Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge.
1. When a party fails to object to the trial court's failure to instruct the jury on a particular issue, an appellate court applies the clearly erroneous standard, pursuant to which the appellate court will find reversible error only if the trial court erred in instructing the jury and there is a real possibility that the jury would have returned a different verdict but for the error.
2. The district court must instruct the jury in a criminal case on the law applicable to the defendant's theories for which there is supporting evidence.
3. To convict a defendant of involuntary manslaughter the defendant's actions must be the proximate cause of the victim's death. To kill connotes specific, proximate causation. It means to end life; to cause physical death. This concept is adequately expressed in an instruction which provides that the State is required to prove that the defendant unintentionally killed the victim.
4. Contributory negligence is not a defense to involuntary manslaughter. Nevertheless, a victim's own conduct may be so substantial a factor so as to be the direct cause of death.
5. The facts in State v. Collins, 36 Kan. App. 2d 367, 138 P.3d 793 (2006), are discussed and distinguished. Under the facts presented in the case here, the notion of intervening cause cannot apply since there was a total lack of evidence of conduct by the victim that could have brought about the victim's own death.
6. Before any custodial interrogation, a defendant must be warned of his or her constitutional rights as set forth in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 649, 86 S.Ct. 1602, reh. denied 385 U.S. 890 (1966). A custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her freedom of action in any significant way. In contrast, an investigatory interrogation is the questioning of a person by a law enforcement officer in a routine manner in an investigation that has not reached the accusatory stage and when such person is not in legal custody or deprived of his or her freedom in any significant way.
7. In determining whether a defendant's freedom of movement was restrained to the degree found in the case of a formal arrest, neither the fact that the defendant was the focus of the investigation nor the fact that the interrogation took place in a police station is dispositive of the issue. The court must consider how a reasonable person in the defendant's position would have understood the situation.
8. The following nonexclusive factors may be significant in a case-by-case analysis to determine whether a defendant's interrogation was custodial: (1) when and where interrogation occurred; (2) how long interrogation lasted; (3) how many police officers were present; (4) what the officers and the defendant said and did; (5) the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door; (6) whether the defendant was being questioned as a suspect or a witness; (7) how the defendant got to the place of questioning (i.e., whether the defendant came completely on his or her own, in response to a police request, or escorted by police officers); and (8) what happened after the interrogation (i.e., whether the defendant left freely or was detained or arrested).
9. Sentencing in a criminal case is effective when pronounced from the bench, not when the court enters a subsequent journal entry. A journal entry which imposes a sentence at variance with that pronounced from the bench is erroneous and must be corrected to reflect the actual sentence imposed.
10. K.S.A. 22-4513 is a recoupment statute. Consequently, the imposition of Board of Indigents' Defense Services attorney fees is not part of a defendant's punishment for a crime and is, therefore, not part of the defendant's sentence.
The opinion of the court was delivered by: McANANY, J.
Affirmed in part, vacated in part, and remanded with directions.
Before BUSER, P.J., MALONE and McANANY, JJ.
The tragic circumstances which led to Rachelle Bale's conviction of involuntary manslaughter began on February 26, 2005. The late winter day was sunny and warm, with temperatures in the 50's. Bale and her husband, Kenneth, accompanied by their daughters, ages 1 and 2, and Bale's son, Shawn Casey (Casey), visited a local campground to check on the condition of their trailer following a recent ice storm. Casey, age 11, suffered from hydrocephalus. He had limited use of his right arm and leg and could not walk without the assistance of a walker. As a result, when not in a wheelchair he usually crawled to get from place to place and could do so rather quickly.
Casey was playing with his toy cars on the ground in front of the trailer. Richard Fabrizeus, Bale's brother-in-law, arrived at the campsite just as Bale placed her daughters in the family car in order to take them for a ride. As Fabrizeus observed Bale backing up in her vehicle, he heard a couple of thumps and saw Casey under the vehicle. Bale jumped out of the car and became hysterical when she realized what happened. Kenneth, who was ...