State v. DePriest

• Decision Date: 08 December 1995
• Docket Number: No. 71637,71637
• Citation: 907 P.2d 868,258 Kan. 596
• Parties: STATE of Kansas, Appellee, v. Bryan K. DePRIEST, Appellant.
• Court: Kansas Supreme Court

Page 868

907 P.2d 868

258 Kan. 596

STATE of Kansas, Appellee, v. Bryan K. DePRIEST, Appellant.

No. 71637.

Supreme Court of Kansas.

Dec. 8, 1995.

Syllabus by the Court

1. Instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably be mislead by them, then the instructions do not constitute reversible error.

2. Criminal solicitation to commit first-degree murder is an independent criminal offense, separate and distinct from aiding and abetting first-degree murder. Criminal solicitation is "commanding, encouraging or requesting another person to commit a felony, attempt to commit a felony or aid and abet in the commission or attempted commission of a felony for the purposes of promoting or facilitating the felony." K.S.A.1994 Supp. 21-3303(a).

3. Under the facts of this case, where a defendant solicits another to murder the victim and the person solicited murders the victim, the defendant is an accomplice in the commission of the murder and may be convicted of the murder.

4. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds for the objection, unless the instruction is clearly erroneous. An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred, there is a real possibility the jury would have returned a different verdict.

5. The failure to give an instruction on accomplice testimony when none is requested requires reversal only if clear error occurs thereby.

6. In determining whether prejudicial error has occurred in the failure to give an instruction on accomplice testimony, courts look to the extent and importance of the accomplice testimony as well as any corroborating testimony.

Julie A. Gorenc, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief, for appellant.

Michelle V. Hostetler, Assistant District Attorney, Joan Hamilton, District Attorney, and Carla J. Stovall, Attorney General, were on the brief, for appellee.

DAVIS, Justice.

This is a direct criminal appeal from first-degree murder and conspiracy to commit first-degree murder convictions. The defendant, Bryan K. DePriest, contends that the trial court erred: (1) by omitting the element of intent from the first-degree murder instruction, (2) by failing to give a lesser included offense instruction, and (3) by failing to give an accomplice instruction. Finding no reversible error, we affirm.

Jesse Burton, Paul Moore, and the defendant were charged with first-degree murder and conspiracy to commit first-degree murder in connection with the slaying of Michael Hill. Hill's body was found in the bathtub of his home in Topeka. He had been shot five times. Pursuant to a plea agreement, Jesse Burton pled guilty to one count of second-degree murder and testified on behalf of the State.

Burton testified that he was a friend of Hill's and had sold cocaine for Hill. He testified that Hill agreed in early May to front him 15 ounces of cocaine on credit. At first, Hill gave Burton 9 ounces of cocaine which Burton then took to his friend and associate, defendant Bryan K. DePriest. The two of them cut the cocaine with a product known as Vita-Blend. They then sold the cocaine out of the defendant's father's house.

Burton then contacted Hill to obtain the additional 6 ounces he had been promised. Hill wanted the proceeds from the sale of the first 9 ounces. When Burton relayed this information to the defendant, the defendant told Burton that he was going to kill Hill and keep the money. The defendant stated that if Burton did not cooperate, he would kill Burton, Burton's girlfriend, and Burton's uncle.

According to Burton, the defendant forced him to stay at the defendant's father's house until Paul Moore arrived. When Moore joined them, the defendant whispered something to Moore and then told Burton to go with Moore. The defendant also handed Moore a gun. Burton and Moore traveled to Topeka looking for Hill. They located Hill at his girlfriend's home and eventually all three got together at Hill's house.

Burton testified that when they arrived at the house, they talked for a few minutes, and then Hill went into the bathroom. Moore followed Hill into the bathroom and shot Hill. Burton became scared and ran outside but eventually got back into Moore's car for the return trip to Kansas City.

Upon arriving in Kansas City, they first stopped at Moore's house, where Moore hid the murder weapon under the couch and gave money that he had taken from Hill to his girlfriend. Moore also gave Burton approximately $400 of the money. They then went to the defendant's house; the defendant asked Moore if he had taken care of the job. Moore said he had and described the killing to the defendant. Moore then gave Burton a ride home.

Burton testified that he was scared of Moore because Moore "don't really have it all." Burton stated that Moore is kind of crazy and does whatever the defendant tells him to do. He reported instances in which Moore stole cars and beat up people at the request of the defendant.

The deceased's best friend, Maurice Brantley, also a friend of the defendant's, testified that Hill and the defendant were friends but that the defendant did not like the way Hill had been acting. Brantley stated that the defendant thought Hill was very self-centered. According to Brantley, 3 or 4 days before the shooting, he, Burton, the defendant, and some other people were talking when Hill drove up and began talking to Burton. After Hill drove off, Burton told the defendant that Hill wanted Burton to make a trip to Topeka. Burton looked as though he did not want to go. Brantley stated that he told Burton that if he did not want to go, he should not go. Then, according to Brantley, the defendant went into the house and came back with a handgun, which he tried to give to Burton. However, Brantley talked Burton out of taking the gun.

When asked about Burton and Moore's character, Brantley stated that Paul Moore is a "go-fer" for the defendant. According to Brantley, Moore will do anything that the defendant asks him to do. Burton, on the other hand, is not a very aggressive person and is a "follower." Brantley stated that many times, Burton would talk about being unhappy over the way Hill treated him.

Several of the defendant's friends testified on his behalf. Dennis Moore, the defendant's cousin, testified that Burton was talking about how Hill had not paid him enough for selling cocaine and how Burton wanted to kill Hill. According to Dennis Moore, Burton stated he was going to "get" Hill. Marvin Bland, another friend of the defendant, testified that he overheard Burton telling the defendant that he wanted to kill a certain person who owed him money. According to Bland, the defendant later told Bland that Burton had been talking about Hill. On another occasion, Bland overheard Burton talking to another person about Hill. During that conversation, Burton stated that he wanted to shoot Hill. According to Bland Burton had stolen some drugs from Hill and was worried that Hill would come after him.

Gregory Hill, Jr., a cousin of the defendant's, testified that he heard Burton state that he needed money to make payments on his motorcycle and that Burton mentioned that Hill owed him some money for selling drugs. Gregory Hill stated that he had a gun belonging to the defendant and that he gave Burton the gun to give back to the defendant.

The defendant testified on his own behalf. He stated that he got along well with Michael Hill but did not like the fact that Hill would not help Maurice Brantley when he needed money. The defendant denied telling Jesse Burton to kill Hill. He further denied attempting to hand Burton a gun, as Brantley had testified.

When asked about his relationship with Paul Moore and Jesse Burton, the defendant stated that he and Moore got along well but that at one point he made Moore stop dealing drugs for him because Moore would "short him" on deals. He stated that Burton was continually upset with Hill because Hill would not pay him enough. The defendant stated that Burton talked of killing Hill on five or six occasions but that he did not think Burton was serious.

The defendant testified that he had given Burton the money for the first 9 ounces of cocaine and told him to give it to Hill. For the remaining 6 ounces, he gave Burton money for the first 2 ounces but kept the proceeds from the sale of the remaining 4 ounces as his cut. He testified that this was a traditional cut and Hill did not expect to be paid the entire proceeds of the 15 ounces. The defendant expected that Burton would pay Hill the money; he did not know Hill had been shot until being informed later by Maurice Brantley. When he heard his name come up as a suspect, he went to the police to clear up any misunderstanding.

The defendant's taped statement to the police was admitted into evidence. In this statement, he told police that he knew Jessie Burton and Paul Moore traveled to Topeka to kill Hill, although he denied playing any part. According to the defendant's statement, Burton had been talking about killing Hill for a long time.

Paul Moore testified that on the night of the shooting, he had gone to a basketball court near his house, where he had become involved in a fight with an acquaintance of his known as Rico. During the fight, he injured his hand and it became swollen. As a result, he stayed around his house and went to bed. He denied going to Topeka and denied killing Hill. Although he admitted selling cocaine for the defendant, he denied performing any other errands for ...