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00-2133 State v. Kimbrough

By: dmc-admin//June 4, 2001//

00-2133 State v. Kimbrough

By: dmc-admin//June 4, 2001//

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“With respect to Kimbrough’s limited intellectual capacity, we note that while expert testimony established he had below average intelligence, it did not establish that he is mentally retarded. In addition, while the State’s psychologist testified that Kimbrough’s general ability to anticipate consequences was underdeveloped compared to an average person, the testimony did not establish that Kimbrough was unable to appreciate the risk of shaking a baby. …

“The record clearly establishes that Kimbrough lied about his conduct to Anthony’s mother and later to the police detectives as well. On the day he injured Anthony, Kimbrough’s explanation for the benign bruising was that another child had hit Anthony with a toy. Later, as the signs of serious injury became apparent, Kimbrough told the detectives the same story. When they expressed disbelief, he claimed to have dropped Anthony to the floor. Again, when the detectives expressed doubt about this explanation, Kimbrough claimed to have thrown Anthony on a couch.Finally, he admitted to shaking Anthony and striking the baby’s head against the wall.

“While there may be other explanations for Kimbrough’s reluctance to tell the victim’s mother and the police that he shook the baby, the jury could reasonably infer that the reason he lied was that he was aware of the risk his conduct posed. Indeed, the progressively escalating admissions of Kimbrough could lead to the reasonable inference that he was attempting to cover up his involvement in the crime. We concur with the view expressed in case law that such escalating admissions may be used by the jury to infer the defendant’s subjective awareness of the risk posed by shaking a baby.”

We also hold that defense counsel’s representation of Kimbrough was well within the range of professionally competent assistance. Therefore, we affirm.

Recommended for publication in the official reports.

Dist II, Racine County, Flynn, J., Brown, P.J.

Attorneys:

For Appellant: Glenn L. Cushing, Madison

For Respondent: David J. Becker, Madison, et al.

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