En Banc. Dolliver, J. Brachtenbach, Andersen, Durham, Smith, and Guy, JJ., and Callow, J. Pro Tem., concur. Dore, C.j., and Utter, J., dissent by separate opinion; Johnson, J., did not participate in the disposition of this case.
On May 17, 1986, 3-year-old Steven Collins died from swelling of the brain and bleeding into the skull cavity resulting from a severe blunt impact to his head. His uncle, defendant David A. Crane, was charged with causing his death. The facts which surround the circumstance of Steven's death took place between May 9 and 15, 1986.
In February 1986, Steven Collins' grandfather asked his daughter Theresa Crane and her husband David whether they would be willing to provide child care for Steven on days when he did not attend his usual day-care service. As Theresa had recently quit her job, she agreed to do this. The arrangement began smoothly but as time progressed Phil Collins, Steven's father, would sometimes leave the child at the Cranes' apartment overnight without first checking with them ahead of time. This eventually began to annoy the Cranes, who also had to care for a 3-year-old daughter of their own and Theresa Crane's 8-year-old son.
Early in May 1986, David Crane quit his job. His wife testified Crane was "frustrated" during this period of time and that he also was participating in a methadone maintenance treatment program.
On May 3, 1986, while bathing Steven, Mrs. Crane noticed a bruise under one of his eyes which she had not seen earlier in the day. Steven had been left alone with David Crane most of the day. Steven did not come back to the Cranes' again until May 9. On that day, both David and
Theresa Crane were home. Toward evening, Mrs. Crane put Steven and her daughter Jessica in the bathtub together and went downstairs. Jessica came down the stairs a while later and Mrs. Crane dressed her. Soon thereafter, David Crane came downstairs carrying Steven wrapped in a blanket. Crane told his wife he had been lying down in the bedroom when he heard a thump and ran into the bathroom where he saw Steven "coming up underneath the faucets." As a result of this incident, Steven's cheeks became red and swollen and his face was noticeably bruised. Mrs. Crane called her brother to tell him about the fall, and fearing Steven may have suffered a concussion, she suggested he might want to take the child to a doctor. By the time Collins came to take Steven home, he was active and playing with Jessica.
The next time Steven was dropped off at the Cranes' apartment was May 12. Mrs. Crane testified the child was active and that the bruising on his face seemed to be subsiding. David Crane was not left alone with Steven on that day, and Phil Collins came and picked the child up that evening.
On May 13, Steven again was dropped off at the Cranes' apartment. Although he seemed active and alert when he arrived, Mrs. Crane testified he started acting tired, confused and withdrawn around dinnertime. Although he normally had a healthy appetite, he had no appetite that evening. Mrs. Crane also testified that prior to when Steven began to act differently, she noticed a very red and bruised rash area suddenly develop on the child's nose. She testified she had never seen anything like it on Steven or her children before. Sometime after dinner, when Steven had already fallen asleep, Phil Collins called to say he would not be able to pick Steven up that evening.
On Wednesday morning, May 14, Mrs. Crane woke her son Jason, and after making him breakfast, she left the house and drove him to school. When she came home, a friend of David Crane's arrived at the apartment and went upstairs to wake him. Steven and Jessica were still sleeping.
David Crane yelled down to his wife to make him a cup of coffee. When she told him there was no sugar, Mr. Crane went into "a total rage" and yelled at his wife to go to the store and buy some sugar. Mrs. Crane took Jessica with her and left. When she came back, Steven was awake and Mr. Crane's friend had left. After having his coffee, Crane left for the day with Jessica.
Shortly after Crane left, Mrs. Crane gave Steven a bath. She noticed a bruise on the child's bottom which resembled a hand print. She later asked Crane about this, and he explained he had spanked Steven for wetting his bed. Mrs. Crane also observed Steven was very quiet during the bath. When she had finished bathing him, a large clump of hair fell out when she brushed it, leaving a noticeable bald spot. Mrs. Crane did not recall seeing any other marks on Steven during this bath.
Steven's behavior became more alarming to Mrs. Crane as the day progressed. He would not eat any breakfast, nor would he leave the porch to play with other children in the backyard. The child seemed withdrawn, lethargic and frightened. Mrs. Crane testified that Steven's behavior alarmed her because it was inconsistent with his normally happy disposition.
A few hours later in the day, David Crane and Jessica came home, and Mrs. Crane left her husband with the children while she went out. When she returned, Crane was feeding Steven spaghetti in the kitchen. Mrs. Crane noticed the front of Steven's shirt was wet. She did not have time to observe Steven's demeanor as Crane abruptly took Steven upstairs to give him a bath. Mrs. Crane could hear Steven crying in the bathtub.
When Phil Collins came to pick Steven up that evening, the Cranes told him he should take the child to his doctor. Although Mr. Collins called the family doctor immediately, the doctor was on vacation so no appointment was made.
The next morning, May 15, Phil Collins gave Steven a bath before taking him to the Cranes' apartment. When he was drying Steven off, he noticed etch marks on the child's
skin which resembled tic-tac-toe designs. These marks were later discovered to match the design on the end of a hair dryer belonging to the Cranes. Mr. Collins also noticed some unusual bruising on Steven's shoulders and lower legs and that the child was acting as if he were "out of sorts". Becoming concerned, Mr. Collins made arrangements to take Steven to the doctor that evening.
When Phil Collins took Steven to the Cranes' apartment, the child strongly protested being left without his father. This had happened once previously that week on May 12. Eventually Steven calmed down and his father left. A few minutes later, Steven was taken to a neighbor's (Robin Mayo) apartment while the Cranes and their daughter went to the welfare office to apply for assistance. Mrs. Crane testified she and her husband decided not to take Steven with them because the bruises on his face were noticeable, and they did not want anyone to think he had been abused.
While at Mayo's home, Steven was quiet but alert. He was able to stand, walk, watch television, and identify pictures in a book. Mayo noticed bruises on his face and the red scab at the end of his nose.
At approximately 3 p.m., Theresa Crane arrived at Mayo's apartment and began talking with her. David Crane arrived at Mayo's apartment shortly thereafter to get Steven, who was still asleep. He carried Steven back to the Cranes' apartment. Theresa Crane testified she stayed approximately 10 minutes more at Mayo's before going home herself. When she got home, she saw her husband standing at the stove heating water in a pan to make coffee. Mr. Crane said he had put Steven to bed. Mrs. Crane went up to check on Steven. She saw him covered with a blanket and looking as if he were vomiting and gagging in his sleep. Mrs. Crane became hysterical. She grabbed Steven and ran down the stairs. She was unable to wake the child. David Crane took the child from his wife while she ran outside for help. When she came back inside, she found her husband with Steven in the bathroom. Mr. Crane had filled the tub with cold water and was holding the child in the tub. He
then began to shake the child violently in an attempt to revive him. Mr. Crane then turned to his wife and screamed at her to go to Everett to pay the rent. When she was outside and in her car deciding what to do, Crane yelled down to his wife that Steven was coming around and that if things got worse he would take him to the hospital. Mrs. Crane then drove off.
When Mrs. Crane got to Everett, she called home, and her husband told her things did not look good with Steven and that she should come home immediately as the child needed to go to the hospital. Unable to face the situation by herself on her return, Mrs. Crane brought Robin Mayo with her to the apartment. Ms. Mayo testified Steven's face was a little pinker than it had been when he was at her house earlier. Another neighbor, JoAnne Thomas, was also summoned. Ms. Thomas was a graduating nursing student at the time. She testified Steven's face was red and swollen and beginning to blister. It was her opinion the blistering was caused by recent burns to the child's face. Ms. Thomas also testified that David Crane was stooping over Steven during this time and was pulling at the burnt skin on the child's face, causing it to separate and pull apart from the skin layer under the burn. Ms. Thomas immediately called 911.
The paramedics who responded to the 911 call testified that the child was stiff, cold and unconscious when they arrived and during the ride to the hospital. They also testified they saw bruises and other marks on the child's body and second degree burns on his face and chest.
Steven Crane died 2 days later on Saturday, May 17, at approximately 1 a.m. David Crane was subsequently charged with one count of second degree murder under RCW 9A.32.050(1)(b) and two counts of second degree assault under former RCW 9A.36.020(1)(b) and (c) (one count for burning the child with the hair dryer and another count for tossing scalding water in his face). Defendant pleaded not guilty to all three counts.
At trial, several physicians who examined Steven before and after his death testified. The first to examine the child in the emergency room were Dr. Beaupied and Dr. Feldman. Dr. Beaupied testified to numerous burns, lesions and bruises over most of Steven's body. He testified the second degree burns on the child's face and chest were less than 24 hours old. Dr. Beaupied also noticed bruises on Steven's shoulders which were consistent with holding the child upright and violently shaking him. He stated shaking can cause bleeding in the lining surrounding the brain. Dr. Beaupied testified the injury which killed Steven could only be produced by a significant amount of force, such as that equal to throwing the child against a wall, violent shaking, or being thrown from a moving car. (One jailhouse informant testified to having overheard a phone conversation between Crane and a person the informant believed to be Crane's grandmother wherein Crane admitted to "bounc[ing] the boy against the wall". Crane's grandmother subsequently denied Crane said this to her. Another jailhouse informant testified that Crane told him he threw the child down.) Dr. Beaupied testified it was his opinion the fall Steven took in the tub on May 9 would not have produced enough force to cause the injuries which led to the child's death.
Dr. Feldman is a pediatrician specializing in child abuse who was asked by Dr. Beaupied to examine Steven. Dr. Feldman's opinion was that it was "terribly terribly unlikely" for a child who sustained the injury sufficient to cause the damage suffered by Steven to have awakened from the injury. Dr. Feldman also testified it was his opinion the injuries were caused by the child's head striking an object rather than from being violently shaken. He agreed with Dr. Beaupied that the head injuries Steven suffered were inconsistent with a mere slip in the bathtub a week earlier.
Dr. Loeser, a neurosurgeon who performed a cranial operation on Steven in an attempt to alleviate pressure building on the child's brain, testified it was his opinion an
injury with enough force to cause the damage he saw would have more likely than not rendered Steven unconscious immediately. Dr. Loeser agreed with the other physicians that Steven's injuries were inconsistent with a fall in the bathtub; instead, he stated the injuries were more consistent with a fall from a tree, or from someone of "adult size, turning the child into a missile". Dr. Loeser, when pressed by defense counsel, did agree that if Steven had been acting abnormally sometime shortly before he was found unconscious, there was a remote chance he may have sustained the fatal blow sometime prior to the few hours before the paramedics were called. However, the doctor did not believe this was the case.
Dr. Fligner, who performed the autopsy on Steven's body, also described scald burns on the body as well as multiple bruises around the head which were in the shape of plastic toy tools seized from the Crane apartment. Dr. Fligner also agreed the life-threatening bruises were the head injury. It was Dr. Fligner's opinion the impact Steven endured would have rendered him unconscious somewhere between minutes and several hours, and she stated she would not have expected the child to have regained consciousness. Doctor Fligner assessed the fatal blows to have been inflicted within 72 hours of the child's death, or sometime between approximately 1 a.m. on Wednesday, May 14 and approximately 1 a.m. on Saturday, May 17.
David Crane did not testify; however, several character witnesses did so on his behalf. Defendant attempted to show Phil Collins was guilty of abusing Steven rather than himself. Phil Collins denied having ever abused his son.
In closing, the State argued the May 9 fall in the bathtub did not cause Steven to suffer a concussion. Instead, the State attributed the child's withdrawn and lethargic behavior to typical symptoms of child abuse. The State's position was that the fatal injury inflicted on Steven could only have occurred shortly before he was taken to the hospital.
In closing, defense counsel argued the injuries Steven suffered, which led to a slow degeneration of his condition
throughout the week, were actually caused by Phil Collins rather than defendant. Defense counsel also argued Crane did not cause the fall in the bathtub.
The court instructed the jury that in order to find defendant guilty of second degree murder (count 1) it had to find that on or between the 9th and the 15th of May the defendant committed the crime of second degree assault by knowingly inflicting grievous bodily harm upon Steven Collins by causing him to sustain massive blunt trauma to his head, and that the defendant caused the child's death in the course of and in furtherance of such crime. The court also instructed the jury that in order to find defendant guilty of the two assault charges it had to find defendant, on or about May 14 and 15, knowingly inflicted grievous bodily harm on Steven by splashing or tossing hot water on the child's face (count 2) and by burning him with a hair dryer (count 3). These instructions are identical to the instructions submitted by defense counsel.
The jury found Crane guilty on all three counts. The trial court imposed an exceptional sentence of 720 months (60 years) for second degree murder and 10 years each for the two assault convictions.
Defendant appealed his conviction to the Court of Appeals on several grounds, including the trial court's failure to instruct the jury it needed to be unanimous as to at least one particular assault which caused Steven's death. In a 2-to-1 decision (Swanson, J., dissenting), the Court of Appeals, in an unpublished opinion, reversed defendant's conviction for second degree murder on the ...