Murder trial opens in Spokane toddler’s death

Attorneys presented their cases Wednesday for a man charged with killing a toddler who never should have been placed in his care, according to a state fatality review.

Twenty-month-old Devon L. Miller died Aug. 6, 2006, from severe bleeding on the brain that doctors and investigators believe was caused by violent shaking by his caregiver, 38-year-old Avery E. Sam.

Sam appeared Wednesday at the start of his second-degree murder trial before Superior Court Judge Kathleen O’Connor.

“We are here today because of the actions of the defendant,” said Kelly Fitzgerald, deputy Spokane County prosecutor. Sam “admitted to shaking Devon Miller. He admitted that he did it out of frustration.”

However, Sam’s defense attorney, John Whaley, told the jury of seven women and five men that Devon fell in the bathtub and that the fall was the likely cause of the bleeding that ultimately claimed the boy’s life.

Whaley said his client will testify that he found Devon with blood in his mouth while having a seizure in his crib. He said Sam shook the boy four or five times in an attempt to wake him up before rushing him to a hospital.

“Based upon the testimony of Mr. Sam and the doctors and the detectives in this case, it is our belief that you will not come to the conclusion that it was intentional or reckless,” Whaley said. “You may not know why this child died, but it was not at the hands of my client, and we will ask that you find him not guilty of all charges.”

The state Department of Social and Health Services, in conjunction with the Yakama Nation Tribal Court, placed Devon and his 7-month-old sister in the care of Sam and his wife, 35-year-old Angelique P. Sam. She is Devon’s great-aunt.

The Sams, who lived at 2718 E. Diamond Ave., were not foster parents. However, the state required them to undergo the criminal background check and home interview process required of foster parents.

That background check showed Avery Sam had convictions for drug possession, second-degree attempted theft and drunken driving. But that information was apparently not relayed from the caseworker in Toppenish to the caseworker in Spokane, according to an executive fatality review that was released last December.

Angelique Sam, also known as Angelique Tomeo, had two felony warrants for three counts of forgery at the time, according to court records.

“Under DSHS policy, the criminal history would have precluded placement with the relatives,” according to the fatality review.

After Devon died, state caseworkers learned that Avery Sam had been charged in Nevada federal court with involuntary manslaughter in 1991. That charge was later reduced to reckless driving in 1996.

“Although the reckless driving charge would not have precluded placement of the child with the Sams, it is concerning that the complete criminal history was not available to the social worker at the time of the placement hearing,” according to the fatality review.

In her opening statement, Fitzgerald said problems with Devon started on Aug. 2 last year when the Sams took the toddler to a pediatrician for immunization shots.

The next day, the child became sick, fell in the bathtub and the couple took him to Holy Family Hospital. Doctors performed a CT scan on Devon, which was negative for head injuries.

However, Devon’s condition worsened and Avery Sam took the boy to Holy Family again on Aug. 4. A second CT scan showed severe head injuries – consistent with Shaken Baby Syndrome – that were likely to kill him, Fitzgerald said. The toddler was airlifted to Sacred Heart Medical Center where he died on Aug. 6.

Based on his injuries, detectives were alerted and they questioned Avery Sam. According to court records, Sam told police that he shook Devon for about a minute, hard enough that the boy’s head wobbled back and forth. Then, after changing his diaper, Avery held the boy over his crib and dropped him on the mattress, the report states.

“He described how Devon went limp … after he was shaken,” Fitzgerald said. “Devon was no longer alert … because he was dying because he was assaulted by this defendant.”

Whaley said he will call an expert witness from Minnesota, Dr. John Plunkett, to testify about the doubts he has about the widely held theories for the causes of Shaken Baby Syndrome.

For example, Whaley said the first research into Shaken Baby Syndrome suggested that the injuries were consistent with a fall from two stories or the impact from a vehicle traveling at 35 mph. Recent studies show that toddlers can suffer bleeding on the brain from falls that are much less severe, he said.

“To really shake a baby hard enough, you almost have to have decapitation type forces,” Whaley said. “The injuries on Devon were consistent with a fall in the tub.”