Vicki Leigh Chiles v The State Of Oklahoma

F-2008-433

Filed: Aug. 24, 2010

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Vicki Leigh Chiles appealed her conviction for First Degree Child Abuse Murder. Conviction and sentence were modified to life imprisonment with the possibility of parole after thirty years. Judge Lumpkin dissented. In this case, Vicki operated a day care at her home and was caring for several children, including two-year-old Joshua Minton. When Minton was disruptive during nap time, Vicki taped his mouth and hands and left him alone in a bedroom. Unfortunately, Minton then vomited while his mouth was taped and suffocated. The trial court determined that Vicki's actions were not an accident, so they did not permit the jury to consider a defense of "excusable homicide." They also concluded she could not be charged with a lesser offense of second-degree murder since the laws applicable to child abuse murder did not allow for that in this situation. Ultimately, while Vicki's conviction was upheld, her punishment was changed to allow for parole after serving thirty years, because the jury was unclear about the meaning of her sentence.

Decision

The Judgment of the District Court is AFFIRMED. The matter is REMANDED to the District Court with instructions to MODIFY Appellant's sentence to life imprisonment with all but the first thirty years suspended and set the conditions of probation. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was there an error in the trial court's refusal to instruct the jury on the defense of excusable homicide due to accident or misfortune?
• did the trial court err in declining to give a special jury instruction based on Oklahoma's child discipline statute?
• was there an error in the trial court's decision not to instruct the jury on the lesser offense of second degree murder?
• was it reversible error not to instruct the jury on the meaning of "life without parole" due to their confusion regarding sentencing options?

Findings

• the trial court did not err in declining to instruct the jury on the defense of excusable homicide due to "accident or misfortune" and on Oklahoma's child discipline statute
• the trial court did not abuse its discretion by denying the instruction on second degree murder as it is not a lesser-included offense of first degree child abuse murder
• the Court modified the punishment to life imprisonment with the possibility of parole, suspending all but the first thirty years of the sentence

F-2008-433

Aug. 24, 2010

Vicki Leigh Chiles

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE C. JOHNSON, PRESIDING JUDGE:

Vicki Leigh Chiles, Appellant, was tried by jury and convicted of First Degree Child Abuse Murder, under 21 O.S.Supp.2006, § 701.7(C), in the District Court of Tulsa County, Case No. CF-2007-2840. In accord with the jury’s recommendation, the Honorable Clancy Smith, District Judge, sentenced Chiles to imprisonment for life without the possibility of parole. Chiles is properly before this Court to appeal her conviction and sentence.

On May 17, 2007, Vicki Leigh Chiles was operating a Noah’s Ark Day Care in her Tulsa home. She was caring for seven children that day, including two-year-old Joshua Minton. When it was time for the children to take their afternoon nap, Minton did not want to nap and kept getting up. After a while, Chiles put him in a separate bedroom by himself, so that he would not disturb the other children. Heather Christiano, a DHS child care licensing specialist, and her supervisor, Jane Whitson, happened to come by Chiles’ home day care that day for an unannounced visit, around 2:00 p.m. After they knocked a few times, Chiles, who was on the phone (getting instructions from EMSA) opened the door, motioned for them to come in, and then walked back to the living room. When the women followed Chiles into the home, they found her attempting to give Minton CPR. Christiano described Minton’s appearance as white and turning blue and very floppy and that he appeared lifeless. At that point, Whitson went out to watch for the ambulance, and Christiano gathered up the other six children in the home and took them to a back playroom. When the emergency responders arrived a few minutes later, they found Minton not breathing, with no pulse, cool skin, blue lips, eyes fixed and dilated, and no signs of life. He had quite a bit of vomit in his airway and on his face and some kind of sticky substance on his cheeks. The emergency responders immediately began advanced pediatric life support measures and then transported Minton to St. John’s Hospital. Shortly after arriving there, he was airlifted to St. Francis Hospital, where he died later that day.

Tulsa Police Officer Gene Watkins testified that he was the day-shift supervisor for the Tulsa homicide and crime scene units on May 17, 2007. Watkins testified that Chiles gave him oral permission to search her home and agreed to talk with him. When Watkins searched the southeast bedroom, he found a substantial amount of used, wadded-up masking tape under the sleep mat where Minton had been left. The tape appeared to have vomit and some blood on it. Watkins went outside and told Officer Murphy, who was interviewing Chiles, what he had found. Officer Scott Murphy testified that he worked for the Tulsa Police Department’s Child Crisis Unit and that he interviewed Vicki Chiles on the afternoon of May 17, 2007. Chiles told Murphy that when it was time for the children to nap, Minton stayed awake and was noisy, whiny, and disruptive. She explained that there were six other children in the home at the time, five in the living room and another baby napping in a separate back bedroom. Chiles stated that she put Minton in the southeast bedroom by himself and laid him down on a mat, told him to be quiet, shut the door, and went to check the other children. Chiles was telling Murphy about the events leading up to naptime when Murphy left the car to speak with Officer Watkins. Watkins told Murphy about the masking tape that he had found. When Murphy got back in the car, he asked for 100% honesty from Chiles and told her that he knew things had happened that are not right and that they had found some masking tape. Chiles admitted that she put masking tape over Minton’s mouth, but not over his nose, and that she also put it around his hands, so he would not be able to open the bedroom door. Chiles insisted that she had never done this before, and that she just couldn’t calm him. She stated that she closed the door, but then came back a few minutes later to check on Minton. When she found that he was not breathing she called 911.

The medical examiner testified that the cause of Minton’s death was anoxic encephalopathy due to complications of airway obstruction. Although the emergency responders were able to re-establish his heartbeat, his brain had already been too damaged due to prolonged deprivation of oxygen. There is no dispute in this case that Minton died because he vomited while his mouth was covered up with masking tape causing him to suffocate. There was no evidence that Minton had been otherwise abused or mistreated previously.

In Proposition I, Chiles appeals the trial court’s refusal to instruct the jury on the defense of excusable homicide due to accident or misfortune and also on Oklahoma’s child discipline statute regarding ordinary force as a means of discipline. Because trial counsel requested these instructions, Chiles’ Proposition I claims were properly preserved at trial. The determination of which instructions shall be given to the jury is a matter within the discretion of the trial court and absent an abuse of that discretion this Court will not interfere with the trial court’s decision. Trial courts are required to instruct on a defendant’s theory of defense when evidence has been introduced at trial that is adequate to raise that defense, i.e., to establish a prima facie case of that defense.

Title 21 O.S.2001, § 731(1) provides that homicide is excusable [w]hen committed by accident and misfortune in doing any lawful act, by lawful means, with usual and ordinary caution, and without any unlawful intent. Of this defense, this Court has held: When the death of a human being is the result of accident or misadventure, in the true meaning of the term, no criminal responsibility attaches to the act of the slayer. Thus, the uniform instruction sought by Chiles states: A homicide is excusable when committed by lawful means, with usual and ordinary caution, and without any unlawful intent, but occurs by accident and misfortune while doing some lawful act. Regarding Chiles’ request for an excusable homicide instruction due to accident/misfortune, there can be no real doubt that Minton’s death was both a horrible misfortune and also an accident. Chiles admitted that she taped Minton’s mouth and hands with masking tape and then left him alone in a bedroom and closed the door. Minton died shortly thereafter because he vomited and then suffocated. Accordingly, we find that no reasonable juror could conclude that the admitted actions of Chiles toward Minton were done with usual and ordinary caution. The facts of the current case cannot qualify as an excusable homicide under Oklahoma law. Hence, the trial court did not abuse its discretion in declining to instruct the jury on this defense.

Regarding Chiles’ request for a special jury instruction based upon Oklahoma’s child discipline statute, we likewise find that the trial court did not err in declining to give such an instruction. Title 21 O.S.2001, § 844 provides that, nothing contained in this act shall prohibit any parent, teacher or other person from using ordinary force as a means of discipline, including but not limited to spanking, switching or paddling. However, the circumstances of this case have nothing to do with the use of ordinary force as a means of discipline. The requested instruction and the statute upon which it is based were simply not relevant to the issues properly before the jury in this case. Hence, the instruction was properly declined.

In her second proposition, Chiles argues that the trial court erred in declining to give the jury her requested instruction on the lesser offense of second degree murder. We review a trial court’s decision on the submission of lesser included offense instructions for an abuse of discretion. The general first degree murder statute at 21 O.S.Supp.2006, § 701.7(A) provides that: A person commits murder in the first degree when that person unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof. Under this provision, a showing of deliberate intent to kill is an essential element of the offense. In the instant case, however, Chiles was charged with first degree murder under 21 O.S.Supp.2006, § 701.7(C) which sets out a special form of first degree murder that applies only when the victim is a child and when the death is the result of the use of unreasonable force. Specifically, Section 701.7(C) states: A person commits murder in the first degree when the death of a child results from the willful or malicious injuring, torturing, maiming or using of unreasonable force by said person or who shall willfully cause, procure or permit any of said acts to be done upon the child pursuant to Section 843.5 of this title. It is sufficient for the crime of murder in the first degree that the person either willfully tortured or used unreasonable force upon the child or maliciously injured or maimed the child. By enacting Section 701.7(C) for the special case of child homicide, the Legislature removed the element of deliberate intent to kill and replaced it with the element of willful application of unreasonable force. Thus, the Legislature determined that when the homicide victim is a child, and the death is the result of the use of unreasonable force, the crime is first degree murder, regardless of whether the perpetrator acted without any premeditated design to effect death, or did so with reckless disregard for human life. Consequently, when, as in this case, the homicide victim is a child, and the child’s death was caused by the use of unreasonable force, a jury cannot acquit of first degree murder but convict of second degree murder. Accordingly, second degree murder as defined in 21 O.S.2001, § 701.8, is not a lesser- included offense of first degree murder when the murder is charged under the child abuse murder statute at 21 O.S.2001, § 701.7(C). Thus, because second degree depraved mind murder is not a lesser-included offense of first degree child abuse murder, Chiles was not entitled to a jury instruction on second degree murder. The district court did not abuse its discretion by denying the instruction.

In Proposition III, Chiles argues that it was reversible error not to instruct her jury on the meaning of life without parole, particularly because of the number of questions her jury asked regarding the meaning of this term. It is apparent from the jury’s questions about the meaning of the term life without parole and their instruction dealing with parole eligibility at forty-five years for a life sentence, that the jurors were confused about their sentencing options. We are not convinced, therefore, that the sentence of life without parole was imposed by a properly informed jury. Consequently, under the unique circumstances of this case, the sentence of life without parole shocks this Court’s conscience. Accordingly, we modify the punishment to life imprisonment with the possibility of parole and we suspend all but the first thirty years of this sentence.

DECISION

The Judgment of the District Court is AFFIRMED. The matter is REMANDED to the District Court with instructions to MODIFY Appellant’s sentence to life imprisonment with all but the first thirty years suspended and set the conditions of probation. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 21 § 701.7(C)
2. Okla. Stat. tit. 21 § 731(1)
3. Okla. Stat. tit. 21 § 844
4. Okla. Stat. tit. 21 § 701.7(A)
5. Okla. Stat. tit. 21 § 701.7(C)
6. Okla. Stat. tit. 21 § 701.8

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 (2006) - First Degree Child Abuse Murder
• Okla. Stat. tit. 21 § 731 (2001) - Excusable Homicide
• Okla. Stat. tit. 21 § 844 (2001) - Use of Ordinary Force as a Means of Discipline
• Okla. Stat. tit. 21 § 701.8 (2001) - Second Degree Murder
• Okla. Stat. tit. 21 § 701.7 (2006) - Murder in the First Degree
• Okla. Stat. tit. 21 § 843.5 (2001) - Offenses Against Children

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Eizember v. State, 2007 OK CR 29, 1 111, 164 P.3d 208, 236.
• Malone v. State, 2007 OK CR 34, 1 22, 168 P.3d 185, 196.
• Mead v. State, 65 Okl.Cr. 86, 83 P.2d 404, 410 (1938).
• Jackson v. State, 2006 OK CR 45, 1 24, 146 P.3d 1149, 1159.