State v. Cook, 72493

• Decision Date: 08 March 1996
• Docket Number: No. 72493,72493
• Citation: 913 P.2d 97,259 Kan. 370
• Parties: STATE of Kansas, Appellee, v. Kenneth M. COOK, Appellant.
• Court: Kansas Supreme Court

Page 97

913 P.2d 97

259 Kan. 370

STATE of Kansas, Appellee, v. Kenneth M. COOK, Appellant.

No. 72493.

Supreme Court of Kansas.

March 8, 1996.

Syllabus by the Court

1. Thedetermination by the district court that a witness is unavailable to testify will not be disturbed on appeal unless an abuse of discretion is shown.

2. K.S.A. 60-459(g) defines unavailable witness in pertinent part as "absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts." Thus, before a witness may be declared unavailable and before the State may use the prior testimony of the absent witness, the State must show that the witness cannot be produced at trial by the exercise of due diligence and good faith.

3. In cases of necessity, it is generally held that the right of confrontation under the Sixth Amendment of the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights is satisfied if the accused has once been confronted by the witness against him or her in any stage of the proceedings on the same accusation and has had an opportunity of cross-examination.

4. Absent a specific objection to an instruction, an appellate court may reverse only if the instructions given are clearly erroneous. An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury would have returned a different verdict.

5. When reviewing challenges to jury instructions, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error even though they may be in some small way erroneous.

6. After the jury has retired for deliberation, if it desires to be informed as to any part of the law or evidence arising in the case, it may request the officer to conduct it to the court, where the information on the point of the law shall be given, or theevidence shall be read or exhibited to the jury in the presence of the defendant, unless the defendant voluntarily absents himself or herself and his or her counsel and after notice to the prosecuting attorney.

7. When the sufficiency of the evidence is challenged for establishing the existence of an aggravating circumstance in a hard 40 sentencing proceeding, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt.

8. A crime is committed in an especially heinous, atrocious, or cruel manner when the perpetrator inflicts serious mental anguish or serious physical abuse before the victim's death.

9. All murders are heinous, atrocious, and cruel. The legislature, by using the phrase "in a particularly heinous, atrocious, or cruel manner," meant that the heinous, atrocious, or cruel manner must be in a special or unusual degree, to an extent greater than in other cases.

Appeal from Shawnee district court; James P. Buchele, Judge.

Steven C. Moss, Assistant Appellate Defender, argued the cause, and Rebecca E. Woodman, Assistant Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, were with him on the briefs, for appellant.

Joan M. Hamilton, District Attorney, argued the cause, and Anthony W. Mattivi, Assistant District Attorney, and Carla J. Stovall, Attorney General, were with her on the brief, for appellee.

ABBOTT, Justice:

This is a direct appeal by the defendant, Kenneth M. Cook, from his conviction for first-degree murder (K.S.A.1992 Supp. 21-3401[a] ) and from his "hard 40" sentence.

Cook raises five issues. Three issues deal with jury instructions and jury orientation commentary; one issue deals with whether a State witness was unavailable so that the witness' testimony from the preliminary hearing could be used at the defendant's trial; and the last issue deals with the sufficiency of evidence to warrant the imposition of the hard 40 sentence.

This case revolves around the discovery of a body on September 13, 1992, in the Wakarusa River. The body was eventually identified as Charles Duty, a/k/a Donnie Ray Perkins. The facts will be set forth as necessary in discussing the issues.

I. Availability of Witness

The witness in question, David Rudell, was a key witness for the State. He was the only witness who planned to testify that the defendant committed the murder. The State did have another witness who testified that the defendant told him that he (the defendant) had committed the murder.

After the murder, Rudell left the state, ostensibly for his safety. The State had some difficulty in locating Rudell, and he was returned to Kansas for an inquisition under the material witness statute (K.S.A. 22-4203). On June 3, 1993, Rudell testified at the inquisition conducted by the district attorney. As a result of thisinquisition, the defendant was charged with the first-degree murder of Charles Duty. After testifying at the inquisition, Rudell promised to cooperate and return for the preliminary hearing. Rudell appeared and testified for the State at the defendant's preliminary hearing on October 13-14, 1993. Rudell was subjected to cross-examination by counsel for the defendant and by counsel for codefendant Beth Hebert. At this time, Rudell testified that he lived in California.

Hebert pleaded guilty to a lesser offense, and her trial was canceled. However, Rudell had already left California and begun traveling to Kansas in order to appear at Hebert's trial when he was informed that the trial had been canceled. Rudell requested that his travel expenses for this trip be paid. The court refused to authorize witness fees. Eventually, the district attorney's office authorized the payment of Rudell's travel expenses out of its own budget once Rudell proved that he had actually begun traveling to Kansas for Hebert's trial by producing telephone records. According to Rudell's attorney, Rudell was upset with the State due to the difficulty he had in getting his expenses reimbursed. However, the State interpreted Rudell's attempt to appear at Hebert's trial as an indication of Rudell's willingness to cooperate with the State at all times. In fact, the State contends that on each and every occasion prior to the defendant's trial, Rudell had made himself available as needed. The State kept in contact with Rudell through his attorney, Wendell Betts. Betts kept in contact with Rudell by phone on a regular basis and kept Rudell apprised of his obligations regarding the defendant's trial. However, Betts never had a telephone number or address where Rudell could be located. Rather, Rudell always called Betts at a specific time from different locations, and Betts would convey any messages from the State to Rudell.

On Tuesday, February 22, 1994, a week before the defendant's scheduled trial, Rudell called the district attorney and indicated that he could not come to Kansas for the defendant's trial unless his travel expenses were paid up front. The district attorney told Rudell that it would be difficult to get the money authorized up front because Rudell only had a right to travel expenses after he had testified. The district attorney also told Rudell that she did not have the money in her budget to pay Rudell's travel expenses as she had done when he tried to attend Hebert's trial and that all she could do was to request the money from the court. The next day, Rudell informed his attorney, Betts, that he was financially unable to be present at the trial. As a result of this conversation, Rudell's attorney gave the district attorney a letter on Wednesday, February 23, 1994, which indicated that if Rudell did not receive at least part of his travel money up front, then he would not be present at the defendant's trial.

On Wednesday, February 23, 1994, the district attorney's secretary informally contacted the administrative law judge to see if funds could be made available up front for Rudell. The judge denied the funds, and the district attorney requested a formal hearing on the matter to be held the following afternoon. The initial denial of funds was communicated to Rudell by the district attorney on Wednesday. However, the district attorney instructed Rudell to call her back on Friday and again before he left for the weekend because the money might become available. Betts also spoke to Rudell on Wednesday at 4:30 p.m. and reiterated that funds were not available.

The following day at the hearing, the district attorney requested an order to disburse funds to Rudell. At this hearing, the court asked the district attorney whether "as the prosecutor and officer of the court that [Rudell] is in your best judgment absolutely a material witness still to this case." The district attorney answered affirmatively.

At the conclusion of the hearing, the court determined that Rudell had never been released from his material witness bond and was therefore still under the jurisdiction of the court. The court also determined that Rudell had been summoned pursuant to the material witness statute, K.S.A. 22-4203, and, as a result, had a binding obligation to appear in court for the trial of the defendant. The judge released the funds late on Thursday, February 24, 1994.

At this time, the district attorney asked if she could give the check to Betts "so he can do whatever he has to to get it to the witness." Betts told the district attorney to send the money via Western Union because Rudell could not always be located at a specific number or address. The district attorney sent the money to Rudell via Western Union. However, Rudell never picked up the...