State v. Cheeks

• Decision Date: 08 December 1995
• Docket Number: No. 71309,71309
• Parties: STATE of Kansas, Appellee, v. Jerome CHEEKS, Appellant.
• Court: Kansas Supreme Court

Page 175

908 P.2d 175

258 Kan. 581

STATE of Kansas, Appellee, v. Jerome CHEEKS, Appellant.

No. 71309.

Supreme Court of Kansas.

Dec. 8, 1995.

Syllabus by the Court

1. Evidence of a discordant marital relationship, including a defendant's prior acts of violence against his or her spouse and threats to kill the spouse, is admissible independent of K.S.A. 60-455 where the evidence is offered not for the purpose of proving distinct offenses but rather to establish the relationship of the parties, to establish the existence of a continuing course of conduct between the parties, or to corroborate the testimony of witnesses as to the act charged.

2. Whether evidence is too remote to be admissible rests within the sound discretion of the trial court.

3. Where the fact or facts proposed to be established as a foundation from which an inference may be drawn do have not a visible, plain, or necessary connection with the proposition eventually to be proved, such evidence is excluded for remoteness. However, lapse of time may not be sufficient to deprive evidence of its value but goes to the weight of the evidence, which is for the jury to determine.

4. An instruction on a lesser included offense is required if there is substantial evidence upon which the defendant might reasonably have been convicted of the lesser offense.

5. The duty to instruct on a lesser included offense does not arise unless there is evidence supporting the lesser offense. The evidence supporting the lesser included offense must be viewed in the light most favorable to the defendant. The evidence may be inconclusive, unsatisfactory, and weak and consist only of the defendant's testimony.

6. Involuntary manslaughter requires, in addition to an unintentional killing, that the killing be committed in the commission of an unlawful act not amounting to a felony or in the commission of a lawful act in an unlawful or wanton manner. K.S.A. 21-3404.

7. The key elements of voluntary manslaughter are whether the killing was intentional and whether there was legally sufficient provocation. K.S.A. 21-3403. Whether a provocation is legally sufficient is an objective, rather than a subjective, determination. To be legally sufficient to intentionally kill an individual, a provocation must consist of more than mere words or gestures, and if assault or battery is involved the defendant must have a reasonable belief that he or she is in danger of great bodily harm or at risk of death. A provocation is legally sufficient if it is calculated to deprive a reasonable person of self-control and to cause the person to act out of passion rather than reason.

8. Under K.S.A. 22-3216(2), a motion to suppress evidence obtained in a search shall state facts showing that the search and seizure were unlawful. A conclusory statement that the search was unlawful is insufficient to require the trial court to hold a hearing on a defendant's motion to suppress.

Benjamin C. Wood, Special Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

Robert L. Stuart, Assistant District Attorney, argued the cause, and Nick A. Tomasic, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellee.

LOCKETT, Justice:

Defendant Jerome Cheeks appeals his jury conviction of second-degree murder (K.S.A. 21-3402), claiming the trial court erred in: (1) admitting the victim's out-of court statements; (2) failing to instruct on lesser included offenses; (3) admitting evidence seized from the defendant's car; and (4) admitting evidence of the defendant's other crimes and bad acts. Defendant was convicted in the beating death of his wife, Dianne Cheeks.

The Investigation

Jerome Cheeks arrived at the Kansas City, Kansas, police station around 10 or 10:30 p.m. on November 20, 1992, and reported that his wife had been beaten and raped by a group of men. Cheeks appeared calm and was not crying or emotionally upset. He was directed to return home.

When officers and emergency personnel arrived at the home, there were no signs of forced entry. There were numerous beer cans scattered in the kitchen and the kitchen, bedroom, and bathroom were in disarray. There were strands of hair throughout the house. A hammer was on the bedroom floor and there was fecal matter on the end of the hammer handle. Blood on the hammer was consistent with the blood of both Dianne and Cheeks as well as around 57% of the general population. Dianne was lying on the bed. Her hair and sweatshirt appeared to be wet and her jeans were unbuttoned and unzipped.

The autopsy revealed that Dianne died as the result of a subdural hematoma, a clot on the left side of her head. Dianne had multiple blunt impact wounds and extensive bruising over her entire body. There were two bruises on Dianne's rib cage which formed fairly symmetrical circles or half-circles. The circle had a 7/8-inch diameter, consistent with the size of the hammer found at the scene. There was a 1 1/2-inch ragged laceration in Dianne's rectum consistent with being sodomized by the handle of the hammer. The pathologist testified that most of Dianne's external injuries were consistent with being inflicted by a person's fist but that the rectal injury was caused by something being thrust up Dianne's rectum and the two circular wounds were probably caused by a hammer. The pathologist placed the time of death between 10 a.m. and 2 p.m. on November 20. He opined that the beating occurred within 24 hours of Dianne's death. Loss of consciousness could have occurred within a few seconds or several hours after infliction of the injuries, and, untreated, the injuries would cause death. There was a great deal of soap on Dianne's head and genital region, and her hair was combed. The pathologist opined that Dianne had taken a shower after the injuries were inflicted and then lost consciousness as she attempted to dress. Dianne also had bruises which appeared to be 3 days old.

Cheeks was living with Dianne during the week before her death, following his release from jail. He informed an investigating officer that he left the residence the evening of November 18 to go to St. Louis and he returned to Kansas City around 6 p.m. on the 20th. Cheeks said that when he returned to Dianne's home around 10 p.m. on the 20th, he found Dianne lying on the floor with her pants down. He placed her on the bed before summoning the police. A police officer testified that Cheeks did not appear upset, but he began to cry when the medical examiner announced that Dianne was dead.

The Trial Evidence

Cheeks had claimed that he was in St. Louis, Missouri, on November 19 and had returned to Kansas City around 6 p.m. on the 20th. A receipt from a Wendy's restaurant in Kansas City dated 3:17 p.m. on November 20 (almost 3 hours before Cheeks claimed to have returned home) was found in Cheeks' car.

The State called witnesses to show that Cheeks had fabricated an alibi. Cheeks' parole officer testified that while conducting a home visit with Cheeks on the morning of November 18, he heard sounds of water being turned on and off intermittently and of a rag being wrung out or someone washing the floor. Cheeks would not allow the parole officer to speak with Dianne and became distraught and agitated when the parole officer pressed the issue. Cheeks admitted to the parole officer that he and Dianne had had a verbal fight, but he denied any physical fight. The parole officer believed that there was something wrong with Dianne, so he returned to the house with police 15 minutes later. No one was home. An SRS caseworker also testified that she arrived at the house later in the morning on the 18th to check on Dianne. Cheeks informed the SRS worker that Dianne was not home.

A neighbor testified that he observed Cheeks, Dianne, and Cheeks' vehicle at the residence on the afternoon of the 19th. The neighbor stated that Cheeks' vehicle did not leave the house for more than 2 hours that day. On the evening of the 19th, Dianne's landlord went to see her about the rent. Cheeks was at the house, acted belligerent, and informed the landlord that Dianne was gone.

Cheeks had been in jail for most of 1992 (off and on), and during much of that time Dianne lived in various women's shelters. Shortly before Cheeks' release in November 1992, Dianne wrote him letters indicating that she loved him and could not wait until his release. A note from Dianne to Cheeks was found in the basement trash at Dianne's house. It said in part:

"Am I doing the best thing? See, nobody here knows about that but me and you. Let's keep it like that. I don't talk about that to anyone. The only person I talk about that to is someone that means something to me. That is you, Jerome Cheeks. How many times do I have to tell you you are everything to me. I try to look over it when you hit me. I know that's not you, it's the drugs, baby. That's bad, but I am trying to show you that I care a hell of a lot about you. I am surprised you don't see it in me. If you don't, I don't know what to say. I miss the kids, baby. I miss you, too. You shouldn't even have to ask me about the money. You know Dianne Cheeks is going to do that anyway. Maybe you will appreciate me and take me for what I am one day. Can't you do that--can't you do that for the one that is done for you? You could show me some appreciation one day unless you kill me first. Look, I love you, Jerome Cheeks."

A cellmate of Cheeks' testified that Cheeks told him he had slapped Dianne around and that if Dianne did not get her act straight she would be found in a ditch one day. Other witnesses testified that Dianne had told them that Cheeks had beaten her numerous times during their marriage. The testimony of these witnesses is set out later in the opinion.

Cheeks testified that he did not kill Dianne. He insisted that he and Dianne had a loving, caring, and wonderful relationship which...