State v. Drach, 80,691.

• Decision Date: 10 March 2000
• Docket Number: No. 80,691.,80,691.
• Citation: 268 Kan. 636,1 P.3d 864
• Parties: STATE OF KANSAS, Appellee, v. ROGER DRACH, Appellant.
• Court: Kansas Supreme Court

268 Kan. 636

1 P.3d 864

STATE OF KANSAS, Appellee, v. ROGER DRACH, Appellant.

No. 80,691.

Supreme Court of Kansas.

Opinion filed March 10, 2000.

Jack Focht, of Foulston & Siefkin L.L.P., of Wichita, argued the cause, and Richard L. Marquez, of Lindner & Marquez, of Garden City, was with him on the brief for appellant.

Lois K. Malin, assistant county attorney, argued the cause, and John P. Wheeler, Jr., county attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.:

This is a direct appeal by the defendant, Roger Drach, from his convictions for first-degree murder, aggravated battery, and criminal use of weapons. Drach's wife Deanne was the victim. Drach was sentenced to a minimum term of 25 years in prison.

Drach appeals, raising five issues. Drach argues the trial court erred when (1) it would not allow a board-certified psychiatrist to testify that a note found in the house was a suicide note; (2) it failed to find the assistant county attorney had a conflict of interest; (3) it allowed Karen Althaus to testify as a rebuttal witness for the State; (4) it admitted testimony of Drach's prior bad acts; and (5) it violated the Confrontation Clause of the United States Constitution by admitting res gestae evidence.

Deanne died on August 19, 1994, as a result of a gunshot wound to the chest. This case was not commenced until nearly 2 years after her death. The main issue at trial was whether Deanne had committed suicide or had been murdered by Drach.

Drach claimed Deanne committed suicide, that he was not in the room when she was shot, and that he found her on the bed after he heard the shot. The State's expert witnesses testified the wound could not have been self-inflicted. Drach's expert witnesses testified they were 99.5% certain the wound was self-inflicted. Drach does not challenge the sufficiency of the evidence. Thus, we need not review the evidence. We will set forth the facts of this case, however, as necessary in discussing the issues.

We take time to comment that Drach's statement of facts is not keyed to the record in many instances and when keyed it is a general cite such as pages 8-107, 149-180, 56-106, 3-39, 20-74, 5-123, 6-164, etc. By rule, we are allowed to assume there is no evidence in the record to support that part of the case that is not properly keyed to the record. Supreme Court Rule 6.02(d) (1999 Kan. Ct. R. Annot. 33).

After review of the extensive record (18 volumes, the longest of which is 291 pages), two relevant facts emerged: Deanne had an affair 28 years before her death, and she had been abused since her husband discovered the affair shortly after it occurred.

At trial, there was much hearsay evidence of abuse suffered throughout the 34-year-marriage, none of which is pinned down by time or date.

When Deanne's body was examined at the scene, she was on the bed in the southeast corner of the room. The gun that was used to shoot her was in the northwest corner of the room. The gun was a derringer. Both parties' experts testified the bullet had been fired from the top barrel. Yet, the top barrel had a live round with a dented primer in it and an empty cartridge in the bottom chamber.

Both old and new blood stains consistent with Deanne's blood were found throughout the house, in Deanne's purse, in her clothing, and in Drach's car, which would indicate Deanne had been abused for a long period of time.

When Deanne's body was examined, she was lying in fresh blood but had dried blood on her arms and back. She had a 2.5 centimeter laceration on the back of her head that went to the bone, two black eyes, a laceration above the right eye, and bruises all over her body. X-rays revealed new fractures of the 9th, 10th, and 11th ribs.

Two autopsies revealed old fractures of the 7th, 10th, 11th, and 12th ribs on the right side; a healing fracture of the left ulna; a fracture of the right arm that had recently been refractured; and a gunshot wound to the left arm. Drach gave accounts of what happened that did not appear to be accurate. For example, in discussing a broken window, Drach said he had to break into the house because he did not have his key. Law enforcement officers testified the window was broken from the inside out. Drach testified that Deanne had facial bruises when he checked her out of the hospital. Three witnesses testified, however, that Deanne had no visible marks on her when they last saw her, including the discharging nurse at the hospital.

Drach also said he thought Deanne was drinking again when she died. The autopsy report showed her blood alcohol concentration was .000. Drach also told officers Deanne got her gun out of her car the day she was shot. Her car was in storage at Dodge City at all pertinent times and had been for some time.

I. WRITING

During trial, Drach sought to place Dr. Tim McBath, a board-certified psychiatrist, on the stand to give his opinion that a writing found on the dryer in the Drachs' home after Deanne's death was a suicide note. Outside the presence of the jury, the trial judge heard testimony offered by Drach to determine if Dr. McBath's testimony was admissible under the Frye test.

Dr. McBath testified he was frequently called upon to examine writings to determine if they were suicide notes (if the writer says he or she is going to commit suicide, it is classified as a suicide note), and to determine if the note is a cry for help or a person who is planning to commit suicide. In about one-half of the writings, Dr. McBath does not have the opportunity tq examine or talk to the author of the writing. He also had reviewed hospital and medical records where Deanne had expressed a wish for death and had suicidal thoughts.

The trial judge thought it was a Frye issue and made a preliminary ruling that Drach had not shown a basis for his opinion as generally acceptable as reliable within the expert's particular scientific field. The trial judge was influenced by the fact that Dr. McBath stated that he had never testified in court as to his opinion whether a writing was a suicide note, whether the author of the writing was serious or merely calling for help, and he did not know of any doctor who had.

The trial judge then held that Dr. McBath's testimony would not be admitted in the absence of some evidence establishing that "scientific evidence is accepted in his area, that it has been admissible and received in other courts." The trial judge left the door open for additional evidence or citations. None were forthcoming.

Numerous courts have ruled on suicide notes and suicide threats. In Powell v. Commonwealth of Kentucky, 554 S.W.2d 386 (Ky. 1977), the court held:

"When suicide is the theory of defense the decedent's previous threats or attempts to kill himself are admissible for the same reason. As this court said in Marcum v. Commonwealth, 308 Ky. 740, 215 S.W.2d 846, 847 (1948), `the great weight of authority is to the effect that in prosecutions for homicide the deceased's declarations or threats indicating a suicidal disposition, if made within a reasonable time before his death, are not within the hearsay rule and are admissible unless the facts preclude the possibility of suicide.' See Wigmore on Evidence (2d ed.), § 143, and annotation at 83 A.L.R. 434."

See IA Wigmore on Evidence §§ 143 and 144 (2d ed. 1983); Ott v. State, 160 Ala. 29, 49 So. 810 (1909); State v. Kelly, 77 Conn. 266, 58 A. 705 (1904); Nordgren v. People, 211 Ill. 425, 71 N.E. 1042 (1904); Hall v. State, 132 Ind. 317, 31 N.E. 536 (1892); State v. Meyer, 180 Iowa 210, 163 N.W. 244 (1917); State v. Beeson, 155 Iowa, 355, 136 N.W. 317 (1912); State v. Cater, 100 Iowa, 501, 69 N.W. 880 (1897); Epperson v. Commonwealth, 227 Ky. 404, 13 S.W.2d 247 (1929); State v. Ilgenfritz, 263 Mo. 615, 173 S.W. 1041 (1915); Sharp v. State, 115 Neb. 737, 214 N.W. 643 (1927); People v. Gehmele, 1 Sheld. 251 (N.Y. 1871); State v. Prytle, 191 N.C. 698, 132 S.E. 785 (1926); Blackburn v. State, 23 Ohio St. 146 (1872); Crow v. State, 89 Tex. Crim. 149, 230 S.W. 148 (1921).

A clear majority and nearly all cited jurisdictions hold that evidence of suicide is admissible as tending to show the decedent's state of mind. Although these cases do not address the exact issue raised in the present case, they do indicate that evidence of a suicide theory can be admitted and that the jury is capable of determining its validity and attaching the proper weight. There are also courts which have allowed testimony from experts who have read the suicide note and determined the "insanity" of the decedent in an insurance context. See Garmon v. General American Life Ins. Co., 624 S.W.2d 42, 45-46 (Mo. App. 1981) (affirming trial court's admission of testimony by expert who determined based upon a reading of the suicide note that decedent was insane at time of his death); Friedeman v. State, 215 Neb. 413, 339 N.W.2d 67 (1983) (holding expert could testify as to decedent's state of mind after examining language used in suicide note); and Brooks v. Travelers Insurance Company, 515 S.W.2d 821, 823-24 (Mo. App. 1974) (holding expert could testify that decedent was sane at time he wrote suicide note and took his life).

Experts can be used to testify whether a decedent committed suicide if they testify regarding whether a wound is self-inflicted. These types of cases are abundant. See, e.g., People v. Cole, 47 Cal. 2d 99, 301 P.2d 854 (1956) (allowing expert pathologist to testify whether victim shot herself after performing an autopsy on her, while noting that a number of jurisdictions allow evidence as to whether a wound could have been self-inflicted); State v. Mattatall, 603 A.2d 1098 (R.I. 1992) (holding trial court did not err when it admitted testimony of assistant medical examiner who stated that, based on autopsy and investigation of scene of death, decedent died by act of homicide and not...