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September 9, 1993


Appeals from the Superior Court of the District of Columbia

Before Terry and Farrell, Associate Judges, and Mack, Senior Judge. Opinion for the court by Senior Judge Mack. Concurring opinion by Associate Judge Farrell.

The opinion of the court was delivered by: Mack

MACK, Senior Judge : Appellant, Linda Johnson, was charged with cruelty to children, D.C. Code § 22-901 (1989 Repl.), and second-degree murder, D.C. Code § 22-2403 (1989 Repl.), for causing injuries to nine-month-old Jamie Banker, by shaking her, hitting her head against a wall, and dropping her, all of which resulted in the infant's death. Appellant entered a plea of guilty to voluntary manslaughter in exchange for dismissing the charges of cruelty to children and second-degree murder. Appellant was sentenced to a term of imprisonment of fifteen years to life on January 18, 1990. *fn1

In May of 1990, appellant filed a motion to reduce the sentence and an addendum, which was denied on July 6, 1990. Pursuant to D.C. Code § 23-110 (1989 Repl.), appellant filed a motion to withdraw her guilty plea on grounds that it lacked a factual basis to support her voluntary manslaughter plea. The trial court denied appellant's motion on October 4, 1990, and appellant noted an appeal. At the trial court's request, appellant filed a motion to reconsider the denial of her motion to withdraw her guilty plea on January 17, 1991. *fn2 Following hearings on the motion, the trial court denied appellant's motion on March 2, 1992. Appellant now appeals the trial court's denial of her motion to withdraw the guilty plea and the denial of reconsideration of that request. *fn3


A. The Plea Hearing

At the plea hearing on November 9, 1989, the trial Judge had appellant's counsel explain the plea agreement, and told appellant that if she did not understand it, or if it was different from what she had agreed to, to advise the court. The government made its factual proffer stating that appellant worked as a live-in baby sitter for Mr. and Mrs. Banker. During appellant's interview for this job, she misrepresented that she previously had been a baby sitter for five years for two other young children in the area, but had to leave her employment when the mother of the children decided to stay home with them. In reality, appellant was not a baby sitter for this family which did not have any children; rather, she cleaned their house on several occasions. *fn4

At the outset of the government's proffer, appellant's counsel emphasized as part of the plea agreement that the proffer factually would consist of appellant's videotaped statement which represented her version of what had transpired. n.5 [Footnote Omitted] On January 23, 1989, exactly one week after appellant began her employment with the Bankers, appellant telephoned Jamie's mother at her job informing her that she had found Jamie breathing unnaturally with her eyes rolled back. Mrs. Banker told appellant to call Jamie's pediatrician, who instructed appellant to call an ambulance, which she did. After performing a CAT scan at Georgetown University Hospital, the doctors found that Jamie suffered multiple massive skull fractures, a cerebral edema, hematoma, and hemorrhaging. Based on the medical tests, the doctors suspected that Jamie's injuries were caused by severe physical abuse, and they notified the Youth Division of the Metropolitan Police Department. Appellant indicated to the Bankers, to the hospital personnel, and initially, to the police that "nothing had happened to the child." After further questioning, the appellant told the police that Jamie had rolled off the changing table several days earlier, but believed that she was not seriously injured. At the time of her arrest, appellant told police officers that Jamie had been crying, and in an effort to quiet her, appellant had thrown her approximately six feet up in the air a couple of times, and that on the third time, appellant dropped her and Jamie struck her head during the course of the fall.

Two days after her arrival at the hospital, the doctors determined that Jamie was "brain dead" and terminated the life support measures. An autopsy on the infant revealed that the cause of death was blunt force injury to the head, including massive skull fractures with two distinct sites of impact. The government asserted that medical experts would have testified at trial that the injuries Jamie sustained were inconsistent with a simple fall. Evidence of retinal hemorrhaging in the eyes revealed severe shaking of the infant, and the other medical evidence was consistent with Jamie's head having been struck against a wall.

Appellant acknowledged that Jamie had died in a manner consistent with the government's proffered testimony in that Jamie's death was caused by severe shaking and her head having been struck against a wall. Appellant substantially acknowledged the factual proffer of the government. Appellant, however, denied having "slammed" Jamie against the wall, and in response to the court's question as to what appellant did do, she stated:

After I had sit her up on the dressing table, I was talking to her and I shook her trying to ask her what was wrong with her; baby, what is the matter; why do you keep crying so much. Her head hit the wall. I didn't realize her head was hitting the wall until, I guess, I snapped back to myself, and when I realized what had happened, that is when I picked her up and felt her head.

Appellant testified that she believed Jamie's head hit the wall about four times. Appellant further testified that she was not angry with Jamie while she was shaking her, and that

I realized I had shook her, but I didn't realize her head was hitting the wall. I didn't realize that. It was like -- it was like I wasn't even aware of it for a few seconds and then when I did come back to myself of what was really happening, that's when I went upstairs to try to get help for her and used the phone.

Appellant's counsel assured the court that this was not a case of momentary insanity or accident, and that based on appellant's videotaped statement, appellant's actions constituted voluntary manslaughter. The trial Judge stressed that while the government's evidence more than adequately supported a voluntary manslaughter plea, he was doubtful as to whether appellant admitted sufficient facts to establish a factual basis for the plea. Following further Discussion, the trial Judge concluded that based on the government's undisputed proffer, primarily the autopsy results, it would be irrational to conclude that anybody in appellant's position could have shaken Jamie to that extent and repeatedly hit her head against the wall, without knowing what she was doing.

The trial Judge proceeded with the Rule 11 inquiry and appellant assured the court that she was not being pressured and that

I'm pleading guilty because I feel that I'm guilty, Your Honor, to a certain extent. . . . I feel that what happened, the shaking, the baby's head hitting resulted in her dying, which I am so sorry for her. But, I still say I wasn't aware of the extent of what was going on. It was like I lost control, you know.

After a long Discussion with her counsel and the trial Judge, appellant confirmed her intention to plead guilty to voluntary manslaughter, and also that she was satisfied with her counsel.

B. Appellant's Motions to Withdraw the Guilty Plea

The gravamen of appellant's initial motion, filed on August 1, 1990, is that during the plea proceeding she did not acknowledge sufficient facts to support a factual basis for her voluntary manslaughter plea. Appellant contends that malice, although mitigated, is a necessary element of voluntary manslaughter and that she did not admit to any facts constituting malice. The trial Judge, relying on pertinent case law, *fn6 denied this motion concluding that malice is not an element of voluntary manslaughter in this jurisdiction, and that even if it were, appellant's acknowledged conduct of shaking an infant and knowing its head hit the wall constituted malice despite her assertions of her lack of intent to injure Jamie.

Shortly after the trial Judge denied appellant's motion, this court decided Comber v. United States, supra note 2, 584 A.2d at 44 n.22, which attempted to resolve ambiguities in the Bradford decision regarding the elements of voluntary manslaughter. As a consequence of Comber, supra the trial Judge invited appellant to file a motion to reconsider the court's prior ruling denying appellant's motion to withdraw her guilty plea so that the court might assess what impact, if any, the Comber decision may have on that ruling. Appellant filed her motion and alleged that she failed to acknowledge sufficient facts during the plea proceeding to provide a factual basis for pleading guilty to voluntary manslaughter which ...

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