State v. Diggs

• Decision Date: 26 October 2001
• Docket Number: No. 83,924.,83,924.
• Citation: 34 P.3d 63,272 Kan. 349
• Parties: STATE OF KANSAS, Appellee, v. GYOLA L. DIGGS, Appellant.
• Court: Kansas Supreme Court

272 Kan. 349

34 P.3d 63

STATE OF KANSAS, Appellee, v. GYOLA L. DIGGS, Appellant.

No. 83,924.

Supreme Court of Kansas.

Opinion filed October 26, 2001.

Mary Curtis, assistant appellate defender, argued the cause, and Jennifer C. Roth, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were on the brief for appellant.

Elizabeth L. Reimer, assistant attorney general, argued the cause, and Stephen D. Maxwell, assistant attorney general, and Carla J. Stovall, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

SIX, J.:

Gyola Diggs appeals her conviction for the first-degree premeditated murder, K.S.A. 21-3401(a), of her husband Brian Diggs. Our jurisdiction is under K.S.A. 22-3601(b)(1) (a conviction resulting in a life sentence receives automatic review by this court).

We consider whether the district court erred: (1) by denying Diggs' motion for a new trial, (2) by granting the State's motion in limine, (3) by allowing an emergency medical technician (EMT) volunteer to testify on how long the victim had been dead, and (4) in failing to give a note-taking instruction to the jury.

Diggs also claims error because of: (a) a denial of effective assistance of counsel, (b) prosecutorial misconduct, and (c) cumulative error.

Finding no reversible error, we affirm.

FACTS

Defendant Gyola Diggs and her husband Brian lived with their 3 children in Logan, Kansas. Diggs worked as a housekeeper at a nursing home. On the morning of July 30, 1997, she bought supplies for baking cakes, talked with Brian, and baked cakes for almost 4 hours. Brian ate cereal for dinner while he watched television and went to bed around 8:30 p.m. Diggs went to bed around 10:30 p.m. The children spent the night with relatives.

Diggs called 911 at approximately 12:30 a.m., reporting that someone had broken into the house and shot her husband. She testified that after she had fallen asleep, a noise woke her up. She thought one of the children was coming downstairs to the master bedroom. She looked for her sweat pants and glasses and then realized that the children were not home. She said she heard another noise near the bedroom doorway, but she did not see anyone there. She panicked, hid on the floor by the side of the bed, and covered her head with her arms. She heard two loud shots in the bedroom. Then, she heard what might have been footsteps on the wooden floor. She put on her glasses and turned on the light. Brian, who was lying in bed, had been shot in the back of the head. Diggs turned off the light and backed out of the bedroom. Thinking she was going to be sick, she ran to the bathroom. Then, she wandered around, turned on the porch lights, and observed that the exterior door off the dining room was open. Although the door was normally unlocked, Diggs testified the door was never left open, so she realized that she might be in danger.

The EMTs arrived within 10 minutes of the 911 call. Diggs came out of her house twice as the EMTs stood in her front yard. She said nothing to them. She testified that she watched the EMTs from her kitchen window, "wondering why they weren't coming in." Cathy States, an EMT, followed Diggs inside. States noticed that a fresh pot of coffee was brewing and that the pot was already half full. According to Diggs, she had prepared the coffee before she went to bed, so she simply must have turned on the coffee maker.

Brian was found nude on the bed in the master bedroom. He had two gunshot wounds in the back of his head. States observed that Brian's fingers were stiff. She determined that lividity and rigor mortis had begun to set in. States concluded that Brian had been there for at least 15-20 minutes. The blood on the sheets was dark and starting to dry, and the blood pattern on Brian's back was dry. EMT Robert Noone observed that the blood coming from Brian's nose and mouth was thick and coagulated. Noone also noticed that Brian's hands were stiff and determined that rigor mortis had set in. Diggs told police that she called 911 after the shots were fired and that she was still on the phone when the EMTs arrived just minutes later.

The murder weapon, Brian's .357 magnum, was found in the back of Brian's pickup truck that was parked at the house. Officers found the gun holster on the porch. Diggs said she and Brian were the only people who handled the gun, except for 1 or 2 occasions when her brother used it for target practice. According to Brian's brother, Diggs claimed "she was a better shot than Brian." Brian kept his gun in a box stored in a drawer under their waterbed. Occasionally he left the gun in the glove compartment of his pickup truck or in the kitchen. The Kansas Bureau of Investigation (KBI) investigated the murder. There was neither evidence of a forced entry nor of any intruder. Forensic pathologist Donald Pojman testified that the gun would have been fired within 2 feet of the victim's head. In 1993, Diggs and the children moved to Logan, Kansas, after the couple separated while living in Colorado. The couple reconciled shortly after the move. Diggs was hospitalized in 1994 after attempting suicide. Several months later, she started attending counseling sessions at a mental health center. She testified that by November 1995, she was "at wits' end." She said she and Brian had the worst argument of their marriage, during which Brian accused her of cheating on him. She said Brian was abusing his prescribed codeine and mixing it with alcohol. Brian taunted her to kill him. Diggs responded, "If it happens, it won't be by my hands because you are doing a good enough job yourself."

A co-worker, Georgia Merklein, testified that Diggs told her the details of a plan to kill Brian. The plan included four steps: (1) making sure the children were at her mother's house, (2) having sex with him, (3) feeding Brian a good meal, and (4) overdosing him on insulin. Diggs also discussed killing Brian with co-worker Archie Dooley. She admitted telling Merklein, "[I]f he [Brian] doesn't stop, I'm going to kill him," but she said that Merklein suggested using insulin so that Diggs would not get caught.

Merklein reported Diggs' threat to the mental health center. Diggs' counselor confronted Diggs with the reported plan to kill Brian. Diggs did not deny making the plan but said "it had all changed now." The counselor and Diggs talked about alternatives, such as divorce and getting Brian professional help. Several days later at work, Merklein found notes from Diggs which suggested that Diggs did not want Merklein to tell anyone of their conversations about killing Brian.

Diggs had Brian committed to Larned State Hospital in April of 1996. She filed for a divorce in May. After receiving treatment at Larned and attending joint counseling sessions, Diggs and Brian reconciled. In March 1997, Diggs told Brian's stepmother that sometimes she got so mad at Brian that "she could just kill him." Brian's brother and father testified that Brian was "doing pretty good" and "feeling better than he had for a long time."

On July 30, 1997, Diggs' brother-in-law, James Gustafson, visited the Diggs' house, so that Brian could work on James' car. Diggs could not think of a time that James had previously been to their home in Logan. She testified that James and Brian "hated each other" because Brian owed James around $800. James testified that several years ago, he once talked to Brian about Brian's mistreatment of Diggs and threatened to "beat him like a fly" and "keep [him] in [his] own house," like Brian had allegedly done to Diggs. James said that about 2 months before Brian's death, he apologized to Brian, and they became friends.

The KBI's investigation discovered only Brian's latent fingerprint at the scene. No blood was found on Brian's clothing or on the gun.

DISCUSSION

We first take up Diggs' claim that the district court erred by denying her motion for a new trial. She contends that her rights to a fair trial and due process were violated by the State's failure to disclose an alleged agreement between the State and Archie Dooley, a State's witness, in exchange for Dooley's testimony. Our standard of review is abuse of discretion. See State v. Franklin, 264 Kan. 496, 498, 958 P.2d 611 (1998). Diggs filed a pretrial motion in which she requested all exculpatory information. Diggs correctly observes that evidence of an agreement with the State to recommend leniency in the sentencing of a prosecution witness in exchange for the witness' testimony would be the type of evidence that must be revealed to a defendant. See State v. Wilkins, 269 Kan. 39, 42, 5 P.3d 520 (2000). If there was a deal between Dooley and the State, there is no question but that the evidence would be exculpatory. See State v. Aikins, 261 Kan. 346, 382, 932 P.2d 408 (1997). However, Diggs fails to show that Dooley made a deal with the State before he testified. A brief explanation of how the alleged deal developed is necessary. At a pretrial conference on December 15, 1998, the State raised the issue of a conflict of interest between defense counsel David O. Baumgartner and Diggs. Baumgartner had also represented Archie Dooley. The prosecutor told the court that Dooley was in prison. The State filed a motion in limine to exclude reference to Dooley's convictions for sex crimes and his status as a prisoner. It appears that the motion was granted, since this evidence was not admitted at trial. About 3 weeks after Diggs' trial, Dooley wrote a letter to the prosecutor saying in part:

"Please be advised, that I am writing you about an agreement that we made regarding my testimony on the murder of Brian Diggs."

The prosecutor replied, saying, "Contrary to your letter, no promises of any kind were made to you in exchange for your testimony. You were specifically advised that no such promises were made. I have no knowledge of any promise or agreement with you in exchange for you...