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State v. Kirkpatrick

May 30, 2008

STATE OF KANSAS, APPELLEE,
v.
JOHN P. KIRKPATRICK, APPELLANT.



Appeal from Sedgwick district court; MARK A. VINING, judge.

SYLLABUS BY THE COURT

1. Generally, when murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first-degree murder. It is only when the evidence of the underlying felony is weak, inconclusive, or conflicting that instructions on lesser included offenses may be required.

2. Under the facts of this case, where the defendant was charged with felony murder based on the underlying felony of criminal discharge of a firearm at an occupied dwelling, a forcible felony, under K.S.A. 21-3214(1) he should have been excluded from a self-defense instruction, in accord with State v. Bell, 276 Kan. 785, 80 P.3d 367 (2003).

3. Perfect self-defense is a concept based on justification or excuse and operates as a complete defense.

4. Imperfect self-defense is not a true defense; it does not absolve a defendant of criminal liability. It is, rather, a lesser degree of the crime of homicide. Unlike perfect self-defense, it is not codified separately, but exists only as a lesser degree of homicide in voluntary manslaughter under K.S.A. 21-3403(b) (intentional killing of a human being committed upon an unreasonable but honest belief that circumstances existed that justified deadly force), and in involuntary manslaughter under K.S.A. 2004 Supp. 21-3404(c) (unintentional killing during the commission of a lawful act in an unlawful manner).

5. Imperfect self-defense is not a defense to criminal discharge of a firearm.

6. When a motion to suppress is denied before trial, the moving party must object to the evidence at trial to preserve the issue on appeal.

7. Allowing a law enforcement witness to sit at counsel table during a jury trial is generally permissible in the discretion of the trial judge. The practice, however, should generally be discouraged.

8. The decision whether to grant a continuance based upon a criminal defendant's desire to seek to retain private counsel rests within the trial court's discretion. No abuse of this discretion has been shown under the facts set forth in this opinion.

9. Judicial comments which are not instructions to the jury are reviewed under judicial misconduct standards. In cases alleging judicial misconduct, this court's standard of review is unlimited.

10. Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. Mere possibility of prejudice from a judge's remark is not sufficient to overturn a verdict or judgment. If a proper and reasonable construction will render the remark unobjectionable, the remark is not prejudicial.

11. An appellate court's review of a motion to recall a jury is limited to whether the trial court abused its discretion. Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. No abuse of this discretion has been shown under the facts set forth in this opinion.

The opinion of the court was delivered by: Mcfarland, C.J.

Affirmed.

John P. Kirkpatrick appeals his jury trial conviction of the first-degree felony murder of Jacob Williams. He received a life sentence with eligibility for parole after 20 years.

Kirkpatrick contends: (1) the trial court erred in denying his request for instructions on lesser included offenses of voluntary and involuntary manslaughter; (2) it was error for the district court to deny his motion to suppress his statements to the police; (3) the trial court abused its discretion in permitting the lead police investigator to sit at the prosecution table; (4) the trial court denied him a fair trial by quoting the Bible at the beginning of the trial; (5) the trial court erred in denying his motion for a continuance in order to hire private counsel; (6) the trial court erred in denying his motion to recall the jury; and (7) he is entitled to a new trial based upon cumulative error.

We affirm.

FACTS

On the evening of January 22, 2004, the defendant, John Kirkpatrick, and his friend, Garrod Farha, went to Mulligan's Pub in Wichita. Also at the bar were their friends, Rob Powers and Thomas Wright. Two friends of Powers, Jasen Tedlock and Jake Williams, were at the bar. The group stayed at the bar until approximately 1:45 a.m., when the bar was closing. Powers invited about a dozen people to come to his apartment, including all of the above-named individuals.

Powers and several of the guests were interested in car racing, and a loud discussion at the apartment occurred concerning who had the fastest car. Several times Powers advised his guests to quiet down as he was concerned about the noise bothering his neighbors in surrounding apartments. This admonition did not lower the noise level. Finally, Powers stated he would ask the next person who raised his voice to leave. Wright raised his voice, and Powers asked him to leave. Wright was unhappy with the request but walked outside with Powers, followed by Tedlock, Farha, and Kirkpatrick. Powers explained the request to leave was nothing personal. An argument erupted between Tedlock and Farha. Tedlock may have attempted to strike Farha. In any event, a scuffle broke out. Tedlock may have pulled a knife. The argument ended when Williams came out and took Tedlock back inside the apartment.

Kirkpatrick, Farha, and Wright then left. They drove to Farha's house, where Farha took possession of his roommate's handgun. The three men put Farha and Kirkpatrick's dog, a 75- to 80-pound pit bull, into the car and then drove back to Powers' apartment. During the drive, Kirkpatrick said that no one "disses my set."

When they arrived at Powers' apartment, Farha handed the gun to Kirkpatrick, who placed it in his waistband. Powers came out of the apartment with Tedlock and Williams remaining inside. Powers saw Farha holding the pit bull by the collar and asked why they had brought the dog. Powers continued to ask them what was going on but received no response. Kirkpatrick then pulled the gun out of his waistband. Powers moved in front of him and asked why he had a gun. According to Powers, Kirkpatrick responded that he was representing his "set," and he would continue to do so until he died. At the same time, Powers saw Farha kicking the door to Powers' apartment. Powers attempted to calm Kirkpatrick and asked him to hand over the gun. Kirkpatrick refused and instead fired a single shot into the door of Powers' apartment. After the shot, Powers grabbed Kirkpatrick and asked him what he was doing. After 3 or 4 seconds passed, Kirkpatrick shoved Powers away and fired two more shots into the door. Kirkpatrick, Farha, and Wright then ran to the parking lot.

Tedlock testified that, while inside the apartment, he and Williams heard the argument. Tedlock looked out the apartment window and saw a man holding a dog. As he closed the window, someone attempted to kick in the apartment door; however, the chain lock prevented its complete opening. When the door came partially open, Williams ran up to the door, pushed his body up against it, and locked the deadbolt. At that point, shots came through the door. Williams fell back onto Tedlock and said that he had been shot. Williams and Powers called 911. Paramedics transported Williams to the hospital where he died later that day.

Kirkpatrick was charged with one count of first-degree felony murder with the underlying felony being criminal discharge of a firearm at an occupied dwelling pursuant to K.S.A. 21-4219(b) (Furse). At trial numerous witnesses, including Tedlock and Powers, testified on behalf of the State. Kirkpatrick and Wright both testified on Kirkpatrick's behalf, but Farha invoked his right against self-incrimination. The jury returned a guilty verdict on the single count before us, and the trial court sentenced Kirkpatrick to life in prison with the possibility of parole after 20 years.

Additional facts will be provided as necessary for the resolution of particular issues.

DID THE TRIAL COURT ERR IN DENYING THE DEFENDANT'S REQUEST FOR INSTRUCTIONS ON VOLUNTARY AND INVOLUNTARY MANSLAUGHTER AS LESSER INCLUDED OFFENSES?

The defendant contends he was entitled to these instructions on various grounds. The defendant testified at trial that he saw, through the sliding glass door, Tedlock armed with a gun and heard Tedlock threaten to kill him. Tedlock then made a move toward the front door. At that point, Kirkpatrick said, he fired three shots at the door because he feared for his life and the lives of his two friends. Kirkpatrick claimed he believed that by firing the gun he would prevent Tedlock from stepping outside of the apartment.

The only gun found inside the apartment was a .45 caliber semi-automatic handgun. The gun was in a case that was on the upper shelf of a bedroom closet. A towel and some neatly folded clothing were stacked on top of the case. The magazine was out of the gun and was stored in its separate compartment in the case.

Wright's testimony controverted Kirkpatrick's recitation of events. Wright testified that once the group returned to Powers' apartment, Tedlock was not doing anything behind the sliding glass door. Further, Wright stated that he did not see anyone (other than Kirkpatrick) with a gun. Wright testified that Kirkpatrick did not have a reason to shoot the door. Tedlock's testimony supported Wright's position. Tedlock stated that he had not waved a pistol in the window. Tedlock also testified that he had not threatened to shoot anyone.

Kirkpatrick requested a jury instruction on self-defense based upon K.S.A. 21-3211 (Furse), which provides: "A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force." The State did not oppose the giving of that instruction, but requested an instruction concerning self-defense by an aggressor pursuant to PIK Crim. 3d 54.22 (initial aggressor's use of force). The court gave both instructions. Kirkpatrick also requested instructions on several lesser included offenses of first-degree felony murder: voluntary manslaughter based upon all three theories contained in K.S.A. 21-3403 and (b) and reckless involuntary manslaughter under K.S.A. 2004 Supp. 21-3404(a). He argued, among other things, that his defense of self-defense put "imperfect self-defense," which he asserted was a type of voluntary manslaughter, into play.

The district court denied Kirkpatrick's request for lesser included offense instructions, holding that an instruction for voluntary manslaughter was not warranted because there was no evidence of an intentional killing and an instruction for involuntary manslaughter was not warranted because there was no evidence of recklessness.

On appeal, Kirkpatrick argues the trial court erred in refusing his request to instruct the jury on imperfect self-defense voluntary manslaughter and involuntary manslaughter as lesser included offenses to first-degree felony murder.

As a general rule,

"[t]he duty to instruct on a lesser included offense arises only where there is evidence supporting the lesser crime. The evidence of a lesser included offense need not be strong or extensive as long as it presents circumstances from which the lesser offense might reasonably be inferred. Such an instruction must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant." State v. Horn, 278 Kan. 24, Syl. ¶ 6, 91 P.3d 517 (2004).

This general rule, however, does not apply in a felony-murder case:

"'When murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first-degree murder. It is only when the evidence of the underlying felony is weak, inconclusive, or conflicting that instructions on lesser included offenses may be required.' [Citation omitted.]" State v. Calvin, 279 Kan. 193, 201-02, 105 P.3d 710 (2005).

Kirkpatrick argues that to the extent his claim of self-defense would negate the criminal intent required for the underlying felony of criminal discharge of a firearm at an occupied dwelling, the evidence that the trial court found strong enough to warrant the self-defense instruction necessarily rendered the evidence of the underlying felony inconclusive. Accordingly, the rule prohibiting lesser included offenses to felony murder does not apply, and he was therefore entitled to instructions for "imperfect self-defense" voluntary and involuntary manslaughter.

The State argues that the evidence of the underlying felony is not weak or inconclusive and, therefore, an instruction on lesser included offenses is not warranted because of the felony-murder rule. In the alternative, the State argues that the district court correctly found that an instruction for voluntary manslaughter was not warranted because there was no evidence of an intentional killing and that an instruction for reckless involuntary manslaughter was not warranted because there was no evidence of recklessness. Finally, the State correctly observes that Kirkpatrick did not request an instruction on involuntary manslaughter under the imperfect self-defense version, K.S.A. 2004 Supp. 21-3404(c) (a killing during the commission of a lawful act in an unlawful manner), which is a cornerstone of his argument on appeal concerning instructing on this offense. Instead, Kirkpatrick's request at trial was for reckless involuntary manslaughter under K.S.A. 2004 Supp. 21-3404(b).

Kirkpatrick's argument that he was entitled to instructions on imperfect self-defense voluntary manslaughter and involuntary manslaughter rests on the fact that the trial court gave a self-defense instruction. The problem, however, is that Kirkpatrick was not entitled to a self-defense instruction.

K.S.A. 21-3214(1) provides that self-defense is not available to a person who "[i]s attempting to commit, committing, or escaping from the commission of a forcible felony." A "forcible felony" includes "any . . . felony which involves the use or threat of physical force or violence against any person." K.S.A. 21-3110(8) (Furse) (defining forcible felony to include, inter alia, murder, voluntary manslaughter, aggravated battery, and "any other felony which involves the use or threat of physical force or violence against any person").

In State v. Bell, 276 Kan. 785, 80 P.3d 367 (2003), we held that criminal discharge of a firearm at an occupied vehicle is a forcible felony and, therefore, where the offense of criminal discharge of a firearm at an occupied vehicle serves as the underlying felony in a felony-murder prosecution, K.S.A. 21-3214(1) precludes the giving of a self-defense instruction. 276 Kan. at 792-93.

The facts in Bell are remarkably similar to the facts in this case. Jonathan Baptista and his friends got into an argument with Ernie Bishop and Shawn Cox. Bishop said he was going to get some friends together and come back in 10 minutes and kill all of them. Baptista and his group said they too would come back with more friends. Subsequently, Baptista recruited the defendant, Bell, and others to join them in confronting Bishop and Cox. Because their plan included bringing guns and shooting at the others, Bell retrieved his gun. However, when they arrived at the place where the fight was to occur, Bishop and Cox were not there. They then drove around looking for them.

Meanwhile, Bishop and Cox walked to a car wash where they saw Anthony McCain. Bishop and Cox told McCain about the fight and McCain offered to drive them home. Bell and his group saw Bishop and Cox at the car wash. They followed McCain's Saturn until he eventually pulled over. Bell and his group pulled over, and then Bell and Baptista opened fire on the Saturn, killing McCain.

The evidence about what occurred just before the shooting began was somewhat conflicting. Bell initially told police that they started shooting at the Saturn after Baptista told him it was "now or never." 276 Kan. at 788, 793-94. He later claimed he was acting in self-defense. He said that they started shooting after Baptista yelled, "They've got a gun." 276 Kan. at 788, 793. Baptista testified that he saw the Saturn's driver drop his head as if he were reaching down for a gun. At trial, Bell requested a self-defense instruction, which was denied. Bell was convicted of felony murder, criminal discharge of a firearm at an occupied vehicle, and criminal damage to property.

On appeal, we affirmed the trial court's denial of his request for a self-defense instruction:

"The defendant requested a self-defense instruction based on K.S.A. 21-3211: 'A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force.' However, K.S.A. 21-3214(1) provides in part that the justification described in 21-3211 is not available to a person who '[i]s attempting to commit, committing, or escaping from the commission of a forcible felony.' See State v. Jacques, 270 Kan. 173, Syl. ¶ 1, 14 P.3d 409 (2000).

"K.S.A. 21-3110(8) defines a forcible felony as 'any treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which involves the use or threat of physical force or violence against any person.'

"Criminal discharge of a weapon at an occupied vehicle, the underlying felony in this case, is considered a forcible felony. See State v. Mitchell, 262 Kan. 687, 694, 942 P.2d 1 (1997). As the defendant was charged with the forcible felonies of first-degree murder and criminal discharge of a firearm at an occupied vehicle, he was excluded from a self-defense instruction by K.S.A. 21-3214(1)." 276 Kan. at 792-93.

Bell applies in this case. Criminal discharge of a firearm at an occupied vehicle and at an occupied dwelling are the same crime and, thus, are both forcible felonies. K.S.A. 21-4219(b) (Furse) (criminal discharge of a firearm at an occupied building or occupied vehicle is the malicious, intentional, and unauthorized discharge of a firearm at a dwelling, building, structure, motor vehicle . . . in which there is a human being). Accordingly, K.S.A. 21-3214(1) precluded the giving of a self-defense instruction in this case. Because self-defense is not available in a felony-murder case where the underlying felony is criminal discharge of a weapon at an occupied dwelling, it follows that self-defense cannot serve to render the evidence of the underlying felony weak, inconclusive, or conflicting, so as to overcome the prohibition of lesser included offense instructions to a charge of felony murder.

The dissent criticizes us for "reaching out" to address the issue of the availability of self-defense under K.S.A. 21-3214. It is true that this issue was not raised on appeal. At trial, the State did not oppose the giving of a self-defense instruction. Interestingly, during the instructions conference, the trial court noted the Bell case and its holding that the defendant was not entitled to a self-defense instruction. Nevertheless, the trial court gave the instruction and on appeal no one argues that the instruction should not have been given. Error in giving that instruction is beyond our reach as far as our power to affect the result because of it. However, the fact that a self-defense instruction was given then serves as the foundation upon which Kirkpatrick bases his argument that he was entitled to imperfect self-defense lesser included offense instructions. The fact that the defendant received the benefit of an instruction to which he was not entitled and to which no one objected at trial or on appeal does not require that we ratify the error. To accept Kirkpatrick's argument would be to compound that error by extending it to further entitle the defendant to additional instructions to which he would not otherwise have been entitled. The court will not build its analysis on a legally defective foundation.

In response to the dissent, we point out that our holding is limited to the facts of this case. The dissent's hypothetical, in which an individual walking down the street is shot at by a sniper firing from inside an apartment building and who defends himself by returning fire, killing the sniper, is so far removed from the facts herein as to not be even remotely analogous. The policy behind the statute precluding self-defense to a person who was committing a forcible felony is well served under the facts of this case. At all times during the events in this case, Kirkpatrick and his friends were the aggressors. Not content to let the earlier scuffle go, they returned to the scene seeking to exact revenge and prove who was tougher. They brought a large pit bull dog and a gun with them. Once there, they were clearly the aggressors, using the dog and the gun to threaten violence while they tried to kick in the apartment door. Powers tried to calm things down, and asked Kirkpatrick to hand over his gun. Kirkpatrick refused and fired a shot into the door. Powers grabbed Kirkpatrick and asked him what he was doing. Kirkpatrick, unfazed by his friend's appeal, shoved Powers out of the way and after several seconds had passed, he fired two more shots into the door.

Moreover, even if it had been appropriate to instruct on self-defense in this case, it does not follow that imperfect self-defense applied to require instructions on voluntary manslaughter or involuntary manslaughter. Perfect self-defense is a concept based on justification or excuse and operates as a complete defense. It applies broadly to all crimes involving the use of force against another. See K.S.A. 21-3211 (Furse) et seq. Imperfect self-defense, in contrast, is based not on justification, but on mitigation and, thus, operates only to reduce criminal culpability to a lesser crime. 40 Am. Jur. 2d, Homicide § 139. Imperfect self-defense is "not a true defense; it does not absolve a defendant of criminal liability. It is, rather, a lesser degree of the crime of homicide." State v. Carter, 284 Kan. 312, 326, 160 P.3d 457 (2007). Imperfect self-defense exists only as a lesser degree of homicide in voluntary manslaughter under K.S.A. 21-3403(b) (intentional killing of a human being committed upon an unreasonable but honest belief that circumstances existed that justified deadly force), and in involuntary manslaughter under K.S.A. 2006 Supp. 21-3404(c) (unintentional killing during the commission of a lawful act in an unlawful manner). State v. Ordway, 261 Kan. 776, 787, 934 P.2d 94 (1997) (noting that Kansas recognizes imperfect self-defense for unintentional killings under lawful act/unlawful manner involuntary manslaughter).

It is important to note that the claim of self-defense in this case was directed to the underlying felony of criminal discharge of a firearm at an occupied dwelling. But imperfect self-defense exists only as a lesser degree of the crime of homicide. "'Outside of homicide law, the concept [of imperfect self-defense] doesn't exist. . . . With respect to all other crimes, the defendant is either guilty or not guilty. . . . There is no "in between."'" 2 LaFave, Substantive Criminal Law §10.4(i) (2d ed. 2003) (quoting, Bryant v. State, 83 Md. App. 237, 244-45, 574 A.2d 29[1990]) (imperfect self-defense only applies to homicide crimes and their "shadow forms" such as attempted murder; it does not apply to assault, battery, assault with intent to disable, or maiming); see also Jones v. State, 357 Md. 408, 422-23, 745 A.2d 396(2000) (doctrine of imperfect self-defense applies only to criminal homicide and its shadow forms; it has no applicability to other assaultive crimes).

If imperfect self-defense is asserted to the crime of criminal discharge of a firearm at an occupied dwelling, as argued in this case, voluntary and involuntary manslaughter are not mitigated versions of that offense. There is no imperfect self-defense version of criminal discharge of a firearm at an occupied dwelling. Thus, imperfect self-defense is not a defense to criminal discharge of a firearm. Accordingly, a claim of imperfect self-defense cannot serve to render the evidence of the underlying felony of criminal discharge of a firearm weak, inconclusive, or conflicting, so as to require instructions on imperfect self-defense voluntary manslaughter and imperfect self-defense involuntary manslaughter.

The trial court did not err in refusing to instruct the jury on imperfect self-defense voluntary manslaughter and imperfect self-defense involuntary manslaughter.

WHETHER THE DISTRICT COURT ERRED IN DENYING KIRKPATRICK'S MOTION TO SUPPRESS HIS STATEMENTS TO THE POLICE

Kirkpatrick argues that the district court erred in denying his motion to suppress recorded statements made to Detective Hosty the morning of the shooting. He specifically argues that his statement was not voluntarily given because he was "still intoxicated from a night of drinking."

The State responds that although the district court denied Kirkpatrick's motion at a pretrial hearing, Kirkpatrick failed to object at trial when his statement was entered as evidence and published to the jury. We agree with the State that he has failed to preserve his issue on appeal. See State v. Holmes, 278 Kan. 603, 610, 102 P.3d 406 (2004) (when motion to suppress is denied, the moving party must object to the evidence at trial to preserve the issue on appeal).

Even had Kirkpatrick objected at trial, his claim would still fail. Our standard of review is well known: "In reviewing a trial court's decision regarding the suppression of a confession, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by ...


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