State v. Beuhler-May

• Decision Date: 22 April 2005
• Docket Number: No. 91,470,91,470
• Parties: STATE OF KANSAS, Appellee, v. ROBERT BUEHLER-MAY, Appellant.
• Court: Kansas Supreme Court

279 Kan. 371

110 P.3d 425

STATE OF KANSAS, Appellee, v. ROBERT BUEHLER-MAY, Appellant.

No. 91,470

Supreme Court of Kansas

Opinion filed April 22, 2005.

Sarah Ellen Johnson, assistant appellate defender, argued the cause and was on the brief for appellant.

Michael A. Russell, chief deputy district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion was delivered by

LUCKERT, J.:

A jury convicted Robert Buehler-May of premeditated first-degree murder, conspiracy to commit first-degree murder, and aggravated kidnapping. The trial court imposed a hard 50 life sentence for the murder conviction, 155 months' imprisonment for the aggravated kidnapping conviction, and 117 months' imprisonment for the conspiracy conviction, all sentences to run concurrently.

Buehler-May timely appeals his convictions and sentence, arguing the trial court erred in: (1) denying a motion filed on the first day of trial in which Buehler-May sought to endorse a psychiatrist as an expert witness; (2) admitting photographs of the murder victim which Buehler-May argues are gruesome and cumulative; (3) failing to instruct the jury that it should consider with caution the testimony of an accomplice; (4) applying the Kansas hard 50 sentencing provisions, which Buehler-May argues are unconstitutional; and (5) imposing a hard 50 sentence based in part upon a factor which the same judge had determined insufficient when sentencing a codefendant, Kyle Cavaness, whose conviction and sentence we upheld in State v. Cavaness, 278 Kan. 469, 101 P.3d 717 (2004). We affirm.

Facts

Alisha Gray testified that in October 2002 she was living with her brother, Kyle Cavaness, and her boyfriend, Ryan Goldenburg, at a home in Wyandotte County. The victim, Deangelo Wheeler, was also staying at the home. Wheeler sold crack cocaine to Gray, Cavaness, and Goldenburg.

The defendant, Robert Buehler-May, was close friends with Gray and Cavaness but had never met the victim until the night of the murder. On October 9, 2002, Buehler-May came over to Gray's house. He stayed at the house while Gray went with Wheeler to purchase crack cocaine. Gray, Goldenburg, and Cavaness smoked the crack cocaine. Buehler-May was not smoking crack that night. In the early morning hours, Goldenburg and Wheeler left to purchase more crack cocaine while Gray, Cavaness, and Buehler-May waited at the house. When they returned, Wheeler accused the others of having stolen his marijuana joint while he was gone. Wheeler mainly accused Buehler-May, calling him a thief. Wheeler and Buehler-May got into a verbal argument. Eventually, after Buehler-May called Wheeler a "pussy," Wheeler stood up. Gray did not see Wheeler with a weapon.

Gray believed the men were about to fight and went into her bedroom. The men went outside and Gray heard someone other than Wheeler say, "Hit him." When the men carried Wheeler back into the house, he was badly hurt, not moving or saying anything, and he had a bleeding gash on his head. Whenever Wheeler woke up, the men, primarily Buehler-May, would continue to beat him. This happened about three times. Gray heard the men saying they could not let Wheeler go in that condition for fear of retaliation.

Gray's next-door neighbor, Michael Dressler, testified that either Cavaness or Goldenburg called him and asked him to bring over something with which to tie up Wheeler. When Dressler brought over some telephone wire, he saw Wheeler lying on the floor with his legs moving. When Dressler came back to the house about a half hour later, he saw that Wheeler's legs were bound. He also heard Wheeler calling out, and Buehler-May "went in and quieted him down."

Gray testified that about a half hour after the men brought Wheeler into the house, Buehler-May came into Gray's bedroom and said he had broken Wheeler's neck, killing him. Buehler-May and Goldenburg then wrapped Wheeler's body in a tarp and put him on the back porch.

On October 10, 2002, Buehler-May told his close friend Ashley McCann that he had murdered someone. McCann noticed a pile of bloody clothes and bloody shoes in Buehler-May's bedroom. Later the same day, McCann and Buehler-May drove to Cavaness' house to buy some marijuana. Gray, Goldenburg, and Cavaness were at the home. Buehler-May, Goldenburg, and Cavaness began bragging and laughing about how they had beaten and eventually killed the victim the night before. Buehler-May said he had snapped the victim's neck. He also pointed out to McCann where the victim's body was outside. McCann heard the men discussing whether to burn the body or dump it in the river. The next day, McCann contacted police.

After Buehler-May was arrested, he was interviewed by Detective Lawson. Buehler-May waived his Miranda rights and made a videotaped statement which was played for the jury and is included in the record on appeal. In that statement, Buehler-May admitted his involvement in the murder. Buehler-May stated that when the argument escalated and the men went outside, Buehler-May hit the victim with a wooden dowel, Cavaness hit him with a baseball bat, and Goldenburg hit him with bolt cutters. They then dragged the victim back inside the house to keep him out of sight. Inside the house, all three men continued to beat the victim whenever he regained consciousness. The men then placed bags over the victim's head in an attempt to hasten his death. Buehler-May estimated that at least 2 and ½ hours elapsed from the time the beating began until the victim died.

Cavaness showed police where the men had thrown Wheeler's body into the river and where they had burned the clothes they had been wearing on the night of the murder. An underwater search and rescue team located Wheeler's body a few days after the murder. The body was wrapped in a blue tarp with two large bricks attached. The victim's head was covered by a white plastic bag; his arms were tied behind his back and his ankles were tied together.

Forensic pathologist Dr. Erik Mitchell performed the autopsy. He testified that Wheeler had multiple injuries to his head consistent with being struck by a hard object like a baseball bat or bolt cutters. Wheeler's brain was bruised and swollen as a result of his injuries. His neck was also bruised but not broken. Dr. Mitchell testified that Wheeler died as a result of all of the blows to his head. He stated, "I cannot isolate one injury and say this is the one that did it, the others are not important." Dr. Mitchell stated that asphyxia due to the plastic bags placed over Wheeler's head might also have contributed to his death.

Buehler-May's defense was a combination of self-defense and compulsion. He testified that when the fight escalated and moved outside, he armed himself with a wooden pole because he thought Wheeler had a knife. According to Buehler-May, Cavaness and Goldenburg struck Wheeler first. Buehler-May also struck Wheeler, but then tried to stop Cavaness and Goldenburg from further attacking him. When Buehler-May struck Wheeler, he thought Wheeler was coming at him.

Buehler-May also testified that after the men brought Wheeler in the house, Cavaness and Goldenburg continued beating him. Buehler-May suggested taking Wheeler somewhere and dropping him off, or calling the police and telling them Wheeler had broken into the house so that he could get medical attention. At that point, Goldenburg and Cavaness began threatening Buehler-May, telling him it did not matter if there was one body or two and threatening to go after Buehler-May's brother. Goldenburg and Cavaness were adamant that Wheeler could not be allowed to survive because of the repercussions from Wheeler's friends. They told Buehler-May to place a bag over Wheeler's head and tie it, which he did. When Wheeler still did not die, they told Buehler-May to choke him.

Buehler-May's trial testimony differed from his interview with police in that he never told the police that he had seen Wheeler with a knife or that he had been threatened by Cavaness or Goldenburg.

Did the Trial Court Abuse its Discretion by Refusing to Endorse Defense Witness Dr. Montolio on the Morning of Trial?

On the morning of trial, defense counsel filed a motion to endorse Dr. Montolio, Buehler-May's childhood psychologist, as a witness. The motion stated that Dr. Montolio had recently performed a clinical examination of Buehler-May and provided defense counsel with a copy of his report the day before trial. According to Dr. Montolio's report, he had treated Buehler-May for approximately 10 years while Buehler-May was between the ages of 6 and 16. Buehler-May had been diagnosed with a variety of mental disorders and was prescribed several medications but often failed to take them. Dr. Montolio concluded that although Buehler-May remembered the events on the night of the murder, because Buehler-May was "without sleep and at the time not being medicated, this examiner can state with a relative degree of medical certainty that his judgment was impaired on the night in question due to cognitive impairment and possible transient psychotic thoughts brought on by his Bi-Polar disorder." Dr. Montolio was out of town until the fourth day of trial and could be reached only by telephone.

In arguing the motion, defense counsel mentioned that he had informed the trial court a week earlier that he was awaiting the results of the evaluation and that Dr. Montolio had seen Buehler-May as an adolescent. In support of the motion to endorse, defense counsel argued that Dr. Montolio's report showed that Buehler-May's cognitive problems and mental disorders impaired his judgment and asked that Dr. Montolio be allowed to testify "about whether or not that rose to the level of a defense in this case."

The prosecutor objected to the late endorsement of Dr. Montolio, arguing that if Dr. Montolio's report and testimony were being offered as evidence...