State v. Sprague

• Decision Date: 04 December 2015
• Docket Number: No. 108,062.,108,062.
• Parties: STATE of Kansas, Appellee, v. Davin R. SPRAGUE, Appellant.
• Court: Kansas Supreme Court

362 P.3d 828

STATE of Kansas, Appellee,

v.Davin R. SPRAGUE, Appellant.

No. 108,062.

Supreme Court of Kansas.

Dec. 4, 2015.

Heather Cessna, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant, and Davin Sprague, appellant, was on a supplemental brief pro se.

Ellen Hurst Mitchell, county attorney, argued the cause, and Derek Schmidt, attorney general, and Kris Ailslieger, of Office of the Kansas Attorney General, were with her on the briefs for appellee.

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

A jury found Davin Sprague (Sprague) guilty of premeditated first-degree murder for killing his wife, Kandi Sprague (Kandi). The district court sentenced Sprague to a hard 50 life sentence. Sprague raises numerous issues on direct appeal to this court, including four issues raised in a pro se supplemental brief. We affirm Sprague's conviction but vacate his sentence and remand for resentencing. In so doing, we hold as follows: (1) Because there was only one killing here, this is not a multiple acts case requiring a unanimity instruction; (2) the district court properly denied Sprague's motion arguing ineffective assistance of counsel because Sprague failed to raise more than a conclusory claim; (3) during closing argument, the prosecutor erred when using the term "preposterous" and implying that two witnesses had "no motive," but the error was harmless; (4) Sprague was not convicted in violation of the corpus delicti rule because the State presented ample evidence that a homicide had occurred; (5) the district court did not err when it denied Sprague's motion for acquittal; (6) Sprague's argument on appeal concerning admission of gruesome images into evidence was not properly preserved for our review; (7) the district court did not err when it denied Sprague's motion to suppress the results of a search of Sprague's outbuilding because the search was within the scope of the authorizing search warrant; (8) Sprague was not denied a fair trial due to cumulative error; and lastly, (9) we have already declared the sentencing scheme under which Sprague was sentenced to a hard 50 term of imprisonment to be unconstitutional, and thus Sprague's sentence must be vacated and his case remanded to the district court for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Davin Sprague and his wife Kandi were living with their three children in a country home in rural Saline County, Kansas. On July 23, 2010, Sprague became aware that Kandi was on the verge of leaving him and filing for divorce. Sprague's mother, Ann Fleming, came to the Sprague home early that afternoon to take her grandchildren for the weekend. Later that day, Kandi and her mother, Anna Christmas, had an hour-long phone conversation about the failing marriage. Kandi told her mother that she was thinking of divorcing Sprague. Kandi further confided that she had met another man online. A few minutes after the call ended, Kandi texted her mother, saying she was going to file for divorce. Her mother responded by asking if Sprague knew. Kandi replied: " ‘I don't think so. Love you.’ "

But Sprague was quickly becoming aware. That same day, Sprague had taken Kandi's cell phone and used it to contact the man—Steven Peacock—Kandi had met online. Peacock told Sprague that he had been led to believe by Kandi that she was divorced. Sprague told Peacock that she was in fact married, and in a subsequent phone call, Sprague and Peacock spent some time discussing the marital problems between Sprague and Kandi. Subsequently, that evening, Peacock and Kandi talked on the phone and communicated over the internet via a social game they played with another woman, Jennifer Helm. Kandi continued to communicate with Peacock and Helm through the online social game until she signed off at 11:32 that night. This was the last known communication from Kandi before she died.

The next morning, July 24th, Kandi was gone. Sprague immediately began to tell friends, family, and law enforcement that Kandi had left him for another man while he was asleep that night. On August 2, while executing a search warrant related to Kandi's disappearance, police discovered her body buried in a shallow grave in the floor of a Morton building located on Sprague's property.

Following this discovery, Sprague gave a new, and very different, description of the events that occurred between 11:30 at night on July 23rd and the next morning. Sprague's statement was recorded and that recording was eventually played to the jury during trial. Sprague stated that around midnight or 1 a.m., Sprague was working in his Morton building when Kandi walked into the building. Sprague claimed Kandi then started to attack him, putting her hands around his neck to choke him. Sprague claimed that he felt fearful and threatened because Kandi was larger and stronger than he was. In order to defend himself, Sprague alleged, he grabbed a large pipe and hit Kandi in the back of the head.

After this, Sprague continued, Kandi fell down and "a bunch of blood and shit started coming out of her mouth." During the interview, Sprague made a gurgling noise to illustrate the noise he claimed Kandi was making. Sprague told police he saw Kandi in pain and believed she would die before an ambulance could arrive. Sprague explained that in order to spare her that fate, he took a rope and strangled Kandi until the "pain was gone." Sprague then decided he had better conceal Kandi's body for the sake of his daughters. He told police he spent the next 8 hours digging up the hard-packed dirt floor of the Morton building and burying his wife's body.

Erik Mitchell, a forensic pathologist and the medical examiner who conducted the autopsy, also testified at trial. He told the jury that based upon the state of the recovered remains certain facts were lost, such as whether there were hemorrhages around the neck or in the brain. The autopsy did reveal that Kandi had two separate fractures to her skull

in the back of her head. But Mitchell opined that Kandi did not die as a result of the head injury, because he did not find the kind of blood clotting in the brain that would lead to death. Mitchell said that brain swelling secondary to the primary blunt force brain trauma could also cause death but that death from brain swelling "takes time." He indicated that death from fractures like the ones in Kandi's skull would take "more than a day." Mitchell testified the typical symptoms associated with this type of fracture would be unconsciousness, localized bleeding, nosebleed, tearing of the scalp, and possibly bleeding from the mouth. While he could not be certain, Mitchell testified there was a "very good chance" Kandi's head injuries were survivable.

Finally, Mitchell opined that the blunt force necessary to inflict the head injury

Kandi sustained could not be generated in the manner Sprague described—i.e., reaching around to strike the rear while face-to-face with Kandi and engaged in a struggle. While the autopsy report listed Kandi's head injury as the official cause of death, Mitchell testified that a subsequent strangling would be a "supervening" cause. However, due to the state of decomposition, he was unable to diagnose asphyxiation or strangling as a cause of death.

Following the killing, in addition to hiding Kandi's body, Sprague attempted to bolster his story that she had left him for another man by using her cell phone to send text messages to Kandi's mother and brother indicating that she was alive and well and would talk to them soon.

After hearing all of the evidence, a jury convicted Sprague of premeditated first-degree murder. The district court, following a hearing on the State's motion, imposed a hard 50 sentence pursuant to K.S.A. 21–4635. Sprague now appeals his conviction and sentence. We exercise jurisdiction pursuant to K.S.A. 2014 Supp. 22–3601(b)(3) (direct appeal to Supreme Court when life sentence imposed).

ANALYSIS

1. No unanimity instruction was required.

Sprague argues the district court erred in failing to give a unanimity instruction after the State presented a case where multiple acts could have constituted first-degree murder. Sprague's claim is that he could have killed Kandi either by the blow to the head or the subsequent strangling. The State argues that anytime there is only one killing, no unanimity instruction is required. The district court did not give a unanimity instruction, and the parties did not request one.

We have recently stated the appellate framework and standard of review for a unanimity instruction analysis:

" ‘Unanimity instruction errors are reviewed under a three-part framework. First, the reviewing court determines whether a multiple acts case is presented. The threshold question is whether jurors heard evidence of multiple acts, each of which could have supported conviction on a charged crime. State v. King, 299 Kan. 372, Syl. ¶ 1, 323 P.3d 1277 (2014). This is a question of law subject to unlimited review. State v. Santos–Vega, 299 Kan. 11, 18, 321 P.3d 1 (2014) (citing [State v. ] Voyles, 284 Kan. [239,] 244, 160 P.3d 794 [2007] ). If the case is a multiple acts case, the next question is whether error was committed. To avoid error, the State must have informed the jury which act to rely upon or the district court must have instructed the jury to agree on the specific act for each charge. Failure to elect or instruct is error. Finally, the court determines whether the error was reversible or harmless. Santos–Vega, 299 Kan. at 18 . When, as here, the defendant failed to request a unanimity instruction, the court applies the clearly erroneous standard provided in K.S.A. 2013 Supp. 22–3414(3). See Voyles, 284 Kan. at 252–53 . Under this test, to find the error reversible:

" ‘ "[a]n appellate court must be firmly convinced that under the facts the jury would have returned a different verdict if the unanimity instruction had been given. See State v. King, 297 Kan. 955, 979–80, 305

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