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State v. Ross

Supreme Court of Kansas

July 19, 2019

State of Kansas, Appellee,
Michael Ross, Appellant.


         1. In determining whether a particular statement falls outside of the wide latitude given to prosecutors, the court considers the context in which the statement was made, rather than analyzing the statement in isolation.

         2. A prosecutor's clear misstatement of law constitutes prosecutorial error.

         3. A prosecutor does not shift the burden of proof by pointing out the implausibility of a defendant's account.

         4. Kansas law favors the admission of otherwise relevant evidence, and the exclusion of relevant evidence is an extraordinary remedy that should be used sparingly.

          Appeal from Sedgwick District Court; Jeffrey Syrios, judge.

          Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant, and Michael Ross, appellant, was on a supplemental brief pro se.

          Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.


          ROSEN, J.:

         Michael Ross challenges his convictions for first-degree felony murder, second-degree murder, and felony abuse of a child. Finding any error to be harmless, we affirm.


         On the morning of November 9, 2015, A.S. left two of her children-17-month-old G.H. and 4-year-old S.T.-in the care of her boyfriend, Ross, while she traveled to the hospital to work her shift as a certified nursing assistant. At that time, G.H. was uninjured and was acting normally, although she did have a bruise on her right cheek. Other than Ross, there were no adults in the residence at this time. Not long after her shift at the hospital began, A.S. received a phone call from Ross, who told her that G.H. had fallen and was not responding.

         A.S. left work promptly after receiving the call and returned home. When A.S. arrived at the residence, G.H. was lying down on a bed. She was breathing, but she was nonresponsive. G.H. had bruising on her face and a bump on her head that had not been present before A.S. left for work. While A.S. was on the phone with 911, G.H. began having seizures.

         Paramedics responded to the scene a short while later, where they found G.H. nonresponsive. The paramedics observed various injuries, including a large hematoma to G.H.'s forehead, a swollen upper lip, bite marks on different places of G.H.'s body, and various circular and semicircular bruises on her body that were in different stages of healing. When they moved G.H. to the ambulance, the paramedics assessed her under the Glasgow Coma Scale at a score of 4 out of a possible 15, with 15 indicating alertness. G.H.'s score decreased to a 3-the lowest possible score-during the ride to the hospital.

         Eric Glendinning, M.D., provided emergency care for G.H. when she arrived at the hospital around 1:30 p.m. When she arrived, G.H. was put under anesthesia and intubated. Glendinning noted bruising on G.H.'s face and a swollen lip, along with bruising on her abdomen. A CT scan revealed a subdural hematoma and a liver laceration. Because these symptoms suggested child abuse, Glendinning consulted with a pediatric intensivist, Elizabeth Heflin, M.D. Heflin observed that G.H. had a subdural hemorrhage covering half of her brain and bilateral retinal hemorrhages in the back of her eyes, as well as several bruises across her body that were indicative of multiple impacts and what appeared to be a bite mark. Further analysis revealed that G.H.'s intracranial pressure was so high that she could not have been receiving adequate blood flow to her brain.

         G.H. was declared brain dead on November 12, 2015. Following G.H.'s death, forensic pathologist Timothy Gorrill, M.D., performed an autopsy. Based on the constellation of injuries, Gorrill concluded that G.H.'s manner of death was homicide.

         Wichita Police Department detectives interviewed Ross prior to G.H.'s death and subsequently took Ross into custody. Following G.H.'s death, Ross was eventually charged with premeditated first-degree murder and, in the alternative, felony murder, along with abuse of a child.

         From the outset of the case to the date of trial, Ross offered a number of different explanations for G.H.'s injuries. Ross told the paramedics that G.H. had fallen from a standing position and that she had possibly fallen into a doorway. He told Wichita Police Department Detective Ryan Schomaker that he had not seen the accident but that S.T. told him G.H. had fallen. Ross later wrote A.S. a series of letters from jail that contained various descriptions of how G.H. became injured, including that G.H. fell while standing on a toilet; that she slipped on water on the bathroom floor; that she was pushed off a counter by S.T. and hit her head on a white iron chair; and that she was hit by a falling television. Ross also made multiple calls to his own mother featuring different accounts. Additionally, Ross' one-time jail cellmate Demarco Rippatoe came forward with what he alleged to be four different versions of the day's events, as relayed to him by Ross. Critically, in one of the versions Rippatoe recounted, Ross admitted to "slamm[ing]" an old, 1990s-model 32- to 34-inch television-the type "with the big back"-weighing between 65 and 70 pounds onto G.H.

         At trial, Ross testified that G.H. fell off of the counter in the kitchen and hit her head on an iron chair shortly after A.S. left for work, after which G.H. "seemed fine." After this, Ross said that he lay down to sleep because he was exhausted from "coming down off crystal meth" after having been awake for "[l]ike two days and a half." Ross then claimed to have woken up after hearing S.T. and G.H. "play[ing] in the sink." Upon investigating, he found G.H. "between the tub and the toilet" and S.T. "[s]tanding on the toilet." He testified that G.H. fell again while walking to him "because there was a lot of water on the floor." Ross then went to sleep again, leaving G.H. to play with S.T. A little while later, S.T. woke Ross because "the TV's on top of [G.H.]." Again investigating, Ross found the television lying on top of G.H. "[f]rom her head to her abdomen." Ross claimed that G.H. was unconscious and was ...

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