State v. Love
| Decision Date | 20 January 2017 |
| Docket Number | No. 112,611,112,611 |
| Citation | 387 P.3d 820 |
| Parties | State of Kansas, Appellee, v. Troy Lamont Love, II, Appellant. |
| Court | Kansas Supreme Court |
Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Ellen H. Mitchell, county attorney, argued the cause, and Christina Trocheck, assistant county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
Troy L. Love II argues his felony murder and child abuse convictions must be reversed, alleging: (1) The district court erred by admitting 14 autopsy photographs that he alleges were cumulative and unduly prejudicial; (2) the district court erred by excluding evidence about a medical malpractice lawsuit the child's mother filed against a doctor who treated the victim prior to her death; (3) the prosecutor erred by improperly bolstering the mother's credibility as a witness during opening remarks and in the examination of other witnesses; (4) the district court erred by failing to instruct the jury on unintentional second-degree murder as a lesser included offense of felony murder; and finally, (5) if the court decides none of these claimed errors requires reversal standing alone, their cumulative effect deprived him of a fair trial. We affirm.
The facts are tragic and disturbing. Love frequently cared for Robin Harrington's three children, including 18–month–old Bre'Elle. On April 1, 2012, Harrington noticed Bre'Elle's bloodshot eyes and bruising inside the left ear. Later that week, Bre'Elle could not turn her neck and had begun losing hair. On April 7, Harrington took the child to the emergency room where a physician, Venkata Katasani, diagnosed Bre'Elle with an ear infection and a swollen lymph node.
On April 9, Harrington put Bre'Elle down for a nap and then went to sleep herself until Love woke her up. He was holding Bre'Elle's limp body and said she was not breathing. Harrington began CPR and sent Love to alert a neighbor. Someone called 911. Love left the scene.
When emergency personnel arrived, Bre'Elle did not have a pulse and was not breathing. She was suffering from extraordinarily high intracranial pressure, hemorrhaging in the lining surrounding her brain, swelling and herniation of the brain
, as well as a "gaping" fracture of the 7th cervical vertebra. She also suffered from recent hemorrhaging in her retinae and optic nerves and the lining surrounding her spinal cord. Doctors determined she was brain dead and life support was withdrawn. The cause of death was injury to the brain and spinal cord from multiple blunt force traumas.
Following a police investigation, a warrant was issued for Love's arrest on April 18. He turned himself in. The State charged Love with felony murder and two counts of child abuse: One count alleged abuse occurring between March 24 and April 8 and the other alleged abuse on April 9.
At trial, Love testified that sometime after Harrington put Bre'Elle down for a nap, he heard noises in the children's bedroom. He went to check and the children were jumping on the bed. Love said he went to get Bre'Elle a drink, and when he returned she was lying unresponsive on the floor.
A jury convicted Love of felony murder and child abuse for his acts on April 9. It acquitted him of the child abuse alleged between March 24 and April 8. Love was sentenced to life with a minimum of 20 years for the felony-murder conviction and a presumptive sentence of 55 months for the child abuse conviction was imposed and ordered to be run consecutive to the sentence for the felony-murder conviction. This is Love's direct appeal.
Jurisdiction is proper. See K.S.A. 2015 Supp. 22-3601(b)(3)-(4) ().
Love argues the district court erred by admitting autopsy photographs, claiming their probative value was outweighed by their potential for undue prejudice because they were cumulative of the medical testimony, gruesome, and served only an inflammatory purpose.
As part of its medical evidence, the State presented testimony from Dr. Scott Kipper, a deputy medical examiner. Kipper testified the vertebral fracture
would have caused instant paraplegia and that the fatal injuries were consistent with violent shaking. He also testified the child had multiple older, nonfatal injuries, noting healing compression and fractures of several vertebrae. Kipper could not date these injuries but believed they were at least two or three weeks old because there was no swelling. He testified Bre'Elle had fractures on her left and right first ribs that were a week to 10 days old and healing fractures on her left fifth and sixth ribs along the back part of the chest, near where the ribs met the spine. Kipper said these fractures were also consistent with shaking. He further noted Bre'Elle had bruising on the front and back of her left ear, bruising on the right side of her neck, and bleeding deep within the soft tissue of her buttocks. He said this deep-tissue bleeding was at least two to four days old.
After Kipper described the injuries and cause of death, the State began to question him about 14 autopsy photographs. Love's counsel objected but did not specify the basis for that objection. Counsel said that "[i]n light of the testimony," he was "not sure of the purpose of showing the autopsy photos at this point." This statement suggests counsel was arguing the photographs were cumulative. The district court overruled the objection.
Using the photographs, Kipper then pointed out Bre'Elle's injuries to the jury. Some photographs covered similar ground. For instance, two showed a monitor wire sutured to the scalp from different angles. Three showed the inside of the rib cage after it had been removed from the body; two of these depicted the area after it had been exposed to a chemical that changed the tissue coloration. The only difference between the latter two was the placement of arrows in one pointing to the healing around the earlier rib injuries. Two photographs showed a cross-section of the vertebral column from different distances that revealed the fractures and compression deformities in the vertebrae and spinal cord compression
. Three photographs showed the hemorrhaging in the retina and optic nerves.
Photographic evidence is relevant and generally admissible if it has a reasonable tendency to prove a material fact. Autopsy photographs assisting a pathologist in explaining the cause of death are relevant and admissible, but those serving only to " ‘ "inflame the minds of the members of the jury" ’ " are not. Rodriguez , 295 Kan. at 1157, 289 P.3d 85 (quoting State v. Riojas , 288 Kan. 379, 387, 204 P.3d 578 [2009] ). In addition, a district court may abuse its discretion by admitting unduly repetitious photographs. 295 Kan. at 1157, 289 P.3d 85. "The admission of photographs in a murder case has rarely been held to be an abuse of discretion." 295 Kan. at 1157, 289 P.3d 85 (citing State v. Sappington , 285 Kan. 176, 195, 169 P.3d 1107 [2007] ). " ‘[B]ecause the State has the burden to prove every element of the crime charged, photographs used to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant even if the cause of death is not contested.’ " Hilt , 299 Kan. at 196, 322 P.3d 367 ; see State v. Dupree , 304 Kan. 43, 64, 371 P.3d 862 (2016) ().
Love's arguments mirror those raised and rejected in Rodriguez . See 295 Kan. at 1157–58, 289 P.3d 85 (). Although the autopsy photographs are graphic, they assisted Kipper in explaining his findings on cause of the victim's death and her extensive earlier injuries, for which the State had charged Love with a separate count of child abuse. In addition, the photographs are not cumulative of each other because they show injuries from different angles (or, in the case of the rib cage photographs in different ways). And, like the photographs in Rodriguez , the photographs demonstrate the injuries in a way Kipper's...
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