IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 90,954
STATE OF KANSAS,
Appellee,
v.
THOMAS J. DRENNAN, JR.,
Appellant.
SYLLABUS BY THE COURT
1. Where a defendant does not object to the giving of or failure to give a lesser included offense instruction, stating distinctly the matter to which he or she objects and the grounds of his objection, an appellate court will find reversible error only if the giving of the instruction or the failure to give the instruction was clearly erroneous.
2. Instructions are clearly erroneous only if the appellate 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.
3. An issue incidentally raised on appeal but not briefed may be considered abandoned.
4. A trial court must instruct the jury on a lesser included offense where there is some evidence which would reasonably justify a conviction of the lesser offense. If the defendant requests the instructions, the trial court has a duty to instruct the jury regarding all lesser included crimes that are established by the evidence, regardless of whether the evidence is weak or inconclusive. On review, the appellate court views the evidence in the light most favorable to the defendant. However, the duty to so instruct arises only where there is evidence supporting the lesser included offense. An instruction on a lesser included offense is not required if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented.
5. Evidence of a defendant's voluntary intoxication alone will not justify an instruction on reckless second-degree murder as a lesser offense of premeditated first-degree murder.
6. Under the facts of this case, where the victim died after suffering injuries consistent with manual and ligature strangulation for a period of at least 4 minutes and with such force that blood and oxygen to the brain were cut off, it was not error to fail to or refuse to give instructions on reckless second-degree murder and involuntary manslaughter as lesser included offenses of first-degree murder.
7. To admit other crimes evidence under K.S.A. 60-455, three requirements must be met. First, the evidence must be relevant to prove one of the facts listed in the statute. Second, that fact must be a disputed, material fact. Third, the probative value of the evidence must outweigh its potential prejudicial effect. If these requirements are met, the scope of appellate review is limited to whether the trial court abused its discretion.
8. Where the defendant's actions are susceptible to several possible interpretations, including that he or she acted with premeditated intent to kill, with unpremeditated intent to kill, or with neither premeditation nor intent to kill because of his or her level of intoxication, it is not an abuse of discretion to admit evidence of a previous crime which had striking similarities to the crime at issue.
9. On a motion to suppress evidence, this court reviews the facts underlying the trial court's suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. Although the court does not reweigh the evidence, the ultimate determination of suppression is a legal question requiring independent determination.
10. A search conducted without a warrant is per se unreasonable unless it meets one of several recognized exceptions to the warrant requirement: consent; search incident to a lawful arrest; stop and frisk; probable cause to search accompanied by exigent circumstances; the emergency doctrine; inventory searches; plain view; or administrative searches of closely regulated businesses.
11. There is a three-part test for when the emergency doctrine exception for a warrantless search applies: (1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) the search must not be primarily motivated by intent to arrest and seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. The state has the burden of satisfying each element. The reasonableness of the officer's belief is determined by an objective standard, i.e., is there evidence which would lead a prudent and reasonable officer to see a need to act.
12. A public safety exception exists to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence, and the availability of that exception does not depend upon the motivation of the individual officers involved. The doctrinal underpinnings of Miranda do not require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety, including the safety of a possible victim.
13. In reviewing a challenge under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), concerning the State's use of a peremptory challenge, the applicable appellate standard of review is whether the trial court abused its discretion in determining if the challenged strikes were constitutionally permissible. Judicial discretion is abused only when exercised in an arbitrary, fanciful, or unreasonable manner, or in other words, when no reasonable person would take the view adopted by the trial court.
14. The Batson analysis involves a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. The prosecutor is only required to put forth a facially valid reason for exercising a peremptory strike to satisfy the second step of the Batson analysis. Finally, the trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination.
15. On appeal, the reviewing court is required to accept as true the statements of fact given by the prosecutor for purposes of determining whether the prosecutor gave race-neutral reasons for the strike if the defendant failed to object to the statement.
16. Where the trial court has ruled on the ultimate question of discrimination, the preliminary issue of whether the defendant made a prima facie showing of discrimination becomes moot.
17. With regard to the second step of the Batson analysis, the State's race-neutral explanation need not be persuasive or even plausible, it need only be facially valid. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.
18. Multiple trial errors may require reversal of a defendant's conviction if the cumulative effect of the errors substantially prejudiced the defendant and denied him or her a fair trial.
19. Where a defendant challenges the sufficiency of the evidence establishing the existence of an aggravating circumstance in a hard 50 sentencing proceeding, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence.
20. Where a defendant challenges a trial court's refusal to find a mitigating circumstance, the standard of review is whether, after a review of all the evidence, viewed in a light most favorable to the defendant, a rational factfinder could have found by a preponderance of the evidence the existence of the mitigating circumstance. Where a mitigating circumstance is not enumerated in the statute, a trial court's decision that such a circumstance is not truly a mitigating circumstance is within the trial court's discretion and will not be disturbed on appeal absent an abuse of discretion.
21. The trial court's weighing of aggravating and mitigating circumstances is within its sound discretion and will not be disturbed on appeal absent an abuse of discretion.
22. Kansas' hard 50 sentencing scheme is constitutional.
Appeal from Sedgwick district court; TERRY L. PULLMAN, judge. Opinion filed December 17, 2004. Affirmed.
Cory D. Riddle, assistant appellate defender, argued the cause and was on the brief for appellant.
Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion was delivered by
LUCKERT, J.: A jury convicted Thomas J. Drennan, Jr., of the first-degree murder of his girlfriend. The trial court sentenced Drennan to a hard 50 life sentence. Drennan appeals his conviction and sentence, arguing the trial court erred in: (1) not giving instructions on lesser included offenses of reckless second-degree murder, voluntary manslaughter, and involuntary manslaughter; (2) admitting evidence of prior bad acts; (3) not suppressing evidence obtained after he was handcuffed, including his statements made before Miranda warnings, and evidence obtained after a warrantless entry into a home to check the welfare of a possible victim; (4) denying Batson challenges; and (5) imposing a hard 50 sentence.
Facts
At about 2:30 a.m. on August 19, 2002, Jason Levine was awakened by loud banging noises outside his house. Levine saw his neighbor's boyfriend, Thomas Drennan, outside and confronted him, asking him what was going on. Drennan told Levine to mind his own business and a verbal altercation ensued. While the men were arguing, Levine saw his neighbor, Shelbree Wilson, come out of her house. Shelbree told Drennan to "shut up and get back inside." Drennan then grabbed Shelbree by the shoulder and neck and pushed her back into the house. Levine heard Shelbree scream, heard "a little bit of a ruckus," and then silence. Levine called 911.
Officers Piner and McKee were dispatched to the scene at around 2:50 a.m. for a domestic violence disturbance. Officer Piner had responded to a prior domestic violence disturbance call at the same residence in June 2002, about 2 months earlier. During the investigation of that incident, Shelbree told Officer Piner she was afraid of Drennan and wanted him out of her life and her home but was not sure how to do that. Officer Piner told Shelbree she could apply for a protection from abuse (PFA) order.
When the officers arrived at the home on the night in question, they first spoke with Levine, who described what he had seen and heard. Officer Piner then went to the front door and knocked and rang the doorbell while Officer McKee went around to the side of the garage. Officer Piner received no response to her knocking and heard nothing, so she joined McKee. Through an open exterior door into the garage, the officers then saw Drennan step out of the house and into the garage. The officers asked Drennan to step outside and speak with them, but Drennan was initially unresponsive. He seemed oblivious to the officers' presence. Drennan appeared very sweaty and was wearing only shorts, no shirt or shoes. When Drennan finally came outside, Officer McKee asked him what was going on and where his wife was. Again, Drennan did not respond. Drennan had a glazed-over look and appeared agitated; he also had an odor of alcohol about him.
Officer McKee asked Drennan to turn around so he could pat him down for weapons. Drennan was not cooperative and tried to pull away, so both officers physically restrained him and placed him in handcuffs. Officer McKee again asked Drennan where his wife was, and Drennan responded, "Fuck you," and, "I was going to give you some information, but now you'll just have to wait and see." When asked what he meant, Drennan said, "It will come out, it'll come out."
Officer Piner also asked Drennan where Shelbree was. Drennan told her, "She's not here." When the officer asked again, Drennan said he was not going to tell her. Officer Piner then called her sergeant and received permission to enter the house to check on Shelbree's welfare. She found Shelbree in a bedroom lying face down on the floor. Shelbree was unconscious but still breathing. Officer Piner saw that a cord from a floor fan was wrapped around Shelbree's neck with the plug end of the cord wrapped up in Shelbree's hair. In checking to make sure the cord was not choking her, Officer Piner found that Shelbree's fingers were wrapped around the cord.
Approximately 14 hours after she was admitted to the hospital, Shelbree was declared brain dead. Forensic pathologist Dr. Mary Dudley, who conducted the autopsy, testified that the cause of death was lack of oxygen to the brain due to strangulation. Shelbree had a variety of abrasions and contusions; some of her more serious injuries included multiple rib fractures, a small laceration of the liver, and hemorrhaging of the neck muscles. The left side of the hyoid bone (the bone above the Adam's apple) was fractured, a condition seen almost exclusively as a result of manual strangulation. Shelbree also had bruising on her fingertips consistent with trying to pull a cord or ligature away from her neck. In Dr. Dudley's opinion, Shelbree died as a result of strangulation and that strangulation could have been a combination of ligature and manual strangulation. A ligature alone, however, would not have caused the fracture of the hyoid bone. Also, there were no ligature marks on Shelbree's neck. Dr. Dudley also testified that it would have taken at least 4 minutes of continuous pressure blocking blood and oxygen from reaching Shelbree's brain before brain death occurred. After 4 minutes, the damage was irreversible.
At trial, the State introduced evidence that Shelbree had obtained two prior PFA orders against Drennan in the months before the murder, although each had been later dismissed. In one of the supporting affidavits, Shelbree had alleged: "Tom Drennan put his hands around my neck to choke me Saturday night. He also told the neighbors that if they saw him walking out of the house with an axe and blood all over him that they were to call 911 because my body would be in the lake."
The State also called Stacy Barnes, a former girlfriend of Drennan's, who testified about an incident that had occurred when Drennan was living with her. Barnes testified that on January 22, 1999, Drennan attacked her during an argument. Drennan had two broken legs from an auto accident and was in a wheelchair, but he managed to push Barnes down on the bed and lay on top of her putting his hands on her face and neck. He squeezed Barnes' neck with one hand and covered her mouth and nose with the other so that she could not breathe. Drennan told Barnes over and over that he was going to kill her. He told her, "In about five seconds, you're going to be dead," and counted down the seconds. He told her to prepare to die and get ready to take her last breath. After about 5 to 7 minutes, Barnes was finally able to break free after striking Drennan over the head with a cordless phone. As a result of this incident, Drennan pled no contest to disorderly conduct in city court.
On the night of Drennan's arrest in this case, Drennan was interviewed by police and a videotape of that interview was played for the jury. In his statement to police, Drennan said that he and Shelbree had been arguing and Shelbree had hit his back. Drennan said he and Shelbree began fighting and the fight moved into the bedroom. Drennan grabbed Shelbree around her chest from behind in an attempt to restrain her, and his hold slipped up to her throat area in what Drennan described as a "choke hold." The two rolled around on the bed, and Shelbree continued to try to hit Drennan. Drennan ran out of the room to get away from Shelbree, and when he went outside, the police had arrived.
At trial, Drennan testified that he could remember nothing of the fight with Shelbree because he was in an alcoholic blackout. Drennan explained that he had been using cocaine regularly, but could not find any cocaine on the day in question, so he drank more alcohol to compensate for the withdrawal symptoms he was experiencing. Drennan stated that he began drinking in the late afternoon hours and continued until around 1:30 a.m. A friend who gave Drennan a ride to Shelbree's home at that time described Drennan as extremely intoxicated, unsteady on his feet, and not very coherent.
Did the Trial Court Err in Refusing to Instruct the Jury on the
Lesser Included Offenses of Reckless Second-Degree Murder,
Voluntary Manslaughter, and Involuntary Manslaughter?
Drennan was charged with first-degree premeditated murder. The trial court instructed the jury on that offense and on the lesser included offense of second-degree intentional murder. The court also instructed the jury that voluntary intoxication could be a defense to either first-degree or second-degree murder if the evidence showed that intoxication impaired Drennan's mental faculties to the extent he was incapable of forming the necessary state of mind of premeditation or the necessary intent to kill.
Drennan argues that the trial court denied him a fair trial when it refused to instruct on the lesser included offenses of reckless second-degree murder, voluntary manslaughter, and involuntary manslaughter. The record is not clear as to whether Drennan requested an instruction on voluntary manslaughter. During the instruction conference, defense counsel stated, "I'm not going to argue the voluntary manslaughter. We can't say, I think based on the evidence that we put forth that there's any evidence of a sudden quarrel or argument with the exception of, I would say just once again the video taped testimony that said we got into it, then just kind of ended there."
Where a defendant does not object to the giving of or failure to give a lesser included offense instruction, stating distinctly the matter to which he or she objects and the grounds of the objection, this court will find reversible error only if the giving of the instruction or the failure to give the instruction was clearly erroneous. See State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001); K.S.A. 2003 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." Evans, 270 Kan. 585, Syl. ¶ 3.
In addition, Drennan's appellate brief mentions voluntary manslaughter only in the heading of an issue; he does not make any argument as to voluntary manslaughter in the substance of the brief. Rather, Drennan focuses on whether there was evidence that his behavior might have been reckless rather than intentional. An issue incidentally raised but not briefed may be considered abandoned. State v. Hunt, 275 Kan. 811, 821, 69 P.3d 571 (2003). Thus, Drennan failed to preserve the issue of whether the trial court erred when it did not give a lesser included offense instruction on voluntary manslaughter.
The record does reflect that during the instruction conference Drennan's counsel clearly requested instructions on the lesser included offenses of reckless second-degree murder and involuntary manslaughter. Drennan's appellate counsel suggests that trial counsel's remarks were also sufficient to preserve a request on voluntary manslaughter.
A trial court must instruct the jury on a lesser included offense "where there is some evidence which would reasonably justify a conviction" of the lesser offense. K.S.A. 2003 Supp. 22-3414(3). "If the defendant requests the instructions, the trial court has a duty to instruct the jury regarding all lesser included crimes that are established by the evidence, regardless of whether the evidence is weak or inconclusive." State v. Hoge, 276 Kan. 801, 805, 80 P.3d 52 (2003). On review, the appellate court views the evidence in the light most favorable to the defendant. State v. McClanahan, 254 Kan. 104, 109, 865 P.2d 1021 (1993). "However, the duty to so instruct arises only where there is evidence supporting the lesser crime." State v. Spry, 266 Kan. 523, 528, 973 P.2d 783 (1999). An instruction on a lesser included offense is not required if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented. Hoge, 276 Kan. at 805.
Even if we consider counsel's ambiguous statements at the instruction conference as sufficient to preserve the issue of whether an instruction on voluntary manslaughter should have been given, there was no evidence to support the elements of that crime. At most, Drennan points to evidence that he and Shelbree were involved in some kind of struggle or altercation when she was killed. Voluntary manslaughter includes the intentional killing of a human being upon a sudden quarrel or in the heat of passion. K.S.A. 21-3403(a). However, to constitute voluntary manslaughter, the killing must have resulted from severe provocation. "The test for whether severe provocation exists is objective, and the provocation must be sufficient to cause an ordinary person to lose control of his or her actions or reason." State v. Bell, 266 Kan. 896, 918, 975 P.2d 239, cert. denied 528 U.S. 905 (1999). There was no evidence presented that Drennan was severely provoked; thus, the trial court's failure to instruct the jury on voluntary manslaughter was not error, much less clear error as is the standard since the instruction on voluntary manslaughter was not clearly requested.
Drennan did clearly preserve his request for instructions on reckless second-degree murder and involuntary manslaughter. However, the trial court determined there was no factual basis to support the element of recklessness and refused to give instructions on reckless second-degree murder and involuntary manslaughter. Specifically, the trial court ruled:
"On the issues of second degree reckless, involuntary manslaughter, I don't find that there is any factual basis to submit the issue of recklessness to the jury. On both cases, the evidence of ligature and/or manual strangulation in the time frame given by Dr. Dudley to cause the mechanism of irreversible brain death, I think she said four or more minutes, at least four minutes, in no way could equate to reckless conduct. It had to be more than that. That the conduct is more than reckless conduct.
"In addition, the testimony of Mr. Drennan doesn't give me any factual foundation upon which to find any basis in the evidence to render to the jury the issue of reckless conduct. On that basis I'm not going to give the defense's requested instruction of second degree reckless or unintentional. Nor am I going to give the defense's requested involuntary manslaughter instruction."
The State relies primarily upon State v. Jones, 267 Kan. 627, 984 P.2d 132 (1999), in support of its argument that the evidence in this case excluded a theory of reckless murder as required for both second-degree murder and involuntary manslaughter. See K.S.A. 2003 Supp. 21-3402(b) (defining reckless second-degree murder, or "depraved heart" murder, as the killing of a human being committed "unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life"); K.S.A. 2003 Supp. 21-3404 (defining involuntary manslaughter, as applicable to this case, as the unintentional killing of a human being committed recklessly).
The facts of Jones were similar to the facts in this case. In Jones, the defendant manually strangled the victim to death. The coroner testified it would have taken approximately 4 to 6 minutes for the victim to die. The defendant claimed he did not intend to kill the victim but that he had just "snapped." 267 Kan. at 633. Jones was charged with premeditated first-degree murder, and the trial court instructed the jury on the lesser included offenses of intentional second-degree murder, voluntary manslaughter, and involuntary manslaughter.
On appeal, Jones argued that the trial court erred in refusing to give an instruction on reckless second-degree murder. The court rejected Jones' argument, stating:
"When the evidence in this case is viewed in the light most favorable to defendant, as it must be on a question of instructing on lesser included offenses, it does not support an instruction on reckless second-degree murder. Jones told police that he killed Bagby when he threw her to the floor. His statement, however, cannot be reconciled with the autopsy results and the coroner's conclusion that her death was the result of manual strangulation, which took 4 to 6 minutes. Jones' self-serving statement is the only evidence that would tend to support an instruction on reckless second-degree murder. In light of all the other evidence, in particular the objective findings of the pathologist, defendant's statement is insubstantial and insufficient to support a theory of unintentional killing. [Citation omitted.] 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 does 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.] In State v. Rupe, 226 Kan. 474, 477-78, 601 P.2d 675 (1979), where defendant argued that his use of hands was 'insufficient to prove an intent to kill,' the court referred to strangulation as 'a most effective means of killing.'" 267 Kan. at 633.
Jones further argued that he was incapable of forming the intent to kill the victim because of his use of alcohol and cocaine. The court rejected this argument as follows:
"What Jones' argument does not take into account is that an intoxicated defendant's being incapable of forming the intent to kill does not transform his or her conduct into conduct so reckless in the circumstances as to manifest extreme indifference to the value of human life. In other words, intoxication can eliminate intent to kill so that the killing is unintentional under the law, but it may not supply the extreme recklessness element of unintentional second-degree murder. Thus, evidence of voluntary intoxication alone will not justify an instruction on reckless second-degree murder as a lesser offense of premeditated first-degree murder." 267 Kan. at 634.
Drennan argues that this case is factually distinguishable from Jones because Jones involved manual strangulation while, in this case, Drennan placed Shelbree in a "choke hold" from behind during a physical confrontation between them. Drennan contends a reasonable jury could have found that he recklessly choked Shelbree by attempting to restrain her in too aggressive a manner and by keeping her in the "choke hold" too forcefully and for too long. Drennan also argues a reasonable jury could have found that his intoxication impaired his judgment and caused him to act recklessly. Instead, because the jury was instructed only on first-degree premeditated murder and second-degree intentional murder, Drennan contends the jury was unfairly forced to either convict Drennan of intentional murder or acquit him.
Drennan's argument ignores some crucial facts, all of which point to intentional rather than reckless behavior. Shelbree was found with an electric cord around her neck; her fingers were bruised from trying to pull that cord away from her neck. Her injuries were consistent with a combination of manual and ligature strangulation. Furthermore, even accepting Drennan's version of the facts as true, placing someone in a "choke hold" with such force that it breaks the hyoid bone and causes hemorrhaging of the neck muscles and for such a length of time (at least 4 minutes) that blood and oxygen to the brain are cut off cannot be deemed anything but intentional behavior. Drennan's attempt to differentiate between a "choke hold" and manual strangulation is not convincing. This case cannot be distinguished from Jones. As in Jones, the trial court's refusal to give instructions based upon reckless rather than intentional behavior was not error.
Did the Trial Court Err in Admitting K.S.A. 60-455 Evidence of
Drennan's Prior Violent Abuse of a Former Girlfriend?
The State filed a pretrial motion to allow the introduction of K.S.A. 60-455 evidence of Drennan's prior attack on Stacy Barnes as relevant to prove intent. Although the trial court did not know what Drennan's defense was going to be, the court noted a possible defense was "that you didn't intend to strangle. That the strangling did occur, that it might have been something innocent gone bad." On that basis, the trial court granted the State's motion, finding that the incident with Barnes "does seem to directly impact on intent and premeditation." The trial court gave the appropriate limiting instruction, telling the jury it could consider evidence that Drennan had committed prior crimes only for the purpose of proving intent.
To admit other crimes evidence under K.S.A. 60-455, three requirements must be met. First, the evidence must be relevant to prove one of the facts listed in the statute; in this case, intent. Second, that fact must be a disputed, material fact. Third, the probative value of the evidence must outweigh its potential prejudicial effect. "If these requirements are met, the scope of appellate review is limited to whether the trial court abused its discretion. [Citation omitted.]" State v. Boorigie, 273 Kan. 18, 34, 41 P.3d 764 (2002).
When admitting other crimes evidence to prove intent, the crucial distinction is not whether the crime is a specific or general intent crime, but whether the defendant has claimed his or her acts were innocent. "The relevancy of a prior conviction to the offense charged is linked to the sim