State v. Grady, 71169

Decision Date14 July 1995
Docket NumberNo. 71169,71169
Citation900 P.2d 227,258 Kan. 72
PartiesSTATE of Kansas, Appellant, v. Kelley F. GRADY, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. A claim that sentencing guidelinesdeparture factors are not supported by evidence in the record is reviewed to determine whether there is substantial evidence supporting the court's findings or whether the court's findings are clearly erroneous. A claim that the departure factors relied upon by the court do not constitute substantial and compelling reasons for departure is a question of law.

2. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.

3. In reviewing findings of fact made by the trial court, this court must accept as true the evidence and all inferences which may be drawn from the evidence which support the findings of the trial court. It is not this court's function to reweigh the evidence.

4. The sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines unless the judge finds substantial and compelling reasons to impose a departure. If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure. K.S.A.1994 Supp. 21-4716(a).

5. The sentencing court should consider in all cases a range of alternatives with gradations of supervisory, supportive, and custodial facilities at its disposal so as to permit a sentence appropriate for each individual case consistent with the Kansas Sentencing Guidelines Act and the permitted dispositional and durational departures contained in the Act. K.S.A.1994 Supp. 21-4728.

6. If a factual aspect of a crime is a statutory element of the crime or is used to subclassify the crime on the crime severity scale, that aspect of the current crime of conviction may be used as an aggravating or mitigating factor only if the criminal conduct constituting that aspect of the current crime of conviction is significantly different from the usual criminal conduct captured by the aspect of the crime. K.S.A.1994 Supp. 21-4716(b)(3).

7. Where there is reasonable doubt as to whether the legislature necessarily considered a factor in establishing the standard sentence range, the trial court has discretion to use that factor as a reason for issuing a departure sentence.

8. By finding a defendant guilty of voluntary manslaughter, thereby acquitting that defendant of first-degree murder, a jury necessarily finds that defendant's crime was not premeditated, i.e., not a cold-blooded or execution-style killing. That fact is already taken into consideration in establishing the presumptive sentence for voluntary manslaughter. Therefore, it should not be used again as justification for a dispositional departure.

9. A trial court has discretion to impose a downward dispositional departure where a defendant has no prior criminal history and has a failed common-law or statutory defense that is not meritless.

10. Based on the record in this case, the trial court's finding that a defendant poses no threat to society based largely on a complete lack of criminal history is construed to be a finding that the defendant has no predisposition to commit a similar crime or any other crime. The defendant's lack of predisposition to commit a similar crime or any other crime may be an appropriate reason for imposing a downward dispositional departure sentence.

11. The final analysis in reviewing a departure sentence is not whether any departure factor, in isolation, can be a substantial and compelling reason for departure but whether, as a whole, the factors are substantial and compelling reasons for imposing a departure sentence in light of the offense of conviction, the defendant's criminal history, and the purposes of the sentencing guidelines.

Doyle Baker, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for the appellant.

Lee Thompson of Triplett, Woolf & Garretson, LLP, Wichita, argued the cause, and Jeffrey D. Leonard, of the same firm, was with him on the brief for the appellee.

ABBOTT, Justice:

This is an appeal by the State from the sentence imposed following defendant Kelley Grady's jury conviction for voluntary manslaughter (K.S.A.1994 Supp. 21-3403). The sentence imposed was a downward dispositional departure from the presumptive guidelines sentence. This appeal was transferred from the Court of Appeals on this court's order.

This case arises out of a relationship among three people, Kelley Grady (the defendant), Michael Croslin (the victim), and Brenda Croslin (the victim's wife).

The defendant separated from his wife in late 1991. At that time Michael and Brenda and their two children were living together. Brenda worked two jobs, one as a bartender. The defendant began an affair with Brenda. Brenda left Michael and began renting a home owned by the defendant's mother and managed by the defendant.

Michael and Brenda had a somewhat violent relationship. On more than one occasion Michael choked and beat Brenda in the presence of their children. Among the incidents were two occasions in July 1993, the month Michael was killed, when Michael choked Brenda and told her he was going to kill her. Another incident occurred when Michael, after a day of drinking, threw Brenda against the car, causing her to strike her head. Brenda had told the defendant about the instances of abuse. Michael also was known to have expressed his anger to others. For example, he once lifted an employee off the floor by her arms and pushed her against the doors of an oven when he was angry with her. On another occasion Michael stated that he would have to kill the defendant "someday" when the defendant admitted to Michael that he (the defendant) was in love with Brenda. The defendant was described as a peaceful, nonaggressive, nonviolent person who sought to avoid conflict.

On March 7, 1993, an incident involving Brenda, Michael, and the defendant occurred. Michael and Brenda argued on the telephone, and Michael then went to Brenda's rental house, where the defendant and Brenda's children were also present. Michael began yelling for the defendant to come out of the house and threatened to kill him. The defendant telephoned the police. After the police arrived, Michael left.

The incident giving rise to Michael's death occurred on July 20, 1993. After working until 9:00 p.m., Brenda went to Michael's house to pick up their children. When Brenda arrived, Michael began yelling at her, poking her in the chest, slapping her with his hand, and telling her that she was moving back in with him. Brenda told Michael she was not moving back in with him, and Michael became enraged. Michael called the defendant on the telephone and told him Brenda was moving out of the rental house. Michael ordered Brenda to tell the defendant herself; when Brenda would not say anything Michael got mad. The defendant heard Brenda crying in the background. Michael pushed Brenda into the living room and began punching, kicking, and choking her. Michael pushed Brenda through the wall, and her nose started bleeding from a cut. Michael and Brenda's oldest son (six years old) intervened and tried to pull Michael off Brenda. Brenda heard Michael on the telephone telling a friend to get over there before he killed her. The friend's wife, listening on an extension telephone, testified Michael asked her husband to come over to his house because "he needed him" and said he had pushed Brenda through a wall and was going to kill both Brenda and the defendant.

After his conversation with Michael, the defendant drove his truck to Brenda's rental house. Finding nobody there, the defendant drove to Michael's house, parked in front, and honked the horn. The defendant had a cellular telephone, a knife, and a semiautomatic handgun in his car. Brenda went onto the porch and told the defendant to leave. The defendant began yelling "wifebeater" and for Michael to come out of the house and pick on someone his own size. Brenda saw Michael take a knife from the kitchen. Holding the butcher knife in his right hand, Michael pushed Brenda and the children out of the way and jumped off the porch into the yard. The defendant saw Michael come out of the house with what the defendant thought was a gun. The defendant reached into his vehicle, retrieved his gun, and began shooting at Michael and running. There were three initial gunshots, a pause, and then another series of shots. Michael fell to the ground face first. The defendant threw the gun down, told Brenda to call 911, and went to his truck.

The defendant was arrested when the police arrived. He was cooperative and made a confession admitting to the events described above. The defendant did not testify at trial, but his tape-recorded confession was played for the jury.

The police discovered Michael lying face first on the ground with both hands above his head and with his right hand wrapped around the handle of a butcher knife. Michael was pronounced dead almost immediately after arriving at the hospital. An autopsy revealed 11 separate bullet wounds. One bullet entered the front left upper leg, two bullets entered the right front chest, and the other eight bullets entered the left back. A toxicology report revealed a blood alcohol concentration of .164.

The defendant was charged with one count of first-degree premeditated murder in Michael's death. The defendant claimed self-defense. The jury found the defendant guilty of voluntary manslaughter.

Prior to sentencing, the defendant filed a motion for a downward departure sentence. Based on the offense of conviction (severity level 3) and the defendant's criminal history (category I--no prior convictions), the presumptive sentence was a term of incarceration of 46-51...

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26 cases
  • State v. Whitesell, No. 82,610.
    • United States
    • Kansas Supreme Court
    • 8 Diciembre 2000 such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. State v. Grady, 258 Kan. 72, 79, 900 P.2d 227 (1995). If any of the factors cited by the trial court are substantial and compelling reasons for departure, we will affirm that......
  • State v. Reed
    • United States
    • Kansas Supreme Court
    • 19 Junio 2015
    ...departure may not in all cases justify a departure.” ’ State v. McKay, 271 Kan. 725, 730, 26 P.3d 58 (2001) (quoting State v. Grady, 258 Kan. 72, 83, 900 P.2d 227 [1995] ).” Bird, 298 Kan. at 397, 312 P.3d 1265.Before the Court of Appeals, the State argued that “the district court's sole re......
  • State v. Brown
    • United States
    • Kansas Supreme Court
    • 20 Enero 2017
    ...397, 312 P.3d 1265." ‘ "Reasons which may in one case justify departure may not in all cases justify a departure." [State v. Grady ], 258 Kan. at 83[, 900 P.2d 227 (1995) ]. Rather, we must evaluate the offense of conviction, the defendant's criminal history, and the departure reason stated......
  • State v. Cox
    • United States
    • Kansas Supreme Court
    • 8 Diciembre 1995
    ...State v. Ratley, 253 Kan. 394, Syl. p 2, 855 P.2d 943 (1993). We described the legislative history of the KSGA in State v. Grady, 258 Kan. 72, 89, 900 P.2d 227 (1995). The Senate Judiciary Committee observed, in part, when considering the "[T]he Committee recognized that the guidelines are ......
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