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STATE v. PIOLETTI

January 19, 1990.

STATE OF KANSAS, Appellee,
v.
RANDY D. PIOLETTI, Appellant.



The opinion of the court was delivered by

Randy D. Pioletti appeals his jury trial convictions of aggravated kidnapping (K.S.A. 21-3421) and first-degree murder (K.S.A. 21-3401).

The facts of this bizarre homicide may be summarized as follows. Karen Baile and Randy D. Pioletti were married in December 1984. A daughter, Rhyannon, was born in May of 1985. The marriage ended in a December 1987 divorce. Custody of Rhyannon was a bitter ongoing problem between her parents. In the fall of 1987, Randy told a friend, Mary Kessinger, he knew how to permanently resolve the problem. He stated he could "grab" Karen, put her in his van, take her to the mortuary where he worked, and cremate her. He made similar statements to other people. He also stated that if he did this, he wanted Karen to feel it.

  On December 6, 1987, Randy made arrangements to meet Karen at Willie C's, a restaurant near the Wichita Towne East Mall, on the following evening. The stated reason for the meeting was a joint Christmas shopping expedition for Rhyannon and Karen's two children from a previous marriage.

  At 6:30 p.m. on December 7, 1987, Randy left work at the mortuary after asking a co-worker to cover for him for a couple of hours for the stated reason he wanted to buy his daughter a Christmas present. Karen left her home at 6:10 p.m., telling the baby-sitter she would be back at 10:00 p.m. She never returned. Randy returned to work at 8:00 p.m. He appeared to be nervous and had abrasions on his face and left hand. Randy stated he had injured himself on his van door.

  The next morning a co-worker at the mortuary saw Randy mopping near the crematory. He also noticed the crematory was hot, although there was no scheduled usage thereof. Randy pointed to the crematory and indicated he had cremated his dog. Later that morning, Randy went to Mary Kessinger's house and asked her to wash some coveralls for him. He also requested and received permission to put a bucket of rags in an outbuilding on

[246 Kan. 51]

      her property. Shortly after Randy left, he called Mary stating: Karen had disappeared, he was in trouble, and the police were looking for him. He also indicated he had burned a puppy in the crematory and was in difficulty at work because of it. After Randy hung up, Mary started thinking about Randy's odd conduct that morning, his telephone call, and his prior threat to kill and cremate Karen. She went to the outbuilding and found a bucket containing cloth and ashes hidden therein. She called the police.

  The bucket contained ashes, bones, pieces of flesh, teeth, sheets, paper towels, plastic, coins, a paper clip, a safety pin, gold chain, a makeup purse frame with clasp, aluminum tubing, a cigarette butt, a gold necklace fob with a clear stone, and glass. Analysis of the biological material revealed that the remains were that of a female with the following characteristics: (1) of European descent; (2) 5'2"; (3) approximately 32 years old; (4) had given birth within the last five years; (5) had a broken nose; and (6) had type O blood. Karen Baile was a 5'2" white female, 32 years old with type O blood and a broken nose, and who had last given birth in May 1985. The necklace found in the bucket was identified as belonging to Karen. DNA analysis introduced at trial indicated that blood found on the door of the crematory was probably that of the offspring of Bryon and Delphina Baile, Karen's parents. The test indicated a 99.999% probability of parenthood. On December 8, 1987, Karen's automobile was found in the parking lot of Willie C's restaurant.

  On December 10, 1987, Randy was charged with premeditated first-degree murder. Following a preliminary hearing, he was bound over on first-degree murder and aggravated kidnapping charges. The information was amended to reflect these charges.

  On May 12, 1988, defendant was convicted of first-degree murder and aggravated kidnapping. He was sentenced to consecutive life terms. The matter is before us on Randy's direct appeal. Other facts will be stated as necessary for discussion of the particular issues.

  VOIR DIRE

  Defendant complains herein of a number of what he contends were judicial improprieties committed during voir dire. Preliminarily, we must set the stage. The prospective jurors were divided into three groups of twelve, each of which was questioned

[246 Kan. 52]

      separately, but in the presence of the others. Defendant had previously filed a notice of intent to rely upon an insanity defense. During voir dire examination of the first panel the matter of the insanity defense was raised, and the panel was asked if any person could not follow the judge's instructions or not fairly consider the evidence thereon. There were no affirmative responses. Later on, when a prospective juror on the same panel was being examined, the individual expressed some doubt as to what the law on insanity was. The trial judge, over defendant's objections, responded as follows:
"I don't know that its going to come up in the case, but there is no reason for the jury to have any questions about the law of insanity. This is the law of insanity.
`Insanity, to constitute a legal defense to the charge of crime, means that the defendant is laboring under such a defect of reason from disease of the mind as to not to know the nature and quality of the act he is doing, or, if he did know it, that he did not know that what he was doing was wrong because of his mental inability to distinguish between right and wrong, and if these facts exist, then the law does not hold him responsible for his act. On the other hand, if a defendant is mentally capable of understanding what he is doing and has the power to know that his act was wrong, then the law will hold him criminally responsible for it. If this power of discrimination existed, he was sane in the eyes of the law. A person of sound mind and discretion will not be exempted from punishment because he might have been a person of weak intellect or one whose moral perceptions were blunted or ill developed, or because his mind may have been depressed or distracted from brooding over misfortunes or disappointments, or because he may have been wrapped up to the greatest and most intense mental excitement from sentiments of disappointment, rage, revenge, or anger. The law recognizes no form of insanity, although the mental faculties may be disordered or deranged, which will furnish one immunity from punishment for an act declared by the law to be criminal, so long as the person committing the act had the capacity to know what he was doing and the power to know that his act was wrong.'
  "Now, that's the law of insanity in Kansas. If that is a defense asserted, then that will be your instruction. There will be other instructions. The reason I am doing that is because both sides saw fit to go into that on voir dire. I don't even know if there will be any evidence in that regard. If there isn't, you won't get an instruction on that. That's why I would like to caution you, we can't expect members of the jury to speculate about matters that may not be in issue, but every time a jury raises a question, I am going to answer it. That's why I read it. You will have that in writing if that is a defense asserted."

[246 Kan. 53]

     

  The instruction read by the trial judge was from State v. Andrews, 187 Kan. 458, 357 P.2d 739 (1960), cert. denied 368 U.S. 868 (1961).

  As voir dire progressed, the subject matters of insanity and expert testimony thereon continued to surface. Each time, the trial court launched anew into the subject with increasingly maundering responses. Finally, the following occurred:
"THE COURT: We have gotten into something [insanity issue] that may be purely speculative. It will be time to instruct when it becomes an issue in the case. We are getting farther and farther into it and we are going to back out. That's the only thing I know to do.
"I am not trying to put Mr. Stahl [defense counsel] —
"MS. SWEGLE [attorney for State]: I would like to note my objection to —
"THE COURT: We are going to leave that out until we know that's going to be the defense.
"MS. SWEGLE: That Notice has been filed; we are entitled to go into it.
"THE COURT: Let me put it this way: You have gone into it at great length, both of you. The subject matter is exhausted, period.
"MR. STAHL: Is Your Honor saying the next panel is not going into that?
"THE COURT: If you want to ask people if they will disregard those, you are welcome to do so, but — Do any of the other twelve people that obviously have heard all of this have any questions to raise at this time about the insanity defense, should it be raised in the case?
"(No response.)
"THE COURT: Okay, nobody has any. I am just trying to get this thing in proportion. Let's proceed."
  At the conclusion of the voir dire questioning, defense counsel moved for a declaration of mistrial based upon the judge's comments during and conduct of the voir dire. The trial judge's comments (out of the presence of the jury) in overruling the motion are too lengthy for in toto inclusion herein and include much irrelevant material, such as his low personal opinion on the value of expert witnesses on insanity issues. The judge concluded his remarks as follows:

  "The reason I called a halt to all this final argument that was going on about the insanity defense is, I just was confronted with the fact that it hadn't even been decided by the defense or diclosed, pardon me, disclosed to the Court whether that defense is going to be used. If it wasn't going to be used, none of the discussion about insanity was appropriate. And if

[246 Kan. 54]

      you choose not to use it, there won't be any instruction on it. And it won't be before the jury."

  Defense counsel's complaints relative to alleged judicial impropriety during voir dire fall into two categories:
1. Improper statements of the applicable law; and
2. improper restriction of inquiry on voir dire.
K.S.A. 22-3408(3) provides:
"The prosecuting attorney and the defendant or his attorney shall conduct the examination of prospective jurors. The court may conduct an additional examination. The court may limit the examination by the defendant, his attorney or the prosecuting attorney if the court believes such examination to be harassment, is causing unnecessary delay or serves no useful purpose."
  In State v. Jackson, 234 Kan. 84, 86, 670 P.2d 1327 (1983), we stated the rule concerning the limitation of voir dire examination of the jury as follows:
 
"A trial court has a broad discretion in controlling the voir dire examination in criminal cases. In the absence of a showing of an abuse of discretion and prejudice, the rulings of a trial court limiting a defendant's voir dire examination of jurors will not be made the basis for a reversal of a case. [Citation omitted.]"
See also State v. Mahkuk, 220 Kan. 74, 77, 551 P.2d 869 (1976).

  Here, the trial court limited the voir dire examination of the jury only after an extensive discussion of the various ramifications of an insanity defense had occurred. The trial court considered further discussion unnecessary in view of the discussion which had taken place with the first two jury panels and in the presence of the third panel. Moreover, before closing off the subject, he asked the remaining panel if they had any questions concerning the insanity defense. There were no questions. The court also told defense counsel that he could question the remaining jury panel about whether they would disregard insanity instructions. Defense counsel did question the prospective jurors from the third jury panel on whether there was anything that might keep them from being fair and impartial jurors.

  We have carefully reviewed the entire record of the voir dire and unhesitatingly conclude:

  1. No reversible misstatements of the applicable law as to insanity and expert witnesses thereon were made by the trial court;

[246 Kan. 55]

     

 
2. the complained-of limitation of voir dire as to the insanity defense relative to the third panel was not an abuse of discretion and not prejudicial to the defendant;
3. the voir dire was not well handled by the trial court and was characterized by rambling, repetitive judicial statements that should not have been made; and
4. individually and collectively, no reversible error or prejudice to the defendant has been shown.
INSTRUCTIONS
  The unnumbered instruction defining legal insanity given at the close of the evidence was the same as that set forth in the preceding issue and will not be repeated herein. As previously stated, it is taken from State v. Andrews, 187 Kan. 458, wherein it was approved. Particularly, defendant complains that it was error not to define the word "wrong."
  In State v. Boan, 235 Kan. 800, Syl. ¶ 2, 686 P.2d 160 (1984), we held:
"Under the M'Naghten test for criminal insanity, the accused is to be held not criminally responsible (1) where he does not know the nature and quality of his act, or, in the alternative, (2) where he does not know right from wrong with respect to that act."
"Wrong," as used in the M'Naghten test, was defined as "`that which is prohibited by the law of the land.'" 235 Kan. at 810. We further stated that the PIK instruction on insanity would be clearer to the jury if language defining the word "wrong" were added to the instruction. However, the lack of definition did not cause this court to declare the giving of the PIK instruction to be erroneous or overrule the instruction used in State v. Andrews, 187 Kan. 458. 235 Kan. at 814.
  PIK Crim.2d 54.10 was amended in response to the Boan opinion and now reads:
"The defendant has denied criminal responsibility because of lack of mental capacity at the time the offense was committed. In law, this is called insanity. The defendant is not criminally responsible for his acts if because of mental illness or defect, he lacked the capacity either
(a) to understand the nature of his acts, or
(b) to understand that what he was doing was prohibited by law.
  "If you have a reasonable doubt as to his capacity to understand either, then you should find the defendant not guilty because of insanity.

[246 Kan. 56]

     

 
"If you have no reasonable doubt that the defendant had the mental capacity at the time of the alleged offense to understand both what he was doing and that it was prohibited by law, then you should find the defendant was not insane."
  Defense counsel's request to use this PIK instruction was denied. Boan involved an unusual factual situation wherein defendant claimed to believe the killings he committed were morally right — hence the trial court's modification of the instruction from a right and wrong test to a contrary to law test. We held:
 
"Under the M'Naghten test for criminal insanity, the accused is to be held not criminally responsible (1) where he does not know the nature and quality of his act, or, in the alternative, (2) where he does not know right from wrong with respect to that act." 235 Kan. 800, Syl. ¶ 2.
"Under the `right and wrong' test of criminal insanity, it must be proved that at the material time the accused did not know that what he was doing was contrary to law. It is not sufficient to prove that he believed that, while what he was doing was legally wrong, it was morally right." 235 Kan. 800, Syl. ¶ 3.
  No such claim is made herein. Defendant's attempts to conceal the crime were planned in advance and his conduct afterward clearly showed an awareness that the killing was prohibited by law. We find no reversible error in this instruction.
  Next, defendant claims error in the following unnumbered instruction:
"Defendant has claimed as a defense, insanity.
"All persons are assumed to be sane unless the contrary appears from the facts and circumstances in the case.
"If, upon consideration of the whole evidence, the defense asserted causes the jury to have a reasonable doubt as to defendant's sanity at the time of the occurrence, the defendant should be found not guilty by reason of insanity."
  Defendant contends this instruction impermissibly shifted the burden of proof to him.

  In State v. Hollis, 240 Kan. 521, 731 P.2d 260 (1987), we discussed the burden of proof as follows:

  "`[T]he state is not required in the first instance to introduce evidence to prove sanity, for the law presumes that all persons are sane, and this presumption of sanity takes the place of evidence in the first instance. It answers for evidence of sanity on the part of the state. But if evidence is introduced which tends to shake this presumption, the ...


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