State v. Corey

Citation374 P.3d 654,304 Kan. 721
Decision Date01 July 2016
Docket NumberNo. 110,149,110,149
Parties State of Kansas, Appellee, v. Ralph E. Corey, Appellant.
CourtUnited States State Supreme Court of Kansas

304 Kan. 721
374 P.3d 654

State of Kansas, Appellee,
v.
Ralph E. Corey, Appellant.

No. 110,149

Supreme Court of Kansas.

Opinion filed July 1, 2016


374 P.3d 660

Peter Maharry, of Kansas Appellate Defender Office, argued the cause, and Lydia Krebs, of the same office, was on the brief for appellant.

Natalie Chalmers, assistant solicitor general, argued the cause, and James T. Ward, deputy county attorney, Josh Smith, deputy county attorney, Stephen A. Hunting, county attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

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

304 Kan. 723

Ralph Corey challenges his convictions for aggravated kidnapping, attempted rape, criminal threat, and two counts of aggravated sexual battery. He raises two additional sentencing issues. The convictions stem from a February 2000 sexual assault in Ottawa that had no suspect until January 2011 when DNA profiles pointed toward Corey, who by then was incarcerated in an Arizona federal correctional facility. His first trial ended in a postconviction mistrial due to jury misconduct. A second trial resulted in his convictions. The Court of Appeals affirmed. State v. Corey , No. 110,149, 2014 WL 6490503 (Kan. App. 2014) (unpublished opinion).

As this case reaches our court on petition for review, we must decide: (1) whether reversal is required because jurors learned during their deliberations that Corey had been tried previously for the crimes; (2) whether the prosecutor argued facts outside the evidence and misstated the law of attempt, and if so whether reversible error occurred; (3) whether three other undisputed trial court errors require reversal; and (4) whether cumulative error requires reversal. We must also decide whether the district court erred by relying on Corey's criminal history to increase the sentence for his primary crime of conviction without that criminal history having been proven to a jury. And, finally, Corey has filed a motion for summary disposition arguing his aggravated kidnapping sentence is illegal based on State v. Murdock , 299 Kan. 312, 319, 323 P.3d 846 (2014), overruled by State v. Keel , 302 Kan. 560, 357 P.3d 251 (2015). As explained below, we affirm Corey's convictions and sentences and deny the motion.

We hold that the jury misconduct was harmless beyond a reasonable doubt based upon our review of the entire record. We further hold all trial errors were harmless beyond a reasonable doubt—both individually and cumulatively. As to the criminal history claim,

304 Kan. 724

we have repeatedly rejected it since State v. Ivory , 273 Kan. 44, 41 P.3d 781 (2002), and will not revisit that holding in this appeal. See, e.g. , State v. Foster , 290 Kan. 696, 699, 233 P.3d 265 (2010). Finally, we deny Corey's motion because his illegal sentence argument was resolved by Keel, which overruled Murdock.

Factual and Procedural Background

In February 2000, 16-year-old L.H. was abducted as she left work. An assailant ran up as she was getting into her car, hit her, and pushed his way inside. He put L.H. in the back seat, pulled a stocking cap over her head to cover her eyes, threatened to kill her if she called out, and then drove to a nearby parking lot. The assailant got into the back seat with L.H., lifted her bra, and fondled her breasts.

As he began to pull down her pants, she resisted. The attacker removed or partially removed his pants and rubbed his genitals against her stomach. He asked how old she was, and she told him. She later testified the assailant “responded like he was shocked” and stopped. He told her he would take her back, to be quiet, and that he would not hurt her if she did as she was told. He then fondled her breasts and masturbated before driving to another location. There, he fondled her breasts again, but stopped and said he knew who she was, where she worked, and that he would come back and hurt her if she told anyone what happened. When he left, L.H. notified the police, describing her assailant as a male of medium build with dark hair and a mustache.

Investigators found the stocking cap and a pair of gloves in the back of L.H.'s car. Partial DNA profiles were obtained from the cap and one glove, and a full profile was taken from the other glove. Each profile was consistent with the same individual, but not the victim. A partial male DNA profile was

374 P.3d 661

also developed from a swab of L.H.'s stomach. Latent fingerprints inside the car did not match either L.H. or Corey.

The full profile from the glove was entered into the FBI's Combined DNA Index System, but it was not until 2011 when authorities matched it to Corey, who was by then in federal custody. He

304 Kan. 725

denied involvement with the crime and said he had never been to Kansas.

The State charged Corey with aggravated kidnapping, attempted rape, criminal threat, and two counts of aggravated sexual battery. He was tried and convicted, but the district court granted an unopposed motion for new trial after it was learned a juror had used a cell phone during deliberations to access information about the case and shared it with the jury.

Our focus is on the second trial, where the attention was on the attacker's identity. L.H. described him as a white male with dark hair and a mustache, who was approximately 5'8? tall with a medium build. She said his voice was strong and gruff, and had a flat, Midwestern accent. She testified he wore dark blue jeans, a dark top, and a long-sleeved jacket. She admitted only glimpsing the assailant's face and could not identify him from photo lineups or in the courtroom.

Tammy Smith, who was waiting for L.H. in the parking lot where the abduction occurred, testified she had parked her car so that she could see her friend walk out. She noticed a white male wearing a heavy black coat and black stocking cap move quickly behind her car. He was about 6' tall or a little shorter, had a mustache, and dark eyebrows. She said he got close enough to her driver's door that she could have touched him if the window had been open. The man left abruptly after she put her car in gear. She did not see L.H. walk out, but later observed a car similar to L.H.'s leaving the parking lot, driven by someone who appeared to be the same man who approached her car. Smith identified that man as Corey.

Shortly after the attack, L.H. and Smith independently cooperated with a sketch artist who produced composite drawings of the man based on their descriptions. They agreed at trial those sketches accurately reflected their recollections. The drawings were admitted into evidence, as were photographs of Corey taken in 2002 and 2011.

The State also presented evidence about Corey's employment at the time of the attack as an over-the-road truck driver for companies based in Iowa and Arizona. Records showed Corey bought fuel in Waterloo, Iowa, the day before the attack and in Hewitt,

304 Kan. 726

Texas, the day after. The State showed these cities were close to Interstate 35, which passes through Ottawa.

At trial, the State's experts testified Corey could not be excluded as a contributor to the DNA profiles from the swab of L.H.'s stomach, the stocking cap, and the gloves. The estimated probability of randomly selecting an unrelated male from the general population with the partial DNA profile from the stomach swab was approximately 1 in 9. But the partial profile from the left glove had an estimated frequency in Caucasians unrelated to Corey of 1 in 7 billion, while the partial profile from the cap had an estimated frequency of 1 in 12 trillion, and the full profile from the right glove had an estimated frequency of 1 in 62 trillion.

The expert who testified about the hat and gloves admitted that the presence of Corey's DNA on the clothes left by the attacker did not prove Corey was the person who used the items the night of the attack. Corey testified in his own defense, denying any involvement.

Corey admitted it was possible he travelled Interstate 35 between Waterloo and Hewitt as a trucker, but would consider it a normal route travelling north, rather than south. He said most of his runs from Waterloo headed east, typically driving to St. Louis, then Oklahoma City and Dallas. He agreed his equipment included gloves, boots, and stocking caps and that the gloves in evidence were commonly used in the trucking industry. He said the hat and gloves were consistent with what he would have used around the time of the attack, but did not specifically remember owning them. He explained that hats and gloves are frequently left at places such as rest areas and truck stops and commonly transferred from one driver to another. He

374 P.3d 662

estimated he had gone through 50 to 75 pairs of gloves in 20 years.

The defense attacked the State's evidence on various fronts. Corey argued he was not the attacker because he had a strong east-coast accent, rather than a Midwestern one, as L.H. had described. He also noted he had tattoos...

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12 cases
  • State v. Lowery
    • United States
    • United States State Supreme Court of Kansas
    • 5 Octubre 2018
    ...prosecutor misstated and got completely wrong the testimony of the DNA analyst, thereby misleading the jury. See State v. Corey , 304 Kan. 721, 735-36, 374 P.3d 654 (2016) (holding prosecutor erred in stating " ‘actual scientific evidence’ " placed defendant's DNA on the victim's body when ......
  • State v. Brown
    • United States
    • Court of Appeals of Kansas
    • 12 Marzo 2021
    ...law as given in these instructions." Appellate courts presume that juries follow the district court's instructions. State v. Corey , 304 Kan. 721, 734, 374 P.3d 654 (2016).Our Supreme Court has stated that even if the prosecutor's actions are egregious, reversal of a criminal conviction is ......
  • State v. Thurber
    • United States
    • United States State Supreme Court of Kansas
    • 15 Junio 2018
    ...does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. Corey , 304 Kan. 721, 730-31, 374 P.3d 654 (2016).4.3 Analysis Under K.S.A. 22-3410(2)(i), a prospective juror may be removed for cause when "[h]is [or her] state of......
  • State v. Owens
    • United States
    • United States State Supreme Court of Kansas
    • 15 Octubre 2021
    ...that could not be cured or mitigated through jury admonition or instruction or other means, resulting in an injustice." State v. Corey , 304 Kan. 721, 730, 374 P.3d 654 (2016). Owens argues that "[f]undamental fairness would have allowed the defense, pretrial, to seek its own firearms ‘fami......
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