By Jeff Lehr
PITTSBURG, Kan. —
Heather Buckalew fell asleep on a couch with her 4-month-old baby after a night last summer drinking beer with her boyfriend.
The boyfriend, Donald Harvey, got up to go to work a few hours later and spotted his son, lying face down on a pillow between the back of the couch and his sleeping mother.
He picked the infant up. He wasn’t breathing.
Their baby was dead.
Despite the parents’ and paramedics’ efforts to revive him, Memphis Cash Harvey died the morning of Aug. 31 at his family’s home in Arma of what the forensic pathologist who performed the autopsy eventually would decide was most probably “asphyxia by overlay.”
That autopsy finding and suspicions about the extent of Buckalew’s intoxication led to the decision in February by the Crawford County district attorney’s office to charge her with second-degree murder in the death of her child. The basis for the charge was the subject of a preliminary hearing lasting more than two hours Tuesday in Crawford County District Court in Pittsburg.
At the conclusion of the hearing, Reina Probert, assistant district attorney, argued that the state had established probable cause for Buckalew, 25, to stand trial for “unintentionally but recklessly murdering her child.”
Defense attorney John Gutierrez countered that the state had overcharged his client and was “hanging its hat” on a claim of intoxication for which there was little to no evidence. He said the state appeared to be basing its case on the legal theory of “depraved-heart murder,” also known as “depraved-indifference murder.” He said the theory simply does not fit his client’s case.
“There has to be conscious disregard of the safety of another,” Gutierrez told District Judge A.J. Wachter.
Wachter delayed his decision on whether to order Buckalew bound over for trial while he takes under advisement a defense motion raising case law objections to the charge and gives the state a chance to respond in writing.
The judge also indicated that he would give both sides an opportunity to offer additional oral arguments at a subsequent hearing.
Probert called Howard Camp Jr., assistant chief of police in Arma, as a witness at Tuesday’s hearing.
Camp told the court that he went to the home of Harvey and Buckalew about 1 a.m. on Aug. 31. He was well-acquainted with Harvey, who asked him to come over and talk about an upcoming municipal court date. He said Harvey and Buckalew were drinking beer while they talked outside. Camp said Buckalew went back inside to get more beer about three times while he was there, and she appeared to him to be somewhat intoxicated.
“How so?” Probert asked.
“Slurred speech,” he said. “Stumbling while she was swaying coming off the porch.”
Eventually, the couple retired inside and Camp returned to his patrol duties. But he was dispatched back to their address at 6:24 a.m. regarding an infant in distress. Camp said Buckalew was on the porch talking to 911 when he arrived. She was hysterical and pleaded with him to save her baby’s life, he said.
He stepped inside and saw Harvey on the floor of the living room with the infant, attempting cardiopulmonary resuscitation. He said he tried the same but to no avail.
“The baby was lifeless,” Camp said.
Camp testified that police initially regarded the death as accidental, and the couple were not formally interviewed until Jan. 25 of this year after a final autopsy report was issued. He said the father was interviewed first and told Camp that they’d gone to bed about 3 a.m. Harvey also told him how he found the child lying face down and not breathing.
In her interview, Buckalew acknowledged having had “quite a few beers” that night, Camp told the court.
“She told us she was possibly responsible for the death of her child,” he said.
“Why?” Probert asked.
“Because she was drinking that night and neglected to take care of her child,” Camp said.
Dr. Erik Mitchell, with Frontier Forensics Midwest in Kansas City, Kan., the pathologist who performed the autopsy, testified that while he could not rule out sudden infant death syndrome, the cause of the boy’s death was more probably asphyxia by overlay. He defined overlay as a restriction of an infant’s ability to breathe by the body of another.
Mitchell referred to three distinct risk factors in the case: the sleep environment the couch offered, the presence of the mother in the child’s sleep environment and the mother’s purported intoxication.
Arma police Chief Al Combs acknowledged on cross-examination by Gutierrez that the state attorney general’s office became involved apparently after being contacted by the paternal grandmother of an older child Buckalew had with a previous boyfriend.
The attorney general’s office made two requests for reports and was sent those reports, Combs said. He said one of those requests actually came from a state board that reviews the deaths of infants.
Camp and Combs acknowledged that the former boyfriend was a suspect in an arson fire that had destroyed the home and belongings of Buckalew and Harvey. Combs also acknowledged receiving a letter from the grandmother (the mother of the arson suspect) urging further investigation of Memphis Harvey’s death, but he denied being influenced by the letter.
THE FORENSIC PATHOLOGIST who performed the autopsy in the death of 4-month-old Memphis Harvey acknowledges that from a medical standpoint, the manner of the child’s death was accidental. But the boy’s mother stands charged with murder from a legal standpoint.