State v. Bruce
| Decision Date | 27 May 1994 |
| Docket Number | No. 69344,69344 |
| Parties | STATE of Kansas, Appellee, v. Donald E. BRUCE, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Where a crime requires a specific intent, an instruction on voluntary intoxication as a defense to the crime may be appropriate.
2. The distinction between a general intent crime and a crime of specific intent is whether, in addition to the intent required by K.S.A. 21-3201, the statute defining the crime in question identifies or requires a further particular intent which must accompany the prohibited acts.
3. The words "willfully torturing" in K.S.A. 21-3609 do not cause child abuse to be a specific intent crime.
4. A trial judge has a duty to clarify whether a jury wants a transcript of testimony or merely wants a read-back and, if a read-back is desired, to determine to what extent the read-back is necessary.
5. The trial court is free to clarify the jury's read-back request where the read-back request is unclear or too broad or where the read-back would jeopardize the manageability of the trial. Discretion rests with the trial court to clarify and focus the jury's inquiry.
6. A litigant may not invite and lead a trial court into error and then complain of the trial court's action on appeal.
7. A defendant is not permitted to join in a request for specific language to be used in answering a jury's question and then, on appeal, claim that the trial court erred in using that language.
8. Absent an unequivocal recommendation for modification of a sentence by the Wendy L. Rhyne Slayton, Sp. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief, for appellant.
Topeka Correctional Facility, the court has discretion in modifying the sentence and commits no error in refusing modification absent an abuse of that discretion.
Frank D. Diehl, Asst. Dist. Atty., argued the cause, and Christine E. Kenney, Asst. Dist. Atty., Gerald E. Wells, Dist. Atty., and Robert T. Stephan, Atty. Gen., were on the brief, for appellee.
This is a direct appeal by the defendant, Donald E. Bruce, who was convicted by a jury of one count of child abuse (K.S.A. 21-3609) and one count of felony murder (K.S.A.1992 Supp. 21-3401). He received sentences of 3 to 10 years for child abuse and life imprisonment for felony murder. The sentences were ordered to run concurrently. The trial court denied the defendant's motion for modification.
The defendant raises three issues on appeal. He contends the trial court committed reversible error in failing to instruct the jury on voluntary intoxication and in responding to a request by the jury. He also alleges the trial court abused its discretion in failing to consider probation as an option when denying a modification motion.
The victim in this case was 23-month-old Eric Brewer. Eric was 34 inches tall and weighed approximately 28 pounds. The autopsy revealed 57 separate bruises on the trunk of his body, the most severe of which were on his chest where there were at least 27 separate bruises. There were 104 separate bruises on his legs, arms, hands, back, and buttocks.
The pathologist's internal examination of Eric revealed extensive injuries. There was hemorrhaging in the chest area and around the pericardial sac surrounding the heart, as well as small hemorrhages scattered over the surface of the heart. There was also hemorrhaging over the surfaces of the lungs and into the diaphragm muscles, consistent with the result of very severe blows to the chest area. Eric's liver was essentially torn in half, and there was extensive hemorrhaging into his stomach and abdominal cavity. Eric's pancreas was torn and fragmented. There were also injuries and hemorrhaging around the tissues surrounding the kidneys and adrenal glands.
The pathologist was of the opinion that Eric died as a result of severe internal injuries to the liver and pancreas. This type of injury could have resulted from someone placing their knees on the abdomen and chest and coming down with some force or from a severe kick. The pathologist testified,
Eric's parents, Wendy Brewer and Scott Brewer, were separated. Wendy was engaged to the defendant. On February 4, 1992, the night before Eric's death, Scott Brewer was with Eric until approximately 12:00 or 12:30 a.m. when Wendy and the defendant (along with Wendy's father) picked up Eric. The defendant testified that prior to picking Eric up and over a period of at least four hours, he consumed three or four bottles of beer and six to nine mixed drinks. Wendy's father took her, Eric, and the defendant to the mobile home of Bronica and Robert Aden. Bronica Aden is the defendant's half-sister and Wendy's stepsister.
The defendant testified at trial and also gave the police two handwritten, signed statements. The first was given at 3:32 p.m. on February 5, 1992. It was admitted into evidence at trial and read into the record. It reads as follows:
Relatives of Bronica and the defendant, including their mother, sister, and two brothers, testified that Bronica told them she had awakened at approximately 3:00 a.m. to use the bathroom and she saw her husband, Robert Aden, playing with Eric at that time. This was while Wendy and the defendant were away from the trailer. One witness testified that Bronica told him Robert had gone back to Eric's room three or four times and was pacing, and Eric stopped crying the third time. Bronica's and the defendant's sister and mother both testified that Bronica told them she felt that Robert, not the defendant, had killed Eric. At trial, Bronica denied having awakened while Wendy and the defendant were absent from the trailer.
Other witnesses included Detective Davis, who had questioned the defendant after Eric's death and who had witnessed the written statements given by the defendant. One of the main differences between the information the defendant gave to Detective Davis and the defendant's testimony in court is that Detective Davis testified that at one point the defendant told him when he returned to the trailer with Wendy at approximately 4:00 a.m. and checked on Eric, Eric was not breathing. Detective Davis testified that the defendant told him he attempted to resuscitate Eric by pushing on Eric's chest and blowing into Eric's mouth. Eric's body was cold and his lips were purple. The defendant put Eric back into his sleeping bag and did not tell anyone what had happened. However,
the defendant had also told Detective Davis...
To continue reading
Request your trial
-
State v. Ellmaker
...intent that must be established to prove the elements of the charged crimes or various lesser included offenses. See State v. Bruce, 255 Kan. 388, 394, 874 P.2d 1165 (1994) ("`The distinction between a general intent crime and a crime of specific intent is whether, in addition to the intent......
-
State v. Lewis
...record was about 2 hours later when the jury announced it had reached its verdicts.Invited Error/Preservation In State v. Bruce, 255 Kan. 388, 397–98, 874 P.2d 1165 (1994), this court applied the invited error doctrine to the defendant's objection on appeal to the district court's response ......
-
State v. Bodine
...119 P.3d 1148 (2005) (same). Child abuse and aggravated child endangerment are not specific intent crimes. See State v. Bruce , 255 Kan. 388, 394-95, 874 P.2d 1165 (1994) (child abuse is not a specific intent crime; intent to injure is not required); State v. Cummings , 45 Kan. App. 2d 15, ......
-
State v. Cash
...his or her right to challenge trial court's response to jury request by failing to make contemporaneous objection); State v. Bruce, 255 Kan. 388, 397, 874 P.2d 1165 (1994) (applying invited error doctrine to defendant's argument on appeal regarding court's response to jury question when rec......