State v. White

• Citation: 263 Kan. 283,950 P.2d 1316
• Decision Date: 12 December 1997
• Docket Number: No. 76539,76539
• Parties: STATE of Kansas, Appellee, v. Michael A. WHITE, Appellant.
• Court: United States State Supreme Court of Kansas

Page 1316

950 P.2d 1316

263 Kan. 283

STATE of Kansas, Appellee, v. Michael A. WHITE, Appellant.

No. 76539.

Supreme Court of Kansas.

Dec. 12, 1997.

Syllabus by the Court

1. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, an appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. A conviction of even the gravest offense may be sustained by circumstantial evidence.

2. Premeditation of a murder means to have planned, contrived, schemed, and thought over the matter beforehand, although no particular amount of time must intervene between the time the killing is planned and the time it is consummated.

3. Premeditation of a murder may be inferred from various circumstances, including: (1) the nature of the weapon used, (2) the lack of provocation, (3) the defendant's conduct before and after the killing, (4) threats and declarations of the defendant before and during the occurrence, or (5) the dealing of lethal blows after the deceased was felled and rendered helpless.

4. The law is well settled in this state that, in a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome.

5. The admission of photographs as evidence in a homicide case rests within the trial court's discretion, and that court's ruling will not be disturbed on appeal absent a showing of abuse of discretion.

6. A prosecutor's statement of a fact in closing argument which is contrary to the evidence is improper.

7. The analysis of the effect of a prosecutor's allegedly improper remarks is a two-step process. First the appellate court determines whether the remarks were outside of the considerable latitude the prosecutor is allowed in discussing the evidence. This analysis commences with the holding that in criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. The second portion of the analysis is that if the remarks are found to be improper, this court must consider whether in light of the record as a whole they are so prejudicial as to amount to reversible error. Each case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error.

8. Improper remarks by the prosecution during closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial.

9. In deciding whether improper remarks by the prosecution during closing argument constitute harmless error, the reviewing court must be able to find that the error had little, if any, likelihood of changing the result of the trial. Such a belief must be declared beyond a reasonable doubt.

10. Trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.

11. If a defendant is charged with murder in the first degree, the county or district attorney shall file written notice if such attorney intends, upon conviction or adjudication of guilt of the defendant, to request a separate sentencing proceeding to determine whether the defendant should be required to serve a mandatory term of imprisonment of 40 years. Such notice shall be filed with the court and served on the defendant or the defendant's attorney at the time of arraignment. If such notice is not filed and served as required by statute, the county or district attorney may not request such a sentencing proceeding and the defendant, if convicted of murder in the first degree, shall be sentenced as otherwise provided by law, and no mandatory term of imprisonment shall be imposed hereunder.

12. The notice requirements of K.S.A.1993 Supp. 21-4624(1) are mandatory, and where the State fails to follow the requirements, the hard 40 sentence cannot be imposed.

13. If the evidence raises a bona fide doubt as to the defendant's competency, then the failure to hold a hearing to determine competency is a denial of due process.

Rebecca E. Woodman, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief, for appellant.

Delia M. York, Assistant District Attorney, argued the cause, and Nick A. Tomasic, District Attorney, and Carla J. Stovall, Attorney General, were with her on the brief, for appellee.

ABBOTT, Justice:

This is a direct appeal by Michael White from his conviction of first-degree premeditated murder. He was sentenced to life imprisonment without the possibility of parole for 40 years (hard 40).

White appeals, claiming evidence of gruesome photographs and that he had battered his girlfriend was improperly admitted into trial, the evidence admitted to prove first-degree premeditated murder and to support the hard 40 sentence was insufficient, and cumulative error requires reversal of his conviction. White also contends that the State erred by failing to comply with the mandatory notice provisions of K.S.A.1993 Supp. 21-4624(1) and erred by not holding a competency hearing prior to sentencing.

White killed his mother, Pearl White, by striking her on the head one time with the side of a hammer. He subsequently disposed of her remains by cutting her body in half and burying each half in the back yard. White claimed self-defense.

When the evidence is viewed as we are required to view it, the facts are as follows. White served 2 years in prison for aggravated robbery. He was released from prison in 1991. In November 1991, White was involved in an accident which crushed bones in his leg. After the injury, White moved in with his mother in a small two-bedroom house in Kansas City, Kansas. White's grandmother, who had Alzheimer's disease, also lived at the residence. According to family members and friends, White and his mother got along well with each other. White began working at a restaurant in March or April 1992. At some point, White developed a cocaine habit.

On May 8, 1992, Belinda Fantroy, White's sister and the victim's daughter, picked White up after work. She took him to cash his paycheck. White asked Belinda to hold onto the cash ($200) for him. She agreed to do so. She dropped White off at her mother's house around 5 p.m. Belinda talked to her mother on the porch, gave her a Mother's Day gift, and left around 5:30 p.m. Belinda saw no friction between Pearl White and defendant at that time. According to Belinda, her brother and mother got along well with each other. However, Belinda testified that it was her understanding White was not helping Pearl White out at home with the expenses. Pearl White had previously told Belinda that she was mad at White and if White did not give her any money by the end of that week, she would be "putting him out."

Around midnight on May 8, 1992, White called Sherry Heggie, an ex-girlfriend and the mother of his child. White told Sherry to come over to the house after work and get some money for their son. Sherry, who is a deputy sheriff, got off work about 12:30 a.m. on May 9 and went to the White residence. Sherry took White to Belinda's house so White could get the cash Belinda was holding for him. Belinda gave White his $200. White gave Sherry $40; then Sherry drove him back home. When they got halfway to Pearl White's house, White told Sherry that he would walk the rest of the way home. Sherry refused to drop White off, and she drove him all the way home. Sherry testified that White seemed normal when they went over to Belinda's house and he seemed normal when she dropped him off at home. However, Sherry testified that White asked her if she was going to talk to him again. He seemed concerned, but she did not know why.

Sherry left and went to her house, which was about 20 minutes away. After she was home for about 5 minutes, she called White's house, but there was no answer, so she went to bed. The next morning, Sherry called White about 9 or 10. White answered, and Sherry asked him what had happened the previous night. White replied that his mother was missing and that he had been out looking for her.

Kathy White, another ex-girlfriend of White's, had a casual conversation with White on the telephone on the morning of May 8. White was supposed to call her back before she got off work at midnight, but he never called. She called White's house at about 12:30 a.m. on May 9, and talked to Pearl White. Pearl White told her that White was at Belinda's house, and that he had called and was on his way back home. Kathy told Pearl White that she would call again when she got home from work. She called at around 1 a.m. and again talked to Pearl White. When she called back at 1:30 a.m., there was no answer. Kathy called again at around 2 a.m., and every 1/2 hour thereafter, with no answer, until 6 a.m., when she went to bed. Kathy did not try to contact White again on Saturday. However, White's employer called Kathy at home three times that day, at 8 a.m., noon, and 3 p.m., asking if she had seen or heard from White.

White called Kathy at work on Saturday evening at 6:30. She asked where he had been the night before, and he told her he had been with Belinda and then with a...