State v. Gadelkarim, 69897

• Decision Date: 22 December 1994
• Docket Number: No. 69897,69897
• Citation: 887 P.2d 88,256 Kan. 671
• Parties: STATE of Kansas, Appellee, v. Nasif GADELKARIM, Appellant.
• Court: Kansas Supreme Court

Page 88

887 P.2d 88

256 Kan. 671

STATE of Kansas, Appellee, v. Nasif GADELKARIM, Appellant.

No. 69897.

Supreme Court of Kansas.

Dec. 22, 1994.

Syllabus by the Court

1. Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. A mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment. If a proper and reasonable construction will render the remark unobjectionable, the remark is not prejudicial.

2. The improper denial of an accused's opportunity to impeach a witness for bias is not grounds for automatic reversal of a conviction but is subject to harmless error analysis. Under such analysis, the correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.

3. It is well established that it is constitutionally impermissible for the State to elicit evidence at trial of an accused's silence at the time of arrest and after the accused has received the Miranda warnings.

4. Claims that there has been an impermissible comment or question about a defendant's post-Miranda silence are measured by the harmless error standard. Only error which fails to meet the federal standard of harmless error, defined as belief beyond a reasonable doubt that the error did not contribute to the verdict, requires reversal.

5. To facilitate the determination of whether a prosecutor's comments are harmless error, Kansas appellate courts consider the nature and extent of the comment in comparison with the strength of the evidence of the defendant's guilt, and further consider whether the language used was manifestly intended to be, or was of such character that the jury would naturally and necessarily take it to be, a comment on the failure of the defendant to testify.

6. Res gestae is a broader concept than an exception to the hearsay rule. It actually deals with admissibility of evidence of acts or declarations before, during, or after happenings of the principal event. Those acts done or declarations made before, during, or after the happening of the principal occurrence may be admitted as part of the res gestae where those acts or declarations are so closely connected with the principal occurrence as to form in reality a part of the occurrence.

7. Evidence of an independent offense is admissible in a criminal action if it is relevant as part of the res gestae of the crime.

8. In considering the propriety of a peremptory juror challenge, where a trial court has determined the State removed a prospective juror for race-neutral reasons, appellate court review is limited to determining whether the trial court abused its discretion.

9. In evaluating an attorney's race-neutral explanations for peremptory juror challenges, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause of the United States Constitution as a matter of law. A court addressing this issue must keep in mind the fundamental principle that official action will not be held unconstitutional solely because it results in a racially disproportionate impact. Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.

10. An instruction on a lesser included offense is applicable only when the evidence is such that the defendant might reasonably have been convicted of the lesser offense. When the trial court refuses to give an instruction on a lesser included offense, the appellate court must view the evidence supporting the lesser charge in the light most favorable to the party requesting the instruction.

Rick Kittel, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, 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 her on the brief, for appellee.

LOCKETT, Justice:

Defendant was convicted of first-degree murder and sentenced to life imprisonment. Defendant appeals, claiming: (1) trial court misconduct prejudiced the jury; (2) the jury was allowed to consider that defendant had invoked his right to remain silent; (3) hearsay testimony and a prior conviction were improperly admitted; (4) the prosecutor improperly struck a black prospective juror; and (5) the trial court failed to instruct on a lesser included offense.

Nasif Gadelkarim came to the United States from Egypt in 1974. In 1980, Gadelkarim began dating Deborah Cagle, who had two children, A. and B. A short time later, Gadelkarim, Cagle, and Cagle's children began living together. Gadelkarim and Cagle had a stormy relationship. Gadelkarim was known to physically abuse Cagle. Testimony at trial indicated these problems may have been related to Gadelkarim's excessive consumption of alcohol. In April 1988, Gadelkarim Cagle, and B. moved to Clearwater, Kansas, to operate the USA Restaurant. Their residence was a house directly behind the restaurant.

Sometime prior to Gadelkarim, Cagle, and B. moving to Clearwater, A. began living with Cagle's sister, Christine Moline. A. did not move to Clearwater because Gadelkarim had sexually abused him. Gadelkarim warned A. that if he told anyone about the abuse, Gadelkarim would kill him and his mother. A. eventually told Moline of the abuse. The police were informed, and Gadelkarim was charged with indecent liberties with a child.

Near the end of Gadelkarim's indecent liberties trial, he told Cagle that if he had to go to prison he would kill himself and take others down with him. On November 30, 1988, Gadelkarim was convicted of taking indecent liberties with A. Gadelkarim remained free on bond pending imposition of sentence.

Gadelkarim told Mary Rumery, a waitress at the USA Restaurant, that he had plans for Saturday, December 3. Gadelkarim asked Rumery to manage the restaurant because he was going to "take care of" Cagle.

Sometime after 10:00 on the evening of December 2, 1988, Gadelkarim and Cagle stopped at Roger's Place in Clearwater, where Gadelkarim consumed four or five mixed drinks. As they were leaving the club sometime between midnight and 1:30 a.m., Gadelkarim approached the bar and left a tip for the proprietor. Gadelkarim also left some money on the bar for two female patrons. Cagle picked up the money. Gadelkarim took it away from her and gave it back to the two women. Cagle picked it up again and told Gadelkarim he should not be throwing his money around. Gadelkarim then physically forced Cagle out the door of the club. As Gadelkarim and Cagle were leaving, Gadelkarim asked Cagle if she wanted to start something. Cagle drove back to their residence alone. Gadelkarim walked home.

The next morning, Rumery went to the restaurant to begin work, but Cagle was not there. Rumery drove to the residence and knocked. Gadelkarim opened the door and told Rumery that Cagle was getting dressed. Rumery went back to her car, waited 10 or 15 minutes, and then left.

At 7:36 a.m. on December 3, Gadelkarim called 911 and told the operator that he had killed his girlfriend and wanted someone to come pick him up. Clearwater police were dispatched to the USA Restaurant. After searching the restaurant, the police determined that no one was inside. Officers went to the residence and called Gadelkarim. Gadelkarim stepped onto the porch and stated, "I just shot my girlfriend, no big deal," or words to that effect.

Gadelkarim was placed under arrest. Officers entered the house and saw Cagle's feet protruding from beneath a blanket on the floor in front of a chair. Cagle had been shot, apparently from behind, and was dead. The pathologist concluded that Cagle died of hemorrhage and heart failure.

After being arrested and advised of his rights, Gadelkarim made a number of unsolicited statements indicating he had killed Cagle. At the scene of the crime, Gadelkarim told one officer, "Yes, I shot her, but I did you a favor." Another officer who was taking Gadelkarim to the patrol car overheard Gadelkarim say, "I did it." At one point, Gadelkarim stated he did it because he was innocent and it was Cagle's fault. Gadelkarim stated he was guilty of shooting Cagle but not guilty of taking indecent liberties with A.

At the police station, Gadelkarim made additional incriminating statements despite an officer's suggestion that he not talk. Gadelkarim twice stated he shot Cagle. Gadelkarim stated that he shot Cagle, that he was insane, and that he did not know what he was doing. Gadelkarim also stated, "[L]ast night she made me crazy.... I tried to get the bitch clean for seven months.... [L]ook at me, nice and easy I shoot the bitch."

Officers testified that they believed Gadelkarim was under the influence of alcohol because of the way he walked, his slurred speech, bloodshot eyes, and because of the odor of alcohol. Approximately three and one-half hours after officers first arrived at the scene in Clearwater, Gadelkarim's blood alcohol concentration measured .169 Gadelkarim was charged with and convicted of first-degree murder and unlawful possession of a firearm. See State v. Gadelkarim, 247 Kan. 505, 802 P.2d 507 (1990). On appeal, Gadelkarim claimed the trial court erred in failing to instruct on the defense of voluntary intoxication and the lesser included offense of voluntary manslaughter. 247 Kan. at 507, 509-10, 802 P.2d 507. This court affirmed the trial court's refusal to instruct on voluntary manslaughter but reversed the trial court for failing to instruct on voluntary...