MANNHEIMER, Judge.
Janene L. Guidroz was convicted of felony assault upon her five-week-old daughter. Before her trial, Guidroz moved to dismiss the indictment, arguing that the prosecutor presented two types of improper evidence to the grand jury: (1) impermissible opinion testimony by a police detective concerning the amount of force that would be required to inflict the injuries suffered by Guidroz's child, and (2) a statement by the prosecutor herself, in which she explained the State's failure to call another potential witness by asserting that this witness would merely reiterate testimony already presented to the grand jury.
The superior court agreed with Guidroz that both the police detective's testimony and the prosecutor's remark were improper. However, the superior court declined to dismiss the indictment; the court concluded that these two errors did not substantially influence the grand jury's decision to indict Guidroz.
For the reasons explained here, we agree with the superior court. We therefore affirm Guidroz's conviction.
Underlying facts — the hospital examinations of Guidroz's infant daughter, and the initial accounts given by Guidroz and her co-worker, Jeremy Forrest
On August 3, 2001, Guidroz brought her infant daughter, K.G., to the emergency room at Elmendorf Air Force Base. Dr. Craig Hauser, a radiologist, examined a CT scan of K.G.'s skull and discovered that the infant had suffered a skull fracture just above her right ear, and that she showed signs of bleeding in her brain. From the images of K.G.'s head, Dr. Hauser concluded that K.G.'s injuries were possibly the result of non-accidental trauma — i.e., an intentional assault.
K.G. was transferred to the pediatric intensive care unit at Providence Hospital. Further CT scans and x-rays were taken at the hospital. These images revealed that K.G. had a second skull fracture — this one at the back of her head, near the top. The images also confirmed the presence of blood within her brain tissue. The treating physician at Providence, Dr. Scott Wellmann, noticed that K.G. had other injuries as well: "very obvious bruising, primarily . . . around her left eye, [and] extend[ing] . . . from the corner of her left eye . . . over [to] her left ear, and up onto her forehead and onto her scalp". Dr. Wellmann also observed a small mark resembling a bite mark just below K.G.'s elbow, which Dr. Wellmann suspected was the result of K.G.'s being pinched. Both the bruising and the pinch appeared to be unrelated to K.G.'s skull fractures.
Due to the nature of K.G.'s injuries, the staff at Providence Hospital contacted the police regarding possible child abuse.
Detectives from the Anchorage Police Department interviewed Guidroz at the hospital. In this first interview, Guidroz explained her daughter's injuries by telling the detectives that she had placed K.G. in a "bouncy chair" in the living room of her residence, and then she fell asleep on the couch. Guidroz awoke when she heard K.G. crying, and she saw that K.G. had slid down in the chair. Before Guidroz could reach her daughter, K.G. fell out of the chair and struck her head on a box of baby wipes, causing the left side of K.G.'s face to swell.
Guidroz claimed that no one else was present when this happened, other than her four-year-old brother who was in town visiting from Virginia.
Following this interview, Guidroz accompanied the detectives to her home, where she re-enacted the incident according to her description.
The detectives re-interviewed Guidroz on August 8th. At that time, the detectives informed Guidroz that injuries as severe as the ones K.G. suffered could not have been caused by falling onto a box of baby wipes. Guidroz nevertheless adhered to the version of events that she had described earlier — although she revealed for the first time that she was not alone on the evening when K.G. was injured. Guidroz told the detectives that a co-worker, Jeremy Forrest, had been at her house that evening with his two sons.
Guidroz initially claimed that Forrest and his sons were not involved — that K.G. was injured after Forrest and his sons left. But as the interview continued, Guidroz changed her story: she now asserted that Forrest had still been present in her home when K.G. was injured, but that Forrest had been in another part of the house — in the bedroom, trying to wake Guidroz's visiting four-year-old brother. Also, during this second interview, Guidroz stated that she herself had not been present in the room when K.G. was injured. Rather, Guidroz claimed that she had gone to the bathroom and that, when she emerged, she found K.G. lying on the floor.
Following this second interview with Guidroz, the police interviewed Jeremy Forrest. Forrest generally corroborated Guidroz's second version of events.
Underlying facts — the grand jury proceedings
The State originally presented Guidroz's case to the grand jury in December 2001. For reasons that are not pertinent here, Guidroz's first indictment was dismissed, and the State returned to the grand jury in August 2002. The State asked the grand jury to indict Guidroz on one count of first-degree assault and one count of second-degree assault.
Three witnesses testified at the grand jury: Dr. Wellmann (the treating physician at Providence Hospital), Jeremy Forrest (the co-worker who allegedly was present at Guidroz's home when K.G. sustained her injuries), and Detective David Parker (the lead investigator from the Anchorage Police Department).
Dr. Wellmann described K.G.'s various injuries: the two skull fractures, the bruising on the left side of her head, and the bleeding in her brain tissue. Dr. Wellmann was then asked what kind of impact would be required to cause K.G.'s skull fractures. The doctor explained that, because babies' skulls are softer and more flexible than the skulls of adults, the impact to K.G.'s skull would have had to occur with "tremendous" force — a force equivalent to "a high-velocity motor vehicle accident" or a fall from "a second- [or] third-story . . . window . . . onto a hard surface".
Dr. Wellmann told the grand jurors that a 2½-year-old boy like Forrest's son could never have generated enough force to inflict K.G.'s skull fractures. Rather, Dr. Wellmann said, K.G.'s skull suffered "a high-velocity impact of some sort."
The next witness was Jeremy Forrest. When Forrest testified to the grand jury, he gave a slightly different story from the one he had originally offered to the police.
Forrest testified that, on the night K.G. was injured, Guidroz had invited him over to her house so that his two young sons could play with Guidroz's four-year-old brother. Forrest stated that when he and his sons arrived, K.G. had no apparent injuries and she was falling asleep in Guidroz's arms. Once K.G. fell asleep, Guidroz placed her in the bouncy seat in the living room. Forrest then went to the bedroom to wake up Guidroz's brother, while Guidroz went to the bathroom.
Up to this point, Forrest's testimony tracked Guidroz's second account of the incident. However, Forrest now admitted that he was unable to waken Guidroz's brother, so he joined Guidroz in the bathroom, shut the door, and began kissing her.
Forrest testified that, while he and Guidroz were in the bathroom, they heard K.G. begin to cry — seemingly a normal cry, as if she had just awakened. When they opened the bathroom door, they saw that Forrest's 2½-year-old son was standing in front of the bathroom door, holding K.G. in his arms and trying to give her to one of the adults.
Forrest said that, although he had no independent memory of this, Guidroz later told him that he was the first to reach down and take K.G. Forrest stated that he affirmatively recalled returning to the couch with Guidroz to try to put K.G. back to sleep.
According to Forrest, K.G. fell asleep on the floor, but a few minutes later she began whimpering in an alarming manner. It was then that Forrest noticed bruises beginning to form on K.G.'s left cheek. At that point, Forrest testified, he thought that his son had perhaps fallen while carrying K.G. — and that, as a result, K.G. might have "hit something on the floor". But Forrest admitted that, while he was in the bathroom, he heard no noise that would suggest that his son had dropped K.G. or had fallen over with her.
Forrest then continued his account. After K.G. began to whimper, Guidroz noticed that K.G. was breathing abnormally. Forrest offered to take Guidroz and K.G. to the emergency room, even though he did not think that K.G.'s injuries were serious. But Guidroz decided that Forrest should leave and that she would call her mother instead — since Forrest's vehicle had only two car seats, and there were four children present in the house.
All told, Forrest was present at Guidroz's home for about an hour. Forrest denied having injured or struck K.G., and he never suggested that Guidroz had hurt K.G. either. In response to grand juror questioning, Forrest stated, "I do honestly think [that] my son possibly could have done this."
Guidroz did not testify to the grand jury. However, at the request of Guidroz's attorney, the prosecutor agreed to give the grand jury an affidavit that Guidroz had signed. This affidavit was read aloud to the grand jury by Detective Parker.
In her affidavit, Guidroz presented a version of events that was identical to Forrest's grand jury account. Guidroz then offered the following explanation of why (1) she had initially failed to tell the police that Forrest had been with her that evening, and (2) why she had initially told the police the false story about K.G. falling from the "bouncy seat":
I didn't think there was any need for anyone to know about Jeremy's visit, and I was feeling confused about how he kissed me in the bathroom. I also didn't think it would be a good idea for the people at the hospital where Jeremy and I worked to know that he had been visiting me, since we were both married. I knew [that] the Air Force will strip [you of] your rank and possibly discharge you for adultery. Finally, I didn't think [that] Jeremy had anything to do with [K.G.]'s injury[,] or that it would be important to explain that he and his kids had been there. So . . . I made up what I thought was a white lie[:] I said that [K.G.] had fallen out of her bouncy seat onto the floor.
Guidroz insisted that she had never, and would never, hurt K.G.
Detective Parker testified that, during Guidroz's interviews with the police, she had never offered any explanation for K.G.'s skull fractures other than the now-concededly false story that K.G. had fallen from the bouncy chair.
In response to questioning by the grand jurors, Parker further testified that it would take a great deal of force to cause this type of injury to an infant. Although Parker initially declined to offer an opinion on whether Forrest's 2½-year-old child could have caused K.G.'s injuries, Parker finally told the grand jurors that he had personal experience (as a parent) with small children falling to the floor, and that, based on this experience, he did not believe that K.G.'s head injuries could have resulted from being dropped to the floor by a 2½-year-old:
Grand Juror: In your experience, if [a] 2½-year-old was carrying that toddler, could he have tripped and fallen and hit something . . . if the parents were both in another room?
Prosecutor: Is that possible? That [a] 2-year-old could have tripped and fallen [and injured K.G. in this manner]?
Grand Juror: And generated that much force?
Parker: A 2-year-old [child] could have tripped and fallen while carrying the baby, yes. Are you asking if I — you know, I'm not . . . Are you asking for [my] opinion[?]
Grand Juror: I don't know [if] I can ask you for an opinion [on that]. . . . But, in your experience, have you seen or have you experienced something similar?
Prosecutor: Or — let's put it this way: . . . [H]ave you had [an] experience where a baby falling from a very short height — say, . . . from [the height of] a 2½-year-old down to the floor — . . . could have caused [at least] bruising?
Parker: Uh-huh. [Yes.]
Prosecutor: Or, second of all, skull fractures? I don't know if you can answer that, or how comfortable you are . . .
Parker: Actually, I can speak directly from my experience.
Prosecutor: Okay.
Parker: I dropped my son from approximately 3 ½ feet or 4 feet. I actually didn't drop him: he was very young, about three months old, and he rolled off the changing table. We had a tile floor . . ., and he landed with his head down, on his knees and chest. And I thought I'd killed him. And there was a slight bruise, and that was all.
Also, in my professional experience, I have studied actual studies that have been done of children falling. And it takes a great deal of force to cause skull fractures [in children].
Prosecutor: [So] if it's a fall, does it have to be from a pretty high . . .?
Parker: It would have to be from a great height in order to cause skull fractures.
At the end of the grand jury hearing, the prosecutor noted that the State had originally planned to present a fourth witness: Dr. Craig Hauser, the radiologist who initially diagnosed K.G.'s injuries when she was brought to the Elmendorf Air Force Base emergency room. The prosecutor informed the grand jury that Dr. Hauser was not available to testify because he had been transferred by the military. The prosecutor then added that "Dr. Hauser . . . would have basically, I believe, said the same thing as Dr. Wellmann."
At the end of the evidentiary presentation, the prosecutor outlined her theory of the case to the grand jurors. The prosecutor conceded that K.G. might have suffered the bruising and the bite mark on her elbow from playing with Forrest's children, or from being dropped or falling while being carried by Forrest's young son, as Guidroz and Forrest had suggested. But the prosecutor argued that K.G.'s skull fractures could not have been caused that way — and that, in fact, Guidroz had inflicted these injuries on her infant daughter after Forrest and his boys left the residence:
Prosecutor: It's a circumstantial case — I'll acknowledge that. . . . Basically, the State's theory is that this bite mark . . . may have been inflicted by one of the Forrest children, if it was a bite mark. . . . [And] the bruising may have occurred [as a result of] her being dropped or falling. But the bruising [is located] on the left side of [K.G.'s] face, and . . . the fractures [to K.G.'s skull are located] in the back and on the right. And so they're not connected.
It's the State's theory that the skull fractures were [inflicted in] two incidents of high-velocity impact, separate from the bruising and the alleged bite mark. . . . The State's theory is that [Guidroz] committed [these] assaults after Forrest left. . . . It's hard to believe that a mother could do this. But in a very short period of time, a mother can get angry or frustrated and do this — and then, you know, [she] can't believe herself that she's done it, and [she] is obviously very remorseful afterwards.
The grand jury indicted Guidroz on the State's two proposed assault charges.
Why we agree with the superior court that the errors in the grand jury presentation were harmless
As explained above, Guidroz asked the superior court to dismiss the indictment. In the portions of her motion that are pertinent to this appeal, Guidroz contended that the prosecutor had committed two errors in presenting the case to the grand jury. The first of these errors, Guidroz argued, was that the prosecutor allowed Detective Parker to give an unfounded expert opinion regarding the cause of K.G.'s injuries — in particular, Parker's testimony that, based on his personal experience and the unspecified "studies" he had read, K.G.'s injuries could not have been caused by falling a short distance. Guidroz asserted that the prosecutor's second error was to assure the grand jurors that, if Dr. Hauser were to testify, his testimony would mirror the testimony that the grand jurors had already heard from Dr. Wellmann. Guidroz argued that the prosecutor's statement amounted, in effect, to the improper presentation of hearsay testimony.
Superior Court Judge Stephanie E. Joannides agreed with Guidroz that the grand jury proceeding was flawed in these two ways. Nevertheless, Judge Joannides concluded that these two errors were harmless. We agree.
As we explained in Stern v. State, 827 P.2d 442, 445-46 (Alaska App. 1992), when a defendant seeks dismissal of an indictment based on the State's presentation of improper evidence to the grand jury, a court must ask two questions: First, is the properly admitted evidence sufficient to support the indictment? And second, if the admissible evidence is sufficient to support the indictment, does it nevertheless appear likely that the probative force of the admissible evidence was so weak, and the unfair prejudice engendered by the improper evidence so strong, "that the improper evidence was the decisive factor in the grand jury's decision to indict"?
In Guidroz's case, the central question confronting the grand jurors was whether Guidroz inflicted the two fractures in her infant daughter's skull.
As shown by the prosecutor's summation to the grand jurors, the State conceded that the infant's less serious injuries (the bruises on her face and the bite mark on her elbow) might have been caused in the way that Guidroz and Forrest suggested — that is, during the baby's physical interaction with Forrest's young sons. But the State argued that K.G.'s multiple skull fractures could not have been caused in that way. Instead, the State contended, Guidroz subjected her infant daughter to two separate "high-velocity impacts" after Forrest and his sons left.
Dr. Wellmann's testimony supported the State's theory of causation. Dr. Wellmann told the grand jurors that K.G.'s skull fractures could only have been caused by a "tremendous" impact — an impact with a force equivalent to "a high-velocity motor vehicle accident" or a fall from "a second- [or] third-story . . . window . . . onto a hard surface". Dr. Wellmann categorically rejected the idea that K.G.'s interactions with Forrest's 2½-year-old son could have been the cause of such head injuries.
Moreover, there was no other evidence on this point. That is, there was no evidence suggesting that K.G.'s skull fractures might have been inflicted in the ways that Guidroz and Forrest proposed, as opposed to the high-velocity impact that Dr. Wellmann described in his testimony.
Thus, the primary issue was not how the skull fractures were caused, but rather the identity of the person who caused them.
Because of this, to the extent that Detective Parker's testimony improperly corroborated or supported Dr. Wellman's expert conclusions regarding causation, Parker's testimony was merely cumulative. Parker did not offer an opinion on the identity of K.G.'s assailant; he merely echoed Dr. Wellman's conclusion that K.G.'s skull fractures had not been caused by a fall from a short distance.
The error regarding the prosecutor's characterization of Dr. Hauser's testimony is more complicated. Although Guidroz argues that the prosecutor's comment amounted to the introduction of improper hearsay, Guidroz is also claiming, at least in part, that the prosecutor mischaracterized Dr. Hauser's testimony when she told the grand jurors that Dr. Hauser would say "basically" the same thing as Dr. Wellmann.
Dr. Hauser testified at Guidroz's first grand jury hearing (the one held in December 2001). Like Dr. Wellmann, he discussed K.G.'s skull fractures, and he concluded that these injuries were not consistent with a baby falling from a short height onto a carpeted surface, like the floor of Guidroz's living room. According to Dr. Hauser, there was "no way" that a fall from the height of K.G.'s "bouncy seat" could have caused K.G.'s skull injuries.
Although Dr. Hauser did not completely foreclose the possibility that a 2½-year-old child could have caused these injuries, Dr. Hauser clarified that the only way a 2½-year-old child could cause such injuries would be to push the infant off a balcony, or to push the infant out of a bouncy seat that was sitting on a table, onto a concrete floor — in other words, a situation "where there was a significant height difference".
Dr. Hauser also told the grand jurors that he had considered the possibility that a child might inflict such injuries on an infant by "wielding some type of very hard, blunt object". However, Dr. Hauser immediately added, "But then you have to ask yourself: could a 2- or 3-year-old do that?" In other words, the doctor indicated that he did not think that this was a likely scenario.
Having reviewed Dr. Hauser's testimony from the first grand jury, we conclude that the prosecutor did not mislead the grand jurors when she characterized Dr. Hauser's testimony as "basically the same" as the testimony that Dr. Wellmann presented to the second grand jury. Thus, the only error is the fact that the prosecutor, by telling the grand jurors this, effectively communicated hearsay to the grand jurors.
But again, as with Detective Parker's testimony, the improper evidence was merely cumulative of Dr. Wellmann's expert testimony regarding causation.
It is true, as our supreme court has noted, that there are times when repetitive testimony on a disputed point significantly increases the probative force of the proponent's case; in these instances, the repetitive testimony can not be dismissed as "cumulative". But as we explained above, there was little dispute at Guidroz's grand jury regarding the physical causation of K.G.'s skull fractures — in the sense of what kind of occurrence would yield such injuries. According to the evidence, only "high-velocity impacts" could cause such skull fractures in an infant. The primary question was to identify the person who had inflicted these high-velocity impacts.
See Wasserman v. Bartholomew, 923 P.2d 806, 813 n. 22 (Alaska 1996): "[The] repetition of the same evidence on a disputed point by several witnesses is often persuasive in establishing the truth of that evidence. Evidence should only be excluded . . . as cumulative [under Alaska Evidence Rule 403] if the evidence on the point `is already so full that more witnesses [on] the same point could not be reasonably expected to be additionally persuasive.'" (Quoting John Henry Wigmore, Evidence in Trials at Common Law (Chadbourne rev'n 1976), § 1908, Vol. 6, p. 760.)
The improper evidence heard by Guidroz's grand jury was repetitive on the issue of physical causation. We accordingly conclude that it was cumulative — that it did not have a decisive impact on the grand jury's decision to indict Guidroz.
Conclusion
The judgement of the superior court is AFFIRMED.