*1 (43 851) P.3d 84,825 No. Wilson, Kansas, v. Marshall Appellant. Appellee, filed
Opinion 5, 2002. April Associates, L. and Brad M. & of Kansas Quinn City, M. of Rosie Rosie Quinn, Kei1, Wichita,
Keil, for Brennan & appellant. Hunt, Tomasic, W. Tristram assistant district Nick A. district attorney, attornеy, Stovall, and Carla attorney general, appellee. J. *2 Elliott, Green, Before Gernon and P.J., JJ. Elliott, Marshall Wilson of at- convictions appeals J.: murder, and con-
tеmpted second-degree
aggravated kidnapping,
commit
intentional
murder. We affirm in
spiracy
second-degree
reverse in
and
part.
the State’s third amended information was defec-
argues
tive
it
in that omits essential elements for the crimes of
attempt
murder,
commit
and
first-degree
aggravated kidnapping,
conspir-
murder. Since he followed
acy
first-degree
pro-
proper
convictions,
cedures in
tire
we
the merits of his
challenging
analyze
Hall,
on the
of
basis
cases decided before State v.
246
arguments
728,
(1990).
Crockett,
Kan.
The State the information was defective with re- acknowledges to the and in that spect aggravated kidnapping charge it lacked the “with is, element intent to hold.” That conviction therefore, 463, reversed. 4, See State v. 239 Kan. Jackson, Syl. ¶¶ 5, (1986).
Wilson was murder, with but charged attempted first-degree convicted of the lesser crime of murder. attempted second-degree in the amended information reads charge pertinent part: March, 1998, or tire “[O]n about 11th оf one Marshall Wilson others did [and] act, an overt unlawfully, commit to-wit: did feloniously, knowingly willfully stab one Diana Clark and then her the road and run her with over place body vehicle, toward the of the crime of in the Murder First as perpetration Degree crime, defined in K.S.A. with the intent to commit said but failed or was crime, or in the execution said in violation рrevented of K.S.A. 21- intercepted 1, 3301 Murder in the First Level Person (Attempted Degree, Severity Felony).” Wilson claims the information defective because none the listed, elements of murder was him of know- depriving whether he was with first- ing charged attempted premeditated (K.S.A. 21-3401[a]) murder or degree attempted felony (K.S.A. 21-3401[b]). The is without merit. argument
An crime has threе essential elements: the intent to attempt crime, commit the an overt act toward the of the perpetration 500 21-3301(a); crime. K.S.A.
crime,
and failure
consummate
532,
1115
Since the
528,
506 P.2d
211 Kan.
State Cory,
homicide, Kansas does
on an actual
murder statute depends
felony
murder. State Rob
the crime
felony
attempted
recognize
inson,
P.2d
crimе, the
elements
commit
essential
In
attempt
charging
be
enumerated
crime
need not
of the
meticulously
attempted
document,
advise the defendant
must
charge
have
to commit.
or she
of the offense he
is
attempted
alleged
226,
Crane,
918 P.2d
Crane,
defendant’s convictions
In
Court reversed
Supreme
be-
criminal sodomy
rape
attempted
attempted aggravated
of the crime he
failed to
the elements
cause
allege
facts in
distin-
to commit. The
Crane are
had
patently
attemрted
be
from the facts herein. While rape
sodomy may
guishable
*3
in
murder and
numerous different
committed
ways, premeditated
“ ‘
or
offenses.
“The stat-
murder are not
different
felony
separate
of
the deliberation
ute
alternate methods
merely provides
proving
for a
of
murder
conviction
required
first-degree
premeditation
’ ” Robinson,
Wilson attacks conspiracy. charged with to commit murder but convicted of first-degree conspiracy of to commit inten- the lesser offense second-degree conspiracy in murder. This the document reads tional of perti- nent part: March, 1998, did . . . or about thе 11th of one Marshall Wilson day
“[O]n an with enter into unlawfully, feloniously, willfully agreement knowingly crime, a Browne or in the commission of to-wit: Murder Bruce assist in as in K.S.A. and in furtherance of such the First dеfined Degree, victim, act, the Diana committed the overt to-wit: drove following agreement Clark, vehicle, a area a secluded where she stabbed run over by violаtion 21-3302.” of K.S.A.
The
essential elements of
are
between
conspiracy
agreement
two or more
or
commit
assist
a crime and
persons
committing
the commission
оne or more of the
of an overt act
by
conspirators
Smith,
of the
of the
furtherance
object
conspiracy.
227,
222,
Here, Wilson’s
are
the same as discussed
essentially
arguments
above. In a
of
elements
offense
conspiracy
underlying
need not be
with the same
of
as would
charged
degree
specificity
be
in a
of
offensе.
ordinarily
required
prosecution
underlying
See United
States
(10th
1990),
F.2d
Cir.
Daily,
cert. denied
bell,
murder does
Felony
Robinson,
intent.
Further,
above,
as noted
there is
one
Robinson,
statute,
means
alternate
the crime.
stating
proving
The information was sufficient. trial also contends the court erred in failing suppress certain statements made a custodial interro- incriminating during The trial court found statements were made. gation. voluntarily statements which a is made occurred during second custodial interrogation.
When
counsel,
an accused has
a
desire
the accused
expressed
not bе
to further
until
has
counsel
may
subjected
interrogation
unless
been
communications.
the accused initiates further
provided
Arizona,
Edwards v.
477, 484-85,
See
451 U.S.
68 L. Ed. 2d
(1981);
19, 25,
In court, the trial in motion Wilson’s рresent denying to found there was no he was of and advised suppress, question Miranda understood his The trial further found: rights. judge to call excuse me. asked Iris attorney, that callеd his attorney “He stated he —or true, had even that he the fact that if I that as remains knowing Even accept statement, called and didn’t to a he do that that he have рolice to give right to do do it He chose it without he to attorney. told the was anyway. police going if he wait wished.” knew he a to for his attorney And he had right his attor- Here, to contact reveals Wilson record attempted statement, was to reach her. unable before his ney giving first to advised he wished detective back and He then cаlled the give statement. another the second state-
There was evidence substantial incriminating Arizona, there Edwards was fell within the outline ment Wilson the State met its burden of evidence substantial showing The did not err to trial court waived his counsel. voluntarily right to in Wilson’s motion denying suppress. in and reversed in
Affirmed part. part in reason for I and dissent Green, cоncur part. My J.: stated. bemay briefly dissenting with at I that the State’s information Wilson believe was under our Su defective tempt Hall, 728, 746-47, Court’s reasoning preme Hall, In count II of the 793 P.2d comрlaint although that was K.S.A. 1984 stated the defendant under being charged E failed to that a class felony, allege Supp. intent the owner of the defendant had the to permanеntly deprive result, cattle. As a our Court reversed the defendant’s Supreme conviction theft. Hall, the State’s information referred to statute
Similar Nevertheless, failed whiсh the State under Wilson charged. in the that had committed information premedi- allege Hall, tated overt act. In Court our stated: Supreme II. can be of what intended Count Thе “There little doubt the State charge However, we held that an infor- statute was mentioned. have theft specifically it more of elements of the crime mation which оmits one or the essential attempts and a on that offense is defective fatally jurisdictionally charge Wilson, must be reversed. State v. does theft in II. Our information Count past rеquires charge precedent 246 Kan. at reversal as Count II.” 747. *5 In this was an essential element of the crime premeditation The information does not charged. charge attempted the first Because the element was omitted degree. premeditation information, from the I would reverse this conviction. I concur with the remainder of the majority’s opinion.