State v. Drennan

• Decision Date: 17 December 2004
• Docket Number: No. 90,954.,90,954.
• Citation: 101 P.3d 1218,278 Kan. 704
• Parties: STATE OF KANSAS, Appellee, v. THOMAS J. DRENNAN, JR., Appellant.
• Court: Kansas Supreme Court

278 Kan. 704

101 P.3d 1218

STATE OF KANSAS, Appellee, v. THOMAS J. DRENNAN, JR., Appellant.

No. 90,954.

Supreme Court of Kansas.

Opinion filed December 17, 2004.

Cory D. Riddle, assistant appellate defender, argued the cause and was on the brief for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion was delivered by

LUCKERT, J.:

A jury convicted Thomas J. Drennan, Jr., of the first-degree murder of his girlfriend. The trial court sentenced Drennan to a hard 50 life sentence. Drennan appeals his conviction and sentence, arguing the trial court erred in: (1) not giving instructions on lesser included offenses of reckless second-degree murder, voluntary manslaughter, and involuntary manslaughter; (2) admitting evidence of prior bad acts; (3) not suppressing evidence obtained after he was handcuffed, including his statements made before Miranda warnings, and evidence obtained after a warrantless entry into a home to check the welfare of a possible victim; (4) denying Batson challenges; and (5) imposing a hard 50 sentence.

Facts

At about 2:30 a.m. on August 19, 2002, Jason Levine was awakened by loud banging noises outside his house. Levine saw his neighbor's boyfriend, Thomas Drennan, outside and confronted him, asking him what was going on. Drennan told Levine to mind his own business and a verbal altercation ensued. While the men were arguing, Levine saw his neighbor, Shelbree Wilson, come out of her house. Shelbree told Drennan to "shut up and get back inside." Drennan then grabbed Shelbree by the shoulder and neck and pushed her back into the house. Levine heard Shelbree scream, heard "a little bit of a ruckus," and then silence. Levine called 911.

Officers Piner and McKee were dispatched to the scene at around 2:50 a.m. for a domestic violence disturbance. Officer Piner had responded to a prior domestic violence disturbance call at the same residence in June 2002, about 2 months earlier. During the investigation of that incident, Shelbree told Officer Piner she was afraid of Drennan and wanted him out of her life and her home but was not sure how to do that. Officer Piner told Shelbree she could apply for a protection from abuse (PFA) order.

When the officers arrived at the home on the night in question, they first spoke with Levine, who described what he had seen and heard. Officer Piner then went to the front door and knocked and rang the doorbell while Officer McKee went around to the side of the garage. Officer Piner received no response to her knocking and heard nothing, so she joined McKee. Through an open exterior door into the garage, the officers then saw Drennan step out of the house and into the garage. The officers asked Drennan to step outside and speak with them, but Drennan was initially unresponsive. He seemed oblivious to the officers' presence. Drennan appeared very sweaty and was wearing only shorts, no shirt or shoes. When Drennan finally came outside, Officer McKee asked him what was going on and where his wife was. Again, Drennan did not respond. Drennan had a glazed-over look and appeared agitated; he also had an odor of alcohol about him.

Officer McKee asked Drennan to turn around so he could pat him down for weapons. Drennan was not cooperative and tried to pull away, so both officers physically restrained him and placed him in handcuffs. Officer McKee again asked Drennan where his wife was, and Drennan responded, "Fuck you," and, "I was going to give you some information, but now you'll just have to wait and see." When asked what he meant, Drennan said, "It will come out, it'll come out."

Officer Piner also asked Drennan where Shelbree was. Drennan told her, "She's not here." When the officer asked again, Drennan said he was not going to tell her. Officer Piner then called her sergeant and received permission to enter the house to check on Shelbree's welfare. She found Shelbree in a bedroom lying face down on the floor. Shelbree was unconscious but still breathing. Officer Piner saw that a cord from a floor fan was wrapped around Shelbree's neck with the plug end of the cord wrapped up in Shelbree's hair. In checking to make sure the cord was not choking her, Officer Piner found that Shelbree's fingers were wrapped around the cord.

Approximately 14 hours after she was admitted to the hospital, Shelbree was declared brain dead. Forensic pathologist Dr. Mary Dudley, who conducted the autopsy, testified that the cause of death was lack of oxygen to the brain due to strangulation. Shelbree had a variety of abrasions and contusions; some of her more serious injuries included multiple rib fractures, a small laceration of the liver, and hemorrhaging of the neck muscles. The left side of the hyoid bone (the bone above the Adam's apple) was fractured, a condition seen almost exclusively as a result of manual strangulation. Shelbree also had bruising on her fingertips consistent with trying to pull a cord or ligature away from her neck. In Dr. Dudley's opinion, Shelbree died as a result of strangulation and that strangulation could have been a combination of ligature and manual strangulation. A ligature alone, however, would not have caused the fracture of the hyoid bone. Also, there were no ligature marks on Shelbree's neck. Dr. Dudley also testified that it would have taken at least 4 minutes of continuous pressure blocking blood and oxygen from reaching Shelbree's brain before brain death occurred. After 4 minutes, the damage was irreversible.

At trial, the State introduced evidence that Shelbree had obtained two prior PFA orders against Drennan in the months before the murder, although each had been later dismissed. In one of the supporting affidavits, Shelbree had alleged: "Tom Drennan put his hands around my neck to choke me Saturday night. He also told the neighbors that if they saw him walking out of the house with an axe and blood all over him that they were to call 911 because my body would be in the lake."

The State also called Stacy Barnes, a former girlfriend of Drennan's, who testified about an incident that had occurred when Drennan was living with her. Barnes testified that on January 22, 1999, Drennan attacked her during an argument. Drennan had two broken legs from an auto accident and was in a wheelchair, but he managed to push Barnes down on the bed and lay on top of her putting his hands on her face and neck. He squeezed Barnes' neck with one hand and covered her mouth and nose with the other so that she could not breathe. Drennan told Barnes over and over that he was going to kill her. He told her, "In about five seconds, you're going to be dead," and counted down the seconds. He told her to prepare to die and get ready to take her last breath. After about 5 to 7 minutes, Barnes was finally able to break free after striking Drennan over the head with a cordless phone. As a result of this incident, Drennan pled no contest to disorderly conduct in city court.

On the night of Drennan's arrest in this case, Drennan was interviewed by police and a videotape of that interview was played for the jury. In his statement to police, Drennan said that he and Shelbree had been arguing and Shelbree had hit his back. Drennan said he and Shelbree began fighting and the fight moved into the bedroom. Drennan grabbed Shelbree around her chest from behind in an attempt to restrain her, and his hold slipped up to her throat area in what Drennan described as a "choke hold." The two rolled around on the bed, and Shelbree continued to try to hit Drennan. Drennan ran out of the room to get away from Shelbree, and when he went outside, the police had arrived.

At trial, Drennan testified that he could remember nothing of the fight with Shelbree because he was in an alcoholic blackout. Drennan explained that he had been using cocaine regularly, but could not find any cocaine on the day in question, so he drank more alcohol to compensate for the withdrawal symptoms he was experiencing. Drennan stated that he began drinking in the late afternoon hours and continued until around 1:30 a.m. A friend who gave Drennan a ride to Shelbree's home at that time described Drennan as extremely intoxicated, unsteady on his feet, and not very coherent.

Did the Trial Court Err in Refusing to Instruct the Jury on the Lesser Included Offenses of Reckless Second-Degree Murder, Voluntary Manslaughter, and Involuntary Manslaughter?

Drennan was charged with first-degree premeditated murder. The trial court instructed the jury on that offense and on the lesser included offense of second-degree intentional murder. The court also instructed the jury that voluntary intoxication could be a defense to either first-degree or second-degree murder if the evidence showed that intoxication impaired Drennan's mental faculties to the extent he was incapable of forming the necessary state of mind of premeditation or the necessary intent to kill.

Drennan argues that the trial court denied him a fair trial when it refused to instruct on the lesser included offenses of reckless second-degree murder, voluntary manslaughter, and involuntary manslaughter. The record is not clear as to whether Drennan requested an instruction on voluntary manslaughter. During the instruction conference, defense counsel stated, "I'm not going to argue the voluntary manslaughter. We can't say, I think — based on the evidence that we put forth that there's any evidence of a sudden quarrel or argument with the exception of, I would say just once again the video taped testimony that said we got into it, then just kind of ended there."

Where a defendant does not object to the giving of or failure to give a lesser included offense instruction, stating distinctly the matter to which he or she objects and the grounds of the objection, this court will find reversible error only if the...