not found did not change Lukefahr's opinion that a sexual assault had occurred. He felt that most of the injuries were most consistent with having been caused by contact with an object which was in motion, so that the skin basically was rubbed off in those areas. The really deep wound in the perineal body, on the other hand, was a penetrating injury, 9 caused by an object penetrating into the substance of the perineal body. It would have taken a very substantial amount of penetrating force to have caused that injury because that area of the body has a lot of resilience and padding. There was no way to know whether that injury was caused by a man's penis or some other foreign object. Vasquez testified in his own defense that he was mad and hit Miranda in the head. While he acknowledged hitting her in the head, Vasquez denied hitting her in her face. She was not doing anything wrong that required discipline. He claimed to not know how many times he hit her. Although in his written statement, Vasquez said he held Miranda by the head when he hit her, he testified that he did not do so. (R.R. XXXVII - 92-94, 116-117, 121- 122, 135). When Miranda appeared, she looked dazed and could not keep her head up. Vasquez knew something was wrong with her. He told her to get her stool from his parents' room and go brush her teeth. As she returned with the stool, she fell down. She still could not keep her head up. (R.R. XXXVII - 94-96, 112-113, 136). Vasquez later went into the bathroom and found her with her head down and toothpaste on her face, and still later went back to the bathroom and found her with her head in the sink. He thought she hit her head with the faucet although he could not recall what type of faucet it was. (R.R. XXXVII - 96-97, 119-121). Vasquez repeatedly tried to 10 make Miranda stand by herself but she kept falling down. He then shook her and asked her what was going on. As he did that, he took her into his parents' bedroom and either threw or laid her on their bed. (R.R. XXXVII - 97-99, 117, 140). Vasquez said he did not try to kill Miranda and he did not know what his intent was when he hit her. He did not remember whether he had hit her until she became unconscious. (R.R. XXXVII - 110, 134-135, 140-141, 147). Vasquez admitted that he was the only adult in the house that morning. (R.R. XXXVII - 113, 125-126). STATE’S RESPONSE TO THE PRESENT CLAIMS The crux of all of Vasquez’s claims in this subsequent writ is that new scientific evidence supposedly shows that the victim’s fall from a small stool might reasonably have caused her fatal injury, contradicting trial testimony from Dr. Burke and Dr. White implying that this was not a plausible theory. Specifically, in the “Introduction” to his application, Vasquez asserts that “[i]n light of modern scientific knowledge, it is now clear that the child had actually died after falling from a stool, and that the science underlying the State experts’ conclusions [that Vasquez beat her to death] was fundamentally flawed.” (Subsequent Application p. 6) In discussing his primary claim, Vasquez further explains his claim that “science has now clarified that short falls, such as the one taken by Miranda from the stool, 11 can and in fact do cause the type of catastrophic head injury observed upon Miranda’s arrival in the emergency room.” (Subsequent Application p. 16) Vasquez’s other claims of new evidence regarding Shaken Infant Syndrome, biomechanics, and Second Impact Syndrome are either dependent upon the validity of the fall theory or are clearly unsupported and insufficient to justify relief. Certainly it might be possible to imagine a case where the defendant claimed at trial that the victim fell from a sufficient height to have caused a fatal injury, where that theory was discredited by expert testimony considered valid at the time, and where new scientific evidence would suggest that the theory in question was a valid explanation for the fatal injury based on data comparing substantially similar fatal and non-fatal falls. Such a case might justify relief under Article 11.073. This is not that case, for many reasons. This was not a case of a single head injury that could equally have been explained by either an intentional blow or an accidental fall. It was multiple blows to the head, as admitted by Vasquez himself, causing severe and extensive injury to the brain. This was not a case of an otherwise loving parent who had no proclivity to hurt the child in question. Vasquez was clearly an abusive parental figure by anyone’s measure, who the evidence 12 suggests not only hit the victim but also lethally injected her with cocaine and sexually assaulted her. This was not a case of an accidental fall from two-to-ten feet in the air. It was a stepping stool depicted in SX # 16 and which the State has measured to be approximately 10&1/2 inches high. (See Appendices A & B). This is not a case where the fall in question had been seen by some disinterested witness or otherwise verified. Vasquez was the only adult home at the time, the emergency responders did not even see the stool in question, and no toothpaste was found in the victim’s mouth, in spite of the fact that she had supposedly been brushing her teeth when she fell and lost consciousness. Supporting Affidavits. Vasquez has attempted to support his “new science” allegations with attached affidavits from two pathologists, Dr. Thomas Young and Dr. Waney Squier. These affidavits fall far short. Dr. Young’s Affidavit. Dr. Young, in his affidavit, pointed to two journal articles that supposedly “falsified the notion that short falls do not cause death in children.” (Exhibit A, Young Affidavit p. 3) However the two medical articles cited by Dr. Young do not even involve fatal brain injuries from falls that could reasonably be compared with the present short fall from a 13 10&1/2-inch stool by four-year-old Miranda. Fatal Pediatric Head Injuries Caused by Short-Distance Falls (See Appendix C) – The only children four years and older who died from falls fell from at least three feet or from an undetermined height at least two feet but possibly as much as six to eight feet, these being falls from a swing. The falls in the study were from playground equipment and not from falling off something like a stool in the home. It stands to reason that the dynamics and motions involved in falling from a swing or other movable playground equipment are different from those involving in falling from a stationary stool, as well as the nature of the surface or structure onto which the child fell. Delayed Sudden Death in an Infant Following an Accidental Fall (See Appendix D) – The case study involved only one death of a nine- month-old, who fell from a bed some 30 inches high, onto a concrete floor. The authors of the case study admit that “lethality of short falls … are still controversial. One widely held belief is that short falls are almost never fatal.” The authors further submit, “We do not argue the widely noted observation that simple falls from low heights rarely result in significant primary brain injury.” (p. 373) Moreover, both of these articles are based strictly on data from cases 14 where the falls in question did cause death, and do not contain data or comparisons with cases of non-fatal falls. Accordingly, there is no attempt in either article to address the frequency with which short falls of this nature are fatal or to refute the proposition that in the vast majority of cases short falls are not fatal, as is consistent with Dr. Burke’s and Dr. White’s testimony at trial. Although Dr. Young also disagreed with certain statements made by Dr. Burke at trial concerning Shaken Baby Syndrome and comparison with injuries suffered in a high speed car accident, and with Dr. White and Dr. James Lukefahr’s opinions concerning sexual assault , he offered nothing to support a “new science” claim on these grounds. (Exhibit A, Young Affidavit pp. 3-4) Dr. Squier’s Affidavit. Dr. Squier, in her affidavit, asserted that “Miranda’s primary cause of death was blunt force injuries to the head consistent with a fall from a stool,” and that “[t]he strikes to Miranda’s head by Mr. Vasquez, on their own, were probably insufficient to cause fatal injuries.” However, she bases this conclusion on an unverified assumption that Vasquez, the only adult present at the time, was telling the truth about the sequence of events at the time of the injury. (Exhibit B, Squire Affidavit p. 2) 15 Dr. Squier also disagreed with Dr. Burke’s Shaken Baby Syndrome and high speed accident analogies, but not based on any “new science.” On the contrary, Dr. Squier attempts to support her assertions based on a study published in 1987, well before Vasquez’s trial. (Exhibit B, Squire Affidavit p. 3, n.2) The only assertions that Dr. Squier makes that are arguably supported by new science involve her Second-Impact Syndrome claim that Miranda died as a result of the combined impact of being initially hit by Vasquez and then falling from the stool. (Exhibit B, Squire Affidavit p. 4) However, as discussed below, under Texas’ law concerning concurrent causation, this would not have relieved Vasquez of responsibility for the death. Concurrent Causation. With regard to causation, the Penal Code provides that “[a] person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.” Tex. Pen. Code Ann. § 6.04 (a). The Court of Criminal Appeals has interpreted this to mean that, “[i]f the additional cause, other than the defendant's conduct, is clearly sufficient, by itself, to produce the result and the defendant's conduct, by itself, is clearly 16 insufficient, then the defendant cannot be convicted.” Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986); see also Turner v. State, 435 S.W.3d 280, 283 (Tex. App.—Waco 2014, pet. ref’d). In the present case, there is no showing that Vasquez’s repeated blows to Miranda’s head were clearly insufficient to cause her death, and it remains highly unlikely that her fall from a short stool would have been sufficient, by itself, to cause the death. Accordingly, even under the supposedly newly- developing science of Second-Impact Syndrome, Vasquez cannot escape responsibility for her murder. In addition, Vasquez’s initial blows arguably themselves caused Miranda to be in such a dazed state that she fell from the stool in question, making the second impact as well a direct result of his own conduct. The Prejudice Prong. In order to prevail under 11.073, the Court not only has to find that there is new, admissible, previously unavailable scientific evidence, but also that “had the scientific evidence been presented at trial, on the preponderance of the evidence, the person would not have been convicted.” (Emphasis added). In the present case, even if some or all of the “new science” arguments are found to have some validity, it is highly unlikely that this new 17 science would have changed the outcome, as the evidence of guilt was overwhelming. PRAYER WHEREFORE, the State prays that the Court will dismiss as abusive the present subsequent application for writ of habeas corpus and deny the motion to stay execution. Respectfully submitted, /s/ Douglas K. Norman ___________________ Douglas K. Norman State Bar No. 15078900 Assistant District Attorney 105th Judicial District of Texas 901 Leopard, Room 206 Corpus Christi, Texas 78401 (361) 888-0410 (361) 888-0399 (fax) CERTIFICATE OF SERVICE This is to certify that a copy of this document was e-served on April 18, 2015, on Applicant’s attorneys, Mr. Andrew M. Edison, Andrew.edison@emhllp.com, and Mr. James Chambers, james.chambers@emhllp.com. /s/ Douglas K. Norman ___________________ Douglas K. Norman 18 APPENDIX A APPENDIX B AFFIDAVIT THE STATE OF T E X A S C O U N T Y OF N U E C E S B E F O R E M E , the undersigned authority, on this day personally appeared John Mitchell, who after being by me duly swom upon oath says: M y name is John Mitchell and I am a Deputy District Clerk for Nueces County and the Records Management Supervisor for the office. I am over 18 years of age, I have never been convicted of a crime, and I am tliliy competent to make this affidavit. I have personal knowledge of the facts stated herein, and they are all true and correct. On A p r i l 17, 2015,1 reviewed the attached photographs of a stool that had been admitted into evidence as SX#9 in the murder trial o f Richard Vasquez, Cause N o . 98-CR-0730-E, in the 14^^^ District Court of Nueces County, Texas, and that I am presently holding as custodian ofthe evidence. The attached photographs, with tape measure next to them, accurately show the height of the stool, which was measured to be approximately 10 &1/2 inches t a l l Further affiant saith naught. Subscribed and sworn to before me by the said John Mitchell this 17th day o f A p r i l , 2015, to certify which witness my name and seal of office. 2 APPENDIX C r I I The American Journal of Forensic Medicine and Pathology Volume 22 Number I March 2001 1 Fatal Pediatric Head Injuries Caused by Short-Distance Falls John Plunkett 13 Case Report of Sudden Death After a Blow to the Baell' of the Neck Gregory G. Davis and Jay M. Glass 19 Sudden Cardiac Death and Right Ventricular Dysplasia E. N. Michalodirnitrakis, D. D.-A. Tsiftsis, A. M. Tsatsakis, and I. Stiakakis 23 Simultaneous Sudden Infant Death Syndrome: A Proposed Definition and Worldwide Review of Cases Steven A. Koehler, Shaun Ladham, Abdulrezzak Shakir, and Cyril H. Wecht 33 Simultaneous Sudden Infant Death Syndrome: A Case Report Shaun Ladham, Steven A. Koehler, Abdulrezzak Shakir, and Cyril H. Wecht (Continued) Publication Staff Ruth Weinberg Susan Deitch Anthony F. Trioli Ray Thibodeau Senior Editor Assistant Managing Account Manager Director, Advertising Editor Sales Frances R. DeStefano Cynthia Payne The Point of Difference Publisher Ad Production International Advertising Coordinator Representative American Journal of Forensic Medicine and Pathology (ISSN: 0195-7910) is published quarterly by Lippincott Williams & Wilkins, at 16522 Hunters Green Parkway, Hagerstown, MD 21740-2116. 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Indexed in Index Medicus/MEDllNE, Current Contents/Clinical Medicine, SCISEARCH, Excerpta Medica/EMBASE, and Bio- medical Database, and abstracted in Criniinology & Penology Abstracts and Police Science Abstracts. The American Journal of Forensic Medicine and Pathology 22(1):1-12, 2001. ©2001 Lippincott Williams & Wilk.ins, Inc., Philadelphia Fatal Pediatric Head.Injuries Caused by Short-Distance Falls John Plunkett, M.D. Physicians disagree on several issues regarding head in- Many physicians believe that a simple fall can- jury in infants and children, including the potential not cause serious injury or death (1-9), that a lethality of a short-distance fall, a lucid interval in an ul- lucid interval does not exist in an ultimately fatal timately fatal head injury, and the specificity of retinal hemorrhage for inflicted trauma. There is scant objective pediatric head injury (7-13), and that retinal hem- evidence to resolve these questions, and more informa- orrhage is highly suggestive if not diagnostic for tion is needed. The objective of this study was to deter- inflicted trauma (7,12,14-21). However, several mine whether there are witnessed or investigated fatal have questioned these conclusions or urged cau- short-distance falls that were concluded to be accidental. tion when interpreting head injury in a child The author reviewed the January l, 1988 through June 30, 1999 United States Consumer Product Safety Com- (15,22-28). This controversy exists because most mission database for head injury associated with the use infant injuries occur in the home (29,30), and if of playground equipment. The author obtained and re- there is history of a fall, it is usually not witnessed viewed the primary source data (hospital and emergency or is seen only by the caretaker. Objective data are medical services' records, law enforcement reports, and needed to resolve this dispute. It would be helpful coroner or medical examiner records) for all fatalities in- volving a fall. if there were a database of fatal falls that were The results revealed 18 fall-related head injury fatali- witnessed or wherein medical and law enforce- ties in the database. The youngest child was 12 months ment investigation unequivocally concluded that old, the oldest 13 years. The falls were from 0.6 to 3 me- the death was an accident. ters (2-10 feet). A noncaretaker witnessed 12 of the 18, The United States Consumer Product Safety and 12 had a lucid interval. Four of the six children in whom funduscopic examination '"'as documented in the Commission (CPSC) National Injury Information n1edical record had bilateral retinal hemorrhage. The au- Clearinghouse uses four computerized data sources thor concludes that an infant or ciiild may suffer a fatal (31). The National Electronic Injury Surveillance bead injury from a fall of less than 3 meters (10 feet). System (NEISS) file collects current injury data as- The injury may be associated with a lucid interval and sociated with 15,000 categories of consumer prod- bilateral retinal hemorrhage. Key Words: Child abuse-Head injury-Lucid interval- ucts from 101 U.S. hospital emergency depart- Retinal hemorrhage-Subdural hematoma. ments, including 9 pediatric hospitals. The file is a probability sample and is used to estimate the num~ ber and types of consumer product-related injuries each year (32). The Death Certificate (DC) file is a demographic summary created by information pro- vided to the CPSC by selected U.S. State Health Departments. Tbe Injury/Potential Injury Incident (IR) file contains sun1Illaries, indexed by consun1er product, of reports to the CPSC from consumers, medical examiners and coroners' (Medical Exam- iner and Coroner Alert Project [MECAP]), and newspaper accounts of product-related incidents discovered by local or regional CPSC staff (33). The In-Depth Investigations (AI) file contains sum- maries of investigations performed by CPSC staff 1\1anuscript received April 10, 2000; revised September 15, based on reports received from the NEISS, DC, or 2000; accepted September 24, 2000. IR files (34). The AI files provide details about From the DepartmentS of Pathology and Medical Education, Regina Medical Center, 1175 Nininger Road, Hastings MN the incident from victim and witness interviews, 55033, U.S.A.; Email: plunkettj@reginarnedical.com. accident reconstruction, and review of law enforce- I 2 J. PLUNKETT ment, health care facility, and coroner or medical be the highest point of the arc. Twelve of the 18 examiner records (if a death occurred). falls were witnessed by a noncaretaker or were videotaped; 12 of the children had a lucid interval (5 minutes-48 hours); and 4 of the 6 in whom fun- METHODS duscopic examination was performed had bilateral I reviewed the CPSC, DC, IR, and AI files for all retinal hemorrhage (Table 1). head and neck injuries involving playground equip- ment recorded by the CPSC from January 1, 1988 through June 30, 1999. There are 323 entries in the CASES playground equipment IR file, 262 in the AI file, 47 Case 1 in the DC file, and more than 75,000 in the NEISS This 12-month-old was seated on a porch swing file. All deaths in the NEISS file generated an IR or between her mother and father when the chain on AI file. If the file indicated that a death had oc- her mother's side broke and all three fell sideways curred from a fall, I obtained and reviewed each and backwards 1.5 to 1.8 meters (5-6 feet) onto original source record from law enforcement, hos- decorative rocks in front of the porch. The mother pitals, emergency medical services (EMS), and fell first, then the child, then her father. It is not coroner or medical examiner offices except for one known if her father landed on top of her or if she autopsy report. However, I discussed the autopsy struck only the ground. She was unconscious im- findings with the pathologist in this case. mediately. EMS was called; she was taken to a local hospital; and was ictal and had decerebrate RESULTS posturing in the emergency room. She was intu- bated, hyperventilated, and treated with mannitol. There are 114 deaths in the Clearinghouse data- A computed tomography (CT) scan indicated a base, 18 of which were due to head injury from a subgaleal hematoma at the vertex of the skull, a fall. The following deaths were excluded from this comrninuted fracture of the vault, parafalcine sub- study: those that iuvolved equipment that broke or dural hemorrhage, and right parietal subarachnoid collapsed, striking a person on the head or neck hemorrhage. There was also acute cerebral edema (41); those in which a person became entangled in with effacement of the right frontal horn and com- the equipment and suffocated or was strangled (45), pression of the basal cisterns. She had a cardiopul- those that involved equipment or incidents other monary arrest while the CT scan was being done than playground (6 [including a 13.7-meter fall and could not be resuscitated. from a homemade Ferris wheel and a 3-meter fall from a cyclone fence adjacent to a playground]); and falls in which the death was caused exclusively Case2 by neck (carotid vessel, airway, or cervical spinal A 14-month-old was on a backyard "see-saw" cord) injury (4 ). and was being held in place by his grandmother. The falls were from horizontal ladders (4), The grandmother said that she was distracted for a swings (7), stationary platforms (3), a ladder at- moment and he fell backward, striking the grass- tached to a slide, a "see-saw'', a slide, and a retain- covered ground 0.6 meters (22.5 inches) below the ing wall. Thirteen occurred on a school or public plastic seat. He was conscious but crying, and she playground, and five occurred at home. The data- carried him into the house. Within 10 to 15 minutes base is uot limited to infants and children, but a he became lethargic and limp, vomited, and was 13-year-old was the oldest fatality (range: 12 taken to the local hospital by EMS personnel. He months-13 years; mean, 5.2 years; median, 4.5 was unconscious but purposefully moving all ex- years). The distance of the fall, defined as the dis- tremities when evaluated, and results of fundus- tance of the closest body part from the ground at copic examination were normal. A CT scan indi- the beginning of the fall, could be determined from cated an occipital subgaleal hematoma, left-sided CPSC or law enforcement reconstruction and actual cerebral edema with complete obliteration of the measurement in 10 cases and was 0.6 to 3.0 meters left frontal horn, and small punctate hemorrhages (mean, 1.3 ± 0.77; median, 0.9). The distance in the left frontal lobe. There was no fracture or could not be accurately determined in the seven fa- subdural hematoma. He was treated with mannitol; talities involving swings and one of the falls from a his level of consciousness rapidly improved; and he horizontal ladder, and may have been from as little was extubated. However, approximately 7 hours I as 0.6 meters to as much as 2.4 meters. The maxi- after admission he began to have difficulty breath- mum height for a fall from a swing was assumed to ing, both pupils suddenly dilated, and he was rein- A1n J Forensic Med Pathol, VoL 22. No. 1, March 2001 I j TABLE 1. Summary of cases Lucid Retinal Subdural No. CPSC No. Age Sex Fall from Distance M/F Witnesse;d interval hemorrhage hemorrhage Autopsy Cause of death FP DC 9108013330 12 mos F Swing 1.5--1.8/5.0-6.0 No No N/R Yes +IHF No Complex calvarial fracture No with edema and contusions 2 Al 890208HBC3088 14 mos M See~saw 0.6/2.0 No 10-15 No No No Malignant cerebral edema No minutes with herniation 3 IR F910368A 17 mos F Swing 1.5-1.8/5.0-6.0 No No N/R Yes +IHF Yes Acute subdural hematorna Yes wit~.secondary cerebral edema 4 Al 921001 HCC2263 20 mos F Platform 1.1/3.5 No 5-10 Bilateral Yes +IHF Limited Occipital fracture with Yes minutes multilayered subdural/subarachnoid ~ hemorrhage progreSsing S2 to cerebral edema and r 5' DC 9312060661 23 mos F Platform 0.70/2.3 Yes 10 minutes Bilateral, NOS Yes Yes herniation Acute subdural hematoma Yes ~ ;,,: 6 DC 9451016513 26 mos M Swing 0.9-1 c8/3.0-6.0 Yes No Bilateral Yes +IHF Yes Subdural hematoma··Yflth Yes ti multi!ayered associated cerebral edema ~ Retinal Hemorrhage mission to the hospital, and fibrinolysis may have " m The majority of published studies conclude that retinal hemorrhage, especially if bilateral and pos- removed any evidence for thrombosis at the time terior or associated with retinoschisis, is highly the autopsy was performed. suggestive of, if not diagnostic for, nonaccidental Limitations injury (9,14-21). Rarely, retinal hemorrhage has been associated with an accidental head injury, but 1. Six of the 18 falls were not witnessed or were in these cases the bleeding was unilateral (80). It is seen only by the adult caretaker, and it is pos- also stated that traumatic retinal hemorrhage may sible that another person caused the nonob- be the direct mechanical effect of violent shaking served injuries. (15). However, retinal hemorrhage may be caused 2. The exact height of the fall could be deter- experimentally either by ligating the central retinal mined in only 10 cases. The others (7 swing vein or its tributaries or by suddenly increasing in- and 1 stationary platform) could have been tracranial pressure (81,82); retinoschisis is the re- from as little as 0.6 meters (2 feet) to as much sult of breakthrough bleeding and venous stasis not as 2.4 meters (8 feet). "violent shaking" (15,83). Any sudden increase in 3. A minimum impact velocity sufficient to intracranial pressure may cause retinal hemorrhage cause fatal brain injury cannot be inferred (84-87). Deformation of the skull coincident t& an from this study. Likewise, the probability that impact nonselectively increases intracranial pres- an individual fall will have a fatal outcome sure. Venospasm secondary to traumatic brain in- cannot be stated because the database depends jury selectively increases venous pressure. Either on voluntary reporting and contractual agree- mechanism may cause retinal hemorrhage irrespec- ments with selected U.S. state agencies. The tive of whether the trauma was accidental or in- NEISS summaries for the study years esti- flicted. Further, retinal and optic nerve sheath hem- mated that there were more than 250 deaths orrhages associated with a ruptured vascular due to head and neck injuries associated with malformation are due to an increase in venous pres- playground equipment, but there are only 114 sure not extension of blood along extravascular in the files. Further, this study does not in- spaces (81-83,88). Dilated eye examination with an clude other nonplayground equipment-related indirect ophthalmoscope is thought to be more sen- fatal falls, witnessed or not witnessed, in the sitive for detecting retinal bleeding than routine ex- CPSC database (32). Am J Forensic Med Pathol, Vol. 22, No. J, March 2001 10 J. PLUNKETT CONCLUSIONS is not uniform (45). This analysis requires awareness of the shape of the deceleration curve, knowledge of or . fall is a complex event. There must be a 1. E very . . 'd . the mechanical properties and geometry of the cra- loc biOme"chanical analysis for any inc1 ent 1n nial system, and comprehension of the stress and cc which the severity of the injnry appears .to be. strain characteristics for the specific part of the skull (n lncOnsistent with the history. The question 1s and brain that strikes the ground. A purely transla- (rr not "Can an infant or child be seriously in- tional fall requires that the body is rigid and that the ge jured or killed from a short-distance fall?''. but external forces acting on the body pass only through rather "If a child falls (x) meters and strikes the COM, i.e., there is no rotational component. A ! - L a his other head on nonyielding surface, what meter-tall 3-year-old hanging by her knees from a will happeu ?" horizontal ladder with the vertex of her skull 0.5 me- 2. Retinal hemorrhage may occur whenever in- ters above hard-packed earth approximates this tracranial pressure exceeds venous pressure or model. If she looses her grip and falls, striking the gL whenever there is venous obstruction. The occipital scalp, her impact velocity is 3.1 m/second. tic characteristic of the bleeding cannot be used An exclusively angular fall also requires that the to determine the ultimate cause. body is rigid. In addition, the rotation must be about 3. Axonal damage is unlikely to be the mecha- a fixed axis or a given point internal or external to nism for lethal injnry in a low-velocity impact the body, and the applied moment and the inertial such as from a fall. 2 moment must be at the identical point or axis. If this 4. Cerebrovascular thrombosis or dissection same child has a 0.5-meter COM and has a "match- must be considered in any injury with appar- stick" fall while standing on the ground, again strik- 3 ent delayed deterioration, and especially in ing her occiput, her angular velocity is 5.42 rad/sec- one with a cerebral infarct or an unusual dis- ond and tangential velocity 5.42 m/second at impact. tribution for cerebral edema. The impact velocity is higher than predicted for an 4 5. A fall from less than 3 meters (10 feet) in an in- exclusively translational or external-axis angular fall fant or child may cause fatal head injury and s when the applied moment and the inertial moment may not cause irrunediate syinptoms. The in- are at a different fixed point (slip and fall) or when jnry may be associated with bilateral retinal the initial velocity is not zero (walking or running, hemorrhage, and an associated subdural then trip and fall), and the vectors are additive. How- hematoma may extend into the interhemi- ever, the head, neck, limbs, and torso do not move spberic fissure. A history by the caretaker that uniformly during a fall because relative motion oc- the child may have fallen cannot be dismissed. curs with different velocities and accelerations for Acknowledgements: The author thanks the law en- each component. Calculation of the impact velocity forcement, emergency medical services, and medical for an actual fall requires solutions of differential professionals who willingly helped him obtain the origi- equations for each simultaneous translational and nal source records and investigations; Ida Harper-Brown rotational motion (45). Fnrther, inertial or impulse (Technical Information Specialist) and Jean Kennedy (Senior Compliance Officer) from the U.S. CPSC, whose loading (whiplash) may cause head acceleration enthusiastic assistance made this study possible; Ayub K. more than twice that of the midbody input force and Ommaya. M.D., and Werner Goldsmith. Ph.D.• for criti- may be important in a fall where the initial impact is ]( cally reviewing the manuscript; Jan E. Leestrna, M.D., to the feet, buttock, back, or shoulder, and the final and Faris A. Bandak, Ph.D., for helpful conunents; Mark impact is to the head (46,47). E. Myers, M.D., and Michael B. Plunkett, M.D., for re- view of the medical imaging studies; Jeanne Reuter and The translational motion of a rigid body at con- Kathy Goranowski, for patience, humor, and completing stant gravitational acceleration (9.8 m/s 2 ) is calcu- the manuscript; and all the families who shared ~e sto- lated from: 1: ries of their sons and daughters and for whom this work 2 is dedicated. F =ma v = 2as v =at where F = the sum of all forces acting on the body l APPENDIX (newton), m = mass (kg), a = acceleration (rnls 2 ), [. v =velocity (mis), s =distance (m), and t =time (s). Newtonian mechanics involving constant acceler- The angular motion.of a rigid body about a fixed 1 ation may be used to determine the impact velocity axis at a given point of the body under constant in a gravitational fall. However, c6nstant accelera- gravitational acceleration (9.8 m/s 2 ) is calculated tion formulas cannot be used to calculate the rela- from: tions among velocity, acceleration, and distance traveled during an impact because the deceleration M =Ia Am J Forensic Med Pathol, Vol. 22, No. 1, March 2001 FATAL HEAD INJURIES WITH SHORT-DISTANCE FALLS 11 !SS where M = the applied moment about the COM sociated systemic findings in suspected child abuse; a necropsy study. Arch Opthalmol 1990;108:1094-101. of or about the fixed point where the axis of rotation is 18. Williams DF, Swengel RM, Scbarre DW. Posterior seg- ~a­ located, I = the inertial moment about this same ment manifestations of ocular trauma. Retina 1990;10 nd COM or fixed point, a = angular acceleration (suppl):535-44. 19. Rosenberg NM, Singer J, Bolte R, et al. Retinal hemor- 111 (rad/s2 ), w = angular velocity. (radfs·), r = radius rhage. Pediatr Emerg Care 1994;10i303-5. la- (m), v' = tangential velocity (mis), and a' = tan- 20. Swenson J, Levitt C. Shaken baby Syndrome: diagnosis he gential acceleration (rn/s 2 ). and prevention. Minn Med 1997;80:41-4. 21. Altman RL, Kutscher ML, Brand DA. The "shaken-baby gh The angular velocity w for a rigid body of length syndrome." N Engl J Med 1998;339:1329-30. l- L rotating about a fi>~d point is calculated from: 22. Hall JR, Reyes HM, Horvat M, et al. The mortality of a childhood falls. J Trauma 1989;29:1273--5. lfI0 w2 = maL/2 I 0 = (1/3) rnL 2 23. Rieber GD. Fatal falls in childhood: how far must children e- fall to sustain fatal head injury: report of cases and review Lis where I 0 = the initial inertial moment, w = an- of the literature. Am J Forensic Med Pathol 1993;14: ie gular velocity (rad/s), m = mass (kg), a = gravita- 201-7. 24. Root I. Head injuries from short distance falls. Am J Foren- d. tional acceleration (9.8 rn/s 2 ), and L = length. sic Med Pathol 1992;13:85-7. 1e 25. Nashelsky MB, Dix JD. The time interval between lethal ut infant shaldng and onset of symptoms: a review of the REFERENCES shaken baby syndrome literature. Am J Forensic Med to 1. Chadwick DL, Chin S, Salemo C, et al. Deaths from falls Pathol 1995;16:154-7. al in children: bow far is fatal? J Trauma 1991;31:1353-5. 26. Wilkins B. Head injury: abuse or accident? Arch Dis Child is 2. Williams RA. Injuries in infants and small children result- 1997;76:393-7. ing from witnessed and corroborated free falls. J Trauma 27. Shaken babies (editorial). Lancet 1998;352:335. il- 1991;31:1350-2. 28. Plunkett J. Restricting the time of injury in fatal inflicted k- 3. Duhaime AC, Alario AJ, Lewander WJ, et al. Head injury head injuries. Child Abuse Negl 1998;22:943-4. o- in very young children: mechanisms, injury types, and 29. Sweeney TB. X-rated playgrounds? Pediatrics 1979;64: ophthalmologic findings in 100 hospitalized patients 961. :t. younger than 2 years of age. Pediatrics 1992;90:179-85. 30. Tursz A, LeLong N, Crost M. Home accidents to children Lil 4. Lyons TJ, Oates RK. Falling out of bed: a relatively benign under 2 years of age. Paediatr Perinatal Epidemiol l 990; 11 occurrence. Pediatrics 1993;92:125-7. 4:408-21. 5. Swalwell C. Head injuries form short distance falls. Am J 31. National Injury Information Clearinghouse. US Consumer 1t Forensic Med Pathol 1993;14:171-2. Product Safety Commission (1997). Washington DC 20207. m 6. Sheridan F, Anthony RM, Rieber GD, et al. Head injuries Available at: www.cpsc.gov/about/clrnghse.html. from short distance falls. Am J Forensic Med Pathol 1993; 32. Consumer Product Safety Review 1999;4:#2:3-7. Avail- 14:172-3. able at: www.cpsc.gov/cpscpub/pubs/cpsr.html. 1- 7. Duhaime AC, Christian CW, Rorke LB, et al. Non-acci- 33. A description of the injury or potential injury incident data ·e dental bead injury in infants: the "shaken baby syndrome." base (IPII). Division of Hazard and Injury Data Systems. ,_ N Engl J Med 1998;338:1822-1829. US Consumer Product Safety Commission (1997). Wash- 8. Case rvIE, Graham MA, Corey Handy T, et al Position ington DC 20207. Available at: www.cpsc.gov/about/ paper on shaken baby. Adopted by the Board of Directors, guide.html#OIPA. y United States National Association of Medical Examiners, 34. A description of the indepth investigation database (INDP), !.I San Francisco, October 30, 1998. St. Louis: The National fiscal year 1987-fiscal year 1991. Division of Hazard and Association of Medical Examiners. Injury Data Systems. US Consumer Product Safety Com- d 9. Showers J. Never shake a baby. The Second National mission (1992). Washington D.C. 20207. Available at: e Conference on Shaken Baby Syndrome, National Associa- www.cpsc.gov/about/guide.html#OIPA. n tion of Children's Hospitals and Related Institutions, 1999. 35. Ommaya AK, Gennarelli TA. Cerebral concussion and Available at: www.childrenshospitals.net/nachri/news/ traumatic unconsciousness. Brain 1974;97:633-54. d pr%5Fsbs.html. 36. Ommaya AK. Head iajury mechanisms and the concept of s 10. Tullous M, Walker MD, Wright LC, Evaluation and treat- preventive management: a review and critical synthesis. J Ll ment of head injuries in children. In Fuhrman BP, Zim- Neurotrauma 1995;12:527-46. merman JJ, eds. Pediatric critical care. St. Louis: Mosby 37. Gurdjian ES, Hodgson VR, Thomas LM, Patrick LM. Sig- Year Book, 1992:1165-82. nificance of relative movements of scalp, skull and in- 11. Willman KY, Bank DE, Senac M, Chadwick DL. Restrict- tracranial contents during impact injury of the bead. J Neu- ing the time of injury in fatal inflicted head injury. ad injury deaths it "has Rush University Medical Center argue the assertion that 13-APP is ac- been established and highly ITcom- Chicago, IL cepted as the most sensitive methodol- mended that /3-APP immunostaining be ogy and gold standard for detection of perfonned in multiple topographically Darinka Miluesnic, MD, PhD DAI and the 1nedicolegal protocol refer- targeted regions of the brain" and that Assistant Chief Medical Examiner enced in Dr. 01nalu's letter above is not applications include "tin1ing of injury Knox County Me