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State v. Green

March 23, 2007

STATE OF KANSAS, APPELLEE,
v.
DEBORA J. GREEN, APPELLANT.



Appeal from Johnson district court; PETER V. RUDDICK, judge.

SYLLABUS BY THE COURT

1. When no sentence of death is imposed, an appellate court is not required to review the factual basis for a defendant's plea of guilty or nolo contendere under a heightened reliability standard.

2. Under K.S.A. 2006 Supp. 22-3210(d), a district judge may permit a defendant to withdraw a plea after sentencing to correct manifest injustice.

3. The decision to deny a motion to withdraw a plea, even after sentencing, lies within the discretion of the district court, and that decision will not be disturbed on appeal absent a showing of abuse of discretion. The defendant bears the burden of establishing such an abuse of discretion. Judicial discretion will vary depending upon the character of the question presented for determination. Generally a district judge's decision is protected if reasonable persons could differ about the propriety of the decision, as long as the decision was made within and takes into account any applicable legal standards. An abuse of discretion may be found if a district judge's decision goes outside the framework of or fails to properly consider statutory limitations or legal standards.

4. In evaluating a post-sentencing motion to withdraw a plea, the district court should consider: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made.

5. If new evidence disproves an element of a crime, then the factual basis for a guilty or nolo contendere plea to the charge of committing that crime is undermined. It is a defendant's burden to prove that the factual basis of a plea is so undercut by new evidence that the prosecution could not have proved its case beyond a reasonable doubt. In such a situation, the court may permit withdrawal of the plea and may set aside the resulting conviction, because doing so corrects manifest injustice under K.S.A. 2006 Supp. 22-3210(d) and comports with due process.

6. Under the facts of this case, the district court did not abuse its discretion in denying defendant's motion to withdraw her guilty plea.

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

Affirmed.

Defendant Debora J. Green appeals the district court's decision denying her motion to withdraw her no contest plea to two counts of capital murder, one count of attempted capital murder, and one count of aggravated arson.

Underlying Facts and Procedural History

In the early hours of October 24, 1995, a fire destroyed the Prairie Village home of defendant and her estranged husband, killing two of their three children. Defendant and one of her daughters escaped the fire; defendant's husband was not at the home at the time.

On November 10, 1995, the Eastern Kansas Multi-County Task Force issued a report determining that the fire "was an intentionally set incendiary fire caused by ignition of a liquid accelerant applied throughout the structure on the main and second floors"; the fire had "multiple points of origin," including a suspicious area of self-contained fire in the vanity of the master bathroom; "liquid accelerant pour patterns and an unusual magnitude of low burn" were identified; isoparaffins, associated with ignitable liquids, were detected in debris; and "all accidental and natural causes for the fire [such as an intruder, or gas or electrical causes] were eliminated."

These events, coupled with a recent near-fatal ricin poisoning of defendant's husband, supported charges against defendant of two counts of capital murder, one count of attempted capital murder, aggravated arson, and one count of attempted first-degree premeditated murder.

On February 12, 1996, the district court judge ordered defendant to submit to a competency evaluation. Although Dr. Marilyn Hutchinson later expressed concerns about defendant's state of mind on the night of the fire, Hutchinson declared defendant competent to stand trial.

The Plea Hearing

On April 17, 1996, defendant agreed to plead no contest to all charges. In exchange, the State agreed not to seek the death penalty and recommended that her sentences run concurrent. The State submitted a 17-page proffer of the evidence it would submit at trial, which the district judge had the prosecutor read into the record. In addition to the information from the task force report on the cause of the fire, the following summarizes the evidence included in the proffer:

Defendant and her husband, both medical doctors, had a troubled relationship. Defendant's husband had expressed his desire to divorce. They had separated, and the husband had moved out of their Missouri home. At some point, defendant and her husband considered reconciling and buying the Prairie Village home; defendant's husband withdrew his offer on the house after expressing uneasiness with resuming a marital relationship. Shortly thereafter, on May 21, 1994, the house they owned in Missouri was significantly damaged by a fire, and they did purchase the Prairie Village home.

In July 1995, defendant's husband began an extramarital relationship with a woman named Margaret Hacker, and, in late July or early August 1995, he again expressed his intent to obtain a divorce. Defendant's behavior became erratic; she drank heavily; she was unable to supervise the children; she threatened herself and others; and she acted in other inappropriate ways.

On August 4, 1995, defendant called her husband, saying she had left the residence and was walking the streets of Kansas City, hoping someone would kill her. On August 5, her husband came home to find her in the residence; she later told him that she had been hiding under a bed in the basement in an effort to make him worry.

Beginning August 11, defendant's husband became ill, and as time progressed, his condition worsened. He was hospitalized on August 18, 1995, and his physician considered his condition life-threatening. After his condition stabilized, he was released to defendant's home on August 25, 1995. He was home for a few hours, when, after eating, he became violently ill again. He was hospitalized again, stabilized, and released on August 30. After going home, he became ill again on September 4, and his illness forced him back into the hospital, where he stayed until September 11. At the time, physicians were unable to pinpoint the cause of his illness, but they had not tested him for poisoning.

Investigators determined that, before each of the defendant's husband's hospitalizations, he had ingested food served by defendant. After the fire, a sample of defendant's husband's blood was sent, among other places, to the Naval Research Laboratory in Washington, D.C. Testing occurred between November 17 and November 22, 1995; and experts ultimately concluded that his blood had been exposed to ricin, an extremely toxic substance that can be extracted from castor beans. Defendant had an undergraduate degree in chemical engineering.

Defendant's behavior continued to be erratic after her husband's release in mid-September, and he remained in the home because he was concerned about defendant's ability to care for their three children. He ultimately attempted to have defendant committed to a mental institution, summoning police officers to transport her for a mental evaluation on September 25, 1995. Officers discovered her in bed, intoxicated. She was screened by Dr. Pamela McCoy, the emergency room physician, who stated that when defendant's husband came in, defendant spat at him, called him a "fuck hole" and told him "you will get the children over our dead bodies." Defendant's husband showed McCoy defendant's purse, which he had found in the residence. It contained several vials of sodium chloride and packets of castor beans. Also in the purse was an Olathe Earl May Garden Center receipt dated August 7, 1995. Subsequent investigation revealed an address book with an entry in defendant's hand for an Earl May Garden Center in Olathe.

Subsequent investigation also revealed that a second purchase of castor beans had been made on September 20, 1995, from a North Kansas City Earl May. The assistant general manager of the store confirmed defendant's identity and said she had special-ordered the packets. September was an unusual time to purchase castor beans, because their growing season was over. Defendant had told the manager the beans were for her child's science fair project. Investigators determined that none of the defendant's children were involved in such a project.

On October 5, 1995, defendant's husband moved out of the home and into an apartment complex nearby. During the next few days, defendant continued to act in a bizarre manner, which included heavy drinking.

On the evening of October 23, defendant's husband picked up two of the children; took them to a hockey game; and returned them to the Prairie Village home at 8:45 p.m. He then went to Hacker's house and was there until 11:30 p.m. He said he then drove to his apartment and called the defendant's residence. He and defendant argued. He told her he was concerned about her drinking and bizarre behavior, and about the possibility that she had tried to poison him. He told officers later that he told defendant she had better straighten up or he would call authorities; he also told officers that he was very angry during the conversation and that it ended abruptly about midnight.

At 12:21 a.m. on October 24, the police dispatcher received a hang-up 911 call from defendant's residence; police and fire units were dispatched and arrived at ...


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