State v. Prouse

• Decision Date: 20 January 1989
• Docket Number: No. 61872,61872
• Citation: 767 P.2d 1308,244 Kan. 292
• Parties: STATE of Kansas, Appellee, v. Robert Gene PROUSE, Appellant.
• Court: Kansas Supreme Court

Page 1308

767 P.2d 1308

244 Kan. 292

STATE of Kansas, Appellee, v. Robert Gene PROUSE, Appellant.

No. 61872.

Supreme Court of Kansas.

Jan. 20, 1989.

Syllabus by the Court

1. 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.

2. 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 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. 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.

4. 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.

5. 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.

6. 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.

7. 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 the 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.

8. When a prosecutor desires to charge both statutory means of the commission of involuntary manslaughter for the same homicide, the same should be accomplished by charging the two different means of commission in alternative counts.

Lucille Marino, Asst. Appellate Defender, argued the cause, and Benjamin C. Wood, Chief Appellate Defender, was with her on the brief, for appellant.

Kerwin L. Spencer, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

The opinion of the court was delivered by

McFARLAND, Justice:

Robert Gene Prouse appeals his jury trial convictions of child abuse (K.S.A.1987 Supp. 21-3609) and first-degree felony murder (K.S.A. 21-3401).

On February 15, 1987, defendant and his wife, Susan Prouse, brought their seven-week-old daughter, Felicity, to the emergency room of the Caldwell Hospital. The baby was not breathing. CPR was administered. Twenty minutes later Felicity was pronounced dead. The examining physician, Dr. Ray Stowers, observed multiple contusions and abrasions on the child's face and a large hematoma behind the right ear. He asked defendant how these injuries occurred. Defendant said the child had fallen from her crib two or three weeks earlier and that, a few days previously, the family cat had scratched the child's eyelid. Defendant further stated the child had received no injuries the day of her death, and she was not breathing when he found her. Dr. Stowers believed defendant's explanation was inconsistent with the observed injuries and notified the Sumner County Medical Examiner. An autopsy was performed the following day by Dr. David DeJong.

The autopsy revealed a traumatic separation of the parietal, occipital, and temporal bone plates. The parietal bone plate was totally loose and fell from the skull upon the rolling back of the scalp. A subdural hematoma consisting of clotted and liquified blood was observed. Multiple external bruises and contusions to the head were observed. There were no injuries to any part of the body other than the head. Dr. DeJong concluded the injuries and death were the result of child abuse. The separation of the bony plates was due to a single localized blow occurring probably within hours of death but possibly with "a day or two before that." He stated the injury could not have resulted from a fall from her crib. Multiple blows to the head were the probable causes of the various contusions and abrasions.

The subsequent investigation revealed defendant had been alone with the child during the day in question until approximately 6:00 p.m. when the wife returned from work. Shortly after that the child was discovered not to be breathing. A babysitter had been with the child the day before. She observed no injuries except for the cat scratch over the eye. Defendant again stated there had been no accidental injuries on the day of the child's death and that nothing unusual had occurred.

Defendant was charged with first-degree felony murder and child abuse. He was also charged with involuntary manslaughter (K.S.A.1987 Supp. 21-3404) and endangering a child (K.S.A. 21-3608). Defendant could not be found guilty of all four charges. He could be found guilty of (1) felony murder with child abuse as the collateral felony, or (2) involuntary manslaughter with endangering a child as the unlawful act not amounting to a felony, or he could be found not guilty. The jury found defendant guilty of first-degree felony murder and child abuse. Defendant appeals therefrom.

For his first issue, defendant contends the district court abused its discretion in admitting three of the nine autopsy photographs. The six unobjected-to photographs show the external injuries prior to any alteration of the body by autopsy. The three objected-to photographs show the internal head injuries with the scalp rolled back. Defendant contends the three photographs were gruesome, inflammatory, and repugnant.

The admission of photographs into evidence is within the discretion of the trial court unless it is shown such discretion is abused. State v. Kendig, 233 Kan. 890, 893, 666 P.2d 684 (1983).

A similar issue was raised in State v. Lucas, 243 Kan. 462, 759 P.2d 90 (1988), involving comparable photographs. In Lucas, Syl. p 7, we held:

"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."

The three photographs herein assisted the jury's understanding of Dr. DeJong's testimony as to the separation of the bones, the subdural hematoma, and the force necessary to cause such injuries. We find no abuse of judicial discretion in the admission of the photographs.

For his second issue, defendant contends the trial court erred in the admission of certain rebuttal testimony.

Defendant presented testimony that he was a person of great self-control who never became angry. Further, defendant testified "there isn't anything a child could do to upset me."

The State called Sherri Manske as a rebuttal witness. She testified she had lived with defendant from October 1984 to January 1985. Living with them were her four-month-old baby and another child about a year older. She testified that the baby's crying upset defendant and that he would cover up the baby's mouth to stop the crying. This happened several times even though she told him not to do it. She testified she had seen displays of temper by defendant and that he had become physically violent on one occasion by throwing the furniture around. The couple had split up over this last incident.

The use and extent of rebuttal evidence rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion was abused to a party's prejudice. State v. Richard, 235 Kan. 355, 360, 681 P.2d 612 (1984); State v. Weigel, 228 Kan. 194, 200, 612 P.2d 636 (1980); State v. Lovelace, 227 Kan. 348, 353, 607 P.2d 49 (1980).

In their briefs, the parties go off on a tangent as to whether or not the rebuttal testimony was precluded by K.S.A. 60-447, which provides:

"Subject to K.S.A. 60-448 when a trait of a person's character is relevant as tending to prove conduct on a specified occasion, such trait may be proved in the same manner as provided by K.S.A. 60-446, except that (a) evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible, and (b) in a criminal action evidence of a trait of an accused's character as tending to prove guilt or innocence of the offense charged, (i) may not be excluded by the judge under K.S.A. 60-445 if offered by the accused to prove innocence, and (ii) if offered by the prosecution to prove guilt, may be admitted only after the accused has introduced evidence of his or her good character."

K.S.A. 60-447 is inapplicable herein. The complained-of testimony was not offered to prove guilt. Rather, the purpose of such testimony was to refute certain testimony introduced by defendant as to his great self-control and inability to become upset with a child. This was clearly proper rebuttal evidence.

As we held in State v. Lovelace, 227 Kan. 348, Syl. p 7, 607...