State v. Green

• Decision Date: 22 October 1982
• Docket Number: No. 54100,54100
• Citation: State v. Green, 652 P.2d 697, 232 Kan. 116 (Kan. 1982)
• Parties: STATE of Kansas, Appellee, v. David T. GREEN, Appellant.
• Court: Kansas Supreme Court

Page 697

652 P.2d 697

232 Kan. 116

STATE of Kansas, Appellee, v. David T. GREEN, Appellant.

No. 54100.

Supreme Court of Kansas.

Oct. 22, 1982.

Syllabus by the Court

1. Photographs are not rendered inadmissible merely because they are shocking or gruesome if they are relevant and material to the issues in the case.

2. In a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of the witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they appear gruesome.

3. Generally, in every case where evidence of other crimes is admissible solely under the authority of K.S.A. 60-455 the trial court should give an instruction limiting the purpose for which the evidence of the similar offenses is to be considered. Under such circumstances the failure of the trial court to give a limiting instruction, regardless of request, is of such a prejudicial nature as to require the granting of a new trial.

4. Evidence of a discordant marital relationship, including the defendant's prior acts of violence against his wife and threats to kill her, is admissible independently of K.S.A. 60-455, where the evidence is offered not for the purpose of proving distinct offenses, but rather to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the witnesses as to the act charged. Under these circumstances a limiting instruction is not required.

5. Whether evidence is too remote to be admissible rests within the sound discretion of the trial court. Lapse of time may not be sufficient to deprive evidence of its value, but goes to the weight of the evidence, which is for the jury to determine.

6. Under K.S.A. 60-445 it is within the trial court's discretion to exclude evidence of marital violence occurring in the weeks immediately preceding a murder, where such evidence may unfairly prejudice a jury.

Carl E. Cornwell, Kansas City, argued the cause and was on the brief for appellant.

John J. McNally, Chief Deputy Dist. Atty., argued the cause, Robert T. Stephan, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on the brief for appellee. SCHROEDER, Chief Justice:

This is a criminal action in which David T. Green (defendant-appellant) appeals a jury verdict finding him guilty of first-degree murder (K.S.A. 21-3401). Trial errors concerning the admission of evidence are asserted on appeal for review.

On May 12, 1981, around 1:40 a.m., police responded to a request for an ambulance at the home of the victim, Agnes Green, in Kansas City, Kansas. Upon arrival, the officers were met by the appellant, the victim's husband, who directed them to the upstairs bathroom where the victim was found dead in the bathtub. It was discovered later that the victim had died from loss of blood from two deep wounds to her head and a severe injury to her liver. The murder weapon, found later in a weedy area behind the victim's house, was believed to be a double-bladed ax. A large amount of blood was found on the bed, floor and walls in the victim's bedroom and in the hallway between the bedroom and bathroom.

The defendant, who was separated from his wife, repeatedly related the following story to police at the scene. The victim had called the defendant and told him someone was breaking into the back of her house. He changed out of his pajamas and ran to his wife's house, which was about six blocks away. He first checked the back window where she had said someone was breaking in. Finding no one there, the defendant went around to the front of the house and entered through the front door which he found partially open. The victim was upstairs in her bed with a large wound to the side of her head. Her purse was laying open on the floor with nothing in it. She told the defendant her assailants were downstairs, at which time he left to try to find them. Seeking help, he went to a neighbor's house but was unsuccessful. He returned to find the victim on the floor. She asked the defendant to get water to help her clean up the wounds. He picked her up under the arms, dragged her to the bathtub, and ran water over her head to wash off the blood. He then decided he needed help and called for an ambulance. The defendant offered this testimony in his defense at trial.

At trial the following incriminating evidence was presented. The ax believed used to kill the victim belonged to the defendant's landlord, who had placed it in another tenant's apartment a few days prior to the murder, to be used to chop down a tree. The tenant, Elmore Norris, testified he had never received the ax and evidence was presented that the defendant had access to Norris' room, often using his refrigerator and stove. About a year prior to the killing an incident occurred where the defendant had thrown a small hatchet at the victim, making it necessary for her to have stitches. The Greens' eight-year-old son, who lived with the victim, testified he and his two younger brothers were in bed the night of the murder. He heard his parents arguing, heard his mother scream, and saw his father drag his mother to the bathroom. Evidence of marital discord in the weeks preceding the victim's death was presented, including an incident where the defendant had threatened to send the victim "back to Africa in a pine box." Also, a neighbor testified that the victim was afraid of the defendant. A jury found the defendant guilty of first-degree murder.

Two issues are raised on appeal. First, the appellant contends the trial court erred in admitting into evidence, over objection, shocking and gruesome photographs of the victim's corpse taken prior to the autopsy while the body was lying on a morgue table. The photographs in question, State's exhibits 18 and 19, were in color and showed the wounds to the right and left sides of the victim's head which were presumably made by the ax. The appellant claims these photographs were inflammatory, prejudicial and unnecessary to the State's case, as they were not used to corroborate the testimony of any witness and were not relevant or necessary to the pathologist's testimony as to the cause of death.

Photographs are not rendered inadmissible merely because they are shocking or gruesome, if they are relevant and material to the issues in the case. We have repeatedly held that in a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of the witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome. State v. Johnson, 231 Kan. 151, 157, 643 P.2d 146 (1982); State v. Salem, 230 Kan. 341, 347, 634 P.2d 1109 (1981); State v. Foster, 229 Kan. 362, 367, 623 P.2d 1360 (1981); State v. Words, 226 Kan. 59, 61, 596 P.2d 129 (1979); State v. Gutierrez, 225 Kan. 393, 590 P.2d 1063 (1979); State v. McCorgary, 224 Kan. 677, 681, 585 P.2d 1024 (1978); State v. Henson, 221 Kan. 635, 647, 562 P.2d 51 (1977); State v. Wilson, 220 Kan. 341, Syl. p 5, 552 P.2d 931 (1976).

The two photographs in question were used by the pathologist who performed the autopsy during his testimony to describe the nature and extent of the decedent's head wounds. The appellant's contention that these photographs were irrelevant and unnecessary to the pathologist's testimony as to the cause of death is without merit. The pathologist testified that the victim died from blood loss within fifteen to twenty minutes after receiving the head wounds, and that either of the blows to the victim's head would have immediately debilitated her, rendering her unconscious and unable to speak. The photographs served to illustrate and corroborate this testimony, which was directly relevant to the defendant's testimony that he had arrived at the victim's house after the wounds had been inflicted, and the victim had told him where her assailants were, moved herself from the bed to the floor, and asked for water to clean her wounds.

We have noted previously that even where the defendant concedes the cause of death, it is incumbent on the prosecution to prove as part of its case in chief all the elements of the crime charged; and photographs to prove the elements, including the fact and manner of death, are relevant and admissible. State v. Dargatz, 228 Kan. 322, 329, 614 P.2d 430 (1980); State v. Campbell, 210 Kan. 265, 276, 500 P.2d 21 (1972). For the crime charged here it was necessary for the State to prove the defendant committed the crime with premeditation and malice. The photographs were proper to support the pathologist's testimony not only to contradict the defendant's testimony, but also to prove malice and premeditation by the nature and extent of the wounds suffered by the victim. The fact that the body was lying on a bloody morgue slab does not make the photographs prejudicial and render them inadmissible. See, e.g., State v. Soles, 224 Kan. 698, 701-02, 585 P.2d 1032 (1978); State v. Childers, 222 Kan. 32, 44, 563 P.2d 999 (1977); State v. Jones, 218 Kan. 720, 724, 545 P.2d 323 (1976). There was no error in the admission of these photographs.

The appellant next contends that evidence of prior instances of marital discord between himself and his deceased wife was erroneously admitted by the trial court. A pretrial hearing was conducted during which counsel for the defendant objected to the introduction of testimony concerning an incident in May 1980, where the defendant had thrown a hatchet at the victim, for which the defendant was convicted of battery. Also objected to was the admission of evidence of two assault charges pending against the defendant at the time of the murder which had been brought by the victim following altercations with the defendant on ...