State v. Chism, s. 60952

• Decision Date: 08 July 1988
• Docket Number: Nos. 60952,60770,s. 60952
• Parties: STATE of Kansas, Appellee, v. Gregory A. CHISM, Appellant. STATE of Kansas, Appellee, v. Carl J. WENZEL, Appellant.
• Court: Kansas Supreme Court

Page 105

759 P.2d 105

243 Kan. 484

STATE of Kansas, Appellee, v. Gregory A. CHISM, Appellant.

STATE of Kansas, Appellee, v. Carl J. WENZEL, Appellant.

Nos. 60952, 60770.

Supreme Court of Kansas.

July 8, 1988.

Syllabus by the Court

1. A trial court generally has the duty to instruct on the full range of lesser included offenses. Where the commission of a felony results in a death, however, the normal rule on lesser included offense instructions does not apply. The felonious conduct in such a case is held to supply the elements of premeditation and intent that are otherwise required to establish first-degree murder. If the undisputed evidence is not weak or inconclusive, but instead would convince a reasonable person that a felony had been committed, instructions on lesser offenses are not warranted.

2. Where a killing clearly occurs within the res gestae of a felony a jury need not be instructed on time, distance, and the causal relationship between the underlying felony and the killing.

3. It is necessary to show both intent and an overt act toward the commission of the crime to prove an attempt. The determination of the existence of an overt act is a jury function. There is no definitive rule as to what constitutes an overt act; each case depends on the inferences a jury may reasonably draw from the facts. It must be shown the defendant took a step beyond mere preparation so that some appreciable fragment of the crime was committed.

4. Whether a felony is inherently dangerous is to be determined in the abstract, rather than by the circumstances in a particular case. Where the underlying felony is one inherently dangerous to human life, the foreseeability requirement is established as a matter of law.

5. All participants to an underlying felony are principals to felony-murder when death occurs. The rules of felony murder thus apply equally to all participants.

6. A victim's actions in trying to stop a felony are irrelevant to a felony-murder defense. Self-defense or accident are not defenses to felony murder.

7. A trial court should avoid commenting, within the hearing of the jury, on its memory of testimony presented at trial.

8. In closing argument, the stating of a fact contrary to the evidence is improper. In deciding whether prosecutorial misconduct requires reversal, an appellate court determines whether there is little or no likelihood the error changed the result of the trial.

9. A trial court has broad discretion in controlling the proceedings at trial. Allegations of judicial misconduct must be decided on the particular facts and circumstances of each case. Reversal is required only when the appellant has shown the conduct prejudiced his substantial rights.

10. Under the facts of the case, it was not error to instruct the jury that it is proper for the State to grant immunity to prospective witnesses.

Jack Focht, Focht, Hughey, Hund & Calvert, Wichita, argued the cause and was on the brief, for appellant Chism.

Charles A. O'Hara of O'Hara, O'Hara & Tousley, Wichita, argued the cause and was on the brief, for appellant Wenzel.

Mona Furst, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with her on the brief, for appellees.

HERD, Justice:

This is a criminal case wherein defendants Carl Wenzel and Gregory Chism appeal their jury convictions of first-degree felony murder, K.S.A. 21-3401, for which they were given life sentences.

Wenzel and Chism were together with their wives Penny Wenzel and Carlene Chism at a nightclub on August 24, 1985. They learned Ron Hawkins and his girlfriend, Teresa Stanhope, were throwing an after-hours party at a hotel and would not be returning home that night. Chism had been in Hawkins' home in the past and knew he kept cocaine and money hidden in a heating vent in one of the bedrooms. A little before 3:00 a.m., when the club closed, the appellants' wives rode home with a friend because both men were intoxicated.

Around 4:00 a.m., Anita Thomas, Hawkins' next door neighbor, heard sounds in Hawkins' yard as if someone were moving something large out of his house. She heard someone say, "Take it over there. Go over there by the truck." She then heard a loud bang which awakened her husband, Michael, who believed the sound to be a gunshot. Michael Thomas called the police at that time.

The Thomases looked out their window and saw a window air conditioner laying by a truck. They also saw two men behind some cars struggling to obtain an object which they later learned was a rifle. They saw the taller of the men move the gun in an up-and-down motion as if he was beating something on the ground, while the other kicked and hit at something on the ground. Michael Thomas testified the two men stepped away from the cars several times and conferred between themselves before returning to the area where they continued to beat at something on the ground. The couple heard the taller man yell, "Give me that gun, let go of the gun, lay down, keep him down, stay down, you're not going to die. I'm going to blow your ... balls off." They saw the taller man push the rifle towards the ground and heard another shot, muffled this time. The two men left in what looked like a white or a light-colored Monte Carlo. Both men were stumbling as if drunk. The taller of the men wore glasses. Chism, the taller of the two appellants, wears glasses and owned a white Oldsmobile.

An officer responding to the call saw two white males driving erratically in a light-colored Oldsmobile as he approached the scene. The police found Raymond Messerschmidt, who lived in the top apartment of Hawkins' house, lying dead on the ground. He had died from a gun blast through his groin. He had cocaine in his system as well as on his person.

Laying in the yard were the air conditioner from Hawkins' bedroom window and the stock of a semi-automatic Mini-Ruger 14 rifle, later determined to be the deceased's. Some of the wounds on Messerschmidt, who had been severely beaten, matched the butt of the rifle.

The two appellants asked their wives to provide an alibi for their whereabouts during the critical hours of the morning. They admitted killing Messerschmidt, but said it had been accidental. They said they went to Hawkins' house to steal money and drugs from the heating vent when they were interrupted by Messerschmidt, who had come downstairs and around the corner of the house with a rifle. They tackled him and tried to get the rifle away from him, but he was tremendously strong and would not give it up. They said they had been unarmed on their arrival at Hawkins' house and had thrown the remains of Messerschmidt's rifle in a creek before coming home.

The women first gave the prepared alibi stories to the police that appellants had returned home soon after their own departure from the nightclub. The women told the truth, however, after being told charges could be brought against them for aiding and abetting. Carlene was represented by an attorney when she made her statement to the State; Penny had received the advice of an attorney earlier.

Chism and Wenzel were charged as codefendants with first-degree murder in the alternatives of premeditated murder or felony murder while in the perpetration of the crime of burglary or attempted burglary, K.S.A. 21-3401. The appellants stuck to their original alibi stories to the police and did not testify at trial. They were tried together but filed separate appeals. The two appeals are consolidated in this opinion.

Appellants' first issue on appeal is whether the trial court erred in ruling as a matter of law, for the purposes of certain instructions, that Chism and Wenzel had committed, or attempted to commit, a felony and were within the res gestae of the crime when the fight began.

Appellants argue the trial court erred in failing to instruct on the lesser included offenses of second-degree murder, voluntary manslaughter, and involuntary manslaughter. Wenzel also protests the court's failure to give a requested instruction on misdemeanor theft. A trial court generally has the duty to instruct on the full range of lesser included offenses. Where the commission of a felony results in a death, however, the normal rule on lesser included offense instructions does not apply. State v. Rueckert, 221 Kan. 727, 731, 561 P.2d 850 (1977). The felonious conduct in such a case is held to supply the elements of premeditation and intent that are otherwise required to establish first-degree murder. State v. Hoang, 243 Kan. 40, 755 P.2d 7 (1988). If the undisputed evidence is not weak or inconclusive, but instead would convince a reasonable person that a felony had been committed, instructions on lesser offenses are not required. State v. Marks, 226 Kan. 704, 713, 602 P.2d 1344 (1979).

The State's evidence showing an attempted burglary was in progress when Messerschmidt was shot and killed consisted of the eyewitness testimony of the Thomases, and the testimony of Teresa Stanhope, Ron Hawkins, and the appellants' wives. Appellants argue their wives were coerced into giving their first statements against them. They also contend their wives' testimony was suspect because they were not interrogated until many months after the crime, during which they had heard different theories of the crime from many people. Appellants argue the testimony of Teresa Stanhope and Ron Hawkins was suspect because they were granted immunity by the State. They also argue everyone's testimony was suspect because a reward was offered for information leading to the arrest and conviction of Messerschmidt's killer.

There was clear, uncontradicted evidence the appellants were in the process of burglary when the death occurred. Appellant's attack on the witnesses' credibility does not, under the circumstances of this case, render the undisputed evidence against the defendants weak or inconclusive. See State v. Armstrong, 240 Kan. 446, 460, ...