State v. Plunkett
| Decision Date | 14 March 1997 |
| Docket Number | No. 75290,75290 |
| Citation | 934 P.2d 113,261 Kan. 1024 |
| Parties | STATE of Kansas, Appellee, v. Bennie L. PLUNKETT, Jr., Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Trial judges confronted with disruptive, contumacious, or stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.
2. Rape is a general criminal intent crime. As defined in K.S.A. 21-3502, it does not require as one of the statutory elements of the offense a specific intent on the part of the defendant to commit rape; therefore, there is no necessity to instruct on such a specific intent.
3. PIK Crim.3d 57.01, the jury instruction for rape, follows the language of the criminal statute for rape almost verbatim. The word "intentionally" is not an element in the rape statute and, therefore, is properly not included in the pattern jury instruction.
4. PIK Crim.3d 54.01-A, the general criminal intent instruction, is derived from K.S.A. 21-3201(a) and (b), the general criminal intent statute. This instruction should be used only where the crime requires a general criminal intent and the state of mind of the defendant is a substantial issue in the case.
5. The testimony of the prosecutrix alone can be sufficient to sustain a rape conviction without further corroboration if the evidence is clear and convincing and is not so incredible and improbable as to defy belief.
6. The record is reviewed and it is held: (1) The district court did not err in ending defendant's self-representation; (2) the district court did not err in leaving the word "intentionally" out of the rape instruction, PIK Crim.3d 57.01; (3) the district court did not err in failing to instruct on general criminal intent under the facts of this case; (4) the district court's interruption of closing argument was not error because defense counsel invited the interruption; (5) the elements of rape and aggravated sodomy were established by sufficient evidence; and (6) the district court did not abuse its discretion in denying the admission of previously transcribed testimony submitted under an unavailable witness claim.
Debra J. Wilson, Assistant Appellate Defender, argued the cause, and Jessica R Kunen, Chief Appellate Defender, was with her on the brief for appellant.
David Lowden, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief for appellee.
The primary issue in this criminal case relates to defendant Bennie L. Plunkett's Sixth Amendment right to self-representation. Did the district court err in refusing to let Plunkett represent himself? Plunkett's convictions for aggravated criminal sodomy and rape of two victims were reversed for judicial misconduct in State v. Plunkett, 257 Kan. 135, 891 P.2d 370 (1995). Plunkett was tried again and convicted of three counts of aggravated criminal sodomy, K.S.A. 21-3506(c)(i) (Ensley 1988), and two counts of rape, K.S.A. 21-3502 (Ensley 1988), in two separate cases consolidated for trial. He was sentenced concurrently within each case, the sentences for each case to be served consecutively, for a controlling term of 30 years to life. Our jurisdiction is under K.S.A. 22-3601(b)(1) (). We find no reversible error and affirm.
The additional issues are: (1) whether Plunkett's due process rights were violated by either the district court's refusal to give an instruction on rape that included the word "intentional," as urged by counsel, or in interrupting closing argument and telling counsel that criminal intent is not an element of the rape charge; (2) whether the evidence was sufficient to support Plunkett's convictions for aggravated criminal sodomy and rape of S.B.; and (3) whether the district court erred in refusing to allow the introduction of previously transcribed testimony of Fred Dixon as an unavailable witness.
Plunkett was charged with two counts of aggravated criminal sodomy and one count of rape against S.B., a 17-year-old female. While on bond, Plunkett was charged in a separate complaint with two counts of aggravated criminal sodomy and one count of rape of C.D., a 20-year-old female. Plunkett was 29 years old at the time of the incidents and weighed approximately 240 pounds. Although Plunkett testified at his first trial, he chose not to testify at the second trial. He was convicted by a jury in the second trial of one count of aggravated criminal sodomy and one count of rape against S.B. and two counts of aggravated criminal sodomy and one count of rape against C.D.
S.B. testified that she first met Plunkett while she was working in a supermarket bakery department. Plunkett asked for her phone number, and she gave it to him. He called her that night, and they had a friendly conversation. A few days later, they met again as she was going into the store to work. She gave him a picture of herself and wrote an inscription on back. Plunkett kissed her. They agreed to meet for lunch at a restaurant near her high school. Plunkett did not show up. He called her, and they set another lunch date for October 29, 1992. Again, he did not show up. S.B. called Plunkett later that day. He said that he really wanted to see her in person to talk. S.B., who was living with her grandparents, told Plunkett she would meet him at a street corner. S.B. told her grandmother that she would be gone a few minutes to see a girlfriend. When Plunkett arrived at the corner in his car, S.B. got in. Plunkett pulled away. S.B. told Plunkett she thought they were just going to sit there and talk. Plunkett told her they were going around the block. When Plunkett drove on, S.B. said her grandmother was cooking her dinner and she was not supposed to be with him. Plunkett said they were going to a friend's house. Instead, they stopped at Plunkett's house. S.B. was scared, because she thought they were just going to talk. S.B. said she needed to go home. Plunkett told her in a "mean voice" she was not going anywhere. S.B.'s door would not open, and Plunkett got out and opened it. Plunkett led S.B. into the house with his hand gripping her arm. Plunkett locked the door after they were inside. S.B. had never been there before. She was frightened.
Plunkett attempted to kiss S.B. She put up her hand to block him. She did not want to be kissed by Plunkett. Plunkett jerked S.B.'s hand down. S.B. said she needed to go home. Plunkett would not take her home. He told her to "quit playing" and to get in the bedroom. When Plunkett grabbed her arm, S.B. said sarcastically, "Where's the bedroom?" Plunkett took her arm and led her into the bedroom, telling her to take her clothes off. Plunkett's demeanor was mean and bossy. S.B. was afraid and did as she was told. She was frightened by Plunkett's size and his refusal to take her home. Plunkett was two or three times bigger than she was. S.B. did not know what Plunkett was going to do to her. She felt she had no choice but to go to the bedroom. S.B. does not know if she told Plunkett she was afraid. S.B. did not want to take off her clothes.
Plunkett told S.B. to get on the bed after she removed her clothes. Plunkett grabbed S.B.'s head, put his penis in her mouth, and jerked her head up and down. She was afraid and did not want to do it, but said nothing. Plunkett made S.B. say things like "hurt me," and "I want your dick." Plunkett made S.B. lean over the bed, and he attempted anal sex. Plunkett placed his penis in S.B.'s anus. S.B. was shaking and scared. It hurt her. Plunkett placed his mouth on S.B.'s vagina. Plunkett got on top of S.B. and tried to place his penis inher vagina. S.B. felt pain when Plunkett did this. She did not agree to any of it. Plunkett got up to answer the phone and then came back and told S.B. to get dressed. He said he would take her home and that he wanted to meet her grandparents. Plunkett drove S.B. to a corner near an elementary school, where she told him to drop her off. Plunkett asked S.B. if she was going to tell anyone, and she said no. She wanted to be out of the car and away from him. S.B. got out and ran home. Her grandmother was upset. S.B. told her what had happened. S.B.'s grandmother called S.B.'s mother, who called the police. S.B. was taken to Wesley Hospital for an examination, which revealed a 2-centimeter tear in the vaginal mucosa. No sperm was detected. S.B. testified she was a virgin before Plunkett's rape.
During cross-examination, S.B. recalled that when she and Plunkett were in the bedroom, she told him she had to go eat and he told her that she "couldn't go nowhere until he nuts."
Plunkett has not challenged the sufficiency of the evidence in C.D.'s case; thus, a recitation of the evidentiary facts is unnecessary. The factual circumstances in the two cases are similar.
Plunkett appeared on a Friday before District Judge Rebecca L. Pilshaw with his court-appointed counsel for hearing on pro se motions and several pretrial motions filed by his counsel. Trial was scheduled to commence on the following Monday. At the beginning of the hearing, Plunkett requested to represent himself at trial. After informing Plunkett of the risks of self-representation, Judge Pilshaw granted Plunkett's request, relying on the procedure recommended in Barbara, Kansas Criminal Law Handbook, pp. 11-10, 11-11 (3d ed. 1992) (quoted in State v. Lowe, 18 Kan.App.2d 72, 76-77, 847 P.2d 1334 [1993] ). Plunkett maintained a surly, disrespectful attitude throughout the proceeding. During argument on the motions, Plunkett became belligerent and used profanity. He refused to stand when addressing the court. Eventually, he simply refused to answer the judge's questions. Judge Pilshaw found Plunkett in contempt and terminated his self-representation, finding that his conduct was "obstructionist."
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