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State v. Lyman

Supreme Court of Kansas

January 10, 2020

State of Kansas, Appellee,
Christopher Lyman, Appellant.


         1. To establish the right to a new trial based on newly discovered evidence, a criminal defendant must show: (1) that the newly proffered evidence could not have been produced at trial with reasonable diligence; and (2) that it is of such materiality that it would be likely to produce a different result upon retrial.

         2. Three essential elements must exist in a claim alleging violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963): (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) it must be material so as to establish prejudice.

         3. Under K.S.A. 2018 Supp. 60-456(b), a district court has a gatekeeping obligation to ensure the reliability and relevancy of proposed expert testimony. In performing its gatekeeping function, a district court may consider the nonexclusive factors set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The reliability inquiry must be tied to the particular facts and circumstances of the particular case.

         4. Under K.S.A. 2018 Supp. 60-456(b), the district court must have considerable leeway in deciding in a particular case how to determine whether expert testimony is reliable. The court should consider the specific factors identified in Daubert where they are reasonable measures of reliability. Whether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the district court broad latitude to determine.

         5. Under the facts of this case, evidence documenting prior assault of a child sufficient to visibly distress him and leave bruises on his face constitutes other crime evidence under K.S.A. 2018 Supp. 60-455. Such evidence is so similar to the medical observations and conclusions at issue that it is reasonable to conclude the same individual committed both the prior acts and those claimed in this case. It is relevant to show the defendant's modus operandi, a disputed material fact, and is probative because it contradicts the defendant's claim that previous health issues and not the defendant caused the child's death. And the district court did not abuse its discretion in finding the probative value of this evidence outweighed its prejudicial effect.

         6. In requesting recusal of a trial judge under K.S.A. 20-311d(b), the language of the statute and Kansas caselaw make plain that under the circumstances of this case an affidavit is required for the chief judge to review. An affidavit is a written statement, under oath, sworn to or affirmed by the person making it before some person who has authority to administer an oath or affirmation.

         7. The party alleging judicial misconduct bears the burden of establishing that it occurred and that it prejudiced the party's substantial rights. Under the circumstances of this case, a motion for change of judge for posttrial matters based on an allegation in a letter from one trial spectator that the judge appeared to be sleeping during the trial was not sufficient to meet this burden.

         8. An abuse of discretion standard applies to the district court's ruling on enforceability of a stipulation. Under the circumstances of this case, the court did not abuse its discretion in declining to enforce a stipulation regarding waiver of hearsay and foundation objections to medical records used to form the basis of a proposed expert's opinion where the court held the defendant's proposed expert was excluded from testifying.

         9. In the absence of any trial error, none can accumulate; and the presence of one error is insufficient to accumulate.

          Appeal from Geary District Court; Steven L. Hornbaker, judge.

          Richard Ney, of Ney and Adams, of Wichita, argued the cause, and Roger L. Falk, of Joseph, Hollander & Craft, L.L.C., of Wichita, was on the briefs for appellant.

          Jason B. Oxford, assistant county attorney, argued the cause, and Thomas A. Hostetler, assistant county attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

          NUSS, C.J.

         Christopher Lyman asks this court to reverse his convictions for felony murder based on abuse of a child, abuse of a child by shaking, and aggravated battery. The victim was Lyman's eight-month-old nephew J.S. who was temporarily living with Lyman, his wife Tammarisk, and their son, E.L.

         After Lyman filed his direct appeal, the prosecutor asserted that he thought he saw a family matching the general appearance of Lyman, Tammarisk, E.L., and J.S. in a store two days before J.S.'s death. The woman acted aggressively toward the older child and the other child did not look well. After this court remanded for a hearing on this newly discovered evidence, the district court ultimately concluded it was not corroborated and too speculative to warrant a new trial.

         The issues on appeal, and this court's accompanying holdings, are as follows:

1. Did the district court err by denying Lyman's motion for new trial? No.
2. Did the district court abuse its discretion in excluding Lyman's proposed expert witness for failure to satisfy the test under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)? No.
3. Did the district court err by allowing the State to introduce evidence of Lyman's prior bad acts? No.
4. Did the district court judge commit judicial misconduct by sleeping during the trial? No.
5. Did the district court err by prohibiting Lyman from introducing medical records that were subject to a written stipulation? No.
6. Did cumulative errors require reversal and remand for a new trial? No.

         As a result, we affirm Lyman's convictions.

         Facts and Procedural Background

         Evidence at Trial

         The district court held a two-week jury trial beginning in May 2015. What follows is a summary of the evidence most relevant to this appeal.

         Police Officer David Sloan testified he responded to a call from Geary County Hospital (GCH) for suspicion of child abuse on September 15, 2013. There he met with the emergency room's Dr. Graham Keats and pediatrician Dr. Adikuor Adjetey. They told him J.S. was dying and had bruising on his face, subarachnoid bruises, and asymmetric pupils. Sloan briefly observed J.S. while being prepared for transport to Children's Mercy Hospital in Kansas City.

         Sloan then met with Lyman and his one-and-a-half-year-old son E.L. in the lobby. Lyman told him the family had been caring for J.S. since August 28-about two weeks prior-while J.S.'s mother put her life back together. Sloan asked Lyman what had happened to J.S. that night. Lyman replied that E.L., who slept in his own room, woke up Lyman. He checked on E.L. and then on J.S. in another room. J.S. was "lifeless, cold, unresponsive, although the child still was breathing, still had a pulse." Lyman woke up his wife and the four of them came to the emergency room. Lyman thought the bruises might have happened when J.S. was playing with E.L. because sometimes the boys collided. Also, about two weeks earlier, Lyman had been carrying J.S. when he fell down some stairs. But Lyman said he took the brunt of the fall with his own back and did not think that J.S. was injured.

         Dr. Keats testified he was working the night shift and was the first doctor to see J.S. The child was pale, unresponsive, having difficulty breathing, and did not respond to stimuli. When Dr. Keats shone a light in J.S.'s eyes, his right pupil reacted but the left did not, indicating a brain injury or problem with oxygen to the brain. Dr. Keats started an IV, further examined J.S., and ordered lab work and a CT scan.

         Dr. Keats also observed bruising on J.S.'s right cheek. He initially considered SIDS and child abuse as possible causes of J.S.'s condition. SIDS, however, would not cause a subarachnoid hemorrhage, so he had to consider whether there was a history of injury to cause the brain bleed. He explained the arachnoid membrane is the layer of tissue next to the brain, and subarachnoid means the bleeding is next to the brain itself. The CT showed a questionable trace of subarachnoid blood in the right temporal region, which led him to suspect some injury to J.S.'s head. That type of injury led Dr. Keats, in consultation with Dr. Adjetey, to consider child abuse as a cause of J.S.'s injury and to contact the Geary County police.

         Dr. Keats also spoke to Lyman outside J.S.'s room. Dr. Keats asked what had happened at home that led Lyman to bring the child in, how had he found the child, and whether there was any history of previous illnesses with J.S. Lyman told him he had gotten up for another reason, gone in to check on J.S., found him unresponsive and brought him to the emergency room. He did not know of any falls within the last few days. Dr. Keats found Lyman pleasant and easy to talk to but unemotional and not worried about J.S. Lyman also told Dr. Keats that J.S. had a history of respiratory syncytial virus (RSV), a breathing disorder. But Keats did not observe any residual issues from the RSV in J.S.'s chest.

         Using a laryngoscope that goes over the tongue, Dr. Keats had tried to place a plastic tube in J.S.'s airway to assist his breathing, a process known as intubation. The procedure was difficult, however, because of some swelling in J.S.'s pharynx and around the area above his airway. He and Dr. Adjetey both attempted to intubate J.S. before calling in a Certified Registered Nurse Anesthetist (CRNA) who successfully completed the procedure. Dr. Keats explained the intubations occurred very quickly one right after the other, and upon examining the inside of J.S.'s mouth, he did not think it was damaged by them.

         Because CRNAs routinely do intubations for their work, to his knowledge the procedure would not have injured J.S.'s gums or frenulum-an area between the lip and upper teeth. J.S.'s temperature was taken rectally, but this procedure would not be expected to cause injury to his anus. J.S.'s rectal temperature was 91.8 degrees, much lower than the typical 98.6.

         Dr. Keats testified that when J.S. came to GCH, he was critically ill, i.e., there was a good chance he could die. J.S.'s condition was the same when he was transported to Children's Mercy.

         Dr. Adjetey testified she was on call for GCH that morning. She arrived at the hospital by 3:30 a.m. and found Dr. Keats in the resuscitation room attempting to intubate J.S. Dr. Adjetey then tried once before the CRNA succeeded. She observed that J.S. was unresponsive with a bruise on his forehead and on his right cheek. His left eye was asymmetrical, meaning the pupil was dilated and would not respond to light.

         Dr. Adjetey ordered a CT scan. From it the radiologist determined there was a diffuse injury to J.S.'s brain and blood on its right side. Dr. Adjetey recommended J.S. be transferred to Children's Mercy to their pediatric intensive care unit. She was concerned that J.S. had a brain bleed, was only eight months old, and for a child of that age to sustain such an injury there must have been some kind of tremendous force to the head. She further testified that because an eight-month-old child is usually not walking, most injuries would be low impact. Dr. Adjetey conferred with Dr. Keats, and they contacted law enforcement to report possible abuse.

         Dr. Adjetey also took a medical history from Lyman. He told her that J.S. had not been acting like himself the last few days but that day he was eating well and acting normally. He put J.S. to bed at about 7 p.m. and checked on him at 10 p.m. At 2:30 a.m., E.L. woke up Lyman. After checking on E.L., Lyman checked on J.S. and found him unresponsive and limp in his bed.

         Children's Mercy child abuse pediatrician Dr. Terra Frazier testified she examined J.S. in the pediatric intensive care unit. Numerous tests were done, including CT scans of J.S.'s head, blood tests, tests to detect infection, and an EKG. The CT scan showed subdural blood (outside of the brain but inside of the skull), on the right side and in the interhemispheric area (the space between the two halves of the brain). J.S. also had "mass effect," i.e., the blood was squishing his brain, and he had loss of gray/white matter or diffuse cerebral edema. She further testified these types of injuries require a significant amount of force. An eight-month-old's normal daily activities and care should not cause injuries of this magnitude.

         Dr. Frazier took photographs of bruises on J.S.'s right eye, inside of his left ear, right ear, hip and groin area, chest, left side of the top of his head, right back side of his head, front of his head, and left buttocks. J.S. also had red scabbing on the back of his head.

         J.S. had a rectal thermometer-a very small, thin, flexible tube of soft rubber- inserted to keep track of his body temperature. It is inserted with a lubricant and not expected to cause damage. In one photograph, Dr. Frazier had moved the thermometer aside to show perianal lacerations-tears around the skin of the anus-and bruising on the right buttock. Dr. Frazier testified the lacerations would not be consistent with stooling, defecating, or wiping for cleansing because of their location and nature. She diagnosed the lacerations as blunt, external force penetrating trauma.

         Dr. Frazier testified she took a photograph of J.S.'s mouth showing injury to the lower lip and gums. According to her, the injury was not consistent with intubation because of its location near the lower lip, which would not be contacted by the instrument during the procedure. While there was also injury to the frenulum it also would not be associated with intubation.

         She further testified that children who are mobile could be expected to have bruising on the forehead, forearms, and shins-i.e., areas that are particularly affected when children fall. But injuries to the ears, chest, and mouth would not be expected in such children and even less so in those with limited mobility. According to the doctor, these types of injuries could not be explained by RSV, rubella, or diabetes.

         Dr. Frazier further explained it is possible to have a brain injury without external marking when the brain is moving about or experiencing different forces within the skull, such as acceleration/deceleration type injuries. A force above and beyond routine care and handling would cause such an injury, such as severe motor vehicle collisions-or child abuse (including shaking, impact, and penetrating wounds). She testified that when the brain swells and herniates, it affects the ability to regulate breathing.

         Dr. Frazier also testified J.S. had multilayered retinal hemorrhages that were too many to count. They extended out to the periphery-which is associated with abusive head trauma and consistent with shaking. As a result of examining J.S., his medical history, laboratory studies, radiologic studies, and the rest of the information available to her at the time, and based on her expertise and training, Dr. Frazier diagnosed J.S. with physical abuse and abusive head trauma. Given his level of brain injury, she expected that he would have reacted in a different manner immediately after its cause. According to her, any caregiver should have been able to look at him and tell something was wrong.

         Lisa Lowe, pediatric radiologist at Children's Mercy, testified she looked at the CT images without any patient history information. She found acute subdural hematoma on the right side of the brain, i.e., blood surrounding it. While there was not much hemorrhaging, the entire brain was swollen. Because this could be a risk for sudden death, she contacted the intensive care unit to alert them and advise that the bleeding associated with the diffuse brain swelling was most likely caused by child abuse or nonaccidental trauma.

         Dr. Lowe never saw J.S. or any other medical history. But the type of injury alone caused her concern. According to the doctor, the very generous window for the injury to have occurred was six hours to seven days. But she testified a child with that type of injury would be unresponsive, limp, and unable to do anything other than breathe and have a pulse. In sum, there was no way a child with these injuries could be walking around his home looking normal and doing normal child activities.

         Forensic pathologist Erik Mitchell testified he performed an autopsy on J.S. on September 19. He too testified the lip injury was not from intubation. He further testified to finding, among other things, a bruise on J.S.'s right upper eyelid and bruises at the cheek level; a discoloration on the forehead between the eyebrow and the hairline; a healing injury on the back of the skull; bruises on the scalp; and a subdural hematoma which he opined indicated a head trauma.

         He concluded these findings showed a pattern of injury going from front to back. Moreover, there was nothing "that would be inconsistent with multiple applications of the force of a hand."

         Dr. Mitchell noted the presence of the "classic triad" associated with shaking death: retinal hemorrhages, hemorrhages about the optic nerve sheaths, and subdural hematoma. He concluded J.S.'s death was not caused by a blood disorder, RSV, or accident but by injuries.

         In addition to the evidence from the State's medical witnesses, Sergeant Detective Cory Odell testified. He spoke to Dr. Keats who reported Lyman seemed disinterested in what was going on the night he brought in J.S. And Lyman left the hospital soon after bringing in J.S.

         William Arnold Jr., police detective and certified forensic computer examiner who specializes in cybercrime, testified about photos on Lyman's phone and computer searches Lyman completed in the weeks before J.S.'s death. Arnold testified a photo of J.S. on Lyman's phone was taken on July 25, at 11:11 a.m.-about seven weeks before the boy's death. And one more selfie photo of Lyman with J.S. was taken less than 60 seconds later.

         In two other photographs taken within the same 60-second timeframe, Lyman is pressing down on J.S.'s eyelids. About 30 minutes later another photograph was taken of J.S. with a pacifier saying "bad seed." Arnold testified this later photograph contained marks near J.S.'s right eye and on his forehead that appeared to be bruising.

         Additionally, photographs on Lyman's phone taken on September 2 (about two weeks before J.S.'s death) showed bruising on J.S.'s forehead and near his eye as well as a hand covering his face. Arnold pointed out a photo of J.S. appearing alert and normal on Saturday, September 14 at 4:02 p.m.-but he was then taken to the hospital that night and eventually died.

         Arnold also testified he found a message on Tammarisk's phone from J.S.'s mother, M.S., on July 25 at 3:51 p.m. He also found a text message to "Ice Mom," later identified as Tammarisk's and M.S.'s mother-T.S.-17 minutes later. Later testimony revealed that M.S. frequently used her mother's phone, and therefore the message was probably from Tammarisk for M.S. It stated:

"Can't talk right now. I have asked everyone. No he wasn't dropped. He has been sick since he was fed peach[es] and cereal. That's why he had a bath. Also he had been really tired lately. Calia, grandma, Chris and Jean can attest to that. But it will be best if he is watched by other people. Since I feel you think he is abused over here. That is the last thing that happens. Yes bruises around his waist are from Chris [Lyman] having no real feeling in his fingers. Sorry that you feel he isn't cared for here. The worst thing that might happen is [E.L. tries] to play a little [rough]. But he is told no right away." (Emphasis added.)

         Also entered into evidence was a text exchange Arnold found between Tammarisk and Lyman. Tammarisk texted, "[E.L.] was crabby for a few hours. Now he is just being a little bratty. [J.S.] is starting to stir, so I am going to go up and get him in a bit." On September 12-three days before J.S.'s final trip to the hospital-Lyman responded, "Leave [J.S.] to his own demise."

         Finally, Arnold testified he found a search on Lyman's phone dated August 25- three weeks before J.S.'s death-for "effects of shaken baby syndrome."

         Richard Marchewka, forensic scientist from the Kansas Bureau of Investigation, also testified. On August 31 (two weeks before J.S.'s death) Lyman's computer history showed that the user, presumably Lyman, had visited a Children's National Health System webpage on concussion as well as frequently asked questions discussing brain trauma and concussion. According to Marchewka, two minutes later the computer showed a visit to a Mayo Clinic webpage discussing concussion and symptoms of concussion. The next day the user accessed a website on abusive head trauma, shaken baby syndrome, and an explanation of injuries to the head from that syndrome.

         Kacy Drake testified she babysat both J.S. and E.L. on Friday, September 13, the night before J.S. was taken to GCH. The Lymans dropped the boys off at her apartment around 5:30 p.m. Her children were also there. J.S. was fussy that evening, cutting a few top teeth. According to Drake, she therefore held J.S. almost the whole time. The Lymans picked the boys up by 8 p.m. She did not notice J.S. fall, get hit, or bump anything. He had no conflict with her children, and she herself did not hit or harm him. She did not notice anything unusual about him that evening.

         J.S.'s mother, M.S., testified she and J.S. lived with her grandmother in Ohio. When J.S. was four months old, she started working in Chardon, Ohio. M.S. arranged for her sister Tammarisk, and brother-in-law Lyman, who at the time lived 20 minutes outside Chardon, to watch J.S. while she worked. Six days a week she would get J.S. ready, put him in the car seat, drive to the Lymans' house, drop him off, work, and then pick him up around 5 or 6 p.m.

         On July 25, M.S. "very angrily" contacted Tammarisk after she noticed small bruising around J.S.'s waist, a bruise on his head, and unusual behavior. They talked by phone, and she could hear Lyman in the background, explaining that he might have tripped over J.S. in the car seat in the dark. According to M.S., she would leave J.S. in the car seat inside the Lyman front door while the family was sleeping and someone would come and get J.S.

         The Lymans stopped watching J.S. as they packed for their move to Kansas in August. When M.S. got into legal trouble for driving under the influence and could not afford the court payments, Tammarisk agreed to take J.S. for a couple of weeks so M.S. could catch up financially. M.S. did not talk to Lyman about this arrangement. After two weeks, M.S. still did not have the money to retrieve J.S.

         M.S. testified J.S. had a long history of visits to the doctor, beginning even before he was born. She was in a major car accident when she was six-and-a-half months pregnant. She had to take antibiotics for an infection before she could go into labor. M.S. also indicated J.S. had problems with his heart.

         When J.S. was born, he was gray and the umbilical cord was around his neck. He defecated during the birth, threatening an infection. He was placed in an incubator the first night and M.S. was sent home three days after the birth. She also testified J.S. had genetic rubella.

         When J.S. was a month-and-a-half old, he stopped breathing. M.S. rushed him to the emergency room across the street, and they resuscitated him. J.S. had whooping cough. J.S. also stopped breathing when he was three months old. M.S. again rushed him to the emergency room and they both rode in an ambulance to the children's hospital. He was there for a week-part of the time on full life support. He was diagnosed with RSV and sent home with a breathing machine.

         Regarding J.S.'s relationship with the Lymans, M.S. testified that J.S. was very close to them. She herself is close with her sister Tammarisk, and they talk every day. M.S. testified "Dad" was the only word J.S. ever knew and he used it to refer to Lyman. According to M.S., J.S. would chew on his bottom lip as he was teething to the point of bleeding.

         According to the police, they found two sex toys in a drawer in the Lyman master bedroom's vanity, one of which was silicone and the other glass. They obtained DNA swabs from Lyman to compare to DNA found on the sex toys. On the silicone toy, both the plastic handle end and the silicone one had a DNA profile consistent with his known DNA profile.

         For the silicone end, the DNA profiles of at least three people were in the mixture. Additional testing using the Y-chromosome identified that genetic material as consistent with the known male DNA haplotype of J.S. The probability of selecting an unrelated male at random from the general population with that partial male DNA haplotype is approximately one in every 8, 621 individuals.

         The glass sex toy contained a profile consistent with Lyman's of one in 57 trillion. Its other end had a male DNA haplotype consistent with a mixture from at least two individuals that could be separated into a major and minor haplotype. The major was consistent with Lyman, so he and all his male paternal relatives could not be excluded as possible contributors. The minor profile was consistent with J.S., so he and all of his male paternal relatives could not be excluded as possible contributors.

         Lyman did not testify. But the State played for the jury the video tape of his police interview from Sunday, September 15. At one point when he was alone in the interview room he got up and said, "My life is over."

         For the defense, Dean Stetler, associate professor in molecular biosciences at the University of Kansas, testified there could have been cross contamination in performing the DNA analysis on the sex toys because the playpen crib pad was processed alongside them. He also said there could have been cross-contamination of DNA on those toys while they were in ...

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