263 Kan. 283
(950 P2d 1316)
No. 76,539
STATE OF KANSAS, Appellee, v. MICHAEL A. WHITE, Appellant.
SYLLABUS BY THE COURT
1. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, an appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. A conviction of even the gravest offense may be sustained by circumstantial evidence.
2. Premeditation of a murder means to have planned, contrived, schemed, and thought over the matter beforehand, although no particular amount of time must intervene between the time the killing is planned and the time it is consummated.
3. Premeditation of a murder may be inferred from various circumstances, including: (1) the nature of the weapon used, (2) the lack of provocation, (3) the defendant's conduct before and after the killing, (4) threats and declarations of the defendant before and during the occurrence, or (5) the dealing of lethal blows after the deceased was felled and rendered helpless.
4. The law is well settled in this state that, in a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome.
5. The admission of photographs as evidence in a homicide case rests within the trial court's discretion, and that court's ruling will not be disturbed on appeal absent a showing of abuse of discretion.
6. A prosecutor's statement of a fact in closing argument which is contrary to the evidence is improper.
7. The analysis of the effect of a prosecutor's allegedly improper remarks is a two-step process. First the appellate court determines whether the remarks were outside of the considerable latitude the prosecutor is allowed in discussing the evidence. This analysis commences with the holding that in criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. The second portion of the analysis is that if the remarks are found to be improper, this court must consider whether in light of the record as a whole they are so prejudicial as to amount to reversible error. Each case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error.
8. Improper remarks by the prosecution during closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial.
9. In deciding whether improper remarks by the prosecution during closing argument constitute harmless error, the reviewing court must be able to find that the error had little, if any, likelihood of changing the result of the trial. Such a belief must be declared beyond a reasonable doubt.
10. Trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.
11. If a defendant is charged with murder in the first degree, the county or district attorney shall file written notice if such attorney intends, upon conviction or adjudication of guilt of the defendant, to request a separate sentencing proceeding to determine whether the defendant should be required to serve a mandatory term of imprisonment of 40 years. Such notice shall be filed with the court and served on the defendant or the defendant's attorney at the time of arraignment. If such notice is not filed and served as required by statute, the county or district attorney may not request such a sentencing proceeding and the defendant, if convicted of murder in the first degree, shall be sentenced as otherwise provided by law, and no mandatory term of imprisonment shall be imposed hereunder.
12. The notice requirements of K.S.A. 1993 Supp. 21-4624(1) are mandatory, and where the State fails to follow the requirements, the hard 40 sentence cannot be imposed.
13. If the evidence raises a bona fide doubt as to the defendant's competency, then the failure to hold a hearing to determine competency is a denial of due process.
Appeal from Wyandotte district court; CORDELL D. MEEKS, JR., judge. Opinion filed December 12, 1997. Conviction affirmed, sentence vacated, and case remanded with directions.
Rebecca E. Woodman, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.
Delia M. York, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
ABBOTT, J.: This is a direct appeal by Michael White from his conviction of first-degree premeditated murder. He was sentenced to life imprisonment without the possibility of parole for 40 years (hard 40).
White appeals, claiming evidence of gruesome photographs and that he had battered his girlfriend was improperly admitted into trial, the evidence admitted to prove first-degree premeditated murder and to support the hard 40 sentence was insufficient, and cumulative error requires reversal of his conviction. White also contends that the State erred by failing to comply with the mandatory notice provisions of K.S.A. 1993 Supp. 21-4624(1) and erred by not holding a competency hearing prior to sentencing.
White killed his mother, Pearl White, by striking her on the head one time with the side of a hammer. He subsequently disposed of her remains by cutting her body in half and burying each half in the back yard. White claimed self-defense.
When the evidence is viewed as we are required to view it, the facts are as follows. White served 2 years in prison for aggravated robbery. He was released from prison in 1991. In November 1991, White was involved in an accident which crushed bones in his leg. After the injury, White moved in with his mother in a small two-bedroom house in Kansas City, Kansas. White's grandmother, who had Alzheimer's disease, also lived at the residence. According to family members and friends, White and his mother got along well with each other. White began working at a restaurant in March or April 1992. At some point, White developed a cocaine habit.
On May 8, 1992, Belinda Fantroy, White's sister and the victim's daughter, picked White up after work. She took him to cash his paycheck. White asked Belinda to hold onto the cash ($200) for him. She agreed to do so. She dropped White off at her mother's house around 5 p.m. Belinda talked to her mother on the porch, gave her a Mother's Day gift, and left around 5:30 p.m. Belinda saw no friction between Pearl White and defendant at that time. According to Belinda, her brother and mother got along well with each other. However, Belinda testified that it was her understanding White was not helping Pearl White out at home with the expenses. Pearl White had previously told Belinda that she was mad at White and if White did not give her any money by the end of that week, she would be "putting him out."
Around midnight on May 8, 1992, White called Sherry Heggie, an ex-girlfriend and the mother of his child. White told Sherry to come over to the house after work and get some money for their son. Sherry, who is a deputy sheriff, got off work about 12:30 a.m. on May 9 and went to the White residence. Sherry took White to Belinda's house so White could get the cash Belinda was holding for him. Belinda gave White his $200. White gave Sherry $40; then Sherry drove him back home. When they got halfway to Pearl White's house, White told Sherry that he would walk the rest of the way home. Sherry refused to drop White off, and she drove him all the way home. Sherry testified that White seemed normal when they went over to Belinda's house and he seemed normal when she dropped him off at home. However, Sherry testified that White asked her if she was going to talk to him again. He seemed concerned, but she did not know why.
Sherry left and went to her house, which was about 20 minutes away. After she was home for about 5 minutes, she called White's house, but there was no answer, so she went to bed. The next morning, Sherry called White about 9 or 10. White answered, and Sherry asked him what had happened the previous night. White replied that his mother was missing and that he had been out looking for her.
Kathy White, another ex-girlfriend of White's, had a casual conversation with White on the telephone on the morning of May 8. White was supposed to call her back before she got off work at midnight, but he never called. She called White's house at about 12:30 a.m. on May 9, and talked to Pearl White. Pearl White told her that White was at Belinda's house, and that he had called and was on his way back home. Kathy told Pearl White that she would call again when she got home from work. She called at around 1 a.m. and again talked to Pearl White. When she called back at 1:30 a.m., there was no answer. Kathy called again at around 2 a.m., and every 1/2 hour thereafter, with no answer, until 6 a.m., when she went to bed. Kathy did not try to contact White again on Saturday. However, White's employer called Kathy at home three times that day, at 8 a.m., noon, and 3 p.m., asking if she had seen or heard from White.
White called Kathy at work on Saturday evening at 6:30. She asked where he had been the night before, and he told her he had been with Belinda and then with a friend. She asked where his mother was, and White just said his mother was not there. White called Kathy the following day, on Sunday, May 10, to wish Kathy a happy Mother's Day. He called her twice that day, once before she went to work, and once while she was at work. The second time she talked to White he said he was taking phone messages from people calling to wish his mother a happy Mother's Day.
Kathy talked to White again on Monday, May 11, while she was at work. White told her that he and his mother had had an argument on Friday evening "over money." Kathy testified that apparently Pearl White was asking for more money than White was willing to give her. Pearl White wanted White's whole paycheck, but White told her he was not going to give her the whole check. White told Kathy that his mother made him leave the house, so he left.
Michael Lewis, Belinda's fiance, testified that he went over to Pearl White's house around 1 p.m. on Saturday, May 9. Lewis said he knocked for a minute, and then White let him in. According to Lewis, White was lying down on the divan, and he was concerned about "when . . . the next money [was] coming in." Then, Lewis testified, Pearl White's bedroom door flew open. Lewis looked in the door. There were no sheets on the bed, and there was a spot on top of the mattress. Lewis testified that White shut the door very quickly. Lewis was at the house for 3 hours, but he did not ask White about why the sheets were not on Pearl White's bed, nor did he inquire about the spot on her bed. Lewis said he wanted to keep his thoughts to himself.
Pearl White's next-door neighbor, Consuelo Mendiola, testified that on Sunday, May 10, she had hired a yardman to do some work at her house and had asked the yardman to bring a shovel. The yardman, Oscar Sharp, came over in the afternoon and worked about 1/2 hour. Consuelo testified that when the yard work was finished, she saw him go home, and then she saw the next-door neighbor (a male) standing in the front of Pearl White's house with a shovel. Sharp, the yardman, testified that he went to Consuelo's house around 11 a.m. on May 10 and worked for 30 or 40 minutes. When he left, he was walking up the street, and White asked him if he could borrow the shovel. Sharp asked White why he needed the shovel, and White said that he needed to dig some dirt out of the basement. Sharp allowed White to borrow the shovel. When Sharp came back in the evening to retrieve the shovel, White was not there. Sharp went back to White's house the next day, picked up the shovel, and went home. Consuelo testified that the day after she had her yard work done, she took out the trash and saw her next-door neighbor with the shovel, digging in the dirt in the back of his house.
Sherry Heggie went over to Pearl White's house 1 or 2 weeks after Pearl White's disappearance because White had asked to see their son. Sherry testified that White showed concern about his mother and acted nervous. Sherry said that at the house, she noticed new unopened sheets on the chest of drawers in Pearl White's bedroom and saw old sheets rolled up. She did not look at the sheets or ask White about them.
Belinda testified that on Sunday, May 23, White called her and asked her to come by the house and bring groceries. When she arrived, White came out of the house and asked her if they could go for a ride. While they drove around the block, White told Belinda that he had sold the furniture and appliances in the house to a "dope man."
On Wednesday, May 27, Belinda went over to Pearl White's house to move her grandmother to a nursing home. White was at work, but Belinda had already told him she was going to the house. Belinda testified that almost everything was gone from inside the house--dining room table, three chairs, living room set, microwave, color television, and black and white television.
Belinda took White to his work on Sunday morning, May 31. She told White that she was going to go to Pearl White's house to retrieve their grandmother's cedar chest and antique dresser. She testified she got to the house at around 8 a.m., accompanied by her fiance, Michael Lewis, and another man named Robert. The bed in her mother's room was stripped. Belinda said she looked under the mattress and there was a "bluish looking" stain on the bottom side. After she took the cedar chest and dresser out, she wanted to see what was in the back yard. She was aware of a fresh pile of dirt in her mother's back yard. A few days after Pearl White disappeared, the dirt pile had been reported to the police. The police looked at the pile and concluded that it did not conceal a body. Now, Belinda wanted to check the dirt pile out for herself. Robert had brought a shovel with him, and the three started digging into the fresh dirt pile in the back yard. Belinda and Lewis both testified that they dug down about 3 feet and saw a blanket and sheet. Belinda said she recognized the blanket as one of a set of three she and her mother had ordered, and the sheet as being off of her brother's bed. Belinda went into the house and called her cousin, Adrian Davis, who also owned the house, and asked him to come over. Adrian called the police, and then he came over to the house with a shovel.
Several officers responded to the scene. Officer Moran observed a piece of bloody cloth lying underneath some dirt. The officers began to dig into the ground. The police dug up a human body which had been completely cut in half. The body was identified as Pearl White.
After discovering the body, the police picked White up from his place of employment and brought him in for questioning. White waived his Miranda rights. White told Detective Smith, the interrogating officer, that on or about May 9 he had had an argument with his mother about money he owed her. His mother had slapped him. The next thing he remembered was his mother lying on the bed covered with blood. White told the detective that he did not bury his mother in the back yard.
An autopsy was performed on the body of Pearl White on the same day the body was discovered. Dr. Allan Roth, who performed the autopsy, testified that the body had been cut into two parts about 10 1/2 inches below the sphenoid bone at the pit of the stomach. Dr. Roth estimated the body to have been between 5 feet 8 inches and 6 feet tall, weighing in excess of 300 pounds. Dr. Roth testified that the body was probably cut in half after Pearl White had been dead for a few hours and her body had cooled off.
Dr. Roth concluded that Pearl White's cause of death was a skull fracture. According to Dr. Roth, Pearl White's wound was consistent with one blow by a hard object. Dr. Roth testified that the wound was not consistent with a blow from either end of a hammer, because the scalp would likely have been torn by such a hit. However, Dr. Roth said that the injury was consistent with a blow from the side of the hammer. There was no other evidence of pre-death injury to the body.
At trial, White testified on his own behalf. White testified that he gave his mother $75 when he got home from work on the evening of May 8, and he asked his sister to hold the other $200 of his paycheck for him. Later that night, at 11:30 p.m. or midnight, he called Sherry Heggie and told her to come over to get some money for their son. His mother overheard the conversation with Sherry and asked him how he could give somebody else money when he was not giving her enough money. She was upset because he had given her only a small amount of money from his last two paychecks, and he had spent the rest of his money on cocaine. White tried to explain to Pearl White that it was almost Mother's Day and that he needed the money to buy presents for several people. His mother did not care about that; she wanted the money, and she told White "what an ungrateful son-of-a-bitch" he was. White decided to go ahead and get his money from Belinda and give his mother some more of the money because, otherwise, his mother threatened to tell Sherry and Kathy that he had been raped in prison.
Sherry picked White up from Pearl White's house about 12:45 a.m. and took him to Belinda's house where he got the money from Belinda and left with Sherry. White gave Sherry $40. White testified he tried to get Sherry to drop him off halfway home. His mother told White that she was upset and was going to leave, and that "[White] better have [his] ass back there with the money before she left or she would throw [his] shit out into the street." White thought that Sherry dropping him off would give his mother time to leave the house before he got home. Sherry refused to drop him off. Instead, she took him all the way home. After Sherry took him home, White walked down the street to a phone and called to see if his mother was still home. His mother answered the phone and told him he had better come back to the house and bring all the money with him.
White went home and told his mother he would give her half of the remaining $160. He laid half of the money on the table. She did not want half, she wanted it all, and she started cussing at him again. White testified that he sat there and did not say anything because talking would just make her mad. Then, White testified that his mother started slapping him while he sat silently on the couch. In doing this, she got so close to White that she stepped on his injured leg. When White attempted to get his leg out of the way, he twisted his crushed ankle, which hurt very much.
White testified:
"[S]o, I struck out and I didn't mean to hit her, I did not mean to hit her and that's--that really got her upset because I never touched my mother and I never really talked back to her, so she went in her room and I knew the best thing for me to do was to leave because there was nothing else I could do. . . . I couldn't apologize for what I had done because she wouldn't listen, she was too mad and when I got to the door I guess she knew I was going to leave and she came out of her room and I thought she was going to hit me again, so I put my hands up and she hit me on my forearm and it was a hammer and I didn't know she had anything in her hand, so I grabbed ahold of it and all I did was try to hold it because saying anything to her while she was cussing at me wasn't going to help, so I just held on to the hammer and she tried to get it away from me. By that time we were in the bedroom, which is only about 2 feet from the front door and she just let go of the hammer, so I fell backwards, but I still had ahold of it because I never let it go and she was standing right by the closet and she reached into the closet. She reached into the closet and she pulled out the shotgun and I didn't know what to do. I didn't have no time to think. I was [lying] on the floor. The next thing I know my mother was [lying] on the bed and there was all this--there was all this blood . . . ."
By Sunday, White testified, he was really "freaking out" because his mother was dead. He thought about killing himself, but then he saw the yardman with a shovel and asked if he could borrow it. He testified:
"I couldn't tell anybody that my mother was dead. I mean, this was my mother . . . no matter how it happened it was my mother and I was ashamed of it, so I went in the backyard and I dug a hole and then I came back in the house and I grabbed most of the sheets that I could find and I covered the body up because I couldn't look at it and when I had it covered up so I couldn't see anything, I tried to move her and she was too heavy. . . . [S]he was too heavy, but . . . I got her body into the hole and I covered it up and I came back in the house and I cleaned everything up."
White claimed not to know how he got his mother's body into the grave, but assumed that he cut her in half because she was too heavy to move. White testified he broke down the shotgun and put it, along with the knife, the hammer, and the pillows, in a trash bag and put them in the trash can across the street. People started calling to wish his mother a happy Mother's Day, and "[his] mother was dead, so [White] told anybody who called that she wasn't at home, and if anybody asked where she was [White] told them that [he] didn't know."
In the days that followed, White kept the door to his mother's room closed because he could not stand to be in there. He could not eat because all he did every day was relive what had happened. He started using more cocaine because it provided him with a few hours of relief, but when he started using cocaine more and more he could not pay the bills. When he sold all the furniture, he knew he was not going to make it, so he called his sister and told her they needed to get their grandmother out of the house because he could not take care of her much longer. His sister then arranged with their mother's caseworker to have the grandmother moved out.
The trial court instructed the jury on the lesser included offenses of second-degree murder, voluntary manslaughter, and involuntary manslaughter. The trial court also instructed the jury on the law of self-defense. The jury returned a verdict finding White guilty of first-degree premeditated murder.
The trial court ordered a presentence investigation to be conducted on White at Larned State Security Hospital. White had attempted suicide three times while in the Wyandotte County jail. The staff at Larned concluded that White was dangerous to himself because of his suicidal behavior and was dangerous to others because of his drug and alcohol addiction. Thus, the Larned staff recommended that White be committed to Larned for care and treatment in lieu of imprisonment.
In November 1995, a K.S.A. 60-1507 motion was filed by White notifying the trial court that no notice of appeal had ever been filed in this case because he had never been informed of his right to appeal. Subsequently, the trial court granted leave to White to file an appeal out of time, and the court appointed counsel to represent White on appeal. White filed a notice of appeal on March 1, 1996.
Additional facts will be stated as they pertain to the specific issues raised below.
I. PREMEDITATED MURDER
On appeal, White contends that the evidence was insufficient as a matter of law to establish that he killed his mother with premeditation. Since the element of premeditation was not proven, White claims that the evidence was insufficient to convict him of first-degree premeditated murder. White asks this court to overturn his conviction for insufficient evidence.
"Where the sufficiency of evidence in a criminal case is challenged on appeal, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt." State v. Orr, 262 Kan. 312, Syl. ¶ 10, 940 P.2d 42 (1997).
"A conviction of even the gravest offense may be sustained by circumstantial evidence." State v. Smith, 245 Kan. 381, 393, 781 P.2d 666 (1989).
In support of his argument that the evidence was insufficient to prove premeditation, White cites the definition of premeditation. Premeditation means to have planned, contrived, schemed, and thought over the matter beforehand, although no particular amount of time must intervene between the time the killing is planned and the time it is consummated. PIK Crim. 3d 56.04(b) (1994 Supp.); State v. Greenwood, 197 Kan. 676, 685, 421 P.2d 24 (1966); see State v. McGaffin, 36 Kan. 315, 319, 13 Pac. 560 (1887). In response, the State points out that premeditation may be inferred from various circumstances, including: (1) the nature of the weapon used, (2) the lack of provocation, (3) the defendant's conduct before and after the killing, (4) threats and declarations of the defendant before and during the occurrence, or (5) the dealing of lethal blows after the deceased was felled and rendered helpless. See State v. Henson, 221 Kan. 635, 639, 562 P.2d 51 (1977) (citing 1 Wharton's Criminal Evidence, p. 227 [13th ed.]). White contends that none of the above factors indicate that he acted with premeditation when he killed his mother. Instead, White asserts that each of these factors demonstrates that he did not act with premeditation. Thus, White contends the evidence was insufficient to convict him of first-degree premeditated murder.
Under the first factor which implies premeditation--the nature of the weapon used--the State points out that White used a hammer to crush his mother's skull with one vigorous blow. The hammer did such extensive damage that almost the entire back of Pearl White's skull was fractured. The pathologist did not even have to use a saw to cut through the bone of Pearl White's skull. He simply removed the fractured part of her skull, and a very large area of the brain was exposed. The State argues that a hammer is obviously a deadly weapon, which indicates White had acted with premeditation when he killed his mother.
White concedes that he hit his mother in the head with a hammer, and he concedes that a hammer constitutes a deadly weapon. However, White claims that he did not think ahead and provide the weapon or have it available to kill his mother. Instead, his mother picked up the hammer and used it on him; then, White asserts, he only used the hammer on his mother in self-defense. Further, White points out that premeditation cannot be inferred from the use of a deadly weapon alone. Other circumstances, such as those listed above, must exist, in addition to the use of a deadly weapon, in order to support an inference of premeditation. See Henson, 221 Kan. at 639 (citing State v. Hamilton, 216 Kan. 559, Syl. ¶ 6, 534 P.2d 226 [1975]). According to White, none of these other circumstances or factors exist in this case.
The second factor from which premeditation may be inferred is the lack of provocation. White argues that there is not a "lack of provocation" in this case. Instead, the only evidence presented, according to White, is that he killed his mother in the heat of a physically violent argument which his mother instigated due to her desire for more money. White told Kathy White about the fight he had with his mother less than 3 days after it occurred. He also told the interrogating officer this same story following his arrest on May 31. Finally, White testified about this fight at trial. White testified that when he offered his mother part, but not all, of his paycheck, she started cussing at him. According to White's trial testimony, he just sat there unresponsive while she yelled at him because saying anything would have made her angrier. Then, White claims that his mother slapped him and stepped on his injured leg. At this point, White testified, he hit his mother and she went into her bedroom, but when White tried to leave the house, she came out of her room and hit him with a hammer. White testified that the two struggled over the hammer; then she let go of the hammer, and he fell backward with the hammer in his hands. At this point, White claimed, his mother pulled a shotgun out of the closet, and he did not have any time to think. The next thing White remembers is his mother lying on the bed covered in blood. Based on this evidence, White claims that there is no showing of a "lack of provocation" in this case. According to White, his mother clearly provoked him and required him to defend himself.
On the other hand, the State argues that there is no corroborating evidence which indicates Pearl White provoked White. The shotgun which Pearl White supposedly pulled out of the closet was never found. No one other than White ever saw the gun, and no one other than White testified that Pearl White even owned a shotgun. In fact, the State points out that White's own "provocation" story changed between the time he talked to Detective Smith and when he testified at trial. White told Detective Smith that his mother was angry because he did not give her his whole paycheck, so she slapped him and then he "saw red." At trial, White elaborated on this story, saying that he tried to leave after his mother slapped him, but she hit him with a hammer and then she pulled out a shotgun, so he had to hit her with a hammer in order to protect himself. The State points out that it is the jury's function to weigh the evidence and pass on the credibility of witnesses. State v. Timley, 255 Kan. 286, 308, 875 P.2d 242 (1994). According to the State, the jury heard both of White