Nos. 98,292
98,952
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DANA WAYNE DEAL,
Appellant.
SYLLABUS BY THE COURT
1. When a defendant challenges the sufficiency of the evidence in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the State, an appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
2. Depraved heart second-degree murder requires a conscious disregard of the risk, sufficient under the circumstances, to manifest extreme indifference to the value of human life. A conviction for depraved heart second-degree murder requires proof that a defendant acted recklessly under circumstances manifesting extreme indifference to the value of human life.
3. Under the facts of this case, where the evidence showed that the defendant killed the victim while beating him with a tire tool with intent to severely injure him, there was sufficient evidence for the jury to find the defendant guilty beyond a reasonable doubt of depraved heart second-degree murder.
4. When a defendant objects to jury instructions, an appellate court is required to consider the instructions as a whole and not isolate any one instruction. Even if erroneous in some way, instructions are not reversible error if they properly and fairly state the law as applied to the facts of the case and could not have reasonably misled the jury.
5. The "no duty to retreat" rule, as set forth in PIK Crim. 3d 54.17-A (2001 Supp.), is required only in infrequent factual situations with such elements as a nonaggressor defendant being followed to and menaced on home ground.
6. Errors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done.
7. To preserve an issue relating to the admissibility of evidence for appeal, a party must make a timely and specific objection. Even if there is an in limine ruling that the evidence is admissible, where an objection to the evidence is not made when it is introduced at trial, a defendant is generally precluded from challenging its admissibility on appeal.
8. A trial court's refusal to grant a continuance will not be disturbed on appeal absent a showing of an abuse of discretion.
9. A sentence to any term, including an aggravated term, in a Kansas Sentencing Guidelines Act presumptive grid box does not violate the United States Supreme Court's decisions in Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007), and Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
Appeal from Cowley District Court; NICHOLAS M. ST. PETER, judge. Opinion filed May 1, 2009. Affirmed.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
James R. Spring, deputy county attorney, Christopher E. Smith, county attorney, and Stephen N. Six, attorney general, for appellee.
Before GREENE, P.J., GREEN and LEBEN, JJ.
GREEN, J.: Dana Wayne Deal appeals from his jury trial conviction and sentence for one count of second-degree murder in violation of K.S.A. 21-3402(b). Deal first argues that there was insufficient evidence to convict him of unintentional second-degree murder. During the oral arguments made by the parties before this court, the sufficiency of the evidence issue raised an ancillary question: If this court finds that the State failed to present sufficient evidence to sustain a conviction for unintentional second-degree murder but finds sufficient evidence in the record to support a conviction for voluntary manslaughter, could this court remand for resentencing on voluntary manslaughter? We asked both parties to address this question. Both Deal and the State concluded in their letters, under Supreme Court Rule 6.09(b) (2008 Kan. Ct. R. Annot. 47), that if we found insufficient evidence for the jury to convict Deal of unintentional second-degree murder, we could remand to the trial court for resentencing on the lesser included offense of voluntary manslaughter.
The State, however, still maintained in its letter of additional authority that there was sufficient evidence for a jury to conclude that Deal's actions were reckless and to convict him of unintentional second-degree murder. We agree with the State. The evidence in this case established that Deal killed the victim while beating him with a tire tool with the intent to severely injure him. When reviewing all of the evidence in the light most favorable to the State, we are convinced that the jury could have found beyond a reasonable doubt that Deal recklessly killed the victim under circumstances manifesting extreme indifference to the value of human life. As a result, there was sufficient evidence to convict Deal of unintentional second-degree murder under K.S.A. 21-3402(b). Because we have determined, based on the foregoing analysis, that there was sufficient evidence for the jury to convict Deal of unintentional second-degree murder, we need not further address the arguments made by Deal and the State in their letters of additional authority.
In addition, Deals asserts the following arguments on appeal: that the trial court erred in instructing the jury on "no duty to retreat"; that the trial court erred in admitting prior crimes evidence; that the trial court erred in denying him a continuance on his motions for a new trial; that the trial court violated his constitutional rights by sentencing him to the aggravated sentence in the applicable sentencing grid box; and that the trial court violated his constitutional rights in using his criminal history to increase his sentence. Finding no reversible error, we affirm.
Deal's conviction in this case was based on events that occurred on the night of July 8, 2005, and the early morning of July 9, 2005. A little after 11 p.m. on July 8, 2005, Ric Montoya knocked on Karla Halstead's door and asked if Donnie Irving was there. Halstead explained to Montoya that Irving did not live there. Irving actually lived next door to Halstead. Nevertheless, Halstead noticed that Montoya was intoxicated and was unable to understand what she was telling him. Halstead eventually closed the door and left Montoya standing on her front porch.
Around midnight, Halstead looked out of her kitchen window and saw Montoya and another man wearing dark clothes coming out of the side door of Irving's house. Although Halstead knew Montoya, she did not recognize the other man. Halstead saw the unidentified man walk across the street and throw an object over a 10- to 12-foot dike on the north side of the street. Halstead then saw the unidentified man and Montoya get into a white pickup truck and drive away with the headlights off.
At around 12:43 a.m., a woman called the police and stated that she had just been inside Irving's house and had seen him on the floor. When Officer Gary Bortz arrived at Irving's house, the side door was open. Bortz went inside and saw Irving lying on the floor. Irving was unresponsive, and it appeared that he had lost a large amount of blood. When emergency medical services personnel arrived, they declared Irving to be in very critical condition and transported him to the hospital. Irving was later declared dead.
Officer Kurt Weber, who was helping with the investigation of Irving's homicide, learned that Montoya had been with Deal around the time the incident occurred. When an officer later contacted Deal, Deal agreed to come into the police station to talk with police. Weber and another officer interviewed Deal on the afternoon of July 9, 2005. During the first part of his interview, Deal denied being at Irving's house on the night in question. Nevertheless, after a break in the interview, the officers confronted Deal with the fact that his truck had been seen at Irving's house, that a neighbor had identified Montoya, and that they knew he had been with Montoya that night. Deal then admitted that he had been at Irving's house with Montoya.
Deal told the officers that while he and Montoya were driving around on the night of July 8, 2005, Montoya told him about an incident that occurred between Deal's girlfriend, Michelle Morris, and Irving. Morris had alleged that Irving had kept her at his residence for 3 days during which time Irving had drugged her and had sexually abused her. Deal said that he wanted to get Irving's side of the story, and he and Montoya drove to Irving's house. In his written statement, however, Deal wrote that Montoya had said, "[L]et's go over there and tell him to cool his shit."
According to Deal, Montoya was drunk and initially went to the wrong house. Deal knocked on Irving's door. When Irving answered the door, Deal confronted Irving about the alleged incident with Morris. Deal and Irving argued, and Irving told Deal to "get the fuck out" of his house. Deal told the officers that at that point, Irving picked up a tire tool, which was a metal bar, and swung it at him twice. According to Deal, he was able to block the blows with his arms. Deal pointed to the area on his arms where he blocked Irving's blows, but Weber did not see any injuries, scrapes, or red marks.
Deal told the officers that he kicked Irving in the groin and was able to get the tire tool away from Irving. Deal stated that he struck Irving twice with the tire tool: once in the head and once in the left shoulder area. In his written statement, however, Deal indicated that he struck Irving once in the front right area of his head and another time in his right head and neck area. During his interview, Deal further stated that when Irving fell to the floor, he kicked him "in the ass." According to Deal, Montoya came into the room while he was kicking Irving. Deal stated that Montoya "poked and sliced" at Irving with a fillet knife that belonged to Deal. Deal normally kept the fillet knife above the sun visor in his truck, and Montoya had the knife when he came into Irving's house. Montoya also kicked Irving several times.
Deal told the officers that when he and Montoya tried to leave Irving's house, the front door would not open. Montoya then kicked open the side door, and he and Deal left Irving's house. According to Deal, Montoya handed him the knife he had used on Irving. Deal threw the knife and tire tool over the dike to the north of Irving's house. Deal admitted that when he and Montoya drove away from Irving's house, he did not turn on his headlights until he got down the street.
Deal told the officers that he knew that Irving was hurt but that he did not mean to kill him. Deal stated that no matter what Irving had done, Irving did not deserve to die. A tire tool, which was a bar approximately 18 to 20 inches long, and a fillet knife were later found on the north side of the dike near Irving's house. In addition, officers found a variety of tools, including tire-changing and jack equipment, in Deal's truck.
On July 10, 2005, Deal agreed to do a "walk-through" interview at Irving's house. Once during the interview, Deal referred to the metal bar used during the incident as "my bar." Deal told the officers that his emotions got out of hand when Irving showed disrespect towards his girlfriend. Deal stated that he was not thinking during the incident, that he felt he was defending himself when he hit Irving the first time, and that he struck out of anger when he hit Irving the second time. Deal told the officers that he knew that Irving carried knives and guns and that he believed that Irving might have kept a gun or knife in the corner of the room. During the "walk-through" interview, one of the officers noticed a small red mark on Deal's forearm. Deal flinched when the officer touched it.
Deal was again interviewed on July 11, 2005, at the sheriff's department. During that interview, Deal mentioned that Irving had shown him a squirt gun. On February 15, 2006, a videotaped deposition was taken of Deal. During the deposition, Deal went into great detail about a .38 caliber gun that Irving possessed. Moreover, Deal described a modified paintball gun that Irving owned that shot out steel bullets. This was the first time that Deal had mentioned the .38 caliber gun or the modified paintball gun.
Dr. Lawrence Czarnecki conducted the autopsy on Irving's body. Czarnecki testified that Irving had blunt force injuries to the right and left side of his head; to his chest, abdomen, and shoulder area; and to his legs. According to Czarnecki, Irving sustained a depressed fracture to his head and Irving's skull had been pushed into his brain. Czarnecki noted that Irving had bleeding on the brain surface and within the brain tissue. Czarnecki further testified that Irving sustained four rib fractures and breaks in each forearm. According to Czarnecki, Irving also had lacerations, abrasions, and contusions on his arms, hands, and legs. Czarnecki testified that Irving had a 3/8-inch incision on his right leg but that this injury was not enough to kill Irving. Czarnecki determined that the cause of Irving's death was multiple blunt and sharp force injuries. Nevertheless, Czarnecki testified that Irving's blunt force injuries to his head were enough to kill him.
Deal was initially charged with first-degree premeditated murder in violation of K.S.A. 21-3401(a) or, alternatively, first-degree felony murder in violation of K.S.A. 21-3401(b). Before the conclusion of the preliminary hearing, Deal entered into an agreement with the State to reduce the charge to second-degree "unintentional but reckless" murder in violation of K.S.A. 21-3402(b). Under the agreement, Deal would be allowed to take that charge to trial in exchange for his testimony against Montoya. The trial court instructed the jury on voluntary manslaughter and involuntary manslaughter. The jury ultimately convicted Deal of the second-degree murder charge. Deal was sentenced to 168 months in prison, which represented the aggravated number in the appropriate sentencing grid box.
Sufficiency of the Evidence
First, Deal argues that the State failed to present sufficient evidence to convict him of unintentional second-degree murder under K.S.A. 21-3402(b) because there was no evidence that he acted unintentionally but recklessly. When a defendant challenges the sufficiency of the evidence in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the State, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007).
In distinguishing unintentional second-degree murder, or depraved heart second-degree murder, from involuntary manslaughter, our Supreme Court has stated:
"Depraved heart second-degree murder requires a conscious disregard of the risk, sufficient under the circumstances, to manifest extreme indifference to the value of human life. Recklessness that can be assimilated to purpose or knowledge is treated as depraved heart second-degree murder, and less extreme recklessness is punished as manslaughter. Conviction of depraved heart second-degree murder requires proof that the defendant acted recklessly under circumstances manifesting extreme indifference to the value of human life. This language describes a kind of culpability that differs in degree but not in kind from the ordinary recklessness required for manslaughter." (Emphasis added.) State v. Robinson, 261 Kan. 865, Syl. ¶ 5, 934 P.2d 38 (1997).
Deal contends that all of the evidence presented by the State showed that he had acted intentionally, and not recklessly, in beating Irving. Deal maintains that because neither the State nor the defense presented any evidence that he acted recklessly, this court must vacate his conviction.
Deal relies on several cases where our Supreme Court has held that the evidence did not warrant a lesser included offense instruction on depraved heart second-degree murder. See State v. Cavaness, 278 Kan. 469, 101 P.3d 717 (2004); State v. Jones, 267 Kan. 627, 984 P.2d 132 (1999); State v. Bailey, 263 Kan. 685, 952 P.2d 1289 (1998), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006); State v. Clark, 261 Kan. 460, 931 P.2d 664 (1997); State v. Pierce, 260 Kan. 859, 927 P.2d 929 (1996).
In attempting to analogize those cases to his case, Deal makes the following conditional argument:
"If the evidence in this case, which is factually indistinguishable from the situations in Cavaness, Jones, Bailey, Clark, and Pierce, would be insufficient to warrant an instruction on unintentional second degree murder, then it would be disingenuous to find that the evidence is sufficient to support a conviction for that same crime."
Deal then argues as follows:
"If this Court would have upheld the denial of Mr. Deal's hypothetical request for a lesser included offense instruction because no reasonable jury could find him guilty of unintentional second degree murder based on the evidence presented at trial, then it would be incorrect to allow a conviction for that crime in the present case."
Were the cited cases similar to the present case, we might find some merit in Deal's argument. The five cases relied upon do not, however, persuade us that Deal's contention is correct.
For instance, the cases of Pierce, Bailey, and Clark all involved a person intentionally firing a gun at another individual. Deal ignores what the Bailey court held concerning situations where one person points and fires a gun at another: "We find Pierce controlling in the present case. Bailey cites Pierce but ignores its clear message – a defendant's actions in pointing a gun at someone and pulling the trigger are intentional rather than reckless even if the defendant did not intend to kill the victim." 263 Kan. at 691. Here, Deal did not use a gun during the altercation.
Next, Jones involved a manual strangulation which would have required the defendant to apply at least 4 to 6 minutes of continued pressure to the victim's throat in order to kill her. In determining that the defendant's conduct of strangling the victim to death was comparable to a defendant's actions in pointing a gun at a victim and pulling the trigger, our Supreme Court in Jones stated:
"All the other evidence excludes a theory of reckless second-degree murder. Bagby died when Jones used his hands to grip her neck hard enough to break pliable bone and cartilage structures and long enough – 4 to 6 minutes – to fatally deprive her of oxygen. His actions were intentional and not reckless. Jones' self-serving statement dos not support a reckless second-degree murder instruction. His conduct is indistinguishable from a defendant's action in pointing a gun at a victim and pulling the trigger, which is intentional rather than reckless conduct. [Citation omitted.]" (Emphasis added.) 267 Kan. at 633.
Finally, Cavaness involved a prolonged beating and torture of the victim with the defendant participating in a discussion that they could not let the victim leave for fear of retaliation. At some point during the beating, the group decided that the victim needed to be killed. Quite different from Cavaness, the evidence here failed to show a similar discussion taking place between Deal and Montoya. Moreover, all of the evidence in this case was that the beating occurred right after the initial attack by Irving and in the same room. This is unlike Cavaness where the victim was carried to a different place after he had been rendered unconscious, was beaten further, bound, and then hit again until the stated goal of getting rid of the victim was accomplished.
In pointing out that the victim's death was intentional, our Supreme Court in Cavaness stated:
"By his own admission, Cavaness struck the victim several times, called the neighbor for something to use to tie up the victim, and discussed with the other men the fact that they could not let the victim leave for fear of retaliation. The evidence demonstrated that Cavaness participated in the acts which resulted in Wheeler's death and did so intentionally. Even though Cavaness' testimony provided evidence that he did not intend to kill Wheeler by hitting him with a baseball bat, none of the evidence, even the defendant's own testimony, indicated reckless rather than intentional conduct. [Citation omitted.]" (Emphasis added.) 278 Kan. at 477.
As a result, our Supreme Court concluded that the trial court did not err in refusing to give an instruction on unintentional second-degree murder.
The facts in this case are different from those in Cavaness, Jones, Bailey, Clark, and Pierce. Moreover, those cases presented no factual basis on which a jury might have determined that the conduct of the various defendants was reckless rather than intentional conduct. As a result, Cavaness, Jones, Bailey, Clark, and Pierce are simply not analogous to this case.
The circumstances under which a defendant can commit depraved heart second-degree murder has been outlined by Professor Emil Tonkovich in The Kansas Criminal Code: 1992 Amendments, 41 Kan. L. Rev., Crim. Proc. Ed. 73, 78 (1992):
"'Depraved heart murder includes extremely reckless killings and killings resulting from actions which were intended to inflict serious bodily injury. Examples of depraved heart murder include: (1) killing a child while target shooting at school windows during school hours; and (2) killing a person while beating him with a baseball bat with intent to severely injure him.' 41 Kan. L. Rev., Crim. Proc. Ed. at 78." (Emphasis added.) 261 Kan. at 880.
Professor Tonkovich further noted that depraved heart second-degree murder is fundamentally similar to felony murder. In felony-murder cases, the commission of the underlying felony supplies the extreme recklessness required for criminal liability. Professor Tonkovich noted that the extremely reckless conduct in the above two illustrations is at least as dangerous to human life as most felony-murder situations.
The facts of this case fit squarely within the second highlighted illustration. Although Deal's statements indicated that he did not intend to kill Irving, his use of a tire tool to brutally beat Irving establishes that he had the intent to severely injure him. Deal's conduct of striking Irving in the head (a vital area of a person's body) with a tire tool after having taken it away from Irving showed that Deal had intended to severely injure Irving. Hence, Deal's actions furnished the extreme recklessness towards human life required for the crime of unintentional second-degree murder.
A similar factual scenario was present in Robinson, 261 Kan. 865, where our Supreme Court cited with approval the earlier quoted language from Professor Tonkovich. In Robinson, the defendant (Robinson) was convicted of depraved heart second-degree murder after he killed Richard Crowley, the initial aggressor in the incident, by striking him in the head with a golf club. The incident began when Crowley approached Jeremy Hendrickson and his three friends, one of whom was Robinson, in a park about threats that Hendrickson had made against Crowley's sons. As the confrontation became heated, Crowley hit one of the boys in the face. Crowley eventually got a metal baseball bat out of his truck and chased the boys with it, swinging at them when they got close.
While they were running away from Crowley, each boy grabbed a golf club out of a car in the park. The boys surrounded Crowley and taunted him by calling him names and swinging their clubs at him. Crowley was able to break free from the boys, but one of the boys, Tony Surber, hit Crowley in the back with a golf club. When Surber tripped and fell, Crowley hit him twice with the bat. Hendrickson then struck Crowley twice in the back or in the ribs with a golf club. Surber was able to roll away from Crowley and began to get off the ground. At that time, Robinson fatally struck Crowley in the head with his golf club. Robinson testified that he was not trying to hit Crowley in the head but was trying to hit him in the arms in order to make him stop hitting Surber with the bat. Robinson further testified that he could not remember whether his eyes were open or closed when he hit Crowley.
On appeal, Robinson argued that the evidence was insufficient to convict him of depraved heart second-degree murder for two reasons: (1) because his "extreme indifference" was directed at one specific person, Crowley, and not directed at human life in general; and (2) because he killed Crowley in an imperfect right to self-defense situation. In rejecting the defendant's first argument, our Supreme Court held that the elements of depraved heart murder could be met if the defendant manifested an extreme indifference to the value of one specific human life. Our Supreme Court held that the evidence, which indicated that Robinson swung a golf club at Crowley with great force, intending to hit Crowley, was sufficient for the jury to find that Robinson recklessly killed a person while manifesting an extreme indifference to the value of one specific human life. 261 Kan. at 880-81.
Moreover, determining that Robinson's second sufficiency of the evidence argument lacked merit, our Supreme Court stated:
"Viewing the evidence in the light most favorable to the prosecution, Robinson struck Crowley in the head with the golf club, even though his friend, whom Crowley had struck with a bat, was getting up off of the ground and was no longer in danger. While Robinson testified that he did not aim at any particular part of Crowley's body, the State called a medical expert to the stand who testified that the golf club hit Crowley's head with direct force and was not deflected off any other part of Crowley's body. The jury could have inferred from this testimony that Robinson intentionally aimed for Crowley's head. Even if the jury could not find such intent, the jury could have found that blindly swinging a golf club at a person with great force constitutes extreme recklessness 'manifesting an extreme indifference to the value of human life.'" 261 Kan. at 881.
As a result, our Supreme Court determined that there was sufficient evidence to convict Robinson of depraved heart second-degree murder.
Deal attempts to distinguish Robinson by pointing out that the defendant in Robinson argued that "manifesting extreme indifference to the value of human life" refers to human life in general, not to one specific human life. Deal maintains that it does not appear that the defendant in Robinson raised the issue of whether an intentional blow that results in an unintentional death can support a conviction for unintentional second-degree murder. Nevertheless, this is a distinction without a difference. With his second sufficiency of the evidence argument (imperfect right to self-defense), the defendant in Robinson directly challenged whether, based on the facts of the killing, the evidence was sufficient to convict him of unintentional second-degree murder. See K.S.A. 21-3402(b) (This subsection covers intentional killings that result from an unreasonable but honest belief that deadly force was justified in self-defense.).
Deal also attempts to distinguish Robinson from this case by arguing that there was at least some evidence in Robinson to show that the defendant acted recklessly in striking the victim with the golf club. Deal points to Robinson's testimony that he was trying to hit the victim in the arms and not in the head and that he could not remember whether his eyes were open when he hit the victim. Nevertheless, our Supreme Court in Robinson did not look to only this evidence in determining that there was sufficient evidence to convict Robinson of unintentional second-degree murder. Rather, our Supreme Court determined that the jury could have inferred from the evidence "that Robinson intentionally aimed for Crowley's head." 261 Kan. at 881. Our Supreme Court then went on to state that "[e]ven if the jury did not find such intent, the jury could have found that blindly swinging a golf club at a person with great force constitutes extreme recklessness 'manifesting an extreme indifference to the value of human life.'" 261 Kan. at 881.
Here, as in Robinson, the jury could have determined from the evidence that Deal intentionally aimed for Irving's head when he struck Irving with the tire tool but did not intend to kill him. The jury could have further determined that Deal was attempting to defend himself from Irving's attack when Deal was able to gain control of the tire tool and hit Irving in the head. In rejecting the defendant's sufficiency of the evidence argument in Robinson, our Supreme Court stated:
"The evidence was sufficient in this case for the jury to find that Robinson recklessly killed a person while manifesting an extreme indifference to the value of one specific human life – Crowley's life. The evidence indicated that Robinson swung a golf club at Crowley with great force, intending to hit Crowley." (Emphasis added.) 261 Kan. at 881.
Similar to Robinson, the evidence in this case indicated that Deal swung the tire tool at Irving with great force, intending to hit Irving. The amount of force used by Deal and the number of times that Deal hit Irving showed that Deal recklessly killed Irving "under circumstances manifesting extreme indifference to the value of human life."
After reviewing all of the evidence in the light most favorable to the State, this court is convinced that a rational jury could have found Deal guilty of unintentional second-degree murder beyond a reasonable doubt.
"No Duty to Retreat" Instruction
Next, Deal contends that the trial court erred in instructing the jury on the "no duty to retreat" rule. When a defendant objects to instructions, an appellate court is required to consider the instructions as a whole and not isolate any one instruction. Even if erroneous in some way, instructions are not reversible error if they properly and fairly state the law as applied to the facts of the case and could not have reasonably misled the jury. State v. McKissack, 283 Kan. 721, 732, 156 P.3d 1249 (2007).
At the jury instructions conference, the State requested the trial court to instruct the jury on the "no duty