State v. Barber
| Decision Date | 10 July 2015 |
| Docket Number | 106,911. |
| Citation | 302 Kan. 367,353 P.3d 1108 |
| Parties | STATE of Kansas, Appellee, v. William BARBER, Jr., Appellant. |
| Court | Kansas Supreme Court |
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Natalie A. Chalmers, assistant solicitor general, argued the cause and was on the brief for appellee.
The opinion of the court was delivered by PER CURIAM:
Two-month old Autumn Barber suddenly developed life-threatening seizures and respiratory distress while at home in the sole care of her father, William Barber, Jr. Autumn's treating and examining physicians found recent traumatic injuries that were highly indicative of shaken baby syndrome
. The State charged Barber with aggravated battery and child abuse, and a jury convicted Barber on both counts. On appeal to the Court of Appeals, Barber raised several issues.
The Court of Appeals panel affirmed Barber's convictions and sentences. State v. Barber, No. 106,911, ––– Kan.App.2d ––––, 2013 WL 1339884 (Kan.App.2013). The panel concluded: (1) The trial court properly admitted testimony under K.S.A.2010 Supp. 60–455 of prior instances where Barber had shaken Autumn; (2) the trial court did not err in giving a jury instruction that limited the jury's consideration of evidence admitted under K.S.A.2010 Supp. 60–455 ; (3) the prosecutor committed misconduct during her closing arguments but the error did not affect the jury's verdict; (4) Barber failed to preserve his claim that the trial court improperly accepted the jury's verdict under K.S.A. 22–3421 ; (5) there was no cumulative error in this case; and (6) Barber's criminal history score did not need to be proven to a jury in order for it to affect his sentence. 2013 WL 1339884, at *2–10.
We agree and affirm Barber's convictions and sentences.
On February 7, 2008, a Cherokee County Sheriff's Office dispatcher received a 911 call for medical assistance from Barber, who reported, “My daughter, she's two months old, she's having a seizure, she's not breathing on me.” When emergency services arrived, Barber explained he was home alone with Autumn, who had been sleeping in her “bouncy seat” when she suddenly screamed. He picked her up, and she became limp and began seizing. When the paramedic asked Barber about Autumn's medical history, Barber said that the seizures began suddenly and might be related to some routine shots from a couple of days earlier.
Once Autumn was at the hospital, a CAT scan
revealed a subdural hematoma and bleeding around the brain. The emergency room physician concluded a traumatic injury damaged Autumn's brain and caused her seizures. The physician met with Barber and his wife, Karen Barber, and without mentioning his exam results or his conclusions, asked if anything traumatic had happened to Autumn. Barber volunteered that he had never shaken her. After the conversation, the physician checked Autumn's eyes and found retinal hemorrhages
. According to the physician's testimony at trial, retinal hemorrhages are most likely the result of shaken baby syndrome due to “the amount of pressure and force it requires to rupture those blood vessels in the retina.”
Autumn's life-threatening injuries necessitated transporting her by helicopter to Children's Mercy Hospital in Kansas City, where multiple physicians in varying specialties examined her. Several of these physicians testified at trial that Autumn exhibited significant, multilayered hemorrhages in both eyes, there was blood throughout her brain, and her brain tissue was swollen. These physicians opined that Autumn suffered from inflicted trauma consistent with shaken baby syndrome
and that she would have begun exhibiting symptoms immediately after the injury.
Evidence was admitted at trial of Barber's interviews with law enforcement officers. According to the police reports, Barber told officers he quit his job on the morning of February 7, 2008, after being asked to shovel manure. Karen left soon after he arrived home around 11 a.m. (According to other witnesses' testimony, Barber had told a physician he arrived home around 10:30, and his employer said that he left work at 9:30.) Barber and Karen both testified that Autumn was sleeping when Karen left. According to Barber, shortly after Karen left, Autumn woke up screaming. She then went stiff and stopped breathing. When investigators asked Barber how he generally handled Autumn's crying, Barber replied that Karen handled it—he did not pick Autumn up when she cried because he was afraid he would not be able to get her to stop.
Despite his claim that he did not handle Autumn when she cried, several trial witnesses testified about occasions when Barber did care for Autumn when she was crying. In addition, two eyewitnesses—Jolene Brown (Karen's sister-in-law) and Melissa Conner—testified at trial that Barber had previously shaken Autumn. An investigating officer recounted to the jury these witnesses' statements made during the investigation into the cause of Autumn's injuries; both statements included information about prior incidents of shaking.
More specifically, the investigating officer testified that Brown reported an incident when she was alone with Barber and Autumn. Brown told the officer she had seen Barber shake Autumn He also testified Brown had reported that Barber kept telling Autumn to “[j]ust shut up, will you just shut up.” She recalled that the incident occurred sometime during the week before Autumn's hospitalization.
In Brown's trial testimony, she explained that Barber “was not really shaking her violently but he was kind of moving her in a way that I—it didn't raise concern to where I thought that I should do something right that second.” Nevertheless, she spoke to her in-laws and suggested they “let him know that he can't be rough with the child or that he shouldn't move her that way.”
The other eyewitness, Conner, testified that she spoke to Karen at least three times about her concern that Barber needed to be more careful in handling Autumn. Approximately a week or 2 before Autumn's hospitalization, she gave Karen a pamphlet on shaken baby syndrome. Conner testified she saw Barber throw Autumn in the air in play, and, on one occasion, she saw him shake the baby when he was frustrated. The investigating officer testified that Conner had reported she “quit hanging around over there [at Barber's home] in the last three to four weeks because she didn't like the way [Barber] was treating the baby.” Conner had explained that Autumn was a “very fussy child” who “cries all the time, especially when [Barber] is around and especially when [Barber] has the baby.” She had also indicated to the investigating officer that Barber became frustrated with the crying, and she had reported seeing him shake Autumn “four or five times.”
The jury convicted Barber of aggravated battery under K.S.A. 21–3414(a)(1)(A) and child abuse under K.S.A. 21–3609. At sentencing, the trial court found Barber to have committed the aggravated battery with excessive brutality. Therefore, the court imposed an upward departure sentence of 128 months' imprisonment for aggravated battery and the standard 34–month sentence for child abuse, which the court ordered Barber to serve consecutively.
We will add additional facts as necessary to a discussion of each issue.
Barber argues the trial court committed error by admitting testimony regarding prior instances of him shaking or roughly handling Autumn. The State first contends this issue was not properly preserved.
K.S.A. 60–404 provides:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”
Barber did not object during Conner's testimony nor did he object when the investigating officer recounted the statements of both Brown and Conner. Perhaps because of this, Barber's appellate brief raises an issue only about Brown's testimony, during which he did state an objection.
Despite Barber's objection to Brown's testimony, the State argues Barber did not preserve the issue for appeal because the trial objection was not “stated as to make clear the specific ground of objection.” The State acknowledges that Barber did raise a specific objection to the evidence during the pretrial hearing; however, the State argues the pretrial objection cannot be seen as “timely interposed.”
Before the jury, Barber's counsel objected without explanation and asked to be heard on the objection. The court recessed, at which point defense counsel did not present a legal argument to the court or cite a specific rule of evidence. Instead, defense counsel asked the court “to prohibit these types of examples based on our previous motions and rulings.” The trial court overruled the objection.
In interpreting K.S.A. 60–404's requirement that an objection be “timely interposed,” this court has required a party to state a trial objection to evidence even if the trial court had issued a pretrial ruling on the matter. Barber's counsel did object at trial, giving the court time to reconsider the pretrial ruling.
The State argues, however, that to be timely interposed the trial objection on its own must meet the specificity requirement of K.S.A. 60–404. This court's prior decisions do not support the State's argument, however. We have explained that a trial objection must be as specific as necessary to allow the trial court to “consider as fully as possible whether the evidence should be admitted and...
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