State v. Falke, 56737

• Decision Date: 26 July 1985
• Docket Number: No. 56737,56737
• Citation: 703 P.2d 1362,237 Kan. 668
• Parties: STATE of Kansas, Appellee, v. Richard L. FALKE and Steven J. White, Appellants.
• Court: Kansas Supreme Court

Page 1362

703 P.2d 1362

237 Kan. 668

STATE of Kansas, Appellee, v. Richard L. FALKE and Steven J. White, Appellants.

No. 56737.

Supreme Court of Kansas.

July 26, 1985.

Syllabus by the Court

1. Pursuant to K.S.A. 22-3204, the granting of separate trials of codefendants lies within the sound discretion which the trial court has the power to exercise.

2. Separate trials should be granted under K.S.A. 22-3204 when severance appears necessary to avoid prejudice and ensure a fair trial to each defendant. The usual grounds for severance are: (1) that

the defendants have antagonistic defenses; (2) that important evidence in favor of one of the defendants which would be admissible in a separate trial would not be allowed on a joint trial; (3) that evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury; (4) that a confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) that one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness in the separate trials of such other defendants.

3. When two or more defendants are jointly tried, each defendant has a separate absolute right not to be called as a witness. This right may be waived.

4. In order to be entitled to a severance for the purpose of obtaining the testimony of a codefendant, the movant must demonstrate: (1) a bona fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that the codefendant will in fact testify if the cases are severed.

5. K.S.A. 60-460(m), the business records exception to the hearsay rule, renders admissible included hearsay statements of the employee who made the record, but does not render admissible included hearsay statements of a third person unless the included statements themselves fall under a hearsay exception.

6. The declaration of a mistrial under K.S.A. 22-3423 is a matter which lies within the trial court's discretion.

7. Antagonism between a codefendant's counsel and the prosecutor, which does not prejudicially affect the defendant, is not sufficient to warrant a separate trial for the defendant, nor is it sufficient to warrant the award of a mistrial under K.S.A. 22-3423.

8. The defendant may not invite error and then complain of that error on appeal.

9. A trial judge in passing on a motion for judgment of acquittal at the close of the evidence must determine whether, upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact therefrom, a reasonable mind, or rational trier of fact, might fairly conclude guilt beyond a reasonable doubt.

10. When the defense of voluntary intoxication is asserted in a criminal trial, the issue concerning the level of the defendant's intoxication is a question of fact for the jury. Therefore, on the evidence presented in the opinion a trial court does not err by refusing to hold, as a matter of law, that a defendant was incapable of forming a specific intent due to his level of intoxication.

Roger L. Falk of Busch, Johnson & Falk, Wichita, argued the cause, and Andrew E. Busch, of the same firm, was with him on brief for appellant Richard L. Falke.

M. Duane Coyle of McMaster & McMaster, Wichita, argued the cause, and D. Lee McMaster, of the same firm, was with him on brief for appellant Steven J. White.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on briefs for appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict finding Richard L. Falke and Steven J. White (defendants-appellants) guilty of one count each of attempted second-degree murder (K.S.A.1984 Supp. 21-3301; K.S.A. 21-3402) and aggravated kidnapping (K.S.A. 21-3421). The defendants were jointly tried and convicted.

On appeal both defendants contend the trial court erred in failing to sustain their motions for separate trials. They also contend the trial court erred in failing to sustain their motions for judgment of acquittal. Falke asserts the trial court erred in including certain evidence contained in medical records of his past tendency toward drug and alcohol abuse. Falke also contends the trial court erred in failing to sustain his motion for a mistrial due to prejudicial misconduct of counsel. White asserts, additionally, that his due process rights were violated when the prosecutor, on cross-examination, sought to impeach his testimony with his pretrial, post-Miranda statement.

The events leading to the crime for which the defendants were charged and convicted, began on Thursday, September 8, 1983, when the two defendants left Chanute, Kansas and drove to Wichita, Kansas, in order to "party and everything." They first went to Freddy Ligons' (the victim's) apartment. Falke was acquainted with Ligons, but White had never met him. They arrived at the apartment at approximately 11:30 p.m. While there they drank beer and smoked marijuana with Ligons and his roommate, Marsha Redd. At some point, Ligons excused himself under the pretense of using the restroom, but he did not return. Later, the defendants discovered a stereo and a purse were missing from White's car.

The defendants attempted to locate the missing items while waiting for Ligons to return. When Ligons did not come back, they left and went to the residence of Duane Cook, with whom both defendants were acquainted. They "partied" (drank beer and smoked marijuana) with Cook until 4:00 or 5:00 a.m., at which time they left to return to Falke's residence in Iola, Kansas.

The defendants slept until around noon on Friday. When they awakened, they told Falke's roommate, Roy Culbertson, about the theft and their belief that Freddy Ligons had committed it. Falke borrowed a .22-caliber pistol from Culbertson, explaining that he wanted to use it to get his "stuff" back.

The defendants next went to White's father's house where they asked to borrow a .22-caliber rifle in order to do some target practicing.

They then apparently did do some target practicing. While doing so, they smoked marijuana, drank beer, and made plans to return to Wichita in order to get White's stereo back.

From there, they bought some liquor, and then proceeded to White's brother's house. They told him about the theft. White told him that "a 'nigger' had stolen his stereo, he knew where he was at and they were going to find him, either get the stereo or he would pay them or they would shoot him." White borrowed a 12-gauge pump shotgun from his brother.

They left for Wichita at around 8:30 p.m. White testified that he thought they were going to Wichita to "party" with Duane Cook. However, Falke directed White to drive to Freddy Ligons' apartment. White stayed in the car while Falke paid a call to Ligons. Both Marsha Redd and Ligons were at home. Ligons admitted that he had taken the stereo, and that he had sold it to a "fence" named Horace earlier that afternoon. Falke told Ligons that he would be back to pick him up at around 2:00 p.m. the next day, in order to go target practicing.

Falke and White left Ligons' place and went to see Duane Cook. Not finding Cook home, they went to a tavern where they purchased some L.S.D. According to White, both he and Falke took four or five "hits" of the L.S.D. They later returned to Cook's house where they continued to "party." They left there at around 5:30 or 6:00 Saturday morning and drove back to Ligons' apartment.

At this point, the testimony of the State's witnesses and the testimony of the defendants diverge.

White took the stand in his own behalf and testified that upon their arrival at Ligons' apartment, Falke got out of the car and went inside to get Ligons. White testified that he did not see Falke carrying a gun or holding a gun on Ligons at any time. Falke returned with Ligons and they both got in the car. Ligons sat in the back seat and White said there were two guns in the back seat within his reach.

Ligons gave White directions to go to Horace's house, where they went in order to retrieve the stereo. Once there, Ligons and Falke got out of the car and went up on the porch where someone informed them that Horace was not home and wouldn't be back until 9:00 a.m. The three decided to drive around until Horace returned. White testified that they were all in a good mood. Falke directed White to drive out into the country east of Wichita. They stopped in a field. White stated he "hadn't the faintest" idea why they were there, but that "[s]omething was mentioned about target practicing and everything and I had to use the restroom anyway." They all got out of the car. Falke asked White to get the rifle from the car. White did as he was asked and handed the rifle to Falke. White turned away from Falke and Ligons in order to urinate. As he was preparing to do so, he heard the gun go off. White turned to see Falke looking at him and Ligons falling to the ground. At that point White yelled "wait" and got back into the car. As Falke came around the other side of the car, White heard the second shot.

White testified that afterwards Falke cried and said he had shot his best friend. He also testified that Falke told him the first shot was an accident and that he fired the second time because he panicked. The defendants drove away and left Ligons. White claimed they later attempted to return to "see if he was okay," but they couldn't find their way back.

White also testified that during all of this, he had still been feeling the effects of the L.S.D. He said L.S.D. makes him feel happy and causes him to see colors and hallucinate.

Marsha Redd testified for the State. She said she had returned to Ligons' apartment at around 5:00 a.m. on Saturday. Ligons...