State v. Cook

• Decision Date: 09 June 2006
• Docket Number: No. 92,731.,92,731.
• Citation: 135 P.3d 1147
• Parties: STATE of Kansas, Appellee, v. Kenneth M. COOK, Appellant.
• Court: Kansas Supreme Court

135 P.3d 1147

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

No. 92,731.

Supreme Court of Kansas.

June 9, 2006.

COPYRIGHT MATERIAL OMITTED

Janine A. Cox, capital appellate defender, argued the cause and was on the brief for appellant.

Amy M. Memmer, assistant district attorney, argued the cause, and Robert D. Hecht, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by ALLEGRUCCI, J.:

Kenneth M. Cook appeals his jury conviction of one count of second-degree murder and his sentence of 15 years to life imprisonment.

For the 1992 murder of Charles Duty, Cook initially was convicted by a jury of first-degree murder and given a "hard 40" sentence. This court affirmed the conviction. State v. Cook, 259 Kan. 370, 913 P.2d 97 (1996). On appeal from denial of his petition for habeas corpus, the Tenth Circuit Court of Appeals determined that defendant's Sixth Amendment right to confrontation had been denied because the State had not exercised due diligence to secure a prosecution witness whose testimony at the preliminary hearing was admitted as evidence at the trial, then reversed and remanded with directions to grant the writ. Cook v. McKune, 323 F.3d 825 (10th Cir.2003). The conviction and sentence from Cook's retrial of the murder charges are now again before this court.

Cook raises six issues in this appeal. Cook asserts the district court: (1) abused its discretion in denying Cook's motion to recall the jury; (2) erred in denying Cook's request for a psychological examination of David Rudell, the State's witness; (3) abused its discretion in denying his request for a continuance of the trial to develop evidence of Rudell's mental health; (4) abused its discretion in denying Cook's motion for new trial based on newly discovered evidence; (5) erred by failing to calculate what defendant's sentence would have been under the sentencing guidelines; and (6) enhanced his sentence in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

FACTS

On September 13, 1992, a fisherman discovered a body in the Wakarusa River. The Shawnee County Sheriff was notified. The body was tied to a square metal beam that weighed about 50 pounds. Divers also found a piece of carpet in the river close to the location of the body.

An autopsy revealed that the man had been dead approximately 7 days and that he died as a result of bleeding from a bullet wound in the chest that damaged the main artery from the heart. A second bullet had entered his left upper back. The pathologist found no defensive wounds and concluded the man had not been shot at close range. The recovered bullets were of a very unusual type. The autopsy also revealed that after death, to hide identity of the victim, the victim's teeth had been removed and patches of tattooed skin and subcutaneous tissue had been cut from each of the victim's upper arms. The body eventually was identified from fingerprints as that of Charles Duty, a/k/a Donnie Perkins, a/k/a Billy Ray Davenport.

At the second trial, David Rudell, whose testimony at the preliminary hearing had been improperly admitted in the first trial, testified that Cook shot Duty on September 7, 1992. Rudell stated at that time he lived on Orange Street in Baldwin, Kansas. Cook and Beth Hebert had moved in with Rudell 2 or 3 days prior to September 7. They had moved from a small house on Lime Street in northeast Topeka. Duty had lived with them in the small house for a very brief time.

Around noon on September 7, Rudell drove Cook and Hebert in his pickup to the house on Lime Street to move their furniture. Cook had a gun. Cook informed Rudell there might be a confrontation with Duty because Hebert had previously stolen pills from Duty. Duty had AIDS, and on September 1, he had obtained a prescription for 400 tablets of the narcotic, Hydrocodone, and 100 10-milligram tablets of Valium.

The gun Cook had belonged to Leonard Smith. It was a .31 caliber cap-and-ball pistol, a reproduction of an 1849 Colt pistol. The gun's projectile is a lead ball that is shot when black powder is ignited by the hammer hitting a firing cap. Smith loaned the gun to Cook in the spring of 1992. The first weekend in September Cook asked Smith for more ammunition. Smith provided the additional ammunition necessary to fire the gun.

Rudell further testified that when they arrived at the Lime Street house, Cook and Hebert got out of the truck. Rudell turned the truck around to load furniture. Rudell then got out of the truck. Hebert, who was standing outside a window of the house crying, stated, "He shot him."

Rudell entered the house. Gun smoke hung in the air. Cook was standing in the bedroom with the cap-and-ball pistol in his hand. Duty was half in and half out of the bed, tangled in the sheet. There was blood on the wall and a bloody wound on the left side of Duty's chest.

Cook dragged Duty's body to the garage where he pulled out Duty's teeth with pliers. Cook, Hebert, and Rudell then drove to the Tin Shed, a motorcycle business, and obtained a 6- to 7-feet long square steel beam. They returned to the Lime Street house. Cook wrapped Duty's body in a piece of carpet and then put the body in the back of the truck. Furniture was loaded on top of the body. They then drove to the Wakarusa River and parked at a spot used by fishermen. Cook took Duty's body and the steel beam down an embankment to the river. Using black nylon rope from the garage of the Lime Street house, Cook tied Duty's body to the steel beam, then dragged Duty's body into the river until it sank below the surface. Before returning to Baldwin, Cook, Hebert, and Rudell returned to the Lime Street house, removed Duty's possessions, and then burned them.

Leonard Smith, owner of the cap-and-ball pistol, testified that, while visiting Smith at his trailer in Carbondale, Cook had stated that after he shot and killed a guy on Lime Street with the .31 caliber pistol, Cook informed Smith that he then tied the body to a piece of steel from the Tin Shed and threw the body in the Wakarusa River.

Beth Hebert testified that when Duty was killed, she had gone to the Lime Street house with Smith and Rudell to throw Duty out of the house and retrieve some furniture. Hebert testified that while Rudell was still in the truck, Smith went into the house. She then heard two gunshots. Hebert stated that they stayed with Duty's body for 4 hours. Hebert was aware that Duty took massive amounts of painkillers and other drugs. Hebert had previously purchased drugs from Duty. Hebert stated that after Duty's death, she got high on Oxycodones they had found in Duty's underwear. Eventually they moved the body to the garage. After dark they put it into the truck, then drove to the Wakarusa River.

In 1993 Beth Hebert told Darrin Busey, whom she became intimate with after they met at the Parkview Rehabilitation Center, that after she had stolen drugs from Duty, Cook shot Duty with a black powder-type of gun. During this conversation, Hebert never mentioned Leonard Smith's presence at the shooting to Busey.

Failure to Recall the Jury

Defendant first argues that the district court abused its discretion when denying Cook's motion to recall the jury.

An appellate court reviews a trial court's order denying a motion to recall a jury for abuse of discretion. State v. Kleypas, 272 Kan. 894, 968, 40 P.3d 139 (2001), cert. denied 537 U.S. 834, 123 S.Ct. 144, 154 L.Ed.2d 53 (2002); State v. Jenkins, 269 Kan. 334, 338, 2 P.3d 769 (2000). We note that there are varying statements of the appropriate test for abuse of discretion. In Kleypas, this court stated the test of the trial court's abuse of discretion to be whether no reasonable person would agree with the trial court. If any reasonable person would agree, an appellate court will not disturb the trial court's decision. 272 Kan. at 968, 40 P.3d 139. In Jenkins, the court stated the test of the trial court's abuse of discretion to be whether defendant can show that (1) an act of the jury constituted misconduct and (2) the misconduct substantially prejudiced the defendant's right to a fair trial. 269 Kan. at 338, 2 P.3d 769.

Although a showing of prejudice is said in a number of cases to be required, see e.g., State v. Fenton, 228 Kan. 658, Syl. ¶ 1, 620 P.2d 813 (1980), and State v. Garza, 26 Kan. App.2d 426, Syl. ¶ 4, 991 P.2d 905 (1999), this court noted in State v. Goseland, 256 Kan. 729, 736, 887 P.2d 1109 (1994), that the obstacle presented by K.S.A. 60-441 to such a showing is to establish how juror misconduct affected a verdict. We note that K.S.A. 60-441 bars evidence "to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or concerning the mental processes by which it was determined."

A case cited by defendant, Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), suggests a different emphasis. In Irvin, the prejudice on which the inquiry focused was the partiality of the jurors. The partiality of the jurors, of course, would prejudice the defendant, but the showing required was juror prejudice rather than its consequence. 366 U.S. at 723-24, 81 S.Ct. 1639.

A discussion of the appropriate test is required. Our discussion includes consideration of another statement from Jenkins: "If a defendant's constitutional right has been violated during a trial, a judge's discretion to deny a motion for a new trial or a motion to recall a jury is limited. At this point, there is a greater reason for the judge to articulate the reasons for his or her `discretionary' decision." 269 Kan. at 338, 2 P.3d 769. In practice, most issues in criminal appeals are stated as constitutional questions.

Juror affidavits. Cook contends that his Sixth Amendment right to trial by an impartial jury was violated when jurors...