State v. Barncord, 57842
| Decision Date | 31 October 1986 |
| Docket Number | No. 57842,57842 |
| Citation | 240 Kan. 35,726 P.2d 1322 |
| Parties | STATE of Kansas, Appellee, v. Elmer E. BARNCORD, III, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The amendment of an information to include felony murder is not necessary because an information in the ordinary form charging that a killing was done with malice aforethought, deliberation, and premeditation is sufficient to sustain a conviction of murder in the first degree committed in the perpetration of a felony. Following State v. Foy, 227 Kan. 405, 408, 607 P.2d 481 (1980).
2. An information which charges an offense in the language of the statute or its equivalent is sufficient. K.S.A. 1985 Supp. 22-3201(2). On the facts presented it is held: The language in the original complaint stating the aggravated robbery was done "by inflicting great bodily harm" upon the victim is equivalent in meaning to the words "by force"; therefore, an amendment to the information to add the words "by force" was not necessary.
3. Unnecessary allegations in an information, such as the caliber of a pistol used in a robbery, are surplusage and failure to prove the exact nature of these allegations does not constitute a fatal defect. Under the facts of this case, the defendant's substantial rights were not prejudiced by amending the charge of aggravated robbery from a specific description of a weapon, "a black handled buck knife," to a general description, "a knife."
4. Evidence not disclosed to the defendant before trial is not suppressed or withheld by the State if the defendant has personal knowledge thereof, or if the facts become available to him during trial and he is not prejudiced in defending against them.
5. Where an unsolicited, unresponsive, and improper remark is given by a witness to a proper question resulting in the erroneous disclosure of evidence, the case turns on whether a limiting instruction was given and the degree of prejudice to the defendant. Held: Where the trial court immediately admonished the jury to disregard a witness' remark inferentially disclosing the defendant's prior criminal record, the erroneous disclosure of that evidence had little, if any, likelihood of affecting the outcome of the trial.
Ronald E. Wurtz, of Topeka, argued the cause and was on the brief, for appellant.
Gene M. Olander, Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Sue Carpenter, Asst. Dist. Atty., were with him on the brief, for appellee.
This is a direct appeal from jury convictions of first-degree murder (K.S.A. 21-3401) and aggravated robbery (K.S.A. 21-3427). The issues on appeal are whether amendments made to the criminal complaint were prejudicial, whether there was prosecutorial misconduct, and whether the jury was properly instructed.
On the night of August 14, 1984, the body of Carl James Baldwin was discovered on a stairway of the Kansas Avenue bridge in Topeka, Kansas. He had been stabbed 65 times. Carl Baldwin had last been seen in the company of the defendant, Elmer "Butch" Barncord, and Henry Johnson at the Cowboy Palace, a local bar located approximately one-half mile from the place where the body was discovered. Mr. Baldwin was buying drinks at the bar and flashing a large amount of money. When the three men left the bar together, one witness noted the defendant was carrying a bone-colored fixed knife in his back pocket. Butch and Henry returned to the bar approximately fifteen to twenty minutes later, without Carl Baldwin. Dark stains were observed on the defendant's jeans. The two men went into the restroom together where they remained for quite a while. Bloody towels were later discovered in the restroom. Henry was heard to make a statement to the effect that they had stabbed Baldwin at the north end of the Kansas Avenue bridge. Butch was heard to say, "We just mugged somebody and what it got us was five dollars." A call was made to the police to report that a person at the bar had blood on his clothing. Henry was arrested at the bar. The defendant was arrested approximately an hour later. He was wearing jeans which were soiled with a very deep red color. The defendant gave a statement to police that he had stabbed Baldwin. However, at trial the defendant testified Henry had stabbed Baldwin while the defendant watched in shock; finally, the defendant stabbed Henry in the leg in order to make Henry stop stabbing Baldwin.
The first issue on appeal has to do with three amendments made to the original complaint by the State during the course of the trial: (1) an amendment made to the charge of first-degree premeditated murder to include felony murder; (2) an amendment made to the charge of aggravated robbery to add the words "by force"; and (3) a second amendment made to the charge of aggravated robbery to delete the language "black handled buck knife," leaving a description of the dangerous weapon used as "a knife."
At the end of the preliminary hearing held August 31, 1984, the State orally moved to amend Count I of the original complaint to include both premeditated murder, as was originally charged, and, in the alternative, felony murder. The district court judge, William Carpenter, took the matter under advisement, briefs were submitted, and on September 27, 1984, the court entered an order granting the State's oral motion to amend. The defendant's trial was originally set for November 8, 1984, but was continued due to the illness of the prosecutor, Sue Carpenter. On November 26, 1984, the first day of the rescheduled trial, at 4:53 p.m., the State filed an amended complaint. Two days later, after voir dire but before the jury was impaneled, the trial judge, Franklin Theis, noted to counsel problems he perceived with the amended complaint of Count II, the aggravated robbery charge: the words "by force" were omitted which are required under the decision of State v. Howell & Taylor, 226 Kan. 511, 601 P.2d 1141 (1979). It was at this time defense counsel first became aware an amended complaint had been filed.
The defendant first argues it was error to allow the amendment of felony murder to be filed during trial after the defense had prepared only for the crime of premeditated murder, thinking the State had abandoned its intention to pursue the alternative charge of felony murder.
Actually, the amendment to include felony murder was not necessary. In State v. Foy, 227 Kan. 405, 607 P.2d 481 (1980), the State amended the information to allege felony murder less than a week before trial. This court ruled an amendment to the information was not actually necessary, for an information in the ordinary form charging that a killing was done with malice aforethought, deliberation, and premeditation is sufficient to sustain a conviction of murder in the first degree committed in the perpetration of a felony. 227 Kan. at 408, 607 P.2d 481. See State v. Foy, 224 Kan. 558, 566, 582 P.2d 281 (1978); State v. Turner, 193 Kan. 189, 195, 392 P.2d 863 (1964).
Furthermore, had an amendment been required, K.S.A. 1985 Supp. 22-3201(4) provides a two-part analysis to determine whether an amendment should be permitted:
"The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced."
The defendant agrees no different or additional crime was charged. Premeditated murder and felony murder are not separate and distinct offenses. Rather, a prosecution under the felony-murder rule changes the type of proof necessary to prove first-degree murder. State v. McCowan, 226 Kan. 752, 759, 602 P.2d 1363 (1979), cert. denied 449 U.S. 844, 101 S.Ct. 127, 66 L.Ed.2d 53 (1980). The State is relieved of the burden of proving premeditation and malice when the victim's death is caused by the killer while he is committing another felony. State v. Underwood, 228 Kan. 294, 302-03, 615 P.2d 153 (1980).
Addressing the second half of K.S.A. 1985 Supp. 22-3201(4), a factor to be considered bearing upon prejudice to the substantive rights of the defendant is whether the amendment came as a surprise to the defendant. State v. Johnson, 223 Kan. 185, 190, 573 P.2d 595 (1977); State v. Hill, 211 Kan. 239, 242, 505 P.2d 704 (1973). Here, the defendant knew Judge Carpenter had previously granted the State's oral motion to amend the complaint. Evidence at the preliminary hearing supported both theories and defense counsel heard that evidence. After the trial was continued due to the prosecutor's illness, defense counsel noted to the court no amendment had been formally filed and the court directed the State to file the amendment. Defendant cannot claim the amendment came as a surprise and the defendant has failed to establish how he was prejudiced by the amendment.
Turning to the amendment made to Count II, the aggravated robbery charge, to include the language "by force," the defendant argues the complaint was fatally defective, thus the court had no jurisdiction from the beginning and had no authority to amend the complaint.
In a prosecution for a felony, the indictment or information is the jurisdictional instrument upon which an accused stands trial. A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void. State v. Bird, 238 Kan. 160, 166, 708 P.2d 946 (1985); State v. Robinson, Lloyd & Clark, 229 Kan. 301, 304, 624 P.2d 964 (1981). It is fundamental that if the facts alleged in an information do not constitute an offense within the terms and meaning of the statute upon which it is based the information is fatally defective. State v. Howell & Taylor, 226 Kan. at 513, 601 P.2d 1141; State v. Doyen, 224 Kan. 482, 488, 580 P.2d 1351 (1978); State v. Bishop, 215 Kan. 481, 482, 524 P.2d 712 (1974).
In State v. Howell & Taylor, 226 Kan. 511, 601 P.2d 1141, the case upon which the district...
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