State v. Nesbitt

• Decision Date: 01 June 2018
• Docket Number: No. 116,550,116,550
• Citation: 417 P.3d 1058
• Parties: STATE of Kansas, Appellee, v. Kasey L. NESBITT, Appellant.
• Court: Kansas Supreme Court

417 P.3d 1058

STATE of Kansas, Appellee,

v.Kasey L. NESBITT, Appellant.

No. 116,550

Supreme Court of Kansas.

Opinion filed June 1, 2018.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, argued the cause, and Samuel Schirer, of Kansas Appellate Defender Office, was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by Beier, J.:

Defendant Kasey L. Nesbitt appeals his convictions for felony murder, rape, and aggravated burglary, arising from a violent and ultimately fatal attack on 100-year-old M.S. in her home.

Nesbitt raises five issues on appeal: (1) insufficient evidence to support felony murder; (2) insufficient evidence to support aggravated burglary; (3) prosecutorial error; (4) error in refusal to give a requested jury instruction on a race-switching exercise; and (5) cumulative error.

We reject these challenges and affirm Nesbitt's convictions.

FACTUAL AND PROCEDURAL HISTORY

The attack on M.S. came to light in the early morning hours of September 30, 2014, when she knocked on her neighbor's door. The neighbor's son answered the knock, finding a visibly "distressed" and "shaking" M.S. wrapped only in a bathrobe. M.S. said someone was breaking into her house. After letting M.S. inside and checking M.S.'s house for intruders, the son called police.

On arrival, officers of the Wichita Police Department also checked M.S.'s house for intruders. They found none but noted that the lock on the back door had been damaged and glass broken out. Although the master bedroom appeared disorganized, the officers did not notice anything obvious that had been disturbed or taken from the rest of the house. The officers interviewed M.S., noting that her right wrist was bruised

and swollen. M.S. gave the officers her name, consented to a search of her home, and was taken to the hospital.

Crime scene investigators took photos of the back door of M.S.'s house, observing that the frame was lying on the ground in two pieces, surrounded by glass and sheetrock dust. Both of the door's strike plates had been knocked out, and one of them was lying on the floor. Like the officers before them, the investigators observed that the house was tidy and orderly, with the exception of the damage to the back door and some disarray in the master bedroom, where the attack had taken place.

The bedding in the master bedroom had been pulled back, and a pillow was lying on the floor next to the bed. As the crime scene investigators collected evidence, they saw jewelry; car keys; and a purse containing a wallet, medications, and cash in open view. They also did not detect "evidence that anything was moved" or missing in the rest of the house. Three items from outside M.S.'s house were collected and photographed: a Dr. Pepper can in the alley behind it, a cigarette butt on its west side near the back door, and a switchblade in its backyard. Although the can and switchblade were tested for identifiable fingerprints, none were found.

A sexual assault nurse examiner (SANE) saw M.S. at the hospital and collected evidence. During the nurse's examination, M.S. could not be moved without causing her great pain. She also complained of severe pain while lying still. M.S. particularly cited great pain in her right arm, bottom, and back. The nurse made note of several injuries, including "extensive bruising beginning at [M.S.'s] head to her toes," indicating recent blunt force trauma. The nurse would later testify that M.S. had a fracture of her lower right arm that caused swelling.

The nurse also discovered substantial injuries to M.S.'s genital area. M.S. had a 5 millimeter by 5 millimeter abrasion on her labia minora, which, the nurse later testified, was associated with trauma. In addition, M.S. had bleeding under the tissue in the area where she urinated. M.S. also had "a large hole" just below her vaginal opening. M.S.'s vagina was swabbed for evidence, and the swabs were turned over to police.

After the SANE exam was finished, M.S. was admitted to the hospital, where she told her attending physician that she had "generalized pain all over" and had an especially hard time walking because her "bottom [was] hurting all the time." Hospital caregivers also discovered M.S. had compression fractures

in her lower spine, which were likely to be attributable to her attack and considered the likely source of her lower back pain. M.S. required a significant amount of help to move; pain from her injuries limited her ability to move herself. Doctors did not see improvement in M.S.'s mobility during her two-week hospital stay. Rather, they observed M.S. become weaker and suffer increasing trouble with mobility.

At the end of the two weeks, M.S. was transferred to a skilled nursing facility for physical therapy. She died 6 days later—approximately 21 days after the attack.

The coroner, Dr. Jamie Oeberst, would eventually confirm M.S.'s extensive bruising and the fractures noted by the hospital staff and the substantial reduction in her mobility that followed from the pain these injuries produced. According to Oeberst, M.S.'s reduced mobility ultimately contributed to the formation of blood clots

in her legs, which traveled to M.S.'s lungs, killing her. Oeberst estimated that the clots had formed three to seven days before M.S.'s death. "[T]he clots in her legs that then went to her lungs is her cause of death. And the reason she developed those clots in her legs was because—was a result of the immobilization after the assault." Oeberst certified M.S.'s death as a homicide, with the attack, obesity, dementia, and advanced age contributing to her death. Oeberst acknowledged that it was possible, however, that the blood clots could have formed even if the attack on M.S. had not occurred.

M.S. was never able to give a complete description of the person who attacked her. She was able to say only that the attacker was a man. She told her daughter-in-law and a nurse, "I guess you could say I was raped," and, "[W]ell, I guess you could call it a rape." When a hospital psychiatrist asked M.S. if she knew why she was in the hospital, he testified, M.S. told him she was raped. But, at other times, M.S. said she did not know why she had been hospitalized. The psychiatrist diagnosed M.S. with dementia

, primarily due to her advanced age.

Police did not have a suspect until DNA testing of M.S.'s SANE examination swabs revealed a local-and state-database match to a 2002 sample taken from Nesbitt because of another incident. Before M.S. died, the State charged Nesbitt with rape and aggravated burglary. It added a charge of felony murder after her death.

At trial, the State relied exclusively on its DNA match evidence to link Nesbitt to the crimes. Forensic scientist Sarah Geering testified that a major contributor and a minor contributor of DNA were found on the swab taken from M.S. The minor contributor's DNA profile was consistent with M.S.'s, leaving only the major contributor in the form of seminal fluid. Geering testified the lab was able to generate a "full profile at all of the markers that we test for." The major contributor's profile matched Nesbitt's. Given that match, the State did not arrange for DNA testing of the Dr. Pepper can, cigarette butt, and switchblade, or of a Walgreens receipt also found on M.S.'s property.

At the conclusion of the evidence at trial, Nesbitt requested that the district judge give the following "race switching" instruction to the jury:

"It is natural for human beings to make assumptions about the parties and witnesses in any case based on stereotypes. Often we may rely on stereotypes without even being aware that we are doing so. As a juror you must not make assumptions about the parties and witnesses based on their membership in a particular racial group. You must not assume that a particular interpretation of a person's behavior is more or less likely because the individual belongs to a particular racial group. Reliance on stereotypes in deciding real causes is prohibited because every accused is entitled to equal protection of the law, and because racial stereotypes are historically, and notoriously, inaccurate when applied to any particular member of a race.

"To ensure that you have not made any unfair assessments based on racial stereo types, you should apply a race-switching instruction exercise to test whether stereotypes have affected your evaluation of the case. ‘Race Switching,’ involves imagining the same events, the same circumstances, the same people, but switching the races of the particular witnesses. For example if the accused is African-American and the accuser/victim is white, you should imagine a White accused and a black accuser/victim.

"If your evaluation of the case is different after engaging in race-switching, this suggests a subconscious reliance on stereotypes. You must then reevaluate the case from a neutral, unbiased perspective."

The State objected because the case against Nesbitt was primarily built upon DNA evidence, and the court denied Nesbitt's request.

During closing arguments, the prosecutor detailed the decline in M.S.'s quality of life after the attack. He then stated:

"The aggravated burglary, there are two counts. The first one set forth in instruction six. I believe the second one is instruction seven .... The bottom line is what we'd have to prove, you can read it for yourself ... he entered the home without authority with the intent to—and there's two different ways to look at this, two alternative, either theft or a rape therein. And it happened on or about the date alleged." (Emphasis added.)

During the State's rebuttal, the prosecutor commented on M.S.'s relationship with other members of her family:

"Mr. Bennett described to you kind of this picture of [M.S.] in her house before the attack. A hundred-year-old

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