State v. Bierman

• Decision Date: 18 January 1991
• Docket Number: No. 64224,64224
• Citation: 248 Kan. 80,805 P.2d 25
• Parties: STATE of Kansas, Appellee, v. Shari Lyn BIERMAN, Appellant.
• Court: Kansas Supreme Court

Page 25

805 P.2d 25

248 Kan. 80

STATE of Kansas, Appellee, v. Shari Lyn BIERMAN, Appellant.

No. 64224.

Supreme Court of Kansas.

Jan. 18, 1991.

Syllabus by the Court

1. Rules applicable to a motion for change of venue in a criminal case under K.S.A. 22-2616(1) are discussed and applied in affirming the trial court's denial of defendant's venue motion.

2. K.S.A. 22-3402 requires any person charged with a crime and held in jail to be brought to trial within 90 days after such person's arraignment on the charge unless the time for trial is extended under the statute. The phrase "brought to trial" in that statute does not coincide with the date a defendant is placed in jeopardy under K.S.A. 21-3108(1)(c), but rather relates to the date the jury panel is sworn for the voir dire examination.

3. Applicable rules relating to the standard of review and to the element of premeditation are discussed and applied when the sufficiency of the evidence for a first-degree murder conviction is challenged on appeal.

John J. McNally, Kansas City, argued the cause and was on brief, for appellant.

Nick A. Tomasic, Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on brief, for appellee.

SIX, Justice:

Defendant Shari Lyn Bierman was convicted of theft over $500 (K.S.A. 21-3701) and first-degree murder (K.S.A.1989 Supp. 21-3401) in the killing of her 17-year-old sister, Syndi.

The issues for resolution relate to: (1) Bierman's motion for change of venue; (2) her right to a speedy trial under K.S.A. 22-3402(1); and (3) the sufficiency of the evidence to sustain a conviction for premeditated first-degree murder.

We find no error and affirm.

Facts

On Sunday, February 19, 1989, at approximately 3:11 a.m., a Wyandotte County Sheriff's dispatcher received a phone call from Shari Bierman. Bierman stated that her house had been broken into. She believed someone might still be inside. She was advised to go next door and call back. Officers were dispatched to the residence. Approximately 30 seconds after her first call, Bierman called back stating that her sister was on the floor and there was blood all over. The second call also was placed from the Bierman home.

The first officers arrived at the Bierman home at approximately 3:20 a.m. As the officers approached, Bierman opened the front door, grabbed one of them, and pulled him toward an inside stairway. She was hysterical. She told the officers that someone had killed her sister and that the suspects might still be in the house. The body of Bierman's sister, Syndi, was found in Syndi's upstairs bedroom. No one else was in the house. Portions of the house had been ransacked and several items were missing.

Bierman, who was recently divorced, lived with her two sons, ages one and three, in the finished basement of her parents' home. Her parents and Syndi, her only sibling, lived in the upstairs.

Bierman told the police officers that she left home at 11:00 p.m., returned at 3:00 a.m., and discovered the burglary and her sister. She stated that Syndi and two of Syndi's friends, Renea and Lisa, were at the residence when she left. She said no one else was at the house that evening. Bierman was not a suspect at this time.

Bierman became a suspect after the police questioned Renea and Lisa.

Renea and Lisa told police that someone named A.J. (Archie Owens, Jr.) was home with Bierman. They also stated that Syndi was scared of Bierman.

Matt, Syndi's boyfriend, testified that on the Thursday before her death, Syndi told him that Bierman had threatened her. Syndi was scared and did not want to go home. Matt talked to Leonard Bierman, Shari and Syndi's father, the morning after Syndi was killed. Matt testified the father said, "I bet my last dollar she [Shari] did it." Mr. Bierman did not remember making the statement, but did not deny it.

Shari Bierman was taken to the police station for questioning. Initially, she repeated her statement that she left at 11:00 p.m., returned at 3:00 a.m., and no one else was with her at the house. When confronted with the fact that other people knew she had someone at home that evening, Bierman said that Brian (apparently an acquaintance) was there. She then admitted that Joseph Hernandez and Archie Owens were at the house with her and that they all left at 11:00 p.m. She said Hernandez and Owens would not do anything like stealing property or killing her sister. The stolen property was later found at Owens' apartment.

On February 21, 1989, Hernandez and Owens were charged in Wyandotte County District Court with first-degree murder and theft over $500. Bierman was charged with theft over $500 and with aiding a felon. On February 23, 1989, a second amended information also charged Bierman with first-degree murder.

Hernandez pled guilty to first-degree murder. In a plea agreement, he agreed to testify against Bierman and Owens.

The trial of Bierman and Owens commenced on June 26, 1989.

Hernandez' Story

Hernandez testified that he had known Bierman about a year. He had seen her one to three times a month. They were not dating. He saw her for sexual relations. On February 18, 1989, Hernandez was living with Owens and Owens' girlfriend, Tambi Lewis. On that day, he phoned Bierman between 5:00 p.m. and 5:30 p.m. They agreed to see each other. Owens was driving Hernandez to Bierman's residence in Lewis' car. They stopped and called Bierman, who did not object to Owens coming along.

They arrived at Bierman's house at approximately 6:30 p.m. After 20 to 25 minutes, Owens, Hernandez, Bierman, and Bierman's two children drove to a babysitter and left the children.

After driving around for a while, the three returned to the Bierman residence, parked in the garage, and then entered the basement apartment. Syndi's car and two others were at the house. Bierman used the phone as an intercom and talked to Syndi upstairs to see who was there. Bierman did not want Syndi to know "she had two guys downstairs."

According to Hernandez, they then had three-way bondage sex. Afterward, Hernandez and Owens suggested that they "steal" things from Bierman's parents' house. Bierman said she did not care. Hernandez admitted that he and Owens had talked earlier about stealing from the Biermans' house.

Shortly before midnight, Owens, Hernandez, and Bierman left the Bierman home. Owens drove Lewis' car back to his apartment. Bierman and Hernandez used Bierman's car to pick up her children. They took the children to Owens' apartment. Bierman left the children with Lewis and Tina Reilly, a 15-year-old runaway, while Hernandez, Owens, and Bierman proceeded back to the Bierman home.

Hernandez testified that Bierman directed them to a construction site to pick up two-by-fours "in case they had to knock someone out."

Bierman said that only her sister would be home and that if they were quiet they would not wake her up; they could just take the things and leave. Upon arriving, Hernandez tried to go downstairs while Owens and Bierman went upstairs. The basement door was locked so Hernandez followed Owens and Bierman upstairs. Hernandez and Owens each carried a two-by-four.

Bierman "stomped" on the way up the stairs to make noise. They were outside Syndi's bedroom. The bedroom door was open. Syndi began to wake up and asked who was there. Hernandez hit Syndi three or four times with a two-by-four. Owens hit her two or three times with a two-by-four. Owens' two-by-four had nails in it. Syndi rolled off the bed and began screaming. Hernandez pushed a pillow over her face. Owens hit her on the head. Hernandez moved downstairs and gathered up things to take from the home.

Hernandez heard Owens tell Bierman "to get her." Bierman said, "You fucking bitch." Then he heard a thump. Owens told Bierman to get some knives. Bierman left and returned to the bedroom from downstairs with two knives. Hernandez denied cutting or stabbing Syndi or being present while anyone cut or stabbed her.

Four kitchen-type butcher knives were introduced as exhibits by the State. Blood was on the knife found on the floor in Syndi's bedroom, and on the knife found under the dining room table. The blood could have been Syndi's or Bierman's; analysis excluded Owens' blood as well as that of Hernandez.

Hernandez testified that he kicked open the locked basement door and unplugged the computer and printer. Bierman was still upstairs. Hernandez, Owens, and Bierman took a computer, printer, VCR, camera, two watches, tapes, a mirror, and $60. Hernandez identified the stolen property recovered from Owens' apartment. All three helped load the car. They took the two-by-fours with them.

Bierman, Owens, and Hernandez moved the stolen property and the two-by-fours into Owens' apartment. Lewis, Reilly, and Bierman's children were there. Hernandez went to a downstairs apartment and asked Tina Buck and "some other girl" how to get blood off of his shoes. Bierman told him to shut up and come upstairs. Hernandez told her to go home and call the police. Bierman left with her children. He stated that he never threatened Bierman. The last thing Bierman said to Hernandez was, "I'll talk to you later."

The Stories of Reilly, Lewis, and Buck

Reilly testified that Hernandez told her that he, Owens, and Bierman had beaten Syndi and that he had slit her throat because Syndi was yelling.

Lewis pled guilty to aiding a felon. Lewis testified that she was at Owens' apartment the night of February 18 and the morning of February 19, 1989. Owens, Hernandez, and Bierman dropped off Bierman's children. They said they were going to burglarize Bierman's parents' house. Bierman did not object. When they came back, Bierman helped carry the stolen property into the apartment. Lewis said Owens told her that all three had beaten Syndi up. Owens said in front of Bierman, "Well, Shari don't care about her little sister anyway." Bierman replied, "I hate that little bitch."

Tina Buck testified that Hernandez came...