State v. Alderson, 74161

• Decision Date: 12 July 1996
• Docket Number: No. 74161,74161
• Citation: 260 Kan. 445,922 P.2d 435
• Parties: STATE of Kansas, Appellee, v. Shawn ALDERSON, Appellant.
• Court: Kansas Supreme Court

Page 435

922 P.2d 435

260 Kan. 445

STATE of Kansas, Appellee, v. Shawn ALDERSON, Appellant.

No. 74161.

Supreme Court of Kansas.

July 12, 1996.

Syllabus by the Court

1. A party who shows a judge is prejudiced against the party has a right to have his or her case tried before some other judge, but the party's failure to timely file a motion or affidavit alleging prejudice as required by statute may bar the movant's request for a change of judge.

2. When a district court refuses to recuse itself from a trial upon the defendant's request, this court has promulgated a two-part test to determine whether the defendant received a fair trial or whether the defendant's due process rights were violated: (1) Did the trial judge have a duty to recuse himself or herself from this case because the judge was biased, prejudicial, or partial? (2) If the judge did have a duty to recuse and failed to do so, is there a showing of actual bias or prejudice to warrant setting aside the judgment of the trial court?

3. A judge should disqualify himself or herself if the circumstances and facts of the case create reasonable doubt concerning the judge's impartiality, not in the mind of the judge, or even, necessarily, in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.

4. "Bias" refers to the judge's mental attitude toward a party to the litigation. Bias and prejudice exist if a judge harbors a hostile feeling or spirit of ill will against one of the litigants, or undue friendship or favoritism toward one.

5. If the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

6. In order to convict a defendant of criminal discharge of a firearm (K.S.A. 21-4219), the State is not required to prove beyond a reasonable doubt that the victim was not placed in immediate apprehension of bodily harm, because this is not an element of the crime.

7. An issue not presented to the trial court will not be considered for the first time on appeal.

8. The trial court has an affirmative duty to instruct the jury on all lesser included offenses which are supported by the evidence. Instructions on lesser included offenses must be given even though the evidence supporting those offenses may not be strong.

9. 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 that the underlying felony was committed is weak, inconclusive, or conflicting that instructions on lesser included offenses may be required.

10. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

11. Where self-defense is an issue in a homicide case, evidence of the turbulent character of the deceased is admissible. Such evidence may consist of the general reputation of the deceased in the community, but specific instances of misconduct may be shown only by evidence of a conviction of a crime.

12. The decision to sequester witnesses during a criminal trial is discretionary with the trial court.

13. A defendant's random shooting of his or her victims may be considered as an aggravating factor to justify a departure sentence.

14. Cumulative trial errors may be so great as to require reversal of a defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.

15. In a criminal case where the defendant has been convicted of felony murder and aggravated battery, the record is examined and it is held: (1) The trial judge's refusal to recuse himself from conducting the trial is not reversible error; (2) the evidence is sufficient to convict the defendant of felony murder; (3) the trial court did not err in failing to instruct on lesser included offenses; (4) the trial court did not abuse its discretion in excluding evidence; (5) the trial court did not err in refusing to sequester witnesses; (6) the State's motion for an upward durational departure gave the defendant adequate notice of the grounds relied on; (7) the trial court did not err in imposing an upward durational departure sentence; and (8) the trial judge erred in not recusing himself from sentencing the defendant.

Rick Kittel, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

Debra S. Peterson, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with her on the brief, for appellee.

ABBOTT, Justice:

This is a direct appeal by Shawn Alderson from his convictions for felony murder and severity level 4 aggravated battery. The trial court imposed an upward durational departure on the aggravated battery charge. The defendant raises nine issues, including sufficiency of evidence, merger, lesser included offenses, failure of the trial judge to recuse himself at the trial and at the sentencing, failure to sequester witnesses, upward durational departure sentence, admissibility of victim's prior conviction, and cumulative error.

On the evening in question, the defendant was riding around Wichita in a red Chevrolet Blazer sport utility vehicle accompanied by Vernon Harris, Jr. The defendant and Harris were part of a three-vehicle caravan that was together throughout the evening. The occupants of the caravan vehicles were witnesses to the events that transpired throughout the evening.

The red sport utility vehicle in which the defendant and Harris were riding was a stolen vehicle. It was owned by the trial judge's brother and was stolen from the home of the trial judge's father, Owen Ballinger a retired district court judge. The defendant occupied the stolen vehicle as both a passenger and driver during the evening. Depending on whose testimony is believed, he drove the stolen vehicle to the scene of the felony murder and had either exited the vehicle or was sitting in the driver's seat when he fired the fatal shot.

While the defendant was driving the red sport utility vehicle around, the caravan observed a fight at the Westway parking lot. The occupants of all three vehicles stopped in the parking lot to watch the fight.

The fight involved Larry Goodwin, the victim of the felony murder, and his friend, Jeff Tipton, who were from Hutchinson and had gone to Wichita for the evening. Robert Ross, Victor Trudo, and Pat Benware were also involved in the parking lot fight. These three had stopped in the parking lot when Goodwin and Tipton pulled into the parking lot and accused the trio of "cutting them off" in traffic. Ross, Trudo, and Benware proceeded to beat Tipton into a state of unconsciousness. At this time, the three-vehicle caravan, led by the red sport utility vehicle, with the defendant as the driver and Harris as a passenger, pulled into the parking lot.

While Tipton was lying on the ground, Harris got out of the passenger side of the stolen red sport utility vehicle. Harris then fired two or three shots into the rear of Goodwin's car. Goodwin was in the driver's seat at the time. No words were exchanged between Goodwin and Harris. The record indicates the defendant and Harris had never seen Goodwin or Tipton before the incident.

After Harris fired the shots, Goodwin drove his car in a circle, ending up in the same place and facing the same direction from which he started. Goodwin's vehicle was next to the stolen utility vehicle facing in the opposite direction with the drivers adjacent to each other. Ross testified that the defendant fired three shots from the Blazer's driver's seat into Goodwin's car. One of the bullets struck the back of Goodwin's left shoulder, injuring Goodwin's spine, paralyzing him from the neck down, and causing his death a few days later.

The defendant testified he was outside of the stolen vehicle and that he fired in self-defense to prevent Goodwin from running over him. This contradicted the defendant's previous statement in which he denied he was even at the scene. The physical evidence indicates the bullet that killed Goodwin was fired from the side of the car and slightly from the rear.

After Goodwin was shot, the three-car caravan left and ultimately resumed cruising the streets. As they were driving, they came upon two young persons walking beside Hillside Street. The defendant leaned out of the passenger side of the red sport utility vehicle and fired a shot at the pedestrians. When two people in the caravan, Heather Marlett and Richenda Gallardo, looked back, they saw that one of the pedestrians had fallen to the ground. When Heather Marlett later asked the defendant why he shot the young man, the defendant laughed and told her "to keep it on lockdown."

Tyrone Elam was one of the young men who had been walking along Hillside. He testified at trial. On the evening of June 15, 1994, Tyrone had been walking with his brother when three cars, including a red sport utility vehicle, passed them. Tyrone heard someone yell, "You're as dead as hell," and then Tyrone fell to the ground. Tyrone...