[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from Ford District Court; E. LEIGH HOOD, judge.
1. When jury unanimity is at issue, there are three sequential questions presented. The first is whether the appellate court is presented with a multiple acts case, i.e., whether jurors heard evidence of multiple acts, each of which could have supported conviction on a charged crime. This determination is a question of law over which an appellate court exercises unlimited review.
2. After determining on appeal that a case is a multiple acts case, the appellate court must next determine whether error was committed. In multiple acts cases, either the State must have informed the jury which act to rely upon in its deliberations or the court must have instructed the jury to agree on the specific criminal act for each charge. The failure to elect or instruct is error.
3. In a multiple acts case, when the State has not informed the jury which act to rely on in its deliberations and the trial court has failed to instruct the jury to agree on a specific criminal act for each charge, there is error and on appeal the appellate court must then determine whether the error warrants reversal or was harmless. The test for harmlessness when a unanimity instruction was not requested or its absence not objected to is the clearly erroneous standard provided in K.S.A. 2013 Supp. 22-3414(3).
4. Criminal acts are multiple acts if they are factually separate and distinct. Incidents are factually separate when independent criminal acts have occurred at different times or different locations or when a criminal act is motivated by a fresh impulse. Factually separate and distinct incidents are not unitary conduct.
5. Even if a defendant generally denies criminal conduct, if there is no unified defense in a case, and the trial is not merely a credibility contest between the victim and the defendant, a multiple acts error may be reversible.
6. The 2013 amendments made in K.S.A. 2013 Supp. 21-5402(d) and (e) eliminate lesser included offenses of felony murder and expressly provide for retroactive application of those provisions to cases pending on appeal on and after its effective date.
7. Abuse of a child under K.S.A. 21-3609, which defines the crime as " intentionally torturing, cruelly beating, shaking which results in great bodily harm or inflicting cruel and inhuman corporate punishment upon any child under the age of 18 years," does not create an alternative means crime.
8. A prosecutor crosses the line of appropriate argument by making statements intended to inflame a jury's passions or prejudices or to divert the jurors' attention from their duty to decide a case on the evidence and controlling law.
9. It is improper for a prosecutor to offer his or her personal opinion as to the credibility of a witness, including the defendant. Nevertheless, a prosecutor has freedom to craft an argument that includes reasonable inferences based on the evidence and, when a case turns on which version of two conflicting stories is true, to argue that the evidence demonstrates certain testimony is not believable.
Corrine E. Johnson, of the Kansas Appellate Defender office, argued the cause, and Lydia Krebs, of the same office, was with her on the brief for appellant.
J. Scott James, assistant county attorney, argued the cause, and Kevin Salzman, assistant county attorney, Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
BILES, J. MORITZ, J., not participating. MICHAEL E. WARD, District Judge, assigned.
[300 Kan. 592] OPINION
Gabriel De La Torre appeals from his convictions of one count of abuse of a child and one count of felony murder, arising from the death of an 11-month-old child who was in De La Torre's care. There were two trials because the first jury, which convicted De La Torre on the child abuse charge, could not reach a unanimous verdict on the felony-murder charge. The second jury trial resulted in his conviction of felony murder. De La Torre raises several issues relating to each trial and one sentencing issue.
As to the first trial, De La Torre argues his abuse of a child conviction must be reversed because: (1) The district court failed [300 Kan. 593] to give a unanimity instruction despite evidence of multiple acts; (2) there was insufficient evidence to support the conviction; and (3) there was prosecutorial misconduct. The State concedes evidence of multiple acts was presented but argues the failure to give a unanimity instruction does not require reversal because De La Torre presented a unified defense. We disagree with the State on the latter point. We hold De La Torre did not present a unified defense to the child abuse charge and the failure to give a unanimity instruction was clearly erroneous. De La Torre's conviction for child abuse is reversed.
This outcome renders the remaining issues from the first trial moot, including the sentencing issue.
As to the second trial, De La Torre argues his felony-murder conviction should be reversed because: (1) The district court erred in failing to instruct the jury on the lesser included offense of reckless second-degree murder; (2) there was insufficient evidence to support the conviction; and (3) the prosecutor committed misconduct. We hold the first two issues are without merit. As to the third, we agree there was prosecutorial misconduct but hold it does not require reversal. We affirm the felony-murder conviction.
Factual and Procedural Background
On September 6, 2009, De La Torre brought 11-month-old Joselyn Hernandez to the emergency room at a Dodge City hospital. Joselyn was wet, pale, not taking deep or frequent-enough breaths, and had a low body temperature. Dr. Ben Short, the emergency room physician, observed Joselyn's eyes were partially rolled up into her upper eyelids and her pupils were nonresponsive, indicating brain injury due to trauma or lack of oxygen. Joselyn was put on a helicopter bound for Wichita's Wesley Medical Center. The helicopter returned about 5 minutes after departure because Joselyn's condition had worsened. Short continued treatment of Joselyn for about 45 minutes until he pronounced Joselyn dead.
A Dodge City police corporal and an officer were dispatched to the emergency room. Using a hospital janitor as an interpreter, De La Torre spoke with emergency room doctors about what happened while the officers listened. The officers understood De La Torre to say he had given Joselyn a bath and was carrying her into [300 Kan. 594] a bedroom when he collided with a bed and fell, landing on Joselyn. De La Torre said Joselyn appeared to stop breathing or was struggling with her breathing, so he attempted to give her rescue breaths.
Before the helicopter departed the police obtained De La Torre's permission to photograph the infant and the house where the incident occurred. While at the house, before learning Joselyn had died, De La Torre told the corporal he had been standing with her, turned and hit the corner of the bed, fell between the bed and the dresser, and heard the infant gasp for air.
A Dodge City police detective also investigated. He observed bruises on Joselyn's forehead, cheeks, the back of her head, under her left ear, and on her body--including under her right armpit, on her right arm, and on her left lower leg. He also saw small lacerations to Joselyn's forehead and under her chin. The detective spoke to De La Torre at the hospital. De La Torre told the detective he was working outside and noticed Joselyn was tired. He said he gave Joselyn a bath to help her fall asleep and while carrying her into the bedroom afterward he tripped over a blanket and fell directly onto the floor without hitting any furniture.
An autopsy revealed Joselyn's death was caused by blunt trauma to the chest that tore her heart's septum and caused the pericardial sac to fill with blood. It also revealed a number of bruises on Joselyn's face and in her scalp. The medical examiner testified these bruises ranged in age from a few hours to a week or 10 days old.
Nine days after Joselyn died, De La Torre consented to an interview with the detective. During this interview, De La Torre denied ever seeing anyone hit or harm Joselyn and denied seeing Joselyn bang her head, although he said he had seen her fall on her bottom. De La Torre also said approximately 4 days before Joselyn died, she fell off the couch and hit her head, causing a bruise on the left or right side. But De La Torre had no explanation for the child's other bruises, despite admitting he was the only person who watched her.
Lorena Hernandez, Joselyn's mother, said the only bruise she had seen on Joselyn's head was on the left side approximately 1 1/2 weeks before Joselyn died. When an investigator told her Joselyn [300 Kan. 595] had over 44 bruises on her scalp, Lorena " became extremely distraught and started crying."
The State charged De La Torre with abuse of a child and felony murder with the underlying felony of child abuse. See K.S.A. 21-3609 (child abuse); K.S.A. 21-3401(b) (felony
murder). The State alleged the child abuse occurred between August 15, 2009, and September 6, 2009.
In the first trial, the jury convicted De La Torre of abuse of a child but could not reach a verdict on the felony-murder charge. Based on this deadlock, the district court declared a mistrial on that charge. In the second trial, the new jury convicted De La Torre of felony murder. The trials had virtually complete factual overlap.
Unanimity Instruction on the Abuse of a Child Charge
In a multiple acts case, several acts are alleged and any one of them could constitute the crime charged. State v. Foster, 290 Kan. 696, 712, 233 P.3d 265 (2010); State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003). This creates the potential for uncertainty as to whether the jury unanimously agreed on a particular act underlying each specific charge. See State v. Voyles, 284 Kan. 239, 248, 160 P.3d 794 (2007).
De La Torre argues his right to a unanimous jury verdict was violated because the district court failed to give a unanimity instruction, i.e., the jury was not told to unanimously agree on the specific act underlying the child abuse conviction. He claims the State presented evidence at the first trial that he committed multiple acts of child abuse that were alleged to have occurred over a 3-week period. He further notes that, in addition to the district court not giving a special unanimity instruction, the State failed to elect a specific instance of abuse on which it relied to support the abuse of a child charge.
The State agrees its evidence presented a potential multiple acts case but attempts to salvage the conviction by arguing failure to give a unanimity instruction was not reversible error because De La Torre presented a unified defense by denying criminal responsibility for any of Joselyn's injuries. De La Torre acknowledges he did not request a unanimity instruction.
[300 Kan. 596]Standard of Review
Unanimity instruction errors are reviewed under a three-part framework. First, the reviewing court determines whether a multiple acts case is presented. The threshold question is whether jurors heard evidence of multiple acts, each of which could have supported conviction on a charged crime. State v. King, 299 Kan. 372, Syl. ¶ 1, 323 P.3d 1277 (2014). This is a question of law subject to unlimited review. State v. Santos-Vega, 299 Kan. 11, 18, 321 P.3d 1 (2014) (citing Voyles, 284 Kan. at 244). If the case is a multiple acts case, the next question is whether error was committed. To avoid error, the State must have informed the jury which act to rely upon or the district court must have instructed the jury to agree on the specific act for each charge. Failure to elect or instruct is error. Finally, the court determines whether the error was reversible or harmless. Santos-Vega, 299 Kan. at 18. When, as here, the defendant failed to request a unanimity instruction, the court applies the clearly erroneous standard provided in K.S.A. 2013 Supp. 22-3414(3). See Voyles, 284 Kan. at 252-53. Under this test, to find the error harmless:
" [A]n appellate court must be firmly convinced that under the facts the jury would have returned a different verdict if the unanimity instruction had been given. See State v. King, 297 Kan. 955, 979-80, 305 P.3d 641 (2013); see also State v. Trujillo, 296 Kan. 625, 631, 294 P.3d 281 (2013) (noting court's decision to omit the 'real possibility' language from Voyles test to avoid confusion with the constitutional harmless error test)." Santos-Vega, 299 Kan. at 18.
Besides the evidence already discussed, the State elicited testimony in the first trial from Dr. Jaime Oeberst that, in addition to the fatal injury to Joselyn's heart, Joselyn had multiple bruises on her scalp and face, some of which predated her death by up to 10 days. When asked if she had formed an opinion about how the bruises would have been inflicted on Joselyn's head, Oeberst
said, " Separate episodes of blunt force injury." She also said the injury did not appear to be accidental. In explaining this, Oeberst said:
" Again, some of it is common sense. Some of it is just experience and training. It's not the usual course of affairs to have 35 bruises on a child's head. And, there [300 Kan. 597] is no explanation and nothing offered in the circumstances surrounding [ Joselyn's ] death that could explain this number of injuries. And, then, also, they're not just in one location or one [plane]. So, if you have a fall, you would expect that you're gonna have--you know you're gonna bump one part of your head. You're ...