State v. Clark, 74991

• Decision Date: 24 January 1997
• Docket Number: No. 74991,74991
• Parties: STATE of Kansas, Appellee, v. Steven A. CLARK, Appellant.
• Court: Kansas Supreme Court

Page 664

931 P.2d 664

261 Kan. 460

STATE of Kansas, Appellee, v. Steven A. CLARK, Appellant.

No. 74991.

Supreme Court of Kansas.

Jan. 24, 1997.

Syllabus by the Court

1. The defendant in a criminal prosecution has a statutory right to have the court instruct the jury on all lesser included offenses established by substantial evidence. The question is not whether, in the mind of the court, the evidence as a whole excludes the idea that the defendant is guilty of a lesser degree of the offense charged, but whether there is any substantial evidence tending to prove a lesser degree of the offense. If there is, then the question of such degree should be submitted to the jury. The unsupported testimony of the defendant alone, if tending to establish such lesser degree, is sufficient to require the court to so instruct.

2. If a defendant is charged with first-degree murder, and if there is substantial evidence to support a charge of reckless second-degree, or depraved heart, murder, both statutory rules and case law support the conclusion that reckless second-degree murder is a lesser included crime of first-degree murder.

3. "Evidence" is the means from which inferences may be drawn as a basis of proof in duly constituted judicial or fact-finding tribunals, and includes testimony in the form of opinion, and hearsay. K.S.A. 60-401(a).

4. All relevant evidence shall be admitted which is admissible. K.S.A. 60-407(f). "Relevant evidence" is evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(b).

5. An appellate court's review of the trial court's admission of evidence is a two-step process. First, it must determine whether the evidence was admissible or inadmissible. Then, if the evidence was improperly admitted, it must determine whether to apply the harmless error rule of review or the federal constitutional error rule to the erroneous admission of that evidence.

6. Admission of evidence of a discordant relationship between defendant and another person is admissible independent of K.S.A. 60-455 and is relevant to show the ongoing relationship between the parties, the existence of a continuing course of conduct, or to corroborate the testimony of witnesses as to the act charged.

7. Res gestae is a broader concept than an exception to the hearsay rule. The term "res gestae," a Latin term meaning "things done," includes circumstances, facts, and declarations incidental to the main fact or transaction. Those acts done or declarations made before, during, or after the happening of the principal occurrence may be admitted as part of the res gestae where those acts or declarations are so closely connected with the principal occurrence as to form in reality a part of the occurrence.

8. The admission of acts done or declarations made as part of the res gestae are not admitted without limitation but are governed by the procedural rules and rules of evidence set out in Article 4, chapter 60 of the Kansas Statutes Annotated.

9. Except as restricted in Article 4, chapter 60, of the Kansas Statutes Annotated, a judge may in his or her discretion exclude evidence if the judge finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered. K.S.A. 60-445.

10. All evidence that is derogatory to the defendant is by its nature prejudicial to the defendant's claim of not guilty. Evidence that actually or probably brings about a wrong result under the circumstances of the case is "unduly prejudicial."

11. Photographs are unduly prejudicial and are erroneously admitted when they are unduly repetitious, are particularly gruesome, add nothing to the State's case, and bring about a wrong result.

Elizabeth Seale Cateforis, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief, for appellant.

Charles R. Reimer, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellee.

LOCKETT, Justice:

Defendant Steven A. Clark appeals his convictions of murder in the first degree, K.S.A. 21-3401, and attempted murder in the first degree, K.S.A. 21-3301 and K.S.A. 21-3401. Defendant claims the trial court erred by (1) failing to instruct the jury on (a) reckless second-degree murder as a lesser included offense of first-degree murder and (b) attempted second-degree murder and attempted voluntary manslaughter as lesser included offenses of attempted first-degree murder; (2) admitting (a) evidence of the deceased's statements concerning her relationship with the defendant as res gestae of the crime and (b) evidence of the defendant's statements made after he was taken into custody; (3) instructing the jury on an improper burden of proof; (4) using the phrase "claims made by the State" in instructing the jury regarding the burden of proof; and (5) admitting gruesome photographs. Defendant also contends there was insufficient evidence to convict him of first-degree murder or attempted first-degree murder.

On October 22, 1994, Clark and his girlfriend Lynette Odanga, the deceased, along with their friends Kenneth Shine and April Dotson, went to Acapulco Joe's bar in Wichita to celebrate Lynette's birthday. Lynette and Clark had been dating for several years and were living together in Lynette's apartment. April Dotson, Lynette's best friend, lived in the same apartment complex. Dotson was engaged to Shine. Lynette and Clark's relationship was troubled and the couple fought frequently.

The four friends planned to join a larger group to celebrate Lynette's birthday at the club. Witnesses described two incidents at the club. First, Clark attempted to prevent a man from joining the group's table at the invitation of one of the women. When Lynette attempted to defuse the situation by putting her hand on the man's shoulder, Clark told the man to take his hands off "his woman" and pushed the man.

The second incident involved Kenneth Shine. When Shine told a joke to April Dotson about another woman, Clark accused Shine of being disrespectful to Dotson. Shine walked away. Witnesses testified Clark followed and "got in [Shine's] face." Shine put his hands on Clark's neck and pushed Clark away.

After the club closed at 1:30 or 2 A.M., Clark started to leave in Jeff Peebler's car. Peebler, a friend of Clark's, hoped to calm Clark down. Peebler testified Clark said he had a gun and "could take care of it that way." As Peebler circled back to the parking lot, Clark saw Lynette talking to another man. Clark became angry and told Peebler to stop the car. Clark got out and accused Lynette of being disrespectful. When Shine told Clark to calm down, Clark accused him of "f'ing" Lynette. Shine told Clark he would knock his head off for saying that. Clark, Lynette, and Dotson got into Shine's car. Shine and Dotson dropped Lynette and Clark off at their apartment.

Later Clark called Dotson's apartment. Dotson could hear Lynette screaming, "[C]ome get me." Dotson told Clark that she, Shine, and Jeff Peebler would come get Lynette and have Lynette spend the night at Dotson's apartment. The group arrived at Lynette's apartment house. Dotson walked upstairs and knocked on the door of Lynette's apartment. Clark opened the door. Dotson heard Lynette screaming "[H]e hit me, he hit me," and observed Lynette holding the side of her face. Clark denied hitting Lynette.

Shine also observed Lynette holding her face and stating that Clark had hit her. Clark denied he had hit Lynette. Shine did not believe Clark. Shine entered the apartment, cursed Clark, and then pushed him. The two men fought. The scuffle ended with Shine on the couch and Clark in his lap. The phone rang, and April Dotson answered it. It was a 911 dispatcher returning an earlier call. Clark hung up the phone.

Clark went into the bedroom. Shine followed in an attempt to work things out. Dotson called 911. When Shine reached the bedroom, he heard metal clicking. Clark then aimed a revolver at Shine and stated, "This is what you get if you mess with me." Shine turned, yelling at everyone to get out because Clark had a gun. Shine, Jeff, and Lynette left the apartment. Dotson remained on the telephone with the police.

Shine observed that Clark was following him. He heard a shot and ducked around the corner of an apartment. He punched Clark as Clark ran by. Clark fell down. Shine told Clark, "[C]ome on, Steve, enough of this." Shine told Lynette to go back to her apartment.

Clark fired a total of two shots in Shine's direction. Before fleeing, Shine tried to convince Lynette to leave. Lynette stated to Shine that she could talk to Clark. Clark then walked over to Lynette, pointed the gun at her, and said, "I told you this would happen." Lynette reached towards Clark and said, "Steve, enough, enough of this, enough of this." As Clark got closer, Lynette bent down with her hands up toward her face. Clark fired the gun and Lynette fell. The autopsy revealed that Lynette had been shot in the left temple and that the muzzle of the gun was in contact with her skin when the trigger was pulled.

Police arrived in response to the 911 calls. They observed Clark lie down and drape himself over Lynette's body. Incoherent and crying, Clark pointed the gun at his head, said he loved Lynette, and then cursed her because she had been with another man. Clark told the officers, "I killed her, I killed her, just shoot me." Clark stated the killing was an accident. He stated he did not mean to kill Lynette and he had killed the only woman he had loved.

After Clark surrendered the gun, he was taken into custody and transported to the police department. Police testified that while being transported in the van, Clark yelled, "Did I kill the bitch?" over and over....