State v. Pioletti

• Decision Date: 19 January 1990
• Docket Number: No. 62485,62485
• Citation: 785 P.2d 963,246 Kan. 49
• Parties: STATE of Kansas, Appellee, v. Randy D. PIOLETTI, Appellant.
• Court: Kansas Supreme Court

Page 963

785 P.2d 963

246 Kan. 49

STATE of Kansas, Appellee, v. Randy D. PIOLETTI, Appellant.

No. 62485.

Supreme Court of Kansas.

Jan. 19, 1990.

Syllabus by the Court

1. A trial court has a broad discretion in controlling the voir dire examination in criminal cases. In the absence of a showing of an abuse of discretion and prejudice, the rulings of a trial court limiting a defendant's voir dire examination of jurors will not be made the basis for a reversal of a case.

2. Pattern Jury Instructions for Kansas (PIK Crim.2d) should be the starting point for preparation of jury instructions in criminal cases. If the particular facts in a case require some modification of a PIK instruction or the addition of an instruction, a trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.

3. Evidence of diminished capacity is admissible for the limited purpose of negating specific intent, but the trial court is not required to give an instruction on diminished capacity.

4. Under K.S.A. 22-2902, a magistrate may bind a defendant over on any felony he or she has probable cause to believe has been committed whether or not that particular felony has been charged in the information upon which the preliminary hearing was held.

5. Convictions for aggravated kidnapping and felony murder do not merge and do not violate prohibition against double jeopardy where evidence supports elements of a kidnapping and a homicide during perpetration of the kidnapping.

6. A sentence imposed which is within the statutory limits will not be disturbed on appeal, provided it is within the realm of discretion on the part of the trial court and not a result of partiality or prejudice.

Karen E. Mayberry, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief for appellant.

Debra S. Byrd, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephen, Atty. Gen., were with her on the brief for appellee.

McFARLAND, Justice:

Randy D. Pioletti appeals his jury trial convictions of aggravated kidnapping (K.S.A. 21-3421) and first-degree murder (K.S.A. 21-3401).

The facts of this bizarre homicide may be summarized as follows. Karen Baile and Randy D. Pioletti were married in December 1984. A daughter, Rhyannon, was born in May of 1985. The marriage ended in a December 1987 divorce. Custody of Rhyannon was a bitter ongoing problem On December 6, 1987, Randy made arrangements to meet Karen at Willie C's, a restaurant near the Wichita Towne East Mall, on the following evening. The stated reason for the meeting was a joint Christmas shopping expedition for Rhyannon and Karen's two children from a previous marriage.

between her parents. In the fall of 1987, Randy told a friend, Mary Kessinger, he knew how to permanently resolve the problem. He stated he could "grab" Karen, put her in his van, take her to the mortuary where he worked, and cremate her. He made similar statements to other people. He also stated that if he did this, he wanted Karen to feel it.

At 6:30 p.m. on December 7, 1987, Randy left work at the mortuary after asking a co-worker to cover for him for a couple of hours for the stated reason he wanted to buy his daughter a Christmas present. Karen left her home at 6:10 p.m., telling the baby-sitter she would be back at 10:00 p.m. She never returned. Randy returned to work at 8:00 p.m. He appeared to be nervous and had abrasions on his face and left hand. Randy stated he had injured himself on his van door.

The next morning a co-worker at the mortuary saw Randy mopping near the crematory. He also noticed the crematory was hot, although there was no scheduled usage thereof. Randy pointed to the crematory and indicated he had cremated his dog. Later that morning, Randy went to Mary Kessinger's house and asked her to wash some coveralls for him. He also requested and received permission to put a bucket of rags in an outbuilding on her property. Shortly after Randy left, he called Mary stating: Karen had disappeared, he was in trouble, and the police were looking for him. He also indicated he had burned a puppy in the crematory and was in difficulty at work because of it. After Randy hung up, Mary started thinking about Randy's odd conduct that morning, his telephone call, and his prior threat to kill and cremate Karen. She went to the outbuilding and found a bucket containing cloth and ashes hidden therein. She called the police.

The bucket contained ashes, bones, pieces of flesh, teeth, sheets, paper towels, plastic, coins, a paper clip, a safety pin, gold chain, a makeup purse frame with clasp, aluminum tubing, a cigarette butt, a gold necklace fob with a clear stone, and glass. Analysis of the biological material revealed that the remains were that of a female with the following characteristics: (1) of European descent; (2) 5'2"'; (3) approximately 32 years old; (4) had given birth within the last five years; (5) had a broken nose; and (6) had type O blood. Karen Baile was a 5'2"' white female, 32 years old with type O blood and a broken nose, and who had last given birth in May 1985. The necklace found in the bucket was identified as belonging to Karen. DNA analysis introduced at trial indicated that blood found on the door of the crematory was probably that of the offspring of Bryon and Delphina Baile, Karen's parents. The test indicated a 99.999% probability of parenthood. On December 8, 1987, Karen's automobile was found in the parking lot of Willie C's restaurant.

On December 10, 1987, Randy was charged with premeditated first-degree murder. Following a preliminary hearing, he was bound over on first-degree murder and aggravated kidnapping charges. The information was amended to reflect these charges.

On May 12, 1988, defendant was convicted of first-degree murder and aggravated kidnapping. He was sentenced to consecutive life terms. The matter is before us on Randy's direct appeal. Other facts will be stated as necessary for discussion of the particular issues.

VOIR DIRE

Defendant complains herein of a number of what he contends were judicial improprieties committed during voir dire. Preliminarily, we must set the stage. The prospective jurors were divided into three groups of twelve, each of which was questioned separately, but in the presence of the others. Defendant had previously filed "I don't know that its going to come up in the case, but there is no reason for the jury to have any questions about the law of insanity. This is the law of insanity.

a notice of intent to rely upon an insanity defense. During voir dire examination of the first panel the matter of the insanity defense was raised, and the panel was asked if any person could not follow the judge's instructions or not fairly consider the evidence thereon. There were no affirmative responses. Later on, when a prospective juror on the same panel was being examined, the individual expressed some doubt as to what the law on insanity was. The trial judge, over defendant's objections, responded as follows:

'Insanity, to constitute a legal defense to the charge of crime, means that the defendant is laboring under such a defect of reason from disease of the mind as to not to know the nature and quality of the act he is doing, or, if he did know it, that he did not know that what he was doing was wrong because of his mental inability to distinguish between right and wrong, and if these facts exist, then the law does not hold him responsible for his act. On the other hand, if a defendant is mentally capable of understanding what he is doing and has the power to know that his act was wrong, then the law will hold him criminally responsible for it. If this power of discrimination existed, he was sane in the eyes of the law. A person of sound mind and discretion will not be exempted from punishment because he might have been a person of weak intellect or one whose moral perceptions were blunted or ill developed, or because his mind may have been depressed or distracted from brooding over misfortunes or disappointments, or because he may have been wrapped up to the greatest and most intense mental excitement from sentiments of disappointment, rage, revenge, or anger. The law recognizes no form of insanity, although the mental faculties may be disordered or deranged, which will furnish one immunity from punishment for an act declared by the law to be criminal, so long as the person committing the act had the capacity to know what he was doing and the power to know that his act was wrong.'

"Now, that's the law of insanity in Kansas. If that is a defense asserted, then that will be your instruction. There will be other instructions. The reason I am doing that is because both sides saw fit to go into that on voir dire. I don't even know if there will be any evidence in that regard. If there isn't, you won't get an instruction on that. That's why I would like to caution you, we can't expect members of the jury to speculate about matters that may not be in issue, but every time a jury raises a question, I am going to answer it. That's why I read it. You will have that in writing if that is a defense asserted."

The instruction read by the trial judge was from State v. Andrews, 187 Kan. 458, 357 P.2d 739 (1960), cert. denied 368 U.S. 868, 82 S.Ct. 80, 7 L.Ed.2d 65 (1961).

As voir dire progressed, the subject matters of insanity and expert testimony thereon continued to surface. Each time, the trial court launched anew into the subject with increasingly maundering responses. Finally, the following occurred:

"THE COURT: We have gotten into something [insanity issue] that may be purely speculative. It will be time to instruct when it becomes an issue in the case. We are getting farther and farther into it and we are going to back out. That's the only thing I know to do.

"I am not...