State v. Denney
| Decision Date | 27 October 1995 |
| Docket Number | No. 72139,72139 |
| Citation | 258 Kan. 437,905 P.2d 657 |
| Parties | STATE of Kansas, Appellee, v. Dale M.L. DENNEY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The interpretation of a statute is a question of law, upon which an appellate court's review is unlimited.
2. Where proof of a previous conviction is an essential element of a crime charged, failure to give an instruction limiting the purpose for which such conviction may be considered is not reversible error in the absence of a request for such an instruction.
3. Where the jury is made aware of the proper consideration and use of evidence of a prior conviction through an instruction relating to the prior conviction being an essential element in the proof of a weapons violation charge, the risk of prejudice is materially lessened, and the need for reversal for failure to give a limiting instruction is open to doubt.
4. No error or defect in any ruling, order, or in anything done or omitted by the court is grounds for granting a new trial or setting aside a verdict unless refusal to take such action appears inconsistent with substantial justice.
5. Although the standard of "harmless beyond a reasonable doubt" as applied to errors of a federal constitutional magnitude was recognized as more stringent than the one imposed by the statutes of Kansas, in recent years a similar standard has been applied in Kansas to errors not couched as constitutional violations.
6. Where the evidence of guilt is of such a direct and overwhelming nature that it can be said that the challenged error could not have affected the result of the trial, it is harmless beyond a reasonable doubt and reversal is not required.
7. A limiting instruction should be given when requested by the defendant in every case where prior crimes evidence is admissible for one purpose but not for another, as is mandated by K.S.A. 60-406.
8. When there is evidence upon which a conviction of a lesser included offense could be based, the district court has an affirmative duty to instruct the jury on an appropriate lesser included offense even if the defendant did not request the instruction. The evidence must be viewed in the light most favorable to the defendant, and it may be inconclusive, unsatisfactory, and weak. The instruction need not be given, however, if the evidence would not permit a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense.
9. When the only evidence that might permit a rational factfinder to find a defendant guilty of a lesser included offense is an answer to a question which appears to have been misunderstood and which must be viewed in isolation and out of context, an instruction is not required on the lesser included offense.
10. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability the result would have been different had the defendant received effective assistance.
11. The defendant has the burden of overcoming the presumption that counsel's performance was reasonable.
12. Under the facts of this case, it was not reversible error to fail to give a limiting instruction as to usage of prior crimes evidence, nor was a lesser included instruction required. Further, the accused's claims of ineffective assistance of counsel are without merit.
Stephen C. Moss and Reid T. Nelson, Assistant Appellate Defenders, and Jessica R. Kunen, Chief Appellate Defender, for appellant.
Doyle Baker, Assistant District Attorney, Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, for appellee.
Dale M.L. Denney appeals from his convictions of two counts of aggravated criminal sodomy, two counts of aggravated sexual battery, two counts of aggravated weapons violation, and one count of aggravated battery, in two separate cases consolidated for trial.
Denney claims the trial court erred in failing to give a limiting instruction and an instruction on the lesser included offense of attempted aggravated sexual battery, and that his trial counsel was ineffective.
The evidence in both cases was extensive and uncontroverted by Denney. We will briefly summarize the testimony.
The victim, A.L., testified that on July 16, 1993, she went to see Denney, a former boyfriend, to collect a $95 debt. A.L. interrupted a conversation between Denney and a female, who immediately left. Denney accused A.L. of ruining his chance for a sexual encounter.
A.L. went with Denney to his apartment after he indicated he would repay the indebtedness. But, when they entered the apartment, Denney informed A.L. he did not have the money. Denney made several unsuccessful sexual advances toward A.L., and when she tried to leave, Denney refused to allow her to do so and started beating her on the head with a closed fist. A.L. fell and Denney choked her until she blacked out.
When A.L. regained consciousness, Denney had placed a belt around her neck, which he used to pull her to the floor face down. He then proceeded to remove her clothes, rubbed his penis with Vaseline, and penetrated her anus with his penis. Denney continued to beat her on the head and stated he was going to kill her.
Denney sodomized A.L. a second time after moving her to the couch. He then walked to the kitchen, where he grabbed a knife and placed it at her throat while she was allowed to go to the bathroom.
After leaving the bathroom, Denney kept A.L. at knifepoint and continued to threaten her, her family, and her friends. Denney attempted intercourse with A.L., but discontinued doing so because she was unable to breathe.
Denney allowed A.L. to put her shorts back on and said he was going take her to the hospital. Denney continued to hold the knife to A.L.'s throat while pushing her to the floor so she could attempt to find her keys. A.L. was successful in distracting Denney, managed to unlock the apartment door, and ran screaming from the apartment.
Denney ran after A.L. and continued to beat her. A neighbor, Theresa Williams intervened, and Denney fled. Williams called the police and paramedics, and A.L. was taken to the hospital. She had multiple bruises on her face, her eyes were swollen shut, her nose was broken, and she had abrasions and scrapes on her body. The rape kit revealed no evidence of seminal material, although testimony indicated this was not necessarily indicative of whether penetration occurred.
Evidence recovered by police from Denney's apartment corroborated A.L.'s statement, although a knife fitting the sheath found on the floor and the victim's cash were never recovered. Bloodstains found on the couch cushions and A.L.'s clothing were of a type that a police chemist testified could have come from A.L.
At trial, Dr. William May, the emergency room physician who attended A.L., testified that the genital examination revealed no trauma. He also testified as to A.L.'s facial injuries revealed in photographs taken after the incident.
The victim in this case, P.D., is Denney's sister-in-law. She testified Denney had lived with her and her husband for several months in 1992 but moved out after she ordered her husband to make him leave. Approximately a week later, in October 1992, Denney returned to the house around 2:00 a.m., when P.D.'s husband was at work and she was home with her children.
After Denney was admitted, he went to the kitchen, obtained a steak knife, told P.D. he "wanted" her, and pushed her onto the bed while holding the steak knife to her throat. After undressing her, he touched her vagina with his penis, and she threw him off her. As P.D. was lying face down, Denney placed his penis inside her anus. After sodomizing P.D., Denney ejaculated on the bedroom floor.
P.D. told her husband about the attack but refrained from filing a complaint with the police after being begged not to do so by Denney's mother. P.D.'s husband drowned in June 1993, and P.D. was contacted by the police after A.L. informed them that Denney had previously confessed to his sister that he had obtained a knife and sodomized P.D.
Denney's parole officer testified Denney was released from prison in 1992 after being incarcerated for felony convictions of rape and aggravated burglary. The trial court admitted a certified journal entry of the convictions into evidence.
The jury convicted Denney on all charges. He was sentenced to a controlling term of 36 years to life in 93 CR 1343 and a term of 228 months in 93 CR 1268, to run consecutively.
Did the trial court err in failing to give an instruction limiting the use of prior crimes evidence?
To prove an essential element of the aggravated weapons violation charges (that Denney had possessed a prohibited weapon within 5 years of being convicted of or being released from imprisonment for a felony), the State introduced evidence of Denney's previous convictions for rape and aggravated burglary.
At the instructions conference, defense counsel requested the following instruction to limit the purpose for which the jury could consider the prior crimes evidence:
The trial court summarily declined to give the requested instruction, stating: "Case law is very clear that it's not necessary."
Denney argues the trial court's failure to give the requested limiting instruction allowed the jury to infer he had the propensity to commit crimes. He strongly contends the error was highly prejudicial because the prior crimes were similar to the crimes for which he was on trial and, after a proper request was made, it was mandatory for the jury to be instructed that the evidence of the...
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...doubt and did not affect the substantial rights of the defendant." (Emphasis added.) 203 Kan. at 895, 457 P.2d 44. In State v. Denney, 258 Kan. 437, 905 P.2d 657 (1995), this court noted K.S.A. 60-261 and the numerous cases applying the statutory test of whether the substantial rights of a ......
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...render judgment “ ‘without regard to technical errors and irregularities in the proceedings of the trial court.’ ” State v. Denney, 258 Kan. 437, 444, 905 P.2d 657 (1995) (quoting K.S.A. 60–2105). We are also disinclined to inquire into the mental processes of a factfinder, so long as the c......
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