State v. Higgenbotham

• Decision Date: 17 April 1998
• Docket Number: No. 77620,77620
• Parties: STATE of Kansas, Appellee, v. Chester L. HIGGENBOTHAM, a/k/a Matthew S. Murphy, Appellant.
• Court: Kansas Supreme Court

Page 416

957 P.2d 416

264 Kan. 593

STATE of Kansas, Appellee, v. Chester L. HIGGENBOTHAM, a/k/a Matthew S. Murphy, Appellant.

No. 77620.

Supreme Court of Kansas.

April 17, 1998.

Syllabus by the Court

1. In a hard 40 sentencing case, the aggravating circumstance in K.S.A. 21-4636(e) is interpreted to mean that a murder is committed in order to avoid or prevent a lawful arrest or prosecution for a crime other than the murder.

2. In an appeal from convictions for premeditated first-degree murder, K.S.A. 21-3401, and kidnapping, K.S.A. 21-3420, the record is examined and it is held that the district court did not err in (1) denying a motion for a mistrial which was based on defendant's claim that the prosecutor's closing argument comments about defendant's "secrets" referenced defendant's failure to testify, thus violating his Fifth Amendment right to a fair trial; (2) denying defendant's request that the jury be admonished because the prosecutor referred to him during closing argument as a "man with many secrets"; (3) admitting evidence concerning an Arizona driver's license issued in the name of an alias, when defendant offered to stipulate to his true identity; (4) giving, over objection, a limiting instruction on evidence of prior crimes; (5) finding the evidence sufficient to support defendant's kidnapping conviction; (6) admitting four of the five drawings of nude women, seized from defendant's cell, with admission of the fifth being harmless error; and (7) finding that the killing was committed to avoid or prevent lawful arrest and prosecution, K.S.A. 21-4636(e), and in an especially cruel, heinous, or atrocious manner, K.S.A. 21-4636(f).

Steven R. Zinn, Deputy Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

Mary A. McDonald, County Attorney, argued the cause, and Carla J. Stovall, Attorney General, was with her on the brief, for appellee.

SIX, Justice:

This case concerns the prosecutor's comments during closing argument, district court rulings during trial, and imposition of the hard 40 sentence.

Defendant Chester L. Higgenbotham, alias Matthew S. Murphy, appeals his convictions and sentence following a jury trial for premeditated first-degree murder, K.S.A. 21-3401, and kidnapping, K.S.A. 21-3420. Higgenbotham received a hard 40 sentence for the murder conviction and 49 months, consecutive to the hard 40, on the kidnapping charge. Our jurisdiction is under K.S.A. 22-3601(b)(1), (premeditated first-degree murder is an off-grid crime).

Higgenbotham claims the district court erred in: (1) denying his motion for a mistrial; (2) denying his request that the jury be admonished because the prosecutor referred to him during closing argument as a "man with many secrets"; (3) admitting evidence concerning an Arizona driver's license issued in the name of an alias, when Higgenbotham had offered to stipulate to his true identity; (4) giving, over objection, a limiting instruction on evidence of prior crimes; (5) finding the evidence sufficient to support Higgenbotham's kidnapping conviction; (6) admitting drawings of nude women, seized from his cell; and (7) finding that the killing was committed to avoid or prevent lawful arrest and prosecution and in an especially cruel, heinous, or atrocious manner.

We find no reversible error and affirm.

Higgenbotham assumed the alias of Matthew S. Murphy; thus, we also refer to Higgenbotham as either Murphy or defendant in the opinion.

FACTS

Jonetta McKown (Jodi) was working as a prostitute on South Broadway in Wichita. Jodi was last seen alive during the early morning hours of September 16, 1995. Her decomposed body was discovered in Harvey County on October 11, 1995. Higgenbotham admitted he had picked up a woman named Jodi in Wichita on September 16, 1995. He said he gave her $50 for companionship and According to Kevin Permenter, Jodi's boyfriend, Jodi said that a man identified by her friend Mary Simpson as Higgenbotham was in a car parked in front of Mary's apartment. He was looking for cocaine. Permenter and Jodi left to talk to the man, whom Permenter identified as Higgenbotham. Higgenbotham asked Permenter if he knew where to get rock cocaine. Permenter and Jodi got into the car. While in the car, Higgenbotham said that he was from Arizona. Higgenbotham offered Jodi $50 to spend 10 or 15 minutes with him. She accepted the offer. Permenter walked back to his motel room.

dropped her off at the bus station at approximately 3 a.m.

Permenter testified that Jodi and Higgenbotham returned to the motel about 10 or 15 minutes later. Jodi said that Higgenbotham had offered her $200 to spend more time with him and to locate cocaine. During the discussion, Brandi Schulz arrived at the motel. Brandi testified that Jodi said that Higgenbotham had offered her $200 to spend the night with him. Permenter told Jodi not to go, but Jodi said she felt comfortable and that they needed the money. Brandi, conversely, testified that Higgenbotham gave Jodi the "creeps" but Permenter told Jodi that they needed the money. Jodi agreed to go. She received $100, which she left in the motel room. Brandi was concerned because of the unusual circumstances (to spend all night and the amount of money). She wrote down the license tag number of Higgenbotham's car. Brandi identified Higgenbotham as the man with whom Jodi left the motel.

When Jodi had not returned on September 17, Brandi filed a missing person report. Wichita police officers learned that the car Brandi had noted was registered to Matthew Murphy, of Newton.

Wichita police officer Paul O'Mara received a phone call from a person who identified himself as Matthew Murphy. Murphy acknowledged that he had been on South Broadway with a woman named Jodi. He said he had offered her money for companionship and had dropped her off at the bus station at 3 a.m.

Vicki Brault testified that she married the defendant, known as Matthew Murphy, in November 1994. (She did not know her husband was Higgenbotham until she was questioned by police in September 1995. She filed for an annulment of her marriage on the grounds of forgery and misrepresentation.) Vicki said that when she arrived home on the evening of September 15, she found a note from her husband saying that he had gone to a friend's house. She was worried because her husband was not home at 3 a.m. She began looking for him and located their maroon Chrysler in front of a storage locker. The locker was rented by her husband's friend, Chuck Peters, who allowed Murphy to use the locker to work on cars. Vicki said that when she pulled behind the Chrysler, she saw a white female slouched down in the seat of the car. Murphy told her that the woman's name was Jodi or Joanie and that she was a friend of a friend who needed a ride home. While Vicki testified that the woman was not moving, she acknowledged she told police that the woman did not appear to be hurt. Vicki said she told her husband she wanted him home right away. He showed up at the house 3 or 4 minutes later.

The police executed a search warrant for Murphy's residence and for the Chrysler. Both Murphy and his wife agreed to go with the Newton Police to discuss the incident. Detective Snyder testified that in his initial interview, Murphy said he had gone to Wichita about 12:30 a.m. on September 16 to go to the home of an acquaintance. The acquaintance had parts to a vehicle on which Murphy was working. A woman waved at him and asked for a ride. He asked her if she wanted to party and she said yes. They drove to a motel on Broadway and then went to a house. The woman got out of the car and returned with a man who asked him to take them to another house. The man went up to that house, came back and said that he could not get any cocaine and asked to be returned to the motel. After he dropped the man off at the motel, he and the woman continued to drive around. The woman told him that he owed her $50 for companionship. He objected because they had not had sex, but agreed to pay her because he did not want any After two interviews with Murphy, Detective Snyder spoke with Vicki Brault, who informed him of her encounter at the storage unit. Snyder again spoke with Murphy regarding Vicki's statement. Murphy said that he had gone to the storage unit to drop off some oil and a filter. He planned to work on his 1977 Plymouth the following day. While he was there, a woman named J.D. or Joleen, whom he knew from Kay's Lounge, showed up and wanted a ride home. That woman was in his car when Vicki arrived looking for him. The owner of Kay's Lounge testified that there was not a female member or patron of the bar named J.D.

trouble. He dropped the woman off at the bus station and returned to Newton, arriving home at 4 or 4:30 a.m.

A search of the storage unit produced black nylon wire ties, rolls of duct tape, and some yellow rope. Wadded-up duct tape was found in the back of a Chevette that was inside the unit. A button was found on the floor and a used condom was found in a cardboard box. A crime scene investigator testified that the green duct tape found in the back of the Chevette had hair in it. The investigator also collected hairs and fibers from the Chrysler.

Chuck Peters testified that the black plastic ties that were found in his storage shed did not belong to him. He did have yellow nylon rope. He said that he had seen duct tape in Murphy's tool box. According to Murphy, the condom was not his and he had not had sex in the shed. He also said that it was not Jodi, but a woman named J.D., whom his wife had seen him with at the shed.

Because Officer Snyder had information that Murphy had also used the name Chester Higgenbotham, he asked Murphy if he had used any names other than Matthew Murphy. Murphy said that he had used the name Chester L. Higgenbotham. Snyder testified that Murphy told him his real name was Matthew Murphy and that ...