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May 31, 1990.

GARY LEE HALL, Appellant.

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

[246 Kan. 732]

      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 1985.

  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 Woodward's Story

  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.

[246 Kan. 733]


  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

[246 Kan. 734]

      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 the body.

  Hall's Story

  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

[246 Kan. 735]

      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 drive it.

  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 time

[246 Kan. 736]

      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.

[246 Kan. 737]


  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

[246 Kan. 738]

      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.

  Prior Crimes

  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

[246 Kan. 739]

      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 truck.

  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 (1985).

"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):

[246 Kan. 740]


"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. ...

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