State v. Clark, 47653
Citation | 218 Kan. 18,542 P.2d 291 |
Decision Date | 08 November 1975 |
Docket Number | No. 47653,47653 |
Parties | STATE of Kansas, Appellee, v. Robert B. CLARK, Appellant. |
Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. It is the duty of the trial court to instruct the jury as to all lesser included offenses of the crime charged that the evidence may justify, even though the evidence of the lesser offense is not strong or extensive, as long as the evidence presents circumstances from which such lesser offense might reasonably be inferred. The unsupported testimony of the defendant alone, if tending to establish such inferior degree, is sufficient to require the court to so instruct.
2. Repetitious, gruesome, and repulsive photographs which are not necessary to prove any of the elements of an offense and whose only purpose is to prejudice and inflame the minds of members of the jury, should not be admitted into evidence.
3. In an appeal from a conviction of voluntary manslaughter (K.S.A. 21-3403), the record is examined and it is held: The trial court erred (1) in failing to instruct on the lesser included offense of involuntary manslaughter; and (2) in admitting into evidence certain repetitious, gruesome, and repulsive autopsy photographs.
Ronald K. Badger, Wichita, argued the cause, and Cortland Q. Clotfelter, Wichita, was with him on the brief for appellant.
Stephen Joseph, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Keith Sanborn, Dist Atty., were on the brief for appellee.
Defendant, Robert B. Clark, appeals from a conviction of voluntary manslaughter (K.S.A. 21-3403) stemming from the fatal shooting of his wife, Julia. We are reversing the judgment of the trial court and remanding the case for a new trial for error in the instructions and error in the admission into evidence of prejudicial photographs.
Robert and Julia Clark were married on June 23, 1972. It was Robert's second marriage, his first having ended in divorce. His first wife, Val, returned to her former home in Germany after their divorce, along with their two minor children.
Robert's prior marriage and his children by that marriage proved to be a major problem from the outset of his romance with Julia. Julia had extreme difficulty in accepting the fact he had been married before and she became very upset at any mention of his former wife or his children. The couple began consulting with Dr. Roy B. Henderson, a clinical psychologist, several months prior to their marriage, and continued seeing him on a regular basis after their marriage until the time of Julia's death on December 22, 1972. Dr. Henderson testified that both parties had adjustment problems, and in his words, 'It is just a constant problem every time Val came into the picture.' He had discussed the subject of divorce with Julia several weeks before her death. He also testified that Robert and Julia had threatened each other with guns on several occasions and he had counseled with them, both in his office and by telephone, concerning such dangerous 'gun play.' He considered the problem serious enough that he consulted with their referring physician about it, but he finally decided the couple was mature enough that they should be allowed to keep their guns. One night prior to Thanksgiving, Dr. Henderson received three telephone calls from them. On the first two calls Julia told him Robert had one gun pointing at her and one pointing at himself. On the third call Julia had a gun pointing at Robert, and Robert had one pointing at her.
In Dr. Henderson's opinion, Julia was a very emotional and insecure person who 'functioned more like a hysterical individual.' He characterized Robert as a 'very conscious individual who probably has excessive compulsive features in his personality.' He felt they contributed equally to the problems of their marriage.
In April of 1972, Robert purchased a .32 caliber revolver and a .357 Magnum pistol when he applied for a position as a security guard. After a disturbance in the hallway of their apartment frightened Julia, Robert kept both guns loaded and placed the .32 caliber revolver in the credenza next to the bed and the .357 pistol under the bed.
On December 22, 1972, the day of the tragedy, Robert purchased a television set for Julia as a Christmas present and placed it under the tree. Later that afternoon he received a package in the mail from his former wife and children in Germany, but he did not open it since he had an agreement with Julia that he would only open letters and packages from Germany in her presence. Shortly after returning home from picking up Julia at work, they opened the package together. Robert testified that when they saw the package contained tapes and some shaving lotion, Julia insisted the tapes be played. When she heard the voices of his children on the tapes she became extremely upset. While he was trying to repair the tape player, Julia received a telephone call from an old friend, Sharon Hunter. Miss Hunter testified that Julia was in a hurry, but that she did not seem to be upset.
Julia then went to the bedroom where she called her mother to tell her she was going to get a divorce and wanted to know the name of an attorney. According to her mother's testimony, Julia sounded calm and unemotional over the telephone. A few minutes later, Robert went into the bedroom and sat down on the side of the bed. Julia had finished her conversation with her mother and had left the bedroom. Robert testified that he was 'pretty upset' and he thought he was holding his head in his hands when he heard Julia behind him saying something to the effect of, 'I have had it with you and those d_ _ kids and that s_ _ from Germany.' He was 'rather startled' by this and when he turned around, he saw Julia pointing a gun at him. His account of what transpired next is as follows:
'
'
When Robert saw that Julia was still breathing he immediately called for the police and an ambulance. A police dispatcher later confirmed the fact that defenant called the police and said he had just shot his wife. Robert also called Dr. Henderson and told him he had just shot Julia.
When the police arrived at the apartment Robert was still talking on the phone to Dr. Henderson and he offered no resistance. One bullet was found in the ceiling of the bedroom and the body of the decedent had three gunshot wounds. The arresting officer detected a moderate smell of alcohol on the breath of defendant.
Defendant was charged by information with the offense of second degree murder (K.S.A. 21-3402), the state's theory being that the defendant intentionally and with malice fired three rapid shots at the deceased as she was leaving the bedroom. The jury, however, returned a verdict of guilty as to the lesser included offense of voluntary manslaughter.
Defendant raises six points of error in his appeal, but in view of our disposition of this case we will only discuss the two points which we believe rise to the level of prejudicial error.
First, defendant contends the trial court erred in failing to give an instruction on involuntary manslaughter (K.S.A. 21-3404), as a lesser included offense of the charge of second degree murder. We have emphasized that evidence of a lesser offense need not be strong or extensive, as long as the evidence presents circumstances from which such lesser offense might reasonably be...
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