State v. Collier

• Court: Kansas Supreme Court
• Writing for the Court: Appeal from Sedgwick District Court, William D. Rustin; LARSON; LOCKETT; McFARLAND
• Citation: State v. Collier, 259 Kan. 346, 913 P.2d 597 (Kan. 1996)
• Decision Date: 08 March 1996
• Docket Number: No. 72240,72240
• Parties: STATE of Kansas, Appellee, v. Jeffrey S. COLLIER, Appellant.

Page 597

913 P.2d 597

259 Kan. 346

STATE of Kansas, Appellee, v. Jeffrey S. COLLIER, Appellant.

No. 72240.

Supreme Court of Kansas.

March 8, 1996.

Syllabus by the Court

1. In an appeal in a case in which the hard 40 sentence was imposed, even if the defendant fails to raise objections in the trial court to the issues raised on appeal, we will consider and reach each issue raised because of the specific statutory direction in K.S.A.1993 Supp. 21-4627 that we "shall consider the question of sentence as well as any errors asserted in the review and appeal and shall be authorized to notice unassigned errors appearing of record if the ends of justice would be served thereby."

2. On appeal, the jury will be presumed to have disregarded evidence about which an objection was sustained.

3. Relevancy is more a matter of logic and experience than of law. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence or if it has any tendency in reason to prove any material fact.

4. The erroneous admission of evidence is harmless error where it could not have affected the result of trial in light of other evidence properly admitted.

5. The analysis of the effect of a prosecutor's allegedly improper remarks is a two-step process. First, the appellate court determines whether the remarks were outside of the considerable latitude the prosecutor is allowed in discussing the evidence. Second, if the remarks are found to be improper, the court must consider whether, in light of the record as a whole, they are so prejudicial as to amount to reversible error.

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 accused and deny him or her a fair trial. In deciding whether improper remarks by the prosecution during closing argument constitute harmless error, the reviewing court must be able to find that the error had little, if any, likelihood of changing the result of the trial. Such a belief must be declared beyond a reasonable doubt.

7. Under the facts of this case, the prosecutor's closing argument explaining a plausible motive for the selection of a robbery victim was not improper.

8. As a general rule, whether the dissatisfaction of an indigent accused with court-appointed counsel warrants discharge of that counsel and appointment of new counsel is for the trial court, in its discretion, to decide.

9. As long as the trial court has a reasonable basis for believing the attorney-client relation has not deteriorated to a point where appointed counsel can no longer give effective aid in the fair presentation of a defense, the court is justified in refusing to appoint new counsel.

10. The notice provisions of K.S.A.1993 Supp. 21-4624, the first-degree murder hard 40 sentence, are mandatory, and the failure to comply with such provisions requires a sentence imposed thereunder to be vacated.

11. An official record imports verity and cannot be collaterally impeached.

12. Allegations as to matters outside the record cannot be considered on appeal.

Appeal from Sedgwick District Court, William D. Rustin, Judge. Opinion filed March 8, 1996. Convictions affirmed, sentence vacated, and case remanded for resentencing.

Jessica R. Kunen, Chief Appellate Defender, argued the cause and was on the brief, for appellant.

Debra S. Peterson, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with her on the brief, for appellee.

LARSON, Justice:

Jeffrey Collier appeals his convictions of first-degree murder and aggravated robbery along with his hard 40 life imprisonment sentence.

We have jurisdiction pursuant to K.S.A. 22-3601(b)(1).

Before we consider the trial errors Collier alleges and the propriety of the sentence imposed, we will briefly summarize the trial testimony regarding the underlying crimes. More specific facts will be presented as to each of the alleged appellate errors as they are discussed.

In October 1993, Collier and his homosexual companion, Benny Watson, had gone to Oak Park in Wichita to "roll some fags." Collier located a potential victim but decided he was too large. They left the park, picked up their roommate, Sharon Biffle, and attended an auction before they returned to the park.

Upon their return, Collier saw the victim, Michael Hendrix, reading a book and approached him. Watson remembered Hendrix as having tipped him during Watson's former employment as a female impersonator.

Collier lured Hendrix into a nearby wooded area, where Collier masturbated for Hendrix and convinced him to go to his apartment.

After 30 minutes, Watson went to the apartment and knocked on the door. He was told by Hendrix they were drinking beer and Watson should leave. Watson returned to his car and started honking the horn. Collier came out and said he would get Watson some money because he was "pulling a trick" with Hendrix.

Watson and Biffle went to a nearby tavern where they were located by Collier. Collier had them return to Hendrix's apartment. There, he obtained a laundry basket of things he had taken from Hendrix's apartment, including a paint sprayer which he later sold for $20.

After they returned to their apartment, Collier became angry and made several trips back to Hendrix's apartment, bringing back numerous items each time. Collier told Watson and Biffle the things came from Hendrix's apartment, where Hendrix was knocked out and tied up. Watson testified at trial that later that night Collier told him he had killed Hendrix and he would kill Watson and Biffle as well if they said anything.

Watson eventually told a third party, who told an additional party who called the police. The police found Hendrix's nude body with his hands tied tightly and a scarf around his badly bruised neck. The coroner testified the cause of death was strangulation, with evidence of a blunt trauma to the head and other injuries.

Testimony at trial indicated that after Collier was arrested and while he was being processed into jail, he told a police officer that he had just gotten out of jail after serving a 3-year sentence and guessed he could do 15 years. He also told two other officers that "I always wondered what it felt like to be a murderer, now I know." Collier had in his possession a key ring with the initials M.K.H., and one of the keys on the key ring fit the door to Hendrix's apartment.

Police found various items of clothing and housewares that belonged to the victim in Watson and Collier's apartment. The victim's fingerprints, as well as Collier's, were obtained from several items which belonged to the victim.

Michael Ware, a prisoner awaiting transfer to a federal facility, befriended Collier in jail but testified for the prosecution. Ware testified that Collier would try out different stories based upon the witnesses' statements to see if they could be reconciled without implicating him. Ware testified that Collier told him the true series of events, which were substantially similar to Watson's testimony except that Watson was implicated to a much larger degree. In exchange for Ware's testimony, the prosecution agreed to write a letter to the United States Attorney informing him of Ware's cooperation which was likely to obtain him a reduced sentence.

It was stipulated that Collier had told Ware that because Hendrix was struggling and making noise, Collier wrapped the scarf around Hendrix's neck to silence him but that he had no intention of causing his death.

Biffle corroborated Watson's testimony, although her version varied in minor details. Other witnesses reported seeing Collier and Hendrix together and seeing Watson's car outside Hendrix's apartment.

Collier was convicted on theories of both premeditated and felony murder and on an aggravated robbery charge. For the murder conviction, he was sentenced to the hard 40.

Scope of Review

Because a hard 40 sentence was imposed, we review this matter pursuant to the specific directions of K.S.A.1993 Supp. 21-4627, which states:

"(1) A judgment of conviction resulting in a mandatory term of imprisonment pursuant to K.S.A.1993 Supp. 21-3401 and 21-3401a, and amendments thereto, shall be subject to automatic review by and appeal to the supreme court of Kansas in the manner provided by the applicable statutes and rules of the supreme court governing appellate procedure. The review and appeal shall be expedited in every manner consistent with the proper presentation thereof and given priority pursuant to the statutes and rules of the supreme court governing appellate procedure.

"(2) The supreme court of Kansas shall consider the question of sentence as well as any errors asserted in the review and appeal and shall be authorized to notice unassigned errors appearing of record if the ends of justice would be served thereby.

"(3) With regard to the sentence, the court shall determine:

"(a) Whether the mandatory term of imprisonment was imposed under the influence of passion, prejudice or any other arbitrary factor; and

"(b) whether the evidence supports the findings that an aggravating circumstance or circumstances existed and that any mitigating circumstances were insufficient to outweigh the aggravating circumstances.

"(4) the court shall be authorized to enter such orders as are necessary to effect a proper and complete disposition of the review and appeal."

Although Collier did not object in the trial court to the manner of imposition of the hard 40 sentence or in every instance make continuing objections to trial errors which he now raises, we will consider each issue raised because of the specific statutory direction that we "shall consider the question of sentence as well as any errors asserted in the review and appeal and shall be authorized to notice unassigned errors appearing of record if the ends of justice would be...