State v. Dixon

• Decision Date: 11 December 1992
• Docket Number: No. 66070,66070
• Citation: 252 Kan. 39,843 P.2d 182
• Parties: STATE of Kansas, Appellee, v. Elbert C. DIXON, Appellant.
• Court: Kansas Supreme Court

Page 182

843 P.2d 182

252 Kan. 39

STATE of Kansas, Appellee, v. Elbert C. DIXON, Appellant.

No. 66070.

Supreme Court of Kansas.

Dec. 11, 1992.

Syllabus by the Court

1. The trial court has a duty to instruct on lesser included offenses established by the evidence, even though the instructions have not been requested. Such an instruction must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant. The duty to so instruct exists only where the defendant might reasonably be convicted of the lesser offense.

2. For purposes of K.S.A. 21-3107(2), the offenses of attempted second-degree murder and attempted voluntary manslaughter are included crimes of a lesser degree of attempted first-degree murder.

3. Under the facts of this case, the trial court erred in failing to instruct the jury on the lesser included offense of attempted murder in the second degree.

4. When a defendant is charged in the alternative, the jury is to consider and decide which, if either, charge the defendant is guilty of. However, when the alternative charges are based on a single act, and thus multiplicitous, the jury need not consider the lesser alternative charge if it finds the defendant guilty of the greater charge.

5. Where a trial court conducts a pretrial hearing and determines the defendant's statement was freely, voluntarily, and knowingly given and admits it into evidence at trial, such determination will not be disturbed on appeal if supported by substantial competent evidence.

Lucille Marino, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief for appellant.

Debra S. Byrd, Asst. Dist. Atty., argued the cause, and Jeffrey E. Goering, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were on the brief for appellee.

ALLEGRUCCI, Justice:

This is a direct appeal by Elbert C. Dixon from his conviction by a jury of one count of attempted first- degree murder, K.S.A.1989 Supp. 21-3301; K.S.A.1989 Supp. 21-3401. His sentence is 15 years to life imprisonment.

At approximately 10:00 p.m. on March 19, 1990, Elbert Dixon shot Marva Bell in the chin. Bell and Dixon had lived together until approximately two weeks before the shooting. Bell testified that she and her children had moved back to her father's house because Dixon had beaten her, threatened her at knifepoint, and taken her rent money and spent it on cocaine.

Bell first saw Dixon on the day of the shooting when he knocked on the living room window of her father's house and asked her to come outside. They talked through the open window for about five minutes. Dixon asked if he could come in to see Bell's small daughter. Bell testified that she said no, but that he came in anyway. Dixon entered the house through the back door and stayed approximately 20 minutes. Dixon told Bell that he was hungry, that nobody loved him, and that he was depressed. She fed him, and he ate outside the house.

Dixon stated to the police that he stayed at Bell's about half an hour that afternoon. He left at approximately 4:30 p.m. to check into a shelter.

As he was walking to the shelter, Dixon stopped and called Bell. After checking in at the shelter, Dixon went to a cousin's house and called Bell again. Dixon talked to Bell's daughter and got the idea that Bell had someone else at the house with her.

Before returning to Bell's, Dixon consumed two pieces of crack cocaine. He told police that he used the cocaine about an hour before shooting Bell.

Dixon had a .38 revolver hidden at some empty apartments. He got the gun and went to Bell's house. Dixon said, "I thought I was gonna scare her."

Bell next saw Dixon when he returned to her father's house about 10:00 p.m. Dixon spoke to Bell through the living room window. Bell testified that she told Dixon to leave her alone.

When Bell went into the kitchen to prepare a bottle for her daughter, Dixon went to the back door and knocked. Bell went to the door and raised the shade on the back door window. Bell testified that she told Dixon in strong terms to leave her alone. Bell lowered the shade and walked away from the back door window.

Dixon continued knocking. Bell returned to the window and told Dixon to leave her alone. Through the window Bell saw Dixon pointing a gun at her. Bell testified that Dixon's arm was out straight and level as he pointed the gun at her and that he was close to the window. Bell testified that Dixon said, "If I can't have you, can't nobody else have you." Then he shot her in the chin.

Dixon told the police that he and Bell talked through the back window. Bell said he was a bum and no good. Dixon said that she was hurting him and he wanted to hurt her and to make her stop saying those things. He shot her from about 12 inches away. He said that he "really didn't want to do it."

There were three bullets in the gun. Dixon fired once. He did not know whether there was a bullet in the chamber or not.

After he shot Bell, Dixon ran to a cousin's house. For a short time he hid, and then he surrendered to police custody on a nearby street corner.

Bell testified that Dixon was smoking cocaine throughout the period from May 1989 to March 1990. Bell testified that about a week before the shooting Dixon had spent $1,300 on cocaine.

The first issue asserted by defendant on appeal is whether the district court erred in failing to instruct the jury on the lesser included offenses of attempted second-degree murder and attempted voluntary manslaughter. The jury was instructed on the alternative charges of attempted first-degree murder and aggravated battery.

Under K.S.A. 21-3107(3), the district court has a duty to instruct on lesser offenses as the evidence may justify, even though the instructions have not been requested. State v. Clark, 214 Kan. 293, Syl p 4, 521 P.2d 298 (1974). The requirement of 21-3107(3) "is based upon the right of a defendant to have his theory of the case presented to the jury under appropriate instructions where there is support in the evidence." State v. Guebara, 236 Kan. 791, 795, 696 P.2d 381 (1985). Such instructions must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant. State v. [Cain] Dixon, 248 Kan. 776, Syl. p 1, 811 P.2d 1153 (1991).

For purposes of 21-3107(2), the crimes of attempted second-degree murder and attempted voluntary manslaughter are included crimes of a lesser degree of attempted first-degree murder. See State v. Seelke, 221 Kan. 672, 675, 561 P.2d 869 (1977) (murder in the second degree and voluntary manslaughter are lesser degrees of murder in the first degree).

The defendant's theory was that he took the gun to Bell's house with the intent to scare her, and when he shot the gun, he wanted to silence or injure the victim but not kill her. Dixon's theory comports with the evidence of his statements to the police, and it is reflected in the instruction on aggravated battery.

The State's theory was that Dixon shot Bell in the face with the premeditated intent to kill her. The State's theory is reflected in the instruction on attempted first-degree murder.

Dixon argues that the instructions which were given by the district court represent the opposite ends of a continuum of possible instructions which are supported by the evidence. At one end is intentionally, deliberately, and with premeditation attempting to kill; at the other end is intentionally touching or applying force with the intent to injure. The instructions which lie between the extremes are attempted second-degree murder and attempted voluntary manslaughter. Dixon argues that the evidence which supports the instructions at the extremes necessarily would support those lying in between.

The major problem with defendant's argument is that the basic notion of the continuum is flawed because aggravated battery is not a lesser included offense of attempted first-degree murder. State v. Daniels, 223 Kan. 266, Syl. p 3, 573 P.2d 607 (1977). Another problem with the notion is that it tends to oversimplify the elemental differences among the offenses.

Second-degree murder "is the malicious killing of a human being, committed without deliberation or premeditation." K.S.A. 21-3402. The pattern instruction states that to establish the charge of second-degree murder, the following must be proved: (1) that the defendant intentionally killed the victim and (2) that the killing was done maliciously. PIK Crim.2d 56.03. "Maliciously" means "willfully doing a wrongful act without just cause or excuse." PIK Crim.2d 56.04(a) (citing State v. Egbert, 227 Kan. 266, 606 P.2d 1022, cert. denied 449 U.S. 965, 101 S.Ct. 379, 66 L.Ed.2d 232 [1980]. "Willfully" means "conduct that is purposeful and intentional and not accidental." PIK Crim.2d 56.04(c) (citing K.S.A. 21-3201 and State v. Osburn, 211 Kan. 248, 505 P.2d 742 [1973]. "Intentionally" means "conduct that is purposeful and willful and not accidental." PIK Crim.2d 56.04(d) (citing K.S.A. 21-3201 and State v. Stafford, 223 Kan. 62, 65, 573 P.2d 970 [1977]. Premeditation is an element of first-degree murder but not of second-degree murder. In all other respects the elements of the crimes are the same. State v. [Cain] Dixon, 248 Kan. at 782, 811 P.2d 1153. "Deliberately and with premeditation" means "to have thought over the matter beforehand." PIK Crim.2d 56.04(b) (citing State v. McGaffin, 36 Kan. 315, 319, 13 P. 560 [1887], in which premeditation was said to mean "that the accused planned, contrived and schemed beforehand to kill" the victim.

The State takes the position that "if there was an intent to kill, it was a premeditated intent to kill." In support, the State points to Bell's testimony that Dixon said, "If I can't have you, can't nobody else have you." The State also points to Dixon's taped statement that after the shooting he was thinking that he...