State v. Duncan

• Decision Date: 05 March 1977
• Docket Number: No. 48438,48438
• Parties: STATE of Kansas, Appellee, v. Harry F. DUNCAN, Appellant.
• Court: Kansas Supreme Court

Page 84

562 P.2d 84

221 Kan. 714

STATE of Kansas, Appellee, v. Harry F. DUNCAN, Appellant.

No. 48438.

Supreme Court of Kansas.

March 5, 1977.

Syllabus by the Court

1. It is the prerogative of a jury to determine the credibility of witnesses, the weight to be given the evidence, and the reasonable inferences of fact which may be drawn from the evidence.

2. On appellate review the question is not whether the evidence establishes guilt beyond a reasonable doubt but whether the evidence was sufficient to form a basis for a reasonable inference of guilt.

3. On motion it is the duty of a trial court, before admitting a purported confession into vidence, to conduct a hearing separate and apart from the jury to determine from the evidence as a preliminary matter whether the confession was freely and voluntarily made by the accused.

4. Discrepancies in facts not bearing on voluntariness or which relate to the credibility of a witness to a confession are irrelevant to an inquiry under K.S.A. 22-3215.

5. This court will not reverse the trial judge on a discretionary matter except for an abuse of discretion which affirmatively appears to have affected the substantial rights of the party complaining.

6. When the testimony sought requires proper foundation and knowledge to express an opinion and it is not shown the witness has such knowledge, the opinion testimony is so conjectural as to lack probative value and may be properly excluded by a trial court.

7. The record on appeal from a conviction of murder in the first degree is examined and it is held no reversible error has been shown for any of the reasons urged.

M. C. Slough, Shawnee, Mission, argued the cause and was on the brief for appellant.

Douglas J. Walker, Jr., Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Dennis W. Moore, Dist. Atty., were with him on the brief for appellee.

FROMME, Justice.

Harry F. Duncan was convicted by a jury of murder in the first degree (K.S.A. 21-3401). He was sentenced to imprisonment for life and appeals from his conviction and sentence.

He raises three trial errors including a claim of insufficient evidence to warrant a conviction. It is necessary to relate in detail the facts as developed by the evidence at the trial.

The nude body of an unidentified woman was discovered in a clump of trees along Frisby Road south of Bonner Springs in Johnson County, Kansas, on June 18, 1974. The body was found in a secluded area, had no teeth and was in a state of decomposition. The officers at the scene found no clues to the woman's identity. Items of clothing were found in a neat pile near the nude body. An autopsy disclosed that death was caused by several blows to the face and head by a heavy blunt instrument, such as a hammer. There was a fracture on the left side of the skull. The upper jaw was fragmented. The bones of the nose and nasal cavity had been fractured and there was an absence of bony structure around the left eye socket.

The deputy coroner who visited the scene placed the approximate date of death on June 15, 1974. He noted a lack of blood around the area and testified some 14 months later at the trial that the lack of blood might point to the fact that the death occurred elsewhere. The body was covered with fly larvae since the death had occurred in warm weather and the body was outdoors. He further testified that any blood spattered about during the homicide might disappear in the loose, sandy soil and be consumed by the large number of flies which were present.

Seven months after the body was found the police received a tip from an informer and defendant Duncan was arrested. Further investigation disclosed that sheriff's deputies had been in that general area three days before the body was found but at that time they were not aware of the presence of the body. They had been called to help two motorists stranded on Frisby Road at 5:00 a. m. on June 15, 1974. The motorists were Harry F. Duncan, defendant, and Beverly Jean Thompson. They had left their car and walked to the first house down the road but were advised to go to the next house. The couple went to the second house, were refused help and were walking on down the road when the officers arrived. The people in the second house had called the sheriff's office.

The couple advised the officers that the battery on their car had run down while they were making love in the car with the car lights on. The officers noticed nothing strange about their appearance and took them back to their car. The car was a mile or so down the road and was parked near the clump of trees where the woman's body was found several days later. The officers used jumper cables to start the car. Mr. Duncan and Mrs. Thompson then drove away. The officers noticed no blood on the car and nothing strange about the area.

When Duncan was arrested for the murder 7 months later the foregoing facts surfaced and both Duncan and Mrs. Thompson were questioned. Duncan gave a statement to Detective Donald D. Hall. Mrs. Thompson testified at the trial as an eyewitness to the homicide. Her bizarre story was quite similar to the oral confession by Duncan. Duncan's statement or confession was related to Detective Hall and Detective Hall testified concerning the statements made to him by Duncan.

Mrs. Thompson testified that Duncan had been living with her for some time. They had been drinking on the night of June 14 and on the morning of June 15, 1974. They visited at least two night clubs where they engaged in drinking and then drove over to Kansas City, Missouri. Duncan was driving Mrs. Thompson's car and he picked up a woman somewhere on Broadway. They did not know the woman but she got into the car with them. Mrs. Thompson testified the woman was wearing a dark pullover top and a light pair of slacks. The woman carried no purse. The woman was advised they would take her some place to eat. They then drove to the area where the body was found, stopped the car and left the car lights burning. They all got out of the car and Duncan ordered the unknown woman to take off all her clothes. She did so and then Duncan picked up 'something' and began to sexually molest her. He rammed a stick or 'something' into her groin area, then ordered her to lean against the car. He then stuck 'something' into her rectum or possibly her vagina two or three times. Mrs. Thompson testified the woman did not utter a sound until Duncan attempted to cut or pinch off one of the woman's breasts and then the woman said, 'I am a hurt woman'. Duncan then started hitting the woman on the head and on the left side of her face with a hammer.

Mrs. Thompson testified that she attempted to intervene but was struck with the hammer and she retreated to the back of the car. She reported that three of her ribs were cracked by Duncan in the melee. She begged Duncan to take the woman to a hospital but he refused saying 'he had to kill her'. Mrs. Thompson said she watched Duncan drag the victim to a clump of trees. The woman was still partially able to move under her own power. Ten minutes later Duncan returned with a hammer in his hand. Mrs. Thompson testified that when Duncan returned to the car the headlights were dim and they were unable to start the engine. They began walking down the road to obtain help, stopped at two houses and finally received help from the sheriff's officers.

On cross-examination she stated that her story to the officers about making love with the car lights on was untrue. She did not tell them about the murdered woman because she was in a state of shock and feared for her own life. Duncan had threatened and tortured her in the past. She testified that Duncan threw the hammer out of the car while they were driving home. During examination on the witness stand Mrs. Thompson stated she had first met Duncan when both were inpatients at the Rainbow Mental Health Unit at Osawatomie. When they were released Duncan came to live with her. Her former husband was in the penitentiary. Two weeks after Duncan was arrested her former husband, Wesley, was released and came to live with her.

The items of clothing found in the pile near the body of the victim, including a dark pullover top and a light pair of slacks, were identified by Mrs. Thompson as the clothes worn by the murder victim.

Detective Donald D. Hall testified that he interviewed Harry F. Duncan shortly after his arrest on January 19, 1975. The interview was conducted in the afternoon and lasted two or three hours. To the best of his recollection KBI Agent Jim Malson and Detective Dwight Cobb were present during the interview. The oral confession of Duncan, which Detective Hall related on the witness stand, followed closely the facts given by Mrs. Thompson. In addition, he related that Duncan advised him that when he had been drinking he had to torture a woman to get sexual release and reach a sexual climax. Duncan had previously used such means of reaching a sexual climax with Beverly Thompson.

Agent Malson was not available and did not testify at the trial. Detective Cobb testified that when he arrived in Detective Hall's office the interrogation of Duncan was underway. To the best of his recollection the interrogation of Duncan ended within five or ten minutes after he arrived. At no time while he was present did Duncan admit any part in the homicide or any knowledge thereof.

Defendant Duncan testified at the trial. He admitted drinking with Mrs. Thompson on June 14 and 15, 1974, driving out on Frisby Road where the car stalled, receiving help from the officers and returning to Mrs. Thompson's home. He denied any knowledge of the unidentified woman, denied being in Kansas City, Missouri, and denied any part in the homicide. He admitted talking to Detective Hall in his office about the evening's activities on June 14, but stated he never admitted any knowledge of the murdered woman or said anything to indicate he had...