State v. Bailey
| Decision Date | 22 May 1992 |
| Docket Number | No. 66511,66511 |
| Citation | 834 P.2d 342,251 Kan. 156 |
| Parties | STATE of Kansas, Appellee, v. Darrell BAILEY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The use of voter registration lists as the sole source for the selection of jury panels is examined and held not to have been shown to be statutorily or constitutionally impermissible.
2. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
3. A conviction of even the gravest offense may be sustained by circumstantial evidence.
4. A trial court has the affirmative duty to instruct the jury on all lesser included offenses established by the evidence. Instructions on lesser included offenses must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant. An instruction on a lesser included offense is not required, however, if the evidence at trial excludes a theory of guilt on the lesser offense. The duty of the trial court to instruct on the lesser included offense is applicable only when the evidence introduced at the trial is such that the defendant might reasonably have been convicted of the lesser offense.
5. When the trial court refuses to give an instruction on a lesser included offense, the appellate court must view the evidence supporting the lesser charge in the light most favorable to the party requesting the instruction.
6. When a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue for appeal.
7. The notice requirements of K.S.A.1991 Supp. 21-4624(1) are discussed. Under the facts of this case, where the State did not serve the notice at arraignment in the original case, dismissed the same, and refiled, serving the notice at time of arraignment in the second case, the trial court's refusal to strike the notice is held not to be error as no prejudice has been shown under the circumstances herein.
8. Where the trial jury serves as the jury in the sentencing proceeding, K.S.A.1991 Supp. 21-4624(2) does not authorize a second voir dire thereof following conviction and prior to the sentencing proceeding.
9. In determining whether a criminal statute is void for vagueness, two inquiries are appropriate: (1) whether a statute gives fair warning to those persons potentially subject to it, and (2) whether the statute adequately guards against arbitrary and discriminatory enforcement.
10. A criminal statute which is overbroad is one which makes conduct punishable which under some circumstances is constitutionally protected from criminal sanctions. A statute which is facially overbroad may be authoritatively construed and restricted to cover only conduct which is not constitutionally protected and, as construed, the statute will thereafter be immune from attack on grounds of overbreadth.
11. Aggravating factors Nos. 2, 5, and 6 set forth in K.S.A.1991 Supp. 21-4625 are considered and held not constitutionally impermissible on challenges of being vague and overly broad.
12. Where the trial jury is also the jury at a sentencing proceeding held pursuant to K.S.A.1991 Supp. 21-4624, all evidence admitted at trial is before the jury for its consideration.
13. Under the facts of this case, evidence supporting findings of aggravating circumstances (K.S.A.1991 Supp. 21-4625) is reviewed and held sufficient and, further, mitigating circumstances (K.S.A.1991 Supp. 21-4626) are held to be insufficient to outweigh the aggravating circumstances.
Jeff Griffith, Griffith & Griffith, Derby, argued the cause, and was on the brief, for appellant.
Rachelle Worrall Smith, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief, for appellee.
Darrell Bailey appeals his jury trial convictions of first-degree murder (K.S.A.1991 Supp. 21-3401); rape (K.S.A. 21-3502); aggravated criminal sodomy (K.S.A. 21-3506); aggravated robbery (K.S.A. 21-3427); aggravated battery (K.S.A. 21-3414); battery (K.S.A. 21-3412); criminal damage to property (K.S.A.1991 Supp. 21-3720); two counts of aggravated kidnapping (K.S.A. 21-3421); two counts of theft (K.S.A. 21-3701); and three counts of aggravated burglary (K.S.A.1991 Supp. 21-3716). He also appeals the sentence of 40 years' imprisonment imposed pursuant to K.S.A.1991 Supp. 21-4624.
Two cases were consolidated for trial. The facts are summarized as follows.
On June 25, 1990, defendant and James Walker attended a party at the apartment of Darin Adams in Wichita. The two returned later along with a third individual and went into the apartment. Adams was kicked and his VCR was stolen.
On July 21, 1990, Kenneth Lowe let defendant into his Wichita apartment to use the telephone. Defendant was told not to let anyone else in. Defendant let James Walker, Harabia Johnson, and Rodney Hooks into the apartment. Harabia started throwing the furnishings around. Lowe left to call the police. When Lowe returned, his VCR was missing and his stereo destroyed.
Later in the evening, defendant knocked on the Wichita apartment door of his great uncle, Sylvester Johnson. Sylvester was entertaining a lady friend, Rose Ann Johnson, and told defendant to leave. Defendant continued to beat on the door. Sylvester opened the door, leaving the screen door closed. Defendant was carrying a VCR and entered the apartment. Three other individuals were outside. Sylvester told the defendant he did not want these individuals in his apartment. Defendant let the other three in (James Walker, Harabia Johnson, and Rodney Hooks). Harabia told Sylvester, "[Y]ou going to die tonight."
Rose Ann heard the commotion and entered the living room. Defendant yelled, "[G]et that bitch's purse." James and Rodney struck Rose Ann and took her purse. Sylvester and Harabia went into the kitchen, where Harabia grabbed a knife and stabbed Sylvester in the stomach seven or eight times. Sylvester asked defendant if he was going to let this happen. Defendant replied, twice, "[Y]ou going to die."
Defendant and two of his associates looked through Rose Ann's purse. They found some bank credit cards. Defendant suggested they go to the banks and get money. James and Rodney grabbed Rose Ann and started for the door. Sylvester was also taken outside. Harabia stabbed Sylvester several more times, and he was again told he was going to die. Sylvester and Rose Ann were forced to get into Rose Ann's automobile. The group left the area. Defendant was driving, Rose Ann was in the middle of the front seat, and Rodney was in the front passenger seat. James and Harabia sat in the back seat with Sylvester between them. The knife was left outside the apartment.
While in the car, Sylvester was hit repeatedly. Rose Ann was forced to commit oral sodomy on Rodney. Harabia asked if anyone had a weapon with which to kill Rose Ann and Sylvester. No one did.
At an automatic teller machine, defendant and Rodney forced Rose Ann out of the car and attempted to obtain money. While this was occurring, two individuals (August Blanchat and Craig Kershner) arrived at the bank. Kershner was dragged from his truck by Harabia. Sylvester, guarded only by James, saw his chance and ran away. In the confusion, Kershner and Blanchat drove away.
Sylvester received 27 stab wounds in the incident, but survived. Rose Ann was taken to another bank where she, again unsuccessfully, attempted to withdraw money.
At 4:30 the following morning, Rose Ann's nude body was found in Harrison Park. She had been stomped to death. Defendant was arrested and bloodstains of Rose Ann's blood type were found on the bottom of defendant's pant legs. Other facts will be stated as necessary for the discussion of particular issues.
For his first issue, the defendant contends the trial court erred in denying his motion to discharge the jury panel. The grounds for the motion were that the procedure for selecting the prospective jurors from voter registration lists violated the defendant's right to a fair and impartial jury trial as guaranteed by the Sixth Amendment of the United States Constitution and Section 10 of the Kansas Bill of Rights. Additionally, he contends that this procedure is violative of the spirit of K.S.A. 43-155, which provides:
"The public policy of this state is declared to be that jury service is the solemn obligation of all qualified citizens, and that excuses from the discharge of this responsibility should be granted by the judges of the courts of this state only for reasons of compelling personal hardship or because requiring service would be contrary to the public welfare, health or safety; that all litigants entitled to trial by jury shall have the right to juries selected at random from a fair cross section of the community in the district wherein the court convenes; and that all citizens shall have the opportunity to be considered for service on juries in the district courts of Kansas."
Kansas law provides that no person shall be excluded from service as a grand or petit juror in the district courts of Kansas because of race, color, religion, sex, national origin, or economic status. Every juror, grand and petit, shall be a citizen of the state and a resident of the county, and possess the qualifications of an elector. K.S.A. 43-156. Jury commissioners are to prepare a list of persons qualified as jurors in each county from voter registration records of the county, lists of licensed drivers residing in the county, or enumeration or census records for the county. K.S.A. 43-162.
Sedgwick County relies exclusively on voter registration lists in selecting jury panels. Defendant...
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