State v. PattersonState v. Patterson
- Reporters:
- , ,
- Before:
- Miller
The opinion of the court was delivered by
Miller, J.:
This is a direct appeal by the defendant, Franklin Patterson, from his conviction by jury trial in Sedgwick County of murder in the first degree,
Four issues are raised. First, was the evidence sufficient to support the conviction for aggravated kidnapping? Second, did the court err by refusing a defense request to instruct the jury on theft as a lesser offense of aggravated robbery? Third, did the court’s refusal to permit the defendant to examine witnesses or introduce evidence concerning the victim’s physical condition deрrive defendant of the right to present a defense? And fourth, did the court’s instruction on premeditation constitute plain error?
The first issue is the sufficiency of the evidence to establish the offense of aggravated kidnapping. Count II of the information charged that defendant Patterson and his nephеw, John F. Copeland, “did then and there unlawfully, willfully, take or confine another, to-wit: Gloria J. Mitchell, by force, with the intent in them, the said FRANKLIN E. PATTERSON and JOHN F. COPELAND, to hold the said Gloria J. Mitchell, to inflict bodily injury, and did inflict bodily harm upon the person of the said Gloria J. Mitchell.”
“Kidnapping is the taking or confining of any person, accomplished by force . . . , with the intent to hold such person:
“(c) To inflict bodily injury or to terrorize the victim or another.”
Under
When the evidence is challenged as insufficient, the familiar stаndard for review is that set forth in State v. Ramos, 240 Kan. 485, 486-87, 731 P.2d 837 (1987), as follows:
“In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces thе appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained.”
We thеrefore review the evidence in the light most favorable to the prosecution to determine whether it supports the aggravated kidnapping conviction.
Patterson and codefendant John Copeland met the victim, Gloria Mitchell, at the Stetson Bar in Sedgwick County during the afternoon of December 12, 1986. At some point they left that bar, and visited the Paradice Club and later the Cypress Club. After they left the Cypress Club, defendant drove Gloria Mitchell’s car, with Copeland and Gloria as passengers, to a gas station. Later they drove around for awhile and ultimately parked in an alley behind the trаiler where Copeland and Patterson resided. According to the testimony of Copeland, Patterson and Gloria engaged in fondling and oral sex. Up to that point, the participation by all three in the activities of the evening was consensual. There is no suggestion of any kidnapping prior to the time the vehicle was parked in the alley.
The sexual activity was of short duration. Defendant became angry either over his inability or Gloria’s unwillingness to engage in further sexual conduct. He began hitting Gloria with his fist and open hand until she passed out. After she regained consciousness, he procеeded to beat her again. Defendant told Copeland to go to the trailer and get a knife. Copeland left the car and within two or three minutes returned with a steak knife. Defendant told Copeland to kill Gloria. Copeland said he was not going to do it and handed the knife to the defendant. Defendant said that Copeland was not a man if he did not do it and defendant gave the knife back to Copeland. Copeland tes
The main contention of the defendant is that the evidence fails to prove confinement, an essential element of aggravated kidnapping. We agree. There is no evidence that Gloria was held in the automobile against her will. The car was hers. She voluntarily joined the two men, permitted Patterson to drive, and voiced no objection to any movement of the vehicle. After the vehicle was parked, Gloria was savagely beaten and fatally stabbed. She was pushed against the car door and was held by the defendant at the moment of the stabbing. We find no evidence of any act of confinement of the victim as a separate act independent of the stabbing. The act of pushing her against the car door appears to be incidental to the stabbing and thus will not support a kidnapping charge. Evidence indicated that the victim was extremely intoxicated. There is no evidence that she asked to leave the vehicle, attempted to leave the vehicle, or was restrained in any way, or that she was held by Patterson except at the moment that she was killed. While the beating and stabbing were senseless, and the acts revolting, we find no evidence to support the kidnapping charge.
The next issue is whether the trial court erred in refusing to instruct the jury on the crimе of theft as a lesser offense of aggravated robbery. Defendant does not contend that the evidence was insufficient to support a conviction of aggravated robbery; he contends that the evidence was also sufficient to
Robbery is defined by
The doctrine of lesser included offenses has been codified in Kansas.
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
“(a) A lesser degree of the same crime;
“(b) an attempt to commit the crime charged;
“(c) an attempt to commit a lesser degree of the crime charged; or “(d) a crime necessarily proved if the crime charged were proved.
“(3). In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lеsser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced. If the defendant objects to the giving of the instructions, the defendant shall be considered to have waived objection to any error in the failure to give them, and the failure shall not be a basis for reversal of the case on appeal.”
In State v. Long, 234 Kan. 580, Syl. ¶ 4, 675 P.2d 832 (1984), we held that:
“For purposes ofK.S.A. 21-3107(2)(a) the crime of theft is an included crime of robbery as a ‘lesser degree of the same crime,’ and therefore the trial court is required to instruct the jury on the crime of theft in a prosecution for robbery where there is evidencе to support a conviction of theft.”
We concluded, however, that no evidence was presented by the defendant, Long, upon his theory of defense which would reasonably have supported his conviction of the lesser crime of theft, and therefore the trial court did not err in failing tо instruct the jury on the crime of theft.
Defendant argues that the jury might have found that he did not commit the acts of force that made the robbery possible, and that the jury should have been permitted to decide whether the act of taking the purse was sufficiently remote from the homicide to render the offense of taking the purse theft rather than robbery. The State’s evidence was that defendant sent his nephew for the knife, told him to kill the victim, handed him the knife, and held the victim while the homicide was committed. Defendant did not testify, and offered no evidence as to how the homicide occurred. The jury found the defendant guilty of murder in the first degree, and thus resolved the factual issues of the homicide adverse to his present position. As to remoteness, the jury was specifically instructed, in response to a jury question, that “[i]f you find beyond a reasonable doubt that the act of force and the taking of the property are so connected as to form a continuous chain of еvents so that the prior force made it possible for the defendant to take property from the victim without resistance, such act of force is sufficient” to support the taking by force element in the aggravated robbery instruction.
This instruction appears consistent with our opinion in State v. Myers, 230 Kan 697, 640 P.2d 1245 (1982). There, approximately three hours after the defеndant murdered the victim, the defendant removed the victim’s wallet and money from his body. We said:
“[W]here the act of force and the taking of the property are so connected as to form a continuous chain of events so that the prior force makes it possible for the defendant tо take property from the victim’s body without resistance, that is sufficient for a conviction of the crime of robbery.” Syl. ¶ 2.
Here, the issue of remoteness was resolved against the position
Defendant also contends that the trial court’s refusal to permit the defendant to examine witnesses or introduce evidence concerning the victim’s physical condition deprived him of the right to present a defense. Defendant attempted to show that the victim had been beaten and physically abused in the past by her husband or some third person, and thus, some of the bruises on her body might have been caused by someone other than the defendant. Defendant admitted that he struck the victim; the victim’s deаth, however, was caused by a stab wound, not by the beatings she sustained. Defendant was unable to convince the trial court that the proffered evidence was material. We agree. Evidence that the victim had been beaten by others sometime before the fatal events took place would not justify defendant’s actions and would not constitute a defense to the charges here. Prior beatings did not cause the victim’s death. The trial court did not abuse its discretion in rejecting the evidence.
For his final issue, defendant contends that the trial court’s instruction on premeditation constitutеd plain error, mandating reversal. There was no contemporaneous objection at the trial level and, thus, an appellate court may reverse only if the instruction was clearly erroneous. State v. Holley, 238 Kan. 501, 506, 712 P.2d 1214 (1986); State v. Peck, 237 Kan. 756, Syl. ¶ 4, 703 P.2d 781 (1985); State v. Korbel, 231 Kan. 657, Syl. ¶ 4, 647 P.2d 1301 (1982). “An instruction is clearly erroneous when a reviewing court reaches a firm convictiоn that if the trial error had not occurred, there was a real possibility the jury would have returned a different verdict.” State v. Houck, 240 Kan. 130, 139, 727 P.2d 460 (1986).
The trial court gave the substance of the standard premeditated murder instruction, PIK Crim. 2d 56.01, to which the court added the following: “There is no specific time element required to establish prеmeditation.” Also, the trial court gave the following definition from PIK Crim. 2d 56.04(b), which reads in part: “Deliberately and with premeditation means to have thought over the matter beforehand.”
Defendant relies on
State v. Martinez,
223 Kan. 536, 537, 575
The conviction of aggravated kidnapping is reversed; otherwise, the judgment is affirmed.