State v. Garnes
| Decision Date | 28 February 1981 |
| Docket Number | No. 52300,52300 |
| Citation | 624 P.2d 448,229 Kan. 368 |
| Parties | STATE of Kansas, Appellee, v. Judy J. GARNES, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The exercise of judicial restraint, in allowing admission as substantive evidence under K.S.A. 60-460(a) of a prior contradictory statement of a witness, is implicit in this exception to the hearsay rule. The trial court ought not admit the evidence if better evidence is available, or if no good purpose is served by receiving it.
2. The instruction on condonation contained in PIK Crim. 54.15 accurately states the law.
3. In determining whether the evidence is sufficient to sustain a conviction, the standard for review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? State v. Voiles, 226 Kan. 469, Syl. P 6, 601 P.2d 1121 (1979).
4. Multiplicity in criminal pleading is the charging of a single offense in several counts.
5. A single offense may not be divided into separate parts; generally, a single wrongful act may not furnish the basis for more than one criminal prosecution.
6. If each offense charged requires proof of a fact not required in proving the other, the offenses do not merge and the charges are not multiplicitous.
7. Where offenses are committed separately and severally, at different times and at different places, they cannot be said to arise out of a single wrongful act.
David L. Hiebert of Gragert & Hiebert, Wichita, argued the cause and was on brief, for appellant.
Beverly Dempsey, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., Vern Miller, Dist. Atty. and Michael Barbara, Asst. Dist. Atty., were with her on brief, for appellee.
Judy J. Garnes appeals her conviction by a jury in Sedgwick District Court of two counts of aggravated battery, K.S.A. 21-3414, one count of aggravated robbery, K.S.A. 21-3427, and one count of attempted murder, K.S.A. 21-3301, 21-3401. The court imposed concurrent sentences. On appeal, the defendant contends that the trial court erred in declaring the victim a turncoat witness, in failing to acquit her on the aggravated battery charges because they were multiplicitous, and on all charges because of insufficiency of the evidence, and in giving a jury instruction on condonation. PIK Crim. 54.15.
The victim, Linda McHone, together with the defendant, Judy Garnes, and Michael Pennington (also know as Sherry) went together in Judy's car to the Elks Club in Wichita around 12:15 o'clock a.m. on September 22, 1979. Judy drove. The women went into the club while Michael remained in the car with his homosexual lover, a man named Charles. About 45 minutes later Linda left the club and returned to the car. After she got in the back seat, Charles hit her in the face four times with his fists. She pulled a knife out of her purse; Charles got out of the car; she tried to get out and Charles struck her two more times; then he started walking toward the club. Knife in hand, she followed.
A crowd had gathered to watch the fight. Judy Garnes left the bar. Linda testified that as she was following Charles, she heard someone call her name; she turned back toward the car, saw Judy, started to walk toward her, and heard two shots. The flash of the gun came from where Judy was standing; the first shot missed but the second hit Linda in the neck.
Both women dropped their weapons. They argued; Judy wanted Linda to go to the hospital, but Linda refused. Finally they got into the front seat of the car. Judy again was the driver; Michael sat in the middle, Linda on the right. They left the area of the shooting, argued about whether to take Linda to a hospital, stopped momentarily at the home of a friend, drove around some more, and finally stopped in a field some distance north and east of Wichita.
Linda and Judy both testified that Michael pulled a gun and pointed it at Linda's head; he stabbed her in the back with a knife and then pushed her out of the car. Next, he pointed the gun at Judy, gave her the knife and told her to kill Linda; he threatened to kill Judy if she did not comply. Judy got out and walked around the car. Michael locked the doors, continued to keep the gun pointed at Judy, and told Judy to "finish her off." Judy said, She stabbed Linda twice in the back and twice in the rib cage. Michael got out of the car and took the knife. Judy took Linda's vest off; Michael removed the rest of Linda's clothes and stabbed her between the legs. He threw the clothes in the back seat and pulled Judy into the car. Michael drove the car over Linda three times; the last time one of her legs caught in the undercarriage and she was dragged about thirty feet. He then drove off, leaving Linda in an open field, nude, with six stab wounds, one gunshot wound, and a broken pelvis. She was discovered by a farmer about ten o'clock the following morning; she was rushed to the hospital; remarkably, she survived.
Linda gave several taped statements to the investigating officers while she was in the hospital. These differed materially from her trial testimony. In the statements she said that she did not see the gun out in the country; Michael did not pull the gun out, and he did not get out of the car. Judy alone was primarily responsible. Judy said she was going to cut Linda's heart out, that she was going to kill her. Judy stabbed her in the back while they were still in the car. Linda got out and Judy came at her with the knife. Michael locked the car so Linda couldn't get back in. Judy stabbed her between the legs, then stabbed her four or five times more. It was Judy who took all of Linda's clothes off and it was Judy who drove the car and ran over Linda three times.
We turn first to the action of the trial court in declaring Linda McHone a turncoat witness, and in allowing her prior statements to be introduced not only for impeachment purposes but as substantive evidence. The victim testified at trial that the defendant knifed her at the direction of Michael Pennington, who ordered her to do it and who held her at gunpoint to enforce that order. She also testified that Pennington drove the car and ran over her. The earlier statement said that it was Judy Garnes who took the initiative, Judy Garnes who threatened to kill her and who attempted to do so with knife and car. The statements were given shortly following the acts; the testimony came four months later, after an exchange of correspondence and after Judy and Linda had been incarcerated together. This was a substantial change in the victim's version of the events, an important change insofar as the intent of the defendant is concerned.
The trial judge heard the testimony of the victim, was advised of the changes in her story of the events, heard arguments of counsel, researched the law, and gave the matter careful consideration before he declared her a hostile witness. As we stated in State v. Fisher, 222 Kan. 76, 78, 563 P.2d 1012 (1977), the exercise of judicial restraint in allowing admission of evidence under K.S.A. 60-460(a ) is implicit in this exception to the hearsay rule. The trial court ought not admit the evidence if better evidence is available, or if no good purpose is served by receiving it. It is a matter which the trial court must determine on the facts of each case by the careful exercise of judicial discretion. Here, the evidence differed materially from that otherwise available; it was available through no other source; and it was germane and relevant to the issues before the jury. We think the trial court was correct in declaring her hostile and in admitting the evidence. We find no abuse of discretion.
The trial court instructed the jury that, "It is not a defense that the injured party or victim has excused or forgiven the offense committed." The instruction is taken from PIK Crim. 54.15, and accurately states the law. It is not challenged on that basis; instead, defendant contends that the evidence does not justify the giving of the instruction because (1) the evidence does not establish that the defendant committed any crime, (2) the evidence does not establish that the victim has forgiven the defendant for committing a crime against her, and (3) the instruction invades the province of the jury.
In determining whether the evidence is sufficient to establish that defendant...
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...attempts to use a single wrongful act as the basis for multiple charges and is based on the merger of the charges. State v. Garnes, 229 Kan. 368, 372, 624 P.2d 448 (1981). This concept has been a part of Kansas law since at least our decision in State v. Colgate, 31 Kan. 511, 515, 3 Pac. [P......
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