State v. Ross

Citation445 P.3d 726
Decision Date19 July 2019
Docket NumberNo. 117,850,117,850
Parties STATE of Kansas, Appellee, v. Michael ROSS, Appellant.
CourtUnited States State Supreme Court of Kansas

Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant, and Michael Ross, appellant, was on a supplemental brief pro se.

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

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

Michael Ross challenges his convictions for first-degree felony murder, second-degree murder, and felony abuse of a child. Finding any error to be harmless, we affirm.

FACTS

On the morning of November 9, 2015, A.S. left two of her children—17-month-old G.H. and 4-year-old S.T.—in the care of her boyfriend, Ross, while she traveled to the hospital to work her shift as a certified nursing assistant. At that time, G.H. was uninjured and was acting normally, although she did have a bruise on her right cheek. Other than Ross, there were no adults in the residence at this time. Not long after her shift at the hospital began, A.S. received a phone call from Ross, who told her that G.H. had fallen and was not responding.

A.S. left work promptly after receiving the call and returned home. When A.S. arrived at the residence, G.H. was lying down on a bed. She was breathing, but she was nonresponsive. G.H. had bruising on her face and a bump on her head that had not been present before A.S. left for work. While A.S. was on the phone with 911, G.H. began having seizures.

Paramedics responded to the scene a short while later, where they found G.H. nonresponsive. The paramedics observed various injuries, including a large hematoma

to G.H.'s forehead, a swollen upper lip, bite marks on different places of G.H.'s body, and various circular and semicircular bruises on her body that were in different stages of healing. When they moved G.H. to the ambulance, the paramedics assessed her under the Glasgow Coma Scale at a score of 4 out of a possible 15, with 15 indicating alertness. G.H.'s score decreased to a 3—the lowest possible score—during the ride to the hospital.

Eric Glendinning, M.D., provided emergency care for G.H. when she arrived at the hospital around 1:30 p.m. When she arrived, G.H. was put under anesthesia

and intubated. Glendinning noted bruising on G.H.'s face and a swollen lip, along with bruising on her abdomen. A CT scan

revealed a subdural hematoma and a liver laceration. Because these symptoms suggested child abuse, Glendinning consulted with a pediatric intensivist, Elizabeth Heflin, M.D. Heflin observed that G.H. had a subdural hemorrhage covering half of her brain and bilateral retinal hemorrhages in the back of her eyes, as well as several bruises across her body that were indicative of multiple impacts and what appeared to be a bite mark. Further analysis revealed that G.H.'s intracranial pressure was so high that she could not have been receiving adequate blood flow to her brain.

G.H. was declared brain dead on November 12, 2015. Following G.H.'s death, forensic pathologist Timothy Gorrill, M.D., performed an autopsy. Based on the constellation of injuries, Gorrill concluded that G.H.'s manner of death was homicide.

Wichita Police Department detectives interviewed Ross prior to G.H.'s death and subsequently took Ross into custody. Following G.H.'s death, Ross was eventually charged with premeditated first-degree murder and, in the alternative, felony murder, along with abuse of a child.

From the outset of the case to the date of trial, Ross offered a number of different explanations for G.H.'s injuries. Ross told the paramedics that G.H. had fallen from a standing position and that she had possibly fallen into a doorway. He told Wichita Police Department Detective Ryan Schomaker that he had not seen the accident but that S.T. told him G.H. had fallen. Ross later wrote A.S. a series of letters from jail that contained various descriptions of how G.H. became injured, including that G.H. fell while standing on a toilet; that she slipped on water on the bathroom floor; that she was pushed off a counter by S.T. and hit her head on a white iron chair; and that she was hit by a falling television. Ross also made multiple calls to his own mother featuring different accounts. Additionally, Ross' one-time jail cellmate Demarco Rippatoe came forward with what he alleged to be four different versions of the day's events, as relayed to him by Ross. Critically, in one of the versions Rippatoe recounted, Ross admitted to "slamm[ing]" an old, 1990s-model 32- to 34-inch television—the type "with the big back"—weighing between 65 and 70 pounds onto G.H.

At trial, Ross testified that G.H. fell off of the counter in the kitchen and hit her head on an iron chair shortly after A.S. left for work, after which G.H. "seemed fine." After this, Ross said that he lay down to sleep because he was exhausted from "coming down off crystal meth" after having been awake for "[l]ike two days and a half." Ross then claimed to have woken up after hearing S.T. and G.H. "play[ing] in the sink." Upon investigating, he found G.H. "between the tub and the toilet" and S.T. "[s]tanding on the toilet." He testified that G.H. fell again while walking to him "because there was a lot of water on the floor." Ross then went to sleep again, leaving G.H. to play with S.T. A little while later, S.T. woke Ross because "the TV's on top of [G.H.]." Again investigating, Ross found the television lying on top of G.H. "[f]rom her head to her abdomen." Ross claimed that G.H. was unconscious and was having a seizure but was also "rubbing her left side where her ribs" were located. At this point, Ross "panick[ed]" and "gave [G.H.] CPR."

Both of G.H.'s treating doctors testified at trial. Glendinning estimated that the injury that caused G.H.'s brain bleeding

must have occurred within a few hours before she arrived at the hospital and must have had an acute, rather than gradual, cause. As to G.H.'s lacerated liver, Glendinning opined that it would take "significant, significant force" to cause such an injury—force comparable to "car accidents at highway speeds." Glendinning further testified that a falling 65- to 70-pound television might have caused such a liver injury if it landed on G.H.'s abdomen. Heflin testified that the kind of hemorrhage G.H. suffered—a subdural hemorrhage—usually occurs "when the skull goes one way, the brain goes the other way and it rips them apart, rips those veins apart." Heflin said that with subdural hemorrhage, "you don't get a lucid interval" between injury and presentation of symptoms. Heflin opined that a falling television could not have caused subdural hemorrhages and retinal hemorrhages. Heflin testified that retinal hemorrhages "are usually caused by some kind of violent shaking event where the head is shaken and goes in multiple directions." Heflin opined that a child of S.T.'s size could not have been the source of G.H.'s injuries, nor could "[t]he routine bumps and bruises that most toddlers get as they run into" furniture or fall onto the floor. In Heflin's opinion, G.H.'s injuries were inflicted, rather than accidental in origin.

The State focused its case on the severity of G.H.'s injuries and the inconsistency of Ross' proffered explanations for those injuries. Among other things, the State presented the recorded jail calls between Ross and his mother. Rippatoe also testified regarding the various accounts Ross allegedly gave him of the events of November 9, 2015. Notably, during closing arguments, the State told the jury it "must find [Ross] guilty" if it did not believe his testimony.

Although Ross' counsel initially wanted no lesser included offense instructions, the district court sua sponte decided to give intentional second-degree murder as a lesser included offense to premeditated first-degree murder. As a result, Ross' counsel also sought an unintentional but reckless second-degree murder instruction. The district court rejected this request. In closing, Ross' trial counsel argued that Ross had simply been, at most, negligent and that G.H. had been caught in a "perfect storm" of accidental injuries that culminated in her death.

The jury convicted Ross of both felony murder and second-degree murder as a lesser included offense of premeditated murder, along with abuse of a child. The district court sentenced Ross to life in prison with no chance of parole for 25 years for the felony-murder conviction and 55 months in prison for the abuse of a child conviction, to run consecutive.

Ross filed a timely appeal.

ANALYSIS

Ross' counsel raises four issues for this court's consideration. Ross has raised an additional two issues in a pro se brief. We find that none of these issues warrant reversal of Ross' convictions.

Prosecutorial Error

Ross first claims that the State committed prosecutorial error when, during its rebuttal closing argument, one of the prosecutors stated:

"Did you really believe the defendant's testimony? Ask yourself, is an unconscious baby going to be able to hold her ribs? What did you believe of his testimony? Because if you didn't believe it, you must find him guilty ." (Emphasis added.)

Ross argues this was prosecutorial error that prejudiced his right to a fair trial because this statement was legally incorrect and shifted the burden to Ross to prove his own innocence.

This court reviews a claim of prosecutorial error under a two-step analysis:

"[T]he appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating
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