IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 78,966
STATE OF KANSAS,
Appellee,
v.
JEFFREY J. SPERRY,
Appellant.
SYLLABUS BY THE COURT
In an appeal from a conviction of first-degree murder (K.S.A. 21-3401), the record is examined, and it is held that the district court did not err in (1) excluding evidence that the defendant believed the victim was a murderer; (2) admitting the defendant's statements; (3) instructing the jury; (4) finding that the defendant had not been denied effective assistance of counsel; (5) failing to intervene to stop or admonish the prosecutor for his statements and conduct; and (6) responding to questions from the deliberating jury.
Appeal from Wyandotte district court; JOHN J. BUKATY, JR., judge. Opinion filed May 4, 1999. Affirmed.
Debra J. Wilson, assistant appellate defender, argued the cause, and Ezra Ginzburg, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were on the brief for appellant.
Jeffrey J. Sperry, appellant, was on the brief pro se.
Jerome A. Gorman, 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
ALLEGRUCCI, J.: Jeffrey Sperry appeals his conviction by a jury of one count of premeditated first-degree murder. He was sentenced to life imprisonment (hard 25), K.S.A. 22-3717(b)(1).
In the mid-afternoon on November 25, 1995, Kansas City, Kansas, police were dispatched to 25th and New Jersey, where they found a man in the driver's seat of a red car backed into a telephone pole. He had blood coming from his mouth and no pulse. A folding cellular telephone was open in his lap. There was no one else around. The key was in the ignition, the engine was running, and the back-up lights were on. There was a bullet hole in the windshield on the driver's side at the steering wheel level. A shell casing was found in a private drive across the street from the car. From the location of the shell casing and the way the vehicle's wheels were turned, police determined that the car had backed from the private drive across the street into the pole. Tire marks in the drive indicated that the car left the drive at a high rate of speed.
The victim carried no identification. Police learned that he was Lonnie Mallicoat from his former wife, who called on the cellular telephone during the crime scene investigation.
An autopsy revealed that Mallicoat died as a result of a gunshot wound in his chest. Police recovered from a car that defendant had been driving a partially full box of shotgun shells. One of the shells had the name "Lonnie" scratched on it. Defendant's friend, Clinton "Bud" Rice, told police that "whenever Mr. Sperry was very angry at somebody, he would write their name on a bullet that he said he was going to shoot." Rice also told police that defendant and Mallicoat were friends, that defendant had supplied Mallicoat with money to manufacture some methamphetamine, and that defendant was angry because Mallicoat had not produced the drugs.
Defendant testified that he and Mallicoat were friends. He said he was "having dealings" with Mallicoat in November 1995 and that he was involved in drugs with Mallicoat "[t]o a very limited extent." He had loaned Mallicoat $600 for a car.
With regard to the shotgun shell with Mallicoat's name on it, defendant said that it was part of private joke between the two of them.
Defendant testified that on the morning of Mallicoat's death, they made arrangements by telephone to meet at a restaurant. Mallicoat had only $400 of the $600 he owed. Defendant was supposed to find Reagan Brown and get Mallicoat's gun from her. Mallicoat said that by the time defendant got the gun, he would have the other $200. Defendant said that he would call Mallicoat to arrange getting together later.
Defendant met with other people during the day and by the time he met Mallicoat again, there were several other people accompanying defendant. The meeting place was a parking lot. Defendant had the pistol he had gotten from Brown. He took the pistol without the clip when he got out of the car to look for Mallicoat. Defendant found Mallicoat, told him he had the gun, and asked about the money. Mallicoat did not have it. They exchanged some jealous words about Brown. Several people who had accompanied defendant left.
Defendant concluded that he would give Mallicoat the gun and hold the clip as collateral for the $200. For this purpose, he walked over to where Mallicoat was sitting in his car. Defendant testified that just as he got to the car it lurched backwards, cut to the right, "and the front end of the car come back." The pistol in defendant's hand caught against the door frame, the fender hit his legs, and he staggered backward. Then Mallicoat stopped his car and put it in drive. Defendant pointed the gun at the car "and the gun just went off." Then, according to defendant, Mallicoat shifted the car back into reverse and backed out of the lot.
Defendant testified that he thought the gun was empty and that he did not aim at Mallicoat. He did not know how the gun got cocked. He described pointing the gun at the car as "an instinctive reaction" to the expectation that he was going to be run over.
Defendant's appellate counsel raises five issues on appeal. Defendant filed a pro se brief, raising several additional issues and expanding on the issues raised by appellate counsel. We first address the issues raised by appellate counsel. The first issue is whether the trial court erred in excluding evidence that might tend to show that defendant believed the victim to be a murderer.
Appellate counsel portrays this issue as a matter of exclusion of evidence necessary to defendant's theory of self-defense, which would constitute denial of his due process right to a fair trial under Chambers v. Mississippi, 410 U.S. 284, 302, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973). Examination of the record and pertinent authorities, however, shows that there is nothing more than an ordinary evidentiary ruling at issue.
Defendant complains that the trial court excluded a portion of the statements he made in an interview with Detective Shomin and District Attorney Nick Tomasic on May 15, 1996. Defendant took the stand on his own behalf. In the course of his testimony, defendant told of sending a letter to Shomin requesting an interview, which he hoped to parlay into a lowered bond amount. He testified that when the interview began, he declined to have his attorney present because he was going to give them information about cases other than the one against him. The prosecutor objected:
"What I anticipate him saying, what he told Shomin was that Lonnie Mallicoat and Bud Rice had done some homicides in Missouri. It has no relevance in this case. All he is trying to do is drag their names through the mud, and there's been no charges against them."
Defense counsel responded:
"I anticipate [the prosecuting attorney] will be bringing Mr. Tomasic and Detective Shomin in for rebuttal to rebut his testimony and to discuss things that occurred in that meeting. If that meeting is going to come into play, I think the entire contact of that meeting is relevant. I'm just trying to bring out my case in chief for tactical purposes, to make sure we are not trying to hide anything."
The district court ruled that testimony about Missouri homicides was not relevant.
On rebuttal, the State recalled Detective Shomin, whose testimony during the prosecution's case in chief had not touched on the interview with defendant. Shomin testified that he and Tomasic had met with defendant at the latter's request, that defendant had told them he was in a motel in Raytown when Mallicoat died, and that Reagan Brown had killed Mallicoat. The State also called Tomasic on rebuttal. With regard to the interview, he testified that defendant had told them he was in a motel in Raytown or Grandview at the time Mallicoat died and that either Reagan Brown or Bud Rice had killed Mallicoat. Defense counsel did not attempt to question Shomin or Tomasic about defendant's statements that Mallicoat and Rice had committed homicides in Missouri, and no surrebuttal evidence was offered.
On appeal, the argument is made that defendant's belief that Lonnie Mallicoat "had done some homicides in Missouri" should have been admitted because it would have lent credence to defendant's defense of self-defense. The specific contention is that the evidence would have supported the subjective element of the defense: defendant's belief that Mallicoat was going to run over him with the automobile. During trial, however, this use of the evidence was never mentioned. This court has long held that constitutional grounds asserted for the first time on appeal are not properly before the appellate court for review. State v. Shears, 260 Kan. 823, Syl. ª 8, 925 P.2d 1136 (1996).
The evidence was excluded for lack of relevance. Admission or exclusion of evidence is entrusted to the sound discretion of the trial court. "Discretion is abused only where no reasonable person would take the view adopted by the trial court. Absent a clear showing of abuse of discretion, evidentiary findings of the trial court will not be set aside on appeal." State v. Donesay, 265 Kan. 60, Syl. ª 5, 959 P.2d 862 (1998). There is no showing of abuse of discretion in this instance.
Appellate counsel also attempts to cast this issue as a denial of defendant's "due process right to show the totality of the circumstances surrounding his statements to police." He relies on Crane v. Kentucky, 476 U.S. 683, 90 L. Ed. 2d 636, 106 S. Ct. 2142 (1986), for the principle that a criminal defendant must be allowed to introduce evidence of the circumstances surrounding the taking of his confession.
Crane is not applicable to the present case. Defendant did not confess. Nor did he seek to show the circumstances attending his interview with Shomin and Tomasic. Crane's defense depended almost entirely on his showing that his confession was unreliable, and that reason for not excluding the evidence was presented to the trial court. Defendant's self-defense theory depended primarily on his showing that Mallicoat was the aggressor and that defendant was reasonably justified in the use of deadly force. At best, the excluded evidence might have tended to show that defendant believed Mallicoat was capable of killing someone. It would have had no bearing on whether he believed or a reasonable person would have believed that Mallicoat intended to use unlawful force against defendant in the particular instance of this case. Moreover, it was never argued to the trial court that the excluded evidence was germane to defendant's theory of self-defense. We find no merit in defendant's argument.
The second issue is whether the trial court erred in admitting defendant's statements as rebuttal evidence. Defendant's statements to Shomin and Tomasic were made during an interview arranged at the written request of defendant. The interview took place on May 15, 1996. Defendant had been bound over on the charge of first-degree murder of Mallicoat on February 29, 1996. He was incarcerated and was interested in securing his release by providing information to police. Defendant was acting as his own counsel, but the court had appointed counsel to assist him. Before the interview began, defendant was asked by Shomin and Tomasic if he was sure he did not want his appointed counsel present. Defendant declined, stating, "I'm not going to talk about my case."
Appellate counsel contends that an involuntary statement may not be used by the prosecution even in rebuttal when a defendant has taken the stand and testified about making the statement. In spite of its never having been argued in the trial court that the statement was involuntary, appellate counsel urges this court to consider the matter in order to prevent the denial of fundamental rights. See State v. Puckett, 230 Kan. 596, Syl. ª 1, 640 P.2d 1198 (1992). We fail to see the fundamental rights which were denied to defendant.
It is argued that Tomasic violated KRPC 4.2 (1998 Kan. Ct. R. Annot. 368), which provides: "In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." The rule does not prohibit communication about matters that are not the subject of the representation. Stone v. City of Kiowa, 263 Kan. 502, 517-20, 950 P.2d 1305 (1997). In the present case, defendant told Tomasic at the outset that he was not going to talk about his own case and, for that reason, did not think his appointed attorney needed to be present. In the course of the discussion, however, defendant told Tomasic and the detective that he was elsewhere when Mallicoat was shot and that Reagan Brown did the shooting. It is not apparent from the record how the subject of Mallicoat's death entered the interview.
Appellate counsel contends that the sanction for the violation of professional ethics should be reversal of defendant's conviction. Appellate counsel cites United States v. Thomas, 474 F.2d 110 (10th Cir. 1973). Thomas does not support defendant's contention that his conviction should be reversed.
In spite of Tenth Circuit Court of Appeals' holding that the canon was violated, it declined to reverse Thomas' convictions. The court reasoned that the violation of the ethical canon before it did not need to be remedied by reversal because it involved an ethical and administrative question rather than a constitutional question.
The State directs this court's attention to State v. Johnson, 255 Kan. 140, 150, 871 P.2d 1246 (1994), where defendant complained that his statement was obtained in violation of the disciplinary rule that preceded KRPC 4.2. Like defendant, Johnson had initiated an interview with the officer testifying about his statements. 255 Kan. at 150. In Johnson's case, however, the prosecutor was not present. This court declined to conclude that an ethical violation required exclusion of the statement from evidence:
"In any event, this court has held with regard to DR 7-104(A)(1) [1993 Kan. Ct. R. Annot. 234] that the admissibility of evidence is determined by constitutional and statutory measures and that codes of professional conduct play no part. State v. Morgan, 231 Kan. 472, 478-79, 646 P.2d 1064 (1982). 'Sanctions for violation of DR 7-104(A)(1) are irrelevant to this case.' 231 Kan. at 479." 255 Kan. at 150.
The simple fact is that not only was there no argument raised in the trial court about the impropriety of the interview, but also defendant's statements to Shomin and Tomasic were introduced into evidence by defendant. No record was made of how the interview shifted to the criminal case against defendant so that this court has no basis for forming an opinion about the prosecutor's conduct during the interview. Defendant's argument is without merit.
The next issue is whether the jury should have been instructed on the State's burden of proof with regard to the defense of self-defense. The trial court gave PIK Crim. 3d 54.17 (1997 Supp.) with regard to the use of force in self-defense. The Notes on Use to that pattern instruction state: "If this instruction is given, PIK 3d 52.08, Affirmative Defenses - Burden of Proof, should be given." The trial court did not give PIK Crim. 3d 52.08 (1996 Supp.) or a like instruction. Nor did defense counsel request that it be given.
It is well established that this court reviews a trial court's failure to give an instruction by a clearly erroneous standard where the party neither requested the instruction nor objected to its omission. K.S.A. 1998 Supp. 22-3414(3). "Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred." State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).
PIK Crim. 3d 52.08 states: "The defendant raises [self-defense] as a defense. Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State's burden of proof does not shift to the defendant."
Defendant's appellate counsel acknowledges that the court considered this issue in State v. Crabtree, 248 Kan. 33, 805 P.2d 1 (1991), and concluded that failure to give the instruction was not clearly erroneous. He would have the court distinguish the present case as having more evidence justifying a self-defense instruction. We decline to do so. The heart of the court's reasoning in Crabtree was that, considered together and as a whole, the instructions that were given adequately guided the jury's consideration of the self-defense theory. There, as here, the jury was instructed on the presumption of innocence and the State's burden of proving defendant guilty beyond reasonable doubt. Thus, the court concluded that the jury was instructed on the substance of PIK Crim. 3d 52.08. 248 Kan. at 40.
The State calls to the court's attention that the trial court also gave PIK Crim. 3d 54.01, which states:
"Ordinarily, a person intends all of the usual consequences of [his] voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant." (Emphasis added.)
The State also directs the court's attention to another case in which a self-defense theory was asserted but the pattern instruction for the burden of proof for an affirmative defense was not given, State v. Osbey, 238 Kan. 280, 285-86, 710 P.2d 676 (1985). The result in Osbey was the same as in Crabtree, and there was no mention by the court of any lack of evidence to support the affirmative defense. In Osbey, the court stated: "Error cannot be predicated on the refusal to give specific instructions where those which were given cover and include the substance of those refused." 238 Kan. at 286. Crabtree and Osbey are controlling in the present case.
We next consider if defendant was denied a fair trial by the prosecuting attorney's questioning a police officer about defendant's conversing with him. Appellate counsel complains that, in response to the prosecutor's question, a police officer improperly commented in his trial testimony on defendant's exercising his right to remain silent. In Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), the Supreme Court held that the State could not use a defendant's post-arrest exercise of his right to remain silent to impeach his exculpatory story, which was given for the first time at trial.
In this case, the officer was Robert Harper, who is employed by the Cass County, Missouri, Sheriff's Department. Defendant was in the Cass County jail on December 19, 1995, when he initiated a conversation with Harper. Harper knew that defendant was charged with homicide in Wyandotte County, Kansas. Defendant asked Harper to keep the jailers from "hassling" his girlfriend when she visited. Defendant also asked Harper to give him a law enforcement officer's view of a hypothetical situation, which he set out. The hypothetical circumstances included the driver of a car trying to run down one person, a third person pointing a gun at the driver to scare him, and the gun accidentally discharging. Harper testified: "I told [defendant] that at his request earlier, we were not going to discuss the Kansas City, Kansas incident; and that terminated the conversation; and I sent him back to the jail." There was no objection, but appellate counsel urges the court to consider this issue to prevent the denial of fundamental rights. See Puckett, 230 Kan. 596.
On cross-examination, defense counsel brought out that defendant liked to talk, that he had been to Harper's office on more than one occasion, and that defendant talked about a lot of things. Harper also testified that when defendant initiated the conversation with the complaint about jailers hassling his girlfriend, Harper was not expecting the discussion to include criminal offenses.
Appellate counsel couched this issue in terms of the State's commenting on defendant's exercising his right to remain silent and relied on cases involving that issue. The real complaint, however, seems to be about the evidence that defendant had earlier given a version of the shooting that was inconsistent with his trial testimony. The real complaint appears in this statement in defendant's brief: "Because the statements to Officer Harper undercut Mr. Sperry's theory of self-defense, the error is not harmless. Absent his own statements to Officer Harper, the jury might have determined that Mr. Sperry did not plot or plan his theory of self-defense when he first was arrested." In other words, the harm to defendant's defense resulted from the jury's hearing that defendant posed a "hypothetical" situation to Harper that materially differed from his self-defense trial testimony, but obviously was simply a variation of the same story. Thus, it appeared that defendant was "trying out" a fabricated defense when he spoke to Harper. His having told inconsistent stories to Harper and to the jury undermined his credibility. It was not that defendant exercised his right to remain silent while in custody and then testified in his own behalf that undercut his self-defense defense.
Any error there might have been in the State's witness testifying that defendant had exercised his right to remain silent was unquestionably harmless in the circumstances. Defendant's appellate counsel cites State v. Haddock, 257 Kan. 964, 973, 897 P.2d 152 (1995), and State v. Higgins, 243 Kan. 48, 755 P.2d 12 (1988). Haddock is quite different from the present case. There, the court found no error in the State's revealing the accused's prearrest and pre-Miranda silence. In Higgins, the court rejected the State's contention that the error was harmless. Over objection, the prosecutor questioned a police officer in detail about defendant's refusing to talk to him after arrest, and in closing argument the prosecutor "entertained the jury with an extensive exploration of the motivations for defendant's silence. The State repeatedly asked, if defendant was innocent why did he not protest his innocence at the time of his arrest?" 243 Kan. at 52. There is no comparison between Higgins and the present case. Here, according to appellate counsel's own statement, what harm there might have been to defendant's defense was in the jury's hearing that he had "tried out" one version on Officer Harper and given another at trial. There is no contention that any harm was due to Harper's unsolicited and isolated comment on defendant's exercising his right to silence. The argument has no merit.
The final issue raised by appellate counsel is whether defendant was denied effective assistance of counsel. In the trial court, defendant twice asserted his claim of ineffective assistance of counsel. He first did so at the time of trial, and the claim was rejected by the trial judge. He also filed a pro se motion for new trial in which he raised the claim again. At the conclusion of a hearing on the motion for new trial, the district court denied the motion. The journal entry filed on December 26, 1996, reflects denial of defendant's motion. On appeal, appellate counsel has raised the question whether defendant was denied effective assistance of counsel. In these circumstances, the court undertakes a de novo review of "the trial court's analysis of the performance and prejudice components, which are mixed questions of law and fact." State v. Rice, 261 Kan. 567, Syl. ª 16, 932 P.2d 981 (1997).
In Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985), the court adopted the standards set out in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), for determining ineffective assistance of counsel. The applicable principles have recently been restated in Rice, 261 Kan. 567:
"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." Syl. ¶ 12.
"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." Syl. ¶ 13.
"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." Syl. ¶ 14.
"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." Syl. ¶ 15.
In the present case, the argument is made that trial counsel's performance was deficient in his failing to make any effort to keep defendant's statement to Shomin and Tomasic from being admitted into evidence. Appellate counsel asserts that "[h]ad a motion to suppress been filed, it would have been successful on the grounds that Mr. Sperry's statements to Detective Shomin and District Attorney Nick Tomasic were not voluntary." As already discussed, however, the prosecutor's ethical violation is not a constitutional violation. It does not cause an otherwise voluntary statement to be deemed involuntary and does not require exclusion as a remedy. The grounds for the motion and objection advocated by appellate counsel are not meritorious. Thus, there is no basis upon which this court might find that trial counsel's performance was deficient with respect to defendant's statement to Shomin and Tomasic.
It also is argued that trial counsel's performance was deficient in his failing to make any effort to keep defendant's statement to Harper from being admitted into evidence. As already discussed, if there was any negative impact on defendant's defense from the jury's hearing about defendant's statements to Harper, it would have been from the "hypothetical" situation he volunteered. It would not have been from anything Harper said about defendant's invoking his right to silence. Thus, if there was any deficiency in trial counsel's performance, no prejudice resulted.
Appellate counsel faults trial counsel for failing to request a Jackson v. Denno hearing on defendant's statement to Shomin and Tomasic. The purpose of such a hearing is to determine the voluntariness of a confession of guilt. State v. Miles, 233 Kan. 286, 290, 662 P.2d 1227 (1983). As already discussed, defendant told Shomin and Tomasic that he was elsewhere when Mallicoat was shot and that Reagan Brown had committed the murder. There is no confession involved. The State points out that in State v. Martinez, 223 Kan. 536, 575 P.2d 30 (1978), the court held there was no error in admitting an exculpatory statement without holding a Jackson v. Denno hearing. Moreover, as already discussed, voluntariness is not at issue.
We conclude that trial counsel's complained-of conduct in failing to attempt to exclude defendant's statements "falls within the wide range of reasonable professional assistance." State v. Rice, 261 Kan. 567, Syl. ª 14.
Appellate counsel also asserts that trial counsel failed to investigate defendant's case thoroughly. In particular, he complains of trial counsel's failure to interview persons on defendant's proposed witness list.
At the hearing on defendant's pro se motion for new trial, trial counsel testified that defendant gave him a list of potential witnesses. Asked if he discussed whether persons on the list would be called as witnesses, trial counsel answered:
"I told him in general that I didn't want to call any penitentiary inmate as a witness, because this was a case that I was going to be attacking the State's witnesses because I felt there was . . . some credibility [issue] with the [S]tate's witnesses. I didn't want to parade somebody in from a jail who you could cross examine. But I still wanted to know what they were going to testify about, and as to whether it was going to be relevant. With respect to Acree, it was my understanding he was claiming the privilege because he was present at the scene. I didn't think Acree was going to have anything that he could help us with."
The penitentiary inmate he referred to was LeAnn Garrett. Trial counsel had seen in the prosecutor's case file a letter defendant wrote to Garrett which could have been used against defendant. Trial counsel testified that he weighed all the factors for and against her being a defense witness. The information about Acree also came from trial counsel's inspection of the State's case file.
Trial counsel told defendant that several of the people he listed were "collateral, had nothing to do with what the issue was in the case." He elaborated:
"[H]e had witnesses who could show supposedly Clinton Rice was a murderer, one of the [S]tate's witnesses; and I explained to him that that would not be admissible. And several people wanted me to track down something about Clinton Rice throwing som