State v. Gibson

• Decision Date: 02 July 2020
• Docket Number: No. 119,993,119,993
• Citation: 466 P.3d 919
• Parties: STATE of Kansas, Appellee, v. Andrew Lynn GIBSON, Appellant.
• Court: Kansas Supreme Court

466 P.3d 919

STATE of Kansas, Appellee,

v.Andrew Lynn GIBSON, Appellant.

No. 119,993

Supreme Court of Kansas.

Opinion filed July 2, 2020.

Christina M. Kerls, of Kansas Appellate Defender Office, was on the brief for appellant.

Barry K. Disney, senior deputy county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

In this direct appeal, Andrew Gibson challenges his convictions of child abuse and felony murder with the underlying felony of child abuse. He asserts those convictions should be reversed because: (1) the trial court erred when it held he waived a privileged communication with a defense-hired psychologist; (2) the evidence cannot support the convictions; (3) the jury instruction on the State's burden of proof improperly discouraged the jury from exercising its nullification power; and (4) these errors cumulatively denied him a fair trial. He also raises a sentencing issue, arguing the court improperly imposed lifetime postrelease supervision instead of lifetime parole. We affirm his convictions and vacate the lifetime postrelease supervision.

FACTUAL AND PROCEDURAL BACKGROUND

S.N.R., a three-month-old baby girl, died in 2016, from asphyxiation

. Her mother left her with Gibson while she was out of town for the day. According to the mother, S.N.R. was in good health when she left.

A timeline of Gibson's activities that day was created using his cell phone records, receipts, and records from his video game activities. Throughout the day, mother and Gibson communicated by Snapchat or text. At 4:47 p.m., Gibson sent mother a picture of himself and S.N.R. lying on the couch. Shortly after that, he ordered pizza for dinner and played a video game from 5:42 p.m. to 9:11 p.m. Later, he discovered S.N.R. was not breathing and called 911. That call was at 9:18 p.m.

A responding police officer found Gibson crying and kneeling in the dining area with S.N.R. on her back on the floor. The officer described the infant as "extremely pale," her nose and cheeks appeared to have "like a carpet burn," and she had "a little bit of a bruising over her left eyelid." She was pronounced dead at a hospital shortly after arrival.

Police interviewed Gibson several times. Officers on the scene asked him about the incident. He explained he laid S.N.R. down for a nap around 7:30 p.m. and checked her every 20-30 minutes with the last time being around 9 p.m., when he saw her moving. He said when he went to wake her up a little later, he saw she was not breathing and her face was "all weird." Later that night, Detective Julia Goggins interviewed him at the police station and he provided essentially the same version of events with only minor variations in his time estimates.

The next day, Detective Brian Johnson interviewed Gibson twice at the police station. The first lasted until Gibson said he wanted to stop. He was taken to booking, where he told jail personnel he wanted to talk to Johnson again. This time, Gibson provided a new version of events: he fell asleep with the baby in the bedroom; she woke him up and he got upset; without even knowing what he was doing he pushed her head against the bed; once aware of what he was doing, he released her and cradled her; he put her in the play pen and let her sleep more; and later, he found the baby not breathing so he dialed 911.

The State charged Gibson with first-degree felony murder and child abuse. He was tried first in early 2018, resulting in a hung-jury mistrial. He was retried in May and a jury convicted him as charged. The court sentenced him to a hard 25 sentence for felony murder and a consecutive, 34-month prison term for child abuse. The court imposed lifetime postrelease supervision.

THE PSYCHOLOGIST-CLIENT PRIVILEGE WAIVER

Gibson challenges the district court's decision during the second trial to allow the State to present evidence about his interview with a defense-retained psychologist, Dr. Jarrod Steffen. Gibson claims his discussions with Dr. Steffen were privileged. The State argues Gibson waived any privilege.

Additional facts

Before the first trial, defense counsel arranged for a forensic psychological evaluation to provide, as Dr. Steffen explained, "a diagnostic assessment of Mr. Gibson and an appraisal of his psychological functioning in view of mitigation for his legal case." In his report, Dr. Steffen determined: "Mr. Gibson's functioning ... in the time period leading up to and encompassing [S.N.R.'s death] and continuing to the present, has been characterized by comorbid psychiatric conditions of PTSD and Major Depressive Disorder

and an underlying maladaptive personality structure in the form of Borderline Personality Disorder."

In preparing this evaluation, Dr. Steffen considered a clinical interview he had with Gibson while in jail. Before beginning that interview, he advised Gibson of the "limitations on confidentiality" and "foreseeable uses of information from the evaluation." Defense counsel gave Dr. Steffen's report to a defense pathologist, Dr. Lyle Noordhoek, and to the State.

Neither side called Dr. Steffen as a witness during the first trial, but the State did for the second one. Before his testimony, the court and parties had a conference about it during which defense counsel agreed any privilege with Dr. Steffen was "waived in regards to the report that was provided to the prosecution because it was provided to Dr. Noordhoek in his review of the case." But the defense also argued anything Gibson told Dr. Steffen that was not recited in the report remained privileged. The State countered that any communication between the two was no longer privileged once defense counsel disclosed the report. It specifically noted it intended to ask Dr. Steffen what Gibson said about smothering the baby, which was not in the report.

The court found there was a knowing and voluntary waiver of the privilege, based on K.S.A. 60-437(b) and State v. Johnson , 223 Kan. 237, 573 P.2d 994 (1977). It ruled Dr. Steffen could testify "to anything the defendant said" during the clinical interview. The court allowed defense counsel to "have a continuing objection to everything that doctor testifies to that's not in the report ... [regardless of whether counsel] actually stand up and make those objection."

Dr. Steffen testified that in interviewing Gibson, "the goal was to obtain a picture, an assessment, of [Gibson's] overall functioning as it relates to any type of mental conditions and his involvement in the case ." (Emphasis added.) The following colloquy occurred:

"Q: What did [Gibson] tell you happened to [S.N.R.]?

"A: If I could refer to my notes.

"Q: Yes.

"A: He said that he had laid [S.N.R.] in bed and that he had laid down as well. He took a nap with her while the other kids were playing video games, and he had a nightmare. That he didn't remember the content of the nightmare, what it was about, but that the nightmare was scary, frightening, and he remembered being angry in the nightmare, those were his different terms, and he woke up from the nightmare, but before he—well, when he came to or became aware of his surroundings, he had been holding [S.N.R.]'s face down on the bed.

"He was holding her head face down onto the bed which he estimated was 20 to 30 seconds, and she was crying when he came to, and when he realized what he was doing, he let go and cradled her to quiet her—to help her quit crying, and then she did and he put her in the play pen, and then he went out to the living room with the other kids."

Dr. Steffen said Gibson's statement was responsive to him asking, "What happened?" On recross-examination, he explained in greater detail how that statement was prompted:

"Q: Do you have specifically in your notes that that's which question you specifically asked?

"A: In looking at my notes closer, when I asked him, essentially tell me what was going on in the days and weeks before she died, he went into a free narrative and relayed that information, and then in response to follow-up questions or actually prompts, what happened then, that was after he told me what had happened, he began talking about speaking with the police and in that he had mentioned that he had told the detective about his mistake and I said, what do you mean mistake, and he said the exact same thing I told you.

"I had not heard a mistake at that point and in his free recall, he hadn't mentioned pushing her head into the bed and so I said, well, what exactly is the mistake that you told the detective, and then that's what he had told me. And then I asked him, well, what were your thoughts going on at the time and then how did that stop, and then what happened." (Emphases added.)

Preservation

The State claims this issue is not properly preserved for appellate review because Gibson "limited his objection to conversations not contained in Dr. Steffen's report. But [the] report discussed conversations with [him] regarding ‘disturbing dreams’ and ‘stress’ and ‘impulsive behavior.’ " The State contends the conversations were implicitly included in the report with no objection lodged. At trial, though, the State told the court the conversations were not in the report, so it appears the State's position shifted on appeal. Even so, when the court allowed defense counsel to have a continuing objection, it clarified, "Let's preserve this issue so we don't have a question about whether or not [defense] objected appropriately for purposes of appeal."

We hold the issue is properly preserved. The district court heard the parties' arguments and ruled on them. See State v. Randle , 311 Kan. ––––, 462 P.3d 624, 634 (2020) (noting trial court knew the issue and had a chance to rule on it; holding the issue was preserved for appellate review).

Standard of review

An appellate court assesses whether a party waived a psychologist-client privilege under an abuse of discretion standard. See K.S.A. 74-5323(a) (...