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State v. Eskew

Supreme Court of Montana

February 28, 2017

STATE OF MONTANA, Plaintiff and Appellee,
JASMINE NICOLE ESKEW, Defendant and Appellant.

          Argued and Submitted: December 7, 2016

         APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDC-12-425 Honorable Dirk M. Sandefur, Presiding Judge.

          For Appellant: Chad Wright, Chief Appellate Defender, Koan Mercer (argued), Assistant Appellate Defender, Helena, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar (argued), Assistant Attorney General, Helena, Montana, John W. Parker, Cascade County Attorney, Susan L. Weber, Deputy County Attorney, Great Falls, Montana

          For Amici The Innocence Project, Inc. and the Montana Innocence Project: Paul M. Leisher, Paoli Law Firm, P.C., Missoula, Montana, Larry D. Mansch, Toby Cook, Montana Innocence Project, Missoula, Montana.



         ¶1 Jasmine Nicole Eskew appeals from her conviction of felony Assault on a Minor in violation of § 45-5-212, MCA. We reverse the conviction.

         ¶2 We restate the issue on appeal as follows:

         Did the District Court properly admit evidence of Eskew's admissions or confession made during police interrogation?


         ¶3 On September 18, 2012, Eskew called 911 in Great Falls to report that her six-month-old daughter Brooklyn was unresponsive and not breathing. Paramedics arrived and found Brooklyn as her mother described, and took her to the hospital. As the paramedics arrived, Eskew's recent boyfriend Greg Robey was seen leaving the residence. Brooklyn had a severe head injury with subdural bleeding on her left side. While a CT scan showed that her skull was fractured, medical personnel did not identify that fact until later. Medical personnel suspected child abuse and contacted law enforcement, telling responding officers that Brooklyn's injury resulted from shaking.

         ¶4 Shortly after Eskew arrived at the hospital in Great Falls, law enforcement officers talked to her about Brooklyn's condition.[1] They took her to the police station, away from the hospital and from Brooklyn. They placed her alone in an interrogation room where she was upset and sobbing repeatedly that "I want my baby."

         ¶5 After a considerable period of time, two Great Falls Police officers entered the interrogation room. They read Eskew a Miranda advisory and then gave her a printed copy. Eskew read and signed the Miranda advisory. The two officers assured Eskew that her daughter was being cared for and that as soon as they finished talking to her she would be reunited. They told her that they needed an accurate description of what had happened so that it could be passed on to the doctors. They told her that Brooklyn could not be adequately treated unless she answered their questions and that the sooner they finished the interview the sooner they could get her back to her daughter. "We'll get this over with and get you back up to your daughter, okay?" Officers told Eskew that she was the only one who could help Brooklyn, and that Eskew was "hurting" her daughter by not giving them the responses they expected about the injury to the baby.

         ¶6 Eskew often responded to repeated questions with only a few words, and many of her responses were transcribed as "inaudible." Eskew told the officers how she found her daughter in distress and had tried to console her by rocking her. Eskew denied the officers' allegations that she shook Brooklyn, stating that she "didn't shake her or anything." The officers told Eskew that they already knew what had happened and demanded that Eskew admit that her description of "rocking" Brooklyn to console her was actually "shaking." Eskew repeatedly denied shaking Brooklyn.

         ¶7 The officers gave Eskew a doll to demonstrate how she rocked her daughter. Eskew did so, but the officers insisted that she do it differently and that she "make the doll's head rock!" The interrogation went on for about four hours. Ultimately Eskew relented and shook the doll for the officers and told them that she had shaken her daughter.

         ¶8 Brooklyn and her mother were never reunited. Brooklyn was transferred to Spokane for treatment while Eskew was under interrogation. When Brooklyn arrived in Spokane, medical personnel detected her skull fracture on the CT scan, and she showed other signs of non-accidental injury. She died several days later while Eskew was in jail. A subsequent autopsy revealed that Brooklyn had died from brain injuries caused by a single blow to the head, and that there was no evidence that she had any injury that resulted from having been shaken.

         ¶9 The State charged Eskew with deliberate homicide in the death of her daughter. Prior to trial Eskew moved to suppress the results of the interrogation, contending that her admissions were not voluntary. On December 2, 2013, the District Court held the hearing on the motion to suppress. The two Great Falls Police officers who conducted the interrogation testified, along with two experts proffered by the defense. The District Court heard that testimony and watched the video of the interrogation.

         ¶10 District Court found that the police officers deliberately lied to Eskew by telling her that the interview was necessary to get information to treat Brooklyn, by telling her that her responses to their questions could determine whether her daughter received the proper medical treatment, and by telling her that she would be reunited with her daughter as soon as the interrogation was over. The District Court found that the real purpose of the interview was to obtain admissions from Eskew that fit the officers' pre-determination that she had caused her daughter's injury by shaking her. The District Court found that Eskew did not understand that the officers were questioning her in order to charge her with a serious crime. The District Court denied the motion to suppress.

         ¶11 At trial the State relied heavily upon the admissions that Eskew made during the interrogation. The jury found Eskew not guilty of deliberate homicide, but guilty of felony assault on a minor pursuant to § 45-5-212, MCA. Eskew spent almost two years in jail by the time of sentencing. The District Court imposed a five-year term to the Montana Department of Corrections. Eskew appeals her conviction.


         ¶12 This Court reviews a district court's decision on a motion to suppress to determine whether the findings of fact meet the clearly erroneous standard, and whether the findings are correctly applied as a matter of law. A finding of fact is clearly erroneous if it is not supported by substantial evidence; if the district court misapprehended the effect of the evidence, or if this Court is definitely and firmly convinced that the district court made a mistake. Whether a confession is voluntary is a factual issue and the district court is in the best position to determine the credibility of witnesses who testify. This Court will not re-weigh evidence considered by the district court or substitute our own evaluation of that evidence. State v. Old-Horn, 2014 MT 161, ¶¶ 13-14, 375 Mont. 310, 328 P.3d 638.


         ¶13 Issue: Did the District Court properly admit evidence of Eskew's admissions orconfession ...

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