State v. Cromwell, 67881

• Decision Date: 30 July 1993
• Docket Number: No. 67881,67881
• Citation: 253 Kan. 495,856 P.2d 1299
• Parties: STATE of Kansas, Appellee, v. James CROMWELL, Appellant.
• Court: Kansas Supreme Court

Page 1299

856 P.2d 1299

253 Kan. 495

STATE of Kansas, Appellee, v. James CROMWELL, Appellant.

No. 67881.

Supreme Court of Kansas.

July 30, 1993.

Syllabus by the Court

1. The Sixth Amendment right to counsel includes the right to effective assistance of counsel and the right to conduct one's own defense.

2. An indigent criminal defendant is not entitled to counsel of his or her own choice.

3. Generally, the decision whether to appoint new counsel is a matter left to the trial court's discretion.

4. Irreconcilable conflict between a defendant and his attorney may, under certain circumstances, require the appointment of substitute counsel in order to protect a defendant's Sixth Amendment right to effective assistance of counsel.

5. Although a defendant has a right to self-representation, that right is unqualified only if it is asserted before trial. If this right is asserted after trial commences, a decision to grant or deny self-representation lies within the sound discretion of the trial court.

6. In deciding whether to grant or deny self-representation to a criminal defendant after trial has commenced, the trial court should balance the alleged prejudice 7. A criminal defendant has a constitutional right to be present at every stage of trial. A defendant can waive that right, however, and a defendant's voluntary absence after trial has commenced may be deemed a waiver of the right to be present.

to the defendant with any disruption of the proceedings, inconvenience and delay, and possible confusion of the jury; the court should also consider the reason for the request and the quality of counsel's representation.

8. Where separate but similar criminal charges are tried together, evidence material to each crime is admissible independently of K.S.A. 60-455. Thus, a limiting instruction generally is not required.

9. Two or more crimes may be charged in the same complaint in a separate count for each crime if the crimes charged are of the same or similar character. K.S.A. 22-3202(1).

10. Whether a defendant will be tried on all separate charges in a single trial is a matter within the discretion of the trial court, and its decision will not be disturbed on appeal unless there is a clear showing of abuse of discretion.

11. Appellate courts have declined to find error when a trial court refused to sever charges that were sufficiently similar such that evidence of one would be admissible under K.S.A. 60-455 in the trial of the other and no prejudice would result to the defendant.

12. Death penalty cases are of limited precedential value in evaluating the propriety of factors in hard 40 sentence enhancement cases.

13. K.S.A.1992 Supp. 21-4625(3) and (5) are not expressly limited to cases involving murder for hire or those in which the victim was about to apprehend the defendant.

14. K.S.A.1992 Supp. 21-4625(6), which identifies as an aggravating factor that the defendant committed the crime in an especially heinous, atrocious, or cruel manner, is not unconstitutionally vague.

Rebecca E. Woodman, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief, for appellant.

Debra S. Byrd, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief, for appellee.

DAVIS, Justice:

Defendant James Cromwell appeals his jury conviction and his sentence for two counts of premeditated first-degree murder, two counts of aggravated robbery, two counts of rape, one count of aggravated criminal sodomy, and one count of theft.

Defendant contends: (1) he was deprived of his constitutional right to effective assistance of counsel or, in the alternative, the right to conduct his own defense; (2) he was denied his right to be present during trial; (3) the court erred in allowing the jury to consider evidence about the 1987 crimes to prove his identity with respect to the 1991 crimes; (4) the court abused its discretion in denying defendant's motion to sever; and (5) the court erred in accepting the jury's recommendation of a mandatory 40-year sentence. We determine that no reversible error of law appears and affirm.

The charges against defendant arise out of the deaths of two women, Ernestine Hoist, age 60, and Isabell Moore, age 85, and the theft of a car. Ms. Hoist's body was discovered in her apartment after she did not show up for work on February 3, 1987. There were no signs of forced entry into her apartment, but there was evidence of a struggle. Ms. Hoist's billfold and checkbook were missing. She died as a result of ligature and manual strangulation. The police chemist detected seminal material in a vaginal swab taken from Ms. Hoist. A population geneticist testified In January 1987, defendant also worked as a painter and laborer for Earl Griffith. On January 31, 1987, Griffith bought defendant some groceries and loaned defendant his yellow 1973 Volkswagen so that defendant could take the groceries home. Defendant never returned the car, and he admitted he left Wichita in a yellow 1973 Volkswagen sometime in February 1987.

that DNA extracted from seminal material found in the vaginal swab from Ms. Hoist matched the defendant's DNA. The defendant worked with Ms. Hoist at the Salvation Army.

Defendant returned to Wichita in 1990 and again worked and lived at the Salvation Army. In February 1991, he was asked to leave the Salvation Army because of his drinking. On or about Friday, February 22, 1991, defendant went to stay with a friend, Don Griffin, who had an apartment directly below Isabell Moore's apartment. Isabell Moore helped the apartment owners by collecting rent and letting repair people into the apartments. Griffin introduced defendant to Ms. Moore; defendant subsequently went to Ms. Moore's apartment on several occasions with Griffin or alone to use the telephone or to ask for money or food. Griffin and another witness testified that defendant left Griffin's apartment early in the evening on Monday, February 25, 1991, and that he did not return until about 1:30 or 2:00 a.m., Wednesday, February 27. They also testified that between 9:00 and 10:00 p.m. on February 25 or 26, they heard a lot of noise in Ms. Moore's apartment.

After unsuccessful attempts to contact Isabell Moore on February 26 and the morning of February 27, 1991, the owner of Ms. Moore's apartment building discovered her body in her apartment. There were no signs of forced entry into the apartment, but there was evidence of a struggle. Ms. Moore's purse was missing. She died as the result of manual and ligature strangulation, but she also had numerous bruises and abrasions on her body and a postmortem stab wound in her upper left chest. The presence of undigested food in her stomach, together with her habit of eating at 6:00 p.m., suggested that Ms. Moore died between 9:00 and 10:00 p.m. There was evidence of vaginal and anal penetration, and evidence of seminal material in the vaginal swabs and pubic hair from Ms. Moore's body. The police chemist testified that a hair found at the scene was "consistent with" defendant's hair and could have come from defendant. There was not sufficient DNA material on the vaginal swabs to complete a DNA analysis.

Defendant was charged with two counts of first-degree murder, two counts of aggravated robbery, two counts of rape, one count of aggravated criminal sodomy, and one count of felony theft. The court denied defendant's motion to sever the charges arising out of the Hoist homicide from those arising out of the Moore homicide. The jury found defendant guilty of all counts and found that aggravating factors existed in the death of Ms. Moore to warrant imposition of the mandatory 40-year sentence. See K.S.A. 1992 Supp. 21-4624; K.S.A.1992 Supp. 21-4625; K.S.A.1992 Supp. 21-4628.

The court entered judgment against the defendant on all counts and found there was sufficient evidence to support the jury's recommendation of the mandatory 40-year sentence. The court sentenced the defendant to life pursuant to K.S.A. 21-4501(a) for the premeditated murder of Ernestine Hoist; to terms of 15 years to life for each of the counts of rape, aggravated robbery, and aggravated criminal sodomy pursuant to 21-4501(b); to a term of one to five years for the theft count pursuant to 21-4501(e), and to a term of life without parole for 40 years pursuant to 21-4501(a) and K.S.A.1992 Supp. 21-4628 for the premeditated murder of Isabell Moore.

EFFECTIVE ASSISTANCE OF COUNSEL

Defendant made known his dissatisfaction with appointed counsel early in the At the pretrial hearing on November 15, 1991, Judge Owens asked defendant if he had any more complaints other than those identified in the letter to Judge Cranmer. Defendant expressed additional specific complaints. Although defense counsel explained the circumstances surrounding many of defendant's specific complaints, it was clear that a serious communication problem existed. Defendant repeatedly expressed his distrust of his attorney and had refused to see her on several occasions immediately before trial. He asked the court to appoint substitute counsel. Defense counsel stated that she wanted to represent defendant and that she was prepared for trial.

proceedings. The information was filed in June 1991, and defendant was represented by counsel at the preliminary hearing in July. In August, defendant wrote twice to the ACLU, expressing dissatisfaction with his attorney. In October, he expressed his written dissatisfaction to the Wichita Bar Association, the Office of the Disciplinary Administrator, and Judge Cranmer, who had presided over the preliminary hearing.

The Sixth Amendment right to counsel includes the right to effective assistance of counsel and the right to conduct one's own defense. See Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975) (self-representation); Powell v. Alabama, 287...