IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 82,007
STATE OF KANSAS,
Appellee,
v.
GREGORY A. STRUZIK,
Appellant.
SYLLABUS BY THE COURT
1. When the sufficiency of the 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 the defendant guilty beyond a reasonable doubt.
2. It is necessary that the facts upon which an expert relies for his or her opinion should afford a reasonably accurate basis for his or her conclusions as distinguished from mere guess or conjecture. Expert witnesses should confine their opinions to relevant matters which are certain or probable, not those which are merely possible.
3. Although an expert may give an opinion on an ultimate issue as provided in K.S.A. 60-456(d), such witness may do so only insofar as the witness aids the jury in the interpretation of technical facts or assists the jury in understanding the material in evidence. An expert witness may not pass on the weight or credibility of evidence, for those matters are strictly within the province of the jury.
4. No party may assign as error the giving or failure to give an instruction unless he or she objects before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction or the failure to give the instruction is clearly erroneous. K.S.A. 22-3414.
5. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.
6. Although this court has for 123 years stated an Allen-type instruction should not be given in criminal cases--it has upheld some convictions where Allen-type instructions are given even after deliberations have begun where the evidence is overwhelming and the appellate court is firmly convinced that the sua sponte instruction by the judge, though improper, created no real possibility the jury would have rendered a different verdict if the instruction had not been given.
7. The rules regarding the district court's duty to instruct on lesser included offenses are discussed and applied.
8. Cumulative trial errors, when considered collectively, may be so great as to require reversal of a defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.
Appeal from Ford district court; VAN Z. HAMPTON, judge. Opinion filed April 21, 2000. Affirmed.
Janine Cox, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.
Kristie A. Coup, assistant county attorney, argued the cause, and E. Leigh Hood, county attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
LOCKETT, J.: Defendant appeals a conviction of first-degree felony murder based on felony abuse of a child, claiming (1) the evidence was insufficient to sustain the conviction; (2) the expert witnesses invaded the province of the jury; (3) the trial court improperly instructed the jury regarding deadlock; (4) the trial court failed to instruct on lesser included offenses; and (5) the cumulative trial errors require reversal of the conviction.
Troy Manis, age 3, died on June 28, 1996. The cause of his death was blunt trauma to the head.
The child's mother, Debra Manis, left Troy in the care of a friend, Gregory Struzik, at approximately 11:30 a.m. on June 26, 1996. Struzik stated to investigating officers that while Troy was in his care, the child was normal and active until approximately 6:30 p.m. when Troy fell down several stairs. After Troy's fall, he put Troy down for a nap in the bedroom. Debra returned to Struzik's home at approximately 7 p.m. Struzik was asleep on the couch. Debra checked Troy and then lay down on the couch to nap with Struzik. Debra awoke around 9 p.m. and left the house to get a carry-out dinner. When Debra returned approximately 30 minutes later, she and Struzik ate. Troy continued to sleep. After dinner, Struzik brought Troy into the living room to sleep on the couch for the night. Troy was unconscious and began to have posturing or seizure activity. Troy was taken to the hospital in Dodge City and shortly thereafter was transported by air to Wesley Medical Center in Wichita.
When admitted to Wesley Medical Center, Troy was comatose and unresponsive except for posturing activity, did not respond to light, and had a fixed gaze, asymmetrical pupils, and multiple bruises about his body. There was a hemorrhage behind his right eye and no upper brain functioning. A CT-scan indicated bleeding on the surface of Troy's brain and significant brain swelling. By the second day of hospitalization, Troy showed signs of brain death. On June 28, 1996, Troy was pronounced dead.
After an investigation, Struzik was charged in Ford County District Court with first-degree felony murder. The complaint alleged that Struzik caused the death of Troy during the commission of an inherently dangerous felony, i.e., abuse of a child. Struzik was tried to a jury on December 8-13, 1997.
At trial, Struzik denied hitting or shaking Troy. His defense was that either Troy suffered injuries which resulted in delayed brain swelling prior to Debra leaving Troy in his care or that the accidental fall down the stairs while Struzik was caring for Troy caused the brain swelling and eventual death. The jury found Struzik guilty. The district court sentenced Struzik to life imprisonment with parole eligibility after 15 years.
SUFFICIENCY OF THE EVIDENCE
Struzik first contends that because there was evidence in which the jury could have concluded that the injuries which resulted in Troy's death had been inflicted prior to Debra leaving Troy in Struzik's care, the evidence was insufficient to sustain the conviction. When the sufficiency of the 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 the defendant guilty beyond a reasonable doubt. State v. Johnson, 266 Kan. 322, 326, 970 P.2d 990 (1998). A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Smith, 245 Kan. 381, 393, 781 P.2d 666 (1989).
There was evidence that prior to the date of the fatal injuries, Debra had hit, kicked, and verbally abused Troy. However, Debra was not a suspect for causing her son's death because she did not have access to Troy when, according to the medical experts, the fatal injuries were inflicted.
Struzik testified that he was the sole caretaker of Troy during the hours immediately preceding the head trauma that resulted in Troy's death. Struzik testified that while Troy was in his care, he and Troy played video games, tickling games, chased around the house, played in the backyard, went for a walk, and played on the swings at a neighborhood park. Struzik stated that after playing in the park, they returned home and Troy accidently fell down the stairs while Struzik was in the bathroom. Struzik testified that although Troy appeared to be less rambunctious than normal, Troy did not cry or fuss more than usual.
For support of his theory, Struzik points out that at trial one of the State's experts, Dr. Jill Gould, testified that Troy's fatal injuries could have been sustained up to 72 hours prior to the onset of symptoms. Struzik argues that since the basis for conviction was his sole access to Troy in the hours immediately preceding the onset of trauma symptoms, the possibility of an earlier act from which Troy could have sustained the fatal head trauma and the possibility of delayed brain swelling creates reasonable doubt as to his guilt.
Dr. Gould, the forensic pathologist who performed Troy's autopsy, testified that Troy died as a result of subdural hematomas over the entire surface of his brain and brain swelling. Dr. Gould opined that due to the severity of Troy's injuries, Troy would have been symptomatic immediately after receiving the injuries. When questioned about the possibility of delayed brain swelling, Dr. Gould stated that although in some cases brain swelling may be delayed for 12 to 72 hours after an injury, it was her medical opinion that Troy's injury did not occur within that time frame because of Struzik's account of the child's activities after the alleged fall. Struzik had informed the investigators that Troy had been engaged in normal play prior to the onset of the symptoms which lead to his hospitalization. Dr. Gould stated that a period of normal functioning as claimed by the defendant was not consistent with the character and extent of Troy's brain injury.
Struzik also argues there exists a possibility that Debra inflicted the fatal injuries on Troy between 7 and 9 p.m. Struzik asserts that while he slept on the couch, Debra could have entered the bedroom where Troy was sleeping and inflicted the nine multidirectional blows to his head and various other injuries.
The jury could have believed that while Struzik slept on the couch, Debra entered the bedroom where Troy was sleeping and inflicted nine multidirectional blows to his head and various other injuries, but it did not. The function of weighing the evidence and passing on credibility belongs to the jury, not to us. A verdict secured on substantial competent evidence will not be disturbed on appellate review. State v. Borthwick, 255 Kan. 899, 904-05, 880 P.2d 1261 (1994) (quoting State v. Cooper, 252 Kan. 340, 347, 845 P.2d 631 [1993]). The expert evidence was sufficient for a rational factfinder to conclude that Struzik inflicted Troy's fatal injuries prior to putting Troy in bed for a nap.
EXPERT TESTIMONY
It is necessary that the facts upon which an expert relies for his or her opinion should afford a reasonably accurate basis for his or her conclusions as distinguished from mere guess or conjecture. Expert witnesses are to confine their opinions to relevant matters which are certain or probable, not those which are merely possible. Nunez v. Wilson, 211 Kan. 443, 445-46, 507 P.2d 329 (1973).
Although an expert may give an opinion on an ultimate issue as provided in K.S.A. 60-456(d), such witness may do so only insofar as the witness aids the jury in the interpretation of technical facts or assists the jury in understanding the material in evidence. An expert witness may not pass on the weight or credibility of evidence, for those matters are strictly within the province of the jury. State v. Mullins, 267 Kan. 84, 94, 977 P.2d 931 (1999). Struzik contends that the medical expert witnesses acted as advocates for the State. He complains that the experts refused to consider the possibility that Troy's injuries were sustained in a manner other than by abuse.
Testimony of Dr. Lindall Smith
Struzik asserts that Dr. Lindall Smith, Troy's pediatric critical care physician at Wesley Hospital, refused to consider the possibility that Troy's injuries occurred in a manner other than by abuse. He asserts that Dr. Smith's testimony was such that a reasonable juror would conclude that Dr. Smith believed that Struzik was the perpetrator of the abuse that resulted in Troy's injuries and eventual death.
Dr. Smith testified that it was his duty as a physician to identify cases of possible child abuse to be reported to the authorities. He explained the criteria for determining whether to report possible child abuse is the severity of the child's injury and the explanation by the caretaker's statement of how the injury occurred. In Troy's case, Dr. Smith and the other doctors responsible for Troy's care after hospitalization were to determine if the explanation for Troy's injuries, a fall down the stairs, was consistent with the severity of the child's injuries. Dr. Smith explained that a child's fall down the stairs generally results in minor injuries such as broken bones or broken teeth and bruises on high impact areas. It was the doctor's opinion that in this case the fatal brain trauma was not an injury consistent with a fall down the stairs.
Dr. Smith stated that most children with injuries similar to Troy's were unrestrained passenger injuries suffered by a child in motor vehicle accidents or injuries inflicted as a result of child abuse. Dr. Smith observed that Troy's injuries were not consistent with a delayed brain swelling reaction and noted that most children with the type of head injury Troy sustained would, within minutes of the injury, lose consciousness. Children who remain conscious after such injury are dysfunctional--irritable, inconsolable, and not able to eat, drink, walk, or talk.
Struzik is incorrect that Dr. Smith would entertain no possibility other than that Troy's injuries occurred in a manner other than by abuse. Dr. Smith testified that he had treated children with similar injuries resulting in motor vehicle accidents. The essence of Struzik's complaint is that Dr. Smith would not testify that Troy's injuries were consistent with a fall down the stairs or agree that Troy would have been able to sustain a period of normal activity after the injury that resulted in his death was inflicted.
In State v. Smallwood, 264 Kan. 69, Syl. ¶ 4, 955 P.2d 1209 (1998), this court stated that under K.S.A. 60-456(d) expert testimony in the form of an opinion is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of fact.
Here, Dr. Smith's testimony contradicts Struzik's theory of defense that Troy suffered from delayed brain swelling or that he died as a result of an accidental fall down the stairs. The defining point, however, is that Dr. Smith's testimony was based on medical evidence involving the character and severity of Troy's injuries, not Dr. Smith's opinion of Struzik's veracity or credibility. Therefore, Dr. Smith's testimony did not extend beyond the limits of acceptable expert medical testimony.
Testimony of Dr. Kathryn Melhorn
Dr. Kathryn Melhorn, a pediatrician and a member of the child protection team that reviewed Troy's death, also testified as an expert at trial. Like Dr. Smith, Dr. Melhorn stated that Troy's injuries were not consistent with a fall down the stairs. Struzik asserts that Dr. Melhorn testified that (1) Troy's injuries were caused by a person in rage; (2) there was "no evidence" that Troy had any injuries prior to noon on June 26, 1996 to contribute to the fall down the stairs; and (3) there was "no other explanation for this child's injuries."
Rage Remark
Dr. Melhorn testified that Troy had suffered nine multidirectional traumas to his head. She stated to the jury that blunt trauma to the head is inconsistent with ordinary bumps and accidental collisions with furniture and stairs. She based her opinion on her experience and on a study of autopsy findings where children who had died of accidental injuries were compared with autopsy findings of children who died from suspected child abuse caused injuries. Dr. Melhorn was asked by the prosecutor what it would take for someone to intentionally inflict the nine multidirectional traumas Troy had suffered. Dr. Melhorn replied, "This takes a person in a rage." The defense attorney objected. The judge stated, "The speculation as to what emotional content might be in a person's mind, I think, is too far. So you can testify as to what you think may have caused it, but not to what their emotional state may be." Dr. Melhorn confined her response to the type of blows Troy's injuries indicated, i.e., repetitive blunt trauma with forceful back and forth shaking.
Although Dr. Melhorn's rage remark was outside the scope of expert medical testimony, it was objected to and immediately corrected and does not form the basis for trial error.
No Evidence of Prior Contributing Injuries
Dr. Melhorn was also asked on direct examination if there was other medical evidence that Troy had an injury prior to noon on June 26, 1996, that could have contributed to the fall down the stairs at 6:30 the same evening. Dr. Melhorn responded that there was no such medical evidence.
Dr. Melhorn's response did not comment on Struzik's veracity and did not express an opinion about Struzik's culpability. Dr. Melhorn's response was based on the medical evidence as to Troy's injuries and did not invade the province of the jury.
No Other Explanation for Injuries
Finally, Dr. Melhorn's remark that there was "no other explanation for this child's injuries" occurred during defense cross-examination and referred to the "massive severe trauma" as the cause of a "very rapid death." Dr. Melhorn described the type of injury that results in massive severe head trauma such as Troy's, stating:
"The subdural hematoma does not cause the death, it's a marker of the pattern of the injury that occurred to this child. The rapid acceleration, deceleration injury that happens to this kid's head when it's going around and back and forth and around, and that brain is rattling around inside of the head, the vessels get sheered and the blood collects. That's a marker of that type of injury. What actually caused the death is the brain tissue being torn apart, and the edema, the swelling that happens that causes the brain to basically choke itself off, and that happens very acutely, making the child symptomatic from the time of the injury until the child dies."
The defense attorney then posited that since Dr. Melhorn had not seen the stairs in question, her opinion about what caused the trauma was merely speculative. Dr. Melhorn responded, "I don't know exactly what happened and who did it, but there is no other explanation for this child's injuries." In other words, Dr. Melhorn's opinion was confined to a description of the mechanism necessary to produce an injury such as Troy sustained. The fact that the mechanism described by Melhorn was inconsistent with Struzik's theory that Troy's injury resulted from a fall on the stairs was a result of the medical evidence, not her belief in Struzik's guilt or innocence. Her expert opinion did not embrace the ultimate issue to be decided by the trier of fact, i.e., whether the defendant's actions caused the death of the child.
ALLEN-TYPE INSTRUCTION
Struzik contends that the judge erred by sua sponte giving the jury a deadlock instruction which set time constraints on its deliberations. The instruction Struzik complains of was an "Allen-type" instruction, given to encourage the jury to work together to reach a verdict. See Allen v. United States, 164 U.S. 492, 501-02, 41 L. Ed. 528, 17 S. Ct. 154 (1896), where the United States Supreme Court in discussing the giving of a deadlocked jury instruction stated:
"The seventeenth and eighteenth assignments were taken to instructions given to the jury after the main charge was delivered, and when the jury had returned to the court, apparently for further instructions. These instructions were quite lengthy and were, in substance, that in a large proportion of cases absolute certainty could not be expected; that, although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other's arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority. These instructions were taken literally from a charge in a criminal case which was approved of by the Supreme Court of Massachusetts in Commonwealth v. Tuey, 8 Cush. 1, and by the Supreme Court of Connecticut in State v. Smith, 49 Connecticut 376, 386.
"While, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury-room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury-room with a blind determination that the verdict shall represent his opinion of the case at that moment; or, that he should close his ears to the arguments of men who are equally honest and intelligent as himself. There was no error in these instructions." 164 U.S. at 501-02.
After being instructed to determine Struzik's guilt, the jury during deliberations requested a readback of a portion of the testimony. Before the readback, the judge asked the jury who it had selected as the presiding juror. The judge then asked the presiding juror whether she had any reasonable expectation that continued deliberation would result in a verdict. The presiding juror answered, "No." The judge then asked, "Would you believe that a night's rest would help [and] perhaps allow you to come back with refreshed minds?" Again, the juror responded, "No." The court then stated:
"It is understandable that 12 persons may have differing opinions as to either the significance of testimony and evidence or whether a cumulation, or rather, the evidence in total leads to one conclusion as opposed to another. It cannot be expected that your differences could be totally removed. I want to inquire whether if you go back and have additional deliberations whether the differences are so great that they simply cannot be addressed, or whether there is something that you believe additional deliberations may address eventually?"
The presiding juror responded, "I don't think so." The judge then asked, "Do you think that your differences are so great that you cannot address them at all [and] cannot resolve them." The juror again answered, "I don't think so." The judge asked, "Have the differences been repeated over and over, and repeated efforts to come to a resolution of your differences?" The presiding juror answered, "Yes." The judge asked the juror if a night's sleep would help:
"I know at this time of the day [that] fatigue may enter into the inability to reach agreement. I will ask the jury as a whole, do any of you believe that a night's rest would assist you in deliberating further in this case? Any of you just feel like you're so tired you want to quit for awhile?"
Various jurors answered, "I do." The judge then asked:
"Let me ask you for a show of hands how many of you believe it would be worth a further try, if you were to go home, get some rest and come back either tomorrow, or Monday. . . . There are many reasons why the Court prefers an additional effort, and that is because of the great effort that is required to try a case. I realize it just gets tiring after a full week of trial. I'm going to request that you come back tomorrow, give it a rest. Let's come back tomorrow at 9 o'clock in the morning. I will give you a reasonable time to address your differences then, and if you cannot reach a verdict, then there is only one thing we can do and that is terminate the trial. But, I want you to come back and give it a reasonable effort and then we can inquire after a reasonable amount of time tomorrow morning."
The following morning, the judge admonished the jury:
"Members of the jury, you are not required to abandon your reasoning or the conclusions which that reasoning produces unless the reasoning or conclusions [are] not founded upon the evidence and the law which you received. All that we can ask of you is a good faith effort and an attempt to work out the differences in the conclusions that you may have reached individually in order to obtain a collective verdict. I can only ask for that good faith effort. I cannot ask for any of you to suffer abuse, and I cannot ask for any of you to abandon what you believe is a well reasoned conclusion. I'm going to ask you to make one more good faith effort at deliberation. It is 10 after nine. I'm going to ask that you enter deliberation and after a good faith effort, if it appears conclusively that you cannot reach a verdict unanimously, then I want you to report that to me. You may report that before an hour, if you are willing to work for an hour, I'll not require you to work beyond an hour before you report to me. So, I want you to report either that you determine that you cannot reach a verdict after you've made a good faith effort, or in one hour, whichever is earlier. So, I will release you now to the bailiff's custody and ask that you reconvene your deliberation."
After the jury retired, the prosecutor stated:
"Judge, are you going to give the Allen instruction? The case law indicates that you can still give it since the jury hasn't come back and said they are deadlocked. What happened was we misread that [they] may be deadlock[ed]. I think that may be an appropriate instruction to write and send in."
The judge replied, "That was the handle of the hammer." The prosecutor then asked if the defense had any objection to the judge's instruction. The defense counsel answered, "Not the way he gave it." An hour later, the jury returned with a verdict of guilty.
No party may assign as error the giving or failure to give an instruction unless he or she objects before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction or the failure to give the instruction is clearly erroneous. K.S.A. 22-3414. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).
Because Struzik did not object to the judge's sua sponte instruction, the instruction will not constitute reversible error unless it was clearly erroneous. Struzik argues that the instruction was clearly erroneous because (1) the instruction was not given at the close of evidence with the other instructions, therefore, the jury gave undue weight to the court's instruction; (2) the jury did not state it was deadlocked but revealed a problem with deliberations after the judge questioned the jury about deadlock; (3) the evidence was not overwhelming; and (4) the court coerced the jury and deprived him of a fair trial by informing the jury it had one hour to reach a verdict, and if it failed to reach a verdict within that time limitation, the court would declare a mistrial.
Neither the judge, the prosecutor, nor the defense attorney noted that prior to the United States Supreme Court 1896 decision in Allen, this court had reached the opposite conclusion in State v. Bybee, 17 Kan. 462 (1877), where the defendant took issue with a deadlock instruction. After the case had been submitted to the jury and after the jury had deliberated upon its verdict several hours, it was brought into court and asked by the court if it had agreed upon a verdict. The jury answered in the negative, and the court addressed them as follows:
"'Gentlemen of the Jury: I am led to infer from the character of your communications to me that you think it impossible to agree, and desire to be discharged. You have heard the evidence, and the case has been ably argued by counsel, and the court has afforded every facility to enable you to understand the case. The trial has been very expensive to the public, and has occupied a great deal of time and attention, and it is not possible that it will ever be more clearly presented than it has been in this its first presentation to a jury. I do not desire to try the case again. It is often considered a reflection on the court, and upon you, as jurors, should you not agree. You have been impanneled to come to an agreement, not to wrangle over pet ideas and theories. It is the duty of the jury to agree if possible. The theory of an agreement by the jury is, that twelve minds are brought as nearly together as it is possible for twelve minds to come. To bring about this result, it is necessary for the individual juror (in matters of detail, and on questions of minor importance,) to defer to some extent to his fellow jurors, and to surrender some of his own ideas and opinions to what seems to be an overwhelming sentiment against him. None of us are infallible. And in your deliberations you should realize this, and mutually depend upon each other. And in the consideration of the details of the case, you should meet the questions as they arise, in a spirit of mutual concession and forbearance, and thus gradually as you proceed step by step to arrive at a conclusion to which you can all assent, although if left to yourselves you would probably come to a different conclusion. You should bring your minds together like the mixing of different ingredients by an apothecary, and ascertain what is the product. In a case of this importance I feel it to be my duty to afford you the most ample opportunity to agree. It is not my purpose to force you to a verdict not in accordance with your convictions. My experience with juries has taught me that they often agre