State v. Kingsley

• Citation: 851 P.2d 370,252 Kan. 761
• Decision Date: 16 April 1993
• Docket Number: No. 67260,67260
• Parties: STATE of Kansas, Appellee, v. Alan W. KINGSLEY, Appellant.
• Court: United States State Supreme Court of Kansas

Page 370

851 P.2d 370

252 Kan. 761

STATE of Kansas, Appellee, v. Alan W. KINGSLEY, Appellant.

No. 67260.

Supreme Court of Kansas.

April 16, 1993.

Syllabus by the Court

1. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after reviewing all of the evidence, viewed in the light most favorable to the State, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

2. In the context of K.S.A. 21-3719, aggravated arson, a human being is a living person.

3. Where a defendant has been convicted of a greater offense but the evidence supports only a lesser included offense, the case must be remanded to resentence the defendant for conviction of the lesser included offense.

4. In a homicide case where a victim was rendered unconscious prior to the murder, what occurs after the victim is rendered unconscious is relevant in determining if the victim was murdered in an especially heinous, atrocious, or cruel manner. What is relevant to that determination is the manner in which the victim was murdered. That determination ends upon the death of the victim and not when the victim is rendered unconscious.

5. In an appeal from various convictions in a criminal trial, the record is examined and it is held that the district court did not err in (1) failing to appoint counsel to represent defendant in his post-trial pro se motion; (2) admitting photographs and exhibits; (3) instructing the jury in mid-deliberation on premeditation; (4) excluding two black jurors; (5) refusing to instruct on voluntary manslaughter; (6) instructing the jury in the hard 40 sentencing proceedings; and (7) sentencing the defendant. It is further held that there was insufficient evidence to support the conviction of aggravated arson, and defendant must be resentenced for the lesser included offense of arson.

Steven R. Zinn, Deputy Appellate Defender, argued the cause, and Wendy L. Rhyne Slayton, Asst. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, were on the brief for appellant.

Debra S. Byrd, Asst. Dist. Atty., argued the cause, and Rachelle Worrall Smith, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were on the brief for appellee.

ALLEGRUCCI, Judge:

Alan W. Kingsley appeals from his jury convictions of first-degree murder, K.S.A.1992 Supp. 21-3401(a); aggravated robbery, K.S.A. 21-3427; aggravated arson, K.S.A. 21-3719; and forgery, K.S.A. 21-3710(b). He was sentenced to life without parole for 40 years, 15 years to life, 15 years to life, and 1 to 5 years, respectively. The life sentence is to run consecutively to one term of 15 years to life. The other term of 15 years to life is to run concurrently with the 1-to-5-year term, and the concurrent terms are to run consecutively to the others.

The State's theory of the murder was that Kingsley needed money to leave Wichita. He gained entry into Donna Baker's house on the pretense of paying the next month's rent. He knocked her unconscious, stabbed her five times in the chest, took her into the bedroom, and slit her throat. He took valuable items from the house, set fire to a pile of clothes in the bedroom, closed the bedroom door, and left the house.

The State's evidence showed the following: Kingsley and his wife Sherri had moved from Florida to Kansas "around Easter time." Easter was March 31, 1991. The move was prompted by outstanding warrants for both of them in Florida. They arrived in Leon, Kansas, on the Tuesday after Easter, April 2, and stayed with Kingsley's grandmother.

Donna Baker owned some apartments in Wichita. On April 7 she leased an apartment to the Kingsleys. Alan Kingsley used the name Duane Kingsley in the lease.

For a few days Kingsley tried to sell ersatz designer perfumes door to door. Then on Friday, April 19, Kingsley got a job at an automobile detail shop. There he used the name Duane Maxwell.

While Kingsley was at work on Monday, April 22, Sherri received a telephone call from a Butler County law enforcement officer who asked about Kingsley's whereabouts, birthdate, and social security number. Sherri contacted Kingsley at the detail shop, and he returned to the apartment about mid-morning.

During that day, in preparation for leaving Wichita, they checked rental prices for U-Haul trucks. They went to several pawn shops but could not get as much money as they wanted for their items. They bought a BB gun that looked like a real gun, which Kingsley intended to use for robbing convenience stores.

About 3:30 p.m. they returned to the apartment, and Kingsley called Donna Baker. Sherri overheard him speak about making arrangements to visit Baker that evening or the next day to pay the next month's rent. Kingsley called his grandparents in Elgin, Kansas, to see if he could pick up the title to his motorcycle. They drove to Elgin, approximately two hours from Wichita, stayed about 30 minutes, and returned.

When Sherri fell asleep that night, Kingsley was still up. She awakened at about 2:00 or 3:00 a.m. Kingsley came into the bedroom wearing a cap and jacket and placed wallets, checkbooks, and jewelry on the bed. Sherri testified that Kingsley told her that he had just killed and robbed Donna Baker.

Later that morning, April 23, Kingsley went to the detail shop to get his check for the work he had done. That afternoon Kingsley and a woman cashed a $500 check made payable to Sherri Olin on the account of Donna Baker. Sherri's maiden name was Olin, and her identification still bore that name. A handwriting expert testified that Sherri endorsed the check but did not write on the face of the check.

Also on April 23, Donna Baker's sister went to Baker's house and saw that the bedroom window was black with soot. Upon entering the house she saw blood and broken items on the floor. She summoned the police.

The first police officer to arrive smelled smoke immediately upon entering the house. He saw blood and other signs of a struggle.

One of the bedroom doors was closed; it was smoke-smudged across the top and down one side. The door was warm to the officer's touch. He pushed it open, and smoke billowed out. What appeared to have been clothing smoldered on a cabinet, and the nearby television was smoldering. As the smoke cleared, he saw Donna Baker's body.

A forensic pathologist testified that various injuries to Donna Baker's hands, face, and head were consistent with her putting up a fight and being hit on the head. She had been stabbed five times in the chest. Any or all of the stab wounds could have caused her death. He believed that she had been stabbed while she was lying down in the living room. In addition, her throat had been cut, and he believed that her throat wound was inflicted in the bedroom either as she was dying or after she was dead.

The fire in the bedroom had been intentionally set. The fire burned primarily in a pile of clothing on a desk in the bedroom. The oxygen supply to the fire was limited by the bedroom door being closed, and the fire smoldered in place instead of spreading to the rest of the house.

Kingsley testified that he and Sherri went to Donna Baker's house together. They intended to knock her out, tie her up, and take her money. Once they were in the house, Kingsley hit Donna Baker on the head with a wine cooler until she was unconscious. Then he went to the bathroom. When he came out of the bathroom 10 or 15 minutes later, he saw Sherri kneeling over Donna Baker with a knife in her hand. There was blood on Donna Baker's throat. Sherri tried unsuccessfully to drag the body; Kingsley picked the body up by the shoulders and dragged it into the bedroom. Then the couple picked through Donna Baker's belongings.

Kingsley first claims that the district court erred in failing to appoint counsel other than trial counsel to represent him at the hearing on his untimely pro se motion for new trial, which alleged ineffective assistance of counsel. Kingsley's trial was completed on August 27, 1991; the verdict was filed on September 4. On September 6 trial counsel filed a motion for new trial on Kingsley's behalf. On October 8 Kingsley filed a pro se pleading entitled, "Motion for New Trial," in which he complained of trial counsel's ineffective representation.

On appeal Kingsley does not argue that his trial counsel was ineffective. Instead, he argues that the district court should have appointed other counsel to represent him at the hearing on his pro se motion. He relies on State v. Andrews, 228 Kan. 368, 614 P.2d 447 (1980).

K.S.A. 22-3501 governs motions for new trial in criminal cases. If the basis for the request for new trial is newly discovered evidence, it must be made within two years of judgment. "A motion for a new trial based on any other grounds shall be made within 10 days after the verdict." With regard to entitlement to counsel on a motion for new trial, this court has stated:

"The customary motion for a new trial which must be filed within ten days under K.S.A. 22-3501 and which is principally for the purpose of calling to the attention of the trial court alleged trial errors is a stage of the criminal proceedings within the purview of K.S.A.1979 Supp. 22-4503, and counsel must be provided to an indigent defendant for the purposes of such a motion." State v. Andrews, 228 Kan. 368, 614 P.2d 447, Syl. p 3.

A timely motion for new trial was filed on Kingsley's behalf by trial counsel. Kingsley's pro se motion alleged that trial counsel failed to call witnesses on his behalf and had been bribed by Sherri's parents. It was not based on newly discovered evidence, and it was not filed within the 10-day period allowed for motions for new trial.

Kingsley asserts that, despite the apparent conflict, trial counsel represented him at the hearing on his pro se motion. The record does not support his assertion. On October 9, 1991, the district court...