Rice v. State
| Decision Date | 24 July 2015 |
| Docket Number | 110,589. |
| Citation | 353 P.3d 471 (Table) |
| Parties | Jerry D. RICE, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Court of Appeals |
Richard Ney, of Ney, Adams & Shaneyfelt, of Wichita, for appellant.
Christopher L. Schneider, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and SCHROEDER, JJ.
This appeal considers the claim of Jerry D. Rice that the lawyer he retained following his murder conviction was ineffective for not asserting and pursuing in Rice's direct appeal to the Kansas Supreme Court all of the various aspects in which Rice contends that his trial counsel was ineffective in the guilt and penalty phases of Rice's trial.
Rice was convicted of first-degree murder for the death of his wife, Dorlinda M. Rice (Lindy). He was sentenced to life in prison with no chance of parole for 40 years.
Stripped to the essentials necessary for the disposition of Rice's current appeal, the procedural history of the case after Rice's conviction discloses that in his direct appeal to the Kansas Supreme Court, Rice included the claim that his trial counsel had been ineffective in advising Rice not to testify on his own behalf during the guilt phase of the trial. The Supreme Court found no reversible errors in the conduct of the trial and found the evidence sufficient to support Rice's conviction, but the Supreme Court remanded the case to the district court pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), for an evidentiary hearing on Rice's ineffective assistance of trial counsel claim. Following that hearing, the Supreme Court majority affirmed Rice's conviction, concluding that Rice's trial counsel had been ineffective in advising Rice not to testify but that this improperly grounded advice was harmless because there was no reasonable probability that the outcome of the trial would have been different if Rice had taken the stand in his own defense. State v. Rice, 261 Kan. 567, 607–09, 932 P.2d 981 (1997) (Rice I ).
Rice filed a K.S.A. 60–1507 motion asserting additional claims of ineffective assistance of trial counsel. At the hearing on that motion, Rice sought to amend his motion to include claims that his counsel at the Van Cleave hearing had been ineffective. The district court denied the motion to amend, concluding that Rice did not have a constitutional right to the effective assistance of counsel at the Van Cleave hearing. Rice appealed, and this court reversed and remanded for further proceedings on Rice's claim of ineffective assistance of counsel at the Van Cleave hearing. Rice v. State, 37 Kan.App.2d 456, 465–66, 154 P.3d 537, rev. denied 284 Kan. 946 (2007) (Rice II ).
On remand, the district court again denied relief based on Rice's delay in asserting his claim of ineffective assistance of Van Cleave counsel. Rice appealed again, and again this court reversed for further consideration of Rice's claims. Rice v. State, 43 Kan.App.2d 428, 433–43, 225 P.3d 1200 (2010)(Rice III). On remand, the district court held an evidentiary hearing. The same judge who presided over Rice's jury trial presided over the hearing on Rice's K.S.A. 60–1507 motion. The hearing was held 17 years after Rice's criminal trial. At the time of the hearing Rice's trial counsel was age 78 and with an admittedly failing memory. Following that hearing the district court denied relief, and this appeal followed.
The parties are well acquainted with the facts which led to Rice's murder conviction. For others, the following will provide a brief overview of the essential facts. Other facts will be supplied as necessary when we discuss each of Rice's various claims.
Rice's conviction was based primarily on circumstantial evidence. The State contended that Rice killed Lindy and disposed of her body. Lindy's body was never found. Rice contended that not only did he not kill Lindy, but that Lindy had been seen alive and well in central Missouri and in Overland Park after the date of the alleged crime. He contended Lindy had a history of running off, and that is what she did at the time the State claimed she was murdered.
After living together for several years, Rice and Lindy were married in November 1991. Lindy had three children from prior marriages: Terrisa Hicks, an adult, and Mark (age 10 at trial) and Amanda (age 6 at trial) who lived with Lindy and Rice. The relationship between Rice and Lindy had been a stormy one, involving physical and verbal abuse of Lindy. Lindy had gone to her mother's house several times out of fear of Rice. During past angry confrontations Rice had reportedly threatened Lindy's life.
At trial, Mark and Amanda testified that on the night of September 14, 1992, Rice came home, and in the altercation that followed he severely beat Lindy. The children witnessed Rice punching Lindy in the face, kicking her in the stomach, and dragging her up the stairs by her hair. Rice told the children to stay in their rooms and not go upstairs. He told them not to tell anyone what they saw that night. The following morning, when Rice went outside, the children went upstairs and found the bathroom door blocked by a dresser. They were able to move the dresser a few inches and look inside the bathroom, where they saw their mother lying on the floor and apparently unconscious. They then hurried back downstairs before Rice returned to the house. At some point after Rice returned, he took the children to the sitter. He later came and picked up the children and returned home. When they returned home, the children went to the upstairs bathroom and found the dresser moved back into place and Lindy gone.
A few days later, Rice's girlfriend, Lela Faye Chambers, moved in with Rice. She helped take care of the children, whom she found to be nervous and frightened. The children told Chambers they were not supposed to talk about what happened to their mother. The children were eventually taken to Minnesota to live with their natural father, Mark Lyons, Sr.
Rice's home was located above some abandoned mines which were used as a landfill in the Argentine area of Kansas City. There were numerous sinkholes in the surrounding land caused by the mines. The owner of the landfill parked a bulldozer in the area. In the past, Rice had hot-wired the bulldozer for his personal use. He was seen using the bulldozer near the entrance to a mine shortly after Lindy's disappearance. The entrance to the mine was found to have been filled in at about that time. The State's theory was that Rice had disposed of Lindy's body there, though the authorities were never able to find it.
According to the State, Rice took steps to cover up the crime. A few months before her disappearance, Lindy had done extensive redecorating to the home, including interior repainting. Carpets were cleaned but not replaced because Rice said new carpets would be too expensive. Shortly after Lindy's disappearance, Rice repainted the interior of the home and replaced the carpet in the areas where the beating had occurred.
Rice presented evidence that Lindy drank heavily, had been involved in the use of illegal drugs, and in the past had disappeared for extended periods of time without her children and without warning. Lindy purportedly announced in August 1992 that she intended to leave Rice. Four defense witnesses testified to having seen Lindy in central Missouri or in Overland Park after the date of her alleged murder.
In rebuttal, the State presented the testimony of Pam Whitten to impeach the testimony of Rice's sister, Dixie Frazier. Whitten had been living off and on at Frazier's home for several months. Whitten testified she saw Frazier on the morning of September 15, 1992. According to Whitten, Frazier had just returned from Rice's home and appeared quite shaken. Frazier told Whitten that Rice had called Frazier and asked her to come to his home. When Frazier arrived, she found Rice's home to be a total wreck and a hutch had been destroyed. She found Rice sitting on the bed holding Lindy, rocking her, and telling her he was sorry. Rice told his sister that he had beaten Lindy the night before, that they had then made up and gone to bed and made love, but that later he could not awaken her. Neither Frazier nor Rice could detect any signs of life from Lindy. Frazier returned home at around 9:30 a.m. According to Whitten, Rice arrived later at about 1 p.m. to drop off the children and have Frazier look after them, apparently to provide him with time to make arrangements to clean up the house and dispose of the body.
After closing arguments the jurors deliberated for a couple of hours and then adjourned for the evening. The following morning they deliberated until about noon when they announced their guilty verdict. The court adjourned for 2 hours and then reconvened for the penalty phase of the trial at 2 p.m.
The State advised the court that its evidence in the penalty phase would consist of Rice's prior criminal record. The State had previously given notice that it intended to seek a hard 40 sentence based upon the assertion that the crime was committed in an especially atrocious, cruel, or heinous manner. Thus, the court ruled that the State's evidence and argument would be limited to that, and evidence of Rice's criminal history would not be admitted. With that, the State announced it would rest on the testimony elicited at trial and would make its closing argument on the issue of Rice's punishment based upon that testimony.
Rice's trial counsel did not introduce any evidence or call any witnesses on Rice's behalf during the penalty phase. At the conclusion of the court's instructions to the jury regarding Rice's punishment, the State made its final argument. Rice's trial counsel waived closing argument on Rice's behalf. The jury returned a verdict of life imprisonment with Rice being eligible for parole after 40 years. This was the...
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