State v. Lumbrera

• Decision Date: 10 March 1995
• Docket Number: No. 70576,70576
• Citation: 257 Kan. 144,891 P.2d 1096
• Parties: STATE of Kansas, Appellee, v. Diana LUMBRERA, Appellant.
• Court: Kansas Supreme Court

Page 1096

891 P.2d 1096

257 Kan. 144

STATE of Kansas, Appellee, v. Diana LUMBRERA, Appellant.

No. 70576.

Supreme Court of Kansas.

March 10, 1995.

Syllabus by the Court

1. Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence 2. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Judicial discretion must thus be considered as exercisable only within the bounds of reason and justice in the broader sense and be considered abused only when it plainly overpasses those bounds.

of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court, and its ruling will not be reversed unless it appears the discretion has been abused to a party's prejudice.

3. In ruling upon the admissibility of evidence of a prior crime or civil wrong under K.S.A. 60-455, the trial court must: (1) determine it is relevant to prove one of the facts specified in the statute; (2) determine the fact is a disputed, material fact; and (3) balance the probative value of the prior crime or civil wrong evidence against its tendency to prejudice the jury.

4. The admissibility of expert testimony lies within the sound discretion of the trial court, and its determination will not be reversed on appeal absent a showing of an abuse of discretion.

5. On appeal, an appellate court will not reverse a determination that a confession was freely, voluntarily, and intelligently given if there is substantial competent evidence to support the determination.

Stephen C. Moss, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief for appellant.

Tamara S. Hicks, Asst. County Atty., argued the cause, and R. Lee McGowan, Deputy County Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief for appellee.

McFARLAND, Justice:

Diana Lumbrera appeals her jury trial conviction of first-degree murder (K.S.A.1989 Supp. 21-3401). Defendant had been previously convicted of the same offense, but that conviction was reversed by this court on the basis of cumulative trial errors having deprived defendant of a fair trial (State v. Lumbrera, 252 Kan. 54, 845 P.2d 609 [1992].

The victim herein was defendant's four-year-old son, Jose. It was the State's theory that defendant had intentionally smothered the child in order to benefit from his life insurance policy. The child died in Garden City. Additional facts will be stated as necessary for the discussion of particular issues.

EXPERT REBUTTAL TESTIMONY

For her first issue, defendant contends the district court erred in allowing the State to present certain expert rebuttal testimony. Much of the testimony in this case came from expert witnesses on each side relative to the cause of Jose's death. The State was seeking to prove murder by means of suffocation. The defense sought to establish that death from natural causes was, at least, a possibility. To place the specific issue raised in context, some additional facts need to be set forth.

On the afternoon of April 30, 1990, defendant picked Jose up early from his babysitter's home after being notified he was vomiting. Defendant took the child to St. Catherine's Hospital where he was seen by Dr. Albert H. Gaines, the emergency room physician. A bacterial infection was the diagnosis, and Amoxicillin was prescribed. The physician did not believe Jose had a life-threatening condition, and he was sent home with defendant.

A little over 24 hours later (9:48 p.m.), defendant carried the body of Jose into the Also present was Dr. Lauren Welch, a surgeon. Dr. Welch testified that he observed three physical manifestations that made him suspicious that Jose's death was not from natural causes. First, Jose had petechiae across his face and on his eyelids. Petechiae are pinpoint hemorrhages in the skin that appear as small red or reddish-purple spots. Petechia in this particular distribution signifies an asphyxial cause of death. Asphyxia occurs when a person does not breathe in enough oxygen. Second, there was no obstruction when a tube was placed down Jose's trachea, and his lungs were clear. Third, when a nasal gastric tube was inserted, it revealed that Jose had food in his stomach, indicating Jose had not vomited for some time. Observations two and three seemed to eliminate any obstruction within the boy's body shutting off his air supply, which left asphyxiation by smothering or suffocation.

same emergency room. After unsuccessful "code blue" efforts, Jose was pronounced dead at 10:25 p.m. by Dr. Michael Shull, a pediatrician.

Dr. Eva Vachal was the pathologist performing the autopsy. Her observations and conclusions were consistent with those of Dr. Welch, leaving smothering as the cause of the asphyxiation. Dr. Luther Frye, an ophthalmologist called in by Dr. Vachal, concluded from his examination of the petechiae present in Jose's eyes that death could not have been the result of natural causes. The State also presented testimony from Dr. Michael Baden, a forensic pathologist, who testified as to his conclusion that Jose had been smothered.

The defense called its own experts relative to the cause of Jose's death. Dr. William Eckert conducted a second autopsy on Jose's body. He testified: (1) Jose had a chronic inflammatory infection in various organs; (2) the petechiae in the boy's eyes was due to dryness; (3) there was no evidence of smothering; and (4) death must have occurred from natural causes.

Dr. Charles Reiner, a pediatric pathologist from Columbus, Ohio, based his testimony on the autopsy reports of Drs. Vachal and Eckert as well as the examination of some tissue slides. Dr. Reiner testified Jose had a widespread viral infection which, by itself, was insufficient to cause death. Dr. Reiner opined, however, that such an infection could inflame the atrioventricular (AV) node of the heart which, in turn, could produce sudden death from ventricular fibrillation. No slides of the AV node had been made at either autopsy. Dr. Reiner testified on April 20, 1993, was excused, and went back to Ohio.

The State notified Dr. Vachal of Dr. Reiner's testimony. Dr. Vachal had the AV node available, made slides thereof, and did further testing. On April 22, the State advised that it wished to call Dr. Vachal as a rebuttal witness relative to Dr. Reiner's AV node testimony. The defense made the following objection:

"Your Honor, we would object to the addition of any new slides or interpretations along the reason that we have never had an opportunity to view these particular slides, much less have our own pathologist or our own expert witnesses review them. We cannot identify or even properly cross-examine Dr. Vachal on the preparation techniques used or the evaluation she would be drawing without the assistance of an expert. And had we received this last week we would have had three experts we could have drawn on to get that advice, but here it is the last hours of the case and I don't have a chance in the world to know what we're talking about, much less evaluate it by way of asking an expert is this in fact what I'm looking at."

The court, after noting that the defense's objection went not to the nature of the evidence but rather to the lack of opportunity to prepare therefor, offered defense counsel a brief recess to discuss Dr. Vachal's testimony prior to her taking the witness stand. Defense counsel then requested a specific finding as to the claim of "surprise." The court replied:

"I have to conclude that under the circumstances as they arose in this case the rebuttal evidence does not constitute unfair surprise or take unfair advantage of defense counsel. All of the evidence before me indicates that Dr. Vachal and the Defense counsel then requested and received time to meet with Dr. Vachal. A trial recess was taken for this purpose. When Dr. Vachal took the stand, she testified that upon being advised by the State on April 20 of the defense testimony relative to the AV node, she and her associate performed additional studies. They dissected the heart, including the AV node, and found no irregularities. She then adhered to her original death by smothering conclusion.

prosecution were not aware of the need to examine this portion of the heart until that need was raised by the testimony of defense pathologists. And so it is truly rebuttal evidence and not evidence which they were prepared to present in their case in chief."

For her first issue, defendant contends that the admission of the rebuttal evidence violated several rights essential to obtaining a fair trial, including "her right to be free from undue surprise in the State's case, her Sixth Amendment right to confront the witnesses against her, and her Fourteenth Amendment due process right to expert testimony."

Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or acts introduced by or on behalf of...