Opinion
No. 105,297.
2012-07-27
STATE of Kansas, Appellee, v. Michelle M. BOLZE–SANN, Appellant.
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., MARQUARDT and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Michelle M. Bolze–Sann appeals her convictions of one count of involuntary manslaughter and one count of aggravated endangering a child. Bolze–Sann was convicted by a jury after evidence was presented at trial that a 5–month–old child, Zachary Typer, died while in Bolze–Sann's care. It is undisputed that Bolze–Sann placed Zachary on a bed for a nap instead of in a crib or playpen and that Zachary was pinned between the bed's mattress and footboard. It was subsequently determined that Zachary died as a result of respiratory failure, secondary to positional asphyxia. Although Bolze–Sann raises several issues on appeal, we find none of them to require reversal of the jury's verdict. Thus, we affirm Bolze–Sann's convictions.
Facts
Bolze–Sann was a licensed daycare provider who operated a daycare in her home. Zachary, who was born on January 4, 2007, began attending daycare at Bolze–Sann's residence on February 19, 2007. According to Zachary's parents, they discussed their son's increasing mobility with Bolze–Sann and told her not to put him on a bed for naps.
Unfortunately, on the morning of July 2, 2007, Bolze–Sann placed Zachary on a bed in her 15–year–old daughter Ashley's bedroom for a nap because one of her cribs was broken and the other one was occupied. When she placed him on the bed, Bolze–Sann put a ring of pillows and blankets around Zachary. Around 12:30 p.m., Bolze–Sann checked on Zachary and he was still asleep on the bed. Although he had moved a little, Zachary was still lying within the pillows and blankets at that time.
At some point after Bolze–Sann checked on Zachary, Ashley arrived home and heard him crying. Her mother told her not to go get Zachary because she had just laid him down for a nap. Later, Bolze–Sann's 5–year–old daughter, Sierra, told Ashley that Zachary was sleeping in the crib in Sierra's room. So Ashley took her 9–month–old infant cousin into her bedroom and lay down with her on her bed for a nap.
Ashley and her infant cousin slept for about an hour before Bolze–Sann came into the bedroom and asked where Zachary was. Ashley told her mother that Zachary was in the crib in Sierra's room. When Bolze–Sann went to look in the crib, however, Zachary was not there. Bolze–Sann then returned to Ashley's bedroom and found Zachary wedged between the mattress and the footboard.
Dispatch records show that 911 was called at 2:29 p.m. and that a police officer arrived at Bolze–Sann's home about 3 minutes later. When the police officer arrived, he saw Bolze–Sann giving CPR to Zachary in her living room. Shortly thereafter, the fire department and an ambulance arrived at the house.
A paramedic carried Zachary to the ambulance and hooked him up to a monitor, while continuing CPR. In the ambulance, the paramedic briefly stopped CPR to determine whether Zachary had any cardiac arrhythmia. Unfortunately, the monitor showed no cardiac activity and the resuscitation efforts were ceased. Zachary was pronounced dead at 2:43 p.m.
Shawnee County Deputy Coroner Dr. Altaf Hossain performed an autopsy and determined that Zachary had died of “respiratory failure secondary to positional asphyxia.” Dr. Hossain explained that “if the respiratory passages are blocked, the baby cannot take respiration because of the position. The position of the baby is compromised. In other words, compressed or wedged between the two objects, that is called positional asphyxia.” Moreover, Dr. Hossain determined the manner of death to be accidental.
Bolze–Sann was charged with one count of involuntary manslaughter and one count of aggravated endangering a child. The district court held a 5–day jury trial during which 11 witnesses testified for the State, including Zachary's parents and Dr. Hossain. Bolze–Sann called three witnesses to testified on her behalf. The defense witnesses included Michelle M. Good, who also sent her children to Bolze–Sann's house for daycare. After deliberating for approximately 4 hours, the jury returned a verdict of guilty on both charges.
On January 9, 2009, Bolze–Sann was sentenced to 32 months' imprisonment. At that time, restitution was left open for 30 days. Bolze–Sann filed a notice of appeal on January 22, 2009. Although 10 days had not passed since the sentencing, she also filed a motion to file notice of appeal out-of-time. On January 26, 2009, the State filed a motion for hearing on restitution, and on February 25, 2009, Bolze–Sann filed another notice of appeal.
On August 18, 2009, the State filed a motion to withdraw its request for a hearing on restitution, stating that the parties agreed—at the request of Zachary's family—that there would be no restitution sought from Bolze–Sann. On September 10, 2009, the district court sustained the motion.
Was The Evidence Sufficient To Support Bolze–Sann's Convictions?
Bolze–Sann contends that her convictions should be reversed because there was insufficient evidence presented at trial to support them. Specifically, Bolze–Sann argues that the State failed to prove she acted recklessly, which was an element of both involuntary manslaughter and aggravated endangering of a child. When a defendant challenges the sufficiency of the evidence to support a criminal conviction, we must review all of the evidence, viewed in the light most favorable to the prosecution, to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. See State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
In determining whether there is sufficient evidence to support a conviction, we do not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. See State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983). There is no requirement that a criminal defendant challenge the sufficiency of the evidence before the trial court to preserve the issue for appeal. State v. Farmer, 285 Kan. 541, 545, 175 P.3d 221 (2008).
Both charges against Bolze–Sann required that the jury find she acted recklessly. For the involuntary manslaughter charge, the jury was instructed that it must find that Bolze–Sann killed Zachary (a) recklessly or (b) while in the commission of aggravated endangering of a child. See K.S.A. 21–3404. And for aggravated endangering of a child, the jury was required to find that Bolze–Sann recklessly caused Zachary to be placed in a situation where his life, body, or health was injured or endangered. See K.S.A. 21–3608a.
The jury was further instructed that “[r]eckless conduct means conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” See K.S.A. 21–3201(c). Recklessness requires a higher showing of mental culpability than negligence. See State v. Remmers, 278 Kan. 598, 601–02, 102 P.3d 433 (2004).
Specifically, Bolze–Sann argues that there was no evidence that she had a realization of imminent danger to Zachary. But the record is replete with evidence that Bolze–Sann knew she should not place such a young child on a bed for a nap. In fact, Zachary's father testified that he had discussions with Bolze–Sann regarding Zachary's mobility and had told her several times not to put Zachary on a bed.
There was evidence presented at trial that Bolze–Sann knew that Zachary had become increasingly mobile. There was also evidence presented that Zachary had been able to roll over since he was 3 months old and that he had been able to “scooch” across the floor for a month prior to his death. Moreover, there was evidence presented that Zachary crawled for the first time the day before he died and that he was able to sit up.
Zachary's mother also testified that she had specifically told Bolze–Sann not to put Zachary on a bed because of his increased mobility. According to Zachary's mother, Bolze–Sann assured her that she was not laying Zachary on a bed for naps. Furthermore, Zachary's parents testified that they were never told that Bolze–Sann had a broken crib or playpen.
In addition, a reasonable jury could infer that Bolze–Sann placed Zachary in a ring of blankets and pillows when she placed him on the bed because she realized the potential for danger. The fact that she may have previously placed infants on a bed to nap multiple times “without incident” does not negate her recklessness or excuse her actions on this occasion. See State v. Knight, No. 105,092, 2012 WL 2325849, at *5 (Kan.App.2012) (unpublished opinion) (finding that harm to child by leaving her unsupervised for several hours at a public beach was imminent in the sense that drowning or abduction would have occurred quickly with horrific consequences”).
Likewise, there was evidence that Bolze–Sann knew about K.A.R. 28–4–116(b)(2)(A), which required that children under the age of 18 months be placed in a crib or playpen for naps. Specifically, a child care licensing surveyor for the Shawnee County Health Agency testified at trial that Bolze–Sann was given a copy of the regulations pertaining to licensed child care facilities, including K.A.R. 28–4–116. The surveyor testified that at the time of the health agency's last survey of the daycare—which was conducted on February 20, 2007—Bolze–Sann had two playpens. Furthermore, the surveyor testified that when asked whether she understood that children under 18 months must sleep in a crib or playpen, Bolze–Sann answered “yes.”
Bolze–Sann argues that K.A.R. 28–4–116 was enacted “to prevent children from rolling off of beds and being trampled” and that she was aware of this danger, which was why she placed Zachary within a ring of blankets and pillows. To support her contention, Bolze–Sann relies on State v. Stahlhut, No. 73,866, unpublished opinion filed November 22, 1996 (Kan.App.). As an unpublished opinion, the holding in Stahlhut does not serve as precedent nor is it favored for citation. Although an unpublished opinion can be relied on if it has persuasive value concerning a material issue not addressed in a published opinion and if it assists the court in deciding the case, it is not binding on this panel. See Supreme Court Rule 7.04(f)(2) (2011 Kan. Ct. R. Annot. 57).
Regardless of why K.A.R. 28–4–116 was enacted, it clearly states that infants should not be allowed to sleep or nap on a bed. As such, even if Bolze–Sann did not know the intent of the regulation, she did know that infants of Zachary's age should be placed in a crib or playpen for a nap. At the very least, the regulation goes to the knowledge of imminent danger that Bolze–Sann possessed when she placed Zachary on a bed for a nap on July 2, 2007. See State v. Gatlin, 292 Kan. 372, 377, 253 P.3d 357 (2011) (In order for a defendant's conduct to be reckless, the defendant “must know that he or she is putting others in imminent danger ... but need not foresee the particular injury that results from his or her conduct. [Citations omitted.]”).
Accordingly, based on our review of the record in the light most favorable to the State, we conclude that there was sufficient evidence presented at trial upon which a reasonable factfinder could conclude that Bolze–Sann acted recklessly when she put Zachary down for a nap on a bed instead of in a crib or a playpen.
Did The District Court Err In Denying Bolze–Sann's Pretrial Motion to Dismiss?
Bolze–Sann also contends that the district court erred in denying her pretrial motion to dismiss. Although Bolze–Sann was arraigned on May 9, 2008, she did not file her motion to dismiss until August 20, 2008. In her motion to dismiss, Bolze–Sann argued that she could not be found guilty of either involuntary manslaughter or aggravated endangerment of a child because there was not sufficient evidence of her acting recklessly.
In response, the State argued that the motion to dismiss was untimely under K.S.A. 22–3208(4), which states that a motion to dismiss “shall be made at any time prior to arraignment or within 20 days after the plea is entered.” Here, the motion to dismiss was not filed until more than 90 days following the entry of Bolze–Sann's plea. Accordingly, we find that the filing of the motion to dismiss was untimely. Further, as to the merits of the motion to dismiss, we again note that there was sufficient evidence presented at trial upon which a reasonable factfinder could—and did—find Bolze–Sann guilty beyond a reasonable doubt of involuntary manslaughter and aggravated endangering a child. Thus, we conclude that the district court did not err in denying the motion to dismiss.
Were Bolze–Sann's Constitutional Or Statutory Rights Violated When The District Court Answered The Jury's Question During Deliberations?
Next, Bolze–Sann argues that the district court erred in responding to a question presented by the jury during deliberations. Specifically, she argues that her constitutional and statutory right to be present at every critical stage of her trial was violated; that her constitutional right to a public trial was violated; and that her right not to have a critical stage of the trial occur outside the presence of the district judge was violated.
“A claim that a defendant was deprived of his [or her] statutory and constitutional right to be present during a portion of his [or her] trial raises legal questions that are subject to unlimited review on appeal. [Citation omitted.]” State v. Martinez, 288 Kan. 443, 449, 204 P.3d 601 (2009).
A review of the trial transcript shows that the jury sent the judge a written question during deliberations. The district judge informed counsel on the record that “[w]e have a question on count 1, part one: ‘Is there any other alternate definition meaning to the verb, killed? Signed presiding Juror D.C [ ].’ “ After receiving input from the prosecutor and defense counsel, the district judge agreed that it would send a written response to the jury that stated: “There's nothing additional for the Court to add. Please refer to instructions already given.' “
Unfortunately, the trial transcript does not state whether Bolze–Sann was present when the district judge discussed the jury's question and her proposed response with the attorneys. Interestingly, Bolze–Sann never states in her brief that she was not present. Nevertheless, for the purposes of this opinion, we will assume that Bolze–Sann was not present when the district judge and counsel discussed this matter.
K.S.A. 22–3420(3) states:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.” (Emphasis added.)
In addition, the Sixth Amendment's Confrontation Clause and the Fourteenth Amendment's Due Process Clause require that a defendant be present at every critical stage of trial. See K.S.A. 22–3405. As K.S.A. 22–3420(3) states, information on a point of law given in response to a jury's question must be answered in open court in the defendant's presence, unless the defendant's absence is voluntarily. See State v. Bell, 266 Kan. 896, 919–20, 975 P.2d 239,cert. denied528 U.S. 905 (1999).
Here, the record reflects that the district judge did not give any additional information on a point of law to the jury. Rather, after seeking the input of the prosecutor and defense counsel, she simply referred the jury back to the “instructions already given.” Moreover, a review of the transcript reveals that the defendant was present when the jury was originally instructed. Thus, we do not find that the district judge committed error by simply referring the jury back to information on the point of law previously given in open court.
As well, the Kansas Supreme Court has applied a harmless error test in cases where the defendant alleges the district judge violated K.S.A. 22–3405. See Bell, 266 Kan. at 919–20. An error is harmless unless it affected a party's substantial rights. K.S.A. 60–261. An error affects a party's substantial rights if it affected the outcome of the trial. State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). When a party has alleged a constitutional error, the court must find beyond a reasonable doubt that the error had no impact on the trial's outcome. In other words, there must be no reasonable possibility that the error contributed to the verdict. 292 Kan. at 568–69.
In the present case, even if the district judge had violated K.S.A. 22–3405, the error would be harmless under the unique circumstances presented. The district judge's response to the jury's question did not misstate the law. In fact, it did not state the law at all or provide any additional information. Rather, the answer merely referred the jury back to information on the point of law that the jurors had already received when the instructions where read in open court in the presence of Bolze–Sann. We, therefore, conclude beyond a reasonable doubt that the alleged error had no impact on the trial's outcome.
Bolze–Sann also argues that providing a jury with a written response to a question constitutes a structural error because it denies a defendant both the right to an impartial judge during a critical stage of the trial and the right to a public trial. Bolze–Sann compares her case to State v. Brown, 362 N.J.Super. 180, 827 A.2d 346 (2003). In Brown, the Superior Court of New Jersey, Appellate Division, held that the read-back of testimony is a “critical stage of the criminal proceedings”; that a defendant had the right to be present; and that the read-back had to be conducted in open court, on the record, and under the supervision of the presiding judge. 362 N.J.Super. at 182, 188–89. The Brown court found that the read-back was a critical stage of the proceedings because “[i]t is furnishing [jurors] with information they need to decide the case.” 362 N.J.Super. at 188–89.
The facts of the present case, however, are significantly different from the Brown case. Certainly, unless a defendant waives his or her right to be present, it would be inappropriate to conduct a read-back of testimony outside the presence of a defendant. See K.S.A. 22–3420(3). But this is not what happened in this case. Here, the issue presented does not involve the read-back of testimony nor does it involve giving a jury additional information as to a point of law.
Bolze–Sann's argument is similar to the argument made by the appellant in State v. Womelsdorf, 47 Kan.App.2d 307, 274 P.3d 662 (2012). In Womelsdorf, the district judge also responded to a jury question in writing, rather than by calling the jury into the courtroom to communicate the answer. The jury had requested a written transcript of an interview mentioned during trial and a copy of a diagram. Both counsel acknowledged that the transcript did not exist and the diagram was not admitted into evidence, so the district judge sent the jury a written response that stated: “ ‘A transcript of the Womelsdorf interview and a diagram of the home [are] not available. You must consider only the evidence admitted during the trial.’ “ 47 Kan.App.2d at 319.
The Womelsdorf panel found the facts of Brown to be distinguishable, stating:
“The Brown court determined that the readback was a critical stage of the proceeding because it furnished the jurors with information they needed to decide the case. Here, the written answer to the jury denied it additional information it was seeking and reminded the jury to consider only the evidence admitted during trial. As the State points out, there is a distinct difference between the lengthy process of a readback, which also necessarily involves the court reporter, and the process of delivering a short written answer to a jury question which does not provide additional information. Under the facts of this case, we conclude that the district court's procedure in responding to the jury question in writing did not violate Womelsdorf's constitutional right to an impartial judge.” 47 Kan.App.2d at 324.
The Womelsdorf court also analyzed whether a district judge's written response to a jury question violated the defendant's right to a public trial guaranteed by the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights and found:
“As stated above, the judge read the jury questions on the record, in the courtroom, and the judge and both counsel discussed how to respond to the questions. Womelsdorf does not contend that she was not present in the courtroom for that discussion or that the courtroom was not open to the public when the discussion took place. Nothing about the district court's written response to the jury question, which is now available to the public as part of the court file, was hidden from public view. Obviously, the public was not present when the bailiff delivered the written response to the jury room, but jury deliberations are never open to the public. Under the facts of this case, we conclude that the district court's procedure in responding to the jury question in writing did not violate Womelsdorf's constitutional right to a public trial.” 47 Kan.App.2d at 325.
We find the analysis in Womelsdorf to be persuasive. Accordingly, we find that the procedure used by the district judge in the present case—responding to the jury's question in writing—did not violate Bolze–Sann's constitutional rights to an impartial judge or a public trial because the response simply referred the jury to the instructions previously given by the judge in open court in the presence of the defendant. Likewise, the response to the jury's question was also discussed in an open courtroom and the transcript is available to the public.
We, therefore, conclude that under the unique circumstances presented in this case, the district judge did not err in responding to the jury's question. Furthermore, we conclude that even if the district court erred, the error was harmless.
Was Bolze–Sann's Right To A Unanimous Verdict Violated Because there was Insufficient Evidence To Support Each Alternative Means Of Committing Involuntary Manslaughter?
Bolze–Sann also contends that her right to a unanimous verdict was violated because the jury was instructed that it could find her guilty based on alternative means of committing involuntary manslaughter and there was insufficient evidence to support each alternative means. Bolze–Sann points out that the jury was instructed that it could find her guilty of involuntary manslaughter if it found Zachary's death was the result of recklessness or was committed during the commission of aggravated endangering of a child. Once again, she argues that there was insufficient evidence of recklessness.
The Kansas Supreme Court has held that a defendant's right to a unanimous verdict is not undermined if the State presented sufficient evidence at trial to support each alternative means for committing a crime. See State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010); State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994). As we have previously found, there was sufficient evidence upon which a reasonable person could conclude that Bolze–Sann was reckless. Likewise, we find sufficient evidence to support the jury's finding that Bolze–Sann was guilty of aggravated endangering of a child. Therefore, because there was evidence of both alternatives, we conclude that Bolze–Sann's right to a unanimous verdict was not violated.
Was It Clearly Erroneous For The District Court Not To Instruct The Jury On The Meaning Of Imminence?
In addition, Bolze–Sann argues that a definition of the word “imminence” should have been given in the jury instructions. Because Bolze–Sann did not request an instruction defining imminence at trial, we apply a clearly erroneous standard of review. See K.S.A. 22–3414(3); Martinez, 288 Kan. at 451. “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” Martinez, 288 Kan. at 451–52.
Here, the jury was appropriately instructed that “[r]eckless conduct means conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” The Kansas Supreme Court has held that in order to be imminent, “[t]he danger must be near at hand.” State v. White, 284 Kan. 333, Syl. ¶ 9, 161 P.3d 208 (2007). Bolze–Sann contends that if the jury had been given an instruction with this definition, it would have returned a different verdict because there was evidence presented at trial showing that she had put infants on a bed to nap multiple times without incident. Hence, she argues that the jury could not have determined that the danger was near at hand.
Bolze–Sann cites a number of cases that have pointed out the difference between the words “imminent” and “immediate.” See White, 284 Kan. at 350–57;State v. Hernandez, 253 Kan. 705, 711–13, 861 P.2d 814 (1993); State v. Irons, 250 Kan. 302, 307–09, 827 P.2d 722 (1992); State v. Osbey, 238 Kan. 280, 283–84, 710 P.2d 676 (1985). But none of these cases held that a jury must be instructed on what the difference is between immediate and imminent.
If a word is widely used or easily comprehended by individuals of common intelligence, it does not require a defining instruction. See State v. Roberts–Reid, 238 Kan. 788, 789, 714 P.2d 971 (1986). Additional terms need to be defined only when the instructions, as a whole, mislead the jury or cause jurors to speculate. See State v. Phelps, 28 Kan.App.2d 690, 695, 20 P.3d 731,rev. denied 271 Kan. 1041 (2001). Hence, we conclude that the district court's failure to include a definition of the word “imminence” in the jury instructions was not clearly erroneous because the instructions—when viewed as a whole—did not mislead the jury or cause the jurors to speculate.
Did The District Court Err In Refusing To Give Bolze–Sann's Requested Jury Instruction?
Bolze–Sann further argues the district court erred in refusing to give a jury instruction she requested. When the district court refuses to give an instruction requested by the defendant, we must review the evidence in the light most favorable to the defendant. See State v. Ransom, 288 Kan. 697, 713, 207 P.3d 208 (2009).
Bolze–Sann requested that the jury be instructed as follows:
“You are farther instructed that K.A.R. 28–4–116(b) is not intended to protect infants from suffocation and should not be considered by you in determining whether or not the defendant should have considered that the placing of the child in this manner down for a nap outside of a crib was a foreseeable danger and then taken steps to prevent or address that danger.”
It appears that Bolze–Sann's requested this instruction in response to Jury Instruction No. 5, which stated:
“During trial you heard testimony regarding Kansas Administrative Regulation 28–4–116, which provides:
“(b) ‘Napping and sleeping.
[....]
“['](2) Napping facilities or sleeping facilities for evening and overnight care shall be provided as follows:
(A) A crib or playpen with slats not more than 2–3/8 inches apart or equipped with bumpers shall be used for each child under 18 months.'
“This regulation applies to licensed daycare providers and exists to promote the safety of young children. It governs napping during the day, and sleeping during the evening and overnight hours. Accordingly, the regulation applied to Ms, Bolze–Sann when she put Zachary Typer down for a nap during the daylight hours of July 2, 2007.”
Bolze–Sann's objection to Instruction 5 was overruled. So she requested her own instruction regarding K.A.R. 28–4–116(b), which was based on the unpublished opinion from a panel of this court in State v. Stahlhut, No. 73,866, unpublished opinion filed November 22, 1996 (Kan.App.). On appeal, Bolze–Sann argues that her requested instruction was necessary to fully present the jury with the holding from Stahlhut. But, as discussed above, the Stahlhut decision does not serve as precedent and its holding appears to be fact specific. In Stahlhut, there was testimony that there were three possible ways in which the infant may have suffocated—two of which could have occurred in either a crib or a waterbed.
Here, it was undisputed that Zachary died from “respiratory failure secondary to positional asphyxia” after being pinned between the mattress and the footboard of a bed. Although Dr. Hossain testified that it is possible for children to die of positional asphyxia in a crib as well as on a bed, there was no testimony suggesting that Zachary would have died had he been placed in a crib or playpen for a nap. Even if the instruction was a valid statement of the law, viewing the evidence in the light most favorable to Bolze–Sann, the evidence was insufficient to support the requested instruction. See State v. Kidd, 293 Kan. 591, 595–96, 265 P.3d 1165 (2011). Accordingly, we conclude that the district court did not err in denying the jury instruction requested by Bolze–Sann.
Did The District Court Abuse Its Discretion In Denying Bolze–Sann's Motion For A Mistrial Based On Witness Intimidation?
Bolze–Sann asserts the district court abused its discretion in denying her motion for mistrial. We review a district court's decision denying a motion for mistrial under an abuse of discretion standard. Judicial discretion is abused if the judicial decision is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Ward, 292 Kan. at 550.
Bolze–Sann moved for a mistrial after a defense witness, Michelle Good, was allegedly threatened and intimidated by Zachary's father when she came to the courthouse to testify at trial. In response, the district judge called Good into the courtroom to testify regarding the incident outside the presence of the jury. Good testified that she was outside the courtroom when a man approached her and asked her if she was there for the Bolze–Sann trial. When she told him that she was, the man said, “ ‘You're here for that fucking bitch who killed my son. How dare you.’ “
Good then realized that the man was Zachary's father. She did not respond and sat down on a bench in the hallway. According to Good, Zachary's father “continued to hover right around the courtroom door outside where [she] was sitting and [she] didn't make eye contact with him [and] didn't say anything to him.”
Good testified that Zachary's father “was very angry, he was very red, and I immediately was afraid. I thought, oh, boy.” But Good also testified that she was never in fear that he might harm her physically. Instead, he kept watching her, which made her feel uncomfortable and even more nervous than she already was.
After hearing Good's testimony, the district judge offered to provide an escort for her while she was in the courthouse to make sure she was protected. The judge also asked Good whether she would feel comfortable if she had an escort. Good answered, “Yes.” Good also stated that she would feel comfortable testifying truthfully at trial if Zachary's father was not present in the courtroom when she testified.
The district judge determined that granting a mistrial was not the appropriate remedy under the circumstances presented. Rather, the judge took action to make sure that Good was protected while she was in the courthouse. The judge also spoke to Zachary's father and admonished him that intimidation of a witness would not be tolerated. Moreover, the judge ordered that Zachary's father not be present in the courtroom during Good's testimony.
On appeal, Bolze–Sann argues that Zachary's father's actions were sufficiently disruptive to deprive her of a fair trial. K.S.A. 22–3423(l)(c) states that a district judge may end a trial and order a mistrial at any time if it is determined that termination is necessary because “[p]rejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.”
We find that the district judge appropriately handled a difficult situation with diligence. Likewise, we do not find the decision not to grant a mistrial was arbitrary, fanciful, or unreasonable. We also note that Bolze–Sann does not argue that Good's testimony in front of the jury was actually affected by the actions of Zachary's father. We, therefore, conclude that the district judge did not abuse her discretion in denying Bolze–Sann's motion for mistrial.
Did The District Court Err In Accepting The Jury's Verdict Without Inquiring Into The Accuracy Of The Verdict?
Finally, Bolze–Sann contends that the district court erred in accepting the jury's verdict without inquiring into the accuracy of the verdict. Resolution of this issue requires us to interpret K.S.A. 22–3421, and interpretation of a statute is a question of law over which we have unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). Moreover, appellate courts exercise de novo review over issues of jury unanimity. See State v. Dayhuff, 37 Kan.App.2d 779, 784, 158 P.3d 330 (2007).
K.S.A. 22–3421, which sets out the procedure used by the district court when accepting a jury verdict in a criminal case, states:
“The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is the jury's verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If the verdict is defective in form only, it may be corrected by the court, with the assent of the jury, before it is discharged.”
Here, the district judge immediately asked if either party wished to have the jury polled after the jury's verdict was announced. In response, defense counsel stated that he would like to have the jury polled. Each juror was then asked individually whether he or she agreed with the verdict, and each of them responded affirmatively.
This court has previously held that “polling the jury accomplishes the same purposes as having the trial judge inquire into the accuracy of the verdict, i.e., ensuring jury unanimity and finality of the verdict.” State v. Dunlap, 46 Kan.App.2d 924, 934, 266 P.3d 1242 (2011), petition for rev. filed December 30, 2011. Moreover, the Dunlap court found that a defendant's failure to object at trial to be similar to a waiver or invited error. 46 Kan.App.2d at 934.
Accordingly, we conclude that the district judge did not err by failing to make a general inquiry into the accuracy of the verdict. Furthermore, we conclude that even if it was error for the district judge not to inquire of the jury, such error was harmless and was cured by the polling of the jury.
Affirmed.