State v. Gray, 117,747

CourtUnited States State Supreme Court of Kansas
Writing for the CourtThe opinion of the court was delivered by Rosen, J.
Citation459 P.3d 165
Parties STATE of Kansas, Appellee, v. Marvin L. GRAY, Appellant.
Docket NumberNo. 117,747,117,747
Decision Date28 February 2020

459 P.3d 165

STATE of Kansas, Appellee,
Marvin L. GRAY, Appellant.

No. 117,747

Supreme Court of Kansas.

Opinion filed February 28, 2020.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause, and Sam Schirer, of the same office, was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by Rosen, J.:

A jury convicted Marvin Gray of first-degree premeditated murder, rape, and aggravated burglary. We affirm.


On June 24, 2015, Michael Rolle was working in Dodge City. Sometime around midnight, he spoke on the telephone with his girlfriend, C.R., who lived in Wichita. Rolle then spent the night in his Dodge City office. Early the next morning, Rolle contacted C.R. by phone but did not hear a response. He texted her around 5:55 a.m. and again received no response. Rolle continued with his work day before eventually leaving and driving to Wichita.

When Rolle arrived in Wichita, he went directly to C.R.'s house. Upon pulling up in C.R.'s driveway, Rolle noticed that one of the windows on the house was cracked. When he knocked on the door, C.R.'s three-year-old daughter, M., said through the door that it was locked. M. unlocked the door and Rolle entered the house. M. told Rolle that her mother was in the bathtub. When Rolle reached the bathroom, C.R. was leaning forward in the bathtub, unresponsive and unclothed from the waist down. Rolle grabbed C.R. by the shoulder and her body floated up in the water. Rolle immediately called the police.

Police officer Jared Henry was on duty in Wichita on the evening of June 25. At 6:33 p.m., he received a call from dispatch about a stabbing at C.R.'s residence. He and his partner responded to the scene. Henry observed C.R. lying on her back in the bathtub in approximately 6 inches of dark-colored water with her knees up to her chest. After clearing the house, Henry interviewed Rolle. At trial, Henry would describe Rolle as "visibly upset" and "very forthcoming."

Officers executed a search warrant at C.R.'s residence the same night. They noticed a section of glass missing from one of the windows and glass fragments below the window inside and outside of the house. The blinds in the window were askew. There was a chair against the wall next to the window,

459 P.3d 168

and there appeared to be spots of blood on the inside of the blinds and on the chair. In the bathroom, officers observed disturbed bathmats in front of the bathtub, hygiene products, toys, and clothes on the floor, and blood along the edge of the bathtub and the sink counter. C.R. was lying in the bathtub in water that appeared to be mixed with blood. There was a chemical odor in the air. In M.'s room, officers found a towel with blood on it, a pair of women's underwear, and a pair of women's shorts. The shorts smelled of urine and had blood stains on them. Officers found a child's blanket with blood on it on the living room sofa.

Chemical tests indicated that there was trace blood on the bathtub, throughout the bathroom, outside of the bathroom, through the hallways, and in M.'s room. There was evidence someone had cleaned blood from one of the hallways.

Dr. Timothy Gorrill performed an autopsy on C.R. The autopsy revealed 37 stab wounds and signs of asphyxiation. Dr. Gorrill would later testify that the cause of death was the stab wounds, that the manner of death was homicide, and that the asphyxiation, which may have been caused by strangling, occurred when C.R. was still alive. A toxicology report indicated that C.R. had methamphetamine in her body when she died. The toxicology report was negative for alcohol and cocaine.

Police began interviewing C.R.'s family and friends immediately after discovering her death. A specialist trained in interviewing children spoke with M. Although it is possible she witnessed her mother's murder, M. could not provide any information regarding C.R.'s death. Rolle reported being outside of Sedgwick County for 24 hours before traveling to Wichita on June 25. Police were able to verify his whereabouts through witnesses and video surveillance and consequently ruled Rolle out as a suspect.

Upon checking C.R.'s phone records, police learned that Gray had been in contact with C.R. by phone on June 24. Police interviewed Gray at a residence in Wichita on the night of June 26. Gray told officers that he and C.R. had gone shopping at a mall on the evening of June 24. After they went shopping, the two went to a friend's house located on Cottonwood Street, drank alcohol and did cocaine, and then had vaginal and anal intercourse in an alleyway outside by the car. Gray told officers that C.R. then went home, that he stayed at the house on Cottonwood, and that he did not see C.R. again. Officers photographed a cut on Gray's hand, which Gray described as a work injury.

Surveillance cameras at the mall confirmed that C.R. and Gray had gone shopping together in the evening on June 24. But further evidence disproved other aspects of Gray's story. Video surveillance from a car dealership near the Cottonwood house revealed that Gray and C.R. never had sex in an alleyway by the Cottonwood house. The video also revealed that Gray left the Cottonwood house on foot around 1:30 a.m. on June 25 and returned on foot around 8 a.m. the same day. Cell phone records showed Gray's cellphone in the area of C.R.'s residence around 4:49 a.m.

Forensic testing eventually confirmed that Gray had been in C.R.'s residence. It indicated that the blood on the window blinds and the chair by the window, some of the blood on the shorts, and some of the blood in the bathroom came from Gray. Testing also revealed Gray's semen on the inside and outside of the underwear found in M.'s room and on a vaginal swab taken from C.R.'s body. Gray's DNA was identified on some of the bathroom toiletry bottles. The testing also indicated that the blood from the blanket, the living room floor, the outside of the underwear, the towel, M.'s room, and the rest of the blood on the shorts and in the bathroom came from C.R. Forensic analysis revealed Gray's handprints and fingerprints on the outside of the broken window.

After the evidence discredited parts of Gray's story, officers interviewed him again at the police station. During this interview, Gray relayed a story that was different from the one he originally provided. Notably, Gray informed officers that he had been at C.R.'s house early in the morning on June 25 and that they had consensual vaginal and anal sex in the bathroom at her house. This interview was eventually played for the jury.

459 P.3d 169

Based on the compiled evidence and his new statement, the State charged Gray with premeditated first-degree murder, rape, aggravated criminal sodomy, and aggravated burglary with the intent to commit a sexually motivated crime.

In a pretrial motion, the State asked the court to admit under K.S.A. 60-455 evidence that Gray had committed three prior attempted or completed rape offenses in 2006, 2010, and 2013. Gray objected to the admission of this evidence. The district court denied the State's motion with respect to the 2006 evidence but granted the motion as it related to the 2010 and 2013 evidence.

At trial, the State offered evidence of only the 2013 incident. A woman testified that Gray had strangled and raped her in 2013. The sexual assault nurse who examined the woman after the alleged rape also testified. She stated that the woman presented to the hospital with injuries consistent with strangulation and rape. A witness for the defense testified that she had been present during the alleged rape and that it looked to her like consensual sex between Gray and a woman who had come to her house to smoke marijuana.

The jury was instructed that it could only consider evidence of the alleged 2013 rape as evidence of Gray's intent to commit rape and aggravated criminal sodomy in the current case.

Gray testified in his own defense at trial. He stated that he and C.R. had been friends since they were 11 or 12 and had hung out together regularly since that time. Around 3 p.m. on June 24, C.R. picked Gray up at his mother's house and the two of them then picked up C.R.'s daughter and returned to C.R.'s house. C.R. put M. in the bathtub to bathe and then snorted some cocaine with Gray. Before going to take a bath herself, C.R. told Gray to open the curtains and let some light into the house. Gray stood on a chair next to the front window to move the curtains, and his nose began to drip blood. He stopped the blood with a tissue and eventually flushed the tissue and wiped the blood from his face and hands in the bathroom. After dropping M. off at C.R.'s mother's house, C.R. and Gray drank alcohol while driving to the mall. They shopped until about 8 p.m. and then went to Gray's friend's house on Cottonwood. Gray had been living with his brother just a few houses over. At his friend's house, Gray and C.R. drank and did cocaine. Around 10 p.m., C.R. left to pick up her daughter. C.R. invited Gray to come with her, but he decided to stay and said he would come over to C.R.'s house later.

Gray further testified that...

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