IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 92,731
STATE OF KANSAS,
Appellee,
v.
KENNETH M. COOK,
Appellant.
SYLLABUS BY THE COURT
1. The Sixth Amendment to the United States Constitution sets forth an accused's right to a fair trial in a criminal action. The statutory prohibition of K.S.A. 60-441 against impeachment of a jury verdict does not apply when a party claims that his or her constitutional right to a trial by jury pursuant to § 5 of the Kansas Constitution Bill of Rights has been violated by jury misconduct.
2. In a criminal case, the decision to grant or deny a continuance is within the discretion of the trial court, and its decision will be affirmed unless the trial court abused its discretion.
3. K.S.A. 22-3501(1) provides that a court on motion of a defendant may grant a new trial to him or her if required in the interest of justice. A motion for a new trial based on the ground of newly discovered evidence may be made within 2 years after final judgment. An abuse of discretion standard applies to the trial court's decision on a motion for new trial based on newly discovered evidence.
4. If a defendant's constitutional right has been violated during a trial, a judge's discretion to deny a motion for a new trial or a motion to recall a jury is limited. At this point, there is a greater importance for the judge to articulate the reasons for his or her "discretionary" decision.
5. The test for determining whether a new trial is warranted on the ground of newly discovered evidence has two parts: (1) whether the defendant has met the burden of establishing that the newly proffered evidence could not with reasonable diligence have been produced at trial, and (2) whether the evidence is of such materiality that it would be likely to produce a different result upon retrial.
6. The procedure to question the validity of a jury verdict is statutory. K.S.A. 60-444(a) states that a juror is not exempt from testifying as a witness to conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict except as expressly limited by K.S.A. 60-441. K.S.A. 60-441 prohibits testimony concerning the mental processes of the jury. Upon an inquiry as to the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or concerning the mental processes by which it was determined.
7. A defendant cannot establish prejudice from the trial court's denial of his or her motion for a continuance for the purposes of investigating evidence if he or she fails to investigate the evidence after the trial and submit any new evidence in a motion for a new trial.
8. The well-established rule is that the credibility of the evidence offered in support of a motion for a new trial is for the trial court's consideration.
Appeal from Shawnee district court; NANCY E. PARRISH, judge. Opinion filed June 9, 2006. Affirmed.
Janine A. Cox, capital appellate defender, argued the cause and was on the brief for appellant.
Amy M. Memmer, assistant district attorney, argued the cause, and Robert D. Hecht, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
ALLEGRUCCI, J.: Kenneth M. Cook appeals his jury conviction of one count of second-degree murder and his sentence of 15 years to life imprisonment.
For the 1992 murder of Charles Duty, Cook initially was convicted by a jury of first-degree murder and given a "hard 40" sentence. This court affirmed the conviction. State v. Cook, 259 Kan. 370, 913 P.2d 97 (1996). On appeal from denial of his petition for habeas corpus, the Tenth Circuit Court of Appeals determined that defendant's Sixth Amendment right to confrontation had been denied because the State had not exercised due diligence to secure a prosecution witness whose testimony at the preliminary hearing was admitted as evidence at the trial, then reversed and remanded with directions to grant the writ. Cook v. McCune, 323 F.3d 825 (10th Cir. 2003). The conviction and sentence from Cook's retrial of the murder charges are now again before this court.
Cook raises six issues in this appeal. Cook asserts the district court: (1) abused its discretion in denying Cook's motion to recall the jury; (2) erred in denying Cook's request for a psychological examination of David Rudell, the State's witness; (3) abused its discretion in denying his request for a continuance of the trial to develop evidence of Rudell's mental health; (4) abused its discretion in denying Cook's motion for new trial based on newly discovered evidence; (5) erred by failing to calculate what defendant's sentence would have been under the sentencing guidelines; and (6) enhanced his sentence in violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
FACTS
On September 13, 1992, a fisherman discovered a body in the Wakarusa River. The Shawnee County Sheriff was notified. The body was tied to a square metal beam that weighed about 50 pounds. Divers also found a piece of carpet in the river close to the location of the body.
An autopsy revealed that the man had been dead approximately 7 days and that he died as a result of bleeding from a bullet wound in the chest that damaged the main artery from the heart. A second bullet had entered his left upper back. The pathologist found no defensive wounds and concluded the man had not been shot at close range. The recovered bullets were of a very unusual type. The autopsy also revealed that after death, to hide identity of the victim, the victim's teeth had been removed and patches of tattooed skin and subcutaneous tissue had been cut from each of the victim's upper arms. The body eventually was identified from fingerprints as that of Charles Duty, a/k/a Donnie Perkins, a/k/a Billy Ray Davenport.
At the second trial, David Rudell, whose testimony at the preliminary hearing had been improperly admitted in the first trial, testified that Cook shot Duty on September 7, 1992. Rudell stated at that time he lived on Orange Street in Baldwin, Kansas. Cook and Beth Hebert had moved in with Rudell 2 or 3 days prior to September 7. They had moved from a small house on Lime Street in northeast Topeka. Duty had lived with them in the small house for a very brief time.
Around noon on September 7, Rudell drove Cook and Hebert in his pickup to the house on Lime Street to move their furniture. Cook had a gun. Cook informed Rudell there might be a confrontation with Duty because Hebert had previously stolen pills from Duty. Duty had AIDS, and on September 1, he had obtained a prescription for 400 tablets of the narcotic, Hydrocodone, and 100 10-milligram tablets of Valium.
The gun Cook had belonged to Leonard Smith. It was a .31 caliber cap-and-ball pistol, a reproduction of an 1849 Colt pistol. The gun's projectile is a lead ball that is shot when black powder is ignited by the hammer hitting a firing cap. Smith loaned the gun to Cook in the spring of 1992. The first weekend in September Cook asked Smith for more ammunition. Smith provided the additional ammunition necessary to fire the gun.
Rudell further testified that when they arrived at the Lime Street house, Cook and Hebert got out of the truck. Rudell turned the truck around to load furniture. Rudell then got out of the truck. Hebert, who was standing outside a window of the house crying, stated, "He shot him."
Rudell entered the house. Gun smoke hung in the air. Cook was standing in the bedroom with the cap-and-ball pistol in his hand. Duty was half in and half out of the bed, tangled in the sheet. There was blood on the wall and a bloody wound on the left side of Duty's chest.
Cook dragged Duty's body to the garage where he pulled out Duty's teeth with pliers. Cook, Hebert, and Rudell then drove to the Tin Shed, a motorcycle business, and obtained a 6- to 7-feet long square steel beam. They returned to the Lime Street house. Cook wrapped Duty's body in a piece of carpet and then put the body in the back of the truck. Furniture was loaded on top of the body. They then drove to the Wakarusa River and parked at a spot used by fishermen. Cook took Duty's body and the steel beam down an embankment to the river. Using black nylon rope from the garage of the Lime Street house, Cook tied Duty's body to the steel beam, then dragged Duty's body into the river until it sank below the surface. Before returning to Baldwin, Cook, Hebert, and Rudell returned to the Lime Street house, removed Duty's possessions, and then burned them.
Leonard Smith, owner of the cap-and-ball pistol, testified that, while visiting Smith at his trailer in Carbondale, Cook had stated that after he shot and killed a guy on Lime Street with the .31 caliber pistol, Cook informed Smith that he then tied the body to a piece of steel from the Tin Shed and threw the body in the Wakarusa River.
Beth Hebert testified that when Duty was killed, she had gone to the Lime Street house with Smith and Rudell to throw Duty out of the house and retrieve some furniture. Hebert testified that while Rudell was still in the truck, Smith went into the house. She then heard two gunshots. Hebert stated that they stayed with Duty's body for 4 hours. Hebert was aware that Duty took massive amounts of painkillers and other drugs. Hebert had previously purchased drugs from Duty. Hebert stated that after Duty's death, she got high on Oxycodones they had found in Duty's underwear. Eventually they moved the body to the garage. After dark they put it into the truck, then drove to the Wakarusa River.
In 1993 Beth Hebert told Darrin Busey, whom she became intimate with after they met at the Parkview Rehabilitation Center, that after she had stolen drugs from Duty, Cook shot Duty with a black powder-type of gun. During this conversation, Hebert never mentioned Leonard Smith's presence at the shooting to Busey.
Failure to Recall the Jury
Defendant first argues that the district court abused its discretion when denying Cook's motion to recall the jury.
An appellate court reviews a trial court's order denying a motion to recall a jury for abuse of discretion. State v. Kleypas, 272 Kan. 894, 968, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002); State v. Jenkins, 269 Kan. 334, 338, 2 P.3d 769 (2000). We note that there are varying statements of the appropriate test for abuse of discretion. In Kleypas, this court stated the test of the trial court's abuse of discretion to be whether no reasonable person would agree with the trial court. If any reasonable person would agree, an appellate court will not disturb the trial court's decision. 272 Kan. at 968. In Jenkins, the court stated the test of the trial court's abuse of discretion to be whether defendant can show that (1) an act of the jury constituted misconduct and (2) the misconduct substantially prejudiced the defendant's right to a fair trial. 269 Kan. at 338.
Although a showing of prejudice is said in a number of cases to be required, see e.g., State v. Fenton, 228 Kan. 658, Syl. ¶ 1, 620 P.2d 813 (1980), and State v. Garza, 26 Kan. App. 2d 426, Syl. ¶ 4, 991 P.2d 905 (1999), this court noted in State v. Goseland, 256 Kan. 729, 736, 887 P.2d 1109 (1994), that the obstacle presented by K.S.A. 60-441 to such a showing is to establish how juror misconduct affected a verdict. We note that K.S.A. 60-441 bars evidence "to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict . . . or concerning the mental processes by which it was determined."
A case cited by defendant, Irvin v. Dowd, 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961), suggests a different emphasis. In Irvin, the prejudice on which the inquiry focused was the partiality of the jurors. The partiality of the jurors, of course, would prejudice the defendant, but the showing required was juror prejudice rather than its consequence. 366 U.S. at 723-24.
A discussion of the appropriate test is required. Our discussion includes consideration of another statement from Jenkins: "If a defendant's constitutional right has been violated during a trial, a judge's discretion to deny a motion for a new trial or a motion to recall a jury is limited. At this point, there is a greater reason for the judge to articulate the reasons for his or her 'discretionary' decision." 269 Kan. at 338. In practice, most issues in criminal appeals are stated as constitutional questions.
Juror affidavits. Cook contends that his Sixth Amendment right to trial by an impartial jury was violated when jurors became aware that this was a retrial. Cook's motion to recall the jury was supported by the affidavit of juror D.G.S., which stated: "During deliberations in this case, I heard another juror say that this case was a retrial. That juror also said that Mr. Cook had been previously convicted of the same crime in that first trial." Cook asserts that the trial court abused its discretion by failing to recall the jury.
The State attached to its response the affidavits of four other jurors. D.S. stated: "To my recollection, during deliberations no one talked about this being a retrial, nor did anyone say Mr. Cook had been previously convicted. However, it became evident to me as the trial progressed, that this was probably a retrial. But this was not discussed among the jurors."
M.M. stated:
"I recall that during deliberations there was some momentary speculation in which some of the jurors said they wondered if this was a retrial, and if so, what was the outcome of that. Someone said it did not matter if it was. It was not discussed further. I do not recall the names of anyone who said these things.
"No one said they knew that this was a retrial. What was said was more speculation about whether this was a retrial. No one said they knew Mr. Cook had been previously convicted, and I had no idea of whether he was previously convicted.
"It did occur to me as the trial was going on that this was probably a retrial, mostly because of the fact witnesses were asked about their prior testimony."
K.D.L. stated:
"I recall the issue of this case being a retrial was brought up during deliberations. I recall it was mentioned early in the deliberations. The foreman said this case had to be a retrial, because the murder happened so long ago and we heard witnesses' testimony from a prior trial. He did say that we had to do this right. Nothing was said about any result of a prior trial, or contents of any prior trial. He did not present this as his personal knowledge, but more like he was drawing that conclusion from the fact the case was old and there was testimony from a prior trial."
G.L. attested:
"I recall that during deliberations someone said this was a retrial. I cannot recall his name.
"Nothing was said by anyone about any result of a prior trial.
"During the trial someone at work mentioned it was a retrial. Nothing was said about any result of the prior trial. I did not discuss this with the other jurors. I got the impression this was a retrial anyway during the course of the trial, from the fact that witnesses were asked about their prior testimony."
The trial court, citing State v. Farrar, 103 Kan. 774, 176 Pac. 987 (1919), as controlling Kansas case law, denied defendant's motion to recall the jury.
At the hearing in Farrar on a motion for new trial, Farrar had presented evidence that during deliberations one or more jurors had stated that at a former trial Farrar had been convicted of first-degree murder. "The former trial had been referred to in the course of the proceedings. Witnesses had been cross-examined with reference to testimony given at the former trial, and the fact that there had been a former trial was well known to the jury." 103 Kan. 774. Farrar relied "on the rule that evidential statements of a prejudicial nature made by a juror on his personal knowledge, and which would naturally and probably influence the verdict, furnish ground for the granting of a new trial, unless the [S]tate show[s] the accused suffered no prejudice." 103 Kan. at 774-75.
The Farrar court examined prior cases in which jurors' expressions of personal knowledge had been challenged by a defendant and concluded that degrees of materiality mandated appellate review on a case-by-case basis. 103 Kan. at 775-77. The Farrar court stated that in some cases the proof "might be so convincing that the court would have no hesitation in saying the statement made by the juror had no influence on the verdict" or that "it might be apparent that the statement of the juror merely augmented a superfluity of proof of guilt." 103 Kan. at 776. The Farrar court noted that in another case "the tension was such that the evidential statement of two jurors concerning the inoffensive character of the man killed" plus "other statements injected into the deliberations, may have overcome a lingering, reasonable doubt of guilt." 103 Kan. at 776-77. The court then stated that "the court might be able to say with confidence that the jurors who spoke were merely, in a way, confirming a conclusion from which the evidence in the case left no reasonable avenue of escape." 103 Kan. at 777. Regarding the circumstances in Farrar, the court stated:
"A statement of the nature of the verdict at a former trial is not evidential. The fact stated adds nothing to the evidence respecting any contested issue. It may not even be interesting. It may be a matter of common knowledge. It does not naturally or necessarily tend to corrupt the deliberations of a jury, presumably regardful of their oaths and the instructions given by the court, and in any given instance it is the function of the trial court to determine whether or not it probably subverted their integrity and vitiated their verdict. In this instance this court agrees with the trial court that it is highly improbable the extraneous remarks influenced the jury to return an unwarranted verdict." 103 Kan. at 777.
The trial court acknowledged the lesson of State v. Ruebke, 240 Kan. 493, 513, 731 P.2d 842 (1987), with regard to recalling a jury, stating:
"'A recall of the jury is not a routine matter. Jury service is a public duty of citizens and recall of jurors after their service has ended to testify as to events occurring in the jury room during deliberations is a serious step. That step is to be undertaken only for just cause. The procedure should never be utilized as a fishing trip upon a losing party's hope that jury misconduct might surface if the jurors could be questioned under oath. The burden is upon the party seeking an order to recall the jurors to show the necessity for the order.' Walters v. Hitchcock, 237 Kan. 31, 36, 697 P.2d 847 (1985)."
The circumstances of the present case were described by the trial court as:
"While this court would not describe defendant's Motion to Recall Jury 'a fishing trip,' this court does find that defendant has not met his burden to show the necessity for such order. It is clear that jurors speculated about whether the trial was a retrial and/or concluded during the course of the trial that it was a retrial. However, speculations and/or conclusions on the part of jurors are not misconduct. Juror [D.G.S.]'s affidavit does not provide any details regarding the alleged juror misconduct. The affidavit does not provide the identity of the juror who allegedly made the statement or is there specificity regarding how the juror obtained the information, i.e., whether by deduction, speculation, outside sources, or personal knowledge. It is clear however that the jurors apparently figured out that it was a retrial despite the court's and counsels' best efforts to avoid any reference to or knowledge of a prior trial."
The trial court then reiterated the principle from Farrar that "information that the defendant had been convicted of the same crime in a previous trial 'does not naturally or necessarily tend to corrupt the deliberations of a jury, presumably regardful of their oaths and the instructions given by the court . . . .' Farrar, 103 Kan. at 777." The court noted that the jurors in this case had been
"instructed to disregard anything 'brought up outside the evidence.' This specific admonition was given to jurors during the course of this trial as a result of a juror telling the other jurors that he previously had owned the house at 107 N.E. Lime. This court's instruction to the jurors was as follows: '. . . during the course of your deliberations if anything outside of the evidence in this case has been brought up to you, you are to absolutely and unequivocally disregard it.'
"This court not only gave the special admonition as stated above but also admonished the jury at each break and at the end of each day with the following admonition: '. . .your verdict when rendered must be based upon testimony and evidence presented here under oath, and not on rumors and unreliable evidence heard elsewhere.'"
The trial court concluded:
"Therefore, even if Juror [D.G.S.] is correct and another juror stated that 'Defendant Cook had been previously convicted in another trial,' according to Farrar, that type of statement 'is not evidential,' does not necessarily 'tend to corrupt the deliberations of [jurors]' who will presumably follow their oaths and instructions given by the court, and is not jury misconduct."
On appeal, Cook, to support his argument, cites cases from other states and federal courts. Cook points to Irvin, 366 U.S. at 723, where the United States Supreme Court vacated Irvin's capital murder conviction, finding that Irvin was denied due process because pervasive and passionate media coverage of the crime had deprived him of an impartial jury. Cook cites Irvin's statement that jurors must be able to set aside impressions and opinions and render a verdict based only on the evidence presented in court. 366 U.S. at 723.
It is the State's position that D.G.S.'s affidavit does not suggest that he or other jurors were unable to set aside impressions or opinions in order to render a verdict based solely on the evidence. Cook argues that information of a prior conviction cannot be benign and cites United States v. Attell, 655 F.2d 703, 705 (5th Cir. 1981); United States v. Williams, 568 F.2d 464, 470-71 (5th Cir. 1978); Pettibone v. State, 891 So. 2d 280 (Ala. Crim. App. 2003); Hughes v. State, 490 A.2d 1034, 1044 (Del. 1985).; and Weber v. State, 501 So. 2d 1379, 1383 (Fla. Dist. App. 1987).
We note that Williams involved the criminal prosecution of four law enforcement officers charged with depriving a man of his civil rights by beating him. After the officers were convicted in the first jury trial, the officers' motion for new trial was granted. On the evening of the second day of the second trial, a local television news broadcast included a story about the trial which revealed that "[t]he four were convicted in the first trial last May." 568 F.2d at 466 n.2. The broadcast stated that the trial judge had overturned the verdict in the first trial because of erroneous testimony about the lawsuit and that the second trial was expected to last through the next week before going to the jury. When polled, five jurors admitted knowing of the report. Of the five, only two had actually read the report. All five jurors denied that the story would influence their decision in the present case.
In reaching its decision, the Fifth Circuit Court of Appeals distinguished cases in which potentially prejudicial publicity occurred before trial or in which pretrial publicity was combined with extensive trial coverage, stating that "[t]he 'during trial' cases, though fewer in number, contain greater opportunities for prejudice." 568 F.2d at 468. The Court of Appeals reasoned:
"[I]nformation reported during the trial seems far more likely to remain in the mind of a juror exposed to it, and he may be more inclined to seek out this information when he is personally involved in the case. [Citation omitted.] Moreover, exposure of potential jurors to news accounts before trial need not result in an aborted proceeding, since the problem can be cured by a continuance or change of venue. If the exposure occurs during the trial, however, the trial judge must squarely face the question of whether a fair trial is still possible. Consequently, a stricter standard should be employed in during-trial cases than in pretrial situations." 568 F.2d at 468.
The Court of Appeals declared it was "hard pressed to think of anything more damning to an accused than information that a jury had previously convicted him for the crime charged." 568 F.2d at 471. Discounting the two jurors' beliefs they could disregard the newscasts and the salutary effect of the trial court's admonition to disregard things not heard in the courtroom, the Court of Appeals held that "the exposure of the two jurors to information regarding defendants' convictions at the first trial resulted in an unfair second trial." 568 F.2d at 471. The Court of Appeals concluded by noting that the case law it followed did not involve constitutional protections and the controlling principle was "applicable only in the federal courts." 568 F.2d at 468-69.
The other Fifth Circuit case cited by Cook, Attell, also involved media news reports during the second trial that defendant Attell had earlier been convicted on the same charges and the conviction set aside because of erroneous admission of evidence. In the second trial the judge refused to poll jurors to determine whether any of the jurors had been exposed to the news reports. The Attell panel referred to Williams as "teach[ing] that publicity which includes information that the defendant was convicted of the same charge at an earlier trial is a type of publicity which inherently poses a substantial risk of prejudice to a defendant if members of the jury are exposed to it." 655 F.2d at 705. Noting that this case differed from Williams because the first trial judge declined to poll the jury, the Court of Appeals stated:
"Although in the absence of a poll, it is impossible to determine whether the jurors were actually exposed to news reports containing references to Attell's first trial, here . . . we would have to speculate to conclude that no juror had seen or heard these accounts and therefore that Attell had not been prejudiced. . . . Therefore, the proper exercise of our supervisory powers requires that the conviction be reversed." 655 F.2d at 706.
The jury taint in Williams and Attell differs from that claimed in the present case. That difference merits discussion. In the federal cases, there were media reports of the prior convictions that were brought to the trial courts' attention by defense counsel before a verdict was reached. In Williams, a jury poll revealed that two jurors were exposed to the publicity; in Attell, no jury poll was conducted. In both circumstances, the verdicts were overturned--in Williams because jurors had been exposed and in Attell because they might have been exposed.
The question in the federal cases was whether the jurors had been previously prejudiced. In our case, in contrast, the issue arose as a result of a juror's postverdict affidavit regarding another juror's statement during jury deliberations. The question here is whether the juror's posttrial affidavit warranted a recall of the jury. With the scope of the inquiry in the federal cases restricted to prejudice, we note that neither of the federal court opinions cited the Federal Rules of Evidence, Rule 606(b), which governs inquiry into the validity of a verdict. That rule provides:
"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes." Fed. R. Evid. 606(b).
If a juror's affidavit had been the source of information about the news reports in Williams and Attell, Rule 606(b) would have permitted a juror affidavit regarding the extraneous prejudicial information being brought to the jury's attention. Moreover, if a juror's affidavit had been the source of information about another juror's statement that defendant previously had been convicted of the same crime, Rule 606(b) would not have barred it. The case law of other states and the relevant Kansas statutory rules of evidence and case law, which we now discuss, differ from the federal rule.
In Pettibone, the Alabama Supreme Court reversed the defendant's conviction "based on the prejudicial effect of the prosecutor's reference to a prior conviction for the same offense and the inadequacy of the circuit court's curative instruction." 891 So. 2d at 284. The prosecutor asked a defense witness, "Well, if this was so important, why didn't you run and tell that lawyer if you were trying to help [Pettibone] overturn his conviction?" 891 So. 2d at 282. Defense counsel's objection was sustained. The prosecutor then asked, "Wasn't [it] part of that hearing that you came to a few months back to overturn [Pettibone's] conviction–" 891 So. 2d at 282. The trial judge sustained another objection and admonished the jury: "Ladies and gentlemen of the jury, I instruct you to disregard the prosecutor's last two questions." 891 So. 2d at 282. Although the circuit court had promptly sustained defense counsel's objections to the prosecutor's questions, the Alabama Supreme Court stated that "the court's curative instruction was insufficient to eradicate the prejudice caused by these quest