Lead Opinion
The opinion of the court was delivered by
This is dеfendant Melissa Wells’ direct appeal from jury convictions of felony murder and child abuse, stemming from the death of 23-month-old B.C. Wells was sentenced to consecutive terms of life and 55 months’ incarceration with lifetime post-release supervision. She claims several errors entitle her to reversal on appeal, including failure to give a limiting instruction; prose-cutorial misconduct; denial of her request for substitute counsel; multiplicitous convictions; exclusion of letters she wrote after her arrest; and failure to give lesser included offense instructions. She also claims error in the sentencing judge’s nunc pro tunc order
Factual and Procedural Background
Victim 23-month-old B.C. died on January 20,2008, after spending 3 days in the hospital. Wells, B.C.’s father’s girlfriend, had been caring for B.C. at the time she entered the hospital.
Before Wells’ trial, the State moved to admit what it classified as K.S.A. 60-455 evidence. That evidence included testimony of Larry Crosetto, B.C.’s maternal grandfather, about changes in B.C.’s behavior and bruises and marks he observed on B.C. after she had gone to live with B.C.’s father and Wells. The district judge ruled that the evidence from Crosetto was admissible.
Crosetto’s Testimony
Crosetto testified that his daughter, Angela, had been married to Randy Coons and had two children with him, B.C. and C.C. When Angela and Coons became estranged and planned to divorce, Crosetto and his wife, Mary, took care of the children at their home in Coffeyville while Angela attended college in Pitts-burg. After Angela graduated and went to work in Wichita, the children moved in with her. But Angela became ill and died a few months later. The children then moved back to Coffeyville and lived with Crosetto and his wife until Coons “came and took them away” in late August 2007. The Crosettos continued to keep the children with them on weekends.
Crosetto said that B.C.’s behavior changed during this period after she moved to her father’s house. She became “totally fearful of going back” there and would cling to Crosetto and his wife when they tried to drop her off. B.C. alsо had unexplained injuries, Cro-setto said, and he took notes about them and took photographs of them. The photos were shown to Wells’ jury. Crosetto said that he had wanted to keep a record of the injuries to support a possible child in need of care case.
Looking back over his notes, Crosetto testified specifically that, on September 6, 2007—a day before he was to pick the children
In anticipation of the following weekend’s visit, Coons again called Crosetto to alert him that B.C. had fallen and had to have stitches. When Crosetto picked B.C. up for that weekend visit, he observed stitches in her lip.
From early September through December, Crosetto documented bruising across B.C.’s ribs, on her back, on her shoulder, and recurring bruising above each buttock. He documented bruising to her cheeks, eyelids, forehead, and legs. He documented damage to her chin; marks that he later learned were flea bites; and, on one occasion, two black eyes. He testified that Coons’ two calls in September were the only times that explanations were offered for B.C.’s injuries.
Crosetto told Coons and Wells that he was going to make a report to the Kansas Department of Social and Rehabilitation Services, now the Department of Children and Families. And he did in fact make two calls to SRS and met with an SRS representative about getting the children out of their father’s home. On advice from the Crosettos’ family physician, Dr. Allen Gillis, who had observed B.C.’s injuries and believed she might be a victim of abuse, Crosetto also took B.C., without her father’s knowledge, to be examined by Dr. Chan Han on Christmas Eve. Han made a police report. On January 6, 2008, Crosetto dropped B.C. off at her father’s; that was the last day he saw B.C. alive.
Crosetto also testified that Coons had agreed that the Crosettos should become conservators for the children to preserve Angela’s life insurance proсeeds. The conservatorship was finalized at the end of October 2007, at which time Crosetto learned that the Social Security Administration had been paying “survivor benefits” to Coons. Beginning in January 2008, these benefits—-totaling $518 per month—were no longer going to be paid to Coons but were going to be paid to the Crosettos as conservators.
On cross-examination, defense counsel suggested that Crosetto had never approved of Coons, and that the “fight over the children” was between Crosetto and Coons rather than Wells. Crosetto said
Medical and Law Enforcement Testimony
The State’s other trial evidence came mainly from law enforcement and medical personnel. Gillis and Han both testified about their observations of B.C. before January 17, 2008, and their concerns that abuse was occurring. Han testified that the facial bruising he observed at the December 24 examination was “non-accidental injury.”
Other testimony established that, midmorning on January 17, 2008, a hysterical Wells called Coffey County 911 to report a child who was not breathing. Officer Mike Bradley arrived on the scene within a minute to find Wells on the front porch holding B.C. Bradley checked for B.C.’s pulse, detected it, cleared her airway, and was beginning cardio pulmonary resuscitation as emergency medical personnel arrived. After taking steps to stabilize B.C., the emergency personnel transported B.C. to the Coffeyville Regional Medical Center.
Officer Steven Gilfillan testified that, when he arrived at the house, Wells told him that K.W., her 2-year-old daughter, had jumped on B.C.’s stomach, causing B.C. to vomit. Then B.C. began to “flop around on the floor like she was having a seizure” and hit her head.
Emergency medical personnel testified that they were told that B.C. had fallen from a high chair and hit her head.
Dr. James Christensen treated B.C. when she came in to the Coffeyville emergency room. Christensen observed multiple bruises on B.C.’s head and face and noted that her pupils were dilated, indicating head trauma. A CT scan revealed bleeding under B.C.’s skull that was not consistent with a mere fall. Based on the injuries he observed, Christensen suspected abuse rather than
In Tulsa, B.C. was examined by several doctors, including Deborah Lowen and Stephen Groves, both of whom testified at trial. Lowen, a pediatrician specializing in abuse and neglect, testified regarding the nature of B.C.’s bruising, which was concentrated on her head and upper extremities and in nonbony areas rather than on lower extremities and bonier areas. Lowen opined that the history provided to her—that B.C. was injured by a 2-year-old jumping on her stomach, followed by some type of seizure or fall—was inconsistent with the external injuries she observed. Additional CT scans revealеd brain swelling and more subdural bleeding in the brain, indicating to Lowen that the first scan-—in Coffeyville—-was done very close in time to the occurrence of the head injury.
Groves, a specialist in pediatric ophthalmology, observed significant hemorrhages in B.C.’s left retina, and retinoschisis, a splitting of the retinal layers. He testified that these injuries indicated almost to a certainty that B.C. had suffered nonaccidental abusive head trauma, i.e., shaken baby syndrome. He opined that there was no accidental explanation for the injuries observed, and that B.C.’s injuries were not the type that would result from a fall— from a high chair or down stairs or off of a bed; from a bump against an entertainment center; or from another child hitting B.C. on the head, jumping on her stomach, or hitting her with a doll (all explanations Wells offered at one time or another).
After B.C.’s death on January 20, 2008, Dr. Erik Mitchell performed an autopsy. He found severe bruising on B.C.’s head, which he determined was inflicted by hard blows. He found a large sub-dural. hematoma, or clotting, inside her skull cavity, as well as evidence of severe, swelling. He also found evidence of hemorrhaging in the optic nerve, which he considered to be strong evidence of “a shaking event.” He testified these injuries were not consistent with another child bouncing on B.C., or hitting her on the head, or with a fall. Mitchell concluded that B.C.’s death was a homicide, tire result of head trauma with both impact injury and rotational-— shaking—injury.
Wells was interviewed four times before her arrest, and she offered various descriptions of the events precipitating her 911 call about B.C. At Wells’ initial interview, shortly after the call, she told Detective Diane George that K.W. had been bouncing on B.C., that B.C. tried to or did vomit, and that B.C. then stopped breathing. Wells said she tried to clear B.C.’s throat to help her vomit. When asked specifically if she had shaken B.C., Wells said she had not.
The following day, George confronted Wells with the medical conclusion that B.C. had suffered head trauma. Wells then said B.C. had fallen down some stairs about 2 weeks earlier; that, on the morning of the 911 call, K.W. had kicked B.C. off of a bed and B.C. had hit her head on a plastic tote; that K.W. had hit B.C. in the head with a plastic doll; and that B.C.’s head hit an entertainment center while Wells was carrying her outside. In response to additional questioning, Wells repeatedly denied shaking B.C., but she ultimately admitted that she had shaken B.C. three or four times.
In an interview conducted 3 days after B.C.’s death, Wells reiterated that K.W. had been bouncing on B.C. and had hit her with a doll. She also said that B.C. had rolled off the bed. Wells also again admitted shaking B.C. and said B.C. vomited and had the seizure after she was shaken. Wells admitted that she shook B.C. “pretty hard”—possibly hard enough to cause serious injury or death.
In tire fourth interview a few days later, Wells admitted that she might have caused some of the bruising on B.C. when she was frustrated with her. She again admitted to shaking B.C. In Wells’ final version of events, B.C. began vomiting, which caused Wells to shake her, which resulted in B.C. seizing and hitting her head on the floor. Wells stated: “It’s all my fault.”
At trial, there was other testimony concerning Wells’ explanations for B.C.’s ultimately fatal injury. Coons’ grandfather, Delbert, testified that he drove Coons and Wells to Tulsa on January 17. When he аsked Coons what had happened, Coons told him that
A friend of Wells, who was an occasional babysitter for B.C., testified that she talked to Wells on tire day of B.C.’s death, January 20, and Wells said that K.W. was jumping on B.C.; that B.C. vomited or tried to vomit and turned blue; that Wells shook B.C.; and that Wells hit B.C.’s head against an entertainment center while carrying her out to meet the ambulance. Wells told her niece the same story. She told her son’s grandfather three different stories. Sometime after B.C.’s death but before Wells’ arrest, she mentioned to another witness that she “was playing with [B.C.] and didn’t realize she was shaking her that hard.” After Wells’ arrest but before trial, she confided to a cellmate that she had become upset over a phone call, that B.C. was crying, and that she ended up “thumping” and shaking B.C.
There was also testimony at trial that Wells and Coons argued; that she was often stressed, overwhelmed, and frustrated. Other testimony depicted Wells as calm; as possessing a quiet demeanоr; and as liked by the children, including B.C. No one testified that he or she saw Wells hurt the children.
Wells’ Case
Wells offered the testimony of Dr. Thomas Young, a forensic pathologist. Young opined that, based on his examination of Mitchell’s autopsy photos, B.C.’s medical records, and preliminary hearing testimony, the injuries to B.C. were accidental. He testified that her injuries were attributable to hypoxic ischemic encephalopathy, or a lack of oxygen to the brain, resulting from cardiac arrest caused by a seizure, which was caused by an earlier head injury'—in this case, falling down the stairs a fortnight before Wells’ 911 call. Young testified that he found no evidence of abusive injury, abusive head trauma, or shaken baby syndrome. On cross-examination, he testified that he believed all of the health care professionals who had testified for the State were “mistaken.”
Wells took the stand and testified that, on the morning of January 17, she fed and bathed the girls and started a movie. K.W. was sitting or bouncing on B.C. Wells moved K.W., but a few
Over the State’s objection, Wells testified that when she heard about Young’s report, she was “ecstatic.” She also offered testimony tending to discredit the testimony of her former cellmate.
The Verdict and Appeal
The jury found Wells guilty of both felony murder and the underlying felony of abuse of a child. In Wells’ unsuccessful motion for a new trial, she argued, among other things, that K.S.A. 60-455 evidence was erroneously admitted; that various letters to her children and friends were erroneously excluded; and that the district judge erred in failing to sustain her objections to questions about Young’s compensation.
The district court sentenced Wells to consecutive terms of life on the off-grid felony murder and 55 months’ incarceration with 24 months’ postrelease supervision on the abuse of a child. An order nunc pro tunc changed the postrelease supervision term for the off-grid felony-murder offense from parole to lifetime post-release. This appeal followed.
While Wells’ appeal was pending, we decided State v. Berry,
Wells submitted a supplemental brief, arguing- that, in light of Berry, the district court’s failure to instruct on the lesser offenses of second-degree (reckless) murder and involuntary (reckless) manslaughter was clearly erroneous. The State filed a response brief, arguing that evidence at trial would not have reasonably justified a conviction of either second-degree (reckless) murder or involuntaiy (reckless) manslaughter.
Subsequently, the statute governing lesser included offenses was amended, presumably in response to Berry, to state: “[T]here are no lesser degrees of murder in the first degree under subsection (a)(2) of K.S.A. 21-5402 [the felony-murder statute], and amendments thereto.” K.S.A. 2012 Supp. 21-5109; L. 2012, ch. 157, sec. 2. The State then filed a Rule 6.09(b) letter on January 8, 2012, arguing that the amended statute was applicable to Wells’ case and thus there was no error in failing to instruct on lesser included offenses. See 2012 Kan. Ct. Annot. 49.
Discussion
Absence of Limiting Instruction on K. SA. 60-455 Evidence
Wells argues that the district judge should have instructed her jury on how to consider Crosetto’s testimony regarding possible prior abuse to safeguard against impermissible propensity conclusions. Because there was no request for a limiting instruction, we would review for clear error on appeal, pursuant to K.S.A. 22-3414(3). See, e.g., State v. Burnett,
We need not address Wells’ arguments about a K.S.A. 60-455 limiting instruction, however, because we agree with the State’s argument on appeal that Crosetto’s testimony did not qualify as K.S.A. 60-455 evidence. The State’s initial district court motion characterizing it as such is not legally binding on this court.
Crosetto did not testify that Wells abused B.C. before January 17. Indeed, Crosetto never pointed to any “specific incident of abuse” by Wells. He testified only to observations he made of
Prosecutorial Misconduct
Wells argues the prosecutor committed misconduct denying her a fair trial by implying to her jury that, because Young was being paid, he was not credible, or was not as credible as the State’s experts.
Over Wells’ relevance objection, the prosecutor cross-examined Young about the compensation he expected to receive in еxchange for his work on the case. Young testified that he charged $300 per hour, including travel time to and from the courthouse, and that he had spent more than 10 hours on case-related work. During closing, and without objection, the prosecutor pointed out that Young’s ultimate opinion—that the death was accidental—was contraiy to that of the State’s six experts. The prosecutor told the jury it needed to determine the credibility of each witness and consider the motivations each witness might have. Later in closing, the prosecutor asked the jury whether there were “at least $3,500 worth of reasons” for why Young testified that B.C.’s death was accidental.
A claim of prosecutorial misconduct based on comments made during voir dire, opening statements, or closing argument will be reviewed on appeal even absent a contemporaneous objection. State v. King,
We conclude in this case that the prosecutor’s closing comments about Young tread very close, to the error line but did not cross it. Although a prosecutor is not permitted to offer his or her opinion on the credibility оf a witness, the State is correct that Kansas courts have, consistently held that “[ejxposing bias or motive for testifying is a proper subject for cross-examination,” and, “by extension, the prosecutor is free to argue this point to the jury if the evidence has established the facts.” State v. Jones,
The Court of Appeals’ error evaluation in In re Care & Treatment of Ward,
We acknowledge that when a party exposes and argues potential bias, prejudice, or some motive other than truth-telling for a witness’ testimony, the implication nearly always is that the witness is lying. But making an explicit comment on credibility to a jury is misconduct. Here, there was no error in the prosecutor’s inquiry
Request for Substitute Counsel
After Wells’ arrest, Philip J. Bemhart of the Southeast Kansas Public Defender’s Office was appointed to represent her. At a hearing via telephone conference, before Wells’ preliminary hearing, counsel alerted the court that Wells “just advised me that she does not want me as her attorney.” The district judge inquired whether there was any particular reason Wells did not want Bern-hart to represent her. Wells said, “[Bjecause I had him the last time and I didn’t feel properly represented.” The district judge replied:
“Well, that’s not grounds to not have Mr. Bemhart represent you, so your request will be declined. Mr. Bemhart has appeared several times in front of this Court. He’s a very effective attorney and I know for a fact that he has tried very similar cases before and done a very excellent job. So your request will be declined, because you haven’t shown the correct grounds.”
There was no further mention of the issue.
On appeal, Wells argues that the failure to conduct any further inquiry or investigation upon her notice of dissatisfaction with Bemhart violated her Sixth Amendment right to counsel. Generally a district judge’s refusal to appoint new counsel is reviewed under an abuse of discretion standard. State v. Sappington,
Wells suggests that our review should be de novo, because the district judge did not engage in the correct legal analysis, i.e., failed to make an appropriate inquiry before denying the request. But abuse of discretion covers failure to engage in the correct legal analysis. State v. Hulett,
The Sixth Amendment to the United States Constitution guarantees an indigent criminal defendant the right to the assistance of counsel in his or her criminal defense. However, such a defendant cannot compel the district court to appoint the counsel of defendant’s choice. To warrant substitute counsel, a defendant must show “justifiable dissatisfaction” with his or her appointed counsel. State v. Bryant,
Historically, we have usually reserved the “abuse of discretion” label for situations when a district judge has made no inquiry at all, see State v. Taylor,
Recent Kansas cases touching on this area of law suggest that “an articulated statement of attorney dissatisfaction is necessary to trigger the district court’s duty to inquire into a potential conflict,” State v. Rand, No. 106,774,
Contrary to Wells’ characterization of the exchange in this case, the district court did inquire into her reasons for requesting new counsel. The judge asked, “Ms. Wells, any particular reason why you do not want Mr. Bemhart to represent you?” Wells’ response did not suggest a conflict of interest, an irreconcilable disagreement, or an inability to communicate with counsel. Her response did not suggest that the attorney-client relation had “deteriorated to a point where appointed counsel [could] no longer give effective aid in the fair presentation of a defense.” Bryant,
We conclude that, because Wells’ response to the district judge’s first question implicated none of the grounds warranting further inquiry—let alone warranting substitute counsel—the judge was under no duty to inquire further, and he did not abuse his discretion in refusing to appoint new counsel. See State v. Richardson,
Alternative Means
Wells argues that, because the State charged her with killing B.C. “in the commission of’ or “in an attempt to commit” the inherently dangerous felony of abuse of a child and because the district judge included the same two possibilities in die jury instruction on felony murder despite the State’s failure to prove mere attempt, reversal of her felony-murder conviction is required. Attempted child abuse and completed child abuse, Wells asserts, are two different crimes constituting alternative means of committing felony murder that must both have been proved beyond a reasonable doubt in order to insure the statutorily required jury unanimity to which she was entitled. See State v. Wright,
Wells’ first potential obstacle is issue preservation. Before the district judge, she voiced no complaint when the State filed its proposed jury instruction including this language. Her counsel specifically did the opposite, filing a written response that stated Wells did “not object to the State’s proposed instructions.” Wells now argues that this court should nevertheless consider the merits of her alternative means argument because a refusal to do so imperils her fundamental right to a unanimous jury. As in our recent case of State v. Cheffen,
For our part, on the preservation debate, we acknowledged in Cheffen that earlier Court of Appeals cases have taken up tire merits of an alternative means issue for the first time on appeal because
As in Cheffen, we will address the merits of Wells5 alternative means issue arguments. Wells insists that there was insufficient evidence of an attempted abuse of a child that resulted in B.C.’s death because B.C., in fact, died. The State does not argue that evidence of an attempt was sufficient; rather, it argues that attempt was never in issue and that the felony-murder instruction’s reference to it was surplusage not backed up by any definition of attempt. It cites to our decision in State v. Bailey,
The first problem with the State’s argument is that any language in Bailey that could be read to apply to analysis of tire alternative means argument made by Wells in this case has been superseded by our later decisions in State v. Brown,
Brown set out the general framework for detecting when a criminal statute and an instruction incorporating its language provide for alternative means of committing the crime.
“In examining legislative intent, a court must determine for each statute what the legislature’s use of a disjunctive ‘or’ is intended to accomplish. Is it to list alternativе distinct, material elements of a crime—that is, the necessary mens rea, actus reus, and, in some statutes, a causation element? Or is it merely to describe a material element or a factual circumstance that would prove the crime? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. But merely describing a material element or a factual circumstance that would prove the crime does not create alternative means, even if die description is included in a jury instruction. [Citation omitted.]”295 Kan. at 194 .
Cheffen applied the Broion framework when a defendant convicted of felony murder based on the underlying felony of abuse
Cheffen was charged with felony murder under K.S.A. 21-3401, which provides:
“Murder in the first degree is the killing of a human being committed:
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“(b) in die сommission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 ....’’ K.S.A. 21-3401.
The juiy instruction issued in Cheffen’s case omitted the “flight from” language in the third phrase, but we noted that, as a practical matter, the alternative means analysis is the same for all three phrases in the felony-murder statute.
The second problem with the State’s argument is that Cheffen was distinct from Bailey, because in Bailey, the defendant was charged with felony murder based on two different underlying felonies, aggravated burglary and robbery. This court held that “different underlying felonies supporting a charge of felony murder are alternative means rather tiran multiple acts.”
In Cheffen, we held that
“[t]he legislature did not intend to create alternative means of committing felony murder under K.S.A. 21-3401(b) by providing that felonymurder occurs when there is a death ‘in the commission of, attempt to commit, or flight from an inherently dangerous felony.’ Instead, the phrase ‘in the commission of, attеmpt to commit, or flight from’ describes factual circumstances sufficient to establish a material element of felony murder.”297 Kan. 689 , Syl. ¶ 6.
Consistent with Cheffen, we hold that the three phrases in the felony-murder statute—“in the commission of, attempt to commit, or flight from”—are simply factual circumstances in which a material element may be proven, and do not create alternative means. The State was not obligated to prove that Wells killed B.C. during an attempt to commit child abuse.
On the State’s relevance objection, the district judge excluded from evidence 12 letters Wells wrote after her arrest in this case. She had offered the letters to rehabilitate her character. On appeal, she argues that the judge erred because the letters appropriately rebutted the State’s evidence that she was an “abusive and uncaring parent.” She further argues that the error necessitates reversal because it impaired her ability to develop her defense that she was a “caring and non-abusive parent” and was “innocent.”
A defendant’s right to present a defense is not without limits, including statutory rules and caselaw interpreting of rules of evidence and procedure. State v. Martis,
When reviewing a district court’s decision concerning the admission of evidence, an appellate court first determines whether the evidence is relevant, that is, whether it has “any tendency in reason to prove any material fact.” K.S.A. 60-401(b). There are two elements of relevance: materiality and probative value. State v. Houston,
Four of the 12 letters were addressed to Wells’ children, expressing how much she loved them and missed them. The other letters were addressed to various of Wells’ friends and acquaintances and expressed her views on the evidence for and against her, her joy and relief at learning of Young’s medical opinion, and the circumstances of her incarceration.
Lesser Included Offense Instructions
Wells also argues that she was entitled to instructions on lesser included offenses of felony murder under our decision in Berry. The State argues that Berry’s holding was overruled by statutory amendments and that the amendment forecloses Wells’ rebanee on Berry. See K.S.A. 2012 Supp. 21-5109(b)(l); L. 2012, ch. 157, sec. 2. The 2012 amendment to K.S.A. 21-5109(b)(l) provides that there are no lesser included offenses of felony murder.
On this issue, we must deal first with Wells’ suggestion, made at oral argument, that the State’s failure to file a supplemental brief should be fatal to its ability to advance its argument for appheabihty of the amended statute. We reject this suggestion. The State’s 6.09(b) letter was a permissible and sufficient vehicle to ensure our awareness of potentially controlling authority. See Kansas Supreme Court Rule 6.09(b)(1)(A) (2012 Kan. Ct. R. Annot. 49). Moreover, the State has not raised a new issue here, only new authority on an issue already before us.
We have not previously ruled on the effect of the 2012 amеndment on cases on direct appeal. See, e.g., State v. Phillips,
The general rule is that a statute operates only prospectively unless there is clear language indicating the legislature intended otherwise. State v. Martin,
In this instance, we conclude that the amendment is not merely procedural or remedial. It effectively states that no felony-murder defendant is entitled to lesser included offense instructions on that charge. In contrast, both the pre-Berry rule and the rule under Berry recognized lesser degrees of felony murder. The statutory extinguishment of these lesser included offenses is a substantive change, indeed, one that may have constitutional ramifications. See State v. Brooker,
Given no retroactivity for the statutory amendment, the rule of Berry governs here. And Wells can invoke this rule to her advantage if she can persuade us that instructions of any lesser degree
The key phrase in the preceding sentence is “supported by evidence.” In this case, under Berry, no instructions for any lesser degree of homicide were cаlled for on the felony-murder count because there was not “some evidence reasonably justifying a conviction of some lesser included crime beyond a reasonable doubt.” Berry,
Parole
Wells argues, and the State concedes, that her sentence should reflect that she is ultimately to be evaluated for lifetime parole rather than released to lifetime postrelease supervision. The lifetime postrelease portion of Wells’ sentence is illegal, see State v. Seward,
Conclusion
Having rejected each of defendant Melissa Wells’ claims of error of conviction, we affirm her convictions of felony murdеr and abuse of a child. We vacate that portion of her sentence dealing with lifetime postrelease.
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Concurrence Opinion
concurring: I concur with the majority’s analysis of the issues regarding the limiting instruction, substitute counsel,
Prosecutorial misconduct
The majority concludes the prosecutor did not commit misconduct in closing argument by commenting on the credibility of Wells’ expert witness, Dr. Young. The majority succinctly summarizes the prosecutor’s comments but the full context of closing argument provides important context. During the first portion of her argument, the prosecutor stated,
“And then you have the gold standard guy. Interesting that he [Dr. Young] used that term the day after Dr. Groves. Hired by the defense, $300 an hour. He comes in, not just to give a second opinion, but to say that Dr. Gillis, Dr. Han, Dr. Christensen, Dr. Groves, Dr. Lowen, and Dr. Mitchell are all wrong; six doctors. They weren’t wrong; the word he used was ’they’re mistaken.’ They’re mistaken because I didn’t see any retraction balls. You’ve got to have retraction balls in a shaken baby case. Not true. Not true because Dr. Lowen told you, You’re not always going to have them. Dr. Mitchell said, You’re not always going to have them. There is no checklist for injuries in a shaken baby case. Abusive head trauma, you don’t have—I’ve got to have one through ten to know that that’s what it is. You might have a couple of them, you might have all of them. It depends on the case.
“Then you have the slides that they showed. Now Dr. Young says, Well, okay, that might be a retraction ball. Okay. Well, do we not have them, or do we have them?
*764 “You know, you decide ladies and gentlemen. You get to determine the credibility of a witness. You get to decide what motivations they have... —why they’re testifying the way they are.
“You know, Dr. Young expects the checklist to be there, and all these other doctors are just mistaken. But you still got all the other folks, the shifting stories, the fact that Dr. Young apparently didn’t know the Defendant had ever admitted that she had shaken [B.C.], Might be something he would need to know for his opinion. He discounts all of the inconvenient facts of the case. And what does he rely on? Her version, and her version alone, because it’s inconvenient to his opinion to consider what else is out there.”
Importantly, in this first portion of closing argument, the prosecutor did not stray from the evidence. But in the second portion of her closing, the prosecutor, responding to defense counsel’s closing remarks, said:
“[Defense counsel] asks—he puts this queiy to you: Why is [Dr. Young] saying this is a non-accidental death? Folks, are there at least $3,500 worth of reasons of why he is saying that for his client?”
The majority relies on State v. Jones,
But the majority cites Jones’ holding without examining Jones’ application of that holding. I would revisit Jones here, as I believe it permitted the prosecutor to go beyond commenting on evidence, and in that sense, its ultimate holding is fundamentally flawed.
In Jones, the prosecutor argued in reference to a paid defense witness,
“ ‘[W]hat we have is somebody that comes into a case that gets paid up to $120,000 a year to come in and criticize people that do [DNA analysis]. You can test his credibility by that, just like you test [E.G.] and [S.W.’s] credibility because they get paid to provide [sexual] services. Right? The only difference being [S.W.] and [E.G.] trade their services for crack cocaine.’ ” (Emphasis added.)273 Kan. at 783 .
I find Jones’ application of its own holding flawed because the prosecutor in Jones went beyond simply commenting on facts in evidence. Instead, the prosecutor impermissibly drew a conclusion for the jury regarding the expert witness’ credibility by suggesting that the jury should view the credibility of the defendant’s expert, who was paid for his services, just as it viewed the credibility of a crack prostitute.
Ultimately, I would uphold Jones’ conclusion that prosecutors are permitted through cross-examination to expose witness bias or motive. However, I would modify Jones to the extent that it has been broadly applied to permit prosecutors to “comment on such evidence” in closing argument when that comment is, in reality, a not-so-thinly disguised comment on the witness’ credibility.
Similarly, in this case I would find that the prosecutor appropriately cross-examined the defense expert, Dr. Young, regarding any possible basis for bias and motive, including payment for his services. Thus, in closing argument, the prosecutor could have contrasted Young’s testimony with that of the State’s experts and could have invited the jury to consider Young’s potential motivation, including evidence of payment, along with any other evidence of motive or bias, in assessing Young’s credibility. But the prosecutor went beyond commenting on the evidence and took on the role of the jury in assessing credibility when she queried, “Why is [Dr. Young] saying this is a non-accidental death? Folks, are therе at least $3,500 worth of reasons of why he is saying that for his client?”
Further, I would find the prosecutor’s use of a thinly veiled euphemism for the term “liar” to be inconsistent with this court’s explicit rejection of that practice in prior cases. See State v. Elnicki,
Unrequested Instructions on Lesser Included Offenses
Second, while I agree that Wells was not entitled to unrequested instructions on the lesser included offenses of reckless second-degree murder and reckless involuntary manslaughter, I would reach that result for a different reason.
Applying tire Williams’ framework, I agree that the omitted instruсtions were neither legally nor factually appropriate. See State v. Williams,
But I find the majority’s conclusion as to this issue difficult to reconcile with its conclusion in State v. Cheffen,
Yet, in this case, the majority concludes that “[a]ll of the evidence before Wells’ juiy was about intentional conduct. Either Wells intentionally abused B.C., or she intentionally tried to save her life and failed. Lesser, reckless crimes were never in issue.”
The State presented evidence at trial that Wells shook B.C. “pretty hard,” that Wells allowed K.W. to bounce or jump on B.C. and hit her with a doll, and that Wells hit B.C.’s head against an entertainment center while carrying B.C. out to meet the ambulance. As the majority points out, this is evidence of intentional conduct. But the fact that this evidence supports a finding of intentional conduct does not preclude a finding that Wells’ intentional conduct resulted in the reckless killing of B.C. See, e.g., State v. Deal,
In short, if the majority in this case is to bе consistent with Cheffen, it should conclude that the requested lesser included instructions were factually appropriate here, just as they were in Cheffen, but that the error in failing to give the instructions, as in Cheffen, was harmless.
I fear that trial judges, asked to determine when a lesser included instruction is required despite the lack of any request for such an instruction, will find the distinction between this case and Cheffen nearly impossible to discern. Here, despite some evidence to support the lesser instructions, die majority finds the trial court was not required to sua sponte give those instructions. But in Cheffen, where diere was some evidence to support the lesser instruction, the majority concludes the trial judge was required to give a lesser included instruction.
In conclusion, I share the concern expressed by the concurrence in Cheffen that the majority’s approach “establishes] a standard where in reality a district court judge has no option but to automatically instruct the jury on all lesser included offenses, regardless of whether the instructions are requested and in spite of the actual evidence.” Cheffen,