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State v. Gallaway

Superior Court of Delaware, Sussex

July 16, 2015


SUBMITTED: April 2, 2015


Natalie S. Woloshin, Esquire and Benjamin S. Gifford, IV, Esquire, 3200 Concord Pike, attorneys for defendant Jason R. Gallaway

Melanie Withers, Esquire; Kathryn J. Garrison, Esquire; and Casey Ewart, Esquire; attorneys for State of Delaware



Defendant Jason R. Gallaway was charged with, and found guilty of, murder by abuse or neglect in the first degree, in violation of 11 Del. C. § 634(a)(1), [1] in connection with the death of his three-month-old daughter, Marissa Gallaway ("Marissa").[2] Pending before the Court is defendant's motion seeking postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61").[3] Defendant has advanced numerous claims. The Court rules in defendant's favor on his claim that the trial was fundamentally unfair because he was not provided an expert to aid him in his defense. Consequently, the Court does not address defendant's other Rule 61 claims or his pending motion to reargue the Court's decision denying his request to supplement his Rule 61 motion.

On December 2, 2010, Seaford Police and emergency personnel responded to defendant's residence after he called for help. They found Marissa unresponsive. They obtained a pulse after performing CPR. They transported Marissa to Nanticoke Hospital and then A.I. DuPont Hospital for Children. She died from her injuries on December 5, 2010.

Defendant's basic version of what happened was as follows.[4] The day before her fatal injuries occurred, defendant had Marissa on his lap doing "exercises" with her. When he sneezed, his sneeze startled Marissa, which caused her to fall. Thereafter, Marissa had a lump on the back of her head. The next day, Marissa was on defendant's lap again while he performed the same exercises. She jumped or thrust herself out of his lap and hit her head on the floor.

Marissa sustained numerous injuries in her short life span: severe injuries to the upper part of her brain and brainstem; several skull fractures; bleeding in several areas around her brain; bruising under the chin, on her jaw, and on her forehead; a healing rib that had previously been fractured; retinal and vitreous hemorrhages; an injury to her left forearm; a previously fractured shoulder; and trauma to her abdomen. Defendant took responsibility for nearly all of the injuries Marissa suffered; he explained he was clumsy and often dropped Marissa or accidentally bumped her into walls.

Defendant was arrested for Marissa's death on December 5, 2010. On February 22, 2011, he was charged by indictment with murder by abuse or neglect in the first degree.

The jury had to decide whether the cause of Marissa's fatal injuries was accidental or non-accidental. The specific question as to the accidental aspect was whether her fatal injuries could have resulted from two falls from couch height which defendant said occurred on consecutive days. Experts were necessary to address these questions.

The State of Delaware's ("the State") experts were Dr. Cindy W. Christian, a pediatrician, and Dr. Robert A. Zimmerman, a pediatric neuroradiologist. They testified at both a Daubert hearing and the trial. They examined all of the information, including Marissa's various injuries and the nature of the fatal injuries. They concluded an accident or a fall from couch height did not cause the fatal injuries.[5] Dr. Christian was particularly adamant that the short fall from couch height could not have caused her fatal injuries, stating in the Daubert hearing that medical data does not support that a baby who falls from 20 inches will succumb to fatal head injuries.[6] Dr. Christian testified at trial that she was aware of only one reported situation where a child died from a short fall.[7] During the Daubert hearing, Dr. Zimmerman testified he was unaware of any reports of a short fall actually killing an infant.[8] At trial, Dr. Zimmerman testified that one does not expect death to result from a fall under four and a half feet based upon studies conducted.[9] He also testified at trial that he is not aware of a fall under two feet killing any infant.[10] Both experts testified that non-accidental trauma caused Marissa's recent injuries and death.

Gallaway did not present any medical experts. He testified he accidentally dropped Marissa from couch height during the stretching exercises.

The jury found defendant guilty as charged. He was sentenced to life imprisonment without the possibility of probation or parole.

From the start, trial counsel knew he needed at least one expert, if not more, to testify on behalf of the defense.[11] Also from the start, trial counsel was aware of successful postconviction proceedings in these types of cases based upon doctors challenging conventional wisdom. Trial counsel sent an email on January 11, 2011, to the Public Defender's administration saying he would need a doctor to evaluate the medical records. On January 12, 2011, he emailed Public Defender staff with medical backgrounds asking for the names of doctors they had used in the past. He was informed that these staff members would review the records "to see if there is a need to go further."

Trial counsel sent an email in May asking for expert names and parameters for funding. He was informed that the Public Defender's administration was waiting on a request from the staff members with medical backgrounds to recommend whether an expert was needed.

On May 24, 2011, trial counsel sent another email stating he needed a doctor who specializes in shaken baby cases to review the report.[12]

In late July, 2011, arrangements were made with Dr. Ophoven to review the medical records. Unfortunately, the total costs were understated. Upon discovering this error, staff from ...

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