State v. Gleason

• Decision Date: 23 April 2004
• Docket Number: No. 89,793,89,793
• Parties: STATE OF KANSAS, Appellee, v. NOAH J. GLEASON, Appellant.
• Court: Kansas Supreme Court

277 Kan. 624

88 P.3d 218

STATE OF KANSAS, Appellee, v. NOAH J. GLEASON, Appellant.

No. 89,793

Supreme Court of Kansas.

Opinion filed April 23, 2004.

Mary D. Curtis, assistant appellate defender, argued the cause and was on the brief for appellant. Noah J. Gleason, appellant, was on a supplemental brief pro se.

Victor J. Braden, assistant county attorney, argued the cause, and Phill Kline, attorney general, was with him on the briefs for appellee.

The opinion of the court was delivered by

NUSS, J.:

Noah Gleason appeals his conviction of first-degree felony murder and the resulting life sentence. Our jurisdiction is under K.S.A. 22-3601(b)(1), a maximum sentence of life imprisonment imposed.

The issues on appeal and this court's accompanying holdings are as follows:

1. Did the district court commit error when it gave an aiding and abetting instruction to the jury? No.

2. Did the prosecutor's purported violation of a motion in limine also violate Gleason's right to a fair trial? No.

3. Did Gleason receive effective assistance of counsel through trial? Yes.

4. Did trial counsel have a conflict of interest which prohibited his representation of Gleason at the sentencing hearing? No.

5. Was Gleason's sentence appropriate? Yes.

Accordingly, we affirm.

FACTS:

Clarence Rinke was found dead of a gunshot wound on the kitchen floor of his home in rural Jefferson County on October 14, 1999. Approximately 2½ years later, on April 2, 2002, Charolette Bennett, Collin Cady, and the defendant, Noah Gleason, were arrested in connection with Rinke's death.

Cady and Bennett agreed to testify against Gleason as part of a plea agreement. Their testimony, in which they corroborated each other, established the following.

Gleason had purchased marijuana from Rinke and had been in his house; it was Gleason's plan to burglarize Rinke's home to steal money and marijuana. Gleason told Cady that there would be approximately $70,000 at Rinke's house and that he wanted Rinke present to open the safe. Gleason and Cady checked out the Rinke area about a week and a half prior to the actual burglary. Gleason purchased coveralls at Bailey's in Lawrence. He also purchased gloves and masks to conceal their identities; tennis shoes to throw away after the crime; and tote bags to carry the marijuana, money, and their guns. They had two weapons, a .38 revolver and a shotgun, later sawn off, that Gleason purchased at Jayhawk Pawn and Jewelry in Lawrence. They had cell phones, two shotgun shells loaded with bird shot, and two walkie-talkies.

Gleason and Cady decided to have Bennett, who was sexually involved with Cady, serve as their driver and drop them off at the gate of Rinke's house. Bennett was to then lure Rinke out of his house by pushing the button on the gate intercom and telling Rinke that her car was stuck. She was to receive $1,000 for her help.

Cady called Gleason the morning of October 14, 1999, who told him to contact Bennett and meet at Johnny's Tavern in Lawrence at 7 p.m. Bennett and Cady went to Johnny's around 7 p.m., and Gleason arrived as Bennett and Cady were smoking marijuana in Cady's car. The three of them entered the bar, drank a shot of alcohol, and left. They then went to Gleason's property to put on the coveralls and get the weapons. From there they drove to Gleason's former house on 13th Street, near Rinke's, to show Bennett where to later park the car and wait for them. They left around 7 or 7:30 p.m., and she then drove them in Gleason's mother's car to Rinke's property.

Cady, who had been carrying one of Gleason's cell phones, and Gleason then left the car and hid in the woods next to Rinke's driveway. Though Gleason had been recuperating from a serious accident, according to Cady he was in good physical condition at the time. Bennett was given Gleason's other cell phone and eventually received Cady's call telling her to hit the button on the intercom. She then told Rinke over his intercom that she met a guy at a bar who gave her directions to a house which she could not find but her car had gotten stuck. When Rinke offered to pull her out with his tractor, Bennett called Gleason and Cady on the cell phone to inform them that Rinke was on his way to help her.

Rinke came out on his four-wheeler to his barn, and from there drove his tractor to the gate to help Bennett. Before Rinke arrived, Bennett left and drove to Gleason's former property on 13th Street where she smoked marijuana while she waited for Cady to call her to pick them up at Rinke's.

At that point Gleason and Cady entered Rinke's house and began looking for cash or drugs. They heard the tractor coming back, and Gleason mentioned backing out of the plan. Gleason then exited the house to watch for Rinke, and Cady remained in the mud room. Rinke saw Cady and bolted at him, so Cady "bonked" him on the head with the sawed-off shotgun. Rinke grabbed for the shotgun, and it discharged, hitting Rinke.

Cady got scared and took off running. After he left, Rinke, though seriously wounded, called 911.

Cady ran to a heavily wooded area, ejected the spent shell from the shotgun, loaded a live round, and continued running. He heard police sirens and took off his coveralls, wadding them up in the duffel bag and burying them under some leaves and a tree. He continued running and then buried the shotgun in the woods. He then called Bennett on the cell phone and told her to stay put and wait for them.

Gleason arrived at their designated meeting place, Gleason's old house on 13th Street. He told Bennett that Cady had accidentally shot Rinke and that he and Cady had gotten separated. Cady arrived 15 to 20 minutes later very distraught and without the coveralls, the bag, or the shotgun. Gleason yelled at him because he had left behind evidence. Gleason told Bennett if she breathed a word of anything that happened, he would personally kill her.

They stashed their shoes, Gleason's .38 revolver, and Gleason's coveralls on the property. Gleason then drove all of them to Johnny's Tavern, where they stayed until closing time. The next day, they retrieved the evidence and burned it in a trash barrel. On two later occasions, Gleason dropped off Cady to look for the shotgun. Bennett and Cady considered Gleason the ringleader of the plan.

Cady's and Bennett's testimony was fleshed out at the trial by other witnesses and exhibits.

Law enforcement was notified of Rinke's 911 call at 9:41 p.m. and arrived at 10:23 p.m. Based on bloodstain evidence, they determined that Rinke had suffered a blow to the head and bled profusely in the mud room before collapsing in the kitchen. They found brown jersey gloves in the mud room, approximately 75 pounds of marijuana in a freezer, and just over $570,000 in cash elsewhere in the house.

Four days later, on October 18, 1999, the KBI interviewed Gleason. Gleason stated that the last time he had been to Rinke's house was August 1998, but that they had talked on the phone on October 14, 1999, regarding a small cooler that Gleason had borrowed. Gleason claimed he was at Johnny's Tavern from 8:30 p.m. until 12:30 or 1 a.m. the night of October 14.

On or about February 3, 2000, after a discovery by Rinke's neighbor, law enforcement found, in the woods near Rinke's home, coveralls that contained an expended shotgun shell and a pair of brown gloves. The coveralls were wrapped around two bags. The manufacturer of the coveralls verified that similar coveralls were sold at Bailey's in Lawrence.

Approximately 2 years later, on April 2, 2002, the KBI again interviewed Gleason. He denied having any involvement in Rinke's murder, but admitted that he had been to Rinke's house. Gleason admitted buying a weapon, but claimed it had been stolen. He also admitted that he and an individual named Denny Cooper had previously discussed the possibility of robbing Rinke at his home.

The next day, April 3, based upon information from Cady, law enforcement searched a wooded area south of Rinke's home where they located a single-shot, 12-gauge, sawed-off shotgun containing a live round. The shotgun serial number confirmed it was the one Gleason had purchased approximately 2 months before the murder. A recovered shell further demonstrated by its markings that Gleason's shotgun was the murder weapon.

That same day, after Gleason was arrested and jailed, James Collins, Bennett's common-law husband, received a collect call from him. Gleason asked if Bennett had said anything, and when Collins replied that she had not, Gleason said: "You just tell her to keep her fucking mouth shut." Phone records confirmed that for the jail phone available to prisoners, one call was made to James Collins on that day.

Gleason's phone records confirmed that at 9:23 a.m. on the day of the murder, a phone call was made to his residence from the cell phone he had given to Cady. Phone records also revealed that at 4:47 p.m., a call was made from Gleason's cell phone to Rinke's residence. At 6:18 and 6:40 p.m., calls were made to Gleason's residence from the cell phone he had given to Cady. At 8:35, 9:09, 9:14, 9:17, and 9:46 p.m., calls were made from the cell phone Gleason had given to Cady to the cell phone Gleason had given to Bennett.

There were no calls from either Rinke's home phone or cell phone to any of Gleason's phones on October 14. However, Sheryl Gleason, Noah Gleason's ex-wife, testified Rinke called her between 8 and 9 p.m. that day. Rinke told her he had received a strange call from Gleason earlier that day and that Gleason wanted to come by and return a cheap cooler that he had kept for over a year.

A witness named Denny Cooper testified he and Gleason used to work together and smoke marijuana together. Gleason called Rinke, his marijuana dealer, "the old man." During the winter of 1997, Gleason had spoken to Cooper about trying to rob the old man of whatever they could get out of the house. Gleason speculated that there was a small safe in the...