State v. Butler

• Decision Date: 13 June 1995
• Docket Number: No. 71189,71189
• Citation: 257 Kan. 1043,897 P.2d 1007
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Joel D. BUTLER, Appellant.

Page 1007

897 P.2d 1007

257 Kan. 1043

STATE of Kansas, Appellee, v. Joel D. BUTLER, Appellant.

No. 71189.

Supreme Court of Kansas.

June 13, 1995.

Syllabus by the Court

1. K.S.A. 22-2616(1) provides that the court shall, upon motion of the defendant, transfer the case to another county if it is satisfied that there is so great a prejudice against the defendant in the county where prosecution is pending that he or she cannot obtain a fair and impartial trial.

2. The determination of whether to change venue is entrusted to the sound discretion of the trial court; its decision will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant. The burden is on the defendant to show prejudice exists in the community, not as a matter of speculation, but as a demonstrable reality. The defendant must show that such prejudice exists in the community that it was reasonably certain he or she could not have obtained a fair trial.

3. The coconspirator exception to the hearsay rule provides for the admission, under certain circumstances, of those statements which would be admissible if made by the declarant at a hearing. The application of the rule requires that the moving party establish that the defendant and the declarant were participating in a plan to commit a crime or a civil wrong, that the statement was relevant to the plan or its subject matter 4. Hearsay statements will not be admitted under the coconspirator exception unless evidence, other than the proffered out-of-court statement, establishes a substantial factual basis for a conspiracy between the defendant and the declarant. Where the proof of conspiracy depends upon circumstantial evidence, when the whole of the evidence introduced at trial shows a conspiracy, the statement is admissible.

and that the statement was made while the plan was in existence and before its complete execution or other termination.

5. A hearsay statement is admissible under the coconspirator exception at the preliminary hearing stage where the whole of the evidence at the preliminary hearing establishes a substantial factual basis for a conspiracy between the defendant and the declarant.

6. A preliminary hearing is not a trial of a defendant's guilt or innocence but rather an inquiry as to whether the defendant should be held for trial; its principal purpose is the determination of whether a crime has been committed and whether there is a probability that the defendant committed the crime.

7. Where an accused has gone to trial and has been found guilty beyond a reasonable doubt, any error at the preliminary hearing stage is harmless unless it appears that the error caused prejudice at trial.

8. Under K.S.A. 22-3202(3), two or more defendants may be charged in the same complaint, information, or indictment if they are alleged to have participated in the same act or series of acts constituting the crime or crimes. Two or more defendants may be later joined for trial if the defendants could have been charged in the same complaint, information, or indictment.

9. Severance of trials of codefendants in the criminal case lies within the sound discretion of the trial court. The burden is on the movant to present sufficient grounds to establish actual prejudice. Some of the factors to be considered in determining whether there is sufficient evidence to mandate severance are: (1) that the defendants have antagonistic defenses; (2) that important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) that evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury; (4) that the confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) that one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants.

10. If jury instructions properly and fairly state the law as applied to the facts in the case when considered as a whole and if the jury could not reasonably be mislead by them, the instructions should be approved on appeal.

11. A party may not assign as error the giving or failure to give an instruction absent an objection to the instruction stating the specific grounds for the objection unless the instruction or failure to give the instruction was clearly erroneous.

12. The use of PIK instructions is not mandatory but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.

13. Under K.S.A. 22-3420(3), a trial court must accede to a jury's request to read back testimony. The manner of acceding to the request is subject to the trial court's discretion.

14. Conviction and sentencing for felony murder and the underlying felony of aggravated robbery do not constitute double jeopardy.

15. 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.

Scott M. Price, of Marietta, Kellogg & Price, Salina, argued the cause, and Elizabeth L. Marietta, of the same firm, was with him on the brief, for appellant.

Julie McKenna, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with her on the brief, for appellee.

DAVIS, Justice:

This is a direct criminal appeal from aggravated robbery and felony-murder convictions. The defendant, Joel D. Butler, raises numerous issues which he claims require us to reverse both convictions. However, our review discloses no reversible error, and for the reasons set forth below we affirm the convictions and sentence of the defendant.

Early in the morning on August 10, 1992, the Mid-America Inn in Salina was robbed, and the night clerk, Oliver Bigler, was murdered. Police were called to the scene when Audrey Wright, who arrived at the motel at approximately 4:50 a.m. to open the restaurant, found the door locked and was unable to summon the night clerk.

Officer Glen Soldan of the Salina Police Department testified that he arrived at the motel at 5:30 a.m. and went to check the back door. Approximately 25 feet from the back door, Soldan found a safe lying in the grass near a white plastic ice bucket and a canvas bag. Soldan testified that he attempted to enter the motel through the back door but the deadbolt lock was engaged.

Eventually, the manager of the motel arrived with a key to the motel office. Inside, police found the office area splattered with blood, and they discovered Bigler's body lying in front of the desk. Bigler had sustained severe trauma and lacerations to the head, and police discovered a letter opener embedded in Bigler's neck.

David Klamm, a special agent with the Kansas Bureau of Investigation, searched the office area. He found a broken blood-stained BB gun along with some pieces of wood that looked as if they had come from the stock of the gun. Kelly Robbins, a KBI forensics examiner, testified that she found a blood-stained brick. Officers also found what appeared to be a broken piece of a collapsible antenna. A police dog searched the wooded area east of the motel and discovered a handgun.

An autopsy revealed that Bigler had suffered severe trauma to the head as well as severe stab wounds and lacerations, including a stab wound in the right ear canal. In the opinion of Dr. Norman Macy, death was caused by several severe blows which destroyed the front of the head and tore the brain in half. The head injuries were consistent with those that could have been caused by a brick or gun stock.

Butler was arrested and charged with premeditated murder, felony murder, and aggravated robbery. Three other individuals, Juan Anthony, Artis Swafford, and Jennifer Harmon were also charged as a result of the murder and robbery. Butler, Anthony, and Swafford were tried jointly.

On December 3, 1992, Butler came before the court for his preliminary hearing. Ron Hagan, an agent for the Kansas Bureau of investigation, testified that he had searched the car of Juan Anthony and found blood in the back seat. James Norton, an officer for the Salina Police Department, testified that he discovered a partially smoked Marlboro cigarette on the ground in the corner of the parking lot.

Butler objected to the testimony of Karen Renee Greer concerning statements made by Juan Anthony, contending that the testimony was hearsay. The State argued that the statements should come in under the coconspirator exception found in K.S.A. 60-460(i)(2). After much discussion, the court overruled the objection, finding that there was sufficient evidence on the record to establish a conspiracy. Greer testified that Anthony had told her he, Butler, and Swafford Detective Edward Swanson of the Salina Police Department testified that the motel's safe was found in the grass behind the motel. He stated that one person acting alone would be unable to move the safe. Lieutenant Brian Shea of the Saline County Sheriff's Office testified that after Butler's arrest defendant Butler purchased several brands of cigarettes from the jail: Kools, Marlboro Reds, Marlboro 100's, and a generic brand. The State then recalled Sergeant Sweeney, who...