State v. Morton, 53076

• Decision Date: 15 January 1982
• Docket Number: No. 53076,53076
• Citation: 638 P.2d 928,230 Kan. 525
• Parties: STATE of Kansas, Appellee, v. Cecilia MORTON, Appellant.
• Court: Kansas Supreme Court

Page 928

638 P.2d 928

230 Kan. 525

STATE of Kansas, Appellee, v. Cecilia MORTON, Appellant.

No. 53076.

Supreme Court of Kansas.

Jan. 15, 1982.

Syllabus by the Court

In an appeal from a conviction of murder in the second degree the record is examined and it is held : 1) The trial court did not err in failing to admonish the jury regarding an improper statement made to the jury by the bailiff; 2) the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.

John D. Clark, Wichita, argued the cause and was on the brief for the appellant.

Beverly Dempsey, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with her on the brief for the appellee.

HERD, Justice:

Cecilia Morton was convicted by a jury of murder in the second degree (K.S.A. 21-3402) for the death of her two and one-half year old foster son, Dennis Rizer, on June 17, 1980. This appeal followed.

Dennis and Denny Rizer, twin brothers, came to live with Steve and Cecilia Morton in Wichita in early June, 1980. Social and Rehabilitation Services had previously approved the Mortons as foster parents for the two boys. They appeared to be normal two and one-half year olds. Denny was the more aggressive of the two, sometimes hitting other children and throwing toys. During the week before his death, Dennis was characterized by the Mortons as becoming "kind of a problem" with his incessant crying and misbehaving. Once, while Cecilia was spanking Dennis because he wouldn't stop crying, Steve had to intervene. Dennis's behavior "was wearing on her a little bit," according to Steve. Morton also testified he saw Cecilia give Dennis a "slight tap on the head." Another time as he started to go to work Morton saw Cecilia give Dennis "a little toss on the bed." Her conduct disturbed Morton enough that he waited until Cecilia's actions were completed before he proceeded to work.

On June 15, 1980, the Mortons took the twins with them to Steve's grandmother's home to care for her dogs while she was away. They put the twins to bed there. Cecilia testified she heard a thump about 11:00 p. m. in the bedroom where the boys were sleeping. They investigated and found Dennis had fallen off the end of the bed onto a concrete floor covered by a thin carpet. Dennis did not awaken when he hit the floor. Steve picked him up, checked his head and put him back to bed. Uncontroverted testimony indicated the height of the bed was approximately three feet. The Mortons left Steve's grandmother's house between midnight and 1:00 a. m.

The next morning, June 16, Mr. Morton left for work at 7:45 a. m. At approximately 11:00 a. m. he received a call from Cecilia advising him Dennis had just fallen off a chair in the kitchen and "his eyes were rolling back into his head." Morton rushed home and with his wife took Dennis to the emergency room of St. Francis Hospital. There Dennis was examined by Dr. Nonhof who found Dennis a little drowsy, but alert and awake. Dennis was dismissed and the Mortons were given a "head trauma sheet" to assist in spotting any future problems. No x-rays were taken.

Dennis was then taken home and put to bed. Cecilia testified he awoke later and began to play in the living room with the family dog. Dennis then "all of a sudden collapsed on the floor." Mrs. Morton became frightened and called the social worker who told her to call emergency services. This she did and then called Mr. Morton at work. At this point Cecilia tried to perform CPR on Dennis.

Dennis was transported to the emergency room at St. Francis for the second time that day. By the time the ambulance reached the hospital, his heart had stopped. Resuscitation efforts produced a heartbeat but Dennis remained comatose. The nurse on duty testified she observed no bruises on Dennis's body other than the discoloration caused by the I.V.'s. The doctor on duty testified there was no external evidence of a head injury.

At about 10:30 that evening Dennis was examined by a neurologist. He noticed a papilledema, which is caused by swelling of the optic nerve and is often the result of a head injury. The doctor testified a papilledema takes at least 18 hours to develop. Dennis remained without brain activity until he died the next morning, June 17, 1980.

Dr. William G. Eckert performed an autopsy. He testified as to his findings. They included bruises on the legs and inner thighs, on the side of the neck, above the right eye, on the buttocks, and on the cheek and back. He also found an area of bruising on the back of the head, at the base of the skull. This area corresponded to two separate skull fractures which, in Dr. Eckert's opinion, caused swelling of the brain and death. Dr. Eckert further testified he thought both fractures resulted from either one very severe blow or from the head striking a surface which had two separate fixed areas. He believed the head injuries could have been caused by a fall from the height of a chair if the child were propelled downward. He admitted some of the bruises to the body could have been caused by resuscitative efforts but he testified many of the other bruises were "out of the range of the area" CPR efforts would affect.

Immediately following Dennis's death the Wichita police department launched an investigation. During the rest of June and all of July Detective Jan McCloud interviewed those involved with the case. In the course of her investigation Detective McCloud received a phone call from Cecilia Morton asking her to examine the bedroom at Steve's grandmother's house where Dennis had fallen out of bed. This investigation revealed several strands of hair on the bicycle chain close to the spot where Dennis had fallen. Lab tests disclosed the hairs did not match those of Dennis Rizer or any of the persons present at the time of the fall. On a previous visit to the same house, Detective McCloud's examination of the bicycle had turned up no hairs. Cecilia Morton was then charged with second degree murder.

Appellant's first issue on appeal is that the trial court erred in failing to admonish the jury regarding an improper statement made to the jury by the bailiff. During the jury deliberations, Jacquelyn Lewis, bailiff, was summoned to the jury room and asked "(i)f the defendant fell under the felony murder rule." She told the jury the defendant did not. No felony murder instructions had been given. Appellant contends the question indicates the jury was confused and was not following instructions and the trial judge's failure to admonish or give a clarifying instruction constitutes reversible error.

The Kansas statute relating to criminal jury trial procedure is K.S.A. 22-3420. Subsection (3) of that statute provides:

"After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney."

The bailiff, of course, had no authority to answer the jury's question. She should have kept silent and passed the request on to the judge. Kansas law, however, indicates her improprieties do not rise to the level of reversible error. For example, in State v. Harrington, 148 Kan. 602, 606, 83 P.2d 659 (1938), the court dealt with legally correct advice given by a bailiff in response to a juror's question regarding leniency. The court held the bailiff's conduct, although irregular, did not constitute prejudicial error because the merits of the case were not discussed with the jury. See also State v. Russell, 182 Kan. 649, 655, 323 P.2d 913 (1958). Moreover, assuming the judge knew about the question and the improper conduct of the bailiff, his failure to admonish the jury or answer the question was not error.

The obligation of the trial court pursuant to K.S.A. 22-3420 was fully discussed in State v. Bandt, 219 Kan. 816, 549 P.2d 936 (1976). In that case the defendant was charged with theft and there was a question whether or not he knew certain property was stolen when he received it. The jury's question to the court was whether the defendant was "under the same kind of guilt" when he discovered the property was stolen as he would have been had he known the property was stolen the minute he received it. p. 821, 549 P.2d 936. The trial judge refused to give supplemental instructions regarding the question. The Supreme Court reversed saying "Under the circumstances the trial court was obligated to further instruct the jury ...." p. 823, 549 P.2d 936. This was because the jury was "obviously confused" and the jury's question to the court "raised a clear-cut question of law ...." pp. 822-23, 549 P.2d 936.

The major concern of this court in State v. Bandt, however, was the fact the trial court permitted counsel for both parties to present to the jury their conflicting statements of law. When the trial court subsequently refused to answer the question, the effect was that the jury determined the issue of defendant's guilt or innocence by choosing between the legal theories of the county attorney and defense counsel.

The Bandt court...