The opinion of the court was delivered by
Gary Lee Hall appeals from his convictions of first-degree
murder and two counts of theft.
The issues considered in the context of this criminal appeal
are: (1) Was the information defective? (2) Did the trial court
err in admitting evidence of Hall's prior crimes and bad
character? (3) Did the trial court err in limiting
cross-examination of the State's major witness (Hall's ex-wife)?
(4) Did the trial court err in failing to instruct the jury on
unlawful deprivation of property and in giving supplementary
instructions on a question raised during deliberations? (5) Was
defendant denied effective assistance of counsel? We have
considered the defendant's pro se brief as well as the briefs
filed by counsel for defendant and for the State.
We reverse Count II, the theft of cattle, because we find the
State's failure to allege that Hall intended permanent
deprivation resulted in the omission of an essential element of
the crime from the information. We affirm all other issues. We
also address in some detail, in the later portion of the opinion,
the question of defective information claims and establish a new
prospective rule for testing such claims when raised for the
first time on appeal.
On February 4, 1984, Delbert Angleton was assigned to haul a
load of cattle to Leoti, Kansas. He was driving a Kenworth
tractor and an American Livestock trailer belonging to his
employer, Star-Kan Truck Lines. A fellow truck driver encountered
Angleton in the early morning hours of February 5, 1984, on
Highway 54 approximately 25 miles west of Wichita. He and
Angleton spoke on the citizens' band (CB) radio. Angleton was
going west. The usual route to Leoti was west from Wichita on
Highway 54. Angleton did not arrive in Leoti on February 5, as
had been anticipated.
Ten or twelve days later, the rig that Angleton had been
driving was found in Cheyenne, Wyoming. A fellow employee was
sent to pick it up. The employee suspected that someone other
than Angleton had driven the truck because the clutch was
"roughed up," the cab had been cleaned up, and the radio was set
on a country western station. Angleton never listened to country
western music; he enjoyed "acid rock." The trailer had been
"dollied down" (unhooked from the truck) while it was still
loaded, causing damage to the trailer. Cattle trailers are not
built to withstand such treatment. It is unusual to dolly down a
loaded cattle trailer.
Gary Lee "Blue" Hall, the defendant, had lived on a ranch in
Oregon since 1979. Prior to purchasing the Oregon ranch, Hall had
lived in Gove County, Kansas.
James Woodward was a neighbor of Hall's in Oregon. In 1982,
Woodward's daughter Roberta began working for Hall. Hall's wife,
Judy, left on a trip to visit relatives in Kansas. During the
time Judy was gone, Hall began an affair with Roberta. Upon
Judy's return, the Halls were divorced. Roberta moved into the
ranch house, married Hall in the summer of 1983, and gave birth
to a baby girl in August 1983. Roberta and Hall were divorced in
James Woodward testified that in February 1987 Roberta
confessed to him that she and Hall had stolen a load of cattle in
Kansas. Roberta told her father that Hall had killed the trucker
hauling the cattle and buried him on the Oregon ranch. According
to Woodward, Roberta begged her father not to go to the
authorities because she said that Hall would kill her. Woodward
subsequently contacted an attorney, who arranged a meeting for
Woodward and Roberta with the Oregon authorities. Roberta was
given immunity in exchange for her cooperation with the police.
Roberta accompanied Hall on a trucking trip to Houston, Texas,
in 1984. On their way to Texas, they stopped in Kansas and
visited Hall's friends, the Yales.
Judy Yale testified that Roberta and Hall did visit them in
Kansas sometime in 1984. Yale also testified that Roberta, during
the visit, had given her a picture of Heather, Roberta's and
Hall's daughter. Judy produced the photograph, which was
inscribed on the back, "Heather Lee, seven and a half months,
April 1984." Later testimony, however, indicated that Hall could
not have visited the Yales in April 1984 because his truck had
been confiscated in March 1984 and he did not purchase a new
truck until August 1984.
The State produced documents indicating that Hall had unloaded
apples in Houston, Texas, on January 31, 1984. Roberta identified
Hall's signature on the bill of lading and her own handwriting on
a document for Hall's broker. After unloading in Texas, Hall was
unsuccessful in attempting to find a return load. They drifted
around for a few days, following other trucks in the attempt to
find a load.
On the evening of February 4, 1984, the two spent the night in
the truck in Dodge City, Kansas. The next morning, Hall told
Roberta that he had found a load (a cattle truck) that "looked
good" and he was going to follow it.
After they passed Garden City, Hall asked Roberta to drive and
to overtake the cattle truck. She began talking on the CB radio
to the driver of the cattle truck, whose CB name was "Hangnail."
Delbert Angleton's CB name was "Hangnail." Hall told Roberta to
stop the other trucker. She asked Angleton if he would like to
"smoke one" (meaning smoke some marijuana). Both trucks pulled
into an abandoned refinery near Scott City, Kansas. Angleton
joined Roberta in the cab of Hall's truck and smoked marijuana
with her. Hall was in the sleeper and began acting like he was
waking up. Roberta said that she saw a pistol come out from the
sleeper and, as she turned her head away, two shots were fired.
Angleton died immediately. Roberta suffered some loss of hearing
due to the gun discharging so close to her head.
Hall pushed Angleton's body down in the seat and put a sleeping
bag over it. Hall told Roberta that they had to get out of there.
Hall drove the cattle truck, and Roberta followed him in Hall's
truck. The two later stopped on a dirt road north of the Smoky
Hill River and put Angleton's body in Hall's reefer trailer. They
stopped for gas a couple of times and ended up at a truck
stop in Cheyenne, Wyoming. Hall removed the trailer from his
tractor and hitched Angleton's cattle trailer on the back of
Hall's tractor. Roberta covered the holes in Hall's trailer so
that no one could see Angleton's body. That trailer and the truck
which had pulled the cattle trailer were left at the truck stop,
and Hall and Roberta headed for Oregon.
As soon as they arrived back at the ranch in Oregon, Hall began
unloading the cattle off Angleton's trailer. They spent the night
at home, showered, and then drove back to Cheyenne. The trailers
were switched again and they returned to Oregon, leaving the
empty cattle truck/trailer at the truck stop. The next day, Hall
called a neighbor and asked him to come dig a hole in which to
bury some dead cows. The cattle were dumped in the hole. Hall
then transported Angleton's body to the hole and dumped it in.
Hall instructed Roberta to cover the body so that the neighbor
would not see it when the hole was filled. Hall went down the
road to make sure nobody came while Roberta shoveled dirt over
Hall drove straight through from Oregon to Houston. He was
drinking whiskey and taking amphetamines to stay awake. Roberta
frequently smoked marijuana during the trip. After dropping off
the load of apples in Houston, he attempted, during the next two
days, to locate a return load either in Houston or Dallas, but
was not successful. Roberta continued to smoke marijuana.
The couple drove to Oklahoma City, arriving in the early
morning hours of February 3. Failing to find a return load in
Oklahoma City, they headed toward Dodge City, Kansas. In Dodge
City, Hall again checked for a load to haul to the Northwest.
From Dodge City, the couple traveled to Oakley, where Hall saw an
acquaintance who had secured a load out of Garden City. Hall had
planned to visit his mother in Quinter, Kansas, but changed his
plans when he and Roberta fought about the visit. They returned
to Dodge City in the early morning hours of February 4.
They stayed at the Dodge City truck stop throughout the day on
February 4, because Hall had information that he could have a
load on Monday. According to Hall, he and Roberta had another
fight that evening. She wanted to go out and "party," but he
would not go. That night, he slept in the driver's seat of the
truck and Roberta slept in the sleeper.
At some point in the middle of the night, Roberta woke Hall and
told him to follow her. She entered another truck, which then
pulled out of the truck stop, going west. Hall testified that the
other truck was a "bull wagon." He had no idea why his wife
entered the other truck and wanted him to follow the truck. He
followed the other truck through Garden City and north toward
Scott City. Both trucks then stopped at an abandoned refinery,
and Roberta, Hall, and "Hangnail" (Angleton) sat in Hall's truck
and talked. Roberta told Angleton that Hall was thinking of
hiring a driver, and Angleton said he was interested in working
for him. Roberta then lit up some marijuana. Angleton admired
Hall's truck, and Roberta asked Hall if he would let Angleton
When they left the refinery, Angleton was driving Hall's truck
with Roberta as a passenger and Hall was driving Angleton's
truck. They stopped again north of Scott City near a John Deere
dealership. Angleton said that he wanted to visit with Hall. Hall
rode with Angleton in Angleton's truck and Roberta followed in
Hall's truck. They next stopped at the Gove/Orion road. During
the drive, Angleton had asked Hall if Hall could pasture the
cattle for him.
Roberta and Angleton were planning to take Angleton's load of
cattle to Oregon, but Hall advised against it. As the three of
them were standing and talking on the Orion road, a car passed
by. Angleton and Roberta decided to go in Hall's truck so they
could plan what they were going to do, and Hall followed in
Angleton's truck. They next stopped at a truck stop in Goodland,
Kansas. At this time, Hall told Angleton that Angleton could take
Highway 27 south to Leoti and to forget all about the plan with
Roberta, but Roberta told Hall to stay out of it. When they left
the truck stop, Hall was driving Angleton's truck again and
Angleton was driving Hall's truck.
They stopped one more time to transfer fuel from Hall's truck
into Angleton's truck, then headed north toward the Nebraska
state line. After that stop, Roberta was driving Hall's truck.
Hall followed in Angleton's truck. Roberta moved way ahead of
Hall and he didn't see them again for about 30 miles. The next
Hall saw his truck, it was parked at a highway rest area in
Nebraska. Hall drove on by because they had agreed to meet at a
truck stop on the Wyoming/Nebraska border. When he arrived at the
Wyoming truck stop, he went to sleep in the truck. Some time
later, he was awakened by Roberta, who was crying and "high."
Hall went to his truck, opened the driver's door, and
discovered Angleton's body on the passenger side covered with a
sleeping bag. Hall became ill. When he asked Roberta what had
happened, she said that she had done it for him and that it would
not have happened if he had not left.
Roberta told Hall that, if he would take the cattle and cover
up the killing, she would promise to give up drugs and be a
better wife and mother. Hall said that he and Roberta had fought
many times about her drug use. Hall then moved Angleton's body to
the back of his reefer trailer and tried to clean up the cab of
his truck. He said that Roberta had to help him move the body
because he could not lift it by himself.
Hall's testimony as to what occurred later was substantially
similar to Roberta's version of the facts. At the Cheyenne truck
stop, they traded trailers and took the cattle to the Oregon
ranch. Hall testified that, as they were driving from Cheyenne to
Oregon, Roberta produced Angleton's wallet and gave him the money
out of it.
Hall testified that he called a neighbor to dig the hole. He
and Roberta took Angleton's body from the reefer trailer and put
it in the trunk of their car. According to Hall, he made Roberta
take the body to the hole and bury it by herself because, "It
wasn't my deal. It made me sick to even be around it." After
Roberta had disposed of the body in the hole and covered it with
dirt, Hall and the neighbor dumped the dead cattle in the hole
and filled it back in.
Both the State and the defense had stipulated that the body
exhumed on the Hall ranch was the body of Delbert Angleton. On
cross-examination of Hall, the State produced a transcript of
Hall's original statement after his arrest. Several statements
made by Hall at the time of his arrest conflicted with statements
made at trial.
A witness testified that he was driving down the Gove/Orion
road on the morning of Sunday, February 5, 1984. He said he saw
two trucks parked on the road. One was a Kenworth cab-over with a
cattle trailer and the other was a cab-over with a dry box.
Angleton's truck was a Kenworth cab-over, but Hall's truck was a
conventional, not a cab-over, and had a refrigeration unit, not a
dry box. The witness testified that he remembered the incident
because he used to drive a truck and although cattle trucks were
common in the area, one rarely saw freight trucks. He also
testified that it was unusual to see a "freight box" and a "bull
wagon" traveling together. The witness saw two men standing by
the trailer, and he thought he saw a third person step behind one
of the trucks as he drove by. He was absolutely sure the two he
saw were men. The witness' testimony was corroborated by a
passenger in the witness' car.
A second passenger in the car testified that the two men were
cleanshaven. Both Angleton and Hall had full beards in February
1984. None of the three passengers in the car saw the third
person described by the driver. The four witnesses were in
agreement that the two persons were definitely cleanshaven men
and that both trucks were cab-overs.
The testimony of medical experts indicated that Angleton
suffered two bullet wounds from an Amadio-Rossi .38 caliber
revolver. Hall had previously owned such a revolver and had kept
it in the sleeper of his truck for protection. Woodward testified
that his daughter is a good shot. The testimony of the physician
who performed the autopsy indicated that Angleton had been shot
twice in rapid succession while sitting down and that the shots
had been fired from behind and slightly above him.
The State called an acquaintance of Hall, who had accompanied
him on long trips. The defense moved in limine to preclude any
testimony by the acquaintance as to Hall's prior criminal
activity. The court allowed both parties to question the
acquaintance outside the presence of the jurors in order to make
a determination of the admissibility of his testimony. The
acquaintance testified to an incident in Georgia in which Hall
followed another truck with the stated intention of killing the
driver and stealing his truck. The acquaintance also testified as
to an incident in which he, Hall, and another individual went to
Nevada and stole a
truck. The truck which was stolen was the one that Hall was
driving at the time of Angleton's murder and which was
subsequently confiscated in Missouri as stolen.
The trial court ruled that the testimony as to the theft of the
truck in Nevada was to be excluded as having no bearing on the
case. The court did, however, allow testimony as to the incident
in Georgia because the incident was illustrative of some sort of
plan, intent, design, or organization. The defense requested that
a limiting instruction be given to the jury at the time of the
acquaintance's testimony. The trial court stated that such an
instruction should be given at the close of all the evidence but
that to give the instruction at the time of the testimony would
call undue attention to that particular testimony.
The testimony of other witnesses will be described as necessary
for a discussion of the issues raised in this appeal.
Hall contends that the trial court erred in allowing testimony
regarding the incident in Georgia. If the testimony was properly
admitted, Hall claims the trial court should have given a
contemporaneous limiting instruction at the time of the
testimony. In addition, Hall argues that testimony regarding the
fact that he was driving a stolen truck at the time of the crime
and testimony indicating that he had stolen cattle in the past
was unduly prejudicial and requires reversal.
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."
Keith Malaney, an acquaintance who was a fellow trucker,
testified that he and Hall were driving from Atlanta, Georgia, to
North Carolina to pick up a load in November 1983. At some point
during the drive, a new model International truck passed them.
According to Malaney, both he and Hall commented that it was an
attractive truck. The driver of the new truck spoke on
the CB radio and told Hall and Malaney that he would like someone
to drive for him for awhile so he could sleep as he had driven
straight through from the West Coast.
According to Malaney, Hall wanted to "eliminate" the driver of
the new truck and take the truck back to Oregon. Malaney
testified that Hall attempted to catch up with the truck, but
that Malaney wanted to stop and use the restroom. Hall argued
about that but eventually stopped so that Malaney could relieve
himself. After they had stopped, Malaney said that Hall drove at
an excessive speed trying to catch up with the other truck.
Malaney testified that Hall had a shotgun and a pistol in the
The State moved to have the testimony at issue introduced
pursuant to K.S.A. 60-455. Hall filed a motion in limine to
preclude any testimony by Malaney as to Hall's prior criminal
activity or actions. The defense did not renew its objection to
the testimony at the time that Malaney testified before the jury.
"When a motion in limine is denied, the moving party must object
to the evidence at trial to preserve the issue on appeal."
Douglas v. Lombardino, 236 Kan. 471, Syl. ¶ 2, 693 P.2d 1138
"Admissibility of other crimes under 60-455 is to
be determined by the trial judge prior to the trial
and outside the presence of the jury. [Citation
omitted.] In ruling on the admissibility of the
proffered evidence, the trial court must: (1)
determine it is relevant to prove one of the facts
specified in the statute; (2) determine that fact is
a disputed, material fact; and (3) balance the
probative value of the prior conviction evidence
against its tendency to prejudice the jury." State
v. Breazeale, 238 Kan. 714, 719, 714 P.2d 1356,
cert. denied 479 U.S. 846 (1986).
In Breazeale, the defendant had been convicted of similar
crimes in Colorado. It should be noted, however, that K.S.A.
60-455 does not require that the defendant be convicted of the
crime or civil wrong at issue. The State contends that the
testimony regarding the incident in Georgia was relevant to prove
that Hall had a plan to kill a truck driver and steal his load.
This was a disputed, material fact, as Roberta testified that
Hall was driving around Kansas with such a plan in mind, whereas
Hall asserted that he was driving around attempting to find a
legal load to haul back to the Northwest.
Both parties cite State v. Marquez, 222 Kan. 441, 446-47,
565 P.2d 245 (1977):
"Plan refers to an antecedent mental condition that
points to the doing of the offense or offenses
planned. The purpose in showing a common scheme or
plan is to establish, circumstantially, the
commission of the act charged and the intent with
which it was committed. Strictly speaking, the
exception is limited to evidence which shows some
causal connection between the two offenses, so that
proof of the prior offense could be said to evidence
a preexisting design, plan or scheme directed toward
the doing of the offense charged."
Roberta testified that Hall spotted Angleton's truck and
instructed her to follow it; that Hall told her to engage
Angleton in conversation on the CB radio and to get him to pull
over somehow. Malaney testified that Hall spotted the
International truck, began following it, and talked to the driver
on the CB. The opportunity to have the driver pull over presented
itself when the driver said that he would like someone to drive
for him for awhile. The incident in Georgia, therefore, appeared
to be relevant to the issue of plan. See Slough, Other Vices,
Other Crimes: Kansas Statutes Annotated Section 60-455
Revisited, 26 Kan. L. Rev. 161, 165 (1978).
The trial court did not abuse its discretion in determining
that testimony regarding the incident in Georgia was admissible
for the purpose of showing a plan on the part of Hall. ...