State v. Baker

• Decision Date: 25 October 1991
• Docket Number: No. 65576,65576
• Citation: 249 Kan. 431,819 P.2d 1173
• Parties: STATE of Kansas, Appellee, v. Tyrone L. BAKER, Sr., Appellant.
• Court: Kansas Supreme Court

Page 1173

819 P.2d 1173

249 Kan. 431

STATE of Kansas, Appellee, v. Tyrone L. BAKER, Sr., Appellant.

No. 65576.

Supreme Court of Kansas.

Oct. 25, 1991.

Syllabus by the Court

1. Kansas statutes relative to jury panels (K.S.A. 43-107 et seq.) and Kansas Supreme Court Standards Relating to Jury Use and Management (1990 Kan.Ct.R.Annot. 49) are examined and held not violative of defendant's constitutional and statutory right to a jury that is a fair cross section of the community.

2. There is no statutory or constitutional requirement that only a judge can excuse persons from jury duty or defer their service. A jury coordinator or other designated administrator may be delegated such duties under the express authorization of Kansas Supreme Court Standards relating to Jury Use and Management (1990 Kan.Ct.R.Annot. 49).

3. A criminal defendant's statutory and constitutional right to be present in person and by counsel at trial does not extend to the determination of excuses from jury service sought by individuals who have received summonses for jury duty but have not reported for service on a particular case.

4. An attorney hired by a complaining witness to assist the prosecution, pursuant to K.S.A. 19-717, is not a special prosecutor within the meaning of K.S.A.1990 Supp. 22-2202(17).

5. The prosecution of a criminal case remains under the supervision of the county or district attorney and the role of counsel hired under K.S.A. 19-717 is to assist the prosecutor as the prosecutor directs.

6. Improper remarks made in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant and deny him a fair trial.

7. The prosecutor is entitled to considerable latitude in arguing the case to a jury. There is no prejudicial error where the questionable statements of a prosecuting attorney are provoked and made in response to previous arguments or statements of defense counsel.

8. Since Kansas does not follow the "plain error" rule utilized in federal courts, reversible error cannot be predicated upon a complaint of misconduct of counsel during closing argument where no contemporaneous objection is lodged.

9. Remarks made by the prosecutor in closing argument are harmless error if the court finds that the error had little likelihood of changing the result of the trial.

10. Under the M'Naghten test for criminal insanity, a defendant is to be held not criminally responsible where he does not know the nature and quality of his act or where he does not know right from wrong with respect to that act.

11. When the sufficiency of 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 12. Testimony of expert and lay witnesses relative to the issue of insanity may be considered by the jury.

is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

13. To prove conspiracy, it must be established that the conspirators had a mutual understanding or tacit agreement, a meeting of the minds, for the accomplishment of a common purpose.

14. Violation of the K.S.A. 22-2302(2) requirement that affidavits in support of probable cause not be made available for examination without a written order of the court is held to be harmless error under the facts herein.

Hazel Haupt, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief for appellant.

Gene M. Olander, Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

McFARLAND, Justice:

Tyrone L. Baker, Sr., appeals his jury trial convictions of premeditated first-degree murder (K.S.A.1990 Supp. 21-3401), aggravated burglary (K.S.A. 21-3716), conspiracy to commit aggravated burglary (K.S.A. 21-3302, K.S.A. 21-3716), and three counts of kidnapping (K.S.A. 21-3420).

Ida Mae Dougherty lived in the Westboro area of Topeka. She was a close friend of Lester and Nancy Haley, who lived next door, and Verne Horne, who lived across the street. During the late morning of December 4, 1989, Mrs. Horne received a telephone call from Nancy Haley, who was concerned because Ida Mae's newspaper remained in the driveway and she had failed to answer her telephone. Mrs. Horne walked over to the Dougherty home, where she met Mr. Haley. They entered the home with Mr. Haley's key. They checked the downstairs rooms and then the upstairs rooms. In a bedroom they encountered a black male (later identified as defendant), who ordered them to lie face down on the floor. A short while later, Nancy Haley arrived and was ordered to join the other two prisoners.

Later, defendant ordered the three into Ida Mae's automobile and drove them into a secluded area east of Topeka. They were ordered out of the automobile at gunpoint. When a pickup truck drove by, defendant ordered the trio back into the vehicle and drove to the end of a road from where they walked a short distance and were ordered to lie down. The Haleys complied. Mrs. Horne had, throughout the automobile trip, maintained a conversation with the defendant. He had told her various facts about himself. At this point, she told him if he had not killed Ida Mae, he was not a murderer and offered him money. Defendant stated he was not sure whether or not he had killed Ida Mae. Mrs. Horne suggested he should check on Ida Mae and said the trio would wait for his return. Defendant hesitated and then drove away.

The Haleys were elderly and quite infirm. Mrs. Horne told them to hide while she went for help. She had trouble finding the help, but ultimately received assistance from a passing motorist. Later, Ida Mae's body, covered with leaves, was found just east of the Shawnee-Douglas County line. The cause of death was asphyxia or smothering. The Haleys' bodies were also found in Douglas County. They had been shot.

Lisa Pfannenstiel testified she was defendant's girlfriend and pregnant by him. She stated that on December 3, 1989, she and defendant were walking through Westboro looking for a house to burglarize. Defendant selected Ida Mae's home. They both saw Ida Mae in her home. They first went to the home of a friend, Chris Miller, to obtain duct tape to muffle the sound of the window glass breaking. They returned around 10:00 p.m. and saw Ida Mae cooking in the kitchen. Defendant broke a window after taping it, entered the home, and confronted Ida Mae.

Lisa testified defendant made Ida Mae lie on the floor and taped her feet together. Ida Mae began screaming, and defendant told Lisa he would have "to do her." He secured a pillow and went back to Ida Mae.

Lisa heard sounds of a struggle and then it became quiet. Defendant put Ida Mae in the trunk of her car. Lisa and defendant then drove to Douglas County where defendant dumped the body and covered it with leaves. During the early morning hours of December 4, they returned to Ida Mae's home to select which belongings they wished to take. They stayed overnight. Late in the morning the Haleys and Mrs. Horne came over and were taken prisoner. Lisa placed some of Ida Mae's belongings in the car and walked to Chris Miller's residence. Later in the afternoon, defendant joined her and placed Ida Mae's belongings in a storage closet of a friend. Ida Mae's vehicle was left in a parking lot. Chris Miller drove Lisa and the defendant to the Ramada Inn South, where he obtained a room for them. Mrs. Horne testified she did not see Lisa Pfannenstiel at Ida Mae's residence but heard people talking in whispers to each other. The following day (December 5), defendant changed his appearance by cutting and permanent waving his hair. He was arrested the same day at the motel. Other facts will be stated as necessary for the discussion of particular issues.

JURY PANEL

For his first issue, defendant contends the district court erred in denying his motion, under K.S.A. 22-3407, to discharge the jury panel.

His argument on this issue takes three routes:

1. The method of granting excuses resulted in a jury panel that was not a fair cross section of the community;

2. the judge, rather than the jury coordinator, should have heard and decided the requested excuses from service and deferrals; and

3. defendant had the right to be present in person and by counsel when any action was taken on the requests for excuses and deferrals.

Defendant's particular complaint about the prospective jurors reporting for jury service on his case is that the 60-and-over age group was overrepresented.

In Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the United States Supreme Court held that the systematic exclusion of women during the jury selection process, resulting in jury pools not "reasonably representative" of the community, denies a criminal defendant his right, under the Sixth and Fourteenth Amendments, to a petit jury selected from a fair cross section of the community. In holding that "petit juries must be drawn from a source fairly representative of the community," the Supreme Court explained that "jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." 419 U.S. at 538, 95 S.Ct. at 702. The Supreme Court further explained that this requirement did not mean "that petit juries actually chosen must mirror the community." 419 U.S. at 538, 95 S.Ct. at 702.

In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court held that a male criminal defendant was denied his constitutional right to a trial by a jury chosen from a fair cross section of his community when women were granted automatic exemption from jury service upon request. Building upon their holding in Taylor v. Louisiana, 419 U.S. 522,...