State v. Rodriguez, 103,467.

• Decision Date: 07 December 2012
• Docket Number: No. 103,467.,103,467.
• Citation: 289 P.3d 85
• Parties: STATE of Kansas, Appellee, v. Jaime RODRIGUEZ, Appellant.
• Court: Kansas Supreme Court

289 P.3d 85

STATE of Kansas, Appellee,

v.Jaime RODRIGUEZ, Appellant.

No. 103,467.

Supreme Court of Kansas.

Dec. 7, 2012.

Joanna Labastida, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Sheryl L. Lidtke, chief deputy district attorney, argued the cause, and Jerome A. Gorman, 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 Jaime Rodriguez appeals his conviction of first-degree felony murder in the death of his 5–month–old son, Louie. He argues that the district court judge erred by failing to instruct sua sponte on reckless second-degree murder and reckless involuntary manslaughter, by giving an incorrect jury instruction on child abuse, by admitting gruesome photographs that were unduly graphic and cumulative, and by denying his motion for new trial.

We hold that there was no error and affirm Rodriguez' conviction.

Factual and Procedural Background

Louie was the son of Corrine Quinonez and defendant Rodriguez; he died December 17, 2006. He had been in poor health during his 5 months of life, spending the first of them in a neonatal intensive care unit and then making several visits to doctors for a variety of problems.

Approximately 1 week before his death, Louie's mother took him to the emergency room because, according to her, Louie had “ballooned up beyond recognition and he was having extreme difficulty breathing.” Louie was treated and sent home with a prescription for steroids, but his mother could not afford to fill the prescription.

Two days later, Louie was home with both of his parents. His mother prepared a bottle of formula, but Louie consumed less than usual. About 3 p.m., Louie's mother left Louie at home with Rodriguez. When she returned about an hour later, Rodriguez was frantic and on the phone with a 911 operator, and he yelled that Louie was not breathing.

When paramedics arrived, Louie's mother was performing mouth-to-mouth resuscitation on Louie. The paramedics took over and observed that Louie was gasping and that his lips were blue. Louie's mother told the paramedics that she thought Louie was having an allergic reaction. Rodriguez said nothing. The paramedics rushed Louie to Providence Medical Center in Kansas City.

Upon Louie's arrival at Providence, Dr. Marianna Poulose placed a tube down his throat to administer oxygen. Louie was limp and unresponsive and had blood in the whites of his eyes. Another doctor administered epinephrine to help with Louie's heart function. In addition, the doctors ordered a chest X-ray and conducted blood tests. After 20 minutes, Louie was air-lifted to Children's Mercy Hospital in Kansas City, Missouri, for specialized care.

At Children's Mercy, Louie was placed on a ventilator to stabilize his oxygenation. Dr. Patricia Webster noticed that Louie's “soft spot” on his head was tense and bulging, suggesting that there was excessive pressure inside his skull. A CT scan revealed significant blood around the surface of Louie's brain and extreme swelling of the brain itself. Webster also saw blood in Louie's left eye. She believed his injuries were consistent with those of a shaken baby. Dr. Michael Moran and Dr. Laura Plummer also examined Louie the day after he was admitted to Children's Mercy.

Rodriguez told hospital personnel and investigators that he had been asleep in bed with Louie while Louie's mother was gone. When Louie awoke, Rodriguez got up and changed Louie's diaper, then went to the kitchen to dispose of the diaper. When Rodriguez returned to the bedroom moments later, Louie was unresponsive and was having difficulty breathing. Rodriguez called 911.

Within a few days of Louie's arrival at Children's Mercy, he was pronounced brain dead, and his mother approved removal of life support. Dr. Erik Mitchell, a forensic pathologist, conducted Louie's autopsy.

Rodriguez was charged with first-degree felony murder with child abuse as the underlying felony. His first trial ended in a hung jury, and he was retried.

At the retrial, the State put on several doctors who treated or reviewed Louie's condition before his death. Webster testified that it was her opinion vigorous shaking had caused Louie's injuries, which were consistent with “nonaccidental trauma.” Moran testified that he had reviewed Louie's CT scans and that they showed Louie's brain was “massively swollen,” causing the bones of his skull to separate. Moran concluded that Louie's injuries were the result of “intentionally inflicted head trauma.” Plummer testified that Louie had multilayered hemorrhaging of the eyes and that this type of injury was consistent with “shaken baby nonaccidental trauma.”

The district judge conducted a hearing outside the presence of the jury regarding four autopsy photos the State planned to offer as evidence. Three photos showed Louie's scalp pulled back; the fourth was taken after Louie's skull had been removed and showed his brain covered in coagulated blood. Defense counsel objected to the admission of the photos, arguing that they were “very prejudicial” because of their graphic nature, that their prejudicial effect “far outweigh[ed] any probative value,” and that the photos would inflame the jurors' passions. The district judge overruled the objection.

Defense counsel renewed the objection to the photos when they were offered into evidence during Mitchell's testimony, and the renewed objection also was rejected. Mitchell testified that Louie had blood between his skull and his brain. Because there was no bleeding elsewhere in the brain, Mitchell concluded that Louie suffered some form of trauma, either a direct impact or as a consequence of rotational movement, i.e., shaking.

Rodriguez' sole witness in the second trial was Dr. Mohammed Al–Bayati, a pathologist and toxicologist, who testified that his review of Louie's medical history and the hospital records suggested that an infection was the cause of Louie's death, specifically, whooping cough. Al–Bayati based his conclusions in part on fluctuation of Louie's weight and height measurements between doctor visits. Al–Bayati's conclusions relied in part on his belief that Louie's brain was not swollen when Louie was admitted to the hospital, a belief based on his misreading of Louie's CT scan report. During cross-examination, the prosecutor pointed out that Al–Bayati missed the fact that Louie had shown signs of brain swelling when admitted. Al–Bayati acknowledged the mistake, but he stood by his conclusion that Louie died as a result of an infection.

The State called Mitchell to the stand as a rebuttal witness. When asked what he disagreed with regarding Al–Bayati's conclusions, Mitchell stated, “It's actually hard to start because it was an incredible mix of fact and misinterpretation.” Mitchell described Al–Bayati's discussion regarding the fluctuation in Louie's height as “hogwash.” The district judge then interrupted Mitchell and instructed counsel to approach the bench; the judge told counsel that he was not going to allow Mitchell to “just tak[e] shots” at Al–Bayati. Mitchell's subsequent testimony focused on his disagreement with Al–Bayati's analysis.

Defense counsel did not object to the district judge's proposed jury instructions or request any lesser included offense instructions. The jury's child abuse instruction was modeled on PIK Crim. 3d 58.11 and required proof “1. That the defendant intentionally shook a child to-wit: Louie Rodriguez, which resulted in great bodily harm to said child; 2. That said child was under the age of 18 years.” Rodriguez' jury also was instructed that “[g]reat bodily harm means something more than slight, trivial, minor or moderate bodily harm and does not include mere bruises.”

During deliberations, the jury sent a question to the judge about whether it could arrive at a verdict on a lesser charge. The prosecutor suggested that the judge respond that “in this case there are no lesser offenses.” Defense counsel agreed, saying the instructions “should be all or nothing.” The district court then informed the jury that there were no lesser charges.

After the jury reached its guilty verdict, Rodriguez filed a motion for new trial. He argued that there was insufficient evidence to convict him and that Mitchell's rebuttal testimony expressed an improper opinion on the credibility of another witness. The district judge rejected the motion, characterizing the evidence in support of guilt as “substantial.” The judge agreed that Mitchell's reference to “hogwash” was inappropriate, but the judge did not believe the reference changed the outcome of the case.

Discussion

Lesser Included Offense Instructions

[1] Rodriguez' first claim of error focuses on the district judge's omission of jury instructions on reckless homicides, both second-degree murder and involuntary manslaughter.

Lesser included offense instructions are governed by K.S.A. 22–3414(3):

“In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (2) of K.S.A. 21–3107, and amendments thereto, the judge shall instruct the jury as to the crime charged and any such lesser included crime.” K.S.A. 22–3414(3).

[2] [3] [4] [5] In other words, lesser included offense instructions must be given when there is some evidence, emanating from whatever source and proffered by whichever party, that would reasonably justify a conviction of some lesser included crime. State v. Simmons, 295 Kan. 171, Syl. ¶ 3, 283 P.3d 212 (2012); see State v. Williams, 295 Kan. 506, 286 P.3d 195, 205 (2012) ( “[T]he giving of lesser included crime instructions is not a matter of discretion with the trial judge.”). “The court's duty to instruct on lesser included crimes is not foreclosed or excused just because the lesser included crime may be inconsistent with the defendant's theory of defense.” Simmons, 283 P.3d 212, Syl. ¶ 3. To determine whether a...