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July 13, 1990.


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

[247 Kan. 21]

      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."

[247 Kan. 22]

      Then she heard a loud noise. She yelled to her husband. The only response was a second loud noise. She immediately called the sheriff's office.

  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

[247 Kan. 23]

      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 the scene.

  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 statement.

  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 necessary.


  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,

[247 Kan. 24]

      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 ...

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