State v. Redford

• Decision Date: 19 February 1988
• Docket Number: No. 60612,60612
• Citation: 242 Kan. 658,750 P.2d 1013
• Parties: STATE of Kansas, Appellee, v. Ricky Ray REDFORD, Appellant.
• Court: Kansas Supreme Court

Page 1013

750 P.2d 1013

242 Kan. 658

STATE of Kansas, Appellee, v. Ricky Ray REDFORD, Appellant.

No. 60612.

Supreme Court of Kansas.

Feb. 19, 1988.

Syllabus by the Court

1. The trial court does not have the duty to give a limiting instruction sua sponte when res gestae evidence of prior crimes is introduced. The defendant waives his right to object on appeal when he introduces evidence of the prior crimes, or when he fails to make a contemporaneous objection during trial to references of prior crimes.

2. Information requested by the jury is necessarily subject to the trial court's discretion.

3. Instructions should follow the charges contained in the information and should not be broader than the information. However, when the instruction is broader than the information, but is supported by the evidence presented at trial and directly follows the statute under which the defendant is charged, the error may be harmless under the facts of the case.

4. When a trial court errs in omitting from its instruction an element of the crime charged, the omission is reversible error if the appellate court is firmly convinced there is a real possibility the jury would have returned a different verdict had the error not been made.

5. Lack of jurisdiction is not a waivable defense and may be raised for the first time on appeal. Resistance to sexual intercourse in one county which is overcome by fear and force engendered by the initial kidnapping in another county gives venue to either county.

6. A defendant may not ignore the requirements of K.S.A. 1987 Supp. 21-3525, which controls evidence of a victim's prior sexual conduct, merely because he is charged with crimes in addition to those crimes covered by the statute.

Stephen M. Joseph of Joseph, Robison & Anderson, P.A., Wichita, argued the cause and was on the brief for appellant.

Julie Wright Connolly, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., Clark V. Owens, Dist. Atty., and Clarence D. Holeman, Asst. Dist. Atty., were on the brief for appellee.

HERD, Justice.

This is a criminal action. Ricky Ray Redford appeals his jury conviction of aggravated kidnapping, K.S.A. 21-3421; aggravated criminal sodomy, K.S.A. 1987 Supp. 21-3506; rape, K.S.A. 1987 Supp. 21-3502; burglary, K.S.A. 21-3715; criminal damage to property, K.S.A. 1987 Supp. 21-3720; and aggravated battery, K.S.A. 21-3414.

The facts are sordid and depict the tragic uncivilized consequences of drug addiction and its inevitable spinoff of drug dealing. It all started on a tranquil day in the spring of 1986. Donna, 22, was living with her mother and stepfather in Sedgwick County. Donna's parents observed her talking to Ricky Redford and Lisa Shannon. They were parked in the victim's driveway in a maroon Pontiac car. Donna's mother spoke to her alone for a few minutes after seeing Donna was upset and had been crying. Donna assured her mother everything was okay and her problem was just something "her and Rick had to get straightened out." The three were still talking near the car when Donna's parents left to go to a coffee shop. Donna's parents did not see her again for ten days.

Donna's version of the events of those ten days differs greatly from Redford's. She testified that Redford, who had once been a boyfriend of hers, showed up that afternoon at her parents' house and accused her of stealing money and drugs from him. When she denied this, he hit her across the face, forced her into the back seat of the car and drove away. Redford also accused Donna of being involved with Jason Gestl, another former boyfriend of Donna's, in stealing his keys to some rental storage units.

As the three of them proceeded down the road, Donna continued to protest her innocence. This prompted Shannon to pull off on a dirt road where Redford angrily dragged Donna out of the car. He bound her hands behind her back and told her she was going to pay for what she had done. He promised when he was through with her, no one would recognize her.

Donna testified Redford later blindfolded her as they proceeded across the country until they arrived at Gary Kanak's farmhouse in Ellsworth County. Kanak was a friend of Redford's. The two men sat in the farmhouse that night free-basing cocaine, while Donna watched. Her hands were still tied behind her back. Redford hit her several times during the evening when she continued to deny stealing from him. He finally took her to an upstairs bedroom and untied her hands, told her she was going to regret what she had done, and left her alone in the room. Redford had taken the telephone out of the room, and the second-story windows were high above the ground with no fire escape. She was imprisoned, but that made little difference because she was too afraid of Redford to attempt an escape under favorable conditions.

The next morning Redford came upstairs with a gun and dragged Donna out of bed by her hair. He again accused her of stealing from him, and told her to undress. She told him she did not want to have sex with him, but she was too fearful of what he would do to physically resist. Redford then raped Donna. As he left the room, he told her to leave her clothing off because he would be back.

The next day, Redford told Donna, Shannon had gone to his Manhattan apartment and discovered money had been stolen from him which he owed to Cuban drug dealers. He said Gestl had told him Donna took the money. Donna denied this theft also. Gestl sometimes bought drugs from Redford, and the three of them had partied together previously. Gestl testified he had earlier given Redford a gun and shoulder holster because Redford demanded it in payment for drugs and money he claimed Donna had stolen from him.

At a later time, Redford, still carrying a gun, came upstairs with Shannon, and forced Donna to have oral sex with Shannon while he watched. After they left, Donna discovered Redford had left his pistol in the room. She considered shooting herself and she considered shooting Redford, but she feared someone else in the farmhouse would then shoot her. Redford soon returned to the bedroom, laughed when he saw the gun, and removed two bullets from it before taking it away.

On day four, Donna was again awakened by Redford dragging her off the bed by her hair. He shoved her down the stairs and into the living room, where she saw a man covered in blood whom she recognized as Gary Atwell. Redford told her he had beaten Atwell because she had blamed the thefts on him. He then handed Atwell a frying pan and told him he wanted to watch while Atwell and Donna beat one another. When Atwell refused to beat Donna, Redford ordered him to take a shower. While Atwell was showering, Redford kicked Donna and beat her with a chair and a broken lamp. He then violently shoved her out the door and against the car. She told him she believed the impact had broken her left wrist, to which he voiced total unconcern.

Redford and his friend Kanak then shoved Donna into a nearby barn. They tied her feet together with a rope and suspended her in the air from a beam for about an hour while Redford struck her and warned her that "she was going to pay." Scars from the rope remained on Donna's ankles at the time of trial. After Redford let her down, he told her "it was all over for her," and that he wanted Gestl next. That evening, Redford, still carrying a pistol, went to the upstairs bedroom and forced Donna to have anal sex with him.

On day five of Donna's captivity, a friend of Redford's named Barbara examined Donna's wrist and told Redford it appeared her arm was broken and she should be taken to the hospital. Redford agreed to let Donna go to the hospital with Barbara and Shannon, but told them not to give Donna's real name to hospital personnel and to say Donna had been injured in an accident on a three-wheeled vehicle. He warned Donna to say nothing.

The examining nurse at the hospital testified it struck her as unusual that the two women with Donna were so aloof and unsympathetic. They offered her no support, even when it was determined her arm was fractured. Donna herself was very withdrawn and weepy and avoided eye contact. The woman fitting the description of Shannon did most of the talking and said Donna had been injured in a "three-wheeler accident." Donna said little and would not permit the nurse to examine her black eye. Donna testified she was alone with the nurse for a few minutes but was afraid to say anything because "Rick had me believing he knew everybody. When you are in fear for your life you don't think too straight."

On the sixth day of Donna's captivity, Shannon drove her back to the hospital to have her arm put in a cast. Mary Weese, the registered nurse who saw Donna that day, noticed bruises on her face and remembered she was very apprehensive and unwilling to talk. She remembered the woman accompanying Donna, whose description fit Shannon, did most of the talking and appeared to be more concerned about how long the procedure would take than with Donna's well-being.

When they returned to the farmhouse, Redford wrote "KEY?" across Donna's cast in red marker to remind her she had better tell him where she had hidden the keys to his storage units. The cast was admitted into evidence.

Although Donna could not remember the exact sequence of events during her captivity, she testified Redford forced her to perform oral sex upon two friends of his on two separate days and remembered Redford had beaten her at other times while he was interrogating her.

On the ninth day of Donna's captivity, Redford and Kanak loaded up a Uzi machine gun, shotguns, handguns, and electric stun guns and took Donna back to Wichita to meet the two Cuban men whose money Redford was responsible for. Donna, Shannon, Kanak, and Redford stayed in one room at a Wichita motel. Redford warned Donna if she had anything to say she had better say it because "when the Cubans arrived, it would be out of [...