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State v. Ashley

Supreme Court of Kansas

June 23, 2017

State of Kansas, Appellee,
v.
Bruce Julius Ashley, Jr., Appellant.

         SYLLABUS BY THE COURT

         1.

         The purpose of a cautionary instruction on informant testimony is to make the jury aware of possible bias on the part of the informant witness.

         2.

         A requested jury instruction must be supported by sufficient evidence, viewed in the light most favorable to the party requesting the instruction.

         3.

         While there can be no guarantee of witness candor and credibility, the principal means of attacking shaky but admissible evidence are vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.

         4.

         In order to establish the right to a new trial based upon newly discovered evidence, a criminal defendant must establish: (1) that the newly proffered evidence could not have been produced at trial with reasonable diligence; and (2) that the newly discovered evidence is of such materiality that it would be likely to produce a different result upon retrial.

         5.

         In determining whether new evidence is material, the trial judge must assess the credibility of the newly proffered evidence, and the appellate court will not reassess the district judge's determination of credibility from such a hearing.

         6.

         When evidence is properly presented and meets the requirements of K.S.A. 60-455-the fact to be proved is material; the material fact is disputed; the evidence is relevant to prove the disputed material fact; and the evidence's probative value outweighs its potential undue prejudice-then the trial court must give a limiting instruction informing the jury of the purpose for admitting the evidence.

         Appeal from Johnson District Court; Thomas Kelly Ryan, judge. Affirmed.

          Sarah Ellen Johnson, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.

          Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

          OPINION

          ROSEN, J.

         Bruce J. Ashley, Jr., appeals from his conviction of one count of first-degree felony murder and one count of attempted aggravated robbery. Finding no error in the proceedings below, we affirm.

         Facts

         On the night of May 12, 2010, Gerry Grovenburg was found dead behind the counter of Mr. G's, the liquor store that he owned, the victim of a single gunshot wound to his chest. Based on sales transactions and the arrival of a customer at the store, investigators placed the time of death between 9:58 p.m. and 10:20 p.m. A .40 caliber Smith & Wesson cartridge case was recovered from the scene. Two dogs were used independently in an attempt to find a scent trail of anyone who had recently left the store. One dog led his handler north from the store to a parking lot where the trail ended.

         Almost a month later, on June 4, 2010, Kansas City, Missouri, police responded to a shooting at 40th and Highland. Investigators recovered blood samples and numerous shell casings up and down the street of Highland. They noticed three houses with bullet holes and bullet impacts. Defendant Bruce Ashley's DNA was later identified in blood stains on the road, on a shell casing from a 9mm Luger, and on a .40 caliber Smith & Wesson shell casing found at the scene.

         On the same day, a police detective with the Kansas City, Kansas, Police Department responded to a report from a local hospital regarding the arrival of a walk-in shooting victim. In the parking lot, the detective found a gray Kia, which was later determined to belong to Tiffany Bell, Ashley's girlfriend at the time. The passenger seat was stained with blood, and a shell casing was found between the ...


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