State v. Lumley

• Court: Kansas Supreme Court
• Writing for the Court: ABBOTT
• Citation: State v. Lumley, 266 Kan. 939, 976 P.2d 486 (Kan. 1999)
• Decision Date: 05 March 1999
• Docket Number: No. 80,181,80,181
• Parties: STATE of Kansas, Appellee, v. Vickie LUMLEY, Appellant.

Page 486

976 P.2d 486

266 Kan. 939

STATE of Kansas, Appellee, v. Vickie LUMLEY, Appellant.

No. 80,181.

Supreme Court of Kansas.

March 5, 1999.

Syllabus by the Court

1. The admissibility of evidence lies within the sound discretion of the trial court. Our standard of review regarding a trial court's admission of evidence, subject to exclusionary rules, is abuse of discretion.

2. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Judicial discretion must thus be considered as exercisable only within the bounds of reason and justice in the broader sense and be considered abused only when it plainly overpasses those bounds.

3. One who asserts that the court has abused its discretion bears the burden of showing such abuse of discretion.

4. Relevant evidence is evidence having any tendency in reason to prove any material fact. For evidence of collateral facts to be competent, there must be some material or logical connection between them and the inference or result they are designed to establish.

5. When a question arises as to whether evidence at trial is unfairly prejudicial, the trial court has an obligation to weigh the probative value of the evidence. When the prejudicial effect of the evidence on the trier of fact outweighs the probative value of the evidence, the evidence should be excluded.

6. A reviewing court must scrutinize each case on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error.

7. Where a proper question is asked, and an improper answer given, the only remedy of the aggrieved party is by motion to strike. It is impossible for the court to exclude in advance an improper answer to a proper question. The propriety of the answer cannot, in the nature of things, be determined before it is given.

8. Evidence of prior acts between a defendant and a victim are admissible independent of K.S.A. 60-455 if the evidence is to establish the relationship between the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witness as to the act charged. Case law has allowed prior conduct to be admitted into evidence where a family relationship existed.

9. When self-defense is asserted, evidence of the cruel and violent nature of the deceased toward the defendant is admissible.

10. In a case of marital homicide, evidence of a discordant marital relationship and a wife's fear of her husband's temper is relevant as bearing on the defendant's motive and intent.

11. A point not raised in the trial court cannot be raised for the first time on appeal. It is well established that a party may not assert error based upon the erroneous exclusion of evidence in the absence of a proffer of that proposed evidence.

12. The analysis of the effect of a prosecutor's allegedly improper remarks in closing argument is a two-step process. First, the appellate court determines whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. This analysis commences with the holding that in criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. Second, each case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error.

13. Improper remarks made in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial. In deciding whether improper remarks by the prosecution during closing argument constitute harmless error, the reviewing court must be able to find that the error had little, if any, likelihood of changing the result of the trial. Such a belief must be declared beyond a reasonable doubt.

14. Before an objectionable statement made by a prosecutor on matters outside the record will entitle the accused to a reversal of his or her conviction, it first must appear that it was injurious to the accused and was likely to affect the jurors to the accused's prejudice.

15. Reversible error cannot be predicated upon a complaint of misconduct of counsel during closing argument where no contemporaneous objection is lodged.

16. If a prosecutor's statements rise to the level of violating a defendant's right to a fair trial and, thus, deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection.

Debra J. Wilson, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.

Wayne R. Tate, special prosecutor, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellee.

ABBOTT, J.:

This is a direct appeal by defendant Vickie Lumley from her conviction of intentional second-degree murder of Robert Guerrero in violation of K.S.A.1996 Supp. 21-3402(a).

Lumley raises a number of issues on appeal that fall into three categories: (1) The trial court erred in not sustaining an objection and admonishing the jury to disregard a witness' comment that Lumley had been bailed out of jail; (2) the trial court erred in limiting the evidence of her tumultuous relationship with Guerrero and his acts of violence towards her; and (3) the trial court improperly allowed the prosecutor to ask questions which assumed facts not in evidence and to make improper comments during closing argument.

Lumley was charged with intentional second-degree murder in connection with the December 12, 1996, death of Guerrero. A jury found Lumley guilty as charged. Intentional second-degree murder is an off-grid crime, with a sentence mandated by statute, and Lumley was sentenced to life imprisonment pursuant to K.S.A.1996 Supp. 21-4706(c).

Lumley and Guerrero lived together in a common-law marriage. A few years before his death, Lumley and Guerrero began living in a mobile home in rural Stevens County, Kansas. The mobile home did not have a telephone. Lumley characterized her relationship with Guerrero as "up and down" and said that when Guerrero was drinking heavily, the relationship was bad, otherwise it was good. Lumley testified that after Guerrero's father died in December 1993, he developed problems with his temper, and his violence towards her prompted her to move out of the mobile home several times. In May 1996, Lumley moved out of the mobile home, but she returned in June. She subsequently moved out again but returned in September 1996, upon reconciliation.

Lumley testified that in early November 1996, she and Guerrero had a violent argument and he was angry and throwing things. She further stated that he yelled at her two sons, who lived with them, and threw her against the bedroom wall and then against the living room wall. Guerrero took her to the emergency room in Hugoton with bruises on her chest and arms and pulled muscles in her upper body. Lumley testified that later in November 1996, another episode of violence occurred when Guerrero punched holes in the bedroom wall and "he kind of pitched me around."

Tyler Lumley, Lumley's 13-year-old son, testified that at times he was afraid of Guerrero and had seen him act violently. Justin Lumley, Lumley's 12-year-old son, testified that Guerrero had thrown a table, chairs, and a buffet out the door of the mobile home in early November. Neither son was present when the second November episode occurred.

On December 11, 1996, the day before his death, Guerrero and Lumley again argued. Lumley testified that Guerrero was angry because she had been subpoenaed to testify in a forgery case and he did not want her involved. She said that Guerrero did not come home that night but returned at approximately 8:30 a.m. on December 12, 1996. As she was leaving the house that morning, he told her that they would deal with their disagreement when he got home that night.

Justin returned home from school at about 4 p.m. on December 12, 1996, and Lumley took him to Hank and Karen Plummer's house to pick up Tyler. Lumley usually stayed with Karen Plummer when Tyler played basketball in town. Lumley brought some beer to the Plummers' house. When Hank came home from work shortly before 5 p.m., another 6-pack of beer was purchased. Guerrero arrived at the Plummers' house at about 6:30 p.m. According to Hank, Guerrero wanted to speak with Lumley, but Lumley did not want to speak with him. Guerrero said, "okay" and went outside to his car to leave but came back in and told Lumley that he "was going home, if there was anything that she needed." Hank stated that Lumley responded, "Gas in the car, and you can go pick up my son at the game."

Guerrero then left to get the gas and to pick up Tyler. While Guerrero was gone, Karen broached the subject of a telephone bill and asked how Lumley and Guerrero planned to pay back $100 they owed the Plummers for the calls made using their phone. Guerrero returned to the Plummers' house with Tyler and the gas within 45 minutes. Hank testified that Guerrero came in the house and again asked Lumley if he could speak with her. When Lumley again said, "No," Guerrero announced that "he was going home and going to bed" and left at about 8:30 p.m. Lumley testified that he appeared very angry when he left and she did not want to get into a fight with him.

After Guerrero left, Hank told Lumley...