IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 84,258
STATE OF KANSAS,
Appellee,
v.
GREGORY D. LESSLEY,
Appellant.
SYLLABUS BY THE COURT
1. When the sufficiency of the evidence is challenged, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
2. Except as otherwise provided by statute, constitutional prohibition, or court decision, all relevant evidence is admissible. K. S. A. 60-407(f). The admission of evidence lies within the sound discretion of the trial court. A defendant who asserts that the court abused its discretion bears the burden of showing that the trial court's action was arbitrary, fanciful, or unreasonable.
3. Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party's prejudice.
4. In determining whether the evidence establishes the aggravating circumstance in K.S.A. 21-4636(f) that a crime was committed in an especially heinous, atrocious, or cruel manner for purposes of imposing a hard 40 sentence, the term "heinous" means extremely wicked or shockingly evil; "atrocious" means outrageously wicked and vile; and "cruel" means pitiless or designed to inflict a high degree of pain, utter indifference to, or enjoyment of the sufferings of others.
5. A crime is committed in an especially heinous, atrocious, or cruel manner when the perpetrator inflicts serious mental anguish or serious physical abuse before the victim's death. Mental anguish includes a victim's uncertainty as to his or her ultimate fate.
Appeal from Sedgwick district court; JOSEPH BRIBIESCA, judge. Opinion filed July 13, 2001. Affirmed.
Richard Ney, of Law Offices of Richard Ney, of Wichita, argued the cause and was on the briefs for appellant.
Debra S. Peterson, assistant district attorney, argued the cause, and Charles R. Reimer, assistant district attorney, Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
ABBOTT, J.: This is a direct appeal by defendant Gregory D. Lessley from his conviction by a jury of one count of premeditated first-degree murder and one count of aggravated assault. The trial court imposed a hard 40 sentence plus 13 months' imprisonment. Defendant appeals his conviction and sentence. He raises six issues on appeal.
Lisa Sears died on January 6, 1999, from multiple gunshot wounds to her abdomen. The autopsy showed that she had been struck by five bullets. Defendant admitted that he shot Lisa, but claimed that he intended to kill himself rather than her.
Lisa lived with her sister, Michelle, in the Windemere Apartments complex in Wichita. Lisa was an intensive care nurse at Via Christi-St. Francis. Defendant lived in the same apartment complex in a different building. He and Lisa dated for about 2 years until she told him around the holidays in 1998 that she did not want to see him, at least for awhile.
On January 4, 1999, defendant went to Lisa's workplace with a bouquet of flowers. He demanded to know whom she had been dating. Lisa denied dating anyone and told him to leave because it was inappropriate for him to be there. She told him she would telephone him when she got home, which she did. Michelle overheard Lisa talking to him in a louder-than-usual voice and dominating the conversation, which also was unusual. Lisa told defendant that their relationship was over.
Defendant was very depressed, he did not sleep, and he began to think of suicide. The next morning he approached a Boeing co-worker about buying a gun. He went to his credit union and withdrew $850. He gave his brother, who had asked for a loan, $300 and $550 was for the gun.
The evening of January 5, defendant telephoned his mother, who lived in Derby. He was very depressed and spoke of suicide. According to defendant's mother, though, after they had talked he told her, "I'm going to be all right, I'm okay." Defendant testified that after talking with his mother he paid his bills, wrote a suicide note, and wrote out instructions for care and disposition of his property.
The morning of January 6, defendant dressed and went to Boeing, where he met his co-worker in the parking lot and exchanged money for the gun. The gun, a Kimber .45 automatic, was loaded when he bought it. Instead of going in to work, defendant returned to the apartment complex. It was approximately 6:30 a.m. Defendant saw Lisa's car in the parking lot.
Defendant went to his apartment and familiarized himself with the gun. He pulled the slide back and put a round into the barrel, but did not shoot himself. Defendant testified that he wanted to see Lisa to assure her that it was not her fault that he was going to kill himself.
At approximately 8 a.m., defendant went outside. He waited outside Lisa's building for 15 to 20 minutes. When she did not appear, defendant went back to his apartment and waited until approximately 9 a.m. Defendant went back to Lisa's building, where he saw an acquaintance and told her he was waiting for his brother. He waited near Lisa's building for approximately 10 minutes before going back to his apartment, where he spotted Lisa from his balcony. She was walking her dog. With the gun in his pocket, defendant went out to see her.
Defendant testified that they had talked for approximately 20 minutes before he told her he was going to kill himself. He showed her the gun to impress on her that he was serious. Lisa tried to convince him to get in the car with her so that she could take him to a counselor. He refused.
While Lisa urged him to get rid of the gun, Sarah and Darrell Blackman, who were residents of the apartment complex, drove toward defendant and Lisa. Lisa went out into the street into the path of the Blackman car and raised her hands. She asked them not to drive on by. According to Darrell, Lisa was "[t]errorized, very frightened, scared to death." Sarah rolled down the window on the passenger side of their vehicle. Clutching her little dog, Lisa pleaded with them not to drive away. Defendant took out the gun so that Sarah could see it and told them to keep driving. Sarah testified that defendant was very calm, very determined, and so extraordinarily focused on Lisa that he really did not pay much attention to the Blackmans.
After seeing the gun, Sarah told Darrell to drive on. They drove quickly to the nearest house where they saw a man in his yard with a cellular telephone. Sarah jumped from the vehicle and ran to him. As the man with the telephone was dialing for help, they heard two gunshots. The 911 call was received by the dispatcher at 10:15 a.m. When the Blackmans returned to where Lisa had stopped them, Lisa was lying on the grass. Sarah saw defendant's back as he went around a corner.
Stan Madden, the maintenance man for the apartment complex, was on his golf cart when he heard shots. He drove in the direction of the sound and saw a man standing over a woman. As Madden approached, the man knelt down. Defendant denied to Madden that anything was wrong and then ran away. Madden saw that Lisa was bleeding and in pain. When Lisa raised her head and asked Madden for help, he knelt down, cradled her, and put a coat over her. At the sentencing hearing, Madden testified:
"She was bleeding real bad. She just saidshe told me she didn't want to die. I just told her to hang on. She told me she was real cold and we covered her up and sheshe told me that she loved her mom and her sister. Then she justshe kept saying she was very cold and she didn't want to die."
Madden stayed with Lisa until the police and an ambulance arrived. Sometime later, defendant returned with his hands up and told police, "I did it."
Defendant testified that he raised the gun to kill himself, rather than Lisa, but got dizzy and disoriented. He denied ever wanting to harm Lisa. He testified that when he fired the gun it did not seem real. Defendant felt like he was watching it happen, and it did not seem to him that he was a part of it.
Defendant told the jury that he went back to his apartment to kill himself, but the gun was empty. He tried to load it, did it wrong, and jammed the gun. As he worked to get the misloaded bullet out of the gun, he heard a commotion outside. He testified that looking out and seeing the vehicles and Lisa on the ground made him realize "it was all real." He went outside and surrendered to police.
Defendant described his mental state at the time he shot Lisa as like having a petit mal seizure. He testified that he had a concussion as a small child, which resulted in his having grand mal seizures until he was in his teens. His mother testified that he took medicine to control grand mal seizures from age 18 months to 30 years. Defendant was 41 years of age at the time of trial. After the grand mal seizures ceased, he occasionally had petit mal seizures, which lasted from 1 or 2 seconds to 20 seconds. During the petit mal seizures, he might shake slightly, become disoriented, or be dizzy.
Defendant had suffered periods of depression throughout his life. In 1993, when he and his former wife had separated, he attempted suicide by taking an overdose of acetaminophen, then regretted his action and went to his neighbor's house for help.
Dr. Marilyn Hutchinson, a psychologist who testified on defendant's behalf, believed that defendant's depression on January 6 diminished his ability to plan and diminished his ability to think about anything other than suicide. She identified defendant's sensation of being outside the action and watching Lisa be shot as a psychological defense to overwhelming emotion, which is called disassociation. She testified that she found nothing in her testing and evaluation of defendant, which began March 18, 1999, to indicate that he was angry or resentful at the time he shot Lisa. She concluded that defendant's depression and his obsession with suicide compromised his ability to form intent that would relate to anyone other than himself.
The State's expert witness, William Levine, identified defendant's sensation of being outside the action as depersonalization. He described it as a fairly common psychological experience seen in people with and without mental illness. He testified that it would have nothing to do with a person's ability to form intent because it is nothing more than a perceptual distortion. Further, with regard to intent, Levine testified that he found nothing in the records or from his examination of defendant that would indicate that defendant, because of mental disease or defect, lacked the ability to formulate the intent to kill Lisa or to premeditate her death. Levine also testified that all voluntary muscle movement halts during a petit mal seizure, which in more current terminology is an absence seizure. Thus, a person having an absence seizure would not be capable of squeezing the trigger to fire a gun. A person having an absence seizure, for example, will stop in mid-sentence and in a moment resume right where he or she left off. It is a very brief loss of consciousness which the person having the seizure is not aware of at the time and has no memory of afterward.
Levine believed that defendant's thoughts and plans of suicide were genuine and stated: "I believe he intended to kill himself. I don't think he always intended to kill Lisa Sears. I think that idea occurred to him pretty suddenly . . . when he got angry." Levine explained that his belief that defendant was angry was based on defendant's committing the angry act of shooting Lisa as well as on what the Blackmans observed.
I. SUFFICIENCY OF THE EVIDENCE
When the sufficiency of the evidence is challenged, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Mincey, 265 Kan. 257, 268, 963 P.2d 403 (1998). In the present case, defendant contends that there was insufficient evidence that he killed Lisa deliberately or with premeditation. The Kansas Legislature eliminated the word "deliberately" from the first-degree murder statute, K.S.A. 21-3401, several years before this case arose. See L. 1992, ch. 298, § 3. Defendant contends that the weight of the evidence is not on the side of premeditation, but as we have seen that is not the standard by which this court reviews evidence that has been challenged as insufficient.
To the exclusion of evidence of the events that led up to defendant's shooting Lisa, his argument is based almost entirely on the psychological evidence. He leans heavily on Levine's believing that the idea of killing Lisa occurred to defendant rather suddenly, and he expends quite a lot of effort in trying to refute Levine's belief that defendant was angry. Defendant's argument fails to take into account that the psychological testimony was provided to guide the jurors in their evaluation of the evidence of defendant's conduct.
The State responds with a catalog of evidence of defendant's conduct from which the jury could have inferred that defendant planned to kill Lisa. That evidence includes his buying a gun immediately after Lisa broke off their relationship. The evidence of defendant's conduct the morning before the murder includes his stalking behavior, his preventing Lisa from getting help from the Blackmans, and the lack of provocation. Defendant's explanation for seeing Lisa before he killed himself was that he wanted to assure her that his committing suicide was not her fault, which the jury might well have discounted in light of evidence that he wrote a suicide note in which he could have communicated that assurance and that he carried the gun with him as he sought out Lisa. Defendant's explanation for his shooting Lisa--he had a seizure at the moment he raised the gun to kill himself and Lisa was in the path of the bullets--also may well have been discounted by the jury. The evidence of defendant's conduct after the murder includes his continuing to fire at Lisa after she had been hit and fallen to the ground and his failing to aid her or obtain medical assistance for her once he shot her.
The evidence noted by the State is quite sufficient to support a rational factfinder's determining beyond a reasonable doubt that defendant thought beforehand about killing Lisa and that he came to the conclusion that he would kill her and then did so. There is a possibility that the psychological testimony defendant focuses on might modify a rational factfinder's view of the evidence of defendant's conduct, but by no means would it necessarily affect a rational factfinder's view that defendant was guilty beyond a reasonable doubt.
As a fallback, defendant argues that the State's circumstantial evidence of premeditation improperly relies on compound circumstantial inferences. In other words, defendant contends that premeditation could only be found by the jury's drawing inferences based on inferences. To the contrary, there was evidence of defendant's conduct from which the jury could have inferred directly that he premeditated the killing. Defendant testified that he arranged to purchase a gun the day after Lisa broke off their relationship and that he waited and watched for Lisa on the morning he shot her, the Blackmans testified that defendant prevented Lisa from getting help from them, and defendant denied that there was provocation for his shooting Lisa.
Also, with regard to circumstantial evidence, defendant cites a standard employed by the Florida Supreme Court. In Fisher v. State, 715 So. 2d 950, 952 (Fla. 1998), that court reversed the first-degree murder conviction of a man who had been sentenced to death. Reversal was on the ground that the State's proof did not exclude every reasonable hypothesis that the homicide occurred other than by premeditated design. The principles by which the Florida court measured the evidence are as follows:
"Premeditation is more than a mere intent to kill; it is a fully formed purpose to kill. [Citation omitted.] Premeditation may be proved by circumstantial evidence. [Citation omitted.] However, premeditation sought to be proved by circumstantial evidence must be inconsistent with every other reasonable inference. [Citation omitted.] If the State's proof fails to exclude a reasonable hypothesis that the homicide occurred other than by premeditated design, a verdict of first-degree murder cannot be sustained." 715 So. 2d at 952.
In State v. Wilkins, 215 Kan. 145, 156, 523 P.2d 728 (1974), this court overruled case law requiring an instruction that paralleled the Florida court's principles:
"We hold an instruction on circumstantial evidence, which cautions the jury that a defendant should not be found guilty unless the facts and circumstances proved exclude every reasonable theory of innocence or states that the jury cannot convict the defendant on circumstantial evidence unless the circumstances exclude every reasonable hypothesis of his innocence, is unnecessary when a proper instruction on 'reasonable doubt' is given; and we overrule State v. White, 211 Kan. 862, 508 P.2d 842, and all other decisions in which this court has required a special instruction on circumstantial evidence."
In the present case, the jury was given the pattern instruction on burden of proof, presumption of innocence, and reasonable doubt. See PIK Crim. 3d 52.02.
II. AGGRAVATED ASSAULT CHARGE
K.S.A. 21-3408 and K.S.A. 21-3410 provide that an aggravated assault "is intentionally placing another person in reasonable apprehension of immediate bodily harm" committed with a deadly weapon. The jury was instructed on the aggravated assault charge that the State had to prove defendant intentionally placed Sarah Blackman in reasonable apprehension of immediate bodily harm and used a deadly weapon. Defendant contends that Sarah denied believing that he posed an immediate threat to her and that her denial precluded the State from proving a necessary element of the aggravated assault charge.
Sarah testified: "I was looking at her and he reached around on his right side and he took out a gun and he held it in his hand towards me and said keep driving." She said that defendant produced the gun from his right side. When defendant spoke to Sarah, he had his hand in front of him and the gun was lying in his hand with the barrel pointed at her or slightly to Sarah's left. Defendant was looking at Sarah. Defense counsel's cross-examination of Sarah included the following:
"Q. And you didn't perceive that as a threat to you, did you?
"A. No. As long as I didn't get involved.
"Q. Okay. But you didn't sense that he was pointing it to you like a threat?
"A. No.
"Q. And you didn't think he was going to hurt you?
"A. As long as I didn't get involved.
"Q. Right. But you didn't think immediately at that point that he was intending to hurt you?
"A. No."
On redirect examination, Sarah explained what she meant when she said that she did not believe that he would hurt her unless she got involved: "I meant that if we had stopped to get involved I felt with this man holding a gun that, yes, our lives would be at stake. I felt very threatened." Then on recross-examination, Sarah agreed that defendant had not verbally threatened her life. She also agreed with defense counsel that "[h]arm was not being immediately threatened against" her.
Defendant relies on State v. Warbritton, 215 Kan. 534, 527 P.2d 1050 (1974). Defendant Warbritton and his wife, Carol, lived with her parents, Mr. and Mrs. Bailey. Warbritton shot and wounded Carol. When he emerged from the younger couple's bedroom, Mrs. Bailey picked up the Warbritton baby and returned to the living room. Defendant then entered the living room, took a weapon off the wall, and pointed a gun at Mrs. Bailey as she held the baby. Warbritton was convicted of aggravated battery of Carol and aggravated assault of Mrs. Bailey. He argued on appeal that the State failed to prove an essential element of aggravated assault--that Mrs. Bailey was placed in fear of bodily harm. Defendant's mother-in-law testified that "she did not fear for her own safety; that she didn't think [defendant] would hurt her." 215 Kan. at 536. The State's first contention was that Mrs. Bailey's apprehension for the safety of the baby, a third person, constituted aggravated assault, and the court rejected it. "The apprehension of bodily harm to which the statute alludes must be the fear of the victim--the person who is assailed--for his or her own safety." 215 Kan. at 537. The State's fallback position was that "the circumstances under which the assault was made provide a sufficient basis for a finding that Mrs. Bailey 'was in immediate apprehension of bodily harm to herself.'" 215 Kan. at 537. The court rejected the State's second argument, too:
"We might agree that the atmosphere was heavily fraught with danger and was threatening enough to have induced apprehension on the part of Mrs. Bailey for her personal safety. However, Mrs. Bailey consistently denied while she was on the stand that she had any fear for herself; that she thought Mr. Warbritton would not harm her. She testified she was not scared for herself because she knew the way she was holding the baby, that the defendant would hit it instead of herself, if he pulled the trigger. In the face of positive testimony such as this we cannot say . . . that the circumstances were such that, as a matter of law, Mrs. Bailey had fear for herself." 215 Kan. at 537-38.
Two justices dissented on the following ground:
"Whether the mother-in-law was in immediate apprehension of personal bodily harm was a question for the jury to decide. What a person says about his fear or apprehension long after the incident occurred is not controlling. Actions may speak louder than words. On appeal if there is any sound basis in the evidence for a reasonable inference that Mrs. Bailey had fear and apprehension when the incident occurred it is our appellate duty to affirm the conviction . . . ." 215 Kan. at 538.
In summary, Sarah was less than 3 feet from a man with a gun. She had been placed in that position because Lisa had stopped their car. Lisa was crying and pleading with them to please not drive by, to please help her, and Sarah stated that she would help her. Sarah then inquired as to what was going on, at which point defendant reached around on his right side, took out a gun, and held it in his hand. Sarah testified that she panicked and said, "[O]h, my God, drive, drive, keep driving, he's got a gun." This is a statement that the jury may well have found was made before defendant told them to keep driving. When the Blackmans drove to look for a telephone, Sarah testified that she (Sarah) was still hysterical.
Darrell testified that Sarah asked him to drive on and that she was frightened. He indicated that Lisa was "[t]errorized, very frightened, scared to death, very frightened," and that Lisa said, "Just please don't drive by. She either said I'm in trouble or in danger, one of that." To that, Sarah replied, "We will not drive by, we will help you, we'll stay here." But then, Sarah again "asked him to drive on" and, as he started to do so, she said "he [defendant] had a gun."
Experienced counsel for defendant was able to point out some inconsistencies in the testimony of the two witnesses, but nothing that a jury would have to find persuasive.
It seems only reasonable that a jury would find Sarah was frightened and that if she did not comply with defendant's demand that she and her husband leave the area, she would be harmed. Sarah obviously had great fear for her safety and well-being. Under the circumstances, we have no difficulty in concluding that when the evidence is viewed in the light most favorable to the prosecution, a rational factfinder could have found defendant guilty beyond a reasonable doubt of the crime of aggravated assault. The fact Sarah testified that she did not feel threatened as long as she complied with defendant's demands would not change the result under the facts of this case.
III. PAST INCIDENTS OF DEFENDANT'S ANGRY AND VIOLENT BEHAVIOR
Except as otherwise provided by statute, constitutional prohibition, or court decision, all relevant evidence is admissible. See K.S.A. 60-407(f); State v. Smallwood, 264 Kan. 69, 84, 955 P.2d 1209 (1998). The admission of evidence lies within the sound discretion of the trial court. Defendant, who asserts that the court abused its discretion, bears the burden of showing that the trial court's action was arbitrary, fanciful, or unreasonable.
On appeal, defendant complains of the admission over objection of the following evidence: (1) the prosecutor's questioning defendant about two workplace incidents that resulted in defendant's being "written up"; (2) his former wife's testimony of verbal and physical abuse; and (3) the prosecutor's questioning defendant about his former wife's testimony. Defendant contends that the State secured admission of the evidence on false bases, his former wife's testimony was false, and the evidence of workplace incidents was blown out of proportion. The State's position is that the evidence was properly admitted for the purpose of rebutting the defense theory that defendant was a self-blaming person whose anger was not directed at others, and that his conduct on the morning he killed Lisa accordingly was self-blaming and nonaggressive.
a. Workplace incidents. Out of the presence of the jury, the trial court heard arguments on admission of evidence of workplace incidents. The State sought to introduce evidence of formal reprimands stemming from two incidents in 1990 and 1991. The trial court's statement of the issue centers on the legal defense of mental disease or defect that would cause defendant to lack the capacity to form premeditation or intent to kill the victim:
"May specific instances of conduct be used not to impeach a defendant's claim of having a character trait for nonviolence or anger toward others but as substantive evidence to rebut defendant's defense of a mental disease or defect when the defendant's expert has testified that [they were] a basis for her opinion that the defendant did not have the capability to form the requisite criminal intent at the time of the crime[?] It was her belief that the defendant's repressed anger was of the type that did not manifest itself in the form of violence toward other people."
The trial court based its admission of the evidence on State v. Cramer, 17 Kan. App. 2d 623, 841 P.2d 1111 (1992).
In Cramer, Janette Cramer's defense for killing her husband was battered woman's syndrome. The State countered Cramer's psychiatrist's testimony with the testimony of another psychiatrist whose opinion that Cramer did not suffer from the syndrome was based in large measure on the contested evidence of specific instances of conduct. The State's expert witness stated that the incidents where Cramer kicked a vulnerable man, fought with another woman at a wedding party, and "crossed swords" with a tavern bouncer were "inconsistent with those characteristics associated with the battered woman's syndrome." 17 Kan. App. 2d at 626-27. The Court of Appeals concluded:
"The evidence of past conduct by defendant was certainly not complimentary to her. However, defendant opened the door to such testimony by her reliance on the battered woman's syndrome as a defense. The State had every right to rebut that defense, and it did so, in part, by using specific instances of past conduct between defendant and third parties. Indeed, these specific instances were relied upon by the State's expert to support her opinion that defendant did not suffer from the battered woman's syndrome. While the evidence may have been prejudicial, it was certainly probative to the issue at hand. The evidence complained of was proper rebuttal.
'Rebuttal evidence is that which contradicts evidence introduced by an opposing party . . . . [I]t may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract or disprove testimony or facts introduced by or on behalf of the adverse party . . . . The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party's prejudice.' State v. Richard, 235 Kan. 355, Syl. ¶ 1, 681 P.2d 612 (1984).
"In the final analysis, the trial court determined that the probative value of the evidence outweighed the prejudicial effect of that evidence. This was a proper decision for the trial court, and we will not substitute our judgment for that of the trial court on this issue." 17 Kan. App. 2d at 627-28.
Defendant would distinguish Cramer on the ground that in Cramer, the State's expert witness directly addressed in her testimony the evidence of Cramer's conduct. Defendant's point is that in Cramer the specific incidents of prior conduct were admitted as part of the expert testimony for and against the state-of-mind defense theory. In contrast, in the present case the specific incidents of prior conduct were not the subject of testimony by the State's expert witness.
In the present case, defendant admitted the workplace incidents and testified that he could not remember whether he had advised his expert psychological witness, Dr. Hutchinson, of them. Through this line of inquiry, the State showed that the expert opinion on which the defense theory was based may have been formulated without complete information. Thus, although the circumstances in which the evidence was admitted in this case differed somewhat from those in Cramer, there is no error in admission of evidence of the workplace incidents.
b. Former wife's testimony and inquiry