State v. Johnson

CourtCourt of Appeals of Kansas
Decision Date23 December 2020
Docket Number243,122
PartiesState of Kansas, Appellant, v. Shelby Dawn Johnson, Appellee.

NOT DESIGNATED FOR PUBLICATION

Appeal from Sumner District Court; R. Scott McQuin, judge.

Kerwin Spencer, county attorney, Mitch Spencer, assistant county attorney, and Derek Schmidt, attorney general, for appellant.

Chrystal L. Krier, of Wichita, for appellee.

Before Buser, P.J., Hill and Warner, JJ.

MEMORANDUM OPINION

WARNER, J.

This case concerns the death of a seven-month-old child. The State charged the child's mother, Shelby Johnson, with her murder and other related crimes. In this interlocutory appeal, the State argues that the district court erred when it ruled a heated accusation by Johnson's then-boyfriend was inadmissible, both because it was an opinion as to Johnson's guilt and because the accusation's potential for undue prejudice substantially outweighed its probative value.

While this is a sad and difficult case, it is not the role of an appellate court to substitute our analysis for a district court's weighing of the prejudicial nature of evidence. Rather, we entrust this task to the sound discretion of the district court in its role as the trial's evidentiary gatekeeper and defer to the district court's assessment if it is reasonable. After carefully reviewing the record and the parties' arguments, we conclude the court did not abuse its discretion when it found the accusation was inadmissible. Thus, we affirm that decision and remand the case for further proceedings.

Factual and Procedural Background

Because this appeal by the State was taken before the matter went to trial, the evidentiary record before us is limited. The record we do have consists largely of testimony of the State's witnesses during Johnson's preliminary hearing. That testimony provided the following account of the circumstances surrounding J.H.'s death and the State's subsequent decision to charge Johnson with her murder.

J.H was seven months old when she died. She lived with her mother, Shelby Johnson. Although not J.H.'s biological father, Schuyler Hulett thought of J.H. as his daughter and was listed as the father on J.H.'s birth certificate. Johnson and Hulett had two other young children-a five-year-old son and a nine-year-old daughter.

Johnson and Hulett did not live together and were not married at the time of J.H.'s death. Normally when Johnson would stay at Hulett's house, J.H. would sleep in a portable crib in Hulett's living room. But on March 31, 2018, the baby slept on a pallet made of blankets and pillows on the living room floor. The couple put J.H. to bed in the late evening and went to sleep in Hulett's bedroom. The two other children slept in a different bedroom. J.H. slept through the night.

Around 7:40 a.m. the next morning, Johnson got up to feed the baby. Johnson later told police officers that J.H. did not appear very hungry at that time and consumed little formula from her bottle. Johnson then put J.H. to bed again on the pallet and went back to Hulett's room to sleep.

Hulett informed the investigators that he got up between 8:30 and 9 a.m. to have coffee and give J.H. a bottle. He picked up the partially consumed bottle from the living room but did not check on the baby. Hulett went outside to his car to retrieve Easter baskets for the children and then made a new bottle of formula using warm water from the sink. When he was walking from the kitchen to J.H.'s pallet, his five-year-old son came out of the bedroom where he had been sleeping. Hulett found J.H. in her bed with a burp rag over her mouth unresponsive and not breathing. When Hulett removed the cloth, he saw that she had vomit around her mouth.

Hulett picked up J.H. and hollered at Johnson to call 911, which she frantically did. (Though Hulett initially told an investigating officer that his son came out of his room before Hulett saw that J.H. was injured, he later testified that the children were awoken by his screams.) Hulett then attempted to perform CPR on the baby, applying compressions on J.H.'s chest and blowing in her mouth. When his efforts proved futile, Hulett decided not to wait for the ambulance, got in his car, and sped to the hospital.

At the hospital, doctors noted that J.H. was "Code Blue"-not breathing and without a pulse-and suffering from severe swelling of the brain. After CPR proved ineffective, J.H. was intubated and placed on a ventilator the medical staff soon discovered that her skull was fractured in three places. J.H. also had a large hematoma on the right side of her head and retinal hemorrhages-"blotchy areas of bleeding"-in the back of both of her eyes. One of the doctors speculated that J.H.'s injuries were likely the result of three severe, shearing force traumas and/or some type of whiplash injury to the brain and could not have been the result of merely being dropped. It was further discovered that J.H. had fractured ribs and soft tissue hemorrhages around those fractures. These were potentially caused by Hulett's application of chest compressions, but the injuries to J.H.'s ribs also showed signs of healing, indicating some of the rib injuries may have occurred at least a week prior to the head injuries that ultimately caused J.H.'s death.

Officers from the Wellington Police Department interviewed Johnson and Hulett, attempting to find out how J.H. had been so grievously injured. Both parents were distraught and neither had any explanation for the injuries: Johnson reported she had gotten up to feed J.H., put her back to bed, and went back to sleep herself. Hulett described waking up to check on J.H. about an hour later and finding J.H. in her bed, without a pulse and not breathing. Johnson informed an officer that she and J.H. did not live with Hulett but they would come visit on days she was off work. She also stated that J.H. had never been injured before and had only ever fallen over while trying to stand up.

J.H. was kept on life support at the hospital for several days before she passed away on April 5, 2018. The autopsy reported that J.H. had suffered contusions on both sides of her head, a hematoma on the lower jaw, two fractures-both more than 2 inches in length-on the right side of the skull, a 2 1/2-inch fracture on the back of the skull, a dense epidural hemorrhage, and hemorrhages in both eyes.

About a week after J.H.'s death, one of Hulett's neighbors reported to the police that he had overheard a part of an argument between a man and a woman coming from Hulett's house on April 11, 2018, at around 11 p.m. The only words the neighbor heard were a man yelling, "You killed my fucking baby!" The neighbor did not decipher any other part of the argument, did not hear any of what the woman said, and did not hear any response to the man's accusation. Three days later, the neighbor reported the argument to the police.

As a result of the neighbor's report of this yelled accusation and the surrounding investigation, the State charged Johnson with two counts of felony murder (with underlying crimes of child abuse and aggravated endangering a child), one count of second-degree murder, one count of child abuse, and one count of aggravated endangering a child.

The neighbor who had reported overhearing the yelled accusation later moved away and was not called as a witness at the preliminary hearing. Johnson did not testify at the preliminary hearing, but Hulett did. When the prosecutor asked Hulett about the argument on April 11, Hulett testified that he and Johnson went out drinking that evening and got into a loud argument when they arrived home. Hulett recalled being very drunk and angry with Johnson, eventually yelling, "You killed my fucking baby!" Hulett testified that he believes Johnson killed J.H. because he was not responsible for the death. But he admitted that he "never witnessed her do anything wrong to that baby" and "never [saw] her lay a hand on her." He stated that his accusation was made out of frustration- "[m]ore just anger and trying to realize and figure it out myself."

After hearing this evidence, the district court noted that it was not permitted to make credibility assessments at the preliminary hearing stage. The court bound Johnson over for trial because, under the evidence presented, there were "only two people" who could have committed the act leading to J.H.'s death, and Hulett "denied he did it."

About a week before the scheduled trial, the district court held a hearing on Johnson's motion in limine. During that hearing, the court voiced an evidentiary concern that had not yet been raised by either party: the admissibility of Hulett's April 11 accusation. The court observed that a witness is not usually permitted to provide an "opinion as to the guilt or innocence of the defendant." And the court distinguished Hulett's accusation that Johnson killed J.H. from a situation where a witness denies his or her own guilt. Based on this reasoning, the court informed the parties that evidence of Hulett's accusation would not be admitted at trial.

The next day, the State filed a motion asking the court to reconsider its ruling. The State indicated that it sought to present evidence of Hulett's accusation through three avenues-testimony regarding the neighbor's report to the police, testimony from Hulett himself, and testimony from an FBI agent involved in the child-abuse investigation. The State explained that this agent, who did not testify at the preliminary hearing, interviewed Hulett about the argument. The agent also interviewed Johnson, and she apparently denied that Hulett had accused her of killing J.H. or that the April 11 argument ever occurred. The State noted that it intended to call Hulett as a witness. And the State intended...

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