October 27, 1989.
STATE OF KANSAS, Appellee,
v.
NATHANIEL J. "YORKIE" SMITH, Appellant.
The opinion of the court was delivered by
Nathaniel J. "Yorkie" Smith appeals his jury trial convictions
of three counts of first-degree murder (K.S.A. 21-3401), three
counts of aggravated battery (K.S.A. 21-3414), four counts of
aggravated kidnapping (K.S.A. 21-3421), two counts of attempted
aggravated robbery (K.S.A. 21-3301 and 21-3427), two counts of
aggravated sodomy (K.S.A. 21-3506 [Ensley 1981]), one count of
theft (K.S.A. 21-3701 [Ensley 1981]), and one count of unlawful
possession of a firearm (K.S.A. 21-4204).
The original appeal was dismissed as having been filed out of
time. In a hearing on a K.S.A. 60-1507 motion, the district court
found that the filing of an untimely notice of appeal constituted
ineffective assistance of counsel and granted defendant the right
to appeal under K.S.A. 22-3602.
The bizarre facts may be summarized as follows. On the morning
of August 20, 1982, Undersheriff Ronald Bumstead, Jr., was
visiting the Allen County Fairgrounds in Iola. The fair was in
progress. Some boys advised Bumstead that there was a youth
sitting in the nearby Neosho River who appeared to have something
the matter with him. Bumstead investigated and found
fifteen-year-old Gerald Short, who had been severely beaten.
Short advised that he and his companion, 17-year-old Steven
Mangus, had been abducted at gunpoint from a nearby park the
preceding night by a black male. They were each beaten and
sodomized. Short had passed out and did not know what had become
of Mangus.
Later the same day, August 20, 1982, a county employee
operating a road grader northwest of Iola found the body of
Steven Mangus in a rock quarry. The boy had been beaten and shot
with a .22 caliber gun. While officers were at the crime scene, a
call was received from an Iola car wash that the bloodsplattered
automobile of Iola resident Adeline Fisk was located there.
Officers photographed the vehicle and it was towed to a
[245 Kan. 384]
secure place. That evening the tow truck driver and two friends
went to the general area where the Mangus body had been found
looking for clues. They found the body of Adeline Fisk. That
victim had also been beaten and shot with a .22 caliber gun.
The following day the tow truck driver and friends continued
their investigation of the area and found the body of Tom Walsh,
an Iola resident who had been missing since late July. A minimum
of 156 stab wounds had been inflicted upon Mr. Walsh. Defendant
was subsequently indicted and arrested for a variety of crimes
relative to the four victims. Pending theft and unlawful
possession of a firearm charges were consolidated with the new
charges for trial. Other facts will be stated as necessary for
discussion of particular issues.
On appeal the defendant raises numerous claims of error.
FAILURE TO REVEAL EXCULPATORY EVIDENCE
In State v. Carmichael, 240 Kan. 149, 152, 727 P.2d 918
(1986), we discussed the prosecutorial duty to disclose
exculpatory evidence as follows:
"A defendant has a constitutionally protected
privilege to request and obtain from the prosecution
evidence that is material to the guilt or innocence
of the defendant. Suppression of such evidence is a
violation of the defendant's Fourteenth Amendment due
process rights. Brady v. Maryland, 373 U.S. 83, 87,
10 L.Ed.2d 215, 83 S.Ct. 1194 (1963). Prosecutors are
under a positive duty, independent of court order, to
disclose exculpatory evidence to a defendant. To
justify a reversal of a conviction for failure to
disclose evidence, the evidence withheld by the
prosecution must be clearly exculpatory and the
withholding of the evidence must be clearly
prejudicial to the defendant."
In Brady v. Maryland, 373 U.S. 83, 87, 10 L.Ed.2d 215, 83
S.Ct. 1194 (1963), the United States Supreme Court held that "the
suppression by the prosecution of evidence favorable to the
accused upon request violates due process where the evidence is
material either to guilt or punishment."
In United States v. Agurs, 427 U.S. 97, 104, 49 L.Ed.2d 342,
96 S.Ct. 2392 (1976), the United States Supreme Court examined
the "materiality" requirement of Brady v. Maryland, 373 U.S. 83,
and concluded: "A fair analysis of the holding in Brady
indicates that implicit in the requirement of materiality is a
concern that the suppressed evidence might have affected the
outcome of the trial."
In United States v. Bagley, 473 U.S. 667, 682, 87 L.Ed.2d
481, 105 S.Ct. 3375 (1985), the court examined the standard of
[245 Kan. 385]
materiality applicable to nondisclosed evidence in an exculpatory
situation and determined as follows:
"We find the . . . formulation of the Agurs test
for materiality sufficiently flexible to cover the
`no request,' `general request,' and `specific
request' cases of prosecutorial failure to disclose
evidence favorable to the accused: The evidence is
material only if there is a reasonable probability
that, had the evidence been disclosed to the defense,
the result of the proceeding would have been
different. A `reasonable probability' is a
probability sufficient to undermine confidence in the
outcome."
In the disciplinary proceeding entitled In re Price,
238 Kan. 426, 709 P.2d 986 (1985), we stated:
"As County Attorney of Allen County, respondent was
primarily responsible for the prosecution of a
sixteen-count criminal indictment against Nathaniel
J. `Yorkie' Smith. Throughout the preparation,
discovery proceedings and trial of the case,
respondent repeatedly failed to abide by discovery
orders issued by the court, made repeated
misrepresentations to the judge and defense counsel
and failed to furnish statements of witnesses and
other evidence to defense counsel even though under a
court order to do so. During trial these matters came
to light, requiring the court to declare numerous
recesses and delaying the proceedings. Respondent
granted immunity to a witness, Roger Smith, brother
of the defendant, and failed to advise the court or
reduce the agreement to writing as required by the
court." 238 Kan. at 426-27.
A number of distinct incidents of withholding of evidence are
asserted. Each will be discussed separately.
1. ROGER SMITH
Roger Smith, a key prosecution witness, is the brother of
defendant. It is contended that the prosecution withheld from the
defense counsel information that Roger Smith had been granted
immunity from prosecution for various crimes unrelated to the
crimes herein (except for the theft charge) in exchange for his
testimony against defendant. There is no dispute but that such
evidence was material as the witness's credibility was a major
factor. In support of his claims herein, defendant states this
court has already found such withholding occurred in the
disciplinary proceeding previously cited. A careful reading of
the statement made therein relative to immunity shows we did not
find such information was withheld from defense counsel. We
stated: "Respondent granted immunity to a witness, Roger Smith,
brother of the defendant, and failed to advise the court or
reduce the agreement to writing as required by the court." In re
Price, 238 Kan. at 426-27.
On cross-examination of Roger Smith, defense counsel asked
[245 Kan. 386]
the witness if he had a deal with the State involving immunity if
he would testify. The witness denied he did, whereupon defense
counsel complained to the court as follows: "For the last two
weeks, Doug, you were going to put in writing the promises of
leniency that had been made to this witness, and I have not yet
received them and now the witness says he was made none." Shortly
thereafter, he iterated:
"Well, Your Honor, I simply have indicated to the
Court that the County Attorney has informed me for
the last couple of weeks that there had been some
statements made to this witness with regard to
leniency and so forth and that he would put those in
writing and that he would give them to me. . . ."
Clearly then, defense counsel knew at least two weeks prior to
his cross-examination of the witness that a deal had been made.
The State's attorney then stated on the record what the deal was
and defense counsel expressed no indication that this was any
different than what he had been previously advised. To be doubly
sure there was no discrepancy, the court had both counsel make a
joint telephone call to Roger Smith's attorney, who confirmed
that the State attorney's version of the agreement between
counsel was correct.
We must conclude there was no withholding of exculpatory
evidence from defense counsel relative to Roger Smith's immunity.
2. TED WITCHLEY
Defendant contends the State withheld evidence that Roger Smith
and Steven Mangus had had a fight on the night of the latter's
death. It is undisputed that the name of Ted Witchley, who had
witnessed the fight, had been made available to defense counsel
well prior to trial. Apparently, the nature of his testimony was
not discussed. In any event, defense counsel interviewed Witchley
shortly before the trial commenced and heard his story. Defense
counsel called Witchley as a witness and carefully questioned him
about the fight. Defense counsel did not request any additional
time to develop this line of inquiry or to locate any possible
corroborating witnesses. The prosecution should have disclosed
the nature of Witchley's statement, but there is no showing of
any prejudice to the defendant which could have had a reasonable
probability of altering the result of the trial.
[245 Kan. 387]
3. BRENDA HOUSTON
Ms. Houston was defendant's live-in girlfriend at the times
pertinent herein. She testified at trial that she and defendant
had target practiced with a .22 caliber pistol. Yorkie had
provided the gun which he stated he had acquired from Roger
Smith. Ballistics tests matched the bullets retrieved from the
target practice tree with those that killed Mangus and Fisk. Law
enforcement officers had interrogated Houston on numerous
occasions. She was not inclined to be cooperative. On one
occasion Roger Smith was wired by officials and sent to talk to
Houston. In that conversation she stated that the pistol she and
Yorkie had fired had come from Deannie Smith, another brother of
defendant.
Defense counsel had been provided with many statements made by
Brenda on different occasions. Defense counsel's inventory of
documents provided to defendant by plaintiff was 40 pages long
and contained some 496 different items. The Smith-Houston tape
was apparently not listed and was in the possession of an
officer. However, the record is clear that defense counsel
learned of its contents in time to cross-examine Ms. Houston
thereon. There is no showing that any request for additional time
to explore this evidence was denied. We find no showing has been
made that the State's failure to disclose the existence of the
tape prior to trial had any reasonable probability of altering
the result of the trial.
4. HOUSTON-CHRISTY MEETINGS
Defendant next contends that transcripts of meetings between
Brenda Houston and KBI Agent David Christy were withheld from the
defense until the middle of trial. Defendant alleges the
transcripts showed "the KBI's strong-arm manipulative tactics."
Of the evidence turned over to defendant by the State, the
following pieces of evidence are listed:
"287. K.B.I. investigation report dated December
27, 1982 by D. Christy, concerning his interview on
that date of Brenda G. Houston at his motel room, #
166 at the Best Western Motel;
. . . .
"290. K.B.I. investigation report dated December
28, 1982 by D. Christy, concerning Brenda Houston
showing D. Christy the tree that she and Yorkie shot
at consisting of two pages;
. . . .
"295. K.B.I. investigation report dated January 18,
1983 by D. Christy, concerning an interview of Brenda
G. Houston, consisting of two pages;
"296. K.B.I. investigation report dated January 18,
1983 by D. Christy, concerning the payment of $200.00
to the witness, Brenda G. Houston, in Kansas
[245 Kan. 388]
State Buy Money because witness has no job at present
time and has a small child, attached thereto is an
administrative page concerning the payment to witness
in the amount of $200.00, type of purchase:
information, also attached thereto is a receipt
signed by Brenda G. Houston, signed by David Christy,
and signed by Lloyd Pappan dated January 18, 1983;
. . . .
"299. K.B.I, investigation report dated April 14,
1983 by David L. Christy, reference payment to Brenda
Houston of the sum of $100.00 for information,
attached thereto is a receipt signed by Brenda
Houston and David L. Christy dated April 14, 1983 for
$100.00. . . ."
Defendant's cross-examination of Agent Christy centers on the
meeting between him and Houston at the Best Western Motel. During
that meeting Houston insinuated that Roger Smith, rather than
Yorkie Smith, should be in jail and that Roger Smith was trying
to set Yorkie up.
It is not clear whether Document # 287 contained a transcript
of the meeting. In any case, defense counsel had a transcript of
the tape which he used thoroughly and effectively in his
cross-examination of Agent Christy. There is no showing of any
reasonable probability that any delay in turning over the
transcript of altered the outcome of the trial.
5. PSYCHIATRIC REPORT
After trial, during an official investigation of the
circumstances surrounding defendant's release from the Kansas
penitentiary shortly before the crimes herein, it came to light
that in his processing into the penal system defendant had been
the subject of a psychiatric report. The report was made in 1976.
Although the report is not before us and is not described,
presumably this is the report of the examination done on all
persons under sentence of commitment for felonies who are in
custody at the Reception and Diagnostic Center pursuant to K.S.A.
75-5262. Defendant contends this was exculpatory evidence which
should have been turned over to his counsel as it might have
raised competency to stand trial or insanity defense questions.
We do not agree. The report was seven years old and hence of
questionable value. Additionally, we find no duty of the
prosecutor to search old convictions for psychiatric data in the
possession of the Department of Corrections. Defense counsel was
aware of the old conviction and the statute calling for such
evaluations. We find no merit in this point.
Before closing, it should be noted that, as we stated in the
In re Price (238 Kan. 426) disciplinary proceeding, the county
attorney
[245 Kan. 389]
did an unprofessional job in prosecuting this case. We do not
retreat from that position. We find only that no reversible error
has been argued herein arising from the conduct of the
prosecution.
EVIDENCE OF PRIOR CRIMES
The State introduced evidence of defendant's prior conviction
for second-degree murder and two prior incidents of sodomy under
K.S.A. 60-455 on the issue of identity.
Defendant contends this evidence was improperly admitted as the
crimes lacked sufficient similarity to crimes on which defendant
stood trial herein.
K.S.A. 60-455 provides:
"Subject to K.S.A. 60-447 evidence that a person
committed a crime or civil wrong on a specified
occasion, is inadmissible to prove his or her
disposition to commit crime or civil wrong as the
basis for an inference that the person committed
another crime or civil wrong on another specified
occasion but, subject to K.S.A. 60-445 and 60-448
such evidence is admissible when relevant to prove
some other material fact including motive,
opportunity, intent, preparation, plan, knowledge,
identity or absence of mistake or accident."
Frank Bailey, Jr., testified that defendant had forcibly
sodomized him on two occasions at the Kansas State Penitentiary.
Nick Tomasic, Wyandotte County District Attorney, testified as to
the facts surrounding defendant's 1974 conviction for the
second-degree murder of Roosevelt Chase. Chase had been
repeatedly stabbed and shot once.
Following the testimony of Bailey and following the testimony
of Tomasic, the court admonished the jury that the testimony
concerning the other crimes may be considered by the jury
solely for the purpose of proving the defendant's identity and
for no other purpose.
In ruling on the admissibility of such evidence, the trial
court must: (1) determine it is relevant to prove one of the
facts specified in the statute; (2) determine the fact is a
disputed, material fact; and (3) balance the probative value of
the prior crime or civil wrong evidence against its tendency to
prejudice the jury. State v. Nunn, 244 Kan. 207, Syl. ¶ 1,
768 P.2d 268 (1988); State v. Breazeale, 238 Kan. 714, 719,
714 P.2d 1356, cert. denied 479 U.S. 846 (1986); State v. Hanks,
236 Kan. 524, Syl. ¶ 5, 694 P.2d 407 (1985).
Where a similar offense is offered for the purpose of proving
identity, the evidence should disclose sufficient facts and
circumstances
[245 Kan. 390]
of the other offense to raise a reasonable inference that the
defendant committed both of the offenses. In other words, to show
that the same person committed two offenses, it is not sufficient
simply to show that the offenses were violations of the same or a
similar statute. There should be some evidence of the underlying
facts showing the manner in which the other offense was committed
so as to raise a reasonable inference that the same person
committed both offenses.
Without reciting herein all of the circumstances of the crimes
against persons charged herein, and all of the circumstances in
the evidence of the three criminal incidents admitted under
K.S.A. 60-455 on the issue of identity, it is sufficient to state
we have carefully examined the arguments made and facts involved
and find no reversible error in the admission of such evidence.
As a subpoint under this issue, defendant contends it was error
for the court not to instruct the jury that the K.S.A. 60-455
evidence could not be considered on the theft and unlawful
possession of a firearm charges on which there was no issue as to
identity. No contemporaneous request for such a limiting
instruction was made.
The trial court should have given the instruction with a
limitation that the evidence was not to be considered on the two
relatively minor charges where identity was not an issue. We
conclude beyond a reasonable doubt that the failure to include
the limitation was harmless error as it had little, if any,
likelihood of having changed the result of the trial. See State
v. Bell, 239 Kan. 229, Syl. ¶ 3, 718 P.2d 628 (1986).
ADELINE FISK AGGRAVATED BATTERY AND MURDER CONVICTIONS
Defendant contends that the charges of aggravated battery and
first-degree murder both as to Adeline Fisk are multiplicitous.
K.S.A. 21-3107(2) provides:
"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:
. . . .
(d) a crime necessarily proved if the crime charged
were proved."
Multiplicity is the charging of two or more counts in a complaint
where only a single criminal act is involved. State v. Cathey,
241 Kan. 715, Syl. ¶ 1, 741 P.2d 738 (1987) (following State v.
Garnes, 229 Kan. 368, 372, 624 P.2d 448 [1981]). K.S.A.
21-3107(1)
[245 Kan. 391]
allows charging an individual with multiple violations arising
from a single transaction when the same conduct may establish the
commission of more than one crime.
The principles for determining whether charges are
multiplicitous are: (1) a single offense may not be divided into
separate parts; generally, a single wrongful act may not furnish
the basis for more than one criminal prosecution; (2) if each
offense charged requires proof of a fact not required in proving
the other, the offenses do not merge; and (3) where offenses are
committed separately and severally, at different times and at
different places, they cannot be said to arise out of a single
wrongful act. State v. Cathey, 241 Kan. at 718-19; State v.
Garnes, 229 Kan. at 373.
In Cathey, we considered the multiplicity of charges of
aggravated battery and attempted murder. The victim was taken
from a home, then beaten and shot below the left eye. He survived
the attack. Defendant was charged with and convicted of
aggravated battery and attempted first-degree murder. On appeal,
we reversed, finding that where there is one victim, and two acts
of violence a beating and a shooting occur at approximately
the same time and place, the person who inflicts such injuries
cannot be charged with both aggravated battery and attempted
murder. 241 Kan. at 719.
Multiplicity was at issue in State v. Garnes, 229 Kan. 368.
There, the victim was shot, placed in a car, driven to a field,
robbed, taken from the car, stabbed, run over by the car and left
to die. Defendant was convicted of two counts of aggravated
battery, one count of aggravated robbery, and one count of
attempted murder. On appeal, we held that since the shooting and
attempted murder were separate in time and place, they were not
multiplicitous. 229 Kan. at 373. However, because the stabbing
occurred contemporaneously with running over of the victim and
leaving her to die, the aggravated battery by stabbing charge was
multiplicitous with the charge of attempted murder. 229 Kan. at
373-74.
Both Cathey and Garnes involve claims that attempted murder
and aggravated battery were duplicitous. Obviously, the victim
survived there was no charge of murder. An act of first-degree
premeditated murder by means of shooting, beating, or stabbing,
etc. requires proof of an aggravated battery. Had the victim
[245 Kan. 392]
survived the charge could have been attempted murder or
aggravated battery but not both. No case has been cited where a
single act constituting aggravated battery has been held to
constitute both aggravated battery and a homicide. Where a victim
dies from an aggravated battery, a homicide has occurred and the
battery merges into the homicide. Hence, where a victim of an
aggravated battery dies after that charge is filed, the
prosecution amends or refiles the charge as a homicide.
If the beating and shooting of Ms. Fisk had been separated by
time and/or place then both an aggravated battery and a murder
could have occurred.
Any separation herein would be based wholly on speculation. The
victim's body was found in a field. One of her dislodged teeth
was nearby. This would indicate the shooting and beating were
contemporaneous. The pathologist herein testified all injuries
were contemporaneous. The State relies on the blood found in and
on Ms. Fisk's automobile to separate her injuries in time and
place. There is no evidence that blood was spilled anywhere other
than at the scene of death.
As we stated in Cathey:
"Where there is only one victim and two acts of
violence a beating and a shooting occurring at
approximately the same time and place, the person who
inflicts such injuries cannot be charged with both
aggravated battery and attempted murder. To hold
otherwise would be inconsistent with our reasoning in
Garnes that when a series of violent acts occurs
simultaneously, it is multiplicitous to charge both
aggravated battery and attempted first-degree
murder." 241 Kan. at 719-20.
We must conclude that the aggravated battery and first-degree
murder charges relative to Ms. Fisk are multiplicitous.
Defendant's conviction and sentence on this aggravated battery
charge should be set aside.
SUFFICIENCY OF THE EVIDENCE
Defendant's next claim of error is that the evidence was
insufficient to support his convictions of any of the crimes with
which he was charged.
When the sufficiency of the evidence is challenged, the
standard of review on appeal is whether the evidence, viewed in
the light most favorable to the prosecution, convinces the
appellate court that a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. State v.
Washington, 244 Kan. 652, Syl. ¶ 1, 772 P.2d 768 (1989).
[245 Kan. 393]
Defendant makes argument under this issue only as to two
convictions the Fisk aggravated kidnapping and the Walsh
murder. As an issue not briefed on appeal is deemed abandoned,
State v. Words, 226 Kan. 59, 63, 596 P.2d 129 (1979), we shall
consider only the two convictions under this issue.
Defendant specifically contends there was no evidence of a
forcible taking or confining of Ms. Fisk. K.S.A. 21-3420 defines
kidnapping as "the taking or confining of any person, accompanied
by force." We have carefully reviewed the record and find that
the evidence, viewed in the light most favorable to the
prosecution, supports the conviction beyond a reasonable doubt.
Ms. Fisk's employer testified that she arrived at his house on a
punctual basis in the early morning hours seven days a week to
cook and do other chores for him. She was not there on the
morning of August 20, 1982. The top of the screen door at the
employer's home had been freshly kicked loose at the top. Ms.
Fisk's car was discovered in an Iola car wash. The car had a
large amount of blood on the front fender, the hood, the
windshield, and the driver's door. There was blood on the inside
dashboard on the passenger's side and "a little bit" on the
passenger's door panel. Ms. Fisk's body was found in a field
outside of Iola. Although circumstantial, there was ample
evidence to convict the defendant of the aggravated kidnapping of
Adeline Fisk. A conviction of even the gravest offense may be
sustained by circumstantial evidence. State v. Holloman,
240 Kan. 589, Syl. ¶ 3, 731 P.2d 294 (1987).
Likewise, we have reviewed the record carefully and find
sufficient evidence to support defendant's conviction of the
murder of Tom Walsh. Walsh's body was found in the general
vicinity of the other bodies in this case. Underwear and boots
identified as belonging to Walsh were found a few feet from
Fisk's body. Walsh died of multiple stab wounds. A witness who
could be found to be the last person to see Walsh alive (other
than his killer) testified he saw only one car leave the area
where he had left Walsh and that vehicle was similar to
defendant's car. The Fisk killing was linked to the Mangus
killing by the same gun being used in both. Short identified
defendant as being the kidnapper of himself and Mangus.
We conclude that the evidence, viewed in the light most
favorable to the prosecution, was sufficient for a rational
fact-finder to find the defendant guilty beyond a reasonable
doubt.
[245 Kan. 394]
EYEWITNESS INSTRUCTION
Next, defendant contends the eyewitness identification
instruction given in the case was clearly erroneous because it
failed to address cross-racial identification, unconscious
transference, and after-acquired experience.
Instruction No. 34, the eyewitness identification instruction,
was given to the jury without objection. As there was no
contemporaneous objection at trial, an appellate court may
reverse only if the instruction is clearly erroneous. State v.
Patterson, 243 Kan. 262, 268, 755 P.2d 551 (1988); 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). An
instruction is clearly erroneous when a reviewing court reaches a
firm conviction that, if the trial error had not occurred, there
was a real possibility the jury would have returned a different
verdict. State v. Patterson, 243 Kan. 262, Syl. ¶ 4.
The eyewitness instruction given was that approved in State v.
Warren, 230 Kan. 385, 635 P.2d 1236 (1981), and is found in PIK
Crim.2d 52.20. The instruction provides:
"The law places the burden upon the state to
identify the defendant. The law does not require the
defendant to prove he has been wrongly identified. In
weighing the reliability of eyewitness identification
testimony you first should determine whether any of
the following factors existed and if so the extent to
which they would affect accuracy of identification by
an eyewitness. Factors you may consider are:
1. The opportunity the witness had to observe. This
includes any physical condition which could
affect the ability of the witness to observe, the
length of the time of observation, and any
limitations on observation like an obstruction or
poor lighting.
2. The emotional state of the witness at the time
including that which might be caused by the use
of a weapon or a threat of violence.
3. Whether the witness had observed the
defendant[s] on earlier occasions.
4. Whether a significant amount of time elapsed
between the crime charged and any later
identification.
5. Whether the witness ever failed to identify the
defendant[s] or made any inconsistent
identification.
6. The degree of certainty demonstrated by the
witness at the time of any identification of the
accused.
7. Whether there are any other circumstances that
may have affected the accuracy of the eyewitness
identification."
In State v. Willis, 240 Kan. 580, 731 P.2d 287 (1987),
enlargement of the list of factors was sought. In denying the
requested expansion we stated:
[245 Kan. 395]
"The seven factors contained in PIK Crim.2d 52.20
are self-explanatory, within the scope of ordinary
laymen's knowledge and judgment, and do not require
expert testimony for application. The same cannot be
said for the factors which defendant contends should
have been added to the instruction. These include
trans-racial identification (`own-race effect'),
unconscious transference, after-acquired experience,
and the `feedback' factor. These terms are beyond
the scope of ordinary laymen's knowledge and
experience and would require expert testimony to be
applied by a jury.
"In State v. Warren, the many problems involved
in permitting expert testimony on the subject of
eyewitness testimony were discussed at length. We
then concluded:
"`After considering these cases and the literature
on the subject, we have concluded that requiring
trial courts> to admit this type of expert evidence is
not the answer to the problem. We believe that the
problem can be alleviated by a proper cautionary
instruction to the jury which sets forth the factors
to be considered in evaluating eyewitness testimony.
Such an instruction, coupled with vigorous
cross-examination and persuasive argument by defense
counsel dealing realistically with the shortcomings
and trouble spots of the identification process,
should protect the rights of the defendant and at the
same time enable the courts> to avoid the problems
involved in the admission of expert testimony on this
subject.' 230 Kan. at 395.
"We conclude that the trial court's refusal to
expand the seven factors contained in PIK Crim.2d
52.20 was not error." 240 Kan. at 585-86. (Emphasis
supplied.)
We adhere to our decision in State v. Willis and find no
error in the eyewitness identification instruction given herein.
MANGUS AGGRAVATED KIDNAPPING CHARGE
Defendant next contends the charge of aggravated kidnapping of
Steven Mangus is fatally defective for failing to allege every
essential element of the offense.
K.S.A. 21-3421 provides:
"Aggravated kidnapping is kidnapping, as defined in
section 21-3420, when bodily harm is inflicted upon
the person kidnapped."
Count seven of the indictment against the defendant stated:
"That on or about the 20th day of August, 1982, the
said Nathaniel J. `Yorkie' Smith, within the above
and within named County and State, then and there
being, did then and there unlawfully, feloniously and
willfully take another, to-wit: Steven Mangus, by
force, with the intent to hold the said Steven Mangus
to facilitate the commission of a crime or crimes,
to-wit: aggravated sodomy, aggravated battery,
murder, or aggravated robbery, and/or with the intent
to inflict bodily injury to Steven Mangus or to
terrorize him, and to inflict bodily harm on the
said Steven Mangus, contrary to the form of the
statutes in such cases made and provided, and against
the peace and dignity of the State of Kansas."
(Emphasis supplied.)
[245 Kan. 396]
Defendant argues the count merely alleges that defendant
intended to inflict bodily harm and does not allege that he
did inflict bodily harm, thus making the charge fatally flawed.
The State counters that the inappropriate wording was the result
of a clerical error and that the word "to" in the phrase "and to
inflict bodily harm" should have been the word, "did." The State
further points to the correct language used in the aggravated
kidnapping charges concerning Adeline Fisk and Gerald Short to
underscore its assertion of a clerical error.
In State v. Jackson, 239 Kan. 463, Syl. ¶¶ 1-5, 721 P.2d 232
(1986), we discussed the rules concerning an indictment or
information as follows:
"In a felony action, the indictment or information
is the jurisdictional instrument upon which the
accused stands trial."
"A conviction based upon an information which does
not sufficiently charge the offense for which the
accused is convicted is void. Failure of an
information to sufficiently state an offense is a
fundamental defect which can be raised at any time,
even on appeal."
"If the facts alleged in an information do not
constitute an offense within the terms and meaning of
the statute upon which it is based, the information
is fatally defective. The evidence introduced at
trial to show commission of the crime sought to have
been charged, and the jury instruction thereon, have
no bearing on this question."
"In Kansas all crimes are statutory and the
elements necessary to constitute a crime must be
gathered wholly from the statute."
"An information which omits one or more of the
essential elements of the crimes it attempts to
charge is jurisdictionally and fatally defective, and
convictions for those offenses must be reversed."
The infliction of bodily harm upon the victim is an element of
aggravated kidnapping. The aggravated kidnapping charge herein
made no allegation bodily harm had been inflicted. The fact the
omission may have been a clerical error in no way alters the
situation before us. Under our previous holdings as set forth in
State v. Jackson, 239 Kan. 463, there is no alternative but to
reverse the Mangus aggravated kidnapping conviction.
ENHANCED SENTENCING FOR UNLAWFUL POSSESSION OF A FIREARM
The State concedes that, under State v. Dodd,
11 Kan. App. 2d 513, 728 P.2d 402 (1986), the trial
judge improperly enhanced the defendant's sentence for unlawful
possession of a firearm and that the sentence for that count must
be vacated and defendant
[245 Kan. 397]
resentenced. In Dodd, the Court of Appeals held, at Syl. ¶ 1:
"The crime of unlawful possession of a firearm
(K.S.A. 21-4204[1][b]) has as a necessary element the
requirement of a prior felony conviction. The
Habitual Criminal Act (K.S.A. 1985 Supp. 21-4504) may
not be invoked to enhance a sentence for a felony if
a necessary element of the felony is a prior felony
conviction."
See State v. Turbeville, 235 Kan. 993, 1005, 686 P.2d 138
(1984).
We conclude the trial court improperly enhanced defendant's
sentence for unlawful possession of a firearm. The sentence is
vacated and the case is remanded for resentencing.
CORRECTION OF JOURNAL ENTRY
The State concedes that the journal entry on the sentencing for
theft incorrectly reflects a sentence of 5-25 years when the
actual sentence imposed by the court was 5-20 years, and that the
journal entry should be corrected.
CONCLUSION
Defendant's convictions of first-degree murder (Mangus),
first-degree murder (Fisk), first-degree murder (Walsh),
aggravated kidnapping (Short), aggravated kidnapping (Fisk),
aggravated kidnapping (Walsh), aggravated battery (Short),
aggravated battery (Mangus), aggravated sodomy (Mangus),
aggravated sodomy (Short), attempted aggravated robbery (Mangus),
attempted aggravated robbery (Short), theft, and unlawful
possession of a firearm are affirmed.
Defendant's convictions of aggravated battery (Fisk) and
aggravated kidnapping (Mangus) are reversed. The case is remanded
for further proceedings consistent with this opinion.
SIX, J., not participating.
[245 Kan. 398]
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