State v. Wells

• Court: Kansas Supreme Court
• Writing for the Court: The opinion of the court was delivered by BEIER
• Citation: State v. Wells, 297 Kan. 741, 305 P.3d 568 (Kan. 2013)
• Decision Date: 28 June 2013
• Docket Number: No. 104,092.,104,092.
• Parties: STATE of Kansas, Appellee, v. Melissa WELLS, Appellant.

297 Kan. 741

305 P.3d 568

STATE of Kansas, Appellee,

v.Melissa WELLS, Appellant.

No. 104,092.

Supreme Court of Kansas.

June 28, 2013.

Syllabus by the Court

1. A witness' testimony about observations of a child abuse victim's physical condition in weeks leading up to her death and about the witness' efforts to follow up on these observations was not K.S.A. 60–455 evidence and was not required to be accompanied by a limiting instruction. The witness did not testify about any specific instances of abuse by the criminal defendant.

2. A claim of prosecutorial misconduct based on comments made during voir dire, opening statements, or closing argument will be reviewed on appeal absent a contemporaneous trial objection.

3. A prosecutor's inquiry about a defense expert's compensation and request that the jury consider that compensation in evaluating the expert's testimony was not misconduct. Asking the jury whether there were “at least $3,500 worth of reasons” for the expert's opinion came dangerously close to the error line but did not cross it, when the context of the comments and the record as a whole are considered.

4. The Sixth Amendment to the United States Constitution guarantees an indigent criminal defendant the right to the assistance of counsel in his or her criminal defense. However, such a defendant cannot compel the district court to appoint counsel of defendant's choice. To warrant substitute counsel, a defendant must show “justifiable dissatisfaction” with his or her appointed counsel by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant.

5. The district court did not err in denying the defendant's request for new counsel, when the court inquired into the defendant's reasons for the request and the defendant's response did not warrant further inquiry or suggest a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication.

[297 Kan. 742]6. The three phrases in the felony-murder statute—“in the commission of, attempt to commit, or flight from”—are simply factual circumstances in which a material element may be proved; they do not create alternative means.

7. The district court did not err in excluding letters written by the defendant, when they were cumulative to evidence already before the jury, constituted impermissible comment on the credibility of witnesses, and/or had no bearing on the issues at trial.

8. Because the legislature's 2012 amendment to K.S.A. 21–5109 regarding lesser included crimes was not merely procedural or remedial but substantive, it is not to be applied retroactively to a case pending on appeal at the time of the amendment.

9. A defendant is not entitled to instructions on lesser, reckless degrees of homicide when all of the evidence before the jury demonstrates intentional conduct.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause and was on the briefs for appellee.

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

This is defendant Melissa Wells' direct appeal from jury convictions of felony murder and child abuse, stemming from the death of 23–month–old B.C. Wells was sentenced to consecutive terms of life and 55 months' incarceration with lifetime postrelease supervision. She claims several errors entitle her to reversal on appeal, including failure to give a limiting instruction; prosecutorial misconduct; denial of her request for substitute counsel; multiplicitous convictions; exclusion of letters she wrote after her arrest; and failure to give lesser included offense instructions. She also claims error in the sentencing judge's nunc pro tunc order setting out postrelease supervision rather than parole. We affirm Wells' convictions and vacate the postrelease portion of her sentence.

Factual and Procedural Background

Victim 23–month–old B.C. died on January 20, 2008, after spending 3 days in the hospital. Wells, B.C.'s father's girlfriend, had been caring for B.C. at the time she entered the hospital.

Before Wells' trial, the State moved to admit what it classified as K.S.A. 60–455 evidence. That evidence included testimony of Larry Crosetto, B.C.'s maternal grandfather, about changes in B.C.'s behavior and bruises and marks he observed on B.C. after she had gone to live with B.C.'s father and Wells. The district judge ruled that the evidence from Crosetto was admissible.

Crosetto's Testimony

Crosetto testified that his daughter, Angela, had been married to Randy Coons and had two children with him, B.C. and C.C. When Angela and Coons became estranged and planned to divorce, Crosetto and his wife, Mary, took care of the children at their home in Coffeyville while Angela attended college in Pittsburg. After Angela graduated and went to work in Wichita, the children moved in with her. But Angela became ill and died a few months later. The children then moved back to Coffeyville and lived with Crosetto and his wife until Coons “came and took them away” in late August 2007. The Crosettos continued to keep the children with them on weekends.

Crosetto said that B.C.'s behavior changed during this period after she moved to her father's house. She became “totally fearful of going back” there and would cling to Crosetto and his wife when they tried to drop her off. B.C. also had unexplained injuries, Crosetto said, and he took notes about them and took photographs of them. The photos were shown to Wells' jury. Crosetto said that he had wanted to keep a record of the injuries to support a possible child in need of care case.

Looking back over his notes, Crosetto testified specifically that, on September 6, 2007—a day before he was to pick the children up—Coons called to alert him that B.C. had fallen. According to Coons, he did not want Crosetto to be surprised when he saw B.C. was bruised, particularly around her face.

In anticipation of the following weekend's visit, Coons again called Crosetto to alert him that B.C. had fallen and had to have stitches. When Crosetto picked B.C. up for that weekend visit, he observed stitches in her lip.

From early September through December, Crosetto documented bruising across B.C.'s ribs, on her back, on her shoulder, and recurring bruising above each buttock. He documented bruising to her cheeks, eyelids, forehead, and legs. He documented damage to her chin; marks that he later learned were flea bites; and, on one occasion, two black eyes. He testified that Coons' two calls in September were the only times that explanations were offered for B.C.'s injuries.

Crosetto told Coons and Wells that he was going to make a report to the Kansas Department of Social and Rehabilitation Services, now the Department of Children and Families. And he did in fact make two calls to SRS and met with an SRS representative about getting the children out of their father's home. On advice from the Crosettos' family physician, Dr. Allen Gillis, who had observed B.C.'s injuries and believed she might be a victim of abuse, Crosetto also took B.C., without her father's knowledge, to be examined by Dr. Chan Han on Christmas Eve. Han made a police report. On January 6, 2008, Crosetto dropped B.C. off at her father's; that was the last day he saw B.C. alive.

Crosetto also testified that Coons had agreed that the Crosettos should become conservators for the children to preserve Angela's life insurance proceeds. The conservatorship was finalized at the end of October 2007, at which time Crosetto learned that the Social Security Administration had been paying “survivor benefits” to Coons. Beginning in January 2008, these benefits—totaling $518 per month—were no longer going to be paid to Coons but were going to be paid to the Crosettos as conservators.

On cross-examination, defense counsel suggested that Crosetto had never approved of Coons, and that the “fight over the children” was between Crosetto and Coons rather than Wells. Crosetto said that he suspected abuse in the house; that Wells was the primary caregiver; that he had reported the abuse and nothing happened; and that B.C. was now dead. He testified that “it had become obvious that [Wells] was making the decisions on how the kids were handled, how and when we saw them, and I guess that she was deciding what punishment was to be given when the children misbehaved.”

Medical and Law Enforcement Testimony

The State's other trial evidence came mainly from law enforcement and medical personnel. Gillis and Han both testified about their observations of B.C. before January 17, 2008, and their concerns that abuse was occurring. Han testified that the facial bruising he observed at the December 24 examination was “non-accidental injury.”

Other testimony established that, midmorning on January 17, 2008, a hysterical Wells called Coffey County 911 to report a child who was not breathing. Officer Mike Bradley arrived on the scene within a minute to find Wells on the front porch holding B.C. Bradley checked for B.C.'s pulse, detected it, cleared her airway, and was beginning cardio pulmonary resuscitation as emergency medical personnel arrived. After taking steps to stabilize B.C., the emergency personnel transported B.C. to the Coffeyville Regional Medical Center.

Officer Steven Gilfillan testified that, when he arrived at the house, Wells told him that K.W., her 2–year–old daughter, had jumped on B.C.'s stomach, causing B.C. to vomit. Then B.C. began to “flop around on the floor like she was having a seizure” and hit her head.

Emergency medical personnel testified that they were told that B.C. had fallen from a high chair and hit her head.

Dr. James Christensen treated B.C. when she came in to the Coffeyville emergency room. Christensen observed multiple bruises on B.C.'s head and face and noted that her pupils were dilated, indicating head trauma. A CT scan...