The opinion of the court was delivered by
Steve R. Colwell appeals from his jury trial conviction of
felony first-degree murder (K.S.A. 21-3401) and abuse of a child
Kelli Gates was born on September 29, 1980, to the marriage of
Brenda and Larry Gates. She was born six weeks prematurely and
was in poor health for much of her first two years. A second
daughter, Lindsay, was born to the Gates family on January 30,
1983. In October of 1984, the Gates' marriage ended in divorce
with Brenda being granted custody of the two children. Brenda met
defendant Steve Colwell in November 1984 and married him on March
The Gates girls attended a day care center commencing in August
of 1984. Its proprietor, Melissa Spaid, observed changes in Kelli
commencing in late December 1984 or early January 1985. The child
was losing weight, appeared frailer than usual, and started
having bruises on her face. The bruising pattern described was
consistent with her face being squeezed by fingers. The child
complained of not feeling well. Brenda took Kelli to a Wichita
pediatrician, Dr. Katherine Pennington, in March 1985. The doctor
suggested Kelli be seen by a specialist in child hematology if
the bruising continued. By April, bruises had appeared on other
parts of the child's body. On May 9, 1985, Larry Gates took Kelli
to her appointment with Dr. Pennington. He asked if the bruising
could be from child abuse. The doctor stated she did not think so
and attributed the bruising to a blood abnormality.
In May 1985, Kelli fell from a swing at the day care center and
was treated for a broken collarbone. No blood disease showed up
in tests performed at that time. During Larry's visitation with
his children about June 15, 1985, he noticed bruises on Kelli's
buttocks. He took her to a hospital for treatment. On June 17,
1985, he reported suspected child abuse of Kelli to the
Wellington Social and Rehabilitation Services office. A
caseworker investigated the complaint, found no evidence of child
abuse, and closed her file.
Kelli's condition deteriorated and she became very weak. About
July 15, 1985, Larry advised Brenda he was very concerned about
the child. Brenda advised she had talked to Dr. Pennington about
hospitalizing Kelli for tests.
On the morning of July 17, 1985, the two girls and their
stepfather, defendant, were home alone. Kelli became unconscious
and stopped breathing. She was taken by ambulance to the
Wellington hospital, then airlifted to Wesley Medical Center in
Wichita. She died the following day. An autopsy was performed on
July 18, 1985, by Dr. David DeJong. He observed multiple bruises
on various parts of her body. She had a new fracture to the
collarbone which was close to the healing fracture. Death was
found to have been caused by rebleeding from a subdural hematoma.
The original injury was estimated to be several weeks old, and
the rebleeding was fresh. He believed two traumas were involved
and concluded Kelli's brain injuries were the result of child
On June 29, 1987, defendant was charged with felony murder and
child abuse. For reasons not found in the record, this action was
filed and prosecuted by an assistant attorney general. Defendant
was found guilty on both counts and appeals therefrom. Other
facts will be set forth as necessary for the discussion of
For his first issue, defendant contends our decision in State
v. Lucas, 243 Kan. 462, 759 P.2d 90 (1988), affirmed on
rehearing in State v. Lucas, 244 Kan. 193, 767 P.2d 1308
(1989), precludes his conviction of felony murder based upon the
underlying felony of child abuse. The State's only eyewitness,
Lindsay Gates, testified Kelli died after having been beaten by
defendant. The State proceeded on the theory that defendant
inflicted cruel corporal punishment upon Kelli on July 17, 1985,
and that this caused the rebleed from the subdural hematoma which
resulted in Kelli's death.
In State v. Lucas, we held:
"The purpose of the felony-murder doctrine is to
deter those engaged in felonies from killing
negligently or accidentally, and the doctrine should
not be extended beyond its rational function which it
was designed to serve." Syl. ¶ 1.
"In order to apply the felony-murder doctrine: (1)
the underlying felony must be one which is inherently
dangerous to human life; and (2) the elements of the
underlying felony must be so distinct from the
homicide so as not to be an ingredient of the
homicide." Syl. ¶ 2.
"A single assaultive incident of abuse of a child
(K.S.A. 1987 Supp. 21-3609) which results in the
death of a child merges with killing and constitutes
only one offense. The coupling together of prior acts
of abuse of a child with the lethal act of abuse into
one collective charge of abuse of a child does not
prevent the operation of the merger rule. Language to
the contrary found in State v. Brown, 236 Kan. 800,
696 P.2d 954 (1985), is disapproved." Syl. ¶ 5.
Lucas was followed by State v. Prouse, 244 Kan. 292
767 P.2d 1308 (1989), and held to be controlling. The case herein was
tried prior to the time our decision in Lucas was announced.
K.S.A. 21-3401 was amended by the 1989 Legislature to provide
felony murder may be predicated upon abuse of a child, but that
has no bearing on the issue before us as the events herein
preceded the amendment.
The State asks that we overrule Lucas. This we decline to do.
As Lucas is controlling, the conviction for felony first-degree
murder must be reversed.
Some of the other issues by defendant relate only to the
felony-murder conviction. These are rendered moot by our reversal
of the felony murder and will not be discussed. The balance of
the opinion will be devoted to issues raised as are relevant to
the child abuse conviction.
Defendant claims the trial court erred in requiring defense
counsel to accept the State's offer to stipulate that Dr. William
Eckert was a qualified expert in the field of pathology. We
In State v. Wilson, 215 Kan. 28
, 523 P.2d 337 (1974), we held
"In a criminal prosecution an offer by the
defendant to stipulate remains merely an offer unless
accepted by the prosecution." Syl. ¶ 4.
"In a criminal prosecution the making of an
admission by the defendant does not bar the state
from proving the fact independently as though no
admission had been made." Syl. ¶ 5.
In Barnes v. St. Francis Hospital & School of Nursing,
211 Kan. 315, 319, 507 P.2d 288 (1973), we said that the weight given
to an expert witness' testimony "was a matter for the jury to
decide, and in determining that question, the jury was entitled
to consider the degree, the depth ...