Futrell v. Commonwealth, 2013–SC–000184–MR

• Decision Date: 24 September 2015
• Docket Number: 2013–SC–000200–MR,2013–SC–000184–MR
• Citation: 471 S.W.3d 258
• Parties: Jared Futrell, Appellant v. Commonwealth of Kentucky, Appellee Kayla Lord, Appellant v. Commonwealth of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

471 S.W.3d 258

Jared Futrell, Appellant

v.Commonwealth of Kentucky, Appellee

Kayla Lord, Appellant

v.Commonwealth of Kentucky, Appellee

2013–SC–000184–MR

2013–SC–000200–MR

Supreme Court of Kentucky.

RENDERED: SEPTEMBER 24, 2015

Counsel for Appellant, Jared Futrell: Shannon Renee Dupree, Assistant Public Advocate.

Counsel for Appellant, Kayla Lord: Karen Shuff Maurer, Assistant Public Advocate.

Counsel for Appellee: Jack Conway, Attorney General of Kentucky, Jason Bradley Moore, Assistant Attorney General.

Opinion

OPINION OF THE COURT BY JUSTICE ABRAMSON

Jared Futrell and Kayla Lord appeal as of right from Judgments of the Wayne Circuit Court convicting each of them of wanton murder and sentencing each, in accord with the jury's recommendation, to a maximum term of twenty-five years in prison. Lord and Futrell (Appellants) were found guilty of having participated, as principal or as accomplice, in the wanton killing of Lord's seventeen-month-old son. Appellants were tried jointly, and because their cases thus overlap to a large extent, both factually and procedurally, we have consolidated the two appeals for consideration in this single Opinion.

Also overlapping are the issues raised, because Appellants make the identical allegations of error. Each contends that he or she is entitled to be acquitted because the Commonwealth failed to prove his or her guilt. If that relief is denied, each further contends that for a number of reasons the case should be retried. The trial court erred, Appellants maintain: (1) by failing to excuse two potential jurors for cause; (2) by allotting them too few peremptory juror challenges; (3) by recognizing a child-abuse pediatrician as an expert witness; (4) by allowing that witness to opine that the injuries suffered by the child in this case were not the result of an accident; (5) by admitting evidence of both parties' prior bad acts; (6) by admitting into evidence gruesome autopsy photographs; (7) by denying Appellants a full opportunity to cross-examine one of the Commonwealth's witnesses; (8) by giving a wanton murder jury instruction that incorporated unproved theories of the crime; (9) by giving a combination “principal or accomplice” jury instruction; and (10) by refusing to give jury instructions on the lesser included offenses of first-degree manslaughter and reckless homicide. We agree with Appellants that in both cases the trial court abused its discretion by refusing to remove for cause two unqualified prospective jurors and that under Gabbard v. Commonwealth,297 S.W.3d 844 (Ky. 2009), it is necessary to reverse and remand for additional proceedings. Other issues will be addressed only to the extent that they could recur upon a retrial.

RELEVANT FACTS

The Commonwealth's proof tended to show that at about 7:55 a.m. on July 16, 2011 Lord and her boyfriend, Futrell, brought Lord's seventeen-month-old son, Staten Stephenson, to the Wayne County Hospital emergency room. An emergency-room nurse, Tabitha Watters, testified that Futrell, distraught and hugging the child against his chest, carried the child through the lobby area directly into an examining room. He was soon followed by Lord, although it was the nurse's impression that Lord had stayed behind momentarily to attend to her makeup. The child was dressed in only a diaper, and the nurse testified that he was “covered in bruises.” She charted at the time six bruises, but she testified that there were more than that—on the front and back of the head, on the cheek, on the right arm, on both sides of the abdomen extending around to the back, and on the right thigh.

The emergency room physician, Dr. Glenn Proudfoot, testified that initially the child was not breathing, had a ghastly pallor, and appeared to be dead. The child also had a grossly distended and taut abdomen, a sign, according to the doctor, that the abdomen was full of air. Concerned that pressure from the abdomen would interfere with efforts to breathe artificially for the child, Dr. Proudfoot attempted to release the air by inserting an “NG” (naso-gastrial) tube down the child's esophagus and into his stomach.¹The doctor found, however, that the tube would not go all the way down. When the doctor withdrew the tube he observed what appeared to be (and what later was determined to be) chewing gum on the end of it. Dr. Proudfoot then inserted (after three tries to get the right fit) an endotracheal breathing tubeinto one of the child's lungs.

Notwithstanding the setback with the NG tube, Dr. Proudfoot eventually succeeded in restoring Staten's vital signs, and arrangements were made to airlift him to the University of Kentucky Medical Center. The child was placed in the helicopter, but before the helicopter could depart, he again lapsed into cardiac arrestand was returned to the emergency room. Dr. Proudfoot then determined that relieving the pressure in the child's abdomen was essential. Although he had never before performed the procedure, he inserted a large IV needle into the abdominal cavity. He testified that air immediately escaped through the needle with an audible rush. As soon as the abdominal pressure was relieved, the doctor testified, the child's vital signs stabilized so as to allow his evacuation to UK. Dr. Proudfoot testified that the discovery of the gummy substance on the NG tube suggested at the time that Staten may have choked on chewing gum, but he could not know that to any degree of certainty, and he deliberately did not tell the family that that was the case. Asked by the Commonwealth how gum could have migrated from the airway to the esophagus, the doctor admitted that he did not know and had never heard of such a case, but, he testified, he did not think it impossible.

At the UK Medical Center, Staten was initially treated by Dr. Marion Turner. Dr. Turner testified that the child “looked horrible,” that he was pale, cold, and was covered with bruises. His condition was highly unstable and required full life support for several hours. Even before he could be stabilized, surgery was required to repair a stomach rupture revealed by a CT scan. During the surgery, doctors discovered that Staten's small intestine was also damaged, an injury that required additional surgeries to repair. The CT scanand a later MRI revealed numerous traumatic injuries to the child's head, torso, and abdomen, including brain injuriessevere enough to cause the cardiac arrest, which in turn, according to the doctor, caused injuries to other organs.

Once the child had been stabilized, he was photographed. At trial, Dr. Turner used the photographs to point out for the jury numerous traumatic bruises to the child's head, ears, back, and right arm. Dr. Turner testified that it was soon apparent that the brain injurywas irreversible. Not long after that determination Lord and the child's father, Johnny Stephenson, agreed to have the child removed from life support.

Dr. Glenn Elmore, who in July 2011 was a resident at the UK Medical Center, testified that the removal from life support took place at about 10:00 pm on July 26, ten days after the child's appearance at the Wayne County Hospital emergency room. Dr. Elmore testified that Lord requested and was allowed to hold the child until his breathing ceased at about 1:40 am on July 27. A few minutes after the child's passing, according to Dr. Elmore, he overheard Lord say to the friend accompanying her, “I killed him.” Later, during her testimony, Lord claimed that her remark was a reference to her consent to the removal of life support, not a confession to homicide.

About eight hours after Staten Stephenson's death, Dr. Victoria Graham, a forensic pathologist and an assistant Kentucky state medical examiner, performed the autopsy. Illustrating her findings with photographs taken in the course of her examination, Dr. Graham distinguished for the jury between more than thirty bruises which covered the child's body and which the doctor believed were the result of traumatic injury, and several other bruises which the doctor thought were likely the result of medical treatment. Dr. Graham illustrated abrasions and bruises on the child's scalp and additional bruises that appeared only beneath the scalp. She also illustrated an all-the-way-through fracture of the child's occipital bone—the back, lower portion of the skull. Dr. Graham testified that she also observed both subdural and subarachnoidal hemorrhages—bleeding, that is, outside the brain but beneath the dural and arachnoidal membranes. The cause of death, the doctor concluded, was hypoxic (lack of oxygen) ischemic (lack of blood flow) encephalopathy(brain injury), secondary to blunt force injury to the head. The blunt force injuries, the doctor explained, caused the brain to swell, and the swelling cut off the flow of blood and oxygen. Dr. Graham testified she was unaware of any case in which CPR had caused a ruptured stomach or ruptured intestines. She also testified that the skull fracturedid not show signs of healing and so had to have occurred within days, not weeks, of the child's presentation at the emergency room. She testified that she did not examine the fracture microscopically, which would have enabled her to date the fracture somewhat more precisely, because signs of hemorrhage were still associated with the fracture, indicating that it could not be very old, and she believed that the cause of death was apparent without the more precise dating.

In addition to Dr. Graham's causation testimony, the Commonwealth also introduced testimony by Dr. Melissa Currie, the director of the University of Louisville's department of forensic medicine and a board certified child abuse pediatrician. Dr. Currie testified that taken together the number, nature, and severity of the child's injuries—in particular the wide-spread bruising in areas not easily bruised; the ruptures to the child's stomach and intestine; the severe fracture of the thick, not easily struck occipital-bone; and the...