Testimony from the daughter of a Fort Bragg foster father accused of beating and killing a five-month-old baby girl is in question as his trial enters its second week in Mendocino County Superior Court.
Wilson L. ‘Josh’ Tubbs III, 39, faces a charge of child abuse causing baby Emerald Herriet's death, which carries the same weight as murder.
He was the baby girl's primary caregiver, as the Mendocino Coast District Hospital, where he worked in the cafeteria, had just laid him off because of budget cuts and his wife worked during the day, according to prior witness statements.
His daughter, Shelby Tubbs, who was 17 at the time, finished her requirements for high school and graduated within days after the baby was placed in the Tubbs' household Oct. 31, Shelby testified last week. She and her father were home with the baby most of the day together, except when Shelby would leave sometimes to hang out with friends, she said. Just she and her father had been with baby Emerald during the weekend she died.
Tubbs brought his five-month-old foster daughter not breathing and with bruises all over her face and head to the Mendocino Coast District Hospital on December 2. She was flown to Oakland Children's Hospital where she was pronounced dead December 4.
Tubbs initially told police the baby's injuries were caused by a fall from a 21-inch high changing bench the night before he took her to the hospital. He was arrested December 10 in the baby's death.
Tubbs' defense attorney, Public Defender Linda Thompson, said in her opening remarks last week that Tubbs hadn't told police he slapped and shook the baby until he thought investigators suspected his daughter.
Whatever the case, it was clear that Shelby Tubbs was uncomfortable on the witness stand Thursday.
Prosecutor Paul Sequeira of the Mendocino County District Attorney's Office asked her if she was nervous — a standard question for an attorney to ask a witness who appears distressed.
“It's been a rough day,” Ms. Tubbs said.
Sequeira's line of questioning started simply, including questions about when the baby came to live with her family and how the baby acted when she had visited the family prior to moving in as part of a transition period between a previous foster home and the Tubbs' home.
“She just laid there,” Ms. Tubbs said. “She liked to pull my hair; she thought it was funny … She never laughed, but she smiled.”
Two days before the baby died, Ms. Tubbs testified, she had one bruise on her forehead from hitting herself with a rattle that was a set of thick, plastic keys.
Ms. Tubbs said she had taken the baby over to her aunt's house next door for several hours the next day, December 1. Sequeira asked what, other than giving the baby a bath, they had done with her there.
“We tried to make her play with the keys, but she never played with anything,” Ms. Tubbs said. “She was just laying there like she always does. She never really did much.”
She saw no injuries on baby Emerald during the bath that day, or when the baby was sleeping in her swing that night next to her dad, who sat on the couch. Ms. Tubbs said she went out with friends for about an hour that night and returned at about 8:30 p.m.
“There was a mark on her eye,” she told the court.
Sequeira asked if it had been a black eye.
Ms. Tubbs described the mark as “more red than black,” and Sequeira asked if it had “freaked (her) out a little bit.”
“I wanted to know what happened,” Ms. Tubbs said, telling the court that her father had told her that baby Emerald had hit her head on the same set of plastic keys on the changing pad when he had rolled her over to change her.
Sequeira asked if the mark on the baby's eye had looked “nasty,” and Ms. Tubbs said it hadn't.
Sequeira showed her a picture a Fort Bragg police officer had taken of a text conversation she'd had with a friend that night. The friend had asked what was wrong.
“Just everything going on and the baby won't stop crying, and she has like black and blue on her eye like she fell or something, Idk (expletive)’,” Sequeira read from Ms. Tubbs' texted reply.
Sequeira asked her again if the baby's eye injury had been upsetting, as the text exchange seemed to indicate that Ms. Tubbs was upset.
“I've had a rough life; not at home,” she answered.
“"It sounds like you were upset,” Sequeira said. “Were you?”
“No,” Ms. Tubbs answered.
He asked again if the baby's eye had been black and blue.
“It was not like somebody just punched somebody in the face,” Ms. Tubbs said, adding later that her father's explanation about baby Emerald rolling onto the rattle had made sense to her.
Ms. Tubbs said she went to bed with the TV on in her room with the volume low, and hadn't heard the baby cry that night.
Wilson Tubbs told police that while changing Emerald that night at about 11pm, he'd left the room temporarily and came back when he heard the baby's “serious cry,” according to previous witness testimony.
Ms. Tubbs testified that she saw “three or four” bruises on Emerald's face the next morning as she slept in her swing, “including the one that was already there.”
The amount of bruising on Emerald's face and head when she arrived hours later at the emergency room was alarming enough to prompt the ER doctor to call for CT scan, according to the doctor's testimony.
Sequeira asked Ms. Tubbs if her father had told her when she asked about the bruising that the family's dog had possibly knocked baby Emerald off of the changing bench onto a hardwood floor.
The question seemed to aggravate Ms. Tubbs, who confirmed that was what her father had said, and that it made sense to her at the time.
Sequeira asked Ms. Tubbs whether she had later told Officer Wilder of the Fort Bragg Police Department that she was “having problems figuring out how that had happened logically.”
He asked her if she had told the officer that she “didn't want (her) dad to go away for something he didn't do, but it didn't make sense how it happened if somebody didn't do it.”
Ms. Tubbs said she didn't recall.
Sequeira asked her if her father's explanation made sense now, and she said it did.
“I believe what my dad told me; why would he lie to me?” Ms. Tubbs said.
Sequeira asked her again about her initial statement to officers after baby Emerald's death that she had been struggling with the logic of her father's claim that the baby's injuries came from a fall off of the changing bench.
“Honestly, I wasn't thinking about it,” she said. “The baby had passed away; I was dealing with other things.”
Ms. Tubbs later testified under Thompson's questioning that baby Emerald had “made little fists and held them over her eyes” constantly, starting a few days after she came to live with the family.
Sequeira later asked her if she had previously told officer Wilder that the baby “always laughed” when she first arrived.
“I could have said that but I don't recall her laughing,” Ms. Tubbs said.
Sequeira said Emerald “didn't just lay there,” but must have played with the rattle she hit herself with, and Ms. Tubbs agreed. He asked her if she had told officer Wilder that the baby had been “"good until the visit with her birth mom” five days before the emergency room visit.
The woman who took baby Emerald to Willits for that visit had previously testified that the baby seemed unwell on the trip to the visit, but had seemed better on the way back.
“She acted different after coming back from the visit with the birth parents,” Ms. Tubbs testified.
Sequeira had also asked her if she had told police that the marks on baby Emerald's face had upset her enough that she “just wanted to get out of there.”
Ms. Tubbs said she'd been “concerned,” but that the baby had acted “normal” and had eaten about half of what she usually did.
Sequeira told the court he intended to call officer Wilder to the stand on Tuesday, October 1 to impeach Ms. Tubbs as a witness.
Courtesy, the Ukiah Daily Journal.