BY THE COURT
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
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
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
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.
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.
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.
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.
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.
the absence of any trial error, none can accumulate; and the
presence of one error is insufficient to accumulate.
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.
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.
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.
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.
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
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
6. Did cumulative errors require reversal and remand for a
new trial? No.
result, we affirm Lyman's convictions.
and Procedural Background
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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
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.
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.
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.
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
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
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.
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.
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
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.
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.
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."
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.
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.
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.
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.
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
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.)
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."
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."
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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