State v. Alford
| Decision Date | 02 June 1995 |
| Docket Number | No. 71633,71633 |
| Citation | 896 P.2d 1059,257 Kan. 830 |
| Court | Kansas Supreme Court |
| Parties | STATE of Kansas, Appellee, v. Brent L. ALFORD, Appellant. |
Syllabus by the Court
1. K.S.A.1992 Supp. 21-4627(1) provides that a conviction resulting in imposition of the hard 40 sentence shall be subject to automatic review by and appeal to the Supreme Court of Kansas in the manner provided by the applicable statutes and rules of the Supreme Court governing appellate procedure.
2. The phrase "automatic review" requires review by this court even though the defendant fails to properly follow the normal procedural rules for perfecting the appeal. Under the provisions of K.S.A.1992 Supp. 21-4627(1), the appeal to this court is commenced automatically upon the imposition of the hard 40 sentence.
3. When the sufficiency of the evidence is challenged for establishing the existence of an aggravating circumstance in a hard 40 sentence proceeding, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt.
4. In order for this court to entertain a claim of vagueness concerning jury instructions regarding the terms heinous, atrocious, and cruel, the claim of vagueness must have been asserted in the trial court as well as on appeal.
5. When a pretrial motion to suppress is denied, the defendant must make a timely objection at trial to the introduction of the evidence, specifying the ground for the objection in order to preserve the issue for appeal.
6. In the case of a marital homicide, evidence of a discordant marital relationship and a wife's fear of her husband's temper is competent as bearing on the defendant's motive and intent. This rule is equally applicable to a live-in relationship.
7. The admission of photographs in a homicide case is a matter within the trial court's discretion and will not be disturbed absent a showing of abuse of that discretion. Judicial discretion is abused when no reasonable person would take the view of the trial court.
8. Where a single offense may be committed in more than one way, there must be unanimity by a jury as to guilt for the single crime charged; however, unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means.
Steven R. Zinn, Deputy Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the briefs for appellant.
Debra S. Peterson, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Carla J. Stovall, Atty. Gen., were with her on the brief for appellee.
This is a direct criminal appeal by the defendant Brent L. Alford from convictions, following a jury trial, of first-degree murder, K.S.A.1992 Supp. 21-3401; aggravated kidnapping, K.S.A. 21-3421; and unlawful possession of a firearm, K.S.A.1992 Supp. 21-4204. He was sentenced to the "hard 40" on the murder charge, life on the aggravated kidnapping charge, and 3 to 10 years on the firearm charge. The sentences on the aggravated kidnapping and firearm charges were ordered to run concurrent with each other but consecutive to the hard 40 sentence.
The defendant argues that the jury's determination that his killing of the victim was committed in an especially heinous, atrocious, and cruel manner is not supported by sufficient evidence and that the jury instruction on "heinous, atrocious and cruel manner" was unconstitutionally vague. He also contends that the district court erred in admitting a written statement prepared by the victim regarding a previous aggravated battery incident and that the district court erred in admitting photographs of injuries suffered by the victim in that previous incident. Finally, he contends that his conviction for aggravated kidnapping should be reversed because there was insufficient evidence to support one of the means by which the offense was alleged to have been committed. Finding no reversible error, we affirm.
The defendant and Kim Jackson first met in Oklahoma in 1983 and began dating in 1984. In 1988, the couple began living together and resided together until 1990 when the defendant moved to Wichita to obtain employment. Two months later, Jackson joined the defendant in Wichita, and the couple resumed living together.
In December 1992 and January 1993, Jackson related to a friend, Jeff Jones, that she was involved in a bad relationship that was "going down." On January 8, 1993, Jackson went to Jones' apartment crying. She told Jones that the defendant had beaten her. She also told Jones that the defendant had stated that if she left him, he would get his cousin to kill her. Jackson moved into Jones' apartment.
On January 13, 1993, Jackson called Jones from Burger King, her place of employment, and stated that she was going to the defendant's apartment to get the rest of her belongings. When she did not return after several hours, Jones became concerned and called the police, asking them to go to the defendant's apartment and check on Jackson's welfare.
At trial, Wichita police officer James Pinegar testified that he had gone to the apartment to check on Jackson. When he arrived, the defendant opened the door. Officer Pinegar stated that he entered the apartment and found Jackson huddled in the corner by the bed, crying. She was dressed only in a nightgown and had blood on her face. There was also blood on the sheets and pillowcase.
Jackson told Officer Pinegar that the defendant had taken a razor blade and held it up to her cheek. She stated that the defendant would ask her if she was "fucking" Jones and that when she answered that she was not, he cut her face with the razor. Jackson told Officer Pinegar that the defendant also cut her with a tile knife, punched her in the stomach, hit her on the head with a hammer, and, at one point, scratched her leg with the claw of the hammer. Officer Pinegar arrested the defendant for aggravated battery.
The State introduced several photographs taken at the defendant's apartment to show the injuries suffered by Jackson. The defendant objected, claiming that the prejudicial effect of the photographs outweighed their probative value. The State also sought to introduce a written summary of the incident, which Jackson had prepared at the suggestion of Jones. Although the defendant had previously objected to the introduction of this statement before trial, he did not object at trial.
Melaura Guider, one of Jackson's co-workers, testified that around February 1, Jackson told her that the defendant had called and asked if she was going to get their television out of the pawn shop. This call scared Jackson, and she called the jail to verify that the defendant was still incarcerated and had not bonded out on the aggravated battery charge.
The defendant was able to bond out of jail on February 11, 1993. Kirk Gillett, one of the defendant's co-workers with whom he began staying, testified that the defendant talked about Jackson and had stated that if he had to go to jail, he ought to do something to earn it.
Guider testified that in late February, Jackson told her the defendant had called and said, "Bitch, I could have got you last night while you was getting the groceries out of your car." Guider stated that Jackson was terrified that the defendant would kill her. According to Guider, the defendant later called Jackson and told her, "I could have killed you last night while Jeff was at work." On February 28, the defendant left a note on Jackson's mailbox saying that he would see her at work after 5 p.m. Jackson was too scared to go to work that day. Jones also testified that Jackson told him the defendant had called her at Burger King and stated that there was something he had to do before he went back to jail. This contact led to the filing of a motion to revoke the defendant's bond.
Mark Dinsmore, another Burger King employee, testified that on the afternoon of March 5, a man called and asked for Jackson. When Jackson picked up the phone, the man hung up. Guider testified that later that afternoon, Jackson was waiting on a customer in the drive-thru when the defendant walked into the kitchen through the door leading from the restroom. The defendant was carrying a gun in his hand.
Guider stated that the defendant forced her away from the door and yelled for everyone to get into the office. Jackson then ran out the door into the lobby in an attempt to escape. The defendant ran after Jackson and shot her twice. Jackson was bent over; the defendant pushed her through the door back into the kitchen. As they were going through the kitchen, Jackson suddenly grabbed a basket of fries from the fryer and threw them at the defendant. The defendant slid on the hot grease and fell against the bun warmer. He then shot Jackson again.
Jackson was still on her feet. The defendant grabbed her by the neck and began dragging her towards the back. According to Guider, the defendant was attempting to shoot Jackson again, but the gun was jammed. The defendant took Jackson around a corner; Guider kept hearing clicks from the jammed gun and then heard two shots. Guider then heard the back door being opened. The defendant was later arrested running from the scene. The gun used in the shooting, a .25 caliber semiautomatic, was recovered from a nearby trash dumpster.
Jackson died later that night. An autopsy revealed that she had suffered three gunshot wounds to the head, a wound to the lower right side, two wounds in the left arm, and a wound to the upper left back. Dr. Eckert, the doctor performing the autopsy, testified that Jackson died as the result of one of the gunshots to the head. He stated that the fatal wound would likely cause a person to become unconscious.
The defendant's version was slightly different. He stated...
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