State v. Rueckert

• Decision Date: 05 March 1977
• Docket Number: No. 48449,48449
• Citation: 221 Kan. 727,561 P.2d 850
• Parties: STATE of Kansas, Appellee, v. Harold Allen RUECKERT, Appellant.
• Court: Kansas Supreme Court

Page 850

561 P.2d 850

221 Kan. 727

STATE of Kansas, Appellee, v. Harold Allen RUECKERT, Appellant.

No. 48449.

Supreme Court of Kansas.

March 5, 1977.

Syllabus by the Court

1. The right of the state to endorse additional witnesses rests within the sound discretion of the trial court. Its ruling will not be disturbed in the absence of a showing of an abuse of discretion. The test is whether the defendant's rights have been prejudiced.

2. When two or more defendants are jointly charged with a crime the granting of a separate trial for any one defendant lies within the sound discretion of the trial court. (K.S.A. 22-3204.) A hearing on a motion for severance is not a 'critical stage' of a proceeding which requires counsel to be present.

3. If a murder is committed during the perpetration of a felony, the felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first degree murder.

4. If the undisputed evidence is sufficient to convince a reasonable mind that a felony has been committed, instructions on lesser degrees of homicide are not warranted.

5. Voluntary intoxication is not a defense to a general intent crime, although it may be used to demonstrate the inability to form a particular state of mind necessary for a specific intent crime. Specific intent is not an element of the crime of aggravated robbery. Evidence of intoxication alone does not necessitate the giving of instructions covering lesser degrees of homicide in a felony murder case when the underlying felony is aggravated robbery.

6. The proper test for determining whether an underlying felony merges into a homicide is whether all the elements of the felony are present in the homicide and whether the felony is a lesser included offense of the homicide.

7. A mistrial may be declared by the trial court under the circumstances outlined in K.S.A. 22-3423, and absent evidence of abuse of discretion the trial court's decision will not be set aside on appeal.

8. Evidence is not suppressed or withheld if the accused has knowledge of the evidence during the trial.

9. Where a person inflicts upon another a wound which is calculated to endanger or to destroy life, it is not a defense to a charge of homicide that the alleged victim's death was contributed to or caused by the negligence of the attending physicians or surgeons.

10. K.S.A. 60-401(b) defines relevant evidence as 'evidence having any tendency in reason to prove any material fact.'

11. In an action in which the defendant was convicted of felony murder, the record is examined and it is held: The trial court did not err in (1) allowing the state to endorse an additional witness after the trial had commenced; (2) allowing the trial to proceed after defendant objected because he was not notified of a hearing on a motion for severance; (3) instructing the jury on the felony murder rule; (4) refusing to instruct the jury on lesser included offense; (5) overruling defendant's motion for a mistrial; (6) failing to grant a new trial because of violation of a discovery order; (7) instructing on independent superseding cause; and (8) denying defendant's motion for acquittal.

David R. Gilman, Overland Park, argued the cause and was on the brief for appellant.

Douglas J. Walker, Jr., Asst. Dist. Atty., Olathe, argued the cause, and Curt T. Schneider, Atty. Gen., Dennis W. Moore, Dist. Atty., and Andrew Heyl, Asst. Dist. Atty., were on the brief for appellee.

OWSLEY, Justice.

This is a direct appeal from a jury verdict wherein defendant was found guilty of felony murder. (K.S.A. 21-3401.)

The facts reveal a cruel and bizarre homicide. Defendant Harold Allen Rueckert and Patrick Michael Sharkey spent most of the evening of December 21, 1973, bar-hopping in Overland Park, Kansas. At approximately midnight they were driving west on Merriam Lane when they came upon a slow-moving white 1962 Chevrolet. The car was driven by the Reverend Mr. Nathaniel Collins, a 73-year-old retired black minister, who was returning home from a church meeting. After following the minister's car for some time, defendant took his .22 caliber rifle from the gun rack located in the back window of his pickup and began firing at the car. Sharkey then shot the rifle, hitting the rear tires and causing them to go flat. Collins pulled his vehicle into the parking lot of the Eagles' Club in the 4700 block of Merriam Lane. Defendant continued driving west.

After driving five or six blocks, defendant turned his truck around and proceeded back to the disabled vehicle. When defendant and Sharkey arrived at the parking lot, the minister was looking at the flattened tires. The three men entered into a conversation about the tires. As Collins bent over to look at one of the tires, defendant picked up a jack post lying next to the car and struck him in the head. After striking him several times, defendant rifled his victim's pockets, taking his wallet. Defendant gave Sharkey the wallet; whereupon Sharkey removed the contents and threw the wallet aside.

Taking the murder weapon with them, defendant and Sharkey got back in the truck. As an afterthought, Sharkey decided to retrieve the wallet. The two men drove away and when they crossed a bridge, Sharkey threw out the wallet and jack post. The wallet went over the railing into the river, but the jack post fell onto the bridge. Defendant stopped the truck after crossing the bridge. Sharkey then took the wheel and drove back onto the bridge where defendant got out, picked up the jack post, and threw it into the river. The two men spent the remainder of the night at Sharkey's apartment. The next day Sharkey gave defendant forty dollars, half the proceeds of the robbery.

At approximately 3:00 a. m., Collins was discovered in the parking lot, and police and an ambulance were summoned. He was rushed to the K. U. Medical Center where, despite the efforts of several doctors, he died shortly thereafter.

Police investigators processed the crime scene and found blood on and about the automobile. They also removed both rear wheels and took them to the crime lab where four lead slugs were recovered. During their investigation of the crime authorities came into possession of a rifle defendant had given to an acquaintance. A bullet comparison test indicated the slugs in the tires came from defendant's gun.

Both Sharkey and defendant were charged with felony murder and aggravated robbery. Sharkey pled guilty to second degree murder and became a state's witness. Defendant was tried and found guilty of felony murder.

I. Endorsement of Witnesses

As his first point on appeal defendant contends the trial court erred in allowing the state to endorse Sharkey as its witness at the commencement of trial. This procedure is governed by K.S.A. 22-3201(6) (now K.S.A.1976 Supp. 22-3201(6)) which requires the prosecuting attorney to endorse on the information the names of witnesses known to him at the time of filing. He may thereafter endorse the names of additional witnesses if he obtains permission of the court. (State v. Robertson, 203 Kan. 647, 455 P.2d 570; State v. Poulos, 196 Kan. 287, 290, 411 P.2d 689, cert. denied, 385 U.S. 827, 87 S.Ct. 63, 17 L.Ed.2d 64.)

The right of the state to endorse additional witnesses rests within the sound discretion of the trial court. Its ruling will not be disturbed in the absence of a showing of an abuse of discretion. The test is whether the defendant's rights have been prejudiced. (State v. Rogers, 217 Kan. 462, 537 P.2d 222; State v. Collins, 217 Kan. 418, 536 P.2d 1382; State v. Williams & Reynolds, 217 Kan. 400, 536 P.2d 1395; State v. Price, 215 Kan. 718, 529 P.2d 85; State v. Blocker, 211 Kan. 185, 505 P.2d 1099.)

Defendant shows no evidence of surprise or prejudice. The witness was known to counsel and had been interviewed by him four days prior to trial. At no time did defendant express the need for additional time due to surprise. In fact counsel admitted to the trial court that he fully expected Sharkey to be called as a witness. Defendant asks this court to presume prejudice because the witness was an accomplice to the crime. This court has not in the past and will not now create a special rule merely because the endorsed witness was an accomplice. (State v. Motor, 220 Kan. 99, 551 P.2d 783; State v. Robertson, supra.)

II. Severance of Defendants

After defendant and Sharkey were arraigned on charges of aggravated robbery and felony murder, defendant moved the court for a determination of his competency to stand trial. The trial court ordered defendant to be transferred to Larned State Hospital for psychiatric evaluation. While defendant was at Larned, the court severed the cases involving defendant and Sharkey and brought Sharkey to trial. Defendant complains he was prejudiced as he was not present and represented by counsel at the severance hearing.

Defendant argues the severance motion was a 'critical stage' of the proceeding and he was entitled to notice in order to have counsel present. We cannot agree. A motion to sever is not a 'critical stage' of the proceeding which requires counsel to be present as is an arraignment, preliminary hearing, or pretrial custodial interrogation. (White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.) The granting of separate trials is a discretionary power which rests in the hands of the trial court. (K.S.A. 22-3204.) A defendant does not have the right to be tried with or separate from a codefendant if no prejudice to his rights can be shown. (State v. Sully, 219 Kan. 222, 547 P.2d 344; State v. Williams & Reynolds, supra.) Here the trial court was forced to sever the cases against the two defendants. Sharkey was entitled to his right to a speedy trial pursuant to K.S.A. 22-3402(1) (now ...