State v. Lyman

455 P.3d 393

STATE of Kansas, Appellee,

v.Christopher LYMAN, Appellant.

No. 114,312

Supreme Court of Kansas.

Opinion filed January 10, 2020

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.

The opinion of the court was delivered by 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...