State v. Murray, No. 94,619.

• Citation: 174 P.3d 407
• Decision Date: 18 January 2008
• Docket Number: No. 94,619.
• Parties: STATE of KANSAS, Appellee, v. Thomas E. MURRAY, Appellant.
• Court: United States State Supreme Court of Kansas

174 P.3d 407

STATE of KANSAS, Appellee, v. Thomas E. MURRAY, Appellant.

No. 94,619.

Supreme Court of Kansas.

January 18, 2008.

Sarah Ellen Johnson, capital appellate defender, argued the cause and was on the brief, for appellant.

Angela M. Wilson, assistant district attorney, argued the cause, and Charles E. Branson, district attorney, and Paul J. Morrison, attorney general, were with her on the brief, for appellee.

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

Thomas Murray appeals from his conviction of first-degree murder for killing his former wife. He contends that his conviction must be reversed based on the following claims of error: (1) Prosecutorial misconduct during the State's closing argument; (2) the admission of testimony regarding the defendant's post-Miranda silence; (3) the admission of hearsay statements of the victim concerning her relationship with the defendant; (4) cumulative error; and (5) insufficiency of the evidence to support his conviction. We conclude that no reversible error occurred and affirm.

Facts

On November 14, 2003, the Douglas County Sheriff's Department received a call from Larry Lima, who lived in California, requesting that the police conduct a welfare check on his fiancee, Carmin Ross. Carmin lived at 1860 E. 1150 Road in rural Douglas County. The home is situated about .6 miles from County Road 438 and about 500 feet from the nearest residence.

The officers arrived at Carmin's residence shortly after 1 p.m. and knocked on the front door. One of the officers looked through a window and saw what appeared to be blood and someone's knee. The officers split up and met again at the back of the home; neither officer present observed any broken windows or other signs of forced entry into the home.

After entering the home through the back door, the officers found Carmin lying on the floor in her living room. The room was in disarray, with a potted plant on its side and the coffee table partially flipped over on the couch. Blood spots were found throughout the area. There was no evidence of a sexual assault and no evidence that anything had been removed from the home.

An autopsy revealed that Carmin had suffered 11 lacerations due to blunt force injury followed by 13 stabs in the neck with a knife, as well as several defensive wounds on her arms. Neither the knife nor any other weapon was found on the premises, although a knife was missing from Carmin's knife block in the kitchen. The detectives hypothesized that Carmin's attacker had first beaten her, and, unsure whether the beatings would kill her, the attacker retrieved a knife from Carmin's kitchen and stabbed her.

Aside from the mess in the living room, Carmin's house was clean and well kept. In addition, Carmin's car was still in the driveway; no windows were broken, and there was no indication that anything had been stolen.

An exhaustive investigation ensued. Officers searched the roadway and garbage from rest areas near Carmin's home and interviewed all those who knew Carmin to determine when she had last been seen alive.

The Riley County Police Department contacted the defendant at about 7:30 p.m. on November 14, 2003. The defendant and Carmin had been married until Carmin met Lima at a conference in Wichita in 2002; they divorced in the spring of 2003 and were currently in a custody struggle over their 4-year-old daughter, Ciara. When the police arrived at the defendant's home, the defendant walked into an adjacent room, picked up Ciara, and answered the door with his daughter in his arms. The defendant appeared distraught when the police informed him that Carmin had died. However, he never asked the officers how Carmin had died or whether her death had involved foul play. The defendant then drove himself to the police department for a requested interview with police.

The defendant's interview at the police department lasted approximately 9 1/2 hours, with the majority of the interview being audio- and video-recorded. The detectives noticed that during the first 2 hours of the interview, the defendant kept his right hand in his lap or under his leg. The detectives later noticed that the defendant had a cut on his little finger on his right hand and bruises along the outside of both of his wrists and on his hands and arms. The defendant explained that he cut his finger when cutting a pineapple for Ciara. Although he initially could not remember where the bruises came from, he later told the investigators he was bruised when he was playing with Ciara and bouncing her on his knees.

By 9 p.m., the defendant still had not asked how Carmin died but was voluntarily explaining in detail how he had spent his time the previous day. He also told the detectives that they would find his DNA on the carpet of Carmin's living room. At about 10 p.m., the investigators pointed out to the defendant that he had yet to ask how Carmin died; the defendant said he did not want to know the details.

At 11 p.m., investigators sought the defendant's consent to search his car and home. He signed a written consent for both searches and told the detectives, "I'll tell you what you're going to find in [the] car." The defendant explained that the detectives would find "Carmin's blood" and her fingerprints. No one had informed the defendant at that time that Carmin's death had been bloody or violent. The defendant also consented to the search of his computers both at home and at his office at Kansas State University.

The defendant went on to explain that Carmin had borrowed his car a few weeks ago when Ciara was ill so that Carmin could get medicine at Walgreens, because her car was blocked in by the defendant's vehicle when he was visiting. According to the defendant, Carmin suffered a horrible nosebleed on the way.

Although no one had informed the defendant how Carmin died, he told the police in his interview that he would not have done anything "like they were suggesting" because he was a "thinking man." He explained that if he were going to commit a homicide, he would do it with an airborne poison "or something really slick." He later stated that he was "having fun with this from a CSI perspective."

At about 12:30 a.m., the defendant agreed to provide the police with a written statement. He then asked a detective who came into the room whether there were cameras in the toll booths along I-70. When the officer answered that there were cameras, the defendant replied, "That's all I need to know."

When he completed his written statement, he told the detectives that something in the statement would cause them to look at it "with a raised eyebrow." He then stated that he failed to point out that he drove on I-70 the previous morning to look at pillow cases in Paxico.

About 3 a.m., the defendant explained that Carmin's blood would be in his house because Carmin had cut herself when trying to cut a piece of candy for Ciara on Halloween. He also explained that his blood would be found in her downstairs bathroom because when he was at Carmin's home after mediation on the previous Tuesday, he had picked a callus and had caused it to bleed. The detective then informed the defendant for the first time that Carmin had been murdered and that the murder had occurred in her own home.

Following the interview, the defendant left the police department without being charged.

Further consideration and investigation of the defendant's police interview undermined many of the explanations that he provided in his statement. Specifically, several acquaintances indicated that Ciara was not the type of child who wrestled or roughhoused. Furthermore, no witness could verify the defendant's statement that Carmin was prone to nosebleeds.

Ciara's babysitter told the detectives that on the morning Carmin was murdered, the defendant had dropped off Ciara at least 30 minutes early. Furthermore, although the defendant had initially told the police officers in his interview that he was at home grading tests all morning, a number of his students at the university stated that he was grading the students' papers in class as they were turned in. The defendant's statements regarding his grading of tests were also inconsistent with his later statement during the interview that he had driven to Paxico to look at antique pillowcases.

DNA testing showed that all of the blood in Carmin's house belonged to the victim, with the exception of a drop of blood on the baseboard of Carmin's downstairs bathroom. This drop of blood contained at least two contributors — Carmin and an unknown male.

While there was a blood pattern found just inside the front porch that was consistent with a work boot or shoe, no such shoe was found, either in the vicinity of Carmin's house or at the defendant's home. No other impression was found.

In addition, a number of acquaintances informed the investigators of statements made by the defendant leading up to Carmin's death. The defendant had told a neighbor that he "`would be better off if [Carmin] weren't alive.'" The defendant also made numerous statements to his best friend, GayLynn Crossley-Brubaker. Crossley-Brubaker explained that she had called the defendant on the evening of November 13 (the day Carmin was allegedly murdered) to discuss Thanksgiving plans and noted that the defendant seemed unusually upbeat.

On November 15, 2003, the defendant called Crossley-Brubaker and told her that Carmin was dead and that the police were treating him as a suspect. He also told his friend that he had cuts on his hands as if "holding a knife by the blade." He repeatedly said, "`[a]ll I see is the blood, all the blood.'"

Crossley-Brubaker also questioned the defendant's indication that he had gone to Paxico to look at pillowcases on the morning of Carmin's death, because she had not known that the defendant was interested in antiques and she did not think he would waste the gas on such a trip.

A search of the defendant's computer...