State v. Duke

• Citation: 887 P.2d 110,256 Kan. 703
• Decision Date: 22 December 1994
• Docket Number: No. 70130,70130
• Parties: STATE of Kansas, Appellee, v. Shane A. DUKE, Appellant.
• Court: United States State Supreme Court of Kansas

Page 110

887 P.2d 110

256 Kan. 703

STATE of Kansas, Appellee, v. Shane A. DUKE, Appellant.

No. 70130.

Supreme Court of Kansas.

Dec. 22, 1994.

Syllabus by the Court

1. When a motion to suppress evidence is denied, a defendant must make a timely objection at trial, at the introduction of the evidence, specifying the ground for the objection in order to preserve the issue on appeal.

2. The standard of review of whether a defendant's extrajudicial statement was voluntary is whether there was substantial competent evidence to support the trial court's finding that the defendant's statements were made freely and voluntarily, and not in response to any questioning by any officer.

3. Voluntary and spontaneous statements of an accused which are not the result of an interrogation are admissible at trial. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused and determines that the statement was freely, voluntarily, and intelligently given and admits the statement into evidence at the trial, this court on appeal should accept that determination if it is supported by substantial competent evidence.

4. No party may assign as error the giving or failure to give an instruction unless, before the jury retires to consider its verdict, an objection stating the specific grounds is entered. Absent such objection, this court's review is limited to a determination of whether the instruction was clearly erroneous. An instruction is clearly erroneous when a reviewing court reaches a firm conviction that, if the trial error had not occurred, there was a real possibility that the jury would have returned a different verdict.

5. In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. Improper remarks made by the prosecutor in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant and to deny the defendant a fair trial.

6. In summing up a case before a jury, counsel may not introduce or comment on the facts outside the evidence, but reasonable inferences may be drawn from the evidence and considerable latitude is allowed in discussing it. Counsel may appeal to the jury with all the power and persuasiveness his or her learning, skill, and experience enable counsel to use.

7. Although the trial court has a duty to inform the jury of the essential elements of the crime charged, when a defendant fails to object to an instruction that omits an element an appellate court must find the omission of that element to be clearly erroneous before reversing the conviction.

8. Comments by a judge made at sentencing which are based on the evidence presented do not necessarily prove that the sentence imposed was improper.

9. K.S.A. 22-3422 requires that at the time the defendant appears for judgment, the court must inform the defendant of the verdict of the jury and also ask if the defendant has any legal cause why judgment should not be rendered.

10. K.S.A.1993 Supp. 22-3424(4)(d) requires the court, before it imposes sentence, to address the defendant personally to see if the defendant wishes to either make a statement or present mitigating evidence. Fulfilling the requirements of K.S.A. 22-3422 does not also fulfill the requirement of 22-3424(4)(d).

11. When a motion for modification of sentence is based upon assertions that the defendant was denied statutory rights to allocution allegations to that effect must be set forth with particularity in the motion. Absent any such allegations in the pleading or motion, the defendant waives any issue as to the sufficiency of the allocution or compliance with K.S.A.1993 Supp. 22-3424(4).

Benjamin C. Wood, Special Appellate Defender, Olathe, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, Topeka, was with him on the brief, for appellant.

Debra S. Peterson, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.

LOCKETT, Justice:

Shane A. Duke appeals his convictions for first-degree murder, aggravated robbery, arson, and unlawful possession of a weapon; he also appeals the imposition of the hard 40 sentence. Duke claims (1) his inculpatory statements should have been suppressed; (2) the jury instructions were clearly erroneous; (3) the prosecutor made improper statements in closing argument; (4) the trial judge erred in considering aggravating factors not found by the jury when imposing the hard 40 sentence; (5) he was denied his right to allocution at sentencing; and (6) his trial counsel was ineffective.

Kris Curtis was at his son's babysitter's residence around 4:40 p.m. on January 19, 1993. He heard two or three loud bangs from across the street and noticed smoke from Charles Pettegrew's residence. A red-haired man whom Curtis could not identify knocked at the door of the Pettegrew residence and yelled at Curtis to call 911 because the house was on fire. Curtis called 911. Curtis noticed a car, later identified as belonging to Duke, was parked in the neighborhood.

When the firefighters entered the house they found Pettegrew's body lying on the floor. A fire investigator identified two points of origin for the fire. A flammable liquid had been poured around Pettegrew's body and set afire. A spent shell casing was also found in the living room. The autopsy of Pettegrew's body revealed two bullet wounds--a fatal shot to the chest that severed the aorta and another that entered through the back. Based on the insignificant level of carbon monoxide in Pettegrew's blood, the pathologist determined that Pettegrew had died before the fire was started.

After the fire, Pettegrew's son and grandson noticed the car, earlier observed by Curtis, parked in the neighborhood. The grandson knew the car belonged to one of Pettegrew's tenants who lived six to eight blocks away. When they returned to the Pettegrew residence the next day, the car was gone. They gave the car's license plate number to the police.

Because the car was registered to Duke, detectives went to Duke's apartment. Duke was not at the apartment. Lara Granman, who lived with Duke in the apartment rented from Pettegrew, was there. She informed the police that Duke was being pressured to pay a debt that he owed Michael Thomas. Prior to his death, Pettegrew had told her that his assets totalled almost a million dollars. Granman told Duke about Pettegrew's assets. Duke replied that he could rob Pettegrew to get the money and, if he had to, he would shoot Pettegrew.

Prior to the shooting, Duke had traded a small handgun to Thomas for drugs. On the day that Pettegrew was killed, Granman and Duke went to Thomas' place and picked up the handgun. They then drove to Pettegrew's residence. Pettegrew was not home, so they returned to their apartment. Later that afternoon, Thomas and Thad Keeling came to Duke's apartment for the money Duke owed Thomas. Duke left to get the money. After a while Granman heard sirens. Five or ten minutes later, Duke returned. Duke gave Thomas money and returned the handgun to him.

Duke had come back to the apartment without his car. Duke later admitted to Granman he had left the car near Pettegrew's house. When the news reported a fire at the Pettegrew's house, Duke told Granman that he had set the fire.

About a week later, Duke told Granman he had entered Pettegrew's residence ostensibly to talk about renting another apartment. When Pettegrew turned his back, Duke shot him. Pettegrew fell to the floor. Duke then shot the wounded Pettegrew in the chest. Duke took $60 from Pettegrew's wallet. Duke explained how after taking the money he had poured gasoline over Pettegrew and set the gasoline on fire. Granman stated that Duke showed no remorse for the killing of Pettegrew.

Duke was later spotted by officers while driving near his residence. After a chase, Duke abandoned the vehicle and escaped. The two other occupants of the vehicle, Thomas and Keeling, were taken into custody and questioned. Thomas told police that Duke had recently given him a weapon. Although Thomas had sold the weapon, he repurchased it and turned it in to the police. A test of the weapon revealed that the bullets found in Pettegrew's body had been fired by that weapon. Duke was later apprehended by police.

At the trial, April Shaffer, the only witness for the defense, testified she met Michael Thomas the day after the murder. Thomas told her that he had talked to Granman to "get their story straight." Thomas stated that he had a sexual relationship with Granman and was getting Duke out of their way. About two weeks later, Thomas told Shaffer that he had given the police the weapon to further support his purposes. Shaffer accused Thomas of shooting Pettegrew and framing Duke. Thomas told Shaffer that she was smarter than she looked and had better watch her step. Shaffer also testified that prior to the trial Lara Granman had told her that Duke had not shot Pettegrew, but Granman did not know if Thomas had shot him.

The jury found Duke guilty of both premeditated and felony first-degree murder, aggravated robbery, aggravated arson, and unlawful possession of a firearm. On motion for a new trial, the aggravated arson conviction was reduced to arson by the trial judge. Additional facts will be discussed in the analysis of the issues raised.

Suppression of Statement

At the suppression hearing Officer Tucker testified that after arresting Duke he took Duke to the police station where detectives interviewed him. Officer Tucker had not given Duke the Miranda warnings. After the interview concluded, Tucker was escorting the handcuffed and shackled Duke to a detention facility. Another officer asked Tucker what he had. Tucker replied to the other officer, "[A] murder suspect." The...