Opinion
No. 108,136.
2013-09-20
STATE of Kansas, Appellee, v. Gideon MAIYO, Appellant.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge. Deb Hughes and Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.
Deb Hughes and Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., GREEN and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Gideon Maiyo was convicted of the attempted murder of his wife, Elizabeth Kogo. At trial, evidence of a prior domestic violence incident was allowed as K.S.A. 60–455 evidence to show Maiyo's motive. Maiyo appeals, arguing that the evidence should not have been admitted because the State relied on “inference stacking” in order to give it any material and probative value, it was unduly prejudicial, and it was admitted with an overly broad limiting instruction to the jury.
We need not recount at this point the events surrounding this gruesome crime. The parties are well acquainted with them. We turn directly to Maiyo's claim of error.
Maiyo argues that the district court erred in admitting, under K.S.A. 60–455, evidence of a prior domestic violence incident in order to show motive. The steps for admitting such evidence under K .S.A. 60–455 are enumerated in State v. Wilson, 295 Kan. 605, 617, 289 P.3d 1082 (2012). Our appellate review depends on which step in this analysis the district court considers. Materiality is reviewed de novo. Probity is reviewed for any abuse of discretion. We conduct our own de novo balancing of probative value and the potential for producing undue prejudice in deciding whether the evidence was properly admitted. 295 Kan. at 617–18.
Before the enactment of K.S.A. 60–455 in 1963, evidence of past marital discord was routinely admitted to show motive.
“[F]rom at least 1893 on, Kansas courts admitted evidence of a discordant marital relationship when one spouse stood accused of killing the other. See State v. O'Neil, 51 Kan. 651, 665, 33 Pac. 287 (1893); see also State v. Rupe, 226 Kan. 474, 477–78, 601 P.2d 675 (1979); State v. Scott, 117 Kan. 303, 319, 235 Pac. 380 (1924), aff'd on rehearing118 Kan. 464, 235 Pac. 380 (1925); State v. Cruse, 112 Kan. 486, 494, 212 Pac. 81 (1923). In the 1893 case, the court specifically wrote: ‘Ill treatment and previous assaults by husband on wife are admissible to prove motive, in cases of marital homicide.’ O'Neil, 51 Kan. 651, Syl. ¶ 2. (Emphasis added.)” State v. Gunby, 282 Kan. 39, 51, 144 P.3d 647 (2006).
Since the enactment of K.S.A. 60–455, our courts have repeatedly approved of the admission of evidence of prior domestic violence to show motive. See, e.g., State v. Anicker, 217 Kan. 314, Syl. ¶ 1, 536 P.2d 1355 (1975); State v. Patterson, 200 Kan. 176, Syl. ¶ 2, 434 P.2d 808 (1967).
Here, Maiyo contends that to use the evidence of his prior domestic violence to prove motive required impermissible inference stacking. He argues that the “probative facts were limited to Mr. Maiyo's alleged immigration status and the question of whether he would be subjected to deportation if he were to be convicted of that offense.” By this we take it that Maiyo contends these were the only facts in evidence and everything else necessary to establish motive would have to be arrived at by stacking inference upon inference on these facts. Thus, Maiyo reasons, the relevance of the evidence of his prior bad conduct—and the tendency of that evidence to prove motive rather than criminal propensity—required the jury to conclude from the stacking of these inferences that (1) Maiyo knew he had committed domestic violence, (2) he knew he would be prosecuted and convicted for having done so, (3) he knew that, as a result, he would be subjected to deportation, and so (4) he decided to kill Kogo to prevent all this from happening.
Evidence of the prior domestic violence case clearly was material to show motive. With regards to Maiyo's “inference stacking” argument, Kogo testified to the prior domestic incident which was prompted by Maiyo's irrational jealousy and which caused Kogo to lock herself in the bathroom. Maiyo threatened her with a knife, and Kogo called the police, resulting in the domestic violence charge. Kogo also testified that Maiyo told her she had better not appear in court on the domestic violence charge because she would get him deported. She also testified that Maiyo called her friends and asked them to pressure her into not testifying. Undeterred, Kogo went to court on the date specified in the summons. When she returned home, Maiyo was visibly angry with her and would not speak to her.
When this attempted murder occurred, neighbor Andrew Murundi heard Kogo scream, “[H]e's killing me today.” When Maiyo was apprehended, the police found a note in his pocket, which was admitted into evidence at trial. The apparent suicide note was handwritten by Maiyo. Maiyo stated in the note that Kogo
“pressed charges on me citing domestic violence.... She had petitioned for me to get green card but has now withdrawn it so I would possibly be deported. I swore to myself when I left Kenya that I am never ever going back.
“THAT'S WHY I TOOK HER AND MY LIFE!!!”
Maiyo's motive was established by solid evidence introduced at trial and not by any improper “inference stacking.”
But Maiyo argues that the probative value of this evidence of prior domestic violence did not outweigh its unduly prejudicial effect. We think not. This evidence placed in context Maiyo's attempt to kill his wife. Without it, the crime is even more senseless and irrational than, in fact, it is. The evidence against Maiyo was overwhelming. Aside from his handwritten self-motivated confession, the jury had Murundi's testimony about hearing Kogo's screams and then hearing a thud and a weird gurgling sound. Murundi then saw a person run out of the apartment complex and get into Maiyo's car. When the police arrived, Kogo had a claw of a hammer lodged in her skull. Nevertheless, she was able to indicate that Maiyo did it. Maiyo's car was found that night abandoned on the turnpike with Maiyo walking barefoot along the highway a short distance away. He had Kogo's brain matter on his sweater.
Evidence of the prior domestic violence was necessary to prove the motive for the crime, but the fact that Maiyo attempted to murder his wife was established in compelling fashion from other evidence. The prejudicial effect of the domestic violence evidence did not outweigh its probative value.
Finally, Maiyo argues that the court erred in admitting this evidence to show motive by giving the jury a limiting instruction that this evidence could only be used to show “motive, plan, and preparation, and the relationship of the parties.”
‘ “An overbroad limiting instruction on K.S.A. 60–455 evidence will be deemed harmless error if the defendant was not prejudiced by the inclusion of more material facts than were warranted by the evidence in the case.’ “ Wilson, 295 Kan. at 620 (quoting State v. Edwards, 291 Kan. 532, Syl. ¶ 11, 243 P.3d 683 [2010] ). Under the harmless error standards of K.S.A. 60–261, K.S.A. 60–2105, and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705,reh. denied386 U.S. 987 (1967), the test is whether the error affected substantial rights. State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
Any claimed error in this regard does not rise to the level of an infringement of Maiyo's constitutional rights, so the test is whether there is a reasonable probability that giving this limiting instruction affected the outcome of the trial. This instruction did not cause the jury to consider more material facts than were warranted by the evidence. We are satisfied that this limiting instruction did not affect the jury's verdict. Even if the jury was able to consider the evidence for more than it needed to find motive, there is no reasonable probability the evidence of the prior crime affected the outcome of the trial in light of the other overwhelming evidence presented against Maiyo.
Affirmed.