IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 123,650
STATE OF KANSAS,
Appellee,
v.
CAROL SUE BURRIS,
Appellant.
SYLLABUS BY THE COURT
1.
A person may be held criminally liable for a failure to act if that person owes a
legal duty of care. Legal duties of care can arise out of either common law or legislative
enactment.
2.
A legal duty of care is imposed at common law when a person is in a special
relationship with another. One such relationship is marriage. A legal duty of care also
arises when a person has voluntarily assumed the care of another and has prevented
others from rendering aid.
3.
K.S.A. 2022 Supp. 21-5417 imposes a legal duty of care on the primary caregivers
of dependent adults.
1
Review of the judgment of the Court of Appeals in 63 Kan. App. 2d 250,
528 P.3d 565 (2023).
Appeal from Coffey District Court; TAYLOR J. WINE, judge. Oral argument held December 14, 2023.
Opinion filed March 15, 2024. Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.
Kasper Schirer, of Kansas Appellate Defender Office, argued the cause, and Caroline M.
Zuschek, of the same office, was with him on the briefs for appellant.
Steven J. Obermeier, deputy solicitor general, argued the cause, and Kris W. Kobach, attorney
general, was with him on the briefs for appellee.
The opinion of the court was delivered by
STEGALL, J.: Carol Sue Burris was charged with mistreatment of a dependent
adult and the second-degree reckless murder of Michael Burris, Burris' husband of over
45 years. Michael suffered from dementia and other significant health issues and relied
on Burris—as Michael's sole caregiver—to tend to his needs. Yet trial evidence showed
that Burris not only did not adequately care for Michael, but also actively prevented
others from assuming or providing his care. Burris did not tend to his wounds, did not
give him his required medications, did not bathe him or help him use the toilet, and did
not provide him with enough food and water to survive. Michael ultimately died of
pneumonia with severe emaciation as a significant underlying factor, and a jury convicted
Burris of both charges. Burris' convictions were affirmed by the Court of Appeals, and
we granted her petition for review. She argues that her conviction for reckless but
unintentional second-degree murder must be reversed, as it is based only on a failure of
care—that is, on omissions (things she did not do) rather than affirmative acts (things she
did do). Her argument is premised on the idea that she had no duty to act—to provide the
care at issue—under these facts. She also claims the prosecutor committed three
reversible errors during closing arguments.
2
Today we conclude that Burris owed a clearly defined legal duty of care to
summon or provide medical care for Michael based on their marital relationship, Burris'
voluntary assumption of Michael's care, and her role as Michael's sole caregiver under
K.S.A. 2022 Supp. 21-5417. We also find no prosecutorial error occurred. As such, we
affirm Burris' convictions.
FACTS
As the parties do not dispute the facts as recited by the panel in State v. Burris, 63
Kan. App. 2d 250, 251-56,
528 P.3d 565 (2023), we adopt them for use here:
"A. Carol's neglect and Michael's deteriorating health
"In April 2016, two paramedics were dispatched to the home of Carol and
Michael Burris after receiving a report that Michael fell and needed assistance. When
paramedics arrived, Carol directed them to a back room of the home where they found
Michael on the floor in underwear stained yellow, smelling of urine, and with sores on
his legs that suggested he lay on the floor for an extended period of time. One of the
paramedics, Roy Rickel, also observed that Michael was very thin, appeared to be
dehydrated, and had several cuts across his arms in various stages of healing. After Carol
left the room, Michael told Rickel that he remained on the floor for about two weeks after
falling and resorted to cutting himself with the hope it would induce Carol to call for
help. He said Carol provided him with doughnuts and water and occasionally cleaned his
urine and feces off the floor.
"Michael was transported to the hospital where doctors diagnosed an infection in
his leg, an ulcer caused by a pressure sore, low potassium levels, and dehydration.
Michael informed a nurse that he had not eaten recently because Carol would not cook
for him, but he could not call for help because Carol took his cell phone away. He also
told his sister, Terry Taylor, that Carol refused to give him his cell phone and left him on
the floor for several days after he asked her to call for help. Michelle Gast, a social
worker for the Department for Children and Families, investigated allegations that Carol
3
subjected Michael to neglect. Carol told Gast she felt responsible for caring for Michael,
providing his meals, assisting with his toileting needs, and transporting him to medical
appointments. Yet when Gast asked whether Carol gave Michael his prescribed
medications, Carol said she gave him her own medications instead because she could not
get him out of the house to see the doctor. Carol acknowledged Michael remained on the
floor for an unknown duration after his fall but remarked that it was not possible for her
to move him given the disparity in their respective sizes. When Gast inquired why
Michael cut himself Carol refused to answer.
"Dr. John Shell recommended Michael be discharged to Life Care Center, a
nursing home facility, so he could increase his strength, ambulate on his own, and care
for himself more independently before returning home. Michael believed that Life Care
presented a good option but told Lucas Markowitz, a social worker, that he wanted to
speak with Carol first. Following his conversation with Carol, Michael expressed a
change of heart about his care and requested to return home immediately. He did agree to
receive home health services.
"Michael remained in the hospital for nine more days and was then transported
home by paramedic Aaron Williams. Upon their arrival, Carol cautioned Williams to not
disturb their dogs and to get Michael inside as quietly as possible. Williams tried to give
Carol the necessary instructions for Michael's care, but she grew annoyed and spoke over
him. The hospital's home health department called the Burrises to speak with Williams
while he was at the house, but Carol refused to allow the communication. Williams left
the residence fearing that Michael was at risk of neglect, so he filed a report with the
Kansas Department for Children and Families.
"Paramedics returned to the home nine days later in response to a call from Carol
that Michael fell again. Roy Rickel was again among the responders and found Michael
in a position much like that he was in following his first fall. This time, Michael
apparently fell out of his chair three or four hours before the paramedics arrived. They
transported him back to the hospital, and Dr. Shell diagnosed him with high levels of
potassium. Michael was discharged to Life Care Center and treated for elevated
potassium levels, diabetes, and hypothyroidism. He was also diagnosed with mild-tomoderate dementia. The facility discharged Michael roughly three weeks later and sent
4
him home with prescriptions for Synthroid, Metformin, Mirtazapine, and Amlodipine to
be taken daily. Carol told Life Care that home health assistance was unnecessary because
she planned to care for Michael herself.
"Michael's sister, Terry, called from time to time to check on his health after he
returned home, but no one answered her calls for days at a time, so she finally left a
message in which she threatened to call the police for a welfare check. About 10 minutes
after Terry left that message, Carol called back and permitted her to speak with Michael.
Terry offered to allow the couple to move into her guest house so they could be closer to
her, but Carol declined. Carol also complained to Terry that she could not even take care
of herself well because of the constant care and attention Michael required from her.
Terry encouraged her to explore government-funded home healthcare programs, but
Carol dismissed the suggestions because neither she nor her dogs liked when healthcare
professionals visited the home.
"Around this time, Gast visited the Burris' home to check on Michael's wellbeing, but Carol slammed the door in her face. As Gast returned to her car, Carol yelled
from the porch that they were tired of people coming to their house and wanted to be left
alone. Gast again requested to see Michael, but Carol claimed he did not have any
clothing on. When Gast suggested that she simply cover him with a blanket, Carol
asserted that if Gast came inside she did not have a place to put her dogs. Gast persisted
but Carol remained steadfast in her refusal and then claimed that a visit was not possible
because Michael was asleep, and she needed to leave to get his medication. Gast finally
left without seeing Michael. She advised Adult Protective Services (APS) that she
substantiated the allegations of Carol's abuse of Michael, and that Carol 'failed to obtain
medical services for [Michael] after he fell on the floor despite his request for assistance
and [that he cut] himself to get medical attention.' APS sent notices of the report to Carol
and Michael.
"B. Michael's third trip to the hospital and death
"Paramedics were ultimately dispatched to the Burris' home for a third and final
time. When they entered Michael's room at the back of the house, they were overwhelmed by the stench of stale urine and feces. When one of the paramedics, Jared Saiz,
5
reached for a light switch, Carol shoved his hand away and told him not to turn the light
on. Michael was lying on the couch wrapped in layers of blankets, with his eyes closed,
and mouth open gasping for air. Saiz peeled back the blankets and observed that Michael
was severely thin with his flesh sucked up under his rib cage. He assessed Michael for a
possible intubation and noticed Michael's mouth was completely dry. Carol claimed that
Michael ate four meals—which consisted of her pouring juice into his mouth—and spoke
with her just the day before. When Saiz loaded Michael onto the stretcher to take him to
the hospital, he noticed Michael's blankets were caked in feces.
"Dr. Christopher Jarvis treated Michael at Coffey County Hospital and
immediately observed Michael was extremely emaciated and covered in human waste.
Jarvis, who had practiced medicine in the area for 20 years, had never witnessed a person
as emaciated as Michael. Once Michael was stabilized, Jarvis ordered his transfer to
Stormont Vail Hospital in Topeka as it was equipped to provide a higher level of care. A
charge nurse who examined Michael upon his arrival at Stormont Vail noted a litany of
health problems including several pressure injuries, open peeling areas on his back, dirt
covering his body, matted hair on his head, foul-smelling exposed necrotic tissue, round
open wounds on his buttocks and legs, bruises on his right forearm, and severe
emaciation. Terry traveled to Topeka to visit Michael and then called Carol who
remarked that she thought Michael had already passed. Carol never visited Michael
before he died.
"Michael died only a few hours after his arrival in Topeka. He was returned to
the Coffey County Hospital, where Dr. Jarvis declared pneumonia to be the official cause
of death and that it was the product of his critically emaciated state. Michael's driver's
license reflected he weighed 250 pounds in 2012; at his autopsy, he weighed only 124
pounds. Jarvis classified Michael's death as a homicide because given his severe
emaciation 'it seemed appropriate that whoever was caring for him would have sought
care long before he reached that point so [sic] neglect.' Dr. Erik Mitchell, a forensic
pathologist, later found a breakdown of Michael's skin surface consistent with long
periods of immobility and determined that he failed to sustain an adequate caloric intake
over a significant period of time as required to maintain his physical structure.
6
"C. Criminal investigation, pretrial proceedings, and trial of Carol Burris
"The Coffey County Sheriff's Department executed a search warrant on the
Burris' home and Undersheriff Thomas Johnson interviewed Carol. During their
discussion, Carol was consistently distracted by her dogs' need to be kenneled and
commented that she refused home healthcare services because her dogs did not like them.
Carol also told Johnson that she did not give Michael his prescribed medications because
she could not get to the doctor to have them filled. Officers recovered Michael's
discharge summaries and care instructions from Carol's bedroom.
"In September 2018, the State charged Carol with one count each of mistreatment
of a dependent adult and reckless second-degree murder. . . .
"The case proceeded to trial, and the State presented testimony from paramedics,
hospital staff, medical examiners, Michelle Gast, Terry Taylor, and law enforcement
personnel. It also admitted the photographs from Michael's autopsy and various items
obtained from the search of the Burris' home into evidence.
....
"The jury returned guilty verdicts for both charged offenses, and the district court
sentenced Carol to a prison term of 125 months." 63 Kan. App. 2d at 251-56.
The panel affirmed Burris' convictions, concluding that Burris' failure to provide
life-sustaining care for Michael after unequivocally assuming the responsibility to do so
properly subjected her to prosecution for both charged offenses. 63 Kan. App. 2d at 263-
64. The panel further found that the prosecutor's closing argument did not contain
reversible error. 63 Kan. App. 2d at 273. We granted Burris' petition for review.
Jurisdiction is proper. K.S.A. 60-2101(b) (this court has jurisdiction to review Court of
Appeals decisions upon petition for review).
7
DISCUSSION
Burris acknowledges she did not argue below that she had no legal duty to care for
Michael. But she claimed the panel could still review the issue because it presented only
a legal question arising on proved or admitted facts. See State v. Allen, 314 Kan. 280,
283,
497 P.3d 566 (2021).
The panel agreed to review the first part of her claim—that she had no legal duty
to care for Michael and thus could not be convicted of a crime based on a failure to act—
on the grounds that an appellate court may consider issues raised for the first time on
appeal when the newly asserted claim is a purely legal one. Burris, 63 Kan. App. 2d at
256-57 (citing State v. Rhoiney, 314 Kan. 497, 500,
501 P.3d 368 [2021]). The panel did,
however, decline to reach the merits of Burris' related due process claim (that if there was
a legal duty to act, she did not have sufficient notice of that duty). 63 Kan. App. 2d at
264-65. The parties continue to dispute whether we ought to consider the merits of the
due process argument.
We need not split the preservation hairs too finely in this case, however, as the
lawfulness of a conviction premised on proven acts of omission rises or falls upon the
resolution of the question of duty. And a duty imposed without sufficient notice is no
duty at all. See, e.g., Rogers v. Tennessee, 532 U.S. 451, 461-62,
121 S. Ct. 1693,
149 L.
Ed. 2d 697 (2001) (courts cannot impose a retroactive application that is unexpected and
indefensible by reference to the expressed law prior to the conduct at issue); Com. v.
Morris,
142 S.W.3d 654, 662-63 (Ky. 2004) (adopted new definition which criminalized
defendant's conduct, but reversed defendant's conviction because he had no notice of
articulated duty at the time he committed the crime). Given this, we consider the notice
question fairly subsumed within the question of duty and will therefore consider the
argument on its merits.
8
These preservation questions settled, we will exercise unlimited review in
determining whether Burris' acts of omission in failing to care for Michael place her
within the scope of our second-degree murder statute. See State v. Busch, 317 Kan. 308,
310-11,
528 P.3d 560 (2023). The most fundamental rule of statutory construction is that
the intent of the Legislature governs if that intent can be ascertained. In ascertaining this
intent, we begin with the plain language of the statute, giving common words their
ordinary meaning. When a statute is plain and unambiguous, we will not speculate about
the legislative intent behind that clear language. 317 Kan. at 310-11.
Burris was convicted for "the killing of a human being committed . . .
unintentionally but recklessly under circumstances manifesting extreme indifference to
the value of human life." K.S.A. 2016 Supp. 21-5403(a)(2). Burris argues this statute
requires a voluntary act, and that she cannot be found guilty by omission in the absence
of a statutorily-defined duty to act. She anchors her argument in K.S.A. 2022 Supp. 21-
5201 and State v. Dinkel, 311 Kan. 553, 558-61,
465 P.3d 166 (2020).
In Dinkel, the defendant was convicted of statutory rape. Dinkel claimed,
however, that in fact she had been the victim of forcible rape at the hands of the child.
We contemplated, then, whether, if Dinkle's allegations were true, she had committed the
necessary actus reus of the crime of statutory rape. 311 Kan. at 558-59. Dinkel, like
Burris, relied on K.S.A. 2012 Supp. 21-5201, which requires a voluntary act before
criminal liability may be imposed.
K.S.A. 2022 Supp. 21-5201 provides:
"(a) A person commits a crime only if such person voluntarily engages in
conduct, including an act, an omission or possession.
9
"(b) A person who omits to perform an act does not commit a crime unless a law
provides that the omission is an offense or otherwise provides that such person has a duty
to perform the act."
Dinkel evaluated what it means for conduct to be "voluntary," explaining:
"Black's Law Dictionary defines 'voluntary' as '[d]one by design or intention.' Black's
Law Dictionary 1886 (11th ed. 2019). It defines 'conduct' as '[p]ersonal behavior,
whether by action or inaction, verbal or nonverbal; the manner in which a person
behaves; collectively, a person's deeds.' Black's Law Dictionary 369 (11th ed. 2019).
According to these definitions, 'voluntary conduct' is 'personal behavior' 'done by design
or intention.'
"Black's Law Dictionary also provides a definition of a 'voluntary act,' which is a
term included in the title of the statute. A 'voluntary act' is:
"'A willed bodily movement; esp., the type of act that is necessary for the
imposition of criminal liability when such liability is not predicated on an
omission. Under both the common law and the Model Penal Code, a person
cannot be held liable for a crime without engaging in a prohibited voluntary act
or omission. A bodily movement that is a product of the effort or determination
of the actor, either conscious or habitual, is a voluntary act. Reflexes,
convulsions, and movements made while unconscious, asleep, or under the
influence of hypnosis are not voluntary acts.' Black's Law Dictionary 32 (11th ed.
2019)." (Emphases added.) 311 Kan. at 559.
Burris suggests Dinkel supports her claim that her "murder conviction can only be
supported by an act." But crucially, Burris confuses the distinct concepts of omission and
voluntariness and blurs them together, suggesting that an omission can never be a
voluntary act. This is simply wrong, both as a matter of logic and statutory interpretation.
A decision not to do something may be just as much a voluntary act as a decision to do
something. A fact the statute makes clear. "A person commits a crime only if such person
10
voluntarily engages in conduct, including . . . an omission." K.S.A. 2022 Supp. 21-
5201(a) (emphasis added); see also K.S.A. 2022 Supp. 21-5111(a) (providing an "'Act'
includes a failure or omission to take action").
In other words, while Burris grounds her argument in Dinkel's holding that a
voluntary act is required as part of the actus reus of a crime, this holding does not actually
help her. Dinkel never suggested that an omission was not or could not be a voluntary act.
The crucial question in this case is not voluntariness—Burris never presented any
argument or evidence below that her omissions were involuntary—but rather the
existence or absence of a duty to act.
We have a specific, clear, and unambiguous statutory framework for deciding
cases such as this. K.S.A. 2022 Supp. 21-5201(b) instructs that a "person who omits to
perform an act does not commit a crime unless a law provides that the omission is an
offense or otherwise provides that such person has a duty to perform the act." The panel
concluded that a "formal duty of care is unnecessary to sustain a conviction under K.S.A.
2022 Supp. 21-5403(a)(2)" and that "a failure to act is included within its reach." Burris,
63 Kan. App. 2d at 263. We disagree and disapprove this language. Because K.S.A. 2022
Supp. 21-5403(a)(2) does not explicitly criminalize omissions, the existence of a formal
duty to act is indeed required in order to sustain a conviction based on voluntary failures
to act. But in these circumstances, we do not find it difficult to locate multiple sources of
law imposing a legal duty on Burris to have provided or summoned medical care for
Michael. Thus, we affirm the panel as right for the wrong reason. See State v. McCroy,
313 Kan. 531, 539,
486 P.3d 618 (2021) (affirming Court of Appeals as right for the
wrong reason).
Generally, citizens are under no obligation to aid one another, though some
common-law exceptions have long been recognized. One clear exception exists when a
person is in a special relationship with another—such as a marital relationship. Another
11
exception involves circumstances when a person has voluntarily assumed the care of
another and prevented others from rendering aid. See, e.g., Jones v. United States, 308
F.2d 307, 310 (D.C. Cir. 1962); Stewart, How Making the Failure to Assist Illegal Fails
to Assist: An Observation of Expanding Criminal Omission Liability,
25 Am. J. Crim. L.
385, 394-95 (1998). And in Kansas, the common law continues to apply unless explicitly
modified. See K.S.A. 77-109 (common law as modified by constitution, statute, and
judicial decisions shall remain in force in aid of the general statutes of the state);
Gonzales, Administrator v. Atchison, T. & S. F. Rly. Co.,
189 Kan. 689, 695,
371 P.2d
193 (1962) ("From the beginning of our history as a state [Territorial Laws 1855, ch. 96,
Laws 1862, ch. 135, G.S. 1935, 77-109] the common law of England has been the basis
of the law of this state, and except as modified by constitutional or statutory provisions,
by judicial decisions, or by the wants and needs of the people, it has continued to remain
the law of this state."); City of Haven v. Gregg, 244 Kan. 117, 122,
766 P.2d 143 (1988)
("In Kansas, the common law remains in force, unless modified by constitutional
amendment, statutory law, or judicial decision.").
Burris tries to claim she had no duty to care for her spouse because there was "no
evidence in this case that [Burris] accepted legal responsibility for Michael's care." But
our common law makes clear that she accepted legal responsibility for Michael's care the
moment they were married. "Unquestionably there is a common-law marital duty to
provide medical attention to one's spouse." People v. Robbins, 83 A.D. 2d 271, 272,
443
N.Y.S.2d 1016 (1981); see also Reardon v. King,
310 Kan. 897, 903,
452 P.3d 849
(2019) (Kansas common law recognizes a special relationship between employers and
third parties who come into contact with their employees); McGee v. Chalfant,
248 Kan.
434, 438,
806 P.2d 980 (1991) ("A special relationship may exist between parent and
child, master and servant, the possessor of land and licensees, persons in charge of one
with dangerous propensities, and persons with custody of another."); Westrup v.
Commonwealth, 123 Ky. 95,
93 S.W. 646, 646 (1906) ("Where the husband neglects to
provide necessaries for his wife, or medical attention in case of her illness, he will be
12
guilty of involuntary manslaughter, provided it appear that she was in a helpless state and
unable to appeal elsewhere for aid, and that the death, though not intended nor anticipated
by him, was the natural and reasonable consequence of his negligence."); State v. Smith,
65 Me. 257, 258 (1876) (husband criminally liable for wife's death for neglecting to
provide protection from winter weather); Territory v. Manton,
8 Mont. 95,
19 P. 387, 392
(1888) (same); State v. Mally,
139 Mont. 599, 609-10,
366 P.2d 868 (1961) (husband had
a duty to summon medical aid for his injured and ill wife—who was "as helpless as [a]
newborn" and "could not have consciously or rationally denied medical aid"—and breach
of that duty resulted in criminal liability); Collins, Leib & Markel, Punishing Family
Status,
88 B.U. L. Rev. 1327, 1335-36 (2008) (spousal relationship is a "paradigmatic
example[] of status relationships in which one owes a duty to rescue sufficient to trigger
criminal responsibility").
Burris then claims that "simply attempting to provide Michael care did not create a
legal duty for [Burris] to care for him. There is simply no such duty in the law." Again,
her claim is incorrect. Our common law has long been that "once a person steps into the
role of caregiver, such that others are discouraged or precluded from filling that role, that
person has a duty to act reasonably in fulfilling the adopted role." State v. Wilson, 267
Kan. 550, 562,
987 P.2d 1060 (1999) (citing LaFave and Scott, 1 Substantive Criminal
Law § 3.3[a][1], [4], and [5] pp. 282-88 [1986]); see also Stewart, 25 Am. J. Crim. L. at
396 ("The reason for this exception is that one who voluntarily assists another might
worsen the victim's position by subjecting him to other dangers or by preventing someone
else from undertaking the rescue."); State v. Gargus, 462 S.W.3d 417, 418-24 (Mo. Ct.
App. 2013) (daughter moved in to care for elderly mother; mother eventually became
septic and died due to gangrene and extreme neglect; daughter's conviction for
involuntary manslaughter affirmed because she undoubtedly had a duty to act after
voluntarily assuming care of her mother, which "created criminal liability for the
negligent performance of that duty"); Davis v. Commonwealth,
230 Va. 201, 205,
335
S.E.2d 375 (1985) (affirming daughter's conviction for involuntary manslaughter in the
13
death by starvation of her elderly mother; the court found a common-law duty existed
based on the evidence in the case that the daughter had "accepted sole responsibility for
the total care" of her mother); Com. v. Pestinikas, 421 Pa. Super. 371, 398-99,
617 A.2d
1339 (1992) (Tamilia, J., concurring) (citing Regina v. Hughes, 7 Cox C.C. 301, 302
[1857]) ("What makes the . . . assumption of care a duty imposed by law is assumption of
a responsibility for the care of a dependent person who thereby loses the protection he
would have for being cared for by others with more specific legal responsibility. The
history of homicide by omission to provide care, primarily is traced through English law,
and American cases that clearly followed English law."); State v. Shrout, 415 S.W.3d
123, 125 (Mo. Ct. App. 2013) ("[A] duty of care arises, sufficient to support an
involuntary manslaughter conviction, when one 'voluntarily assumes the care of a
mentally handicapped individual, being fully aware of the individual's physical and
mental condition and the care challenges created by those conditions.'"); cf. Sickel v.
State, 363 P.3d 115, 117 (Alaska Ct. App. 2015) ("It is true that the cruelty to animals
statute fails to specify which persons have a duty to care for particular animals. But we
are authorized to look to the common law to remedy this omission. . . . [T]he statute
applies to all persons who have undertaken responsibility for the care of an animal.").
Finally, in addition to common-law duties of care, Burris was also compelled by a
statutory duty of care. As the sole caregiver for Michael, K.S.A. 2016 Supp. 21-5417
imposed a statutory duty of care on Burris. See State v. James, 276 Kan. 737, 746,
79
P.3d 169 (2003) ("[A]dults in Kansas who are unable to protect their own interest are
dependent upon their caretakers. It logically follows that their caretakers possess an
affirmative duty to provide this protection." [Emphasis added.]). As Michael's selfproclaimed and exclusive caregiver, Burris had a legal duty to protect his interests under
K.S.A. 2016 Supp. 21-5417.
14
Burris has conceded that her omissions—failing to provide resources, failure to
feed, and failure to otherwise properly care for Michael—could lawfully result in
criminal responsibility for Michael's death "if she had a legal duty to provide care and
resources to him." We conclude Burris undoubtedly had such a legal duty—springing
from multiple sources of law—to provide care and resources to her husband.
Finally, Burris challenges these legal duties to care for Michael on the grounds of
notice (whether a failure of sufficient notice renders the imposition of the duty a violation
of constitutional due process or simply a nullity is irrelevant for our purposes today). The
fundamental principle underlying a sufficient notice requirement is that "[n]o one may be
required at peril of life, liberty or property to speculate as to the meaning of penal
statutes. All are entitled to be informed as to what the State commands or forbids."
Lanzetta v. New Jersey, 306 U.S. 451, 453,
59 S. Ct. 618,
83 L. Ed. 888 (1939). Yet
ignorance of the law or mistake of law is never a valid defense. State v. Watson,
273 Kan.
426, 434-35,
44 P.3d 357 (2002) (citing Cheek v. United States,
498 U.S. 192, 199,
111
S. Ct. 604,
112 L. Ed. 2d 617 [1991] ["The general rule that ignorance of the law or a
mistake of law is no defense to criminal prosecution is deeply rooted in the American
legal system."]). And though it is perhaps unlikely that individuals will "carefully
consider the text of the law," still it remains important "that a fair warning should be
given to the world in language that the common world will understand, of what the law
intends to do if a certain line is passed. To make the warning fair, so far as possible the
line should be clear." McBoyle v. United States,
283 U.S. 25, 27,
51 S. Ct. 340,
75 L. Ed.
816 (1931). When examining whether the criminal law has provided fair notice, the
touchstone is whether the decision is "unexpected and indefensible by reference to the
law which had been expressed prior to the conduct in issue." Rogers,
532 U.S. at 461-62.
In this case, application of longstanding traditional common-law duty rules is not
at all "unexpected and indefensible." Not only has Kansas explicitly affirmed a continued
adherence to the common law as "the basis of the law[s] of this state" that remains in
15
effect unless specifically modified, Gonzales, 189 Kan. at 695, virtually every state
makes it clear that there is "[u]nquestionably . . . a common-law marital duty to provide
medical attention to one's spouse." Robbins,
83 A.D. 2d at 272. Furthermore, the legal
duty arising from the voluntary assumption of care is widely utilized and understood.
And of course, the application of a Kansas statute is also not "unexpected and
indefensible." See Rogers,
532 U.S. at 461-62.
In short, a husband and wife of 45 years lived alone together outside of town. The
wife knew her husband needed intensive, round-the-clock care; yet she secluded him, did
not give him required medication, did not adequately feed him, did not treat his wounds,
left him in squalor and inhumane conditions from which he was incapable of escaping,
refused access to home health services, prevented others from caring for him, and
repeatedly turned down all offers of help from family and social workers. In a civilized
society with deeply entrenched notions of the duties citizens may and do owe to their
fellow human beings, we do not find it difficult to conclude that Carol Burris had "fair
warning" that these voluntary acts—whether of omission or commission—subjected her
to criminal liability for violating her plain legal obligations of care toward her husband.
See McBoyle, 283 U.S. at 27.
We now turn to Burris' claims of prosecutorial error. Burris did not object to any
of the prosecutor's comments that she challenges on appeal. But a defendant need not
contemporaneously object to a prosecutor's comments to preserve claims of error for
appellate review. State v. Slusser, 317 Kan. 174, 184,
527 P.3d 565 (2023). However,
"the presence or absence of an objection may figure into the analysis of the alleged
error." State v. Sean,
306 Kan. 963, Syl. ¶ 5,
399 P.3d 168 (2017).
We employ a two-step analysis when reviewing prosecutorial error claims. First,
we determine whether error occurred. Under the first step, we analyze whether the
prosecutor's acts fell outside the wide latitude afforded prosecutors. In doing so we
16
consider the context in which the statement was made, rather than analyzing the
statement in isolation. State v. Becker, 311 Kan. 176, 182,
459 P.3d 173 (2020). A
defendant meets the first prong by establishing the prosecutor misstated the law or argued
a fact or factual inferences outside of what the evidence showed. State v. Ballou,
310
Kan. 591, 596,
448 P.3d 479 (2019). If we find the prosecutor erred, we then determine
whether prejudice resulted. At this second step we focus on whether the error prejudiced
the defendant's due process rights to a fair trial. Slusser, 317 Kan. at 184-85. Burris raises
three claims of prosecutorial error. We conclude that each claim fails at the first step, so
we need not conduct a prejudice analysis.
Burris first claims that the prosecutor improperly commented on her decision not
to testify. But she does not fairly characterize the prosecutor's statement—the prosecutor
was discussing Burris' two-and-a-half-hour-long interview with law enforcement that was
played for the jury, and referring to her lack of explanation to law enforcement during
that interview. Burris attempts to divorce the comment from its context, but "[c]ourts do
not isolate the challenged comments; they consider them in the context they were made."
State v. Butler, 307 Kan. 831, 865,
416 P.3d 116 (2018).
The prosecutor's full statement in context about that interview is illustrative:
"You heard no evidence from her. She had two and a half hours. You heard that
she said—well, there was questions from the defense insinuating that he said that he had
a loss of appetite, refused food, right? You heard no evidence of that. None. Not one
person testified to that, that that happened. And more importantly if that had happened, in
two and a half hours she talked about everything. In two and a half hours, don't you think
that would have been the first thing, look, he wanted to die. Look, he didn't want to eat.
Look, he had a loss of appetite. She doesn't say that. She says he didn't have a problem
other than his teeth but I just chopped it up into small bits.
17
"Mr. Markowitz provides training and education to her about what is available.
"Aaron Williams attempts to provide her education. She won't listen. She talks
over him just like she continued to talk over Mr. Johnson many, many times during that
interview. She ignores all of them.
....
". . . What does she say multiple times at the end of that interview? I need my
money to hire people to do things." (Emphases added.)
Upon considering the statement in the context in which it was made, it is clear that
the prosecutor was not commenting on Burris' invocation of her right not to testify. The
panel highlighted this, and Burris does not offer any argument why the panel erred. She
simply reiterates that it was an improper comment. We conclude there was no error in
this statement.
Burris' next claim of error results from the prosecutor's commentary on her
marriage and wedding vows, which she asserts were improper as they only served to
inflame the jury.
The prosecutor began his closing argument in the following manner:
"I take thee to be my wedded husband, to have and to hold from this day forward,
for better for worse, for richer for poorer, in sickness and in health, to love and to cherish
till death do us part.
....
"But here's the thing, whether you're married 45 years, 30 years, or ten minutes, a
marriage is defined by certain things. Lot of people think it's defined by that wedding
18
day, right, when the dress is so pretty, when the suit is all pressed, when the flowers smell
so good, and the cake tastes so sweet, right. The reality is the marriage isn't defined by
that day.
"The marriage is defined by when one is at their lowest, the darkest moments,
when they are in despair, when they are vulnerable, and when they are in their most need.
That's when a marriage is defined because then the question is those hands that held each
other on that wedding day, are they still holding each other. That's a question you should
ask as you deliberate when considering whether [Mrs.] Burris had extreme indifference to
the human life of Mr. Burris."
The Court of Appeals, 63 Kan. App. 2d at 269, determined that the reference to
the Burris' wedding vows was error, because "[c]omments from a prosecutor in closing
arguments that inflame the passions or prejudices of a jury are prohibited." State v.
Nesbitt, 308 Kan. 45, Syl. ¶ 6,
417 P.3d 1058 (2018). The panel concluded that the
comments in this case fit squarely among the types of comments this court has previously
found to be error, but that the error was harmless as there was no reasonable probability it
contributed to the verdict. Burris, 63 Kan. App. 2d at 271.
The State conditionally cross-petitioned for review on the panel's conclusion that
this statement was error, preserving it for our review. See Supreme Court Rule
8.03(b)(6)(C)(i) (2023 Kan. S. Ct. R. at 56) (this court only considers issues raised in a
petition, cross-petition, or conditional cross-petition). The State asserts the panel erred in
finding the prosecutor's comments erroneous because both parties frequently mentioned
the Burris' marriage, and the prosecutor explicitly told the jurors they must not decide the
case on sympathy.
In light of our discussion of the common-law duty doctrines above—significantly,
the longstanding traditional duty of care owed between spouses—we conclude the
prosecutor did not commit error. We find the reference to the Burris' marriage vows
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served a legal purpose and did not commit impermissibly stoke the passions of the jury.
Rather, the statement went to an element of the crime—i.e., whether Burris had a duty to
act. See K.S.A. 2022 Supp. 21-5201(b). The prosecutor did not err in discussing Burris
and Michael's marriage vows.
The final comment Burris challenges came at the end of the prosecutor's closing
argument where he asserted that Burris undoubtedly acted recklessly with extreme
indifference to human life, claiming: "There is just no other way to see it. The evidence
is overwhelming just like the smell was when those EMTs went into that room."
Burris argues that this comment was an "unchecked and inflammatory opinion"
and that "only the jury can decide whether evidence is 'overwhelming.'" But as the panel
explained, we have previously held it "permissible for a prosecutor to argue that the
evidence demonstrates a defendant's guilt," as long as the prosecutor says "something
akin to 'the evidence shows defendant's guilt'" and not phrased in a way that expresses the
prosecutor's personal opinion. State v. Peppers, 294 Kan. 377, 399-400,
276 P.3d 148
(2012); Burris, 63 Kan. App. 2d at 272-73. This is very nearly what happened here.
Moreover, colorful language is not erroneous in and of itself. Dramatic and
theatrical language is permissible in crafting a closing argument. "'The wide latitude
permitted a prosecutor in discussing the evidence during closing argument in a criminal
case includes at least limited room for rhetoric and persuasion, even for eloquence and
modest spectacle.'" State v. Chandler, 307 Kan. 657, 688,
414 P.3d 713 (2018); see also
State v. Hilt,
299 Kan. 176, Syl. ¶ 9,
322 P.3d 367 (2014) (prosecutor "may use analogies,
similes, allusions, and other rhetorical devices"). Prosecutors "may indulge in
impassioned bursts of oratory and may use picturesque speech as long as he or she does
not refer to facts not disclosed by the evidence." State v. Rodriguez,
269 Kan. 633, 643,
8
P.3d 712 (2000).
20
The rhetoric by the prosecutor indeed used vivid speech, but it did not go beyond
the facts disclosed by the evidence. The EMT testified that the first thing he noticed when
the door to Michael's room was opened was the "strong smell of feces and stale urine. . . .
as soon as that door opened it hit you. It was like walking straight into a wall of it." The
prosecutor did not err.
CONCLUSION
We conclude that Burris owed a clearly defined legal duty of care to summon or
provide medical care for Michael based on their marital relationship, Burris' voluntary
assumption of Michael's care, and her role as Michael's sole caregiver under K.S.A. 2016
Supp. 21-5417. We also find no prosecutorial error occurred. As such, we affirm Burris'
convictions.
Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.
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