Nos. 83,255
83,874
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TRENNIE L. CAMPBELL,
Appellant.
SYLLABUS BY THE COURT
1. A prosecutor is a servant of the law and a representative of the people of Kansas. There is no excuse for a prosecutor's failure to understand the remarkable responsibility he or she undertakes when rising in a courtroom to announce an appearance for the State of Kansas. The prosecutor represents a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
2. A prosecutor who has or knows of evidence vital to the case and who deliberately misleads defense counsel to believe that no such evidence exists is guilty of prosecutorial misconduct sufficiently serious to trigger a reversal of the defendant's conviction.
3. In determining whether prosecutorial misconduct will cause the reversal of a defendant's conviction, three factors must be considered. First, was the prosecutorial misconduct so gross and flagrant as to prejudice the jury against the defendant? Second, do the statements show ill will by the prosecutor? Third, is the whole evidence against the defendant so overwhelming that there was little or no likelihood the prosecutor's prejudicial conduct changed the result of the trial?
4. Where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.
5. A trial court is given considerable discretion in admitting statements under the hearsay exception for unavailable witnesses when unavailability is an issue; whether the witness is available is a question of law.
6. A witness is not unavailable simply because he or she claims he or she cannot remember the incident. In order for the trial court to make a finding of unavailability, it must distinguish between a witness who, in bad faith, feigns memory loss and a witness who, in good faith, is unable to testify because of genuine memory loss.
7. The doctrine of res gestae is discussed and analyzed.
8. In order to be admissible, res gestae evidence must still conform to the requirements of K.S.A. 2000 Supp. 60-460.
Appeal from Harvey District Court; THEODORE B. ICE, judge. Opinion filed May 11, 2001. Reversed and remanded.
Debra J. Wilson and Karen Eager, assistant appellate defenders, and Jessica R. Kunen, chief appellate defender, for appellant.
Mary A. McDonald, special prosecutor, and Carla J. Stovall, attorney general, for appellee.
Before KNUDSON, P.J., LEWIS, J., and WARREN M. WILBERT, District Judge, assigned.
LEWIS, J.: Savannah Campbell died at her home on February 29, 1996, at the age of 2 years. Her mother, the defendant Trennie Campbell, was subsequently convicted of unintentional second-degree murder in the death of Savannah, along with four other counts of endangering a child. Trennie was sentenced to a controlling term of 77 months' incarceration. The trial judge then made a dispositional departure and placed Trennie on probation. This is a direct appeal by Trennie from her convictions and sentence.
Savannah was born in November 1993 to Trennie and Flint Campbell. She was their fourth child and, at the time of her death, all four children were under 8 years of age. Trennie and Flint originally lived in Arnold, Kansas, near other family members and friends.
Trennie's involvement with the State Social and Rehabilitation Services Department (SRS) began only a few weeks after Savannah was born. Savannah was initially labeled by the hospital as a child who was failing to thrive as a result of abuse and neglect. Because of this labeling by the hospital, SRS had begun to look over Trennie's shoulder--into her home life, her housekeeping, etc. It developed that the hospital was absolutely wrong in labeling Savannah as a child who was failing to thrive as a result of abuse and neglect. Savannah was a very sick little girl who was evaluated by at least nine specialists who finally diagnosed her problem as Brandelaise Syndrome, an extremely rare blood disorder. It appears that at the time this diagnosis was made, there was only one other known case of Brandelaise Syndrome.
Savannah's failure to thrive was a result of her extremely rare disease and not because of neglect on the part of Trennie and Flint. A child with Brandelaise Syndrome has actin, a muscle fiber, present throughout his or her body's cells. Actin is a substance which nature intends to be located only in muscle tissue. When it is present in other cells, it interferes with the proper functioning of those cells. In particular, actin interferes with the ability of white cells to fight infection, and when it is present in platelets, it causes bleeding problems and can cause anemia if it is present in red blood cells. The specialist examining Savannah found actin throughout her body and not only in her muscle tissue.
The disease condition had a devastating effect on the child and her entire family. Savannah had excessive scarring in her throat caused by this disease. As a result of this scarring, she could only breathe through a trachea tube. She was fed with a gastronomy tube. The disease caused Savannah to have episodes of bloody diarrhea, excessive bruising, rashes, and an enlarged liver and spleen. Savannah required blood and platelet transfusions in order to survive and was developmentally delayed due to the disease.
Flint and Trennie were not wealthy people, and while Flint worked at a job, he barely made a living to support his family. With four children under 8 years of age at home, Trennie did not, and in fact could not, work outside of the home. Savannah's rare disease made working outside of the home impossible and caused serious hardships for the family. In order for Savannah to be closer to a large hospital, the family moved from Arnold to an apartment in Newton. The original apartment had only two bedrooms and no washer and dryer. Flint's new job in Newton kept him away from home for extended periods of time, and the job of raising the four small children fell almost exclusively on Trennie's shoulders. After a period of time, the family moved from the two-bedroom apartment into a three-bedroom home. This move simply compounded their financial difficulties. They could not afford their utilities and could not run the air conditioner in hot weather. Their telephone was disconnected for nonpayment of the bill on a number of occasions.
Trennie was not a good housekeeper, and we suspect that the presence of four young children undoubtedly exacerbated this problem. Toys and clothing were often scattered about the house, dirty dishes were left in the kitchen, and the bathroom was not always maintained in a sanitary condition. The SRS employees who came in and out of the home with regularity did not hesitate to point out these conditions to Trennie on an almost daily basis.
Keeping Savannah at home was a daunting task which required not only considerable medical equipment but the know-how to operate this equipment. Trennie was primarily responsible for Savannah's care and was trained to operate the medical equipment and deal with Savannah's medical problems by Wesley Hospital. She was trained to use the pulse oximeter, to suction, and to operate the oxygen and feeding machines.
As a result of her tracheotomy and the scar tissue in her throat, Savannah could not breathe without her trachea tube. If the tube somehow became blocked, it adversely affected her breathing. The result is that it was necessary to suction the tube with regularity to keep it from becoming blocked. This task fell principally on Trennie. Savannah had to be fed at least five times per day, and the oxygen level of her blood had to be monitored with regularity. This also was principally Trennie's responsibility.
For a number of reasons, SRS maintained a constant presence in Trennie's home. Kim Grunden was Savannah's SRS case worker, and she had told Trennie that she had to cooperate with her and SRS or a petition alleging medical neglect would be filed. There were several nurses in and around the home placed there by SRS. These nurses assisted in the care of Savannah and were also generally critical of Trennie and her housekeeping. The testimony indicates that Trennie resented the SRS intrusion into her home and family life and wanted very much to return to her former home in Arnold, where her extended family was located.
On the morning of February 29, 1996, Trennie found Savannah dead in her crib. The trachea tube had been removed, her airway was obstructed, and Savannah suffocated. Trennie called for Flint to come and help. Flint came down the stairs and CPR was administered, but it was to no avail.
A long arduous investigation into Savannah's death followed. Ultimately, both Trennie and Flint were charged with murder. For reasons that are not immediately apparent from the record, the charges against Flint were dropped. Trennie was placed on trial for second-degree intentional murder and six counts of endangering a child. As pointed out above, she was convicted of unintentional second-degree murder and four of the six endangering counts. Flint did not testify at the trial and, in fact, invoked his Fifth Amendment rights.
As noted, the trial judge departed dispositionally and placed Trennie on probation. He indicated that he did so because she had three other young children in addition to Savannah, and he believed she was stressed and depressed at the time of Savannah's death. The trial court also noted the rare and high maintenance disease from which Savannah suffered, along with the fact that Trennie was forced to live away from her extended family, and ultimately concluded that Trennie was not a risk to the other children.
There are other factual issues in this case, and those facts will be discussed as necessary to the determination of the issues.
On appeal, Trennie raises several issues. As will be seen, we reverse her conviction and remand the matter for a new trial. Accordingly, we will discuss the issues in this opinion in the order of their importance to our decision to reverse her conviction.
PROSECUTORIAL MISCONDUCT
We reverse the defendant's convictions because we conclude that the prosecutor in this case was guilty of serious misconduct which denied the defendant a fair trial.
The question of whether a particular prosecutor has been guilty of misconduct in the trial of a criminal case is the subject of some relatively controversial recent decisions by our Supreme Court and by this court. The claim of prosecutorial misconduct is one that is being made with increasing frequency by defendants on appeal from their convictions. In most of the cases, the misconduct alleged has occurred during the final argument to the jury. One of the better-reasoned and well written decisions by the Kansas Supreme Court is State v. Pabst, 268 Kan. 501, 996 P. 2d 321 (2000). In Pabst, a defendant's murder conviction was reversed because the prosecutor repeatedly referred to the defendant as a liar during final argument. We would agree that the question of what is and is not fair closing argument is one being hotly debated, and not everyone agrees that calling the defendant a liar is necessarily misconduct. However, the Pabst decision provides some guidelines to use in defining prosecutorial misconduct.
In this case, we conclude that the misconduct by the prosecutor was so egregious that it denied the defendant her constitutional right to a fair trial, and it leaves us with no option other than to reverse her conviction.
It is true that a criminal trial remains an adversarial matter under our system of criminal justice. Despite that fact, a prosecutor's role in a prosecution is much more than that of an adversary for the State of Kansas. The criminal justice system demands that the prosecutor not take an approach which we will describe as "winning at all costs." It appears that some prosecutors lose sight of what is at stake in a criminal prosecution and are motivated by a desire to win rather than a desire to achieve a just result. The prosecutor in this case seems to have been so motivated. In the Pabst decision, Justice Six defined the prosecutor's role in the following language:
"A prosecutor is a servant of the law and a representative of the people of Kansas. We are unable to locate an excuse for a prosecutor's failure to understand the remarkable responsibility he or she undertakes when rising in a courtroom to announce an appearance for the State of Kansas. Instructional materials abound on this topic. Sixty-five years ago the United States Supreme Court said that the prosecutor represents
'a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.' Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935)." (Emphasis added.) State v. Pabst, 268 Kan. at 510.
We approach the issue of prosecutorial misconduct in this case in the spirit of the law as set forth above.
One of the key issues in this prosecution involved Savannah's time of death. Trennie told one of the police investigators that she had checked on Savannah some time after 4 a.m. and had suctioned the secretions from Savannah's trachea tube. She went on to say that she checked on Savannah at 6 a.m. and that Savannah was alive at that time, but that when she went into the room at 7 a.m., Savannah was not breathing and the tracheal tube had been removed. It is quite obvious that any medical evidence that Savannah's death occurred significantly earlier than 6 a.m. would be devastating to the defense.
In February 1998, the defendant filed a motion for discovery seeking "[t]he results of any and all physical, scientific, or chemical tests which the prosecution will seek to introduce in the trial of this matter . . . . "
In May 1998, the trial court held a pretrial conference. At that pretrial conference, the following discussion took place between Richard M. Blackwell, who represented the defendant, and the prosecutor, Mary McDonald.
"MR. BLACKWELL: Well, Judge, we just want to, for the record, confirm the status of discovery, if I could, that the--we have an assertion from the--or agreement from the State that we've been provided with any and all records of any witnesses that they have and that if they interview additional witnesses between now and the time of trial, we would be immediately provided with any records. If there's any additional witnesses they intend to call, then we ask that, you know, a formal motion be filed so that we have time to interview these witnesses. It's a serious matter and we'd certainly need to do that to be prepared for trial. And there's one specific concern we have and that was that the autopsy report does not show the time of death and if there is a time of death, we'd like to be informed of that; if not, we'd like to be informed that there is no indication that there is a time of death. But I think that just goes along with a part of the discovery motion--motions and orders, Judge."
"MS. MCDONALD: Judge, I really can't believe this comment being made because as this Court knows and as Mr. Loeffler knows and Mr. Struble knows, that any documents I've had, I have turned those over and they've been turned over for weeks and weeks now. And I also know that the Court has a rule that late endorsement of witnesses is 24 hours prior to the time that that starts, and we do that by motion and we do that properly. So I guess I feel kind of blindsided here. I don't know if--if Mr. Blackwell thinks that there's something that I have that I haven't turned over to him or--or what the deal is. But, quite frankly, I don't think I'm too hard to work with as far as discovery is concerned.
"THE COURT: Well, I think--
"MR. BLACKWELL: That wasn't the question, Judge. I've got a client charged with murder. I am not making a shot at the County Attorney's office and she didn't answer the question. The question was whether we have everything and whether we'll--and that's all it was, Judge. This is a serious matter and I need to know it for the record." (Emphasis added.)
It is apparent based upon the representations of the prosecution that it had no evidence concerning the time of Savannah's death, and the defense approached the trial of the case with the belief that no such evidence existed. It develops that the defense was wrong.
The trial of this case took place in February 1999, and at that trial, Dr. Audrey Roberts, Savannah's pediatrician, testified as a witness for the State. She testified that in her opinion, Savannah had been dead between 4 and 10 hours when she was brought into the emergency room at 7:50 a.m. The testimony of Dr. Roberts placed the time of death somewhere between 9:40 p.m. the previous evening and 3:50 a.m. on the date of death. This testimony is obviously inconsistent with the statements made by Trennie as to when she discovered the child had died.
On cross-examination, Dr. Roberts testified that she had done her research on determining the time of death in August or September 1998, and the following discussion then took place:
"Q. And the studies that you refer to about the potassium and the research that you have done on the internet, when did you do that research?
"A. Um, I do not recall saying I researched the potassium, I researched the core temperature and how that plays a role in, um, determining time of death. The potassium is more based on clinical experience with other code situations and the two years I dealt on the Child Death Review Board.
"Q. Core temperature then, I'm curious, when did you perform your internet research on that?
"A. Uh, it would have been, I don't know, the last time that trial was scheduled. Which was that August, September of '98.
"Q. Did you ever generate any kind of report or provide anyone with any information regarding these studies?
"A. Um, I had talked to Detective Walton about it and Mary McDonald.
"Q. So, you discussed with Mr. Walton this core temperature theory?
"A. He asked my opinion on it, yes.
"Q. And where does that conversation take place?
"A. Um, at my office.
"Q. And you say the last time this was scheduled for trial. Do you have any recollection the month that might have been?
"A. I would have to look at my calendar at home to know the exact date. It was the week before it was scheduled to go to trial.
"Q. That would have been in the fall of last year?
"A. Yeah.
. . . .
"Q. And your office notes, in concluding the file on Savannah, made for reference to this, these two things which you had done?
"A. What two things that I had done?
"Q. The potassium and the core temperature?
"A. No.
"Q. And if I understand correctly from your testimony on Friday, your estimate as to the time of death was not made until sometime last fall, 1998?
"A. I was never asked that question until then.
"Q. And you never put it in your notes in anyplace?
"A. No."
It is clear to us from the record on appeal that the prosecutor in this case had information concerning the time of the death of Savannah approximately 7 months prior to the date of trial and failed to disclose this information to defense counsel. In fact, at the time of pretrial as is shown above, the prosecutor expressed exasperation over the fact that the defense counsel could even believe that she had information concerning the time of death which had not been disclosed. The prosecutor's failure to disclose is exacerbated by the fact that she deliberately misled defense counsel. The truth is, we feel that she lied to defense counsel and to the court in denying that she had time of death evidence.
In a post-trial hearing on defendant's motion for a new trial, the prosecutor admitted that Dr. Roberts had determined the time of death at her request and that she had the evidence prior to trial and did not disclose it. The justification by the prosecutor for this outrageous conduct shows her lack of regard for due process and her lack of understanding as to her proper role in our system of criminal justice. The prosecutor attempts to justify her conduct in failing to disclose this information by arguing that Dr. Roberts' opinion was not in writing. In this regard, the record shows that the prosecutor responded in the post-trial hearing as follows:
"[MS. MCDONALD:] The third thing is the newly discovered evidence. And they claim--well, I'm sorry, the third thing is the new information sprung on them at trial and that's--that's a pretty good word, sprung on them at trial.
"What--what Mrs. Campbell complains about is that at one point in time Doctor Roberts testified that she had calculated time of death within a certain number of hours based upon core temperature. As I told the Court at the time that we took this up, and there was an objection made and the Court ruled again, at the time, that this information was admissible, as I told the Court at the time, this information came up in a pretrial conference with Doctor Roberts.
"This case was originally set for October. Detective--
"THE COURT: You mean between you and Doctor Roberts?'
"MS. MCDONALD: That's correct. Detective Walton was present, Doctor Patron was present and we were getting them ready to go to trial, to tell them what was involved, what they needed to do, what time they needed to come in. And at that point in time, I asked Doctor Roberts to tell me if she had any idea or could tab some sort of time of death. At that point in time, she, in preparation for trial said, well, I think this is what it would be.
"After that, and without any requests from the State, she researched the issue a little bit more so that she could be absolutely certain at the time of trial that what she had originally quoted was, in fact, based upon medical certainty.
"Well, this is not the subject of any type of report, it was never put down into any type of report, it was the topic of a pretrial conference where we were just getting our doctors ready to go to trial the first time it was set.
"Certainly, Doctor Roberts would have been more than happy to talk to Mr. Struble if he had called and said, you know, I would like to talk, sit down and talk to you, pretrial so that I can discuss that with you. If they had called my office and said, I would like to interview Doctor Roberts, I certainly would have made her available so they could ask the same questions that I asked.
"The State is not, is not, obligated to go out and investigate the case for the defense. The State is only obligated to give the reports that are in our possession over to the defense. We are not obligated to go out and have the topic of pretrial conferences reduced to writing so that the defendant can have it, with one exception. And that exception is for Brady material; exculpatory evidence. Time of death in this case didn't exculp her from the crime. That was inculpatory evidence and the State is not, is not, required to provide inculpatory evidence discovered in a pretrial conference.
"Now, if Doctor Roberts would have said, well, the time of death is outside the time that this defendant could have committed the crime, that would have been Brady material and at that point, the State has a duty to have that reduced to writing or to place a phone call to Mr. Struble to say, hey, in our pretrial conference, we found some exculpatory material and we are under a duty to produce that. This was inculpatory all down the line. Not the topic of any reports.
"Had Doctor Roberts written me a report that said, this is the time of death and these are the studies I considered, produced it to me so that I had it in my possession, as part of my open file policy, I would have provided a copy to Mr. Struble. But that was never reduced to writing.
"Mr. Struble certainly had every last medical report that I had in this case. And Mr. Struble can ask the same types of questions that I ask in preparing for trial. He can go get his own doctors and say this is what the core temperature was, this is what the baby was like when she was brought in, you give me an estimate of time of death. He could have done that to Doctor Roberts, just like I did. So, he had everything that I had. I went one step further and personally interviewed my witness prior to putting her on the stand.
"I want to point out to the Court that Mr. Struble at the time Doctor Roberts testified, I don't recall if he objected or not, I think he did, but when he objected, the Court allowed liberal cross-examination of Doctor Roberts as to how she came across that figure. And she talked about the studies she had looked [sic], at the internet studies she had done and I believe at the time she was being cross-examined by Mr. Struble, he was intentionally cross-examining her about finding studies on the internet and how could she be certain about the potassium levels and things like that. So, that point was fully explored through Doctor Roberts' testimony.
"Again, Mr. Struble had the absolute right to talk to any witnesses pretrial and certainly, if the request had been made, I would have made her available for interview. That was not done. We are not required to have each and every witness put each and every thing that they say down in pretrial conference or preparation conference for trial, into writing. Only if it is Brady and it wasn't Brady." (Emphasis added.)
The comments of the prosecutor indicate to us that she approached the case with a "win at all costs" frame of mind. Indeed, we doubt if even today the prosecutor realizes the seriousness of her misrepresentations and of her misconduct.
The defense had been assured by the prosecution that it had the entire contents of the prosecutor's file and that it had no time of death evidence which would be offered at trial. At the time these comments were made by the prosecutor, they were deliberate falsehoods. We cannot condone lying perpetrated by a member of the bar of this state in order to "win" an action involving the life and freedom of another human being. We have every right to expect more from attorneys in this state and certainly from prosecutors who have a compelling obligation to see that justice is done in every criminal prosecution and who have no right to engage in "win at all costs" conduct.
This case has some similarity to the decision State v. Lewis, 238 Kan. 94, 708 P.2d 196 (1985). In that case, the Supreme Court reversed a criminal conviction because of misconduct of the prosecutor similar to that involved in this case. In the Lewis case, the prosecutor had delivered defense counsel a written report by her expert witness which indicated that the expert had found no blood on either knife involved in the prosecution. The prosecutor failed to disclose to defense counsel that subsequent to the written report, the State's expert did find blood on the knife and would so testify at trial. The expert witness testified at trial that she had changed her opinion as stated in the written report and that she had found blood on one of the knives. The Supreme Court, in reversing the defendant's conviction, said:
"In this case, however, both defense counsel had based their defense strategies partially on the belief that the State's expert witness would testify that her examination determined that there was no blood on either knife. In opening statements each defense counsel emphasized this glaring fact to the jury. If Gardner had been cut by a knife, as he claimed, blood would be found on the knife used to attack Gardner. After opening statements were made, during the trial and in the presence of the jury, the State used the corrected report to defeat the defense theory. Such a disclosure could hardly go unnoticed by the jury.
"Prosecutorial misconduct occurs when the county attorney fails to disclose to both the trial judge and the defense counsel that he intends to introduce into evidence a report which he failed to inform the defense counsel had been corrected. If the corrected statement changes the theory of defense as presented to the jury in opening statement, then neither admonition nor instructions by the trial judge can cure the resulting prejudice. The trial court abused its discretion when it failed to grant each defendant a new trial. Neither admonition nor instruction by the trial judge could insure that the defendants would receive a fair trial. It was necessary for the judge to protect the defendants' fundamental rights by granting a new trial." 238 Kan. at 99.
Our sentiments are in line with the comments by the Supreme Court set forth above.
We hold that a prosecutor is guilty of serious misconduct when he or she leads a defendant to believe that there is no evidence, expert or otherwise, written or oral, on a particular fact in controversy when, at the time of such representation, the prosecutor does have evidence on such fact whether in written form or otherwise and such evidence is offered and admitted at the time of the trial.
We have determined that the prosecutor was guilty of misconduct. In this state, three factors are to be considered in determining this issue. First, was the prosecutorial misconduct so gross and flagrant as to prejudice the jury against the defendant? Second, do the statements show ill will by the prosecutor? Third, is the whole evidence against the defendant so overwhelming that there was little or no likelihood the prosecutor's prejudicial conduct changed the result of the trial? State v. Follin, 263 Kan. 28, 45, 947 P.2d 8 (1997).
In this case, we answer the first two questions in the affirmative and the third question in the negative. Defense counsel specifically asked for information regarding time of death in order to