State v. Mayberry

• Decision Date: 01 March 1991
• Docket Number: No. 64772,64772
• Citation: 248 Kan. 369,807 P.2d 86
• Parties: STATE of Kansas, Appellee, v. M.C. MAYBERRY, Appellant.
• Court: Kansas Supreme Court

Page 86

807 P.2d 86

248 Kan. 369

STATE of Kansas, Appellee, v. M.C. MAYBERRY, Appellant.

No. 64772.

Supreme Court of Kansas.

March 1, 1991.

Syllabus by the Court

1. The Fourth Amendment to the United States Constitution provides that no warrant shall issue, except upon probable cause. Warrantless arrests are constitutionally valid, however, where the arresting officer has probable cause to believe a criminal offense has been committed. Probable cause exists when the arresting officer has knowledge of facts and circumstances sufficient for a prudent person to believe the suspect is committing or has committed an offense.

2. An officer without a warrant, who possesses sufficient personal knowledge or collective information from other law enforcement officers to constitute probable cause, can direct a second officer to arrest the suspect. Under the fellow officer rule, probable cause is determined by the collective information of the police involved in the investigation, rather than the exclusive knowledge of the particular officer who made the actual arrest.

3. Evidence of probable cause need not reach the level to prove guilt beyond a reasonable doubt, but it must constitute more than mere suspicion. In determining whether probable cause exists, we consider all the officer's information, the fair inferences drawn therefrom, and facts that might not be admissible on the issue of guilt.

4. Before a search warrant may issue, there must be a finding of probable cause by a neutral and detached magistrate. The search warrant affidavit must set forth sufficient factual information to enable the magistrate to make an independent evaluation that probable cause exists. Mere conclusions and affirmations of belief are not sufficient.

5. The determination to change venue lies within the trial court's discretion and will not be disturbed upon appeal absent a showing of prejudice to the substantial rights of the defendant. The burden is on the defendant to show community prejudice to such a degree that it is impossible to obtain an impartial jury and the showing must be more than mere speculation.

6. Extensive pretrial publicity has never been sufficient to establish prejudice per se. To determine whether a defendant's right to a fair trial is jeopardized, we examine the jury selection process; the degree of pretrial publicity; the length of time which elapsed from dissemination of the publicity until the time of trial; the familiarity with the publicity complained of and its effect on prospective and actual jurors; the challenges exercised by the defendant in selection of the jury; and the severity of the offense charged.

7. The authorization of funds for expert services necessary for an adequate defense in a criminal defendant's case lies within the sound discretion of the trial court. Appellate courts will not disturb the trial court's ruling unless the defendant shows prejudice to his or her substantial rights resulting from abuse in the exercise of the court's discretion.

8. K.S.A. 22-3423(1)(c) authorizes the trial court to order a mistrial where prejudicial conduct makes it impossible to proceed with the trial without injustice to the defendant. Declaration of a mistrial is a matter entrusted to the trial court's discretion and will not be disturbed on appeal absent a clear showing of abuse of discretion.

9. K.S.A. 43-162 provides that jury lists shall be prepared from voter registration records, lists of licensed drivers, lists of nondriver's identification cards, or census records. A jury panel randomly selected from only the driver's license rolls is clearly within statutory mandates. Failure to include in the jury list the name of every qualified person does not provide grounds for reversal of a conviction, and the United States Constitution does not require a supplemental source of potential juror names merely because an identifiable group registers to vote or obtains driver's licenses in a proportion lower than the rest of the population.

10. A potential juror may be challenged for cause where his or her state of mind with reference to the case or parties prevents that juror from acting impartially and without prejudice to the substantial rights of any party. K.S.A. 22-3410(2)(i). Determining the qualifications of a potential juror is within the sound discretion of the trial court and will not be disturbed absent a showing of prejudice.

11. Under the facts of this case, the trial court did not err in denying the defendant's challenges for cause based upon information possessed by potential jurors of the defendant's prior murder conviction where the entire jury panel was subjected to extensive voir dire and individuals with any outside information were individually questioned by the trial judge and clearly expressed their ability to disregard outside information.

12. The admission of photographs as evidence in a homicide case rests within the trial court's discretion and that court's ruling will not be disturbed on appeal absent a showing of abuse of discretion. Photographs which are unduly repetitious, gruesome, and without probative value should not be admitted into evidence. Demonstrative photographs are not inadmissible merely because they are gruesome and shocking where they are true reproductions of relevant physical facts and material conditions at issue.

13. Evidence of a statement which is made other than by a witness testifying constitutes inadmissible hearsay. K.S.A.1990 Supp. 60-460. Admission of statements by the deceased is allowed if the statements demonstrate the deceased's state of mind prior to the murder and show the existence of a rift between the deceased and defendant. In the case of marital homicide, evidence of a discordant marital relationship and the defendant's previous ill treatment of the spouse is relevant as bearing on the defendant's motive and intent.

14. The trial court must instruct on all lesser crimes upon which the defendant might reasonably be convicted. K.S.A. 21-3107(3). Instructions on lesser included offenses must be given even if the evidence is weak and inconclusive and consists solely of the defendant's testimony. The affirmative duty to instruct arises, however, only where there is evidence under which the defendant may reasonably be convicted of the lesser crime. Thus, before instructions on lesser included offenses are required there must be positive testimony presented by the defense to prove a version of the homicide contrary to the version presented by the State. When no evidence is introduced to indicate a lesser included offense has been committed, there is no error in failing to instruct on the lesser included offense.

15. Criminal statutes and penalties in effect at the time of a criminal offense are controlling.

16. A sentence imposed by the trial court will not be disturbed on the ground it is excessive, provided it is within the statutory limits and is not the result of partiality, prejudice, oppression, or corrupt motive.

Charles D. Dedmon, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

Timothy J. Chambers, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

HERD, Justice:

M.C. Mayberry directly appeals his jury convictions of first-degree murder, K.S.A. 21-3401, and aggravated burglary, K.S.A. 21-3716. Mayberry was sentenced pursuant to the habitual criminal act to two consecutive life sentences for the murder conviction and ten to forty years on the aggravated burglary conviction. The sentences run consecutively.

Early in the morning of May 4, 1989, thirteen-year-old Brandi Henks found her slain mother, Dixie Long. Reno County Sheriff's officers and Hutchinson police officers responded to a call for assistance and found the victim lying in her bed, slain by a shotgun blast to her head. Brandi Henks told police officers that, after she had awakened, she found the front door standing open and then found her mother's body. Henks also stated she believed M.C. Mayberry, Long's boyfriend, committed the murder because Long and Mayberry had recently been fighting. A broken window at Long's beauty salon was also reported on the morning of May 4. There were no other signs of entry.

Bloodstain pattern analysis revealed Long was sitting up with a pillow held before her face at the time of death. No murder weapon was ever discovered. Shotgun pellets and wadding, however, were found in the victim's bedroom. Police discovered telephone wires to the residence had been cut and found evidence of forced entry. Bloodstain directional analysis testing showed there was little likelihood the assailant's clothing would be bloodied from back splatter.

Testimony produced at trial revealed that Mayberry had purchased a 12-gauge pump shotgun and ammunition on the afternoon of May 3. Friends of Long testified she had been having "problems" with Mayberry and that she suspected he might be involved with earlier burglaries at her residence. On May 3, Long had lunch with Mayberry. Later, the same afternoon, she arrived at work upset and worried that bruises on her neck would show. Long told others she and Mayberry had had a fight during the lunch hour and that he had hit her.

Long's neighbor stated he saw Mayberry's car parked in front of Long's residence about 4:30 a.m. May 4. A friend of Mayberry testified he saw the defendant driving near Long's residence at 4:00 a.m. on May 4.

A search of Mayberry's bedroom produced a box of shotgun shells with seven shells missing. Shotgun pellets and wadding found at the crime scene were compared with and found to be consistent with shells in the box discovered at Mayberry's residence. A pair of needlenose pliers was found in a toolbox in Mayberry's automobile. Extensive research was conducted on a paint chip found on the pliers. The paint chip consisted of a fine...