625 P.2d 425 (Kan. 1981), 51843, State v. Rider

Docket Nº:51843.
Citation:625 P.2d 425, 229 Kan. 394
Party Name:STATE of Kansas, Appellee, v. Glendal A. RIDER, James M. Edens & Clark W. Lemons, III, Appellants.
Attorney:[6] Charles A. O'Hara, of O'Hara, Busch, Johnson & Falk, of Wichita, argued the cause and was on the briefs for the appellant Clark W. Lemons, III. Charles A. O'Hara, of O'Hara, Busch, Johnson & Falk, of Wichita, argued the cause, and Andrew E. Busch, of the same firm, was on the brief for the ap...
Case Date:March 18, 1981
Court:Supreme Court of Kansas

Page 425

625 P.2d 425 (Kan. 1981)

229 Kan. 394

STATE of Kansas, Appellee,

v.

Glendal A. RIDER, James M. Edens & Clark W. Lemons, III, Appellants.

No. 51843.

Supreme Court of Kansas

March 18, 1981

Page 426

[Copyrighted Material Omitted]

Page 427

Syllabus by the Court

1. Normally, a trial court is required to give a full range of lesser included offense instructions; however, when a murder is committed during the commission of a felony the rule requiring instructions on lesser included offenses does not apply. 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. (Following State v. Rueckert, 221 Kan. 727, 731, 561 P.2d 850 (1977).)

2. No self-defense instruction is permitted when the murder occurs during the attempt, commission, or escape from commission of a forcible felony.

3. Although K.S.A. 21-3401 does not specifically include, within the felony-murder rule, the killing of another during flight from the scene of the crime, a killing during flight may constitute felony murder if it is a part of the res gestae. (Following State v. Hearron, 228 Kan. 693, 619 P.2d 1157 (1980).)

4. Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of the felony and, therefore, subject to the felony-murder rule. Whether the underlying felony had been abandoned or completed prior to the killing so as to remove it from the ambit of the felony-murder rule is ordinarily a question of fact for the jury to decide. (Following State v. Hearron, 228 Kan. 693, 619 P.2d 1157 (1980).)

5. When the evidence is conclusive, as a matter of law, that the murder occurred within the res gestae of a crime, the trial court need not instruct that determination of whether the murder occurred within the res gestae is a fact question for the jury.

6. In order to render one liable for aiding a felon, he must have actual knowledge at the time he assisted the principal that the latter had committed a felony. Such knowledge must be personal as distinguished from constructive, but if the accused had actual knowledge of facts which would give him good reason to believe the person assisted to be guilty of a felony, this would be sufficient to prove actual knowledge.

7. Generally, any assistance or relief given to one known to be a felon, in order to hinder his apprehension, trial, or punishment, is sufficient to render the person giving such assistance guilty for aiding a felon.

Page 428

8. Knowledge[229 Kan. 395] and intent are states of mind which may be, and most frequently are, proven by circumstantial evidence.

9. Unsworn declarations received as part of the res gestae do not depend for their effect on the credibility of the declarant, but derive probative force from their close connection with the occurrence which they accompany and tend to explain. They are admissible as original evidence, although it is frequently stated they are received as an exception to the hearsay rule.

10. Evidence required to sustain a conviction on a conspiracy charge is stated. (Following State v. Roberts, 223 Kan. 49, 574 P.2d 164 (1977).)

11. There should always be an orderly presentation of proof. Rules pertaining thereto, however, are directory and not mandatory. An alteration in the prescribed customary order of proof rests in the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless its exercise of the power of discretion is abused.

Charles A. O'Hara, of O'Hara, Busch, Johnson & Falk, Wichita, argued the cause and was on the briefs for appellant Clark W. Lemons, III.

Charles A. O'Hara, of O'Hara, Busch, Johnson & Falk, Wichita, argued the cause, and Andrew E. Busch, Wichita, was on the brief for appellant James M. Edens.

C. Warner Eisenbise, Wichita, argued the cause and was on the brief for appellant Glendal A. Rider.

Beverly Dempsey, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Vern Miller, Dist. Atty., were with her on the brief for appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict finding Glendal A. Rider, James M. Edens, and Clark W. Lemons III (defendants-appellants) guilty of various felonies. All three appellants were convicted of one count each of felony murder (K.S.A. 21-3401), aggravated robbery (K.S.A. 21-3427), and conspiracy (K.S.A. 21-3302). Rider and Lemons were also convicted of one count each of unlawful possession of a firearm (K.S.A. 21-4204). Edens was convicted of one count of aiding a felon (K.S.A. 21-3812).

Numerous issues are asserted on appeal. All three appellants contend the trial court erred in failing to instruct on self-defense and refusing to instruct on lesser included offenses of murder. [229 Kan. 396] Lemons asserts additional trial court errors in (1) improper handling of the order of cross-examination, (2) admitting hearsay statements of unnamed coconspirators, (3) prejudice resulting from a witness's inadvertent view of a photo exhibit, and (4) improper instructions on the defense of compulsion. Edens asserts additional errors by the trial court in (1) finding sufficient evidence to support the charges on all counts, and (2) giving various jury instructions.

In November and December of 1978 Glendal Rider temporarily resided at Larned State Security Hospital, where he waited a pre-sentence report. Rider had previously pled guilty in Sedgwick County to charges of burglary, aggravated robbery, theft, unlawful possession of a firearm and two felony murders. Rider made several long distance telephone calls while at Larned. On November 2, and December 1, 1978, Rider made long distance telephone calls to a Wichita telephone number listed for the residence of James Edens. On December 5, Rider escaped from his room at Larned, having sawed through a metal bar on the window. He acquired a red farm truck and fled to Wichita.

At about 7:30 a. m. on December 5, Rider and Edens appeared at the home of John and Carol Leisek, in Wichita. Edens introduced Rider as "W. T." Later that same morning the Leiseks learned Rider's true identity from television news reports of the escape. Rider lived with the Leiseks for the next ten days. Three or four days after Rider's arrival, Carol Leisek dyed his hair from brown to blonde.

Page 429

On December 15, Edens, Rider, and Clark Lemons had a conversation at the kitchen table in the Leiseks' home. John Leisek testified that he overheard either Lemons or Edens use the words "robbery" and "Hudson Pharmacy." After the conversation, the three men went into the bathroom and shot drugs. Later that afternoon Rider obtained a 1972 yellow Chevrolet Malibu to use in the robbery. Rider obtained the car from a used car lot on the pretense he wanted a test drive. Rider parked the Malibu one block from John Leisek's home.

Shortly after 5 p. m., Rider, Lemons, and Edens again met at the Leisek residence. The robbery was discussed and the men left in Edens' car. Edens drove Rider and Lemons to the place where Rider had parked the Malibu. Rider and Lemons entered the Malibu, drove to within one block of the Hudson Pharmacy, and [229 Kan. 397] parked the car. The two men walked through a nearby yard and entered the pharmacy.

Rider and Lemons brandished handguns, announced the robbery, and demanded money and class A narcotics. During the robbery, which lasted ten to twelve minutes, the phone constantly rang. After obtaining almost $350 and a large box of narcotics, the two men fled.

As they fled, the men re-crossed the yard of a neighboring home. The elderly homeowner, Lewis Merriman, yelled at the trespassers and walked toward them. Rider fired his gun in Merriman's direction. A bullet was later retrieved from the front wall of Merriman's home. The shot was fired as Rider and Lemons were entering the getaway vehicle.

As Rider began to drive away from the curb, another car was passing and the two cars almost collided. The second car, a Cadillac, proceeded up the street the distance of three or four houses, and stopped in the middle of the street. Rider drove his car up the street and passed on the right side of the Cadillac. The driver of the Cadillac, James K. Edwards, lived in a house on the street where this occurred.

According to Rider, the Cadillac pursued the Malibu for several blocks and attempted to run the Malibu off the street. Rider testified that he attempted to "elude" the Cadillac by driving into the parking lot of Corky's IGA. Two witnesses saw the Malibu and Cadillac driving erratically at Corky's IGA. One witness testified the Cadillac slammed on its brakes in front of the Malibu, and that the Malibu backed up and drove around the store. Rider and Lemons testified that they were proceeding down the alley behind Corky's IGA when the Cadillac came up and hard-angled toward the wall. Rider testified that as he got out of his car the driver of the Cadillac reached behind the car seat. Rider fired a warning shot and yelled "freeze." Rider testified that he shot the man because it appeared the man held a gun. Rider and Lemons fled in the Malibu. Apparently Edwards possessed a carpet knife, but no gun. Edwards died as a result of the gunshot wound.

Edens returned to the Leisek residence about 7:30 p. m. Edens and John Leisek drove to a convenience store across the street from the Hudson Pharmacy. Leisek retrieved a piece of paper from the phone booth near the store, tore up the paper, and threw [229 Kan. 398] it away. Edens told Leisek that Rider and Lemons were not at the location where he was...

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