## Facts

- Steve R. Colwell, the child’s stepfather, lived with Kelli Gates and her mother after marrying in March 1985.
- Kelli, born prematurely and often in poor health, was observed at day care with weight loss and facial bruising consistent with finger pressure.
- A pediatric evaluation did not confirm a blood disorder; a report of suspected abuse to state social services led to no substantiation and file closure.
- Kelli later died after worsening condition; autopsy evidence showed multiple prior injuries and a recent injury shortly before death.
- The State’s theory was that Kelli died from injuries inflicted during child abuse by Colwell.
- At trial, Colwell called a defense pathologist to opine that the death was not caused by child abuse; the court required Colwell to accept the State’s offered stipulation to the expert’s qualifications and barred eliciting those qualifications before the jury.
- The jury convicted Colwell of felony first-degree murder (with child abuse as the predicate felony) and abuse of a child.

## Issues

1. Whether a single assaultive incident of child abuse that causes death can serve as the predicate felony for felony murder, or instead merges with the homicide under Kansas law.
2. Whether the trial court erred by compelling the defense to accept the State’s stipulation to the defense expert’s qualifications, preventing the defense from presenting those qualifications to the jury.
3. Whether the trial court properly applied the presumption of competency for a child witness and placed the burden of proving incompetency on the challenger.
4. Whether the trial court abused its discretion in admitting or limiting expert testimony under Kansas evidentiary law.

## Decision

- The Kansas Supreme Court reversed the felony-murder conviction because the predicate felony (a single assaultive incident of child abuse causing death) merged with the homicide.
- The court affirmed the separate child-abuse conviction.
- The court held it was error to force acceptance of the State’s offer to stipulate to the defense expert’s qualifications, but the error did not require reversal of the affirmed child-abuse conviction.
- The court upheld the trial court’s rulings on the child witness’s competency and found no reversible abuse of discretion in the admission and limitation of expert testimony.

## Legal Principles

- The felony-murder doctrine is aimed at deterring killings that occur during the commission of dangerous felonies and should not be extended beyond that purpose.
- Felony murder requires (1) an inherently dangerous underlying felony and (2) felony elements sufficiently distinct from the homicide so the felony is not an ingredient of the killing.
- A single assaultive incident of child abuse that results in death merges with the killing and cannot serve as the predicate felony for felony murder; combining prior abuse with the lethal act in a collective abuse charge does not avoid merger.
- An offered stipulation to a defense expert’s qualifications is only an offer; absent defense acceptance, the defendant may present the expert’s qualifications to the jury.
- Under K.S.A. 60-407, witnesses are presumed competent regardless of age; the challenger bears the burden to show the witness cannot communicate understandably or cannot understand the duty to tell the truth.
- Under K.S.A. 60-456, expert testimony admissibility is committed to trial-court discretion; experts may not opine on witness credibility or the weight of disputed evidence.

## Conclusion

The court applied Kansas’s merger rule to bar child-abuse-based felony murder when the abuse was the assaultive act causing death, reversed that murder conviction, affirmed the child-abuse conviction, and clarified that courts may not compel a defendant to accept stipulations about a defense expert’s qualifications.


State v. Colwell, 790 P.2d 430 (Kan. 1990)