State v. Gunby

Decision Date27 October 2006
Docket NumberNo. 91,406.,91,406.
Citation144 P.3d 647
PartiesSTATE of Kansas, Appellee, v. Kevin W. GUNBY, Appellant.
CourtKansas Supreme Court

Michelle A. Davis, assistant appellate defender, argued the cause and was on the brief, for appellant.

W. Scott Toth, assistant district attorney, argued the cause, and Steven J. Obermeier, assistant district attorney, Paul J. Morrison, district attorney, and Phill Kline, attorney general, were on the brief, for appellee.

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

Defendant Kevin W. Gunby appeals his conviction and sentence in this premeditated first-degree murder case arising out of the strangulation death of his high school classmate, Amanda Rae Sharp.

Gunby raises four questions for this court's consideration: (1) Did the district court err in admitting evidence of prior violence between Gunby and Sharp? (2) Did the prosecutor commit reversible misconduct during closing argument? (3) Did the PIK Crim.3d instruction on lesser included offenses and argument emphasizing it nullify the presumption of innocence in K.S.A. 21-3109? and (4) Does cumulative trial error require reversal of defendant's conviction?

The pertinent facts are these: Brad Jaynes, a senior at Shawnee Mission North High School, attended school with Gunby. When Jaynes' family moved out of the school district, Jaynes began living with the Gunby family so that Jaynes could finish high school where he had started it.

On the day of the crime, Gunby and Jaynes went to school together in Gunby's car. There they met with friends, including Sharp and Jackie Erwin. Gunby asked Sharp to come over to his house sometime that day, and the two left together before school started at 7:45 a.m. The pair would often skip school together and go to Gunby's house, where they smoked marijuana and occasionally had sex.

At 9 a.m., Jaynes and Erwin also left school to go to the Gunby house. Erwin called Gunby as she drove, and Gunby told her not to come over. They argued, and she hung up on him. She then dropped Jaynes off at the Gunby house about 9:20 a.m.

When Jaynes arrived, Gunby met him at the door. Gunby looked sweaty and agitated; he had a cut over his right eye and bite marks on his shoulder.

"Guess what I did?" Gunby said. "[Y]ou know how I talked about killing [Sharp]? Well, I did it."

After this revelation, Jaynes observed Sharp lying face down on a bed in a downstairs bedroom. Blood was coming from her nose, and she was pale and limp. Jaynes unsuccessfully tried to find Sharp's pulse.

Gunby told Jaynes that he and Sharp had gotten into an argument about sexual activity they had engaged in earlier. Gunby said he had gotten rough with her and started throwing her around. Sharp had said she was going to have her boyfriend, Nick Adriano, kill Gunby. At that point, Gunby said, he choked Sharp for about 10 minutes. Sharp, Gunby told Jaynes, "put up a pretty good fight." Jaynes also testified ultimately that Gunby kept repeating that he was "fucked" and did not know what he was going to do. Gunby nevertheless said he planned to take Sharp's body to Nall Park and dump it in the creek to "get the DNA off of the fingernails."

At this point, Jaynes borrowed Gunby's car to go get cigarettes. When he returned to the house, he found Gunby gesturing for him to back the car into the garage. Gunby then wrapped Sharp's body in blankets and tried unsuccessfully to move her. At Gunby's request, Jaynes helped Gunby move the body to the garage, where Gunby placed it in the trunk of his car.

Gunby also asked Jaynes to help clean blood off a concrete wall. Gunby then repainted the wall and told Jaynes: "You'd better watch your back."

After eating lunch, Gunby gave Jaynes a ride to a friend's house. Before leaving, Gunby went through Sharp's purse, found an identification card, stroked it, and said he was going to keep it to remember her by. When he dropped Jaynes off at the friend's house, Gunby told Jaynes to think "happy thoughts" and not to mention anything about Sharp's death to anyone.

Jaynes did exactly the opposite. He told the friend about Sharp's death and walked with the friend to Shawnee Mission West (West), where he met his girlfriend.

The girlfriend testified that Jaynes was crying when he met her at West. He told her that Sharp was dead and that Gunby had strangled her. The girlfriend then called her mother, who told the teens to report the crime to a person in authority.

Jaynes and his girlfriend approached Officer Robert Miller, the school resource officer at West. Both were crying, and Miller could not understand them immediately. The girlfriend still had her mother on a cell phone, and the mother told Miller that the two teens were witnesses to a homicide. Miller then interviewed Jaynes and his girlfriend.

Detective Scott Atwell was assigned to investigate. He interviewed Jaynes at the police station at 4 p.m. on the day of the crime and again 2 days later. Jaynes' two recitations of events were essentially the same, although he acknowledged during the second that his first account had omitted his trip to get cigarettes after seeing Sharp's body.

Detective Gary Borstelman was assigned to conduct surveillance at the Gunby house, with instructions to detain Gunby if he attempted to leave. At about 6:30 p.m. on the day of the crime, Gunby came out of the house and walked toward his car. Borstelman approached Gunby and identified himself and ordered Gunby to take his hands out of his pockets and step to the rear of the car. Seeing people in the house looking out the window, Gunby said: "Please don't let my mother know why you are here," and, on the way to the squad car, "You almost missed me. I was getting ready to leave."

Detective Kent Leiker secured Gunby's car after he was arrested, and Sharp's body was discovered in the trunk. The body had been wrapped in multiple layers of bedding with duct tape secured at the ankles, upper torso, and around the head. Sharp's jeans and underwear had been pulled down to just above her knees. At the time her body was found, Sharp was clothed in a leather collar, about 1.5 inches wide and .25 inches thick, with eight spikes. The collar had been set in the tightest position, which left it with some slack. Sharp also was wearing a chain around her neck, twisted at one end and double-wrapped underneath the collar, and a black leather belt or harness, secured just above her hips with nylon straps that clipped on in the front and the back.

Forensic neuropathologist Michael Handler performed an autopsy on Sharp's body the next day, observing evidence of homicidal strangulation. Petechial hemorrhages indicated a prolonged struggle with on-and-off ligature. There also were abrasions corresponding with the upper edge of the collar on Sharp's neck, which extended horizontally over the sides of the neck, consistent with a homicidal strangulation involving a ligature. In addition, multiple injuries in several layers of Sharp's neck muscles, including two large hemorrhages, indicated manual strangulation. Handler opined that the collar had been shoved up, abrading Sharp's skin, and that the pressure for manual strangulation was applied just below the collar on her neck.

Handler also testified that it appeared Sharp had struggled with her killer, that there was considerable force applied, and that the strangulation was prolonged. When strangling pressure is applied, he said, a victim loses consciousness within seconds, and brain tissue starts to die within 6 minutes. However, pressure must be continuous for at least 8 and possibly 12 minutes or longer after the victim loses consciousness for vital parts of the brain to die. Sharp's injuries, he said, were consistent with the application of constant pressure to her neck for a period of 10 minutes.

Handler also testified that he had seen two to three cases per year of accidental asphyxiation when ligature had been used during sex. He said the collar and the belt on Sharp's body were typical of items worn by participants in sexual asphyxiation cases.

Handler also observed blunt force trauma to Sharp's forehead, the back of her head, and the temporalis muscle, which moves the jaw. The first of these injuries was consistent with Sharp's head hitting a concrete wall, causing bleeding between the scalp and the skull.

About 2 years before the crime, Gunby and Sharp had run away together for a week before they were found by authorities in California and sent back home. Gunby's parents did not approve of Sharp, nor hers of him. Yet Gunby continued to provide material things for Sharp, and the two continued to engage in sexual activity.

Sharp also had a boyfriend, Adriano, in the months leading up to her death. Gunby was jealous about this relationship and would get angry with Sharp. Jaynes testified that Gunby called Sharp a "slut" and "whore" and said on numerous occasions that he wished he could kill her. In addition, Gunby had admitted to Jaynes that he had gotten rough with Sharp about 2 weeks before her death.

Adriano testified that Sharp had told him Gunby called him a "bum" and urged her to break up with him. He also testified that he and Sharp had a sexual relationship and that she had refused to allow him to tie her up.

Over objection, Adriano also repeated a story Sharp had related about a violent incident between her and Gunby a month before her death. Sharp told Adriano that she and Gunby had been hanging out and smoking marijuana at Gunby's house. When she was getting ready to leave, Gunby smirked and pushed her onto a bed, where he jumped on her and handcuffed her wrist to a bedpost. After she struggled with him for several minutes, Gunby began choking her, which he continued to do for a minute or two. After he let go, she said, he was afraid she was going to tell someone. When Sharp relayed this story, Adriano said, she was crying and had visible injuries...

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