State v. Broyles

Decision Date14 December 2001
Docket NumberNo. 85,256.,85,256.
Citation36 P.3d 259,272 Kan. 823
PartiesSTATE OF KANSAS, Appellee, v. BRYAN L. BROYLES, Appellant.
CourtKansas Supreme Court

Daniel E. Monnat, of Monnat & Spurrier, Chartered, of Wichita, argued the cause and was on the brief for appellant.

Melissa G. Johnson, assistant attorney general, argued the cause, and Carla J. Stovall, attorney general, was with her on the brief for appellee.

The opinion of the court was delivered by

LARSON, J.:

This is Bryan L. Broyles' direct appeal of his jury conviction of first-degree felony murder, K.S.A. 21-3401(b), with the underlying felony being abuse of a child, K.S.A. 21-3609, for the death of his 6-month-old son. He was sentenced to life imprisonment with consideration of parole after 15 years (hard 15). Our jurisdiction is pursuant to K.S.A. 22-3601(b)(1).

Broyles contends his conviction should be reversed based on (1) insufficiency of evidence, (2) prosecutorial misconduct, (3) admission of hearsay reports and conclusions of nontestifying medical experts, (4) exclusion of relevant evidence supporting his theory of defense, (5) admission of speculative and confusing rebuttal evidence, (6) refusal to strike a biased venireperson for cause, later removed by a peremptory strike, and (7) cumulative error.

Factual and procedural background

While the medical evidence was disputed, and Broyles vigorously contended none of his actions resulted in his son's death, the remaining facts were not largely in dispute.

On the morning of September 1, 1998, 6-month-old Hagen Broyles appeared to be in his usual healthy state. The only previously noticed injuries were two small bruises on his neck and one on his chest, spotted by his mother, Mandi Brown, after he was picked up from Country Kids Day Care Center several days previously. His mother brought him to Country Kids Day Care Center, which he had been attending for the last week. A day care center worker named Megan Larcum was working there at the time. At 3:45 p.m., Hagen was picked up by his babysitters, Karen Stack and Tonya Rogers. Neither noticed anything unusual about Hagen's behavior. The girls took Hagen to Alco, where his mother worked, in order to buy diapers. Brown visited with Hagen for a short time while she was working and stated he appeared fine and was laughing. While at Stack's house, Hagen ate and played. Around 6 p.m., he was picked up by Broyles. He took Hagen to his mother's home for approximately 45 minutes, then went home to the trailer he and Brown had recently purchased. Only he and Hagen were present at the trailer.

Broyles stated that Hagen appeared fine when he first picked him up but later on became fussy, and that he would fall asleep, then wake up crying. Bryan testified that at approximately 8 p.m., he was changing Hagen's diaper and noticed Hagen was gasping for air and then stopped breathing. He picked Hagen up and Hagen's eyes rolled back and his body went limp. He called 911 for help and arranged to meet an officer at a major intersection close to his trailer. When the deputy sheriff arrived at the scene, he noticed Broyles sitting with a baby in the truck, and the child's face appeared blue. After a failed attempt at conversing with Broyles, he took the child from Broyles' arms and administered rescue breathing until an ambulance arrived. Hagen was initially taken to Greenwood County Hospital, where he was examined by Dr. Michael McClintick. Dr. McClintick did not notice any large areas of bruising on Hagen; however, Hagen was unresponsive and anemic (low red blood cell count due to blood loss). Hagen was flown to Wesley Medical Center in Wichita, Kansas.

While at Wesley, concerns arose about the nature of Hagen's injuries. A pediatrician from the Child Protection Team, Dr. Katherine Melhorn, was consulted. She interviewed Mandi, spoke to the hospital staff involved, and also examined Hagen. She noted petechial bruising (superficial breaks of blood vessels which cause little red spots) on Hagen's right forehead and around his right eye. She also noticed a circular brown bruise below the jaw and an irregular purplish bruise on the right ankle. Upon examination of Hagen's eyes with an ophthalmoscope, she noticed hemorrhaging in both retinas. The same retinal hemorrhages were also seen by Dr. Curtis Pickert, another attending physician at Wesley. Dr. Pickert also noted the soft spot on Hagen's skull was ridged, evidencing swelling of the brain.

Several other tests were performed and it was discovered that Hagen did have cerebral edema, or swelling of the brain. A large subdural (under the dura mater of the skull, but on top of the brain) hematoma was discovered on the front right side of Hagen's head. The hematoma appeared to be acute (new blood), estimated at less than 10 days old. The report also stated there was potential evidence of a chronic (old) hematoma. Hagen never regained consciousness from the time he was admitted into the hospital. Tests showed his brain was no longer viable; he was removed from life support and pronounced dead on September 3, 1998.

A subsequent autopsy by Dr. Corrie May revealed Hagen had three fractured but healing ribs, which had been broken at least 7 to 10 days prior. She also found a skull fracture approximately 2 inches in length at the back of Hagen's skull. When the skull was opened, she spotted and photographed multiple sites of subarachnoidal hemorrhages (bleeding between the brain and the thin cellophane-like layer covering the brain called the arachnoid membrane). She also spotted evidence of a very minute amount of old bleeding, appearing as a yellowish streak, which she stated could have in no way been attributable to the new subdural and subarachnoidal hemorrhages.

Hagen's brain was also examined by Dr. Michael Handler. He noted that there was a substantial amount of dead neurons (dead brain tissue). He also spotted an old subdural hemorrhage, but noted that it was well past the healing stage, possibly even months old, and could have in no way be attributable to the new bleeding. Dr. Handler did a test for retraction bulbs on the axons which would have been indicative of diffuse axonal injury, generally related to shaking of infants. (The retraction bulbs form as part of a healing attempt by the brain, in an attempt to reconnect neurons that have been torn apart.) The test results were negative, but he explained that was probably due to the quick onset of lack of oxygen to the brain or that so many neurons were torn that brain death was immediate. He stated that the bulbs take 18 to 72 hours to form, and once the tissues die the reparative process stops.

At Broyles' trial, Dr. Melhorn opined that Hagen died of abusive head trauma. Dr. May concluded that the cause of death was shaken impact syndrome. Dr. Handler testified the brain injuries were not consistent with a fall, but rather with shaken baby syndrome, where the child was shaken, then thrown. Dr. Pickert stated that Hagen's condition did not fit his reported history and that child abuse may have been the cause of his injuries. Dr. May opined that the injuries to Hagen's ribs, due to their posterior location and the age of the infant, indicated inflicted, not accidental, trauma. Drs. Handler, May, and Melhorn each agreed that there was no possibility Hagen could have appeared normal after he received the head injury.

In his defense, Broyles called Dr. Michael Arnall, who had reviewed the reports and records surrounding Hagen and his medical treatment. Dr. Arnall concluded the subdural hematoma resulted from spontaneous rebleeding, resultant of no trauma or a trivial amount of trauma. He based this conclusion on lack of a finding of any evidence of new trauma, in that there were no retraction bulbs discovered and no evidence of new rib fractures. He found the skull injury to be "quizzical" and opined that the skull fracture might be an old fracture that was pulled apart (rebroken) by the swelling of the brain. Considering the possibility that Hagen did in fact die from being shaken, Dr. Arnall stated the onset of symptoms from a blunt force trauma or shaking could be over several days, weeks, or even years. He noted that symptoms might include cursory fits, change of eating habits or lack of appetite, fussy behavior, or too much or too little sleep, but he added that some children may not display any symptoms.

The jury found Bryan Broyles guilty of felony murder. His motion for a new trial was denied. He was sentenced as earlier stated and now appeals.

Insufficient evidence

When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000).

Broyles' challenge is directed to conflicting medical expert testimony. While he does admit that several medical conditions of Hagen were proven at trial, he notes that although Dr. Arnall's opinion was based on the same general facts, he reached a different opinion than the State's medical experts. He contends this conflict shows insufficiency of the evidence. When reviewing sufficiency of the evidence in a case such as this, we said in State v. Saiz, 269 Kan. 657, 664, 7 P.3d 1214 (2000), that "[i]t is not the function of an appellate court to reweigh the evidence or pass on the credibility of witnesses. [Citation omitted.] A conviction of even the greatest offense may be sustained by circumstantial evidence. [Citation omitted.]" This has been our longstanding rule.

The State's medical experts noted Hagen had three broken but healing ribs, a fracture in the back of his skull, hemorrhaging around the fracture, and retinal hemorrhaging in both eyes. They concluded Hagen died of shaken impact syndrome,...

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