State v. Jones

• Decision Date: 12 December 2008
• Docket Number: No. 97,065.,97,065.
• Citation: 287 Kan. 547,198 P.3d 756
• Parties: STATE of Kansas, Appellee, v. Brad JONES, Appellant.
• Court: Kansas Supreme Court

198 P.3d 756

287 Kan. 547

STATE of Kansas, Appellee, v. Brad JONES, Appellant.

No. 97,065.

Supreme Court of Kansas.

December 12, 2008.

Carl E. Cornwell, of Cornwell & Scherff, of Olathe, was on the brief for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Phill Kline, district attorney, and Stephen N. Six, attorney general, were with him on the brief for appellee.

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

This direct appeal arises out of the tragic death of Jonathan U, who suffered crush injuries when he came to the aid of a purse snatching victim in the parking lot of a Johnson County discount department store. As a result of these events, defendant Brad Jones pleaded guilty to two felony counts of robbery, one felony count of theft, and one felony count of fleeing and eluding, leaving only a felony-murder charge for trial. Jones was convicted by a jury and was sentenced to a life term plus a consecutive 176 months.

Jones raises three questions: (1) Did the district judge err in disallowing testimony by the victim's wife on her observations regarding the quality of U's medical care? (2) Does newly discovered evidence regarding a medical malpractice case filed by U's wife merit a new trial? and (3) Did the district judge err in denying a defense request for an instruction on aggravated battery as a lesser included offense of felony murder?

Factual and Procedural Background

Ruth Peck had just finished unloading items she had purchased from Target into her trunk when defendant Jones grabbed her purse. Peck shouted for help, and U responded by chasing Jones, who still had the purse, to Jones' car. When Jones jumped into his vehicle, U reached into the car to take hold of Peck's purse. Jones then sped away with U half inside and half outside of the car. When Jones ran his car into a brick wall, U was pinned between the open car door and the frame of the car. Jones then fled on foot with the purse. Another individual pursued Jones, who eventually dropped the purse and was apprehended by law enforcement. U, gravely hurt, was rushed from the scene to the hospital. He died 18 days later.

At Jones' trial on felony murder, the prosecution argued that U's death was caused by complications stemming from the injuries he sustained during Jones' flight from the robbery of Peck; in the State's view, regardless of whether Jones intentionally steered his car into the wall to get rid of U or simply lost control of the car, Jones' actions were the direct and proximate cause of U's death.

The defense theory at trial was that U's death was caused not by his injuries but by negligent medical treatment of those injuries, i.e., an infection diagnosed too late. In support of this theory, the defense attempted to introduce evidence that U's wife, Stephanie Sandgren, had consulted with legal counsel about the quality of the medical treatment her husband received. The State filed a motion in limine to prevent introduction of this evidence, arguing that it invaded attorney-client privilege.

Defense counsel framed his intended line of questioning in three ways before the district court. He first stated: "All I requested the Court to allow me to do is to ask Ms. U, did she contact an attorney, and was there some particular reason for that." Counsel restated his intent: "All I want to ask is: did you consult an attorney about observations you made while your husband was in the hospital? Just yes or no." After the district court ruled against him, counsel stated: "[J]ust so the record is clear, my tack was to ask her if she consulted with an attorney, no conversation and that was all."

The district judge ruled that the substance of the conversation between Sandgren and the lawyer was privileged and that the only possible relevance of the mere fact of their contact would be its tendency to give rise to an adverse inference about the quality of U's medical care, which had virtually no probative value. The judge then advised the parties to look to medical evidence, rather than evidence of the contemplation of legal action, to support their arguments about the existence of an intervening cause of U's death.

The district judge also overruled defense counsel's request to limit the State's presentation of evidence on the underlying felony of robbery, reasoning that the State had a right to prove the robbery and flight from it. Thus several witnesses testified about the purse snatching and its aftermath. Peck was among those witnesses. In addition, she told the jury that she had visited U every day while he was in the hospital, that he was not doing well, and that he did not appear to be recovering.

Sandgren testified that she spent time at the hospital with her husband and that there was no improvement in his condition from the time he went into the hospital until he died. He was never able to consume any nourishment, solid or liquid; and was concerned about surviving. He underwent three surgeries, among other treatments and tests.

Dr. Michael Handler, a forensic neuropathologist with the Johnson County Coroner's Office, performed an autopsy on U's body. Handler noted that U had been subject to substantial medical intervention, including resection of a portion of his small bowel and insertion of a plate to repair a pelvis fracture. Handler also noted a number of injuries and abnormalities, including fluid and peritonitis in U's chest cavity; fluid in U's heart; clotting in U's lungs; hemorrhage in U's liver; blockage and death of U's right kidney; clots to the veins of U's prostate; and a 1-centimeter perforation of U's large bowel, which, when opened, revealed an infection Handler termed pseudomembranous colitis. Handler observed this pseudomembranous colitis in both U's small and large bowels.

Handler testified specifically that pseudomembranous colitis is difficult to diagnose and that it develops rapidly. It is linked to the use of antibiotics; when they are used to treat infection, they destroy many bacteria but leave a particular, naturally occurring bacteria without competition. This bacteria overpopulates the bowel and leads to pseudomembranous colitis which, in turn, results in damage, necrosis, and eventual perforation of the bowel. Once such a perforation occurs, fecal material contaminates the abdominal cavity, often resulting in a fatal infection. Handler further testified that pseudomembranous colitis can be treated with an aggressive antibiotic called Vancomycin.

Handler also testified that U's development of pseudomembranous colitis was merely the last link in a chain of events starting with the crush injuries. Even with medical intervention, Handler said, U's ability to survive had been fatally compromised. Had he not been admitted to the hospital, or had he been released from the hospital on any of the 18 days he managed to survive, he still would have died from his injuries. Handler ultimately opined that the cause of U's death was "complications of blunt force injury of the thorax and abdomen sustained in a pedestrian, motor-vehicle collision." U's injuries, in Handler's view, were consistent with a severe crush and complications arising therefrom.

Dr. Steven Behrends, a surgeon who acted as U's primary care physician during his time in the hospital, also appeared at trial. He testified extensively about U's course of treatment, explaining that there was a tremendous amount of swelling in the first few days after admission and that U never really became stable before his death. Behrends specifically addressed the last of U's surgeries, which Behrends performed 3 days before U's death. After that surgery, U developed sepsis, an overwhelming infection in the bloodstream that caused U's vital organs to shut down. In his summary of U's treatment and complications, Behrends cited the sepsis, peritonitis, kidney failure, severe edema and excessive fluid in the tissues, distention of the abdomen, and jaundice. He also noted that U had entered the hospital with two life-threatening injuries: a pelvic fracture and a laceration to his duodenum.

Behrends also testified that there was no evidence of pseudomembranous colitis when he performed U's last surgery and that this condition would have developed after that procedure. Behrends had read Handler's autopsy report and disagreed with its pseudomembranous colitis conclusion. Behrends believed it was more likely that peritonitis, ischemic colitis, or sepsis precipitated U's death. Behrends agreed with Handler that, if U had not gone to the hospital or had been released from the hospital at any point in the 18 days he was there, he would still have died. Behrends also agreed that Vancomycin is used to treat pseudomembranous colitis. Apparently as a precaution, U had received Vancomycin following his last surgery, which enabled Behrends to opine that Vancomycin could not have saved U's life.

The defense presented the testimony of Dr. James Bryant, a pathologist who had reviewed more than 1,700 pages of U's medical records, including Handler's autopsy report. Bryant had not been present at the autopsy, nor had he worked with any of the tissue samples. Bryant testified that the proximate cause of U's death was pseudomembranous colitis. Specifically, Bryant testified that the immediate cause of death was peritonitis, which was caused by the perforation in U's bowel from the colitis. Bryant opined that, although Vancomycin was given to U, nothing in the medical records indicated why it was prescribed; there had been no cultures done, no lab tests run, and no diagnosis. Bryant testified that Vancomycin is administered as a "third line" treatment after penicillin and another antibiotic called Metronidazole are not effective; those were not attempted here. According to Bryant's review of medical literature, pseudomembranous colitis has a very low mortality rate, and once diagnosed, can be treated in a number ways. Here, he said,...