DATE: Thursday, October 16, 1997            TAG: 9710160518

SECTION: LOCAL                   PAGE: B5   EDITION: FINAL 

SOURCE: BY LIZ SZABO, STAFF WRITER 

DATELINE: VIRGINIA BEACH                    LENGTH:   87 lines

CHARGES DISMISSED AGAINST WOMAN IN DEATH OF HER SON, 2

A judge dismissed murder charges Wednesday against a Virginia Beach woman accused of killing her 2-year-old son. The commonwealth's attorney did not rule out bringing future charges.

Judge Ronald H. Marks said there was not enough evidence to show that Kelley Anne Carr Burns inflicted the fatal blow to the head that killed her son, Charles ``Mikey'' Burns. Kelley Burns appeared for a preliminary hearing in Virginia Beach Juvenile and Domestic Relations Court on charges of second-degree murder for her son's death May 19.

Marks said he based his decision on conflicting testimony from a witness who saw Mikey collapse and the doctor who performed the autopsy.

That procedure showed that Mikey died from blunt force trauma to the back of the head, testified Dr. Leah Bush, assistant chief medical examiner.

Burns admitted throwing the child against a bedroom wall, testified Benjamin Franklin, Burns' former lover. Burns had been living with Franklin and his wife in the 1200 block of Pipers Crescent at the time of the baby's death.

Franklin testified he heard two loud thuds from the rear bedroom where Mikey and his mother were playing. The noises sounded like something being banged against the wall and were strong enough to rattle the paintings hanging above his head, Franklin testified. Franklin investigated the noise, but found Burns and Mikey playing normally.

Twenty minutes later, however - after Mikey had had a bath and dressed himself - the boy collapsed unconscious and began vomiting. Franklin said he administered CPR and instructed Burns to call paramedics, who took Mikey to the hospital. The boy died the next day.

But a child of Mikey's age and weight would have collapsed unconscious immediately after the kind of blow he suffered, Bush testified. She found a wound three inches wide and two inches long on the back of his head, which created a hemorrhage on the child's brain.

The bruise indicated Mikey had been hit ``extremely hard'' with ``significant force,'' Bush testified, as if the boy had been shoved or hit with a bat. The bruise was inflicted between 12 and 48 hours before he died, she testified.

The judge said that discrepancy cast doubt on the case.

``Because this looks like a medical impossibility, I'm going to rule to dismiss,'' Marks said.

Virginia Beach Assistant Commonwealth's Attorney William Monroe said Burns could be charged again because her case had not yet gone to trial. He did not rule out future charges in the case.

``We're going to go back and re-examine the evidence,'' Monroe said. ``I can't comment anymore on the case or the possibility of future charges.''

Burns' defense attorney, Robert G. Morecock, said he was glad that charges had been dismissed.

``But there's no joy in this,'' Morecock said. ``She lost her baby. I think the commonwealth should have better examined their evidence before today.''

Mikey's paternal grandmother, who waited outside the courtroom during the hearing, said she was upset by the dismissal.

``I'm mad,'' said Jessie Burns. ``This just ain't right.''

Jessie Burns said she's still convinced the child was abused.

Bush's testimony, along with testimony at an earlier bond hearing, suggests the child suffered from several unexplained injuries.

The child's body was riddled with bruises, Bush testified. In addition to the massive fatal head wound, Bush also found a contusion on the side of his jaw, another yellow-and-blue bruise on his forehead along with several cuts and scabs. All of the wounds were several days old and did not lead to his death, Bush testified.

During the autopsy, Bush also found ``evidence of previous abdominal trauma'' in the form of scarring around Mikey's bowels. Those scars, which were at least several weeks or months old, indicated a severe blow to the abdomen strong enough to press the boy's bowels against his spine, Bush testified. That old wound also did not lead to his death.

Virginia Beach police Detective Dennis Hebert - who said he was shocked by the dismissal - had testified at Burns' May 29 bond hearing that he found a dent mark in the bedroom where Mikey's body hit the wall.

The child's baby sitter, Nycholle Gater of Hampton, told police she had reported her suspicions of child abuse in April, a month before the child died.

At Burns' bond hearing, Monroe testified that Gater had found black and blue marks on the boy's buttocks and cuts on his tongue in February.

Gater finally reported her suspicions to social service officials after finding what looked to her like strangulation marks on Mikey's neck and jaw.

Social service agency officials arranged for Mikey to be examined by a doctor one week after receiving Gater's complaints, but found no evidence of abuse. ILLUSTRATION: Kelley Anne Carr Burns was freed due to insufficient

evidence, a Virginia Beach judge said at a hearing. KEYWORDS: MURDER TRIAL CHILD ABUSE

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