IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 83,705
STATE OF KANSAS,
Appellee,
v.
RODNEY WAYNE HENRY, JR.,
Appellant.
SYLLABUS BY THE COURT
1. Rules regarding a defendant's waiver of his or her right to counsel are discussed and applied.
2. When reviewing a trial court's decision as to suppression of evidence, an appellate court normally gives great deference to the factual findings of the trial court, but the ultimate determination of the suppression of evidence is a legal question requiring independent appellate determination.
3. A misstatement of the law, whether by the prosecutor or by the court, denies the defendant a fair trial where the facts are such that the jury could have been confused or misled by the misstatement.
4. Generally, reversible error cannot be based upon misconduct by the prosecutor during closing argument where no contemporaneous objection is lodged. However, if the prosecutor's statements violate a defendant's right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection.
5. If there is an objection to the prosecutor's statements during closing argument or an alleged due process violation, appellate review of the effect of a prosecutor's improper remarks in closing argument is required. Such review involves a two-step process: (1) Were the remarks outside the considerable latitude the prosecutor is allowed in discussing the evidence; and (2) were the remarks so gross and flagrant as to prejudice the jury against the defendant and to deny the defendant a fair trial?
6. Relevant evidence is evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(b).
7. Normally, the admission or exclusion of evidence is measured by the harmless error rule. In determining if the erroneous admission or exclusion of evidence is harmless, the court must consider if it is inconsistent with substantial justice, i.e., affects the substantial rights of a defendant and, if not, whether this court can declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.
8. In a premeditated first-degree murder case, the record is examined and it is held that under the facts of this case, the victim's mother's testimony and the prosecutor's remarks about the mother's grief were not relevant, were patently improper and clearly intended to inflame the passion and prejudice of the jury, substantially affected the defendant's right to a fair trial, and constituted reversible prosecutorial misconduct.
Appeal from Johnson district court; PETER V. RUDDICK, judge. Opinion filed April 26, 2002. Reversed and remanded for a new trial.
John Edward Cash, of Kansas City, Missouri, argued the cause, and Kimberley Kellogg, of Leawood, was with him on the brief for appellant.
Steven J. Obermeier, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
LOCKETT, J.: Defendant was convicted of first-degree murder, rape, and aggravated criminal sodomy. Defendant was sentenced to life in prison without eligibility for parole for 40 years for murder, 194 months for rape, and 146 months for sodomy. The rape and sodomy counts were run consecutive to the murder count. Defendant appeals, claiming (1) prosecutorial misconduct in the closing argument; (2) the trial court erred in admitting testimony of the victim's mother; and (3) the trial court erred in admitting the defendant's confession.
At approximately 10:50 a.m. on April 26, 1998, Lenexa police were dispatched to the Howard Johnson's motel in response to a call concerning a possible murder. In one of the guest rooms, the body of a nude white female was found in the bathtub lying on her back. The woman was identified as Claire Marie Monti. The officer noted a number of bruises on the woman's arms, chest, and legs, and a distinctive red mark under her left breast. There appeared to be pooling of blood in her lower extremities. A liquid, later determined to be shampoo, covered the woman's body. The bedspread from the motel's bed was missing. Officers checked nearby dumpsters for evidence.
A forensic neuropathologist examined the body before it was moved. Lividity was present. Abrasions and contusions were noted. The neuropathologist determined that Monti had been dead for a number of hours.
The following day, an autopsy was conducted. The coroner found 18 abrasions, 19 contusions, and 4 subgaleal hemorrhages (bleeding between the scalp and skull), and determined that there were probably four distinct blows to the head. All the abrasions were about the same age and had been inflicted shortly before death. Many of the abrasions had a faint woven pattern resulting from blows inflicted through cloth, such as clothing. One abrasion appeared to have resulted from the forward edge of a heel, suggesting that Monti had been stomped.
An internal examination of the body revealed a laceration to the liver, which was associated with approximately 50 milliliters of blood in the abdomen. Considerable force was necessary to lacerate the liver. All the injuries had been inflicted 4 to 6 hours prior to death and would have been painful.
The examination further revealed a significant amount of petechial hemorrhaging, which is consistent with a struggle. There was bruising in the muscles of the neck, indicating constriction of the neck by hands or a rope. The coroner observed asphyxial injuries to the exterior of the body, indicating strangulation. Petechial hemorrhages were concentrated over the eyes and forehead. There were scleral hemorrhages in both eyes.
The coroner also noted indications of sexual activity. There were three separate lacerations near the anus, suggesting anal penetration. All of the injuries were pre-mortem.
The forensic DNA analyst with the Johnson County Crime Laboratory collected swabs at the autopsy. The swab collected from the deceased's thigh contained semen. There was also semen on a towel recovered from the floor of the motel room.
John Applebury, a contractor in the remodeling business, employed Rodney Henry, and Henry's friend, Carl Dean Rails. Rails, who was lead carpenter/supervisor, had worked for Applebury for slightly more than 1 year. Henry had started working for Applebury as an assistant carpenter in February 1998.
On Monday, April 27, 1998, Rails paged Applebury, requesting an immediate return call. When Applebury returned the call, Rails told Applebury that he and Henry needed to talk to him because "something crazy had happened." Applebury told Rails to come his job site in Kansas City, Missouri, and they would discuss the problem.
When Rails and Henry arrived, they informed Applebury that they had murdered someone. Although Rails assumed the lead in telling Applebury the story, both men contributed to the conversation. They stated that they met a woman who was parked on the street. The woman indicated that she wanted to be with them, so they followed her in separate cars to her motel. Along the way, when Rails was pulled over by the police, Henry and the woman stopped their cars to wait for Rails. After the traffic stop, the three of them continued to the woman's motel room.
The men told Applebury that in the motel room the woman wanted to have sex with them, but "went stupid on [them]." Henry stated he helped Rails get control of the woman by pulling her arm behind her. Henry believed that he broke the woman's arm in the process. Rails stated to Appleberry that he knew he had to kill the woman because the incident had escalated to where he was guilty of rape and battery, and at that point, he had no choice.
After the woman was killed, Rails and Henry cleaned up the room, removed the curtains, sheets, ashtrays, and everything else that might have fingerprints. They bundled the items in a bedspread, and later placed the bundle in a dumpster and lit a fire.
Henry wanted to cut up the woman's body and remove it in pieces from the motel room. Rails, who was worried that they would be observed taking the body out, suggested that, if discovered, they kill any witnesses. The men told Applebury that they had decided to leave the woman's body in the bathtub filled with water. At that point, Applebury told the men he did not want to hear any more about the murder.
The men had informed Applebury about the murder because if they became suspects, the police might contact their employer to locate them. They requested that Applebury give them an early warning if the police came looking for them. Applebury asked the men if they thought they could live with what they had done. Both replied they could live with it. Applebury later called the TIPS Hotline from a public telephone. Applebury stated what he had been told and provided the police with the names and social security numbers of Rails and Henry.
After Henry was arrested, detectives interviewed him. Henry confessed to the murder. The interview was videotaped, and the tape was played to the jury at trial. On the videotape, Henry described meeting a woman from out of town in Westport. After the woman had drinks with Henry and Rails, they went to the woman's motel room. When the woman refused Rails' sexual advances, Rails "just lost it" and began hitting the woman. Rails attacked the woman on the floor, putting his hands around her throat and starting to choke her. She pleaded with him to stop and agreed to do anything Rails wanted. Rails said that it was too late and kept choking her.
When the woman began scratching Rails' face, Rails looked to Henry for help. Henry grabbed the woman's right arm and pulled it behind her back. The woman stopped moving and went limp. Rails kept squeezing the woman's neck. When Rails' hands began to tire and hurt, he asked Henry to get a towel. Henry got a towel and gave it to Rails. Rails wrapped the towel around the woman's neck and twisted it. Rails kept looking at the woman asking, "Are you dead, bitch?" Rails then ripped off the woman's clothes and began molesting her. After molesting the woman, Rails stepped on her chest, tried to rip her nipples off, kicked her in the chest, and then shoved a towel into her anus.
After the woman had died, the two men threw her body in the bathtub. Henry turned on the hot water. Rails laughed, grabbed shampoo, and poured it over the woman's body. Rails and Henry then wiped down everything in the room, left, and drove to a warehouse where they placed the woman's clothing and bed articles in a dumpster. They then lit the contents of the dumpster on fire to destroy the evidence.
Henry and Rails were charged and separately tried for the murder, rape, and sodomy of Monti. Henry testified at his trial. He admitted his role in the murder, but defended by asserting that because of a mental defect, he had been incapable of forming the requisite intent for intentional murder.
Henry was convicted of the crimes charged and later sentenced. Henry appealed, asserting that he was denied a fair trial because of the prosecutor's improper comments in closing argument, the erroneous admission of testimony of Monti's mother, and the erroneous admission of his confession to the police.
Admitting Defendant's Confession
In Davis v. United States, 512 U.S. 452, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994), the United States Supreme Court set out the circumstances for law enforcement to consider in determining whether a suspect has invoked or waived Miranda rights during questioning.
"The right to counsel recognized in Miranda is sufficiently important to suspects in criminal investigations, we have held, that it 'requir[es] the special protection of the knowing and intelligent waiver standard.' Edwards v. Arizona, 451 U.S. [477] at 483 [(1981)]. See Oregon v. Bradshaw, 462 U.S. 1039, 1046-1047 (1983) (plurality opinion); id., at 1051(Powell, J., concurring in judgment). If the suspect effectively waives his right to counsel after receiving the Miranda warnings, law enforcement officers are free to question him. North Carolina v. Butler, 441 U.S. 369, 372-376 (1979). But if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation. Edwards v. Arizona, supra, at 484-485. This 'second layer of prophylaxis for the Miranda right to counsel,' McNeil v. Wisconsin, 501 U.S. 171, 176 (1991), is 'designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights,' Michigan v. Harvey, 494 U.S. 344, 350 (1990). To that end, we have held that a suspect who has invoked the right to counsel cannot be questioned regarding any offense unless an attorney is actually present. Minnick v. Mississippi, 498 U.S. 146 (1990); Arizona v. Roberson, 486 U.S. 675 (1988). 'It remains clear, however, that this prohibition on further questioning--like other aspects of Miranda--is not itself required by the Fifth Amendment's prohibition on coerced confessions, but is instead justified only by reference to its prophylactic purpose.' Connecticut v. Barrett, supra, 479 U.S.[523], at 528 [(1987)]." 512 U.S. at 458.
The trial court conducted a hearing on the defendant's motion to suppress the videotaped confession made to officers investigating the murder of Monti and ruled:
"Prior to the evidentiary hearing on the Defendant's motion to suppress, State's Exhibit 1 which is the videotaped statement was delivered to me, and I watched it completely, and I can tell you that I watched over and over again the portions from the time log on the tape from 215750 to 223810, and that encompasses just about everything we're arguing about here with the exception that at the commencement of the interview, Miranda Warnings were presented to the Defendant and a waiver was made at that time. Specifically at 215750, the Defendant asked to review the written waiver of Miranda, and makes the comment, 'So this means I can't talk to a lawyer' which one of the detectives says is not the case, and at 220320, Defendant states, 'I want to talk to a lawyer.' The tape, of course, speaks for itself, but in my view and my findings are that at that point, detectives terminated the interview, and the Defendant made the following remark. 'All right, guys. Wait a minute.' And shortly thereafter, 'Can I make a call to my girl and then we'll resume this?' At 221050, the Defendant indicates that he wants to talk to you again. At 221210, the following--or 221210 Defendant states, 'Do I need to talk to a lawyer? Do I need to have a lawyer say something to you? If I want to talk to a lawyer, is there one here?' Based on the more involved, of course, exchange that's presented on the tape, I think each of those three statements constitutes, at best, an ambiguous request. In fact, they might not constitute a request at all. But I think under the Ninci case, they are, at best, an ambiguous request for counsel. There are following several exchanges about whether the Defendant can go home if he talks, and then at 223810, Defendant states he wants to tell the whole story, and essentially proceeds to give a lengthy detailed version of events which took place.
. . . .
"I'm sure Defense counsel is correct that at some point in time here, Defendant is in custody. I don't think I need to make a finding as precisely when that occurred because my factual finding is that the Defendant made only one unambiguous request for counsel which is the one at 220320 on the tape, and then almost immediately withdrew that request and reinitiated the interview with the detectives, and that despite lengthy exchanges before he recommenced that statement, all of which are contained in Exhibit 1, I do not find that any further unambiguous request for counsel was made. Therefore, the Defendant's motion to suppress any of that statement is denied."
Our standard of review is as follows:
"When reviewing a trial court's decision as to suppression of evidence, an appellate court normally gives great deference to the factual findings of the trial court, but the ultimate determination of the suppression of evidence is a legal question requiring independent appellate determination." State v. Shively, 268 Kan. 589, Syl. ¶ 1, 999 P.2d 259 (2000).
See State v. Ninci, 262 Kan. 21, 44, 936 P.2d 1364 (1997); State v. Longbine, 257 Kan. 713, 717, 896 P.2d 367 (1995).
Henry contends that the portion of his statement taken after his first invocation of his right to counsel should have been suppressed because the subsequent conversation included statements of the officers that were "tantamount to" or the "functional equivalent of" conducting an interrogation in violation of his right to counsel.
At the suppression hearing, a detective who conducted the interview testified regarding Henry's first request for an attorney. The detective was asked:
"Q. And Detective Olney left the room to go retrieve [the waiver of Miranda Henry had signed at the inception of the interview]. At 10 p.m. Detective Olney came back in and at 10:02 p.m. Mr. Henry asked 'Since I signed this form does that mean I can't talk to a lawyer?' Did you answer the question?
"A. Yes, we did.
"Q. What did you tell him?
"A. I said, 'No. That's not what that means at all. What's on that paper is your rights.'
"Q. Did he say something after that then?
"A. Yes, he did. He said, 'I want to talk to a lawyer.'
"Q. Okay. Are you all trained as to what to do in an interview when a suspect says that?
"A. Yes.
"Q. What do you do?
"A. That's when we would stop the interview.
. . . .
"Q. And so what did you all do then when Mr. Henry said, 'I want to talk to a lawyer?'
"A. We both began to, or we stopped the interview. We were getting ready to get up and walk out. I had closed the book that I had which I was taking notes in.
"Q. Uh huh.
"A. I closed that. I was getting ready to stand up and with the intent of leaving the room. At that point Mr. Henry put his hand up and said, 'Wait a minute, guys.' And then there was some conversation and both Detective Olney and I asked him are you saying that you want to continue to talk to us.
"Q. Did he respond to that question?
"A. Yes.
"Q. Did you take that to be a re-initiation of contact?
"A. Yes, I did."
We have reviewed the pertinent parts of the videotaped interview. At first, Henry gave very little in the way of incriminating information. At approximately 11:58 p.m., Henry requested that the officers allow him to review the Miranda form he had signed at the beginning of the interview. One of the detectives left the room to obtain the form. While the detective was out of the room, the other detective talked to Henry about honor, courage, and commitment--marine values (Henry had served in the marines). When the detective returned with the form, he did not immediately give the form to Henry, but instead began to review with Henry the facts they had already obtained. When Henry asked to see the form, the detective handed it to Henry. As Henry read, one of the detectives stated to Henry that they would get the story from Rails if they were unable to obtain it from him.
After reading the Miranda form, Henry asked if by signing the waiver he had given up his right to talk to an attorney. The detectives told Henry that he had not given up the right to an attorney--that the form was just an explanation of his rights. Henry then stated that he wanted to talk to an attorney and the detectives began putting their notebooks away. One detective asked Henry for his attorney's name. Henry said that he did not have an attorney and could not afford one.
The detectives immediately got up out of their chairs to leave. Henry stopped them, stating, "All right, guys, wait a minute." A detective asked Henry, "What are you telling me, we've got rules; we have to abide by what you said; it's up to you; we won't try to sway you." Henry said, "Can I make a phone call?" The detectives said that Henry could make the call, and asked, "Then do you want to come back and talk to us?" Henry said, "I just wanna make the call." The detectives then asked Henry to tell them what he wanted to do after the call. Henry said, "I want to call, then we can come back in here." The detectives said, "If you want to talk to us, you have to tell us." Henry then made a telephone call to his girlfriend. He could be overheard saying into the telephone, "I can go home, but I'm not going to, I'm staying here. I'll explain when I get home."
When the detectives and Henry returned to the interview room, a detective asked, "Do you want to talk?" Henry said, "Yes" and asked whether he needed an attorney. The detectives explained that they were not at liberty to give him that kind of advice. After that point, there is a considerable length of time where the detectives tried to persuade Henry to tell his story, but Henry was reticent and remained silent for much of the time. The detectives informed Henry that they wanted to listen, but that there were rules they had to follow about questioning and they had to be sure that he wanted to talk. Henry agreed to talk, but stated that he would have to back up in the story and straighten out a few points. Henry then proceeded to confess to his role in the killing of Monti.
When Henry made an unambiguous request for an attorney, the officers immediately responded to it by terminating the questioning. Henry then stopped the detectives from leaving the room, asking them to wait. Henry was very clear that after he made a telephone call, he would be willing to talk further with the detectives. After making the call, Henry reconsidered his decision to resume the interview. It is the period after the phone call and before the confession that Henry claims was the functional equivalent of an interrogation that violated his right to counsel. We note that although Henry was at times reticent, the officers did not coerce or coax Henry to confess. We conclude that under the circumstances, Henry unequivocally withdrew his request for counsel before questioning resumed and there was no violation of the defendant's right to counsel.
Prosecutor's Closing Argument
The insanity and diminished capacity defenses had been abolished by the legislature at the time of Henry's crimes. See State v. Jorrick, 269 Kan. 72, 81, 4 P.3d 610 (2000). After January 1, 1996, a defendant might claim a mental disease or defect as a defense if it was such that it negated the mens rea element of the crime. K.S.A. 22-3220 states:
"It is a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged. Mental disease or defect is not otherwise a defense."
Henry, who had confessed to killing the victim, raised this defense at trial.
Defense witness Dr. Douglas Hippe testified that Henry suffered from a mental disease or defect that impaired his ability to form criminal intent. Hippe testified:
"It appears from all of the records available and the testing, as well as the extensive diagnostic interviewing that Mr. Henry experiences a Chronic Posttraumatic Stress Disorder with respect to early childhood and adolescent experiences with verbal and physical abuse, as well as psychological and emotional abuse and . . . sexual abuse. This was compounded by extensive sexual abuse in adolescence, and left him with severe depression, low self- esteem, low self-worth, sensitivity to rejection, abandonment and a significant problem with alcohol, multiple other difficulties which included relationships and so on. Mr. Henry was very--was verbal and coherent at the time of the incident and the intensity of his affect during the period was very strong, which in some ways may seem appropriate to the situation which it was. It was no evidence of formal thought disorder either as to form or content at that time. There was no indication of thoughts in advance of the crime nor preparation. It appears as indicated that due to his--I'll use abbreviation PTSD and ASD symptoms--Mr. Henry was unable to substantially monitor control or change his behavior at the time of the incident. Mr. Henry was compromised by mental illness PTSD Chronic, the ASD, and the Dysthymia as well as to the extent that he lacked capacity to deliberate on his action, and in [a] rational manner, and could not premeditate his behavior nor form the intent in a rational state of mind. Mr. Henry showed an impairment of judgment at that time by way of his inability to weigh accurately benefits or risks of the different alternatives as indicated. And this is--the substance of intent is that in order to form intent, there have to be choices available, and you have to make those choices. And as I said, he was unable to weigh accurately benefits or risks of different alternatives as indicated. Thus, there's substantial interference with capacity to formulate or even recognize problems and then follow through on making appropriate decision. As a result, he was incapable of forming intent to the requirements of the law due to the indicated factors. The latter factors are not related to personality characteristics, but are rather psychological and emotional deficits. These are symptoms of PTSD and ASD and Dysthymia. Impaired ability to make choices from these options that were available in his environment. These resulted in disruption of his ability to integrate consciousness, identity, and memory."
The jury was instructed concerning evidence of mental disease or defect as it relates to the issue of whether Henry was able to form the necessary mental state for each offense charged. Instruction No. 9 provided:
"Evidence has been presented that the defendant was afflicted by mental disease or defect at the time of the alleged crime(s). Such evidence is to be considered only in determining whether the defendant had the state of mind required to commit the crime(s). You are instructed the defendant is not criminally responsible for his acts if because of mental disease or defect the defendant lacked the premeditation required to commit first degree murder, or the necessary intent to commit the crimes of first degree murder, second degree murder or voluntary manslaughter, or the necessary intent to aid and abet another in committing or attempting to commit any of the crimes charged."
Instruction No. 10 provided:
"If you find the defendant not guilty solely because the defendant, at the time of the alleged crime(s), was suffering from a mental disease or defect which rendered the defendant incapable of premeditation or possessing the required criminal intent, then the defendant is committed to the State Security Hospital for safe-keeping and treatment until discharged according to law."
In closing argument, the prosecutor reviewed Instruction No. 9 with the jury. The prosecutor read the instruction and then commented:
"It's sort of hard to understand. It's kind of complicated, isn't it? What that means when you boil it all out is find him not responsible because of mental disease or defect, you've got to be able to find he was so out of it that he didn't know that was a lady getting choked in the room; that he didn't help Carl Dean Rails at all; that he didn't grab her arm to keep her from scratching him; that he didn't go into that room with any sexual intent; that he didn't beat her; that he didn't help beat her; that he didn't watch out for Carl Dean Rails while he beat her; that he didn't get that towel for Carl Dean Rails because his hands were getting tired. You got to find all that is out of the picture, and we know that's not the case. He told us. He told us he did that. Now, he wants to get up here and mealy-mouth and whine and cry about how he's not responsible for it because he's had a hard life. That isn't what gets it."
The prosecutor's argument was an emotional misstatement of the law. A misstatement of the law, whether by prosecutor or by the court, denies the defendant a fair trial where the facts are such that the jury could have been confused or misled by the misstatement. See State v. Moncla, 262 Kan. 58, 69-70, 936 P.2d 727 (1997). According to the prosecutor, the jury had to find that Henry did not commit the alleged acts in order to find him not guilty by reason of mental disease or defect.
There was no objection to this portion of the prosecutor's closing argument. Generally, reversible error cannot be based upon misconduct by the prosecutor during closing argument where no contemporaneous objection is lodged. State v. Finley, 268 Kan. 557, 571, 998 P.2d 95 (2000). However, if the prosecutor's statements violate a defendant's right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. 268 Kan. at 571.
If there was an objection or an alleged due process violation, appellate review of the effect of a prosecutor's improper remarks in closing argument is required. Such review involves a two-step process: (1) Were the remarks outside the considerable latitude the prosecutor is allowed in discussing the evidence; and (2) were the remarks so gross and flagrant as to prejudice the jury against the defendant and to deny the defendant a fair trial? 268 Kan. at 571-72.
We note that Henry admitted that he committed the acts, but claimed he was unable to form the requisite mental state for criminal responsibility due to his dependence on Rails and other factors set out in Dr. Hippe's testimony. Henry contends that the prosecutor's misstatement of the law denied him a fair trial because it confused the complicated issue of mental disease or defect as it related to his criminal intent and improperly shifted the burden of proof from the State to the defendant. The State does not address Henry's contention in its brief.
Here, the prosecutor's misstatement of the law must be considered in the context of the jury instructions given by the trial court. The instructions to the jury as to a mental defect or