State v. Gadelkarim

• Decision Date: 07 December 1990
• Docket Number: No. 63653,63653
• Citation: 802 P.2d 507,247 Kan. 505
• Parties: STATE of Kansas, Appellee, v. Nasif GADELKARIM, Appellant.
• Court: Kansas Supreme Court

Page 507

802 P.2d 507

247 Kan. 505

STATE of Kansas, Appellee, v. Nasif GADELKARIM, Appellant.

No. 63653.

Supreme Court of Kansas.

Dec. 7, 1990.

Syllabus by the Court

1. A defendant may rely on the defense of voluntary intoxication where the crime charged requires specific intent, and an instruction thereon is required if there is evidence to support the defense.

2. The trial court has an affirmative duty to instruct on all lesser included crimes if there is any evidence upon which the defendant might reasonably be convicted of the lesser offense. The evidence, considered in the light most favorable to the defendant, need not be strong or extensive but may be weak and inconclusive. If there is no evidence, however, by which the jury might reasonably convict of the lesser crime, the instruction need not be given.

3. Voluntary manslaughter, the unlawful killing of a human being without malice, which is done intentionally upon sudden quarrel or heat of passion, is a lesser included offense of first-degree murder. K.S.A. 21-3403. There must be adequate provocation to establish the reduced homicide. Words or gestures must be accompanied by other conduct to be considered adequate provocation.

4. A mere statement that the victim made the defendant "crazy" is not evidence of provocation leading to heat of passion or sudden quarrel.

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

Bruce L. Stewart, Asst. Dist. Atty., argued the cause, Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.

HERD, Justice:

Nasif Gadelkarim was convicted of first-degree murder (K.S.A. 21-3401) and unlawful possession of a firearm (K.S.A. 21-4204). Gadelkarim was sentenced to life imprisonment on the murder conviction and three to ten years' imprisonment for the unlawful possession of a firearm charge. The sentences run consecutive to each other and consecutive to any sentence imposed in a prior pending case.

The facts are as follows: On December 3, 1988, at 7:36 a.m., Gadelkarim called the Emergency Communication Services of Sedgwick County. He told the dispatcher he had killed his girlfriend and wanted someone to come and get him. At trial, Gadelkarim testified he drank one-half bottle of vodka and one-half bottle of rum between 1:00 p.m. and 9:00 p.m. on Saturday, December 2. On Saturday evening Gadelkarim and his girlfriend, Debbie Cagel, drove from Clearwater to Wichita to purchase supplies for the restaurant they owned. Gadelkarim stated he drank another large rum beverage on the trip to Wichita. Upon returning to Clearwater, Gadelkarim and Cagel went to Roger's Place, a local bar, where Gadelkarim drank five to six Scotch beverages. Gadelkarim testified he did not remember paying the bar tab but was tired and walked home, leaving Cagel to play pool with another bar patron. Gadelkarim stated he went to sleep on a hide-a-bed in the living room and did not hear or remember anything until Sunday morning when he was awakened by the restaurant waitress knocking on the front door. Gadelkarim told the waitress Cagel would soon be at the restaurant to open up. Gadelkarim stated he looked in the bedroom and bathroom before finding Cagel face down on the living room floor. At trial, Gadelkarim testified he told police on December 3 that he killed Cagel because he did not want to live without her. Gadelkarim also testified, however, that he could not remember telling anyone he killed Cagel because he was still drunk.

Joseph Pierce, the owner of Roger's Place, testified that Gadelkarim and Cagel arrived at the bar around midnight on December 2. Gadelkarim drank five one and one-half ounce Scotch and waters while Cagel drank Bloody Marys. Before leaving, Gadelkarim tipped the bartender and handed out dollar bills to several women sitting at the bar. Cagel collected the money from the women, but this irritated Gadelkarim and he threw more money on the bar. Cagel eventually collected the dollar bills and the couple left together.

Gadelkarim was arrested on Sunday, December 3. Several officers testified to the incriminating statements made by Gadelkarim. Officer Koch testified that Gadelkarim said, "I shot Debbie, I shot the bitch." Koch also stated Gadelkarim appeared to have been drinking, but had no difficulty with movements and did not smell of alcohol. Gadelkarim told another officer he did it and he meant to do it. Gadelkarim told yet another officer that it all started when he and Cagel went to Roger's Place and Cagel took back the money he had given to several women. Gadelkarim told the officer he did it because he was innocent of a prior conviction of molesting the decedent's son.

A Breathalyzer test was performed at 11:12 a.m. on December 3. The test revealed Gadelkarim's blood alcohol concentration was .169. While at the police station, Gadelkarim told Officer Smith, "[L]ook at me nice and easy, I shot the bitch." Gadelkarim also told Smith that Cagel had made him "crazy".

Cagel was found face down, in a kneeling position, wedged between a chair and a hide-a-bed. She had suffered two gunshot wounds. The residence was in disorder and several empty bottles of various liquors were found in the kitchen. Evidence indicated the bullet found in Cagel's body was fired from a .38 caliber Rossi revolver found in the residence.

Gadelkarim was convicted as previously set out. He appeals.

We consider Gadelkarim's first argument that the trial court committed reversible error in refusing to give an instruction on voluntary intoxication.

Gadelkarim's primary defense at trial was that he did not commit the murder. Therefore, Gadelkarim sought a jury instruction on first-degree murder only. If, however, the trial court gave instructions on any other lesser included offenses, then Gadelkarim requested an instruction on voluntary intoxication. Since the trial court did in fact give jury instructions on first-degree murder and second-degree murder, a lesser included offense, Gadelkarim contends it was error not to provide a jury instruction on voluntary intoxication.

K.S.A. 21-3208(2) provides:

"An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind."

Where the crime charged requires specific intent, voluntary intoxication may be relied on as a defense and an instruction thereon is required if there is evidence to support the defense. State v. Keeler, 238 Kan. 356, 360, 710 P.2d 1279 (1985); State v. Sterling, 235 Kan. 526, Syl. p 2, 680 P.2d 301 (1984); State v. Rumble, 81 Kan. 16, 211, 105 Pac. 1 (1909). It is not error, however, to refuse to give a voluntary intoxication instruction where there is not sufficient evidence to submit the issue of intoxication to the jury. See State v. Shehan, 242 Kan. 127, 131-32, 744 P.2d 824 (1987). Thus, unless evidence is presented to the jury that shows the defendant was intoxicated to the extent his ability to form the requisite intent was impaired, no voluntary intoxication instruction is required. Statements of an accused can negate testimony about consumption of alcohol and thus justify a court's refusal to instruct on voluntary intoxication. State v. Payton, 229 Kan. 106, 114, 622 P.2d 651 (1981).

In Payton, the defendant was convicted of felony murder and attempted aggravated robbery. The defendant testified he consumed considerable amounts of alcohol and became intoxicated on the day the crimes were committed. The defendant also described the events of the day leading up to the crime and described in detail conversations he held just prior to the criminal events. 229 Kan. at 113, 622 P.2d 651. We ruled the defendant's confession disclosed that his mental capacity was not significantly impaired and therefore it was not error to refuse to give a voluntary intoxication instruction. 229 Kan. at 113-14, 622 P.2d 651.

In State v. Carr, 230 Kan. 322, 634 P.2d 1104 (1981), conflicting evidence on the level of the defendant's intoxication was presented. Two witnesses testified the defendant lost control of his physical movements and passed out but the arresting officer testified the defendant knew his apartment number and the apartment number of the leasing agent and...