State v. Baker
| Decision Date | 08 July 1994 |
| Docket Number | No. 68451,68451 |
| Citation | 877 P.2d 946,255 Kan. 680 |
| Parties | STATE of Kansas, Appellee, v. Tyrone L. BAKER, Sr., Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Double jeopardy clauses in the United States and Kansas Constitutions are discussed.
2. Multiplicity exists if the State uses a single wrongful act as the basis for multiple charges. Charges are not multiplicitous if each charge requires proof of a fact not required in proving the other. Charges are also not multiplicitous if the offenses occur at different times and in different places.
Three elements must be present to bar a subsequent prosecution under the first clause of K.S.A. 21-3108(2)(a): First, the prior prosecution must have resulted in a conviction or acquittal; second, evidence of the present crime must have been introduced in the prior prosecution; and third, the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case.
4. The object of the compulsory joinder clause of K.S.A. 21-3108(2)(a) is to prevent the prosecution from substantially proving a crime in a trial in which the crime is not charged and then retrying the defendant for the same offense in a trial where it is charged.
5. Evidence that has a direct bearing on, and a relation to, the commission of an offense is admissible without a limiting instruction and is not rendered inadmissible because it may disclose other or independent offenses.
6. The law allows the admission of evidence as part of the res gestae for acts made before, during, or after the principal event.
7. On issues of insanity and diminished capacity, the jury may consider and weigh the evidence and testimony of both expert and nonexpert (lay) witnesses.
8. When the sufficiency of the evidence is challenged, the standard of review on appeal 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.
9. 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.
10. K.S.A. 1993 Supp. 22-3430 gives authority to the trial court to commit a criminal defendant to a state mental institution in lieu of imprisonment and provides that a defendant may appeal from any order of commitment. The refusal of a trial judge to commit a defendant to a state mental institution in lieu of imprisonment is, accordingly, not reviewable on appeal.
Hazel Haupt, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief, for appellant.
Gerald E. Wells, Dist. Atty., argued the cause, and Robert T. Stephen, Atty. Gen., was with him on the brief, for appellee.
Tyrone L. Baker, Sr., appeals his jury trial convictions of two counts of first-degree murder (K.S.A. 21-3401); two counts of aggravated kidnapping (K.S.A. 21-3421); and one count of aggravated assault (K.S.A. 21-3410), as well as the sentences imposed thereon.
The events giving rise to these Douglas County convictions commenced in Shawnee County. During the evening hours of December 3, 1989, defendant broke a window in the Topeka residence of Ida Mae Dougherty and entered. Ms. Dougherty was killed. The following morning, two neighbors, Verne Horne and Lester Haley, became concerned with Ms. Dougherty's welfare and, using Haley's key, entered her residence. Both were taken prisoner by defendant as was Haley's wife, Nancy, who later came over to check on the situation. Defendant forced the three neighbors into Ms. Dougherty's automobile and drove them to rural Douglas County. By virtue of these events, defendant was convicted in Shawnee County of first-degree murder, aggravated burglary, conspiracy to commit aggravated burglary, and three counts of kidnapping. We affirmed these convictions in State v. Baker, 249 Kan. 431, 819 P.2d 1173 (1991).
The case before us concerns the events occurring thereafter in Douglas County. Baker forced the three neighbors to leave the vehicle and made them walk at gunpoint down a worn track. He then ordered them to lie face down on the ground. The three sat down. Ms. Horne told defendant she "could not lie down, that whatever he had to do, he would have to do to my face." Ms. Horne maintained a conversation with defendant and, apparently, convinced him that Ms. Dougherty might not be dead and that, accordingly, he had no reason to kill them. Defendant then left to check on the matter after being assured by Ms. Horne that the three captives would wait one hour for his return.
The Haleys were physically infirm. After the sounds of the Dougherty vehicle died away, Ms. Horne told the Haleys to hide and she would go for help. She had difficulty finding help, but ultimately obtained a ride in a passing vehicle. Ms. Horne directed law enforcement officers to the area where she had left the Haleys, but they were no longer there. On December 5, 1989, the bodies of the Haleys were found about three miles from that location but still in Douglas County. The cause of death in each instance was bullet wounds. Defendant was charged and convicted in Douglas County with two counts of first-degree murder, two counts of aggravated kidnapping, and aggravated assault of Verne Horne. Defendant appeals therefrom.
For his first issue, defendant contends that the Douglas County prosecution for the aggravated kidnapping of the Haleys was barred by the double jeopardy clauses of the United States and Kansas Constitutions as he had previously been convicted of kidnapping these individuals in Shawnee County. He further argues the aggravated kidnapping charges were multiplicitous.
The Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." The double jeopardy clause has been made applicable to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The Fifth Amendment guaranty against double jeopardy provides separate constitutional protection against multiple punishments for the same offense and against multiple punishments for the same crime. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
Section 10 of the Kansas Constitution Bill of Rights also provides a double jeopardy protection ("No person shall be ... twice put in jeopardy for the same offense."). In State v. Mourning, 233 Kan. 678, 679, 664 P.2d 857 (1983), we stated:
Whether the offense is the "same offense" as to double jeopardy protection is a matter of state law. See Brown v. Ohio, 432 U.S. 161, 167, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187 (1977).
In State v. Grissom, 251 Kan. 851, Syl. p 12, 840 P.2d 1142 (1992), we stated the rules with regard to multiplicity:
If there is a break in the action, or if offenses occur at separate times and in separate places, the charges are not multiplicitous. State v. Smith, 254 Kan. 144, Syl. p 1, 864 P.2d 709 (1993).
The determinative question in this issue is whether each victim was kidnapped twice (once in each county), or whether one continuous kidnapping of each of the two victims occurred. Defendant argues that by virtue of (1) the physical infirmities of the Haleys and (2) their promises to remain at the same place for one hour, they were in the status of constructive capture after defendant drove away to check on Ms. Dougherty. This is a novel concept for which defendant cites no authority. The State argues that the Shawnee County kidnapping of the Haleys ended when defendant drove away. The Haleys' recapture by defendant and their transportation to another location some miles away constituted a second kidnapping of the same two individuals which occurred wholly within Douglas County. We agree with the State.
When defendant drove away, there was a break in the action which ended the first kidnapping. The Haleys could have fled successfully, hidden, or been aided. None of these options occurred, but until their recapture they were free. This was a significant break in the events.
In State v. Smith, 254 Kan. 144, 864 P.2d 709, defendant and codefendants believed they had beaten their victim to death in defendant's home. They moved the victim's body to a car to dispose of it in a nearby sand pit. En route, they stopped to get gas. At the gas station the victim, who was in the back seat of the car, sat up and cried out. They left the gas station and subsequently stopped the car. The victim jumped out, only to be deliberately run over by the automobile. The victim survived. 254 Kan. at 146-48, 864 P.2d 709. Defendant was convicted of, inter alia, two counts of attempted second-degree murder. She appealed, contending the two attempted second-degree murder charges were multiplicitous. We found that the acts which constituted the attempted...
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