State v. Kirby

 

IN THE SUPREME COURT OF THE STATE OF KANSAS

 

No. 85,172

 

STATE OF KANSAS,

 

Appellee,

 

v.

 

LEONARD B. KIRBY, JR.,

 

Appellant.

 

SYLLABUS BY THE COURT

1. When reviewing challenges to jury instructions, an appellate court is required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous.

2. Where a person inflicts upon another a wound which is calculated to endanger or destroy life, it is not a defense to a charge of homicide that the alleged victim's death was contributed to by the negligence of the attending physicians or surgeons.

3. The general rules of proximate cause used in civil actions do not apply. Rather, a defendant will be found not responsible for the death which occurs during the commission of a felony only if an extraordinary intervening event supersedes the defendant's act and becomes the sole legal cause of death.

4. In the context of negligence, the Restatement (Second) of Torts § 440 (1965) defines a superseding cause as an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his or her antecedent negligence is a substantial factor in bringing about. If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.

5. When a question arises as to whether evidence at trial is unfairly prejudicial, the trial court has an obligation to weigh the probative value of the evidence. When the prejudicial effect of the evidence on the trier of fact outweighs the probative value of the evidence, the evidence should be excluded.

6. Admission of evidence of a discordant relationship is admissible independent of K.S.A. 60-455 and relevant to show the ongoing relationship between the parties, the existence of a continuing course of conduct, or to corroborate the testimony of witnesses as to the act charged.

7. Admission of demonstrative photographs lies within the broad discretion of the trial judge. In determining whether demonstrative photographs should be admitted, a trial judge must determine whether they are relevant and whether a proper foundation has been laid.

8. The law is well settled in this state that, in a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome.

9. Photographs which are unduly repetitious, gruesome, and without probative value should not be admitted into evidence. Nevertheless, demonstrative photographs are not inadmissible merely because they are gruesome and shocking where they are true reproductions of relevant physical facts and material conditions at issue.

10. Kansas does not ordinarily apply the plain error rule, and reversible error normally cannot be predicated upon a complaint of misconduct by the prosecutor during closing argument where no contemporaneous objection is lodged. If the prosecutor's statements, however, rise to the level of violating a defendant's right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. Where the appellate court, in examining a claimed error of prosecutorial misconduct, determines that the misconduct may rise to the level of violating a defendant's right to a fair trial, the claimed error will be considered. Thus, the plain error rule is recognized where the prosecutor's misconduct is so prejudicial or constitutes a constitutional violation that if not corrected will result in injustice or a miscarriage of justice.

11. If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found defendant guilty beyond a reasonable doubt.

12. For a conviction of unintentional second-degree murder, the State must prove that the defendant unintentionally but recklessly, under circumstances showing extreme indifference to the value of human life, committed an unlawful act which proximately caused the death of a human being.

13. The court on motion of a defendant may grant a new trial to him or her if required in the interest of justice. K.S.A. 22-3501(1). The granting of a new trial is a matter which lies within the sound discretion of the trial court, and appellate review of a trial court's decision denying a new trial is limited to whether the trial court abused its discretion.

14. There is no statutory requirement for appointment of counsel at each and every post-trial motion, and such a decision rests within the sound discretion of the trial court. In post-conviction proceedings, there is some latitude in the constitutional requirement that a defendant be represented at critical stages.

15. When faced with a motion alleging ineffective assistance of counsel, the district court is to make a preliminary examination to determine whether substantial questions of law or fact are raised, and if the findings are in the negative, the court may summarily deny the motion. The decision concerning whether to hold an evidentiary hearing on the motion is subject to an abuse of discretion standard.

16. Before counsel's assistance is determined to be so defective as to require reversal of a conviction, defendant must establish (1) counsel's performance was deficient, which means counsel made errors so serious that counsel's performance was less than that guaranteed by the Sixth Amendment to the United States Constitution, and (2) the deficient performance prejudiced the defense, which requires showing counsel's errors were so serious they deprived defendant of a fair trial.

17. A trial court abuses its discretion when it denies a motion for a new trial based on juror misconduct if the defendant can show that (1) an act of the jury constituted misconduct and (2) the misconduct substantially prejudiced the defendant's right to a fair trial.

Appeal from Wyandotte district court; THOMAS L. BOEDING, judge. Opinion filed January 25, 2002. Affirmed.

Peter Maharry, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the briefs for appellant.

Sheryl L. Lidtke, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.: This is an appeal by the defendant, Leonard B. Kirby, Jr., from his conviction of the unintentional second-degree murder of Karen Couts, who died as a result of a ruptured spleen after twice seeking emergency medical care at the University of Kansas Medical Center (UKMC). Kirby contends that causation instructions should have been given with regard to the alleged negligence of UKMC emergency room physicians, which he claims was an efficient intervening cause of death. Kirby requests that his conviction be reversed and the case remanded for a new trial. In the alternative, Kirby asks the court to vacate his sentence, which is a controlling term of 146 months with post-release supervision of 36 months.

Karen worked in construction operating heavy equipment, was 38 years old, and had three children, Janee, age 20, Jessica, age 19, and Michael, age 10, at the time of her death in December 1998. Karen lived with Kirby.

Janee testified that the weekend before Thanksgiving she had to pick up her mother because Kirby and Karen had gotten into a fight and the police were there. Karen had scratch marks on her neck and told Janee that Kirby was "dragging her by her larynx, that he had been pulling her like he was going to pull it out, not that he said he was, but he was like choking her, grabbing her by her larynx." Karen spent the night at Janee's apartment in Overland Park.

The next morning as Janee and her roommate were getting ready to leave, Kirby came to the door. When Janee returned about an hour later, there were police cars parked in front of her apartment. That day, Janee's neighbor, Barbara Machin, heard a disturbance outside and saw Karen lying on the ground while Kirby hit her in the face with his fists. Machin called 911. Another neighbor, Michael Weddington, also called police after he saw Kirby repeatedly hit Karen in the face and chest. Weddington testified that Kirby then walked to his truck, where several of his children were waiting, and drove up on the lawn toward where Karen was lying. Karen told Janee that Kirby had attacked her and had tried to run over her with his truck. Initially, Karen wanted to press charges, but later she resumed her relationship with Kirby. Less than 1 month later, Kirby again attacked Karen. This attack led to Karen's death.

On Friday, December 18, 1998, Kirby and Karen went out to several bars. Eliza DeGhelder testified that she threw a surprise birthday party for the owner of Miss Kitty's bar that night and invited Kirby and Karen to attend. DeGhelder saw them at Miss Kitty's sometime between 6 and 8 p.m. and spoke with Karen for about 10 to 15 minutes.

Jamie Bishop testified that he was tending bar at Cedar Lawn and saw Karen there around 11 p.m. Karen spoke with Wayne Willeford, the brother of her ex-husband, and asked him to whip Kirby if he came to the bar. Approximately 30 minutes later, Kirby entered Cedar Lawn and walked up to the bar. Karen confronted Kirby, screaming at him, and then ran into the bathroom. After she came out, she began shoving Kirby and screaming at him. As far as Bishop could tell, Karen wanted Kirby to leave her alone. Karen went out the front door, and 2 or 3 minutes later Kirby followed. Bishop said that when he came back into the bar, Kirby had a scratch on his forehead. Kirby said Karen had gotten into a car with two other men and that one of the men had hit him. Kirby stayed at the bar another 10 or 15 minutes and then left around midnight. Bishop said that before Kirby left, he took a phone call from Karen, and then talked to Willeford and his girlfriend about going to Miss Kitty's bar to find Karen.

Mark Powers testified that Karen came to his house in Kansas City, Kansas. Powers lived there with his wife and four of his six children. Powers said that he and Karen were friends. Karen had lived across the street from Powers with David Cheaney, her youngest son's father, for several years, but had not been living with Cheaney the past 2 years. Powers drove Karen to her home and arrived at approximately 1:10 a.m.

Keith Ussery testified that on the night of December 18, 1998, he lived with Lori Packer and her son on South 14th Street. Ussery said that around 1 a.m., Packer woke him up. Packer said, "They're fighting again next door," and "Keith, they're really fighting this time." From the bedroom window, Ussery could see Karen and Kirby fighting on a concrete walkway behind their house. The motion-detector security light was on and Ussery could see "real well what was going on."

Ussery saw Karen lying on the ground and Kirby kicking her with his boots and hitting her with his fists. According to Ussery, Kirby kicked her more than a dozen times in the "stomach, the head, just wherever he could kick, whatever he could hit." When asked where on the stomach Kirby kicked Karen, Ussery responded: "The sides, the front, the back because he'd kick her and she'd like roll away and he'd kick her again and stomp on her." Ussery witnessed Kirby striking Karen's head, stomach, back, and sides repeatedly with his fists, and said at one point, Kirby literally picked Karen up and threw her inside the house. At one point, Kirby was on top of Karen shaking her and hitting her head on the concrete. Ussery stated that "a couple times she would try to hit him back, but most of the time she was pleading with the man to stop . . . ." Ussery told Packer to call the police but to stay out of it. Right before the police came for the second time, Karen fled north down 14th Street, first crossing through Packer's back yard. Ussery saw Kirby jump the fence behind the houses and flee into the woods.

Packer also witnessed Kirby attacking Karen. Just as she was preparing to go to bed around 1 a.m., she heard a truck squeal into the driveway next door, followed by a male voice screaming. Packer testified she knew it was Kirby's voice because she had heard him scream at Karen before. When Packer looked out of her bedroom window, she saw Karen lying on the ground and Kirby straddled on top of her waist. Packer testified, "He was hitting her with his fist full force, the back of his­with his knuckles as hard as he could on the side of her head." Kirby kept asking her where she was, and after a while told her he would kill her if she did not tell him where she went and with whom. Packer also saw Kirby grab Karen by the head and slam it on the ground using full force. In addition, Packer said Kirby forcefully kicked Karen's left side three or four times with his boots. According to Packer, Karen kept telling him to stop and that she loved him. She tried to get her hands free and then would try to hug Kirby.

Packer called 911 five times that night, pleading with the dispatcher to send police. According to 911 records, Packer's first call was at 1:14 a.m., and the fifth call at 1:44 a.m. The first time police arrived at the residence, they knocked on the front door and then left after no one responded. Packer told the dispatcher that Karen and Kirby were in the back yard, but Packer did not want to open her door and talk to the police because she did not want Kirby to know she called the police. After the police left, Packer saw Kirby still on top of Karen beating her in the head. Karen screamed and asked for help, so Packer called the police again. After telephoning 911 again, Packer went back to her window to check on Karen. Karen had jumped over the fence into Packer's back yard, had gone through the gate, and up the street. Packer went to the front of her house to see where Karen was going and saw the police coming. Kirby jumped the back yard fence and went into the woods to hide. Packer told an officer where Kirby was, but the officer could not see Kirby in the woods. When one of the officers announced Karen had been found up the street, the other officers left to make sure it was her. Packer said that when the police left, Kirby came back over the fence to the house, banged on the windows, and screamed, "Let me in." The officers returned, and Kirby again went over the fence into the woods. This time, however, they found Kirby and placed him under arrest.

Paramedics transported Karen to the UKMC emergency room. Todd Farley, an emergency medical technician, testified that initially Karen refused to let anyone examine her, but after she calmed down and warmed up in the back of the ambulance, she consented to an exam. Farley stated: "[S]he was very swollen in the head, the forehead, around the eyes, she had lots of dry blood that was around her nose and her mouth. . . . [S]he was complaining of pain around her wrist and you could tell on her left wrist was swollen and somewhat deformed. . . . She complained of pain to her ribs . . . ." In addition, she was "guarding" against the pain every time the paramedics would push on her left side.

Dr. Vincent Hayes, an emergency medicine physician, treated Karen at the UKMC emergency room early Saturday morning, December 19, 1998. Karen complained of generalized pain, pain to her face, abdomen, lower chest, and left wrist. Since Karen gave a history of being kicked in the abdomen and complained of tenderness in the area of her spleen, Hayes ordered a CAT scan and x-ray studies. Hayes testified that the CAT scan showed nothing indicating an injury to the spleen. On cross-examination, Hayes agreed that clinical symptoms of hypovolemia, tachycardia, general upper abdominal pain, and pain at the tip of the shoulder could indicate splenic injury. However, Hayes stated that Karen only exhibited signs of generalized abdominal pain and slight tachycardia, which improved during the time Karen was there. Hayes stated that when he discharged her at 5:30 a.m. Saturday, she was alert, stable, and left on her own power.

On Friday night, Karen's daughter Janee had gone to a birthday party and returned home around 2 or 2:30 a.m. About 3 a.m., Janee received a call from a nurse at UKMC telling her to come get Karen because she was badly hurt.

Janee testified that when she first saw Karen, "[h]er face was really badly beaten, she had like dried blood lumps on her face, her hair was matted, it had like grass in it. . . . [H]er face was just­it looked like she was a burn victim her face was so red and disfigured, it looked terrible. . . . As soon as she saw me she started to cry." Janee testified that she heard Karen tell the doctor, "My ribs are sore. Are they broken?" The doctor told Karen, "No, the CAT scan or your tests­the x-rays came back, you have no broken ribs. It will be sore for a while." After Karen was discharged, she was able to walk to the car with Janee.

Janee picked up Karen's prescription for Tylenol 3 around 5:30 p.m. on Saturday, December 19, 1998. That evening, Karen's condition progressively deteriorated and, according to Janee, Karen was experiencing sharp pains in her left shoulder area. On Sunday morning, Karen complained of shooting pain from her abdomen to her left shoulder and told Janee she wanted to go back to the hospital.

 

Dr. Richard Dietz, an attending physician, and Dr. Iliana Jarrin, a resident physician, examined and treated Karen at UKMC emergency room on Sunday, December 20, 1998. According to Dietz, Karen's symptoms were similar to those in her medical records from Saturday. Dietz testified that they performed a complete physical exam on Karen, trying to determine the source of her pain. They palpated the area of her liver and spleen, but determined neither were enlarged and did not notice any guarding or rebounding. They did note that Karen's "blood pressure was a little lower and her pulse rate was higher." Because a CAT scan had already been done and because they found no focal tenderness over the liver, Dietz testified that they decided against further x-rays or CAT scans at that time.

Janee testified that while they waited in the exam room for the doctor, Karen became nauseous and vomited. According to Janee, Karen was given a shot to relieve the nausea. After they left UKMC around 12:30 p.m., Janee had to help Karen walk into the apartment. At 5:30 p.m., Karen tried to walk to the bedroom but collapsed, falling down on her knees. Janee laid her down on the floor and got her a blanket and pillow. At 9 p.m., Karen crawled from the living room into the bedroom.

Around 12:30 or 1 a.m. on Monday morning, Karen woke Janee saying she was going to get sick and vomited on the bed. About 3:15 a.m., Karen began crawling from the bed saying she had to get to the bathroom. She was so weak that Janee had to lift her onto the toilet. As Janee went to get clean clothes, her mother had a spasm, screamed, went stiff, and then lunged back. Janee yelled for her roommate to call 911. Officer Gregory Powell, who responded to the call around 3:45 a.m., entered the bathroom and helped carry Karen, who had become limp and unresponsive, to the living room where he and Janee started CPR. Med-Act paramedics and fire department personnel arrived and began CPR on Karen, but she never regained consciousness. After about 40 minutes, a doctor instructed them to cease CPR.

Dr. Erik Mitchell, a forensic pathologist, performed a postmortem examination on Karen's body. Mitchell's external examination revealed "a large number of bruises associated with some­with abrasion, which is scraping of the skin, she even had some gouges of skin where some skin had been gouged out." He noted a bruise on her forehead with patterned lines, demonstrating a heavy contact blow he thought came from the sole of work boots. Both eyes were black and there were scrapes on her nose, a line of bruising that went up from the right ear, and gouges to the chin that would be consistent with having been hit or kicked. About 30 bruises were present on her body. The backs of her hands and wrists were red and swollen, there was a solid bruise from her forearm to the knuckles of her right arm, as well as several more bruises and abrasions. Mitchell found imprint bruises over the left side of her chest, on her knees, and on the back of her thighs. In addition, Mitchell noted that the abdomen appeared swollen, suggesting something inside causing the protuberance.

As part of the internal exam, Mitchell made an incision into her scalp to look for areas of injury. There were nine separate areas of bruising to the scalp from multiple impact injuries that had started to run together. Mitchell also found nondisplaced fractures of ribs 6, 7, 8, and 9 on Karen's left side. Mitchell testified: "The most dramatic internal finding, which was that the splenic rupture­the spleen had formed­it had been damaged and a blood clot had formed in the spleen. In fact, the clot that I removed from the spleen was 970 grams, and the average spleen is probably between 125 and 200 grams or so. . . . And what had happened was there was bleeding inside the spleen . . . . [I]t had eventually reached the limit of its ability to stretch and it popped."

Mitchell testified that "it's blunt trauma that kills her. The mechanism that finally is involved is the damage to the spleen and the bleeding from the spleen." Mitchell testified that the blow that damaged Karen's spleen would have occurred within a few days of her death and related her death directly to that trauma.

Kirby presented the expert testimony of Dr. John Hiebert, a board certified plastic surgeon additionally trained in general surgery, trauma surgery, and nutrition. Hiebert was retained by Kirby to review Karen's medical records and render an opinion on the treatment she received at UKMC. Hiebert noted that according to the medical records, the bruises over the fractured rib area on Karen were not present on the first examination on Saturday, December 19. Thus, Hiebert posited that Karen might have suffered a new injury. Furthermore, in Hiebert's opinion, based on Karen's medical records, there was sufficient information for a physician to conclude on December 20 that she had an injury to her spleen, warranting another chest x-ray. Hiebert testified:

"If it had been pursued and there was evidence of her fractures and/or striation or leakage in that spleen, then there's no question that she didn't need to die. The spleen could have been removed and that would have been it. Many people have far greater injuries than she had survive. She didn't because her spleen ruptured."

After a 6-day trial, a jury convicted Kirby of unintentional second-degree murder on November 17, 1999. On January 28, 2000, Kirby was sentenced to a controlling sentence of 146 months, with post-release supervision for 36 months. Kirby filed this appeal pursuant to K.S.A. 22-3601(a) on January 31, 2000. The matter is before this court pursuant to a K.S.A. 20-3018(c) transfer.

I. JURY INSTRUCTIONS

 

The first assertion of error made by Kirby is that the trial court improperly instructed the jury on causation and the effect of an efficient intervening cause. Kirby asserts that Karen died from a ruptured spleen 2 days after he assaulted her because of a lack of proper treatment by medical personnel at UKMC.

"When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citation omitted.]" State v. Mitchell, 269 Kan. 349, 355, 7 P.3d 1135 (2000).

Here, the trial court gave several instructions to the jury on the proximate cause of death and medical negligence:

"INSTRUCTION NO. 16

"To constitute an unlawful homicide, (First Degree Murder­Premeditated, Second Degree Murder­Intentional, Second Degree Murder­Unintentional, Voluntary Manslaughter or Involuntary Manslaughter) there must be, in addition to the death of a human being, an unlawful act which was a proximate cause of that death.

"The proximate cause of a death is a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred.

"There may be more than one proximate cause of a death. When the conduct of two or more person contributes concurrently as proximate causes of a death, the conduct of each of said persons is a proximate cause of the death regardless of the extent to which each contributes to the death. A cause is concurrent if it was operative at the moment of death and acted with another cause to produce the death."

"INSTRUCTION NO. 17

"Where the original injury is a proximate cause of the death, the fact that the immediate cause of death was the medical or surgical treatment administered or that such treatment was a factor contributing to the cause of death will not relieve the person who inflicted the original injury from responsibility."

"INSTRUCTION NO. 18

"The fact, if it be a fact, that some other person was guilty of negligence which was a contributory cause of the death involved in the case, is no defense to a criminal charge."

"INSTRUCTION NO. 19

"One of the theories of the defense is that negligent treatment by physicians at the University of Kansas Medical Center was the sole proximate cause of death of Karen Couts and not the beating she sustained. You are instructed that if you find the defendant did cause the injuries inflicted on the person of Karen Couts, then you must determine whether the acts of the defendant contributed to the death of Karen Couts. If you find defendant's acts contributed to the death . . . then responsibility cannot be avoided . . . [for] any unlawful homicide charge (First Degree Murder­Premeditated, Second Degree Murder­Intentional, Second Degree Murder­Unintentional, Voluntary Manslaughter, or Involuntary Manslaughter)."

Kirby states that the general rule regarding criminal liability is found in State v. Shaffer, 223 Kan. 244, 574 P.2d 205 (1977). In Shaffer, the victim was shot in the head by the defendant but still had a pulse and was breathing when the ambulance arrived. A neurosurgeon determined the victim had suffered irretrievable brain damage, and could be pronounced dead at any time, even though the victim could be maintained by artificial means indefinitely. Family members decided not to prolong his life by a respirator and allowed his kidneys to be removed for transplantation. The defendant argued that the kidney transplant was the cause of death. This court stated: "Where a person inflicts upon another a wound which is calculated to endanger or destroy life, it is not a defense to a charge of homicide that the alleged victim's death was contributed to . . . by the negligence of the attending physicians or surgeons. [Citation omitted.]" 223 Kan. at 250.

Kirby contends that within that general rule is the prerequisite that the jury find that the defendant inflicted upon another a wound calculated to endanger or destroy life. Under Kirby's reasoning, because the jury found him guilty of unintentional second-degree murder, the injuries he inflicted were not calculated to kill and, thus, the jurors should have had the opportunity to decide if the negligence of physicians would operate to relieve him from liability for Karen's death.

The fundamental flaw in Kirby's proposition is that a conviction of unintentional second-degree murder does not negate the purposeful infliction of wounds "calculated to endanger or destroy life." Kirby would have us believe that because his intentional infliction of severe wounds resulted in a death he did not intend, his infliction of those injuries could not be calculated to kill. We find that the words "wounds calculated to endanger or destroy life" reflect an objective measure of severity of the wounds and have nothing to do with an attacker's subjective intent in inflicting the wounds.

Both Packer and Ussery saw Karen lying on the ground while Kirby was kicking her with his boots and punching her with his fists. According to witnesses, Kirby struck and kicked Karen's head, stomach, back, and sides repeatedly. Kirby also sat on top of Karen, shaking her and hitting her head on the concrete. Dr. Mitchell testified about a bruise on Karen's forehead, which corresponded with the pattern of the sole of Kirby's work boots, and about areas of her face where the skin had been gouged out. Here, there is ample evidence that Kirby inflicted wounds on Karen which were calculated to endanger or destroy life.

Kirby further contends that the instructions given in this case, while applicable to cases of ordinary negligence, would not apply to situations where there is gross negligence or an efficient intervening cause. Therefore, Kirby believes the trial court erred in not allowing the jury to determine whether the negligence of medical personnel rose to the level of an efficient intervening cause, breaking the connection between his actions and Karen's death. Kirby asserts that the "question of whether the actions of the medical personnel amounted to a defense to the charge of murder was a question for the jury and that "the jury should have been instructed on the theory of an efficient cause."

The State asserts that Kirby requested instructions that were inconsistent with the law and that the jury was properly instructed on the issue of causation, citing State v. Lamae, 268 Kan. 544, 998 P.2d 106 (2000). There, the girlfriend of the defendant was killed in a house fire that evidence sug