State v. Moncla

• Decision Date: 18 April 1997
• Docket Number: No. 74774,74774
• Citation: 936 P.2d 727,262 Kan. 58
• Parties: STATE of Kansas, Appellee, v. David A. MONCLA, Appellant.
• Court: Kansas Supreme Court

Page 727

936 P.2d 727

262 Kan. 58

STATE of Kansas, Appellee, v. David A. MONCLA, Appellant.

No. 74774.

Supreme Court of Kansas.

April 18, 1997.

Syllabus by the Court

1. If a motion in limineis granted to preclude the introduction of certain evidence during trial, and the party in whose favor the ruling has been made fails to object to evidence introduced in violation of the order in limine, the failure to object results in the issue not being preserved on appeal. Consistent with the provisions of K.S.A. 60-404, a verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears on record an objection to the evidence timely interposed and so stated as to make clear the specific grounds of objection.

2. An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, an appellate court presumes that the action of the trial court was proper.

3. In deciding the question of whether prosecutorial misconduct requires reversal, an appellate court determines whether there was little or no likelihood the error changed the result of the trial.

4. Jury instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in a case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.

5. The use of PIK instructions is not mandatory but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in 6. The premeditation instruction given by the court in this case to the extent it used PIK language and added the language that "[t]here is no particular time period for premeditation" was a correct statement of Kansas law. However, the trial court's inclusion of language in the instruction that premeditation may arise in an instant was inappropriate because of its tendency to diminish the importance of the element of premeditation.

the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction, or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.

7. A criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence at trial so long as (1) the evidence, when viewed in the light most favorable to the defendant's theory, would justify a jury verdict in accord with the defendant's theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense.

8. In order for a defendant charged with murder to be entitled to a jury instruction on voluntary manslaughter because he or she acted in the heat of passion, the defendant's emotional state of mind must exist at the time of the act, and it must have arisen from circumstances constituting sufficient provocation. The test of the sufficiency of the provocation is objective, not subjective. The provocation, whether it be sudden quarrel or some other form of provocation, must be sufficient to cause an ordinary person to lose control of his or her actions and reason.

9. 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.

10. Photographs are unduly prejudicial and are erroneously admitted when they are unduly repetitious, particularly gruesome, add nothing to the State's case, and bring about a wrong result.

11. The admission in evidence of photographs of homicide victims must necessarily rest largely in the discretion of the trial judge. In each case, it is the trial judge who determines whether the photographs serve a proper purpose in the jury's enlightenment. The trial judge's decision will not be disturbed by an appellate court unless there was an abuse of discretion.

12. The legislature has authorized the introduction of a broad spectrum of evidence with regard to aggravating circumstances affecting the sentence imposed. In fact, the legislature has authorized the introduction of evidence concerning any matter that the court deems relevant to the question of sentence. K.S.A. 21-4635(b).

13. The sentence imposed by a trial court is the sentence stated by the court on the record at the time sentence is imposed. In the present case, the record clearly shows that the trial judge found the requisite aggravating circumstances to support a hard 40 sentence on the record at the time sentence was imposed. The lack of a written statement in the journal entry may be corrected by a nunc pro tunc order which incorporates the findings made on the record by the court at the time sentence was pronounced.

Wendy L. Rhyne Slayton, Special Appellate Defender, argued the cause, and Steven R. Zinn, Deputy Appellate Defender, was with her on the brief, for appellant.

Debra S. Peterson, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with her on the brief, for appellee.

DAVIS, Justice:

The defendant, David A. Moncla, was convicted of first-degree premeditated murder in the death of Diane Swinney, a local bar owner in Wichita. He was sentenced to serve a hard 40 sentence under the provisions of K.S.A.1993 Supp. 21-4635. He appeals his conviction and sentence, raising six errors The defendant was charged with first-degree murder on February 1, 1995, in Sedgwick County District Court. The victim was a friend of the defendant's. She was found in her apartment by Kevin Robertson, who assisted her at the bar. Robertson picked the lock to her apartment after employees, friends, and roommates, believing she was asleep, periodically pounded on her door throughout the day in order to wake her.

relating to the admission of evidence, trial court instructions, and sentencing procedures. For the reasons set forth below, we affirm the defendant's conviction and sentence.

The coroner who performed the autopsy found at least 18 blows to Swinney's head as well as bruises and contusions on other areas of her body which the coroner believed were, in part, defensive injuries. The coroner opined that the weapon used was a claw hammer that the police found in the bathroom of her apartment. The coroner concluded the cause of death was injuries to the brain and skull.

Friends and employees detailed their last encounters with Swinney on the night of her death. Swinney worked at her bar, Star's Club, until approximately 2 a.m., when she closed with the help of an employee, Linda Brown. She left the bar with eight cans of beer and drove to her home, located a block or two from the bar. Other than the defendant's testimony, this was the last information known about Swinney before her death.

Swinney rented the upstairs apartment of the house from Ricky Eugene "Norm" Hall. She had lived there for approximately 3 months. At the time of Swinney's death, Pat Berry, Katherine "Cat" Cunningham, and the defendant were staying at the house. Berry and Cunningham slept on couches and mattresses in the downstairs area of the house. The defendant often slept in a recliner upstairs in Swinney's room, but at times he also slept downstairs. He had been living there for less than a week when the murder occurred.

Pat Berry testified that the defendant left the house on foot early in the morning of the day Swinney's body was discovered. The defendant told Berry that he was leaving because he was late to work and because Swinney was upstairs having sex with someone and he did not want to watch. The landlord, Hall, who was half asleep at the time, heard Berry and the defendant talking but could only remember a small part of what they said.

Carl Guy testified that the defendant knocked at his door that morning about 9:00. The defendant asked Guy for a ride to work. On the way, Guy stopped at a gas station, and the defendant pumped the gas. While he was filling the car, the defendant spilled gasoline on his jeans. Guy testified that he dropped off the defendant at a QuikTrip.

John Bayliff testified that the defendant arrived at his house on foot between 9:00 and 9:30 that morning. The defendant told Bayliff that people were after him and he needed a place to stay. The defendant spent the day with Bayliff, and at 6 p.m. they watched the local news. When the defendant saw the broadcast about Swinney's murder, he spoke to Bayliff about what he had witnessed at Swinney's house. His story, as repeated by Bayliff at trial, was by and large consistent with the defendant's testimony at trial. The defendant remained with Bayliff for severaldays, until he was arrested.

The defendant testified that on the morning of the murder, he was sleeping on Swinney's recliner when he was awakened by a man hitting him over the head with a gun. He noted that there were three men in the room and that they were wearing the gang colors of Los Foresteros, a motorcycle gang. His attacker pushed the defendant around the corner from the bedroom and into the bathroom, where he could no longer see Swinney. He heard several slaps or hits and heard someone say: "[W]e're going to have to take a loss on this one." He also heard the name Kevin. At trial, the defendant testified that upon seeing Kevin Robertson on the stand, he became convinced that Kevin...