State v. Cooperwood, 92,488.

• Decision Date: 08 December 2006
• Docket Number: No. 92,488.,92,488.
• Citation: 147 P.3d 125
• Parties: STATE of Kansas, Appellee, v. Sam COOPERWOOD, II, Appellant.
• Court: Kansas Supreme Court

147 P.3d 125

STATE of Kansas, Appellee, v. Sam COOPERWOOD, II, Appellant.

No. 92,488.

Supreme Court of Kansas.

December 8, 2006.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Michael A. Russell, chief deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

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

Sam Cooperwood, II, was convicted by a jury of attempted voluntary manslaughter for stabbing Belinda Dorsey in the chest with a steak knife. The Court of Appeals affirmed in State v. Cooperwood, No. 92,488, unpublished opinion filed January 20, 2006. This court granted his petition for review under K.S.A. 20-3018(b).

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Did the trial court deny Cooperwood his right to a fair trial by refusing his request to call an expert witness to testify regarding the ineffectiveness of Dorsey's medications? No.

2. Did the trial court clearly err in failing to instruct the jury on the State's continuing burden of proof as described in PIK Crim.3d 52.08 (affirmative defenses)? No.

Accordingly, we affirm.

FACTS

On November 16, 2002, shortly after 1 a.m., Sam Cooperwood, II, went to the house of Belinda Dorsey, whom he had been dating. After an argument, he stabbed her. He was eventually charged with attempted first-degree murder.

According to Dorsey's testimony at the jury trial in July 2003, she was taking Effexor and Seroquel for depression and hallucinations in November 2002. Without the medication, she would see little black, green, and orange men. Sometimes the little men upset Dorsey by dancing. When she was off of her medication, she would see the little orange man the most. Although she testified that the little orange man did not like Cooperwood, the orange man did not give her instructions to hurt Cooperwood. Dorsey did not see the orange man on the night of the incident.

Dorsey also testified that she took her medication and went to bed around 9 or 10 that night. She woke up around 1:30 a.m., when Cooperwood knocked on her door and asked for a cup of water.

According to Dorsey, after she got Cooperwood a cup of water, she sat down in a chair in the front room. He accused Dorsey of having sex with his cousin. When she denied the accusation, he brought up her ex-boyfriend, Lawrence Garner. Dorsey testified that Cooperwood believed she wanted Garner back. The two argued because Cooperwood wanted a sexual relationship, but Dorsey did not. During the argument, Dorsey rested her head in her hands because she was tired.

Dorsey further testified that during the argument, she saw Cooperwood go into the kitchen. She began dozing off and then felt a burning sensation in her chest. Dorsey heard Cooperwood say "I asked you a question." Dorsey said that she did not hear the question. When she attempted to stand up, Cooperwood pushed her back down and told her that if she did not want him, then she would not have anyone else. As Cooperwood again went into the kitchen, Dorsey ran upstairs. She denied experiencing any hallucinations.

By contrast, according to Cooperwood's testimony, he acted in self-defense. When he arrived at Dorsey's, she stated that the little orange man told her that Cooperwood loved his child's mother instead of Dorsey. After arguing for a few minutes, Dorsey and Cooperwood went into the kitchen. She then grabbed a butcher knife and stated, "You don't love me anymore." Cooperwood testified that only when she came at him with the butcher knife did he pick up a steak knife lying on the counter and stab her in the chest. Dorsey then dropped the butcher knife in front of the stove.

According to Cooperwood, he did not realize he had stabbed Dorsey; rather, he thought the knife got stuck in her clothing. After he struck her with the knife, he pushed her down in a chair and stated, "Look what you made me do." Cooperwood then left and flagged down a vehicle driven by Master Sergeant John Franz of the Kansas City Police Department on a street near Dorsey's home. When Franz stopped, Cooperwood stated that he had "stabbed that girl down on Second Street."

After the court denied Cooperwood's motion for directed verdict at the close of the State's case, it heard argument on evidence he desired to introduce. Among other things, this included testimony by Dr. William Logan, a psychiatrist appointed by the court to assist the defense after Dorsey had been declared competent to testify at trial by a psychologist. Dr. Logan was prepared to opine that Dorsey's prescribed medications were ineffective. The court excluded the evidence.

Following this ruling and before Cooperwood's testimony, other defense testimony came from Dr. Michael Miranda of Wyandotte County Mental Health Center. He had performed a psychiatric evaluation of Dorsey on August 15, 2002—approximately 3 months before the stabbing incident. Dr. Miranda testified that during his evaluation, Dorsey was "very anxious," acknowledged that voices told her to hurt herself, and stated that little green men were walking around the office. Based on Dorsey's actions, Dr. Miranda believed that Dorsey was afraid of the little green men. According to him, Dorsey did not become aggressive during the interview. He did not testify about Dorsey's medication or treatment.

Other defense testimony came from Ludie Sutton, a case manager with the Wyandotte Center. She started as Dorsey's case manager in October 2002-1 month before the stabbing incident. Among other things, Sutton helped Dorsey keep her doctor's appointments so that Dorsey could receive her medication.

Sutton also kept track of Dorsey in written "progress notes." Based on her notes, Sutton testified that by November 5, 2002, Dorsey had missed a total of four doctor's appointments. Based on her November 13, 2002, appointment with Dorsey, Sutton opined that Dorsey was out of medication because her 2-week supply provided on October 21 would have run out and because Dorsey had not kept her medical appointments where she could have obtained refills. While Sutton opined that Dorsey was out of medication, she did not personally observe this. Her progress notes were admitted into evidence.

The jury convicted Cooperwood of attempted voluntary manslaughter.

ANALYSIS

Issue 1: The trial court did not deny Cooperwood his right to a fair trial by refusing his request to call an expert witness to testify regarding the ineffectiveness of Dorsey's medications.

Cooperwood argues that the trial court's refusal to allow Dr. Logan to testify that Dorsey's medications were ineffective denied him his constitutional right to a fair trial because this testimony was integral to his defense. See, e.g., State v. White, 279 Kan. 326, 331, 109 P.3d 1199 (2005) ("`under the state and . . . federal Constitutions a defendant is entitled to present the theory of his or her defense and the exclusion of evidence that is an integral part of that theory violates a defendant's fundamental right to a fair trial'"). Specifically, he claims that Dr. Logan's opinion would have resolved the critical swearing contest as to which party was the aggressor by corroborating Cooperwood's testimony that Dorsey attacked him.

Cooperwood further argues that because the error denied him his right to a fair trial, it must be measured against the federal constitutional standard of harmless error contained in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), i.e., harmless beyond a reasonable doubt.

The State responds that the admissibility of expert testimony lies within the sound discretion of the trial court and its determination will not be reversed absent an abuse of discretion, citing State v. Brice, 276 Kan. 758, 775, 80 P.3d 1113 (2003). It further asserts that before expert testimony is admissible at trial, the proponent must establish, among other things, that the testimony will be helpful to the jury. Citing State v. McIntosh, 274 Kan. 939, 956, 58 P.3d 716 (2002), it concludes: "Therefore, the information that the expert witness is testifying about must not be within the normal experiences and qualifications of a lay person." The State reasons that Dr. Logan's testimony was properly excluded because it would not have assisted the jury.

We agree that our standard of review is abuse of discretion. See, e.g., State v. Brice, 276 Kan. 758, 80 P.3d 1113. The considerations for a de novo review that were present in State v. White, 279 Kan. 326, 109 P.3d 1199, e.g., interpretation of statutory language, are not present in the instant case.

Defense counsel announced at the outset of his argument to the trial court that Dr. Logan would be called for his interpretation of some of the medical records which he had reviewed. According to the later proffer, Dr. Logan would specifically opine that the medications did not eliminate or even control Dorsey's hallucinations:

"Dr. Logan will testify that within a reasonable degree of medical certainty that the medication that she was receiving wasn't an appropriate dosage. That even . . . in the times when they can establish she was medically compliant, that the dosages were not enough. It wasn't controlling her signs and symptoms. She continued to have auditory and visual hallucinations even while she was still taking the medication."

The State objected to Logan's proposed testimony by repeatedly noting that he had never examined her and was relying completely upon his review of "records" and "reports."

As a precursor to its ruling, the trial court stated its concern about Dr. Logan's proffered testimony:

"Well, first of all, I don't think that that's relevant to the issues of this particular case, whether—I don't know exactly how he could make that determination. But at any rate, I don't think it's relevant to this particular case. ...