932 P.2d 981 (Kan. 1997), 71971, State v. Rice

Docket Nº:71971.
Citation:932 P.2d 981, 261 Kan. 567
Party Name:STATE of Kansas, Appellee, v. Jerry D. RICE, Appellant.
Attorney:[6] Carl E. Cornwell, of Cornwell & Edmonds, of Overland Park, argued the cause, and Keith C. Sevedge, of Lenexa, was with him on the brief for appellant. Michael Russell, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general...
Case Date:January 31, 1997
Court:Supreme Court of Kansas

Page 981

932 P.2d 981 (Kan. 1997)

261 Kan. 567

STATE of Kansas, Appellee,

v.

Jerry D. RICE, Appellant.

No. 71971.

Supreme Court of Kansas

January 31, 1997

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Syllabus by the Court

1. Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal evidence rests in the sound discretion of the trial court, and its ruling will not be reversed unless it appears the discretion has been abused to a party's prejudice.

2. Under K.S.A. 60-460(a), a statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter is not inadmissible hearsay, provided the statement would be admissible if made by the declarant while testifying as a witness.

3. When the State seeks to introduce evidence in a criminal case through K.S.A. 60-460(a), the declarant must actually testify and be subject to cross-examination without claiming the inability to remember the statement or refusing to testify by invoking Fifth Amendment rights. Thus, putting the declarant

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on the stand prior to admitting testimony about the declarant's out-of-court statement, while not technically required, is the best practice and serves to limit the possibility of reversible error.

4. Evidence of previous cruel and brutal assaults may be used in a marital homicide case on the question of motive and intent for the purpose of showing malice and hatred on the part of the defendant. It may also be used to show the relationship of the parties or a continuing course of conduct, or to corroborate the testimony of witnesses as to the act charged.

5. The admission of relevant cumulative evidence is within the discretion of the trial court and will not form the basis for reversal unless the trial court abused its discretion.

6. Where reliance is placed upon circumstantial evidence, the circumstances in question must themselves be proved and cannot be inferred or presumed from other circumstances.

[261 Kan. 568] 7. Both premeditation and homicide may be supported by circumstantial evidence if that evidence is sufficiently strong to support a finding beyond a reasonable doubt that the defendant both premeditated a killing and subsequently committed the homicide.

8. Dealing lethal blows after the victim is rendered helpless by the attacker supports an inference of premeditation and deliberation.

9. The basis for the admission of expert testimony is necessity arising out of the particular circumstances of the case. To be admissible, expert testimony must be helpful to the jury. Where the normal experience and qualifications of lay persons serving as jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are inadmissible.

10. An expert's opinion, pursuant to K.S.A. 60-456, is admissible up to the point where an expression of opinion would require the expert to pass upon the credibility of witnesses or the weight of disputed evidence. An expert witness may not pass on the weight or credibility of evidence.

11. Where an unsolicited, unresponsive, and improper remark is given by a witness to a proper question resulting in the erroneous disclosure of evidence, the case turns on whether a limiting instruction was given and the degree of prejudice to the defendant.

12. The Sixth Amendment right to counsel is the right to the effective assistance of counsel. The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

13. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction requires that the defendant show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.

14. The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the effectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.

15. In examining a defendant's claim of ineffective assistance of counsel, with regard to the required showing of prejudice, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider

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the totality of the evidence before the judge or jury.

16. Once a proper determination of the issue of claimed ineffective assistance of counsel has been made by the trial court, the scope of review by the appellate court is to review de novo the trial court's analysis of the performance and prejudice components, which are mixed questions of law and fact.

17. Under the facts of this case, trial counsel's performance was unreasonably deficient where counsel's advice that the defendant should not testify was not based on any justifiable strategic considerations but on counsel's attempt to practice law in a jurisdiction where he was not licensed and without having a correct understanding of the Kansas rules of evidence or taking the necessary steps to properly determine one of the critical components of the decision of whether the accused should testify. Equally deficient is the conduct of Kansas counsel who undertook local representation, but who did not ensure he was actually involved in all aspects of the defense.

18. Under the facts of this case, the defendant's testimony would not have had any critical effect on major portions of the strategy of the defense; there is considerable evidence sufficient to uphold the verdict which would not have been affected by the defendant's testimony; and the defendant has failed to show that had he testified there is a reasonable probability that the result of the proceeding would have been different. The required [261 Kan. 570] showing of prejudice because of ineffective assistance of counsel has not been satisfied by the defendant.

Carl E. Cornwell, of Cornwell & Edmonds, Overland Park, argued the cause, and Keith C. Sevedge, Lenexa, was with him on the brief, for appellant.

Michael Russell, Assistant District Attorney, argued the cause, and Nick A. Tomasic, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellee.

LARSON, Justice:

This case involves Jerry D. Rice's conviction of the September 14, 1992, first-degree murder of his wife, Dorlinda "Lindy" Stakely-Rice, in which a sentence of life imprisonment with no chance of parole for 40 years was imposed. After appeal to this court, we remanded for a hearing to consider the merits of Rice's claim of ineffective assistance of counsel. The trial court found that although Rice's Missouri-licensed trial counsel labored under an incorrect understanding of Kansas law which caused Rice to decide not to testify, nevertheless counsel's representation was not so deficient as to require a new trial. Rice appealed, alleging both trial errors and his counsel's ineffectiveness.

Statement of Facts

The evidence was hotly disputed, and much of the testimony was contradicted by other evidence. The following is a summary of the testimony of the many witnesses presented.

The case against Rice was proven by circumstantial evidence. No body was ever found, and no witnesses had observed Rice murder Lindy. On September 14, 1992, Lindy telephoned Margaret Flynn, her mother, about 11 to 11:15 p.m. Lindy was upset and said she was leaving and bringing the children over to Flynn's house because Rice was acting crazy. She said Rice was demanding $20,000. Flynn did not see or hear from Lindy after that conversation, even though she was in the habit of talking to her daughter every day. Flynn said Rice told her Lindy had left by car. In addition, Flynn claimed Rice did not file a missing persons report [261 Kan. 571] with the police, despite his promise to do so, until she told him she was going to file one.

Flynn testified she had given Lindy keys to her house and vehicles. Lindy kept those keys in the bottom of her purse because she did not want anyone to know that she had them. About 2 months after Lindy's disappearance, Rice returned the keys.

Terrisa Hicks, Lindy's eldest daughter, was pregnant when her mother disappeared and had told her the due date was November

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12, 1992. Lindy was planning to be at the birth along with her mother and grandmother so they could take a picture of five generations. Lindy...

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184 practice notes
  • 218 P.3d 457 (Kan.App. 2009), 100,703, State v. Rivera
    • United States
    • Kansas Court of Appeals of Kansas
    • November 6, 2009
    ...of affecting the trial's outcome. 240 Kan. at 44-45, 726 P.2d 1322. Similar reasoning on similar facts was upheld in State v. Rice, 261 Kan. 567, 591-92, 932 P.2d 981 (1997). In Rivera's case, the trial court determined that, based on its immediate instruction to the jury to ignore the stat......
  • 225 P.3d 1200 (Kan.App. 2010), 101,534, Rice v. State
    • United States
    • Kansas Court of Appeals of Kansas
    • March 12, 2010
    ...disappeared in 1992 and whose body has never been found. The underlying facts were set forth by the Kansas Supreme Court in State v. Rice, 261 Kan. 567, 570-79, 932 P.2d 981 (1997)( Rice I ). We will review only the procedural history of the case. Following his conviction, Rice pursued a di......
  • 43 P.3d 837 (Kan.App. 2002), 86,386, State v. McIntosh
    • United States
    • Kansas Court of Appeals of Kansas
    • April 5, 2002
    ...of the trial court. A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion. State v. Rice, 261 Kan. 567, 589, 932 P.2d 981 (1997). Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State ......
  • 955 P.2d 141 (Kan.App. 1998), 76979, Fitzpatrick v. Allen
    • United States
    • Kansas Court of Appeals of Kansas
    • February 27, 1998
    ...the case turns on whether a limiting instruction was given and the degree of prejudice to the [affected party].' " State v. Rice, 261 Kan. 567, 593, 932 P.2d 981 (1997) (quoting State v. Barncord, 240 Kan. 35, Syl. p 5, 726 P.2d 1322 [1986] ). "On appeal, we have held that a jury ......
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183 cases
  • 218 P.3d 457 (Kan.App. 2009), 100,703, State v. Rivera
    • United States
    • Kansas Court of Appeals of Kansas
    • November 6, 2009
    ...of affecting the trial's outcome. 240 Kan. at 44-45, 726 P.2d 1322. Similar reasoning on similar facts was upheld in State v. Rice, 261 Kan. 567, 591-92, 932 P.2d 981 (1997). In Rivera's case, the trial court determined that, based on its immediate instruction to the jury to ignore the stat......
  • 225 P.3d 1200 (Kan.App. 2010), 101,534, Rice v. State
    • United States
    • Kansas Court of Appeals of Kansas
    • March 12, 2010
    ...disappeared in 1992 and whose body has never been found. The underlying facts were set forth by the Kansas Supreme Court in State v. Rice, 261 Kan. 567, 570-79, 932 P.2d 981 (1997)( Rice I ). We will review only the procedural history of the case. Following his conviction, Rice pursued a di......
  • 43 P.3d 837 (Kan.App. 2002), 86,386, State v. McIntosh
    • United States
    • Kansas Court of Appeals of Kansas
    • April 5, 2002
    ...of the trial court. A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion. State v. Rice, 261 Kan. 567, 589, 932 P.2d 981 (1997). Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State ......
  • 955 P.2d 141 (Kan.App. 1998), 76979, Fitzpatrick v. Allen
    • United States
    • Kansas Court of Appeals of Kansas
    • February 27, 1998
    ...the case turns on whether a limiting instruction was given and the degree of prejudice to the [affected party].' " State v. Rice, 261 Kan. 567, 593, 932 P.2d 981 (1997) (quoting State v. Barncord, 240 Kan. 35, Syl. p 5, 726 P.2d 1322 [1986] ). "On appeal, we have held that a jury ......
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