State v. Deal
| Decision Date | 01 June 2001 |
| Docket Number | No. 83,276.,83,276. |
| Citation | 271 Kan. 483,23 P.3d 840 |
| Parties | STATE OF KANSAS, Appellee, v. TODD MILLER DEAL, Appellant. |
| Court | Kansas Supreme Court |
Debra J. Wilson, assistant appellant defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.
David L. Miller, county attorney, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by
This is a direct appeal by the defendant, Todd Miller Deal, from his conviction for premeditated first-degree murder. He was sentenced to life imprisonment, with no possibility of parole for 25 years.
Deal raises seven issues. The salient facts will be set forth under the individual issues.
The victim, Aubrey Phalp, was spending the night at her father's house. Her parents were divorced. Her father did not wake her in the morning, and when he attempted to wake her later in the day, he discovered the bedroom door was locked. Upon opening the door, he discovered Phalp was gone and that a bedroom window was open. A few days later, Phalp's body surfaced along the shore of Hillsdale Lake in Miami County, Kansas. Her body had a heavy tow chain wrapped around her ankles. The chain belonged to Deal. Phalp had had problems with J.R. Waters, who had beaten her and held a knife to her throat. Apparently, there were some threats made that if she went to the police, harm would occur to her.
After Phalp's body was discovered, the police interviewed various people. Deal was interviewed on August 6, 1998, the day after the body was found. Deal denied having seen Phalp recently and denied any knowledge of her disappearance. A videotape of the interview was shown to the jury, and it was allowed to take the videotape and equipment to a jury room during deliberations. Deal told the police he had heard Phalp had run away from home. He stated that he had been in Independence, Missouri, with a friend, Shaun Garrett, visiting Jesse Cook and returned home on August 3, after Phalp had disappeared. He denied being at Hillsdale Lake in the prior 2 months and denied any knowledge of Phalp's death.
Jason Cook was interviewed and stated that Deal had come to visit him on August 5 (the day the body was discovered), and Deal told Cook that "he was around when someone got seriously hurt." He did not say he had killed anyone or that anyone had been killed. In an attempt to get Deal to make incriminating statements, Cook was equipped with a body pack transmitter and met with Deal. The conversation was monitored by police and was tape-recorded. The audio tape was played for the jury. During the conversation, Cook asked Deal, "So you and Shaun seriously did kill her?" Deal replied, "Seriously, I'm not gonna answer that." Later in the conversation, Cook said to Deal, "I didn't think you'd ever be able to do something like that." Deal responded, "It's pretty evident you thought wrong." Deal then talked about leaving town and saying goodbye to Cook's brother, Jesse. The following conversation then took place:
Deal was later interviewed and stated that he had lied about where he was on the night Phalp was killed. He then told the police he was in the park smoking marijuana. He allowed the police to search his truck where they found the chain hook that went with the chain wrapped around Phalp. Seventeen days later, Deal was arrested for Phalp's murder.
K.B.I. Agent George Johnston testified that he interviewed Deal on January 11, 1999. During the interview, Deal stated that on August 2, he and Garrett were at Garrett's house, and they decided to go to Hillsdale Lake to use Garrett's parents' boat. The two went in Garrett's car, got a chain, a 30-pack of beer, and left for the lake. Deal told Johnston that they left at 9 p.m. Deal and Garrett saw Phalp walking along 87th Street in Lenexa. She wanted to go with them; they agreed and headed for the lake. Because they had taken the wrong keys, however, they could not get the boat out of the storage garage. Deal, Garrett, and Phalp decided to go to the lake and smoke marijuana. Garrett told Deal that he wanted some private time with Phalp, so she and Garrett left.
Deal told Johnston that Garrett came back about 45 minutes later and said, "We got a problem, Aubrey's dead." Deal said that Phalp was sitting in the front passenger's seat slumped over. Deal picked up her arm with his foot, raised it up, and let if fall against the side of the car. Deal told Johnston that at the time he believed that Phalp was either dead or "extremely unconscious." Garrett told Deal to help him get rid of her and threatened to harm Deal and his family. Deal and Garrett drove the car up to the pier, wrapped the chain around Phalp's neck, and pulled her out of the car by the chain. Then they pulled her to the pier's walkway, picked her up, and carried her to the end of the pier. Garrett unwrapped the chain from her neck and tossed it to Deal, who then wrapped it around her legs. Garrett lifted Phalp up as Deal wrapped the chain around her ankles. Deal and Garrett then put her up on the cement railings of the pier and dropped her over the side into the water.
Deal also told Johnston that prior to Garrett and Phalp leaving together, he had given Phalp a karate kick to her stomach because she had been harassing him. His kick caused her to double up and fall to the ground.
At trial, Cook testified that Deal told him that he had killed a girl by strangling her and had dumped her body in Hillsdale Lake. Deal also told Cook that he had wrapped chains around the victim's ankles to hold her down. Deal wanted Cook to be his alibi. Cook further stated that Deal told him that "they had killed Aubrey."
Jesse Cook also testified at trial that a few days after Phalp's body was found, Deal told him that he had strangled a girl and dumped her body in Hillsdale Lake. Deal later admitted to Agent Johnston that he had told Jesse that he had killed Phalp in the hopes that Jesse would be an alibi for Garrett and him.
Ron Hunke testified at trial that he worked with Garrett and that on Monday, August 3, 1998 (the day after the victim was killed), Garrett told Hunke, "We don't have to worry about that dumb bitch anymore."
Deal argues that the trial court erred in refusing to admit Garrett's videotaped interview.
At trial, Deal's defense was that Garrett killed Phalp without his knowledge or assistance and then forced him to help dispose of her body. Johnston testified that he interviewed Deal on January 11, 1999. Johnston testified that Deal told him that he and Garrett were driving around on August 2 and saw Phalp on 87th Street in Lenexa. Phalp went to Hillsdale Lake with Deal and Garrett. The three of them smoked marijuana and drank beer. Deal told Johnston that Phalp and Garrett wanted to be alone and left together. After about 45 minutes, Garrett returned and told Deal that Phalp was dead and insisted that Deal help get rid of the body.
In addition to Johnston's testimony, Deal offered the videotaped statement, given by Garrett on August 6, 1998, to the K.B.I. The purpose of admitting the videotape, according to Deal, was to show the of Garrett. The State objected to the videotaped statement on the grounds that it constituted hearsay. The State further advised the court of its intention to prosecute Garrett. Garrett invoked his Fifth Amendment right and was, therefore, not available for cross-examination. The trial court sustained the State's objection.
On appeal, Deal specifically argues that he hoped to show the jury that Garrett was lying about his whereabouts on the night of August 2.
The State argues that Deal failed to preserve this issue for appeal, as Deal failed to make a proffer of the videotaped testimony as required by K.S.A. 60-405. In attempting to admit the videotaped testimony, the following took place:
K.S.A. 60-405 sets forth the rules regarding the erroneous exclusion of evidence and states:
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance...
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