State v. Jones

• Decision Date: 09 July 1999
• Docket Number: No. 80,962.,80,962.
• Citation: 267 Kan. 627,984 P.2d 132
• Parties: STATE OF KANSAS Appellee, v. LORENZO M. JONES, Appellant.
• Court: Kansas Supreme Court

267 Kan. 627

984 P.2d 132

STATE OF KANSAS Appellee, v. LORENZO M. JONES, Appellant.

No. 80,962.

Supreme Court of Kansas.

Opinion filed July 9, 1999.

Craig Durham, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant.

Nels P. Noel, county attorney, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

The defendant, Lorenzo Jones, appeals from a jury conviction of one count of second-degree murder in violation of K.S.A. 1998 Supp. 21-3402(a). Jones was sentenced to life imprisonment pursuant to K.S.A. 1996 Supp. 21-4706(c).

Jones claims the district court erred by failing to instruct the jury on reckless second-degree murder as a lesser included offense; in refusing Jones' request to compel two State witnesses to submit to psychological examinations; and in admitting Jones' written statement into evidence.

Jones and Angela Bagby lived together and had a son. In mid-January 1997, Jones was arrested for the battery of Bagby. While Jones was in jail, Bagby several times was seen talking to him by standing outside the fenced area where inmates smoked. On January 30, an officer asked Bagby to leave when it appeared that she and Jones were getting into an argument. A man who was in the jail in January 1997 testified that one time after Bagby visited, Jones remarked and seemed disturbed that she was not wearing her ring. After another visit, Jones seemed agitated. He remarked that she had her ring turned around. Bagby told a close friend that in early February she had a telephone conversation with Jones in which she told him that she had been "cheating" on him and that she did not want him to come back to her when he was released from jail.

When Jones was released on February 14, 1997, he called Bagby and asked her to pick him up. She refused. At approximately 2:45 p.m. Jones arrived at Bagby's residence. Bagby's friend Tonya Paris was there doing Bagby's nails. Jones entered, greeted Bagby, and talked to his little boy. Paris left for a 3 p.m. tanning appointment. When she returned at 3:30, Bagby whispered to her that Jones had found another man's ID on the dryer. Paris left again shortly after 4 p.m. Paris returned to Bagby's house at approximately 10 p.m. after Bagby called and asked her to come back. Jones, Bagby, and their baby were there. Bagby immediately left the living room and went into the bathroom. Jones told Paris that he and Bagby needed some time alone because he had found out about the man whose ID was on the dryer.

Paris left. At approximately 10:30 she saw Bagby's car being driven toward her house. Paris followed the car. When she got to Bagby's house, the car was parked close to the house and Jones and Bagby were on the porch. Bagby went to the window of Paris' car. She was crying, and she said that Jones would not leave her alone. Jones was acting as if nothing out of the ordinary was happening. At Bagby's request, Paris went in the house with them.

Bagby told Jones to "get his shit packed up, that she was taking him back to Liberal." Without showing any emotion, Jones sat back on the couch and smoked his cigarette. Within a few minutes Paris left. When she left, Bagby's car was still running and the baby was still in it. Within a half hour Paris drove by Bagby's house again. Paris was going to check on her but changed her mind when she saw a car parked nearby that belonged to Bagby's brother, Thad, and Teresa Gill.

Gill testified that they arrived at Bagby's house shortly before 11 p.m. Bagby's car was running, and the baby was in the front seat of the car. When Thad and Gill walked into the house, nobody seemed to be there. Thad called their names and they heard Jones tell them to wait a minute. Then in several minutes he came out of the utility room area. Thad wanted to use the bathroom, and Jones would not let him. Thad asked about his sister, and Jones said she was gone. Thad pointed out that her purse was still there, and Jones said she was in the bathroom getting high. Jones told them to come back in 20 minutes. When Thad and Gill returned to Bagby's house about 11:30, Jones left with them to go to Liberal to buy crack cocaine.

Bagby's body was found on her bathroom floor by law enforcement officers at approximately 3 p.m. February 15, 1997. Jones told law enforcement officers that he had "snapped" while arguing with Bagby and threw her to the floor, "then she was still."

Bagby died from asphyxia due to manual strangulation. Sufficient hand pressure was applied to her neck to break bone and cartilage in her throat. It is unusual to see breaking of these structures in a victim as young as Bagby, who was 22, because the "structures of the neck are rather pliable" at that age. The autopsy also showed numerous fresh, blunt trauma injuries ranging from Bagby's head to her lower shin. On the bridge of her nose, the nasal bone was exposed by a fresh laceration, which would be consistent with impact on the edge of a countertop or sink. Compression injuries to the area of her mouth and nose were consistent with someone holding a hand over her mouth. The coroner testified that it would take approximately 4 to 6 minutes for the victim to die from manual strangulation. The victim probably would lose consciousness before death occurred.

Jones requested an instruction on reckless second-degree murder. The trial court refused to give it.

Reckless second-degree murder, also known as depraved heart murder, was defined by the legislature as "the killing of a human being committed ... unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life." K.S.A. 1998 Supp. 21-3402(b).

The version of K.S.A. 21-3107(3) in effect in February 1997, when Bagby was killed, required the trial court to instruct the jury on the crime charged and all lesser included crimes of which the accused might be found guilty. When that provision was in effect, this court said that "[a]n instruction on a lesser included offense is required if there is substantial evidence upon which the defendant might reasonably have been convicted of the lesser offense." State v. Shannon, 258 Kan. 425, 427, 905 P.2d 649 (1995). Substantiality of the evidence was measured by viewing all the evidence in the light most favorable to the defendant. 258 Kan. at 427.

The trial court instructed that Jones was charged with premeditated first-degree murder and, in addition, the jury could consider intentional second-degree murder, voluntary manslaughter, and involuntary manslaughter. The reasons given by the trial judge for declining the proposed instruction on reckless second-degree murder are as follows:

"I did not see the applicability of second degree murder unintentional. And my gut feeling is that unintentional second degree murder is a separate and distinct charge. I believe that the state could have charged first degree murder or, in the alternative, second degree unintentional. But I do not believe that second degree unintentional is a lesser-included crime of second degree intentional."

We have considered several cases in which the evidence would not support a conviction of reckless second-degree murder. State v. Bailey, 263 Kan. 685, 952 P.2d 1289 (1998); State v. Clark, 261 Kan. 460, 931 P.2d 664 (1997); and State v. Pierce, 260 Kan. 859, 927 P.2d 929 (1996). In each case, the defendant argued that the jury should have been instructed on reckless second-degree murder, and the court disagreed.

In State v. Pierce, Pierce was convicted of premeditated first-degree murder. He argued that the jury should have been instructed on reckless second-degree murder. The court concluded that reckless second-degree murder is a lesser included offense of premeditated first-degree murder, 260 Kan. at 865, but that Pierce could not reasonably have been convicted of the lesser offense on the evidence in the record. The evidence showed that Pierce had an encounter with three boys. Pierce stated that he shot one of the boys who had pulled a knife. He intended to shoot the victim but not to kill him. The court stated: "There is no evidence of recklessness. The defendant's actions were intentional .... At best the evidence on behalf of the defendant suggested that he did not intend to kill the victim but only defended himself by [intentionally] shooting the victim in the leg." 260 Kan. at 867. In State v. Clark, Clark was convicted of premeditated first-degree murder of his girlfriend, Odanga, and attempted premeditated first-degree murder of a friend, Shine. He argued that the jury should have been instructed on reckless second-degree murder and attempted reckless second-degree murder. The court concluded otherwise. After a tumultuous evening at a bar, Clark and Odanga were fighting in their apartment. When friends arrived, Odanga held her face and screamed that Clark had hit her and Shine began to fight with Clark. Clark got a gun from the bedroom and fired two shots in Shine's direction. Then he went over to Odanga. She bent down with her hands up by her face. Clark put the muzzle of the gun to her temple and fired. With regard to Clark's killing his girlfriend, the court stated that "[t]he only evidence... of an accidental shooting was the statement Clark made after arrival of the law enforcement officers that he did not intend to kill [Odanga]. Clark's self-serving statement alone does not support a finding of recklessness." 261 Kan. at 466. With regard to Clark's firing at Shine, the court stated that there was no evidence that Shine's confronting Clark was "sufficient to cause Clark to believe he was in danger of great bodily harm or to deprive him of self-control." 261 Kan. at 467-68.

In State v. Bailey, Bailey was charged with premeditated first-degree murder and was convicted of intentional second-degree...