IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 90,613
STATE OF KANSAS,
Appellee,
v.
ABEL TORRES,
Appellant.
SYLLABUS BY THE COURT
1. A defendant's Sixth Amendment right of confrontation is not violated when the State places into evidence statements he or she gave to law enforcement officials.
2. A defendant has no constitutional right to have his or her statements given to law enforcement officials recorded.
3. The threshold issue in determining whether Miranda warnings are required is whether a person is in custody when inculpatory statements are made; this determination is made on a case-by-case basis according to the facts.
4. An objective standard is used to judge whether an interrogation is custodial. The proper analysis is how a reasonable person in the suspect's position would have understood the situation.
5. To determine whether a person was in custody, an appellate court reviews the facts found by a district court under a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by the district court by a de novo standard.
6. Failures to request lesser-included-offense jury instructions in felony-murder cases are appropriately analyzed under the clearly erroneous standard contained in K.S.A. 2004 Supp. 22-3414(3).
7. Simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority or in the face of contrary authority, is akin to failing to brief an issue. Where the appellant fails to brief an issue, that issue is waived or abandoned.
8. Under the facts of the case, the district court did nor err in allowing medical illustrations to be used as demonstrative evidence by a medical witness.
Appeal from Wichita district court; THOMAS F. RICHARDSON, judge. Opinion filed October 21, 2005. Affirmed.
Shawn E. Minihan, assistant appellate defender, argued the cause and was on the brief for appellant.
Melissa G. Johnson, special assistant county attorney, argued the cause, and Wade M. Dixon, special assistant county attorney, and Phill Kline, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
NUSS, J.: Abel Torres appeals his conviction of felony murder of his 21-month-old daughter, based on the underlying crime of felony abuse of a child. Our jurisdiction is under K.S.A. 22-3601(b)(1) (maximum sentence of life imprisonment imposed).
Torres presents multiple issues on appeal. Those issues, and our accompanying holdings, are as follows:
- Was there sufficient evidence to convict Torres of felony murder? Yes.
- Was Torres' Sixth Amendment right to confront the witnesses against him violated when the State placed into evidence statements he gave to law enforcement officials? No.
- Were Torres' constitutional rights violated because:
- The State failed to record his two interviews by law enforcement officials? No.
- The district court failed to instruct the jury on the state's failure to record the interviews? No.
- Did the district court err by allowing evidence of Torres' statements to law enforcement officials? No.
- Did the district court err by failing to give jury instructions for the lesser included offenses of reckless second-degree murder and reckless involuntary manslaughter? No.
- Did the district court err in admitting certain autopsy photographs? No.
- Did the district court err in denying a motion for mistrial based upon allegations of prosecutorial misconduct for witness tampering? No.
- Did the district court err in allowing the jury to see demonstrative illustrations on "shaken impact" and "shaken baby" syndrome? No.
- Did the district court err in allowing the State to call six expert witnesses? No.
- Did the district court err by failing to exclude certain testimony of expert witness Dr. Mary Dudley? No.
- Did the cumulative effect of any errors deprive Torres of his right to a fair trial? No.
Accordingly, we affirm the district court.
FACTS
Tianna Rodriguez was almost 21 months old at the time of her death on June 27, 2001. She lived with her mother, Susan Rodriguez, and her father, Abel Torres, in Leoti.
Tianna had been sick with a fever and vomiting on Sunday, June 24, but her condition appeared to improve the next day. On Monday, June 25, Tianna and her parents visited her grandparents and returned home. Later that day, Torres drove Susan to work and Tianna rode with them.
That evening, Torres called his mother, Teresa Torres, and told her that Tianna was playing with her dolls in the front room and waiting for supper. A few seconds later, Torres called Teresa again and said, "[M]other, come quick, she fell and she's unconscious." Teresa drove to the house and noticed that Tianna's clothing was wet. Teresa ran her to the bathroom and put water on her face, but there was no response, so Teresa called the hospital.
Emergency medical technician (EMT) personnel arrived at the house and found Tianna unresponsive and her breathing shallow. Tianna was taken by ambulance to the Wichita County Hospital in Leoti.
While Susan was at work, she received a phone call to go to the emergency room because something was wrong with Tianna. Susan arrived as Tianna was being brought in. While the medical personnel were trying to revive Tianna, Susan asked Torres what happened. Torres said that Tianna fell off a chair.
At the hospital Dr. David Thetford, a Leoti physician, observed that every couple of minutes Tianna was having what appeared to be seizures. She also had a slight temperature and an elevated white blood cell count. Tianna's condition did not change at the hospital, and she remained unresponsive. Concerned that she might have an infection, Dr. Thetford arranged transfer to St. Catherine's Hospital in Garden City for pediatric evaluation and further treatment. Dr. Thetford did not believe that Tianna's condition was consistent with the report that she had fallen off of a chair.
Tianna was taken by ambulance to Garden City for a CAT scan. She remained totally unresponsive and her eyes were dilated, but she was breathing fine and there were no more seizures. Tianna arrived at St. Catherine's Hospital at 9 p.m.
Dr. Soen B. Liong is a radiologist at St. Catherine's Hospital who consulted on Tianna. According to him, CAT scans of Tianna's brain and spine showed swelling, fresh blood up to 2 days old, as well as a small amount of old blood up to a week old. He diagnosed an intentional injury, i.e., shaken baby syndrome.
Dr. James Zauche is a pediatrician who treated Tianna at St. Catherine's. According to him, Tianna had abnormal findings on the neurological exam, her eye exam was not normal, and she was showing abnormal movements consistent with a brain injury. Dr. Zauche's first diagnosis was that Tianna had a hemorrhage in her brain, which necessitated her transfer to Wichita. His second diagnosis, based on Dr. Liong's findings, was that the injuries were consistent with shaken baby syndrome. Dr. Zauche did not believe that the injuries were consistent with falling off a chair.
Tianna was then flown to Wesley Medical Center in Wichita and entered the intensive care unit. Dr. Lindall Smith made contact with her around 2 a.m. on Tuesday, June 26. A CAT scan was taken approximately 3 hours after the one in Garden City. During this interval, brain swelling had increased significantly. According to Dr. Smith, Tianna responded only to painful stimuli, and her response was to posture, that is, to stiffen her arms or legs. Posturing is a very minimal response that Dr. Smith sometimes sees with severe head injuries. Tianna also had bilateral retinal hemorrhages and high levels of intracranial pressure.
During this time, Wesley personnel obtained Tianna's medical history from her parents. On June 24, she had a fever and vomiting and was not her usual active self. By the next day, however, she was back to normal. Tianna and Torres had supper together and were sitting in a rocking chair. Torres got up out of the chair to leave the room leaving Tianna in the chair. Torres heard her fall, returned to the room, and found Tianna face down on the floor fairly unresponsive.
According to the medical history provided, Tianna also had fallen out of a grocery cart onto a concrete floor in May or April of 2001 but did not have any loss of consciousness from that fall. There was also a suspected fall from her bed several weeks before the June 2001 fall from her chair. She was thought to have been jumping on her bed and had some kind of mark on her face. Tianna was taken to the local ER and evaluated, but she was not thought to have any loss of consciousness or any significant findings of neurological impairment.
On Tuesday, June 26, the day Tianna arrived in Wesley, Susan again asked Torres what had happened to Tianna the previous day. Torres again replied that she had fallen off the chair. Susan told Torres she had been informed of his shaking Tianna. He then admitted to shaking her but claimed he had not done so on purpose. Susan had another telephone conversation with Torres early in the morning on Wednesday, June 27. At this time, he told her that Tianna had simply fallen and that he had not done anything.
After Torres returned to Leoti, he and his mother went to the hospital there to talk with Dr. Thetford. Dr. Thetford told them that Torres needed to talk to the sheriff and that everybody who had been around Tianna was a suspect.
Karen King is a social worker at Wesley Medical Center assigned to cover possible child abuse cases. She had several conversations with Susan throughout the day on June 27. King was present while Susan phoned Torres from King's office. According to King, Susan asked Torres, "Did you shake her?" Susan then said, "Why didn't you tell me? We could have gotten her help sooner." Susan was upset and was crying and told Torres, "I don't hate you. I will always love you." King believed that Torres was admitting that he had shaken the child. After Susan finished the call, she confirmed to King that Torres said he had shaken Tianna three times.
Later that day, on June 27, after a series of tests, the doctors determined that Tianna was brain dead and removed her from support at 12:55 p.m.
On the day of Tianna's death Kelly Robbins, a special agent for the KBI who was assigned to this case, and Wichita County Sheriff Wayne Collins interviewed Torres from 8:30 to 10:30 a.m. in Leoti at the sheriff's department. Robbins testified:
"He [Torres] said that they had slept late on Sunday [June 24], gotten up around 10 to 11 a.m. and they had breakfast. Around 1:30 p.m. Tianna was fussy and he took her into his and Susan's bedroom. While in the bedroom Tianna was hitting and kicking and biting him, trying to get away from him. He – to try and keep her from doing this and to calm her down, he said that he would grab her by her hands and pull her real hard towards him. Then he would put his arms around her, trying to keep her from the kicking and hitting until she calmed down. He said then he would – once she calmed down, he would sit her next to him or lay her down next to him and he would try to be real nice to her like trying to get her to give him a hug or give her babies a hug. Then all of a sudden she would snap again, start the crying and fighting him, trying to get away from him, so he would grab her hands again, pull her real hard towards him. And then he would put his arms around her and try to control her again. He said that happened about three times during that period. . . . He said that he pulled her hard enough by her hands that her head would bounce and that he felt that it could have hurt her, it was that hard. Also, when he was putting his arms around her to try and control her, he said that he squeezed her hard enough that he felt that it could have broken her rib."
According to Robbins, Torres said that the last time Torres pulled and squeezed Tianna, she became hysterical and vomited shortly afterward. She continued to vomit. Torres and Susan gave her a cool bath to cool her off. During that time she acted really tired, her eyes would roll back in her head, and she was having a hard time staying awake. They called the hospital, received instructions on what to do, picked up medicine and papers from the hospital, and watched her throughout the evening. Tianna continued to vomit until midnight, when she was able to keep some food and liquid down.
Torres told Robbins that on Monday, June 25, they got up late and had breakfast. Tianna was still very weak and stumbling some when they went to his parents, but she was better than the day before. Susan went to work around 4 p.m., and Torres stayed home to watch Tianna.
According to Robbins:
"He [Torres] said he fed her spaghetti and meatballs that evening, and after she had eaten, he put her in the green swivel chair with her dolls or her babies, and then he had walked out of the room, and that's when he heard Tianna fall. When he came into the room, she was lying face down on the floor in front of the green swivel chair holding her head with her hands. . . . He said that he went over to her. She was not breathing real well. He gave her a few breaths with CPR. He had – and then she went unconscious. He panicked and called his mother."
Robbins testified that Torres said he did not intend to harm his daughter and that he forgot how fragile she was and how much bigger he was than she was. He said that he was just trying to make Tianna like him and that he just got too rough with her. Torres was allowed to leave the sheriff's department with his mother after the interview.
Robbins and Collins interviewed Torres at the sheriff's department again on July 6, 2001, 9 days after Tianna's death. They asked Torres to come in and visit with them because they had additional information from the autopsy. Robbins testified about what Torres told them on that date:
"He said that after Susan – they dropped Susan off for work [on June 25], him and Tianna drove around listening to music for about 15 minutes. When they got home, he did feed her spaghetti and meatballs. She was sitting on his lap. They were sitting on the green swivel chair, fed her a little bit, and she got sick and vomited all over him, and this made him very upset and mad.
"He said that he did not want to hurt Tianna by spanking her for what she did, so instead, he took her into his and Susan's bedroom and stood at the foot of the bed and threw Tianna very hard to the top of the bed. He was aiming for the pillows, but he missed the pillows, and the right side of her head hit the end table that's on the west side of the bed.
"He said that when she hit that end table, she screamed and held her head. He knew that from the scream he had hurt her pretty bad. He went over and picked her up and she was unconscious in his arms. He took her shirt off, was going to try and give her a cool bath again to try and revive her, and he realized she was in pretty bad shape.
"He panicked and said – called his mother who came over. She, again, did try to wipe her down and realized that that was not going to work and his mother called the hospital for an ambulance."
At the end of the interview, Robbins asked Torres if he wanted to have Robbins tell his mother and father what happened, or if Torres wanted to tell them. Torres spoke to his mother alone in the interview room but told Robbins he did not want to talk with his father. Torres told Robbins that he wanted to talk to his mother first and then he was going home to tell Susan what happened. He then left the sheriff's department.
That same day, July 6, Susan had a conversation with Torres outside her home. According to Susan, Torres also told her that he was feeding Tianna and she had thrown up on him. He took her to the bedroom, shook her, and tossed her onto the bed, but she bounced and her head hit a night stand. Susan's impression was that Torres had shaken Tianna violently.
Torres was arrested for Tianna's death 3 days later on July 9.
Several medical experts testified in detail at the trial, giving their medical opinions on what caused Tianna's injuries and resulting death. Highly summarized, the experts testified that Tianna suffered from severe brain injury, retinal hemorrhages, a linear skull fracture, swelling and flattening of the brain, fractures of her first, second, and eleventh ribs, injuries to her hands and feet, and various bruises.
Dr. Smith of Wesley Medical Center did not believe that Tianna could have been injured on Saturday (June 23) to cause this type of brain injury. He also testified that a child of Tianna's age and size could not sustain these injuries from falling off of a chair. He testified that the injuries could be consistent with someone violently shaking her, throwing her approximately 7 feet, and hitting her head on the side of an end table.
Dr. Debra Desilet-Dobbs, a pediatric radiologist, testified that the presence of both the subdural hematoma and the brain injury indicates very significant intense trauma. According to her, these injuries are seen in high-speed head-on vehicle collisions and, in the nonaccidental cases, with violent shaken impact. She testified that both injuries were caused by the same event. Dr. Desilet-Dobbs found that it was highly unlikely the injury occurred before Sunday, June 24.
Dr. Mary Dudley is an expert in shaken baby syndrome and shaken impact syndrome and performed the autopsy on Tianna on June 28, 2001. Her diagnosis of Tianna's death was shaken impact syndrome. According to Dr. Dudley, the injuries would not be consistent with falling from a chair and a previous falling out of a grocery cart. The injuries would, however, be consistent with shaking and throwing a child the length of a bed causing the child to strike her head on a night stand. Tianna's injuries indicate both a shaking and an impact.
Dr. Katherine Melhorn is a pediatrician and faculty member at the University of Kansas School of Medicine in Wichita. She was consulted as a physician on the care team when Tianna was admitted to the hospital. Dr. Melhorn observed bruises on the left side of her chest and retinal hemorrhages in both eyes but not a lot of obvious external injuries.
For the defense, Dr. Richard Gilmartin, a child neurologist, testified as an expert witness on head injuries resulting from child abuse. Dr. Gilmartin reviewed Tianna's outpatient records and testified that there was no evidence that Tianna was shaken. In Dr. Gilmartin's opinion, Tianna died of trauma, brain swelling, and uncal herniation. He testified that brain swelling that began on Monday, June 25, could not cause the brain sutures to stretch apart so quickly. While he believed that Tianna died as a result of severe child abuse, he did not believe that throwing a child 6 or 7 feet into a night stand would inflict an injury sufficient to cause death.
Torres called several other witnesses to testify about Tianna's activities and injuries prior to her death.
After the jury convicted Torres of first-degree felony murder based on the underlying crime of felony abuse of a child, he was sentenced to life in prison, with no eligibility of parole for 20 years.
ANALYSIS
Issue 1: Was there sufficient evidence to convict Torres of felony murder?
Torres first alleges insufficient evidence to support his conviction.
Our standard is well-known:
"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. Burhans, 277 Kan. 858, 871, 89 P.3d 629 (2004).
For a conviction of felony murder, the factfinder must find that the killing of a human being was committed "in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto." K.S.A. 21-3401. Abuse of a child is listed as an inherently dangerous felony in K.S.A. 21-3436(a)(7), whether or not it is so distinct from the homicide as not to be an ingredient of the homicide. Abuse of a child is defined as "intentionally torturing, cruelly beating, shaking which results in great bodily harm or inflicting cruel and inhuman corporal punishment upon any child under the age of 18 years." K.S.A. 21-3609.
Torres specifically argues the State failed to sufficiently show intentional, cruel, and inhuman bodily punishment and that his actions caused Tianna's injuries.
It was undisputed that Torres was the only person with Tianna when she became unconscious. Susan and Kelly Robbins both testified that Torres admitted to them that he shook the 21-month-old Tianna and threw her toward the bed but Tianna hit her head on a night stand. Dr. Liong and Dr. Zauche testified that the injury was an intentional injury, shaken baby syndrome, and that Tianna's injuries were not consistent with falling off a chair. Dr. Smith and Dr. Desilet-Dobbs gave opinions that Tianna's injury occurred shortly before she became unresponsive on June 25. Dr. Dudley testified that Tianna's injuries indicated both a shaking and an impact. Even Torres' own expert, Dr. Gilmartin, testified that though he felt there was no evidence Tianna was shaken, he believed that she died as a result of severe child abuse.
In viewing the evidence in the light most favorable to the prosecution, we conclude a rational factfinder could find beyond a reasonable doubt that Torres committed felony murder based on the underlying felony of abuse of a child.
Issue 2: Was Torres' Sixth Amendment right to confront the witnesses against him violated when the State placed into evidence statements he gave to law enforcement officials?
Torres complains that his Sixth Amendment right of confrontation was violated when the State presented the jury with evidence of his statements to law enforcement officers. This Sixth Amendment argument was not presented to the district court, and no objection was made when the statements were introduced into evidence. Generally, where constitutional grounds are asserted for the first time on appeal, they are not properly before this court for review. State v. Denney, 278 Kan. 643, 651, 101 P.3d 1257 (2004). Additionally, a timely and specific objection for the admission of evidence is necessary to preserve the issue for appeal. State v. Diggs, 272 Kan. 349, 365, 34 P.3d 63 (2001); see K.S.A. 60-404.
Because this argument appears to be recurring, however, we will address it now.
The Sixth Amendment of the United States Constitution provides:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the assistance of counsel for his defense." (Emphasis added.)
Torres relies heavily upon Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), as support for his argument. In Crawford, the Court held that testimonial statements of unavailable witnesses are inadmissible unless the defendant was afforded an opportunity to cross-examine those witnesses. Torres claims that Crawford also applies to defendant's statements to police. While the Crawford Court stated that statements taken during police interrogations are testimonial, the Court was clearly discussing interrogations of people other than the defendant.
Torres claims that he is in a "catch-22" in that either he can forego his Fifth Amendment right against self-incrimination and testify himself about the alleged statements, or he can exercise his Fifth Amendment right and allow the unchecked testimonial statements into evidence. He argues that this dilemma, created by the statements' admission into evidence, is a violation of the doctrine of unconstitutional conditions, as illustrated by Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968).
In Simmons, a defendant testified at his unsuccessful motion to suppress. The Government then used this testimony against the defendant at trial. The United States Supreme Court found that the testimony at the motion to suppress should not have been admissible at trial on the question of guilt or innocence. 390 U.S. at 390. The Court reasoned that such a scenario required the defendant seeking to suppress evidence to either give up a potentially valid Fourth Amendment claim or waive his Fifth Amendment privilege against self-incrimination, something the Court found to be intolerable. 390 U.S. at 394.
Torres' right against self-incrimination and his right to confront the witnesses against him are not conflicting. Torres was not compelled to disclose information to law enforcement, but he chose to do so. We are unaware of any authority holding that "confronting oneself" at trial under these circumstances is a right guaranteed by the Sixth Amendment. Torres fails to show that his Sixth Amendment rights were violated.
Issue 3: Were Torres' constitutional rights violated because:
(a) The State did not record his two interviews by law enforcement officials?
(b) The court failed to instruct the jury on the State's failure to record the interviews?
Torres claims that his constitutional rights were violated because the State failed to preserve potentially useful evidence, i.e., failed to record his two interviews with law enforcement. He cites Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), as the basis for the recording requirement.
The failure to record an interview through audio or video technology is not within the realm of the Youngblood decision. The Youngblood Court spoke about evidentiary material that "could have been subjected to tests, the results of which might have exonerated the defendant." 488 U.S. at 57.
Moreover, the Court in Youngblood stated that it was unwilling to read the "fundamental fairness" requirement of the Due Process Clause "as imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." Arizona v. Youngblood, 488 U.S. 51, 58, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988). Instead the Court required a defendant complaining of the State's failure to preserve evidence to show bad faith on the part of the police. 488 U.S. at 58. "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." 488 U.S. at 58.
Torres claims that the failure to record the interviews is per se bad faith, but cites no authority for this argument. We have held that "'[s]imply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority or in the face of contrary authority, is akin to failing to brief an issue. "Where the appellant fails to brief an issue, that issue is waived or abandoned."'" Mid-Continent Specialists, Inc., v. Capital Homes, L.C., 279 Kan. 178, 191, 106 P.3d 483 (2005).
While some states have passed legislation to require the recording of certain interrogations, the Kansas Legislature has not. See United States v. Lewis, 355 F. Supp. 2d 870, 872 (E.D. Mich. 2005). At least two state courts have determined that the recording of interrogations is required. See Stephan v. State, 711 P.2d 1156, 1159-60 (Alaska 1985); State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994). We decline to hold that recording is required under the United States and Kansas Constitutions.
Torres argues in the alternative that the jury should have received an instruction that it could draw an inference against the State based on the failure to record his interviews.
Torres did not request such an instruction. Accordingly, our standard of review is whether failing to give the instruction was clearly erroneous. K.S.A. 2004 Supp. 22-3414(3). Instructions are clearly erroneous if the reviewing court is firmly convinced that there is a real possibility the jury would have returned a different verdict if the trial error had not occurred. State v. Lowe, 276 Kan. 957, 963, 80 P.3d 1156 (2003).
As stated above, law enforcement officials had no duty to record the interviews. We see no basis to conclude that the failure to give this instruction was clear error.
Issue 4: Did the district court err by allowing evidence of Torres' statements to law enforcement officials?
Torres next claims that the district court erred in denying his motion to suppress his statements to law enforcement officials. More specifically, he claims they were elicited in custodial interrogations in which law enforcement failed to advise him of his rights as required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 358 U.S. 890 (1966). The State denies the interviews were custodial interrogations.
We addressed the identical issue in State v. James, 276 Kan. 737, 749, 79 P.3d 169 (2003), where we stated:
"Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him or her 'in custody.' State v. Fritschen, 247 Kan. 592, Syl. ¶ 2, 802 P.2d 558 (1990). The threshold issue is therefore whether [defendant] was in custody when the statements were made; this determination is made on a case-by-case basis according to the facts. 247 Kan. at 597, 603. An objective standard is used to judge whether an interrogation is custodial. The proper analysis is how a reasonable person in t