State v. Armstrong
| Docket Number | 124,709 |
| Decision Date | 09 June 2023 |
| Parties | State of Kansas, Appellant, v. Lukas S. Armstrong, Appellee. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Douglas District Court; STACEY DONOVAN, judge.
Jon Simpson, senior assistant district attorney, Suzanne Valdez district attorney, Derek Schmidt, former attorney general and Kris W. Kobach, attorney general, for appellant.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.
Before BRUNS, P.J., CLINE and HURST, JJ.
The State filed this interlocutory appeal from an order of the district court suppressing certain evidence from being presented at trial. On appeal, we find that we have jurisdiction to consider the issues presented. Based on our review of the record on appeal, we find that it was within the district court's discretion to suppress forensic imaging of two cellphones as a discovery sanction. We also find that it was within the district court's discretion to prevent a therapist from testifying at trial-unless necessary to provide foundation or authentication testimony for her records-as an additional discovery sanction. At the same time, we find that the district court erred by suppressing the therapist's records because they were not in the possession and control of the State. Thus, we affirm in part, reverse in part, and remand with directions.
On September 13, 2019, R.J.-who was two years old-was taken to Children's Mercy Hospital by his step-grandmother after she noticed injuries when changing his pull-up diapers. Although the record on appeal is limited, it appears that R.J. had spent the previous night with his mother and Lukas S. Armstrong, who was his mother's live-in boyfriend. When the step-grandmother asked R.J. what had happened to him, he said: "Lukas spanked me." During his examination at Children's Mercy Hospital, R.J. was found to have suffered injuries "indicative of violent child abuse...."
The Lawrence Police Department was notified about the suspected child abuse and began an investigation. As part of the investigation, Officer Brett Horner interviewed the step-grandmother. In doing so, he discovered that she had been taking photographs on her cellphone for about a month that purportedly showed other injuries that she observed on R.J.'s body after his mother dropped him off at her home. After looking at the photographs, Officer Horner obtained images of the photographs of R.J.'s injuries that were taken by the step-grandmother.
According to the step-grandmother, the injuries to R.J. started occurring more consistently after his mother let Armstrong move in with her. The step-grandmother told Officer Horner that the injuries to R.J. had not been there when she had cared for him two nights before. R.J.'s father had cared for him the following morning but indicated that he did not see any injuries. Around lunchtime on September 12, R.J. was returned to his mother's residence. Evidently, Armstrong was alone with R.J. for several hours that afternoon and evening.
Officer Horner also interviewed both R.J.'s mother and Armstrong. They denied abusing R.J. and offered various explanations for his injuries. In addition, they suggested that R.J.'s father's family was putting ideas into his head. While interviewing Armstrong, Officer Horner also obtained Armstrong's permission to perform forensic imaging on his cellphone. After the imaging was completed, Officer Horner returned the phone to Armstrong.
On July 10, 2020, the State charged Armstrong with the abuse of a child and aggravated battery. In support of the arrest warrant, Officer Horner prepared a 15-page affidavit-dated May 8, 2020-in which he set out in graphic detail the information gleaned from his investigation. Significant to the issues presented in this interlocutory appeal, Officer Horner stated that the step-grandmother "started photographing RJ's injuries" and "created a file in her cell phone camera . . . called 'RJ's ouchies.'" She "stated that she had 57 pictures" and "showed [Officer Horner] the camera roll on her cell phone."
Besides obtaining the photographs of R.J.'s injuries from the step-grandmother's cellphone, Officer Horner stated in the affidavit that he asked Armstrong if he could "image his cell phone" and he "agreed." The officer explained that he "forensically imaged [Armstrong's] cell phone" and "gave the phone back to [Armstrong] once [he] was done." The affidavit does not say what happened to the information obtained from either Armstrong's cellphone or the step-grandmother's cellphone.
While the case was pending, the parties filed several motions. Moreover, several different prosecutors were assigned to the case at various points. On March 15, 2021, the State filed a motion for reciprocal discovery. In the motion, the initial prosecutor who handled this case stated that "[t]he State has complied with K.S.A. 22-3212 and in accordance with the open record's policy of the District Attorney's Office, has provided defense counsel with all the discovery in this case." Even so, it is undisputed that neither the photographs obtained from the step-grandmother's cellphone nor the information forensically imaged from Armstrong's cellphone had been provided to defense counsel at that point.
On June 2, 2021, the State amended the complaint against Armstrong to include a higher severity level offense of abuse of a child under K.S.A. 2019 Supp. 21-5602(a)(1), (b)(2)-reflecting that the abuse occurred to a victim less than six years old-while the aggravated battery charge remained unchanged. On the same day, Armstrong waived his right to a preliminary hearing and to a formal arraignment on the amended complaint. Accordingly, the district court bound Armstrong over for trial and set the case for a jury trial to begin on December 6, 2021.
Armstrong moved to compel discovery on August 27, 2021, in which he requested "any evidence, material, or information within the possession, custody and control of the State, agents or representative of the State, or that by the exercise of reasonable diligence may be obtained by the State." Armstrong then referred to the types of discovery requested, including "relevant treatment or counseling records," "[a]ddresses of all endorsed witnesses, and other witnesses known who are material to this case," and "social media data in the care, custody, and control of any witness for the State." In response, the prosecutor indicated that the State had produced "everything that we have," but the information from the cellphones was not provided to the defense. At the same time, the prosecution did acknowledge its ongoing obligation under K.S.A. 2022 Supp. 22-3212 to supplement discovery if additional relevant material was later obtained.
At a hearing held on November 10, 2021, defense counsel told the district court that it appeared that Officer Horner-who was present at the hearing-had obtained information from cellphones during his investigation and stated that he "would like to have those forensic downloads if that was done in this case." In response, the prosecutor representing the State at the hearing told the district court:
The district court then asked the prosecutor to confirm that there were no downloads of cellphones, and the prosecutor responded: Once again, the State reiterated that all the evidence provided by the Lawrence Police Department to the District Attorney's Office had been provided to defense counsel. Based on the prosecutor's representations, the district court denied Armstrong's motion to compel discovery and found that "the State is in compliance with their duty to provide discovery."
The district court then turned to whether statements made by Armstrong to the police would be admissible at trial, and Officer Horner was called to testify. During his direct testimony, Officer Horner volunteered that Armstrong had "allowed me to forensically image his phone." On cross-examination, defense counsel inquired further regarding the information obtained from Armstrong's cellphone:
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