State v. Redick

307 Kan. 797

414 P.3d 1207

STATE of Kansas, Appellee,

v.Andrew Charles REDICK, Appellant.

No. 113,300

Supreme Court of Kansas.

Opinion filed April 13, 2018.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause, and Joanna Labastida, of the same office, was on the brief for appellant.

Rachel L. Pickering, assistant district attorney, argued the cause, and Jodi Liftin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

Defendant Andrew Charles Redick appeals from his convictions for premeditated first-degree murder and arson in the killing of his girlfriend, Lena Keithley, and the burning of her car. He was sentenced to life in prison for the murder and to a consecutive 13 months for the arson.

Redick challenges the adequacy of his waiver of the right to a jury trial, the district judge's refusal to admit testimony from a defense witness who had violated a sequestration order, and the legality of his sentence. We affirm Redick's convictions, vacate his sentence, and remand the case to the district court for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Redick was in a romantic relationship with Keithley. In the weeks leading up to her death, Redick told multiple people that he believed the spirit of his deceased mother was living in her.

On November 14, 2013, Keithley checked into the Country Club Motel in Topeka. Because Keithley and Redick stayed at the motel regularly, the motel's owner was familiar with both; and he saw Redick waiting in Keithley's car.

The following morning, the motel owner began calling Keithley's room after she failed to check out on time. Unsuccessful in reaching Keithley, he asked the housekeeper to check the room. The housekeeper found Keithley wrapped in a comforter, lying on the floor between the bed and a wall. After the housekeeper and the owner were unable to get a response from Keithley, they called 911. First responders determined Keithley was dead.

The next day, Keithley's abandoned car was found; its interior had been burned.

As a result of their investigation into Keithley's death and the burning of her car, officers arrested Redick, who denied knowing Keithley.

The State charged Redick with premeditated first-degree murder and arson.

At the conclusion of a pretrial motions hearing, Redick's counsel informed the district judge that Redick wished to waive his right to a jury trial, and the district judge spoke directly to Redick:

"[Defense counsel]: Your Honor, in our brief break and conversation, Mr. Redick indicated to me he was fearful that it would be difficult to find a jury that will not be prejudiced against him and that he would like to waive his right to trial by jury and try this case to the Bench. I checked with [the prosecutor,] and she's agreeable to that if the Court is agreeable to that. I think Mr. Redick's position is he believes he's preserved those issues that he would like to appeal; and, that's, I think, probably the driving force behind that decision.

"The Court: Okay. I would like to make independent inquiry of his waiver. Please stand. Mr. Redick, you have a constitutional right to be tried by a jury of your peers in this community and the Court must provide that to you. But I've been advised that you would prefer not to proceed in that fashion, and you would like to waive that right. Is that correct?

"Mr. Redick: Yeah.

"The Court: And has anyone threatened you or coerced you to get you to waive this right against your will?

"Mr. Redick: No.

"The Court: Are you proceeding in this way knowingly and voluntarily?

"Mr. Redick: Yes.

"The Court: Is this entirely your decision and not your attorney's decision?

"Mr. Redick: Yes.

"The Court: Okay.

"[Defense counsel]: I can advise the Court we have not discussed that until about five minutes ago quite frankly.

"The Court: Thank you. All right. At this time the Court will accept defendant's waiver of his right to have a jury trial, and the Court will proceed on Monday at 9:00 a.m. Counsel, are you going to have your witnesses ready at nine?

"[Prosecutor]: You bet.

"The Court: Monday at 9:00 a.m. for a [ ] trial to the Bench.

"[Defense Counsel]: Thank you, Your Honor.

"[Prosecutor]: Your Honor, I wonder if the defendant is under any medication at this time?

"The Court: Yeah, Mr. Redick, I know [ ] that sounds silly.

"Mr. Redick: No.

"The Court: It does seem silly, but I will ask because some people do get medications for various reasons in custody. And so I need to ask if—

"Mr. Redick: No, I'm not on any medication or any type of hallucinogenic or any type of drug. I just feel that the newspapers, they got, when I sent the affidavit to the newspaper, all they seen was the arresting affidavit. They don't see two sides. They see one side; and they seen that side several times; and, therefore, they'll never be able to know anyone else's side. They are always going to side with the law.

"The Court: Okay. Well, I appreciate that explanation. You've made it clear in fact to me that you are clearly making this—it is a thoughtful decision that you are making in your defense; and so I understand it better now. Thank you for explaining that.

Okay. All right. Thank you. We'll stand in recess."

During trial, defense counsel requested and received a sequestration order.

The State's case against Redick included testimony from law enforcement about Redick's release from jail the day before Keithley's murder and his arrest the day after her body was discovered. At the time he was arrested, Redick had three pawn tickets in Keithley's name and the tag from a piece of furniture in his pockets. An officer determined that the tag came from a chair in a room at the Country Club Motel that Keithley had rented about a month before her death. In addition, DNA testing confirmed the presence of Redick's DNA on two cigarette butts in Keithley's room and on underwear found in a dumpster in the motel's parking lot. Security camera footage from the motel depicted Redick driving Keithley's car away from the motel about midnight the night of Keithley's murder, and investigators determined the fire inside Keithley's car had been intentionally set.

A friend of Keithley and Redick testified at trial that on the evening of Keithley's murder, she called Keithley's motel room. Redick answered the phone, and the friend asked him if he had cigarettes. He did. About 40 minutes later, the friend walked over to Keithley's room to get a cigarette. Through the closed door to the room, she heard Keithley say, "You are hurting me," and heard Redick say, "I'll kill you, bitch." The friend assumed the couple was engaged in rough sex and left without knocking.

Keithley's niece also testified at trial. She said she saw Redick walking down the street the morning Keithley's body was found. At that time, she was unaware of Keithley's death. Redick stopped her car and got inside without her invitation. She said Redick was "disgusting" and stank of "cleaning fluid and ... oil." He had a leather gym bag with him that he kept between his knees. He also asked when she had last seen Keithley.

Another friend of Redick testified that Redick came to her home the day Keithley's body was found and asked her to cut his long hair and to say that the haircut had happened a day earlier. The woman's daughter testified that she found a motel receipt with Keithley's name on it after Redick had been at her mother's home.

Yet another friend of Redick testified that Redick told her he had broken Keithley's neck and that someone had given her a "hotshot," which she understood to be a reference to drugs.

Sometime after news of Keithley's murder spread, Redick asked a friend to hold Keithley's identification card and Social Security card, as well as jewelry bearing a "Lena" engraving. The friend also testified that Redick told him he was the last person in the motel room with Keithley.

Finally, the State's case also included testimony from the coroner about Keithley's injuries, which included bruising on her mouth and neck and abrasions on her forearms. He determined that her cause of death was asphyxia due to strangulation. Keithley also had methamphetamines in her system, which might have hastened but did not cause her death.

After the State rested, Redick sought to call a witness in his defense. The district judge asked whether the witness had been in the courtroom for "all of the testimony," and defense counsel responded: "She has been." The State then objected, arguing that the witness had violated the sequestration order. The judge disallowed the testimony. Defense counsel did not identify the potential witness or make a proffer of the desired testimony.

The district judge found Redick guilty on both counts.

Redick received a hard 25 life sentence for the first-degree murder charge. The judge identified the murder conviction as the "primary crime" in the journal entry and sentenced Redick to 13 months on the arson, based in part on a criminal history score of "I." The judge also depended upon the fact that Redick had murdered Keithley while he was on felony postrelease supervision, which triggered a special sentencing rule requiring the sentences to be run consecutively. See K.S.A. 2016 Supp. 21-6606(c) (when defendant commits crime while on postrelease supervision for felony, new sentence "shall" be consecutive); see also K.S.A. 2016 Supp. 21-6604(f)(2) (sentencing judge may impose prison even when sentence presumptively nonprison, if new crime a felony).

WAIVER OF JURY TRIAL

Redick first argues on appeal that the district judge failed to advise him fully of the rights he gave up by waiving his right to a jury trial. The State notes that there is a threshold question concerning preservation on this issue.

The State acknowledges this court has considered this type of issue for the first time on appeal but argues there is no bright-line rule compelling the court to consider...