State v. Dakota R. Black, 2017AP837, 3/22/18, District 4 (not recommended for publication); case activity (including briefs)
A jury convicted Black of the homicide of B.A.T., a five-year-old child in his care; the child was bruised and died of subdural hemorrhages. Black defended on the theory that the child’s injuries came in a fall, either on the stairs or on the playground.
Black raises several challenges. First, he claims the trial court should have allowed testimony of another child who said B.A.T. had fallen from a swing earlier in the day; the court of appeals agrees with the trial court that the testimony did not support his theory because the child said B.A.T. had fallen on his knees, not his head. (¶¶10-11). The court similarly rejects an argument that the court should have admitted a video of unknown provenance depicting a toddler falling off playground equipment. (¶¶12-14).
Black also tried to exclude the testimony of two expert witnesses for the state as not meeting the Daubert standard. He complains that their conclusions on various issues were contradicted by scientific literature or other scientific evidence. The court notes, however, that this is not the standard; that experts disagree or that some evidence weighs against an expert’s opinion does not lead to the exclusion of that opinion. (¶24).
Black next argues the state should not have been allowed to call a particular witness on rebuttal because her testimony did not meet the definition of “rebuttal.” The court assumes error but finds it harmless, in a fact-specific discussion that will not be repeated here. (¶¶30-33).
Black calls his trial lawyer ineffective for failing to offer more treatises to attack the state’s experts and failing to impeach one witness with inconsistent statements. The court concludes that his arguments do not establish prejudice, so it rejects the claim. (¶¶34-42).
Finally, Black requests a new trial in the interest of justice which, for the reasons it has already discussed, the court does not find merited. (¶¶43-44).
