Tyrell Tsosie banged on every toy he could reach the night of Dec. 9, 2007. The 13-month-old was curious and loved making noise.
By the next night, the Tacoma toddler was fighting to breathe after he had been violently shaken, his brain severely damaged. Tyrell eventually was released from the hospital, but doctors said he had the cognitive and neurological function of an infant less than a month old.
Dora Willie stopped working so she could care for her son, wishing that one day he’d be able to walk, talk and do all the other things that active little boys do.
But Tyrell never fully recovered from his brain injuries and died March 2, 2010.
“We thought we would have him, even the way he was, for a long time,” Willie said through tears last week. “My son is gone and taken away from me.”
The Pierce County Medical Examiner’s Office ruled that complications of Tyrell’s brain injury killed the 3-year-old boy and is calling his death a homicide. Now, prosecutors are considering whether to file murder charges against Tyrell’s 17-year-old cousin, who previously pleaded guilty to assaulting Tyrell and served his sentence.
“We are not prohibited from pursuing a homicide charge against this defendant if that’s what we decide to do,” said Phil Sorensen, assistant chief criminal deputy in the prosecutor’s office.
Tyrell Tsosie’s then-15-year-old cousin from New Mexico was visiting in Tacoma and watching the 13-month-old boy on Dec. 10, 2007. That morning the teen called 911 to say Tyrell was sick.
When paramedics arrived, they found the boy barely alive. They rushed him to Mary Bridge Children’s Hospital, where doctors restarted his heart and his breathing, court documents state. They put a bolt into his head to relieve pressure on his brain and a tube into his stomach to feed him.
He ended up being hospitalized for a month.
The injuries raised suspicions, and Tacoma police were called. The teen told detectives he’d thrown Tyrell into the air, let him fall to the floor and shaken him violently. He also admitted to previously shaking the boy, court documents state.
Prosecutors charged the cousin in juvenile court with first-degree assault. Five months later, he pleaded guilty to second-degree assault.
“I was babysitting my cousin T.T. and he was crying and I shook him and tossed him up in the air and he fell,” the teen wrote in a statement when he pleaded guilty. “I did not intend to injure my cousin but I understand he was seriously injured.”
The cousin was sentenced to nearly 2½ years of confinement with the state Juvenile Rehabilitation Administration. He was released May 28.
Meanwhile, Willie, her husband and Tyrell’s siblings learned to care for the little boy.
“It was hard,” Willie said. “I was always jumping at every little noise.”
There were sleepless nights, but the family was determined to have Tyrell home with them.
“He was my son,” Willie said. “I loved him so much, I didn’t care.”
Tyrell saw a physical therapist every week, and specialists from the Tacoma Learning Center visited the home. At first, he didn’t make any noises but eventually started cooing like a baby. Doctors determined he was blind.
Last March, Tyrell’s breathing became labored. A nebulizer didn’t help. His parents took him to Mary Bridge. Willie spent the night with her boy and noticed his breathing slowing. The doctor said Tyrell wouldn’t get better, so his father and siblings were called to the hospital.
“My husband was holding him and he took his last breath,” Willie said. “We just never thought the day would come.”
CHARGE MIGHT CHANGE
If prosecutors file murder charges against Tyrell’s cousin, they will move to dismiss the teen’s assault conviction and then recharge him with the more serious crime, Sorensen said.
Depending on the charge and any prior criminal history, the teen could face a prison sentence of two to 25 years if charged as an adult and convicted, Sorenson said.
Filing a murder charge wouldn’t raise double jeopardy concerns because such a charge has different underlying elements from those in an assault count, he said. For instance, assault is inflicting substantial bodily harm. One element of a murder charge is causing the death of the victim.
Defense attorney Philip Thornton agreed that double jeopardy wasn’t an issue.
“It’s two different crimes,” he said.
While evaluating how to proceed, prosecutors will review medical reports and findings of the Medical Examiner’s Office, especially what caused Tyrell’s death. They’ll also look at statements the teen made to police and during proceedings related to the assault conviction to see what could be used in a new trial.
“Any statement made in open court, we’d also be looking at,” Sorensen said.
As for the defense, Thornton said, the teen’s attorney could explore other issues, including the type of murder prosecutors charge, whether previous statements can be used against him in a new trial and whether the original assault caused the death or if something else significant happened.
“You always want to investigate the proximate cause (of death) and whether there was a subsequent, superseding cause to the death,” Thornton said.
Prosecutors have previously dismissed assault convictions and filed murder charges when the victim later dies of injuries from an assault. In 2005, for example, James Larry Johnson was charged with second-degree murder and first-degree perjury in the 2003 shooting death of another man.
Two years earlier, Johnson had previously pleaded guilty to second-degree assault and been sentenced in the shooting. Afterward, the victim, David Randolph, died and the Medical Examiner’s Office ruled that the 2003 gunshot wound led to his death.
Prosecutors filed murder charges against Johnson, who eventually pleaded guilty to second-degree manslaughter. They referred to testimony from the victim and Johnson when writing the charging documents for the murder charge.
Thornton said Johnson’s plea in the assault case, which was a modified guilty plea in which he didn’t admit guilt but recognized the likelihood of a conviction, was not admitted in the murder proceedings.
“It was really complicated,” said Thornton, who represented Johnson in the murder case.
PUNISHMENT FOR CRIME
The pain of what happened to Tyrell remains with Willie six months after his death.
It’s difficult knowing that a family member was accused and convicted, she said.
“For him to get hurt by someone for no reason at all, for crying, is stupid and heartless,” Willie said. “You think family will never hurt anyone close.”
She said that the teen should face more serious charges now that Tyrell has died.
“For him to go on with his life and my baby not is not fair,” Willie said. “More punishment is due.”