State v. Verge
| Decision Date | 16 November 2001 |
| Docket Number | No. 82,471.,82,471. |
| Citation | 272 Kan. 501,34 P.3d 449 |
| Parties | STATE OF KANSAS, Appellee, v. ROBERT L. VERGE, Appellant. |
| Court | Kansas Supreme Court |
Richard Ney and Bradley P. Sylvester, of Wichita, argued the cause and were on the briefs for appellant.
Jared S. Maag, assistant attorney general, argued the cause, and Alexander M. Walczak and John K. Bork, assistant attorneys general, and Carla J. Stovall, attorney general, were on the brief for appellee. The opinion of the court was delivered by
This is Robert Verge's direct appeal of his convictions of capital murder, K.S.A. 21-3439(a)(6), aggravated burglary, K.S.A. 21-3716, aggravated robbery, K.S.A. 21-3427, and two counts of theft, K.S.A. 21-3701. He was sentenced to life imprisonment with the possibility of parole after 40 years on the capital murder conviction, 68 months on the aggravated burglary conviction, 138 months on the aggravated robbery conviction, 14 months on the first felony theft conviction, and 14 months on the second felony theft conviction, with each sentence to run consecutively. Verge raises nine issues on appeal relating to venue, jury selection, evidence, prosecutorial conduct, upward departure, and constitutionality of sentence. He appeals directly to our court pursuant to K.S.A. 22-3601(b)(1).
Factual and procedural background
This is a companion case to State v. Bradford, 272 Kan. 523, 34 P.3d 434 (2001).
On February 17, 1997, around 6 a.m., a schoolteacher noticed two individuals carrying a flashlight walking down Solomon Road, north of the residence of Kyle and Chrystine Moore in Dickinson County, Kansas. She stated this was unusual and when returning home from work, she noticed the window of the Moore home was broken out. This report eventually led to the discovery of the slain bodies of Kyle and Chrystine Moore.
The investigating officers found blood stains in the living room, dining room, bathroom, and bedroom. The two victims were found dead in their bedroom. The bedroom had numerous blood impact stains on the walls and ceiling.
Kyle Moore died from gunshot wounds in association with blunt and sharp force injuries, showing he was beaten, stabbed, and shot. The number of wounds on his body totaled 102, some of which appeared to be defensive in nature and the result of a substantial struggle. The pattern of shots indicated that he was not moving at the time he was shot 10 times; however, he did still have blood pressure. Chrystine Moore died from multiple gunshot wounds in association with stab wounds. She also had defensive wounds. Although she was stabbed numerous times, the wounds appeared to be treatable. She received several gunshot wounds to the head, some of which were "contact" wounds where the barrel of the gun contacted her skin. She was alive until the time when she was shot.
A knife wrapped in tissue paper, an empty handgun box, an empty handgun case, an empty ammunition box, and several .22 caliber shell casings were found at the Moore residence. DNA tests of blood stains found on the handgun box, a towel found in the bedroom, an invoice for one of the handguns found outside the residence, a leather jacket found in the victims' pickup truck, and the dash and vent of Kyle Moore's State-issued vehicle showed the blood to be consistent with that of Robert Verge.
Kyle Moore's State-issued vehicle was found in Kansas City, Missouri, parked outside of an apartment building. In the course of the investigation, the authorities became acquainted with one of the apartment residents, Charles Bostic.
Bostic testified for the State that he was a friend of Verge, and they grew up together. He stated that one morning in February 1997, Verge and Virgil Bradford came over to his apartment. The two looked like they had been up all night, and Verge had what appeared to be blood stains on his leather jacket and shoe strings. According to Bostic, Verge said they had just "killed some cops" and he motioned to Bradford to "show him." Bradford then lifted his shirt and displayed three handguns, which Bostic claimed were Verge's .38 caliber revolver, along with a .22 caliber and a 9 mm automatic.
In later testimony, Bostic stated Verge relayed the following sequence of events concerning the murders:
Testifying in his own defense, Verge stated that after stopping in Solomon for gas, his car got stuck on a dirt road as he was trying to get back onto 1-70. Verge stated that he and Bradford stopped at the Moore's house to ask directions back to the gas station and that as he was leaving, Bradford broke into the house to steal keys to a car. He said that he eventually followed Bradford in and saw Bradford beating up Kyle Moore. Verge testified he stood there in shock when he saw what Bradford was doing. After Kyle fell to the floor, Verge stated Bradford proceeded to stab Chrystine Moore until she was incapacitated. Verge testified that he started looking for car keys and while he was doing that, he heard Bradford shooting the Moores. After Bradford shot them, Verge and Bradford found the keys and left in the Moores' truck. Verge was driving the truck and again became stuck in the muddy road. The two returned to the Moores' house and this time took the Moores' other car and drove it to Kansas City.
Verge was convicted of one count of capital murder for the premeditated and intentional killings of Kyle and Chrystine Moore as part of the same act or transaction, or in two or more acts or transactions connected together, or constituting parts of a common scheme or course of conduct pursuant to K.S.A. 21-3439(a)(6). Verge was also convicted of aggravated burglary, aggravated robbery, and two counts of theft. The jury declined to assess the death penalty, and Verge was sentenced as previously stated. We next consider the issues he raises in his appeal.
Change of venue
Verge first contends the trial court abused its discretion in failing to grant his motion for change of venue, based on (1) results of the defense venue study, (2) alleged unqualified potential jurors in the venire, (3) racial prejudice in the community as reflected on the juror questionnaires, (4) potential juror knowledge of sensitive and sometimes false information concerning the case, (5) the trial court's failure to apportion any weight to the defense venue study, and (6) the trial court's refusal to allow a defense expert witness to give his opinion on whether a fair jury could be impaneled from the Dickinson County pool.
We stated our standard of review for motions to change venue in State v. Deiterman, 271 Kan. 975, 978, 29 P.3d 411 (2001):
"
Additionally, we held in State v. Lumbrera, 252 Kan. 54, 57-58, 845 P.2d 609 (1992), State v. Sanders, 223 Kan. 273, 280, 574 P.2d 559 (1977), that the State is not required to produce evidence refuting that of the defendant.
Verge's motion to change venue filed pursuant to K.S.A. 22-2616 was based on a study prepared by Litigation Consultants, Incorporated, which compared opinions of 300 jury eligible residents of Dickinson County with 401 jury eligible residents of Sedgwick County. The preparers of the survey admitted the areas were different because one was rural and one was urban. The questions asked suggested answers and did not allow an answer of "no opinion." The results were testified to reveal that 96.7% of the Dickinson County residents could recall the case, 71.7% had talked about it, 64% believed Verge was either definitely or probably guilty, 39% believed there was a lot of evidence against him, and 5.4% believed there was overwhelming evidence. 71.4% believed Verge should receive the death penalty if convicted. A parallel survey done in Sedgwick County revealed a jury pool much less knowledgeable.
The State presented a separate survey that found 58% of those surveyed had not formed an opinion about the case.
Dr. Thomas Beisecker testified as an expert and opined the methodology used by the consulting firm was sound and adequate to reflect the potential jurors in both counties. The trial court denied Verge's motion to change venue, holding he failed to carry the burden to show prejudice which would prevent a fair and impartial jury from being selected. The court found there was no showing of prejudice from the media coverage, that polling neither separated the issues in the mind of the people who responded nor showed that prejudice was such that a fair trial could not be obtained. The court, apparently looking at the State's poll, stated: "Now, at least half the people in Dickinson County, according to these surveys, have not...
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