State v. Shaw

• Decision Date: 12 July 1996
• Docket Number: No. 73340,73340
• Citation: 260 Kan. 396,921 P.2d 779
• Parties: STATE of Kansas, Appellee, v. Donovan Leroy SHAW II, Appellant.
• Court: Kansas Supreme Court

Page 779

921 P.2d 779

260 Kan. 396

STATE of Kansas, Appellee, v. Donovan Leroy SHAW II, Appellant.

No. 73340.

Supreme Court of Kansas.

July 12, 1996.

Syllabus by the Court

1. Time, distance, and the causal relationship between the underlying felony and a killing are factors to be considered in determining whether the killing occurs in the commission of the underlying felony and the defendant is therefore subject to the felony-murder rule.

2. The victim must be taken as the defendant finds him. Death resulting from a heart attack will support a felony-murder conviction if there is a causal connection between the heart attack and the felonious conduct of the defendant.

3. The record is examined and it is held that the district court did not err in (1) admitting the opinion testimony of the pathologist, (2) denying the defendant's motion for change of venue due to pretrial publicity, and (3) holding the evidence was sufficient to support the defendant's conviction of first-degree murder under the felony-murder rule.

Thomas Jacquinot, Special Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

Julie A. McKenna, County Attorney, argued the cause, and Carla J. Stovall, Attorney General, was with her on the brief, for appellee.

ALLEGRUCCI, Justice:

Donovan Shaw appeals convictions of felony murder, aggravated robbery, aggravated burglary, conspiracy to commit aggravated burglary, and misdemeanor theft. He argues that (1) there was insufficient evidence that he caused the victim's death to sustain the conviction for felony murder; (2) the pathologist's opinion should not have been admitted into evidence; (3) the trial court erred in not granting Shaw's motion for change of venue due to pretrial publicity; and (4) the trial court erred in failing to give the instruction requested by Shaw on voluntary intoxication.

On Saturday, March 5, 1994, a neighbor found William Trembley's body. Trembley's hands and feet had been bound with duct tape, and his hands were secured to the foot of the bed with tape. His body, from about mid-chest down, was off the bed. There was duct tape over his mouth. When the emergency medical team arrived at approximately 7 p.m., Trembley's body was cold, and his upper extremities had become stiff. His telephone was dead; the wire had been cut outside the house. The screen was off a window on the south wall of the house, and it was determined that the house had been entered through that window. In the front room, the drawers of a chest of drawers "were pulled open as if someone had looked through them." In the kitchen, there were wrapped and loose coins scattered on the floor, and on the stove was a wooden chest about half filled with wrapped coins. The hasp on the chest had been pried off. In the bathroom, a piggy bank, coins, and coin wrappers were on the floor. A white box about the size of an army foot locker had been pried open, and there were coins and coin wrappers in it.

Dr. James Cooper, a pathologist, performed an autopsy on the body of William Trembley. He found numerous bruises and abrasions. He identified the cause of death as acute myocardial infarction, that is, recent death of the heart muscle. Dr. Cooper explained that heart cells die "[w]hen the demand of the heart for oxygen is not supplied by the blood supply to the heart." This imbalance between oxygen demand and supply may occur, he testified, "[w]hen there's preexisting narrowing and then demands [are] placed on the heart [so] that the amount of oxygen in the blood getting to the heart is not adequate." He added that the demands placed on the heart could be from physical exertion or an elevated adrenaline level.

Dr. Cooper found arteriosclerotic cardiovascular disease in Trembley, who was 86 years old at the time of death. In some areas it was mild; in other areas it was severe. Dr. Cooper testified that "[o]verall it would be classified as moderate." This condition is a narrowing of arteries, which decreases the supply of blood available to the heart. A small area of the back wall of the left ventricle of Trembley's heart showed scar tissue from a heart attack which had occurred at least 6 months earlier.

Trembley had been a patient of Dr. Cathcart-Rake, an internal medicine specialist in Salina, for approximately 14 years. He had last seen Trembley in January 1994. At that time, Trembley weighed 107 pounds. He had been a smoker in the past, he was being treated for high blood pressure, "which wasn't really much of a problem," and he had mild emphysema. Trembley had reported no symptoms of a heart condition to his doctor, nor was he being treated for any type of heart condition.

Based on his examination of the heart cells, Dr. Cooper testified that Trembley lived for at least 6 hours after the heart attack occurred. Trembley lived, at most, 48 hours after the heart attack occurred.

Dr. Cooper answered a number of questions about circumstances which tend to increase the likelihood that death will result from a heart attack. He testified that stress, fear, and physical exertion all would increase the chance of death because they would cause the heart to work harder. Dr. Cooper believed that Trembley's death occurred when his mouth was obstructed by duct tape, his stress level was increased, and he exerted himself physically when struggling against the duct tape with which he was bound.

We will first determine if Dr. Cooper's opinion testimony is admissible, since his testimony is the key to determining if the evidence was sufficient to support Shaw's conviction of felony murder. Shaw urges the court to review this issue de novo. He justifies his position by characterizing the evidentiary rules governing admissibility of expert witnesses' opinions as "legal boundaries." We decline to do so. The accepted standard was stated in State v. Lumbrera, 257 Kan. 144, Syl. p 4, 891 P.2d 1096 (1995): "The admissibility of expert testimony lies within the sound discretion of the trial court, and its determination will not be reversed on appeal absent a showing of an abuse of discretion."

Admission of expert testimony is governed by K.S.A. 60-456(b) and (d):

"(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.

.... "(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact."

Shaw concedes that the pathologist was testifying from within the scope of his special knowledge in stating that Trembley died of a heart attack and that heart attacks may be induced by stress or trauma. He objects, however, to the pathologist's expressing the opinion that Trembley's fatal heart attack was induced by stress or trauma. He refers to this testimony as "speculat[ion] about fact[s] that cannot be proven." It should be noted that Dr. Cooper actually named three factors that he believed had combined to cause Trembley's heart to malfunction. Dr. Cooper cited lack of oxygen, emotional trauma, and unusual physical exertion.

Dr. Cooper was asked to formulate his opinion on the basis of the information obtained from the autopsy, Trembley's age, his history of smoking and high blood pressure, and his emphysema and absence of complaints of chest pain, as well as the time and circumstances of death. He was asked to bring his education and experience to bear on the question. And he was directed to formulate his opinion with a reasonable degree of medical certainty. In these circumstances, Shaw's charge that the pathologist's opinion was "purely speculative" is unpersuasive. Nor has Shaw shown that the trial court judge abused his discretion. We conclude that Dr. Cooper's testimony was properly admitted into evidence.

We next consider if there was sufficient evidence to sustain Shaw's conviction of felony murder. Our standard of review is well established:

"If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt." State v. Richmond, 258 Kan. 449, Syl. p 1, 904 P.2d 974 (1995).

In the present case, Shaw challenges the sufficiency of the evidence that the presence or conduct of the burglars in Trembley's house caused his death. Shaw relies on State v. Hearron, 228 Kan. 693, 696, 619 P.2d 1157 (1980), for the familiar factors to be considered with respect to the causal relationship of the underlying felony and the killing:

"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. Whether the underlying felony had been abandoned or completed prior to the killing so as to remove it from the ambit of the felony-murder rule is ordinarily a question of fact for the jury to decide. When we apply the factors of time, distance, and causal relationship to the facts of this case, we have no hesitancy in holding that it was a factual issue for the jury to determine whether the killing of [the victim] occurred during the commission of the attempted burglary."

Hearron, it is said by Shaw, is a key Kansas case on the issue of causation in felony murder. He does not rely on Hearron as being factually comparable to the present case, and it is not.

Shaw relies on a New Mexico case as rejecting the ...