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STATE v. COLWELL

April 13, 1990.

STATE OF KANSAS, Appellee,
v.
STEVE R. COLWELL, Appellant.



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 (K.S.A. 21-3609).

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 9, 1985.

  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

[246 Kan. 384]

      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 abuse.

  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 particular issues.

  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.

[246 Kan. 385]

     

  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 agree.

  In State v. Wilson, 215 Kan. 28, 523 P.2d 337 (1974), we held as follows:
"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.

[246 Kan. 386]

     

  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 ...


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