*1 88,977 No. Shelby, Kansas, Michael E. Appellant. v.
State Appellee, (89 558) P.3d filed Opinion 14, 2004. May cause, Dams, defender, Michelle A. assistant Kathryn appellate argued Wall, defender, was on brief for B. assistant appellant. appellate Hecht, cause, L. Robert D. district Deborah attorney, argued Hughes, Kline, Phill with him on the district assistant attorney, attorney general, for brief appellee. delivered by opinion conviction of first- Davis, Michael Shelby appeals jury J.: 21-3401(a) K.S.A. murder in violation of
degree premeditated life with the after his sentence to possibility parole imprisonment He contends that the trial court committed years. reversible error s motion for late endorsement granting prosecutor *2 a critical witness and by admitting gruesome shocking photo- of the victim at trial. We affirm. graphs The defendant was introduced to Ward Lamanzo Stephanie a friend of the defendant. The defendant and Searcy, Searcy been friends since childhood and remained friends until the inci- dent rise to this case. awas user. giving Searcy drug Approximately 4 months death, to Ward’s Ward to allow the prior defend- agreed ant to use her house to sell for her drugs exchange furnishing was also with free drugs. Searcy defendant provided drugs by for a home the defendant could use to sell finding Others drugs. also sold out of Ward’s home. drugs
Because of traffic, the increased in- neighbors’ complaints, tense surveillance residence, of Ward’s a search warrant was issued for her residence. Officers cocaine, discovered crack Topeka cocaine, powdered set of scales. marijuana, plastic baggies, Ward and Eric arrested, Mims were but bonded out of jail. Ward let it be known to that she was not to taire the Searcy going bust, for the down, and if went she rap drug to anything tell told the defendant later that what everything. Ward Searcy day had said.
After the home, raid of Ward’s the defendant asked drug Searcy to rent a motel room for him. went ato motel at 37th and Searcy Chitwood, Boulevard with Robert who Topeka for the room. paid he could not dates, remember Although Chitwood recalled specific the motel room for the defendant sometime renting before Ward’s murder.
When and Chitwood returned to the house, Searcy defendant’s the defendant was conversation with Ward. having telephone heard the defendant tell Ward not to Searcy and that if she worry went to he would her out. The defendant jail and told get hung up that it had been Ward on and that Searcy she did telephone raided. Chitwood the defendant get to the motel gave keys room, the went home. gave Searcy drugs, Searcy lived with wife) Brooks his Searcy and her (Searcy Janice —now son, Brooks, home lived at Monta three children. group Janice’s for home visitations. was allowed but occasionally at trial by Searcy, agreed Key provided for the State’s dismissal the defendant exchange testify against firearm and of a of his aiding charges felony possession pending would after tire fact. The felon agreement provided if he involved if he himself or not be immunity perjured given homicide or murder. any her at friend Shinn visited Ward’s home between Janice few 2001. Shinn tried call a 9:30 and 10 on Friday, May p.m. but did around 11 Ward times later evening beginning p.m., not answer. 10:30, later around 10 testified that or Friday night, and asked if he could a ride defendant came to house get motel room. did not want them Brooks initially *3 Janice her $20. take her car but when the defendant relented Searcy gave defendant, a is a
could smell the “wet” from which odor laced with another marijuana cigarette drug. car, saw
When into that defendant they got Searcy said, “I had to do that bitch.” and defendant holding gun later, the bitch in the Sometime the defendant said “domed that head.” "domed” meant shot or killed. Searcy Searcy explained statement was “I had to dome later said defendant’s second the bitch.” took the same motel room that the defendant they
Searcy his rented earlier. The defendant asked to clean while Searcy pistol shower, in the and the clothes defendant was defendant his put in and to see defendant out of shower bag. jumped and felt if he could leave. what as Searcy doing, Searcy leave, However, then dismantle and defendant told Searcy home, bum the and bum of clothes. went Searcy gun, bag (his wife) the and and drove showed Brooks clothes the gun, clothes. a secluded one spot dump Searcy kept that the to hold the defendant had been gloves wearing gun in a his on it. hid the safe before get fingerprints They gun it to a named Concerned that he was Cain. being selling murder, blamed for the went to Colorado Searcy family he was where and returned to Kansas. apprehended subsequently Brooks corroborated much of at trial: that the Searcy’stestimony came home to their around 11 on p.m. Friday asking ride, for a that returned with a of clothes and a bag gun, defendant, that she shoe as to the recognized bag belonging clothes, and that in the they dumped they put gun safe. She said that had told her that the defendant had killed someone. mother, After of Ward’s her Officer discoveiy body by Jason call from Ward’s around 10 house a.m.
Cooper responded on 2001. Officer testified trial that the Tuesday, May Cooper of Ward bedroom photograph accurately depicted scene he crime observed. The defense’s to the admission objection of this on the was no there photograph grounds question Ward was killed in her home was overruled. Youse,
Officer Robert the officer in of the initial charge drug raid, testified that home the same condition as it was raid, floor, after the a lot bed mattress clothing end, on one and numerous left drawers standing up open had been searched. Officer Carl Larsen observed no of forced sign to either of the two entrances to the home. a shell entiy Although when a 9 mm. one casing normally ejected gun, firing only spent 9 mm. shell was found at the scene. A notebook was casing spiral nickname, found which Mike,” contained the defendant’s “Money number. telephone Crime scene technician and latent examiner fingerprint John Sanders testified that the defendant’s were not found fingerprints *4 2001, 29, at crime scene. On turned over Brooks a May glove to the which fell she claimed out of the into her trunk. police bag Sanders indicated that if particular wearing glove no would be left behind. fingerprints
Brooks led a detective location where they dumped clothes, and the were Kansas clothes recovered. Bureau of (KBI) forensic scientists that a testified bloodstain Investigation however, was discovered on shirt from this the DNA clothing; was inconclusive. testing at warrant the defendant’s executed a search
Police officers the same made 9 mm. home and recovered magazine clip Ward, it was Mil and that was used to manufacturer as gun rounds model tire The live made to fit the same particular gun. as the the same caliber and brand casing spent clip at had been recovered found the scene. The gun was identified as defendant’s gun. 30, 2001, on on at the motel
The was arrested May testified that while he was Boulevard. Scott Tibbits jail Topeka defendant, “[tjhat him her with the defendant told he turned busted, house, said crack and she house into a got —she him, he had her down.” to snitch on so she lay trial, At Erik Mitchell testified coroner forensic pathologist at middle of that Ward was shot close relatively range died head and on the left side of her head and she back her that the level of from these wounds. Mitchell decomposi- opined 29, 2001, with Ward tion consistent having May autopsy 25, his Mitchell been shot 2001. on Friday, testimony, May During the victim in his testi- utilized several explaining mony.
Late Endorsement Witness had a from Detective State and defense Kennedy report indicated, Kansas Children’s Service League through (KCSL) caseworker, Weese, a 48- that Monta was on Brooks Jan 24, hour from from home home Thursday, May pass group information, 26, 2001. later This May Saturday, although have would Monta in home the Searcy’s night disproved, put such, and the exten- As both the defense prosecution Mlling. and the examined about when Monta was sively visiting, However, defense this used report impeach Searcy’stestimony. found of trial that Weese no out day longer prosecutor KCSL, tecum for worked and he issued a duces for subpoena caseworker, a break after Monta’s current Scott. On Searcy’s Marcy discovered that Scott had testimony, prosecutor provided a 6-hour document which showed that Monta was actually given home, on from May passed group *5 this information to the defense at the noon break. This information established that Monta was home the of the Searcy’s night killing. recess, After Shinn and Brooks testified. Brooks indicated Janice
that the defendant had come to their house a ride on the needing 25. Brooks testified that her son Monta was night Friday, May not in the home at the time because him from the they picked up home the next on a At group the con- day (Saturday) 1-day pass. clusion of Brooks’ moved for the court testimony, prosecutor to endorse Scott of the KCSL. Marcy
The defendant because he had based his cross-exami- objected nation of on the initial information that Monta was home Searcy The defense information that this night killing. argued affected the manner in which it cross-examined on this issue earlier that The district court that the morning. defense responded could recall the motion that the tes- granted reasoning was critical and relevant and was not timony prejudicial defendant.
Scott testified that she had been Monta’s caseworker since Feb- 15, 2002, the date that Weese left her ruary employment KCSL. She testified that Monta had a to visit his mother in pass from 1 to 7 26,2001, and Topeka the district p.m. Saturday, May court admitted the record from the home which reflected group this cross-examination, information. On tire defense out pointed that Weese had told Detective that Monta had a Kennedy from but Scott indicated that she was May unaware May where Weese would have that information because it was gotten the file.
K.S.A. 2003 Supp. 22-3201(g) provides: as otherwise “Except provided, shall endorse the prosecuting attorney names of all witnesses known to the prosecuting attorney upon complaint, information and indictment at the time of it. as otherwise filing Except provided, endorse on it prosecuting attorney the names of other may witnesses that may afterward become known to the at times that the prosecuting attorney, may rule or otherwise If witness is to prescribe. any and the testify prosecuting believes the witness attorney who has information is in provided of intim- danger retaliation, idation or the prosecuting such inform- attorney may delay identifying ant witness until such informant witness testifies but no event shall actually *6 further order be without a witness beyond
identification of
delayed
arraignment
heard.”
the defendant to be
after
and an
of
of die court
hearing
opportunity
on the trial
broad
The above statute confers
discretionary power
Martens,
v.
late
of a witness. State
endorsement
court
allowing
471,
(2002).
will
459,
54
960
“An
274 Kan.
P.3d
appellate
was sur
a late
unless
defendant
endorsement
uphold
generally
words,
or,
of ‘a cli
critical
in other
and the
testimony
prised
State
nature.’
v.
mactic and
omitted.]”
[Citation
highly damaging
(1995),
Allen,
811, 816,
21
2d
The State that Scott’s new information the date argues regarding but, rather, was not climactic or went pass highly damaging to the issue of recollection the collateral matter ofwhich Searcy’s children were home the the defendant came to the house night a ride to the motel. This information did wanting change of the case it but bolstered corrob- theory prosecution’s merely recollection that Monta was not home on a orating Searcy’s that night. defense,
While the evidence was
it did not rise
damaging
*7
to
level of
or climactic for several rea
being highly damaging
See,
Bell,
54; (endorsement
sons.
273 Kan. at
on second
e.g.,
day
trial of
witness who had conversation with
saw
burn
shirt not abuse of discretion when defense did not
bloody
continuance,
statement,
had
of witness’
and did not
request
copy
of trial
88,186,
No.
an
require change
strategy);
Dupree,
Court
filed November
unpublished
Appeals’ opinion
rev.
(2004) (late
denied
First, was not the witness to about Monta’s Searcy only testify on the in Scott’s was presence Friday question. night testimony cumulative in that it corroborated Brooks’ that Monta testimony was not at their home on when the defendant came Friday evening to the house and Monta for a on picked up 1-day pass Saturday.
Second, it defense would have its although argued changed trial in it it that would still strategy cross-examining Searcy, likely have tried to him. initial was that he impeach Searcy’s testimony recalled Monta back to the home on which taking group Friday, was to both the initial evidence that Monta had a contrary pass from new evidence that he had Thursday through Saturday a 6-hour on the defense was only pass Saturday. Although seeking use Monta’s in the home to the exact date presence pinpoint home, the defendant came to the it is to note important in that his ever wavered that neither nor wife stating home on defendant came their only Friday night. question their as well. was at home mind was whether his stepson Searcy’s Third, was the defense thoroughly opportunity given and it was able to and Weese cross-examine both Scott highlight Ken- told Detective the dates Weese the inconsistencies between and the new date was issued presented through nedy This records at trial. cross-examination Scott’s per- new in- on the the defense to cast doubt mitted reliability trial, recollection of as well as formation Searcy’s presented events.
Fourth, it is that the defendant materially preju- unlikely trial of this evidence at diced introduction light circumstantial evidence amount of presented sup- overwhelming which Aside from Searcy’s damaging testimony port guilt. Brooks, room secured motel was corroborated the defendant incident, Ward indicated that before witnesses shortly multiple with information on following planning providing raid, the bullets was last seen or heard from she Friday night, after from sold from her head were fired recovered gun Searcy fit in the found the shooting, magazine clip gun home, admitted to a cellmate defendant’s and the defendant “had her she was to snitch. down” because lay our tradi- the defendant failed to courts’ comply Finally, ánd be denied tional defendant request requirement *8 Bell, 273 to reversible error. See continuance order establish reasons, the district court did not abuse Kan. at 54. For all of these the witness. its discretion late endorsing Photographs
The the court its discretion defendant district abused argues seven of shocking gruesome photographs admitting the wounds showed the of impact gunshot body, graphically that to her head. He these photographs repetitious, argues value, and contested elements had no did prove any probative of offense.
677
The
of
admission
as evidence in
homicide case
photographs
discretion,
within
rests
the trial court’s
and that court’s
will
ruling
be disturbed
absent
of abuse of discretion.
appeal
showing
discretion is abused
when
action
fan-
judicial
arbitraiy,
Judicial
ciful,
or,
words,
or unreasonable
in other
when no reasonable per-
would have
that
son
taken
was taken
the trial court.
position
Hebert,
v.
State
61,
(2004).
277 Kan.
82 P.3d
Syl. ¶¶
Gholston,
The defendant cites State v.
601,
272 Kan.
35 P.3d
cert. denied
In trial admitted of child vic- photographs tim in the connected life blood-soaked hospital support on her forehead and an bandage autopsy photograph depicting child’s trial, wound to the At head. the defendant did not gunshot the fact that the death victim’s caused challenge by gunshot wound and the issue sole raised was the of the shooter. identity defense were irrelevant and in- argued photographs because there was no fact flammatory disputed photo- tended to graphs prove.
On
this court
appeal,
recognized:
“It is well
established
which serve to illustrate the nature or
photographs
extent
wounds inflicted are
when
admissible
corroborate
testimony
of witnesses or are
relevant
of a
as to the cause of
testimony
pathologist
737-38, 1
726,
(2000).
death.
P.3d 836
Coyote,
death,
“Even where the
cause
concedes the
has the
prosecutor
of
burden
all the elements
the crime
prove
charged
photographs
prove
crime,
the elements
and manner
death
the violent
including
fact
crime,
Clark,
460,
nature
relevant
are
and admissible. State v.
261 Kan.
(1997).”
added.)
678 272 613- Kan. at discretion in
abuse its admitting photographs. 14. case, admis- to this all were Gholston photographs
Applying
con-
of the officer as to Ward’s
sible
corroborate the
to
testimony
of the coroner that the victim
found and the
dition when
testimony
Further, the
in
head at close
was shot twice
photographs
range.
shooter,
as the defend-
were
to
relevant
identity
proving
bitch in the head.” This was
ant
that he “domed the
told Searcy
an
because Ward was
inform
execution-style
killing
activities.
of
defendant’s drug
the State had to
The
further contends the
only thing
in
him was that he was the
in this case order
convict
prove
offense,
that the
committed the
admission
argues
is error where “the cause
of
of
victim’s body
grisly photographs
in
216
of
of the victim was
death
really
dispute.”
Boyd,
(1975).
Kan.
P.2d
of 14
In
the defendant
admission
challenged
photo-
Boyd,
at the
the deceased victim taken
of
autopsy, arguing
graphs
value, and
without
were
repulsive, inflammatory,
probative
On
this court concluded
one pho-
highly prejudicial.
appeal,
the victim “cut
from chin
which showed
of
body
open
tograph
in a
and laid out like disemboweled beef
packing plant”
groin
face
skin
the deceased’s
chest
cover[ed]
“[a]
partially
flap
of the deceased
and the chest
abdominal
[were] pre-
organs
view”
for the sole
sented
full
was admitted
inflaming
purpose
which the body separate gunshot from shoulder and being clothing stippling pattern more than two of each shot at close No range. *10 coroner shown had not altered the in jury. any body material for hair around Ward’s way except shaving entiy head, wound to the back of and no internal were de- organs Moreover, that even noted Boyd specifically picted. though of cause death was in some of were dispute, photographs relevant to corroborate and the medical witness’ explain testimony. discussed, As in this case were neces- previously photographs to corroborate the of the officer and the coroner sary that Ward was in shot twice the head at close The district range. did not court abuse its discretion these admitting photographs. Affirmed. Nuss, I write Concurring. only separately distinguish my J.: of from that our
analytical path majority opinion concerning of standard review for admission of the One who photographs. did not read the cited cases conclude that opinion’s majority might the standard of review is of for abuse discretion. In entirely my review for of abuse discretion is the second opinion, step along The first is to relevance. review for analytical path. step stated in As the majority opinion: “The court the district abused its discretion seven argues by admitting which gruesome showed shocking photographs body graphically of the wounds her head. He impact these gunshot argues value, had no repetitious, and did not contested ele- probative prove any ments the offense.” of these contentions this court’s state-
My analysis
begins
Meeks,
609,
ment
(2004):
277 Kan.
party
would be offered.”
v.
this
in State
As noted and as
applied by
Kingsley,
(1993),
“corroborate the testimony the coroner that die victim was shot twice the head close Further, were relevant to identity range. photographs proving shooter, the bitch the head.’ This as defendant told Üiat ‘domed Ward to inform the was an execution because style killing activities.” defendant’s drug because, also were relevant according photographs in which the “showed body majority opinion, they position wounds, found, effect two separate gunshot stippling Ward’s shoulder clothing.” as a matter that the were found threshold Having photographs relevant, nev- next determine whether should this court must they be- were or ertheless have been excluded because they repetitious risk of unfair cause their value was probative outweighed that, more than with the because not I majority agree prejudice. of each were shown to two jury, depicted point However, did address majority repetitious. what, view, is the defendant’s under the my remaining argument we second must whether determine step. Specifically, preju- dice inherent in the “gruesome shocking photographs showed the body graphically impact gunshot to her wounds head” their substantially outweighed probative value. examined the I cannot that no reason-
Having photographs, say able would taken the have view the trial court. adopted Meeks, See 618. Kan. at Because there was no abuse of dis- cretion, would, I like the affirm therefore majority, photo- admission into evidence. graphs’ in the J., joins
Beier, foregoing concurring opinion.