261 Kan. 567
(932 P2d 981)
No. 71,971
STATE OF KANSAS, Appellee, v. JERRY D. RICE, Appellant.
SYLLABUS BY THE COURT
1. Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal evidence rests in the sound discretion of the trial court, and its ruling will not be reversed unless it appears the discretion has been abused to a party's prejudice.
2. Under K.S.A. 60-460(a), a statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter is not inadmissible hearsay, provided the statement would be admissible if made by the declarant while testifying as a witness.
3. When the State seeks to introduce evidence in a criminal case through K.S.A. 60-460(a), the declarant must actually testify and be subject to cross-examination without claiming the inability to remember the statement or refusing to testify by invoking Fifth Amendment rights. Thus, putting the declarant on the stand prior to admitting testimony about the declarant's out-of-court statement, while not technically required, is the best practice and serves to limit the possibility of reversible error.
4. Evidence of previous cruel and brutal assaults may be used in a marital homicide case on the question of motive and intent for the purpose of showing malice and hatred on the part of the defendant. It may also be used to show the relationship of the parties or a continuing course of conduct, or to corroborate the testimony of witnesses as to the act charged.
5. The admission of relevant cumulative evidence is within the discretion of the trial court and will not form the basis for reversal unless the trial court abused its discretion.
6. Where reliance is placed upon circumstantial evidence, the circumstances in question must themselves be proved and cannot be inferred or presumed from other circumstances.
7. Both premeditation and homicide may be supported by circumstantial evidence if that evidence is sufficiently strong to support a finding beyond a reasonable doubt that the defendant both premeditated a killing and subsequently committed the homicide.
8. Dealing lethal blows after the victim is rendered helpless by the attacker supports an inference of premeditation and deliberation.
9. The basis for the admission of expert testimony is necessity arising out of the particular circumstances of the case. To be admissible, expert testimony must be helpful to the jury. Where the normal experience and qualifications of lay persons serving as jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are inadmissible.
10. An expert's opinion, pursuant to K.S.A. 60-456, is admissible up to the point where an expression of opinion would require the expert to pass upon the credibility of witnesses or the weight of disputed evidence. An expert witness may not pass on the weight or credibility of evidence.
11. Where an unsolicited, unresponsive, and improper remark is given by a witness to a proper question resulting in the erroneous disclosure of evidence, the case turns on whether a limiting instruction was given and the degree of prejudice to the defendant.
12. The Sixth Amendment right to counsel is the right to the effective assistance of counsel. The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
13. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction requires that the defendant show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.
14. The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the effectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.
15. In examining a defendant's claim of ineffective assistance of counsel, with regard to the required showing of prejudice, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.
16. Once a proper determination of the issue of claimed ineffective assistance of counsel has been made by the trial court, the scope of review by the appellate court is to review de novo the trial court's analysis of the performance and prejudice components, which are mixed questions of law and fact.
17. Under the facts of this case, trial counsel's performance was unreasonably deficient where counsel's advice that the defendant should not testify was not based on any justifiable strategic considerations but on counsel's attempt to practice law in a jurisdiction where he was not licensed and without having a correct understanding of the Kansas rules of evidence or taking the necessary steps to properly determine one of the critical components of the decision of whether the accused should testify. Equally deficient is the conduct of Kansas counsel who undertook local representation, but who did not ensure he was actually involved in all aspects of the defense.
18. Under the facts of this case, the defendant's testimony would not have had any critical effect on major portions of the strategy of the defense; there is considerable evidence sufficient to uphold the verdict which would not have been affected by the defendant's testimony; and the defendant has failed to show that had he testified there is a reasonable probability that the result of the proceeding would have been different. The required showing of prejudice because of ineffective assistance of counsel has not been satisfied by the defendant.
Appeal from Wyandotte district court; DANIEL A. DUNCAN, judge. Opinion filed January 31, 1997. Affirmed.
Carl E. Cornwell, of Cornwell & Edmonds, of Overland Park, argued the cause, and Keith C. Sevedge, of Lenexa, was with him on the brief for appellant.
Michael Russell, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
LARSON, J.: This case involves Jerry D. Rice's conviction of the September 14, 1992, first-degree murder of his wife, Dorlinda "Lindy" Stakely-Rice, in which a sentence of life imprisonment with no chance of parole for 40 years was imposed. After appeal to this court, we remanded for a hearing to consider the merits of Rice's claim of ineffective assistance of counsel. The trial court found that although Rice's Missouri-licensed trial counsel labored under an incorrect understanding of Kansas law which caused Rice to decide not to testify, nevertheless counsel's representation was not so deficient as to require a new trial. Rice appealed, alleging both trial errors and his counsel's ineffectiveness.
Statement of Facts
The evidence was hotly disputed, and much of the testimony was contradicted by other evidence. The following is a summary of the testimony of the many witnesses presented.
The case against Rice was proven by circumstantial evidence. No body was ever found, and no witnesses had observed Rice murder Lindy. On September 14, 1992, Lindy telephoned Margaret Flynn, her mother, about 11 to 11:15 p.m. Lindy was upset and said she was leaving and bringing the children over to Flynn's house because Rice was acting crazy. She said Rice was demanding $20,000. Flynn did not see or hear from Lindy after that conversation, even though she was in the habit of talking to her daughter every day. Flynn said Rice told her Lindy had left by car. In addition, Flynn claimed Rice did not file a missing persons report with the police, despite his promise to do so, until she told him she was going to file one.
Flynn testified she had given Lindy keys to her house and vehicles. Lindy kept those keys in the bottom of her purse because she did not want anyone to know that she had them. About 2 months after Lindy's disappearance, Rice returned the keys.
Terrisa Hicks, Lindy's eldest daughter, was pregnant when her mother disappeared and had told her the due date was November 12, 1992. Lindy was planning to be at the birth along with her mother and grandmother so they could take a picture of five generations. Lindy was not present when Hicks gave birth. In March 1993, Hicks' child died. Again, Hicks heard nothing from her mother.
Before Lindy disappeared she had scheduled abdominal surgery for her young son, Mark Lyons, Jr. (Mark). She had been very concerned about the surgery and had been planning to go. However, when Mark had the surgery, she was not there.
Jackie Rowland, Lindy's sister, testified that Lindy was "very big on holidays." However, Rowland had not received any birthday card from Lindy since her disappearance. Neither had any other family member.
On a Friday in mid-September 1992, Lindy had contacted Marilyn Hobbs, an intake coordinator at the Salvation Army, about a detoxification program for cocaine users. She wanted to get into a program where Rice did not know where she was. Hobbs told Lindy they did not have bed space but that she should call back the following Monday. Lindy did not.
Late at night on a Thursday in October, Hobbs received a collect telephone call from someone named Dolinda, Dorlinda, or Belinda. The voice, which did not sound like Lindy's, said, "I'm with three girls" and then hung up. Hobbs called Rice to tell him she might have gotten a call from Lindy.
A number of witnesses found it incredible that Lindy would leave her children with Rice. Flynn testified Lindy had never left her children with Rice. Rowland agreed that Lindy would never have left her children with him. Rowland's daughter, Melissa, agreed and also testified that Amanda Lyons, Lindy's daughter, was distant from Rice and thought he was a bad man. Hicks testified there was not much of a relationship between the children and Rice. They stayed away from him, and he would always eat upstairs alone away from them. Rowland testified that when Mark and Amanda returned to Kansas after Rice had taken them to Minnesota, they had a panic attack when they thought they were being driven to Rice's house. Carolyn Stevens testified that Lindy would not have left her children and spoke of taking them with her when she did talk about leaving Rice.
Lela Faye Chambers said she "took up" with Rice and moved into his house on September 18, 1992. She claimed Rice had told her at the time that his wife had left with another man early in the morning 5 weeks before. When she asked him what he would do if she returned, he said he would tell her to "get the hell . . . off the hill." Chambers testified she took care of Mark and Amanda and they acted scared and frightened. They would get very nervous when she asked them what happened to their mother and indicated they were not supposed to talk about it. When police came to search the house, Rice watched from a nearby expressway and questioned Chambers about what the police did when he saw her later. According to Flynn, Chambers was Rice's girlfriend while Lindy was alive. She moved in with Rice the day following Lindy's disappearance.
Mark Lyons, Sr., testified he was Lindy's third husband and the father of Mark (10 years old at the time of trial) and Amanda (6 years old at the time of trial), two of Lindy's children and principal witnesses in the State's case. Lyons testified that in October 1992, Rice telephoned him and told him he was bringing the children up to Minnesota for a visit. When Rice arrived, he acted nervous and told Lyons that Lindy had run off.
After living with his father for about a week, Mark began talking about what had happened to his mother and said he thought Rice had killed her. About a week later, Amanda began talking about the same events.
The State called both Mark and Amanda as witnesses. Mark testified he had not seen his mother since before Rice took him to Minnesota to live with his father. He testified she did not contact him on either of his two most recent birthdays, send him cards, or give him any presents. Nor did he see her at Christmas.
The last time Mark saw his mother was in Kansas on a night when Rice and Lindy were fighting. Lindy was lying on the ground outside while Rice was sitting on her and hitting her in the face with his fist. Then, in the kitchen, Lindy was pushing Rice and screaming while Rice hit her in the face. Later, in Amanda's room, Rice hit Lindy in the face and stomach with his fist. By this time, Lindy was moving only a little bit and saying nothing. Then, according to Mark, Rice dragged Lindy upstairs by her hair. Once they were upstairs, Mark heard the bed moving. In the course of the altercation, a china cabinet was destroyed.
Mark testified that Rice told him to go to his room, but he had come back out when he heard his mother scream. Rice told him to tell no one what he had seen.
Mark further said that the next morning Rice told Amanda and him not to go upstairs. When Rice went outside to sell a truck, Mark and Amanda went upstairs to find their mother. They found the bathroom door closed and blocked by a dresser. They moved the dresser a little bit--enough to open the door to see in. Lindy was lying on the floor, her face bruised and her eyes closed. She made no sound and did not respond when they called to her. When they heard Rice coming back inside, they ran downstairs into Amanda's room and pretended to be playing so they would not get into trouble.
Rice took Mark and Amanda to the sitter's house, and when they returned, Rice permitted them to go upstairs. The dresser was moved back into its original place, and Lindy was not in the bathroom.
Amanda's testimony largely corroborated Mark's, although it varied in a few details. She recalled Rice punching her mother in the face that night before she disappeared. She also saw him kick Lindy in the ribs and drag her upstairs by the hair. Amanda tried to call 911, but Rice had disconnected the telephone. She recounted the same story as Mark had regarding the next morning and their investigation of what had happened to their mother. She also testified that Rice made them pick up the pieces of the broken china cabinet and they cut their feet while collecting the shattered glass. Like her brother, she had no contact with her mother after that night.
On cross-examination of Mark and Amanda, Rice's counsel pointed out the inconsistencies in the stories they had told at various times about their mother's disappearance, including a story Mark told that a white car had arrived early in the morning following the beating and that when he saw his mother on the bathroom floor, he thought she might be sleeping. On redirect, Mark clarified that he did not see his mother get into the car that came by and thought his mother was dead when he saw her lying in the bathroom.
The State also presented evidence of several claimed suspicious actions after the alleged crime to show that Rice had attempted to destroy evidence to escape detection. In the summer of 1992, before Lindy's disappearance, Lindy, with the help of friends and relatives, remodelled the house where she and Rice lived. They took down pictures and painted the walls; scrubbed and shampooed the carpeting, covering damaged areas with rugs; and refinished woodwork and cabinets. They had not replaced the carpeting because Rice said they did not have enough money.
In mid-September 1992, shortly after Lindy's disappearance, Rice commissioned William Schaal to redecorate the house, including new paint and carpeting of the stairway, the upstairs bedroom, and the upstairs bathroom in which the children had seen Lindy during the beating on the night of her disappearance. The only carpeting that was replaced was in these three areas.
Rice and Lindy's house was located next to a landfill where a yellow bulldozer was kept. Hicks had seen Rice use the bulldozer from time to time in his yard. About 2 days after Lindy's disappearance, Mark saw Rice operating the bulldozer in the landfill near the house.
The abandoned Argentine mines run under Rice's property. Subsidences, or sinkholes, open up from the surface periodically as the ceilings of the mine shafts collapse. Numerous subsidences existed in the area of the house.
A witness testified that one hole that led into the mines was filled in by Rice with a bulldozer in late September 1992. A police search of the house and grounds with several officers and cadaver dogs revealed no forensic evidence.
The defense called numerous witnesses to testify on Rice's behalf. Robin Jones, who testified she was Lindy's best friend, saw Lindy on September 14 and testified that Lindy was having an argument with Rice about the business books of a bar they operated. She also testified that Lindy used both prescription and street drugs. In addition, she testified that Lindy had left her children with Rice on one occasion for 3 to 5 days and that Rice and the children had a close and loving relationship. (Another defense witness, Mary Collins, later corroborated that Rice and the children had a loving relationship.) Jones said that at one point in 1990, Lindy left the children with her for 3 months, never visiting and calling only occasionally. She testified she had seen Lindy in a drunken state, passed out, and unable to be awakened. Jones acknowledged that Lindy and Rice fought, but attributed the bruises to Lindy being clumsy. She testified the photograph showing Lindy with black eyes was from her former marriage, as Mark Lyons, Sr.'s, house appeared to be in the background. Finally, Jones testified that she had made and distributed fliers with Rice to try to locate Lindy after her disappearance. On cross-examination, Jones admitted that Lindy had told her three or four times that Rice had beaten her.
Monte Morris testified for the defense, stating that he knew the Rices and that in August 1992, Lindy had told Flynn and him that she was going to leave Rice.
Mary Collins testified that when Lindy redecorated, she had painted around some of the pictures on the walls and that some of the carpeting that was later replaced smelled strongly of urine from one of the children. She also testified that the photograph of Lindy with black eyes had been used in a divorce from her previous husband. Delores Stuart also testified this was true.
Jamie Beech testified she had taken care of Lindy's children for 3 months in 1988 and that Lindy had visited only twice and had never called on the telephone, but that Rice came by regularly with money for food.
Ted Jansen, who operated the bulldozer at the landfill, testified that the company records showed that no bulldozer was on the site in September 1992. He said he never knew of Rice operating one of the bulldozers and that when equipment is left at the landfill it is incapacitated by lifting the seat and taking off the negative battery cable.
Rice's mother, Bernice Rice, testified that Flynn had told her, "Oh don't worry about Lindy, she has been missing before several times, and one time she was gone for three years but she always came back."
The defense also called four witness who claimed to have seen Lindy after September 15, 1992. The first was Theresa Prenger. Prenger was a bartender in Jefferson City, Missouri, who claimed to have a habit of memorizing people and their drinks. She testified that once in October or September 1993 she saw Lindy at the bar where Prenger worked. On cross-examination, she admitted she could not remember what Lindy had to drink, but presumed it was beer. She also admitted that she thought she had seen Lindy on another occasion, but found out she was mistaken.
Carl Berryman was the owner of a topless juice bar in Booneville, Missouri. He testified that Lindy came to work for him in June or July 1993. At the time, she used the name Cindy Brusso. On cross-examination, Berryman testified that the picture on the driver's license of Sandra Brusso was of the same person who had danced in his bar. The State later brought in Brusso, who testified she was the woman to whom Berryman had referred.
Sami Stern testified that she had known Lindy for over 20 years. She testified she had seen Lindy at a bar in Booneville, Missouri, on May 19, 1993. Stern knew Lindy was missing and encouraged her to go back and let people know she was alive. Lindy reportedly replied, "No, you don't understand. You don't understand." The next day Stern met with Lindy at Taco Bell and brought up the subject of Rice's trial. Again, Lindy responded, "You don't understand the circumstances." Stern also testified that this was not completely unusual for Lindy and that Lindy and she had gone to Meridian, Mississippi, for a year on a whim several years before. Stern produced a friendship ring that she claimed Lindy had taken off and given to her in Booneville. After allegedly meeting with Lindy, Stern did not call the police or Lindy's family, but contacted Rice's sister before the trial.
Joanne Siler also testified to seeing Lindy after her disappearance. Siler claimed she had seen Lindy at Oak Park Mall in Overland Park, Kansas, on August 29, 1993. Siler watched Lindy nervously looking out the door of a Dillard's store as if she seemed to be waiting for someone. She did not approach Lindy because she did not think Lindy would know who she was. Siler continued to watch her for about 12 minutes. After a while, a man arrived and walked with Lindy into the main part of the mall. Siler did not know Lindy well but claimed to know her by sight. She had talked with her only once, briefly, at a funeral. After seeing Lindy at the mall, Siler did not contact the police, the district attorney, Rice, or Rice's defense counsel, but told a friend, who in turn contacted Rice's sister, Dixie Frazier. Siler admitted she was a good, long-time friend of both Rice and Frazier.
In rebuttal, the State recalled Jackie Rowland, who testified that Lindy was not in Meridian, Mississippi, with Stern at the time Stern had claimed. Rowland also testified she did not know who Stern was. The State also recalled Lindy's daughter, Terrisa Hicks. Hicks testified she wore the same size ring as Lindy and that the ring Stern claimed Lindy had given her was too large.
Hicks also disputed Beech's testimony that she had taken care of Lindy's children for 3 months while Lindy had almost no contact with them. She testified that during the 2 months Beech babysat, Lindy talked with Hicks daily by telephone and visited three times a week. Lindy fired Beech as a babysitter after Beech stole a television set from Lindy. Hicks also testified that Rice did operate a bulldozer around his house.
Flynn was also called to testify in rebuttal. She testified the house in the picture showing Lindy bruised was Flynn's house, not Mark Lyons, Sr.'s. Further, she testified that Robin Jones had not kept Lindy's children for 3 months as she had claimed, but only babysat with them periodically. To rebut the testimony of Prenger, Flynn testified that Lindy very rarely drank beer, but preferred other drinks. She also testified that while she knew most of Lindy's friends, she did not know Stern. Likewise, she countered the testimony about Rice not having access to the bulldozer by testifying she had seen him hot wire it and use it. Finally, Flynn denied she had told either Rice's mother or Collins not to worry because Lindy had disappeared before.
Terry Brown testified for the State that he had dated Stern at one point and that at the time she claimed to be Rice's "savior" because she could produce a videotape of Lindy at a meeting at a lake on Memorial Day weekend in 1993. She also told him she had known Frazier for quite some time.
The State called Frazier as a rebuttal witness as well. The State questioned her about her relationship with defense witnesses Siler and Stern and how they contacted her with their stories. Then, over the rigorous objections of defense counsel, the State questioned Frazier about her role in the events of the morning of September 15, 1992. She was asked whether she had told Pam Whitten, who was staying at her house at the time, that she had gone over to Rice's house, had seen Lindy lying on the bed, had put a mirror up to her nose to see if she was breathing, and had seen the house in disarray. Frazier denied both that she had told Whitten these things and that they were true. The defense declined to cross-examine Frazier on the belief that admitting her testimony was reversible error.
The State then called Whitten. Again, the defense vigorously contested the admissibility of her testimony in rebuttal. Whitten testified she was living with Frazier on September 15, 1992. She had arrived at 9 a.m. to find no one there. A short time later, Frazier came in, pale and shaking. Whitten said Frazier recounted that Rice had called her over to his house. When she arrived, Rice was sitting on the bed holding Lindy, rocking her, and telling her he was sorry. The house was a "total wreck" and a hutch had been destroyed. Rice told her he had beaten Lindy and they had made up and then made love, but the next morning he could not wake her. Frazier checked for a pulse and put a mirror to Lindy's face, but there were no signs of life. Rice then sent Frazier home because he did not want her involved. Later that day, Rice dropped the children off to be watched, and Frazier told Whitten that Rice said he was going to dispose of the body and clean the house.
On cross-examination, Whitten testified that she did not call the police after the incident but instead went to sleep. She admitted she called and threatened Frazier in May 1993. She also testified Frazier drove a white car.
In rejoinder, Frazier testified that Whitten was an irresponsible drug user and drug dealer who owed her money and had promised to leave town if Frazier gave her money.
After being convicted, Rice appealed, raising eight issues.
I. Did the trial court commit reversible error by permitting the testimony of Pam Whitten to be admitted in rebuttal, contradicting the testimony of another State rebuttal witness?
Rice argues that it was improper to allow the State to call Frazier as a rebuttal witness, knowing she would deny having told Whitten she had seen Lindy dead, and then call Whitten to impeach her. He argues Frazier's testimony contradicted no evidence offered by the defense and thus was inadmissible as rebuttal evidence. Further, Rice argues that because it was clear at the preliminary hearing that Frazier would deny Whitten's story, the State was not surprised by her adverse testimony and, thus, it was impermissible to call Whitten to impeach her. Finally, Rice argues that Whitten's testimony, as hearsay, was inadmissible in its own right, and that a number of federal cases establish that the State may not knowingly elicit testimony from a witness in order to impeach the witness with otherwise inadmissible evidence.
The State argues Frazier was properly called and questioned as a rebuttal witness because some of the defense witnesses came to the attention of defense counsel through her and it was proper to explore the nature of her relationship with them to prove witness bias. The State also argues that questioning Frazier about whether she saw Lindy dead both rebuts the defense contention that Lindy was still alive and establishes Frazier's bias and motivation to recruit her friends to testify they had seen Lindy after her disappearance. Once Frazier denied she had seen Lindy's dead body, the State contends she could be impeached by extrinsic evidence under K.S.A. 60-420.
"Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal [evidence] rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party's prejudice." State v. Prouse, 244 Kan. 292, Syl. ¶ 2, 767 P.2d 1308 (1989).
Frazier was a proper rebuttal witness as she was acquainted with witnesses who claimed to have seen Lindy alive after her disappearance and was the person these witnesses contacted, instead of the police. That her story of how she came in contact with these witnesses varied from their own stories was certainly material. In addition, Whitten's testimony that Frazier claimed to have seen Lindy's dead body was also proper rebuttal evidence in that it directly contradicted the defense theory of the case and corroborated the previous testimony of Mark and Amanda that they, too, saw Lindy's body. To the extent that Frazier's testimony was necessary to permit the introduction of Whitten's testimony, as explained below, it was proper rebuttal evidence.
The cornerstone