*1 49,250 No. Foy, Appellant. Roger Kansas, Appellee, v. D.
(582 281) Opinion July filed 21, 1978. Shultz, Dodge City, argued for the W. and was on the brief cause Jack appellant. Schneider, attorney Dent, county attorney, argued cause, T. and Curt Judd appellee. general, was with him on the brief for *2 by the delivered opinion of court was The from a action appeal This in a criminal Schroeder, C.J.: (defendant-appellant) Roger Foy D. jury verdict which found (K.S.A. 21-3401). felony murder guilty of reversal of the appeal Numerous trial errors asserted on and sentence. conviction Littleton, Col- Foy married in appеllant
The and Sharon were frequent by orado, Their marriage in 1966. was characterized and a divorce periods of discord violence. Sharon obtained 1973; however, together to live appellant the two continued appellant he attributed intervals. The testified various mother, Mrs. problems largely marital to interference Sharon’s Grace Kruelhous. with their appellant living together and were Sharon City, Dodge
family in the basement of Grace Kruelhous’ home Kansas, 1, 1976, leading up to the January when the events Day Sharon During the New Year’s shooting began. afternoon оf she accom- Subsequently, drinking girl went with some friends. trailer private party Schmidt’s panied group to at Marvin Sharon marijuana. When to drink and smoke where she continued a friend p.m. appellant and arrived home 7:00 had not trailer the looking finding for her. After her at Schmidt’s began refused, Sharon appellant demanded she return home. When the others. slapped and kicked her in front of appellant day complaint charging following signed Sharon complaint was not battery. appellant with For some reason the ap- event, any told January 1976. In Sharon filed until urging signed complaint at her mother’s pellant she had Kreie, “give brother, in order to with her Rex him to live asked contin- off,” and Sharon appellant a chance to cool but Mom and killed. was shot night another until she ued to see one with a at work January appellant was served On a truck from battery charge. He borrowed summons for working to employer went to the cafe where Sharon they him would Apparently, she assured discuss the situation. drinking, began appellant then got off work. The talk when she Grace calling him, failed he started when Sharon to contact home. Kruelhous’ heard he occаsions testified on two of these and call up “Hang on the son-of-a-bitch
Grace holler she contemplated suicide informing After Sharon he Police.” pray. The a relative hers to talk and urged him visit her aunt, Sterling, she and appellant did visit Sharon’s Elsie prayed him. counseled with husband drinking and returning After home resumed his He to Sharon. to walk to Grace’s in order to talk decided house thinking if Grace him shotgun he took sawed-off with testified Drive- interfered, approached Sonic he would kill her. he As a ride to friend Steve him for In he saw his Smith and asked appellant what he was Grace’s house. Smith testified he asked the answered, “blow do going to with away.” he was somebody’s shit asked whom When Smith lady.” referring, appellant answered, “The old referring this testified Grace. After conversation *3 put it. appellant gun pants pulled in his his coat over and p.m. she approximately Grace Kruelhous testified 8:00 that appellant and Sharon had been when the watching television opened the front door and walked in. While the evidence stated, you sup- conflicting, allegedly are not “Roger, Sharon posed “call the to be in mamma’s house.” She said she would if he facing Law” did not leave. The other in two stood each hall at the time. As her to call the front Grace arose from chair police appellant glanced anger in her and in his direction squeezed shooting gun discharged down on hammer. The killing instantly. in the face and Sharon her appellant The then threw the air ran from into and proceeded police He house. wander around the streets until frightened Thereafter, Baxley’s sirens him. he walked to Lois Kansas, and Haysville, home asked her to drive him where his friend, Cupp, close Kenneth lived. Baxley appellant immediately Haysville
Mrs. and the drovе appellant Cupp Cupp where informed he had killed Sharon. he appellant thought testified did not believe the because he couple “probably had fight appellant been in another had Cupp up again.” appellant go scabbed her to a decided the should get sleep arranged motel and some and at 11:00 the two to meet day Cupp help appellant a.m. the next so that turn could in. himself Cupp con- appellant left his home became
After the Kenneth story KAKE radio might be true. called a friend at cerned the He Wichita, Kansas, аppellant station in was advised Wichita Cupp the murder of his then drove to wanted for wife. appellant aid of Officer search for the order to enlisted Department. C. Naholnik of the Wichita Police William Baxley the El Rancho appellant and Lois were found at Officer Na- Broadway, they on South were arrested. Motel incriminating state- appellant testified made certain holnik police him en route to the station after was ments warning. Miranda
Subsequently, arraigned on June pled premeditated guilty charge first-degree to the change murder set forth the informаtion. His motions and reduction of bond were venue overruled. objection, on the judge jury, trial
At the instructed the over theory burglary felony upon aggravated murder based felony. guilty of then found the underlying felony provisions first-degree murder under the murder court, immediately objection, sentenced statute. The over Criminal life sentences the Habitual to two under denied and trial was Statute. motion for a new duly perfected. appeal been has
I. Change Venue overruling erred in first contends the trial court he filed support this motion change his motion for venue. In stories con- copiеs newspaper and radio of numerous articles affidavits from He cerning the crime. also offered seven identical people County various business Ford indicating fair trial he could not receive a undersheriff *4 county. the sound change lies within granting
The
of
of venue
the defendant
the trial court. The burden is on
discretion of
speculation
community
as a matter of
prejudice
show
724, 730,
Cates,
(State
223 Kan.
reality
v.
but as a demonstrable
273, 279-80,
[1978];
574
Sanders,
Kan.
State v.
223
117.)
cоnclusory type
The mere inclusion of identical
affidavits is
generally
plausible
prejudice. (State
not considered a
showing Black,
248, 249,
[1977].)
v.
221 Kan.
In case the articles are neither nor unduly suggestive. fact, ap- In some do not even mention the pellant. properly The trial court change denied the motion for venue under the circumstances.
II. Excessive Bail The next requiring asserts erred in court excessive and in denying bail his motion for reduction of bond. initially $100,000 The bond was at set but was raised $250,000 appearance at his first before the trial court. Generally, no hard and fixing fast rule can be laid down for amount of bail on a charge, criminal and each case must be governed by its Robertson, own facts (State v. circumstances. 647, [1969].) The amount of bail rests within the sound (State discretion presiding magistrate. v. Way, 375, 461 [1969]; State, P.2d 820 Craig 198 Kan. P.2d 955 purpose of the statutes requiring persons bond accused of is to assure their crimes presence place at time and Burgess, the trial. Kan. State, P.2d 229 supra Craig 41.) presented
The evidence preliminary at the hearing revealed the appellant admittedly deceased, City shot the Dodge left immedi- ately crime, after the and had fеw friends and relatives in the town. No abuse in the power exercise of the trial court’s discretion has been shown. It must be noted the failed application to file an for writ of corpus, habeas and he does not claim his defense hampered custody In status. Dunnan, (1978), our court recently held the pretrial matter of release under moot similar circumstances.
III. Admission Photographs appellant argues the trial overruling court erred in suppress motion to certain photographs of the deceased. photographs marked body exhibits and 5 show the deceased lying face down with gun corpse. next to the appellant concedes in his they probative brief do have some value they positions because show body relative *5 the one offered similarity scene to as well as the actually they were in at his trial. The record reflects trial, has shown purpose no been at the and error offered for in admittance. their of exhibits argument against the admission inflammatory equally prejudicial noncon- highly as depicted the de-
vincing. photographs black and Both white they reflects wound at The record gunshot range. ceаsed’s close by police took them and photographer who were identified autopsy, in his Hinshaw, performed Dr. Charles who used testimony. direct photographs rule are inadmissible general
As
not rendered
they
merely
they
gruesome if
are relevant
shocking
because
or
Martinez,
and material
matters at issue.
Mantz,
State [1978];
IV. of Statements complains overruling his the trial erred court an incident suppress certain statements him as motion to made shortly after his argues arrest. He were made to his statements asleep when he was half and unnerved. arrest driving C. testified while Officer Naholnik William after the Miranda police station, explained, rights were Suddenly appellant engaged in casual conversation. such incriminating the deceased
blurted various statements about head my lady I her off should have seen old after blew “You his wife in shot shotgun.” also he had with stated Baxley children; think; and Lois of his he needed time to front crime. participate the commission of the did not police said made to We have often uncoerced statements warning as to his aby defendant who has been officer *6 rights are constitutional admissible as at his trial. 132, 578 Cook, Coe, [1978]; 224 Kan. and State v. 153, 161, therein.) Kan. 574 P.2d 929 [1977] and cases cited voluntarily given statements were error has been shown in no their admission the trial court. Opinion Testimony
V. appellant argues permitting trial court Dr. erred in Hinshaw, Charles the pathologist, opinion concerning to his state the range gun at which the was held from the victim’s head when appellant fired it. Dr. Hinshaw testified that barrel of the gun “against had to be very the skin or it. close” to He stated he expert was no in ballistics. 60-456(a) provides:
K.S.A.
testifying
expert
“If
testimony
the witness is not
as an
his
her
in the form of
or
opinions
opinions
judge
or inferences is limited to such
inferences as the
finds
or
(b)
(a) may
rationally
helpful
percеption
based
of the witness and
to
understanding
testimony.”
a clearer
of his or her
Thus, whether a
qualified
witness is
opinion testimony
give
to
to be determined
the trial court in
power
the exercise of its
(State v. Hernandez,
177,
discretion.
175,
VI. Instructions *7 instruc- appellant challenges sufficiency of numerous Specifically, he instruction on tions. contends the trial court’s deadly unduly emphasized premeditation of use of weapon. court instructed in 11-A:
The trial
premedita-
deadly weapon
infer
of a
is not
itself alone sufficient to
“The use
deadly
If, however, you
used a
tion.
find from the evidence that the defendant
offense,
may
weapon
alleged
you
that fact into
take
in the commissiоn of
premeditation.”
determining
consideration in
the element of
v.
in
upon language approved
State
This instruction is based
Henson,
594, 597,
Buie,
(1978);
v.
definitions PIK, Criminal, verbatim Criminal, (Revised) 52.02 56.04 § § and were not erroneous. felony objects murder appellant also instruction to commit burglary felony the intent
using aggravated as the with in the information aggravated assault on Grace Kruelhous. The premeditated first-degree charged at with case bar murder jury first-degree returned a verdict of murder. The at the journal entry parties conceded indicates the same. Both hearing on the motion for a first-degree new trial that murder upon was aggravated burglary application conviction based felony-murder rule. The now contends was wholly without notice for his at trial defense and the evidence charge felony insufficient with murder.
Our сourt has held an
ordinary
charg-
information in
form
ing
killing
that a
was done
aforethought,
with malice
deliberation
premeditation
sustain a conviction murder
sufficient
degree
in the first
perpetration
robbery
committed in the
of a
or
(State
Turner,
burglary.
193 Kan.
Of appli doctrine is not cable in cases of felonious assault resulting death because (State merges 38, 460 assault into the Clark, homicide. 204 Kan. [1969].) Thus, P.2d 586 aggravated assault not be the un derlying felony Clark, itself. supra 44; see also State v. Rueckert, 727, 733, and State v. Goodseal, [1976].) Here, how ever, aggravated burglary felony, underlying but it was predicated upon aggravated assault. merger
Should the doctrine for assault be extended to cases limit the burglary instruction in cases in which the burglary upon is based an assault? We think not.
While issue, our court has never examined this several states question confronted with the have burglary held that based *8 properly the crime of assault predicate can serve as the for a felony-murder States, conviction. (Blango v. A.2d United 373 885 1977]; Miller, 489, [D.C. 110 Ariz. P.2d 1113 520 People Miller, v. 32 157, 297 85, N.Y.2d 342 N.E.2d 344 N.Y.S.2d [1973]; and v. Tremblay, 4 App. Ore.
[1971], Comment, See also The Merger As A Doctrine Limitation Felony-Murder On The Rule: A Balance Law Criminal Prin Of ciples, 13 Wake Forest L. Rev. 388-94 reasoning Miller, We find the People supra, persuasive. The court states: “. . . greater peril entering [Piersons within domiciles are in from those the intent, persons subjected being domicile with criminal than on the street who Thus, burglary prescribe punish- the greater
to same criminal intent. the statutes a ment for criminal act committed within the the domicile than for same act underlying burglary Where, here, the as act on the street. criminal committed dangerous weapon, assault will a the likelihood that is an assault with significantly the assault. When in a is increased the situs of culminate homicide likely domicile, place resist be more within the the victim the assault takes consequences assault; likely of also the victim is less to be able to avoid severely escape may restricted assault, paths of be barred or since his retreat Further, furniture, buildings. it walls and other obstructions incidental domicile, likely there will be also that when assault occurs in the victim’s more present family aid and will the victim’s or close friends who come to (pp. 160-161). killed. . . .” burglary supports finding aggravated a Here the evidence upon entry by into complete the unlawful a commit prerequisite intent to Grace Kruelhous with the home of assault). homicide was felony (aggravated Thereafter therein reject we Accordingly, in the course of the burglary. committed Wilson, People 462 P.2d 1 Cal. 3d holding of apply not (1969) does Rptr. merger Cal. and hold the doctrine is based burglary an aggravated cases where upon aggravated assault. felony on for his defense
Was the
without notice
attorney at the close
During
prosecuting
the trial the
murder?
the court
specifically
unequivocally
advised
the state’s case
on
request
its
for an instruction
going
to withdraw
state
presented
appellant,
assumption,
then
felony murder. The
on that
At
of the
his evidence
rested.
the conclusion
court,
attorney,
instructed
request
prosecuting
at the
murder,
it
jury that
could
felony
instructed
prejudicial
felony
This was
appellant guilty
find the
murder.
presentation
evidence.
trial court
Finally,
appellant asserts it was error for the
involuntary manslaughter
based
an instruction on
refuse
felony
As
murder.
trespass
criminal
lesser included offense
range
a full
required
give
general
rule the trial court
is committed
offense instructions. When murder
lesser included
requiring instructions
felony
the rule
during
commission
conduct
apply.
The felonious
included offenses does
on lesser
premedi-
to the elements of deliberation
is held tantamount
first-degree murder.
required
are otherwise
tation which
Rueckert, supra at
731.)
rule
the evidence
exception to this
exists when
An
&
(State v. Sullivan
felony is weak and inconclusive.
underlying
*9
Sullivan,
VII. Sentencing contends it was to rendеr error for the trial court judgment and sentence immediately the verdict over following requested objection. He pre-sentence report and time to file argue post-trial motions. 22-3424(3) provides:
K.S.A. finding guilty, judgment “If the verdict or shall and sentence be rendered pronounced delay, adequate filing allowing without unreasonable time for disposition post-trial completion pre-sentence motions and for of such inves- tigation may require.” (Emphasis added.) as the court The discussion of this statute in Vernon’s Kansas Statutes Anno- tated, Procedure, Code of Criminal 22-3424 states: § (3) provides flexibility “. . . fixing Subsection more time sentenc- ing unreasonable'delay’ (1), . . . The standard ‘without Rule is found in 332.) (p. . F.R. Cr. P. . .” law, federal Unlike filing pre-sentence report is discre- tionary in may Kansas. The immediately defendant be sentenced plea after a of guilty or a conviction. reports
Pre-sentence valuable tools should be close attention sentencing judges so that offenders receive fair sentences based the best rather available information inadequate than guesswork. James, us, While no error case before exists practice the better would be for trial courts tо consider the pre-sentence report in their determinations. further considering asserts trial court erred a thirteen-year-old
evidence of grand larceny en- conviction to
569 ap- to two life sentences. hance sentence consecutive appeal. pellant challenge not the sentence on does limits, not statutory will sentence, a general As a rule within it unreasonable appeal arbitrary unless set aside on it so Coe, at supra judicial (State v. an abuse of discretion. constitutes Moreover, attor by prosecuting a 167.) exercise discretion Criminal ney seeking provisions to invoke thе of the Habitual in discrim Act, willful, showing designed or deliberate a absent equal protection ination, process a or is not violation the due Constitution. the Fourteenth Amendment to the provisions of [1976]; and 222, 10, 344 Sully, Syl. 219 Kan. 547 P.2d v. in [1974].) 369, Remoteness Troy, Kan. 215 Sully, supra at (State v. suspect. time does not render sentence old; and 230, years fifteen where the convictions were ten and [1974], State, where v. Baker used.) Thus, argument 32-year-old conviction was point has no merit. on this
VIII. Trial New erred over- Finally, trial contends the court Shearer, a During for a new trial. ruling motion Jack nurse-anesthetist, range testified as at which experience upon his head held the from victim’s based of this part gained He he shotgun with similar wounds. stated Viet Nam. army year experience from his service in the for one had never Subsequently, Mr. Shearer defense counsel discovered Nám; instead, he served as nurse-anesthetist served Viet Nam Wood, Missouri, many Viet where treated Fort Leonard veterans. the basis granted on law new trials
It is well-established impeach or merely to newly evidence which tends discovered State, Kan. testimony (Davis 210 v. discredit the of witness. Theus, 485 [1972]; Kan. 716-17, 617 207 504 P.2d State Watson, P.2d 466 1327 State perjury looked testimony involving [1970].) recanting Nor is 296 Watie, (See granting of a new trial. upon with favor in Heard and Heard, 574 P.2d [1977] prejudice Annot., No therein; 38 A.L.R.3d cases cited motion for hearing here. At resulted from original in the explained his the witness confusion the new trial qualified state He was apologized to the court. questioning men, opinion and the based his observations of wounded power trial court did not abuse the of discretion in exercise its denying ground. the motion new trial on this judgment lower with directions court reversed grant a new trial. J., concurring dissenting: I reversal concur
Prager, respectfully the granting case and of a new triаl. I dissent syllabus opinion. corresponding portions of ¶ I agree majority cannot with the that the rule is *11 applicable Essentially, under the circumstances of this we case. quarrel, have aggravated by here a domestic is alcohol abuse. It Foy, D. defendant, clear from the record that Roger the and his wife, Sharon, stormy relationship. deceased had had marital It appears may that some of their marital difficulties have been the by result evening of interference Sharon’s mother. On the of the homicide, Foy defendant went to the mother-in-law home of his purpose talking for the of undisputed with Sharon. It is that he a gun carried with him which he admitted he intended to use to away mother-in-law, scare again if she interfered. de- simply opened fendant the front door of the and walked in. house He found his watching mother-in-law and Sharon television. It appears leave, that Sharon told the defendant to since he was not supposed “in to be mamma’s house.” She threatened to call the if law he point did not leave. At this the is somewhat conflicting reasonably and could lead to one several conclu- of shooting sions. by may of Sharon the have bеen a defendant or, malicious and willful act according to the of the defendant, it have majority opinion could been accidental. The felony-murder holds that applicable the doctrine could be this case may since the defendant aggravated have an committed burglary jury if the should find entered the house without permission, having an intent to commit an assault. aggravated my
In
judgment, an
felony-murder
instruction
doctrine
Wilson,
case. In not warranted
this
220
Kan.
(1976),
we
that
purpose
felony-
stated
of the
murder
rule
is
relieve the state of
of proving
the burden
premeditation
and mаlice
when
is
victim’s death
caused
the killer while he is
another
committing
felony. The rationale of
rule
was said
purpose
that
the killer’s malignant
is
by proof
established
of
felony.
intent to commit the collateral
felony-murder
the limitation
subject
application
rule
so distinct
felony must be
constituting
the other
that
elements
ingredients
the homicide so as not to be
Fisher,
“No. degree, during charged first “The with the crime of in the defendant murder felony. pleads perpetration guilty. a of The defendant proved: charge, following this each of the claims must “To establish Foy; “1. defendant killed Sharon That burglary, killing Aggravated “2. That such done in the of commission felony, and, day January 1976 in Ford “3. act occurred on the 20th of That this or about County, Kansas. degree prove guilty in the murder first “In order the State the defendant of for burglary, perpetration felony during aggravated each of committed of the of aggravated burglary proved: following elements of must be knowingly building 5th Ave. at 1006 “1. That the defendant entered authority; did “2. the defendant so without That to-wit, therein, felony either had “3. defendаnt the intent to commit a That the Grace Kruelhaus aggravated of assault murder of Grace Kruelhaus or “4. At the time there was a human and, being Ave., in 1006 5th “5. day January That this act occurred on or about the 20th of 1976 in Ford County, Kansas prove “In guilty order the State to degree murder in the defendant of first during perpetration assault, felony aggravated committed each of of of Aggravated following, proved: elements Assault must be intentionally bodily “1. That attempted defendant threatened or to do harm to Grace Kruelhous. apparent ability “2. bodily harm; That had to cause such “3. That defendant’s being conduct resulted in Grace Kruelhous immediate apprehension bodily harm; (a) “4. deadly weapon, or, That the defendant used a (b) Murder, That the felony; defendant did so with intent to commit “5. That day this act occurred January on or about the 20th 1976 in Ford County, Kansas. bodily necessary.” (Emphasis “No supplied.) contact paragraph final clearly permits jury instruction find guilty the defendant of murder if degree first killing was committed during perpetration felony aggravated assault. portion That can instruction mean nothing else. It prejudicial error give such an instruc- especially since counsel agreed have that the found the tion — defendant guilty felony murder as defined instruction 2-A. Miller, J., joins in the foregoing concurring dissenting opinion.