State v. Cavaness

• Decision Date: 03 December 2004
• Docket Number: No. 91,041.,91,041.
• Citation: 278 Kan. 469,101 P.3d 717
• Parties: STATE OF KANSAS, Appellee, v. KYLE CAVANESS, Appellant.
• Court: Kansas Supreme Court

278 Kan. 469

101 P.3d 717

STATE OF KANSAS, Appellee, v. KYLE CAVANESS, Appellant.

No. 91,041.

Supreme Court of Kansas.

Opinion filed December 3, 2004.

Carl E. Cornwell, of Cornwell, Erickson, Travis & Breer, of Olathe, argued the cause, and Jessica J. Travis, of the same firm, was with him on the brief for appellant.

Michael A. Russell, assistant district attorney, argued the cause, and Bonnie Hannan, assistant district attorney, 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 Kyle Cavaness of premeditated first-degree murder, conspiracy to commit premeditated first-degree murder, and aggravated kidnapping. The trial court sentenced the defendant to life on the murder conviction, a consecutive term of 123 months' imprisonment on the conspiracy conviction, and a concurrent term of 165 months' imprisonment on the aggravated kidnapping conviction. The defendant timely appeals, arguing that the trial court erred in refusing his request for a jury instruction on the lesser included offense of unintentional second-degree murder, that the trial court erred in admitting into evidence gruesome pictures of the murder victim, and that insufficient evidence supports his conviction of premeditated first-degree murder. We reject his arguments and affirm.

Kyle Cavaness' sister, Alisha Gray, testified that in October 2002, she was living with the defendant and Ryan Goldenburg at a home in Wyandotte County. The victim, Deangelo Wheeler, had also been staying at the home for a few days before the murder.

Gray testified that on the night of October 9, 2002, Gray, Cavaness, and Wheeler left the house to purchase crack cocaine while Robbie Buehler-May and Goldenburg remained at the house. When they returned to the house, Gray, Cavaness, and Goldenburg smoked the crack while Buehler-May and Wheeler smoked marijuana. Around 5 a.m., Goldenburg and Wheeler left to buy more crack, leaving Gray, Cavaness, and Buehler-May at the house.

When Goldenburg and Wheeler returned, Wheeler realized his marijuana joint was missing and accused Gray, Cavaness, and Buehler-May of stealing it while he was gone. Buehler-May and Wheeler got into a heated verbal argument which eventually involved everyone. Wheeler was told to leave, but he refused. After about an hour, Gray, believing that the men were about to fight, went into her bedroom. The men went outside. Cavaness had a baseball bat, Goldenburg had bolt cutters, and Buehler-May had a wooden pole. Wheeler had no weapon. Gray heard someone other than Wheeler yell, "Hit him." She then heard someone say, "Get him back in the house." When the men carried Wheeler back into the house, Gray observed that there was a big, bleeding gash on his forehead and that he appeared to be unconscious. Gray returned to her bedroom. When she heard a few more blows, she called Cavaness into her bedroom and asked him whether Wheeler was alive. Cavaness replied, "Yes." Gray stated that, from the time the men came back inside the house, Cavaness spent "[a]lmost the entire time" in Gray's bedroom but did come and go from her room, as did Goldenburg and Buehler-May. Gray heard one of the men say that they could not let Wheeler go in that condition, and no one disagreed.

Cavaness called the next-door neighbor, Michael Dressler, asking him for something with which to tie up Wheeler. When Dressler brought telephone wire over to the house to bind Wheeler, he saw Wheeler lying on the floor with his feet moving. Dressler left and returned later at which time he observed that Wheeler's feet were bound. He heard Wheeler moaning or calling out.

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

Ashley McCann testified that she was close friends with Buehler-May. On October 10, 2002, Buehler-May called McCann and asked her to come over to his apartment because he needed to talk to her. When she arrived, Buehler-May told McCann that he had killed someone the night before. Later the same day, Buehler-May and McCann drove to Cavaness' house. Gray, Goldenburg, and Cavaness were at the home. McCann noticed blood on a recliner in the living room, as well as blood on the walls and ceiling. Buehler-May, Goldenburg, and Cavaness began describing how they had beaten and eventually killed the victim the night before. McCann described Cavaness as smiling and laughing during the conversation. At one point Cavaness lifted a dust pan to show McCann a puddle of blood hidden underneath. Buehler-May pointed out to McCann where the victim's body was outside. McCann heard the men discuss disposing of the body by burning it or throwing it in the river and disposing of their bloody clothes by burning them. That evening, the three men dumped Wheeler's body into the river. Gray later helped Cavaness and Goldenburg try to clean up the living room by scrubbing blood off the walls. The next day, McCann went to the police.

After Cavaness' arrest, Detective Warczakoski and Detective Howard interviewed him. Cavaness waived his Miranda rights and made a videotaped statement which was played for the jury but is not included in the record on appeal. According to the detectives' testimony about the statement, Cavaness admitted to participating in the beating of Wheeler, although he also stated Buehler-May was leading the attack. Cavaness said that after Wheeler was brought back into the house, he struck Wheeler between one to three more times with the bat. Cavaness also admitted to having a discussion about whether the men could allow Wheeler to leave the house alive. He stated that the decision to kill Wheeler was a group decision. The entire ordeal lasted 2 hours. After the interview, Cavaness showed the detectives where the men had thrown Wheeler's body into the river and where they had burned the clothes they had been wearing.

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 bricks attached. The head was covered by a white plastic bag; the legs were bound and the hands tied behind the back.

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, "You can't isolate a single one and say this one killed him and the others weren't important. For one, you've got a tremendous amount of energy and a lot of them. It looks like many of them ha[d] the potential to be a killing blow in isolation." Dr. Mitchell also believed Wheeler could have asphyxiated once the plastic bag was placed over his head or the injury to his neck could have "tipped him over the edge" but that absent either of those injuries, Wheeler's brain injuries would have killed him without medical treatment.

Essentially, Cavaness' defense was that because he was high on crack cocaine, he was not thinking clearly and did not premeditate the murder. Cavaness testified he had been using crack cocaine for about 2 months before the murder, he was high on crack cocaine when he hit Wheeler with the bat, and he was also high when he gave his statement to police. Cavaness denied an intent to kill Wheeler but admitted that he hit Wheeler once with the bat outside the house and, after Wheeler was dragged back inside the house, once in the shoulder with the bat. He also stated he kicked Wheeler twice in the chest. Cavaness testified that if these events had taken place at a time when he was not using crack cocaine he would have called the police and left the house, but that night all he could think about was getting another hit of crack. He gave no thought to calling 911 or throwing Buehler-May out of the house. He explained the differences between his testimony and his statement by saying that he lied in his statement to police in an attempt to protect Buehler-May, Goldenburg, and Dressler.

Did the Trial Court Err in Denying the Defendant's Request for a Jury Instruction on the Lesser Included Offense of Unintentional Second-degree Murder?

As his first claim of error, Cavaness argues the trial court should have granted his request for an instruction on the lesser included offense of unintentional second-degree murder. Cavaness requested instructions on both second-degree murder as defined by K.S.A. 2003 Supp. 21-3402(a) (intentional) and K.S.A. 2003 Supp. 21-3402(b) ("killing of a human being committed . . . unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life"). The trial court granted the request for an instruction on intentional second-degree murder and instructed the jury on voluntary intoxication as a defense. Regarding the request for an instruction on unintentional second-degree murder, the trial court denied the request, noting there was no "basis in the record for that particular instruction."

A trial court must instruct the jury on a lesser included offense "where there is some evidence which would reasonably justify a conviction" of the lesser offense. K.S.A. 2003 Supp. 22-3414(3). "If the defendant requests the instructions, the trial court has a duty to instruct the jury regarding all lesser included crimes that are established by the evidence, regardless of whether the evidence is weak or inconclusive." State v. Hoge, 276 Kan. 801, 805, 80 P.3d 52 (2003). On review, the appellate court views the evidence in the light most favorable to the defendant. State...