State v. Barksdale, 77,041

• Citation: 973 P.2d 165,266 Kan. 498
• Decision Date: 22 January 1999
• Docket Number: No. 77,041,77,041
• Parties: STATE of Kansas, Appellee, v. Donald R. BARKSDALE, a/k/a Donald R. Griffin, Appellant.
• Court: Kansas Supreme Court

Page 165

973 P.2d 165

266 Kan. 498

STATE of Kansas, Appellee, v. Donald R. BARKSDALE, a/k/a Donald R. Griffin, Appellant.

No. 77,041.

Supreme Court of Kansas.

Jan. 22, 1999.

Syllabus By The Court

1. Whether a defendant will be tried on separate charges in a single trial is governed by K.S.A. 22-3202(1). It is a matter within the discretion of the trial court, and the trial court's decision will not be disturbed on appeal unless there is a clear showing of abuse of discretion.

2. Several separate and distinct felonies may be charged in separate counts of the same information where all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment. The defendant may be tried upon all counts of the information at the same time and in one trial, but the decision to do so rests in the sound discretion of the trial court.

3. In order for crimes to be sufficiently similar as to permit their joinder under K.S.A. 22-3202(1), it is not necessary that evidence of one crime be admissible under K.S.A. 60-455 in the prosecution of the other crime. Where separate but similar criminal charges are tried together, evidence material to each crime is admissible independent of K.S.A. 60-455.

4. The admission of photographs in a homicide case is a matter within the trial court's discretion, and the court's ruling will not be disturbed on appeal absent a showing of abuse of that discretion.

5. In a homicide case, photographs which serve to illustrate the nature or extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death.

6. It is well settled that a timely and specific objection to the admission of evidence at trial must be made in order to preserve that issue for appeal.

7. An informant is a person who confidentially discloses material information of a law violation, thereby supplying a lead to law enforcement officers for their investigation of a crime. This definition does not include a person who supplies information after being interviewed by police officers or who gives information as a witness during the course of an investigation.

8. The crux of the definition of an informant is that an informant is a person who acts as an agent for the State in procuring information. In this respect, a person may be an informant whether he or she is disclosed or undisclosed.

Geary N. Gorup, of Render Kamas, L.C., of Wichita, argued the cause and was on the briefs for appellant.

Debra S. Peterson, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were on the brief for appellee.

DAVIS, J.:

Donald R. Barksdale, a/k/a Donald R. Griffin, was charged with and convicted of the murders of Hosea Davis III and Jennifer Forgie. Although occurring at different times, both charges were joined for trial. The defendant argues that the trial court erred in joining both charges for trial. He also contends that the admission of autopsy photographs as well as other testimony and instructional errors require reversal. We conclude that no reversible error occurred and affirm.

The Murder of Hosea Davis III

On Tuesday, December 3, 1991, Daniel Marsh, a neighbor who occupied half of a duplex where Hosea Davis III lived, called the Wichita Police Department asking that an officer check on the welfare of Davis. Marsh had become suspicious when Davis did not have his outside lights on the night before, as Davis always had the outside lights on at night. Marsh had attempted to call Davis, but the phone was continually busy although Marsh heard no voices coming from the other half of the duplex. A call to the operator confirmed that there were no voices on the line.

Wichita police officers DeBerry and White, together with Marsh, entered the duplex. They discovered the naked body of Davis face down on the dining room floor partially covered by a bedspread. Davis had a telephone cord wrapped around his neck. A knife, alternately described as a carving knife or a letter opener, was found near the body. There was no sign of forced entry.

An autopsy revealed that Davis did not die from strangulation but from a blow to the head from a blunt instrument which caused a skull fracture. Other injuries included strangulation marks on the neck; a fractured hyoid bone; bruises on the upper left arm, right inguinal region, and above the upper left eyebrow; and a deterioration of skin on the legs, which was apparently caused from heat. An investigation indicated the possibility of semen on the victim and semen swabs were collected from the base of the scrotum, buttocks, and anal area.

Davis' residence was neatly arranged except for the bedroom which had been ransacked. Marsh stated that on Sunday night, December 1, he had heard noises from Davis' side of the duplex which indicated to him that Davis was entertaining someone in what he considered to be a sexual act. Marsh had not seen or heard from Davis for a few days. Davis' address book was found at his residence. One of the names in the book was that of the defendant.

At trial, the State introduced the testimony of Kenneth Speer, a correctional officer at the Kansas State Penitentiary. Speer testified that the defendant and Davis had both been assigned to his cell house in 1985 and were together almost every day. On February 17, 1985, Speer discovered Davis and the defendant in the defendant's bunk together, naked from the waist down.

Davis' father, the Reverend Hosea Davis II, testified that he last saw his son on November 30, when Davis was cleaning the church. The Reverend stated that Davis introduced him to a friend who was helping clean up and told him that the friend's name was Don Barksdale. Although he was unable to identify the defendant in a lineup, the Reverend did identify the defendant at the preliminary hearing as the person to whom he had been introduced to that day. The Reverend thought it strange that Davis did not come to church on Sunday because Davis was the church organist. The Reverend also testified that he had eaten Thanksgiving dinner at Davis' house and a friend of Davis was there on Thanksgiving.

The DNA testing of the semen swabs was a source of controversy. William Hamm, a forensics specialist in DNA analysis for the Kansas Bureau of Investigation, testified that there were insufficient samples to perform a Restriction Fragment Length Polymorphism test on the items. Harold Deadman, a forensic DNA analyst with the Federal Bureau of Investigation, examined the swabs using a Polymerase Chain Reaction (PCR) test. Deadman testified that the semen swabs showed the presence of two secretions and that the defendant could not be excluded as a contributor and that only one person in 1,000 would produce the result found in the test. However, the defendant's expert, Dean Stetler, Chairman of the Genetics Department at the University of Kansas, interpreted the PCR test results as actually excluding the defendant.

The Murder of Jennifer Forgie

On August 6, 1992, Jennifer Forgie was called in to work at Best Cleaners, 2630 East Central in Wichita. Jennifer usually worked at one of the other stores but was called to the East Central store by Lonna Flores because another employee was sick. Flores worked in the corporate office of Best Cleaners, which was attached to the cleaners.

Flores testified that normally when a customer picks up clothes at the cleaners, the salesperson finds the customer's ticket, gets the clothes, puts the clothes on a pickup rack, accepts the money, and then validates the ticket and puts it on a spindle to show that the clothes have been picked up. Flores also stated that the cash register tape records the invoice numbers of the clothing picked up as well as the time it was picked up. On the day in question, the tape would have been off 1 hour because it did not adjust for daylight savings time.

Flores stated that during the day she spent one break with Forgie, who told her that she was looking forward to getting her paycheck and that she only hoped she would be around to spend it. Their break was interrupted when a bell rang signifying that a customer had walked through the door. Flores went back to the corporate office and called her sister on the telephone. She thought the time was around 4:20 to 4:25 p.m. While she was on the telephone, she noticed a black car pull up and then leave.

Sometime between 4:15 and 4:30 p.m., Willette Martin and her brother, William Phillips, arrived at the cleaners to pick up clothes. They were in Phillips' dark brown Lincoln. Willette Martin entered the cleaners and saw no one there. There were dark clothes hanging on the pickup rack. She waited approximately 3 minutes and then called out to see if anyone was there. A male voice from the back of the cleaners told her that the machine was broken and that she should come back in 20 minutes. Martin left the cleaners and told her brother of the situation. Phillips told Martin that he did not think the machine needed to be working just to pick up clothes, and he went into the cleaners. Phillips testified that when he found no one out front, he rang the bell at the desk. He then saw a dark-complected black man with a knife in his hand. Phillips would later identify the defendant as the person with the knife, although he had earlier picked out a different person in a photographic lineup, and had also identified another person on the day of the murder. The individual told him to get out. He left the cleaners, ran back to the car, and told Martin that they needed to leave because the store was being robbed and they needed to find a phone. As they exited the parking lot, they noticed a van pulling up. Lonna Flores, in the office, also noticed what she described as a beige van pull up.

Diane Allison testified that ...