State v. Colson
| Decision Date | 05 February 2021 |
| Docket Number | No. 120,946,120,946 |
| Citation | 480 P.3d 167 |
| Parties | STATE of Kansas, Appellee, v. Robert Willard COLSON, Appellant. |
| Court | Kansas Supreme Court |
Kasper Schirer, of Kansas Appellate Defender Office, argued the cause, and was on the briefs for appellant.
Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.
Robert Colson directly appeals his convictions for felony murder, intentional second-degree murder, felony theft of a firearm, felony theft of a vehicle, and burglary arising out of the death of Matt Schoshke on or about August 11, 2017. Colson raises four issues for our consideration: the first three attacking the sufficiency of the evidence supporting his conviction from different perspectives, and the last one challenging the district court's refusal to instruct the jury on voluntary manslaughter as a lesser included offense of intentional second-degree murder. Finding no error, we affirm Colson's convictions.
The killing of Matt Schoshke
In August of 2017, Matt Schoshke lived in a rented property about 5 miles to the east of Tescott, Kansas, along K-18 highway. Schoshke's residence was visible from K-18. Schoshke drove a gray 2006 Ford F-150 truck with certain distinguishing characteristics that would, following the events of August 11, 2017, make it easily identifiable to law enforcement. Schoshke lived alone, except for his Australian Shepherd, Zeus. Schoshke's parents, Jan and Gary, lived about 15 to 20 minutes away by car, and on the weekends, Schoshke would usually go over to their house to help with the family ranching operation.
On the evening of August 11, 2017, Schoshke arrived unexpectedly at his parents' home at around 7:30 p.m. Schoshke worked as a delivery driver for FedEx, and was still wearing his work uniform when he arrived. Schoshke ate dinner and visited with his parents, made plans to arrive early the next morning to help bring the bulls in from the pasture, and departed around 8:00 p.m. It was the last time his parents would see him alive.
Around 8:30 p.m. that evening, Schoshke's friend Adam Gorrell was driving with his wife, Amanda, and infant son along K-18, heading to Tescott to get a burger. Adam saw Schoshke's truck heading east, towards Schoshke's house, and waved as their vehicles passed one another. While it was almost dusk and Adam was not completely certain he saw Schoshke in the driver's seat, he believed the driver was Schoshke, and he saw no passengers in Schoshke's truck. Although the Gorrells initially decided to make an impromptu stop at Schoshke's house on their way back home to say hello, their baby had fallen asleep by the time they passed Schoshke's house—where they saw his pickup truck parked—so they decided "just to go on home."
Schoshke was also in communication with some friends who, along with Schoshke's brother Layne, planned to meet up at a bar in Brookville later that evening. Though Schoshke spoke to one of his friends by telephone at around 8:15 p.m. that evening, Schoshke did not show up at the bar, and—somewhat uncharacteristically—failed to answer a text sent at 9:45 p.m. asking where he was. Nor did Schoshke show up to help his family the next morning, although his pickup and Zeus were missing from his home when his brother went by to check on him that afternoon.
As it would turn out, both Zeus and the truck were already several hundred miles to the west by then. Schoshke himself lay dead in his own bathroom, where he was finally found on the evening of August 12. Schoshke had been shot five times by his own .45 caliber handgun, which he normally kept on a bedside table in the adjoining bedroom. He was still wearing his work uniform and carried several keys (including work keys) in his pocket—although not the keys to his truck, which he kept separately. One of the bullets that struck Schoshke first passed through his pocket, fragmenting some of the keys. Investigators believed Schoshke had been standing up facing the toilet—which still contained what investigators believed to be urine—when he was shot. From that position, the left side of his body, where most of the bullets struck, would have been facing the doorway between the bathroom and bedroom.
An autopsy classified Schoshke's gunshot wounds as "distant range" based on the absence of soot, stippling, or gunpowder residue. Although the autopsy could not determine the order in which Schoshke received his wounds, the doctor performing the autopsy surmised that two gunshot wounds beneath Schoshke's left armpit likely occurred close together in time and while Schoshke's arm was raised. The autopsy revealed no other blunt force injuries to Schoshke's body. The autopsy also revealed that Schoshke's blood alcohol content (BAC), at the time of his death, was .129. Neither party referenced Schoshke's BAC at trial, although the autopsy report noting it was presented to the jury.
Investigators ultimately recovered five empty .45 caliber cartridge casings from Schoshke's bathroom and bedroom. Two of the casings were located by the dresser on the south wall of the bedroom; the other three were in the bathroom, one of which was found by Schoshke's head. One investigator surmised that the casing found by Schoshke's head might be consistent with a scenario where Schoshke was shot at least once while he was already down.
One of the doorjambs into Schoshke's home had been broken by force, indicating an unauthorized entry. Yet, other than the fact of Schoshke's killing itself, the physical evidence of an intruder's presence was relatively limited. Investigators found several footprint impressions that did not appear to have been left by the shoes Schoshke was wearing when he died. Most of the usable fingerprints investigators observed in the residence matched Schoshke, although the prints taken from Schoshke's body were, themselves, of insufficient quality to rule him out as the source of two prints on the bathroom sink countertop. Furthermore, many of the surfaces swabbed in Schoshke's residence were insufficient to obtain a DNA profile, although DNA found on a Coors Light can found in the residence was consistent with Schoshke's genetic profile.
Complicating matters, a red, size large men's button-down shirt was recovered from the side of K-18, about 3 ½ miles directly west of Schoshke's residence. Primer gunshot residue was found on the shirt, which also contained at least three DNA profiles—although neither Schoshke nor Colson contributed DNA to the shirt.
Colson's journey
On August 7, 2017, Colson used a combination of cash and a credit card to purchase a set of bus tickets that were intended to take him from Bangor, Maine, to Los Angeles, California. This trip included a number of stops and bus changes—including one stop in Junction City and another stop in Salina—and was expected to reach its final destination on August 10, 2017.
On August 10, 2017, Kansas Highway Patrol Trooper Marshall Hageman received a report of a man illegally walking along I-70 between Abilene and Solomon, Kansas. Trooper Hageman saw Colson walking westbound in a ditch at around mile marker 270, about 6 miles east of Solomon, and stopped to speak with him.
Colson presented Trooper Hageman with a Maine I.D. card. He was wearing multiple layers of clothing, including a red collared shirt underneath a white long-sleeved shirt, and shoes with dark tops and white soles. Trooper Hageman could not say for sure whether the red shirt was long- or short-sleeved, nor whether it was a polo-style shirt or a dress shirt. Colson then explained to Trooper Hageman that he was traveling to California for employment prospects. Colson also said that he was trying to reach the next town in order to find a bus stop. Apparently, he had gotten off a bus at the last stop to use the restroom, as he felt sick. He then missed his bus, which had gone on without him.
Because walking alongside I-70 is illegal, Hageman drove Colson to Solomon to get him closer to a bus stop, dropping him off at around 7:45 a.m. on August 10. From Solomon, Colson could legally walk to Salina along Old Highway 40.
Colson's presence was next documented around 5:00 a.m., Mountain Time, on August 12, when he purchased gas at a Cenex in Stratton, Colorado. At approximately the same time, surveillance cameras recorded Schoshke's truck pulling into the same Cenex.
At about 1:49 p.m., Mountain Time, the same day, Schoshke's truck was also documented traveling westbound along I-70 towards Grand Junction, Colorado, where a man with Colson's credit card attempted to make a purchase from a Wendy's. The man had a black-and-white dog with him.
Colson continued west, with activity on his credit card in Colorado, Utah, and California on August 12 and August 13. By August 18, the card showed activity in Ventura, California, and the card's last activity occurred on August 25, 2017, in San Luis Obispo, California. Several of Colson's attempted purchases were declined over the course of his journey. Iris Wood—Colson's mother—also had a card associated with the Capital One account used by Colson, although her card had a different set of digits. No one else was on the account.
On the morning of August 14, Los Angeles resident Adam Clark discovered an unfamiliar truck parked outside his home. Clark saw a man—Colson—close the truck door. Colson had a black-and-white Australian Shepherd with him, but his interaction with the dog seemed "odd" because it appeared "as though the dog wanted to get away." Clark never saw Colson in the neighborhood again. Clark observed a beer bottle on the dash and keys in the center console, neither of which moved as the truck sat there, apparently abandoned.
On August 21, law enforcement located Schoshke's truck in Los Angeles; the KBI was alerted to the discovery on August 23. Although Schoshke never kept the truck pristine, it was usually much...
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