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State v. Lopez

Court of Appeals of Iowa

December 19, 2018

STATE OF IOWA, Plaintiff-Appellee,
JOE ANTHONY LOPEZ, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.

         Joe Lopez appeals his conviction for murder in the first degree.

          Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney General, for appellee.

          Heard by Tabor, P.J., and Mullins and Bower, JJ.


         Joe Lopez appeals his conviction for first-degree murder following the death of his girlfriend's twenty-month-old child, R.A. Lopez claims six trial errors-two of which focus on the phrase "to a reasonable degree of medical certainty" as used by medical experts. First, Lopez alleges the expert testimony was insufficient to prove he inflicted R.A.'s fatal injuries. Second, he contends trial counsel was ineffective for not requesting a jury instruction defining reasonable degree of medical certainty. Third, he alleges counsel was ineffective for not objecting to prior-bad-acts evidence. Fourth, he argues the district court should have allowed the jury to hear he was willing to take a polygraph. Fifth, Lopez insists the district court should have excluded the medical examiner's manner-of-death testimony. And sixth, Lopez asserts the prosecutor improperly invoked the "product rule" in closing argument.

         On the sufficiency claim, when viewed in the light most favorable to the verdict, the evidence presented by the State's experts-combined with other circumstances-allowed the jury to find Lopez guilty beyond a reasonable doubt. On the first ineffective-assistance claim, we find counsel had no duty to ask for a novel instruction defining a reasonable degree of medical certainty. We preserve the second claim, concerning prior bad acts, for further development in an action for postconviction relief. We find no abuse of discretion in the district court's exclusion of Lopez's willingness to take a polygraph test or admission of the medical examiner's opinion on R.A.'s manner of death. Finally, Lopez failed to demonstrate he was prejudiced by the prosecutor's statements in closing argument. Finding no reversible error, we affirm the first-degree murder conviction.

         I. Facts and Prior Proceedings

         In the fall of 2014, Lopez moved into the basement apartment of a house in Clive with his girlfriend, Nisa. She lived there with her three children-ages eight, four, and not quite two. R.A. was her youngest.

         R.A. had flu symptoms the week of Thanksgiving 2014. When the family ate a turkey dinner on Thursday, November 27, the toddler "nibbled a little bit and then she ended up throwing up." Nisa recalled R.A. was "very quiet" on Friday and fell asleep on the couch.

         According to Lopez, around 2:00 in the morning on Saturday, November 29, he was asleep in Nisa's bedroom when he heard R.A. crying. Lopez later told detectives he picked up R.A. from the mattress where she was sleeping with her brothers and took her to the kitchen. He said he gave her water and a piece of leftover turkey. Lopez recounted leaving R.A. in her highchair while he went to the bathroom, the door slightly ajar.

         Lopez said, while in the bathroom, he "heard a smack on the floor." According to his interview, he returned to the kitchen, where he saw R.A. lying on the floor next to her highchair. Lopez said he saw a bump on R.A.'s head. Her eyes were rolled back, and she was gasping for air. Lopez woke Nisa, telling her they needed to rush R.A. to the hospital.

         Nisa recalled when Lopez woke her, R.A. already had her coat and boots on and was not making any sounds, and Lopez looked worried. Nisa felt a bump on the back of R.A.'s head. Lopez drove Nisa and R.A. to the hospital. While on the way to the hospital, Lopez told Nisa:

R.A. woke up crying and that he went in the room and picked her up and took her to the kitchen and sat her down on her highchair and gave her a couple pieces of turkey, and he went to the restroom, and . . . right when he sat down he heard a bump.

         Upon arriving at the hospital, Lopez took R.A. inside while Nisa parked the car. Lopez informed emergency room staff R.A. fell out of her highchair. R.A. was non-responsive and struggling to breathe on her own. Emergency-room staff intubated her and began assembling a team of physicians to treat her.

         As the on-call trauma surgeon, Dr. Richard Sidwell evaluated R.A. when she arrived at the hospital. Dr. Sidwell described the back of her head as "boggy, and that means swollen, squishy." He further observed

a skull fracture toward the back of her head, a skull fracture, and then within her skull, injury to the brain itself, so that's hemorrhage around the brain and creating pressure on the brain. So we knew about her severe head injury.
Also after evaluation, the initial evaluation, we knew that she had at least four rib fractures. She had fractures of ribs one and two on both sides. Those are the injuries, in addition to a bruise on her head and a scrape on her chin. Those are the injuries that we knew about after her evaluation in the emergency room.

         After examining R.A., Dr. Sidwell spoke with Lopez and Nisa. Lopez repeated his version of events, but Dr. Sidwell was skeptical. During the State's direct examination, Dr. Sidwell opined, "[H]er injury situation is very suspicious for a nonaccidental trauma, meaning she didn't just accidentally fall out of a high chair."

         Dr. Sidwell called in neurosurgeon John Piper to join R.A.'s trauma team that morning. Dr. Piper also evaluated R.A. in the emergency room. His primary concern centered on the fact R.A. "was in a very deep coma and was having problems breathing spontaneously." R.A.'s trauma team ordered scans to identify potential head injuries.

         According to Dr. Piper, the preliminary scans demonstrated

evidence of hemorrhage around the surface of [R.A.'s] brain or in the spinal fluid spaces. None of those hemorrhages were large where we could go in and maybe help with the pressure. They were very thin little layers of blood, but there were many areas of hemorrhage that we could see.

         When asked by the prosecutor whether R.A.'s injuries were consistent with falling from a highchair, Dr. Piper responded, "No, they were not." He elaborated,

[W]e see people all the time that fall out of high chairs or shopping carts, and of those people that we see, it's probably far less than ten percent of them that actually have found to have an injury at all. And of the injuries that they do have, typically they're very, you know, more mild. There are people who have maybe just a tiny little spot of blood or a small crack in the bone . . . . So her condition was way worse than the typical condition someone would have from a simple fall.

         Dr. Piper was even more alarmed after reviewing R.A.'s autopsy and learning she suffered axonal tears:

[A]xonal injury is different because axonal injury tells us that there have been forces that are different than just a simple fall. It implies that there's either flexion, extension, and rotation that occurs to the head because those fibers-what "axonal" means is that the fibers called the axons of the nerve are sheared, so a certain number of them will be lost from that shearing motion. So it implies something much more than just a simple . . . fall.
It is seen most commonly in patients literally that are thrown out of vehicles in an accident. So if someone is driving sixty miles an hour and they hit a structure and are thrown through the windshield and tumble and roll literally sixty to a hundred feet sometimes away from their vehicle, those people will oftentimes come in with the shear injury. So it's usually associated with very severe injuries that involve a rapid back and forth movement or rotational movements. So it's something you just don't see from a fall.

         When radiologist Bradley King reported for his shift the morning of November 29, he found the overnight radiologist had already performed scans of R.A.'s head and cervical spine. When reviewing those images, Dr. King noted additional posterior medial rib fractures. Dr. King testified, "Posterior medial rib fractures are considered to be a classic sign of child abuse."

         The State asked the radiologist if he could delineate a timeline of the injuries he saw through imaging. Dr. King said he assumed fractures were acute[1] unless otherwise noted, "which means if I had seen a fracture that was in a state of healing or I felt that the fracture was old, then I would have noted that in my report." Because he saw no signs of healing, he opined the rib fractures occurred within "probably a week or less."

         Pediatrician Kenneth McCann examined R.A. in the afternoon on November 29. Dr. McCann, a child abuse specialist, also reviewed R.A.'s chart and spoke with Nisa. After his consultation, Dr. McCann concluded R.A.'s injuries were inconsistent with falling from a high chair.

         Attending R.A's autopsy provided Dr. McCann additional insight. The autopsy revealed mesentery bruising. Dr. McCann testified, "[R.A.] had two C-shaped bruises on her abdomen. And we know abdominal bruising is a high red flag for bruising deeper down. So that sort of puts two-and-two together in my head."

         Dr. McCann testified regarding the timing of R.A.'s injuries. He described the skull fracture as "acute, immediately symptomatic. The minute that happened she would be unconscious." He also confirmed R.A. had "fresh rib fractures." But Dr. McCann did not "feel comfortable" saying "the ribs had to have happened at the same time as the skull fracture."

         Later in the week, radiologist Brent Steinberg joined R.A.'s trauma team. Acting as a fresh set of eyes, Dr. Steinberg reviewed R.A.'s images. Like the two other radiologists, Dr. Steinberg believed R.A.'s injuries were caused by "potential nonaccidental trauma." In reaching that opinion, he considered (1) the complexity of the skull fractures, (2) the quantity of blood between the brain and skull bone, and (3) the number of rib fractures. To him, the rib fractures were the most telling injury because of the significant force necessary to break the first and second ribs. He also noted the fractures were equidistant from the spine, which "is unusual to have in anything other than nonaccidental trauma." According to Dr. Steinberg, the mechanism usually causing this type of rib fracture is "an excessive hard squeeze."

         In the days after R.A.'s hospital admission, the doctors tried to keep her stable but soon realized her brain swelling was "bad enough that it would be a fatal situation without a drastic intervention." That drastic intervention was a decompressive craniotomy.[2] But the procedure was ultimately unsuccessful. On December 3, 2014, R.A. succumbed to her head injuries.

         Two days later, Polk County Medical Examiner Gregory Schmunk performed R.A.'s autopsy. He described R.A.'s mesentery injury as "not more than several days, maybe out five to seven days, old." He concluded, "[F]alling from a highchair onto your back-the history was that she was found on her back facing up-would not cause this type of an injury." Dr. Schmunk estimated the rib fractures were less than one week old at the time of the autopsy. Dr. Schmunk attributed the injuries to "an abusive act, a physical squeezing of the chest by another person, certainly an adult." Dr. Schmunk certified the cause of R.A.'s death as craniocerebral trauma-in other words, "injury to the brain and skull." Dr. Schmunk testified "within a reasonable degree of medical certainty" he determined the manner of death was "homicide or the act of another person on her."

         In January 2015, the State charged Lopez with first-degree murder and child endangerment resulting in death. His first jury trial ended in a mistrial. After the second trial, the jury returned guilty verdicts on both counts. The district court entered judgment for first-degree murder, sentencing Lopez to life imprisonment.[3]Lopez appeals.

         II. Scope and Standards of Review

         We review challenges to the sufficiency of the evidence for correction of errors at law. State v. Schlitter, 881 N.W.2d 380, 388 (Iowa 2016) (citing State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013)). We review evidentiary rulings for an abuse of discretion. State v. Tyler, 867 N.W.2d 136, 152 (Iowa 2015) (citing State v. Elliot, 806 N.W.2d 660, 667 (Iowa 2011)). Likewise, we review the district court's ruling on Lopez's objection to the prosecutor's closing argument for an abuse of discretion.[4] See Coleman, 907 N.W.2d at 134. We review of ineffective-assistance-of-counsel claims de novo. Schlitter, 881 N.W.2d at 388 (citing State v. Tompkins, 859 N.W.2d 631, 636 (Iowa 2015)).

         III. Analysis

         A. To A Reasonable Degree of Medical Certainty

         R.A.'s cause of death emerged as the fighting issue at Lopez's trial. To prove causation, the State called six doctors. The defense answered with two of its own medical experts. Of the eight total doctors, seven testified they were giving their opinion "to a reasonable degree of medical certainty." Four of those seven witnesses offered a definition of "a reasonable degree of medical certainty."[5]

         As mentioned in our opening paragraph, this phrase is central to two of Lopez's appellate issues: (1) the sufficiency of the evidence and (2) trial counsel's failure to request a jury instruction. Before addressing those issues, we briefly explore the legal concept of "a reasonable degree of medical certainty."

         In our legal lexicon, it means "[a] standard requiring a showing that the injury is more likely than not caused by a particular stimulus, based on the general consensus of recognized medical thought." Reasonable Medical Certainty, Black's Law Dictionary (10th ed. 2014). But legal scholarship has documented the lack of an "agreed-upon meaning" for the phrase "reasonable degree of medical certainty." See, e.g., Lucy Johnston-Walsh et. al., The Unreasonably Uncertain Risks of "Reasonable Medical Certainty" in Child Abuse Cases: Mechanisms for Risk Reduction, 66 Drake L. Rev. 253, 255 (2018) ("[T]here is a range of meanings attributed to this phrase by attorneys, judges, and testifying witnesses, is a high risk of expert testimony being misinterpreted with potential false convictions or improper exonerations in child abuse cases.").

         In some jurisdictions, courts have struggled with the evidentiary standard for the admissibility of medical testimony. See, e.g., Dallas v. Burlington Northern, Inc., 689 P.2d 273, 277 (Mont. 1984) ("Although we still formally adhere to a 'reasonable medical certainty' standard, the term is not well understood by the medical profession. Little, if anything, is 'certain' in science. The term was adopted in law to assure that testimony received by the fact finder was not merely conjectural but rather was sufficiently probative to be reliable. We are striving for, what in fact, is a probability rather than a possibility."), superseded by statute, 2011 Mont. Laws 618, as recognized in Ford v. Sentry Cas. Co., 282 P.3d 687 (Mont. 2012); Bara v. Clarksville Mem'l Health Sys., Inc., 104 S.W.3d 1, 5 n.1 (Tenn. Ct. App. 2002) (decrying use of "magic words"). Other jurisdictions have embraced the meaning of the phrase. See, e.g., Clifford v. United States, 532 A.2d 628, 640 (D.C. 1987) ("This standard of 'reasonable' medical certainty, reflects ...

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