264 Kan. 557
(957 P2d 449)
No. 77,538
STATE OF KANSAS, Appellee, v. GLENN A. HEATH, JR., Appellant.
SYLLABUS BY THE COURT
1. Where only one act forms the basis for both the abuse of a child charge and the homicide, the abuse of the child offense merges with the offense of felony murder. In these circumstances, a conviction of both offenses violates the constitutional prohibition against double jeopardy.
2. The trial court is not required to instruct on lesser included offenses where the defendant is charged with felony murder unless the evidence of the underlying felony is weak and inconclusive.
3. In order to be qualified as an expert, a witness must be skilled or experienced in the profession to which the subject relates and qualified to impart to the jury knowledge within the scope of his or her special skill and experience that is otherwise unavailable to the jury from other sources. Questions regarding the qualification of an expert are left to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.
4. Battered child syndrome is an accepted medical diagnosis and is within the area of expertise of physicians whose familiarity with numerous instances of injuries accidentally caused qualifies them to express with reasonable probability that a particular injury or group of injuries to a child is not accidental or is not consistent with the explanation offered therefor.
5. The basis for the admission of expert testimony is necessity arising out of the particular circumstances of the case, and to be admissible, expert testimony must be helpful to the jury. Where the normal experience and qualifications of lay persons serving as jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are inadmissible.
6. The admissibility of expert testimony lies within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion.
7. One of the purposes of battered child syndrome evidence is to show that the child died at the hands of another rather than by accident and that the other person inflicted the injuries intentionally. Such evidence is admissible even though it does not purport to prove the identity of the person who might have inflicted the injuries.
8. An expert's opinion is admissible up to the point where an expression of opinion would require the expert to pass upon the credibility of witnesses or the weight of disputed evidence. Although an expert may give his or her opinion on an ultimate issue, the expert may only do so insofar as the witness aids the jury in the interpretation of technical facts or assists the jury in understanding the material in evidence.
9. Battered child syndrome has gained wide judicial acceptance and does not involve novel scientific evidence. Therefore, battered child syndrome evidence is admissible without a hearing under the requirements of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
10. The admission of evidence is generally governed by its relevancy to the issue in question. Under K.S.A. 60-445, the trial court may exclude relevant evidence when its prejudicial effect outweighs its probative value.
11. An order in limine prohibits the introduction of inadmissible evidence at trial based upon the trial court's determination that the mere offer of such inadmissible evidence will tend to prejudice the jury. Where it is alleged that an order in limine has been violated, the appellate court must first determine if a violation has in fact occurred and if so determine whether the facts elicited in violation of the order substantially prejudiced the defendant.
12. No rule governing oral argument is more fundamental than that requiring counsel to confine remarks to matters in evidence. The stating of facts not in evidence is clearly improper. However, in summing up a case, a prosecutor may draw reasonable inferences from the evidence and is allowed considerable latitude in discussing the evidence.
13. In determining whether a new trial should be granted for prosecutorial misconduct during closing argument, the court considers (1) whether the misconduct was so gross and flagrant as to deny the accused a fair trial (i.e., are the objectionable statements likely to affect the jurors to the defendant's prejudice), (2) whether the remarks show prosecutorial ill will, and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that it can be said that the prejudicial remarks of the prosecutor were likely to have little weight in the minds of the jurors.
14. Kansas does not follow the "plain error" rule; reversible error cannot be predicated upon prosecutorial misconduct during closing argument where no contemporaneous objection has been lodged.
15. Improper remarks made by the prosecuting attorney in his or her summation to the jury will not provide a basis for reversal where the jury has been instructed to disregard the same unless the remarks were so prejudicial as to be incurable by a cautionary instruction.
16. A juror may be challenged for cause when the juror's state of mind with reference to the case or any of the parties to the case is such that the court determines there is doubt that the juror can act impartially and without prejudice to the substantial rights of any party. A trial judge's ruling on a challenge for cause will not be disturbed unless it is clearly erroneous or an abuse of discretion is shown.
17. The failure to excuse a juror for cause does not constitute a ground for reversal unless the defendant was prejudiced thereby. Peremptory challenges are means to achieve the end of an impartial jury, and so long as the jury that ultimately sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not violate the Sixth Amendment.
18. During the examination of any witnesses or when the defendant is making a statement or testifying, the magistrate may, and on the request of the defendant or the State shall, exclude all other witnesses. The magistrate may also cause the witnesses to be kept separate and to be prevented from communicating with each other until all witnesses are examined. K.S.A. 22-2903.
19. The sequestration of witnesses at trial is subject to the sound discretion of the trial court and in the absence of any showing of prejudice to the defendant, the trial court's decision will not be reversed on appeal.
20. K.S.A. 1997 Supp. 74-7335(a) provides that the victim of a crime or the victim's family must be notified of the right to be present at any public hearing or any juvenile offender proceeding concerning the accused or the convicted person or the respondent or the juvenile offender, including preliminary hearing, trial, sentencing, sentencing modification, public comment sessions, expungement hearing, and granting of probation or parole by a judge. However, the right of the victim or victim's family to be present is subordinate to the right of the defendant to a fair trial and where the presence of the victim or victim's family would deny the defendant a fair trial, they must be excluded.
21. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), holds that the State may not use statements stemming from a custodial interrogation of a defendant unless the State demonstrates the use of procedural safeguards to secure the defendant's privilege against self-incrimination. However, a law enforcement officer's obligation to administer a Miranda warning attaches only where there has been such a restriction on the suspect's freedom so as to render him or her in custody.
22. In determining whether an individual was in custody and thus subject to Miranda, the ultimate inquiry is whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. It does not matter whether the interrogating officers had focused their suspicions upon the individual being questioned if those suspicions are not disclosed to the defendant. Rather, the only relevant inquiry is how a reasonable person in the suspect's position would have understood his or her situation.
23. Cumulative trial errors may be so great as to require reversal of a defendant's conviction. The test is whether under the totality of circumstances, cumulative trial errors substantially prejudiced the defendant and denied him or her a fair trial.
Appeal from Shawnee district court, ERIC S. ROSEN, judge. Opinion filed April 17, 1998. Affirmed in part and reversed in part.
Mary Curtis, assistant appellate defender, argued the cause and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.
Joan M. Hamilton, district attorney, argued the cause, and Carla J. Stovall, attorney general, was with her on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: Two-year-old Cain Baker died from internal bleeding caused by blunt trauma. Glenn A. Heath, Jr., the live-in boyfriend of Cain's mother, was charged with and convicted of first-degree felony murder and abuse of a child. He appeals, claiming that: (1) his convictions of both felony murder and the underlying felony of abuse of a child constitute double jeopardy and violate his due process rights; (2) the trial court erred in failing to instruct the jury on the lesser included offenses of involuntary manslaughter, child endangerment, and battery; (3) the trial court erred in allowing the county coroner to testify regarding battered child syndrome; (4) the trial court erred in admitting evidence of prior abuse of Cain; (5) he is entitled to a new trial based upon prosecutorial misconduct; (6) the trial court erred in failing to remove two potential jurors from the panel for cause; (7) the trial court erred in permitting Cain's mother to be present during the trial; (8) the trial court erred in failing to suppress the defendant's statements to detectives; (9) the trial court erred in imposing a departure sentence for abuse of a child and running such sentence consecutive to the sentence for first-degree felony murder; and (10) the cumulative trial errors denied him a fair trial. Because of the fact-sensitive nature of some of the alleged errors it is necessary to set forth a detailed statement of the case.
Prior to trial, the defendant filed a motion to suppress statements he made to Detective Mills of the Topeka Police Department. Upon hearing, the State presented the testimony of Corporal Scott Conklin of the Topeka Police Department. Conklin testified that on Saturday, October 21, 1995, he was called to Stormont-Vail Hospital. When he arrived he was advised by Jan Hay, the emergency room charge nurse, that "the father" of Cain Baker had called 911 and said that Cain was not breathing. Hay also related that Cain's maternal grandmother had told emergency room personnel to check into the defendant because of prior instances of abuse. Conklin testified that he went into the trauma room to view Cain's injuries and then went into the family waiting room to talk to the defendant. His conversation with the defendant lasted approximately 15 to 20 minutes.
According to Conklin, the defendant stated that he had been taking care of Cain while Cain's mother was at work. The defendant told Conklin that Cain had gotten up at 8:30 that morning and the defendant was feeding him breakfast when Cain began throwing up. The defendant put Cain in the bathtub to clean him up but Cain threw up once in the bathtub and once more when the defendant was drying him off. Cain then told the defendant that he was tired. Cain was running a temperature so the defendant gave him some Tylenol and Amoxicillin and put him to bed. According to Conklin, the defendant then stated that he watched television for approximately 20 to 30 minutes and then went to check on Cain. The defendant found Cain lying in a pool of vomit. Cain was not breathing and would not wake up, so the defendant dialed 911. The defendant stated that Cain had displayed no signs of being sick the previous night.
After checking on Cain's condition, Officer Conklin went back to the family waiting room to talk with the child's mother, Rhonda Pardekooper. Conklin stated that he had no reason at that time to suspect wrongdoing. However, he called dispatch and asked to have an officer sent to Cain's address because it was not known what might have caused Cain's injury and he wanted to make sure that the house was not disturbed. Conklin also talked to other family members and to Cain's doctor, who told him that Cain had suffered an injury to the artery in his abdomen that appeared to have been inflicted by a blunt object. Conklin testified that he then introduced the defendant and Pardekooper to Detective Caviness. He also asked for permission to search the defendant and Pardekooper's residence, and consent was given.
Detective Sergeant Randy Mills arrived at the hospital to start an investigation. Cain's doctors informed Mills that the injury was serious, that the child might die, that it would take a blow similar to that from a broom handle to cause the injury, and that a child would not be capable of inflicting such a blow on his own. Mills then went to talk to the defendant and Pardekooper to obtain permission to look through the residence to see if anything there could help determine what happened.
Mills told the defendant and Pardekooper that he wanted to talk to them and thought it would be more efficient to talk at the police station. He offered to give them a ride to the station and back, and they agreed. At the police station Mills talked to Pardekooper first. The conversation lasted about an hour, during which time the defendant was in the lobby of the police station. Pardekooper told Mills that on Friday the defendant picked up Cain from day care, that the defendant and Cain then picked her up from her job around 8:30 p.m., and that they all went home and went to bed shortly thereafter. The next morning, Cain and the defendant dropped her off at work, and she assumed they then returned home.
Mills then talked to the defendant. The defendant told Mills essentially the same story he had earlier told Conklin, except that the defendant added that when he took Cain into the bathroom to clean him up he accidentally bumped Cain's head on the sink. Mills testified that he told the defendant that he did not totally believe the story, at which point the defendant told Mills that he would tell him "the truth." The defendant then proceeded to tell Mills that after he had cleaned up Cain from the first vomiting, Cain threw up again. The defendant indicated that he got frustrated and shoved Cain in the back. Cain landed on a rocking chair.
At that point, Mills brought in Detective Caviness and they read the defendant his Miranda rights. Mills testified that after the defendant was advised of his rights, the defendant related the same story of shoving Cain. On cross-examination, Mills admitted that he never specifically told the defendant that he was free to leave at any time during the trip to the police station and the resulting questioning.
The trial court denied the defendant's motion to suppress his statements, concluding that the defendant had suffered no significant deprivation of freedom prior to his relating the story to Mills.
The defendant also filed a motion in limine to prohibit the State from introducing evidence of battered child syndrome on the grounds that it was not helpful to the jury or generally accepted in the scientific community. After hearing, the court determined that the evidence would be admissible, possibly subject to a Frye examination. However, battered child syndrome testimony was admitted at trial without considering foundational requirements set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
The State asked that Pardekooper to be present throughout the trial notwithstanding that she would be a witness for the State. The defendant objected on the grounds that being present during the trial would influence Pardekooper's testimony. The court ruled that Pardekooper, as the mother of Cain, could be present throughout the trial but any other family members who were witnesses could not be.
During voir dire examination of potential jurors, the defendant moved to strike two members of the panel for cause. Both motions were denied. However, the two members were later struck with peremptory challenges by the defendant.
The State called as its first witness Dr. James Hamilton, a surgeon at Stormont-Vail. He testified that when he first observed Cain, he was unresponsive and had a quarter-size bruise on his abdominal wall. Cain was immediately taken into surgery.
During surgery, Dr. Hamilton found that Cain had suffered a large tear in the mesentery membrane of the stomach, approximately 12 centimeters by 8 centimeters. Cain had also suffered a punctured intestine and was bleeding internally. The cause of the injury, according to Dr. Hamilton, was blunt trauma such as that caused by a broom handle or hammer. According to Dr. Hamilton, the force necessary to cause such an injury would be comparable to falling off of a two-story building onto the bottom of the leg of a chair. Dr. Hamilton testified that body weight alone would not cause such an injury and, in fact, it would be difficult to cause such an injury in a car wreck. Dr. Hamilton also testified that judging from the condition of Cain, the injury had occurred between 6 p.m. on Friday and 10 a.m. on Saturday.
Michael Troth, an emergency medical technician for the Topeka Fire Department, testified that he had been sent by 911 to the residence and performed CPR in an attempt to revive Cain. While doing so, he noted several bruises on Cain's body.
Officer Mills then related the pretrial statement made by the defendant to the jury. He further stated that after the defendant had made the statements, the defendant asked to see Pardekooper. When Pardekooper came in, the defendant stated to her, "I got frustrated," at which point she got angry at him and stated that they should have gotten attorneys earlier when they had talked about it. Mills also stated that prior to the defendant's arrest, Pardekooper had not cried and seemed to be emotionless.
Dr. Edward Patrick, a pediatrician, also testified on behalf of the State. He stated that he was called into the intensive care unit on Saturday, October 21, to help treat Cain. He noticed some bruising on Cain's body while treating him. Dr. Patrick testified that despite the efforts of the hospital staff, Cain was never completely stabilized and that he pronounced Cain dead at 3:34 p.m. on October 23. During the time he was at the hospital he overheard Pardekooper in the waiting room. Pardekooper told her mother at that time, "He did it."
Jan Hay, a registered nurse employed at Stormont-Vail Hospital, testified that she was on duty when Cain was brought in and noticed several bruises of varying age. She stated that both the defendant and Pardekooper were tearful when she saw them at the hospital.
Courtney Leutje, a friend of Pardekooper's sister, Melissa Carroll, then testified that she saw Cain on October 15 when Carroll and her child were visiting from Emporia. Leutje stated that she and her daughter, as well as Carroll and her child, went to visit Pardekooper. Carroll took Cain back to Emporia for a visit. While at Pardekooper's, Leutje noticed a bruise on Cain's ear as well as some other bruises.
Carroll testified that when she took Cain to Emporia for a visit on October 15, she saw a bruise on his ear. She checked his body for more bruises but found none. However, she did notice a slight bruise under his right eye. Carroll testified that she returned Cain on Wednesday, October 18. On Saturday, October 21, Pardekooper called and told her that Cain was in the hospital. Carroll stated that Pardekooper's voice was quivering when she called.
Sara O'Brien, Cain's babysitter, testified that she cared for Cain on Friday, October 20 and that Cain did not seem in pain or injured that day, nor did he have any accidents during the day. Rachel O'Brien, Sara's sister, also testified that she saw Cain on October 20 and he was not injured or in pain. Eric Weems, a co-worker of the defendant and also the father of Sara O'Brien's child, was with the defendant when he picked up Cain from the babysitter. Weems stated that Cain seemed in good health at that time.
Tim Garcia, a neighbor of the defendant and Pardekooper, testified that his sons played with Cain in the early evening on Friday, October 20. Garcia testified that Cain was not suffering from any problems at that time. Garcia also testified that when he heard from the defendant about Cain being taken to the hospital, he volunteered to pick up Pardekooper from work. According to Garcia, when he picked up Pardekooper, she did not seem upset and told him that Cain gets sick all the time and that the defendant overreacts.
Brandon Garcia, the 11-year-old son of Tim Garcia, testified that he and his brother took Cain to the park in the early evening on Friday, October 20. While at the park, Cain fell off his tricycle and bumped his head and also went head-first down the slide and bumped his stomach. However, he stated that Cain seemed okay and was not bleeding or crying. He testified that Cain got upset later that evening because the Garcias were going to eat pizza and he was not allowed to go with them.
Pardekooper testified that she had been living with the defendant for approximately 8 months before the incident. On Friday night she called the defendant to come pick her up at work. The defendant told her that Cain was asleep and Pardekooper told him to wake Cain up and bring him along. According to Pardekooper, she said hello to Cain when she got into the defendant's truck and although Cain did not answer, she believed that he was awake. She testified that when they arrived at home, the defendant volunteered to get Cain out of the truck and put him to bed. She was tired from work and did not object to the defendant's suggestion. She testified that the defendant then put Cain to bed and she and the defendant watched television for a short time, then they both also went to bed.
Pardekooper got up late on Saturday; Cain was sleeping when she went to work. She did not check on Cain because she was running late, although she did look into his room right before she left. Cain appeared to be sleeping with his head turned towards the wall. Pardekooper testified that she and the defendant left Cain at the residence and the defendant drove her to work.
Later that day, the defendant called her to tell her that Cain was sick. Pardekooper was not worried because Cain had been sick before, and she felt that the defendant could handle the situation. She told the defendant to give Cain some Tylenol and put him to bed. Pardekooper testified that the defendant called her three to five times that morning. On the last phone call, he informed her that Cain had stopped breathing and that he had dialed 911 and that the ambulance attendants had aspirated Cain. She asked the defendant to pick her up; later, Garcia came to take her to the hospital.
Pardekooper testified that when she arrived at the hospital and saw Cain, she became upset. Later, she and the defendant went out to the defendant's truck and had cigarettes. The defendant told her he did not know what had happened to Cain. When they returned to the hospital, a doctor told her that Cain had received a blow to the stomach. Garcia then told her that she needed to get the defendant a lawyer.
Pardekooper stated that when she later talked to the defendant at the police station, he told her that he had pushed Cain. She immediately told him to shut up because she did not want to hear any more and did not believe that he had injured Cain. She then told the defendant that they should have gotten a lawyer. Pardekooper testified that she did not want to believe that the defendant was capable of hurting Cain. She refused to allow Detective Mills to take her back to the hospital and instead rode back to the hospital with the defendant's mother.
Pardekooper stated that she later visited the defendant in jail where he told her that he pushed Cain into a chair. She admitted that she had originally been charged with child endangerment but the charges were later dropped. Pardekooper stated that at first, she refused to talk to police because she still did not believe that the defendant had injured Cain and she was trying to protect him.
Pardekooper confirmed that in March or April 1995, the Department of Social and Rehabilitation Services (SRS) investigated a report made by her mother that Cain had some suspicious bruises. She also confirmed that in July Cain had suffered a broken leg in what the defendant told her was a playground accident.
Dorothy Smart, Pardekooper's mother, also testified. She stated that in March 1995, Carroll and her husband brought Cain to stay with her and Cain was badly bruised. Smart called SRS to investigate. Pat Eisenbarth, a social worker for SRS, testified that SRS opened a case on Cain when his grandmother brought him to the Olathe Medical Center to be treated for bruises. Dr. Asbury, a doctor at Olathe Medical Center, had earlier testified that when he saw Cain, Cain had several bruises, some of differing age. Eisenbarth testified that when she talked to Pardekooper, Pardekooper told her that the defendant, not Pardekooper, had been home with Cain when the bruises occurred. She also talked to the defendant, and in her mind his story was not consistent with the medical history. Eisenbarth made a finding of physical abuse, perpetrator unknown.
Eisenbarth testified concerning a second incident wherein she made a finding of confirmed neglect on the part of the defendant. Eisenbarth indicated that the defendant told her that Cain had been bruised when the defendant was driving his truck and stopped suddenly. The defendant indicated that Cain had not been wearing his seat belt.
Eisenbarth also testified that she later commenced an investigation after learning on July 5, 1995, that Cain had suffered a broken leg. She stated that she had talked to Pardekooper, and again Pardekooper told her that the defendant was with Cain when the broken leg occurred. Eisenbarth stated that she was unable to confirm physical abuse because the medical opinion was that the injury could have been an accident, as the defendant maintained.
The final witness for the State was Shawnee County Coroner Dr. George Thomas. Dr. Thomas, over objection, testified that based upon his autopsy findings, Cain suffered from battered child syndrome. Dr. Thomas stated that his findings showed evidence of recent injury as well as old injury, including scarring in the abdomen and upper lip. Dr. Thomas testified that battered child syndrome is a recognized medical term. According to Dr. Thomas, the major diagnostic feature of battered child syndrome is a discrepancy between the history given by the caretaker and the physical findings, as well as no injury occurring during the time the child is in a protected environment. Dr. Thomas stated that in actual accidents, the caretaker usually gives a consistent story that does not change over time and is consistent with the autopsy findings. He cautioned however, that it is impossible to tell who battered Cain by looking at the injuries. Further, he stated that the reaction of an individual does not provide much help in identifying the batterer. On cross-examination, Dr. Thomas stated that from his autopsy he could not tell who had battered Cain.
Following the testimony of Dr. Thomas, the defendant moved for a mistrial on the grounds that the testimony on battered child syndrome, as well as the testimony of Pat Eisenbarth, was prejudicial in that its only value was to establish the defendant's propensity to batter Cain. The motion was denied.
The defendant testified at trial. His story conflicts with the testimony of Pardekooper. According to the defendant, on Friday evening, October 20, Cain seemed in good health although a little fussy. The defendant took Cain to pick up Pardekooper at work. On the way home, they stopped at Dillon's to pick up some food for Cain. The defendant stated that Pardekooper "had an attitude" during this time possibly because she had just gotten off work.
According to the defendant, Pardekooper, not he, took Cain into the house and put him to bed. The defendant stated that he unpacked the groceries during this time. After Cain was in bed, the defendant and Pardekooper drank daiquiris, and the defendant then left the residence to get cigarettes. The defendant testified that when he returned, he watched television and fell asleep on the couch. Pardekooper then woke him up and they went to bed.
The next morning, they woke up late and Pardekooper was upset that he or she had not set the alarm. The defendant testified that while Pardekooper was getting ready for work, he went outside to check the oil in his truck. After dropping Pardekooper off at work, he went home and gave Cain breakfast. At that point, according to the defendant, Cain vomited. The defendant called Pardekooper, and she told him to give Cain Tylenol and put him to bed. The defendant testified that he gave Cain a bath and Cain vomited again. The defendant put Cain to bed and left to go to the store to get soda and ice cream. When he came back home he looked in on Cain and then watched television. He then heard a noise coming from Cain's room. The defendant stated that he brought some soda into Cain's room and saw that Cain had vomited again. He gave the soda to Cain and set him up in bed but Cain then fell over. He then called Pardekooper, who told him to call Ask-A-Nurse. Instead, the defendant called 911 because he thought Cain was going into a seizure.
The defendant testified that while waiting for the ambulance to arrive, he picked Cain off the floor, attempted CPR, and pushed on Cain's stomach in an attempt to revive him. After the ambulance left, the defendant stated that he went to pick up Pardekooper but she had already left work. He then remembered that Garcia told him he would pick Pardekooper up from work. The defendant went to the hospital where medical personnel and the police questioned him about how Cain got certain bruises; however, no one would tell him what was wrong with Cain. At some point, he went out to his truck with Pardekooper to smoke a cigarette. He asked Pardekooper about the bruises, and she told him that they ought to get an attorney. They were then interrupted by a security guard and another person who told them that the detectives wished to talk to them upstairs.
The defendant testified that he did not learn of Cain's injury until after he had been