No. 77,069
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
L. STAN NARAMORE, D.O.,
Appellant.
SYLLABUS BY THE COURT
1. In Anglo-American legal tradition, criminal guilt must be proven beyond a reasonable doubt.
2. When the sufficiency of the evidence is challenged, 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 the defendant guilty beyond a reasonable doubt.
3. The burden of proof to establish criminal guilt of a physician for acts arising out of providing medical treatment is higher than that necessary to find medical malpractice or to impose medical licensure discipline.
4. The issues of palliative care of terminally ill patients and what constitutes reasonable resuscitation efforts are not matters of general knowledge possessed by jurors. If they are issues in a case, the trial court should provide proper instructions on them to guide the jury in deliberations.
5. Criminal guilt for even the most serious crimes may be established by circumstantial evidence.
6. While criminal guilt may be established by circumstantial evidence, the facts and circumstances in evidence must not only be consistent with each other and with the guilt of the defendant, but they must be inconsistent with any reasonable theory of the defendant's innocence.
7. The theory that the prosecution is under an affirmative duty to rule out every hypotheses except that of guilt beyond a reasonable doubt has been rejected. The State need not rule out a mere hypothetical possibility of innocence which is not supported by substantial evidence.
Appeal from Cheyenne District Court; JACK L. BURR, judge. Opinion filed July 24, 1998. Reversed.
Kurt P. Kerns, of The Law Offices of Leslie F. Hulnick, P.A., of Wichita, and R. Pete Smith and Anthony L. Gosserand, of McDowell, Rice, Smith & Garr, P.C., of Wichita, for the appellant.
John K. Bork, assistant attorney general, and Carla J. Stovall, attorney general, for the appellee.
John P. Sevastos, D.O., of Chicago, Illinois, for amicus curiae American Osteopathic Association.
Quentin L. Brown, of Logan, Riley, Carson & Kaup, L.C., of Overland Park, for amicus curiae Kansas Osteopathic Association.
Wayne T. Stratton and Anne M. Kindling, of Goodell, Stratton, Edmonds & Palmer, L.L.P., of Topeka, for amicus curiae Kansas Medical Society.
Before BRAZIL, C.J., PIERRON, J., and MERLIN G. WHEELER, District Judge, assigned.
PIERRON, J.: On July 15, 1994, the office of the Attorney General filed a two-count complaint against Dr. Lloyd Stanley Naramore, a licensed Kansas physician. Count I charged him with the attempted murder of Ruth Leach. Count II charged him with the premeditated first-degree murder of Chris Willt. Both counts arose out of actions taken by Dr. Naramore during his medical treatment of Mrs. Leach and Mr. Willt in August 1992.
A jury trial was held in January 1996. The jury returned verdicts of guilty of attempted murder on Count I and guilty of the lesser included offense of intentional and malicious second-degree murder on Count II. Dr. Naramore was sentenced to concurrent terms of 5 to 20 years. He is apparently now free on parole. He appeals his convictions on the grounds of alleged insufficient evidence and numerous other errors.
In addition to the extensive briefs of the State and Dr. Naramore, we have been provided with amicus curiae briefs filed by the Kansas Association of Osteopathic Medicine (KAOM), The American Osteopathic Association (AOA), and The Kansas Medical Society (KMS).
The KAOM is a voluntary professional association of over 350 osteopathic physicians in Kansas. Osteopathic physicians are full-service health care providers, licensed and regulated by the Kansas Board of Healing Arts to practice medicine and surgery.
The AOA is the national professional association for osteopathic physicians and osteopathic medicine.
The KMS is a voluntary organization representing over 4,200 physicians throughout Kansas. The KMS has appeared in the past as amicus curiae before the appellate courts of Kansas when issues involving the ability of physicians to provide quality health care have been involved.
The court has carefully reviewed all the briefs and has done substantial research itself. We can find no criminal conviction of a physician for the attempted murder or murder of a patient which has ever been sustained on appeal based on evidence of the kind presented here. To explain the basis for our rulings, it will be necessary to give a very detailed account of the expert evidence presented at trial and certain facts concerning medical practices in dealing with terminally and critically ill patients.
Ruth Leach
Mrs. Ruth Leach, a 78-year-old woman, had been suffering from cancer for a number of years. She was admitted to the St. Francis Hospital in St. Francis, Kansas, in May 1992. Her son and daughter-in-law, Jim and Cindy Leach, saw her frequently at the hospital and paid her a visit on the evening of August 2, 1992. Jim's sister Judy Monroe was already at the hospital visiting Mrs. Leach. Jim testified his mother had "gone downhill dramatically" since his last visit. The cancer had spread widely, and her condition was terminal.
Cindy Bizer, Mrs. Leach's nurse that evening, told the family the morphine patches used for pain medication were apparently not doing the job because Mrs. Leach seemed restless. Bizer suggested calling Dr. Naramore to prescribe a stronger dose of pain medication. Dr. Naramore came to the hospital and examined Mrs. Leach. She told him she felt terrible. Dr. Naramore and the Leach family went to the hospital chapel where they could have some privacy.
Dr. Naramore asked the family what they wanted to do, and Jim said he wanted his mother to have more painkillers. Dr. Naramore explained that when extra pain medication is given to a patient in Mrs. Leach's condition, it slows respiration and there is a real danger the patient can die. Mrs. Leach had developed a relatively high level of tolerance for pain medication by that time. The family discussed Mrs. Leach's living will and her desire to have no heroic measures taken to save her life, and then told Dr. Naramore to give her more pain medication.
One of the key issues involved in this case involves what is known as "palliative care." The KMS, in its amicus brief, makes the following observation regarding palliative care:
"'Physicians are healers of disease and injury, preservers of life, and relievers of suffering.' Decisions, 267 JAMA at 2230. These roles sometimes conflict, however. Pain management for patients in the later stages of cancer presents a particular challenge for physicians. Palliative care refers to medical intervention in which the primary purpose is to alleviate pain and suffering. It is sometimes referred to as having a 'double effect,' however, because in addition to relieving pain and suffering, the level of pain medication necessary to relieve pain may have the consequence of shortening life. Thus, the health care provider's role as healer conflicts with his or her role as reliever of suffering when increasing amounts of pain medication are required to provide comfort care, but these increasing doses may have the effect of slowing respirations and thereby hastening death. Numerous authorities recognize that cancer patients frequently receive inadequate pain relief. See, e.g., Cherny and Catane, Editorial: Professional Negligence in the Management of Cancer Pain, 76 Cancer 2181 (December 1, 1995) (Management of Cancer Pain) . . . ; Von Roenn, et al., Physician Attitudes and Practice in Cancer Pain Management, 119 Ann. Intern. Med. 121 (July 15, 1993). In fact, one cause of the failure of physicians to adequately control pain is fear of legal sanctions. See Johnson, Disciplinary Actions and Pain Relief: Analysis of the Pain Relief Act, 24 J.L. Med. & Ethics 317, 320, 326 (Winter 1996), and other articles in same issue; Ethics of Pain Management, 9 J. Pain & Symptom Mgmt. at 166. On the other hand, it has also been suggested that inadequate control of pain due to substandard treatment may constitute medical negligence. Management of Cancer Pain, 76 Cancer at 2183. See Casswell, Rejecting Criminal Liability for Life-Shortening Palliative Care, 6 J. Contemp. Health L. & Pol'y 127 (Spring 1990), for an analysis of the issues surrounding the criminalization of palliative care.
"The [American Medical Association]'s Council on Ethical and Judicial Affairs has adopted the position that '"the administration of a drug necessary to ease the pain of a patient who is terminally ill and suffering excruciating pain may be appropriate medical treatment even though the effect of the drug may shorten life."' Decisions, 267 JAMA at 2231, quoting Council on Ethical and Judicial Affairs. Euthanasia: report C. In: Proceedings of the House of Delegates of the AMA; June 1988; Chicago, Ill:258-260. Thus, a health care provider is ethically permitted, and perhaps even required, to implement pain medication and palliative care, with the consent of the patient or the patient's family, notwithstanding the potential for hastening death. This position recognizes that there is an ethical distinction between providing palliative care which may have fatal side effects and providing euthanasia. Whereas the goal in palliative care is providing comfort care to relieve suffering even though death may occur, the goal of euthanasia is itself to cause death and through death relieve the suffering. Perhaps a subtle distinction, but an important one, for in providing palliative care the intent is to relieve suffering, not to kill. Other authorities also suggest that actions constitute palliative care, not euthanasia, when the patient is suffering, the care is appropriate to the level of suffering, and 'the actions are not intended to lead directly and deliberately to death.' Gordon and Singer, Decisions and Care at the End of Life, 346 Lancet 163, 165 (July 15, 1995)."
The KAOM also addresses this specific issue in part by reference to Wanzer et al., "The Physician's Responsibility Toward Hopelessly Ill Patients," 320 New Eng. J. Med. 844, 847 (March 30, 1989), which states:
"In the patient whose dying process is irreversible, the balance between minimizing pain and suffering and potentially hastening death should be struck clearly in favor of pain relief. Narcotics or other pain medications should be given in whatever dose and by whatever route is necessary for relief.
. . . .
"If pain cannot be controlled with the commonly used analgesic regimens of mild or moderate strength, the patient should be switched quickly to more potent narcotics. It is important that doses be adequate . . . . Doses should be brought promptly to levels that provide a reliable pain-free state. . . . To allow a patient to experience unbearable pain or suffering is unethical medical practice." (Emphasis added.)
The KAOM further states:
"The medical literature documents time and again that physicians significantly undertreat pain, including cancer-related pain. . . . Reasons cited for this phenomenon include a fear of discipline for use of opioids, and a fear of malpractice claims. The modern consensus in medical thinking, however, is a patient's pain must be controlled in her terminal illness, even if hastening death is a possible outcome."
With this review of medical opinion on palliative care, which appears to be in large part common sense, we can have a better perspective on what occurred after the Leach family told Dr. Naramore to administer more pain relievers to attempt to control Mrs. Leach's pain.
Jim testified that as the family left the chapel to return to Mrs. Leach's room, Dr. Naramore stated, "I usually take care of things like this myself, but since you are medical people, why don't you come on down with me." Dr. Naramore's remark about "medical people" was in reference to Jim being an emergency medical technician.
At 9:30 p.m., Dr. Naramore gave Mrs. Leach a 4-milligram shot of Versed, a painkiller, and at 9:35 p.m., he gave her a 100-micromilligram shot of Fentanyl, an anesthetic. Jim testified his mother's respiration slowed to a very low level. He thought she was close to death. Jim testified Dr. Naramore asked everyone to hold hands, and he recited a poem by Robert Frost called "Into the Woods." He told them he could reverse the effects of the pain medication by giving a drug called Narcan. Jim believed Dr. Naramore had given Mrs. Leach an overdose and asked the family, "Aren't we going to reverse it?" No one answered.
At this point, Dr. Naramore prepared a syringe of morphine. Jim told him to not give his mother any more medication because he thought the injection would kill her. Bizer testified Dr. Naramore stated, "I'm not going to give her any more, we can reverse these effects by giving her Narcan." Bizer testified that in her opinion Narcan is given only if there has been an overdose.
Jim and Dr. Naramore went into the hallway. Jim told Dr. Naramore he was giving his mother too much medication. Jim said, "Let me make one thing perfectly clear: I'd rather my mother lay there and suffer for ten more days than you do anything to speed up her death." Jim testified that Dr. Naramore told him that "it just gets terrible from here on out," and "[t]he next few days for her are just going to be absolutely terrible." Dr. Naramore complied with Jim's request to give Mrs. Leach minute amounts of morphine, and he set up an IV for a slow drip of morphine.
Dr. Naramore asked Jim, "If I continue to treat your mother, will you hold me responsible if anything happens to her." Jim replied with a very emphatic, "Yes, I will." Dr. Naramore did not want to be further involved in the case. Jim had Mrs. Leach transported to a hospital in Goodland, Kansas, the next morning. She was given morphine injections at the Goodland hospital. She died a couple of days later, presumably from the course of the cancer.
Bizer testified she collected the syringes used by Dr. Naramore. Dale Rundle, a Kansas Bureau of Investigation (KBI) forensic toxicologist, testified that one of the syringes tested positive for Narcan, but he was unable to confirm this result because of the minute quantity left in the syringe. Carl Selavka, a forensic chemist with National Medical Services in Philadelphia, Pennsylvania, did not find Narcan in the syringe.
Special Agent Mark Kendrick of the KBI interviewed Dr. Naramore on two separate occasions regarding his treatment of Mrs. Leach. Kendrick testified that in the first interview, Dr. Naramore told him Narcan had been prepared, but not given. In the second interview, he indicated Narcan was never around. Dr. Naramore told Kendrick he did not conduct a medical euthanasia on Mrs. Leach but did everything he could to make her more comfortable in her suffering.
Chris Willt
On August 5, 1992, Mr. Willt was found slumped over in a booth at a St. Francis convenience store. Mr. Wilt, an 81-year-old man, was obese and a severe diabetic with a history of heart disease. He had a pacemaker and had been taking Comuadin, a blood thinner, prescribed to protect him against dangerous blood clotting. However, several days prior to the incident, Mr. Willt had refused to continue taking the Comuadin.
Larry Gable, an emergency medical technician, testified that Mr. Willt had an irregular heart beat, difficulty breathing, and moist and clammy skin, and he could not speak. His right arm was limp, while his left arm was strong and rigid. Gable diagnosed Mr. Willt as having had a possible cerebral vascular accident or stroke. Gable did not know Mr. Willt was a diabetic. He was transported to St. Francis Hospital.
Dr. Naramore was called to the hospital. When he arrived, Dr. Naramore stated, "Out of the way, he's an uncontrolled diabetic." Mr. Willt was given the drug Norcuron through an IV so he could be intubated. Norcuron is a paralyzing agent which incapacitates the patient. After receiving Norcuron, a person cannot breathe on his or her own and must have someone artificially breathe for them. During intubation, a tube is placed down the trachea so air can be pumped into the lungs. At St. Francis Hospital, a bag is attached to the tube which must be squeezed manually (bagging) for the patient to be able to breath. All of this is normal procedure for a case of this kind.
Several nurses chronicled the care delivered over the next 3 hours by Dr. Naramore and the nursing staff. This included continual artificial ventilation, pulse and blood pressure monitoring, administration of drugs, and cardioversion (electric shocks to the heart) to see if Mr. Willt's pacemaker would take control.
Dale White, hospital administrator, testified Dr. Naramore told him that Mr. Willt had apparently suffered a massive stroke, his left pupil was fixed and dilated, and the case was futile. White testified Dr. Naramore said they could lifeflight Mr. Willt to a big hospital where he could be put on a ventilator, but it would be a waste of money since he would be a vegetable. Dr. Naramore opined that Mr. Willt was "brain dead" and wanted White's opinion on removing life support. White told Dr. Naramore that if Mr. Willt was "brain dead" and if he had a second opinion from a neurologist, then life support could be withdrawn.
In December 1987, the Council on Ethical and Judicial Affairs of the American Medical Association issued a series of guidelines to assist hospital medical staffs in formulating appropriate resuscitation policies. See Council Report, Guidelines for the Appropriate Use of Do-Not-Resuscitate Orders, 265 J.A.M.A. 1868 (April 10, 1991).
The Guidelines suggest that while there is a presumption favoring cardiopulmonary resuscitation (CPR) because a patient in need of CPR is unable to express his or her treatment preference, an exception to that presumption is recognized where, in the judgment of the treating physician, an attempt to resuscitate the patient would be futile. Where the patient is unable to make a decision regarding the use of CPR, that decision may be made by a surrogate decision maker. "Physicians should not permit their personal value judgments about quality of life to obstruct the implementation of a patient's or surrogate's preferences regarding the use of CPR. However, if in the judgment of the treating physician, CPR would be futile, the treating physician may [make that decision]." Guidelines, 265 J.A.M.A. at 1871.
In Barber v. Superior Court of Los Angeles County, 147 Cal. App. 3d 1006, 1018, 195 Cal. Rptr. 484 (1983), the court recognized that a physician has no duty to continue treatment that is ineffective:
"A physician is authorized under the standards of medical practice to discontinue a form of therapy which in his medical judgment is useless . . . . If the treating physicians have determined that continued use of a respirator is useless, then they may decide to discontinue it without fear of civil or criminal liability. By useless is meant that the continued use of the therapy cannot and does not improve the prognosis for recovery. (Horan, Euthanasia and Brain Death: Ethical and Legal Considerations (1978) 315 Annals N.Y.Acad. Sci. 363, 367, as quoted in President's Commission, supra, ch. 5, p. 191, fn. 50.)"
The KMS also posits that "[s]topping a resuscitation attempt is always a difficult decision, but it must remain the decision of the attending physician in the exercise of his or her professional medical judgment."
White and Dr. Naramore advised Mr. Willt's brother, Rudy, of the situation. Rudy informed them that Mr. Willt's left eye was glass, so the irregular eye condition was irrelevant. After a discussion with his minister and his niece, Rudy decided that Mr. Willt would not want to be maintained artificially.
At approximately 11:20 p.m., White noticed slight movement in Mr. Willt's arms and legs. The movements became stronger and Mr. Willt's fingers and toes wiggled. White remembered one of the staff commenting, "I think he's coming around." Dr. Naramore believed the movements were seizure activity. White, a registered nurse, testified that as he was suctioning Mr. Willt's throat, Willt's jaw clenched down on the suction tube and he made a gagging sound. White said he saw a "facial grimace."
Dr. Naramore listened to Mr. Willt's chest with a stethoscope while he was being ventilated. The ventilation was stopped to check Mr. Willt's reaction. White testified that it looked like Mr. Willt was trying to breathe but could not, and the pulse oximeter descended rapidly. Ventilation was resumed, and Dr. Naramore again diagnosed the movements as seizure activity.
For a second opinion, Dr. Naramore asked a nurse to call Dr. Ernest Cram, a local physician. At 12:15 a.m., Dr. Naramore administered a 5-milligram shot of Norcuron through the IV. This is what is called a "maintenance dose," to maintain the status quo.
Dr. Cram testified that Mr. Willt had no pulse, respiration, or reflexes. After the examination, Dr. Cram stated, "He's gone." Mr. Willt was receiving artificial ventilation and CPR when Dr. Cram arrived. Nurse Vohs remembered Dr. Cram saying, "It's kind of like beating a dead horse."
White told Dr. Cram about Mr. Willt's movements and that Dr. Naramore had just given him a shot of Norcuron. Dr. Cram replied he had not been informed of those facts and was not sure of Norcuron's effects but would "look it up." White indicated that Dr. Cram came back shortly and stated that he still concurred with Dr. Naramore.
At 12:24 a.m., mechanical ventilation was stopped, and the cardiac monitor showed only pacemaker activity. At 12:30 a.m., there was no spontaneous neurological activity, no respiratory activity, and no cardiac activity. Mr. Willt was pronounced dead at 12:32 a.m., with his brother Rudy in attendance.
During his interview with Special Agent Kendrick, Dr. Naramore stated the purpose of the second shot of Norcuron was to keep Mr. Willt from "bucking out" the breathing tube. Apparently, if Mr. Willt was alive this would have been the correct procedure. If he was dead, it obviously would not have made any difference one way or the other. Dr. Naramore told Kendrick it did not make sense for him to do everything medically possible for 3 hours to save Mr. Willt's life just so he could kill him.
Before we turn to the substantial expert medical evidence presented by the State and Dr. Naramore, we should first review the critical issues of law that are controlling in this case.
The trial court correctly instructed the jury as to the general burden of proof in criminal cases in Instruction No. 6:
"The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.
"The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims made by the State, you must find the defendant not guilty; if you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty."
On the charges for which Dr. Naramore was convicted, the court further correctly instructed the jury on the elements of murder in the second degree and attempted murder in the first degree.
Instruction No. 13:
"If you cannot agree that the defendant is guilty of murder in the first degree, you should then consider the lesser included offense of murder in the second degree.
"To establish this charge each of the following claims must be proved:
1. That the defendant intentionally killed Chris Wilt;
2. That such killing was done maliciously; and
3. That this act was done on or about the 5th day of August, 1992, in Cheyenne County, Kansas."
Instruction No. 15:
"The defendant is charged with the crime of an attempt to commit murder in the first degree. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
1. That the defendant performed an act toward the commission of the crime of murder in the first degree.
2. That the defendant did so with the intent to commit the crime of murder in the first degree.
3. That the defendant failed to complete commission of the crime of murder in the first degree; and
4. That this act occurred on or about the 2nd day of August, 1992, in Cheyenne County, Kansas.
The elements of murder in the first degree are:
1. That the defendant attempted to intentionally kill Ruth Leach;
2. That such attempted killing was done maliciously;
3. That it was done deliberately and with premeditation."
The court also provided other appropriate instructions defining certain key words. Instruction No. 17:
"'Maliciously' means willfully doing a wrongful act without just cause or excuse.
"'Deliberately and with premeditation' means to have thought over the matter beforehand.
"'Willfully' means conduct that is puposeful and intentional and not accidental.
"'Intentionally' means conduct that is purposeful and willful and not accidental."
We note the jury was given no instructions (none were requested) on the very difficult issues of palliative care and what are appropriate resuscitation attempts. These are not issues that are generally within the knowledge of a layperson. Appropriate instructions would be necessary if they are issues, to give guidance to the jury in deliberations.
Requiring proof beyond a reasonable doubt for the imposition of criminal guilt is, of course, one of the most important principles of Anglo-American jurisprudence. It is a standard that is higher than a mere preponderance of the evidence, which is required to find a physician has committed malpractice. It is also a higher standard than that required to support actions regarding the restriction or revocation of the license to practice medicine in Kansas. See K.S.A. 77-621; Vakas v. Kansas Bd. of Healing Arts, 248 Kan. 589, 594, 808 P.2d 1355 (1991).
Even though proof beyond a reasonable doubt is a basic principle in the adjudication of criminal charges, it is one that is not completely susceptible to precise definition. We depend a lot on jurors knowing it when they see it. Our standard for reversal of a jury finding of criminal guilt on the basis of insufficient evidence 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 the defendant guilty beyond a reasonable doubt. State v. Claiborne, 262 Kan. 416, Syl. ¶ 5, 940 P.2d 27 (1997).
With such a strict standard of review it is not surprising that so few verdicts are reversed on this ground. Reversals are few, but not unheard of. We recognize that juries sometimes make serious errors and return verdicts of guilty on evidence which cannot reasonably support such a finding. This can occur if a jury ignores a fully supported, reasonable explanation for the defendant's actions which negates criminal guilt.
In the very first criminal case reviewed by the Kansas Supreme Court, Horne v. State of Kansas, 1 Kan. 42 (1862), the court stated in Syl. ¶ 2:
"A few facts, or a multitude of facts proven, all consistent with the supposition of guilt, are not enough to warrant a verdict of guilty. In order to convict on circumstantial evidence, not only the circumstances must all concur to show that the prisoner committed the crime, but they must all be inconsistent with any other rational conclusion."
A slightly different formulation was set out in State v. Grebe, 17 Kan. 458, 461 (1877), where it was pointed out that in cases of circumstantial evidence the circumstances must be "such as to exclude every other reasonable hypothesis than that of defendant's guilt."
In State v. Jolly, 196 Kan. 56, 61, 410 P.2d 267 (1966), the court approved a portion of the jury instructions which read: "'Crime[s] may be proved by circumstantial evidence as well as by direct testimony of eye-witnesses, but the facts and circumstances in evidence must not only be consistent with each other and with the guilt of the defendant, but they must be inconsistent with any reasonable theory of defendant's innocence.'" See, 29A Am. Jur. 2d, Evidence § 1467 nn. 6-15; and citations noted in West's Kansas Digest 2d, Criminal Law § 552(3) (1994).
Our Supreme Court has qualified these statements somewhat in later decisions. In State v. Morton, 230 Kan. 525, 530, 638 P.2d 928 (1982), the court states: "The theory that the prosecution is under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt has been rejected. [Citations omitted.]" See West's Kansas Digest 2d, Criminal Law § 552(3). Factually, these cases seem to focus on whether there was a reasonable and substantial alternative explanation for the facts on which the convictions were based, not just a mere hypothetical possibility of innocence or guilt of a lesser charge.
The State's case must rebut reasonable theories of innocence that are supported by substantial competent evidence. But the State need not pursue every chimera that can be called forth by the fertile imagination of the defense.
We will now turn to the impressive array of expert medical testimony presented by the State and the defense in this case.
Dr. Kris Sperry testified during the State's case in chief. Dr. Sperry performed a forensic autopsy on Mr. Willt on November 16, 1992, after the body had been exhumed. He testified Mr. Willt had a pacemaker and severe narrowing of the primary artery to his heart. Dr. Sperry ruled out heart disease as the cause of death. He also stated that a person must live for at least 6 hours after suffering a stroke in order for there to be any evidence in the brain of the stroke. Because of that and the condition of Mr. Willt's brain at the time of the autopsy, apparently due