Appeal from the Iowa District Court for Scott County, Marsha A. Bergan, Judge.
Defendant appeals his convictions for first-degree murder and child endangerment resulting in death.
Murray W. Bell of Murray W. Bell, P.C., Davenport, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Scott D. Brown and Becky S. Goettsch. Assistant Attorneys General, and Michael J. Walton, County Attorney, for appellee.
Heard by Doyle, P.J., and Tabor and Bower, JJ.
Zachary James Connell appeals from jury verdicts finding him guilty of first-degree murder and child endangerment resulting in death. See Iowa Code §§ 707.1, 707.2, 726.66(1), (4) (2009). On appeal, Connell contends the district court erred in (1) denying his motion for new trial, (2) limiting cross-examination of A.B.'s mother, and (3) limiting direct examination of an Iowa Department of Human Services investigator. Applying our "one-homicide" rule, we affirm his conviction for first-degree murder, annul the judgment and sentence for child endangerment resulting in death, and remand for resentencing to eliminate the sentence for child endangerment resulting in death.
I. Background Facts and Proceedings
Connell and Vanessa Baldwin became friends in 2008 after Baldwin enlisted in the military, and they were both in the military police. Connell's service involved deployments to Iraq and Italy. Baldwin and Connell began a romantic relationship in December 2009. Baldwin and her children, four-year-old daughter R.B. and three-year-old son A.B., lived in Montana. Connell lived with them during his visits from Davenport, Iowa. Baldwin described her relationship with Connell as "picture perfect" in Montana. In fact, while she was in Montana she was supportive of him adopting her children.
In 2010 Baldwin and Connell decided she would move her family to Davenport in the summer to live with Connell. When Baldwin was absent for military training in June 2010, her children stayed with Connell in Iowa. No one else lived with the two adults and two children in their apartment.
Baldwin testified after she moved to Iowa, their relationship "gradually" changed and Connell "wasn't the same person [as] when we were living in Montana." In Iowa, Connell became very controlling and strict. It "started to feel like we just didn't matter as much to him." Baldwin felt isolated from her family and friends.
Connell took over the discipline of Baldwin's children. At first he had the kids "standing in the corner" or maybe gave a "spanking." Baldwin testified: "And then he used military type of punishments." A.B. disliked meat, and Connell tried to force him to eat it. Connell discouraged Baldwin from taking A.B. to the doctor for treatment of digestive problems, stating she was overreacting and A.B. wanted attention.
In late September A.B. started attending preschool on Tuesday, Wednesday, and Thursday mornings. Typically, Baldwin would take A.B. to school at 9:00 a.m. and Connell would pick him up around 11:45 a.m. Mary Ann Johnson, one of A.B.'s teachers, had been a school psychologist for fourteen years before her preschool position. She described A.B. as quiet, hesitant, well behaved, and very thin.
Early in October, Baldwin started working at a Hy-Vee store. On Tuesday, October 5, 2010, A.B. vomited, was not feeling good, and did not attend preschool. On Wednesday, A.B. returned to preschool, and teacher Johnson observed him eat "a little bit" at snack time and shed quiet tears afterwards as the group danced around the room during the thirty minutes of circle time before leaving for home. Johnson testified she mentioned A.B.'s tears to "whoever picked him up."
On Thursday, October 7, A.B. participated in preschool activities and Johnson did not note anything of concern "until he seemed excited to go to snack and he did not eat very much. And after snack, we had tears again, more tears. [A.B.] appeared more distressed than" he was on Wednesday. Johnson testified she observed "huge little elephant tears running down his checks." Based on A.B.'s tears, Johnson asked if he wanted to go home, and he replied, "No." Due to the extent of emotional distress Johnson sensed, she then asked him if "anybody ever hurt him." Johnson testified A.B. either said no or shook his head no. Johnson assured A.B. "if anybody ever did hurt him, he could tell us; that he was in a safe place."
Preschool teacher Michelle Andrews testified A.B. was "a sweet boy" who was very thin. On Thursday, October 7, Andrews observed A.B. becoming very emotional and really sad after the 10:40 snack time. Later, A.B. was crying as he was putting on his coat. Andrews testified she gave him Kleenex and asked him why he was crying. A.B. did not say anything. Andrews asked A.B. if he wanted to go home, and he said, "No." Andrews asked why, and A.B. did not respond.
On the following Tuesday morning, October 12, A.B. was happy and looking forward to preschool. A.B. was not hungry but he was thirsty. Baldwin gave him a drink, drove him to preschool, and returned to the apartment. About one hour later, at 10:00 a.m., the preschool called Baldwin and told her A.B. was not feeling well and possibly had an upset tummy. Baldwin thought about A.B.'s stomach gas issues and told the preschool his gas pains tend to go away. The preschool and Baldwin agreed to have A.B. continue at the preschool and the staff would "watch how he did."
Baldwin left for work around 10:40 a.m. for her 11:00 a.m. shift. Connell and four-year-old R.B. remained in the apartment. On that day Baldwin worked as a cashier and was not allowed to have her cell phone with her while working.
Johnson testified to the remainder of A.B.'s preschool day. When A.B. did not appear to get better and would not play, preschool staff asked if he wanted to go home. A.B. said, "No." At snack time, A.B. drank his juice quickly, asked for more, and then put his head down. Johnson told A.B. she needed to call his mother and he should go home. He again said, "No." When Johnson could not reach Baldwin, she called Connell to come for A.B. While Johnson and A.B. waited for Connell, A.B. sat on her leg with his eyes shut, quietly whimpering. Johnson noticed A.B.'s abdomen felt "hard" but testified it was not distended.
When Connell arrived at the preschool, Johnson saw him poke A.B. in the tummy and say "something about toughen up." Johnson told Connell: "I don't think he's faking. I think he really doesn't feel well." According to Johnson, Connell replied: "Well, I just thought perhaps you tend to coddle them here." Johnson recommended A.B. be seen by a doctor if he did not improve soon. Connell was "chatty" and told Johnson "there hadn't been a man in their life for over a year and until he came into the picture, and so he'd been trying to toughen him up and do manly things with him."
On the way to the apartment, Connell stopped at the Hy-Vee store where Baldwin was working to tell her A.B. was sick and going home. The Hy-Vee videotape played during trial shows Connell and A.B. walking into the store around 11:40 a.m. A.B. greeted his mother. When they exit, Connell is carrying A.B.
At 1:05 p.m. that afternoon, Connell sent Baldwin a text message about A.B. drinking bath water. The State's examination of Connell's laptop computer showed that between 1:51 p.m. and 2:31 p.m., Connell performed internet searches on baby health issues. After a gap in internet activity, at 4:48 p.m. Connell searched for ways to commit suicide. Baldwin's 6:08 p.m. call to Connell's phone went to his voice mail.
A few minutes after 6 p.m. on October 12, Connell entered the hospital emergency room and told the registrar: "My girlfriend's son is in the car and he's dead." Connell was visibly upset and looked like he might vomit. Nurse Leonard accompanied Connell to his car and determined A.B. was dead. Nurse Leonard asked Connell for an explanation. Connell told her that he "had picked the child up from school; that he wasn't feeling well; that he gave him some medicine and put him down for a nap; and then he [lay] down and had a nap himself; and when he woke up from his nap, the child was not breathing."
Nurse Leonard asked another nurse to call the police and hospital security. At trial, she testified she observed A.B.'s "distended abdomen" and thought, "blunt trauma." Leonard explained: "Because a child would not present with a distended abdomen like that unless there is some injury underneath."
During his two-minute ride to the police station, several times Connell stated to the officer who was driving: "I don't want my father to find out about this." Connell's father works at the Scott County courthouse. When the police went to the couple's apartment, they found four-year-old R.B. there alone. The Iowa Department of Human Services (DHS) took custody of R.B.
At 7:00 p.m. Baldwin got off work and went home. She was told by Officer Hutcheson the police "were investigating a death investigation involving her son." The officer observed she "immediately broke down, hyperventilating." Officer Hutcheson drove Baldwin to the hospital where Connell had taken A.B.
At the hospital Detective Noonan interviewed Baldwin and observed her demeanor—"she seemed to be in shock a little bit." Detective Noonan testified he again had to tell Baldwin that her son was dead. In response to questions, Baldwin stated Connell treated both children alike, she had no concerns with the way he treated them, and he was a father figure for them. Baldwin stated Connell did not strike or spank the kids. At trial, Baldwin explained she made the statements because she was in shock. "I wanted to see my son . . . . At that point I thought he was okay; that I would go in there and he would be okay."
Baldwin was taken to the police station and allowed to meet with Connell. Baldwin embraced Connell and did not act with animosity toward him. Baldwin asked Connell if he was coming home with her.
Baldwin went home with Connell's father, who testified she asked him twice at the police station and once as they were leaving if Connell was coming with them. He consistently stated Connell was not joining them and he observed Baldwin start crying in response to his last negative answer. Baldwin testified "of course" she was crying as they left the police station, but she did not tell Connell's father she was crying because Connell was not joining them on the trip home.
At the police station that evening, Detective Noonan observed ligature marks on Connell's neck and scratches on his wrists and asked about them. Connell responded he had tried to kill himself after he found A.B. dead. Connell described the children to Detective Noonan. A.B. didn't want to play soccer; he was lazy and would rather sleep in bed all day. R.B. was the opposite, she was a leader. Connell described A.B. as a gassy kid who would get bloated easily and who had issues with eating—liking pasta but not meat.
Connell told Detective Noonan the day's timeline. Connell picked up A.B. around 11:00 a.m. after the preschool called. Connell stated the preschool teacher with A.B.—Johnson—told him "there was nothing to worry about" and also A.B. is not faking and does not feel well. Connell assumed the teacher was coddling A.B. Connell asked A.B. if he was tough and asked if his stomach hurt. A.B. told Connell he was tough and his stomach did not hurt. A.B. also told Connell he could walk.
Connell told Detective Noonan that after the trip to Hy-Vee, he gave A.B. "about two tablespoons" of children's medicine at the apartment. Connell examined A.B. and found his stomach and an area around his ribs to be bloated. Both places were hard from what Connell believed to be gas. Connell told the detective he attempted to alleviate A.B.'s gas problems by pushing on his stomach and by using a bicycle-pedaling-type motion on his legs to try to get the gas to come out. After this, Connell saw A.B. burp and pass a little gas.
Connell continued the timeline—A.B. was not hungry when Connell brought him home, so Connell gave him some Boost and Gatorade, followed by a little Pepto-Bismol. A.B. was thirsty and drank about a quart of liquid. Between noon and 2:00 p.m., Connell gave A.B. some Triaminic to help him sleep and put him on the bed. Later in the interview, Connell remembered he also gave A.B. a bath before putting him in bed. While Connell was using the computer, he heard A.B. burping and gagging. Connell then moved A.B. to the floor so he wouldn't throw up on the bed. Connell took a nap while A.B. was resting on the floor and, at this time, R.B. was watching television in a different room.
Connell told Detective Noonan the next thing he remembers is R.B. waking him up between 4:00 and 5:00 p.m. to take a phone call. When Connell saw that A.B. was cold and stiff and had thrown up, he attempted CPR. Connell stated that when A.B. remained unresponsive, he attempted suicide. Connell wrapped A.B. in a blanket and drove to the hospital. Connell told R.B. to "go play in the room" while he was gone. Finally, Connell stated he did not call 911 because A.B. "was already dead."
When Baldwin was questioned the next day—Wednesday, October 13— she did not express concerns regarding Connell's treatment of A.B. Baldwin stated she was not aware of any hitting or striking of her children by Connell.
Two days after A.B. died, on Thursday, October 14, Detective Dinneweth interviewed Baldwin at the police station. Baldwin admitted to Detective Dinneweth that Connell used harsh discipline tactics on A.B. and she saw Connell striking ...