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State v. McDonough

Court of Appeals of Kansas.
May 24, 2013
301 P.3d 789 (Kan. Ct. App. 2013)

Opinion

No. 106,977.

2013-05-24

STATE of Kansas, Appellee, v. Benjamin REDGATE, Appellant.

Appeal from Sedgwick District Court; Jeffrey Syrios, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Sedgwick District Court; Jeffrey Syrios, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., GREEN and McANANY, JJ.

MEMORANDUM OPINION


PER CURIAM.

Luke German was killed in a senseless drug- and alcohol-fueled altercation over his claim that he was being cheated in a video game. Benjamin Redgate was convicted of second-degree intentional murder for the killing. On appeal, he argues that the trial court erred in admitting two letters into evidence and in the manner he was sentenced. He also claims there was insufficient evidence to support his conviction and that the prosecutor made improper remarks to the jury in closing argument. We find no merit in Ben's claims and affirm his conviction and his sentence. With respect to Ben's claim regarding the imposition of a presumptive sentence, we dismiss that claim because we lack the jurisdiction to consider it.

Ben lived with his girlfriend, Ericka Courson; his brother, Chris; Chris' girlfriend, Amy Davey; and Chris and Amy's two children. Luke, the victim, arrived at the house and was permitted to “lay low” there for a few days.

We view the facts elicited at trial in the light favoring the State, the prevailing party at trial. Viewed in that light, we see that Ben, Chris, and Luke decided to play Madden NFL 2010, a video football game. An argument ensued over whether Chris and Ben were cheating. Chris and Luke had been drinking beer, and Luke was intoxicated. Chris had also been smoking marijuana, and Luke had been smoking K2, a form of synthetic marijuana.

Ben texted a phone message to his friend, Zachary Bell, to the effect that Luke was “tripping out” and that Luke was going to get beat up if he did not stop.

The argument escalated to pushing and shoving. Luke tried to punch Chris, but he swung and missed “because he was drunk.” Chris grabbed Luke from behind by the throat, threw him on the ground, and continued hitting him. Eventually the dispute moved to the bedroom. Ben followed Luke and Chris into the bedroom. Luke stood at the foot of the bed, and Chris and Luke continued to argue, but no punches were being thrown. Then, Ben suddenly ran at Luke with a metal pipe and repeatedly struck Luke on the head with it. Luke fell to the ground and Ben started punching Luke in the face with his fist and “stomping his head into the ground,” while Chris punched and kicked Luke around his torso.

At that point Luke lost consciousness. Ben and Chris carried Luke outside and laid him down in the yard to make it look as if Luke had been robbed and beaten by someone after Luke had gone to a nearby liquor store for more beer. Amy wanted to check on Luke, but Ben would not permit her to do so. Eventually Ericka called 911 when she and Amy determined that Luke's pulse was very weak and he stopped breathing.

Meanwhile Ben packed up all of Luke's belongings, put them in the duffle bag, and called Zachary and asked him to come over because he needed some help.

When the police arrived, Ben and Chris told them that they had found Luke unresponsive in the yard. Luke was taken to the hospital where he later died from multiple blunt force injuries and strangulation.

The story about finding Luke in the yard after he went to buy more beer unraveled when Ben was confronted with photos of the refrigerator full of beer at the house. Ben admitted being involved in the fight but initially denied striking Luke with the metal pipe. When confronted with letters he wrote to his other brother, Bobby, in which Ben admitted using the pipe, he changed his story and admitted using the pipe but claimed he only struck Luke on the wrist. Photos of Luke's autopsy showed massive hematomas at a number of places on Luke's brain, as well as bruises on his body consistent with being violently struck with a metal pipe. Ben was arrested and charged with intentional second-degree murder.

At trial the jury was instructed on intentional second-degree murder and on the lesser included offenses of unintentional second-degree murder, voluntary manslaughter, or involuntary manslaughter. The jury was also instructed on aiding and abetting. The jury convicted Ben of intentional second-degree murder.

Ben was sentenced to a presumptive but aggravated term of 267 months in prison. He now appeals.

The Two Letters

Ben argues that the district court erred in admitting into evidence two letters he wrote to his brother Bobby, who was in prison in Hutchinson at the time. Ben argues on appeal that these letters were received into evidence in violation of K.S.A.2010 Supp. 60–455, an objection he failed to raise at trial.

K.S.A. 60–404 provides:

“A verdict or finding shall not be set aside, nor shall the judgment or decisions based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”

A party must make a contemporaneous and specific objection to the admission of evidence in order to preserve the issue for appeal. See K.S.A. 60–404; State v. Harris, 293 Kan. 798, 813–14, 269 P .3d 820 (2012); State v. King, 288 Kan. 333, 348–50, 204 P.3d 585 (2009). A party may not object at trial to the admission of evidence on one ground and then on appeal argue a different ground. State v. McClaslin, 291 Kan. 697, 707, 245 P.3d 1030 (2011).

State's Exhibit 15–A

State's Exhibit 15–A was a letter that Ben wrote to Bobby after Ben was arrested. In the letter, Ben told Bobby that Chris and Amy were trying to push everything off on him. Ben discussed their brother Chris and his attempts to cut a deal with the prosecutor. He stated that Chris and Amy would likely change their stories. Ben observed that their father served 18 years in prison in Lansing and Hutchinson, “so I guess I can do it as well.” Ben told Bobby that he was glad that Bobby did not treat him like Chris did, stating: “Hell you took a Burglary for me.”

Ben's counsel objected to the admission of State's Exhibit 15–A, stating:

“Yes, I just had an objection to the fact that [Ben] says I'm fucked. Well, dad did 18 years in Lansing and Hutch, so I guess I can do it, as well. I had an objection to that because I think that is—it shows the willingness to do the kind of time. The jury's not supposed to consider the time, so that's an objection to that letter .”
The district court overruled Ben's counsel's objection.

Now, on appeal, Ben argues a theory that was never presented to the district court at trial. Rather than arguing his original objection that the letter improperly permitted the jury to consider the possible length of Ben's prison sentence if convicted, he now argues under K.S.A.2010 Supp. 60–455 that because his father served time in prison, the jury would infer that Ben was also a bad person and should be convicted. First, K.S.A.2010 Supp. 60–455 deals with prior bad acts of the defendant, not some other person. Second, Ben unfairly predicates trial court error on a theory which was never presented to the trial court for a ruling. See State v. Carapezza, 286 Kan. 992, Syl. ¶ 7, 191 P.3d 256 (2008); State v. Francis, 282 Kan. 120, 138, 145 P.3d 48 (2006). Finally, Ben's statement that he could do the time in prison, apart from the reference to his father's incarceration, is admissible evidence of his consciousness of guilt. Ben failed to preserve and argue on appeal any viable objection.

With respect to Ben's comment that Bobby “took a Burglary for me,” Ben failed to raise any objection to this comment at trial and is now foreclosed from raising it for the first time on appeal.

State's Exhibit 15–B

State's Exhibit 15–B was a letter that Ben wrote to Bobby in the days after the murder and prior to his arrest. In this letter, Ben told Bobby his exculpatory version of the events on the night of the murder. Ben wrote that he “got hit so I punched Luke twice in da head on the right side and then he was asleep.” Ben later mentioned the fact that his picture was on the news. He wrote: “I don't know what to do I want to go all out maybe do a couple home invasions steal a few cars blow some shit up fuck at this point who cares Im already going down for murder shit just as well go all out....”

The parties agreed to redact several portions of State's Exhibit 15–B, but Ben's counsel did not object to any of these statements, nor did he ask that any of these statements be redacted from the exhibit. Ben's counsel objected to other portions of the letter, but he does not claim on appeal that the court erred in its ruling on any of those objections. Ben failed to preserve for appellate review any claim that under K.S.A.2010 Supp. 60–455 it was error to admit State's Exhibit 15–B. Besides, K.S.A.2010 Supp. 60–455 deals with prior bad conduct of a party, not Ben's fantasy about what he might do in the future.

Sufficiency of the Evidence

Ben argues that the State failed to present sufficient evidence to support his conviction for intentional second-degree murder under K.S.A. 21–3402(a). First, he contends there was insufficient evidence to show that he intended to kill Luke. Second, he contends that the charge that he was culpable as an aider or abettor or as a principal asserted alternative means of committing the crime and that there was insufficient evidence to establish that he is culpable as a principal.

When the sufficiency of evidence is challenged in a criminal case, we examine the evidence in the light favoring the State to determine if a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–375, 277 P.3d 1091 (2012). In doing so, we do not reweigh the evidence or pass on the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).

Ben was convicted for intentionally killing a human being. See K .S.A. 21–3402(a). Culpability for second-degree murder focuses on whether the killing was intentionally or unintentionally done, not on whether a deliberate or voluntary act caused the death. See State v. Deal, 293 Kan. 872, Syl. ¶ 1, 269 P.3d 1282 (2012).

Ben relies on Deal, in which the defendant hit the victim on the head with a metal bar resulting in the victim's death and Deal's conviction of unintentional second-degree murder. But in determining that there was sufficient evidence to support Deal's conviction for an unintentional but reckless killing, the court did not analyze whether the same evidence would have been sufficient to sustain a conviction for intentional second-degree murder. Deal is not particularly helpful.

Before the fight began, Ben texted Zachary to the effect that Luke was “tripping out” and that Luke was going to get beat up if he did not stop. Luke was so intoxicated that he presented no significant personal threat. He took a swing at Chris but missed because he was so drunk. When the dispute moved to the bedroom, Chris and Luke had stopped fighting when, with no apparent provocation, Ben charged at Luke with a metal rod and repeatedly struck him on the head with it. Ben continued striking Luke in the face with his fist and “stomping [his] head into the ground.” Much of the beating took place while Luke was defenseless and on the ground. In the beating Luke's left vertebral artery was lacerated, an injury that the coroner said could occur only with a “significant amount of force” because the artery is well protected by muscles and bone. The autopsy also disclosed massive injuries to Luke's brain.

Once the beating ended, rather than calling for aid for Luke, Ben dragged Luke's body outside and left him. Amy testified that Ben prevented her from going outside to help Luke because Ben was concerned that doing so would attract attention to the situation. Rather than helping Luke, Ben went inside and packed Luke's belongs into a duffel bag.

There is ample evidence that Ben beat Luke with the intent to kill him.

With respect to Ben's alternative means argument, alternative means arise when there are materially different ways of committing a crime based upon its statutory definition or elements. See State v. Schreiner, 46 Kan.App.2d 778, Syl. ¶ 1, 264 P.3d 1033 (2011), rev. denied 296 Kan. –––– (February 20, 2013). Under K.S.A. 22–3421, a criminal defendant has a statutory right to a unanimous jury verdict. State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010). Thus, in an alternative means case the State must present sufficient evidence to permit a jury to find each means of committing the crime beyond a reasonable doubt. See 290 Kan. at 202. As stated in State v. Brown, 295 Kan. 181, 188, 284 P.3d 977 (2012) (quoting State v. Timley, 255 Kan. 286, 289–90, 875 P.2d 242 [1994] ):

“ ‘ “[W]here a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.” ‘ [Citations omitted.]”

Whether a particular case involves alternative means is the issue du jour in our appellate courts. With increasing frequency and regularity, our Supreme Court has found various charges in criminal cases not to present alternative means. But here, we need not be drawn into an analysis of whether aiding and abetting a crime and actually committing the crime are alternative means of committing the same crime. Jury unanimity is assured if there is substantial evidence to support each of the claimed alternative means in a case.

Ben argues that culpability as an aider or abettor or as a principal constituted alternative means of committing Luke's murder and that there was insufficient evidence to establish that he is culpable as a principal. He does not challenge the sufficiency of the evidence that supports a finding that he was an aider or abettor in Luke's murder. Regardless of whether this is an alternative means case, as demonstrated above there was ample evidence that Ben beat Luke with the intent to kill him. In doing so, Ben was acting as a principal and is culpable as a principal for Luke's murder. Thus, the State presented sufficient evidence under either theory.

Improper Remarks in Closing

Ben claims that the prosecutor committed misconduct warranting a new trial when he commented on facts not in evidence, misstated the facts, and intentionally inflamed the passions and prejudices of the jury.

We examine the prosecutor's remarks to determine whether they were outside the wide latitude allowed in discussing evidence. In doing so we consider “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012).

During closing argument the prosecutor stated, “We know that [the metal pipe] causes confluent pattern injuries, multiple injuries, where you could line it up, examine the bruising and see what type of instrument it is.” Ben argues that because the metal pipe was never found, there was no way to know what kind of injuries it would have caused or whether it would have lined up with the linear bruises that the coroner found on Luke's body.

Although the weapon was never recovered, there was testimony and evidence presented that it was a linear metal pipe. Further, there was testimony that the bruising patterns found on Luke's body were consistent with Luke having been struck by such a weapon. The coroner testified that the pattern contusions and linear injuries on Luke's body suggested that the same weapon caused injuries to different parts of Luke's body. The prosecutor's argument was fair comment on the evidence presented.

Ben also contends that the prosecutor's comments on Ben's motive for calling Zachary for help were improper. The prosecutor stated:

“[Ben] wants you to make that out like he's, you know, a good citizen. What was the help he wanted? His friend [Zachary] is the only one with a car, he's the only one that can get rid of the body, he's the only one that can get rid of Luke's possessions. But then [Ericka] and [Amy] figure out, well, he's still alive and [Ericka's] still trying to protect his butt.”

These comments were not based upon any evidence. First, Zachary came to Ben's house with his girlfriend and children, suggesting that he clearly did not believe that he was summoned to dispose of Luke's body. Second, disposing of Luke's body was inconsistent with the scheme Ben concocted after the beating. The plan was to tell the police that they found Luke's body in the yard after he walked to the liquor store.

“As a fundamental rule in closing arguments, prosecutors must confine their comments to matters in evidence.” McClaslin, 291 Kan. 697, Syl. ¶ 14. The above comments by the prosecutor were improper. But this one misstatement does not warrant a new trial. The comments were not gross and flagrant and did not show ill will on the part of the prosecutor. The argument was not repeated. Further, the evidence against Ben was compelling, and based on review of the entire record we are convinced beyond a reasonable doubt that these comments clearly did not affect the outcome of the trial. See Raskie, 293 Kan. at 917–18.

Finally, Ben contends that the portion of the State's closing argument made in Luke's voice and from Luke's perspective constituted unfair comment on facts not in evidence and was intended to appeal to the jury's passions and prejudices.

The comments came during the prosecutor's discussion of the various lesser included offenses. The prosecutor stated:

“This case is not involuntary manslaughter, the least of the crimes, because this is not a reckless act, it's an intentional act. The defendant took his weapon, aimed and connected. What does [Luke] tell you? He says 1 was not a match for the two of them. I was not a match for the [metal pipe]. He says 1 was beaten with a cylinder object, a linear cylinder object, long enough to get some swing in it, hard enough to cause the massive damage in my brain.

“He says I was killed by two people, that's what the evidence shows. He says there was someone at the bottom and someone at top, two different types of injuries on the two different parts of his body. He says I never made contact with them, I couldn't even get a punch in. He says I was trying to protect myself. He got me in the face with that blunt object, I put my hand up, he hit the back of my hand. And you can see the linear mark on his hand. I put my arm up and he hit me in the arm, I rolled over to protect my face and he kept hitting me in the head. He says Ben and Chris, together, intentionally killed me.”

Ben argues that the statement that Luke “couldn't even get a punch in” clearly misstates the evidence because the witnesses testified that the parties were engaged in an “active brawl.” But Amy testified that Luke tried to take a swing at Chris and missed due to his level of intoxication. There was evidence that Luke was on the ground and trying to defend himself or get away rather than inflicting blows. The prosecutor's statements regarding Luke's injuries amounted to fair comment on the evidence.

Ben also complains that the prosecutor's use of the rhetorical device of speaking in Luke's “voice” was designed to inflame the jury's passions and prejudices in an effort to divert attention away from the jury's duty to make decisions based on the evidence and the controlling law. See State v. Tosh, 278 Kan. 83, 90, 91 P.3d 1204 (2004). But the prosecutor's comments were neither lurid or hyperbolic. They were consistent with the evidence that Ben and Chris brutally beat Luke while he lay on the ground or struggled to get away. A prosecutor is given wide latitude in language and in the matter of the presentation of closing argument so long as the argument is consistent with the evidence. State v. Warledo, 286 Kan. 927, 947, 190 P.3d 937 (2008). Here, the rhetorical device of speaking in the first person in and of itself did not render the prosecutor's argument improper.

Cumulative Error

Ben argues that cumulative error mandates the reversal of his conviction. We have found only one error, and that error was in and of itself harmless: the improper comment in closing argument about Ben calling Zachary for help. Thus, there are no errors to accumulate and consider together in order to determine whether collectively they denied Ben a fair trial. The concept of cumulative error does not apply. See State v. Wilson, 295 Kan. 605, 625, 289 P.3d 1082 (2012).

Claimed Sentencing Errors

Ben claims the sentencing court's use of his prior convictions to enhance his sentence without them being proven to a jury beyond a reasonable doubt violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution as interpreted by Apprendi v. New Jersey, 430 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Our Supreme Court has previously rejected this claim and continues to do so. See State v. Fewell, 286 Kan. 370, 394–96, 184 P.3d 903 (2008) (reaffirming State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 [2002] ). We are bound to follow our Supreme Court's ruling on this issue.

Finally, Ben contends the sentencing court's imposition of a sentence in the aggravated grid box violated his rights under the Sixth and Fourteenth Amendments as interpreted by Apprendi and Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). Our Supreme Court has rejected this argument. Because Ben received a presumptive sentence, we are without jurisdiction to consider this contention and, therefore, dismiss it. See State v. Johnson, 286 Kan. 824, Syl. ¶¶ 5–6, 190 P.3d 207 (2008).

Affirmed in part and dismissed in part.


Summaries of

State v. McDonough

Court of Appeals of Kansas.
May 24, 2013
301 P.3d 789 (Kan. Ct. App. 2013)
Case details for

State v. McDonough

Case Details

Full title:STATE of Kansas ex rel. Derek SCHMIDT, Kansas Attorney General, Appellant…

Court:Court of Appeals of Kansas.

Date published: May 24, 2013

Citations

301 P.3d 789 (Kan. Ct. App. 2013)