State v. UllandState v. Ulland
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Gary A. Ulland appeals his conviction on one count of involuntary manslaughter. He argues that his conviction for involuntary manslaughter cannot be based on misdemeanor battery. Ulland also argues that the district court erred in denying his motion for mistrial, based on the State’s violation of an order in limine regarding polygraph evidence.
Ulland called the Derby police department on December 29, 1994, reporting that he had discovered his wife, Anna, was not breathing. When police officers arrived at the Ulland home, they found Anna lying on the waterbed in her bedroom. Ulland showed the officers a vodka bottle and stated that Anna had drunk the contents of the bottle the previous night. The officers observed bruises below the knees on both of Anna’s legs, and on her face. The officers аttempted CPR until emergency personnel arrived. Anna was transported to the hospital, where she died.
The coroner who performed the autopsy observed numerous braises and abrasions on Anna’s body. He determined the cause of death was a blood clot in the brain resulting from some form of blunt trauma to the head. The coroner believed the fatal injury was likely caused by falling оn .a hard surface.
Ulland initially told investigating officers that Anna had tripped several days earlier, falling against a table and wall and striking her head. Ulland told the officers that, on the night she died, he discovered Anna had fallen out of bed and he thought she might have struck her head on the bed. He noticed she was breathing erratically and put her back in bed. During a second interview, Ulland stated that “something сould have happened” on the night Anna died but he could not remember. Ulland later told officers that he shoved Anna into the bedroom and he thought she hit her head. Ulland said he heard a thump and everything got quiet. During the final interview with police officers, Ulland denied striking or kicking Anna. He admitted shoving Anna but denied seeing her fall. He said she was always drank and falling into walls.
The State charged Ulland with involuntary manslaughter under two alternative theories: (1) unintentionally and recklessly killing Anna or (2) unintentionally killing Anna while in the commission of a battery, a misdemeanor enacted for the protection of human
Ulland’s first argument on appeal is that his conviction for involuntary manslaughter cannot be based on misdemeanor battery. Ulland contends that the merger doctrine which limits the felony-murder rule in Kansas also applies to involuntary manslaughter. Specifically, Ulland contends that his misdemeanor battery was not distinct from the homicide and therefore merged with the homicide, thus, precluding a conviction for involuntary manslaughter. This argument рresents a question of statutory interpretation, subject to unlimited review on appeal. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
Ulland was convicted under
“Involuntary manslaughter is the unintentional killing of a human being committed:
(b) in the commission of, or attempt to commit, or flight from any felony, other than an inherently dangerous felony as defined inK.S.A. 21-3436 and amendments thereto, that is enacted for the protection of human life or safety or a misdemeanor that is еnacted for the protection of human life or safety . . . .” (Emphasis added.)
Ulland’s involuntary manslaughter charge was based on misdemeanor battery, contrary to
The Kansas felony-murder rule is contained in
One writer has explained that the merger doctrine “was conceived in the nineteenth centuiy as a limitation on the felony-murder rule necessary tо preserve the distinctions between first and second degree murder and manslaughter.” Comment, The Merger Doctrine as a Limitation on the Felony-Murder Rule: A Balance of Criminal Law Principles, 13 Wake Forest L. Rev. 369,377 (1977).
Kansas adopted the merger doctrine in State v. Fisher, 120 Kan. 226, 243 Pac. 291 (1926). Fisher was convicted of felony murder in the death of John Michael Foley, a young boy who was traveling with other members of his family. The boy’s father drove without permission over the fields of the defendant’s father, stopping periodically to cut fences so that they could continue. Fisher fired two or three shots at the automobile. He stated he fired at the tires and the gasoline tank in order to stop the car. One of the shots struck the boy, killing him.
“The effect of [the State’s contention] would be to make any homicide, not excusable or justifiable, which by our statute is defined to be manslaughter in any of the degrees, or murder in the second degree, to constitute murder in the first degree. In other words, there could, under this interpretation of the statute, be no such thing as any lower degree of homicide than murder in the first degree.” 120 Kan. at 230.
To avoid the problem arising from the State’s suggested interpretation of the statute, the court held: “[T]he other elements constituting the felony must be so distinct from that of the homicide as not to be an ingredient of the homicide, convictable under an information charging the homicide as murder.” 120 Kan. 226, Syl. See State v. Jones, 257 Kan. 856, 864-65, 896 P.2d 1077 (1995); Prouse, 244 Kan. at 300-01 (Holmes, J., concurring); Clark, 204 Kan. at 42-44.
The Supreme Court used a similar rationale in Lucas. In that case, Lucas was convicted of two counts of child abuse and one count of felony murder. Lucas argued on appeal that the felony-murder conviction must be reversed, because the child abuse charge merged with the murder and could not constitute the requisite collateral felony to support the felony-murder charge.
The court described the issue in Lucas as follows:
“Rather, the issue herein is whether the underlying or collateral felony is so distinct from the homicide as not to be an ingredient of the homicide. If the underlying felony does not meet this test it is said to merge with the homicide and preclude the application of felony murder. Thus, a crime such as second-degree murder may not serve as the underlying felony supporting first-degree felony murder because second-degree murder is one оf the lesser included offenses of first-degree murder. Otherwise, all degrees of homicide would constitute murder in the first degree, regardless of the defendant’s intention or premeditation.” 243 Kan. at 466.
The court concluded that a single instance of assaultive conduct will not support the use of abuse of a child as the collateral felony
In a number of decisions, our Supreme Court has ruled that the merger doctrine does not apply to involuntary manslaughter: an involuntary manslaughter conviction can be based on a misdemeanor directed against the victim. State v. Roberson, 210 Kan. 209, 211-12, 499 P.2d 1137 (1972); State v. Severns, 158 Kan. 453, 457, 148 P.2d 488 (1944); State v. Merriweather, 136 Kan. 337, 338, 15 P.2d 425 (1932).
In State v. Spendlove, 47 Kan. 160, 28 Pac. 994 (1891), the court gave three reasons for refusing to apply the merger doctrine to manslaughter. First, the court observed that the statutory definitiоn of manslaughter was a killing committed during the perpetration of any crime or misdemeanor not amounting to a felony. The statute by its terms applied to all misdemeanors; it contained no exception for assault or battery. Second, the court concluded that resort to the merger doctrine was unnecessary to distinguish cases of manslaughter committed during the perpetratiоn of a misdemeanor from other types of homicide. Finally, the court concluded that if the merger doctrine were applicable to misdemeanor manslaughter the statute would have little effect. 47 Kan. at 166-67.
Ulland acknowledges the foregoing line of cases. He argues that they are not controlling, however, because they construed an involuntary manslaughter statute which is no longer in effect. While Ulland is correct that the statutory definition of involuntary manslaughter has changed, his arguments that the merger doctrine should now be applied to 21-3404(b) are not persuasive.
First, Ulland argues that 21-3404(b) is patterned after
Ulland supports this argument by citing
State v. Bradley,
215 Kan. 642, 527 P.2d 988 (1974). In
Bradley,
the defendant was convicted of two counts of aggravated assаult of a law enforcement officer, contrary to
“Insection 21-3416 the legislature expressly included scienter as an element of the offense. Therefore, it may be concluded the term ‘knowingly’ would have been used insection 21-3411 , if the legislature had intended that scienter also be an element of aggravated assault on a law enforcement officer. Its absence is compelling evidence that the legislature did not intend to require scienter.” 215 Kan. at 647.
The reasoning used in
Bradley
can also be applied in this case. As noted above, the legislature has now adopted a provision which explicitly applies the merger doctrine to felony murder when the underlying felony is one of a list of specified felonies.
The reasons stated in
Spendlove
for refusing to apply the merger doctrine to an older version of involuntary manslaughter are still applicable.
For all the foregoing reasons, we conclude that the merger doctrine does not apply to 21-3404(b). Ulland’s conviction for involuntary manslaughter was properly based on an unintentional killing committed in the course of the commission of misdemeanor battery. Thus, the district court did not err in rejecting Ulland’s merger argument.
Ulland next argues that battery is not a “misdemeanor that is enacted for the protection of human life or safety” as that phrase is used in 21-3404(b). In support of this argument, Ulland presents a restatement of his merger doctrine argument and an examination of the differences between first-degree manslaughter and fourth-degree manslaughter under statutes which were repealed in 1969. These contentions are not persuasive.
Although the legislature has not defined misdemeanors “enacted for the protection of human life or safety,” the language of both 21-3404(b) and 21-3412 is plain and unambiguous. Thus, this court must give effect to that statutory language and not add or subtract from what is readily found in the statute. State v. Alires, 21 Kan. App. 2d 139, 895 P.2d 1267 (1995).
The plain language of the battery statute reveals it to be a “misdemeanor that is enacted for the protection of human life or safety.”
The district court did not err in concluding that battery under 21-3412 is a statute enacted for the protection of human life or safety within the scope of 21-3404(b).
Ulland’s final argument is that the district court erred in denying his motion for mistrial after the State twice presented evidence regarding a polygraph examination in violation of an order in limine. Ulland contends the State agreed not to refеr even to the fact that a polygraph examination was conducted, but twice violated that agreement.
Ulland’s argument relates to two incidents that occurred during the trial. First, during the State’s case in chief, a detective who interviewed Ulland was asked who else was present at the interview. He responded, “Polygraph examin — .” The defense objected and the district court sustained the objection, admonishing the jury to disregard the answer because “[p]olygraph has nothing to do with this case.” The second incident occurred as the State played for the jury a tape recording of one of Ulland’s interviews with the
At the conclusion of the trial, the district court gave the following instruction to the jury:
“During this trial, certain references have been made concerning a polygraph examination. The law in Kansas is that the results of a polygraph examination are not admissible as evidence in a cоurt of law. The reason for that is that the results are not reliable. No scientific basis for such test has ever been shown to a legal certainty.
“You are instructed that you are not to consider these references for any reason whatsoever. Such references are not evidence in this case.”
The defense acknowledged that this instruction accurately reflectеd the law and was appropriate under the facts of this case. The defense, however, maintained that the instruction did not cure the problem created by the references to the polygraph examination.
When reviewing alleged violations of orders in limine, the Supreme Court has adopted a two-part test. First, the court must decide whether there was a violation of thе order in limine. Second, if such violation did occur, the court must decide whether the testimony elicited in violation of the order substantially prejudiced the defendant. The burden is on the defendant to show he was substantially prejudiced. State v. Warden, 257 Kan. 94, 125-26, 891 P.2d 1074 (1995).
The incidents Ulland complains about violated the parties’ agreement not to present evidence concerning the polygraph examination — an agreement which the court adopted as its order. The question then becomes whether Ulland has met his burden of showing substantial prejudice.
Prior cases have distinguished between evidence of polygraph results and the mere reference to the word “polygraph.” Absent a stipulation of the parties, the results of a polygraph examination
In this case, the jury did not receive any evidence concerning the results of a polygraph examination. At most, the jury heard two brief references to the faсt that such an examination was administered. Ulland has failed to show how these two references resulted in substantial prejudice to him.
The record shows that the district court took steps to cure any potential prejudice to Ulland. On two different occasions, the district court instructed the jury to disregard any evidence concerning the polygraph examination. The court instructed the jury that polygraph examinations are not evidence because they are unreliable. In the absence of evidence to the contrary, this court must assume the juiy followed the instructions given by the trial court to disregard the evidence concerning the polygraph examination. See State v. Logan, 236 Kan. 79, 84, 689 P.2d 778 (1984).
Ulland has failed to show substantial prejudice from the State’s violation of the order in limine. The district court did not abuse its discretion in denying his motion for mistrial.
Affirmed.