State v. Collins

• Decision Date: 21 April 1995
• Docket Number: No. 70692,70692
• Citation: 893 P.2d 217,257 Kan. 408
• Parties: STATE of Kansas, Appellee, v. Preston COLLINS, Appellant.
• Court: Kansas Supreme Court

Page 217

893 P.2d 217

257 Kan. 408

STATE of Kansas, Appellee, v. Preston COLLINS, Appellant.

No. 70692.

Supreme Court of Kansas.

April 21, 1995.

Syllabus by the Court

1. The Sixth Amendment, as made applicable to the states by the Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an independent constitutional right to self-representation.

2. Although a defendant has a right to self-representation, that right is unqualified only if it is asserted before trial. If this right is asserted after trial commences, a decision to grant or deny self-representation lies within the sound discretion of the trial judge.

3. In deciding whether to grant or deny self-representation to a criminal defendant after trial has commenced, the trial judge should balance the alleged prejudice to the defendant with any disruption of the proceedings, inconvenience and delay, and possible confusion of the jury. In reaching that decision the judge should also consider the reason for the request and the quality of counsel's representation.

4. The language of the attempt statute, K.S.A.1991 Supp. 21-3301(a), requires that a person possess the specific intent to commit the crime. Therefore, to establish the crime of attempted involuntary manslaughter, the person would be required to specifically intend to commit an unintentional crime. This is a logical impossibility. Kansas does not recognize the crime of attempted involuntary manslaughter.

5. Although it is possible for an actor to use excessive force in self-defense, the actor cannot unintentionally act in self-defense.

Julie A. Gorenc, Asst. Appellate Defender, argued the cause, and Steven R. Zinn, Deputy Appellate Defender, was with her on the briefs for appellant.

Christina M. Dunn, Asst. Dist. Atty., argued the cause, and Paul J. Morrison, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief for appellant.

LOCKETT, Justice:

Defendant appeals his conviction of attempted first-degree murder, a class B felony in violation of K.S.A.1991 Supp. 21-3301 and K.S.A.1991 Supp. 21-3401, and sentence of 15 years to life imprisonment. Defendant contends the trial court erred in (1) denying his request to represent himself and (2) failing to instruct the jury on attempted involuntary manslaughter. This court has jurisdiction pursuant to K.S.A.1994 Supp. 22-3601(b)(1).

On February 6, 1992, Preston L. Collins shot his ex-girlfriend, Ann E. Whedon, with a shotgun in the parking lot of a Silo appliance store in Overland Park, Kansas. Prior to the shooting Whedon and Collins had lived together for 15 years. She had recently left him because of his aggressive behavior and verbal abuse.

After Whedon had left Collins, he began stalking her. Approximately two weeks before the shooting, Collins forced her to return home at gunpoint. The next day, Whedon again left and obtained a Missouri district court protective order directing Collins to stay away from her. Whedon informed the police that she was afraid of Collins because he had threatened her, he had called her at work frequently, and she believed he was going to do something to her. Because of Collins' threats, Whedon carried a .22 caliber pistol for her protection.

On the morning of February 6, 1992, Whedon drove to work for a company sales meeting and parked her truck in the Silo parking lot. After the sales meeting, Whedon returned to her truck and discovered Collins hiding in the back seat. Whedon observed the tip of a shotgun protruding from beneath Collins' raincoat, ran into the parking lot behind another vehicle, and pulled out her pistol. Collins got out of the back seat of the truck, pulled out a .12 gauge shotgun from underneath his long coat, and came after her.

Whedon pointed the pistol at Collins. Collins brandished his shotgun and told Whedon to throw down her gun. Whedon threw down her pistol. Whedon begged Collins not to shoot her and agreed to go home with him or do whatever he asked.

Wielding his shotgun in one hand, Collins used his free hand to grab Whedon by the arm. In struggling to get away from Collins, Whedon either fell or was pushed to the ground. Collins fired three shots at point blank range. Collins' first shot missed Whedon and struck a nearby car. After the first shot, witnesses heard Whedon pleading for her life. Collins pointed the gun at Whedon's face and fired his second shot. This shot dismembered Whedon's right hand and left thumb and shattered the front window of a nearby store. Collins then stood directly over Whedon and aimed the shotgun at her. Whedon curled into a fetal position, pulling her legs up over her chest in an attempt to block the shot. Collins fired a third time, blasting into the back of Whedon's left leg. Collins then ran from the area and eventually turned himself in to the police that evening. Collins was charged with attempted first-degree murder.

Collins' defense consisted of his testimony and that of his daughter. Collins testified that he never had pulled a gun on Whedon or been physically or verbally abusive towards her. Collins testified that Whedon had previously threatened to kill him. Following Whedon's threat on his life, Collins stated that he had removed all guns from their house and had put the shotgun and ammunition under the back seat of the truck.

Collins testified that he had gone to the Silo store on the day of the shooting to retrieve his truck. Collins stated that the truck was registered in Whedon's name so the purchase would go through on her credit. He stated that he intended to take the truck and call Whedon later. Once he got into the truck he discovered that Whedon had changed the ignition lock.

According to Collins, when he noticed Silo employees leaving the store, he climbed into the back seat to retrieve his shotgun. When Whedon opened the door of the truck and saw him, she pulled a pistol. Collins picked up the shotgun, stumbled out of the truck, and observed Whedon raising her pistol toward him. Collins ordered Whedon to drop the gun. When she did not do so, he fired at the gun at her right hand. Collins stated that the impact knocked Whedon to the ground, and the gun fell into her stomach. He said Whedon reached for the gun with her left hand. Collins claimed he fired the other shots in an attempt to scare Whedon, but not to hurt her.

Collins' 13-year-old daughter testified that Whedon and Collins threatened each other and that Whedon had threatened to kill Collins several times. The daughter stated that she had witnessed Collins pull a gun on Whedon in an attempt to get her to come back home. The daughter testified that Collins had previously carried his shotgun in the truck when he took it to show a friend.

The trial court instructed the jury on attempted first-degree murder and the lesser included offenses of attempted second-degree murder, attempted voluntary manslaughter, and aggravated battery. The defendant's request for an instruction on attempted involuntary manslaughter was denied. The jury found Collins guilty of attempted first-degree murder. Collins' motions for new trial and for judgment of acquittal were denied, and he was sentenced to a term of 15 years to life. Collins' motion to modify his sentence was denied. Collins appeals.

Right to Self-Representation

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence." § 10 of the Kansas Constitution Bill of Rights states, in relevant part, that "[i]n all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel."

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court held that the Sixth Amendment, as made applicable to the states by the Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an independent constitutional right to self-representation. Following Faretta, this court recognized this constitutional right to self-representation in State v. Ames, 222 Kan. 88, Syl. p 7, 563 P.2d 1034 (1977) (defendant has constitutional right to self-representation and may defend himself without counsel when he voluntarily and intelligently elects to do so). See also State v. Cunningham, 222 Kan. 704, 707, 567 P.2d 879 (1977) (where the record fully established that the defendant's choice of self-representation was knowingly and intelligently made, the trial court would have committed reversible error in depriving the defendant of his constitutional right to self-representation).

On February 11, 1992, Michael Bartee, the assistant public defender, was appointed to represent Collins. Bartee represented Collins at the April 22, 1992, preliminary examination. On August 6, 1992, the district judge granted Collins' motion to dismiss his court-appointed attorney and Bartee's motion to withdraw for good cause shown. Collins assured the judge he would retain his own counsel.

The district judge continued the case for several docket calls because Collins assured the judge that "his people" would hire an attorney. On October 30, 1992, the court appointed Kevin Harris to represent Collins. Soon thereafter, Harris filed a motion to withdraw as counsel for the defendant. The judge reluctantly excused Harris after Collins again assured the judge he would hire an attorney.

On December 17, 1992, the judge appointed Charles Droege to represent Collins. Trial commenced on March 29, 1993, and lasted until April 1, 1993. On the second day of trial, midway through the State's presentation of its case, defense counsel informed the judge that Collins was not satisfied with his representation and wanted him to withdraw. Out of the...