March 13th. The Kansas Supreme Court has issued its decision in State v. Decker (No. 98,226) a direct appeal of a murder conviction. In a unanimous opinion, written by Justice Rosen, the Court rejected Jay Decker’s appeal against his conviction for the murder of his 6 month old daughter Risha.
Decker was living with Risha’s mother, Brandi Hendrickson, in 2005 when (while Hendrickson was at work) he called 911 and requested that the paramedics attend his daughter. The paramedics were unable to revive the baby and Decker gave a series of conflicting accounts to various police officers as to how the baby had come to be injured. He was charged with and convicted of felony murder, the State arguing that the child had been killed during the abuse he inflicted upon her.
Decker made six claims on appeal:
- That the trial court should not have allowed the admission of autopsy pictures into evidence since they were too graphic and would have an emotive impact on the jury.
- That the trial court wrongly allowed evidence of a previous incident involving Decker and his other daughter to be admitted.
- That the trial court should have allowed Decker to introduce testimony which he claimed would show that Hendrickson might have committed the child abuse.
- That the prosecutor committed misconduct by remarking in his summing up that Decker was no longer presumed innocent.
- That the trial court refused to give an instruction to the jury concerning accomplice testimony about Hendrickson’s testimony.
- That these errors cumulatively denied him a fair trial.
The Court ruled against Decker in five of these. On the matter of autopsy pictures it ruled that the pictures were appropriate for admission since they were relevant to determining the cause of death, which was one of the issues under dispute in the trial since Decker claimed that Hendrickson could have been responsible. In the previous incident of child abuse Decker had grabbed his other daughter by the throat, in this case he admitted (among other things) to handling Risha by the throat, although he claimed that this was accidental. This was enough for the Court to find that there were sufficient grounds for this evidence to have been admitted, since the actions were similar.
The witness testimony which was excluded had been ruled inadmissible since the trial court did not find that it spoke to the defence’s theory of the case (which was that Hendrickson might have committed the fatal abuse). The excluded testimony was of a Lorna Henson, who Hendrickson had lived with, who was to testify that Hendrickson had once acted in a threatening manner to Henson’s child, as an overreaction to Henson’s child grabbing Hendrickson’s elder child’s hand. The Kansas Supreme Court sided with the trial court on this matter, finding no logical connection between such an overreaction and claims that Hendrickson abused her own child.
Hendrickson had initially been charged with felony child endangerment, but in exchange for testimony against Decker this was dropped to a misdemeanor. At trial Decker sought a jury instruction that would caution jurors about Hendrickson’s testimony on the grounds that since she had not reported the alleged abuse she was an accomplice. The trial court rejected this instruction. The Supreme Court again sided with the trial court on this matter, noting that failure to report a crime does not rise to the level of complicity and that in any case Decker’s theory of defense did not suggest that Hendrickson was an accomplice at all, rather that she was the one who might have committed the abuse.
Decker prevailed on one of his claims, namely the prosecutorial misconduct charge. The prosecutor had included the following statement in his summing up:
“And another thing is he’s no longer presumed innocent. Case is in. Evidence is in. At this point based on everything that we’ve proved, he’s guilty.”
The Court held that since this plainly misstated the law (defendants are presumed innocent until the jury finds otherwise) it did constitute misconduct. However, the Court also found that there was no ill will behind the statement (the Court agreed that the prosecutor was ineffectively trying to say that the burden of proof had been met by his case) and that the misconduct was not so flagrant as to rise to the level of plain error. Therefore despite ruling for Decker on the point, the Court held that the error was harmless.
Since the Court only found one error among those Decker asserted, it also ruled that these could not rise to the level of cumulative error. Therefore the Court rejected Decker’s appeal and affirmed his conviction.