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State v. Davey

Court of Appeals of Kansas.
Jan 8, 2016
364 P.3d 305 (Kan. Ct. App. 2016)

Opinion

No. 111,774.

01-08-2016

STATE of Kansas, Appellee, v. Denise DAVEY, Appellant.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant. Daniel G. Obermeier, legal intern, Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.


Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Daniel G. Obermeier, legal intern, Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

MEMORANDUM OPINION

PER CURIAM.

Denise Davey appeals after a jury convicted her of attempted first-degree murder and conspiracy to commit first-degree murder arising out of an attempt to kill her husband. On appeal, she contends that the district court erred in admitting hearsay evidence under the coconspirators exception to the hearsay rule. Moreover, she contends that the district court erroneously instructed the jury to try the case based solely on the evidence presented at trial and to follow all of the instructions given by the court. For the reasons set forth in this opinion, we disagree. Accordingly, we affirm her convictions and sentence.

Facts

In the early morning hours of June 26, 2013, Nicole Carter; her boyfriend, Adam Hersh; and his sister, Whitney Hersh, attacked Nicole's stepfather Dennis Davey (Dennis) in his home in Shawnee. At the time, Nicole lived with her mother, Denise Davey (Denise), and stepfather. Denise was not home at the time of the attack on Dennis.

Dennis was asleep when Adam and Whitney entered his bedroom and hit him multiple times with a baseball bat. They also put a garbage bag over his head and tried to tape it around his neck. Fortunately, Dennis broke the bag and got free. As he attempted to run away, either Adam or Nicole hit him numerous times with the baseball bat. Eventually, Dennis went outside and ran towards his next-door neighbor's house.

Another neighbor—Billy Kilgore—woke up when he heard dogs barking loudly. When he looked outside, Kilgore saw three people between his house and the Daveys' house next door. He could hear someone saying, “ ‘He's got a knife. He's trying to kill us.’ “ As they ran across his driveway, Kilgore recognized Nicole and Adam. He did not, however, know the other young woman who was with them. Then, Kilgore saw Dennis and ran to him.

Dennis was covered in blood and practically unrecognizable to Kilgore. One of Dennis' eyes was bulging out of the socket, and his head was split open enough that Kilgore could see his skull. When Kilgore asked what happened, Dennis said, “ ‘They tried to kill me.’ “ Kilgore then ran after the others and caught up with Nicole first. She was on the phone yelling, “ ‘He's got a knife, and he was trying to kill me.’ “ Kilgore kept running to try to catch up with Adam, but he fell. So, he went back to Nicole, forced her to the ground, and took the phone from her.

Eventually, several Shawnee police officers arrived. When an officer patted down Nicole, he found—among other things—a set of keys with the word “Denise” on a charm. Subsequently, a canine officer and his dog located Adam and Whitney who were hiding nearby. Ultimately, all three were arrested.

Meanwhile, Dennis was transported to Overland Park Regional Medical Center where he remained for 7 days. It was determined at the hospital that Dennis had suffered multiple lacerations, contusions, and abrasions on his face and skull. In addition, he had an open skull fracture and lacerations through his scalp to his brain. Moreover, most of the bones in his face were fractured, his eyes were swollen shut, and the lens of one of his eyes was dislocated.

Later in the day on June 26, Adam and Whitney's mother—Lori Valerius–Allen—called the Shawnee police to say that Denise had made a comment that Dennis had a $1 million life insurance policy and that she had fed him mercury. Valerius–Allen also said that a few days before Dennis was attacked, she overheard a conversation from which she gleaned that Denise was attempting to find someone to kill Dennis for $20,000.

On July 3, 2013, Denise's cell phone was seized pursuant to a search warrant to check her text messages and telephone calls. Further, AT & T records were obtained. As a result, police learned of 16 text messages between Denise and either Adam or Nicole in the hours before the attack. In addition, there were 18 phone calls between Denise and either Adam or Nicole between 7:16 p.m. and 9:07 p.m. on the night of the attack.

Moreover, a woman who was in jail with Nicole informed the police that Nicole had told her that Denise made a deal with Adam to have Dennis killed. Eventually, Adam also told police that Denise had planned to have Dennis killed. As a result of the police investigation, Denise was charged on August 15, 2013, with one count of attempted first-degree murder and one count of conspiracy to commit first-degree murder. The State subsequently amended the complaint to change the date range for the conspiracy charge. Otherwise, the charges remained the same.

On November 25, 2013, the State filed a notice of its intent to seek an upward durational departure sentence at Denise's trial. Subsequently, the State also filed a notice of its intent to admit preliminary hearing testimony of Adam Hersh, Whitney Hersh, or Nicole Carter pursuant to K.S.A.2014 Supp. 60–460(c). Specifically, the State asked to use the preliminary hearing testimony of these witnesses in the event that any or all of them might assert their Fifth Amendment privilege and refused to testify at trial.

At the preliminary hearing, Adam testified that Denise and Nicole told him that they would pay him money to kill Dennis. Adam testified that these conversations occurred multiple times in the month before the attack on Dennis and that he received $1,000 cash directly from Denise to have Dennis killed. Furthermore, Nicole testified at the preliminary hearing that Denise had mentioned the idea of killing Dennis to her and that she knew her mom wanted Adam to hire someone to kill Dennis. Nicole also testified that Denise told her she had broken a thermometer and put the mercury on Dennis' food in an unsuccessful attempt to kill him.

A 4–day jury trial was held from January 13 to January 16, 2014. Ten witnesses testified for the State on the first day, including Dennis. He testified that he married Denise in June 2008. At the time, he had two daughters and Denise had one daughter, Nicole.

According to Dennis, the marriage went well until Denise quit her job in November 2012. Dennis testified that he had a checking account and two money market accounts in 2013 that he shared with Denise. In addition, Denise had her own checking account. Dennis admitted that he was a “cheapskate” who did not spend money unless he absolutely had to do so. However, he described Denise as a person who liked to spend money and buy things for herself and her daughter.

In March 2013, Dennis testified that Nicole—who was 22 years old and unemployed—moved in with him and Denise. Around the same time, Dennis met Nicole's boyfriend—Adam—who was in his early 20s. Dennis believed that Denise changed when her daughter moved in with them. In particular, he noted that Denise and Nicole would go out together and be gone for long periods of time.

Sometime in June 2013, Dennis noticed about $1,700 had been spent from their joint bank account. He later discovered that Denise had also taken $8,000 out of their joint money market account. When he asked Denise about the money, she told him she had put the $8,000 in her bank account. Dennis indicated that he did not know what Denise did with the $1,700. Eventually, Denise returned $8,000 to the joint money market account.

Dennis recalled that Denise called him on June 25, 2013, while he was at work to ask what time he was coming home. When he arrived home that evening, Denise and Nicole were not there. Dennis tried to call Davey several times but she did not answer. Around 6:30 p.m ., Denise called Dennis back and said that she was out with Nicole. She also told Dennis not to wait up for them.

Dennis went to bed around 8 p.m., which was his usual bedtime, but did not fall asleep right away. He recalled hearing Denise and Nicole coming home around 8:30 or 8:45 p.m. At some point, he got up and saw Denise pacing on the patio. Dennis went back to bed and woke up at 11 p.m. When he awoke, Denise was not in bed and Dennis noticed that one of the cars was gone. So, he attempted to call Denise but she did not answer.

Dennis then called Nicole's phone. Although she did not answer, Nicole came out of her bedroom and asked him if he was trying to call her. Dennis asked her if she knew where her mother was and she said she'd gone to her mother's house in Pleasant Hill because she was sick. Dennis testified that he did not believe Nicole because Denise's mother lived with one of her sisters. He further testified that although Denise went to see her mother a lot, it would have been unusual for her to go that late at night.

After speaking with Nicole, Dennis went back to bed. He testified that the next thing he recalled was sitting on the side of the bed with his hands tied behind his back while someone struck him in the head with a hard object. He noticed two people in the room and asked why they were hitting him. He also asked about Nicole, and they said that they had taken care of her.

At some point, Dennis was able to break his hands loose, but the two people tied him up again and continued hitting him. Ultimately, he was able to fight his way out of his bedroom. He recalled that the people chasing him tried to tie him up again in the living room and in the kitchen while they continued to hit him. Dennis was able to break loose again and heard a male voice say, “ ‘Let's get out of here.’ “ At that point, Dennis ran out of the house.

An additional 11 witnesses testified for the State on the second day of trial, including Whitney Hersh. Whitney testified that she was homeless before the incident but would go to her mother's house to stay about twice a week. While at her mother's house, Whitney would sometimes see her brother, Adam, as well as Nicole and Denise. According to Whitney, she remembered Denise complaining about Dennis and saying that he would not let her have feminine things like perfume, makeup, or jewelry.

Whitney testified that on June 25, 2014, that Adam asked her to meet him and Nicole at a Walmart store in Independence. At the store, Adam gave her money to buy cigarettes and some clothes. She then left with them in Denise's car. Nicole drove them to McDonalds to get some food. Before they got to the restaurant, the three smoked some methamphetamine. Although the timing of the events is unclear, it appears that they went to a gas station and Adam bought capsules to fill with methamphetamine. After they left the gas station, Adam asked Whitney to help kill Dennis.

Whitney's testimony was interrupted so that the prosecutor could have Nicole's preliminary hearing testimony read to the jury. After the State read Nicole's preliminary hearing testimony into the record, the district court made a record of the fact that Nicole indicated at the pretrial conference that she was invoking her Fifth Amendment privilege and would not agree to testify at trial. Thus, her preliminary hearing testimony was deemed to be admissible, and there was no objection asserted by defense counsel.

At the preliminary hearing, Nicole had testified that Dennis never physically or sexually abused her or her mother. Moreover, she testified that Denise first mentioned the idea of killing Dennis and told her that if he were gone, there would be a lot of money. Nicole admitted mentioning this “in passing” to Adam, but she denied having any knowledge of a plan to kill Dennis until the day it happened. Nicole also testified that she knew her mother wanted Adam “to have the mob do it before the day that it happened, but there wasn't an actual plan.” She further testified that Denise told her that at some point she had broken a thermometer and put it in Dennis' food because she had heard that mercury “would do it without being traceable.”

Nicole recalled that on June 25, 2014, she and Adam dropped Denise off at a park around 6 p.m. Before dropping her off, Nicole, Adam, and Denise went to the bank to withdraw some money. She thought during the whole 2–month period that she was dating Adam, Denise gave him around $6,000. After dropping Denise off at the park, Nicole and Adam drove to Independence to pick up drugs and to meet Whitney at Walmart. Afterwards, they went back to the park to pick up Denise and then they all went back to the Daveys' house.

According to Nicole, when they arrived back at the house, Denise distracted Dennis while Nicole, Adam, and Whitney went into Nicole's bedroom. In her bedroom, the three did more drugs and played games. Nicole also recalled that Dennis called her because he did not know where Denise was and that she briefly went out into the living room to talk to him.

Nicole testified that she went back to her bedroom and had headphones on while Adam and Whitney talked to one another. At some point, Nicole recalls Adam grabbing a trash bag and saying, “ ‘Let's go.’ “ Nicole admitted that she knew Adam and Whitney were talking about going to hurt Dennis. But Nicole indicated that she told them she could not do it. At that point, Adam and Whitney put pantyhose over their faces and left Nicole's bedroom carrying a baseball bat that they got from underneath her bed.

Nicole stated that she stayed in her bedroom while Adam and Whitney attacked Dennis. At some point, Nicole went out of her room and saw Dennis. She then grabbed her purse and her cell phone before running outside the house to call 911. Nicole told the dispatcher that her stepfather had sexually attacked her and that she hit him with a baseball bat. However, she later admitted to making up the story in an attempt to cover up for Adam.

Nicole denied giving Adam money from Denise to kill Dennis. Rather, she testified that Denise gave her money to give to Adam for some tree work that he had done in their yard. Denise also gave them a thousand dollars about a week before the incident, which Adam told Nicole was a loan to purchase equipment for the tree work. However, Nicole testified that she and Adam spent the $1,000 at the mall.

Next, the State called Adam to testify. But Adam also invoked his Fifth Amendment privilege and refused to testify. As such, the district court found that he was unavailable and that his preliminary hearing testimony could be read to the jury. At the preliminary hearing, Adam had testified that it was Nicole who first brought up the idea of killing Dennis to him and then Denise subsequently brought up the subject.

According to Adam, Denise gave Nicole and him $1,000 to have Dennis killed. Instead, he and Nicole spent the money to buy drugs. Approximately 2 weeks before the attack, Nicole also gave him $500, which he gave to another person—known as Boogus—who was supposedly willing to kill Dennis for $5,000 or $6,000. For whatever reason, the plan to have Boogus kill Dennis never materialized.

Adam testified that all three of them started for Dennis' room, but when they got there, Nicole “kind of disappeared.” Adam recalled that when he and Whitney walked into Dennis' bedroom, Dennis sat up and said, “ ‘What the hell?’ “ At that point, Adam struck Dennis in the head with the baseball bat and then hit him again in the torso. Whitney put the trash bag over Dennis' head while Adam put tape around the bag. Adam could not remember if anyone tied up Dennis' hands, which was part of the plan. But Dennis broke free, ripped the bag off his head, and chased them out. When they exited the bedroom, Adam saw Nicole, who had completely changed her clothes. Adam testified that Nicole then took the baseball bat from him and beat Dennis with it. Once again, Dennis was able to get up and chased Adam, Whitney, and Nicole into the kitchen. While they were in the kitchen, Dennis was able to grab a knife. Before exiting the house, Adam got the bat again and hit Dennis.

After Nicole's and Adam's preliminary hearing testimony was read to the jury, the State recalled Whitney to resume her testimony. Whitney admitted that she agreed to help Nicole and Adam kill Dennis. According to Whitney, they were “supposed to take care of Dennis because that's what Nicole's mom, Denise, wanted.”

At the beginning of the third day of trial, Denise's trial attorney argued that certain text messages sent between Denise, Adam, and Nicole that the State planned to introduce into evidence constituted inadmissible hearsay. Defense counsel indicated one example of a text message that he thought was inadmissible was one allegedly sent by Denise to Adam saying: “ ‘I got home last night and the goons never showed up. I want my money back.’ “ Defense counsel was concerned because he was unable to cross-examine Adam or Nicole about any of the messages, which he also did not believe were in furtherance of the conspiracy. After considering the arguments of counsel, however, the district court ruled that it would allow the texts to be admitted into evidence as statements by coconspirators.

Thereafter, 10 more witnesses testified on behalf of the State that day. One of the witnesses, a Shawnee police officer who does computer and cell phone forensics, testified about calls made by Nicole to Denise from the jail. Denise's attorney objected to the admission of the jail calls into evidence on hearsay grounds. He argued that at the time the calls were made, the conspiracy was over. The district court, however, overruled the objection.

The calls were played for the jury over Denise's objection, but do not appear to be included in the record on appeal. In addition, the officer testified about the text messages sent between Denise, Nicole, and Adam. Finally, the State recalled Dennis before resting. Thereafter, the defense exercised its right not to put on any evidence.

The next day, jury returned a verdict finding Denise guilty of attempted first-degree murder and conspiracy to commit murder. The jury also found aggravating factors for sentencing. Specifically, the jury found that the crime involved two or more participants and the defendant played a major role in the crime as the organizer, leader, recruiter, manager, or supervisor; the conduct during the offense manifested excessive brutality to the victim in a manner not normally present in the offense; multiple attempts or plans were made to murder the victim; and the offense involved a fiduciary relationship between defendant and victim.

Subsequently, on March 10, 2014, the district court sentenced Denise to an upward departure sentence of 576 months in prison and ordered that Denise be jointly and severally liable with the codefendants for $103,136.94 in restitution. Thereafter, Denise filed a timely notice of appeal.

Analysis

Admission of Telephone Conversations and Text Messages

Denise contends that the district court erred in admitting inadmissible hearsay evidence at her trial. In particular, she maintains that Whitney's testimony about statements made by Adam and Nicole were inadmissible. Denise also claims that text messages between her, Adam, and Nicole—as well as phone calls made or received at the jail by members of the alleged conspiracy—constituted inadmissible hearsay. In particular, Denise argues that this hearsay testimony did not meet the coconspirator exception to the hearsay rule.

“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible [subject to stated exceptions].” K.S.A.2014 Supp. 60–460. Here, Denise argues that the evidence was erroneously admitted under the statutory exception to the hearsay rule that states that a statement that would otherwise be hearsay may be admissible against a party if the statement would be admissible if made by the declarant at the hearing and “if ... the party and the declarant were participating in a plan to commit a crime or a civil wrong” so long as “the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination.” K.S.A.2014 Supp. 60–460(i)(2).

We review the district court's determination regarding whether hearsay is admissible under a statutory exception, such as K.S.A.2014 Supp. 60–460(i)(2), for an abuse of discretion. State v. Betancourt, 301 Kan. 282, 297, 342 P.3d 916 (2015). A district court can abuse its discretion in three ways: (1) when no reasonable person would take the view adopted by the district court; (2) when the district court's ruling is based on an error of law; or (3) when substantial competent evidence does not support the district court's findings of fact on which the exercise of discretion is based. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).

First, Denise maintains that Whitney's testimony about a phone conversation she overheard while she was in Nicole's bedroom waiting to attack Dennis was inadmissible hearsay. Whitney testified that she overheard part of a call from Denise to Nicole. According to Whitney, Nicole told Denise, “ ‘No, Mom, I'm not going to kill you too.’ “ Denise's attorney objected and argued that the statement was not a statement in furtherance of the conspiracy. The district court overruled the objection, however, stating that it was relevant to the conspiracy.

Additionally, Denise contends that certain text messages from her to Adam and from Adam to Nicole were inadmissible hearsay. Specifically, she objects to the admission of a text message she sent to Adam that stated: “ ‘Hey, what's up. Came home last night and nothing happened. The goons are not trustworthy. I want money back.’ “ She also objects to the admission of a text message from Adam to Nicole that evidently stated: “ ‘You need to stop talking about your step dad, and no, I won't help you kill him.’ “

Denise also contends that jail phone calls from Nicole to Denise should not have been admitted into evidence because they also constituted hearsay. In the appellant's brief, it is stated that one of the phone calls “contained a statement that no one would be covering for Denise anymore.” But, as indicated above, although these recordings were played for the jury, they are not in the record on appeal.

Denise does not dispute that there was evidence establishing a substantial factual basis for a conspiracy between her, Nicole, Adam, and Whitney. Instead, Denise argues that the exception in K.S.A.2014 Supp. 60–460(i)(2) only applies when the person testifying is someone who was not a part of the conspiracy. However, the plain language of K.S.A.2014 Supp. 60–460(i)(2) does not require that the testimony about the conspiracy come from a third party not involved as a member of the conspiracy. In fact, the language of the statute provides that an out of court statement may be admissible against a party if “the party and the declarant were participating in a plan to commit a crime....” K.S.A.2014 Supp. 60–460(i)(2).

Denise relies on State v. Flynn, 274 Kan. 473, 508–09, 55 P.3d 324 (2002), which listed five factors that must be present for a hearsay statement to be admissible under the coconspirator exception including that the person testifying must be a third party. One of the factors listed in Flynn—that “the statement of the coconspirator must have been outside the presence of the accused”—was expressly disapproved of in State v. Sharp, 289 Kan. 72, 103, 210 P.3d 590 (2009), because there is no “ ‘outside the presence of the defendant’ requirement on the face of the statute.” See Betancourt, 301 Kan. 282, Syl. ¶ 6.

Although the Kansas Supreme Court has not spoken on the factor that “ ‘the person testifying must be a third party,’ “ there is nothing on the face of the statute to support that requirement. See State v. Jackson, 280 Kan. 16, 33–35, 118 P.3d 1238 (2005) (finding a hearsay statement made by one coconspirator to the defendant over the phone admissible through testimony of a third coconspirator), cert denied 546 U.S. 1184 (2006). Because there is no requirement that a coconspirator's statement must come from a third party to be admissible under K.S.A.2014 Supp. 60–460(i)(2), we find that Denise has failed to show that the district court erred in admitting the complained-about statements.

Furthermore, we find that there is substantial competent evidence in the record to support the district court's ruling that the factual requirements for the application of K.S.A.2014 Supp. 60–460(i)(2) were satisfied. We also find that the district court did not act unreasonably or base its ruling on an error of law. We, therefore, conclude that the district court did not abuse its discretion nor did it base its ruling on an error of law.

Jury Instructions

Denise also contends that the district court erred in instructing the jury that its verdict “ ‘must be founded entirely upon the evidence admitted and the law as given in these instructions.’ “ She claims that the instruction deprived the jury of its power to enter a verdict contrary to the evidence or the law, a practice referred to as jury nullification. See State v. Naputi, 293 Kan. 55, 65–66, 260 P.3d 86 (2011). She also maintains that although jurors should not be told that they can nullify, it is a misstatement of the law to tell them that they cannot nullify.

Denise admits that she did not object to this instruction before the district court. However, she claims that her failure to object does not matter because the instruction was clearly erroneous. When a party fails to object to an instruction given at trial, that party is prohibited from later arguing that the district court erred in giving the instruction unless the instruction was clearly erroneous. K.S.A.2014 Supp. 22–3414(3).

We analyze whether an instruction was clearly erroneous in two steps. First, we must determine whether there was any error at all by considering whether the instruction was legally and factually appropriate. Second, if we find error, we then must assess whether the jury would have reached a different verdict without the error. In doing this analysis, we have unlimited review of the entire record, and the party claiming error in the instructions bears the burden of proving the degree of prejudice necessary for reversal. Betancourt, 299 Kan. at 135.

The initial language Denise challenges comes from the instructions given by the district court to the jury before the presentation of evidence. Specifically, the district court instructed: “Now that you have been chosen as jurors for this trial, you are required to try the case based solely on the evidence and exhibits that you see and hear in this courtroom.” Then later, during the final jury instructions given after the presentation of evidence, the district court instructed the jury that “it is your duty to consider and follow all of the instructions.” This second instruction was specifically requested by Denise in her proposed jury instructions.

Denise argues that juries have long held the inherent power to acquit a defendant even if the jury finds beyond a reasonable doubt that the defendant is guilty. Although juries may have the power to ignore the evidence and the law, it is not improper for a district court to instruct a jury that it has a duty to consider the evidence presented in the courtroom and to follow the instructions of law.

Moreover, the Kansas Supreme Court has expressly disapproved of jury nullification instructions.

“Although it must be conceded that the jurors in a criminal case have the raw physical power to disregard both the rules of law and the evidence in order to acquit a defendant, it is the proper function and duty of a jury to accept the rules of law given to it in the instructions by the court, apply those rules of law in determining what facts are proven and render a verdict based thereon .” State v. McClanahan, 212 Kan. 208, 217, 510 P.2d 153 (1973).

Similarly, the Kansas Supreme Court has held that “[i]t is not the role of the jury to rewrite clearly intended legislation, nor is it the role of the courts to instruct the jury that it may ignore the rule of law, no matter how draconian it might be.” Naputi, 293 Kan. at 66. Hence, even though jurors have the raw power to nullify, they are supposed to accept the rules of law given to them in the instructions and apply those rules in determining what verdict to return. Thus, we do not find the challenged instructions given by the district court to be clearly erroneous or erroneous at all.

Affirmed.


Summaries of

State v. Davey

Court of Appeals of Kansas.
Jan 8, 2016
364 P.3d 305 (Kan. Ct. App. 2016)
Case details for

State v. Davey

Case Details

Full title:STATE of Kansas, Appellee, v. Denise DAVEY, Appellant.

Court:Court of Appeals of Kansas.

Date published: Jan 8, 2016

Citations

364 P.3d 305 (Kan. Ct. App. 2016)
2016 WL 97847