State v. Mays, 68778

• Decision Date: 21 January 1994
• Docket Number: No. 68778,68778
• Citation: 866 P.2d 1037,254 Kan. 479
• Parties: STATE of Kansas, Appellee, v. Darin T. MAYS, Appellant.
• Court: Kansas Supreme Court

Page 1037

866 P.2d 1037

254 Kan. 479

STATE of Kansas, Appellee, v. Darin T. MAYS, Appellant.

No. 68778.

Supreme Court of Kansas.

Jan. 21, 1994.

Syllabus by the Court

1. In a criminal prosecution, a defendant is entitled to present the theory of his or her defense. It is fundamental to a fair trial to allow a defendant to present his or her version of the events so that the jury may properly weigh the evidence and reach its verdict.

2. The exclusion of relevant, admissible, and noncumulative evidence, which is an integral part of the theory of the defense, violates the defendant's fundamental right to a fair trial.

3. The exclusion of relevant, admissible, and noncumulative evidence bearing upon the credibility of a critical prosecution witness, where the defendant's conviction rests exclusively upon the testimony of the prosecution witness and where no other physical evidence connects the defendant to the crime scene, is not harmless error.

Steven R. Zinn, Deputy Appellate Defender, argued the cause and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

Michael A. Russell, Asst. Dist. Atty., argued the cause and Nick A. Tomasic, Dist. Atty. and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.

DAVIS, Justice.

The defendant, Darin Mays, appeals his convictions of rape and aggravated robbery. He contends that the court denied him the right to present evidence in support of his theory of defense. The defendant further contends that the court erred by failing to instruct on eyewitness identification. We need not address the defendant's second contention because the exclusion of evidence under the facts of this case resulted in the denial of a fair trial. Accordingly, for the reasons expressed, we reverse and remand for a new trial.

R.J. was staying with her boyfriend, Tyrone Dillard, at a motel in Kansas City, while their house was being exterminated. She testified that while alone in their room about 3:00 p.m. her uncle, Jerry Robinson, came into the room, claiming that her boyfriend told him to come by and borrow about $25. She testified that her uncle stated that he would return later to pick up the money.

Soon after Robinson left, R.J. said she responded to a knock on the door, looked out, and saw the defendant. She recognized the defendant as "Dolemite" because she had seen him on the streets "a couple of times" a year or more before that date. She testified that she did not "run around" with the defendant and had never conversed with him but that he "hung around" with her cousins and others she knew.

R.J. testified that she let the defendant in and that as soon as she had closed the door he pulled a handgun, pointed it at her head, and told her he wanted everything she had. She testified that after she gave the defendant about $100, he told her to sit on the bed, started searching the room, and told her that if he found anything else he would kill her.

According to R.J., the defendant then returned to the bed and told her to take off all of her clothes. When she failed to respond quickly, he "started yanking them." She testified that the defendant then fondled her breasts and inserted his fingers into her vagina. The defendant then yanked the telephone out of the wall and left, taking with him the money and her boyfriend's diamond ring, which the defendant saw on the counter as he was leaving.

R.J. dressed and left the room. Tyrone Dillard drove up as she was on her way to the front office to call him for help in reporting the crime to the police. Dillard drove her to the police station, where she reported the crime. Detective Wohlforth showed R.J. six photos, from which she identified the defendant. Detective Wohlforth testified that no one assisted her in making the identification and that R.J. had no doubt that she had correctly identified the man who had raped and robbed her.

Dillard testified that as he was pulling into the motel parking lot, he saw R.J.'s uncle, Jerry Robinson, and a man known as Horse driving away in a blue Chrysler automobile. Dillard had seen the defendant with Robinson and Horse earlier that day in the same car but did not see the defendant with Robinson and Horse as they left the motel in the car.

Officer Thebo testified that he processed the telephone for fingerprints. He was unable to identify any prints as those of the defendant. Detective Wohlforth testified that he interviewed R.J. and Dillard separately. R.J. was upset and "trying real hard to hold back the tears." According to Wohlforth's testimony, R.J. described to him the same series of events that she described to the jury. R.J. told Wohlforth that the perpetrator's name was Dolemite. Another detective told Wohlforth that Dolemite was known to him as Darin Mays. Officer Wohlforth placed the defendant's photo in a photographic lineup with five other photographs and displayed them in random order to R.J. She looked at all of the photos and identified the defendant.

Jerry Robinson testified on behalf of the defendant. He denied seeing R.J. or being in her room, and he denied that he asked to borrow money. The defendant's mother and his cousin, Jan Brooks, testified that the defendant was at his residence the entire day of the incident and never left the residence. The defendant also testified that he was at his residence that day and never did see R.J. or Dillard on the day of the incident.

The jury found the defendant guilty of both counts, and he was sentenced to 15 years to life for each count, the terms to be served concurrently.

The State's case was based upon the testimony of R.J. No physical evidence linking the defendant to the offense was presented, with perhaps the exception of testimony as to the clothes the defendant was wearing. The State claims that the defendant's witness, Jan Brooks, corroborated R.J.'s testimony about the clothes the defendant was wearing. Yet, there was some variance, and Jan Brooks' recollection was not that complete. When Tyrone Dillard returned to the motel room, he saw a car in which there were three people, including Robinson and Horse. Dillard did not see the defendant at that time. About two minutes after the car left, R.J. walked up and said she had been robbed and sexually assaulted. As a practical matter, the State's case rested exclusively upon R.J.'s testimony.

It is against this backdrop that we examine the first allegation of error. The defendant contends that the trial court denied him the right to present evidence in support of his theory of defense because it precluded him from testifying regarding a prior altercation with Dillard and from cross-examining R.J. regarding her financial dependence upon Dillard.

According to the defendant, he did not know whether the rape and robbery occurred. It was his theory that R.J. was lying either about the incident or about who raped and robbed her. According to the defendant's theory, R.J. lied because Dillard and the defendant had been engaged in an ongoing feud concerning money that the defendant had gambled away, money that belonged to Dillard. Based upon their relationship and upon the fact that Dillard provided financial support for R.J., the defendant contended that she lied to help Dillard carry out the vendetta he allegedly had against the defendant.

Perhaps the best way to illustrate what evidence was excluded by the trial court, the significance of the evidence as it related to the defendant's theory, and the basis upon which the court excluded the evidence is to quote directly from the record.

The following exchange occurred during the cross-examination of R.J.:

"Q. [MR. REED, defense counsel] Ms. [R.J.], do you work for a living?

"A. No.

"Q. And who provides your support?

"MR. RUSSELL [prosecution]: Object. May we approach the bench?

"THE COURT: Very well.

"(The following proceedings were had at the bench by Court and counsel out of the hearing of the jury:)

"MR. RUSSELL: Judge, I would object to any of this as it's irrelevant as to what happened on that day and how she makes a living. I don't know where he's going with this, but if he's trying to prove she came through money through drugs or something, that has no relevance. As to whether or not a robbery took place--does not have anything to do with where the money came from or anything.

"MR. REED: Your Honor, if I may, if I can try to establish a basis of relevancy, the point of my inquiry is it goes to one of credibility, because my client is going to argue that Mr. Dillard is involved in the drug trade. The reason why they made these charges against him is because he double-crossed her boyfriend, Tyrone Dillard, who provides her support.

"THE COURT: At this point in time, I see no reason of what she does for a living or how she makes a living to be brought into the charges. I'll sustain the objection."

The following exchange took place during the defense counsel's cross-examination of Tyrone Dillard:

"(The following proceedings were had at the bench by Court and counsel out of the hearing of the jury.)

"MR. REED: Your Honor, I thought it would be wise to ask for a cite now. But on the question now of credibility, I want to elicit some testimony concerning the ongoing feud between Mr. Dillard and Mr. Mays concerning some stolen money, and I'd like to be able to ask those questions.

"MR. RUSSELL: Judge, under 60-422, that deals with credibility of a witness and it says you can only cross-examine a witness about prior instances of crimes involving dishonesty or fraud. And if he's going to lead up to about drugs, that has no--that is not a crime that deals with dishonesty or fraud, and under 60-422, does not allow it and I would object ..., and number two, that's inadmissible evidence.

....

"THE COURT: Tell me exactly what it is you want to get into.

"MR. REED: Well, Your Honor, my client's--my client's allegation is that because of some prior business transactions...