State v. Chase

• Decision Date: 23 January 1971
• Docket Number: No. 45783,45783
• Citation: 480 P.2d 62,206 Kan. 352
• Parties: STATE of Kansas, Appellee, v. Dale Albert CHASE, Appellant.
• Court: Kansas Supreme Court

Page 62

480 P.2d 62

206 Kan. 352

STATE of Kansas, Appellee, v. Dale Albert CHASE, Appellant.

No. 45783.

Supreme Court of Kansas.

Jan. 23, 1971.

Syllabus by the Court

In a prosecution for murder in the first degree and robbery in the first degree, wherein the defense was insanity at the time of the commission of the offenses, the record is examined and it is held: (1) The trial court clearly and adequately instructed the jury concerning the intent necessary to be established by the state; (2) the trial court did not err in excluding from the evidence video tape recordings of interviews with defendant by an examining psychiatrist, under the surrounding facts and circumstances related in the opinion; and (3) the verdict is sustained by ample competent evidence.

Scott E. Jarvis, Topeka, argued the cause and was on the brief for appellant.

Gene M. Olander, County Atty., argued the cause, and Kent Frizzell, Atty. Gen., was with him on the brief for appellee.

KAUL, Justice.

The defendant, Dale Albert Chase, appeals from convictions by a jury of murder in the first degree as defined in K.S.A. 21-401 (now K.S.A.1970 Supp. 21-3401) and of robbery in the first degree as defined by K.S.A. 21-527 (now K.S.A.1970 Supp. 21-3427).

The state's evidence shows that James E. Long was killed by two gunshots to the back of the head and robbed on May 15, 1968, in the east part of Topeka. Mr. Long was the driver of a Yellow Cab. Soon after midnight, the morning of May 15, Mr. Long answered a call from the Hotel Jayhawk where defendant and two companions, Kenneth Arthur Roth and Mark DeWitt, were picked up as purported taxi fares.

The following day the taxicab was found in a wooded area partly submerged in a pond near the southeast edge of Topeka. The body of Mr. Long was found nearby.

The events leading up to the criminal prosecution are undisputed and can be stated briefly.

The facts are established by defendant's testimony given in the previous trial of Roth. Defendant's entire testimony on direct and cross-examination, given in the Roth trial, was read to the jury in the instant case. No objection was made to this procedure. Defendant relates the events culminating in the murder and robbery in his testimony, which is narrated in defendant's abstract as follows:

'* * * the boys had met at the Topeka YMCA, had gone pilfering automobiles, and then went to the Jayhawk Hotei, where a taxi cab was called. They discussed robbing the cab driver, and Roth stated that the cab driver must be killed. Chase objected to killing the cab driver, at which time Roth, who had earlier been given the gun by Chase, gestured toward Chase and stated that if Chase wanted to 'chicken out', he could be killed, too. The cab arrived and after making at least one error in direction, arrived at the field behind the Hudson School. DeWitt pretended to be getting money to pay the cab driver. The cab driver glanced to the front of the cab, and Roth shot him in the back of the head. Chase shouted, 'Shoot him again', and Roth fired again. Chase shouted, 'Shoot him again', and Roth fired again. Two of the shots apparently struck the cab driver. Roth and DeWitt exited the car and Chase knockout the interior lights. Roth rifled the pockets of the cab driver, taking $27.11. Chase moved the cab down to the pond, where one of the boys gave it a shove and it went in. As Chase was familiar with the area, he led the boys to a location on the other side of the wooded area where a car that had been stolen some several days earlier had been stashed. This car was used to return to the vicinity of the YMCA. Chase took his motor cycle and went hime, and after a fitful night, the following morning returned to the scene of the crime. At that time he further wiped down the taxi cab.'

Because of the seriousness of the crime charged and the nature of the issues on appeal, we have secured and examined defendant's verbatim testimony. In addition to defendant's testimony narrated in this record, we have learned that he testified that after returning to the YMCA, the three boys divided the money, then Roth gave the gun back to defendant. Defendant hid the gun and a box of cartridges in the garage at his home.

After defendant was charged by information, a commission was appointed to examine defendant. The commission determined that defendant was competent to stand trial.

Thereafter, defendant's trial was commenced on June 2, 1969, and extended through June 4. The principal defense was insanity at the time of the criminal offense and several expert witnesses were called by defendant in support thereof. The defendant also claimed that he was threatened by Roth. The trial court fully instructed on coercion and voluntariness and there is no cmplaint made on appeal in this regard.

As previously indicated, the jury returned a verdict of guilty on both charges and recommended a sentence of life imprisonment on the murder charge.

After a motion for a new trial was heard and overruled, defendant was sentenced to the Kansas State Industrial Reformatory for a term of not less than ten nor more than twenty-one years on the robbery charge and life imprisonment on the murder charge. The sentences were directed to run concurrently.

On appeal defendant makes three specifications of error which will be examined in the order presented.

Defendant first contends the instructions given by the trial court did not adequately describe the area of mens rea, general criminal or felonious intent within the context of this case.

In this connection defendant requested the submission of the following instruction:

'In order to find the Defendant guilty of the acts alleged in the Information in this case, you must find not only that he committed those acts, but also that he committed them willfully and knowingly.

'Willfullness implies bad faith and an evil motive. An act is done knowingly if it is done voluntarily and purposely and not due to mistake, inadvertance, or some other innocent reason.'

The complete instructions are included in the abstract and have been carefully examined. We believe a recitation thereof is unnecessary. It will suffice to say that intent as an element in each of the offenses charged was carefully explained and the jury was fully advised concerning the application thereof to the charges in the information. The instructions include definitions of all the terms used in describing intent as applied to robbery and first degree murder committed by a premeditated killing or committed in the perpetration of a robbery or a felony.

The trial court clearly and adequately instructed the jury in regard to the necessary intent to be established by the state. The submission of defendant's requested instruction would have been superfluous.

Defendant next contends the trial court erred in excluding from the jury two video tapes which the defendant says illustrated diagnostic psychiatric techniques used on defendant by Dr. Joseph Satten, a psychiatrist.

The question arose during Dr. Joseph Satten's direct testimony. Dr. Satten testified that he with two other psychiatric physicians were appointed as a commission to inquire into the mental capacity of defendant and to report to the court whether he had any mental illness and whether that mental illness interfered with his capacity to stand trial. Interrogation of Dr. Satten proceeded as follows:

'Q. And what, in general, were the findings of that Commission? A. The commission found that he was mentally ill, but that the mental illness did not interfere with his capacity to stand trial.

'A. I used a particular drug called sodium amytal. That is often helpful in relaxing a patient and getting around mental blocks and sometimes is helpful in recovering memories where there are memory gaps.

'Q. Was this interview recorded in any manner? A. I recorded the interview on audio and video tape as well as the interview immediately before the drugs so I could compare his responses with drugs and without drugs.

'Q. Was this recording done as a part of your diagnostic procedure? A. Yes and no. Yes, it was helpful to have a recording so I could go back and look at it the second time. No, I am interested in the research and in being able to compare at a later date recorded interviews of various individuals who have been accused of homicide.

'Q. Were those the only two purposes in recording the interviews at that time? A. Well, there was a third potential purpose, namely, that it might be helpful to the court and jury in explaining my examination and my findings.' Dr. Satten then recited his findings and related the results of his evaluation of the defendant. This portion of Dr. Satten's testimony will be discussed in connection with the next point to be considered in this opinion.

At the close of Dr. Satten's direct examination the following appears:

'Q. Dr., at this point, in your opinion, would it be helpful for the court and jury to view the video material that is available in the court room? A. Why, I think it would. I have tried to describe as accurately and as clearly as I can the nature of the examination and my testing and probing to try to get at what was going in his mind. But I think that seeing the real thing, or at least some reasonable sample of the real thing, might give a better picture.

'Mr. Jarvis: Your honor, at this time, then, we would request permission of the court to display this material.

'The Court: How long does this take, Doctor?

'The Witness: There are two sections, one approximately an hour without a drug, and the other approximately an hour and a quarter under the influence of the drug.'

At this point, the county attorney objected stating that the video tapes were not the best evidence, the jury was not trained in the evaluation of sodium amytal or psychiatric operations and that the state could not cross-examine the video tapes. The court recessed and during the noon hour viewed the two video tapes. The trial...