State v. Stano

Decision Date08 June 2007
Docket NumberNo. 95,138.,95,138.
Citation159 P.3d 931
PartiesSTATE of Kansas, Appellee, v. Vaccaro M. STANO, Appellant.
CourtKansas Supreme Court

Reid T. Nelson, of Capital and Conflicts Appellate Defender Appeals Office, of Topeka, argued the cause and was on the brief for appellant.

Robert D. Hecht, district attorney, argued the cause, and Jamie L. Karasek, assistant district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

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

Vaccaro Stano appeals from his conviction of first-degree, premeditated murder. The defendant contends before this court that his conviction must be reversed based upon the following claims of error: (1) the exclusion of his exculpatory statement to police; (2) the admission of preliminary hearing testimony at trial of an unavailable witness; (3) the trial court's failure to provide a cautionary instruction concerning informants' testimony; and (4) prosecutorial misconduct during closing argument. We have considered the defendant's claims, find no reversible error occurred, and affirm his conviction.

Duane Hayes was shot in the head in his own driveway in Topeka on the evening of February 26, 2003, and died from his wound. The defendant was charged with first-degree, premeditated murder in conjunction with Hayes' death.

During the 9 months before his death, Hayes had been a habitual user of crack cocaine. Steve Bell, one of Hayes' drug suppliers, sometimes acted as a "drug creditor" for Hayes, where Hayes would allow Bell to use his car in exchange for two or more pieces of crack. Bell testified that Hayes called him on the evening of the shooting and asked Bell if he wanted to borrow Hayes' car, according to their deal. Because Bell was already borrowing his girlfriend's car that evening, Bell testified that he asked the defendant, who was with him at the time, if he would be interested in using Hayes' car. The defendant said he would be interested, and the three men met at a gas station. The defendant and Hayes left the station in Hayes' car, and Bell went home.

According to Bell, the defendant called Bell shortly thereafter, told Bell he had been robbed, and told Bell to meet him and bring a gun. Bell called the defendant back to find out where he was; the defendant told him that he was at Hayes' house. Bell arrived and found the defendant and Hayes outside. Hayes was angry because the defendant had only given him one piece of crack instead of two. The defendant wanted the car and grabbed the gun from Bell's car. Hayes rushed at the defendant and the two men wrestled for a moment; when the defendant broke free, he shot Hayes in the head. He later shot Hayes a few more times. The defendant then wiped down Hayes' car and jumped into Bell's car with Bell, and the two men drove away. Bell testified that the defendant threatened to kill him and his mother if he ever told anyone about the incident.

The defendant's wife, Tanya, was awakened by the sound of gunshots. She testified that she found her husband dead at the end of the driveway. He had been shot once in the back, once in the shoulder, and once in the head. Tanya found a baseball cap, a lighter, and a pack of cigarettes lying nearby; the Hayes' car was parked down the street.

The defendant's palm print was found on the windshield of the Hayes' car. DNA testing revealed that there was 10 times more of the defendant's DNA on the baseball cap than that of the other two contributors.

In addition to Bell and Tanya Hayes, several other witnesses testified at trial regarding the events that evening. Four neighbors testified that they heard gunshots. Two neighbors testified that they saw two men drive away from the scene after they had heard gunshots.

Tishaun Berry testified that she had met Bell earlier that month at a gas station and had given him her phone number. Berry was going to meet Bell on the evening of February 26, but she wanted to know if Bell knew someone who could come along to go out with Berry's friend Siobhan Plunkett. Bell told Plunkett to call the defendant and gave her his cell phone number. Plunkett testified that she called the number on February 26 and was asked to hold on. While she was waiting, Plunkett, Berry, and Plunkett's cousin overheard an argument on the other end of the phone between two men about money and drugs, followed by loud noises. Plunkett's cousin, Aaron Quarles, testified that he thought the noises were gunshots.

In addition, three of the defendant's acquaintances testified that the defendant told them he murdered Hayes and provided details about the murder. DaMario Brooks and Terence Wilkins both testified to this effect at trial. Eugene Greene provided a written statement to the police regarding the defendant's comments to Greene concerning the murder and his interactions with the defendant after the night of the murder. Greene testified at the preliminary hearing; his statement was admitted into evidence and provided part of the basis for his direct and cross-examination at the preliminary hearing.

Greene could not be located to testify at trial. The trial court determined that he was unavailable as a witness and authorized the State to read his preliminary hearing statement and testimony at trial.

(1) The exclusion of the defendant's exculpatory statements to the police

The defendant did not testify at trial. The State called Detective Louis Randall, the officer who investigated Hayes' murder, as a witness. At no point on direct examination did the State question the detective regarding his interrogation of the defendant. However, twice during defense counsel's cross-examination of Detective Randall, counsel attempted to elicit testimony from him that the defendant told the detective during the interrogation that "he didn't know anything" about the murder. On both occasions, the trial court sustained the State's hearsay objection.

The defendant acknowledges that his statements to the detective were hearsay, but he argues that the court violated his right to a fair trial by excluding his hearsay statements to the detective when it allowed three other witnesses — Brooks, Wilkins, and Greene — to testify as to incriminating statements that the defendant made to them regarding his participation in the murder. Specifically, the defendant argues that the exclusion of his exculpatory hearsay statements to Detective Randall and the admission of his inculpatory statements to Brooks, Wilkins, and Greene violated his constitutional right of due process as articulated in Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and State v. Brickhouse, 20 Kan.App.2d 495, 890 P.2d 353, rev. denied 257 Kan. 1093 (1995). In the alternative, the defendant argues that the statements should have been admitted under K.S.A. 60-462.

Standard of Review

"This court has previously recognized that under the state and federal Constitutions a defendant is entitled to present the theory of his or her defense and that the exclusion of evidence that is an integral part of that theory violates a defendant's fundamental right to a fair trial. [State v.] Mays, 254 Kan. [479,] 486[, 866 P.2d 1037 (1994)] (quoting State v. Bradley, 223 Kan. 710, Syl. ¶ 2, 576 P.2d 647 [1978]); State v. Gonzales, 245 Kan. 691 699, 783 P.2d 1239 (1989). `"Few rights are more fundamental than that of an accused to present witnesses in his own defense."' Gonzales, 245 Kan. at 699 (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 [1973]). The right to present a defense is, however, subject to statutory rules and case law interpretation of rules of evidence and procedure. State v. Bedford, 269 Kan. 315, 319, 7 P.3d 224 (2000); State v. Davis, 256 Kan. 1, 11, 883 P.2d 735 (1994); Bradley, 223 Kan. at 714." State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003).

The admission or exclusion of hearsay evidence is within the sound discretion of the trial court. See State v. Thomas, 252 Kan. 564, 572, 847 P.2d 1219 (1993). "`The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.'" State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 [1996]). Nevertheless, "[w]here constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanically to defeat the ends of justice." State v. Hills, 264 Kan. 437, Syl. ¶ 2, 957 P.2d 496 (1998). In some instances, "`[t]he admission of an incriminating hearsay statement, coupled with the refusal to admit an exculpatory hearsay statement by the same declarant, is so fundamentally unfair as to be an abuse of discretion and a denial of due process.'" State v. DuMars, 33 Kan.App.2d 735, 739, 108 P.3d 448, rev. denied 280 Kan. 986 (2005) (quoting State v. Brickhouse, 20 Kan.App.2d at 503, 890 P.2d 353). In such cases, "`[t]he question of whether the exculpatory [hearsay] statement is reliable is overriden by the inherent unfairness that will occur if that statement is excluded while [an incriminating] hearsay statement . . . is admitted.'" DuMars, 33 Kan.App.2d at 739, 108 P.3d 448.

Discussion and Analysis

Before discussing the defendant's arguments and the case law resolving this issue, we note that under time-honored rules of evidence, the defendant's exculpatory hearsay statements to Detective Randall were inadmissible. A criminal defendant is present at trial and has an absolute right to testify in his or her own behalf. Therefore, the defendant in this case could have taken the stand and testified about what he told Detective Randall. However, the defendant elected not to testify. In spite of this decision, the defendant now claims that the court erred by excluding the detective's testimony regarding the defendant's exculpatory hearsay statements.

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