State v. Cramer

• Decision Date: 20 November 1992
• Docket Number: No. 67473,67473
• Parties: STATE of Kansas, Appellee, v. Janette G. CRAMER, Appellant.
• Court: Kansas Court of Appeals

Page 1111

841 P.2d 1111

17 Kan.App.2d 623

STATE of Kansas, Appellee, v. Janette G. CRAMER, Appellant.

No. 67473.

Court of Appeals of Kansas.

Nov. 20, 1992.

Review Denied Feb. 3, 1993.

Syllabus by the Court

1. A litigant may not invite and lead a trial court into error and then complain of the trial court's action on appeal.

2. A defendant is not permitted to join in a request for specific language to be used in answering a jury's question and then, on appeal, claim that the trial court erred in using that language.

3. Under the facts shown, the application of the mandatory imprisonment terms of K.S.A.1991 Supp. 21-4618 did not result in manifest injustice.

4. On appeal, a mandatory prison sentence under K.S.A.1991 Supp. 21-4618 will not be set aside as manifestly unjust unless it is obviously unfair and shocks the conscience of the court.

5. The determination of whether a sentence has resulted in manifest injustice must be decided on a case-by-case basis. The standard of review to be employed in such cases is whether the trial court has abused its discretion by imposing a sentence which is obviously unfair and shocks the conscience of the court.

M. Kristine Paredes, Asst. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Ricklin R. Pierce, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before LEWIS, P.J., ELLIOTT, J., and STEPHEN D. HILL, District Judge, Assigned.

LEWIS, Presiding Judge:

Defendant Janette G. Cramer appeals her jury conviction of involuntary manslaughter. Defendant was sentenced to a term of three to five years' incarceration and was denied probation under K.S.A.1991 Supp. 21-4618. She also appeals her sentence.

This is a case of an abused wife who terminated her marriage and any future abuse by fatally shooting her husband. Prior to the night of the shooting, defendant's life with the victim appears to have been one of abuse and pain.

Defendant and William Cramer were married in July 1987. The record indicates that William first began to beat defendant nine days prior to their wedding and that he continued to beat her on a regular basis up to the time of his death. It would serve little good to recite the details of all of the beatings inflicted by William on defendant. The record shows that there were many, that they were regular, and that they were accompanied by verbal abuse as well. Some of these beatings were so violent that defendant was hospitalized as a result. On one occasion, William picked defendant up and attempted to "hang" her on a nail protruding from a wall. The nail punctured her back and left a scar running up to her shoulder. Frequently, both parties were drinking when these violent episodes took place.

Finally, defendant sued William for divorce. She obtained a restraining order, which did not restrain William, who continued to beat and threaten her. After one of these beatings put defendant in the hospital, a friend gave her a handgun for protection. It is noted that, on the night of William's death, defendant placed the handgun in a strategic position in her house.

On the evening of William's death, he came to defendant's home with her permission. He came to discuss their divorce and brought along a supply of beer and liquor. The two parties apparently sat down at the table and began to drink and discuss the terms of their divorce. As the evening wore on, William became more angry and, finally, began to pound on the table. He started to verbally abuse defendant and stood up and stepped towards her. According to defendant, she got up and retrieved the handgun from where she had placed it. She pointed the gun at William and said, "[You're not] going to beat on me again." William apparently laughed, took one step forward, and defendant shot him in the Defendant was charged with second-degree murder. Her defense was self-defense, based on the battered woman's syndrome. After a three-day trial, the jury returned a verdict, finding her guilty of involuntary manslaughter.

chest. William was either dead on arrival at the hospital or died shortly thereafter. According to the postmortem reports, the bullet wound was not necessarily fatal but, as a result of that gunshot, William bled to death.

At her sentencing, defendant argued that to deny her probation amounted to "manifest injustice" under K.S.A.1991 Supp. 21-4618(3). After listening to defendant's arguments, the trial court denied her probation because of her use of a firearm and the provisions of K.S.A. 21-4618(1) and (2).

She appeals her conviction and sentence. After careful consideration, we affirm on both counts.

SPECIFIC INSTANCES OF PAST CONDUCT

Defendant argues that the trial court erred in admitting evidence of specific instances of past conduct between defendant and third parties. This evidence was not complimentary to defendant and may have been prejudicial. The trial court determined that, despite its potential prejudice, the evidence was admissible. We agree with that conclusion.

In order to prove her battered woman's syndrome defense, defendant introduced the expert testimony of Dr. Stephen E. Peterson, a psychiatrist at the Menninger Clinic. He testified that, in his opinion, defendant was suffering from the battered woman's syndrome. He reached this diagnosis after a two-day examination of defendant. As a result of that examination, Dr. Peterson prepared an extensive report that gave specific details about defendant's past life and experiences. A portion of this report described several instances of violent conduct between defendant and other parties.

The State of Kansas countered Dr. Peterson's testimony by introducing testimony of Dr. Alice Brill. Dr. Brill is also a psychiatrist, and she testified that, in her opinion, defendant did not suffer from the battered woman's syndrome. Dr. Brill's opinion was based in large part on the evidence of specific instances of past conduct, to which defendant objects.

Defendant's argument is that the evidence was so prejudicial that it should not have been admitted.

The State argues that the evidence was probative and admissible. It points out that much of the evidence came in as a result of the cross-examination of Dr. Peterson. Basically, the State argues that this testimony was admissible to rebut the diagnosis of the battered woman's syndrome testified to by Dr. Peterson.

Defendant is particularly aggrieved by the testimony of Melvin Fox. A recounting of his testimony will serve to illustrate the type of evidence to which defendant objects. Fox was called as a rebuttal witness by the State of Kansas. He testified that he had had a relationship of sorts with defendant. He described in graphic detail one occasion when he was in the bathroom, throwing up after a drinking spree. He testified that, while he was in this rather vulnerable state, defendant entered the bathroom wearing only steel-toed biker boots and proceeded to kick him several times.

Dr. Brill referred to the incident described by Fox in support of her opinion that defendant was not suffering from the battered woman's syndrome. Dr. Brill used other instances involving defendant and third parties in stating that defendant did not suffer from the battered woman's syndrome. Defendant insists that the testimony of Fox and the use of other instances of her past conduct were intended to prejudice the jury against her.

The admission of evidence is always subject to the discretion of the trial court. State v. Davis, 213 Kan. 54, 57, 515 P.2d 802 (1973). In order to reverse defendant's conviction, we must conclude that the trial court abused its discretion "Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.]" State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 (1991).

In this instance, we find no abuse of discretion in admitting the evidence under discussion.

Testimony concerning the specific instances complained of by defendant was elicited by the State in an effort to cast doubt upon Dr. Peterson's diagnosis of the battered woman's syndrome. On cross-examination, Dr. Peterson was cross-examined about an incident at a wedding party where defendant physically fought with another woman. Another incident concerned an altercation between defendant and a male bouncer at a tavern.

Dr. Brill, the State's expert witness, referred to these incidents as inconsistent with those characteristics associated with the battered woman's syndrome.

Defendant asserts that this case is analogous to State v. Stellwagen, 232 Kan. 744, 659 P.2d 167 (1983). We do not agree. Stellwagen concerned the rape shield act and held that a rape victim's prior sexual activity is generally inadmissible because prior sexual activity, even with the accused, does not imply consent. In the instant matter, the acts complained of are those of defendant, not the victim. The rape shield act is an attempt to "further the strong state interest in protecting the rape victim." 232 Kan. at 747, 659 P.2d 167. We see no analogy between that case and the instant matter.

Defendant argues that the court was inconsistent in its evidentiary rulings. She points out that the court refused to admit into evidence testimony regarding William's assault on a law enforcement officer. She contends this evidence should have been admitted and cites State v. Mason, 208 Kan. 39, 490 P.2d 418 (1971), as support for that contention.

Defendant misreads Mason. Mason held: "Where self-defense is an issue in a homicide case, evidence of the turbulent character of the deceased is admissible. Such evidence may consist of the general reputation of the...