Between 1987 and 1993, Denise
Buchanan had five baby boys: Joseph, Joshua, Jeremiah, John and
Jacob. Jeremiah died at four months old with SIDS listed as the
cause of death. John was three months old when he died. The
pathologist, Dr. Ellen Clark found capillary bursts under the
tissue surface of the lungs, which could be a sign of suffocation
or could also indicate a SIDS case. John's cause of death was
listed as "undetermined." Jacob died just before his first
birthday. With a multitude of conflicting stories from Buchanan
concerning the events leading up to Jacob's death, coroner Dr.
McCarthy proceeded with the investigation, and eventually listed
Jacob's cause of death as "undetermined," but also listed the
manner of his death as a homicide. According to McCarthy,
statistical evidence shows SIDS occurring at the rate of 1 in
1,000 births; therefore, statistically, it is almost impossible to
have more than one SIDS case in one family.
In 1999, Buchanan was found guilty of two
counts of first degree murder for her sons, John and Jacob. She
was acquitted of the charge for Jeremiah's murder. Buchanan
received two consecutive life sentences for the charges. She
appealed, but the Nevada Supreme Court upheld her conviction.
Denise Buchanan is eligible for parole in 2019.
Supreme Court of Nevada
Buchanan v. State
Denise Dianna BUCHANAN, Appellant, v. The STATE
of Nevada, Respondent.
May 30, 2003
Before the Court En Banc.
Michael R. Specchio, Public Defender, John
Reese Petty, Chief Deputy Public Defender, and Kathleen M.
O'Leary, Deputy Public Defender, Washoe County, for
Appellant.Brian Sandoval, Attorney General, Carson City; Richard
A. Gammick, District Attorney, and Joseph R. Plater III, Deputy
District Attorney, Washoe County, for Respondent.
Appellant Denise Buchanan was charged with
three counts of first-degree murder in the deaths of her three
infant sons. After a four-week trial with 100 witnesses,
Buchanan was convicted of two counts of first-degree murder, and
sentenced to two consecutive terms of life in prison with the
possibility of parole. Buchanan contends that her judgment of
conviction should be overturned because: (1) there is
insufficient evidence to support her judgment of conviction; (2)
she was prejudiced by the State's failure to gather evidence and
by the State's destruction of evidence; (3) the jury instructions
regarding premeditation, deliberation, and reasonable doubt
constituted reversible error; (4) the district court erred by
allowing the State to present rebuttal evidence; and (5) the
district court erred by failing to instruct the jury on an
advisory verdict of acquittal. We find that Buchanan's
allegations are without merit. Therefore, we affirm the judgment
In 1987, Denise Buchanan and Francisco Leal
moved in together. Later that same year, Buchanan gave birth to
her first child, Joseph. Joseph was not Leal's child, but Leal
raised him as his own son. Buchanan became pregnant again
shortly after Joseph's birth. In 1988, Buchanan gave birth to
Joshua, her second son, her first with Leal.
Leal testified that the couple experienced
financial pressure to the point that they separated while Buchanan
was pregnant with Joshua. Later, after Joshua was born, they
moved back in together. Leal testified that he could see that
Buchanan was disappointed with Joshua when he was brought to her
in the hospital. She wanted a girl. Joshua was in the hospital
several times during his infancy. Leal and many other witnesses
testified that Buchanan had a close, loving relationship with
Joseph, but she was very distant and always seemed irritated with
Joshua. She favored Joseph in every way, even in providing food.
Teachers testified that Joshua would come to school in first
grade without having been provided any breakfast. Leal testified
that Buchanan favored Joseph over Joshua such that “Jo[seph] could
do no wrong, and Joshua could do no right.”
Within weeks after Joshua's birth, Buchanan
became pregnant again. Jeremiah, Buchanan's third son, was born in
1989. Jeremiah died at four months of age. The police officer
who responded to the scene testified that Buchanan told him that
she had found Jeremiah that morning in his crib with blankets over
his head. Buchanan told the officer that Jeremiah normally awoke
around 8 a.m. or 9 a.m. But the officer was not called to the
scene until approximately 10:20 a.m. The officer testified that
because of the condition of the body and the appearance of a brown
and white substance around the mouth and nose, he suspected the
child had vomited and aspirated.
Dr. Terrance Young, the pathologist who
performed the autopsy on Jeremiah, attributed the cause of death
to Sudden Infant Death Syndrome (SIDS). Dr. Young drew this
conclusion because he could not “discern another reasonable cause
of death.” Dr. Young testified that he did not detect any
outward physical signs that would help explain Jeremiah's death,
nor did he see any evidence that Jeremiah's death was caused by
Leal testified that Buchanan's pregnancies were
extremely difficult, with constant sickness and vomiting. There
were continuing financial pressures and Leal was, therefore,
working long hours, sometimes at three jobs. He did not
participate in the household or child care; Buchanan was
responsible for that. Leal said he basically came home to eat
and sleep. Leal testified that Buchanan said she was always
tired and very stressed with always being pregnant. Within a
twenty-four-month period, she had had three pregnancies.
Buchanan became pregnant with her fourth son,
John, in 1990. Because Jeremiah's death had been ruled a SIDS
death, John was brought home with an apnea monitor.1
John died at almost three months of age. Leal testified that on
the morning John died, Buchanan told him she was awakened by the
sound of the apnea monitor. She called Leal and he performed CPR
on John. The paramedics were summoned, but attempts to revive John
were futile. The police officer who responded to the call
testified that Leal was distraught, but Buchanan was “very calm.”
Buchanan told the police officer that the apnea monitor alarm
had sounded around 5 a.m., and she found John breathing properly.
She reset the monitor, checked John, and turned the monitor off.
Buchanan said that as soon as she turned the monitor off, John
stopped breathing. A paramedic testified that Buchanan told him,
“My child is a victim of SIDS,” rather than the usual, “My child
has stopped breathing.” The paramedic testified that it was
unusual that someone would use medical terminology.
Dr. Ellen Clark, a board-certified anatomic,
clinical, and forensic pathologist, conducted the autopsy on John.
Dr. Clark testified that upon examination, John showed petechiae
of the lungs, which are capillary bursts beneath the tissue
surface of the lungs. Dr. Clark testified that although these
commonly accompany an asphyxial injury or suffocation, they are
not infrequently found in SIDS cases. Dr. Clark also testified
that she found bleeding on the thymus, but that could have been
caused by the vigorous attempts at resuscitation. A toxicology
screen was done to test for drugs in John's system. The results
were negative. Dr. Clark testified that the bladder washings
utilized in the toxicology test were completely consumed by that
test. Dr. Clark listed the cause of John's death as
“undetermined.” Dr. Clark testified that this conclusion was
based, in part, on her knowledge that a previous SIDS death had
occurred in this same family.
In 1992, Buchanan became pregnant again. Leal
testified that Buchanan stated she did not want to be pregnant,
but she wished for a girl. Leal testified that Buchanan
expressed her desire to join a SIDS group's counseling session,
but he discouraged her. Jacob, Buchanan's fifth son, was born in
July 1993. Leal testified that although Jacob was a healthy
baby, Jacob was also placed on an apnea monitor. Leal testified
that as time progressed, Jacob was hospitalized several times for
various ailments, including apnea. Jacob died just a few days
before his first birthday. Leal testified that this was
significant because he and Buchanan had been told by Jacob's
pediatrician that if Jacob lived past his first birthday, he would
no longer be at risk of succumbing to SIDS.
The circumstances surrounding Jacob's death
were described by Buchanan in various ways. Leal testified that
Buchanan told him that she had turned off Jacob's apnea monitor in
order to give Jacob some medicine, that the dog had begun barking
in the backyard, and she had left Jacob to determine why the dog
was barking. When she returned, Jacob had stopped breathing and
was turning blue. Leal testified that Buchanan had told him she
sent Joseph next door to summon their neighbor. The police
officer who responded to the scene of Jacob's death testified that
Buchanan told him that around 7 a.m. she had turned Jacob's apnea
monitor off to give him some medicine, and then had gone about her
morning chores. Buchanan told the officer that she had lain down
and had forgotten to turn the monitor back on. When Buchanan
returned around 9 a.m. to check on Jacob, she found that he was
A representative of the company that supplied
the apnea monitor testified that he arrived at the house to
retrieve the apnea monitor a few hours after Jacob had died. The
representative testified that the internal memory of the monitor
showed that it was turned off at 3:56 a.m. the morning Jacob died,
not at 7 a.m., as Buchanan had told the police officer. The
representative also said that Buchanan seemed “very unemotional.”
Dr. Samuel Parks, a pathologist, conducted
Jacob's autopsy. In the external examination, Dr. Parks noted
that Jacob was both underweight and short for his age and that he
had a linear-like bruise on his scalp. In the internal
examination, he determined that both of Jacob's kidneys were
smaller than normal. He found possible hemorrhagic areas in the
right posterior lower lobe of the lung and a possible hemorrhagic
area in the posterior right lobe of the liver. Further tests
indicated that the kidneys had been functioning normally.
Toxicology tests for blood alcohol, heavy metals, aspirin,
Tylenol, and cyanide were negative. Phenobarbital was found in
the blood at below a therapeutic level, but Dr. Parks knew that
Jacob had been prescribed Phenobarbital. Dr. Parks did bacterial
and viral cultures, all of which were negative.
Dr. Parks was not concerned with metabolic
illnesses because when he looked at the liver under a microscope,
there were no metabolic changes. After consultation with Dr.
Ritzlin and Dr. Clark, both board-certified forensic pathologists,
Dr. Parks concluded that the cause of death was “undetermined.”
Vernon McCarty, the Washoe County Coroner,
testified that his office issued the death certificates, in which
the cause of death for Jeremiah is stated as SIDS; the cause of
death for John is stated as “undetermined after autopsy and
toxicology” and the manner of death is stated as “undetermined”;
the cause of death for Jacob is stated as “undetermined due to
third unexplained infant death in same family” and the manner of
death is stated as “homicide.” McCarty also included as the
answer to the statement, “ Describe How Injury Occurred, ‘history
consistent with suffocation.’ ”
After stating his education, training, and
experience in death investigations, McCarty testified that there
is general agreement among the professionals in the forensic field
that when you see three unexplained infant deaths in the same
family, the first is recorded as “Sudden Infant Death Syndrome,”
the second as “Undetermined” and the third or subsequent deaths as
“Homicide.” McCarty testified that the incidence of a SIDS death
is approximately 1 in 1,000 births, and that it is virtually a
statistical impossibility that a second SIDS death would occur in
the same family. McCarty testified that the certificate of death
for Jacob was filed over a year after the death because he was
trying to get all the information he could. He consulted with
both the Reno and Sparks police departments to get all the
information they had gathered as a result of their investigations.
He consulted with the district attorney's office and local
doctors, as well as out-of-state medical experts, before filing
the death certificate.
Dr. Clark testified that she was contacted
after Jacob's death by the coroner, coroner's investigators, and
detectives from the Reno and Sparks police departments. The
reports included the records for all the Leal children, including
the two living children. She reviewed all three cases, including
the autopsy protocols, the microscopic slides for each case, the
tests conducted and the autopsies, including the toxicology and
bacterial cultures. She suggested that the case should be sent
to other persons with particular expertise in looking at multiple,
unexplained infant deaths in a family.
Dr. Clark contacted Dr. Janice Ophoven, an
expert in pediatric pathology and forensic pathology in St. Paul,
Minnesota. Dr. Ophoven referred her to her partner, Dr. Susan
Roe, a forensic pathologist and assistant medical examiner in
Minnesota. Dr. Clark sent Dr. Roe the autopsy and medical
reports and the slides for the three children, as well as the
police reports on the Leal family. Dr. Clark told Dr. Roe that
she was “particularly interested in your opinions regarding the
possibilities of occult inheritable fatal diseases.” Dr. Clark
said she had found no evidence of such diseases, but wanted to
have someone with specific expertise re-examine the cases and
exclude those possibilities. After receiving a report from Dr.
Roe, Dr. Clark also sent some of Jacob's specimens to Dr. Michael
Bennett at the Department of Pathology at the Children's Medical
Center of Dallas to conduct additional tests for potential
metabolic disorders. Dr. Bennett is a specialist in evaluating
infant tissues for metabolic or inheritable disorders. He
reported that no abnormalities were detected.
Dr. Clark testified that the incidence of SIDS
in this country, depending on the part of the country, is from 1
in 1,000 live births to 1 in 1,500 live births. She also stated
that statistically, the probability of a second SIDS death in the
same family would be 1,000 times 1,000 and the probability of a
third SIDS death in the same family would be 1,000 times 1,000
times 1,000. However, her conclusion that the deaths were a
result of homicide was based on the physical findings and the
surrounding circumstances, not on statistics. Her information
regarding probabilities resulted in more intensive investigation
of the deaths after the first death.
Dr. Clark stated that Jeremiah's death could
fit into the category of SIDS. He was a healthy child with no
apnea monitor, and there was no antecedent medical history or a
preceding history of other infant death in the family. His death
was a seemingly random event. Jacob's death could not fit into
the category of SIDS. He barely fit within the age category as he
was older than ninety-five to ninety-nine percent of SIDS cases.
He did not appear to be a healthy child. Jeremiah and John had
both been normal size and weight and apparently were well
nourished at the time of their deaths. In contrast, when Jacob
died, he was somewhat emaciated, grossly underweight, and did not
have a healthy appearance. Twelve-month-old Jacob's weight was
that of approximately a two-month-old child. He had two areas of
skin-break injury on his head and a bruise at the top of his ear.
SIDS, by definition, is only ascribed to seemingly healthy
Dr. Roe also testified at the trial. She is
board certified as an anatomic, clinical, and forensic pathologist
with special training and interest in pediatric pathology. She
testified regarding her consultation with Dr. Clark on the Leal
children. She reviewed the records provided to her and consulted
with Dr. Ophoven regarding pediatric pathology and with Dr.
Michael Coleman, a neonatologist at St. Paul's Children's
Hospital, regarding the apnea monitor records. After reviewing
the records and the consultation reports, Dr. Roe concluded that
the deaths of the three children were not natural deaths, but were
caused by another person, most likely by asphyxiation.
She cited evidence of child abuse in that both
Joshua and Jacob were failure-to-thrive children. They suffered
from hypernatremic dehydration, which indicates child abuse.
Both children had various hospitalizations and had a normal growth
curve while in the hospital. While in the hospital, they had good
appetites and gained weight. But when they had been home awhile
and then returned to the hospital, they were underweight. In
addition, Jacob had no apnea episodes with any medical or other
personnel; only Buchanan reported any such episodes. While in
the hospital, Jacob's encephalogram, sleep study, and pneumatogram
results were normal, and no cardiac arrhythmias were noted. Dr.
Roe testified that apnea monitor alarms sound often for many
reasons, but that does not mean there is an episode of apnea.
The neonatologist consulted by Dr. Roe concluded that the apnea
monitor records available in this case showed no evidence of
apnea, just periodic or irregular breathing, which is normal in a
Dr. Ophoven has specialized training and
experience in the area of serial deaths of children less than five
years of age within a single family. She has lectured on the
subject and testified many times in criminal cases for both the
prosecution and defense. She reviewed the material that Dr. Roe
had regarding the Leal baby deaths and her conclusions were
included in Dr. Roe's report. Subsequently, the Washoe County
District Attorney's Office was provided with additional materials
involving the investigation and the Leal family medical records,
all of which she reviewed to render an opinion.
Dr. Ophoven outlined her background, training,
and experience with SIDS. She handled all of the examinations of
SIDS deaths that came into the office during her forensic
training. She kept informed of SIDS research and current
thinking. She was asked to author a book chapter summarizing the
world's literature at the time on SIDS and has been keeping up
with SIDS literature. She serves as a consultant to the
Minnesota SIDS Center located at the Minnesota Children's Hospital
and has served for many years on the Minnesota state mortality
review panel, which reviews all the deaths of children in the
state. She has performed hundreds of autopsies on children who
have died suddenly and unexpectedly at less than one year of age.
She has reviewed many cases of serial deaths in the same family,
including the case involving the Hoyt children, who were the first
to go home with apnea monitors.
Dr. Ophoven testified that two of the Hoyt
children were patients of Dr. Alfred Steinschneider, and he
developed the theory that hereditary apnea was the cause of SIDS
and reported this in a 1972 article in The Journal of Pediatrics.
Until 1996, this theory that hereditary apnea caused SIDS was
strongly held and was the basis for many articles supporting the
theory. It was also the basis for the widespread use of apnea
monitors. In 1996, the editor of The Journal of Pediatrics
retracted the 1972 article and apologized for having published it.
The evidence on which the 1972 article was based was refuted
when the mother confessed to killing her five children. Dr.
Ophoven testified that, at the time, it was considered almost
incomprehensible that mothers would kill their children.
Therefore, many earlier deaths had been considered SIDS cases
based on incomplete or no exams and poor death investigation
wherever investigators did not even consider the possibility of
murder by a parent. Accordingly, there needs to be a high degree
of skepticism about reports before 1996 of a recurrence of SIDS
deaths in a single family.
Dr. Ophoven also described how easy it is to
asphyxiate a very young infant, most of the time leaving no sign.
She testified that it takes two full minutes to smother a child
to unconsciousness and after that another four to five minutes for
death to occur.
Dr. Ophoven concluded that the deaths of
Jeremiah, John, and Jacob resulted from homicide. The basis for
that opinion was as follows:
There is no underlying disease present in the
three children identified. There is clear evidence of physical
neglect, emotional neglect, emotional abuse in the children.
There is evidence of injuries to the head of Jacob that, in my
opinion, are suggestive of physical abuse as well.
There is [sic] remarkable inconsistencies in
the story rendered by the mother in the history of specifically
Joshua and Jacob. And there's many, many inconsistencies to the
point where, with Joshua alone, I would have considered him to be
at risk of potential death.
The striking recurrence of sudden and
unexplained death in three children that clearly cannot be Sudden
Infant Death Syndrome, reasonable evaluation of the children fails
to demonstrate a plausible explanation for all of the facts in
this case. Substantial failure to thrive of Joshua and Jacob to
the point of, in a reasonable person's mind, they were at
significant risk of death or debility.
Presence of pulmonary hemorrhage in Jeremiah,
which the people in England are now suggesting is a risk factor
for children who may be being suffocated.
The fact that no apnea was ever observed of any
significance by anyone but the mother. The fact that the
monitors were turned off at the time that the deaths occurred.
And to bring that all to a close, and the fact that none of the
deaths are consistent with Sudden Infant Death Syndrome or with
any other known disorder.
The absence of microscopic findings in any of
the children that suggests an underlying metabolic disease,
specifically in the brain, the heart, the liver and the muscle.
The presence of petechiae in the liver of Jeremiah. The
life-threatening event that Joshua presented with that clearly was
inconsistent with the mother's story.
When you put all of those things together,
there is only one diagnosis that explains them all.
․ [T]hey were killed.
When asked about possible metabolic disease,
Dr. Ophoven testified that metabolic disease does not account for
all the problems, and it typically “demonstrates abnormalities in
tissue.” Typically, there are abnormalities in either the liver,
heart, skeletal muscle, or brain. Dr. Ophoven testified that in
the Leal case, each of the three children would have had to have
the autosomal recessive gene from both parents. The chances of
each child's getting the recessive gene would be one in four.
Furthermore, the fact that the children entered the hospital in
desperate shape and recovered as soon as they were provided food
and water is not consistent with metabolic disease. Dr. Ophoven
testified that while the petechiae in the lungs could be found in
SIDS deaths, she had never seen petechiae in the liver in a SIDS
Dr. Ophoven agreed that John's death, in
isolation, is not totally inconsistent with SIDS. But other
factors are significant, such as the fact that he was found by the
same person as the others, and he was off the monitor when he
died. The only person who reported that the children changed
color several times was the mother. Dr. Ophoven testified that
when a parent reported this information, either she is fabricating
or is causing the symptoms, and the failure of any other person to
see these symptoms is almost diagnostic. The autopsy report also
showed hemorrhage in the lungs and an absence of thymic petachiae,
which are present in eighty to eighty-five percent of SIDS deaths.
Dr. Ophoven testified that at the Minnesota
Apnea Center, with which she has worked for years, the diagnostic
criteria for pathological apnea requires that there be cyanosis,
limp muscle tone, lethargy or absence of cry, bradycardia of a
significant degree, and cessation of breathing long enough to
cause profound symptoms or a life-threatening event. Pauses in
breathing are normal in infants. No one other than the mother
had reported any symptoms of apnea in the children.
Dr. Ophoven testified that it is standard
operating procedure in a death investigation to review social
service records, referrals to child protective services, and any
contacts that individuals have made with the family.
Investigators have noted that a perpetrator will resist contact
with social services. The medical records reflect that the Leal
children were quite filthy and physically neglected and were,
therefore, referred to social services, but the Leals did not
follow up. Dr. Ophoven testified that a pediatric pathologist
must consider not only the physical findings, but other factors
that reflect potential risk, such as attachment and concern on the
part of the parent.
Dr. Ophoven was asked about the statistical
probability of three SIDS deaths in the same family. She
testified that the diagnosis of SIDS is not relevant here because
of the reasons she had stated. The diagnosis of SIDS requires
that you exclude all other causes of death before you can call a
death a SIDS death and, here, other causes of death could not be
excluded. She testified that, even without considering the other
deaths, she believes that the medical and autopsy reports show
that Jacob was murdered. At six months of age, he weighed about
the same as he did at birth. His death was clearly a case of
failure to thrive because of starvation and physical neglect.
Dr. Ophoven testified that she is familiar with
the forensic approach of labeling the first unexplained infant
death in a family SIDS, the second as undetermined, and the third
as homicide. It is an approach to the handling of cases like
this by coroners and is standard practice within the forensic
community, but not in her practice.
Dr. Patrick Colletti, Jacob's pediatrician,
testified that upon reviewing the autopsy report, he determined
that Jacob was a “failure to thrive” child, but that Jacob did not
suffer from starvation prior to his death. Upon a review of the
medical and autopsy records of all three children, Dr. Colletti
testified that he did not have an alternative cause of death for
Jeremiah other than SIDS. He believed that Jacob suffered from
renal hypoplasia, meaning that the kidneys do not grow. Dr.
Colletti testified that a child of Jacob's age should have had
kidneys weighing approximately seventy-two grams, and that a
newborn would have kidneys weighing approximately twenty-two
grams. At Jacob's death, his kidneys weighed fourteen and
eighteen grams, respectively, a total of thirty-two grams. Dr.
Colletti believes that this condition could be hereditary, that it
could be vascular, meaning the blood supply had not developed
properly, or that it could be inflammatory or degenerative. Dr.
Colletti stated that he believed Jacob died as a result of this
Dr. Colletti further testified that he believed
that John suffered from an “obstruction uropathy,” meaning that
the tube that helps the bladder empty properly had not developed.
He believed that John died as a result of an obstruction
uropathy, and that it was this condition that predisposed John to
an infection. He further testified that John's infection was
probably sepsis, which is an infection of the bloodstream. Dr.
Colletti testified that he noted this condition from John's
autopsy report where one of the kidneys was described as being
small and having a “kink[ed] and convoluted ureter.” Although
Dr. Clark, who conducted the autopsy of John, testified that she
found no evidence that John's kidneys caused an infection that
contributed to his death, Dr. Colletti stated that he was not
surprised that the infection was not discovered during the autopsy
because the infection would be very difficult to detect. He
testified that kidney disease could be hereditary, and that an
infant with a kidney disorder would easily become dehydrated.
The defense called Dr. Cyril Wecht of
Pittsburgh, a board-certified anatomic, clinical, and forensic
pathologist. He founded the Infant Survival Alliance and is on
its Board of Directors. Dr. Wecht testified that although he was
aware of the practice of classifying the first unexplained death
in a family as SIDS, the second as undetermined, and the third as
homicide, he did not subscribe to the theory. He stated that
such a theory was not based on science. Dr. Wecht further
testified that it is possible for SIDS to occur more than once in
the same family, and that all risk factors, including a short
duration between pregnancies, must be taken into account.
Dr. Wecht stated his opinion that the
investigation conducted to determine how these children died was
“not extensive.” As to John's death, Dr. Wecht testified that
since John was the second child within this family to die, a
careful and thorough investigation should have been conducted at
that time to determine the cause of death. Dr. Wecht testified
that extensive testing was not conducted to determine whether the
children died as a result of some metabolic or genetic cause.
As to Jeremiah, Dr. Wecht testified that there
was nothing in the autopsy report to indicate that Jeremiah died
from anything other than SIDS. Additionally, Dr. Wecht testified
that there was no evidence of suffocation. In fact, Dr. Wecht
did not find any evidence of suffocation in any of the children.
In regard to the “liver petechiae” found during the autopsy of
Jeremiah, Dr. Wecht concluded that the liver petechiae did not
indicate any cause of death. In conclusion, Dr. Wecht testified
that it was his belief that Jeremiah died as a result of SIDS.
In regard to John, Dr. Wecht
testified that it was very significant that one of John's kidneys
was smaller than the other. Because of the abnormal kidney, Dr.
Wecht testified that he would have initially listed John's death
as undetermined. He also testified that the condition of John's
kidneys would have caused him to order additional tests, and that
if these tests had come back negative, he would have listed the
cause of death as SIDS.
As to Jacob, Dr. Wecht testified that he would
have initially listed the cause of death as undetermined, and then
he would have ordered additional tests. After more tests were
done, and if the results had come back negative, Dr. Wecht
testified that he would have listed the cause of death as SIDS.
Dr. Wecht conceded that statistically it would be very unlikely
that a second SIDS death would occur in the same family, but he
stated that he could not base a cause of death on statistics.
Dr. Wecht also testified that once homicide was suspected in
John's death, all evidence should have been retained.
The defense also called Dr. Berkley Powell, a
board-certified pediatrician and geneticist and associate
professor at the John A. Burns School of Medicine at the
University of Hawaii. He works with other professionals in the
field in identifying children and adults who have genetic and/or
metabolic disorders. He reviewed the autopsy and medical reports
of the Leal children and the transcripts of the grand jury
testimony. Later, he reviewed the testimony of the pathologists,
Dr. Roe, Dr. Hart, Dr. Ophoven, Dr. David Zucker, and Dr.
Colletti. Dr. Powell had also been a treating physician for
Jacob when he practiced in Reno. He had been covering for Dr.
Colletti at the time of Jacob's birth. At that time, he
requested metabolic screening and organic acid screening, and
received a report from Dr. Bennett in Dallas, Texas. Dr.
Bennett's report stated that no abnormalities were detected. Dr.
Powell testified at trial that he was concerned with the lactic
acid and pyroglutamic acid peaks. However, in 1993, he signed
off on the report that concluded: “not abnormal for age, no need
Dr. Powell testified that he believes that
Jacob suffered from renal tubular acidosis. He could not agree
with Dr. Colletti's conclusion that Jacob suffered from renal
failure without a creatinine test. A creatinine test had been
performed on Joshua and was normal. Dr. Powell described a
number of genetic or metabolic disorders, which could have been
present and would have been consistent with the kidney findings on
John and Joshua. After reviewing the reports before trial, Dr.
Powell was immediately suspicious that there was an inherent
genetic disorder that was overlooked.
The defense called Dr. Enid Gilbert-Barness, a
professor of pathology and laboratory medicine, pathology of
pediatrics, and obstetrics and gynecology in Tampa, Florida. She
is board certified in pediatrics, anatomic pathology, clinical
pathology, and pediatric pathology. Dr. Gilbert-Barness
testified that although many pathologists subscribe to the “first
death is SIDS, the second death is unexplained and the third death
is homicide” theory, she believes that the use of the theory is a
“disgrace.” She described SIDS as a “waste basket group,” which
she would prefer to call Sudden Infant Death-cause undetermined.
She also described the use of apnea monitors as “a disgrace.”
She testified that the pathological changes that you see in
asphyxiation and SIDS are frequently indistinguishable. After a
review of the reports, Dr. Gilbert-Barness testified that she
believes that all four Leal children suffered from hereditary
renal adysplasia that predisposed the children to death.
Dr. Gilbert-Barness testified that it is well
documented that recurrence of SIDS in the same family is up to ten
times the normal risk factor which is 1 in 1,000-in subsequent
siblings it would be 1 in 100. She disagrees with the opinion
expressed in The Pathology of Child Abuse by the Kemp Center, well
known to Dr. Gilbert-Barness as a leader in the area of child
abuse, that the risk of three SIDS deaths in one family would be
approximately 1 in 10 million. However, she had expressed a
different opinion in an article titled Sudden Deaths in Infants:
“ ‘Because it now appears that SIDS is probably
not genetically controlled, medical examiners should be cautious
in attributing the second or third apparent crib death in the
family to SIDS, and should instead initiate an investigation into
the likelihood of filicide’, homicide by a parent, ‘or metabolic
Dr. Gilbert-Barness disagreed with Dr.
Colletti's conclusion that an overwhelming septic infection caused
John's death. She believes that many more tests should have been
done with respect to the Leal children.
The defense called Lewis Barness, a professor
of pediatrics at the University of South Florida College of
Medicine. He reviewed the medical and autopsy records of the
Leal children and, like Dr. Gilbert-Barness, concluded that the
children had a renal disorder. He testified that Jacob's failure
to thrive could have been a result of a metabolic disease that had
an effect on the kidney. He testified that he wrote a paper in
which he concluded that if you eliminate anatomical difficulties,
ninety percent of failure-to-thrive cases are due to feeding
difficulties. Either there is a failure to know what to feed, or
a failure to give the child the proper food, or the child is
The defense called Dr. Robert Steiner from the
Oregon Health Sciences University, who is in charge of the
division of metabolism in the department of pediatrics. He is
board certified in pediatrics, clinical genetics, and clinical
biochemical genetics. He is a metabolic disease consultant to
the Northwest Regional Newborn Screening Program. Every newborn
in the United States is tested for several metabolic and other
diseases. He was asked to review the medical records of four of
the Leal children, transcripts from the grand jury investigation,
and some summaries regarding the family members.
Dr. Steiner testified that he is suspicious
that Jacob died from a kidney disease or a genetic or metabolic
disease. He testified that the testing of the Leal children's
tissues was inadequate and many more metabolic tests should have
been made. However, he admitted that even if all the tests he
recommended had been performed, he still could not rule out all
As a rebuttal witness, the State called Dr.
Vincent DiMaio, chief medical examiner in San Antonio, Texas,
professor in the department of pathology at the medical school in
San Antonio, the editor of The American Journal of Forensic
Medicine and Pathology, and coauthor of the treatise Forensic
Pathology. Dr. DiMaio testified that he coined the forensic
axiom regarding multiple, unexplained infant deaths in the same
family. Dr. DiMaio explained the axiom by stating:
[T]he way it's applied is when you get a first
case that appears to be SIDS, you always treat it as SIDS. And you
assume that this is a natural death. That's the way you should
do it. You should not be suspicious of the parents and such, and
you know, be insulting, essentially.
In the second case, we know that in all
probability it's not a SIDS. It's a homicide. But still, you
always give them the benefit of the doubt. So, in the second
case you always give them the benefit of the doubt, rather than
be-you would rather give too much away than to falsely accuse
them. It's only when-you get suspicious and you have the police
investigate a second one. Do a lot more. It's when you get to
the third one, then you've gone beyond reasonable doubts and you
have to call it a homicide.
The prosecutor showed Dr. DiMaio an article by
Dr. Guntheroth in which he cites a number of SIDS cases in the
same family. Dr. DiMaio stated that the problem with the data is
that they are based on death certificates and the article was
published in 1990. He testified that it is estimated that
approximately forty percent of death certificates are incorrectly
filled out. Furthermore, any statistics before 1995 are not
reliable because they were including homicides as SIDS cases.
The Hoyt case, involving the deaths of five children, had been
reported in the pediatric literature. It was thought that some
hereditary disease was causing repetitive SIDS. In his 1989
treatise, Dr. DiMaio expressed his opinion that SIDS as the cause
of death of the Hoyt children was wrong; the deaths were
homicides. Subsequently, the mother confessed that she killed
her children. Other cases that are classified as SIDS have also
been found to be homicide when the killer confesses. Dr. DiMaio
testified that, in his opinion, he does not believe that SIDS
recurs in a single family. His opinion is based on his
experience and the experience of other forensic pathologists in
Dr. DiMaio was asked about the reports on Jacob
and John. He testified that the size of kidneys varies widely, and
small kidneys do not mean there is a disease process or that they
are abnormal. John's left kidney was abnormal and shows evidence
of some fibrosis and scar tissue, which probably happened in utero
based on his young age. A doctor evaluates whether the organ
works and, if it does, size does not matter. Even John's
abnormal kidney was fine microscopically. John had a normal
right kidney and all anyone needs is half of one kidney to
function without any problems. Jacob's kidneys were small, but
so was the rest of his body.
Dr. DiMaio testified that when you have
significant starvation, one of the organs that decreases in size
is the kidney, while other organs may or may not decrease in size.
His information on variable tissue wasting is based on studies
in the early 1940s in the Warsaw ghetto. There were many doctors
in the ghetto, and as people starved to death, the doctors
reported medically what was happening. The doctors performed
autopsies on the dead and recorded their results. The resulting
medical documents were hidden and were recovered from the ruins
after the war and translated and published.
Dr. DiMaio also saw no evidence of metabolic
disorders in the Leal children, and even if they had such a
disorder, there is no evidence that it would have killed them.
Most of the metabolic diseases show some evidence in the liver,
and there was no such evidence in these children. Therefore, he
did not see the need for additional metabolic tests. Neither did
he see the need for genetic tests because there is nothing
specific for which to test.
In addition to the medical experts, numerous
other witnesses testified regarding their experience with the
family members. That testimony revealed inconsistent stories by
Buchanan. Joshua's teacher testified that Joshua was not fed and
was emotionally neglected and abused. Buchanan refused to allow
Joshua to meet with the school counselor despite requests from the
counselor because of Joshua's apparent, severe emotional problems.
There was also testimony regarding physical abuse of Joshua.
A grocery store clerk testified that she heard
an apnea alarm sound when Buchanan was in the store with a baby,
but she saw that the baby looked normal and healthy. Later, when
Buchanan told Leal about the episode at the grocery store, she
said that Jacob had a drastic color change. But Buchanan had
also told a nurse that Jacob's monitor never went off.
A number of witnesses testified that Buchanan
showed little or no emotion regarding the deaths of her three
sons. At Jacob's funeral, the priest mistook Leal's sister, who
was crying, for Jacob's mother. Buchanan showed no emotion at any
of the funerals. A woman from a support group testified that she
talked to Buchanan over the telephone about SIDS. She did not
remember Buchanan's exact words because she was distracted by
Buchanan's casual tone. She testified that when Buchanan talked
about her child's death and about SIDS running in the family, “I
felt at the time it was like somebody was asking me to pass them
the salt at the dinner table.”
Based on this evidence, the jury convicted
Buchanan of two counts of first-degree murder in the deaths of
John and Jacob. The jury acquitted Buchanan of murder in
connection with the death of Jeremiah. Buchanan was sentenced to
two consecutive terms of life in prison with the possibility of
Sufficiency of the evidence
Buchanan's principal argument is that
insufficient evidence was presented at trial to convict her of the
murder of her two sons. She focuses specifically on proof
regarding the corpus delicti. At trial in a murder case, the
State is required to prove (1) the fact of death, and (2) the
criminal agency of another as the cause of the death.2
The fact of death is not in dispute, but there was a great deal
of conflicting evidence regarding the cause of the deaths of the
two boys. Buchanan argues that the evidence that either she or
someone else caused the deaths was not proven beyond a reasonable
doubt. She contends that, on the contrary, the evidence
established that the two boys died of natural causes.
The relevant inquiry for this court is
“whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have
concluded beyond a reasonable doubt that [the decedent's] death
was caused by a criminal agency.” 3
“[I]t is for the jury to determine what weight and credibility to
give various testimony.” 4
Circumstantial evidence alone can certainly sustain a criminal
However, to be sufficient, all the circumstances taken together
must exclude to a moral certainty every hypothesis but the single
one of guilt.6
There is little disagreement about the physical
evidence, only the interpretation of that evidence. The trial
became a battle of the medical experts, since most of the
testimony regarding the cause of death was presented by medical
experts who had not actually examined the bodies, but only
reviewed the autopsy reports, the medical reports, the other
reports of the investigation, as well as the testimony of the
other medical experts.
Despite the fact that most of the doctors
testifying had excellent medical credentials, there was little
agreement as to the cause of death of the three children. The
Washoe County forensic pathologist and the two forensic
pathologists with whom Dr. Clark consulted agreed that Buchanan
caused the deaths. However, there was even disagreement among
the other doctors about whether the autopsy photograph of Jacob
depicted a normal or an emaciated failure-to-thrive child. The
jurors had an opportunity to hear the opinion of all the medical
experts and could look at the photograph for themselves and make
their own determination.
Even though the defense experts did not agree
on a cause of death and disagreed with the conclusions reached by
others, they seemed to agree that additional tests should have
been conducted to rule out metabolic, kidney or other inherited
diseases. However, other experts testified that there was no
indication of any metabolic diseases when the organs were
examined, and therefore, no further tests were warranted. Also,
the metabolic tests that were conducted showed no abnormalities.
Furthermore, the defense could still have tested for any inherited
disease in the surviving Leal family members. There were
abnormalities in the size and shape of Jacob's kidneys, but tests
showed they functioned normally. There was expert testimony that
only half a kidney is necessary for survival. The jurors were
free to judge the credibility of the various experts and make
their own determination as to whom they should believe. Based on
the medical experts alone, there was substantial evidence from
which the jury could conclude that Buchanan killed her children.
In view of the physical findings and the widely
varying medical opinions, the circumstances surrounding the deaths
become important. The State presented evidence that Buchanan was
unemotional about the deaths of her children, that she had been
physically and emotionally unavailable to the children, and that
she abused her children. Buchanan told contradictory stories of
the events leading to the death of Jacob, both of which were
inconsistent with the physical record on the apnea monitor.
Buchanan was the only person who reported seeing a
life-threatening episode, and one episode that she reported as
life threatening was contradicted by a witness to the episode.
The children had medical problems when in her care, but none when
they were in the care of others.
Buchanan argues that the only evidence
presented at trial showing that the infants died as a result of a
crime was the testimony of Dr. DiMaio and other pathologists who
testified that statistical probabilities mandated that these
infants could not have died from natural causes. She is
incorrect. The forensic pathologists set forth their reasons for
concluding that the deaths were caused by asphyxiation, and those
reasons were not based on statistical probabilities.
The coroner and several of the medical experts
cited statistical probabilities, but they did not agree on those
either. The Washoe County coroner testified that there is
general agreement among the professionals in the forensic field
that the first unexplained death of an infant is recorded as SIDS,
the second as undetermined, and the third and subsequent deaths as
homicide, based on the statistical impossibility of subsequent
deaths in the same family being SIDS. Dr. DiMaio testified that he
developed this “ axiom” based on his experience and the experience
of other pathologists in evaluating cases. He explained that
basically, the first unexplained death is treated as a natural
death since you should not want to be suspicious of the parents or
insult them by investigating them when they are grieving. At the
second death, you are suspicious, but you still give the parents
the benefit of the doubt because you do not want to falsely accuse
them. When you get to the third death, you have gone beyond
“reasonable doubt” and you treat it as a homicide.
It is clear that neither Dr. DiMaio nor the
Washoe County coroner would automatically list the third death as
homicide. Dr. DiMaio stated that he would treat it as a
homicide. In other words, a criminal investigation is warranted,
including interrogation of family members and consideration of all
of the surrounding circumstances. It is apparent that the
coroner in this case did not automatically find the cause of the
third death to be homicide based on the “axiom” either. Instead,
he conducted an intensive investigation and reviewed the entire
case with both the Sparks and Reno police departments and medical
experts. He did not file the death certificate until over a year
after Jacob's death because of the extensive investigation. The
so-called “axiom” appears to be simply a guide to coroners or
medical examiners to focus their future investigations.
There was also considerable testimony attacking
the statistical probabilities and approach mentioned by the
coroner and Dr. DiMaio, even though they all recognized that the
approach was commonly used by coroners and forensic pathologists.
Dr. Gilbert-Barness called the “theory” “a disgrace.” She also
testified that it is “well-documented” that the risk of the
recurrence of SIDS in the same family is up to ten times the
normal risk factor. Dr. Wecht also does not subscribe to Dr.
DiMaio's theory. He testified that the “theory” was not based on
science. In fact, Dr. Wecht is of the opinion that it is
possible for SIDS to occur more than once in the same family.
All the medical experts agreed that the generally accepted risk
for a SIDS death is about 1 in 1,000 live births. However, they
clearly disagreed as to whether the likelihood of a subsequent
SIDS death in the same family goes up or down. The jurors heard
these opinions and were free to accept or reject any or all of
Lost or destroyed evidence
Buchanan claims that she was “irretrievably
crippled and a fair trial became impossible” because the State
discarded, consumed or failed to gather various tissues of the
three infants, thus, impermissibly shifting the burden of proof to
the defense. In Williams v. State,7
this court quoted the following passage from Leonard v. State: 8
The State's loss or destruction of evidence
constitutes a due process violation only if the defendant shows
either that the State acted in bad faith or that the defendant
suffered undue prejudice and the exculpatory value of the evidence
was apparent before it was lost or destroyed. Where there is no
bad faith, the defendant has the burden of showing prejudice.
The defendant must show that “ ‘it could be reasonably anticipated
that the evidence sought would be exculpatory and material to
[the] defense.” ’ It is not sufficient to show “ ‘merely a
hoped-for conclusion” ’ or “ ‘that examination of the evidence
would be helpful in preparing [a] defense.” ’
There was no evidence of bad faith on the part
of law enforcement. The murder investigation did not start until
the third death, so any exculpatory value from any tissue from the
first two victims would not have been apparent to law enforcement.
Also, medical experts testified that because of the small size
of infants, frequently the tissues are consumed in the testing.
The burden of proving prejudice lies with the
It is not sufficient that the defendant shows merely a hoped-for
conclusion from examination of the lost evidence or that it would
be helpful in preparing a defense.10
Buchanan claims she hoped to prove either metabolic or hereditary
kidney disease. Some defense experts indicated that the
potential diseases that the defense was postulating were
hereditary. Other medical experts testified that hereditary
disease could still be shown by testing the living members of the
family. One of Buchanan's medical experts who testified that
inadequate metabolic testing was done, had signed off on the
results of the metabolic tests on Jacob when he practiced as a
pediatrician in Reno as “not abnormal for age, no need to repeat.”
Another defense metabolic disease expert testified that even if
all the tests he recommended had been done, metabolic disease
still could not be ruled out. Many other experts testified that
there was no indication of a metabolic or hereditary disease in
any of the children or in their test results. Buchanan has not
shown that the “lost” evidence would have been exculpatory.
Also, hereditary tests could have been performed by the defense on
the surviving Leal family members if Buchanan really thought it
likely that exculpatory evidence would have been produced.
Buchanan also alleges that she
was prejudiced because the bedding and pajamas were not collected
at the scenes of the deaths and because photographs were not taken
at the scenes. Buchanan has failed to show how these items would
be material to her defense.
Premeditation and deliberation instruction
Buchanan argues that the instructions given to
the jury regarding premeditation and deliberation were improper.
The jury was given the standard instruction at the time, known as
the Kazalyn 11
instruction. In 2000, after the conclusion of this trial, this
court disapproved of that instruction in Byford v. State 12
because the instruction blurs the distinction between
premeditation and deliberation. However, that does not mean that
any prior conviction using the Kazalyn instruction must be
overturned. This court reviews the evidence in cases in which
the Kazalyn instruction was given to determine if sufficient
evidence was presented to establish premeditation and
deliberation. In this case, we have the testimony regarding how
long it takes to suffocate an infant, which is sufficient evidence
of deliberation, and two children being killed years apart is
sufficient evidence to infer premeditation.
Beyond a reasonable doubt instruction
Buchanan challenges the reasonable doubt
instruction codified in NRS 175.211. This court has repeatedly
reaffirmed the constitutionality of Nevada's reasonable doubt
In Ramirez v. Hatcher, the United States Court of Appeals for the
Ninth Circuit agreed that Nevada's reasonable doubt instruction is
Buchanan's claims that the district court erred
in allowing rebuttal testimony and in not issuing an advisory
verdict are without merit. The district court was within its
discretion in admitting rebuttal evidence 15
and in not issuing an advisory verdict.16
For the foregoing reasons, Buchanan's judgment
of conviction is affirmed.
I agree with the majority's analysis and
conclusion, but concur to express my concern about the use of
statistical evidence in criminal trials.
In this case, several experts testified about
the probability of three infants in one family being stricken with
SIDS. This testimony was based on the exports' own investigations
of unexplained infant deaths as well as literature discussing the
subject. The experts explained that years of research and
current thinking on the subject establish the statistical
improbability of SIDS occurring three times in the same family.
The admission of statistical evidence to show
the probability of an event occurring has long concerned courts
throughout the United States. In State v. Sneed,1
the Supreme Court of New Mexico stated that “mathematical odds are
not admissible as evidence to identify a defendant in a criminal
proceeding so long as the odds are based on estimates, the
validity of which have not been demonstrated.” In Sneed, a
mathematics professor testified that the chances of the defendant
committing the crime as opposed to some other person were 1 in 240
The professor used the product rule to determine the probability
that certain independent events would occur jointly.3
The product rule provides that the “probability of the joint
occurrence of a number of mutually independent events is equal to
the product of the individual probabilities that each of the
events will occur.” 4
The court determined that the factors used by the professor were
unsubstantiated estimates and, thus, reversed the conviction and
remanded the case for a new trial.5
In the landmark case of People v. Collins,6
the California Supreme Court concluded that testimony by a college
mathematics professor on the probability of persons with the same
distinctive characteristics as the defendants committing the crime
was inadmissible. The court determined that the expert testimony
lacked an adequate evidentiary foundation for the probability
estimates and also lacked adequate proof of the statistical
independence of the six factors used by the State's witness when
calculating the probabilities.7
On the other hand, other courts have concluded that statistics
are admissible when based on objective, substantiated evidence and
the number of variables is controlled.8
In cases dealing with multiple occurrences of
SIDS, testimony of statistical probabilities has been received
with caution. For example, in Johnson v. State,9
the Georgia Supreme Court concluded that evidence of the
probability of multiple occurrences of SIDS was inadmissible due
to the lack of information upon which it was based. Other
courts, however, have upheld the admission of statistical evidence
on the rarity of multiple occurrences of SIDS in a single
household when a sufficient foundation is established.10
Here, there was substantial evidence, which the
majority amply identifies, to establish that John and Jacob died
of asphyxiation and not SIDS. It was the expert opinion of Dr.
Clark and Dr. Ophoven that at least the second and third deaths
were not caused by SIDS. Had there been no evidence other than the
statistics, I would be very reluctant to affirm this conviction
because a defendant should be convicted by the evidence, not
exclusively by the numbers and probabilities. In this case,
however, that did not happen.
Therefore, I respectfully concur.
apnea monitor is a device that monitors the child's breathing and
heart rate. An alarm is activated on the monitor when either the
child's heart rate or breathing falls below a certain level.
v. State, 111 Nev. 1385, 1389, 907 P.2d 158, 160 (1995).
at 1391, 907 P.2d at 161.
v. State, 110 Nev. 103, 107, 867 P.2d 1136, 1139 (1994).
v. State, 113 Nev. 853, 861, 944 P.2d 762, 768 (1997).
v. State, 84 Nev. 642, 646, 447 P.2d 32, 34 (1968).
Nev. 536, ----, 50 P.3d 1116, 1126 (2002), cert. denied, 537 U.S.
1031, 123 S.Ct. 569, 154 L.Ed.2d 446 (2002).
Nev. 53, 68, 17 P.3d 397, 407 (2001) (citations omitted).
v. Warner, 112 Nev. 1234, 1240, 926 P.2d 775, 778 (1996).
(citing Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108
v. State, 108 Nev. 67, 75, 825 P.2d 578, 583 (1992).
Nev. 215, 235, 994 P.2d 700, 713 (2000).
e.g., Noonan v. State, 115 Nev. 184, 189, 980 P.2d 637, 640
F.3d 1209 (9th Cir.), cert. denied, 525 U.S. 967, 119 S.Ct. 415,
142 L.Ed.2d 337 (1998).
v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985).
v. State, 111 Nev. 1487, 1494, 908 P.2d 684, 688 (1995); NRS
N.M. 349, 414 P.2d 858, 862 (1966).
v. Collins, 68 Cal.2d 319, 66 Cal.Rptr. 497, 438 P.2d 33, 36
414 P.2d at 861-62.
P.2d at 33.
Rachals v. State, 184 Ga.App. 420, 361 S.E.2d 671, 675 (1987)
(admitting statistical evidence where the variables were
controlled and the “statistics were not derived from a random
sampling”); State v. Briggs, 55 Wash.App. 44, 776 P.2d 1347, 1358
(1989) (noting that “[t]here is no prohibition against using
well-founded statistics to establish some fact that will be useful
to the trier of fact”).
Ga. 419, 405 S.E.2d 686, 688 (Ga.1991).
e.g., State v. Pankow, 144 Wis.2d 23, 422 N.W.2d 913, 918-19
(1988) (admitting statistical probability analysis because proper
foundation was laid, and the State did not argue that the
probability could be used to determine the defendant's guilt).
AGOSTI, C.J., BECKER, MAUPIN, JJ. and YOUNG 17,
Sr.J., concur.LEAVITT, J., concurs.