State v. Adams
| Decision Date | 29 April 2011 |
| Docket Number | No. 101,236.,101,236. |
| Citation | 254 P.3d 515,292 Kan. 151 |
| Parties | STATE of Kansas, Appellee,v.Asa ADAMS, Appellant. |
| Court | Kansas Supreme Court |
1. On the record in this first-degree felony murder case, the defense invited any procedural or substantive error that may have existed in the district judge's response to a question from the jury during its deliberations. This court therefore does not reach the merits of the defendant's arguments regarding that response.
2. In this first-degree felony murder case arising out of abuse of the child victim, in which four medical experts testified for the State and the only witness for the defense was the defendant, the district judge did not err by adding expert witness language from PIK Civ. 4th 102.50 to the language of PIK Crim.3d 52.09 when instructing the jury on the weight and credit to be given the testimony. The instructions as given were fair and accurate statements of the law that would not reasonably have misled the jury.
3. The district judge in this first-degree felony murder case did not err in denying, after an evidentiary hearing including extensive testimony from the defendant and her trial counsel, defendant's motion for new trial based on ineffective assistance of that counsel. Counsel's performance was well within the bounds of that constitutionally required, and the defendant was not prejudiced by that performance.
Janine Cox, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.
This is a direct appeal in defendant Asa Adams' first-degree felony murder case. Adams argues that the district judge erred in his answer to a jury question and in giving an expert witness instruction and that she received ineffective assistance of counsel, necessitating a new trial. We affirm.
Adams' felony-murder conviction arose out of events on May 16, 2007, when she was home alone with her two children, 1–year–old Shymire and 4–month–old Righteous. Early that evening, Adams placed Shymire in a bath. Ultimately, she called 911 because Shymire needed emergency medical care. Exactly what transpired between was subject to dispute before the district court.
When Shymire reached the hospital, she was treated for head trauma, severe burns to her lower legs and feet, and other injuries. Despite efforts to save her, Shymire was declared brain dead on May 22, 2007; and the court ordered her life support to be terminated on May 24, 2007. Shymire's heart stopped beating soon after.
Adams was charged with first-degree felony murder, predicated upon felony child abuse, as defined in K.S.A. 21–3609. She pleaded not guilty.
The State's theory of the case was that medical evidence established Shymire's cause of death as traumatic brain injury, complicated by severe burns and other injuries, and that Adams was the only person with an opportunity to inflict the injuries. Its evidence consisted of testimony from medical first responders, police officers, an apartment manager, treating physicians, and a medical examiner. The defense theory of the case was that Shymire's injuries resulted from accidents and were unintentionally exacerbated by defendant's untrained effort to resuscitate her daughter. Adams was the only defense witness. Her lack of memory of certain events was attributed to her illegal drug use on the day of Shymire's injuries and the stress of the entire ordeal.
Given Adams' claim that she received ineffective assistance of counsel at her trial, and the requirement that we pass on prejudice, it is necessary to include the following extensive review of the evidence presented to the jury and the evidence supporting Adams' motion for new trial.
The State's first trial witness was Chad Maugans, a paramedic from Sedgwick County EMS. He testified that he and his partner were dispatched to a seizure call at Adams' apartment and arrived there at 5:18 p.m. During the drive, the call was recategorized to a choking injury. Upon his entry into the apartment, he testified, Shymire was seated on the couch and had little to no consciousness. She was staring ahead of her, making no noises. Maugans noticed burns on her leg and feet and observed mucus in her nose and mouth, although she was breathing. He cleared her airways. As she was being moved to the ambulance, Maugans notified the hospital that it had a burn victim on her way. On route, Maugans said, he continued to treat Shymire and noticed petechial hemorrhages in her eyes and ligature marks around her neck, injuries usually associated with asphyxiation or strangulation. He also observed abrasions on Shymire's head.
On cross-examination, Maugans testified that Adams stood quietly by and watched his and his partner's efforts to treat Shymire. He said that Adams appeared to be in shock or stunned. His dispatch computer indicated Adams had been frantic when she called 911.
The State's second witness, Sherri Rene Brown, was Maugans' partner. She testified that her efforts to gather information from Adams at the scene were futile. She got no responses to any of her questions.
The State's third witness, Josh Mullen of the Wichita Fire Department, testified that he also responded to Adams' 911 call. He observed Shymire on the couch, observed her severe burns, removed mucus from her nose and mouth, and determined that she had a low level of consciousness.
The State's next witness, Wichita police officer Ian Wolfe, became involved in the case when he made contact with Adams shortly after she arrived at the hospital. Adams confirmed that she had been home alone with her two children and was able to respond to his questions logically and coherently. According to Wolfe, Adams said that she had not wanted to leave Shymire alone in the bathtub, that Shymire had had a seizure, and that Adams then moved Shymire to the couch and noticed Shymire's skin was falling off her lower legs. Wolfe testified that Adams told him Shymire had been seated in the bathtub. Wolfe also testified that Adams expressed a lack of understanding of a doctor's comments about burns on Shymire's legs, explaining that the injuries on her legs were the result of sensitive skin or some kind of skin disorder.
Wichita police officer Naomi Arnold was the State's next witness. She was responsible for keeping Adams' apartment clear for investigation, and she walked through the apartment and went into the bathroom. When she opened the bathroom door, she said, the room felt like a sauna; she put her finger in the tub and felt hot water in it.
Kent Bauman, another Wichita police officer with the Exploited and Missing Children Unit, testified next. He too went to Adams' apartment on May 16, 2007. He stated that he did not notice any bath towels, lotions, or baby soaps set out in the bathroom when he entered it, nor did he notice any standing water on the bathroom floor. He said that he had arrived about 8 p.m., and there was no water in the bathtub at that time. He ran each of the bathtub faucets for 30 seconds to 60 seconds and measured the temperature of the water at 138 degrees.
The State's next witness, Frank Johnson, was the on-site apartment manager of the complex in which Adams lived. Johnson testified that he observed Robert Turner, Adams' common-law husband and the children's father, leave the complex on his bicycle at approximately 12:30 p.m. on May 16, 2007. The parties stipulated that Turner clocked into his job at 12:49 p.m. and clocked out at 9:42 p.m. on that day. At about 6 p.m. on May 16, 2007, Johnson testified, he received numerous calls from Adams, instructing him not to allow police to enter her apartment.
Jonathan Dort, Chief of Surgery at St. Francis Hospital, testified next. Dort was part of the emergency room trauma team that treated Shymire on her arrival at the hospital. Dort observed that Shymire was poorly responsive, somnolent, and not alert. She was not scared or crying like a normal child with her burn injuries would be. He observed no signs indicating that she had suffered a seizure. A CAT scan showed small hemorrhages to Shymire's brain. It also showed fluids and stomach contents in her chest and in her lungs, which was evidence of aspiration. Dort observed bruises on Shymire's abdomen and testified that they were not consistent with an effort to resuscitate her. Dort said that, while he treated Shymire in the ER, he suspected that the injuries were not accidental, because the combination of burns, head trauma, and marks on the neck could not be attributed to a single cause or mechanism. Defense counsel did not cross-examine Dort.
Pediatrician Katherine Melhorn, M.D., testified next for the State. She said that she specialized in child abuse evaluations. She visited Shymire in the hospital the day after she arrived, read Shymire's medical history, and concluded that Shymire did not have a seizure disorder. Melhorn also concluded that Shymire's injuries could not have been caused by a short seizure and that there was nothing to indicate any preexisting health issue that could have caused her injuries. Melhorn described the injuries to Shymire's lower legs and feet as inflicted immersion burns. Shymire also had bruises on her legs and torso resulting from inflicted blunt force trauma and three bruises behind her right ear resulting from blunt force trauma. She had a bruise and abrasion on her forehead, which Melhorn was less certain about; but she testified they too had probably been caused by blunt force trauma. Shymire's internal brain damage resulted from a closed head injury caused by blunt force trauma. In Melhorn's opinion, the burns on Shymire's legs may have contributed to Shymire's death, but the ultimate...
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