State v. Devine

• Decision Date: 12 December 2014
• Docket Number: 108,947.
• Citation: State v. Devine, 339 P.3d 413 (Kan. App. 2014)
• Court: Kansas Court of Appeals
• Parties: STATE of Kansas, Appellee, v. Christina DEVINE, Appellant.

339 P.3d 413 (Table)

STATE of Kansas, Appellee

v.Christina DEVINE, Appellant.

108,947.

Court of Appeals of Kansas.

Dec. 12, 2014.

Review Denied August 20, 2015.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Amy L. Aranda, first assistant county attorney, Marc Goodwin, county attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., BRUNS, J., and BUKATY, SJ.

MEMORANDUM OPINION

PER CURIAM.

Christina Devine appeals after a Lyon County jury found her guilty of attempted first-degree murder of her newborn baby.Devine admitted to giving birth to a baby on the morning of October 22, 2010, placing the infant in a trash bag, and putting the bag containing the baby in a dumpster.Fortunately, the baby survived.At trial, Devine unsuccessfully claimed mental disease or defect as a defense.On appeal, Devine argues that the jury instruction given by the district court on mental disease or defect was erroneous, that the district court erred in denying her motion for a change of venue, and that the prosecutor committed reversible misconduct during closing arguments.Because we find no reversible error, we affirm.

Facts

On the morning of October 22, 2010, Alex DeLeon, who lived at the Chapel Ridge apartment complex in Emporia—and also worked as a maintenance person there—heard the sound of a baby crying coming from one of the apartment's dumpsters.DeLeon opened the lid of the dumpster and found a baby boy inside a trash bag.DeLeon took the bag out of the dumpster and handed it to a friend who was with him while he called 911.The men wrapped the baby in their shirts to keep him warm until help arrived.

When Emporia Police Officer Todd Ayer arrived at the apartment complex around 8:30 a.m., he located the men and the baby.Officer Ayer held the infant to keep him warm until paramedics arrived at the scene.While the officer was holding the baby, he noticed that the umbilical cord and placenta were still attached to the baby.After handing the baby to the paramedics, Officer Ayer returned to his police vehicle and followed the ambulance to the hospital.At the hospital, the officer seized as evidence the t-shirt, trash bag, hospital identification tag, and a tube of the baby's umbilical cord blood.

Dr. Derek Brown, a pediatrician called to the emergency room to examine the baby, determined that the male infant—who was full term—was suffering from moderate hypothermia and was at risk for infection.Dr. Brown believed the baby had been born approximately 2 hours before being brought to the hospital.The baby was treated at the hospital for 4 days before eventually being transferred to Children's Mercy Hospital in Kansas City due to a bacterial infection.The baby was successfully treated and was ultimately released from the hospital in a healthy condition.

On the day the baby was found, law enforcement contacted local media, released a public service announcement over the radio and television, and contacted hospitals in the area to obtain information regarding the infant.A Wal–Mart employee noticed that one of her fellow coworkers, Devine, no longer looked pregnant when she came to work that day despite having previously appeared to be pregnant.A friend of the Wal–Mart employee, Nicole Cunningham, texted her about a baby being found.In response, the Wal–Mart employee told Cunningham about Devine.Cunningham—who had also worked with Devine at Wal–Mart—contacted Crime Stoppers and then went to Wal–Mart.According to Cunningham, she observed that Devine did not look like her normal self and did not appear to be pregnant as she had appeared previously.Cunningham called Crime Stoppers again to report her observations.

Not knowing about the reports to Crime Stoppers, Emporia Police Department DetectiveLisa Sage went through Devine's line at Wal–Mart that day before beginning her shift.Sage had heard about an abandoned baby and noticed that her checker—Devine—was pale and did not look like she felt well.In addition, Sage noticed that Devine's stomach was strangely lumpy and misshapen.After Detective Sage came on duty at 4 p.m., she learned of the calls to Crime Stoppers and was assigned to go to Wal–Mart with Detective Kelly R. Davis to interview Devine.

During the interview, Devine—who was 24 years old at that time—initially told the detectives that she was not pregnant.The detectives then asked her whether a medical examination would show that she had a baby recently and she admitted that it would.Moreover, Devine told the detectives that she had been raped in February 2010, but that she had not reported the crime.The detectives then took Devine to the emergency room at the hospital for an examination.On the way to the hospital, Devine told the detectives that she only figured out that she was pregnant in early October.

When Devine changed out of her clothing for the exam, Detective Sage observed that Devine had balled up a sweatshirt and stuffed in her undergarment over her stomach.At the emergency room, Devine stated that she took a bath at her apartment that morning, fell asleep, and when she woke up, the water had partially drained from the tub.She stated that there was blood everywhere and there was a baby with his head sticking face up out of the water.She also stated that the baby had cried.

Devine also told the detectives that she put the infant—“and all the other stuff that was with the baby”—into a trash bag before cleaning her apartment and herself.She then left her apartment, got into her vehicle, and drove around.Devine claimed that she left the baby's head out of the trash bag the whole time.

Devine was able to tell the officers specifically where she drove at first, but then claimed to have blacked out.Devine was able to recall that at some point she stopped at another apartment complex where she parked, pulled the baby and the trash bag out of her vehicle, walked over to a big green trash dumpster, put the baby into the dumpster, went back to her car, and drove back to her apartment.She also remembered that she finished cleaning her apartment, played with her dog, and watched some television.Devin left her apartment at around 1:15 that afternoon to go to work.She stopped at Braum's to get a chocolate shake on the way, which she drank in the break room before clocking in at 2:32 p.m.

Law enforcement officers obtained search warrants for Devine's vehicle and apartment in the late afternoon on the day the infant was found.During the search of Devine's apartment, the officers seized a box of Hefty trash bags, bloody towels and underwear, a pair of maternity pants, and other items.Three days later, the State filed a complaint against Devine alleging one count of attempted intentional and premeditated first-degree murder.

Prior to trial, Devine filed several motions as well as a notice that she was going to assert mental disease or defect as a defense.One of the pretrial motions filed by Devine was a motion for change of venue.In the motion, she argued that the media coverage of the case created significant prejudice against her in the community.Devine also filed a motion for individual voir dire of jurors or, in the alternative, small panel voir dire.Following a hearing, the district court denied Devine's motion for change of venue but granted her request to use a confidential special juror questionnaire for counsel to use for the course of trial.

Ultimately, a jury trial was commenced on June 25, 2012.After opening statements, the 911 call was played for the jury.Although it is not necessary to discuss every witness who testified at trial, we note that DeLeon was the first witness, and he testified about finding the baby in the dumpster.Additionally, Dr. Brown, the pediatrician who had treated the child at the hospital testified that in his opinion, if the baby had not been found when he was, it would have been “very difficult to bring that body core back to normal temperature,” which could have resulted in death.

Detective Davis testified that during the interview of Devine on the day the baby was found, she appeared to be “pretty calm and collected.”Specifically, Davis stated:

“She relied a lot on statements that she blacked out and then would later as we questioned her some more, she would come up with some more information and talk to us some more about it.And basically built upon all the stories as she continued talking to us throughout the afternoon and evening.”

Detective Davis further testified that he had no difficulty communicating with Devine.Although he indicated Devine was a little upset, she did not cry or yell during the interview.Davis stated that Devine did not like it when he referred to the baby as being her baby.According to Davis, Devine “put her hands up [at one point] and said, you know, I don't want that baby.Keep that baby away from me.I don't want to hold that baby.”

Detective Davis testified that Devine told him that she put the baby in the dumpster because “she didn't want to be a mom.And that she didn't want to take care of it.And she just kind of wanted it to go away.”He also testified that Devine told him that she was aware that there were other options for the baby but did not elaborate.

Detective Sage testified that Devine initially did not tell the officers about having the baby.According to Sage, once Devine admitted that she had the baby, her story remained consistent.Sage also testified that when Devine was told that the baby was alive, she stated that she did not want the baby.

The State also presented evidence that Devine was a student at Emporia State University and had received a Bachelor of Integrated Studies degree in 2009.At the time of her arrest, Devine told the detectives that she was enrolled at Emporia State University to obtain another bachelor's degree in elementary education.

At the conclusion of the State's case, the district court read a joint stipulation to the jury.The stipulation stated that...