State v. Follin
| Decision Date | 31 October 1997 |
| Docket Number | No. 74874,74874 |
| Citation | 263 Kan. 28,947 P.2d 8 |
| Parties | STATE of Kansas, Appellee, v. Rick E. FOLLIN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. 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. The duty to so instruct exists only where the defendant might reasonably be convicted of a lesser offense.
2. The test of the sufficiency of the provocation to support a voluntary manslaughter conviction is objective and not subjective. The provocation must be by the person killed and be sufficient to cause an ordinary person to lose control of his or her actions and reason.
3. An intentional killing is not done in the heat of passion if sufficient time has elapsed between the provocation and the killing for an ordinary person to regain reason.
4. When the sufficiency of the evidence is challenged for establishing the existence of an aggravating circumstance in a hard 40 sentencing proceeding, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt.
5. All murders are heinous, atrocious, and cruel. The legislature, by using the phrase "in a particularly heinous, atrocious, or cruel manner," meant that the heinous, atrocious, or cruel manner must be in a special or unusual degree, to an extent greater than in other cases.
6. K.S.A.1993 Supp. 21-4627(3)(b) requires this court to consider whether the evidence supports the finding or findings of aggravating circumstances and, if so, then to weigh the aggravating circumstances against mitigating ones.
Thomas Jacquinot, Special Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief for appellant.
Mike Ward, county attorney, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellee.
Rick Follin fatally stabbed his 3- and 4-year-old daughters. He was convicted by a jury of two counts of first-degree murder, and he was sentenced to two consecutive hard 40 terms of imprisonment. He appeals the convictions and sentences.
At approximately midday on Saturday, February 5, 1994, a passing motorist, Val Taylor, saw Rick Follin slumped over the steering wheel of his pickup, which was parked near El Dorado Lake. In response to Taylor's questions, Follin indicated by nodding his head that he had tried to kill himself. When Taylor opened the driver's door of Follin's truck, he saw a knife on the floor and he glimpsed blond hair on the seat to Follin's right. Taylor asked Follin if he had killed the child, and Follin indicated that he had. Taylor flagged down another vehicle and asked that person to get help. He returned to the truck, opened the passenger side door, removed a coat, and found two children beneath it on the seat. Neither child had a pulse, and Taylor noted that rigor mortis had set in. When Taylor asked Follin why he had killed the children, Follin replied that "it was his family he could do what he wanted to."
The children were Rick and Sherri Follin's 3- and 4-year-old daughters, Hanah and Kylie. Autopsies showed that each girl had three stab wounds from a single-edge knife in the chest and upper abdomen area. There were no cuts in the clothing because each girl's left arm had been removed from the sleeve of her clothing, thus exposing her chest. The fatal wound for each of the girls perforated her heart. In the pathologist's opinion, the wounds were inflicted by a person with "a knowledge of anatomy to know the location of the heart, and for the knife to be placed between the ribs and not go through the bone." There were no wounds on the girls' hands or arms that would indicate they had tried to defend or protect themselves. The pathologist noted that Kylie had some bruises and scrapes that may have been produced at about the same time as the stabbings.
Rick Follin was flown from El Dorado Lake to Wesley Medical Center in Wichita, where he was treated for a self-inflicted wound in the right side of his neck and a laceration to his left wrist. He was discharged to police custody on February 7. His medical records include several accounts of statements made by Follin to hospital personnel: "The patient does state that he killed both of his children by stabbing and then tried to commit suicide," and "He states that he had not been planning this for any appreciable length of time but did appear somewhat distraught." Dr. Pankow, who saw Follin on February 6, reported
Dr. Pankow also noted that Follin "denies any psychiatric problems in past" and there was "no evidence of psychotic thinking" at the time of the examination.
In September 1993, Follin began to suspect that Sherri was being unfaithful to him, but she denied it. Follin testified that he bought two microcassette recorders at the end of January, one for taping Sherri's telephone conversations and one for the girls to play with.
On Friday, February 4, Follin went to work at 6 a.m. as usual. Sherri's routine was to take the girls to day care between 7:30 and 8 a.m., on her way to work. On February 4, Follin stayed at work until Sherri left the house, then he went home to listen to the tape. Sherri's voice was on the tape telling someone "how much she missed him." Follin testified that he was devastated because "these were the three most important people in my life, and they were--I was losing them, they were going away." He also testified that "everything I ever wanted was being taken away from me."
Follin went back to work. When he left work at 2:30 p.m., he went home and listened to the tape again. At approximately 4 p.m., he resumed his Friday routine. He picked up the girls at day care, and they went to the bank where the girls always got a piece of candy; he got cash for the coming weekend. When they got home, Follin called Sherri at work, let her know that he had taped her morning telephone conversation, and told her to come home to talk to him. According to Follin, she said that she would work until 5:30 p.m. and then bring somebody home with her. She would not say who the other person was. Follin took the girls and left the house "cause [he] wasn't going to be there when she brought somebody home." When Sherri went home, she was accompanied by Diana Hutchinson, a friend and co-worker, and police officers because Sherri was afraid. She testified,
Follin testified that El Dorado Lake became his destination because he had promised the girls earlier in the week that they would go there on Friday, and Kylie had asked on the way home from the bank whether they were still going to go. First they drove around for an hour and a half to 2 hours, got a soft drink and some small, packaged doughnuts, and the girls busied themselves singing into the tape recorder. At approximately 6:15 p.m., after the police left the Follins' house, Follin called Sherri from a gas station/convenience store. When she answered, he said, "Are you going to tell me who this person is yet?" When she said she would not, he told her that they were going to get something to eat and would call her later. He did not intend to take the girls home until Sherri told him whom she had been talking to on the telephone.
Follin and the girls drove to the lake, stopped, and counted stars. He let the girls go to the bathroom, and they got back in the truck. Follin described what happened next: Follin testified that the next thing he remembered was comforting the girls as they were crying. At trial, he denied having any recollection of stabbing the girls.
The bloody knife that was found on the floor of Follin's truck was a butcher knife from a set of knives kept in a drawer in the Follins' kitchen. He testified that the butcher knife had been in the truck for 4 to 5 months and that he used it to cut candy bars for the girls by placing the candy on his leg and cutting it lengthwise. Sherri testified that she rode in the truck once or twice a week and that she had never seen the butcher knife in the truck. Nor had she ever seen Follin use anything other than a paring knife to cut up food for the girls.
Dr. William Logan, a psychiatrist who had examined Follin on two occasions, testified that Follin's thinking on the day he killed his daughters was very dejected, depressed, and morbid. If there had been a voice to provide hope and rationality to counterbalance Follin's thinking, Dr. Logan believed that Follin would have been prevented from killing his daughters. In Dr. Logan's opinion, however, without someone else's providing rationality, Follin's "depression was severe enough and his despondence great enough that he was not sane at the time he killed his daughters." Testifying for the State, Dr. Neil Roach, another psychiatrist, gave the opinion that Follin knew what he was doing when he stabbed his daughters and knew that it was wrong and illegal.
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