State v. Beard, 48256
| Decision Date | 23 July 1976 |
| Docket Number | No. 48256,48256 |
| Citation | 220 Kan. 580,552 P.2d 900 |
| Parties | STATE of Kansas, Appellee, v. Little Jim BEARD, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a prosecution for homicide, where self-defense is an issue the trial court did not err, in the light of the evidence adduced, in submitting instructions to the jury framed substantially in the language of K.S.A. 21-3211, 21-3214(2) and 21-3214(3)(a) and (b).
2. On redirect examination a witness may be asked questions to clarify or modify statements made on cross-examination, or to explain or rebut the effect of such new matter brought out on cross-examination, even though the witness had not testified concerning such matters on direct examination.
3. Admissibility of physical evidence is within the sound discretion of the court and is to be determined by the court on the basis of its relevance and connection with the accused and the crime charged.
4. A party who offers an object into evidence must show that it is reasonably certain that there have been no material alterations of the object since it was first taken into custody. It is not necessary that the object should have been kept continuously under lock-and-key or continuously sealed up nor is it necessary that all possibility of it being tampered with should be excluded.
5. In a criminal case, the issue on appeal is not whether the evidence establishes guilt beyond a reasonable doubt, but whether the evidence is sufficient to form the basis for a reasonable inference of guilt when viewed in the light most favorable to the state.
Robert A. DeCoursey, Kansas City, argued the cause and was on the brief for appellant.
Thomas L. Boeding, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Nick A. Tomasic, Dist. Atty., and Anita Mortimer, Legal Intern, were with him on the brief for appellee.
Defendant-appellant, Little Jim Beard, appeals from jury convictions on two counts of second degree murder. The charges stemmed from the shooting of Neal Wheeler and Edward Peltier in Wheeler's Kansas City apartment on June 2, 1974.
The evidence disclosed that during the day, preceding the night of the shootings, the defendant and the two deceased had been drinking and taking drugs. Sometime around midnight the defendant and the two deceased became embroiled in a fight. According to the testimony of Gerald Belgarde, a cousin of the deceased Edward Peltier, the defendant, the two deceased, and Belgarde were sitting on the front porch of Belgarde's house which was next door to the Wheeler apartment. Peltier left the group and when he returned a few minutes later he told the group, according to Belgarde, that he had gone to the Wheeler apartment and found Loyce (Mrs. Wheeler) passed out. Peltier accused the defendant of giving Mrs. Wheeler some bad or 'trash' drugs. The fight ensued and, after taking a beating from Wheeler and Peltier, defendant left the premises. About an hour later, defendant returned to the neighborhood and went to the Wheeler apartment where he encountered Mrs. Wheeler.
Mrs. Wheeler testified that defendant was scratched and cut and appeared to be angry and that he told her 'I told them I would be back.' Wheeler and Peltier learned that defendant had returned to the Wheeler apartment and followed him within a few minutes. Mrs. Wheeler left by a back stairway and went to a neighbor's apartment and hysterically announced 'There's going to be a shooting.' The neighbor called the police. Two shots were heard coming from the Wheeler apartment. Police arrived within a few minutes after the shooting and apprehended defendant in the hall outside the Wheeler apartment. A nine-shot .22 caliber revolver was tkaen from defendant. It was loaded, had two spent cartridges and smelled as though it had been recently fired. Defendant was arrested and charged with two counts of murder in the first degree.
Defendant specified four points of error on appeal. He first attacks the instruction on self-defense given by the trial court. No objection was made at trial, but defendant now claims the instruction was clearly erroneous. The defendant argues the instruction insinuates that defendant was the aggressor when, in fact, the evidence showed the victims to be the attacking parties. Defendant's arguments are without merit. The instruction in question was given substantially in the words of PIK (Criminal) §§ 54.17; 54.21 and 54.22. It reads:
'A person is justified in the use of force to defend himself against an aggressor's imminent use of unlawful force to the extent it appears reasonable to him under the circumstances then existing.
'A person is not permitted to provoke an attack on himself with the specific intention to use such attack as a justification for inflicting bodily harm upon the person he provoked and then claim self-defense as a justification for inflicting bodily harm upon the person he provoked.
'A person who initially provokes the use of force against himself is not justified in the use of force to defend himself unless either
'(a) He has reasonable ground to believe that he is in present danger or death or great bodily harm, and he has used every reasonable means to escape such danger other than the use of force with (which) is likely to cause death or great bodily harm to the other person; or
'(b) He has in good faith withdrawn and indicates clearly to the other person that he desires to withdraw and stop the use of force, but the other person continues or resumes the use of force.
'Again, the defendant has no burden of establishing self-defense rather, it is simply a question of whether, considering the evidence as to self-defense along with all of the other evidence in the case the State has convinced you by evidence to your satisfaction beyond a reasonable doubt that the defendant is guilty of the crime charged against him or of one of the lesser included offenses.'
The instruction accords with the pertinent statutes (K.S.A. 21-3211 and 21-3214) and is a correct statement of the law. The instruction, as we read it, does not declare the defendant to be the aggressor, but merely informs the jury of the statutory provisions pertaining to the use of force (K.S.A. 21-3214(3)), as well as instructing the jury as to the right of self-defense and limitation on the force to be used by one in defending himself from unlawful attack. Whether defendant was an aggressor remained a question for the jury. There was ample evidence in this case which would have justified the jury in finding that defendant was an aggressor.
In several recent cases we have considered the new code provisions relating to the doctrine of self-defense (K.S.A. 21-3211, et seq.) and found them generally to be a condification of the common law rules on the subject. In State v. Stokes, 215 Kan. 5, 523 P.2d 364, we discussed the new statutes and found no error in PIK instructions given in the language thereof. (See, also, State v. Blocker, 211 Kan. 185, 505 P.2d 1099.) The instruction given was applicable to the...
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...on redirect examination a witness may be asked questions to clarify or modify statements made on cross-examination. See State v. Beard, 220 Kan. 580, Syl. p 2, 552 P.2d 900 (1976). This point is without The appellant contends the State was improperly allowed to impeach its own witness by le......
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...and is to be determined by the court on the basis of its relevance and its connection with the accused and the crime charged." State v. Beard, 220 Kan. 580, Syl. p 3, 552 P.2d 900 (1976). In State v. Ji, 251 Kan. at 15, 832 P.2d 1176, we "[W]hen a physical object is offered into evidence an......
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