UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DEVANEY CLARK MILLS, Defendant-Appellant.
No. 95-1319 (D.C. No. 95-CR-85-Z)
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
Filed 4/10/96
(D. Colorado)
Before BALDOCK, McWILLIAMS and BRORBY, Circuit Judges.
Devaney Mills was convicted by a jury of one count of assault in Indian Country involving serious bodily injury. He appeals the district court‘s denial of two of his motions in limine which sought to have certain evidence excluded at trial. He requests this court to set aside the jury verdict and enter a judgment of acquittal. We exercise jurisdiction pursuant to
The prosecution proved that Mr. Mills’ almost three-year old stepdaughter suffered severe injuries while in Mr. Mills’ care. The injuries included extensive bruising, a skull fracture, and other massive head injuries. As a result, the young girl suffered multiple seizures, partial brain death and was in a coma for six days. The young girl was left with long-term disabilities on the left side of her
Mr. Mills appeals based on the district court‘s denial of two of his motions in limine. In one motion, he objected to photographs the prosecution planned to use as exhibits of the child which depicted old bruises as well as her current injuries. In the second motion, Mr. Mills objected to testimony from his wife, who is also the child‘s mother, regarding two incidents of domestic violence. The trial court denied both motions. Mr. Mills presents two issues on appeal: 1) “[d]id the court erroneously admit
I
The decision to admit or exclude the photographs is within the district court‘s sound discretion. We will reverse such decisions only if there is a clear abuse of that discretion. Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1433 (10th Cir. 1993); United States v. Young, 952 F.2d 1252, 1259 (10th Cir. 1991). Abuse of discretion “is not merely an error of law or judgment, but an overriding of the law by the exercise of manifestly unreasonable judgment or the result of
The prosecution introduced two sets of six photographs as exhibits. Investigators took the photographs of the victim the day after her injuries were inflicted. The medical experts used the pictures to describe the child‘s condition and injuries. Some of the photographs depicted old bruises. In addition to the photographs, the prosecution introduced the testimony of various witnesses who testified the child had no bruises prior to the child‘s mother‘s relationship with Mr. Mills, and about other suspicious bruising and injuries the child had suffered. The medical experts also testified regarding the older bruising and how these bruises were indicative of abuse.
We note that whether Mr. Mills objected to the admission of the photographs at trial to preserve the issue for appeal is problematic. When the prosecution moved for the admission of the photographs, defense counsel stated: “Your honor, I have no objection. Of course, the Court has already ruled on admissibility.” From this statement it appears defense counsel may have failed to preserve the issue for appeal. We are mindful though that the district court had stated just moments earlier that it had already ruled on the admissibility of the photographs. Nevertheless, it would have been appropriate for defense counsel to renew his objection and restate the grounds on which he relied. We have held a motion in limine may preserve an issue for appeal under certain circumstances. United States v. Mejia-Alarcon, 995 F.2d 982, 986 (10th Cir.), cert. denied, 114 S. Ct. 334 (1993). For purposes of this opinion, we will assume, without deciding, that the issue was properly preserved for appeal.
But the whole pictures of the child showing the back and the buttocks, for example, which may have old bruises, it seems to me should come in.
It shows a lot of other things, too. It shows the size of the child and may really be helpful in other points of evidence. One may worry about someone falling on a child if it‘s a big child as opposed to a very small child, for example.
Rather than challenging the specific Huddleston factors, Mr. Mills alleges the evidence of the past bruising was inadmissible because he was never identified as the person who committed the past bruising. In United States v. Harris, 661 F.2d 138, 141 (10th Cir. 1981), we dealt with facts very similar to those in the case at bar to find the government presented enough circumstantial evidence to permit the jury to find the defendant had abused his child on prior occasions. The circumstantial evidence included: (1) the fact that the defendant had the opportunity to assault his child, (2) the government negated the possibility that someone other than the defendant had abused the child by calling a list of other caretakers of the child who testified that the child had not suffered any mishaps while in their care, and (3) the defendant‘s history of emotional problems. Id. In the case at bar, the government showed Mr. Mills was the primary caretaker of the child, he had the opportunity to assault the child and that others who cared for the child had no knowledge of any bruising on the child prior to Mr. Mills becoming her caretaker. This evidence combined with the expert testimony that bruises like those found on the victim are not normally caused by accident could allow a reasonable jury to infer that Mr. Mills was the cause of the older bruising as well. We note the admissibility of past wrongs or acts evidence is particularly relevant in child abuse cases where the victim may be too young to provide verbal testimony. In such a case, the evidence of past injuries inflicted while in the defendant‘s care, absent a probable explanation, becomes highly
It is also important to note that although some of the photographs did include pictures of old bruises, the central relevance of the photographs was to depict the condition of the child immediately following the events for which the defendant was being charged. It is well-settled that photographs showing the extent of injuries suffered by a crime victim are admissible because they give the jury a more complete understanding of the events and can assist medical experts in their testimony. United States v. Soundingsides, 820 F.2d 1232, 1243 (10th Cir. 1987). We are unpersuaded by Mr. Mills’ contention that the photographs could have been cropped or edited to remove all evidence of past bruising. As we stated in Harris, 661 F.2d at 142, “a battered child is not a pretty picture.” The jury was entitled to see an honest representation of what the child looked like to the testifying doctors immediately following the injuries. Each doctor made an assessment that the child‘s injuries were the result of child abuse based on her old bruises, new injuries and improbability of the defendant‘s explanation. The evidence pertaining to the old bruises was thus clearly relevant to show a lack of accident, pattern of abuse, possible motive, and to help the jury to understand the medical experts’ testimony. The district court did not abuse its discretion in admitting the pictures in their entirety or the testimony explaining them.
II
Mr. Mills also objects to testimonial evidence describing two incidents of domestic violence between Mr. Mills and his wife. This testimony was elicited by the defense on direct examination
“if defendant chooses to call [Mrs. Mills], then absolutely she may be questioned about past injuries to her, which would go to credibility of her testimony in at least two different ways.... If she would testify that he was nonviolent, it would go to that issue; but it would also test credibility just as to whether she might be afraid of him or testifying in that way because of her fear.”
The defense then made the strategical decision to address such evidence on direct examination. The testimony on such evidence was minimal. In any event, by introducing the evidence of domestic abuse, the defendant lost the ability to appeal the admission of such testimony for “an appellant may not complain on appeal of errors which he himself induced or invited.” Gundy v. United States, 728 F.2d 484, 488 (10th Cir. 1984). Under these circumstances, we do not find the admission of such evidence to be an abuse of discretion.
III
Mr. Mills also claims that even if the evidence of past bruising and domestic violence was admissible, it should have been excluded under
For the reasons stated above, the district court‘s order is AFFIRMED.
Entered for the Court:
WADE BRORBY
United States Circuit Judge