State v. Greene

• Decision Date: 14 December 2001
• Docket Number: No. 80,937.,80,937.
• Citation: 272 Kan. 772,37 P.3d 633
• Parties: STATE OF KANSAS, Appellee, v. BRYON GREENE, Appellant.
• Court: Kansas Supreme Court

272 Kan. 772

37 P.3d 633

STATE OF KANSAS, Appellee, v. BRYON GREENE, Appellant.

No. 80,937.

Supreme Court of Kansas.

Opinion filed December 14, 2001.

Debra J. Wilson, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.

Terra D. Morehead, assistant district attorney, Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

Bryon Greene appeals convictions of second-degree murder and aggravated battery. The issues raised by Greene are: denial of his Sixth Amendment right to effective assistance of counsel, limitation of the testimony of a defense witness, erroneous admission of a victim's statement, and failure to instruct on Greene's diminished capacity and on voluntary manslaughter.

Approximately a half hour after midnight on January 20, 1997, police were dispatched to 1139 Georgia in Kansas City, Kansas, where shooting had been reported. As police approached the address, they met up with an automobile in which one of the shooting victims was being transported. At 1139 Georgia, the police found another victim on the dining room floor.

Darius Flournoy was the victim found in the house. At the hospital where Flournoy was taken shortly after the incident, he identified the defendant as the person who shot him. Flournoy died during surgery. An autopsy revealed that a bullet had torn Flournoy's aorta and that he died from massive internal bleeding caused by the gunshot wound to his mid-abdomen. There was no exit wound. Another bullet had grazed Flournoy's neck.

Durand Womack was the other victim. After defendant shot Flournoy he turned the gun on Womack, who had put his hands in front of his face with the palms out. Defendant wounded Womack in both his hands and his mouth.

Police found two spent bullets in the house. An officer testified that the lack of shell casings at the scene would be consistent with a revolver being used to shoot Flournoy and Womack. There was a bloodstain in the doorway from the dining room that led toward the bathroom.

One of the occupants of the house was found by police passed out on the couch. The other occupant had gone to work at approximately 10 p.m and did not return until approximately 5 a.m. There were approximately 10 people in the house at the time of the shooting. Three or four women were in the living room. Most of the men were in the dining room where they were rolling dice for money on a blanket-covered table.

Greene admitted shooting Flournoy and Womack, but he claimed to have done so without forming the intention to kill or wound. Greene, who was 22 at the time of the shooting, and Flournoy were well acquainted from sharing a bedroom in a foster home for approximately a year-and-a-half when they were teenagers. Their foster mother testified that the boys had not gotten along because Flournoy was overbearing, made Greene do things for him all the time, and "kind of bullied him." Greene testified that when Flournoy moved in "It was like he became my pimp...." Greene catalogued a number of brutish things Flournoy did to him, including threatening to make his life even more miserable if he told the foster parents what was going on and, on two occasions, making Greene suck his penis.

Womack and Greene told very different versions of the shootings. According to Womack, defendant pulled a gun from his pocket and began shooting without any provocation. Although defendant admitted shooting at Flournoy and Womack, he claimed to have fired his friend's gun that was lying on the table and to have fired it in an instantaneous reaction to a psychologically devastating taunt by Flournoy.

Womack testified that he and Flournoy arrived at 1139 Georgia at approximately midnight. He did not participate in the dice game because he had no money. He said that he was seated in a chair watching the others roll dice. Flournoy was standing next to Womack. Defendant was standing. There was music playing. Defendant said something that Womack did not catch. Then immediately defendant pulled a gun out of his pocket and shot Flournoy before pointing the gun at Womack and shooting him.

Greene testified that he considered the gathering at 1139 Georgia to be a celebration because he had just learned that he was going to be a father. Greene told everyone at the house that he would buy the drinks, and he left to go to the liquor store. When he got back to 1139 Georgia with the drinks, Flournoy, Womack, and Greene's friend Mike were there. Greene and his friend later made another trip to the liquor store, and, before they reentered the house, Greene returned the gun Mike had asked him earlier in the day to carry. With Greene and his friend back, the men went into the dining room, put a blanket on the table, and started a dice game.

According to Greene, Womack was in and out of the game. Defendant told him to make up his mind. Womack decided to get out, and he left the room to go into the bathroom. Flournoy remarked on Greene's making Womack choose. Greene responded, "I'm not scared of you, I'm not a kid anymore." Someone told Greene and Flournoy to take their dispute outside. Then Flournoy threw names like "bitch ass nigger" at Greene and said, "He can suck this dick." At that, Greene hit the table in a rage, "flashed," and blacked out. His friend's gun, which was lying on the table, made a noise. Greene picked up the gun and shot Flournoy. Womack flung open the bathroom door, and it hit the wall. Greene pulled the trigger again.

Following his convictions, Greene's trial counsel filed a notice of appeal on January 30, 1998. Appellate counsel was appointed, and the appeal was docketed on April 13, 1998. Since Greene's claim of ineffective counsel had not been heard by the trial court, appellate counsel, pursuant to State v. Van Cleave, 239 Kan. 117, Syl. ¶ 2, 716 P.2d 580 (1986), moved to remand for a determination of the defendant's claim of ineffective assistance of counsel. This court, on August 24, 1999, granted the motion but retained jurisdiction of the appeal. A hearing on the defendant's motion was held in the trial court on December 3, 1999. The matter was taken under advisement, and on September 18, 2000, the trial court denied the motion by memorandum decision. Appellate counsel filed a supplemental notice of appeal from that decision on October 2, 2000.

We first consider if Greene was denied his Sixth Amendment right to effective assistance of counsel. The principal contention was that trial counsel's failing to request a continuance when defendant changed his story during jury selection fell below prevailing professional standards and prejudiced him. After a hearing, the trial judge concluded that Greene's argument did not have merit:

"Defense counsel was actively pursuing an alibi defense and taking appropriate action to secure the attendance of alibi witnesses. Apparently, only upon learning that his fiancee and brother would not voluntarily come to court and provide false testimony, did defendant come clean with his lawyer. The pickle the defendant found himself in at that point was of his own making, not that of the lawyer's. The lawyer was forced to change horses in the middle of the stream which is not an easy thing to do. But the blame rests squarely on the shoulders of the defendant, not his lawyer."

There is no question that Greene created a very difficult situation for himself and his counsel. What is at issue, though, is whether Greene's defense attorney's actions in response to the difficult situation were deficient.

Greene lied to his attorney and caused his attorney to spend his trial preparation time pursuing a false and worthless alibi defense. Unable to secure the attendance of alibi witnesses, Greene's attorney requested a continuance on the morning trial was to begin. The request was denied, and voir dire commenced. Greene waited until jury selection was well under way before revealing to his attorney that he actually had shot both victims and that his prior relationship with Flournoy was at the heart of it. When asked why he had not disclosed the sexual incidents to his attorney, Greene said:

"I felt I—you know, I felt I didn't have a chance regardless. I mean I kept it hid, one, because it's not something that you can just tell somebody. I mean, you know, that's—that's something that I thought would be put away forever, you know. I didn't—I didn't ever know that I was gonna have to ever come to this point."

In consequence, Greene's attorney learned for the first time during jury selection that his client had shot the victims and that Greene had a potentially significant past relationship with Flournoy. Not long before jury selection began, Greene's attorney's request for a continuance for the purpose of securing alibi witnesses had been denied by the trial court. In these circumstances, Greene's attorney did not request a continuance for the purpose of preparing a new defense.

The scope of an appellate court's review of the trial court's decision on an ineffective assistance of counsel question is de novo. State v. Rice, 261 Kan. 567, Syl. ¶ 16, 932 P.2d 981 (1997). It is well established that "[t]he proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances." 261 Kan. 567, Syl. ¶ 14. The complaining defendant must show that "counsel's representation fell below an objective standard of reasonableness." 261 Kan. 567, Syl. ¶ 14. Judicial scrutiny of counsel's performance must be highly deferential, must evaluate the conduct from counsel's perspective at the time, and "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." 261 Kan. 567, Syl. ¶ 14. Thus, the question for this court is whether Greene's attorney's performance in...