The opinion of the court was delivered by
Oscar L. Burnison, Roger P. Oden, and James H. "Fuzzy" Widener
appeal their first-degree murder convictions (K.S.A. 21-3401),
claiming the trial court erred in (1) admitting physical evidence
it had previously suppressed, (2) failing to instruct on
involuntary manslaughter as a lesser included offense of
first-degree murder, (3) refusing to instruct the jury on the
unreliability of voice identification, (4) rejecting Burnison's
request for a continuance, and (5) admitting the redacted
statement of Widener into evidence.
Richard Ebert was killed by two shotgun blasts in his tavern,
Captain's Galley, located near Kanopolis Lake in Ellsworth County
on July 1, 1987, at approximately 10:00 p.m. The Deputy Sheriff,
who found Ebert's body, testified he had been at the Captain's
Galley around 6:45 p.m. in response to Mr. Ebert's complaint that
"Fuzzy" Widener had stolen his dog earlier that evening. The
deputy located Widener's car at Jake's Place. After retrieving
the dog, the deputy advised Widener, who had been
drinking, not to drive or he would be arrested for driving under
the influence. When the deputy returned the dog to the Captain's
Galley at approximately 9:15 p.m., Ebert was alone. At 9:56 p.m.
the sheriff's office received a call from Jeanette Ebert, the
victim's wife, saying the defendants were at the Captain's Galley
and there might be trouble. When the deputy returned to the
tavern for the third time, he found Ebert's body on the tavern's
floor and the cash register full of money.
Brian Werth, who operated the fireworks stand across from
Jake's Place, testified that after the police took the dog,
Widener talked about getting the dog back before reentering
Jake's Place. Werth stated that around 8:35 p.m. Burnison and
Oden drove into town in Burnison's red Dodge Ram truck. At 9:00
p.m. he saw all three defendants, in Burnison's truck, heading
towards the Captain's Galley.
Jeanette Ebert had known the defendants for more than a year.
Widener was considered a grandfather to the Eberts' child.
Burnison and Oden were regular customers, frequenting Ebert's
tavern two to three times a week. Mrs. Ebert was at the tavern
with her husband on July 1, 1987, when Widener arrived that
afternoon. She testified Widener said her husband was in trouble
as Oden had filed an action in small claims court to get a car
title from Ebert. Widener then went to the back of the tavern,
returned arguing with Mr. Ebert, and left at 6:30 p.m. with
Ebert's dog in his Plymouth car. Mrs. Ebert testified that around
9:00 p.m., she left the tavern for their trailer because her
husband told her, "I don't want them going to the trailer and
stealing anything." When asked what her husband meant by "them"
she answered, "The defendants."
When Mrs. Ebert arrived at home at 9:25 p.m. she phoned the
neighbors and then phoned her husband, who advised her he would
call her after the customers left. He returned her call around
9:46 p.m. Since the telephone was capable of picking up sound,
she heard the tavern's door open, followed by her husband's
statement, "Oscar is here with a shotgun." When she asked if
Fuzzy was there, he responded, "Fuzzy and Roger too." After Ebert
told her to call the Ellsworth County sheriff, she heard Oden
yell, "[D]o you want it now?" Her husband responded, "[W]ait a
minute." Oden said, "[G]et off the fucking phone."
Then she heard a loud noise. She yelled to her husband. The only
response was a second loud noise. She immediately called the
Prior to their arrest, all three defendants had been drinking.
When arrested, no weapons were found on the defendants. At the
time the defendants were booked into the county jail, each of the
defendant's property was taken, inventoried, and placed in
separate property envelopes, and the contents were listed on the
outside of each envelope.
After his arrest Widener gave three statements to law
enforcement personnel. His first two statements were given on
July 1, 1987. First, he stated to a K.B.I. agent he had never
left Jake's Place. He then changed his statement and admitted he
and the other two defendants had driven back to the tavern in his
car to talk to Ebert about the dog, but when they left there had
been no trouble. On July 2, 1987, Widener gave a third version,
admitting he had gone to the tavern with the other two
defendants, who were armed with shotguns. He stated that while he
was in the bathroom, he heard shots.
At trial the pathologist testified Ebert's death was caused by
two gunshots fired about 9 to 15 inches from the body, lodging in
the chest cavity and in the jaw. The time of death was estimated
at 10:00 p.m. A K.B.I. forensic scientist testified that (1) the
plastic shotgun cup waddings found on the tavern floor and
removed from the victim's liver were consistent with Remington
Peters brand shotgun shells from a 12 gauge shotgun; (2) the
other waddings found in the cooler were consistent with Federal
Cartridge Corporation brand shotgun shells; (3) the lead shot
pellets found in the tavern were consistent with number six size
shot; and (4) the lead shot pellets recovered from the deceased's
body were consistent with number four size shot.
A search of Burnison's shed produced a Winchester 12 gauge
shotgun loaded with Remington Peters brand number four shot
shotgun shells and an ERA double barrelled sawed-off 12 gauge
shotgun. Retrieved from Burnison's pickup were unfired Remington
and Federal brand 12 gauge shotgun shells of number four and six
shot along with fired number six and eight shot Remington shells
and fired Federal number four, six, and eight shot shells. At
Oden's residence a Winchester model 1200 pump
shotgun, loaded with Federal brand shells and Remington Peters 12
gauge number eight shot shells were found. At Widener's home an
unloaded J.C. Higgins 20 gauge shotgun was found but no shotgun
shells. At trial the State's evidence was inconclusive as to
whether any of the shotguns seized had fired the shells found at
During the trial the State moved to admit Widener's statements
in redacted form. First, the State deleted the references to the
other two defendants, but still left in Widener's July 2
statement that he had heard two shots while in the bathroom.
Since the July 2, 1987, redacted statement would implicate the
other two defendants, the court determined admission of that
statement violated Bruton v. United States, 391 U.S. 123, 20
L.Ed.2d 476, 88 S.Ct. 1620 (1968). Later during trial, the State
moved to admit the July 1 statement of Widener in redacted form
which stated that Widener drove to the tavern and talked with
Ebert about the dog, and that everything was fine when he left.
The court found this July 1 statement as redacted did not violate
the rights of the codefendants and admitted it into evidence.
Counsel for Oden and Burnison objected to the July 1 redacted
Because there was evidence that the defendants had been
drinking prior to their arrest, they requested an instruction on
involuntary manslaughter (K.S.A. 21-3404). The trial judge found
there was no substantial evidence to support an involuntary
manslaughter instruction when a victim receives two shotgun
wounds at a close range of 12 inches. In addition, the court
refused Oden's request for a cautionary jury instruction on Mrs.
Ebert's phone identification of Oden's voice.
Prior to oral argument we were advised that Widener died on
September 13, 1988. On appeal the defendants raise five claims of
trial error. Relevant facts as to each claim will be stated when
ADMITTING EVIDENCE PREVIOUSLY SUPPRESSED
The defendants contend the trial court abused its discretion by
admitting the evidence it had previously suppressed. The
evidentiary value of a silver cigarette lighter was not
discovered until September 1, 1987, when Jeanette Ebert visited
the sheriff's office to advise them of her new address. After
giving her new address,
she inquired if her husband's silver lighter, inscribed on one
side "To Richard" and on the other "From Becky" (one of Ebert's
former wives), had been found. Mrs. Ebert had observed her
husband use the lighter the day he was shot. The sheriff recalled
that Burnison's property envelope listed four lighters. Mrs.
Ebert examined the lighters in Burnison's property envelope and
found her husband's missing lighter.
The jury trial, originally scheduled for October 28, 1987, was
continued at defendants' request to April 18, 1988. On April 12,
1988, the prosecutor became aware that the deceased's lighter had
been discovered in Burnison's property envelope when he received
the sheriff's report, dated September 1, 1987. He immediately
mailed a copy to ...