State v. Conley, No. 82,380.

• Decision Date: 27 October 2000
• Docket Number: No. 82,380.
• Parties: STATE OF KANSAS, Appellee, v. ANTHONY D. CONLEY, Appellant.
• Court: Kansas Supreme Court

270 Kan. 18

11 P.3d 1147

STATE OF KANSAS, Appellee, v. ANTHONY D. CONLEY, Appellant.

No. 82,380.

Supreme Court of Kansas.

Opinion filed October 27, 2000.

Mary Curtis, assistant appellate defender, argued the cause, and Kirk C. Redmond, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were with her on the briefs for appellant.

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

The opinion of the court was delivered by

SIX, J.:

Defendant Anthony Conley appeals his jury conviction for first-degree premeditated murder. K.S.A. 21-3401(a). He received a hard 40 sentence under K.S.A. 21-4638. Conley contends that the district court erred: (1) by declaring a witness unavailable in violation of his confrontation and due process rights, (2) in refusing to give an instruction on informant testimony, (3) by allowing the State's peremptory challenges during voir dire, and (4) by imposing a hard 40 sentence. Finally, although the issue was not raised in the district court, we address Conley's contention that his hard 40 sentence is unconstitutional. Conley claims his sentence violates the Due Process Clause of the United States Constitution. He also claims his sentence violates his right to trial by jury under the 6th Amendment to the United States Constitution and § 5 of the Kansas Constitution Bill of Rights.

Our jurisdiction is under K.S.A. 21-4627 (a conviction resulting in a hard 40 sentence receives an automatic review by this court).

Finding no error, we affirm. We also uphold the constitutionality of Conley's hard 40 sentence.

FACTS

Conley was convicted of the murder of Nicholas Armstrong. Armstrong was shot four times, sustaining five wounds. On the evening of September 26, 1995, Melissa Eckels, who lived across the parking lot from Conley, visited her brother Travis Scott, her cousin defendant Conley, and her friend Armstrong. The three men lived together. When Eckels arrived, Scott, Conley, and Armstrong were playing a video game and listening to music. Eckels noticed an object that she believed was a gun on top of the television. She returned to her apartment at about 10:30 p.m. Marilyn Noel lived in a neighboring apartment complex. She testified that around 10:45 p.m. that night, she heard five or six gun shots (two or three in two sessions and one final shot.)

A few minutes later, Gretchen Macy-Toro, a friend of Armstrong, walked out of her apartment. She saw Armstrong's Ford Bronco drive by. Although she could not see who was inside the Bronco, she thought it was unusual that the vehicle did not stop. In the past, Armstrong frequently stopped to talk when he drove past Macy-Toro's residence. Also, he usually played loud music. Macy-Toro did not hear any music coming from the Bronco. The next morning, Joseph Noble, a neighbor, was driving to work when he discovered Armstrong's body. Investigators found two .38 caliber shell casings near the body.

A forensic pathologist testified that Armstrong was wounded in the forehead, mouth, chest, back, and right buttock. Although the pathologist could not ascertain the order that the shots were fired, he concluded that the shot to the forehead caused Armstrong's death.

The police located Armstrong's Bronco about 4 miles from Conley's apartment. A bullet hole was in the driver's door. A crime scene investigator testified that due to the trajectory of the bullet, the shot was fired when the door was open. Investigators found 17 fingerprints but no blood on the Bronco. Two of the prints belonged to the victim. None of the prints were Conley's.

Four months later, Conley and Scott were passengers in a car stopped by the police near Coffeyville, Kansas. The police found a .45 caliber handgun behind the driver's seat and a loaded .38 caliber handgun in the cargo area. Ballistic tests showed that the bullets found in Armstrong's neck and leg and the shell casings found near his body were fired from this .38 caliber handgun.

In February 1997, Conley was imprisoned on another charge and shared a cell with inmate Larry Luckey. Luckey told officials that Conley confessed to Armstrong's murder. At trial, Conley testified in his own defense. He said that he lived alone; however, Armstrong (the victim) kept a few items at Conley's apartment. According to Conley, Armstrong visited the apartment on the night of the murder and left by himself between 10:30 and 11:30 p.m. Conley said he watched a video alone and then ordered a pizza, which arrived between 12:30 and 1 a.m. He denied any knowledge of Armstrong's murder. A jury found Conley guilty of premeditated first-degree murder. At the sentencing hearing, the district court sentenced Conley to a hard 40 sentence.

DISCUSSION

The Unavailable Witness

We first address Conley's claim that the district court erred when it found that Eckels was unavailable as a witness. Her preliminary hearing transcript was used as evidence at trial. The district court's determination that a witness is unavailable to testify will not be disturbed on appeal absent an abuse of discretion. State v. Love, 267 Kan. 600, 609, 986 P.2d 358 (1999). Judicial discretion is abused when no reasonable person would take the view adopted by the district court. State v. Davidson, 264 Kan. 44, 56, 954 P.2d 702 (1998). We find no abuse of discretion here. K.S.A. 1999 Supp. 60-460(c)(2) allows "the use of preliminary hearing testimony in a trial of the same action if the declarant is unavailable at the trial and the adverse party had the right and opportunity to adequately cross-examine at the preliminary hearing." State v. Zamora, 263 Kan. 340, 342, 949 P.2d 621 (1997).

Under K.S.A. 60-459(g)(3), a witness may be unavailable when the witness is "unable to be present or to testify at the hearing because of death or then existing physical or mental illness." The standard for determining whether a witness is unavailable is whether there has been a good faith effort to obtain the witness' presence at trial. Zamora, 263 Kan. at 342. The question of a good faith effort turns on the totality of the facts and circumstances of the case. 263 Kan. at 342.

Here, Conley argues that the State did not make a "good faith effort," or use "reasonable diligence" in attempting to produce Eckels for trial. The State filed a pretrial motion seeking to have Eckels declared unavailable and to have her preliminary hearing testimony admitted at trial. At the hearing on the motion, the State produced a notarized letter from Eckels' Arizona physician. The physician's letter reported that Eckels (she is referred to as Anderson in the letter) delivered a child by caesarean section on July 15, 1998, and, barring any medical complications, she would not be able to travel until August 26, 1998. (The trial commenced August 4, 1998.) No other evidence was offered.

Conley, relying on State v. Calvert, 211 Kan. 174, 505 P.2d 1110 (1973), State v. Steward, 219 Kan. 256, 547 P.2d 773 (1976), and State v. Stafford, 255 Kan. 807, 878 P.2d 820 (1994), contends that the physicians's letter alone is insufficient to show unavailability.

A review of the three cases is appropriate. In Calvert, during Calvert's third trial, the district court prohibited the reading of Darlene Coffee's testimony. Coffee had testified for the defense as an alibi witness at Calvert's second trial. After the State rested, Calvert's counsel told the court that Coffee called to say that she was unable to testify based on her doctor's orders. The district court ruled that in order to admit Coffee's prior testimony, the doctor would have to call the prosecutor regarding Coffee's excuse for failing to appear. The doctor never called. Thus, the district court excluded Coffee's prior testimony. We affirmed. Calvert failed to make the showing required by the district court. 211 Kan. at 183.

In Steward, the State successfully moved to present a witness' prior testimony. At a hearing on the motion, the assistant district attorney and an investigator testified that they spoke to the witness and to her doctor. They said the doctor performed a physical examination and determined that the witness could not travel due to her being in the late stages of a difficult pregnancy. On appeal, we affirmed, noting that there was no lack of diligence and no indication of bad faith on the part of the State. We pointed out that Steward neither asked for a continuance nor complained of the cross-examination of the witness at the first trial. 219 Kan. at 264.

In Stafford, the district court declared a cancer patient unavailable to testify. After the preliminary hearing, the witness was diagnosed with cancer of the liver. The witness wished to forego treatment and, instead, asked to receive medication for pain management. At the time of the trial, the witness was taking numerous medications 24 hours a day. As a result of the medications, she experienced some hallucinations and memory loss. The witness' doctor testified regarding the issue of availability. We concluded that there was no abuse of discretion in allowing the witness' prior testimony into evidence. 255 Kan. at 813-14.

Conley asserts that Calvert, Steward, and Stafford require a doctor's testimony or other additional evidence to satisfy the requisite reasonable diligence standard. We disagree. These cases do not establish such a strict requirement.

Here, Eckels had delivered a baby by caesarean section less than 3 weeks before trial. Her physician's notarized letter said Eckels "is medically unable to travel the week of 8/3-7/98." Moreover, Conley did not ask for a continuance. The facts do not show a lack of reasonable diligence on the part of the State, nor do they show bad faith. A reasonable person would agree with the district court's decision to declare Eckels unavailable...