1. K.S.A. 22-3421 sets out two inquiries to be made by a trial judge regarding a jury's verdict in a criminal trial. First, the trial judge must ask whether the verdict read in open court is the jury's verdict after that verdict is read. Second, the trial judge must poll the jurors individually if either party requests it.
2. The right to a unanimous jury verdict is statutory, not constitutional. Similarly, the right to have a jury poll conducted is statutory, not constitutional.
3. Issues regarding a trial judge's compliance with the procedures set out in K.S.A. 22-3421 for inquiring about a jury's verdict in a criminal trial may not be raised for the first time on appeal. None of the exceptions to the general rule requiring preservation of an issue for appeal apply.
4. A trial court's failure to comply with the procedures set out in K.S.A. 22-3421 for inquiring about a jury's verdict in a criminal trial does not implicate a constitutional right, nor does it amount to structural error requiring reversal regardless of whether there was prejudice. The Court of Appeals holding to the contrary in State v. Gray, 45 Kan.App.2d 522, 524, 249 P.3d 465, rev. denied 292 Kan. 967 (2011), was error, is overruled, and has no force or effect as precedent.
5. 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 the description is included in a jury instruction.
6. The legislature did not intend to create alternative means of committing felony murder under K.S.A. 21-3401(b) by providing that felony murder 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, attempt to commit, or flight from" describes factual circumstances sufficient to establish a material element of felony murder.
7. When a trial produces some evidence that would reasonably justify a conviction of some lesser included crime, the district court must instruct the jury as to the crime charged and any such lesser included crime that is supported by the evidence.
Appeal from Wyandotte District Court; J. Dexter Burdette, judge.
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause, and Matthew J. Edge, of the same office, was on the brief for appellant.
Sheryl L. Lidtke, chief deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
Anderson Cheffen directly appeals his first-degree felony-murder conviction, which was based on the underlying felony of child abuse, following the death of his girlfriend's 10-month-old son. Cheffen argues that (1) the trial court violated his right to a unanimous verdict because it asked individual jurors before the verdict was read whether it was their verdict—rather than asking after the verdict was read; (2) the phrase "in the commission of, attempt to commit, or flight from an inherently dangerous felony" in the felony-murder statute creates alternative means of committing the crime; and (3) he was entitled to a lesser included offense instruction on intentional second-degree murder. We affirm his conviction because the jury polling issue was not preserved, the language cited in the felony-murder statute does not create alternative means, and the failure to give a second-degree murder instruction was harmless.
Factual and Procedural Background
On the morning of June 17, 2009, Cheffen took his girlfriend, Brandy Wiseman, to work around 7:15 a.m. Wiseman's 10-month-old son, Kawliga, and her 4-year-old son were in the car. Cheffen took care of the children during the day while Wiseman worked.
Wiseman testified at trial that she changed Kawliga's diaper that morning and there were no new bruises or marks on him at that time. She said he was wearing a white onesie and drank his bottle on the way to work. Cheffen testified he was the one who got the children ready that morning and gave Kawliga a bottle to drink while they took Wiseman to work. He said Kawliga was wearing a gray and red onesie.
Cheffen said he stopped at a few places before returning home that afternoon. He testified that he took Kawliga's clothes off, made another bottle, and laid Kawliga in his crib. But Cheffen later testified that the child was still wearing the red and gray onesie when put in his crib. Cheffen testified he went to wake Kawliga around 2:30 p.m. but the boy "didn't have no life to him so I kind of panicked." Cheffen said he ran to the kitchen and rubbed water through Kawliga's hair and on the back of his neck. When Kawliga did not respond, Cheffen tried to call Wiseman but could not reach her. He testified that he punched two holes in the bedroom wall when she did not answer. When she finally answered a fourth call, Cheffen told Wiseman that Kawliga was not responding. He testified Wiseman instructed him to come get her.
Wiseman disputed this point at trial. She testified that Cheffen called her around 2:30 p.m., sounding panicky. When Cheffen told her Kawliga was unresponsive, she told him to call 911 and go to a hospital but Cheffen insisted on picking her up first.
Cheffen testified that when he left Wiseman's house he tried to put Kawliga in a car seat but he kept slumping over, so he sat Kawliga in his lap. He later laid him on the front seat next to him. When he got to Wiseman's work, Wiseman was waiting. When Cheffen drove up, Wiseman testified that he handed her Kawliga and that the child's "eyes were only half open, but he wasn't blinking or moving them." Kawliga also was not breathing, so Wiseman tried CPR while they drove to Overland Park Regional Medical Center.
Dr. Richard Rosenthal, the emergency room physician who treated Kawliga, testified this was a "very severe case that we don't see that often." He observed that Kawliga was not breathing and remained limp even after inserting a breathing tube. He testified Kawliga had fresh abrasions to the left side of his forehead; fresh bruising to the right and left ears; a "fairly large" hematoma on the back right side of his head; bruising on the front of his neck; and some fresh and some old bruising on his legs and back. Rosenthal concluded that Kawliga had a serious head injury, the hematoma was caused by a blow to that spot, and the lack of oxygen for whatever period of time was life-threatening. Kawliga was quickly transferred to Children's Mercy Hospital.
At Children's Mercy, Kawliga was treated by Dr. Laura Plummer, a pediatric ophthalmologist and adult strabismus surgeon. She testified that she was asked to examine Kawliga given the nature of his injuries and a concern that this was a nonaccidental trauma because shaken baby syndrome often includes eye damage. She observed that Kawliga suffered very severe neurologic damage as evidenced by the fact that his eyes were fixed and dilated and would not respond to light. She testified this was evidence of impending brain death or very serious brain injury. Kawliga had diffuse retinal hemorrhaging of the eye.
Dr. Bradley Vaughan, a specialist in pediatric critical care, testified that Kawliga was comatose and had a skull fracture on the right side of his head with significant brain swelling. The child also had a subdural hematoma, which commonly results in an altered mental state and could stop breathing. Vaughan testified that Kawliga also had broken ribs, which could be caused by squeezing the child's chest. Vaughan concluded Kawliga's injuries were caused by a significant traumatic impact to the head requiring a forceful blow to the skull, which would be atypical for a fall from 3 feet off a bed onto the floor as Cheffen had claimed. He also told the jury it would be difficult to demonstrate with just a fist the kind of necessary force needed to inflict these injuries because it would require the child being accelerated and hitting a firm surface or stationary object. Vaughn suspected that Kawliga immediately lost consciousness on impact given the degree of swelling present on a CT scan. Vaughan concluded that Kawliga's injuries were intentionally inflicted and constituted child abuse.
Kawliga died 3 days after arriving at the hospital. An autopsy was performed by Dr. Altaf Hossain, who confirmed at trial that Kawliga had a right-side skull fracture and a subdural hematoma. The boy also had bruising on the head, left side of the face, chin, and neck. Hossain testified that the most likely cause of Kawliga's bruises, contusions, and abrasions to the face was punching or forceful hitting, but he conceded that it was possible for such injuries to be caused by falling on the floor. Hossain also said bruising on Kawliga's right ear could result from punching or slamming the baby's head against a wall and that mere slapping probably would not have caused the injury.
Hossain further testified that Kawliga had bruising around his neck that was consistent with somebody having their hands around his neck but was inconsistent with choking. He noted several of Kawliga's ribs were broken and that some were "acute" or recent injuries, while others were healing and, therefore, older. Hossain agreed with Vaughan's testimony that Kawliga would have lost consciousness immediately upon impact and that it was possible he would have had respiratory difficulty. He also said it was difficult to establish a date for these injuries but that Kawliga would have been immediately unconscious and would have stayed that way if he did not receive medical treatment. Hossain concluded the injuries constituted battered child syndrome.
Police investigators discovered a white onesie with blood stains around the collar intertwined in the comforter on Wiseman's bed. The blood matched Kawliga's DNA profile. Blood found on Cheffen's ...