State v. Lumbrera

• Decision Date: 11 December 1992
• Docket Number: No. 66324,66324
• Citation: 252 Kan. 54,845 P.2d 609
• Parties: STATE of Kansas, Appellee, v. Diana LUMBRERA, Appellant.
• Court: Kansas Supreme Court

Page 609

845 P.2d 609

252 Kan. 54

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

No. 66324.

Supreme Court of Kansas.

Dec. 11, 1992.

Syllabus by the Court

1. Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.

2. The determination of whether to change venue lies within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant, with the burden upon the defendant to show prejudice in the community, not as a matter of speculation, but as a demonstrable reality.

3. The defendant must show that such prejudice exists in the community that it was reasonably certain the defendant could not have obtained a fair trial. There must be more than speculation that the defendant did not receive a fair trial. The State is not required to produce evidence refuting that of the defendant.

4. The purpose of the voir dire examination is to enable the parties to select competent jurors without bias, prejudice, or partiality. The nature and scope of the voir dire examination is within the sound discretion of the trial court.

5. 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.

6. In determining whether the trial court has taken sufficient measures to assure that the accused is tried by an impartial jury free from outside influences, appellate tribunals have the duty to make an independent evaluation of the circumstances.

7. An offer by the State to stipulate to the qualifications of an expert witness called by the defendant is merely an offer unless accepted by the defendant. Absent such acceptance, the defendant has the right to present the witness' qualifications to the jury.

8. The authorization of funds for expert services necessary for an adequate defense in a criminal defendant's case lies within the sound discretion of the trial court. Appellate courts will not disturb the 9. Absent substantial prejudice to the rights of the defendant, there must be a showing of bad faith on the part of the prosecutor before relief may be granted as a result of a prosecutor's reference in his or her opening statement to matters not provable or which the prosecutor does not attempt to prove at trial.

trial court's ruling unless the defendant shows prejudice to his or her substantial rights resulting from abuse in the exercise of the court's discretion.

10. A trial court has an affirmative duty to instruct the jury on all lesser included offenses established by the evidence. An instruction on a lesser included offense must be given even though the evidence supporting the lesser offense may not be strong or extensive. However, the instruction need not be given if there is no evidence by which a rational factfinder might find the defendant guilty beyond a reasonable doubt of the lesser included offense.

11. In a criminal case, closing arguments of counsel should be on the record so they are available for appellate review, if needed.

12. K.S.A.1991 Supp. 22-3717 applies only to parole eligibility of inmates serving sentences of imprisonment and has no application in a trial court's determination of whether or not to grant probation.

Elizabeth Sterns, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief, for appellant.

Ricklin R. Pierce, County Atty., argued the cause, and Tamara S. Hicks, Asst. County Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.

McFARLAND, Justice:

Diana Lumbrera appeals her jury trial conviction of first-degree murder (K.S.A. 21-3401).

The facts are summarized as follows. Defendant was the mother of a four-year-old boy named Jose. On April 30, 1990, the child's babysitter called defendant at work to advise the boy was vomiting and appeared to have a fever. Defendant left work to pick up the child. Later that day, defendant took the child to the emergency room of St. Catherine's Hospital in Garden City. Abdominal pain and vomiting were the presenting symptoms. Amoxicillin was prescribed. No life threatening condition was diagnosed and the child was sent home with his mother.

The following evening a telephone call was received by the hospital from a woman who did not identify herself, stating that her son's lips were blue and that he was not moving. Shortly thereafter, defendant carried the lifeless body of Jose into the hospital emergency room. Three observations were made at the time: (1) the child had petechiae (small purple spots on his face and eyelids); (2) no obstruction was present in the child's airway; and (3) food was present in his stomach. The presence of petechiae is an indication of asphyxia. The cause of death was initially determined to be asphyxia by smothering as opposed to being the result of natural circumstances. It was also noted at the time that the medical records indicated that defendant's five other children had died young in Texas and that their deaths were unattended. Results of the subsequent autopsy were consistent with the preliminary finding of death by smothering.

Defendant was questioned by police officers. She stated she had been the woman who had called the emergency room earlier. When asked whether she had smothered the child with a pillow, she replied it "wasn't with a pillow." Defendant was charged with and convicted of the first-degree murder of Jose. Other facts will be stated as necessary for the discussion of particular issues.

The bizarre circumstances involved in this case created a situation wherein extraordinarily careful judicial control was necessary to ensure a fair trial was had. There is merit in a number of the claims of trial error and abuse of judicial discretion. Even if no single error or abuse of discretion is sufficient to constitute reversible "Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied him a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant."

error, however, when viewed cumulatively in the totality[252 Kan. 57] of the circumstances herein, we are convinced that defendant did not receive a fair trial. As we stated in Taylor v. State, 251 Kan. 272, Syl. p 6, 834 P.2d 1325 (1992):

The evidence of guilt against the defendant herein cannot be said to be overwhelming. Hence, we must reverse the conviction and remand the case for a new trial. We turn now to a discussion of the issues presented.

VENUE AND JURY SELECTION

Not surprisingly, there was a great deal of pretrial publicity concerning this case. This issue involves three separate points: (1) denial of change of venue; (2) denial of the request to sequester prospective jurors; and (3) denial of individual voir dire. Each of these points concerns the pretrial publicity herein. We shall first consider the change of venue point.

K.S.A. 22-2616(1) provides:

"In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county."

In State v. Ruebke, 240 Kan. 493, 731 P.2d 842, cert. denied 483 U.S. 1024, 107 S.Ct. 3272, 97 L.Ed.2d 770 (1987), we discussed the issue of a change of venue based upon extensive pretrial news media coverage. Ruebke had been convicted of the murders of a babysitter and the two children for whom she was sitting. He argued that the pretrial publicity dictated a change in venue. We held:

"The determination of whether to change venue lies within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant, with the burden upon the defendant to show prejudice in the community, not as a matter of speculation, but as a demonstrable reality. State v. Haislip, 237 Kan. 461, 701 P.2d 909 (1985). The defendant must show that such prejudice exists in the community that it was reasonably certain he could not have obtained a fair trial. There must be more than speculation that the defendant did not receive a fair trial. The State is not required to produce evidence refuting that of the defendant. State v. Sanders, 223 Kan. 273, 280, 574 P.2d 559 (1977).

....

"Indicative of whether the atmosphere is such that a defendant's right to a fair and impartial trial would be jeopardized, courts have looked at such factors as the particular degree to which the publicity circulated throughout the community; the degree to which the publicity or that of a like nature circulated in other areas to which venue could be changed; the length of time which elapsed from the dissemination of the publicity to the date of trial; the care exercised and the ease encountered in the selection of the jury; the familiarity with the publicity complained of and its resultant effect, if any, upon the prospective jurors or the trial jurors; the challenges exercised by the defendant in the selection of a jury, both those...