State v. Bailey, s. 77657
| Decision Date | 23 January 1998 |
| Docket Number | Nos. 77657,77805,s. 77657 |
| Citation | 263 Kan. 685,952 P.2d 1289 |
| Parties | STATE of Kansas, Appellee, v. George BAILEY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The Confrontation Clause of the United States Constitution operates in two ways when determining the admissibility of hearsay statements. First, the Sixth Amendment establishes a rule of necessity. In the usual case, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Second, once a witness is shown to be unavailable, the witness' statement is admissible only if it bears adequate indicia of reliability. Reliability can be inferred where the evidence falls within a firmly rooted hearsay exception. If the evidence does not fall within a firmly rooted hearsay exception, the evidence must be excluded absent a showing of particularized guarantees of trustworthiness.
2. Particularized guarantees of trustworthiness required for admission of a hearsay statement under the Confrontation Clause must be shown from the totality of the circumstances that surround the making of the statement and that render the declarant particularly worthy of belief. Evidence possessing particularized guarantees of trustworthiness must be at least as reliable as evidence admitted under a firmly rooted hearsay exception and must be so trustworthy that adversarial testing would add little to its reliability.
3. On appeal, this court's review of a departure sentence is limited to whether the sentencing court's findings of fact and reasons justifying a departure sentence (1) are supported by evidence in the record and (2) constitute substantial and compelling reasons for departure. K.S.A. 21-4721(d).
4. In an appeal from a conviction of second-degree murder, the record is examined and it is held the district court did not commit error in (1) instructing the jury and (2) admitting the out-of-court statements of two unavailable witnesses. The district court did commit error in imposing a departure sentence.
Michael J. Helvey, Assistant Appellate Defender, argued the cause, and Steven R. Zinn, Deputy Appellate Defender, was with him on the brief for appellant.
Debra S. Peterson, Assistant District Attorney, argued the cause, and Nola Foulston District Attorney, and Carla J. Stovall, Attorney General, were with her on the brief for appellee.
George Bailey was convicted by a jury of the intentional second-degree murder of Thomas Dunigan. The guidelines sentence range was 92 to 103 months; Bailey was sentenced to a term of imprisonment of 154 months. He appeals the conviction and sentence. The case was transferred from the Court of Appeals on this court's motion, pursuant to K.S.A. 20-3018(c).
There is no dispute that George Bailey shot Thomas Dunigan in the head with a .22-caliber pistol in the early morning hours of October 20, 1995. Dunigan died 10 days later as a result of the gunshot wound. Bailey was charged with premeditated first-degree murder. He was convicted by a jury of intentional second-degree murder.
Bailey lived alone in a duplex apartment. Dunigan lived with Helen Reed in the apartment on the other side of the duplex. The night of the shooting, Dunigan's sister, Cordia Willrich, also was staying at his apartment. She testified that Dunigan and Bailey sold cocaine out of Bailey's apartment. Jimmy Thomas provided protection for them, and James McKinney supplied the drugs.
The afternoon of October 19, Willrich and James Washington were in front of Dunigan's apartment when Bailey came walking down the street. Bailey was acting strangely and he was talking out loud. He said, "I'm going to kill that nigger," and, "I'm going to kill that mother fucker." Washington asked Bailey who he was talking about, and Bailey said, "That damn Thomas." That same day, Willrich told her brother what Bailey had said. Dunigan assured her that Bailey was his friend and that Bailey was just talking and was not going to do anything.
At approximately 3:00 the next morning, Willrich was awakened when a woman named Doris knocked on the door of Dunigan's apartment to tell them that Bailey had shot Dunigan. Willrich went to the hospital where her brother had been taken. Dunigan never regained consciousness. He was disconnected from life support systems after 10 days.
James Washington testified that he heard Bailey and Dunigan shouting at each other the evening of October 18. Then Bailey threatened to kill Dunigan. Bailey was violent when he was drinking. He carried "an old [type gun] ... like [a] .22 or something" in his pocket all the time. When Bailey was lying on the couch, he would lay the gun right by the sofa where he could reach it.
Sherry Baker went to Bailey's apartment at about 4 a.m. on October 20. She went with someone identified as Louis Franklin, who did not want to go to Bailey's by himself. Dunigan, Bailey, and Thomas were in the living room. Bailey was on the couch, and Dunigan was sitting in a chair. Shortly after Baker and Franklin arrived, Bailey said, "I'm tired of you all stealing from me." Baker thought Bailey was talking to Dunigan and Thomas. Looking at Dunigan and Thomas, Bailey continued, "I'll kill you MF for always stealing my stuff." Bailey reached under the couch and got a handgun. Thomas ran into the kitchen, but the others sat still. Bailey shot Dunigan and then said, "[G]et this MF out of here before I shoot him again." While Bailey remained seated, Thomas ran out the door, and Franklin picked Dunigan up under the arms and dragged him outside. After Bailey went to the bathroom, he walked Baker to the corner. According to Baker, he had the gun in his hand as they walked. At the corner, Baker went on toward her house, and Bailey returned to his apartment.
Bailey testified that Dunigan had moved next door to him around the first of the year in 1995. In approximately June 1995, Bailey complained to Dunigan about Dunigan's dealing drugs in front of Bailey's door. Dunigan responded that he and his partners needed Bailey's apartment. Thomas virtually moved in with Bailey, and Dunigan was in and out. Bailey said that they were selling drugs in his apartment 24 hours a day. Bailey testified that he went along with what they wanted because they threatened him and his parents. Bailey claimed that Dunigan and Thomas forced him to miss work in order to get him fired so that he would have to stay at home. The night he shot Dunigan, he took a bus to Oklahoma City to stay with his sister. He described it as his chance to get away.
With regard to his shooting Dunigan, Bailey testified that he had been drinking most of the day. He fell asleep in the afternoon or early evening. He was asleep on the couch when Sherry Baker and her companion came in. They were arguing about cigarettes. According to Bailey, Thomas "was in the kitchen cooking up dope." As the argument about the cigarettes began again, according to Bailey, Thomas shouted from the kitchen that they could "trash" Bailey. Bailey's account of the shooting continues: All Bailey could remember saying was, "[Y]ou all get the hell out of here."
Bailey first argues that the district court should have instructed the jury on the lesser included offenses of reckless second-degree murder and reckless involuntary manslaughter. The trial court instructed the jury on premeditated first-degree murder, intentional second-degree murder, voluntary manslaughter, and involuntary manslaughter. Defense counsel also requested instructions on reckless second-degree murder and a somewhat different instruction on involuntary manslaughter. On appeal, he complains of the trial court's refusal to give the requested instructions.
State v. Bornholdt, 261 Kan. 644, Syl. 16, 932 P.2d 964 (1997).
The jury was instructed on second-degree murder and involuntary manslaughter as follows:
1. That the defendant unintentionally killed Thomas Dunigan;
2. That it was done during the commission of the lawful act of self defense or defense of a dwelling in an unlawful manner by the use of excessive force; and
3. That this act occurred on or about the 20th day of October, 1995, in Sedgwick County, Kansas."
Defendant requested an instruction pursuant to K.S.A. 21-3402(b), which states: "Murder in the second degree is the killing of a human being committed ... unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life." The involuntary manslaughter instruction requested by defense counsel would have stated the following:
"To establish this charge, each of the following claims must be proved:
1. That the defendant unintentionally killed Thomas Dunigan;
2. That it was done:
... recklessly;
3. That this act occurred on or about the 20th day of October, 1995, in Sedgwick County, Kansas." See PIK Crim.3d...
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