State v. Baacke

• Decision Date: 24 January 1997
• Docket Number: No. 74877,74877
• Citation: State v. Baacke, 261 Kan. 422, 932 P.2d 396 (Kan. 1997)
• Parties: STATE of Kansas, Appellee, v. Gregory BAACKE, Appellant.
• Court: Kansas Supreme Court

Page 396

932 P.2d 396

261 Kan. 422

STATE of Kansas, Appellee, v. Gregory BAACKE, Appellant.

No. 74877.

Supreme Court of Kansas.

Jan. 24, 1997.

Syllabus by the Court

1. The admission or exclusion of evidence, subject to exclusionary rules, is within the trial court's discretion. Discretion is abused only when judicial action is arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt the trial court's view.

2. When the defendant opens a subject on direct or cross-examination, the State may develop and explore various phases of that subject.

3. The extent of cross-examination for purposes of impeachment lies within the sound discretion of the trial court and, absent proof of clear abuse, the exercise of that discretion will not constitute prejudicial error.

4. In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. Improper remarks made by the prosecutor in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant and to deny the defendant a fair trial.

5. In closing argument, the prosecutor may draw reasonable inferences from the evidence, but may not comment upon facts outside the evidence. Counsel may make impassioned appeals to the jury, but should not inject issues broader than the accused's guilt or innocence or make predictions about the consequences of the jury's verdict.

6. It is the duty of the trial court to instruct the jury, not only as to the crime charged, but also as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced. The court has this duty regardless of whether the defendant requests the instruction at trial.

7. The duty to instruct on a lesser crime only arises when there is evidence to reasonably support a conviction for the lesser offense.

8. Murders committed intentionally, but without malice due to mental disease, defect, or intoxication are not included within the definition of voluntary manslaughter. K.S.A. 21-3403.

9. In reviewing a trial court decision regarding the suppression of evidence, we review the factual underpinnings of the decision by a substantial competent evidence standard and review the ultimate legal decision drawn from those facts de novo with independent judgment.

Jessica R. Kunen, Chief Appellate Defender, argued thecause and was on the brief, for appellant.

William L. Navis, County Attorney, argued the cause, and Brian V. Grace, Assistant County Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellee.

LARSON, Justice:

This is a direct appeal pursuant to K.S.A. 22-3601(b)(1) from jury convictions of first-degree felony murder and felony theft. Gregory Baacke asserts the following trial errors: (1) The trial court erred in admitting certain testimony; (2) the trial court erred in allowing the State to make an impermissible argument during closing remarks; (3) the trial court erred in refusing to give lesser included offense instructions; (4) the trial court erred in failing to suppress Baacke's confessions as the result of an illegal seizure; and (5) the trial court erred in giving a PIK Crim.3d 52.02 jury instruction.

On September 23, 1994, Gladys Knedlik was stabbed and shot at her rural home in Republic County, Kansas. After Baacke was apprehended with his friend Matthew Keen in Knedlik's car in Huntington, Arkansas, he admitted to killing Knedlik and taking her car. Baacke and Keen were charged with Knedlik's murder and tried separately. Baacke defended on grounds of insanity, diminished capacity, and voluntary intoxication.

Factual Background

Baacke and Keen lived near Amherst, Nebraska. On September 22, 1994, they stole a car from a neighbor's home, packed some of their possessions, and then drove south and east on country roads intending to drive to Florida. Past midnight, the car got stuck on a muddy road in Republic County, Kansas. After spending the night in the car, they took their belongings and approached the farmhouse of 79-year-old Gladys Knedlik.

Baacke first went alone to the house and looked around. He then returned to the road where Matt waited, and they talked. Carrying a copper-handled knife, Baacke went back to the home and spoke with Knedlik at the front door. Baacke told Knedlik that his car was stuck and asked for help. As Knedlik turned to use the phone to call for help, Baacke stabbed and slashed her in the back 21 times. Keen then joined Baacke and shot Knedlik in the back with a Beretta 20-gauge sawed-off shotgun.

Baacke and Keen placed Knedlik's body against the front door and covered it with an army blanket and a throw rug. They searched Knedlik's home, took a tub of change containing about $15, then left in Knedlik's white 1984 Monte Carlo. Before leaving, they locked the front, back, and garage doors and closed all the draperies.

Baacke and Keen continued driving south and east on back roads, crossing into Arkansas. They reached the small town of Huntington and stopped in a city park to spend the night. Around 3 a.m. on September 24, 1994, John Efurd, the Huntington police chief, passed by the park and noticed the vehicle. Efurd made contact with Keen, who was behind the steering wheel, and asked for identification. Efurd noticed another man sleeping in the back seat and some items with a red substance on them. After Keen was unable to produce identification, Efurd asked him to accompany him to the patrol unit to check on his identity. Keen provided the required information, and Efurd discovered that Keen's license was suspended. When asked if any weapons, drugs, or contraband were in the vehicle, Keen replied, "There is a loaded, sawed-off shotgun in the back with my buddy, sir." After Efurd's backup recovered the loaded Beretta, Efurd placed Baacke and Keen under arrest for possessing a prohibited weapon.

Baacke and Keen both consented to a search of the vehicle. Among the items discovered were numerous knives, including the copper-handled knife, some drug paraphernalia, maps of Kansas and Oklahoma, a red gas can, and blood-stained clothes. Baacke was also wearing clothes stained with blood at the time of his arrest.

Baacke and Keen were taken to a detention facility in Fort Smith, Arkansas, and separated for interrogation. Baacke waived his rights and agreed to an interview. When Efurd told him he had already interviewed Keen, Baacke said, "I might as well go ahead and tell you, yes, I did, I was involved in stealing a vehicle and killing a lady, sir." Baacke demonstrated to Efurd how he had killed Knedlik and said he had used the copper-handled knife. Baacke said he thought she was going to call the police, so he killed her. Baacke stated, "I just went off on her." He also told Efurd, "I just want to get this behind me, I want to get this over with." Efurd testified at trial that Baacke did not appear to be under the influence of drugs or alcohol at the time of the interview and that he appeared calm, but anxious about something.

Baacke was interviewed by another local investigator and admitted stealing a car in Nebraska, which got stuck in the mud in Republic County, Kansas. He said they obtained another vehicle from a nearby farmhouse, but he did not wish to discuss what occurred there.

After being notified of the location of Knedlik's vehicle, authorities in Republic County, Kansas, found Knedlik's body. Knedlik had been stabbed and slashed 21 times in the head, neck, and back and was shot in the lower back by a shotgun blast. Any one of numerous injuries could have caused her death. The police also discovered two sets of footprints leading from an abandoned car to Knedlik's home. One set matched the boots worn by Baacke.

KBI agent Bill Pettijohn went to Arkansas to interview Baacke and Keen. He tape-recorded his interview of Baacke. The tape, along with a transcription, was admitted into evidence. During the interview, Baacke admitted to stabbing Knedlik and taking her car, but denied shooting her. He said that after she turned to make the call, he stepped into the house and "from then on I kind of lost control of where I was and what not."

Baacke was charged with first-degree felony murder. The complaint was amended twice to charge Baacke with premeditated first-degree murder or alternatively felony murder along with felony theft. Baacke gave notice he intended to use the insanity defense.

The defense arranged for Baacke to be interviewed by Dr. Robert Schulman, a clinical and forensic psychologist. Dr. Schulman examined Baacke on December 21, 1994, for about 4 hours and provided a report to the State. The report stated Baacke was a psychotic individual with paranoid-type schizophrenia, all in remission, but was in need of long-term psychiatric care. The State sent Baacke to Larned State Security Hospital, where he underwent evaluation for over a month and a half.

Baacke did not testify at trial, but did offer evidence of his mental history. Witnesses testified that as a child Baacke had been transferred back and forth from the homes of his parents and grandparents and never had a stable home life. Baacke's father's family had a history of suicide and his mother had abused drugs and alcohol.

In 1986, when Baacke was about 11 years old, his stepmother took him to a psychologist because of his continuing fecal incontinence, a condition referred to as encopresis. This psychologist recommended "intensive, long-term treatment," which Baacke did not receive, though his encopresis resolved itself in a few years. In 1992, when Baacke was about 16 years old, his stepmother again took him to a psychologist because of difficulties managing his behavior. This psychologist recommended continued family therapy.

Baacke did not receive this therapy because he moved back to...