State v. Buie, 49131
| Decision Date | 25 February 1978 |
| Docket Number | No. 49131,49131 |
| Citation | 223 Kan. 594,575 P.2d 555 |
| Parties | STATE of Kansas, Plaintiff-Appellee, v. Danny Ray BUIE, Defendant-Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a prosecution for murder the law does not presume or imply the existence of premeditation and deliberation from any state of circumstances, but it is not necessary that they be established directly. Premeditation and deliberation may be inferred from the circumstances of the case, provided the inference is a reasonable one. In such case, the jury has the right to make the inference.
2. In a prosecution for first-degree murder, the record is examined and it is held : (1) There was substantial competent evidence to support an inference of premeditation and deliberation; (2) the trial court did not err in failing to instruct the jury on the lesser offense of voluntary manslaughter; and (3) no trial errors requiring the granting of a new trial are shown.
Cortland E. Berry, Kansas City, argued the cause, and Elmer C. Jackson, Jr., Kansas City, was with him on the brief for defendant-appellant.
Philip L. Sieve, Chief Deputy Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on the brief for plaintiff-appellee.
This is a direct appeal from a conviction of murder in the first degree (K.S.A. 21-3401). Because of the issues raised on the appeal it is necessary to set forth the factual circumstances in some detail. The tragic event giving rise to this prosecution took place shortly after 11:00 p. m. on the evening of August 20, 1976, when a cabdriver, Ferry Cathey, was shot and killed in his cab in Kansas City, Kansas. The state's evidence showed that at approximately 11:00 p. m. on the fatal evening a Yellow Cab stopped across the street from Rock's Lunch located near 13th and Wood Avenue in Kansas City. There were no other persons in the cab except the cabdriver, Ferry Cathey. After the cab stopped, the defendant, Danny Ray Buie, got up from where he was sitting near Rock's Lunch and walked over to the parked cab. One witness for the state testified that Buie stood outside the cab talking with the driver for five or more minutes. Another witness testified that Buie immediately got into the cab and the cab remained parked thereafter for six to eight minutes. On the night of the homicide the defendant, a young black male, was wearing dark pants or jeans and a white tank top or T-shirt with the red number "44" printed on it. Buie was observed entering the cab from the left rear door. Neither of the witnesses observed him carrying any weapon.
The witnesses saw the cab drive away with Buie aboard. A few minutes later the cab was observed at 11th and Walker Avenue, approximately four blocks from the point where defendant had entered the cab. A witness, Viola Simmons, heard two gunshots, and her two sons went outside to investigate. One of the young men heard the two shots and a third shot as he observed the cab coming across the railroad tracks and then crash into the curb. The boys returned inside momentarily and then went outside again. One of the boys saw a young black male wearing a white tank shirt with the number "44" printed on it running away from the cab.
The first person who actually reached the cab was James Bell. He saw the cab go through the intersection, and then heard a crash. As he approached the cab he observed a black person run from the cab. The person was wearing a white T-shirt with either "11" or "44" printed on it. The person did not appear to have a weapon. All of the cab doors were closed when Bell arrived. He could not smell any gunpowder in the cab. He used the cab radio to call for help. The second person to arrive at the cab was Belinda Spencer. As she approached the cab, she saw a black male running from the cab. She observed him running back to the cab and then running away again. He appeared to be wearing dark pants and a white T-shirt. Mrs. Spencer opened the right front door and unsuccessfully attempted to give mouth-to-mouth resuscitation to the cabdriver, who was still alive. Another witness also saw a person running from the cab with the number "44" printed on his shirt.
The police arrived on the scene a few minutes after the crash. There was broken glass on the railroad tracks which the cab had crossed before it struck the curb. The cab had three flat tires. No shell cases were found in or near the cab. The left front window of the cab was broken and glass was found both inside and outside the cab. The cabdriver was found lying in the front seat. His billfold and money were found on his person. No weapons were found in the cab or in the surrounding area. The defendant Buie lived about one and one-half blocks from the scene of the crash.
The final witness for the state was Dr. Angelo Lapi, a consulting pathologist for the Wyandotte county coroner. At the request of the coroner, the doctor performed an autopsy on the body of Ferry Cathey. He testified that the victim suffered six gunshot wounds and one stab wound. The gunshot wounds were as follows:
(1) A wound in the left side of the neck which went straight across from left to right. The bullet emerged just above the right shoulder blade in the back;
(2) A wound in the right chest over the seventh rib on the side just in front of the right arm. This bullet went down into the chest cavity and then penetrated the liver and stomach;
(3) A wound in the right chest in the space between the third and fourth rib. This bullet went straight across, through the lower lobe of the right lung, and entered the heart. From there it went through the left lung and was found in the left armpit;
(4) A wound which entered on the top of the right shoulder and went straight down into the arm. The bullet shattered the bone of the right arm and exited just above the right elbow;
(5) A wound directly into the back of the right arm; and
(6) A wound that entered the back of the right shoulder. The bullet went strait to the right side under the skin.
In addition to the bullet wounds, the doctor found a slight stab wound in the right chest area just under the right arm. Five .38-caliber bullets were recovered by the doctor. Only one of the bullet wounds proved immediately fatal and the doctor testified that there was no way that he could determine when the wounds occurred or their sequence. Following the testimony of Dr. Lapi, the state rested.
For the defense, Etta Goss, a neighbor of Ferry Cathey, testified that on the...
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...a reasonable one. In such case, the jury has the right to make the inference. (Craft v. State, 3 Kan. 450 [1866].)" State v. Buie, 223 Kan. 594, 597, 575 P.2d 555 (1978). Consequently, both premeditation and homicide may be supported by circumstantial evidence if that evidence is sufficient......
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