562 P.2d 51 (Kan. 1977), 48262, State v. Henson

Docket Nº:48262.
Citation:562 P.2d 51, 221 Kan. 635
Party Name:STATE of Kansas, Appellee, v. Billy J. HENSON, Appellant.
Attorney:[6] Patrick J. Hurley, of Leavenworth, argued the cause and was on the brief for the appellant. Patrick J. Reardon, County Attorney, argued the cause, and Curt T. Schneider, Attorney General, was with him on the brief for the appellee.
Case Date:March 05, 1977
Court:Supreme Court of Kansas

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562 P.2d 51 (Kan. 1977)

221 Kan. 635

STATE of Kansas, Appellee,


Billy J. HENSON, Appellant.

No. 48262.

Supreme Court of Kansas

March 5, 1977

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Syllabus by the Court

1. The element of premeditation, essential to first degree murder, is not to be inferred from use of a deadly weapon alone, but if, in addition, other circumstances are shown, such as lack of provocation, the defendant's conduct before and after the killing or the dealing of lethal blows after the deceased was rendered helpless, the evidence may be sufficient to support an inference of deliberation and premeditation.

2. In ruling on the admissibility of other crimes evidence under K.S.A. 60-455, 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 face-i. e., that it is substantially in issue and (3) balance the probative value of the other crimes evidence against its tendency to prejudice the jury. (Following State v. Faulkner, 220 Kan. 153 (Syl. 1), 551 P.2d 1147.)

3. In a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to testimony of a doctor as to the cause of death even though they may appear gruesome.

4. In a prosecution for first degree murder where identity and premeditation are at issue, photographs, although gruesome, are admissible if shown to be relevant to such issues.

5. Whether a mistrial should be declared, under the provisions of K.S.A. 22-3423(c), lies with the sound discretion of the trial court.

6. Jury misconduct will not constitute a ground for reversal unless it is shown to have substantially prejudiced the rights of either the defendant or the prosecution.

7. Whether a witness is qualified to give opinion testimony is to be determined by the trial court in the exercise of its discretion.

8. Resistance, by an accused, to extradition is no evidence of guilt of the crime charged and evidence thereof is ordinarily inadmissible in a criminal case.

9. Whether the erroneous admission of testimony constitutes harmless or reversible[221 Kan. 636] error depends upon the particular evidence and the circumstances of the case in which the question arises.

10. In a prosecution for first degree murder, the record is examined and it is held: (1) There was substantial competent evidence to support an inference of premeditation; (2) reversible error was not shown with respect to any evidence admitted; and (3) the trial court did not err in refusing to direct a mistrial or in overruling defendant's motion for a new trial.

Patrick J. Hurley, Leavenworth, argued the cause and was on the brief for appellant.

Patrick J. Reardon, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

KAUL, Justice:

Defendant-appellant, Billy J. Henson, appeals from a conviction by a jury of first degree premeditated murder in violation of K.S.A. 21-3401.

On August 23, 1971, Marsha Lynn Smith, a young woman, was found dead on a bed in the bedroom of her Leavenworth apartment. Detective Charles Scharer, of the Leavenworth Police Department, commenced the investigation by examining the scene of the crime. Scharer was an officer with nineteen years' experience in law enforcement and had participated in the investigation of approximately three hundred homicides. He found the body of the deceased lying face up on the bed, nude from the waist down. The victim's throat had a deep cut and there were numerous stab wounds in the chest. Scharer took a number of photographs of different angles of the body and of the scene of the crime. Three more photographs were taken during

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an autopsy and were admitted into evidence at trial over defendant's objection that they were irrelevant and prejudicial.

In addition to photographing the scene Scharer testified that the entire apartment was dusted for fingerprints. During the course of this examination Sharer found what appeared to be a 'bloody plam print' located on the inside door above the lock or night latch. Scharer testified that during his years in law enforcement, including the investigation of many homicide cases, he had become familiar with the appearance of blood and it was his opinion that the palm print was etched in blood. This palm print was eventually [221 Kan. 637] sent to the Federal Bureau of Investigation with palm prints taken from the defendant and others. Examination by the FBI resulted in identification of the bloody palm print at the scene as that of the defendant and 'of no one else,' according to the testimony of FBI agent Herbert Odell Rogers at trial.

Scharer, together with other investigating officers, found a knife and scrapings that appeared to be blood samples, which were obtained from the door of the apartment. immediately below the victim's apartment. Scharer also testified that he found no Sunday Leavenworth Times of any other recent newspapers in the apartment.

The following day an autopsy was performed on the victim's body by Dr. Earl Wright, a pathologist, who testified as an expert witness for the state. His examination revealed the victim's throat had been cut through to the vertebral column. Dr. Wright also found seventeen separate stab wounds in the chest which were grouped within a small area. He testified that at least nine of the stab wounds had punctured the heart. He described the grouping of the stab wounds as showing a 'lack of randomness' and slightly unusual in that the lungs were not penetrated but only the heart. Dr. Wright further described the cause of death as either the neck laceration of the stab wounds which penetrated the heart-either would have been sufficient to kill. He also found evidence that the decedent had been sexually assaulted.

Further police investigation revealed that the defendant knew the decedent, was familiar with her and that on the probable night of the murder, Saturday-Sunday, August 21-22, the defendant was looking for the decedent. The investigation further disclosed that in the latter part of July 1971, three to five weeks before the homicide, the defendant had committed a civil wrong against Lou Ann Lee, sixteen years of age. Miss Lee testified that on the occasion defendant threatened her with a knife, which she managed to wrest away from him; that he put his hands around her neck and simulated intercourse with her, at which point she was able to escape and later reported the incident to the police.

Defendant took the witness stand in his own behalf and, regarding the weekend of the murder, testified that on Saturday, August 21, 1971, at approximately 10:30 or 11:00 p. m. he went to the victim's apartment for the purpose of meeting one Larry Workman and selling him some drugs. Apparently, Workman was a boyfriend of the victim. According to the defendant, Workman did not [221 Kan. 638] come to the apartment as anticipated. Defendant described what happened on his visit to the apartment in these words:

'A. I walked up the stairs, knocked on the door, and there was no answer. The door went open a little ways, and I stuck my head in and yelled, 'Is Larry here?' At which time I saw Marsha Smith lying on the bed. I went over to see if there was anything I could do, which I found there was nothing to do, because her head was almost severed. I turned around and not knowing what to do, I heard a police car, and I got scared and I stayed in the apartment until the siren quit, and I left the apartment and ran to my apartment and tried to figure out what I should do, which I could not figure out anything to do, because I was so scared.

'Q. Now did you go the police?

'A. No, I did not.

'Q. Why didn't you?

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'A. I was too scared. I didn't want to be connected with anything that brutal and vicious.'

Defendant was questioned two months later about the murder by officers of the Leavenworth Police Department, but failed to tell them about his presence at the scene of the crime at this time. During this interrogation, however, defendant was also questioned about, and admitted his involvement in, an unrelated burglary. After pleading guilty to this burglary charge, defendant was placed on probation.

In January 1972 defendant violated the terms of his probation, went AWOL, and took up residence in the home of his parents in Springfield, Missouri. He was arrested for desertion on April 7, 1972, and thereafter questioned extensively about the Marsha Smith murder by two Kansas Bureau of Investigation agents. Defendant again failed to reveal that he had been at Marsha Smith's apartment on the Saturday night in question.

Defendant was the only witness called by the defense. He testified at great length about his activities in the Leavenworth area during the months preceding the murder while he was in the army stationed at Fort Leavenworth. He testified in considerable detail about his involvement with the use of narcotics and other unlawful activities during this period. He admitted that he knew the victim, but denied having killed her. On cross-examination, over objection, he was interrogated concerning his efforts to prevent extradition from Missouri. His testimony will be further discussed in the course of the opinion as related to the points raised.

The state called Shirleen Wright as a rebuttal witness, who testified that she knew the victim during the summer of 1971, and had been to her apartment approximately ten times. She testified [221 Kan. 639] that about every time she was at Miss Smith's apartment the defendant was also...

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