FRANK v. COMMONWEALTH
MAY 25, 1999
Record No. 0824-98-1
REGINA LEA FRANK
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Junius P. Fulton, III, Judge
Present: Judges Coleman, Annunziata and
MEMORANDUM OPINION BY JUDGE
SAM W. COLEMAN III
Argued at Norfolk, Virginia
Lenita J. Ellis for appellant.
Marla Graff Decker, Assistant Attorney General
(Mark L. Earley, Attorney General; Richard B. Smith, Assistant
Attorney General, on brief), for appellee.
Regina Lea Frank was convicted by bench trial
of second-degree murder for the death of her two-month-old son,
Zachary Frank. On appeal, Frank contends that the trial court
erred in denying a motion to suppress her oral and written
statements and that the evidence was insufficient to support the
conviction. Finding no error, we affirm.
When an appeal challenges the sufficiency of
the evidence or the denial of a suppression motion, we view the
facts in the light most favorable to the prevailing party and
grant to that party all reasonable inferences fairly deducible
therefrom. See Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975) (regarding sufficiency
appeals); Commonwealth v. Grimstead, 12 Va. App. 1066,
1067, 407 S.E.2d 47, 48 (1991) (regarding suppression motion
On Monday, November 25, 1996, two-month-old
Zachary Frank stopped breathing in his father’s arms. Mr.
Frank attempted CPR while awaiting assistance. When paramedics
responded, they found the baby unconscious and having agonal
respirations of eight per minute. Paramedics attempted to
intubate the child twice but failed. They noted that the airway
was clear and then ventilated the baby with a bag valve mask. The
baby responded and began to cry after which paramedics
administered "blow by" oxygen. Zachary’s breathing
returned to the normal range of about sixty breaths per minutes.
The baby’s eyes were deviated, and he was posturing, or
arching his back. When they arrived at the King’s Daughters
Hospital, at 6:03 p.m., the baby’s color was restored, and
he continued to breathe on his own. At the hospital, doctors
administered meningitis antibiotics in accordance with hospital
At trial, the Commonwealth called three medical
expert witnesses who described the baby’s medical condition
and opined that the cause of death was shaken baby syndrome.
Dr. Christopher Foley, a pediatric intensive
care physician, treated Zachary for most of the baby’s time
at the hospital. He first examined Zachary between 9:30 and 10:00
p.m. the night he arrived. Dr. Foley testified that Zachary was
critically ill, pale and mottled, had low blood pressure, was on
heart medication and was on life support. A CT scan of
Zachary’s head on November 25, revealed subdural and
subarachnoid hemorrhages,  and loss of gray-white differentiation, indicating
swelling of the brain. Upon further examination, Dr. Foley also
discovered retinal hemorrhaging.
Doctors administered an EEG which indicated
that Zachary’s brain had "suffered a global
insult" that affected the vast majority of his brain.
Despite administering phenobarbital medication, the child
continued to experience seizures causing further injury to the
brain. Zachary had signs and symptoms of brain death thirty-six
to forty hours after arrival at the hospital. Ultimately doctors
performed a "flow study" on Zachary’s brain
revealing that the brain was receiving no blood flow, and he was
clinically dead. On December 1, at 1:00 p.m., doctors pronounced
Dr. Donald Lewis, a pediatric neurologist at
the King’s Daughters Hospital, assisted as a consultant for
Zachary on the morning of November 26. Dr. Kinnison, an Assistant
Chief Medical Examiner for the Commonwealth, performed an autopsy
on Zachary. All three experts opined that Zachary’s cause of
death was shaken baby syndrome. Each acknowledged that
establishing the time of injury was imprecise, but each testified
that the injuries could have occurred seventy-two hours before
the CT scan.
In addition to establishing that Zachary’s
constellation of injuries was consistent with shaken baby
syndrome, the experts also ruled out numerous other
possibilities. The experts testified that neither aggressive CPR,
lack of oxygen, meningitis, meningitis prophylactics,
antibiotics, reflux, reflux medication, apnea, failed intubation
attempts, phenobarbital, nor the cryprecipitate blood
transfusions or any combination of these events would have caused
the combination of symptoms that afflicted Zachary. According to
Dr. Lewis, "there is no other explanation [than shaken baby
syndrome] that causes this constellation of injuries."
Prior to the incident, Zachary had been treated
for reflux. Additionally, on Saturday, November 23, 1996, doctors
at King’s Daughters’ outpatient clinic diagnosed
Zachary with a viral infection but did not notice anything else
unusual and did not prescribe any medication. Family members
testified that on November 24 and 25, Zachary had cold symptoms
but otherwise appeared normal.
Police Investigator Ingram first spoke to the
defendant at the hospital on November 26, the day after
Zachary’s admission to the hospital. Mrs. Frank had left the
hospital and had slept for about four hours that evening, which
she testified was about her normal amount of sleep.
At Ingram’s request, the Franks met with
him at the police station at 3:12 p.m. on November 26. Ingram,
Investigator Goldberg, and Child Protective Services worker Brent
Ramey were present. Prior to interviewing Mrs. Frank, Ingram
advised her of her rights. Mrs. Frank executed a Norfolk Police
Department Legal Rights Advice Form PD-381. She was not
restrained and did not appear intoxicated or under the influence
of drugs. During the course of the interviews, the officers
neither threatened Mrs. Frank, raised their voices, nor made any
Initially, Mrs. Frank denied injuring her child
and suggested that her daughter may have inflicted the injury. At
5:07 p.m., officers decided to interview Mr. Frank. Officers
asked Mrs. Frank if she wanted to use the bathroom or if she
needed a drink. After interviewing Mr. Frank, the investigators
brought Mrs. Frank back into the interview room where she agreed
to take a polygraph test. At 6:50 p.m., prior to the polygraph,
Regina Frank stated "If I did it, I don’t remember
doing it." At 7:13 p.m., she stated, without prompting,
"How can you tell if I did it if I don’t remember doing
it." At 7:15 p.m., in reference to Friday evening, Frank
I was in a good mood all weekend but I was
frustrated that I couldn’t help Zachary and that he was
sick. My older daughter frustrated me by asking me if she
could watch the same movie over and over again. I gave in and
let her. Sometimes I raise my voice at my daughter and I
almost struck her out of frustration.
At 7:16 p.m., she stated, "I sometimes
take out my frustrations by cleaning up the house and throwing
things at the wall but not at people." Investigators Ingram
and Goldberg made notes of these statements.
Between 7:19 and 8:20 p.m., Investigator Crank
performed a polygraph examination on Mrs. Frank. After the
examination, Ingram informed Mrs. Frank that the test indicated a
ninety-nine percent probability of deception. At 8:34, Mrs. Frank
stated: "Both kids were getting me upset and my older
daughter wanted to watch the same movie over and over and I shook
the swing and probably took him out and shook him. I lost control
so much I can only remember some parts." Upon departing the
polygraph room, investigators offered Mrs. Frank a beverage.
Investigators again advised Mrs. Frank of her
legal rights and thereafter obtained an eight minute taped
statement. During the statement, Mrs. Frank admitted to being
frustrated at her daughter’s behavior and by Zachary’s
crying. She admitted that on Friday, she shook the swing upon
which Zachary sat. Ingram asked, "Didn’t you tell me
you shook the swing violently?" She responded, "Yes
sir." When asked if her husband or anyone else shook the
child she responded "No." When asked, "How do you
feel that he acquired these injuries," she responded,
"By me shaking him."
A stenographer transcribed the tapes and at
11:05 p.m., investigators presented Mrs. Frank with the
transcripts to review. She pointed out several errors which
Ingram corrected, she added one phrase, and she signed every
page. At 11:10 p.m., investigators arrested Mrs. Frank.
Prior to the polygraph, Ingram held a picture
of Zachary up close to Mrs. Frank and he said, "Mommy, help
me." Ingram also asked Frank if she believed in God and when
she responded in the affirmative, he said "well if you
didn’t do this . . . can you invoke the Lord and tell him to
help us find who [did this] and can you look God in the eyes . .
. at judgment day . . . and tell him that [you] didn’t have
anything to do with this." Frank held her hands up in the
air with her fists balled, and Ingram said "can’t you
open your heart . . . . [H]olding your hand in a fist is an
indication that your blocking something . . . . [L]et him in,
call him out."
A. SUPPRESSION MOTION
In an appeal challenging a ruling on a motion
to suppress, we consider the evidence in the record from both the
suppression hearing and the trial. See Woodson v.
Commonwealth, 25 Va. App. 621, 625, 491 S.E.2d 743, 745
(1997). "While we are bound to review de novo
the ultimate questions of law, we ‘review findings of
historical fact only for clear error.’" Id. at
625, 491 S.E.2d at 745 (quoting Ornelas v. United States,
517 U.S. 690, 699 (1996)).
Even when a suspect waives his or her Fifth and
Sixth Amendment rights, a confession made involuntarily is
inadmissible. See Morris v. Commonwealth, 17 Va.
App. 575, 579, 439 S.E.2d 867, 870 (1994). The voluntariness of a
statement is "ultimately a legal rather than a factual
question, but subsidiary factual questions are entitled to a
presumption of correctness." Williams v. Commonwealth,
234 Va. 168, 172, 360 S.E.2d 361, 364 (1987). Therefore, we
determine whether the facts, viewed in the light most favorable
to the Commonwealth, support the trial court’s legal
conclusion that Regina Frank gave her statements voluntarily.
Based on the totality of the circumstances,
Frank’s will was not "overborne," nor was her
"‘capacity for self-determination critically
impaired.’" Thomas v. Commonwealth, 244 Va. 1,
15-16, 419 S.E.2d 606, 614 (1992) (quoting Gray v.
Commonwealth, 233 Va. 313, 324, 356 S.E.2d 157, 163 (1987)).
Her statements were the "product of an essentially free and
unconstrained choice." Id.
In examining the totality of circumstances a
court must consider a number of factors including age,
intelligence, background and experience with the criminal justice
system, the purpose and flagrancy of any police misconduct, the
length of the interview, and moral and psychological pressures
placed on an accused from authorities. See Morris,
17 Va. App. at 579, 439 S.E.2d at 870.
Frank was twenty-nine years old. According to
her testimony she had completed high school and later earned a
nursing assistant certificate. A psychiatrist called by the
defense testified that despite a below average IQ, Frank was
competent at the time of the offense and that her memory was
intact. The psychiatrist also testified that Frank showed signs
of emotional blunting probably as a result of sexual abuse and
chaos surrounding her life especially during puberty.
She had slept for four hours prior to the
interrogation — a normal amount for her — and she was not under
the influence of drugs or alcohol at the time of the interview.
She "agreed willingly to" meet Ingram at the station,
and she was not restrained in any way upon arrival.
Ingram advised Frank of her Miranda
rights. Frank executed the advisory form and detectives again
advised her of her rights prior to the taped statement. During
the course of the entire interview, Frank never invoked her right
to silence or to have an attorney present. She never appeared
confused or emotionally upset. From the time she arrived at the
station house until the time she was arrested, eight hours
elapsed. However, during that time she had numerous breaks, and
investigators offered her multiple opportunities to use the
restroom or obtain a beverage. Additionally, Frank made
statements that justifiably raised the investigators’
suspicions less than four hours after her arrival at the station.
Frank argues that investigators used the
polygraph as an instrument of coercion rendering her statements
involuntary. The purpose of requiring that admitted statements be
voluntary is to insure that "the admission or confession is
trustworthy as testimony." Owens v. Commonwealth, 186
Va. 689, 700, 43 S.E.2d 895, 900 (1947); see Jones v.
Commonwealth, 214 Va. 723, 726, 204 S.E.2d 247, 249 (1974).
Although the results of polygraph examinations are not
admissible, we have not applied a similar per se
prohibition to statements obtained before or after voluntary
polygraph examinations. See e.g., id. at
727, 204 S.E.2d at 249 ("We do not agree . . . that because
polygraph testing is not admissible, any statement by defendant
made to the polygraph operator in the pretesting conditioning
period, or as a preliminary to the testing, should also be
excluded."). We find that the unreliability and
inadmissibility of a polygraph examination as an investigative
tool does not render substantive statements per se
involuntary. The same standards apply to confessions obtained
with the use of a polygraph examination as apply to other
confessions. See Jenner v. Smith, 982 F.2d 329, 334
(8th Cir 1993); Bae v. Peters, 950 F.2d 469, 475 (7th Cir.
1991); J. Smith, Admissibility in evidence of confession made
by accused in anticipation of, during, or following polygraph
examination, 89 A.L.R.3d 230, 233-34 (1979).
Here, Ingram explained to Frank that the
results of polygraph tests are generally not admissible in court
and that she had a right to refuse the test. Frank agreed to take
the test and never stated that she did not wish to do so.
Undoubtedly, telling Frank that she "failed" the test
had an impact on her willingness to speak, but nothing about its
effect on Frank raises a concern about the reliability or
voluntariness of her statement. There is simply no evidence that
the polygraph exam coerced Frank’s statement.
Similarly, the investigators’ use of
religion as an investigative tool does not render Frank’s
statement involuntary. See Rodgers v. Commonwealth,
227 Va. 605, 615, 318 S.E.2d 298, 303-04 (1984). We find that
based on the totality of the circumstances, including an
assessment of Frank’s background and psychological
condition, and having considered all the investigative tools
employed, Frank’s statements were voluntary and reliable.
Frank also contends that alleged oral and
written statements attributed to her were unreliable. The three
individuals present at the interview reported substantially
similar statements, and Frank reviewed and corrected her recorded
statement. Furthermore, on appeal, we defer to the fact
finder’s assessment of the credibility of evidence. See
Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d
735, 736-37 (1985). Accordingly, the trial court did not err in
admitting and accepting the statements.
B. SUFFICIENCY OF THE
1. Standard of Review
Frank challenges the sufficiency of the
evidence to support her conviction. She contends the evidence was
insufficient to show that the cause of Zachary’s death was
homicide. Frank claims that even if the cause of death was
homicide, there was insufficient evidence to establish that she
was the criminal agent. Finally, she claims that even if she was
the cause of death, there was insufficient evidence to establish
the element of malice.
As stated earlier, we view the evidence in the
light most favorable to the Commonwealth and grant to the
Commonwealth all reasonable inferences fairly deducible
therefrom. See Higginbotham, 216 Va. at 352, 218
S.E.2d at 537. We discard any evidence of the accused in conflict
with the Commonwealth’s evidence, and we regard all the
Commonwealth’s credible evidence as true. See Boblett
v. Commonwealth, 10 Va. App. 640, 651, 396 S.E.2d 131, 137
(1990). Furthermore, circumstantial evidence is as competent and
entitled to as much weight as direct evidence on appeal. See
Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,
Finally, as the appellant points out, in a
wholly circumstantial case, the evidence must exclude every
reasonable hypothesis of innocence. However, the Commonwealth
need not exclude every possible theory of innocence,
rather it must exclude only those which flow reasonably
from the facts and raise a reasonable doubt of guilt. See Payne
v. Commonwealth, 216 Va. 265, 272, 217 S.E.2d 870, 875
(1975). Whether a particular hypothesis is reasonable, is a
question of fact binding on appeal unless plainly wrong. See
Lovelace v. Commonwealth, 27 Va. App. 575, 586, 500 S.E.2d
267, 273 (1998).
Moreover, the Commonwealth need not actively
negate every reasonable theory of innocence, instead it is
sufficient if the evidence as presented has the effect of
excluding those theories. See Orange v. Commonwealth,
191 Va. 423, 443, 61 S.E.2d 267, 276 (1950). If, based on the
Commonwealth’s evidence, the fact finder justifiably could
have excluded all reasonable hypotheses of innocence, or
determined that any possible hypothesis of innocence was less
than reasonable, then we must affirm. We defer to the fact finder
because the inferences to be drawn from proven facts are the
province of the fact finder so long as they are reasonable and
justified. See Higginbotham, 216 Va. at 353, 218
S.E.2d at 537.
When the appellant presents an hypothesis of
innocence on appeal, the burden is on the appellant to show that
the facts as found by the fact finder do not exclude a reasonable
theory that is consistent with the defendant’s innocence. See
generally Johnson v. Commonwealth, 12 Va. App. 391,
396, 404 S.E.2d 384, 387 (1991) ("The burden is on the party
who alleges reversible error to show by the record that reversal
is the remedy to which he is entitled."). It is in this
context that the Virginia Supreme Court has said that the
hypotheses which the Commonwealth must exclude are those that
actually flow from the evidence rather than those that merely
arise from the imagination of the appellant. See e.g.,
Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608,
609 (1981). Thus, to prevail, appellant must show that the facts
as established in the record, viewed in the light most favorable
to the Commonwealth, do not exclude a reasonable hypothesis that
would render the appellant innocent.
2. Cause of Death
Drs. Foley, Lewis, and Kinnison each testified
that Zachary Frank exhibited the unique constellation of
physiological conditions indicating shaken baby syndrome. Each
doctor further testified that the combination of symptoms
combined with the complete absence of external trauma could only
be consistent with shaken baby syndrome which Dr. Lewis described
the phenomena that occurs when a baby,
usually a small child because of the weight involved, is
vigorously shaken to and from in such a fashion that the
blood vessels which are surrounding the brain are sheered. It
causes a great deal of bleeding around the brain and with
sufficient force tears the inside lining of the retina of the
Frank argues that the doctors’ opinions
are unreliable because they were based on a mistaken
understanding of the history. However, Frank fails to point out
any particular mistaken understandings and, in any event, the
medical experts based their opinions on the results of direct
examinations rather than on the child’s history.
Frank also argues that the Commonwealth failed
to exclude all reasonable hypotheses of innocence. She suggests
that the medical experts did not rule out other causes of death.
We disagree. The evidence of the medial experts in conjunction
with Frank’s admission was sufficient to permit the fact
finder to exclude every other hypothesis of death that flows
reasonably from the evidence. The experts ruled out every
hypothesis that Frank suggested at trial. On appeal, Frank seems
to suggest that while none of the hypotheses of injury suggested
at trial could account for the constellation of symptoms Zachary
exhibited, an aggregation of these causes could have resulted in
the symptoms. Thus, if the child had meningitis, if the doctors
administered too much phenobarbital, and if the emergency
personnel or the father subjected the child to overly aggressive
CPR, it was possible that similar symptoms could have appeared.
However, expert testimony indicated that research only theorized
that aggressive CPR could cause retinal hemorrhaging.
Additionally, there was no evidence that the child received too
much phenobarbital. Finally, Dr. Lewis testified that Zachary was
only treated for meningitis as a matter of hospital routine
procedure – when acutely ill children are admitted they are
routinely treated for meningitis. Therefore, in view of the
aforementioned standards of review, the evidence excluded all
hypotheses of death other than shaken baby syndrome.
3. Criminal Agency
Frank argues that the evidence was not
sufficient to show that she caused the fatal injury. Frank points
out that the Commonwealth called no witnesses who had direct
knowledge of the three or four hour period after the paramedics
delivered Zachary to the hospital and before Dr. Foley’s
first examination. Frank appears to argue that even if Zachary
died from shaken baby syndrome, the evidence does not exclude
every reasonable hypothesis of innocence because the Commonwealth
has not credibly established the events that transpired during
that three or four hour period. We disagree.
Frank admitted that she was the criminal agent.
Thus, the evidence proved that she was the criminal agent and
this evidence excluded every reasonable hypothesis of innocence.
Frank admitted that out of frustration she shook the baby on
Friday, November 22, 1996. When asked, Frank also stated that no
one else had shaken the baby. The baby was admitted to the
hospital on Monday, November 25, 1996 — roughly seventy-two
hours later. All three medical experts testified that it would be
normal for symptoms to appear around seventy-two hours after the
injury. There is no evidence that supports an hypothesis that a
hospital worker, or some unknown agent, caused the shaken baby
syndrome injuries during the three or four hour period after
Zachary’s admission, and conversely, there is ample evidence
that Frank was the criminal agent. See e.g., Webber
v. Commonwealth, 26 Va. App. 549, 561-65, 496 S.E.2d 83,
88-90 (1998) (finding evidence that the defendant shook and
slapped a baby in combination with medical evidence of causation
and timing sufficient to convict defendant of second degree
Finally, Frank argues that even if the trial
court did not err by finding that Frank caused the injury and
death, there was insufficient evidence for the trial court to
find malice, and, therefore, the Commonwealth did not sustain its
burden of proving second degree murder.
To convict Frank of second degree murder, the
Commonwealth had to prove malice aforethought. See Perricllia
v. Commonwealth, 229 Va. 85, 91, 326 S.E.2d 679, 683 (1985).
Whether Frank acted with malice is a question for the fact
finder. See Essex v. Commonwealth, 228 Va. 273,
280, 322 S.E.2d 216, 220 (1984). Malice may be implied from
conduct, for example, when a purposeful and cruel act is
committed against another without any or with only slight
provocation. See Pugh v. Commonwealth, 223 Va. 663,
668, 292 S.E.2d 339, 341 (1982). Frank cites language in Essex
for the proposition that when an act is committed out of
negligence, malice may not be implied. See Essex,
228 Va. at 280, 322 S.E.2d at 220.
[A] common theme running through
[definitions of malice] is a requirement that a wrongful act
be done willfully or purposefully. This requirement of
volitional action is inconsistent with inadvertence. Thus if
a killing results from negligence, however gross or culpable,
and the killing is contrary to the defendant’s
intention, malice cannot be implied.
Id. (internal quotation marks and
citations omitted). Here, however, the evidence shows that Frank
willfully and deliberately shook Zachary Frank.
"Implied malice may be inferred from
conduct likely to cause death or great bodily harm, willfully or
purposefully undertaken." See Canipe v.
Commonwealth, 25 Va. App. 629, 642, 491 S.E.2d 747, 753
(1997) (quotation marks and citation omitted). Moreover, the fact
finder may infer that a person intends the natural and probable
consequences of his actions. See Campbell v.
Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en
banc). Additionally, "the comparative weaknesses of
the victim and the strength of the aggressor may be
considered" in determining the probable consequences of an
aggressor’s acts. Id. at 485, 405 S.E.2d at 5.
Experts testified that the injury that Frank
inflicted required Zachary’s head to go violently forward
and backward and that the only comparable injury they encounter
occurs when children are thrown from motor vehicle accidents.
Because of the extreme violence required to cause the injury, and
because Frank admitted that she willfully and violently shook the
baby, the trial court was entitled to infer malice.
We find that based on the totality of the
circumstances surrounding the interrogation, Mrs. Frank’s
will was not overborne, nor was her capacity for
self-determination critically impaired. Therefore, the trial
court did not err in refusing to suppress her statements.
Additionally, we find that the Commonwealth produced sufficient
evidence to establish that Zachary Frank died of shaken baby
syndrome and that it was Mrs. Frank’s conduct that caused
the fatal injuries. Finally, we find that the trial court did not
err in inferring implied malice from Mrs. Frank’s willful
and violent shaking of the infant. Accordingly, we affirm the
trial court’s decision.
 Pursuant to Code
Sect. 17.1-413, recodifying Code Sect. 17-116.010, this
opinion is not designated for publication.
 Dr. Foley
testified that subdural hemorrhaging refers to blood beneath the
thick dura of the brain whereas subarachnoid hemorrhaging refers
to blood directly against the brain.
 Dr. Foley
testified that the CT scan showed the presence of old and new
blood indicating two separate injuries, one of which would have
occurred within approximately seventy-two hours and one of which
would have occurred four or five days earlier. Lewis testified
that the injuries would have occurred within twenty-four to
seventy-two hours. Kinnison stated that the symptoms could appear
anywhere from immediately after the injury to seventy-two hours
after the injury. She also stated that injuries sometimes occur
three, four, or even five days before the symptoms appear. All
the witnesses agreed that a shaken baby sometimes shows no
apparent signs of injury for three or more days.