State v. Cameron

• Decision Date: 25 July 2014
• Docket Number: No. 105,828.,105,828.
• Citation: 329 P.3d 1158
• Parties: STATE of Kansas, Appellee, v. DeWhite B. CAMERON, Appellant.
• Court: Kansas Supreme Court

329 P.3d 1158

STATE of Kansas, Appellee,

v.DeWhite B. CAMERON, Appellant.

No. 105,828.

Supreme Court of Kansas.

July 25, 2014.

Syllabus by the Court

1. By operation of statute, there are no lesser included offenses of felony first-degree murder.

2. Changing a theory of an objection to a jury instruction between trial and appeal is tantamount to having made no objection below because the trial court did not have the opportunity to consider the argument submitted on appeal.

3. Every person is qualified to be a witness unless otherwise provided by statute.

4. A witness is to be disqualified if the judge finds that the proposed witness is incapable of expressing himself or herself concerning the subject of testimony so as to be understood by the judge and jury or if the proposed witness is incapable of understanding the duty of a witness to tell the truth.

5. The burden of establishing the incompetence of a witness lies with the party challenging the witness' competence.

6. Age alone is not a valid criterion for disqualifying a witness.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Leslie A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by ROSEN, J.:

DeWhite Cameron appeals from his jury convictions of one count of felony murder and one count of aggravated battery arising from the injuries sustained by two young children.

Cameron lived in a house in Wichita with Shaneekwa Saunders and her three boys, Sedrick and 2–year–old twins Damion and Trayvion, and her young daughter Sanna.

On the morning of September 19, 2008, a neighbor across the street from Cameron started to walk to a store when he heard Cameron calling out that his son was not breathing. The neighbor told Cameron to call 911, but Cameron said he had no telephone. The neighbor returned to his own house and directed Diane Davis, a woman who was visiting, to call 911.

Davis testified that she went across the street and into Cameron's house. She saw two small children eating something off the floor and another little boy standing with his hands behind his back facing a corner. Davis asked the boy in the corner where his father was, and the boy replied, “Well, I can't talk to you because I'll get in trouble.”

Cameron then walked in the house through a back door and took Davis to a hallway where another child was lying on the floor. The child was not breathing and had scratches on his neck and bruises on his face. He was wearing a diaper that looked like it had not been changed for a couple of days. Cameron told Davis that the child had fallen off the potty and hit his head. Cameron proceeded to press on the child's chest and slap the child's face, and Davis heard a liquid, gurgling sound coming from the child's chest.

When paramedics arrived, Davis noticed that one of the younger boys had bruises and scratches much like the unconscious child's injuries, and she encouraged the paramedics to take that child with them to the hospital. As Davis was walking away from the house, she overheard that child tell another neighbor, Euva Parker, “My daddy did it.”

Parker, who lived four houses down the street from Cameron, testified that she heard Davis running out of Cameron's house screaming to call the police, which prompted Parker to check on what was wrong. Parker entered Cameron's house and, upon seeing a little boy lying on the floor with his twin brother standing over him, asked Cameron what had happened. He responded that the child fell out of the bathtub and had water in his lungs. She asked Cameron again, and this time he responded that the child had fallen off the toilet and hit his head.

Cameron told Parker the other children were in the kitchen. When she looked in the kitchen, she saw the little girl sitting on the floor eating cereal and Sedrick standing in the corner facing the refrigerator. Sedrick did not move from the corner during the entire time Parker was there, and he told her that he could not talk because he would get in trouble. Parker noticed that both of the twins had similar patterns of scratches and bruises. Parker returned and watched Cameron pushing on Damion's chest and slapping his face. Parker heard liquid sounds coming from the child's chest, and Cameron again told her that the child had fallen in the bathtub.

Parker and Davis escorted the two remaining children to Parker's house. While they were walking down the street, Sedrick told Parker, “My daddy hurt my brother.” When Parker said, “What?” Sedrick responded, “My daddy hurt my brother, he make my brother not breathe.” There was testimony that Sedrick routinely referred to Cameron as his “daddy.”

Another neighbor watched Cameron take a black trash bag out of his house, return to the house, and then go back outside and walk over to a tree in his backyard. About 5 to 10 minutes later, the neighbor heard and saw the ambulance arrive at Cameron's house. A police officer later went into Cameron's backyard and located a bag of trash containing a towel that had fresh blood on it.

The paramedics who responded to the call found Damion lying unresponsive on the floor. Cameron told one of the paramedics that Damion had fallen in the bathtub and hit his head. Lieutenant Thomas Benefiel of the Wichita Fire Department also arrived in response to the 911 call. He asked Sedrick what had happened, and Sedrick responded, “Daddy got mad.”

When Damion arrived at the hospital, his heart was not beating and his airway was full of blood. The medical staff was able to resuscitate Damion briefly and reestablish a heart beat. Shortly afterward, however, a pair of blood-flow scans showed that Damion was brain dead. Trauma surgeon Dr. Don Vasquez concluded that the injuries leading to his death occurred within 6 hours of his death.

An autopsy showed that the cause of Damion's death was multiple blunt-force traumas and brain swelling. At least 20 blunt-force injuries were identified on his head. Three physicians testified that the traumas were so severe that the injuries would have become critical almost immediately.

Dr. Vasquez took special notice of Trayvion, observing that he lacked the affect of a typical 2–year–old child and that he looked like he “had been in a bar fight.” He had two black eyes, cuts on his lip, and a scratch on the front of his neck. A CT scan revealed that Trayvion had what appeared to be a “healing liver laceration,” which is an injury that Dr. Vasquez had never seen in an infant. Trayvion also had a fractured rib and a bruised lung.

The other children were brought into the hospital for examination. Sedrick asked Kim Tanner, a registered nurse, whether his father was in jail. She asked why he would be in jail, and then she asked Sedrick whether his father had spanked his brothers. He replied, “No, he whooped [or whupped] them.”

The State charged Cameron with one count of felony murder for the death of Damion and one count of aggravated battery for the injuries to Trayvion. A jury found Cameron guilty of both charges. The trial court sentenced Cameron to a hard 20 life sentence for murder and a consecutive high-end guideline sentence of 172 months' imprisonment for the aggravated battery.

Involuntary Manslaughter as a Lesser Included Offense of Felony Murder

Cameron contends that he was entitled to an instruction on involuntary manslaughter as a lesser included offense of felony murder because the evidence would have supported a conviction based on reckless conduct.

After Cameron's trial, the legislature amended the first-degree murder statute, K.S.A. 21–3401. The recodified statute, K.S.A.2013 Supp. 21–5402(d) states that the provisions of K.S.A.2013 Supp. 21–5109 relating to lesser included crimes are not applicable to murder in the first degree under K.S.A.2013 Supp. 21–5402(a)(2), which defines felony murder. See L.2013, ch. 96, sec. 2. The legislature also inserted a subsection (e) to 21–5402, which reads: “The amendments to this section by this act establish a procedural rule for the conduct of criminal prosecutions and shall be construed and applied retroactively to all cases currently pending.” L.2013, ch. 96, sec. 2.

Following oral argument in this case, we issued our opinion in State v. Todd, 299 Kan. 263, Syl. ¶ 4, 323 P.3d 829 (2014), in which we determined that the amendments in K.S.A.2013 Supp. 21–5402 eliminated lesser included offenses of felony murder and that the amendments are to be applied retroactively. The issue of involuntary manslaughter as a lesser included offense of felony murder is therefore without merit, and by operation of the statute, it was not error for the trial court to fail to give the instruction that Cameron requested.

Reckless Aggravated Battery as a Lesser Included Offense of Intentional Aggravated Battery

The jury convicted Cameron of intentional aggravated battery against Trayvion. On appeal, Cameron contends that it was reversible error not to instruct the jury on a theory of reckless aggravated battery.

At trial, Cameron objected to the instruction on intentional aggravated battery “as not being supported by the evidence.” Cameron did not object to the instruction based on an argument that a lesser included offense instruction of reckless aggravated battery was appropriate. On appeal, however, he changed his challenge to the battery instruction to one of a failure to add a lesser included offense instruction. Because Cameron did not raise this objection or propose the lesser included offense instruction to the trial court, the standard of review is clear error. See, e.g., State v. Tapia, 295 Kan. 978, 995, 287 P.3d 879 (2012); State v. Ellmaker, 289 Kan. 1132, 1139, 221 P.3d 1105 (2009), cert. denied560 U.S. 966, 130 S.Ct. 3410, 177 L.Ed.2d 326 (2010) (changing the theory of an...