State v. Hill

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 94,589

STATE OF KANSAS,
Appellee,

v.

NATHANIEL L. HILL,
Appellant.


SYLLABUS BY THE COURT

1.
When a criminal defendant requests a lesser included offense instruction, a trial
judge is required to give it when there is some evidence that would reasonably justify a
conviction of the lesser included crime. On the record in this case, the district judge did
not err in refusing to give a heat-of-passion voluntary manslaughter instruction because
there was no evidence that the defendant intentionally shot the victim because of
provocation.

2.
The Equal Protection Clause of the Fourteenth Amendment prohibits the use of
peremptory challenges to strike potential jurors on the basis of race. The third step in the
three-step analysis of a peremptory strike under Batson v. Kentucky , 476 U.S. 79, 90 L.
Ed. 2d 69, 106 S. Ct. 1712 (1986), requires a district judge to determine whether a
criminal defendant has carried his or her burden of proving purposeful discrimination by
the State. If a prosecutor's explanation is implausible or fantastic, it may be a pretext for
purposeful discrimination. On the record in this case, the district judge did not abuse his
discretion in ruling against defendant on his Batson challenge to the prosecution's
peremptory strike of an African-American juror.

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3.
In admitting a photograph into evidence, the court first considers relevance. When
a party argues on appeal that an admitted photograph was overly repetitious, gruesome,
or inflammatory, that is to say, prejudicial, the standard of review is abuse of discretion.
The photograph of the victim's brain admitted in this case was relevant, and its probative
value outweighed its potential for prejudice. The district judge did not abuse his
discretion in admitting it.

4.
Authentication of a writing is controlled by K.S.A. 60-464. It does not necessarily
require direct evidence that a witness recognizes the handwriting in the document.
Adequate circumstantial evidence supported authentication of the handwritten note
admitted in this case, and the district judge did not abuse his discretion.

5.
Although presented with conflicting evidence, the district judge did not abuse his
discretion in ruling that the defendant in this case was competent to stand trial.

Appeal from Montgomery County District Court; RAWLEY J. (JUDD) DENT, II, judge. Opinion
filed April 15, 2010. Affirmed.

Reid T. Nelson, of Capital and Conflicts Appeals Office, argued the cause, was on the brief for
appellant.

Kristafer R. Ailslieger, assistant solicitor general, argued the cause, and Steve Six, attorney
general, was with him on the brief for appellee.

The opinion of the court was delivered by

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BEIER, J.: Nathaniel L. Hill stands convicted of capital murder, possession of
marijuana with intent to sell, possession of drug paraphernalia, and failure to purchase a
drug tax stamp. This is his direct appeal from these convictions.

Hill raises five issues: (1) Whether his jury should have been instructed on heat-
of-passion voluntary manslaughter; (2) whether the prosecution advanced sufficient
reasons for its peremptory strike of an African-American venire member; (3) whether a
certain photograph should have been admitted into evidence; (4) whether adequate
foundation was laid for admission of an incriminating note purportedly written by Hill;
and (5) whether the district judge erred in handling the issue of Hill's competence to stand
trial.

FACTUAL AND PROCEDURAL BACKGROUND

Police found the bodies of April Milholland and her boyfriend, Sam Yanofsky,
dead inside a car that had collided with a tree in Independence, Kansas. Milholland's
body, wrapped in a black plastic trash bag, was in the backseat of the car. Yanofsky's
body, covered with a bedspread, was in the car's trunk.

The investigation of the murders quickly led to defendant Nathaniel Hill, an
Independence drug dealer who supplied Yanofsky with drugs, which Yanofsky then
resold. Independence Police Department Detective Harry Smith interviewed Hill. Hill
admitted that he knew Yanofsky and Milholland, that he had last spoken to them on the
phone the previous evening, and that Yanofsky owed him $2,000 for marijuana. Hill
denied any involvement in the murders and suggested to police that Yanofsky's half-
brother, Nate Castorena, might have been responsible.

The next day, police approached Hill outside of Jose Castorena's house. Hill got
out of his car and allowed the officers to search it. During the search, officers found a
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block of marijuana, a set of scales, and a pipe. Police arrested Hill, and Smith again
interviewed him about the murders. Hill again denied involvement and again suggested
Nate Castorena as the likely murderer.

After obtaining additional information from Hill's girlfriend, Collette Dunn, Smith
interviewed Hill a third time, 2 days after Hill's arrest. In this interview, Hill gave several
versions of what had happened the night Milholland and Yanofsky were killed.

In the first version, Hill blamed the murders on the "Mexican Mafia," claiming its
members had fronted him $2,000 worth of marijuana he had, in turn, fronted to
Yanofsky. Hill claimed Mexican Mafia members shot Yanofsky and Milholland while
holding Hill at gunpoint and then carried the bodies out to the car in which they were
found, Milholland in the back seat and Yanofsky in the trunk. One of the Mexican Mafia
members then drove the car into a tree while Hill rode in a vehicle that followed. Hill told
Smith that the Mexican Mafia members then dropped him off at a church and told him to
run.

Smith challenged this first version of events and pressed Hill for the truth. Hill
then offered his second version.

In the second version, Hill called Milholland and asked her and Yanofsky for his
money. Yanofsky told Hill that he had the money and agreed to bring it to Sylvester
Jones' house. When Yanofsky later showed up at Jones' house without the money, Hill
became angry. Hill and Yanofsky started wrestling, and Jones shot Yanofsky. Jones then
took Milholland to a back bedroom and shot her while Hill was cleaning up Yanofsky's
blood. Hill said he and Jones then carried the bodies out to the car. Jones drove the car
and jumped out of it as it headed for the tree.

Hill then told a third version of his story.
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In the third version, Hill shot Yanofsky accidently as he and Yanofsky wrestled on
the bathroom floor. Yanofsky and Milholland had gotten drunk and "coked out" after
arriving at Jones' house. Yanofsky rushed Hill in a drunken, jealous rage, after
Milholland said "some stupid shit." Because Yanofsky was strangling Hill, Jones slid a
gun to Hill. Hill picked up the gun and it accidently went off when Yanofsky hit Hill's
hand.

Detective Smith interviewed Jones the day after the third interview of Hill. Jones
described himself and Hill as life-long friends. In exchange for Hill providing Jones with
free marijuana, Jones allowed Hill to store his drugs and gun at Jones' house. Hill and
Jones had been hanging out together most of the night of the murders. They were
smoking marijuana and Jones was drinking. Hill left Jones' home about 3 a.m. and Jones
went to bed. He awoke later when he heard Hill in his house, talking to someone. Hill
then came into his bedroom, got something off of the nightstand, and told him to go back
to sleep. The nightstand was where Hill kept his gun and marijuana. A few minutes later,
Jones heard a gunshot. He then heard Milholland running through the house and
screaming, "Why did you do that?" Jones then heard Hill say, "Strip." Five to ten
minutes later, Jones heard a second gunshot.

Jones said that Hill then came into his bedroom and told him to help clean up the
mess from the shootings. Hill still had the gun in his hand. Jones walked out into the
hallway and saw Yanofsky in the bathroom, his head over the tub. Yanofsky was making
a snoring sound.

Hill told Jones to get some trash bags and put one over Yanofsky's head, which
Jones did. Hill told Jones to pull Yanofsky out of the bathroom. Jones refused to touch
Yanofsky. Hill pulled Yanofsky onto a blanket, telling Jones that, if he did not help, Hill
would leave Yanofsky at the house and Jones would end up being blamed for the crime.
At Hill's direction, Jones helped Hill pick up Yanofsky, carry him to the car, and put him
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into the trunk. Yanofsky was making noises as they put him into the trunk. Hill then
closed the trunk lid.

Hill and Jones then went back into the house, specifically the back bedroom.
There Jones saw Milholland lying on the floor. Hill put a trash bag over Milholland and
rolled her body onto a comforter he had gotten from the laundry room. He and Jones then
carried Milholland to the car. Hill got into the backseat and pulled Milholland in after
him.

Hill and Jones then went back into the house and cleaned. At about 6 a.m., Hill
drove away in the car. Jones continued cleaning. He moved his bed into the back
bedroom and placed it over a stain on the carpet. Jones put the towels used to clean into a
broken dryer in the laundry room. He also hid a set of digital scales that had been in the
bathroom inside the dryer. He put Hill's gun and Hill's marijuana in a hallway closet.

Jones later used a box cutter Hill brought over to cut the stained piece out of carpet
in the back bedroom. He also hid the stained piece of carpet in the dryer.

In a later search of Jones' house, officers found a bag of marijuana and a .45
caliber handgun in a hallway closet. In the back bedroom, officers found box springs on
the floor, under which a piece of carpet had been cut out. There were bloodstains on the
underside of the box springs. Later DNA testing showed the bloodstains to match
Milholland's profile. In the bathroom, blood found on a door frame and door was later
determined to match Yanofsky's DNA profile.

In the broken dryer in the laundry room, officers found plastic bags containing the
bloody carpet that had been cut out of the back bedroom, bloody carpet padding, items of
clothing, scales, and a rug.

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In the back bedroom, officers found a bullet that had lodged under the carpet. A
bullet hole was found in the bathroom shower stall. Officers tracked the path of the bullet
through and then outside of the house, and found the bullet in the backyard. Later testing
showed that both bullets, as well as a shell casing found in the bathroom, came from the
.45 caliber handgun found in the closet.

A KBI fingerprint examiner found both Hill's and Jones' fingerprints on the black
trash bag that was around Milholland's legs. Hill's palm print was found on Milholland's
car door.

Dr. Erik Mitchell performed autopsies on the two bodies and concluded that
Milholland and Yanofsky each died from a gunshot wound to the head. Mitchell also
concluded that Milholland died instantly from her injury; Yanofsky, on the other hand,
was alive for a period of time after he was shot.

A sexual assault examination of Milholland's body performed during autopsy
showed no traces of Hill's DNA.

Smith interviewed Hill a fourth time after he had interviewed Jones. When Smith
told Hill that he believed he had killed both Milholland and Yanofsky, Hill did not deny
it. When the detective told Hill that he was not a bad person and that people make
mistakes, Hill replied, "How can I not be a bad person for what I've done?"

While Hill was being held pretrial in the county jail, he described details of the
murders to his cellmate, Donvil Hodges.

According to Hodges, Hill said that he wanted to shoot Milholland and Yanofsky
because they owed him money for marijuana. Hill said that he called the pair and asked
them to come to Jones' house. When they arrived, Hill told them to go into the bathroom
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and weigh marijuana and said he would be right back. Jones was asleep in his bedroom at
the time. Hill got a gun from the living room, went into the bathroom, and shot Yanofsky
in the side of the head. Milholland began screaming and asking if Hill was going to shoot
her too. Hill had her take off all of her clothes and go to the back bedroom while he
cleaned the bathroom. Hill told Hodges that he had Milholland strip so that she would not
try to run away.

According to Hodges, Hill also said that he positioned Yanofsky's body over the
bathtub so that Yanofsky's blood would drain into the tub. As Hill was cleaning, he heard
Milholland trying to get out of a window, so he went into the back bedroom. Hill told
Hodges that he had sex with Milholland and then shot her in the back of the head. After
Hill shot Milholland, Jones came out of his bedroom. Hill told Jones to clean the back
bedroom while he cleaned the bathroom. Hill and Jones then wrapped the bodies in
blankets and carried them out to the car. Hill said he was going to burn the car with the
bodies inside it, but the car was running out of gas, so he jumped out of it while it was
still moving.

Hill was charged with one count of capital murder, one count of first-degree
premeditated murder, and one count of rape.

The capital murder count was charged in the alternative: as the intentional and
premeditated killing of Milholland and Yanofsky in part of the same act or transaction
per K.S.A. 21-3439(a)(6) and as the intentional and premeditated killing of Milholland
during the commission of or subsequent to the crime of rape per K.S.A. 21-3439(a)(4).
The first-degree murder charge was based on the murder of Yanofksy.

In a separate case, Hill was charged with possession of marijuana with intent to
sell, possession of drug paraphernalia, and failure to purchase a tax stamp. Those charges
were consolidated with the murder charges for trial.
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The State charged Jones with two counts of first-degree premeditated murder and
one count of rape but dropped the rape charge at preliminary hearing. Jones eventually
pleaded guilty to reduced charges of voluntary manslaughter and aiding a felon and
agreed to testify against Hill.

At Jones' plea hearing, the prosecutor stated that it based the aiding a felon charge
on the determination that Jones' only involvement in the murder of Milholland was in
helping to dispose of the bodies and cleaning up the scene. The State reduced the
Yanofsky murder charge to voluntary manslaughter because the evidence showed
Yanofsky may still have been alive when Jones carried him to the car and, the State
contended, Jones assisted Hill because of the mistaken but sincerely held belief that his
life would be in danger if he did not.

The question of Hill's competency to stand trial was raised first by his lawyers,
who noted Hill's suspicion of them. They hired Dr. George Athey, a clinical and
neuropsychologist, to examine Hill in October 2003. Athey reported that Hill understood
the legal process and that his reasoning abilities were not impaired, but he was
significantly hampered in his relationship with his attorneys. Specifically, Hill believed
his attorneys were hiding information from him, lying to him, brainwashing him, and
threatening him. Athey concluded that Hill was incompetent to assist his attorneys in his
defense.

The defense filed a motion to determine competency. The district judge sent Hill
to Larned State Security Hospital (Larned) for a competency evaluation.

Larned held Hill for 51 days for observation and evaluation. At the conclusion of
the evaluation, the Larned treatment team issued a report that concluded Hill did not
suffer from any measurable psychopathology and was competent to stand trial. The
team's report stated:
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"The [Forensic Evaluation Unit] Treatment Team, after considering all available
information, is of the opinion that Nathaniel Lee Hill is capable of appropriately
conducting himself in all aspects of the current legal proceedings. Mr. Hill is
disappointed in the performance of his attorney. However, his disappointment does not
appear to be a sufficient obstacle that would prevent him from working successfully with
his attorney. Mr. Hill stated he feels 'powerless' to do anything in regard to his attorney's
handling of his case. However, his 'powerlessness' appears to be a feature of Mr. Hill's
character style rather than a specific inability to work with his attorney. Mr. Hill
understands his legal charge and its possible legal ramifications. If he so chooses, he
appears fully capable of rationally evaluating the evidence against him, discussing legal
strategy with his attorneys or participating and cooperating in assisting his attorney with
his defense. Therefore, it is the opinion of the treatment team that Nathaniel Lee Hill
meets the criteria for competency to stand trial as defined by Kansas statutes."

The court then held a competency hearing. The defense presented two experts:
Athey and Dr. William S. Logan, a psychiatrist.

Athey testified that he spent 12 hours with Hill. He concluded that Hill was
exhibiting significant paranoia and thinking disturbances, indicating he suffered from a
psychotic illness, most likely delusional disorder and possibly schizophrenia. Athey
questioned the findings of the Larned team report, contending that the team overlooked
the elevated paranoia scale on one of the tests, failed to get information from Hill's
attorneys, and did not use the same protocol Athey had used for assessing competency.
Responding to a question about medication, Athey testified that he was not a psychiatrist
but that he believed antipsychotics "would be mandatory" to give Hill a chance to work
effectively with his attorneys. Athey testified that, in his opinion, Hill was incompetent to
assist in his own defense because of mental illness, paranoid delusional disorder, and
possible schizophrenia.

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On cross-examination, Athey acknowledged that he had not asked Hill specifically
about his conversations with his attorneys, about whether his attorneys had recommended
a plea bargain, or about how Hill felt regarding suggestions he should accept a plea
bargain. Athey also admitted that, if Hill's attorneys were recommending a guilty plea
and Hill did not want to plead guilty, the disagreement could affect Hill's trust in them,
but not to the degree he had observed.

Logan had interviewed Hill for approximately 4 hours a few weeks after Hill's
arrest. At that time, Hill reported auditory hallucinations of God and Lucifer speaking to
him, which began in late childhood and increased with drug abuse and stress. The voices
sometime told him to hurt himself or others. He also noted that Hill had exhibited some
paranoia concerning circumstances at the jail.

The defense team had asked Logan to reexamine Hill at a later time, expressing
concern about Hill's mood swings, his disagreement with a plea offer, and his suspicion
of his attorneys. Hill refused to be reexamined. Thus, when Logan was asked at the
hearing if he was able to provide a current opinion about Hill's competency, he said he
had no way of knowing if it was still an issue. He did say, however, that Athey's findings
about Hill's paranoia, coupled with his own interview results, led him to believe that Hill
was not competent to assist his lawyers in his defense. Were he Hill's prescribing
psychiatrist, he would have recommended a very low dose of antipsychotic medication.

Logan also criticized the Larned report, contending that the team should have
obtained information from Hill's attorneys about the types of problems they were having
with him, that it failed to mention Hill's elevated paranoia score on the personality
assessment, and that it failed to administer a test designed to determine competency.
Logan conceded, however, that it was clinically acceptable to assess a patient through an
interview.

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Dr. Patrick L. Pomfrey, a psychologist on the Larned treatment team, testified for
the State. He explained that Larned determines competency by going over a 30- to 45-
question report similar to the protocol used by Athey, which is designed to determine the
same sorts of things, i.e., the nature of a defendant's relationship with his or her attorney
and the defendant's understanding of the charges and court proceedings. Pomfrey testified
that Hill's paranoia score on the personality assessment was only mildly to moderately
elevated, not high enough to qualify him for a delusional disorder. He also observed that
it resulted from Hill's response to a single statement: "I [am] the target of a conspiracy."
Hill answered: "most of the time." Pomfrey also testified that, during the 51 days the
team observed and assessed Hill, he observed nothing that would have led him to believe
Hill was suffering from paranoia.

Pomfrey further testified that the team talked to Hill about his relationship, or lack
of relationship, with his attorneys. He conceded that what Hill described concerning that
relationship could be viewed as paranoia, depending on how one viewed Hill's story.
Pomfrey also testified that it was not unusual for defendants charged with serious crimes
to believe there may be a conspiracy and feel paranoid; in fact, the absence of such
feelings would be unusual. "[H]undreds of patients come through our unit every year, and
the most pervasive complaint among all the patients . . . is their relationship with their
attorneys," he said.

At the conclusion of the hearing, the district judge ruled that the defense had not
met its burden to prove Hill incompetent to stand trial. The judge said:

"I'm inclined to believe that, even based upon the defense's experts in this case, that there
is a preponderance of the evidence to believe that he is competent to stand trial.

. . . .

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". . . [B]oth sides brought up important points. I think that there's a question
there. There will probably always be a question there, but we're not talking about
reasonable doubt here. . . . [I]t just appears to me that his—his inability to relate and to
participate with his defense does seem to be more of a refusal or—I'm not saying that he
has some scheme in mind, but in light of the fact that his mental disorder only seems to
be directed towards his attorneys, it makes you wonder whether there's something more
to that, but, as I said, I'm more inclined to agree with the State.

"As I said, the burden isn't reasonable doubt, and I would think that the State has
met their burden insofar as that matter is concerned, or that the defense has not met their
burden in proving that Nathaniel was incompetent."

The judge noted the evidence suggesting that Hill might benefit from
antipsychotic medications. Accordingly, in an effort to "go the extra mile" to make sure
that there would be no competency issue, the judge ordered that Hill be medicated and
deferred determination of competency until after the effect of the medication could be
evaluated.

In September 2004, Dr. V.J. Reddy, a psychiatrist with Four County Mental
Health Center, evaluated Hill for medication. After considering the reported
disagreements with defense counsel and Hill's statement that he wanted to go to trial to
have the chance of being found not guilty, Dr. Reddy noted that Hill exhibited some
distorted logic based on "circumscribed feelings of distress and paranoia with the
attorneys and their recommendations." Reddy diagnosed Hill with Delusional Disorder
and Anti-Social Personality Disorder and prescribed Risperdal.

When Hill's competency came back before the court the following month, defense
counsel requested a delay so that the medication prescribed by Reddy could have more
time to take effect. The judge agreed to continue the matter but told defense counsel that
he had "about closed the door on this competency issue" because of a note he received
from Hill. The court read the note into the record:
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"'I'm writing to you so you can have a clearer picture in this competence [sic] area that
we are still stuck at. Your Honor, I'm not paranoid of my lawyers. I just didn't want to
work along with them at the time. Then my lawyer Mark switched to a new woman
lawyer, no offense, right in the middle of this case. That just didn't make me feel too
comfortable after that, and I can understand that. Judge Dent, I really don't need this
medication they are giving me. I . . . can understand that. All that it is doing is giving me
high blood pressure and high cholesterol problems. I am not incompetent to stand trial. I
know that you, as a Judge, is [sic] supposed to keep order in the courtroom. The DA is
supposed to try to convict me of the crime. My lawyers is [sic] supposed to defend me
from being convicted of the crime, and the jury is to listen to both sides of the story, then
choose if I'm guilty or not guilty, so I believe I am competent to stand trial, Your Honor."

Defense counsel filed a memorandum in support of Hill's motion to determine
competency, attaching affidavits setting out the problems they had experienced in
working with Hill. The affidavits said that Hill displayed smug contempt toward them;
that his thought processes were disorganized and irrational; that he continued to be very
suspicious of his defense team; that he would not engage in discussions about his
defense, evidence in the case, a plea offer, an offer of bench trial, or possible punishment;
that he would not answer questions about the case and had refused to provide other
information, despite repeated requests; that he used bizarre religious excuses to avoid
discussing the case; that he did not appear to understand their role in the process; that he
did not appear to understand the gravity of the situation and did not comprehend the
evidence against him; and that there had been no improvement in his behavior.

The district judge held another competency hearing. Neither party presented
further evidence.

In argument, defense counsel pointed out that neither Athey nor Logan was able to
reevaluate Hill because Hill refused to permit them to do so. Defense counsel also noted
that Reddy had, within the past week, increased Hill's medication dosage. Moreover, the
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note Hill had written to the judge should be evidence of Hill's refusal to cooperate rather
than competency; the judge had previously admonished Hill not to write directly to the
court.

The State argued that the only area in which Hill had a problem was cooperation
with counsel, which indicated a voluntary choice rather than lack of competency.

The court ruled that Hill was competent to stand trial, specifically noting that there
was a difference between not being able to participate in a defense and choosing not to do
so.

The following January, defense counsel filed a new competency motion. A
different defense expert, Dr. Peter Graham, a clinical psychologist, had recently
evaluated Hill and determined that he was incompetent to stand trial. In addition, defense
counsel noted they were still unable to work effectively with Hill, because he continued
to refuse to listen to legal advice or discuss possible affirmative defenses, cross-
examination topics, plea agreements, and the possibility of bench trial.

Another competency hearing followed. Richard Burr, an experienced capital
defense attorney, and Graham, testified for the defense.

According to Graham, Hill suffered from delusional thought processes, including a
belief that certain Bible verses referred to what was destined to happen in his trial. Hill
had claimed to see pages of the Bible turn by themselves and open to particular verses.
Based on those verses, he believed that the charges against him would be dropped when
he got into the courtroom. Graham testified that these delusions had affected Hill's ability
to appreciate the role of his attorneys and had interfered with the type of interaction
necessary to prepare a defense.

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On cross-examination, Graham testified that Hill understood the charges against
him and was capable of making choices. Further, he acknowledged that Hill had made a
choice to rely on the Bible and his faith, rather than on his attorneys.

Burr had met with Hill for 2 1/2 hours and had reviewed all of the reports and
evaluations, as well as summaries of problems the defense team had experienced with
Hill. Burr testified that he had grave concerns about Hill's ability to assist in his defense,
specifically including Hill's persistent refusal to discuss the evidence; his belief that the
evidence against him was insubstantial; his refusal to consider plausible defense theories;
his chronic distrust; his refusal to provide relevant information; his report of a
hallucination that ants were crawling all over him; and his belief that the case would be
dismissed because his name appeared on the complaint in capital letters.

On cross-examination, Burr testified that, when he asked Hill what his defense
should be, Hill said he was not involved in the crimes and was not at the scene when they
occurred. Burr asked Hill if he had given his attorneys the identity of the person he was
with at the time of the murders; Hill said he had not. Burr tried to get Hill to tell him
more so that he could pass the information on to Hill's lawyers; Hill refused.

The district judge denied the new competency motion, observing that it was not
necessarily delusional for a person of faith to believe the Bible referred to him or her
specifically. The judge also stated that Hill appeared to be making voluntary choices
about the defenses that would be developed and presented.

At the conclusion of the hearing, the court asked Hill about his medication, which
Hill had refused to take. Hill said the medication gave him bad headaches and made him
sleepy. He also said that he did not think the medicine had any effect on his relationship
with his attorneys. Rather, he "just didn't agree with what they wanted, a plea bargain or
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nothing like that." Hill told the judge that he wanted to go to trial and that he was not
going to take the medication any longer.

The judge also asked Hill about his refusal to consider asserting affirmative
defenses. Hill responded:

"All the defenses that they have that I refused is still going to prove me guilty, no
matter what. They're still saying I done it or I was on drugs when I done it. I'm still going
to be proved guilty of something. There's no way for me to be proved not guilty, not
guilty at all, so the one I picked is giving both sides."

The judge asked Hill if he understood that such a choice was against the better
judgment of his attorneys. Hill affirmed that he did understand and that he had
nevertheless made his decision.

During voir dire, Hill challenged the State's attempt to use peremptory strikes to
remove the panel's only three African-American members, invoking Batson v. Kentucky,
476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986) (Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution prohibits use of peremptory
challenges to strike jurors on basis of race). Hill is African-American.

Applying the first step of the three-step Batson analysis, the district judge ruled
that Hill had made a prima facie showing that the strikes were race-based. Accordingly,
the judge ordered the State to articulate a race-neutral explanation for the strikes.

The judge accepted the State's explanation as to one juror and rejected it as to a
second. Those strikes are not at issue on this appeal.

With respect to the third strike of prospective juror S.B., the prosecutor offered
two explanations: (1) S.B. stated during voir dire that she would not listen to or believe
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the testimony of a codefendant who was testifying under a plea agreement; and (2) S.B.
had stated in response to her jury questionnaire that she was personally, morally, and
religiously opposed to the death penalty and would never vote to impose it regardless of
the circumstances of the case. The prosecutor was concerned that S.B.'s opposition to the
death penalty might prompt her to vote against conviction for capital murder, even
though, in this particular case, this jury would not be considering the death penalty. The
district judge accepted the State's explanations and permitted removal of S.B. from the
panel.

At trial, defense counsel lodged a continuing objection to the competency
determination.

Also at trial, Jones testified about a handwritten note he had received from Hill
while they were both in jail. Jones testified that his brother, who also was in jail at the
time, got the note from Hill and delivered it to Jones. The note was not signed by Hill.
The pertinent exchange between the prosecutor and Hill on the origin of the note reads:

"Q. [PROSECUTOR] Did you recognize the note as being from the Defendant?

"A. [JONES] It sounded like stuff he would have said in it.

"Q: I'm sorry?

"A. It sounded like he wrote it, or whatever.

"Q. It sounded like words the Defendant would say and use?

"A. Yeah.

. . . .

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"Q. And having been best friends with the Defendant for quite a number of years, are
you convinced [the note] is from the Defendant?

. . . .

"A. Yeah."

The note stated:

"Sly, I got you out this shit. But the drugs I can't. I'm going to do a statement with Harry
Smith. ['I did' is written to the side with an arrow to that sentence]. And tell them I done it
all and you was sleep when it went down! I'll tell them I put the bag in your house, with
out you knowing. (Scott Free you).

"P.S. When you walk. Remember I was there for you. I know you understand. I was
never late. I'm glad I seen your face one more time.

"P.S.S. Ball harder then your brother. If you still have that money give to my mom!!
Watch out for my two kids Sly please in money, clothes shit like that

"Lil Bro
"Much Real Love
"I was heated man they didn't have none of my $2,000
"gave them
"2 ps
"1 QP
"They played me Sorry it was at momma home [crying face]
"Nigga Don't Forget About My Games My Mother House Please Take!! [smiley face]."

The defense objected to admission of the note, arguing that the State had failed to
establish sufficient foundation because Jones did not testify that he was familiar with
Hill's handwriting. The district judge overruled the objection.

20

Hill also objected to admission of an autopsy photograph of Yanofsky's brain with
a rod through it, which showed the trajectory of the bullet. The district judge overruled
the objection. Coroner Mitchell used the photograph during his testimony to illustrate that
the bullet passed through portions of the brain controlling emotions and voluntary activity
and, thus, did not result in immediate death. Other photographs showed blood spatter on
the body that, Mitchell testified, was caused by Yanofsky when he coughed blood out of
his airway. Mitchell depended upon the brain photograph and the blood spatter
photographs to demonstrate that Yanofsky remained alive for a period of time after he
was shot.

At the conclusion of the State's case, defense counsel informed the district judge
that Hill would not be presenting any evidence. However, the defense proffered evidence
of voluntary intoxication and diminished capacity, defenses that would have been
asserted if Hill had been competent to stand trial. After the proffer, the judge asked Hill if
he understood that the voluntary intoxication and diminished capacity defenses were not
being presented and whether it was his conscious decision not to raise them. Hill said that
he understood and that it was his decision.

The instructions given to Hill's jury included an instruction on first-degree
premeditated murder of Yanofsky and on second-degree murder as a lesser-included
offense of first-degree murder. The defense requested an instruction on voluntary
manslaughter as another lesser-included offense of first-degree murder, arguing that
testimony about a fight between Hill and Yanofsky was sufficient to show heat of
passion. The judge refused to give the voluntary manslaughter instruction.

The jury found Hill guilty of capital murder, first-degree murder, possession of
marijuana with intent to sell, possession of drug paraphernalia, and failure to purchase a
tax stamp. The jury acquitted Hill of rape.

21

At Hill's sentencing hearing on April 4, 2005, the district judge deferred decision
on the capital murder conviction, pending a final decision in Kansas v. Marsh, 548 U.S.
163, 165 L. Ed. 2d 429, 126 S. Ct. 2516 (2006), concerning the constitutionality of the
Kansas death penalty. On the remaining convictions, the judge sentenced Hill to a hard
50 on the first-degree murder, 22 months on the possession of marijuana with intent to
sell, and 6 months on the tax stamp offense, all consecutive. The judge also sentenced
Hill to a concurrent 12 months in the county jail for misdemeanor possession of drug
paraphernalia.

Hill's appeal on the noncapital convictions and his sentencing on the capital
conviction were stayed pending Marsh. After the United States Supreme Court issued its
Marsh decision upholding the death penalty in June 2006, the district judge set the
penalty phase of Hill's capital proceeding to begin the following January. That
proceeding was rescheduled several times while the issue of Hill's competency was,
again, addressed.

Finally, in August 2008, the district judge granted a State motion to withdraw its
notice of intent to seek the death penalty and to vacate the sentence on the first-degree
murder conviction, based on this court's decision in State v. Scott, 286 Kan. 54, 183 P.3d
801 (2008). Two months later, the district judge sentenced Hill to life without the
possibility of parole on the capital conviction. He ordered the sentence to run consecutive
with the other remaining sentences.

Voluntary Manslaughter Instruction

The first issue before us is whether the district court erred in rejecting the defense
request for a lesser included instruction on heat-of-passion voluntary manslaughter.

22

When the defendant requests a lesser included offense instruction, a trial judge is
required to give it "'where there is some evidence which would reasonably justify a
conviction'" of the lesser included crime. See State v. Houston, 289 Kan. 252, 273, 213
P.3d 728 (2009) (quoting K.S.A. 22-3414[3] and State v. White, 284 Kan. 333, 347, 161
P.3d 208 [2007]). "'"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."'" Houston, 289 Kan. at 274 (quoting White, 284 Kan. at 347). In
determining whether a defendant is entitled to a lesser included offense instruction, the
evidence must be viewed in the light most favorable to the defendant. Houston, 289 Kan.
252, Syl. ¶ 12.

Voluntary manslaughter is "the intentional killing of a human being committed . . .
[u]pon a sudden quarrel or in the heat of passion." K.S.A. 21-3403(a). Heat of passion is
defined as "'any intense or vehement emotional excitement which was spontaneously
provoked from circumstances. Such emotional state of mind must be of such degree as
would cause an ordinary person to act on impulse without reflection.'" State v. Robertson,
279 Kan. 291, 305, 109 P.3d 1174 (2005) (quoting PIK Crim.3d 56.04[e]).

To be entitled to an instruction on voluntary manslaughter based on an act in the
heat of passion, Hill's "'emotional state of mind must exist at the time of the act and it
must have arisen from circumstances constituting sufficient provocation.'" State v.
Vasquez, 287 Kan. 40, 55, 194 P.3d 563 (2008) (quoting State v. Guebara, 236 Kan. 791,
796-97, 696 P.2d 381 [1985]). Legally sufficient provocation is "'calculated to deprive a
reasonable [person] of self-control and to cause [the defendant] to act out of passion
rather than reason.'" Vasquez, 287 Kan. at 55-56 (quoting State v. Horn, 278 Kan. 24, 42,
91 P.3d 517 [2004]). Whether provocation is legally sufficient is an objective, not a
subjective, determination. See Robertson, 279 Kan. at 306.

23

Hill argues that evidence that he shot Yanofsky as they were fighting was
sufficient to reach a jury on voluntary manslaughter. He relies on the following testimony
of the detective who interviewed him:

"Q. [PROSECUTOR] I also want to talk to you about the Defendant's version where he
was fighting with Sam in the bathroom.

"A. [DETECTIVE] . . . [I]nitially he told me they were fighting, and he told me the living
room area, the hallway, and then we ended up in the bathroom.

"Q. Okay, so they start in the living room and then they go to the bathroom?

"A. Yes.

"Q. And then somewhere in there, a gun somehow gets slid to him?

"A. Yes.

"Q. Okay. Where did the Defendant say he was in the bathroom when he shot Sam?

"A. He said he was on the floor and Sam was on top of him.

"Q. So he was laying on the floor and Sam Yanofsky was on top of him?

"A. Yes.

"Q. And how did he say he shot Sam?

"A. He said he picked up the gun and told Sam to quit, told him to quit a couple of
times. Sam wouldn't, and the gun discharged by accident."

In Hill's view, this evidence that Yanofsky was on top of him supported an assault
and battery by Yanofsky, making it reasonable that Hill could have been in fear of great
24

bodily harm. State v. Brown, 285 Kan. 261, Syl. ¶ 25, 173 P.3d 612 (2007)
("[P]rovocation must be more than mere words or gestures and, if assault or battery is
involved, the defendant must have a reasonable belief that he or she is in danger of great
bodily harm or at risk of death."). The problem with this argument is that this testimony
cannot support an intentional shooting, which is required for a heat-of-passion voluntary
manslaughter.

Certainly, there was other evidence at trial that Hill intentionally shot Yanofsky.
Indeed, that was the State's theory of the case. And there was some evidence about a fight
between Yanofsky and Hill. But there was no evidence that Hill intentionally shot
Yanofsky because he was provoked into doing so.

Under these circumstances, the district judge did not err in rejecting Hill's request
for a heat-of-passion voluntary manslaughter instruction. It is of no moment that Jones
ultimately was permitted to plead guilty to voluntary manslaughter under an aiding and
abetting theory, as Hill suggests but does not support. See State v. Torres, 280 Kan. 309,
321, 121 P.3d 429 (2005) (simply pressing point without pertinent authority, without
showing why it is sound despite lack of supporting authority akin to failing to brief
issue). Finally, we need not reach the skip rule relied upon by the State, as there was no
error in need of the cure it may provide. See Houston, 289 Kan. at 276 (unnecessary to
reach skip rule because judge did not err).

Peremptory Challenge

In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the
United States Supreme Court held that the Equal Protection Clause of the Fourteenth
Amendment prohibits the use of peremptory challenges to strike potential jurors on the
basis of race. Analysis of a Batson challenge, such as that pursued by Hill here, involves
three distinct steps, with different standards of review applied to each step. See State v.
25

Angelo, 287 Kan. 262, 272, 197 P.3d 337 (2008) (discussing State v. Pham, 281 Kan.
1227, 1237, 136 P.3d 919 [2006]).

The first step in the Batson analysis requires that a defendant make a prima facie
showing that the prosecutor has exercised a peremptory challenge on the basis of race.
Appellate review of the district judge's decision on this step is plenary. Angelo, 287 Kan.
at 271.

Second, once a defendant makes a prima facie showing, the burden shifts to the
prosecutor to articulate a race-neutral explanation for striking the prospective juror. The
prosecutor's burden is one of production, not persuasion. Thus the explanation does not
have to be persuasive, or even plausible; it need only be facially valid. Unless
discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be
deemed race-neutral. Angelo, 287 Kan. at 271. "[T]he ultimate burden of persuasion rests
with, and never shifts from, the opponent of the strike." Angelo, 287 Kan. at 272.

Third, the district judge determines the ultimate question—whether the defendant
has carried his or her burden of proving purposeful discrimination. 287 Kan. at 272
(quoting Pham, 281 Kan. at 1237). The decision on this step hinges on credibility
determinations and is reviewed for abuse of discretion. See Pham, 281 Kan. at 1237
(quoting Hernandez v. New York, 500 U.S. 352, 364-65, 114 L. Ed. 2d 395, 111 S. Ct.
1859 [1991]) (Decisive question in typical peremptory challenge inquiry whether
counsel's race-neutral explanation should be believed; seldom much evidence bearing on
issue; best evidence often demeanor of attorney exercising challenge; evaluation of such
demeanor "peculiarly within a trial judge's province"); compare Thaler v. Haynes, ___
U.S.___, ___ L. Ed. 2d ___, 130 S. Ct. 1171 (2010) (when demeanor of venire member
placed in issue by Batson challenge, ruling judge need not have observed or remember
venire member's demeanor).

26

Hill's appellate challenge based on Batson focuses on the credibility of the State's
proffered explanations for striking S.B., i.e., on the third step of the three-step analysis. If
the explanations are "implausible or fantastic justifications," they may be "pretexts for
purposeful discrimination." State v. Patton, 280 Kan. 146, 166, 120 P.3d 760 (2005)
(citing Purkett v. Elem, 514 U.S. 765, 768, 131 L. Ed. 2d 834, 115 S. Ct. 1769 [1995]),
disapproved on other grounds, State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006).

Hill argues that the prosecutor's concern about S.B. not listening to or believing a
codefendant's testimony was unbelievable because the record did not support it. This is
not the whole story. S.B. initially stated that she would not listen to a codefendant's
testimony; she later said she would listen to such testimony but would consider it with
suspicion. As Hill notes, S.B.'s second statement is consistent with the standard pattern
accomplice instruction, which was given in this case. See PIK Crim. 3d 52.18 (jury
"should consider with caution the testimony of an accomplice"). And the district judge's
earlier refusal to strike S.B. for cause was correct.

It does not follow, however, that S.B.'s survival of a challenge for cause made her
immune to peremptory strike. The rejection of the State's challenge for cause does not
mean that it could not employ similar reasoning as a basis for a legitimate peremptory
challenge. To be valid under Batson, the prosecutor's "explanation need not rise to the
level justifying exercise of a challenge for cause." Batson, 476 U.S. at 97. Moreover, the
purpose of a peremptory challenge is to strike prospective jurors not subject to challenge
for cause but who are believed to be "inclined against" a party's interests. Morrison v.
State, 818 So. 2d 432, 443-44 (Fla. 2002) (quoting Holland v. Illinois, 493 U.S. 474, 480,
107 L. Ed. 2d 905, 110 S. Ct. 803 [1990]) (not improper for State to "'exercise its
peremptory challenges to strike prospective jurors who are opposed to the death penalty,
but not subject to challenge for cause'").

27

Hill also attacks the validity of the State's second reason for striking S.B: her
questionnaire response about her opposition to the death penalty. In his view, this
explanation was pretextual for three interrelated reasons.

First, Hill argues, the jury was not going to decide whether to impose the death
penalty on Hill; thus S.B.'s questionnaire response was irrelevant. We see no abuse of
discretion on this basis. It would have been reasonable for the prosecutor to regard a
person with strong convictions against the death penalty as less likely to vote guilty as
well, even if he or she had been told that jurors would bear no direct personal
responsibility for choosing the defendant's punishment for the capital crime in this case.
Even if it were not reasonable, such a rationale for the peremptory strike of S.B. was
race-neutral, the only issue before the district judge. See State v. Trotter, 280 Kan. 800,
816, 127 P.3d 972 (2006) (State's use of peremptory challenge to strike African-
American venire member because of equivocal statements on death penalty race-neutral);
see also United States v. Ortiz, 315 F.3d 873, 897 (8th Cir. 2002) (peremptory strike
based on opposition to death penalty valid, race-neutral); Morrison v. State, 818 So. 2d at
444 (citing Walls v. State, 641 So. 2d 381, 386 [Fla. 1994]) (prospective juror's
discomfort with death penalty sufficient race-neutral reason for State's peremptory
strike).

In Hill's second argument on this point, he appears to characterize the State's
peremptory challenges as a method to "death qualify" the jury inappropriately, making
conviction more likely and his trial unfair. Again, this argument has nothing to do with
whether the prosecution's explanation was credibly race-neutral. Furthermore, this
argument runs contrary to the United States Supreme Court's holding in Lockhart v.
McCree, 476 U.S. 162, 90 L. Ed. 2d 137, 106 S. Ct. 1758 (1986). The Lockhart Court
rejected the proposition that a death-qualified jury, even if more prone to convict of
capital murder than a non-death-qualified jury, was constitutionally prohibited. Lockhart,
28

476 U.S. at 173. We see nothing, and Hill directs us to nothing, contrary to Lockhart in
Kansas constitutional or statutory law.

Lastly, Hill asserts that the State's pretext is exposed by its failure to ask S.B. any
questions about whether her position on the death penalty would affect her decision in the
guilt phase of his trial. Hill relies on language from Esteves v. State, 859 S.W.2d 613, 615
(Tex. App.1993): When "a prosecutor makes an assumption about a prospective juror but
does not question the prospective juror to verify the assumption, it is some indication that
[a] strike was not race-neutral."

Esteves is entirely distinct from this case. In it, the prosecutor did not ask a
prospective juror any questions before using a peremptory challenge to strike her. When
challenged, the prosecutor stated that she had struck the juror because the juror had been
staring at her, and the prosecutor thus assumed the juror was a member of the defendant's
family. Esteves, 859 S.W.2d at 614-15. On appeal, the court held the prosecutor's
explanation was not race-neutral, given the prosecutor's failure to examine the
prospective juror and the obvious illogic of the assumption she made in the absence of
such examination. See Esteves, 859 S.W.2d at 615 (citing Keeton v. State, 749 S.W.2d
861, 866 [Tex. Crim. 1988]). We are not faced with similar facts here. Hill's prosecutor
did not rely on ambiguous and subjective factors such as eye contact, posture, hairstyle,
or body language to speculate about S.B.'s position on the death penalty. There was no
need for speculation, whether logical or illogical. S.B. had made an unequivocal
statement about her position on the death penalty. Again, that position was a race-neutral
reason for the State's peremptory strike.

In addition, we have previously held that the State need not "probe more deeply"
into the effect of the prospective juror's answers on his or her ability to be fair and
impartial in order to uphold a peremptory strike as race-neutral. Trotter, 280 Kan. at 816.
Even the State's failure to ask any questions of a stricken minority juror does not
29

necessarily give rise to an inference that its strikes were racially motivated. A prosecutor
need not "specifically inquire about the link between its stated reason and the possible
effect on the potential juror's service[.]" 280 Kan. at 816-17.

The district judge heard S.B.'s answers during voir dire and observed her
demeanor. He also assessed the credibility of the prosecutor's explanations. Both reasons
for the strike given by the prosecutor appear to be supported by the record and are race-
neutral. There was no abuse of discretion.

Admission of Photograph

Hill argues the district judge abused his discretion in admitting an autopsy
photograph of Sam Yanofsky's brain, because the photograph, depicting the brain with a
flexible rod through it, was gruesome and inflammatory and irrelevant to any fact in issue
in the case.

In State v. Riojas, this court stated:

"The standard of review for the admission of photographic evidence requires the
appellate court to first determine whether the photos are relevant. If a party argued that
the photographs are overly repetitious, gruesome, or inflammatory, that is to say,
prejudicial, the standard of review is abuse of discretion." 288 Kan. 379, 387, 204 P.3d
578 (2009) (citing State v. Sappington, 285 Kan. 176, 194, 169 P.3d 1107 [2007]).

Such discretion is abused "'"when the admitted photographs were unduly
repetitious and cumulative or their introduction was solely for the purpose of prejudice."'
[Citations omitted.]." State v. Carter, 284 Kan. 312, 329, 160 P.3d 457 (2007).

"Generally, all relevant evidence is admissible. Evidence is relevant if it renders a
desired inference more probable than it would be without the evidence, or if it has any
30

tendency in reason to prove any material fact." Carter, 284 Kan. at 328 (citing K.S.A. 60-
401[b] and State v. Sexton, 256 Kan. 344, 349, 886 P.2d 811 [1994]). Photographs
depicting the extent, nature, and number of wounds inflicted are generally relevant in
murder cases. Riojas, 288 Kan. at 387. Even photographs that are gruesome are relevant
and admissible if they aid a pathologist in explaining the cause of death. 288 Kan. at 387.
Further, because the State has the burden of proving all the elements of the crime
charged, photographs used to prove the elements of the crime, including the fact and
manner of death and the violent nature of the crime, are relevant and admissible even if a
defendant does not contest the cause of death. 288 Kan. at 387.

Hill argues that the only point of the photograph was to demonstrate that Yanofsky
did not die immediately after he was shot. That point, he argues, was relevant in only two
possible ways: to prove the "heinous, atrocious, and cruel" aggravating factor in a capital
penalty phase or to corroborate Jones' testimony tending to show Yanofsky did not die
immediately. The first use was premature, according to Hill, and the second use was
unnecessary because Mitchell's testimony and the blood spatter pictures were adequate to
the State's purpose. Hill also argues that he did not contest Mitchell's assertion that the
blood spatters resulted from Yanofsky coughing up blood after being shot. In short, the
brain photo was not needed to show the trajectory of the bullet.

The State responds that the trajectory of the bullet that killed Yanofsky was
relevant to the fact and manner of death and the violent nature of the crime. In addition,
the photograph helped Mitchell to explain the nature and extent of Yanofsky's injuries
and supported the State's theory that he survived for some time after being shot, which
was relevant to premeditation and intent. The State concedes that it also believed the
photograph would eventually be relevant to the "heinous, atrocious, and cruel" factor at
sentencing, but it did not ultimately rely on that factor.

The State has the more persuasive argument on this issue.
31


Although Hill did not contest the State's theory that Yanofsky initially survived
the gunshot wound, the State still had the burden to prove all of the elements of the
crime, including cause and manner of death. The brain photograph was relevant on this
point. Also, the evidence that Hill did not seek medical attention for Yanofsky
circumstantially supports premeditation and intent to kill. See State v. Holmes, 278 Kan.
603, 634, 102 P.3d 406 (2004) (circumstantial evidence of premeditation when defendant
saw blood bubbling out of victim's mouth, did not seek medical attention for her); see
also State v. Warledo, 286 Kan. 927, 946, 190 P.3d 937 (2008) (blood spatter
photographs relevant, admissible because they helped illustrate violent nature of crime,
fact tending to prove defendant acted with intent to kill).

We also do not believe that the prejudicial nature of the photograph substantially
outweighed its probative value. See Warledo, 286 Kan. at 945. The photograph was not
unduly repetitious or cumulative. See Carter, 284 Kan. at 329. It was the only photograph
that illustrated the pathologist's testimony explaining how a bullet could pass though
Yanofsky's brain without killing him instantly. The gruesome nature of this photograph
was not "so extreme that it compels the conclusion it was admitted solely to cause undue
prejudice" to Hill, see Carter, 284 Kan. at 329, in spite of any "special care" to be taken
in the admission of autopsy photographs. See State v. Hernandez, 284 Kan. 74, 100, 159
P.3d 950 (2007) (quoting State v. Carr, 265 Kan. 608, 623, 963 P.2d 421 [1998]);
compare State v. Hoffman, 288 Kan. 100, 108-09, 200 P.3d 1254 (2009) (autopsy
photographs of victim's cranial cavity, brain, and larynx not unduly gruesome), with State
v. Boyd, 216 Kan. 373, 377, 532 P.2d 1064 (1975) (error to admit autopsy photographs
unnecessarily showing effect of autopsy on victim's body).

There was no abuse of discretion on this issue.

Admission of Handwritten Note
32


Hill next argues that the district judge abused his discretion in admitting the
handwritten note purportedly written by Hill.

Defense counsel objected to admission of the note based on chain of custody;
however, the explanation of the basis for the objection was failure to authenticate, not
chain of custody. Both grounds for objection attack foundation. See State v. Taylor, 231
Kan. 171, 174, 642 P.2d 989 (1982) (chain of custody part of foundation for admission of
physical evidence); State v. Milum, 202 Kan. 196, 198, 447 P.2d 801 (1968)
(authentication provided sufficient foundation for admission of note). The State does not
challenge the adequacy of Hill's preservation of this issue for appeal. We thus move to
the merits of whether the note was sufficiently authenticated.

"Whether or not the authenticity of a writing is sufficiently established to render it
admissible in evidence is a matter largely within the discretion of the trial court.
[Citations omitted.]" State v. Milum, 202 Kan. at 198.

K.S.A. 60-464 provides: "Authentication of a writing is required before it may be
received in evidence. Authentication may be by evidence sufficient to sustain a finding of
its authenticity or by any other means provided by law."

Hill cites State v. Plaskett, 271 Kan. 995, 1018, 27 P.3d 890 (2001), in support of
his argument. In Plaskett, a prosecution of a stepfather for sexual abuse of his
stepdaughter, the district court refused to admit letters written to the victim by her
biological father on hearsay grounds when the biological father was not present and did
not testify. The victim had identified the handwriting in the letters as that of her
biological father. Plaskett, 271 Kan. at 1015-16. On appeal, this court ruled that
defendant did not seek to admit the statements in the letters for the truth of the matter
asserted; thus hearsay was not a proper basis for excluding them. Instead, this court ruled
33

that the district court judge should have evaluated admissibility of the letters under
K.S.A. 60-464. Applying that rule, the notes were properly authenticated. Plaskett, 271
Kan. at 1017-18. The Plaskett opinion notes that the victim identified her biological
father's handwriting, but the court did not hold that such an identification is indispensable
to sufficient authentication of the handwritten documents under K.S.A. 60-464.

Under Kansas law, "[t]he authorship or authenticity of a letter 'may be proved by
indirect or circumstantial evidence, as other facts.'" State v. Uhls, 121 Kan. 587, 598, 249
Pac. 597 (1926). "Authenticity or genuineness of a writing may be proved not only by
establishing the genuineness of the writer's signature, or identity of the handwriting
contained in the instrument, but also, under proper circumstances, by indirect or
circumstantial evidence without resort to proof of handwriting. [Citations omitted.]"
Milum, 202 Kan. at 197. When "the contents themselves reveal knowledge peculiarly
referable to a certain person or the contents are of such nature that the letter could not
have passed between persons other than the purported writer and the person to whom it
was delivered[,]" circumstantial evidence is sufficient. Milum, 202 Kan. at 198.

The facts of our Milum case were very similar to those before us now, and its
reasoning provides guidance. In Milum, the contested writing was a note signed with the
defendant's first name and sent through a jail employee to the defendant's alleged
accomplice. The note told the alleged accomplice that he would be "'taken care of'" if he
testified against the defendant. Milum, 202 Kan. at 197. The alleged accomplice was
unable to identify the handwriting as the defendant's, but he said that he knew no one else
at the jail with the same name as the defendant and that he had never had trouble with any
person by that name except the defendant. Milum, 202 Kan. at 197.

On appeal this court applied the rule that a party may show the authenticity of a
document by circumstantial evidence. Milum, 202 Kan. at 198. The note's contents and
other circumstantial evidence supported a reasonable inference that the defendant had
34

written the note, which was adequate proof of its authenticity and supported its admission
into evidence. Milum, 202 Kan. at 198.

In this case, Jones testified that Hill passed the note to Jones' brother, who then
passed the note to Jones. Although Jones was not asked if he recognized the handwriting
in the note as Hill's, he did testify that he was certain Hill wrote the note because its
contents "sounded like stuff he would have said" and "[i]t sounded like he wrote it, or
whatever." In addition, Jones was Hill's best friend; this relationship further supported his
certainty that Hill authored the note. The note also referred to facts about the case that
could give rise to additional inferences about Hill's authorship.

Under these circumstances, the State sufficiently authenticated the note for
admission into evidence. The district judge did not abuse his discretion.

Competency to Stand Trial

Hill next argues that the district judge erred in finding him competent to stand trial
because the evidence established that he was unable to assist in his defense and that he
did not have an understanding of the charges against him.

Our standard of review is abuse of discretion:

"'On appeal, a reviewing court's inquiry regarding the decision of a district court that a
defendant is competent to stand trial is whether the trial court abused its discretion.
[Citation omitted.] Judicial discretion is abused where no reasonable person would take
the view adopted by the trial court. If reasonable persons could differ as to the propriety
of the action taken by the trial court, then it cannot be said that the trial court abused its
discretion.' [Citations omitted.]" State v. Kleypas, 272 Kan. 894, 984, 40 P.3d 139 (2001),
cert. denied 537 U.S. 834 (2002), overruled in part on other grounds by State v. Marsh,
278 Kan. 520, 102 P.3d 445 (2004).
35


K.S.A. 22-3301(1) provides the pertinent definition: "[A] person is 'incompetent to
stand trial' when he is charged with a crime and, because of mental illness or defect is
unable: (a) To understand the nature and purpose of the proceedings against him; or (b) to
make or assist in making his defense."

A criminal defendant may not be tried unless he or she "'has sufficient present
ability to consult with his lawyer with a reasonable degree of rational understanding . . .
[and] a rational as well as factual understanding of the proceedings against him.'" State v.
McKinney, 265 Kan. 104, 107, 961 P.2d 1 (1998) (quoting Dusky v. United States, 362
U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 [1960]). "'"[I]f the accused is capable of
understanding the nature and object of the proceedings going on against him; if he rightly
comprehends his own condition with reference to such proceedings, and can conduct his
defense in a rational manner, he is, for the purpose of being tried, to be deemed sane,
although on some other subject his mind may be deranged or unsound." [Citations
omitted.]'" State v. Shopteese, 283 Kan. 331, 341, 153 P.3d 1208 (2007) (quoting Van
Dusen v. State, 197 Kan. 718, 722-23, 421 P.2d 197 [1966]).

A criminal defendant is presumed competent to stand trial. State v. Cellier, 263
Kan. 54, Syl. ¶ 6, 948 P.2d 616 (1997). The party who raises the issue of competence has
the burden of going forward with the evidence, and the burden of proof is preponderance
of the evidence. Cellier, 263 Kan. 54, Syl. ¶ 4.

Counsel for Hill argues:

"There is no rational spin that can be put on Mr. Hill's refusal to consult with his
attorneys about a trial defense, and his simultaneous refusal to engage in plea bargains.
His understanding of the proceedings against him was irrational where his interpretation
of specific biblical passages showed him that the charges would be dismissed on the first
day of trial."
36


Counsel asserts that Hill's inability to assist in his defense deprived him of the
benefit that could have been gained from affirmative defenses of voluntary intoxication
and diminished capacity.

The State contends in response that the district judge's determination of Hill's
competency followed careful deliberation and weighing of the extensive evidence. It was,
the State asserts, within the district judge's discretion if he chose to give more weight and
credit to the conclusions of Larned staff members or his own interactions with Hill, when
compared with the opinions of defense experts.

Defense counsel directs our attention to three cases in the substantive portion of
his argument on this issue.

The first, Drope v. Missouri, 420 U.S. 162, 177-78 n.13, 43 L. Ed. 2d 103, 95 S.
Ct. 896 (1975), dealt with the relevance of defense counsel's opinions on a defendant's
competency. The record before us demonstrates that the district judge considered defense
counsel's opinions on Hill's ability to comprehend the proceedings and assist in his own
defense. The judge specifically stated:

"I have no reason to ever doubt anything [defense counsel] would ever say or tell
me, but what – what might be one person's lack of cooperation might be cooperation to
another person, and it just may be that you're basing Nathaniel's appearance of inability
or lack of cooperation against all of the other cases where, I'm sure, there was, probably,
in some cases more than enough cooperation, and it just seems hard to believe that
someone charged as Nathaniel is charged would – would be unwilling to participate, as
you feel that he should, but perhaps, for some reason, Nathaniel thinks that this is what is
in his best interest and that's the road that he's decided to travel down, and if that
continues, then I – I want to say I'm sorry, and I hope that that's not the case, because as
you've so eloquently put in your memorandum, not only is it my duty, but it is everyone's
duty to try and provide him with the fairest possible trial as possible, and I would hope
37

that he would participate as much as you think is necessary so that you could feel that he
is getting the fairest trial – or defense that could be presented, so . . . I've made a
determination that Nathaniel is competent to stand trial."

The second case cited by defense counsel is State v. Davis, 277 Kan. 309, 85 P.3d
1164 (2004). Davis concerned an ineffective assistance claim based on failure to request
a second competency hearing. In that case, the defendant had a long history of more than
30 hospitalizations and treatment for various mental health issues; he was not consistently
taking prescribed antipsychotic medication while in custody awaiting trial; he was found
incompetent and committed to Larned. While there, he took his medication and,
eventually, was found competent to stand trial. Davis, 277 Kan. at 316-18. The district
judge appointed new defense counsel for the defendant; and, before trial, that counsel
received four incomprehensible notes from the defendant. The defendant also stopped
taking his medication and began having hallucinations. Davis, 277 Kan. at 318-20, 323.
Although counsel had some doubts about the defendant's competency, he did not pursue
the issue. Davis, 277 Kan. at 319-22.

This court held that trial counsel was ineffective for failing to investigate the
defendant's competency and for failing to seek another competency hearing. The
combination of the defendant's extensive history of mental illness and frequent
commitments, the evidence supporting the first determination of incompetency, the fact
that the defendant was found competent only after being treated at Larned and taking his
medication consistently, and the four incomprehensible notes meant that counsel was
required to investigate the competency issue anew and seek a hearing. Davis, 277 Kan. at
323-24.

Although it is true that Hill, like the defendant in Davis, stopped taking his
medication, the similarities between his case and Davis end there. In Davis, the
functioning of a defendant who was found to be incompetent thereafter improved with
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medication and then deteriorated without it. Here, the district judge did not rule that Hill
was incompetent before he began taking medication; rather, the judge held his ruling on
competency in abeyance before any medication was administered. After Hill spent time
being evaluated and took and refused to take medication, the judge ruled that Hill was
competent to stand trial under all of the evidence marshaled by the State and diligent
defense counsel. Davis did not decide that a defendant's neglect or refusal to take
medication designed to enhance his or her mental health would require a district court's
finding of incompetence to stand trial. It merely illustrated that such neglect or refusal
can be among the factors considered on the competency issue. That is exactly what
happened here.

The last case to which defense counsel refers us on the competency issue is State
v. Barnes, 263 Kan. 249, 948 P.2d 627 (1997). Barnes, in the defense view, is
distinguishable.

In Barnes, a defense expert testified that the defendant suffered from paranoid
schizophrenia, depressive disorder, post-traumatic stress disorder, and dementia from a
possible childhood head trauma. In his opinion, the defendant was incompetent to stand
trial

"because he was preoccupied with delusions and would not be able to testify in a rational
manner or assist in his defense . . . [T]the defendant might possibly feel paranoid and
believe his attorney to be against him and, as a result, might withhold information from
his attorney. Further, . . . the defendant's borderline mental retardation would make it
difficult for him to understand the courtroom proceedings." Barnes, 263 Kan. at 264.

On cross-examination, the defense expert testified that the defendant
understood the nature of the court proceedings and was able to describe the
functions of many of the participants in the courtroom, including defense counsel.
Barnes, 263 Kan. at 264.
39


The State's expert testified that the defendant was competent, that he understood
the legal process, and that he was able to cooperate and answer questions in a coherent
manner. In his opinion, there was "no evidence of thought disorder or paranoid
delusions," and the "defendant could remember the conversation from one visit to the
next and understood generally the role of various components of the legal process."
Barnes, 263 Kan. at 259, 264.

On appeal, this court recognized that the parties had presented conflicting
evidence but affirmed the district judge's competency determination, giving appropriate
deference under the governing standard of review:

"It is undeniable that the defendant has some mental problems. However, there is
conflicting evidence on the question whether these problems would render him
incompetent to stand trial. Both expert witnesses who testified indicated that the
defendant had comprehension of the roles of the various participants in the trial and
understood the crimes with which he was faced, as well as the possible ramifications of
conviction of those crimes. As for his ability to help with his defense, the evidence
indicated that the defendant was able to respond appropriately in court and cooperate
with his attorney to the extent that the defendant refused to be examined by [a State
expert] without his attorney present. Although [the defense expert] testified that the
defendant's alleged paranoia might cause him to fail to cooperate with his defense
attorney, this was mere speculation, and there was no indication that such paranoia
surfaced during trial.

"The testimony regarding the defendant's memory retention ability is an area of
concern. However, although [the defense expert] testified that the defendant was
woefully deficient in this area, [the State's expert] testified that he saw no problems with
the defendant's ability to recall recent events. [The State's expert] also testified that the
defendant met many of the factors which would at least indicate the defendant might be
malingering.

40

"Based on these factors, the district court's determination that the defendant was
competent to stand trial was not one with which no reasonable person would agree.
Under our standard of review, we conclude that the district court did not abuse its
discretion." Barnes, 263 Kan. at 264-65.

We do likewise here. The district judge in this case had before him conflicting
evidence on Hill's mental stability. He acted well within his discretion in weighing this
evidence and the parties' competing arguments. To the extent he trusted the opinions
originating from the Larned team more than those from the defense, he was entitled to do
so. In addition, there was ample evidence tending to demonstrate that Hill's problems
with his counsel related to his disagreement with their recommendations. Hill's
interactions with the judge reinforced that interpretation, as well as the judge's ultimate
conclusion that he was capable of cooperating with counsel, if he chose to do so. A
district judge has authority to consider his or her observations of a defendant in assessing
competency. See Cellier, 263 Kan. at 71 (judge's observations appropriately considered);
see Barnes, 263 Kan. at 264-65 (defendant's responses in court supported conclusion on
his ability to help with his defense).

Under the circumstances of this case, there was sufficient evidence that Hill
understood "'"the nature and object of the proceedings going on against him[,] . . . rightly
comprehend[ed] his own condition with reference to such proceedings, and [could]
conduct his defense in a rational manner[.]"' [Citations omitted.]" Shopteese, 283 Kan. at
341. It cannot be said that no reasonable person would have found the defendant
competent to stand trial; thus the district judge did not abuse its discretion.

Conclusion

Each of the five issues raised by defendant Nathaniel L. Hill in this appeal lacks
merit. The judgment of the district court is affirmed.