State v. Dixon

• Citation: 811 P.2d 1153,248 Kan. 776
• Decision Date: 24 May 1991
• Docket Number: No. 65045,65045
• Parties: STATE of Kansas, Appellee, v. Cain DIXON, Jr., Appellant.
• Court: United States State Supreme Court of Kansas

Page 1153

811 P.2d 1153

248 Kan. 776

STATE of Kansas, Appellee, v. Cain DIXON, Jr., Appellant.

No. 65045.

Supreme Court of Kansas.

May 24, 1991.

Syllabus by the Court

1. A trial court has the affirmative duty to instruct the jury on all lesser included offenses established by the evidence. Instructions on lesser included offenses must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant. An instruction on a lesser included offense is not required, however, if the evidence at trial excludes a theory of guilt on the lesser offense. The duty of the trial court to instruct on the lesser included offense is applicable only when the evidence introduced at the trial is such that the defendant might reasonably have been convicted of the lesser offense.

2. When the trial court refuses to give an instruction on a lesser included offense, the appellate court must view the evidence supporting the lesser charge in the light most favorable to the party requesting the instruction.

3. Second-degree murder, K.S.A. 21-3402, is clearly a lesser included offense of first-degree murder. All the elements of second-degree murder are included in the elements of first-degree murder, which includes the additional element of premeditation.

4. Voluntary manslaughter is defined as the unlawful killing of a human being, without malice, which is done intentionally upon a sudden quarrel or in the heat of passion.

5. The test to determine whether a particular offense is a lesser included offense which requires a jury instruction thereon is two-pronged. First, the court must determine whether all the statutory elements of the alleged lesser included offense are required to prove the greater crime charged. A jury instruction on a particular lesser offense is required whenever all of its statutory elements will be proved if the State establishes the elements of the crime charged. Second, if a comparison of the lesser offense and charged offense fails to disclose an "identity of elements," the court must examine the crime charged and determine if proof of the crime charged also proves a lesser crime. If so, an instruction on the lesser crime is required.

6. Aggravated battery is not a lesser included offense of attempted first-degree murder under the facts of this case, where the information does not allege unlawful touching or application of force to the person of another and the State was not required to adduce such evidence at trial to prove attempted first-degree murder.

7. Where a defendant is charged with first-degree murder, involuntary manslaughter is considered a lesser included offense of the charge. The trial court has a duty to instruct on the lesser crime if there is any substantial evidence tending to prove the lesser crime.

8. Under the facts of this case and in light of the overwhelming evidence presented at trial, we find the defendant's sole statement denying intent to kill or harm the victim was insufficient to support a finding of involuntary manslaughter.

9. The allowance of demonstrations or tests, to be performed in the presence of the jury, rests in the sound discretion of the trial court, and exercise of that discretion will not be overturned on appeal unless an abuse of discretion is apparent. A demonstration's propriety, probative value, and assistance to the trier of fact are determinations properly left to the trial court.

10. Challenges for cause are tried to the district court and decided in its discretion. Since the trial court is in a better position than this court to view the demeanor of prospective jurors as they are questioned, its ruling on a challenge for cause will not be disturbed unless it is clearly erroneous or an abuse of discretion is shown.

11. When a prospective juror is removed from the jury panel by peremptory challenge, that juror's qualifications are no longer a controlling factor, and where the defendant is not prejudiced, the trial court's previous denial of a challenge of that juror for cause is not ground for reversal.

12. A juror whose opinion or impression is contingent on the truth or falsity of the information presented and who is free to consider the evidence without regard to a former impression is a competent juror.

Thomas Jacquinot, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

Debra Byrd Wagner, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Nola Foulston, Dist. Atty., were with her on the brief, for appellee.

HERD, Justice:

Cain Dixon directly appeals his jury convictions for first-degree murder, K.S.A.1989 Supp. 21-3401; attempted first-degree murder, K.S.A.1989 Supp. 21-3301 and K.S.A.1989 Supp. 21-3401; and aggravated burglary, K.S.A. 21-3716. Dixon was sentenced to life imprisonment for the first-degree murder conviction, 15 years to life for the attempted murder conviction, and 5 to 20 years for the crime of aggravated burglary. The sentences run consecutive to each other and consecutive to any sentence resulting from parole revocation. Dixon appeals.

The facts giving rise to this case are in dispute and, therefore, are set out in detail. Bonnie Dixon and Cain Dixon began dating in 1986. Bonnie and her daughters, Ada, Stephanie, and Brandy, moved from Wichita to Lawrence in the summer of 1987 to live with Dixon. Bonnie became pregnant and the couple married in January 1988. Anna was born in September the same year.

By the summer of 1989, Bonnie and Dixon were having marital problems. Bonnie wanted to work; Dixon was jealous of anything she did out of his presence and accused her of seeing other men. Bonnie's daughter, Ada, testified that Bonnie wanted to move back to Wichita but that Dixon threatened to kill her if she took baby Anna away. In August, Bonnie obtained a restraining order against Dixon and was granted temporary custody of Anna. In September, Bonnie came home with a black eye and told Ada that Dixon took her from a nightclub at knifepoint and demanded to know where Anna was. Bonnie reported this incident to the police.

In October, Bonnie and the children finally returned to Wichita. Bonnie shortly began to date Eddie McIntosh. Dixon continued to provide monetary support and visit on weekends.

On November 11, 1989, Dixon visited the children at Bonnie's apartment. Dixon questioned Bonnie about a boyfriend, but she refused to answer. Dixon left around 10:45 p.m. and spent the night at a hotel. Bonnie left the children with 15-year-old Ada and spent the night with McIntosh.

On Sunday morning, Dixon returned to Bonnie's apartment. He demanded to see Bonnie but Ada refused to tell him where she was, fearful of his prior threats to kill Bonnie if she had a boyfriend. Dixon threatened Ada that something bad would happen if she did not help him. Therefore, she directed him to McIntosh's apartment.

When they arrived, Ada ran to the door and warned Bonnie not to open it. Dixon retrieved a tire iron from the trunk of his car and slashed the tires on Bonnie's car. He pried open the door to McIntosh's apartment and Ada ran inside.

Dixon and McIntosh confronted each other in the parking lot. Dixon asked McIntosh if he had feelings for Bonnie and if he wanted to see her blood. He also said he had an appointment with Bonnie and would be back after he got a weapon.

Ada returned with Dixon to Bonnie's apartment and then left to take a cousin home and get breakfast. Dixon was gone when she returned. Stephanie, however, was upset and crying because she heard Dixon call someone and ask for a shotgun and state he would pay $100 for it. Dixon told Stephanie he was going bird hunting.

Dixon called Bonnie's apartment twice that afternoon. Around 6:00 p.m., while Bonnie was preparing dinner for the family, Dixon arrived at the residence. Stephanie answered the door and tried to shut Dixon out when she saw he carried a shotgun; however, Dixon was able to force his way into the apartment. He walked directly to the kitchen. Bonnie begged him not to shoot, but he shot her three times in the legs and calmly walked away from the apartment.

Dixon drove directly to McIntosh's apartment complex, seeking revenge for the problems he believed McIntosh caused. He went to his sister-in-law's apartment in the same complex and learned that McIntosh was across the street at the laundry. McIntosh and other witnesses testified that Dixon drove directly to the laundry where McIntosh was sitting in his car with another male. These witnesses state that Dixon got out of his car, reached into the back seat, and then opened fire on McIntosh's car. McIntosh and the other man crawled out of their car and McIntosh returned the gunfire with a revolver he had under the front seat. McIntosh testified he obtained the revolver that afternoon because he took Dixon's threats seriously; however, he waited to shoot until he heard Dixon fire twice with the shotgun. McIntosh sustained gunshot wounds to his right elbow and right side.

Bonnie was rushed to the hospital where amputation of both her legs was performed as a lifesaving attempt. The shock proved too great for Bonnie, however, and she experienced heart failure. She died of hemorrhagic shock, secondary to multiple shotgun wounds of the thighs.

At trial, Dixon presented a very different picture. He testified that he was happy living with Bonnie until she began associating with alcoholics and drug users. At that point, he threatened to divorce Bonnie if she did not stop taking the children around those people. After he was served with a restraining order, he filed for divorce and custody of Anna.

Dixon testified that in September 1989, he flagged Bonnie down in her car on a road in Lawrence. A man got out of Bonnie's car, whom he later recognized as McIntosh, and walked toward him with a gun. Dixon left in his car and reported the incident to the police....