State v. Prouse , 244 Kan. 292 ( 1989 )

The opinion of the court was delivered by

McFarland, J.:

Robert Gene Prouse appeals his jury trial convictions of child abuse (K.S.A, 1987 Supp. 21-3609) and first-degree felony murder (K.S.A. 21-3401).

On February 15, 1987, defendant and his wife, Susan Prouse, brought their seven-week-old daughter, Felicity, to the emergency room of the Caldwell Hospital. The baby was not breathing. CPR was administered. Twenty minutes later Felicity was pronounced dead. The examining physician, Dr. Ray Stowers, observed multiple contusions and abrasions on the child’s face and a large hematoma behind the right ear. He asked defendant how these, injuries occurred. Defendant said the child had fallen from her crib two or three weeks earlier and that, a few days previously, the family cat had scratched the child’s eyelid. Defendant further stated the child had received no injuries the day of her death, and she was not breathing when he found her. Dr. Stowers-believed defendant’s explanation was inconsistent with the observed injuries and notified the Sumner County Medical Examiner. An autopsy was performed the following day by Dr. David Dejong.

The autopsy revealed a traumatic separation of the parietal, occipital, and temporal bone plates. The parietal bone plate was totally loose and fell from the skull upon the rolling back of the scalp. A subdural hematoma consisting of clotted and liquified blood was observed. Multiple external bruises and contusions to the head were observed. There were no injuries to any part of the body other than the head. Dr. Dejong concluded the injuries and death were the result of child abuse. The separation of the bony plates was due to a single localized blow occurring probably within hours of death but possibly within “a day or two before that.” He stated the injury could not have resulted from a fall from her crib. Multiple blows to the head were the probable causes of the various contusions and abrasions.

The subsequent investigation revealed defendant had been alone with the child during the day in question until approximately 6:00 p.m. when the wife returned from work. Shortly after that the child was discovered not to be breathing. A babysitter had been with the child the day before. She observed no injuries except for the cat scratch over the eye. Defendant again stated there had been no accidental injuries on the day of the child’s death and that nothing unusual had occurred.

Defendant was charged with first-degree felony murder and child abuse. He was also charged with involuntary manslaughter (K.S.A. 1987 Supp. 21-3404) and endangering a child (K.S.A. 21-3608). Defendant could not be found guilty of all four charges. He could be found guilty of (1) felony murder with child abuse as the collateral felony, or (2) involuntary manslaughter with endangering a child as the unlawful act not amounting to a felony, or he could be found not guilty. The jury found defendant guilty of first-degree felony murder and child abuse. Defendant appeals therefrom.

For his first issue, defendant contends the district court abused its discretion in admitting three of the nine autopsy photographs. The six unobjected-to photographs show the external injuries prior to any alteration of the body by autopsy. The three objected-to photographs show the internal head injuries with the scalp rolled back. Defendant contends the three photographs were gruesome, inflammatory, and repugnant.

The admission of photographs into evidence is within the discretion of the trial court unless it is shown such discretion is abused. State v. Kendig, 233 Kan. 890, 893, 666 P.2d 684 (1983).

A similar issue was raised in State v. Lucas, 243 Kan. 462, 759 P.2d 90 (1988), involving comparable photographs. In Lucas, Syl. ¶ 7, we held:

“Although special care must be taken in admitting photographs taken after the pathologist has intervened, lest the evidence be made more grisly than necessary, those photographs which are relevant and material in assisting the jury’s understanding of medical testimony are admissible.”

The three photographs herein assisted the jury’s understanding of Dr. Dejong’s testimony as to the separation of the bones, the subdural hematoma, and the force necessary to cause such injuries. We find no abuse of judicial discretion in the admission of the photographs.

For his second issue, defendant contends the trial court erred in the admission of certain rebuttal testimony.

Defendant presented testimony that he was a person of great self-control who never became angry. Further, defendant testified “there isn’t anything a child could do to upset me.”

The State called Sherri Manske as a rebuttal witness. She testified she had . lived with defendant from October 1984 to January 1985. Living with them were her four-month-old baby and another child about a year older. She testified that the baby’s crying upset defendant and that he would cover up the baby’s mouth to stop the crying. This happened several times even though she told him not to do it. She testified she had seen displays of temper by defendant and that he had become physically violent on one occasion by throwing the furniture around. The couple had split up over this last incident.

The use and extent of rebuttal evidence rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion was abused to a party’s prejudice. State v. Richard, 235 Kan. 355, 360, 681 P.2d 612 (1984); State v. Weigel, 228 Kan. 194, 200, 612 P.2d 636 (1980); State v. Lovelace, 227 Kan. 348, 353, 607 P.2d 49 (1980).

In their briefs, the parties go off on a tangent as to whether or not the rebuttal testimony was precluded by K.S.A. 60-447, which provides:

“Subject to K.S.A. 60-448 when a trait of a person’s character is relevant as tending to prove conduct on a specified occasion, such trait may be proved in the same manner as provided by K.S.A. 60-446, except that (a) evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible, and (b) in a criminal action evidence of a trait of an accused’s character as tending to prove guilt or innocence of the offense charged, (i) may not be excluded by the judge under K.S.A. 60-445 if offered by the accused to prove innocence, and (ii) if offered by the prosecution to prove guilt, may be admitted only after the accused has introduced evidence of his or her good character.”

K.S.A. 60-447 is inapplicable herein. The complained-of testimony was not offered to prove guilt. Rather, the purpose of such testimony was to refute certain testimony introduced by defendant as to his great self-control and inability to become upset with a child. This was clearly proper rebuttal evidence.

As we held in State v. Lovelace, 227 Kan. 348, Syl. ¶ 7:

“Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party’s prejudice.”

For his third issue, defendant contends it was error for the trial court to instruct the jury on felony murder because child abuse is not an independent collateral felony and, accordingly, merged into the felony-murder charge.

This same issue was before the court in State v. Lucas, 243 Kan. 462, which was decided subsequent to the trial herein. In Lucas, we analyzed the existing Kansas case law relative to felony murder, which was summarized in Syl. ¶¶ 1-4 as follows:

“The purpose of the felony-murder doctrine is to deter those engaged in felonies from killing negligently or accidentally, and the doctrine should not be extended beyond its rational function which it was designed to serve.”

“In order to apply the felony-murder doctrine: (1) the underlying felony must be one which is inherently dangerous to human life; and (2) the elements of the underlying felony must be so distinct from the homicide so as not to be an ingredient of the homicide.”

“In determining whether an underlying felony is inherently dangerous to human life so as to justify a charge of felony murder, the elements of the underlying felony should be viewed in the abstract, and the circumstances of the commission of the felony should not be considered in making the determination.”

“Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of the felony and, therefore, subject to the felony-murder rule.”

The collateral felony must, therefore, be felonious conduct other than the lethal act itself. Thus, a homicide occurring during the commission of an independent felony, such as aggravated robbery, rape, or kidnapping, comes under the felony-murder statute (K.S.A. 21-3401). However, the lethal act itself cannot serve as the independent collateral felony necessary to support a felony-murder conviction. Thus, an aggravated battery (K.S.A. 21-3414) resulting in the death of the victim merges into the homicide and cannot serve as the collateral felony for felony-murder purposes. For further illustration, consider the situation where a robber shoots the victim during the commission of an aggravated robbery. If the victim lives, the robber could be convicted of the two separate felonies he or she committed—aggravated battery and aggravated robbery. If the victim dies as a result of the injuries so received, the robber may still be convicted of two felonies—felony murder and aggravated robbery. However, if the only felonious conduct involved is the cause of the victim’s death, then the doctrine of merger prevents the prosecution from splitting the act into a felony murder and a collateral felony charge. Therefore, an aggravated battery cannot serve as the collateral felony for felony murder. We then held in Lucas that designating an aggravated battery against a child as child abuse does not avoid the merger doctrine and result in two independent felonies. Specifically, we held in Lucas:

“A single assaultive incident of abuse of a child (K.S.A. 1987 Supp. 21-3609) which results in the death of a child merges with killing and constitutes only one offense. The coupling together of prior acts of abuse of a child with the lethal act of abuse into one collective charge of abuse of a child does not prevent the operation of the merger rule. Language to the contrary found in State v. Brown, 236 Kan. 800, 696 P.2d 954 (1985), is disapproved.” 243 Kan. 462, Syl. ¶ 5.

We further observed:

“If additional protection for children is desired, the Kansas Legislature might well consider legislation which would make the death of a child occurring during the commission of the crime of abuse of a child, or aggravated battery against a child, first- of second-degree felony murder.” 243 Kan. at 473.

We granted a rehearing in State v. Lucas. The original opinion therein has been affirmed this date. 244 Kan. 193, 767 P.2d 1308 (1989). In accordance therewith, the first-degree felony murder and child abuse convictions must be reversed and the case remanded for trial .on appropriate charges.

For his fourth issue, defendant contends the trial court erred in failing to instruct on the full range of lesser homicide offenses. By virtue of the result reached in the preceding issue, this issue is moot.

For his final issue, defendant contends the trial court erred in requiring the prosecution to elect between two theories of the means of commission of the involuntary manslaughter charge and in instructing the jury on the sole remaining theory as to the means of commission.

As will be recalled, the jury was instructed on alternative counts. Defendant could have been: (1) convicted of felony murder and child abuse; (2) convicted of involuntary manslaughter and endangering a child; or (3) found not guilty. These instructions parallel the information except that the involuntary manslaughter charge in the information provided two means of its commission as follows:

“and on or about February 15,1987 said Robert Gene Prouse, in Sumner County, Kansas did then and there unintentionally kill a human being, to-wit: Felicity Prouse; without malice, while in the wanton commission of an unlawful act not amounting to a felony, to-wit: Endangering a Child by causing or permitting her to suffer unjustifiable physical pain or mental distress or to be placed in a situation where her life, body, or health were endangered in violation of K.S.A. 21-3608; said unlawful act being prohibited by a statute enacted for the protection of human life or safety; or did unintentionally kill a human being, to-wit: Felicity Prouse; without malice while in the commission of a lawful act, to-wit: disciplining Felicity Prouse; in an unlawful or wanton manner, to-wit: by striking her head or causing her head to strike another object as a means to stop some behavior by the child such as crying which said Robert Prouse did not approve of. K.S.A. 21-3404 INVOLUNTARY MANSLAUGHTER Class D Felony.”

K.S.A. 1987 Supp. 21-3404 defines involuntary manslaughter as:

“(a) Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner.

“(b) As used in this section, an ‘unlawful act’ is any act which is prohibited by a statute of the United States or the state of Kansas or an ordinance of any city within the state, which statute or ordinance is enacted for the protection of human life or safety.”

The involuntary manslaughter charge herein used endangering a child as the unlawful act element for one means of committing the crime, and the doing of a lawful act in an unlawful or wanton manner for an alternative means of commission of the crime. On its own motion, the trial court forced the State to elect as to the means of commission. Defense counsel made no objection to the forced election and did not request both theories of commission be submitted to the jury. In fact, defendant’s proposed instruction included only the first theory of commission. A litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal. State v. Salton, 238 Kan. 835, Syl. ¶ 1, 715 P.2d 412 (1986). Further, we are satisfied this matter had no bearing on the outcome of the trial.

We believe, however, that it is appropriate to address the matter as it could arise again in a retrial herein. The defense cites cases dealing with a trial court’s duty to instruct on all lesser included offenses pursuant to K.S.A. 1987 Supp. 21-3107(3). Involuntary manslaughter was a charged crime, not a lesser included offense herein. Likewise, this does not involve an amendment of an information by the State. Rather, the effect was the trial court deleted part of the charge on its own motion.

Inasmuch as the involuntary manslaughter charge in the information was one count alleging two different means of commission, presumably the instruction and verdict form would have presented the whole charge to the jury without the court’s intervention. Hence, had defendant been convicted of involuntary manslaughter, it would be impossible to determine which means of commission the jury had found occurred. A challenge to the sufficiency of the evidence supporting the conviction would reveal this problem.

We believe that the proper method to be employed would be to charge the two different alleged means of commission as alternative counts of involuntary manslaughter. This would separate the elements instructions and the verdict forms and enable a reviewing court to determine precisely what the jury found. Further, it would prevent the jury from hybridizing the two means into some means of commission not specified in the statute defining involuntary manslaughter.

This conclusion is consistent with State v. Saylor, 228 Kan. 498, 618 P.2d 1166 (1980), wherein we held:

“It has long been the law of Kansas that an accusatory pleading in a criminal action may, in order to meet the exigencies of proof, charge the commission of the sam^ offense in different ways. In such a situation, a conviction can be upheld only on one count, the function of the added counts in the pleading being to anticipate and obviate fatal variance between allegations and proof. Thus, it has been held proper to charge by several counts of an information the same offense committed in different ways or by different means to the extent necessary to provide for every possible contingency in the evidence. Williams v. Darr, 4 Kan. App. 2d 178, 180-81, 603 P.2d 1021 (1979); State v. Hagan, 3 Kan. App. 2d 558, 598 P.2d 550 (1979); State v. Pierce, et al, 205 Kan. 433, 469 P.2d 308 (1970); State v. Emory, 116 Kan. 381, 226 Pac. 754 (1924); and State v. Harris, 103 Kan. 347, 175 Pac. 153 (1918).

“Where there is a question in the mind of the prosecutor as to what the evidence will disclose at trial, the correct procedure is to charge the defendant in the alternative under those subsections of K.S.A. 1979 Supp. 21-3701 which may possibly be established by the evidence. This may properly be done under Kansas law by charging several counts in the information to provide for every possible contingency in the evidence. By so doing, the jury may properly be instructed on the elements necessary to establish tire crime of theft under any of the subsections charged and the defendant will have no basis to complain that he has been prejudiced in his defense.” 228 Kan. at 503-04.

The defendant’s convictions of first-degree felony murder and child abuse are reversed and the case is remanded for trial on appropriate charges.