Kansas Case Law

STATE v. COOPERWOOD, 92,488 (Kan. 12-8-2006) STATE OF
KANSAS, Appellee, v. SAM COOPERWOOD, II, Appellant. No.
92,488. Supreme Court of Kansas. Opinion Filed: December
8, 2006.

SY SYLLABUS BY THE COURT

1. Under the state and federal Constitutions a defendant is
entitled to present the theory of his or her defense, and
the exclusion of evidence that is an integral part of that
theory violates a defendant’s fundamental right to a fair
trial.

2. Under the facts of this case, the correct standard of
review for the admissibility of expert testimony is abuse
of discretion.

3. The threshold consideration on the admissibility of
evidence is relevance. K.S.A. 60-401(b) defines relevant
evidence as evidence having any tendency in reason to prove
any material fact.

4. Generally, unless otherwise prohibited by statute,
constitutional prohibition, or court decision, all relevant
evidence is admissible.

5. Necessity under the particular circumstances of the
case, e.g., helpfulness to the jury, is the basis for the
admissibility of expert witness testimony.

6. Jury instructions are clearly erroneous if the reviewing
court is firmly convinced that there is a real possibility
the jury would have rendered a different verdict if the
trial error had not occurred.

7. Under the facts of this case, the trial court’s failure
to instruct the jury with PIK Crim. 3d 52.08 was not
clearly erroneous.

Review of the judgment of the Court of Appeals in an
unpublished opinion filed January 20, 2006. Appeal from
Wyandotte district court; PHILIP L. SIEVE, judge. Judgment
of the Court of Appeals affirming the district court is
affirmed. Judgment of the district court is affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, argued
the cause and was on the brief for appellant.

Michael A. Russell, chief deputy district attorney, argued
the cause, and Jerome A. Gorman, district attorney, and
Phill Kline, attorney general, were with him on the brief
for appellee.

The opinion of the court was delivered by

NUSS, J.

Sam Cooperwood, II, was convicted by a jury of attempted
voluntary manslaughter for stabbing Belinda Dorsey in the
chest with a steak knife. The Court of Appeals affirmed in
State v. Cooperwood, No. 92,488, unpublished opinion filed
January 20, 2006. This court granted his petition for
review under K.S.A. 20-3018(b).

The issues on appeal, and this court’s accompanying
holdings, are as follows:

l. Did the trial court deny Cooperwood his right to a fair
trial by refusing his request to call an expert witness to
testify regarding the ineffectiveness of Dorsey’s
medications? No.

2. Did the trial court clearly err in failing to instruct
the jury on the State’s continuing burden of proof as
described in PIK Crim. 3d 52.08 (affirmative defenses)? No.

Accordingly, we affirm.

FACTS

On November 16, 2002, shortly after 1 a.m., Sam Cooperwood,
II, went to the house of Belinda Dorsey, whom he had been
dating. After an argument, he stabbed her. He was
eventually charged with attempted first-degree murder.

According to Dorsey’s testimony at the jury trial in July
2003, she was taking Effexor and Seroquel for depression
and hallucinations in November 2002. Without the
medication, she would see little black, green, and orange
men. Sometimes the little men upset Dorsey by dancing. When
she was off of her medication, she would see the little
orange man the most. Although she testified that the little
orange man did not like Cooperwood, the orange man did not
give her instructions to hurt Cooperwood. Dorsey did not
see the orange man on the night of the incident.

Dorsey also testified that she took her medication and went
to bed around 9 or 10 that night. She woke up around 1:30
a.m., when Cooperwood knocked on her door and asked for a
cup of water.

According to Dorsey, after she got Cooperwood a cup of
water, she sat down in a chair in the front room. He
accused Dorsey of having sex with his cousin. When she
denied the accusation, he brought up her ex-boyfriend,
Lawrence Garner. Dorsey testified that Cooperwood believed
she wanted Garner back. The two argued because Cooperwood
wanted a sexual relationship, but Dorsey did not. During
the argument, Dorsey rested her head in her hands because
she was tired.

Dorsey further testified that during the argument, she saw
Cooperwood go into the kitchen. She began dozing off and
then felt a burning sensation in her chest. Dorsey heard
Cooperwood say “I asked you a question.” Dorsey said that
she did not hear the question. When she attempted to stand
up, Cooperwood pushed her back down and told her that if
she did not want him, then she would not have anyone else.
As Cooperwood again went into the kitchen, Dorsey ran
upstairs. She denied experiencing any hallucinations.

By contrast, according to Cooperwood’s testimony, he acted
in self-defense. When he arrived at Dorsey’s, she stated
that the little orange man told her that Cooperwood loved
his child’s mother instead of Dorsey. After arguing for a
few minutes, Dorsey and Cooperwood went into the kitchen.
She then grabbed a butcher knife and stated, “You don’t
love me anymore.” Cooperwood testified that only when she
came at him with the butcher knife did he pick up a steak
knife lying on the counter and stab her in the chest.
Dorsey then dropped the butcher knife in front of the
stove.

According to Cooperwood, he did not realize he had stabbed
Dorsey; rather, he thought the knife got stuck in her
clothing. After he struck her with the knife, he pushed her
down in a chair and stated, “Look what you made me do.”
Cooperwood then left and flagged down a vehicle driven by
Master Sergeant John Franz of the Kansas City Police
Department on a street near Dorsey’s home. When Franz
stopped, Cooperwood stated that he had “stabbed that girl
down on Second Street.”

After the court denied Cooperwood’s motion for directed
verdict at the close of the State’s case, it heard argument
on evidence he desired to introduce. Among other things,
this included testimony by Dr. William Logan, a
psychiatrist appointed by the court to assist the defense
after Dorsey had been declared competent to testify at
trial by a psychologist. Dr. Logan was prepared to opine
that Dorsey’s prescribed medications were ineffective. The
court excluded the evidence.

Following this ruling and before Cooperwood’s testimony,
other defense testimony came from Dr. Michael Miranda of
Wyandotte County Mental Health Center. He had performed a
psychiatric evaluation of Dorsey on August 15,
2002-approximately 3 months before the stabbing incident.
Dr. Miranda testified that during his evaluation, Dorsey
was “very anxious,” acknowledged that voices told her to
hurt herself, and stated that little green men were walking
around the office. Based on Dorsey’s actions, Dr. Miranda
believed that Dorsey was afraid of the little green men.
According to him, Dorsey did not become aggressive during
the interview. He did not testify about Dorsey’s medication
or treatment.

Other defense testimony came from Ludie Sutton, a case
manager with the Wyandotte Center. She started as Dorsey’s
case manager in October 2002-1 month before the stabbing
incident. Among other things, Sutton helped Dorsey keep her
doctor’s appointments so that Dorsey could receive her
medication.

Sutton also kept track of Dorsey in written “progress
notes.” Based on her notes, Sutton testified that by
November 5, 2002, Dorsey had missed a total of four
doctor’s appointments. Based on her November 13, 2002,
appointment with Dorsey, Sutton opined that Dorsey was out
of medication because her 2-week supply provided on October
21 would have run out and because Dorsey had not kept her
medical appointments where she could have obtained refills.
While Sutton opined that Dorsey was out of medication, she
did not personally observe this. Her progress notes were
admitted into evidence.

The jury convicted Cooperwood of attempted voluntary
manslaughter.

ANALYSIS

Issue l: The trial court did not deny Cooperwood his right
to a fair trial by refusing his request to call an expert
witness to testify regarding the ineffectiveness of
Dorsey’s medications.

Cooperwood argues that the trial court’s refusal to allow
Dr. Logan to testify that Dorsey’s medications were
ineffective denied him his constitutional right to a fair
trial because this testimony was integral to his defense.
See, e.g., State v. White, 279 Kan. 326, 331, 109 P.3d 1199
(2005) (“‘under the state and . . . federal Constitutions a
defendant is entitled to present the theory of his or her
defense and the exclusion of evidence that is an integral
part of that theory violates a defendant’s fundamental
right to a fair trial'”). Specifically, he claims that Dr.
Logan’s opinion would have resolved the critical swearing
contest as to which party was the aggressor by
corroborating Cooperwood’s testimony that Dorsey attacked
him.

Cooperwood further argues that because the error denied him
his right to a fair trial, it must be measured against the
federal constitutional standard of harmless error contained
in Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87
S. Ct. 824 (1967), i.e., harmless beyond a reasonable
doubt.

The State responds that the admissibility of expert
testimony lies within the sound discretion of the trial
court and its determination will not be reversed absent an
abuse of discretion, citing State v. Brice, 276 Kan. 758,
775, 80 P.3d 1113 (2003). It further asserts that before
expert testimony is admissible at trial, the proponent must
establish, among other things, that the testimony will be
helpful to the jury. Citing State v. McIntosh, 274 Kan.
939, 956, 58 P.3d 716 (2002), it concludes: “Therefore, the
information that the expert witness is testifying about
must not be within the normal experiences and
qualifications of a lay person.” The State reasons that Dr.
Logan’s testimony was properly excluded because it would
not have assisted the jury.

We agree that our standard of review is abuse of
discretion. See, e.g., State v. Brice, 276 Kan. 758. The
considerations for a de novo review that were present in
State v. White, 279 Kan. 326, e.g., interpretation of
statutory language, are not present in the instant case.

Defense counsel announced at the outset of his argument to
the trial court that Dr. Logan would be called for his
interpretation of some of the medical records which he had
reviewed. According to the later proffer, Dr. Logan would
specifically opine that the medications did not eliminate
or even control Dorsey’s hallucinations:

“Dr. Logan will testify that within a reasonable degree of
medical certainty that the medication that she was
receiving wasn’t an appropriate dosage. That even . . . in
the times when they can establish she was medically
compliant, that the dosages were not enough. It wasn’t
controlling her signs and symptoms. She continued to have
auditory and visual hallucinations even while she was still
taking the medication.”

The State objected to Logan’s proposed testimony by
repeatedly noting that he had never examined her and was
relying completely upon his review of “records” and
“reports.”

As a precursor to its ruling, the trial court stated its
concern about Dr. Logan’s proffered testimony:

“Well, first of all, I don’t think that that’s relevant to
the issues of this particular case, whether-I don’t know
exactly how he could make that determination. But at any
rate, I don’t think it’s relevant to this particular case.
Some other doctor would come in-we’d go on forever. They’d
say-obviously, they’re going to say that was the right
medication because they prescribed it. So they’d disagree
with Dr. Logan.”

Defense counsel responded that it was “clear from the
record” that Dorsey was exhibiting signs and symptoms and
“[t]hat’s how Dr. Logan would testify that the medication
that she was taking was not effective.” The court then
excluded Dr. Logan’s testimony.

The Court of Appeals agreed with Cooperwood that the trial
court erred in holding that Dr. Logan’s proffered testimony
was not relevant. It concluded that the effect of
medication on Dorsey’s mental state at the time of the
incident was a material issue and central to Cooperwood’s
theory of self-defense. State v. Cooperwood, No. 92,488,
unpublished opinion filed January 20, 2006, slip op. at
5-6. Nevertheless, it held that the testimony’s exclusion
was harmless error under K.S.A. 60-261 because there was no
credible testimony that the hallucinations caused Dorsey to
be violent, and Dorsey’s mental problems were well
documented at trial. Slip op. at 6.

We agree that Logan’s proffered testimony was relevant, our
threshold consideration on the admissibility of evidence.
See State v. Torres, 280 Kan. 309, 327, 121 P.3d 429
(2005). See K.S.A. 60-401(b) (relevant evidence is
“evidence having any tendency in reason to prove any
material fact”). Dr. Logan’s opinion would help resolve the
swearing contest between Cooperwood and Dorsey by
corroborating Cooperwood’s testimony that she attacked him,
i.e., (1) her hallucinatory orange man did not like
Cooperwood; (2) the night of the stabbing her orange man
said Cooperwood loved his child’s mother and, by
implication, not Dorsey; and (3) she said she did not think
he loved her anymore as she grabbed a butcher knife.

We do not agree with Cooperwood and the Court of Appeals,
however, that this relevant evidence was wrongfully
excluded. Certainly, otherwise relevant evidence may be
excluded for a variety of reasons. See State v. Marsh, 278
Kan. 520, 530, 102 P.3d 445 (2004) (general rule is that,
unless otherwise prohibited by statute, constitutional
prohibition, or court decision, all relevant evidence is
admissible). See K.S.A. 60-407(f). We therefore need not
perform a harmless error analysis under Chapman v.
California, which is the proper standard for measuring
Cooperwood’s allegations of violation of his federal
constitutional right to a fair trial. As more fully
discussed below, we conclude Dr. Logan’s testimony simply
was unnecessary to the jury’s decision.

This court has often held that necessity, e.g., helpfulness
to the jury, is one important basis for the admissibility
of expert witness testimony. As we stated in Simon v.
Simon, 260 Kan. 731, 735, 924 P.2d 1255 (1996):

“‘”Expert opinion testimony is admissible if it will be of
special help to the jury on technical subjects [with] which
the jury is not familiar or if such testimony [will] assist
the jury in arriving at a reasonable factual conclusion
from the evidence.” Sterba v. Jay, 249 Kan. 270, 816 P.2d
379 (1991); Falls v. Scott, 249 Kan. 54, 63, 815 P.3d 379
(1991). “The basis for the admission of expert testimony is
necessity, arising out of the particular circumstances of
the case.” Falls, 249 Kan. at 63. (Emphasis added.) “[If]
the normal experience and qualifications of jurors permit
them to draw proper conclusions from [the] given facts and
circumstances, expert conclusions or opinions are not
necessary.” Sterba, 249 Kan. at 282-83; Falls, 249 Kan. at
63. Obviously, the trial court has considerable discretion
in determining whether to permit expert testimony.'”
(Quoting Marshall v. Mayflower Transit, Inc., 249 Kan. 620,
626, 822 P.2d 591 [1991]).

Indeed, in both criminal and civil cases, this court has
appeared to state the standard in even stronger terms:
“Expert conclusions or opinions are inadmissible where the
normal experiences and qualifications of lay persons
serving as jurors permit them to draw proper conclusions
from given facts and circumstances.” (Emphasis added.)
Pullen v. West, 278 Kan. 183, 207, 92 P.3d 584 (2004); State
v. McIntosh, 274 Kan. 939, 956, 58 P.3d 716 (2002); see
State v. Papen, 274 Kan. 149, 50 P.3d 37 (2002); State v.
Colwell, 246 Kan. 382, 389, 790 P.2d 430 (1990); Lollis v.
Superior Sales Co., 224 Kan. 251, 580 P.2d 423 (1978);
Massoni v. State Highway Commission, 214 Kan. 844, 522 P.2d
973 (1974).

These facially different standards were reconciled in
Lollis 28 years ago. Among other things, we observed from
our case law that the basis for the admission of expert
opinion testimony was said to be necessity, and that where
the normal experience and qualifications of laymen jurors
permit them to draw proper conclusions from given facts and
circumstances, expert conclusions or opinions to be drawn
from the facts and circumstances are inadmissible. See 224
Kan. at 260-61. The Lollis court concluded: “It is obvious
that these observations simply state, in a different way,
that the basis for the admission of expert testimony is
necessity, arising out of the particular circumstances of
the case.” 224 Kan. at 261.

Regardless of how this particular standard has been stated,
we conclude there was no error in excluding Dr. Logan’s
testimony. It was not a jury necessity for a psychiatrist
who had only reviewed Dorsey’s “records” and “reports” to
testify that her medications were ineffective. The record
on appeal reveals no reason why the defense could not have
argued to the jury that it should conclude from the
testimony and documents, e.g., progress notes, that Dorsey’s
medications were ineffective.

Similarly, in State v. Papen, 274 Kan. 149, this court
upheld the trial court determination that there was no need
for the defense expert psychologist to testify that
defendant and victim had been in a psychologically and
physically unfulfilled relationship. It reasoned that the
jurors could have concluded this for themselves from
defendant’s testimony. Accordingly, this court held there
were no violations of defendant’s federal constitutional
rights. 274 Kan. at 157; see State v. Evans, 275 Kan. 95,
102, 62 P.3d 220 (2003) (The right to present a defense is
subject to statutory rules and case law interpretation of
rules of evidence.).

Based upon the same rationale, in People v. Hulitt, 361
Ill. App. 3d 634, 638, 838 N.E.2d 148 (2005), the court held
that there was no need for the defense expert psychologist
to testify that as a result of postpartum depression,
defendant lacked the ability to cope with the stress of
parenting three children and she was unable to appreciate
the danger of her actions toward her daughter on the night
of the murder:

“Defendant was in pain from the recent [son’s] delivery,
was taking pain medication and was often alone with the
children while the other adults went to work or to look for
a job or an apartment. It does not require an expert to
explain that defendant may have been depressed and had
trouble coping with three children. It does not require an
expert to explain that defendant was . . . `desperate in
tragic circumstances’ and unable to take care of one child,
let alone three.” (Emphasis added.) 361 Ill. App. 3d at
638.

We acknowledge that “lack of necessity” was not a given
basis for the trial court to exclude Dr. Logan’s testimony.
Nevertheless, the exclusion can be upheld under the
rationale and holding of State v. Bryant, 272 Kan. 1204,
1210, 38 P.3d 661 (2002): “[T]he trial court will not be
reversed if it is right, albeit for the wrong reason.”

Issue 2: The trial court did not clearly err in failing to
instruct the jury on the State’s continuing burden of proof
as described in PIK Crim. 3d 52.08 (affirmative defense).

Next, Cooperwood argues that the trial court erred in
failing to give PIK Crim. 3d 52.08 regarding affirmative
defenses and the state’s continuing burden of proof. The
court did instruct the jury on Cooperwood’s theory of
self-defense via PIK Crim. 3d 54.17. Cooperwood’s argument,
however, hinges on language from that instruction’s Notes
on Use, which states: “If this instruction is given, PIK 3d
52.08, Affirmative Defenses-Burden of Proof, should be
given.” (Emphasis added.) PIK Crim. 3d 52.08 states:

“The defendant raises [self-defense] as a defense. Evidence
in support of this defense should be considered by you in
determining whether the State has met its burden of proving
that the defendant is guilty. The State’s burden of proof
does not shift to the defendant.” (Emphasis added.)

Although the trial court did not give PIK Crim. 3d 52.08,
it informed the jury of the State’s general burden of proof
via PIK Crim. 3d 52.02:

“The State has the burden to prove the defendant is guilty.
The defendant is not required to prove he is not guilty.
You must presume that he is not guilty unless you are
convinced from the evidence that he is guilty.

“The test you must use in determining whether the defendant
is guilty or not guilty is this: If you have reasonable
doubt as to the truth of any of the claims required to be
proved by the State, you must find the defendant not
guilty. If you have no reasonable doubt as to the truth of
each of the claims required to be proved by the State, you
should find the defendant guilty.” (Emphasis added.)

Cooperwood did not request PIK Crim. 3d 52.08, nor did he
object to the trial court’s failure to give it. Therefore,
this court must determine whether the failure to give the
instruction was “clearly erroneous.” K.S.A. 2005 Supp.
22-3414(3). “‘Instructions are clearly erroneous only if
the reviewing court is firmly convinced that there is a
real possibility the jury would have rendered a different
verdict if the trial error had not occurred.’ [Citation
omitted.]” State v. Lowe, 276 Kan. 957, 963-64, 80 P.3d
1156 (2003).

We previously addressed this issue in State v. Crabtree,
248 Kan. 33, 805 P.2d 1 (1991). There, the trial court gave
a self-defense instruction from PIK Crim. 2d 54.17 and the
basic instruction on burden of proof-PIK Crim. 2d 52.02.
Crabtree, however, argued that the court’s failure to give
PIK Crim. 2d 52.08, as instructed in the Notes on Use for
PIK Crim. 2d 54.17, was clear error.

The Crabtree court determined that when the jury
instructions were read as a whole, the trial court’s
failure to instruct the jury with PIK Crim. 2d 52.08 was
not clearly erroneous. In so concluding, this court
discussed PIK Crim. 2d 52.02: “Although PIK Crim. 2d 52.02
does not specifically address the burden of proof when an
affirmative defense is asserted, it does state the general
rule that the State has the burden; the defendant never has
to prove himself not guilty.” 248 Kan. at 40. Further, this
court noted that only a “bare scintilla of evidence”
justified the self-defense instruction. 248 Kan. at 40.

Cooperwood attempts to distinguish the rationale of
Crabtree by stating that in the present case, more evidence
justified the self-defense instruction: “Here, there was
far more than a scintilla of evidence. In essence it was a
credibility contest between Mr. Cooperwood’s version of the
facts and Ms. Dorsey’s version of the facts.”

The Court of Appeals in the instant case noted that a
similar argument was rejected by this court in State v.
Sperry, 267 Kan. 287, 294, 978 P.2d 933 (1999), where we
stated:

“Defendant’s appellate counsel acknowledges that the court
considered this issue in State v. Crabtree, 248 Kan. 33,
805 P.2d 1 (1991), and concluded that failure to give the
instruction was not clearly erroneous. He would have the
court distinguish the present case as having more evidence
justifying a self-defense instruction. We decline to do so.
The heart of the court’s reasoning in Crabtree was that,
considered together and as a whole, the instructions that
were given adequately guided the jury’s consideration of
the self-defense theory. There, as here, the jury was
instructed on the presumption of innocence and the State’s
burden of proving defendant guilty beyond a reasonable
doubt. Thus, the court concluded that the jury was
instructed on the substance of PIK Crim. 3d 52.08.
[Citation omitted.]”

Under the rationale of both Crabtree and Sperry, the trial
court’s failure to instruct the jury with PIK Crim. 3d
52.08 was not clearly erroneous.

We acknowledge that under similar facts, i.e., no
instruction requested and no objection to the failure to
instruct, this court in State v. Osbey, 238 Kan. 280, 286,
710 P.2d 676 (1985), stated there simply was no error at
all:

“The fact that the court failed to use PIK Crim. 2d 52.08
will not be considered error when there were other
instructions which made it clear that the burden of proof
was on the State. Error cannot be predicated on the refusal
to give specific instructions where those which were given
cover and include the substance of those refused.”

In Crabtree, we stated that “[o]bviously, the trial court
should have given PIK Crim. 2d 52.08. PIK Crim. 2d 52.08
should be given whenever an affirmative defense is asserted
in a criminal case.” 248 Kan. at 40. We also observe that
the Notes for Use state that the instruction “should be
given.” Accordingly, we agree that failure to do so is
error. When considered in a case such as ours, Crabtree,
and Sperry, i.e., no instruction requested and no objection
to the failure to instruct, we conclude the proper standard
of review is “clearly erroneous.”

The judgment of the Court of Appeals affirming the district
court is affirmed. The judgment of the district court is
affirmed.

LUCKERT, J., not participating.

LOCKETT, J., Retired, assigned.[fn1]

[fn1] REPORTER’S NOTE: Senior Judge Tyler C. Lockett,
Retired, was appointed to hear case No. 92,488 vice Justice
Luckert pursuant to the authority vested in the Supreme
Court by K.S.A. 20-2616.