State v. Chatmon

• Decision Date: 21 October 1983
• Docket Number: No. 55138,55138
• Citation: 234 Kan. 197,671 P.2d 531
• Parties: STATE of Kansas, Appellee, v. Louis CHATMON, Appellant.
• Court: Kansas Supreme Court

Page 531

671 P.2d 531

234 Kan. 197

STATE of Kansas, Appellee, v. Louis CHATMON, Appellant.

No. 55138.

Supreme Court of Kansas.

Oct. 21, 1983.

Syllabus by the Court

1. The duty to instruct on a lesser included crime arises only when there is evidence under which the defendant might have been reasonably convicted of the lesser included offense.

2. Kidnapping under proper circumstances is a lesser included offense of aggravated kidnapping; aggravated kidnapping (K.S.A. 21-3421) requires one extra element beyond kidnapping (K.S.A. 21-3420). Aggravated kidnapping requires that bodily harm be inflicted upon the person kidnapped.

3. The trial court does not err in refusing to give an instruction on the lesser included offense of kidnapping where there is no evidence to support the finding of the lesser included offense.

4. When the defendant opens a subject on direct or cross-examination, the State may develop and explore various phases of that subject.

5. A conviction upon a charge not made in the information or properly brought before the court is a clear denial of due process under the Fourteenth Amendment to the Constitution of the United States.

6. In a criminal action the trial court must not only have jurisdiction over the offense charged, but it must also have jurisdiction of the question which its judgment assumes to decide. State v. Minor, 197 Kan. 296, Syl. p 4, 416 P.2d 724 (1966).

7. A defendant does not always have to be convicted of the crime he intends to facilitate by an abduction to be convicted of kidnapping.

Carl E. Cornwell, Kansas City, argued the cause and was on brief for appellant.

John McNally, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Nick A. Tomasic, Dist. Atty., and Paul Theroff, Asst. Dist. Atty., were with him on brief for appellee.

LOCKETT, Justice:

Louis Chatmon, the defendant, appeals from convictions of aggravated kidnapping, K.S.A. 21-3421, and battery, K.S.A. 21-3412, after a jury trial. He was sentenced pursuant to the habitual criminal act to three life sentences to run concurrently for the aggravated kidnapping, and was sentenced to a maximum of six months in jail for the battery.

On the evening of May 28, 1981, Ms. M. met several friends at the Terrace Club in Kansas City, Kansas. After a half hour Ms. M. and four others went to a bar called the Pawn Shop where they remained for approximately 2 1/2 to 3 hours. Then Ms. M. and three of the group went to the Partners Bar. The group had one drink at Partners and left at approximately 10:15 p.m. Ms. M. and Joe Meredith were both hungry and agreed to eat at the Wyandotte Cafe. Meredith was to drop one of the group off at the friend's home and then meet Ms. M. at a Kentucky Fried Chicken restaurant at 110th and State Street. Ms. M. would then follow Meredith to the Wyandotte Cafe where they would eat.

Ms. M. had trouble finding the Kentucky Fried Chicken restaurant. Believing she had gone too far down State Street, she turned her car around. While returning to 110th Street, a car quickly moved in front of her. The driver turned on his car's blinking lights and waved Ms. M. over to the side of the road. The defendant got out of his car, walked back to Ms. M.'s car, and identified himself as a policeman, quickly showing his billfold. Defendant said he stopped her because she was swerving across the road. Ms. M. replied she was looking for the Kentucky Fried Chicken restaurant and perhaps was not being attentive to her driving. The defendant offered to lead her to the restaurant.

When Ms. M. and the defendant arrived at the chicken restaurant, Meredith and a state trooper were already there. The trooper had stopped to question Meredith because an adjacent liquor store had been burglarized several times in the recent past. The defendant had a short conversation with Meredith concerning the trooper's presence. Ms. M. warned Meredith that the defendant was a policeman. Meredith left for the Wyandotte Cafe in his car with Ms. M. following him in her car, and the defendant followed Ms. M. in his car.

After several turns, the defendant passed Ms. M. and positioned himself between Meredith's car and Ms. M.'s car. Ms. M. tried to follow Meredith's car but eventually made a wrong turn and ended up behind only the defendant's car. She followed the defendant until he waved her over. The defendant departed his car, went back to Ms. M.'s car, got in on the passenger's side, and told her to drive. Defendant said he would direct her to Meredith's house, having found out where Meredith lived when he spoke with Meredith at the restaurant parking lot. Stopping at a stop sign, Ms. M. told the defendant that she was doing fine and wanted him to get out of her car. The defendant said he was not getting out. Defendant took off Ms. M.'s glasses and struck her twice across the face, once in the eye, and once near the chin. Ms. M. grew hysterical and the defendant grabbed her by the throat and pushed her down between the bucket seats. The defendant started to strangle her and stated he wanted her to calm down, and that he would let her up if she would take him anywhere he wanted to go. The defendant said he was going to have sex with her. Ms. M. tried to scratch the defendant's face and after a short struggle, the defendant let her up. The defendant then gave Ms. M. her glasses because she could not see to drive without them.

While Ms. M. drove, the defendant began drinking liquor from a bottle. Defendant stated several times he was going to have sex with Ms. M. At one point defendant ordered her to stop the car so he could relieve himself. When Ms. M. refused to take the keys out of the ignition, the defendant tried to pull them out but had trouble removing the keys. The defendant hit Ms. M. across the face, forcing her to give him the keys. While the defendant was outside the car, Ms. M. retrieved her extra set of keys from her purse in the back seat. As she started the ignition and began to move away, the defendant was able to grab the door handle and jump back into the car. The defendant was angry, but did not strike Ms. M.

Later they stopped again so the defendant could relieve himself. A police car pulled up behind them. The defendant threatened to shoot the policeman and Ms. M. if they were stopped. They were not stopped by the police officer as they drove onto I-70. Exiting I-70 at the Turner Exit, Ms. M. told the toll collector the defendant was a policeman and needed a cab. The defendant paid the toll and said Ms. M. would take him.

Shortly after leaving the Turner Exit, the defendant told Ms. M. to pull over. He then forced her to kiss him, fondled her breasts, and unbuttoned her blouse. Ms. M. pushed him away and buttoned her blouse. The two talked there for approximately 20 minutes.

The defendant then directed Ms. M. back onto State Street. Between 3:00 and 3:30 a.m., Ms. M. needing to use a restroom, stopped at a gas station. At the gas station, Ms. M. told the defendant she was not going to take him anywhere else. She asked the gas station attendant to call the defendant a cab. A man filling up his car asked Ms. M. if the defendant was bothering her. When the defendant walked over to the man to respond, Ms. M. told the attendant she had been kidnapped and to call the police. The police arrived soon after and took both Ms. M. and the defendant to a police substation. Ms. M. estimated she was with the defendant for 3 1/2 to 4 hours.

Ms. M. went to a hospital at noon on May 29, 1981, and photographs were taken of her injuries. At the trial the examining doctor testified Ms. M. had soft tissue injuries with bruises about her mouth, some hemorrhaging in her left eye and and bruises on her left chest, left arm, and the left side of her back. The doctor testified the eye injury was a severe injury, and the bruises were severe, being quite swollen and discolored. Ms. M. was having spasms of the jaw muscles and could not fully open her mouth when examined by the doctor.

The defendant testified he never hit Ms. M. He said he gave her directions when she waved him down and then followed her to the Kentucky Fried Chicken restaurant after giving the directions. Defendant left the restaurant behind Meredith and Ms. M. After making a turn he realized Ms. M. was following him. Ms. M. pulled in front of him and waved for him to stop. Ms. M. stated she needed gas and asked him to ride with her to help find a gas station. They talked, rode around, and eventually ended up at the gas station where the police were called.

The defendant raises five issues on appeal.

The defendant contends the court erred in failing to instruct the jury on kidnapping, K.S.A. 21-3420, a lesser included offense of aggravated kidnapping, K.S.A. 21-3421. K.S.A. 21-3107(3) states:

"In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to."

(The statute was amended by the 1983 legislature. The amended section makes a lesser included offense instruction unnecessary if the defendant objects to the instruction. L.1983, ch. 107, sec. 1.)

The duty to instruct on a lesser included crime arises only when there is evidence under which the defendant might have been reasonably convicted of the lesser included offense. State v. Everson, 229 Kan. 540, 542, 626 P.2d 1189 (1981). The test for giving of the lesser included instruction is not whether any theory arises under which a person could be found guilty or innocent, but whether there is sufficient evidence to support the giving of the instruction of the lesser charge. State v. Garcia, 233 Kan. 589, Syl. p 8, 664 P.2d 1343 (1983). The evidence supporting the lesser offense,...