State v. White, No. 90,661 (KS 4/22/2005), 90,661
| Decision Date | 22 April 2005 |
| Docket Number | No. 90,661,90,661 |
| Parties | STATE OF KANSAS, <I>Appellee,</I> v. BOBBY BRUCE WHITE, <I>Appellant.</I> |
| Court | Kansas Supreme Court |
SYLLABUS BY THE COURT
1. Under the facts of this case, we review de novo the district court's decision to exclude the testimony of an expert witness.
2. K.S.A. 22-3220 allows a defendant to present evidence tending to show that he or she lacked the mental state required for the offense charged.
3. Under the Kansas and United States Constitutions, a criminal defendant is entitled to present the theory of his or her defense. The exclusion of evidence that is an integral part of that theory violates a defendant's fundamental right to a fair trial.
Appeal from Butler district court; MIKE E. WARD, judge. Opinion filed April 22, 2005. Reversed and remanded.
Michelle Davis, assistant appellate defender, argued the cause and was on the brief for appellant.
James R. Watson, assistant county attorney, argued the cause, and Jan Satterfield, county attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
A jury convicted Bobby Bruce White of first-degree premeditated murder for the shooting death of his son-in-law, and the district court sentenced him to a hard 25 life sentence. He appeals pursuant to K.S.A. 22-3601(b)(1) ().
The issues on appeal, and this court's accompanying holdings, are as follows:
1. Did the district court violate White's due process right to present his defense by refusing to allow White's expert to testify, by failing to instruct the jury regarding the defense of mental disease or defect, and by instructing the jury that mental disease or defect was not a defense? Yes.
2. Does K.S.A. 22-3219 unconstitutionally abrogate the insanity defense? No.
3. Did the prosecutor's misstatements of the law in closing argument deny White a fair trial? No.
4. Did the district court err by failing to instruct the jury on heat of passion voluntary manslaughter? No.
5. Did the district court's instruction that the jury could only consider voluntary manslaughter if the jury did not agree on first-degree murder violate due process? No.
6. Did cumulative error substantially prejudice White and deny him a fair trial? Moot.
Because of error on issue one, we reverse White's conviction and remand for a new trial.
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. White then walked directly out of the store to the parking lot, where the police apprehended him a few minutes later.
After White was charged with first-degree premeditated murder, he filed notice pursuant to K.S.A. 22-3219 of his intent to rely on the defense of lack of mental state or mental capacity. Dr. Marilyn Hutchinson later performed a psychological evaluation of White and issued a 15-page report dated October 21, 2002. Among other things, Dr. Hutchinson found that White suffered from major depression.
On December 30, the State filed a motion to disqualify Dr. Hutchinson and disallow her expert testimony. After a response by White, the district court held a hearing on January 6, 2003.
The next day, the court held that the defense failed to relate White's mental disease or defect to the lack of the mental element required in the offenses charged. Accordingly, the district court found that Dr. Hutchinson's report and proffered testimony fell short of what K.S.A. 22-3220 requires, and the court granted the State's motion to exclude.
White then filed a motion to reconsider on January 10, claiming that K.S.A. 22-3220 violates due process under the United States and Kansas Constitutions and that refusing to allow him to present his theory of defense was error. The motion was denied.
At the subsequent trial, the State produced five witnesses to the shooting. The identity of the shooter was never at issue. Witnesses, security videotape, and forensic evidence established that White shot Aaron once in the abdomen, once in the upper chest, and lastly, as Aaron was lying on the floor, once in the head. One witness testified that after the shooting, the shooter — with the gun still in his hand — walked calmly outside the store and across the parking lot in the direction of the police station two blocks away. An additional witness testified that White set the handgun on the ground, took off his coat and laid it on the ground, and the police apprehended him without incident.
Much of the testimony during the 6-day trial focused on the relationships in the White family. White and his wife Mary have two daughters, B.W. and Wendy. When B.W. was 20, she gave birth to a son, B.A.W. B.W. and B.A.W. lived with her parents for a few months, moved in with B.W.'s boyfriend for a few months, and then returned to live with the Whites until 1998.
By 1998, B.W. had begun dating Aaron. After a few weeks, she moved out, leaving B.A.W. with her parents. On January 8, 1999, she voluntarily signed papers allowing her parents to have guardianship rights for B.A.W. In September 1999, the Whites moved to Arkansas for Bobby White's new job, taking B.A.W. with them. They asked B.W. to move with them, but she declined.
On October 2, 1999, Aaron and B.W. were married. They moved to Augusta in April 2000, and the Whites moved there with B.A.W. soon after. At that time, B.W. and Aaron began sharing custody of B.A.W. with her parents. In December 2001, the Whites moved to Great Bend for Bobby White's new job and wanted to take B.A.W. with them.
The Whites had concerns about how Aaron treated B.A.W. Aaron would give "wedgies" by pulling up on the back of B.A.W.'s underwear. Wendy White testified that during one of these episodes B.A.W. was screaming and his feet were lifted off the ground. Bobby White testified that B.A.W. mentioned a couple of times about Aaron "hurting his pee-pee." Also, when B.A.W. would go to the bathroom, Aaron would follow him in.
According to White, one time when B.A.W. came to the house B.A.W. told him that his bottom hurt. Upon examination, B.A.W. had feces caked to his bottom. When B.W. asked B.A.W. why he did not tell her, he would not answer. At one point, Mary White told B.A.W. to tell her if anyone touched him inappropriately.
The Whites' other concerns involved Aaron lifting B.A.W. by the arm; Aaron shaking B.A.W.; Aaron putting B.A.W. in time-out; Aaron taking B.A.W. to a chiropractor; Aaron and B.W. occasionally leaving B.A.W. at home alone; and pets in the Ruboyianes house.
Bobby White testified that one day in October or November 2001, he went to the Ruboyianes house and saw some disturbing pictures taken on a digital camera. One picture was of B.A.W. standing in a bathtub urinating; a second was of him naked on the toilet; a third was of him standing by the door naked as if waiting on something; and the fourth was of Aaron standing with an erection near B.A.W.'s face. White testified that he confronted Aaron, who grabbed the camera and went into the bathroom.
A month or so later, in December 2001, B.W. hired an attorney to terminate the Whites' guardianship. At the hearing to terminate on January 10, 2002, the attorneys reached an agreement in which temporary custody would be transferred to B.W., she would try to get rid of pets to which B.A.W. was possibly having allergic reactions, and the hearing to terminate the guardianship would be reset for another 30 days. On January 12, the Whites visited the Ruboyianes home and found the pets still there. They believed this was contrary to their agreement, called the police to remove B.A.W. from the Ruboyianes' home, and fired their attorney. However, B.A.W. remained in the Ruboyianes' home.
At the hearing on March 25, 2002, the district court terminated the Whites' guardianship. Bobby White said that he did not get to testify at a hearing because "they had outsmarted me." Among other things, he had intended to raise the issue of the disturbing digital pictures of B.A.W. Mary White confirmed that neither she nor her husband was ever allowed to testify regarding their concerns about B.A.W. She testified that her husband was upset after this hearing, but would not talk about it with her.
On March 26, 2002, the day after the Whites' guardianship of their grandson was terminated, Bobby White drove from Great Bend to the Wal-Mart in Augusta, a 2-hour drive. He testified that he went to Augusta to see B.A.W., but when he realized B.A.W. was at the babysitter's house, he left. White testified that he was thinking about leaving his wife and his family to go to Texas or someplace similar, but he changed his mind when he realized that he had no money, that he did not have the title to his truck, and that he could be tracked down with his credit card. He returned to Great Bend that afternoon.
According to Bobby White's testimony concerning the next day, March 27, he remembered getting up and going to work. The next thing he remembered was walking out of Wal-Mart with a gun in his hand. White further testified that he did not plan to kill Aaron and did not remember getting in his car, driving to Augusta to kill Aaron, or loading the gun. He had no recollection of how long he was in the police car after his arrest because he was unconscious part of the time.
The jury was given instructions on first-degree premeditated murder, second-degree murder, and voluntary manslaughter based on an unreasonable but honest belief that circumstances existed that justified deadly force in defense of another person, i.e., B.A.W. There was no instruction requested or given on the defense of mental disease or defect.
During its deliberations, the jury submitted the following question to the Court: ...
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