State v. Foy
| Citation | 224 Kan. 558,582 P.2d 281 |
| Decision Date | 21 July 1978 |
| Docket Number | No. 49250,49250 |
| Parties | STATE of Kansas, Appellee, v. Roger D. FOY, Appellant. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. When an appellant, who alleges error in the fixing of bail, fails to file a writ of habeas corpus and does not claim his defense was hampered by his custody status on appeal, the matter of pretrial release is moot.
2. An information in the ordinary form charging that a killing was done with malice aforethought, deliberation and premeditation is sufficient to sustain a conviction of murder in the first degree committed in the perpetration of a burglary. (Following State v. Turner, 193 Kan. 189, 392 P.2d 863 (1964).)
3. The felony-murder doctrine is not applicable in cases of felonious assault resulting in death because the assault merges into the homicide; however, the merger doctrine does not apply in felony-murder cases where the underlying felony is aggravated burglary based upon an aggravated assault.
4. In the trial of a first-degree murder case the defendant is prejudiced when, at the close of the state's case, the prosecuting attorney specifically and unequivocally advises the court that the state is going to withdraw its request for an instruction on felony murder, and then, after the defendant presents his evidence, the trial court, at the request of the prosecuting attorney, instructs the jury on felony murder.
5. When murder is committed during the commission of a felony the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first-degree murder. But when the evidence of the underlying felony is weak and inconclusive instructions on lesser included offenses must be given.
6. The filing of a pre-sentence report is discretionary in Kansas. The defendant may be sentenced immediately after a plea of guilty or a conviction.
7. Remoteness in time of a former conviction does not automatically render a sentence suspect.
8. In an appeal from a jury verdict which found the appellant guilty of felony murder under K.S.A. 21-3401, the record is examined and it is held: For the reasons set forth in the opinion the judgment of the lower court is reversed with instructions to grant a new trial.
Jack W. Shultz, Dodge City, argued the cause and was on the brief for the appellant.
Judd Dent, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for the appellee.
This is an appeal in a criminal action from a jury verdict which found Roger D. Foy (defendant-appellant) guilty of felony murder (K.S.A. 21-3401).
Numerous trial errors are asserted on appeal for reversal of the conviction and sentence.
The appellant and Sharon Foy were married in Littleton, Colorado, in 1966. Their marriage was characterized by frequent periods of discord and violence. Sharon obtained a divorce from the appellant in 1973; however, the two continued to live together at various intervals. The appellant testified he attributed his marital problems largely to interference by Sharon's mother, Mrs. Grace Kruelhous.
The appellant and Sharon were living together with their family in the basement of Grace Kruelhous' home in Dodge City, Kansas, on January 1, 1976, when the events leading up to the shooting began. During the afternoon of New Year's Day Sharon went drinking with some girl friends. Subsequently, she accompanied the group to a private party at Marvin Schmidt's trailer where she continued to drink and smoke marijuana. When Sharon had not arrived home by 7:00 p. m. the appellant and a friend began looking for her. After finding her at Schmidt's trailer the appellant demanded she return home. When Sharon refused, the appellant slapped and kicked her in front of the others.
The following day Sharon signed a complaint charging the appellant with battery. For some reason the complaint was not filed until January 19, 1976. In any event, Sharon told the appellant she had signed the complaint at her mother's urging and asked him to live with her brother, Rex Kreie, in order to "give Mom a chance to cool off," but the appellant and Sharon continued to see one another until the night she was shot and killed.
On January 20, 1976, the appellant was served at work with a summons for the battery charge. He borrowed a truck from his employer and went to the cafe where Sharon was working to discuss the situation. Apparently, she assured him they would talk when she got off work. The appellant then began drinking, and when Sharon failed to contact him, he started calling Grace Kruelhous' home.
The appellant testified on two of these occasions he heard Grace holler to "Hang up on the son-of-a-bitch and call the Police." After informing Sharon he contemplated suicide she urged him to visit a relative of hers to talk and to pray. The appellant did visit Sharon's aunt, Elsie Sterling, and she and her husband counseled and prayed with him.
After returning home the appellant resumed his drinking and decided to walk to Grace's house in order to talk to Sharon. He testified he took a sawed-off shotgun with him thinking if Grace interfered, he would kill her. As he approached the Sonic Drive-In he saw his friend Steve Smith and asked him for a ride to Grace's house. Smith testified he asked the appellant what he was going to do with the gun and the appellant answered, "blow somebody's shit away." When Smith asked to whom he was referring, the appellant answered, "The old lady." The appellant testified he was referring to Grace. After this conversation the appellant put the gun in his pants and pulled his coat over it.
Grace Kruelhous testified at approximately 8:00 p. m. she and Sharon had been watching television when the appellant opened the front door and walked in. While the evidence is conflicting, Sharon allegedly stated, "Roger, you are not supposed to be in mamma's house." She said that she would "call the Law" if he did not leave. The two stood facing each other in the front hall at the time. As Grace arose from her chair to call the police the appellant glanced in her direction and in his anger squeezed down on the hammer. The gun discharged shooting Sharon in the face and killing her instantly.
The appellant then threw the gun into the air and ran from the house. He proceeded to wander around the streets until police sirens frightened him. Thereafter, he walked to Lois Baxley's home and asked her to drive him to Haysville, Kansas, where his close friend, Kenneth Cupp, lived.
Mrs. Baxley and the appellant drove immediately to Haysville where the appellant informed Cupp he had killed Sharon. Cupp testified he did not believe the appellant because he thought the couple had been in another fight and the appellant had "probably scabbed her up again." Cupp decided the appellant should go to a motel and get some sleep and the two arranged to meet at 11:00 a. m. the next day so that Cupp could help the appellant turn himself in.
After the appellant left his home Kenneth Cupp became concerned the story might be true. He called a friend at KAKE radio station in Wichita, Kansas, and was advised the appellant was wanted for the murder of his wife. Cupp then drove to Wichita in order to search for the appellant and enlisted the aid of Officer William C. Naholnik of the Wichita Police Department.
The appellant and Lois Baxley were found at the El Rancho Motel on South Broadway, and they were arrested. Officer Naholnik testified the appellant made certain incriminating statements to him en route to the police station after he was given the Miranda warning.
Subsequently, the appellant was arraigned on June 18, 1976, and pled not guilty to the charge of first-degree premeditated murder set forth in the information. His motions for a change of venue and reduction of bond were overruled.
At the trial the judge instructed the jury, over objection, on the theory of felony murder based upon aggravated burglary as the underlying felony. The jury then found the appellant guilty of first-degree murder under the felony murder provisions of the statute. The trial court over objection, immediately sentenced the appellant to two life sentences under the Habitual Criminal Statute. The appellant's motion for a new trial was denied and appeal has been duly perfected.
The appellant first contends the trial court erred in overruling his motion for change of venue. In support of this motion he filed copies of numerous newspaper articles and radio stories concerning the crime. He also offered seven identical affidavits from various business people in Ford County and testimony of the undersheriff indicating he could not receive a fair trial in the county.
The granting of a change of venue lies within the sound discretion of the trial court. The burden is on the defendant to show prejudice in the community not as a matter of speculation but as a demonstrable reality (State v. Cates, 223 Kan. 724, 730, 576 P.2d 657 (1978); State v. Sanders, 223 Kan. 273, 279-80, 574 P.2d 559 (1977); State v. Gilder, 223 Kan. 220, 223, 574 P.2d 196 (1977); and State v. Porter, 223 Kan. 114, 117, 574 P.2d 187 (1977).) Media publicity alone has never established prejudice Per se. (State v. Gilder, supra, 223 Kan. at 223, 574 P.2d 196 and State v. Porter, supra, 223 Kan. at 117, 574 P.2d 187.) The mere inclusion of identical conclusory type affidavits is generally not considered a plausible showing of prejudice. (State v. Black, 221 Kan. 248, 249, 559 P.2d 784 (1977).)
In this case the newspaper articles are neither inflammatory nor unduly suggestive. In fact, some do not even mention the appellant. The trial court properly denied the motion for change of venue under the circumstances.
The appellant next asserts the trial court erred in requiring excessive bail and...
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