State v. Gibbons

• Decision Date: 03 February 1995
• Docket Number: No. 70249,70249
• Citation: 256 Kan. 951,889 P.2d 772
• Parties: STATE of Kansas, Appellee, v. Jon C. GIBBONS, Appellant.
• Court: Kansas Supreme Court

Page 772

889 P.2d 772

256 Kan. 951

STATE of Kansas, Appellee, v. Jon C. GIBBONS, Appellant.

No. 70249.

Supreme Court of Kansas.

Feb. 3, 1995.

Syllabus by the Court

1. Under K.S.A. 21-3107(3), the defendant in a criminal prosecution has a right to have the court instruct the jury on all lesser included offenses established by substantial evidence. Where there is no substantial evidence applicable to the lesser degrees of the offense charged, and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary.

2. Before a federal constitutional error can be held harmless, a court must be able to declare a belief that the error was harmless beyond a reasonable doubt.

3. A party may not assign as error the giving or failure to give an instruction unless the party objects before the jury retires to consider its verdict. The objection must distinctly state the matter to which the party objects and the grounds for such objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3).

4. A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge or indicated the substance of the expected evidence by questions indicating the desired answers. K.S.A. 60-405.

5. Any evidence which has a tendency in reason to establish a material fact is relevant and may be admitted into evidence. There is no presumption that the exclusion of evidence which was properly admissible and relevant to an issue in the case is harmless. If any presumption is to be indulged, the presumption would be that a just result could hardly be expected unless the factfinder has before it all of the relevant evidence which it is entitled to consider.

6. K.S.A. 60-404 states that a verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.

7. The trial court may terminate the trial and order a mistrial at any time that it finds termination is necessary because prejudicial conduct makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution. K.S.A. 22-3423(1)(c).

8. Before an objectionable statement made by a prosecutor on matters outside the record will entitle the accused to a reversal of his or her conviction, it first must appear that it was injurious to the accused and was likely to affect the jurors to the accused's prejudice. Improper remarks in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial.

9. In deciding whether improper remarks by the prosecution during closing argument constitute harmless error, the reviewing court must be able to find that the error had little, if any, likelihood of changing the result of the trial. Such a belief must be declared beyond a reasonable doubt.

10. When a criminal appeal is docketed, the trial court's jurisdiction ends and the sentence may then be modified only after the mandate from the Supreme Court or Court of Appeals is returned, or by motion to remand temporarily for modification of sentence. The filing of a notice of appeal divests the district court of jurisdiction to hear a motion to modify a sentence.

Jean K. Gilles-Phillips, Asst. Appellate Defender, argued the cause, Wendy L. Rhyne Slayton, Sp. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, were on the briefs for appellant.

Brandi L. Dunning, Asst. County Atty., argued the cause, and Robert Forer, County Atty. and Robert T. Stephan, Atty. Gen., were with her on the brief for appellee.

LOCKETT, Justice:

Defendant appeals his convictions and sentencing on one count of attempted first-degree murder, a class B felony in violation of K.S.A.1991 Supp. 21-3301 and K.S.A.1991 Supp. 21-3401, and one count of possession of a concealed weapon, a class B misdemeanor in violation of K.S.A. 21-4201(d). Defendant claims that (1) the trial judge failed to instruct on attempted second-degree murder as a lesser included offense of attempted first-degree murder; (2) he was denied the right to present a defense; (3) evidence was improperly admitted of prior spousal abuse; (4) the prosecutor's remarks during closing argument prejudiced his right to a fair trial; (5) the judge's orientation of prospective jurors was unconstitutional; (6) he was improperly sentenced under K.S.A.1991 Supp. 21-4618; and (7) the district court was without jurisdiction to modify his sentence.

On February 6, 1992, in Parsons, Kansas, Jon C. Gibbons shot John David Roberts. Prior to the shooting, Roberts had been involved in an extramarital affair with Gibbons' wife, Lee Ann. At the time of the shooting, Gibbons and Lee Ann were in the process of obtaining a divorce.

Gibbons had known about Lee Ann's affair with Roberts for over a year and admitted speaking to Roberts previously about the affair. Two days before the shooting, Gibbons and Lee Ann discussed their pending divorce. When Gibbons asked Lee Ann how she was going to explain Roberts to their four children, Lee Ann said she planned to introduce Roberts to the children as "mommy's new friend." Gibbons was concerned because he believed that Roberts would molest his children.

The morning of February 6, Lee Ann told Gibbons that she was going to Parsons to talk to her lawyer about the divorce. Gibbons began drinking and eventually consumed 16 small cans of beer and some whiskey. Gibbons packed his belongings, which included a .22 caliber pistol, and prepared to leave the state. When Lee Ann returned home several hours later, Gibbons accused Lee Ann of going to Parsons to see Roberts instead of seeing her lawyer. Gibbons left home and drove to his mother's house in Altamont to get a .38 caliber revolver. Gibbons then drove to Parsons and parked his truck in view of Roberts' father's home where Roberts lived. At trial Gibbons testified that when he drove to Parsons he had not intended to shoot Roberts but only to talk to him.

After about five minutes, Roberts came out of the house. Gibbons drove his truck up in front of the house and asked Roberts if he planned to quit seeing Lee Ann. Gibbons testified that Roberts "grinned and shook his head no." Gibbons then stated, "Well, you are going to quit seeing her" or "You are going to keep your hands off of her." Gibbons took a .38 caliber pistol from the seat of his truck and shot at Roberts at least four times, hitting Roberts once in each hand. Gibbons testified that he aimed and shot at Roberts' hands to send Roberts a message to keep his hands off of Gibbons' wife and children. Gibbons repeatedly stated that he had no intent to kill Roberts.

During Gibbons' trial, the State introduced evidence that, more than a year prior to the shooting, Gibbons had pulled a gun on Roberts; that Gibbons had previously stated that he was going to kill Roberts; and that when Gibbons left his house on February 6, he had a .22 caliber pistol on the dash of his truck and was headed to find Roberts. Roberts testified that immediately prior to the shooting, Gibbons said to him, "You're dead," and that Gibbons shot at him six times before leaving. According to Roberts, the first shot hit him in his right hand; the second shot missed but hit the opposite side of the pickup bed directly across from where he was standing; the third shot, which was fired as Roberts turned and began to run toward an RV parked nearby, missed Roberts but hit back of the RV; the fourth shot hit near Roberts' foot as he was running; the fifth shot hit him in the left hand; and a sixth shot was fired, but Roberts had no idea where it went.

Gibbons denied threatening Roberts with a gun. Gibbons testified that four shots were fired. The first shot hit Roberts in his right hand, the second shot missed Roberts and hit the bed of a pickup on which Roberts had been leaning, the third shot hit Roberts in his left hand, and the fourth shot was to discourage Roberts from firing back while Gibbons was leaving.

A friend of Gibbons' testified that he and Gibbons often practiced target shooting together and that Gibbons was an excellent marksman and able to shoot stationary targets with a pistol from a distance of 25-30 yards. The State introduced testimony from a firearms instructor and pistol expert that it was highly improbable that Gibbons could aim for and hit Roberts' hands with two out of five shots from a distance of approximately 10 feet.

Gibbons was convicted of one count of attempted first-degree murder and one count of possession of a concealed weapon. The district court sentenced Gibbons to concurrent terms of 10 years to life for attempted first-degree murder and 6 months for possession of a concealed weapon. The court found that a firearm had been used in the commission of the attempted murder and invoked the provisions of K.S.A.1991 Supp. 21-4618. Gibbons was sentenced to 10 years to life. Gibbons appealed.

Lesser Included Offense Instruction

The defendant in a criminal prosecution has a right to have the court instruct the jury on all lesser included offenses established by substantial evidence, even though not requested by the accused. K.S.A. 21-3107(3); State v. Arney, 218 Kan. 369, Syl. p 6, 544 P.2d 334 (1975), cert. denied, --- U.S. ----, 114 S.Ct. 1618, 128 L.Ed.2d 345 (1994). Where there is substantial evidence that the lesser degree of the offense charged had been committed, instructions relating to the lesser included...