State v. Lucas

• Decision Date: 08 July 1988
• Docket Number: No. 60939,60939
• Citation: 759 P.2d 90,243 Kan. 462
• Parties: STATE of Kansas, Appellee, v. Robert Lynn LUCAS, Appellant.
• Court: Kansas Supreme Court

Page 90

759 P.2d 90

243 Kan. 462

STATE of Kansas, Appellee, v. Robert Lynn LUCAS, Appellant.

No. 60939.

Supreme Court of Kansas.

July 8, 1988.

Syllabus by the Court

1. The purpose of the felony-murder doctrine is to deter those engaged in felonies from killing negligently or accidentally, and the doctrine should not be extended beyond its rational function which it was designed to serve.

2. In order to apply the felony-murder doctrine: (1) the underlying felony must be one which is inherently dangerous to human life; and (2) the elements of the underlying felony must be so distinct from the homicide so as not to be an ingredient of the homicide.

3. In determining whether an underlying felony is inherently dangerous to human life so as to justify a charge of felony murder, the elements of the underlying felony should be viewed in the abstract, and the circumstances of the commission of the felony should not be considered in making the determination.

4. Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of the felony and, therefore, subject to the felony-murder rule.

5. A single assaultive incident of abuse of a child (K.S.A.1987 Supp. 21-3609) which results in the death of a child merges with killing and constitutes only one offense. The coupling together of prior acts of abuse of a child with the lethal act of abuse into one collective charge of abuse of a child does not prevent the operation of the merger rule. Language to the contrary found in State v. Brown, 236 Kan. 800, 696 P.2d 954 (1985), is disapproved.

6. The determination of whether a police interrogation is custodial and thus subject to Miranda warnings as opposed to investigative must be made on a case-by-case basis. Factors to be applied in making this determination are discussed. The interrogation herein is held to be custodial and the admission of the videotape thereof is held to be error. Such error is held to be harmless error, as is more fully set forth in the opinion.

7. Although special care must be taken in admitting photographs taken after the pathologist has intervened, lest the evidence be made more grisly than necessary, those photographs which are relevant and material in assisting the jury's understanding of medical testimony are admissible.

8. Under the facts of this case there is sufficient evidence for a rational factfinder to find the appellant guilty of child abuse of the surviving child beyond a reasonable doubt pursuant to K.S.A.1987 Supp. 21-3609.

Karen Mayberry, Asst. Appellate Defender, argued the cause, and Rosanne Piatt, Asst. Appellate Defender, and Benjamin C. Wood, Chief Appellate Defender, were on the briefs, for appellant.

Michael B. Buser, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Dennis W. Moore, Dist. Atty., were with him on the brief, for appellee.

McFARLAND, Justice:

Robert Lynn Lucas appeals his jury trial convictions of two counts of child abuse, K.S.A.1987 Supp. 21-3609 (one count as to victim Shannon Woodside and one count as to victim Shaina Woodside) and one count of felony murder, K.S.A. 21-3401, as to victim Shaina Woodside. Lucas was sentenced to three to eight years' imprisonment on each count of child abuse and to life imprisonment for felony murder.

At the times of the crimes of which defendant was convicted, he was living in Olathe with Jean Woodside and her two daughters, Shaina (age 18 months at the time of her death) and Shannon (age 3 years). Mrs. Woodside worked three evenings a week and attended school the other four evenings. Defendant had the children in his care every evening and frequently in the daytime. At approximately 10:30 p.m. on July 6, 1986, defendant called 911, the emergency number, to request medical assistance for Shaina. First on the scene was Officer James Stover. He found the defendant in an upstairs bathroom standing over the unconscious body of Shaina. Shannon was in the bathtub. Officer Stover carried Shaina downstairs and observed she was not breathing and had no pulse. He commenced CPR. A Med-Act unit arrived and Shaina was taken to a local hospital. Officer Stover asked defendant what had happened and defendant gave a lengthy detailed account of how he had placed the two little girls in the tub for their evening bath, shut the glass shower doors, and gone downstairs to watch television. Sometime later he had returned upstairs to check on the children and had found Shaina floating face down in the tub. His efforts at CPR were unsuccessful, but the child vomited up her dinner along with a toothpaste tube cap. Thereafter he went downstairs and telephoned the child's mother, requesting that she return home. Defendant then called 911.

After the child had been taken to the hospital, Officer Stover stayed at the residence with the defendant. Upon Mrs. Woodside's arrival, the three went to the hospital. The child was pronounced dead at the hospital. A number of suspicious injuries were observed on her body at the hospital, including patterned burns on her buttocks, three burns resembling cigarette burns on other parts of her body, severe fresh lacerations to her nipples, and numerous bruised areas on many different parts of her body. At this point Detective Joseph Pruett, an experienced investigator of homicide and child abuse cases, was sent to the hospital where he viewed Shaina's body. As per his prior instructions from his Chief of Detectives, Captain John Bunker, Detective Pruett escorted defendant to the Olathe Police Station for an interview. This interview will be discussed in greater detail in one of the issues raised herein. Immediately thereafter, defendant was arrested on a charge of child abuse as to Shaina. The cause of death had not been determined at this time.

The following afternoon an autopsy was performed which showed Shaina had suffered severe multiple blows to the head, one of which had hemorrhaged 3/4 inch past the arachnoid, the thin covering of the brain. The coroner testified the sub-arachnoid hemorrhage could have caused Shaina to lose consciousness. The head injuries appeared to have been inflicted near the time of death. The coroner testified Shaina's body showed injuries which were the "characteristic stigmata that one sees in child abuse." He found it probable Shaina had met her death by losing consciousness in a body of water and drowning. The head injuries were first disclosed during the autopsy.

Further investigation and trial evidence revealed a real life horror story of abuse inflicted by the defendant on both little girls over a period of time, directed particularly at Shaina. The evidence relative to the abuse of Shannon will be discussed in a separate issue. There was evidence that defendant had, prior to July 6, 1986, beaten Shaina severely with a heavy leather belt, poured Tabasco sauce down her throat, set her down on a hot stove burner, and repeatedly pinched and bitten the child. While in his care Shaina's arm had been broken. A few days before Shaina's death, Mrs. Woodside had observed Shaina in a dazed condition while in the bathroom with defendant. Defendant told her that he had "tranked" the child. He explained this consisted of holding his hand over the child's face until she passed out from lack of oxygen. He further stated he had used this form of "discipline" on his child of a previous marriage. He generally explained Shaina's injuries, when observed by others, as arising from accidents or efforts at discipline.

Defendant was charged with and convicted of child abuse as to Shannon and child abuse and felony murder as to Shaina. The matter before us is defendant's direct appeal from these convictions.

For his first issue, defendant contends the district court erred in failing to dismiss the charge of felony murder as the child abuse charge merged into the felony murder and could not constitute the requisite collateral felony to support the felony-murder charge.

The Kansas felony-murder statute is K.S.A. 21-3401, which provides:

"Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony." (Emphasis supplied.)

As we stated in State v. Lashley, 233 Kan. 620, 664 P.2d 1358 (1983):

"A literal reading of this statute would find any felony to be sufficient to support a charge of felony murder if a causal relation exists. The purpose of the statute is to deter those engaged in felonies from killing negligently or accidentally, and that doctrine should not be extended beyond its rational function which it was designed to serve." 233 Kan. at 631, 664 P.2d 1358.

In Kansas, as in many other states, the application of felony murder has been limited by judicial decision to situations where: (1) the underlying felony is inherently dangerous to human life; and (2) the elements of the underlying felony are so distinct from the homicide as not to be an ingredient of the homicide. See State v. Lashley, 233 Kan. 620, 664 P.2d 1358, and Annot., 40 A.L.R.3d 1341.

In determining whether a particular felony is inherently dangerous to human life so as to justify a charge of felony murder, the elements of the underlying felony should be viewed in the abstract, and the circumstances of the commission of the felony should not be considered in making the determination. State v. Underwood, 228 Kan. 294, 306, 615 P.2d 153 (1980).

K.S.A. 21-3110(8) states:

" 'Forcible felony' includes any treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which involves the use or threat of physical force or violence against any person."

Clearly, all of the crimes specifically designated therein would supply the requisite underlying felony for a felony-murder...