562 P.2d 84 (Kan. 1977), 48438, State v. Duncan

Docket Nº:48438.
Citation:562 P.2d 84, 221 Kan. 714
Party Name:STATE of Kansas, Appellee, v. Harry F. DUNCAN, Appellant.
Attorney:[6] M.C. Slough, of Shawnee Mission, argued the cause and was on the brief for the appellant. Douglas J. Walker, Jr., assistant district attorney, argued the cause, and Curt T. Schneider, attorney general, and Dennis W. Moore, district attorney, were with him on the brief for the appellee.
Case Date:March 05, 1977
Court:Supreme Court of Kansas
 
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Page 84

562 P.2d 84 (Kan. 1977)

221 Kan. 714

STATE of Kansas, Appellee,

v.

Harry F. DUNCAN, Appellant.

No. 48438.

Supreme Court of Kansas

March 5, 1977

Page 85

[Copyrighted Material Omitted]

Page 86

Syllabus by the Court

1. It is the prerogative of a jury to determine the credibility of witnesses, the weight to be given the evidence, and the reasonable inferences of fact which may be drawn from the evidence.

2. On appellate review the question is not whether the evidence establishes guilt beyond a reasonable doubt but whether the evidence was sufficient to form a basis for a reasonable inference of guilt.

3. On motion it is the duty of a trial court, before admitting a purported confession into vidence, to conduct a hearing separate and apart from the jury to determine from the evidence as a preliminary matter whether the confession was freely and voluntarily made by the accused.

4. Discrepancies in facts not bearing on voluntariness or which relate to the credibility of a witness to a confession are irrelevant to an inquiry under K.S.A. 22-3215.

5. This court will not reverse the trial judge on a discretionary matter except for an abuse of discretion which affirmatively appears to have affected the substantial rights of the party complaining.

6. When the testimony sought requires proper foundation and knowledge to express an opinion and it is not shown the

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witness has such knowledge, the opinion testimony is so conjectural as to lack probative value and may be properly excluded by a trial court.

7. The record on appeal from a conviction of murder in the first degree is examined and it is held no reversible error has been shown for any of the reasons urged.

M. C. Slough, Shawnee, Mission, argued the cause and was on the brief for appellant.

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

FROMME, Justice.

Harry F. Duncan was convicted by a jury of murder in the first degree (K.S.A. 21-3401). He was sentenced to imprisonment[221 Kan. 715] for life and appeals from his conviction and sentence.

He raises three trial errors including a claim of insufficient evidence to warrant a conviction. It is necessary to relate in detail the facts as developed by the evidence at the trial.

The nude body of an unidentified woman was discovered in a clump of trees along Frisby Road south of Bonner Springs in Johnson County, Kansas, on June 18, 1974. The body was found in a secluded area, had no teeth and was in a state of decomposition. The officers at the scene found no clues to the woman's identity. Items of clothing were found in a neat pile near the nude body. An autopsy disclosed that death was caused by several blows to the face and head by a heavy blunt instrument, such as a hammer. There was a fracture on the left side of the skull. The upper jaw was fragmented. The bones of the nose and nasal cavity had been fractured and there was an absence of bony structure around the left eye socket.

The deputy coroner who visited the scene placed the approximate date of death on June 15, 1974. He noted a lack of blood around the area and testified some 14 months later at the trial that the lack of blood might point to the fact that the death occurred elsewhere. The body was covered with fly larvae since the death had occurred in warm weather and the body was outdoors. He further testified that any blood spattered about during the homicide might disappear in the loose, sandy soil and be consumed by the large number of flies which were present.

Seven months after the body was found the police received a tip from an informer and defendant Duncan was arrested. Further investigation disclosed that sheriff's deputies had been in that general area three days before the body was found but at that time they were not aware of the presence of the body. They had been called to help two motorists stranded on Frisby Road at 5:00 a. m. on June 15, 1974. The motorists were Harry F. Duncan, defendant, and Beverly Jean Thompson. They had left their car and walked to the first house down the road but were advised to go to the next house. The couple went to the second house, were refused help and were walking on down the road when the officers arrived. The people in the second house had called the sheriff's office.

The couple advised the officers that the battery on their car had run down while they were making love in the car with the car lights on. The officers noticed nothing strange about their appearance and took them back to their car. The car was a mile [221 Kan. 716] or so down the road and was parked near the clump of trees where the woman's body was found several days later. The officers used jumper cables to start the car. Mr. Duncan and Mrs. Thompson then drove away. The officers noticed no blood on the car and nothing strange about the area.

When Duncan was arrested for the murder 7 months later the foregoing facts surfaced and both Duncan and Mrs. Thompson were questioned. Duncan gave a statement to Detective Donald D. Hall. Mrs. Thompson testified at the trial as an eyewitness to the homicide. Her bizarre story was quite similar to the oral confession by Duncan.

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Duncan's statement or confession was related to Detective Hall and Detective Hall testified concerning the statements made to him by Duncan.

Mrs. Thompson testified that Duncan had been living with her for some time. They had been drinking on the night of June 14 and on the morning of June 15, 1974. They visited at least two night clubs where they engaged in drinking and then drove over to Kansas City, Missouri. Duncan was driving Mrs. Thompson's car and he picked up a woman somewhere on Broadway. They did not know the woman but she got into the car with them. Mrs. Thompson testified the woman was wearing a dark pullover top and a light pair of slacks. The woman carried no purse. The woman was advised they would take her some place to eat. They then drove to the area where the body was found, stopped the car and left the car lights burning. They all got out of the car and Duncan ordered the unknown woman to take off all her clothes. She did so and then Duncan picked up 'something' and began to sexually molest her. He rammed a stick or 'something' into her groin area, then ordered her to lean against the car. He then stuck 'something' into her rectum or possibly her vagina two or three times. Mrs. Thompson testified the woman did not utter a sound until Duncan attempted to cut or pinch off one of the woman's breasts and then the woman said, 'I am a hurt woman'. Duncan then started hitting the woman on the head and on the left side of her face with a hammer.

Mrs. Thompson testified that she attempted to intervene but was struck with the hammer and she retreated to the back of the car. She reported that three of her ribs were cracked by Duncan in the melee. She begged Duncan to take the woman to a hospital but he refused saying 'he had to kill her'. Mrs. Thompson said she watched Duncan drag the victim to a clump of trees. The [221 Kan. 717] woman was still partially able to move under her own power. Ten minutes later Duncan returned with a hammer in his hand. Mrs...

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