State v. Kirby, 85,172.

• Decision Date: 25 January 2002
• Docket Number: No. 85,172.,85,172.
• Citation: 272 Kan. 1170,39 P.3d 1
• Parties: STATE OF KANSAS, Appellee, v. LEONARD B. KIRBY, JR., Appellant.
• Court: Kansas Supreme Court

272 Kan. 1170

39 P.3d 1

STATE OF KANSAS, Appellee, v. LEONARD B. KIRBY, JR., Appellant.

No. 85,172.

Supreme Court of Kansas.

Opinion filed January 25, 2002.

Peter Maharry, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the briefs for appellant.

Sheryl L. Lidtke, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.:

This is an appeal by the defendant, Leonard B. Kirby, Jr., from his conviction of the unintentional second-degree murder of Karen Couts, who died as a result of a ruptured spleen after twice seeking emergency medical care at the University of Kansas Medical Center (UKMC). Kirby contends that causation instructions should have been given with regard to the alleged negligence of UKMC emergency room physicians, which he claims was an efficient intervening cause of death. Kirby requests that his conviction be reversed and the case remanded for a new trial. In the alternative, Kirby asks the court to vacate his sentence, which is a controlling term of 146 months with post-release supervision of 36 months.

Karen worked in construction operating heavy equipment, was 38 years old, and had three children, Janee, age 20, Jessica, age 19, and Michael, age 10, at the time of her death in December 1998. Karen lived with Kirby.

Janee testified that the weekend before Thanksgiving she had to pick up her mother because Kirby and Karen had gotten into a fight and the police were there. Karen had scratch marks on her neck and told Janee that Kirby was "dragging her by her larynx, that he had been pulling her like he was going to pull it out, not that he said he was, but he was like choking her, grabbing her by her larynx." Karen spent the night at Janee's apartment in Overland Park.

The next morning as Janee and her roommate were getting ready to leave, Kirby came to the door. When Janee returned about an hour later, there were police cars parked in front of her apartment. That day, Janee's neighbor, Barbara Machin, heard a disturbance outside and saw Karen lying on the ground while Kirby hit her in the face with his fists. Machin called 911. Another neighbor, Michael Weddington, also called police after he saw Kirby repeatedly hit Karen in the face and chest. Weddington testified that Kirby then walked to his truck, where several of his children were waiting, and drove up on the lawn toward where Karen was lying. Karen told Janee that Kirby had attacked her and had tried to run over her with his truck. Initially, Karen wanted to press charges, but later she resumed her relationship with Kirby. Less than 1 month later, Kirby again attacked Karen. This attack led to Karen's death.

On Friday, December 18, 1998, Kirby and Karen went out to several bars. Eliza DeGhelder testified that she threw a surprise birthday party for the owner of Miss Kitty's bar that night and invited Kirby and Karen to attend. DeGhelder saw them at Miss Kitty's sometime between 6 and 8 p.m. and spoke with Karen for about 10 to 15 minutes.

Jamie Bishop testified that he was tending bar at Cedar Lawn and saw Karen there around 11 p.m. Karen spoke with Wayne Willeford, the brother of her ex-husband, and asked him to whip Kirby if he came to the bar. Approximately 30 minutes later, Kirby entered Cedar Lawn and walked up to the bar. Karen confronted Kirby, screaming at him, and then ran into the bathroom. After she came out, she began shoving Kirby and screaming at him. As far as Bishop could tell, Karen wanted Kirby to leave her alone. Karen went out the front door, and 2 or 3 minutes later Kirby followed. Bishop said that when he came back into the bar, Kirby had a scratch on his forehead. Kirby said Karen had gotten into a car with two other men and that one of the men had hit him. Kirby stayed at the bar another 10 or 15 minutes and then left around midnight. Bishop said that before Kirby left, he took a phone call from Karen, and then talked to Willeford and his girlfriend about going to Miss Kitty's bar to find Karen.

Mark Powers testified that Karen came to his house in Kansas City, Kansas. Powers lived there with his wife and four of his six children. Powers said that he and Karen were friends. Karen had lived across the street from Powers with David Cheaney, her youngest son's father, for several years, but had not been living with Cheaney the past 2 years. Powers drove Karen to her home and arrived at approximately 1:10 a.m.

Keith Ussery testified that on the night of December 18, 1998, he lived with Lori Packer and her son on South 14th Street. Ussery said that around 1 a.m., Packer woke him up. Packer said, "They're fighting again next door," and "Keith, they're really fighting this time." From the bedroom window, Ussery could see Karen and Kirby fighting on a concrete walkway behind their house. The motion-detector security light was on and Ussery could see "real well what was going on."

Ussery saw Karen lying on the ground and Kirby kicking her with his boots and hitting her with his fists. According to Ussery, Kirby kicked her more than a dozen times in the "stomach, the head, just wherever he could kick, whatever he could hit." When asked where on the stomach Kirby kicked Karen, Ussery responded: "The sides, the front, the back because he'd kick her and she'd like roll away and he'd kick her again and stomp on her." Ussery witnessed Kirby striking Karen's head, stomach, back, and sides repeatedly with his fists, and said at one point, Kirby literally picked Karen up and threw her inside the house. At one point, Kirby was on top of Karen shaking her and hitting her head on the concrete. Ussery stated that "a couple times she would try to hit him back, but most of the time she was pleading with the man to stop...." Ussery told Packer to call the police but to stay out of it. Right before the police came for the second time, Karen fled north down 14th Street, first crossing through Packer's back yard. Ussery saw Kirby jump the fence behind the houses and flee into the woods.

Packer also witnessed Kirby attacking Karen. Just as she was preparing to go to bed around 1 a.m., she heard a truck squeal into the driveway next door, followed by a male voice screaming. Packer testified she knew it was Kirby's voice because she had heard him scream at Karen before. When Packer looked out of her bedroom window, she saw Karen lying on the ground and Kirby straddled on top of her waist. Packer testified, "He was hitting her with his fist full force, the back of his—with his knuckles as hard as he could on the side of her head." Kirby kept asking her where she was, and after a while told her he would kill her if she did not tell him where she went and with whom. Packer also saw Kirby grab Karen by the head and slam it on the ground using full force. In addition, Packer said Kirby forcefully kicked Karen's left side three or four times with his boots. According to Packer, Karen kept telling him to stop and that she loved him. She tried to get her hands free and then would try to hug Kirby.

Packer called 911 five times that night, pleading with the dispatcher to send police. According to 911 records, Packer's first call was at 1:14 a.m., and the fifth call at 1:44 a.m. The first time police arrived at the residence, they knocked on the front door and then left after no one responded. Packer told the dispatcher that Karen and Kirby were in the back yard, but Packer did not want to open her door and talk to the police because she did not want Kirby to know she called the police. After the police left, Packer saw Kirby still on top of Karen beating her in the head. Karen screamed and asked for help, so Packer called the police again. After telephoning 911 again, Packer went back to her window to check on Karen. Karen had jumped over the fence into Packer's backyard, had gone through the gate, and up the street. Packer went to the front of her house to see where Karen was going and saw the police coming. Kirby jumped the back yard fence and went into the woods to hide. Packer told an officer where Kirby was, but the officer could not see Kirby in the woods. When one of the officers announced Karen had been found up the street, the other officers left to make sure it was her. Packer said that when the police left, Kirby came back over the fence to the house, banged on the windows, and screamed, "Let me in." The officers returned, and Kirby again went over the fence into the woods. This time, however, they found Kirby and placed him under arrest.

Paramedics transported Karen to the UKMC emergency room. Todd Farley, an emergency medical technician, testified that initially Karen refused to let anyone examine her, but after she calmed down and warmed up in the back of the ambulance, she consented to an exam. Farley stated: "[S]he was very swollen in the head, the forehead, around the eyes, she had lots of dry blood that was around her nose and her mouth.... [S]he was complaining of pain around her wrist and you could tell on her left wrist was swollen and somewhat deformed.... She complained of pain to her ribs...." In addition, she was "guarding" against the pain every time the paramedics would push on her left side. Dr. Vincent Hayes, an emergency medicine physician, treated Karen at the UKMC emergency room early Saturday morning, December 19, 1998. Karen complained of generalized pain, pain to her face, abdomen, lower chest, and left wrist. Since Karen gave a history of being kicked in the abdomen and complained of tenderness in the area of her spleen, Hayes ordered a CAT scan and x-ray studies. Hayes testified that the CAT scan showed nothing indicating an injury to the spleen. On cross-examination, Hayes agreed that clinical symptoms of hypovolemia, tachycardia, general upper abdominal pain, and pain...