*1 51,401 No. No. 51,420 Underwood, Kansas, Appellee, v. Curtis Leon Appellant.
(615 153) P.2d Opinion July 1980. filed Shultz, Shultz, Shultz, Wichita, Fisher, argued & the cause Russell Monnat appellant. and was on the brief attorney, cause, Beverly Dempsey, argued the assistant district and Robert T. Miller, attorney attorney, Stephan, general, and Vem district were with her on appellee. for the brief opinion court was delivered jury appeals Leon Underwood con- Curtis Fromme, J.: *2 (K.S.A. 21-3401). underlying The felony murder
viction of classify the homicide as being to which is used 21- of a firearm defined in K.S.A. 4204(l)(b). 51,401 in appeal This the for No. this forms basis court. attempt underlying In an to erase the or collateral motions in a 1974 case in he had defendant filed two which He filed motion annul this convicted theft. one to conviction and a second motion withdraw his nolo per- overruled. then contendere. Both motions were Defendant appeal denying from the order these motions. This fected 51,420 appeal in this forms the basis for No. court. are appeals two were consolidated and now before this
The appeal court for We will consider case decision. appellant was August eigh- On when Underwood first. Hankins, years old, stealing bicycle teen he assisted Gus Jr. University campus. Appellant testified from the Wichita security he was with Hankins and observed Hankins cut gave him cutters chain with bolt cutters. Hankins the bolt bicycle. Appellant put in his off on the bolt cutters rode pocket. eyewitness, appellant An who later identified both Hankins, police. appellant The and Hankins were notified theft. Hankins was arrested in charged arrested bicycle. Appellant had the bolt cutters his appellant plea of pocket when was arrested. The entered a nolo he charge theft and sentenced for contendere to the years. placed probation period to ten He was on of from one fully served year period. His was terminated when two September, 1976. appellant’s leading events The 28,1978. Appellant and October some occurred on Street, attending party at 2718 East 10th were a card
friends watching game, Wichita, appellant one of While Kansas. Brewer, bag stealing a of mari- players, accused him of Earl eventually began fight- juana. They exchanged angry words and marijuana yard. During bag altercation ing A stopped. friend of Brewer fight The dropped ground. to the shotgun and handed it to Brewer. carrying came from the house appellant shotgun. Brewer The his friends brandished appellant car entered their cars to leave. From the announced he would return. appellant appellant’s
The friends went his home where appellant changed changed he his The clothes. from dress clothes platform jeans Appellant shoes and tennis shoes. also pistol pistol. recently pur- The obtained .32 caliber had friend, appellant girl chased with funds from his live-in ostensibly, protection. Appellant gave gun for her Marzett, half-brother, safekeeping Phil returning before to the fight. scene of the and his friends returned to the 10th Street
address and Brewer was summoned to come outside the house. fight was resumed. Friends of both men became embroiled fighting. One man emerged was stabbed. friend of Brewer from the house with shotgun. Brewer and had been *3 fighting ground. up on Brewer stood and ran toward his friend shotgun. appellant pistol with the retrieved the from Marzett by appellant. shot at Brewer. Four shots were fired One bullet Appellant struck and killed Brewer. testified he fired the shots because he saw reaching shotgun; Brewer for the he feared for the safety of his friends and himself.
Shortly appellant telephoned after the shooting police arranged Appellant to turn himself in. charged was with the of a firearm and with murder. The firearm charge which underlying formed the for the was based on the fact had been bicycle convicted theft and had of a firearm.
Appellant filed a seeking motion the trial court annulment of bicycle the 1974 theft argued attorney, conviction. He that his prosecutor, judge had assured him that the 1974 convic- tion would be cleared and annulled as soon serving as he finished year probationary period. Appellant his two further contended he plea entered his and testified Hankins because of this assurance. conducting evidentiary motion,
After hearing on the the trial court refused to annul the 1974 conviction. The court found that although may have possibility been aware of the annulment, the sentencing court did not discuss annulment when apparently explained that the plea accepted and no one was court, The trial after procedure was not automatic. annulment annulment and for ex- examining providing statutes permit the an- statutes would not pungement, held appellant’s any expungement firearm violation in nulment or event. to withdraw his nolo conten-
Appellant then filed the motion 22-3210(7) plea injustice.” manifest dere under K.S.A. “to correct eighteen Appellant plea was entered when he was asserted old, plea years guilty charges, that he was not and that unqualified inadvertently the advice of counsel. made prosecutor Appellant nor the court com- alleged that neither the completion plied agreements with their to dismiss the case on probation completed September, probation, that but expunged. the case was neither dismissed nor trial held: court period probation and has been released “The defendant has served his executed, completed, judgment and the defendant has the order court. The Therefore, carry jurisdiction has no out the released the court. the court 22-3210(7), provisions requested by the defendant.” under K.S.A. question annulment. The statute We will first consider the 21-4616 and appellant’s conviction was K.S.A. effect at the time of provided: (21) twenty-one years age “Every at the attained the defendant who had not convicted, and who has the crime for which he was time of the commission of imposed has fulfilled the conditions of served the sentence or who thereof, period suspension have or who shall of sentence for the entire thereof, may period probation prior discharged the termination of the plea permitted to withdraw his thereafter be the court time plea guilty, guilty; of not if has been convicted after of not he enter case, guilty; shall in either the court set aside the verdict *4 against complaint, thereupon such de- information or indictment dismiss the penalties fendant, all and disabilities released from who shall thereafter be convicted, he shall in all resulting has and the crime of which he been convicted, except upon respects having conviction be treated as not prior may any subsequent as a conviction be considered crime such conviction imposed. of this determining shall be informed The defendant the sentence to be suspended placed probation privilege sentence. or when he privilege, right employment, or any application civil or license or other “In for witness, person has been any appearance conviction of crime a whose as may convicted of such that he has never been this statute state annulled under crime.” “permitted” to states that a defendant This statute 298 complaint The annul- have the dismissed.
withdraw his “privilege.” as a Our former decisions process ment is referred to indicated annulment never have construing statute Miller, 214 In Kan. 520 process is automatic. “mandatory” (1974), California distinguished we Federal Youth provision the “automatic” Correc- annulment provisions annulment. We described K.S.A. 21-4616 tions Act for annulment, “permissive” providing stating: for granting “Like the annulment conviction part of probation judicial sentencing judgment sentencing is a function process. sentencing granting denial of under 21-4603 is part process or probation (State Carlisle, 249.) & v. Owens Kan. P.2d court. vested in the trial granting of an for annulment conviction application Likewise the denial judicial judicial Such and the exercise of contemplates inquiry function. power judicial that a exercises discretion same its discretion way deciding granting or not should probation and in whether probation, granting of a revoked. The or denial of for annulment convic- application sound Kan. at 545. tion rests within district court’s discretion.” Boone, (1976), In we person’s state is annulled under K.S.A. 21-4616 “[a] conviction only judicial inquiry ruling.” after
We continue that annulment under K.S.A. 21-4616 now to hold successfully Appellant’s is not was automatic. served statute, September, terminated 1976. The annulment 21-4616, July 1, Appellant repealed K.S.A. 1978. failed to apply January By until 1979. the statute annulment then replaced statute, expungement had with K.S.A. 1979 Supp. 21-4619, pronounced which has certain limitations affect- request Supp. ing appellant’s annulment. K.S.A. 1979 21- prohibits expressly relief 4619(g) in a situation like the one in provides: which himself. now finds That statute expungement “[B]ut of a conviction does not relieve an individual complying relating law state or federal use or any firearms convicted of a felony." by persons 21-4619(d)(1) Supp. In language addition of K.S.A. prohibits expungement as follows: has “That not been convicted of a two years petitioner past proceeding involving pending being no such crime is instituted presently the petitioner;” pending against when he filed his motion to have the annulled. *5 appellant makes an he had a vested Although assertion that annulment, provides legal support for state- right he no law and the statutes indicate otherwise. The ment. The above case application expunge- of an for annulment or granting or denial judicial power ment of a is a function. Such contem- judicial plates inquiry judicial and the exercise of discretion way granting same discretion in the of court exercises probation, setting probation, of of and in de- conditions however, probation revoked, subject, ciding should be to whether imposed expungement limitations the annulment those pro- expungement nor statute. Neither annulment are automatic cedures. question to refusal trial
We turn now to the raised as appellant plea to his nolo allow to withdraw contendere entry bicycle relating theft case. K.S.A. 22-3210 acceptance pleas pertinent provides: part contendere, “(7) good or nolo A cause shown and within the plea adjudged. withdrawn at time sentence is court, discretion be before may injustice judgment the court sentence set aside the To correct manifest after may defendant withdraw of conviction his permit plea.” Appellant argues hearing that at the on the motion to withdraw appellant plea testimony of both the mother his supported position imposed his that no to be sentence was years successfully probation the case serving that after two appellant appellant that against was to be dismissed. testified preliminary exchange agreed it was that he was waive testify jury, plea, his hearing, trial his waive enter paper in the file of the codefendant on behalf of State. to recommend county attorney agreed also State had indicated the suspension imposition of sentence ex- appellant’s cooperation. In the change absence evidence was made to the we must assume this recommendation otherwise rejected. court and his
Although have entered annulled, automatically believing conviction would attorney apparently given him this information sentencing entry time of prior plea. record judge such prosecution or the ever made not indicate that the does automatically promise stated the conviction would probation. does The record successful termination annulled on period indicate was sentenced for a of from one to ten *6 years. Sentencing suspended objection was not in 1974. No by appellant registered attorney. appel- then either or his When 1976, completed period lant he did not inquire concerning charge thereafter dismissal of the theft annulment of his conviction. considering
The trial court after
conflicts
the evidence
plea
found that the motion to withdraw the
should be overruled.
finding
Inherent
negative finding refusing
accept
such
is a
testimony
appellant
as true the
and his mother.
plea
or nolo contendere
be withdrawn
after
provided
22-3210(7)
sentence as
in K.S.A.
good
cause shown
only when in the
necessary
discretion of the trial
court
becomes
injustice.
every
to correct manifest
Not
deviation
from the re-
quirements
entry
pleas
of the statute governing
require
will
State,
Trotter v.
plea.
266, 269,
withdrawal
aof
218 Kan.
543 P.2d
State,
(1975).
Hicks v.
279, 283,
1023
220 Kan.
In
For the set majority reasons forth below a of this court has
301 prejudicial concluded that it was error trial court jury theory instruct we Accordingly murder. judgment. reverse the Moffitt, State v. arriving
This court at its decision Ford, 514, People cases, v. relied on three California 60 Cal. 2d (1964); People Williams, 772, Rptr. 620, v. 36 Cal. 452, 7, People v. Rptr. (1965);
63
Cal. 2d
47 Cal.
647
406 P.2d
Robillard,
88,
167,
Rptr.
295,
Cal.
2d
10 Cal.
P.2d
State (1960).
A.L.R.2d 1086
In
220 Kan. at
acknowledged
Supreme
the California
Court had re
position
ceded
its former
foregoing
deciding
cases in
People
Satchell,
Rptr.
later case of
Cal.
3d
Cal.
489 P.2d
The Kansas
murder
statute
being
degree
killing
is the
a human
“Murder
in
first
committed mali-
per-
willfully,
ciously,
deliberately
premeditation
and
in
or committed
petration
attempt
sup-
perpetrate
any felonyK.S.A.
Emphasis
21-3401.
plied.
any felony
wording
is sufficient
of this statute
Under the literal
if
exists.
felony murder
a causal
relation
support
492,
quoting from
v.
220 Kan. at
State
in
This court
case,
purpose
acknowledges
that
ostensible
Delaware
engaged
is to
those
felonies
deter
murder doctrine
accidentally,
doctrine
should
that
killing negligently
which
was de-
beyond its rational
function
not
extended
be
rule there must
serve. To invoke the
signed to
an
perpetration
of or
proof
homicide
committed
felony was
attempt
perpetrate
and that
inherently
life.
declared
dangerous
human
This
has
one
rules are
applicable
rules
to such cases. Some of these
certain
Smith,
796, 799-800,
v.
225 Kan.
594 P.2d
State
summarized
(1979), as
follows:
21-3401,
under K.S.A.
there must
“In order to
murder rule
invoke
attempt
proof
perpetration of or
was committed in the
homicide
felony.
perpetrate
causal connection between
This means there must be direct
534,
Moffitt,
the commission of the
the homicide. State
2d,
73, p. 367;
C.J.S.,
(1967);
also 40 Am.
Homicide §
person years preceding such violation has been convicted of within five jurisdiction or has released laws Kansas or other under the imprisonment felony.” drunkards, crime in that it is limited to
This crime is a status prohibitum. posses- malum It is drug addicts and ex-felons. posses- a firearm in the prohibited because sion of the firearm drunkard, a narcotics addict or an ex-felon is sion of habitual legisla- public policy of the State as declared viewed in the abstract possession of the firearm when ture. The life. This is true because dangerous to human not possession, which has defined as unlikely mere seems use, object, and its could be not and control over dominion prohibited posses- that the a manner undertaken in so mean- degree. first The above in murder sion would result contemplated in this firearm statute ing Neal, 737, 738-39, taken from in this impossible find an intent appears quite It malice, premed- deliberation felony encompassing collateral and relieve to the homicide these elements itation so as to transfer *9 are prosecution the If these proof of same. elements the from present they firearm are not use the the of proven They be as ele- possession should then of the firearm. premeditated degree first reason ments of gun. and deliberate use malicious begins, separate a crime We of the firearm note that once the use committed; deadly weapon the assuming with a e.g., assault required present. part Aggravated integral assault is an of intent is State v. the murder cannot be based thereon. homicide Clark, Syl. It follows ¶ firearm, abstract, viewed in possession a when the of premeditation for the transferred does not harbor the malice a as make a murder. intent so homicide Prager Mr. in the dissent in State Justice examples sets the beginning page forth three of illogical results which can flow when a homicide unintentional not in the abstract in deter- viewed These mining whether it is to human life. examples are as follows: defendant, having previously example, a convicted “For let us assume that check, purchases protect writing fund firearm to for insufficient family accidentally of his home. He himself and his criminal invaders drops discharged, gun, causing killing guest the floor and in his the to strike be felony, killing during possession the home. Since the occurred commission of unlawfully, precluded gun interposing the defense of defendant would majority adopted guilty the accident. Under the rule defendant would be subjected degree possibly imprisonment murder in the first to a term of life penitentiary. the state example Vietnam war and his “Another farm lad served at the time of —a discharge obtained an rifle which he took to his farm He wanted automatic home. gun only protection family himself his not but also for use provisions killing predators might attack livestock. Under the of K.S.A. any person possess capable 21-4201(l)(g) it is class E firearm automatically single trigger. discharging An than once function more upon points gun farm. defendant at the intruder comes defendant’s The intruder, place. directing gun accidentally discharges get him to off his adopted by majority require kills in this case the intruder. rule would jury degree first since convict the defendant of murder at the time of killing committing the defendant was another of an automatic — weapon place. killing the time took —at example having previously con- “One more suffice. defendant should person. accidentally victed another At the time was in of a shoots defendant felony- long. Applying of a firearm with a barrel eleven-inches upon murder and rule defendant would *10 imposed. If the firearm involved the case had a barrel a life sentence would any long would not criminal
twelve-inches the defendant offense category shooting the since the was accidental and would fall into of an excusable impute It seem malice to the defendant homicide. does not reasonable situation; yet so this result first situation and not to do in the second absurd would majority adopted by under rule of the court case.” 220 Kan. follow 506-507. may injustice felony Further murder occur cases because the strip charge felony may an murder accused of the normal case, possible in a In the defenses murder case. instance, appellant had possessing no intent violate law previous bicycle the firearm. He his theft believed successfully completed automatically when he dismissed possessed probation. was in and he a firearm so He error under accident, charge murder the defenses such as lack of passion open posses- malice and heat of were not to him for the disputed. establishing underlying felony could sion not be proof underlying strong no When is instructions on required. degrees v. & lesser of murder are State Sullivan Sulli- van, 110, 124, (1978); Reed, State v. 214 578 (1974). Kan. P.2d addition, filing
In under rule in most, all, any possibility establishing if not cases removes 21-3211, person jus- K.S.A. is defense self-defense. Under against aggressor when and to the tified the use of force believes, him, reasonably appears it and he that such extent necessary against is himself or another conduct to defend force. If two men are aggressor’s imminent use of case, grabs shotgun he is then fighting, in this and one gun, if himself use of a he aggressor and the other defend However, K.S.A. 21-3214 an instruc- can find one in time. under permitted by 21-3211 K.S.A. is not available tion on self-defense felony. Purdy, person committing a forcible who is Supp. Under K.S.A. 1979 615 P.2d Kan. forcible includes trea- 21-3110(8) the definition rape, robbery, burglary, son, murder, voluntary manslaughter, sodomy arson, battery, aggravated aggravated kidnapping, physical threat any felony which involves use or other force of a firearm person. Unlawful or violence nor does fit felonies enumerated is not included forcible phrase at the end of the definition. the catch-all within person is confronted Now, who does that leave where possession of a holding and Goodseal the rule in Moffitt inherently pistol of a after conviction the de- Goodseal it follows Logically under human life? entitled to an not charged with fendant when the use of If the court considers on self-defense. instruction dan- firearm to establish that life, establishes that the collateral the use also gerous to human away from the accused the felony. This takes is a forcible defense of self-defense. logic, are convinced that majority of this court now in the dissent Prager Mr.
reasoning urged and rule Justice adopted for Kansas. 220 Kan. at should be particular determining whether a Accordingly, we hold that *11 life inherently dangerous to human so as to collateral 21-3401, felony murder under K.S.A. justify abstract, in the should be viewed elements of the collateral should not circumstances of the commission and the Moffitt, v. making in the determination. State be considered 514, 6, 7, contrary Syl. holding all cases to the are Kan. ¶¶ disapproved. proscribed of a firearm K.S.A.
The unlawful
21-4204(l)(fc)
is not a
when considered
abstract
inherently dangerous
life and will not sustain
con
to human
degree
in
under
viction for murder
the first
formerly
applied
Moffitt,
in
v.
rule. The rule
stated and
State
(1967);
Syl.
progeny,
Kan.
There remains for consideration prospective application of the new rule declared herein. dis arriving proper in the factors to be considered cussion of Murray, Vaughn in solution be found 464-467, 521 are P.2d 262 We aware of some of the effects application may that retroactive have on the administration state, justice stating this and we realize no rule the courts of opposed operation, as to that of relation limits of the forward backward, possible injustice be declared without and hard can However, day ship cases. the rule as this declared shall in some pending on applied other cases govern case and be cases in is filed and to all future opinion in case the date presented timely question raised and has been which the trial court. convic- denying annulment of the the trial court
The order of conten- of nolo refusing withdrawal to allow tion and 51,420 herein, case, Appeal No. bicycle theft dere affirmed. charge, judgment on the of conviction 51,401 herein, is remanded and the case
Appeal is reversed No. for a new trial. Kan. 514, 431 C.J., Moffitt, dissenting. State
Schroeder, years. (1967), law Kansas for thirteen has been the in that case position its on the law The court reverses now felony is murder, underlying where the regarding proscribed by K.S.A. 21- a firearm 4204(1)(6). decision.
I to the law would adhere Moffitt dissenting join foregoing JJ., McFarland, Miller opinion.