State v. White, 95,621.

• Decision Date: 22 June 2007
• Docket Number: No. 95,621.,95,621.
• Citation: 161 P.3d 208
• Parties: STATE of Kansas, Appellee, v. Bobby Bruce WHITE, Appellant.
• Court: Kansas Supreme Court

161 P.3d 208

STATE of Kansas, Appellee, v. Bobby Bruce WHITE, Appellant.

No. 95,621.

Supreme Court of Kansas.

June 22, 2007.

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

James R. Watts, assistant county attorney, argued the cause, and Paul J. Morrison, attorney general, was with him on the brief for appellee.

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

After this court reversed Bobby Bruce White's first-degree premeditated murder conviction and remanded for a new trial in State v. White, 279 Kan. 326, 109 P.3d 1199 (2005), he was again convicted of the same crime. He again appeals his conviction. Our jurisdiction is under K.S.A. 22-3601(b)(1), a maximum sentence of life imprisonment imposed.

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Did the prosecutor commit misconduct requiring reversal? No.

2. Did the district court err in allowing a narrative response from witness Relph? No.

3. Did the district court err in instructing the jury on the issue of mental disease or defect? No.

4. Did the district court err in failing to instruct the jury on the lesser included offense of voluntary manslaughter? No.

Accordingly, we affirm the district court and conviction.

FACTS

On March 27, 2002, Bobby Bruce White drove from his home in Great Bend to the Wal-Mart store in Augusta. Once inside, he walked directly to the electronics department where his son-in-law, Aaron Ruboyianes, was working. He killed Aaron with three shots from a handgun.

After White was charged with first-degree premeditated murder, he filed notice pursuant to K.S.A. 22-3219 of his intent to rely upon the defense of lack of mental state or mental capacity. Dr. Marilyn Hutchinson later performed a psychological evaluation of White. Among other things, she concluded that White suffered from major depression. The district court disallowed her testimony, holding that the defense failed to relate White's mental disease or defect to the lack of the mental element required in the offenses charged.

A jury convicted White of first-degree premeditated murder. On appeal, this court determined that exclusion of Hutchinson's testimony violated his fundamental right to a trial and that the district court's failure to give an instruction on mental disease or defect was erroneous. As a result, the case was remanded for a new trial. 279 Kan. at 341, 345, 109 P.3d 1199.

The retrial occurred in August 2005. The same basic defense was asserted: not guilty because of mental disease or defect that rendered White incapable of possessing the required criminal intent to commit the charged offenses.

The same basic facts were also established. In late 1998 or early 1999, White and his wife became guardians of their grandson, B.A.W., who was born in May 1996. In 2001, White accepted a job in Great Bend, Kansas. Although the Whites wanted B.A.W. to accompany them, his mother (Mother), who was now married to Aaron Ruboyianes, wanted him to stay in Augusta with her. Consequently, she moved to terminate her parents' guardianship in the district court.

The Whites visited Mother and Aaron's home in February 2002. Mother was gone at the time. Upon returning, she found Aaron upset and scared. According to a letter written by Aaron about the encounter, White told him: "`You guys started this, and I'm gonna finish it once and for all,'" and "`You guys don't know quite what you're getting into.'"

On March 25, 2002, the court terminated the Whites' guardianship and reinstated Mother's custody. The next day White left his home in Great Bend for work. He instead drove 2 hours to Augusta, withdrawing $500 in cash on the way. He later returned home to attend a dentist appointment.

The next day, March 27, White again made the 2-hour drive to Augusta. He entered Wal-Mart, Aaron's place of employment, and without warning, shot the unarmed Aaron three times, killing him. He was apprehended in the store parking lot.

After his arrest, White gave a Mirandized statement to Captain Bruce Relph of the Augusta Department of Safety. He told Relph that he shot Aaron to protect his grandson. White's videotaped statement was played to the jury.

Dr. Hutchinson testified for the defense. According to her, White obsessed about protecting B.A.W. and was trying to protect him the day of the shooting. She diagnosed him as having a personality disorder not otherwise specified with dependent, depressive, narcissistic, borderline, and passive-aggressive traits, along with major depression. Dr. Hutchinson opined that his personality disorder impaired his sense of reality. Based upon White's personality disorder, she thought it was possible that he could have driven 2 hours to Augusta and then shot Aaron without knowing what he was doing. Essentially, she testified that White suffered from a personality disorder that impaired his ability to form the requisite intent to commit murder.

The State presented rebuttal testimony from Dr. Bradley Grinage, a forensic psychiatrist. He opined that White, at the time of the shooting, did not "suffer from mental disease or defect sufficient to interfere with his ability to form intention to commit the crime." Because this conclusion was different from his earlier opinion, and notice of his change had not been given to defense counsel or the court before his rebuttal, the court struck his entire testimony.

White was again convicted of premeditated first-degree murder.

Additional facts will be provided as necessary to the analysis.

ANALYSIS

Issue 1. The prosecutor did not commit misconduct requiring reversal.

White argues that the prosecutor committed misconduct requiring reversal by his: (1) intentionally withholding evidence that Dr. Grinage, prior to trial, had changed his opinion about White; (2) inappropriately attacking Dr. Hutchinson; and (3) eliciting a narrative response from Captain Relph. White's third contention of error will be analyzed in issue 2.

Standard of Review

Allegations of prosecutorial misconduct require a two-step analysis. First, the appellate court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal. State v. Elnicki, 279 Kan. 47, 58, 105 P.3d 1222 (2005) (quoting State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 [2004]). We have applied the test to prosecutorial action in contexts beyond mere comment on the evidence. See State v. Swinney, 280 Kan. 768, 779, 127 P.3d 261 (2006) (citing cases).

In the second step of the two-step analysis, the appellate court considers three factors to determine whether a new trial should be granted:

"(1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 [inconsistent with substantial justice] and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) [conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial], have been met." Tosh, 278 Kan. 83, Syl. ¶ 2, 91 P.3d 1204.

1. Change in testimony

White first argues that he was denied the right to a fair trial because the State failed to disclose that Dr. Grinage had changed his opinion of whether White suffered from mental disease or defect that negated his ability to form intent.

In June 2005, the State filed a motion on the admissibility of Dr. Grinage's testimony. In the motion, the State noted that Dr. Grinage was initially hired by defense counsel to evaluate White; however, the State wanted to call Dr. Grinage as a rebuttal witness.

At the motion hearing, White's attorney relied upon the report Dr. Grinage had prepared for the defense in asking the court to exclude his testimony:

"[W]e would object to the evidence coming in through Doctor Grinage on the grounds of relevance. He is not able to make any firm determination as to whether Mr. White could form the intent or not in this case. He, basically, joins Doctor Hutchinson's diagnosis of depression. But we don't believe there's anything relevant in his report, and we would object on those grounds." (Emphasis added.)

The district court determined that it would wait to see "how the evidence develops at trial" before ruling on the admissibility of Dr. Grinage's testimony.

In rebuttal to Dr. Hutchinson's trial testimony 5 months later that White suffered from a personality disorder that impaired his ability to form the requisite intent to commit murder, Dr. Grinage testified that White's prior defense counsel had initially contacted him to do an evaluation. The evaluation occurred in November 2002. After the examination, Dr. Grinage prepared a report for defense counsel.

Dr. Grinage then testified that White did not have a formal thought disorder. Specifically, he concluded that White did not, at the time of the alleged criminal conduct, suffer from mental disease or defect sufficient to interfere with his ability to form intent to commit the crime.

On cross-examination, Dr. Grinage admitted that at the time he had prepared his written report for defense counsel several years earlier, he had been unable to form an opinion as to whether White suffered from a mental disease or defect sufficient to render him incapable of forming the intent to premeditate. He testified that the change in his...