New trial in child death

© 2017-Alamosa News

ALAMOSA — Krystal Voss, 43, will get her day in court — again.

The former Alamosa resident who was serving a 20-year prison sentence for felony child abuse causing death in connection with her 19-month-old son’s 2003 death has been granted a new trial.

After considering testimony during a hearing on a post-conviction relief motion more than a year ago and subsequent arguments from prosecution and defense attorneys, Chief District Judge Pattie Swift this week vacated Voss’ conviction and sentence and ruled that Voss should be granted a new trial.

Swift’s decision was primarily based on the argument that Voss’ defense attorneys did not adequately prepare for her 2004 trial when she was convicted of causing the injuries that ultimately resulted in her son’s death.

“Ms. Voss has shown, by a preponderance of the evidence, that her trial counsel were ineffective because, although they expended a great deal of effort on this case, they failed to conduct an adequate investigation,” Judge Swift wrote in her August 7th decision. “Ms. Voss is entitled to a new trial on this basis.”

However, Swift did not agree with other arguments for a new trial: that Voss’ trial attorneys failed to consult with a false confession expert or failed to limit one of the key prosecution’s witnesses to her area of expertise; that there was a big shift in medical and scientific understanding of “shaken baby syndrome” or abusive head trauma since Voss’ trial; or that a contradictory medical expert had communicated her opinion to the district attorney’s office before the trial or established that her opinion qualified as newly discovered evidence.

The inadequate investigation argument was enough to merit a new trial for Voss, the judge ruled.

Judge Swift, who was not the trial judge in this case, recounted the background of this case. (Although the court struck out the name of Voss’ child in the judge’s decision, Kyran Voss had been identified during the trial as the victim in this case.)

Krystal Voss’ son Kryan was admitted to the Alamosa hospital on January 31, 2003, with a head injury, from which he ultimately died on March 24 of that year. Krystal Voss was charged with first degree murder and reckless child abuse resulting in death. A jury subsequently convicted her of child abuse resulting in death, and she was sentenced to 20 years in the Department of Corrections. She was scheduled for a parole hearing in May of 2018, with her mandatory release date July 14, 2020.

Following her trial, Voss appealed her conviction and filed a petition for post-conviction relief, which was taken up by defense attorney Jeffrey Walsh who also filed a motion seeking a new trial. Although Voss’ initial appeals began in 2007, it was not until 10 years later that the evidence, arguments and proposed conclusions were in the judge’s hands for her consideration.

In arriving at her decision to grant a new trial, Judge Swift reviewed some of the facts in this case. Voss and her husband moved to Alamosa in 2002, after which time Krystal Voss also had a romantic relationship with Patrick Ramirez who occasionally visited her and babysat Kyran. The plan on the weekend Kyran was fatally wounded was for Ramirez to babysit the child while Krystal Voss worked and then go up to Denver for a weekend away, which Krystal Voss later told the jury was not to be romantic but to visit friends and run errands in the city.

However, after Ramirez arrived and Voss went to work on the afternoon of Friday, Jan. 31, 2003, Kyran was injured and transported to the SLV Regional Medical Center emergency room where he was treated by Dr. Elizabeth Kinney. Ramirez, who accompanied Voss to the ER, said he had been carrying Kyran on his shoulders and he fell off backwards, smacking his head.

Dr. Kinney noted signs of brain swelling and immediately called in specialists. She also noticed bruises on the child’s stomach, lower chest and sides, which raised concern of non-accidental trauma. Law enforcement was called in, and investigations continued after Kyran was flown to Children’s Hospital in Denver.

Dr. Kathryn Wells, who was part of Kyran’s treatment in Denver and testified at Krystal Voss’ trial, did not believe that Ramirez’s account of the child falling from his shoulders was consistent with his symptoms. Voss later told the doctor Kryan may have fallen off the bed the night before and hit his head.

Dr. Wells concluded that Kyran could not have suffered his injuries from a fall but was the victim of someone shaking him.

During a follow up interview at Children’s Hospital with Krystal Voss, she told investigator Harry Alejo she had grabbed and shaken Kryan the night before because he was keeping her awake because he had been having stomach problems, and she then laid him back on the bed and rubbed his stomach and sang to him.

(Krystal Voss at trial said she was not thinking clearly when Alejo interviewed her at the hospital and she wrote what Alejo told her to write.)

Ramirez was arrested and charged with child abuse causing serious bodily injury and reckless endangerment. When he learned that Kyran might not recover, he changed his story to relate that when he arrived in Alamosa, Krystal Voss told him she had had a bad night with the baby and had shaken him, and she asked Ramirez to say that Kyran had fallen off his shoulders because she was afraid her baby might be taken away from her.

Voss denied that at trial, maintaining during her testimony that her son was fine when she went to work, but Ramirez called her at work to let her know her son had been injured. Voss also testified that she never asked Ramirez to lie for her.

Voss was arrested and charged with felony child abuse causing serious bodily injury. After her son died she was charged with first-degree murder, a charge that was dismissed before the trial.

Dr. Robert Bux, who performed the autopsy on Kyran, stated that he died as a result of complications from a closed head injury, either from being struck by a blunt object or hurled against a blunt object, and the manner of death was homicide.

(During appellate hearings, Dr. Bux testified that the blunt force trauma that caused Kyran’s injuries could have occurred from a fall off shoulders or being hit in the head, but with the information he now knows about the case, “he could not determine the mechanism of death by a preponderance of the evidence.” Bux did not testify during Voss’ original trial.)

Attorneys Ernest Marquez and Wayne Cole represented Krystal Voss during pretrial hearings and the trial.

During the trial, the prosecution argued that Voss had inflicted her son’s fatal injuries, while the defense argued that Ramirez had caused the injuries. The defense counsel did not try to refute that the death was caused by shaking but instead attempted to place the blame for the shaking on Ramirez rather than Voss.

Dr. Wells was a key witness during the trial and testified that the story of the fall off someone’s shoulders did not fit with the constellation of injuries she observed but that the child’s injuries were consistent with having been shaken and slammed on a bed, something Voss had indicated might have occurred the night before.

In Voss’ subsequent appeals of her conviction, her new attorney argued that the attorneys who represented her during the trial should have brought in expert witnesses who could have testified that a fall from the shoulders of a man like Ramirez would have caused the injuries Kyran suffered. They should also have called in a witness who could have spoken about false confessions, explaining why Voss may have made the statements she did to Alejo.

“Defendant argues that these failures of her trial counsel prejudiced her,” Swift stated in her ruling. She said Voss’ current defense counsel argued that if the trial counsel had called in experts, and limited Wells’ testimony, “the jury likely would have acquitted her.”

The district attorney’s office argued that the court probably would not have allowed Wells’ testimony to be limited or allowed a false confession expert to testify. The prosecution also argued that trial counsel had consulted with experts before the trial.

Judge Swift agreed with the defense on the first argument that experts should have been called in to testify about the medical findings, but agreed with the prosecution on the arguments regarding the false confession expert and Wells.

Judge Swift reviewed in detail the testimony presented during the appellate hearing, which included, for the defense, medical experts who contradicted Wells’ testimony as well as a witness who is frequently called upon to defend child abuse charges, and, for the prosecution, Wells and other doctors who had been involved in Kyran’s care at Children’s Hospital. The defense’s witnesses referred to photos, reports, medical records, X-rays and other evidence in the case in coming to their conclusions.

One of the defense’s witnesses told the court that if she had been the coroner in this case, she would have ruled Kyran’s death accidental, based on the original report that the child fell off Ramirez’s shoulders.

The medical experts testifying for the defense during the appellate hearing stated that the injuries Kyran suffered (such as retinal hemorrhages) did not automatically or necessarily mean he was the victim of “shaken baby syndrome.”

One of the experts also questioned that Wells had the qualifications to give an opinion about some of the medical injuries.

Voss’ current defense also called in attorney Laura Menninger who reviewed materials in the case in relationship to whether the trial counsel was effective or not, and it was her opinion trial counsel was not effective, in part, because “their investigation into medical and scientific defenses was deficient.”

Other experts, doctors who had been involved in Kyran’s care, testified for the prosecution during the appellate hearing. Dr. Laura Fenton, for example, had not testified during the original trial but told the judge she believed Kyran’s injuries were the result of non-accidental trauma including shaking and/or shaking and slamming, and she would have testified to that effect in 2003 as well. Ophthalmologist Dr. Michael Taravella, who had treated Kyran, also testified that what he saw in the child’s eyes caused him concern because the findings were consistent with what he knew about nonaccidental trauma, even though his practice had been more focused on adults than children.

The prosecution’s key witness at the trial, Dr. Wells, also testified during the appellate hearing and maintained her original testimony that Kyran’s injuries were the result of being shaken or shaken and slammed.

Marquez and Cole also spoke during the appellate hearing. Marquez told the court he had contacted numerous criminal defense attorneys in Colorado to discuss how to defend a shaken baby syndrome case, and none of them suggested he should dispute the scientific basis for shaken baby. He contacted medical experts but not necessarily to refute the shaken baby syndrome, and he told the court he believed it was a mistake not to pursue the defense that the fall from Ramirez’s shoulders could have caused Kyran’s injuries. Marquez and Cole chose, instead, to focus on the timing of the injuries, that they had to have occurred while the child was in Ramirez’s care, not Voss’.

Swift in her ruling agreed with the defense that in this case, “trial counsel performed below the standard of reasonably competent defense attorneys” in failing to adequately investigate whether the fall from Ramirez’s shoulders could have caused Kyran’s fatal injuries.

Judge Swift stated that if Voss’ counsel had adequately investigated the possibility that her son suffered fatal brain injuries as the result of falling from Ramirez’s shoulders, “there is a reasonable probability the jury would have acquitted Ms. Voss.”

Swift scheduled further proceedings and the setting of a new trial for August 15 in front of District Judge Martin Gonzales.

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