State v. Murdock

• Decision Date: 18 July 2008
• Docket Number: No. 95,365.,95,365.
• Citation: 187 P.3d 1267
• Parties: STATE of Kansas, Appellee, v. Mathew D. MURDOCK, Appellant.
• Court: Kansas Supreme Court

187 P.3d 1267

STATE of Kansas, Appellee, v. Mathew D. MURDOCK, Appellant.

No. 95,365.

Supreme Court of Kansas.

July 18, 2008.

Rick A. Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Robert A. Walsh, county attorney, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by DAVIS, J.:

We granted Mathew D. Murdock's petition for review from a Court of Appeals decision affirming his conviction of aggravated battery with a deadly weapon. The defendant claims that the trial court erred by allowing the State to reopen its case to present additional evidence on an element of the offenses charged. He also claims that he was not adequately represented by counsel and that the trial court erred when responding to a jury question during its deliberations. We affirm.

Facts

In November 2004, Lucas Diehl confronted Murdock at a party in Concordia, Kansas, asserting that the defendant had slashed the tires on Diehl's truck. The two men continued to exchange words, and the defendant challenged Diehl to a fight. Diehl declined and walked a short distance away.

Allan Jackson attempted to calm the defendant, who showed Jackson a set of brass knuckles that he wore on his right fist. Jackson left Murdock to warn Diehl about the brass knuckles. While he and Diehl were talking, the defendant approached and struck Diehl on the top of the head. Diehl fell to the ground. When he was able to stand, Jackson attempted to help Diehl get away from the confrontation, but the defendant again struck Diehl on the back of the head. Diehl's head bled profusely, but he did not seek medical treatment. He did, however, complain of headaches and dizziness for several days after the incident.

After the State rested its case, Murdock moved for a judgment of acquittal, claiming that the State had failed to produce evidence that he struck Diehl with an object that could constitute a deadly weapon. The district court overruled the motion, stating that the jury could conclude based on circumstantial evidence that the defendant had struck Diehl while wearing brass knuckles.

During a short recess, the prosecutor reviewed the record and discovered that Jackson had never actually testified that the defendant wore the brass knuckles when he struck Diehl. Over the defendant's objection, the district court allowed the State to reopen its case in chief in order to recall Jackson. Jackson subsequently testified that he saw the defendant wearing the brass knuckles immediately after striking Diehl. The State then rested its case again.

After the district court denied a second motion for judgment of acquittal, Murdock moved for a mistrial based upon ineffective assistance of counsel, claiming that defense counsel's behavior in raising the issue of insufficiency of the evidence at the close of the State's case in chief—and thus bringing the question to the State's attention—was constitutionally deficient. The district court denied this motion.

At the close of all evidence, the case was submitted to the jury. During deliberations, the jury requested clarification on the difference between aggravated battery with a deadly weapon and aggravated battery in a manner whereby great bodily harm, disfigurement, or death can be inflicted. The court called the jury into the courtroom in order to clarify what was being asked and immediately provided a lengthy response to that question from the bench. Defense counsel did not object to the court's explanation.

The jury resumed deliberations and found Murdock guilty of aggravated battery by use of a deadly weapon—K.S.A. 21-3414(a)(1)(B). The defendant appealed, and the Court of Appeals affirmed his conviction in an unpublished opinion. State v. Murdock, No. 95,365, 2007 WL 2377112, unpublished opinion filed August 17, 2007.

Petition for Review

Murdock raises three issues in his petition for review of the Court of Appeals opinion: (1) whether the district court erred when it denied the defendant's motion for judgment of acquittal at the close of the State's case in chief and instead permitted the State to reopen its case in order to present additional evidence; (2) whether the court erred when it denied his motion for a mistrial based on ineffective assistance of counsel; and (3) whether the court's response to the jury's question during deliberations was reversible error.

We note at the outset that the first issue actually presents two separate but related questions. The first question involves the district court's denial of the defendant's motion for acquittal. The second deals with the district court's decision to permit the State to reopen its case in order to present additional testimony on elements of the charged offense. Our standard of review for each question is different, so we examine each of these questions individually.

After reviewing all of the issues raised, we conclude that no reversible error occurred and affirm.

(1) MOTION FOR JUDGMENT OF ACQUITTAL

The defendant argues that the district court erred when it denied his original motion for judgment of acquittal, claiming that the State failed to present any evidence that he had struck Diehl with a deadly weapon or in a manner in which great bodily harm could be inflicted.

Standard of Review

K.S.A. 22-3419(1), which governs Kansas courts' consideration of motions for judgment of acquittal, provides in relevant part:

"The court on motion of a defendant or on its own motion shall order the entry of judgment of acquittal of one or more crimes charged in the complaint, indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such crime or crimes."

Just as a district court must base its ruling regarding a defendant's motion for judgment of acquittal on the sufficiency of the evidence, an appellate court reviewing a district court's grant or denial of such a motion examines the sufficiency of the evidence to support the conviction. State v. Cavaness, 278 Kan. 469, 479, 101 P.3d 717 (2004). The proper standard for considering a district court's ruling on a motion for judgment of acquittal is whether, after reviewing all of the evidence in the light most favorable to the State, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. 278 Kan. at 479, 101 P.3d 717.

Discussion and Analysis

After the State presented its evidence and rested, the district court granted a recess and held a conference on the record in chambers in the presence of the judge, counsel, and the defendant. At this time, defense counsel moved for a judgment of acquittal on the basis that there was no evidence that the defendant struck the victim in a manner whereby great bodily harm was inflicted or with any kind of an object that could constitute a deadly weapon. The following exchange occurred in chambers:

"[Defense Counsel]: Judge, I would like to make a motion for judgment of acquittal. The state [has] charged Mr. Murdock with intentionally causing bodily harm with a deadly weapon or in a manner whereby great bodily harm, disfigurement, or death could be inflicted. The evidence has not indicated that Mr. Murdock struck Mr. Diehl with any kind of an object that would constitute a deadly weapon.

"The testimony at best is that Mr. Jackson saw an arm come around, and Mr. Diehl got struck, and then he was struck a second time. But Mr. Jackson did not testify that he saw Mr. Diehl get struck with brass knuckles. He only testified to that he saw brass knuckles in the possession of Mr. Murdock.

"Further, before the incident even occurred there's been no testimony that the manner in which Mr. Diehl had been struck was capable or could cause great bodily harm, disfigurement or death. So I would submit to the Court that the evidence is insufficient to sustain a conviction on either theory, either deadly weapon or manner whereby.

"THE COURT: Mr. Walsh?

"[Prosecutor]: My recollection of the testimony was that he did early on in the testimony indicate that when he was struck he saw the fist with the brass knuckles come around and strike Mr. Diehl. Now, if there's confusion about that, I would ask the Court the leave to allow us to call him up and ask him that directly. I have rested. We have had no evidence from the defense at this time.

"If there is some of that, I would certainly like to allow just very brief testimony to cover that issue, whether the brass knuckles were on his hand or not when those blows were struck. My recollection was that he did indicate that. I'm not questioning Ms. McKenna's recollection. I have that in my notes, but that could have been just my outline. But I would certain[ly] like to ask him that. I would ask leave to just allow us [to] call him back to state that.

"THE COURT: Well, that motion would be denied, and the motion for directed verdict is likewise denied. There's certainly evidence, if not direct, substantial [evidence, then] circumstantial evidence from which the jury could conclude guilt beyond a reasonable doubt on either theory."

Before the defendant's motion for acquittal and during the State's case in chief, Jackson testified that during his talk with Murdock, the defendant showed him a set of brass knuckles that he was wearing on his right hand. According to Jackson, the defendant said that "he was tired of it [meaning the dispute between the defendant and Diehl] going on, and he was going to take care of it." Jackson testified that he was concerned about these statements and the defendant's possession of the brass knuckles, so he went directly from his conversation with the defendant to warn Diehl of the danger. Jackson explained that when he went to warn Diehl, he "didn't even get all the words out of [his] mouth" when the defendant struck Diehl from behind. Jackson...