State v. Alexander

• Decision Date: 05 December 1986
• Docket Number: No. 58404,58404
• Parties: STATE of Kansas, Appellee, v. Donald Eugene ALEXANDER, Appellant.
• Court: Kansas Supreme Court

Page 1126

729 P.2d 1126

240 Kan. 273

STATE of Kansas, Appellee, v. Donald Eugene ALEXANDER, Appellant.

No. 58404.

Supreme Court of Kansas.

Dec. 5, 1986.

Syllabus by the Court

Under the facts presented in this case, it is held: testimony that the defendant was incarcerated constituted harmless error. It is further held that the trial court did not err in (1) allowing certain rebuttal testimony regarding the defendant's sanity, (2) denying the defendant's motion for a change of venue, (3) denying the defendant's motions to suppress hair samples taken from the defendant and to suppress the defendant's confession, (4) denying the defendant's motion for judgment of acquittal made at the close of all the evidence, and (5) not instructing the jury that the disposition of the case was a matter for the court to decide.

Michael E. Riling of Riling, Norwood, Burkhead & Fairchild, Chartered, Lawrence, argued the cause, and Wesley M. Norwood, of the same firm, was with him, on brief, for appellant.

Gerald E. Wells, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and James E. Flory, Dist. Atty., were with him, on brief, for appellee.

SCHROEDER, Chief Justice:

This is a direct appeal taken by the defendant, Donald Eugene Alexander, from his convictions by a Douglas County jury of first-degree murder (K.S.A. 21-3401), rape (K.S.A.1985 Supp. 21-3502[b], and aggravated burglary (K.S.A. 21-3716). Numerous trial errors are asserted on appeal.

On the morning of August 5, 1984, the dead body of Mrs. V., an 80-year-old woman, was found in her bedroom lying in a pool of blood. An autopsy revealed the victim had suffered severe blows to her head by an instrument and had been sexually assaulted by a rigid instrument inserted into her anus. The victim's death was estimated to have occurred sometime between 10:00 p.m. on August 4, 1984, and 9:00 a.m. on August 5, 1984.

After seventeen days, the investigation of Mrs. V.'s death had reached a stalemate and the police officers returned to the victim's neighborhood to re-interview persons living there. The defendant lived next door to the victim with his parents. The defendant accompanied two detectives to the police station at approximately 10:00 a.m. At 6:50 p.m., that same day, the defendant confessed to killing Mrs. V. The facts surrounding his confession will be discussed later in this opinion.

The defendant was charged and convicted of first-degree murder, rape, and aggravated burglary. His defense was not guilty by reason of insanity.

The defendant first asserts the trial court erred by allowing a jailer to testify that he had observed the defendant in jail and had observed nothing unusual in his behavior. The defendant does not object to a lay person's testimony concerning the defendant's sanity, but does object to the jailer mentioning that the defendant was incarcerated.

The last witness the State called in its case in chief was Greydon Walker, a Douglas County jailer where the defendant was being held. He stated he had had the opportunity to observe the defendant as there were cameras which monitored the inmates inside their cells. The defendant objected to the reference to his incarceration and a hearing on the objection was held outside the jury's presence. The State stated the sole purpose of calling Mr. Walker was to present lay testimony regarding the defendant's demeanor. In a proffer to the court, Mr. Walker stated he had observed nothing unusual in the defendant's behavior since he had been in jail. Based upon that proffer, the trial court allowed Mr. Walker to testify. When the jury returned, Mr. Walker testified that from December 6, 1984, on, he had noticed nothing "unusual or irrational" in the defendant's behavior.

The defendant argues the testimony of Mr. Walker was "nothing more than a direct attempt by the State to underline the fact that the defendant was incarcerated before the trial and during the trial."

First, in an insanity case, lay testimony is permissible concerning the defendant's sanity at the time of committing the crime provided the trial judge finds the opinion is rationally based on the witness' perception and is helpful to a clearer understanding of his testimony. State v. Randol, 212 Kan. 461, 468, 513 P.2d 248 (1973), and cases therein cited. See State v. Shultz, 225 Kan. 135, 137, 587 P.2d 901 (1978). Here, the crime was committed August 4, 1984, and Mr. Walker testified to the defendant's behavior after December 6, 1984, over four months later. His testimony did not concern the defendant's behavior during a time period that was sufficiently close to the time the crime was committed.

Second, the defendant cites Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126, reh. denied 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d 1194 (1976), to support his argument it was error to allow testimony that the defendant was in jail. The defendant in Estelle was also in custody before and during his trial. He had asked for, but was denied, civilian clothes to wear during the trial. The defendant did not object to this denial, however, until after his conviction, in a writ of habeas corpus. The Supreme Court ruled that consistent with the Fourteenth Amendment the State cannot compel an accused to stand trial by a jury wearing identifiable prison clothes; however, because the defendant did not make a timely objection there was no compulsion and no error. 425 U.S. at 512-13, 96 S.Ct. at 1697.

Kansas has addressed the issue of a defendant wearing prison clothes during his jury trial and has ruled that a defendant's appearance in prison clothes does not in and of itself constitute reversible error, that prejudice to the defendant must be shown. State v. Hall, 220 Kan. 712, 715, 556 P.2d 413 (1976). See State v. Morgan, 231 Kan. 472, 479, 646 P.2d 1064 (1982), State v. Gilder, 223 Kan. 220, 225, 574 P.2d 196 (1977).

Other jurisdictions have held where the defendant is seen in shackles, handcuffs, or prison clothes by the jury, such error was harmless error in light of the evidence presented of defendant's guilt. Mitchell v. Engle, 634 F.2d 353 (6th Cir.1980); Boswell v. State of Ala., 537 F.2d 100 (5th Cir.1976); State v. Reid, 114 Ariz. 16, 559 P.2d 136 (1976), cert. denied 431 U.S. 921, 97 S.Ct. 2191, 53 L.Ed.2d 234 (1977); People v. Jacla, 77 Cal.App.3d 878, 144 Cal.Rptr. 23 (1978); Fernandez v. United States, 375 A.2d 484 (D.C.1977); and State v. Leggett, 363 So.2d 434 (La.1978).

This case, where the jury is told the defendant was observed in jail, and the above cases, where the defendant was seen by the jury in prison clothes or handcuffed, are analogous. In both, the jury discovered the defendant was incarcerated during trial. Such information is contrary to the presumption of innocence and it was erroneous for the trial court to allow the jailer's testimony. However, was it harmless error? In applying the Kansas harmless error rule (K.S.A. 60-2105), a reviewing court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt. State v. Abu-Isba, 235 Kan. 851, 859, 685 P.2d 856 (1984); State v. Johnson, 231 Kan. 151, 159, 643 P.2d 146 (1982). Here, testimony that the defendant was in jail had little likelihood of affecting the outcome of the trial in light of the defendant's confession, which will be discussed later, and the testimony of the various experts regarding his mental capacity.

The defendant's second issue is that the trial court abused its discretion in allowing the State to recall Dr. Herbert Modlin as a rebuttal witness.

In its case in chief, the State introduced evidence that the defendant was sane at the time of the crime through the testimony of Dr. Modlin. During the presentation of the defendant's case, Dr. Elias Chediak testified the defendant did not know the difference between right and wrong at the time of the crime because the defendant suffered from a "brief reactive psychosis." Dr. Chediak explained a "brief reactive psychosis" appears when a person is exposed to a psychosocial stressor and experiences a severe distress. The resulting effect can be a state of confusion, suicidal or aggressive tendencies, hallucinations, or delusions. The "brief reactive psychosis" lasts from a few hours to two weeks, with the person eventually returning to his previous level of functioning. Dr. Chediak also explained that the term "psychosis" means the loss of contact with reality and that a person suffering from the above diagnosis can lose the ability to distinguish between right and wrong.

Dr. Chediak was the last witness the defendant called. On rebuttal the State recalled Dr. Modlin to testify. The State asked Dr. Modlin if he had an opinion whether the defendant suffered from any "brief reactive psychosis," and the defendant objected on the basis this was not proper rebuttal. The State responded that Dr. Chediak's testimony was the first time it had learned the defendant suffered from a "brief reactive psychosis," as that diagnosis was not included in Dr. Chediak's written psychological evaluation provided to the State. The trial court overruled the defendant's objection and allowed the rebuttal testimony of Dr. Modlin. Dr. Modlin testified that, in his opinion, at the time the defendant entered and left the victim's house, the defendant did not suffer from a "brief reactive psychosis."

On many occasions this court has stated the law concerning rebuttal testimony:

"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 pa...