Full Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0202-25 JAMES IRVEN STALEY, III, Appellant v. THE STATE OF TEXAS ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS TARRANT COUNTY PARKER, J., delivered the opinion of the Court in which RICHARDSON, NEWELL, KEEL, and FINLEY, JJ., joined. YEARY, J., filed a concurring opinion in which SCHENCK, P.J., joined. MCCLURE, J., concurred. WALKER, J., did not participate. OPINION A two-year-old child was found dead in Appellant’s home. Pursuant to a warrant, police searched computers and a cellphone found in the home. That search revealed, among other things: a video showing Appellant abusing the child, a video supporting a conclusion that he had done so, and evidence that he had used STALEY — 2 a computer program to delete files from a laptop. This evidence constituted a small part of the inculpatory evidence admitted at trial. Appellant was convicted of capital murder and—because the State did not seek the death penalty— automatically sentenced to life without parole. The court of appeals concluded that the search violated the Fourth Amendment because the search-warrant affidavit did not include enough facts to show probable cause that relevant evidence would be found on electronic devices in Appellant’s home. The court of appeals then conducted a harm analysis under the constitutional standard and found the admission of the evidence harmful. For the purpose of this opinion we assume error and address only harm. We conclude that the court of appeals’s harm analysis was deficient in multiple respects. First, the court of appeals applied the wrong standard. Because the police acted in good faith in conducting the search, the Fourth Amendment does not require exclusion of the evidence, and any exclusion would be required only under the Texas statutory exclusionary rule—making the applicable harm standard the one that applies to non-constitutional errors. Second, we conclude that the court of appeals erred in the mechanics of conducting a harm analysis by failing to discuss all of the material evidence and by failing to explain, in light of that STALEY — 3 evidence, why the error was harmful. In fact, the court of appeals failed to discuss any part of the State’s extensive incriminating evidence. Finally, we disagree with the lower appellate court’s conclusion that Appellant was harmed. The forensic evidence showed that the child was murdered by smothering. And other evidence—inappropriate text messages, unusual behavior, DNA evidence, and various evidence pointing to his prior abuse of the child during the babysitting incident—pointed clearly to Appellant as the perpetrator. At least under the non- constitutional standard, the balance of the trial evidence showed that any erroneous admission of the videos and file-deletion evidence was harmless.1 1 Our holdings correspond to, but do not entirely match the reasoning of, the State’s second and third grounds for review. Because of our disposition of the second and third grounds, we need not address the State’s first ground. The State’s grounds for review are: I. When assessing a probable-cause nexus, should Texas adopt the distinction in Commonwealth v. Fernandes, 148 N.E.3d 361 (Mass. 2020) (cert. denied), between (1) stranger-on-stranger crimes (like State v. Baldwin, 664 S.W.3d 122 (Tex. Crim. App. 2022)) and (2) household-violence homicides where affidavits describe fraught relationships and where devices found in the same home as the relationships and crimes will likely reveal a “clear window into the nature” of those relationships and thus the offense (like here)? II. Given the trial court’s finding that officers relied on the warrant in good faith, the evidence was admissible under the Fourth Amendment and excludable— if at all—only under Texas’s statutory rule. Did the court of appeals violate Holder v. State, 639 S.W.3d 704 (Tex. Crim. App. 2022) (disavowing Love), by applying the constitutional-error harm standard of rule 44.2(a)? III. Did the court of appeals violate Long v. State, 203 S.W.3d 352 (Tex. Crim. App. 2006), by reversing a conviction for evidentiary error without engaging with the remaining evidence beyond a bald statement that “other evidence” STALEY — 4 I. TRIAL BACKGROUND A. Discovery of the Dead Child On October 11, 2018, a 911 dispatch indicated that a woman (Amber Odom) was screaming about her “baby.” When emergency medical personnel arrived, they discovered Amber cradling in her arms a two-year-and-seven-month-old boy, Jason “Wilder” McDaniel, who had died. Rigor mortis had already set in, and the child was cold to the touch. First responders noticed some blood on the child’s face. The police determined that Amber had been dating Appellant and that she and Wilder had lived at Appellant’s residence for approximately two months. Appellant showed a police officer to a bedroom, where Wilder had been found lying beside his crib. Blood was found on the floor in front of the crib and on an adult-sized pillow inside the crib. Appellant signed a consent to search, and the police took photographs and collected the bedding from the crib. Given the blood evidence and the condition of the child, the police suspected foul play. Amber and Appellant each agreed to be interviewed by the police. But Appellant withdrew his consent to be interviewed after meeting with an attorney. existed? Further, given that the unaddressed evidence overwhelmingly supported the conviction, was the error harmless under any standard? STALEY — 5 Later, Amber told a police detective about Wilder having been injured on September 1, 2018. That night, while Amber was at work, Appellant babysat Wilder. The next morning, Amber saw bruising on Wilder’s face. Appellant had told her that Wilder had fallen off a bed and hit his head. Amber took a photo of Wilder at the time. In addition to telling the detective about this incident, she forwarded the photo to him. The photo depicted bruising on Wilder’s face. B. The Warrant, the Supporting Affidavit, and the Search On October 22, 2018, the police obtained a search warrant to collect and search, among other things, computer equipment and electronic storage media.2 The warrant also specified that the police be allowed to search for and seize “[a]ny and all computer files containing physical abuse depictions of a child and/or children, photographs, negatives, photographic slides, videotapes, or other physical abuse visual depictions of a child and/or children.”3 The warrant specified Appellant’s address as the home to be searched, described the exterior of the home, and included an outdoor photo of the home. 2 The warrant contained general categories of equipment and then provided lists of “included, but not limited to” examples of specific types of equipment and storage media. 3 The warrant also sought electronic communications, including email and instant- message chats. And the warrant sought certain non-digital items, such as the child’s crib, but we need not concern ourselves with those items here. STALEY — 6 The affidavit in support of the search warrant alleged all the facts recited in the previous section of this opinion, except for approximating the child’s age at two years and being off by a day regarding the babysitting incident. The affidavit also contained “boilerplate” language suggesting that recovering any digital data would require seizing virtually all of a suspect’s computer hardware and conducting an expert forensic analysis to look for deleted or hidden files. Pursuant to the warrant, the police searched Appellant’s home. They seized a number of electronic devices, including a cellphone, a laptop, and an Apple Mac Mini. The Apple Mac Mini contained a video recorded by a GoPro camera that showed Appellant striking the child. A forensic examination of Appellant’s laptop revealed that Appellant had run the program “Ccleaner” on it. And the police found videos and a number of disturbing text-messages on Appellant’s cellphone. We will address the content of this evidence in subsection D. C. Suppression Motion, Ruling, and Trial Objections Appellant moved to suppress all evidence obtained from the search of his electronic devices, including, but not limited to, the Apple Mac Mini.4 He 4 Appellant actually had three different suppression motions aimed at the search, but he ultimately withdrew his first two motions and proceeded on the third, filed January 12, 2023. STALEY — 7 contended that the warrant’s supporting affidavit did not supply probable cause for the search.5 Appellant cited the Fourth Amendment to the United States Constitution; Article I, Section 9 of the Texas Constitution; and Articles 18.01 and 38.23 of the Texas Code of Criminal Procedure. He cited Article 18.01 solely for its “probable cause” requirement,6 and for his probable cause analysis, he principally relied upon our prior decision in State v. Baldwin.7 The parties discussed whether the affidavit provided probable cause under Baldwin.8 The State relied upon Commonwealth v. Fernandes, a case decided by the Supreme Court of Massachusetts,9 and upon our prior decision in Foreman v. State.10 The trial court denied the motion. 5 He also contended that the search exceeded the scope of the warrant, but the motion never explained why and seemed to conflate that issue with probable cause, saying: “This seizure was undertaken outside of the lawful scope of the warrant as there was no probable cause for the seizure of the Apple Mac Mini.” 6 See TEX. CODE CRIM. PROC. art. 18.01(b) (“No search warrant shall issue for any purpose in this state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance.”). 7 See supra at n.1. 8 To the extent defense counsel referred to “scope,” he continually referred to the probable cause requirement—complaining of the search being “outside the scope in accordance with Baldwin,” “exceeding the scope of what was offered by way of probable cause to support that warrant,” and “exceeding scope of what probable cause supported.” 9 See supra at n.1. 10 613 S.W.3d 160 (Tex. Crim. App. 2020). STALEY — 8 At trial, the State introduced the GoPro video, the use of Ccleaner, the cellphone videos, and the text messages. Although the defense continually objected to the GoPro video, it made no further objection to the Ccleaner evidence, and it separately said “no objection” to the introduction of videos and text messages from Appellant’s cellphone. At the end of its case-in-chief, the State requested that the trial court also rule that the Mac Mini was validly seized under the “plain view” doctrine. The trial court said that it felt no need for an “expansion” of its ruling because the item was “seized in accordance with the Judge’s order and a good faith reliance by the officer upon that.” Neither party requested findings of fact and conclusions of law, and apart from the trial court’s “good faith” statement, none are included in the record. D. Trial Evidence We now detail the relevant evidence at trial in mostly the chronological order in which the events unfolded. 1. Wilder’s Relationship with Amber and Appellant Shalah Wakefield, Amber’s sister, described Amber as an “amazing” mother who had an “inseparable” relationship with Wilder. She had never seen Amber hurt Wilder. She saw Appellant on only two occasions, but both times STALEY — 9 Wilder said “No James” when Appellant came near. David Taylor, Amber’s stepfather, said Wilder was “very much” attached to his mother. 2. Facebook Messages The State introduced Facebook messages, without objection, from Appellant to the child’s mother on August 8, 2018. In these messages, Appellant made several hostile comments about the child: ! Kid’s a fag, you suck. ! He’s a pussy fag. ! Scumbags and pussies need to be culled. They both fall into that category [Wilder and his father]. And I got plenty of guns. ! I didn’t birth the faggot child.11 3. Text Messages to Amber before September 1 The State introduced a number of text messages exchanged between Appellant and the child’s mother. It is not practical to include all of them in this opinion, or even all the ones that are relevant, so we highlight the ones that seem significant to our analysis. On August 8, 2018, the child’s mother said, “I’m sorry you hate my child.” Appellant responded, “I don’t hate your child. I like him,” but said, “I am selfish” and “can’t do another guy’s kid.” Then he added, 11 Bracketed material added for clarity. STALEY — 10 “Maybe I can but not your kid just being honest.” Later Appellant texted, “Like the kid is terrified of me and I didn’t do anything.” Appellant further called the child a “pussy” but later apologized for doing so, calling himself an “asshole” and saying the kid “is not a pussy” and that he felt “horrible for saying that.” On August 9, Amber said, “I just can’t make myself bring Wilder back over.” She also said, “I just don’t think you like him. And that kills me Bc he is everything to me. He’s the only thing I have.” Appellant responded, “I do to[o] like him[.] I wouldn’t try so hard if I didn’t.”12 On August 15, when Amber asked Appellant if she would get to see him later, Appellant said, “Depends if I find a cage for devil child.” The next day, Appellant suggested that he would get Wilder a “shock collar.” He continued, “Every time he says momma or bye-bye I’m gonna hit it,” and that Wilder “would look like he had tourettes.” Amber commented that Appellant really just wanted a dog, and Appellant responded, “Yes, I do. So I can beat the fuck out of him when Wilder’s bad.” Appellant then added, “I’m so kidding.” On August 20, apparently making a joke, Appellant said about Wilder, “So I punched him in the face and threw him in the tinderbox.” Later, he texted, “I 12 Bracketed material added to correct spelling and punctuation. STALEY — 11 want to punch him in the face but he’s too cute (happy face emoji).” A few lines down, he said, “I love him too. How are we supposed to get rid of him ugh. This is not working as planned (two happy face emojis).” Appellant also suggested, “We like set up a false adoption agency, we take Wilder there, drop him off, then let him chill a day or two.” On August 22, Appellant texted, “Fuck that little nigger lol. I’m not putting up with that shit from him.” Later, Appellant said, “I mean all joking aside there’s nothing wrong with him, right (happy face emoji). I mean he’s just a 2-1/2 year old? I’m so glad I had a girl (happy face emoji). I’d do anything for you, baby *except sign up for special needs autistic kid.” Later, Appellant texted, “I think if you would just spank his ass a few times it would straighten him out.” Amber responded, “I do babe I just don’t think it hurts him. (Upside down smiling face emoji).” Appellant responded with a happy face emoji and then said, “Spanky harder? (Happy face emoji).” A few lines down, Appellant said, “See this is what I get for trying to be nice. I should have punched him in the face and kicked him to the floor and said fuck you snake. He knows too, I’ll start walking towards him and he will get up and grab his ass Bc he knows I’m ready to spank him.” Later, Appellant said, “That nigger better figure out how to act like a homosapien STALEY — 12 instead of a wild animal.” A few lines down, Appellant texted, “Fine I’ll just spank his ass red the next time and see how many times it takes him to figure it out.” Later, Appellant said, “I’m always nice when you’re not around because I don't want him to have a mctardy pants meltdown. I don’t wanna see him (happy face emoji). Tell him to leave me alone.” Amber responded, “He’s asleep at home (sad face emoji) calm down.” Appellant replied, “He’s a bully (happy face emoji).” Later, Appellant said, “We need a makeshift cage for Wilder.” Even later, Appellant said, “He keeps us on our toes and busy and laughing, and slightly entertained as well, but most times it’s less entertainment and more like sleep deprivation and suicidal thoughts and wanting to cry.” And a few lines down, Appellant texted, “If he doesn’t we will spank some sense into him and he will for sure. But if he doesn’t then we have to waterboard him. (Three happy face emojis). I kidding, momma. Little miss blumpkin breath.” Later, Appellant said, “Ugh, Babe, there’s just no other way, we are just gonna have to get rid of him.” On August 23, Appellant texted Amber about a fantasy he had of having her without Wilder: It will be easy to act like he’s invisible now that he won’t be coming over anymore, and you can tell him about all of the fun things we do without him and how much happier we are without him here being a little bitch that does nothing but whine and cry all the time when you STALEY — 13 write him letters. It’s gonna be awesome babe. Amber responded, “You really thought that one out.” Appellant replied, “Well the idea got bigger and bigger (happy face emoji). Amber responded, “Good joke tho babe. We’re on our way to driving you fucking crazy.” Appellant said, “hopes and dreams.” Amber responded that “some dreams are unattainable.” Appellant replied, “No dreams are unattainable. Maybe if you have a whiney ass kid by your side all the time, but not for me (happy face emoji).” Later, he texted, “I should have gotten a whip and paddle and ball gag and a hog tie whatever for Wilder (happy face emoji).” On August 24, Appellant told Amber, “Can’t wait for y’all to be here. So I slap that hiney of yours. And punch Wilder in the face (open mouth emoji).” Later, Appellant said, “I’m bored,” and a few lines down he asked, “Can we beat Wilder for fun? Ohhhh yay.” On August 27, Appellant told Amber, “We have no problems except that damn kid (happy and sad face emojis).” On August 29, Appellant said, “I can always use it to tie Wilder up and beat him.” On August 31, Amber mentioned that Wilder had thrown up. Appellant responded, “I think you’re supposed to rub his nose in it. Then he won’t do it again.” On September 1, Appellant said, “Not being cocky but up to this point I’ve been able to have STALEY — 14 anything in the world I’ve wanted. Except your kid shut up.” Amber specifically confirmed some of these text messages in her testimony. 4. Text Messages to Others before September 1 In August group texts involving six friends,13 Appellant made derogatory statements about Wilder that included calling him a “fag” and saying, “God, I hate faggot kids.” 5. Mickey Mouse Toy Incident Amber testified that Wilder had a Mickey Mouse figurine that he “always carried with him.” One morning in late August, she saw the toy sitting on the kitchen counter and noticed that the ears and parts of the arms and legs had been burned off. When she confronted Appellant about this, he said that the “kitchen monster” had done that. The mutilated toy was shown as an exhibit to the jury. 6. September 1: GoPro and “Shiner” Videos On September 1, while Amber worked an evening shift at a bar, Appellant babysat Wilder and his own daughter. The GoPro video showed the following: Appellant hid behind a couch while Wilder was sleeping on it. He lifted his head above the couch to peek at Wilder 13 Bradley Prigmore, a childhood friend, testified about the texts. STALEY — 15 and ducked back down. Then Appellant crept up and, suddenly and forcefully, slapped the child on the side of the head.14 He then hid back behind the couch, and the child cried for about 50 seconds. About two minutes later, Appellant raised his head up, moved quietly to the back door, delicately opened the back door, and then made a show of shutting it forcefully enough to make a clacking sound. He then walked by the back of the couch where the child was sitting as if he had just come into the room—though once he passed the child he jogged the rest of the distance to a doorway to another part of the house. Appellant also made a cellphone video in which he pointed to Wilder as getting “quite the shiner” from falling off a bed. The video showed Wilder having a large knot on his forehead. At one point in the video, Appellant asked Wilder, “Did you fall off the bed?” At another point he asked, “Do you think I pushed you off the bed?” Both times, Wilder appeared to have answered, “Yeah.” But in all the videos found, Wilder appeared to answer “yeah” to almost every question asked of him. After the “push” question and answer, Appellant laughed and said, “That’s not what happened. Baby, he has a shiner, he fell off the bed. You’re okay.” Appellant created edited versions of this video that did not contain the 14 This occurred at about the 22-second mark in the video. STALEY — 16 “push” question and answer. Amber testified that Appellant sent a version of this video to her on September 1 via Snapchat, in addition to his texts, to describe what had happened to Wilder. She described it as “a video of him and Wilder sitting on the couch and showing me the knot on Wilder’s head.” A police forensic witness created stills from the two videos and testified that the clothing worn and articles on the couch appeared to match, indicating that the “shiner” and GoPro videos were recorded on the same day.15 7. Text Messages About September 1 Incident Starting at 11:09 p.m. on September 1, Appellant sent a string of texts to Amber over a two-hour period informing her that Wilder had been injured. In these texts, he deflected blame away from himself and claimed that Wilder was the cause of his own injuries: Hey asshole. 15 Two other cellphone videos were found. In one, Appellant asked Wilder a number of questions, including whether “James” is “mean,” whether Appellant is “nice,” whether the child misses his “mama,” whether the child loves his “mama,” and whether the child loves “James.” Wilder appears to have answered all of these questions “yeah.” In the other video, Appellant asked Wilder a number of questions, with Appellant’s daughter also being present. These questions included whether Wilder loved his “mommy,” his “daddy,” and his “sister.” At one point, Appellant told his daughter, “Don’t torture the little boy. Sometimes he’s sweet, most of the time he’s not.” While these videos contain some content that could cast Appellant in a mildly negative light, they pale in comparison to the GoPro and Shiner videos and to the other admissible or error-waived evidence, and any mildly negative content is cumulative of legitimately considered other evidence. Consequently, these other cellphone videos do not move the needle on the harm analysis, and we do not further dwell on them. STALEY — 17 Wilder fell out of bed and hit his head. He’s okay but I wanted to FaceTime you. *** He’s ok. He rolled his ass right onto his head and butt. And he somehow thinks I’m the mastermind behind him falling off the bed. Guess you were right, he may need a pillow, he did it right before then. This kid, shit goes wrong, mean James scares James. They are out. He’s got a knot on his noggin. Wish you would call to talk to the boy, he’s asleep, he is the best actor on the planet and rolled off on purpose or truly believes I pushed him. *** Now he thinks I’m antichrist again (sad face emoji). He busted his head and thigh good but I iced them and so they are both way down not even bruised, they will be though. I wish you hadn’t taken the night off. :( Like you fail at momming tonight. STALEY — 18 Can’t even check your texts. That’s fucking sorry. Glad to know I’m appreciated by the woman I’m in love with and her son that went from thinking I hung the moon to I kick him off the bed. At 2:01 in the morning, Amber checked her texts and began responding. Appellant then began to gaslight Amber—suggesting that she was at fault for not answering his texts about Wilder and for working at her job. He further commented that Wilder was “a pussy because of you” and “warped because of tonight.” Appellant further said, “I can’t be in love with you the way you thinking. I won’t be. Take him. Get gone. Fuck off completely. Eat dick I hate you whore.” He further said that if she worked at the job “one time,” “We will never speak again.” He later said, “See ya tomorrow or never again. Bitches are waiting in line.” Amber’s testimony confirmed the general tenor of the texts. 8. Amber’s Confrontation with Appellant According to Amber’s testimony, she returned home after discovering that Wilder had been injured. She went to sleep but checked on Wilder when she later woke up and “had a really good chance to look” at Wilder’s injury, which was “pretty bad looking.” The “bruising on his face was very purple” and “it was just STALEY — 19 bad.” When she confronted Appellant, he claimed that his four-year-old daughter and Wilder were playing on the bed, that they were both holding onto Wilder’s feet, and that Wilder let go and fell off the bed. But Appellant’s daughter told Amber a different story—that Appellant pushed Wilder off the bed. Appellant then took his daughter into another room and spanked her, yelling at her to quit lying. She cried and said, “I’m not lying.” A text message from Amber to Appellant later reflects that his daughter told Amber, “Daddy did push him, he’s the liar.” Although initially Amber chose to believe Appellant’s story, that night she used her phone to take a photo of Wilder’s face. It is the same photo that she later forwarded to the police, and we have included it in an appendix. Amber described bruising on both the forehead and down the side of the face. She sent the photo to the bar manager to document why she left the bar early and did not help with the closing-time cleanup. 9. Later September Text Messages On September 6, Appellant texted Amber, “If he ever comes over and sees me and says ‘No James’[,] I’m taking him into the garage and putting him in the STALEY — 20 big trash can. And I’m gonna say ‘no, no Wilder’ and shut the kid. Lid.”16 On September 24, Appellant said to Amber that she would “always be second place” to his own daughter and that “Wilder doesn’t get a place (happy face emoji).” He later said, “Punch Wilder in the face,” followed by an angry emoji, a praying emoji, and an open-mouth emoji. On September 27, Appellant said, “And I love Wilder. And in all honesty I love to torment him too (happy face emoji). We will cure him of the niggerish he’s got I promise.” On September 30, after a discussion of Wilder crying, Appellant said, “He will get it together. I think (two unreadable emojis and a happy face emoji). Or we will throw him away.” 10. October Statements by Appellant and Wilder’s Reaction to Him On October 1, Appellant texted to Amber, “Only the good die young.” And then, about Wilder, he said, “That fucker is living forever.” Later, Appellant said, “We will have more kids. Maybe he will get SIDS (happy face emoji).” Amber told Appellant not to say that. Appellant responded that Wilder was not an infant and therefore could not get sudden infant death syndrome and that Appellant was “just talking shit” with Amber. Amber responded, “I know you were kidding.” On October 6, at a cookout at Appellant’s house, Amber’s sister Shalah 16 Multiple lines of text run together, capitalization converted to lowercase to correct grammar, and bracketed comma inserted for clarity. STALEY — 21 noticed that Wilder “wanted absolutely nothing to do with” Appellant. At one point Wilder yelled, “No James,” and he repeatedly cried when Appellant approached him.17 At some point, Appellant responded, “Good, gosh – good, God, Wilder, if these people didn’t know any better, you would think that – they would think that I hurt you all the time.” Later, Amber yelled, “Pizza here,” and Wilder began to run toward the door, but as he was about to cross paths with Appellant, he turned around and ran straight back to Shalah. After everyone left the cookout, Amber had an argument with Appellant. Wilder heard the commotion and woke up crying. Appellant started “cussing” at Amber and called Wilder a “crybaby.” After the argument continued for awhile, Appellant told Amber and Wilder to leave, and they did. On October 9, Appellant texted Amber, “I’ll come terrorize Wilder and get the day started off right.” Later that evening Appellant said, “You’re mine and I love you more but I’ll gladly claim him too. And toss him around and torture him when he’s a niglet.” 11. Appellant’s Statements on the Night of Wilder’s Death At 8:17 p.m. on October 10, Appellant texted Amber, “If he cries I’m going 17 This is the second “no James” incident—referred to earlier—that Shalah had seen. STALEY — 22 to have to stop ignoring him. And beat him (happy face emoji).” According to Amber’s testimony, she and Wilder arrived at Appellant’s home at around 8:00 to 8:30 p.m. Appellant was there. At some point, Amber started giving Wilder a bath. Appellant came into bathroom and Wilder began saying, “No James, no James.” Appellant started mocking him in a baby voice saying, “no James, no James,” and then said, “Shut the fuck up.” 12. The Morning Wilder’s Death was Discovered According to Amber’s testimony, when she woke up on the morning of October 11, she checked on Wilder and discovered that he appeared to be dead. She told Appellant to get a phone, he dialed 911 and threw the phone down, and she began to talk to the 911 dispatcher. Charity Harrison, an emergency medical technician (EMT) who arrived at the scene, saw Amber cradling Wilder in her arms and screaming, “My baby’s dead!” Amber was hysterical. By contrast, Appellant appeared to be unemotional or unfazed and made no effort to console the child’s mother. Wilder had dried blood on his cheek. Nathan Scott, a paramedic, saw Amber crying that her baby was dead and that she thought he fell out of his crib. She came across as being “utterly STALEY — 23 devastated.” Officer Casey Kirkpatrick arrived at 9:17 a.m. He described Amber as visibly upset, crying, and distraught. Appellant was nowhere near the mother. He led the officer into the bedroom, where the officer spotted dried blood on the floor, what appeared to be a drop of dried blood on the top of the crib, and “a significant amount of blood all over” an adult-sized pillow inside the crib. Another officer—Sergeant Charlie Eipper—saw Appellant “dry heaving” into a plastic bag. The police collected the various items found in the crib and placed them in a single bag for transport. These items were the bloody adult-sized pillow, a small pink pillow, a stuffed dog, a Mickey Mouse blanket, and a pink sheet with suspected blood on it. The items were already clumped together in the crib before they were placed in the bag. 13. Medical and Forensic Testimony Although the medical examiner (Dr. Stephen Hastings) listed the “manner of death” as “undetermined” in the autopsy report, he testified that he qualified that conclusion in the report with commentary that the evidence was “very, very suspicious for an asphyxial death, particularly a death where another individual placed a pillow over the decedent’s face and mouth and smothered him.” And STALEY — 24 indeed, the autopsy report contained a detailed paragraph consistent with his later testimony. He further explained that attaching a homicide finding to the manner of death in smothering cases was difficult because of the non-specific nature of the physical evidence. He explained that if someone were trying to “get away with” a murder, “smothering an individual would be the easiest thing” because “we need clear and convincing evidence to call something a homicide and smothering does not produce clear and convincing evidence in most cases.” In response to questioning, he suggested that he would want a confession, an eyewitness, or a showing of similar incidents. Dr. Hastings acknowledged that he had no legal knowledge and had “never read the Penal Code.” He further acknowledged that a jury would have a wider array of evidence at trial than he would in writing an autopsy report. However, he affirmed that he had testified at a grand jury proceeding that he could not think of any explanation for the death other than homicidal suffocation. And at trial, he further affirmed, in light of all the evidence—including the autopsy findings and the “scene information”—that he believed that Wilder had been smothered and murdered. Dr. Hastings noted that there was blood “in the mouth and around the teeth area.” The doctor also pointed to seven abrasions inside the STALEY — 25 lips that corresponded with Wilder’s teeth and were consistent with pressure associated with smothering.18 He also pointed to “very prominent” petechiae in “large distribution” on Wilder’s head, eyes, and neck that were indicative of asphyxiation. He testified that often petechiae can only be seen from inches away but that Wilder’s petechiae could be “very easily seen” from “a couple of feet away.” He further testified to contusions and hemorrhages on the child’s body consistent with a suffocating child struggling in the crib. But Wilder did not have typical injuries associated with a fatal fall—no skull fractures, brain contusions, brain swelling, or bleeding around the brain. In fact, when asked if he found “any evidence” from the autopsy “that would be consistent” with Wilder “having died from a fall,” Dr. Hastings responded, “No.” Nor did the medical evidence show signs of a heart condition or any other health issue. Toxicology tests also turned up negative. On cross-examination, Dr. Hastings acknowledged that he saw no injury to the child’s upper or lower frenulum (connective tissue inside the mouth between the gums and the lips). The doctor testified that damage to a frenulum occurs in a “small percentage” of smothering cases. 18 He also found an abrasion on the outside of the lips. STALEY — 26 On redirect, the prosecutor asked how long it would take to smother a child. Dr. Hastings responded that it was variable, “anywhere between a minute or two to multiple minutes to, you know, even much longer if there was a prolonged struggle that occurred where the individual was occasionally getting gasps of air.” Dr. Suzanne Dakil, one of approximately four hundred certified child-abuse pediatricians in the country, also concluded that Wilder had been suffocated. She testified that Wilder had petechiae on his forehead, on his temple, inside an eyelid, behind his ear, under his chin, on his neck, and around his internal organs. The neck petechiae overlayed an internal hemorrhage that indicated “direct compression.” She further found that “Wilder had injuries to the inside of his lips that are most consistent with the lips being pushed against the teeth.” Those lip injuries appeared to be the only bleeding injuries on Wilder’s body. She also noted that he had no skull fractures or bleeding around the brain that would be associated with a fall. On cross-examination, Dr. Dakil agreed that there was an injury on one side of the neck, underneath the jawbone, but not on the other side. She indicated that this injury would cause bleeding (as a hemorrhage) inside the neck and could be STALEY — 27 from strangulation.19 She agreed that it was an injury to the soft tissue and not the muscle itself. She also agreed that there was no injury to the Adam’s apple. On redirect, Dr. Dakil explained that a neck injury like this was not the sort of injury that would happen in a fall. Kelly Collins, a crime-scene technician and latent finger and palm print examiner, testified to viewing a bloodstain on the adult-sized pillow that she believed to be a partial palm print. Tom Bevel, a crime-scene reconstructionist, testified that the physical evidence was inconsistent with a crib fall. He further testified that it was “evident” that Wilder’s body had been staged on the floor and that the forensic evidence showed a struggle inside the crib. He also testified to seeing a bloody palm print on the crib pillow. The print was too large for the child’s hands and there was