State v. Deal

• Decision Date: 01 May 2009
• Docket Number: No. 98,952.,No. 98,292.,98,292.,98,952.
• Citation: 206 P.3d 529
• Parties: STATE of Kansas, Appellee, v. Dana Wayne DEAL, Appellant.
• Court: Kansas Court of Appeals

206 P.3d 529

STATE of Kansas, Appellee, v. Dana Wayne DEAL, Appellant.

No. 98,292.

No. 98,952.

Court of Appeals of Kansas.

May 1, 2009.

Lydia Krebs, of Kansas Appellate Defender Office, for appellant.

James R. Spring, deputy county attorney, Christopher E. Smith, county attorney, and Stephen N. Six, attorney general, for appellee.

Before GREENE, P.J., GREEN and LEBEN, JJ.

GREEN, J.

Dana Wayne Deal appeals from his jury trial conviction and sentence for one count of second-degree murder in violation of K.S.A. 21-3402(b). Deal first argues that there was insufficient evidence to convict him of unintentional second-degree murder. During the oral arguments made by the parties before this court, the sufficiency of the evidence issue raised an ancillary question: If this court finds that the State failed to present sufficient evidence to sustain a conviction for unintentional second-degree murder but finds sufficient evidence in the record to support a conviction for voluntary manslaughter, could this court remand for resentencing on voluntary manslaughter? We asked both parties to address this question. Both Deal and the State concluded in their letters, under Supreme Court Rule 6.09(b) (2008 Kan. Ct. R. Annot. 47), that if we found insufficient evidence for the jury to convict Deal of unintentional second-degree murder, we could remand to the trial court for resentencing on the lesser included offense of voluntary manslaughter.

The State, however, still maintained in its letter of additional authority that there was sufficient evidence for a jury to conclude that Deal's actions were reckless and to convict him of unintentional second-degree murder. We agree with the State. The evidence in this case established that Deal killed the victim while beating him with a tire tool with the intent to severely injure him. When reviewing all of the evidence in the light most favorable to the State, we are convinced that the jury could have found beyond a reasonable doubt that Deal recklessly killed the victim under circumstances manifesting extreme indifference to the value of human life. As a result, there was sufficient evidence to convict Deal of unintentional second-degree murder under K.S.A. 21-3402(b). Because we have determined, based on the foregoing analysis, that there was sufficient evidence for the jury to convict Deal of unintentional second-degree murder, we need not further address the arguments made by Deal and the State in their letters of additional authority.

In addition, Deals asserts the following arguments on appeal: that the trial court erred in instructing the jury on "no duty to retreat"; that the trial court erred in admitting prior crimes evidence; that the trial court erred in denying him a continuance on his motions for a new trial; that the trial court violated his constitutional rights by sentencing him to the aggravated sentence in the applicable sentencing grid box; and that the trial court violated his constitutional rights in using his criminal history to increase his sentence. Finding no reversible error, we affirm.

Deal's conviction in this case was based on events that occurred on the night of July 8, 2005, and the early morning of July 9, 2005. A little after 11 p.m. on July 8, 2005, Ric Montoya knocked on Karla Halstead's door and asked if Donnie Irving was there. Halstead explained to Montoya that Irving did not live there. Irving actually lived next door to Halstead. Nevertheless, Halstead noticed that Montoya was intoxicated and was unable to understand what she was telling him. Halstead eventually closed the door and left Montoya standing on her front porch.

Around midnight, Halstead looked out of her kitchen window and saw Montoya and another man wearing dark clothes coming out of the side door of Irving's house. Although Halstead knew Montoya, she did not recognize the other man. Halstead saw the unidentified man walk across the street and throw an object over a 10- to 12-foot dike on the north side of the street. Halstead then saw the unidentified man and Montoya get into a white pickup truck and drive away with the headlights off.

At around 12:43 a.m., a woman called the police and stated that she had just been inside Irving's house and had seen him on the floor. When Officer Gary Bortz arrived at Irving's house, the side door was open. Bortz went inside and saw Irving lying on the floor. Irving was unresponsive, and it appeared that he had lost a large amount of blood. When emergency medical services personnel arrived, they declared Irving to be in very critical condition and transported him to the hospital. Irving was later declared dead.

Officer Kurt Weber, who was helping with the investigation of Irving's homicide, learned that Montoya had been with Deal around the time the incident occurred. When an officer later contacted Deal, Deal agreed to come into the police station to talk with police. Weber and another officer interviewed Deal on the afternoon of July 9, 2005. During the first part of his interview, Deal denied being at Irving's house on the night in question. Nevertheless, after a break in the interview, the officers confronted Deal with the fact that his truck had been seen at Irving's house, that a neighbor had identified Montoya, and that they knew he had been with Montoya that night. Deal then admitted that he had been at Irving's house with Montoya.

Deal told the officers that while he and Montoya were driving around on the night of July 8, 2005, Montoya told him about an incident that occurred between Deal's girlfriend, Michelle Morris, and Irving. Morris had alleged that Irving had kept her at his residence for 3 days during which time Irving had drugged her and had sexually abused her. Deal said that he wanted to get Irving's side of the story, and he and Montoya drove to Irving's house. In his written statement, however, Deal wrote that Montoya had said, "[L]et's go over there and tell him to cool his shit."

According to Deal, Montoya was drunk and initially went to the wrong house. Deal knocked on Irving's door. When Irving answered the door, Deal confronted Irving about the alleged incident with Morris. Deal and Irving argued, and Irving told Deal to "get the fuck out" of his house. Deal told the officers that at that point, Irving picked up a tire tool, which was a metal bar, and swung it at him twice. According to Deal, he was able to block the blows with his arms. Deal pointed to the area on his arms where he blocked Irving's blows, but Weber did not see any injuries, scrapes, or red marks.

Deal told the officers that he kicked Irving in the groin and was able to get the tire tool away from Irving. Deal stated that he struck Irving twice with the tire tool: once in the head and once in the left shoulder area. In his written statement, however, Deal indicated that he struck Irving once in the front right area of his head and another time in his right head and neck area. During his interview, Deal further stated that when Irving fell to the floor, he kicked him "in the ass." According to Deal, Montoya came into the room while he was kicking Irving. Deal stated that Montoya "poked and sliced" at Irving with a fillet knife that belonged to Deal. Deal normally kept the fillet knife above the sun visor in his truck, and Montoya had the knife when he came into Irving's house. Montoya also kicked Irving several times.

Deal told the officers that when he and Montoya tried to leave Irving's house, the front door would not open. Montoya then kicked open the side door, and he and Deal left Irving's house. According to Deal, Montoya handed him the knife he had used on Irving. Deal threw the knife and tire tool over the dike to the north of Irving's house. Deal admitted that when he and Montoya drove away from Irving's house, he did not turn on his headlights until he got down the street.

Deal told the officers that he knew that Irving was hurt but that he did not mean to kill him. Deal stated that no matter what Irving had done, Irving did not deserve to die. A tire tool, which was a bar approximately 18 to 20 inches long, and a fillet knife were later found on the north side of the dike near Irving's house. In addition, officers found a variety of tools, including tire-changing and jack equipment, in Deal's truck.

On July 10, 2005, Deal agreed to do a "walk-through" interview at Irving's house. Once during the interview, Deal referred to the metal bar used during the incident as "my bar." Deal told the officers that his emotions got out of hand when Irving showed disrespect towards his girlfriend. Deal stated that he was not thinking during the incident, that he felt he was defending himself when he hit Irving the first time, and that he struck out of anger when he hit Irving the second time. Deal told the officers that he knew that Irving carried knives and guns and that he believed that Irving might have kept a gun or knife in the corner of the room. During the "walk-through" interview, one of the officers noticed a small red mark on Deal's forearm. Deal flinched when the officer touched it.

Deal was again interviewed on July 11, 2005, at the sheriff's department. During that interview, Deal mentioned that Irving had shown him a squirt gun. On February 15, 2006, a videotaped deposition was taken of Deal. During the deposition, Deal went into great detail about a .38 caliber gun that Irving possessed. Moreover, Deal described a modified paintball gun that Irving owned that shot out steel bullets. This was the first time that Deal had mentioned the .38 caliber gun or the modified paintball gun.

Dr. Lawrence Czarnecki conducted the autopsy on Irving's body. Czarnecki testified that Irving had blunt force injuries to the right and left side of his head; to his chest, abdomen, and shoulder area; and to his legs. According to Czarnecki, Irving sustained a depressed fracture to his head and Irving's skull had been pushed into his brain....