State v. Krider

• Decision Date: 06 March 2009
• Docket Number: No. 98,621.,98,621.
• Citation: 202 P.3d 722
• Parties: STATE of Kansas, Appellee, v. Charles Christian KRIDER, Appellant.
• Court: Kansas Court of Appeals

202 P.3d 722

STATE of Kansas, Appellee, v. Charles Christian KRIDER, Appellant.

No. 98,621.

Court of Appeals of Kansas.

March 6, 2009.

Jennifer E. Conkling and Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Nathan P. Eberline, assistant solicitor general, and Stephen N. Six, attorney general, for appellee.

Before RULON, C.J., GREENE and HILL, JJ.

RULON, C.J.

Defendant Charles Christian Krider appeals from his jury conviction of intentional second-degree murder. We affirm.

The defendant contends the district court erred in denying defendant's motions for appointment of a venire expert and for a change of venue; granting the prosecution's motion in limine to exclude defendant's alternative-perpetrator theory; denying defendant's motion for new trial based on prosecutor misconduct; instructing the jury on lesser offenses; sentencing the defendant to the maximum presumptive sentence; and denying defendant's motion for a new trial based on newly discovered evidence.

Underlying Facts

On January 19, 2004, Mary LaFaye Noble was supposed to meet the victim, Judith Shrum, at the victim's house south of Chetopa, Kansas. When the victim did not answer her door or phone, Noble and a neighbor discovered the front door was unlocked, entered the house and searched it, but found only the victim's purse and cell phone sitting on a counter and the victim's car parked in the garage. Noble then called 911.

Although there was no sign of forced entry or a struggle, Noble informed the police she noticed wet towels on the bathroom vanity and clothes and a pillow on the floor of the bedroom, which seemed out of place for the victim, a meticulous housekeeper. Law enforcement officers collected the towels from the bathroom, a single hair lying on one towel, and swabs of two stains on the bathroom countertop.

Initially, law enforcement officers feared the victim had harmed herself because of the recent death of her husband. Community members and law enforcement began searching for the victim. On January 21, the victim's house was sealed off as a possible crime scene, and the sheriff's office executed a search warrant on the house a day later, collecting hair from the shower drain and a nightgown and robe from the master bedroom.

Eventually, the victim's partially clothed body was located in a nearby creek on January 23. She had been strangled to death.

The Chetopa police chief filed a report stating he had seen the defendant's vehicle driving in Chetopa at midnight on January 19, 2004. On January 26, two KBI agents interviewed the defendant. The defendant told the agents he had been watching football at a friend's house on January 18 before returning home at about 9 p.m. to play video games for a couple of hours. According to the defendant, around 11 p.m., he drove to some of his property southeast of Chetopa to shoot beavers and returned home around 2 a.m. on January 19, 2004. The defendant told the agents he had met the victim when they both worked for the Chetopa School District in 1996-97. According to the defendant he owned a tilling business and had been to the victim's house to till a garden.

DNA testing on stains from the robe, a towel from the bathroom, and the bathroom vanity revealed a mixture of DNA. Neither the defendant nor the victim could be excluded as contributors to the stains. The defendant's facial hair was found to be consistent with the hair found on the bathroom towel, and his pubic hair was consistent with a hair from the shower drain.

Ultimately, the State charged the defendant with one count of premeditated first-degree murder, in violation of K.S.A. 21-3401, and one count of aggravated battery, in violation of K.S.A. 21-3716. Later, the State filed an amended complaint/information charging the defendant with one court of premeditated first-degree murder, in violation of K.S.A. 21-3401.

The defendant's first trial resulted in a mistrial after the jury could not reach a unanimous decision.

Prior to the second trial, the defendant filed a motion to appoint an expert to conduct a survey to determine if the venue should be changed and a motion for change of venue, arguing the defendant was prejudiced by pretrial media coverage. The district court denied both motions.

At the close of the evidence of the second trial, in addition to first-degree murder, the district court instructed the jury on the lesser included offenses of second-degree murder and voluntary manslaughter, over the defendant's objection. Following deliberation, the jury found the defendant guilty of murder in the second degree. The defendant moved for a new trial, citing multiple errors. The district court denied the motion.

The district court found the defendant's criminal history was category I, denied the defendant's motion for departure, and sentenced the defendant to the upper presumptive sentence of 165 months' imprisonment in the custody of the Secretary of Corrections.

The defendant timely appealed from his conviction and sentencing. While this appeal was pending, the defendant filed another motion for new trial in the district court and a motion for remand and stay of appellate proceedings in this court, contending there was newly discovered evidence regarding the custodian of evidence in the case. We remanded the matter to the district court for the limited purpose of considering the motion for new trial based on newly discovered evidence.

Eventually the district court held a hearing and denied the motion. The denial of this motion is before us in this appeal.

Venue Issues

On appeal, the defendant's first argument is the district court erred in denying his motion for change of venue claiming he did not receive a trial by a fair and impartial jury. The defendant asserts the pretrial publicity and small size of the community from which the jury was drawn prejudiced the jury pool.

The State responds the defendant offers insufficient evidence of juror bias in light of previous Kansas case law on change of venue.

Change of venue decisions are entrusted to the sound discretion of the district court, and such decisions will not be disturbed on appeal unless there is a showing of prejudice to the substantial rights of the defendant. State v. Higgenbotham, 271 Kan. 582, 591, 23 P.3d 874 (2001); see K.S.A. 22-2616(1).

Media publicity alone does not establish prejudice. State v. Verge, 272 Kan. 501, 508, 34 P.3d 449 (2001). Clearly, the defendant has the burden to show prejudice exists in the community, "not as a matter of speculation but as a demonstrable reality." Higgenbotham, 271 Kan. at 591, 23 P.3d 874. Further, the defendant must show that the prejudice was such that it was reasonably certain he or she could not have obtained a fair trial. 271 Kan. at 591-92, 23 P.3d 874.

Our Supreme Court has noted a variety of factors that may be considered in determining whether the atmosphere is such that a defendant's right to a fair trial would be jeopardized:

"[T]he particular degree to which the publicity circulated throughout the community; the degree to which the publicity or that of a like nature circulated to other areas to which venue could be changed; the length of time which elapsed from the dissemination of the publicity to the date of trial; the care exercised and the ease encountered in the selection of the jury; the familiarity with the publicity complained of and its resultant effects, if any, upon the prospective jurors or the trial jurors; the challenges exercised by the defendant in the selection of the jury, both peremptory and for cause; the connection of government officials with the release of the publicity; the severity of the offense charged; and the particular size of the area from which the venire is drawn. [Citation omitted.]" Higgenbotham, 271 Kan. at 592, 23 P.3d 874.

The defendant knits together a variety of voir dire responses and incidents to support his argument. The defendant's complaints can be summarized as follows: only 58 of 107 venire members were questioned; only five of those questioned said they had never heard of the case; two jurors responded to the question of whether they could be impartial by saying they "think" or "feel" they could be; not enough venire members were excused for cause; three venire members stated concerns about the community reaction if they served on the jury; some venire members stated they had read or heard information about the case and had an opinion about it; one venire member's wife had served on the jury at the first trial and told him the community members blamed the first jury for not convicting the defendant; two venire members provided inconsistent answers; some venire members indicated they "thought" they could be impartial or could "probably" be impartial; and the venire panel was exposed to two venire members expressing their opinion that the defendant was guilty.

Examining the defendant's contentions in light of the factors laid out in Higgenbotham, clearly there was widespread publicity regarding the victim's murder throughout the community. Although the severity of the offense and the relatively small size of the community may weigh in favor of the defendant's argument, on the other side is the fact jury selection was accomplished in 1 day and only just over half of the venire members needed to be questioned before a jury could be selected. Moreover, the answers provided by the selected jurors indicated they would not be affected by the pretrial publicity and would impartially consider the facts before them.

Nearly all of the responses cited by the defendant involved venire members but not the selected jurors. The purpose of voir dire is to allow the parties to select competent jurors who are without bias, prejudice, or partiality. State v. Hayes, 258 Kan. 629, 631, 908 P.2d 597 (1995). Here the venire members who indicated they might be influenced by the community or the publicity surrounding the trial were eliminated...