State v. Harmon, 68145

• Decision Date: 10 December 1993
• Docket Number: No. 68145,68145
• Citation: 865 P.2d 1011,254 Kan. 87
• Parties: STATE of Kansas, Appellee, v. Richard W. HARMON, Appellant.
• Court: Kansas Supreme Court

Page 1011

865 P.2d 1011

254 Kan. 87

STATE of Kansas, Appellee, v. Richard W. HARMON, Appellant.

No. 68145.

Supreme Court of Kansas.

Dec. 10, 1993.

Syllabus by the Court

1. The defendant has a right to have the court instruct the jury on all lesser included offenses established by substantial evidence, however weak, unsatisfactory, or inconclusive the evidence may appear to the court. Even the unsupported testimony of the defendant alone, if tending to establish such lesser offense, is sufficient to require the court to so instruct. However, the evidence must be substantial and there must be evidence which, when viewed in a light most favorable to the defendant, would justify a jury finding in accordance with the defendant's theory.

2. Under the facts of this case, the trial court's instruction, a modification of PIK Crim.2d 52.12, which advised the jury that a statement of a witness recorded prior to trial and admitted into evidence was to be weighed by the same standard as other testimony, was not erroneous. The instruction did not mislead the jury, nor did it prejudice the defendant's right to a fair trial because it did not require the jury to give the same weight to unsworn and sworn statements. The instructions given instructed the jury to weigh all evidence of out-of-court statements by the same standard as other testimony. That standard was that the jury was to determine the weight and credit to be given the evidence admitted at trial.

3. The right to cross-examine witnesses is subject to evidentiary rules, and the trial court has broad discretion in controlling the examination. The trial court's limitation of cross-examination of a witness does not amount to an abuse of discretion when the evidence sought to be established by cross-examination was otherwise brought out during the direct and cross-examination of the witness.

4. Under the facts of this case, the trial court's instructions under the provisions of K.S.A.1992 Supp. 21-4626(4) created confusion when the court advised the jury that neither sympathy nor prejudice should influence the jury in arriving at its sentencing recommendation and at the same time advised the jury that it may consider all mitigating circumstances that "are those which in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability."

5. K.S.A.1992 Supp. 21-4627(4) provides that the Supreme Court shall be authorized to enter such orders as are necessary to effect a proper and complete disposition of the review and appeal in hard 40 sentencing cases. When an instructional error causes this court to remand for resentencing, it is necessary to remand the case for consideration by a separate jury to make a determination of whether the defendant shall be required to serve a mandatory term of imprisonment of 40 years under the provisions of K.S.A.1992 Supp. 21-4624(2).

6. A proceeding upon remand in a hard 40 sentencing case is to be conducted in accordance with the provisions of K.S.A.1992 Supp. 21-4624, K.S.A.1992 Supp. 21-4625, K.S.A.1992 Supp. 21-4626, and K.S.A.1992 Supp. 21-4628, just as if no sentence had ever been imposed.

Hazel Haupt, Asst. Appellate Defender, argued the cause, and Wendy L. Rhyne Slayton, Asst. Appellate Defender, and Steven R. Zinn, Deputy Appellate Defender, were with her on the brief, for appellant.

Debra S. Byrd, Asst. Dist. Atty., argued the cause, and Charles R. Reimer, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief, for appellee.

DAVIS, Justice.

The defendant, Richard Harmon, was convicted of first-degree murder of his younger brother, Jimmy Harmon, and sentenced pursuant to the jury's recommendation for a period of life, with no parole before 40 years. The defendant appeals his conviction and sentence.

The defendant seeks reversal of his conviction because (1) the trial court refused his requested instruction on involuntary manslaughter; (2) the trial court instructed the jury to weigh an unsworn taped statement made by a witness by the same standards as testimony given under oath; and (3) the trial court limited cross-examination. In addition, the defendant claims his sentence must be set aside because of erroneous instructions to the jury concerning the hard 40 sentence. Finding no reversible error, we affirm the conviction; however, we vacate the sentence and remand for resentencing.

The defendant lived in Wichita with his father and younger brother, Jimmy. On the evening of the murder, the defendant and a friend, Steve McCoy, went out together. After drinking for awhile, both began looking for Jimmy so the three of them could enjoy the rest of the evening together. They found Jimmy at a bar with a girlfriend. The four went to another bar, drank some more, and during the early morning hours, parted company. The defendant and McCoy, while driving home, spotted Jimmy's truck parked near the side of the road. The defendant stopped his truck and attempted to talk with his brother, but a scuffle ensued. The defendant got the worst of this encounter and testified that he was "furious, humiliated, and scared." He testified at trial that his brother approached him with a tire iron, but the defendant had not mentioned this fact in an earlier statement to the police.

After the encounter, the defendant went home, found his father's loaded revolver, and returned to find his brother. Upon coming out of the Town and Country store after purchasing a package of cigarettes, he spotted his brother. He walked toward his brother, pulled out the revolver, pointed it at his brother, and shot him two times in the chest and once in the back of the neck as his brother turned away. The defendant claimed he was scared and that his brother had threatened him and had lunged toward him with his hands in the air as he fired the revolver.

Involuntary Manslaughter

The defendant argues that the trial court erred by not giving his requested instruction on involuntary manslaughter. He argues that the evidence at trial established that he committed a lawful act (self-defense) in an unlawful manner (with excessive force).

The defendant is correct that the use of excessive force in self-defense may under some circumstances require an instruction on involuntary manslaughter. State v. Gregory, 218 Kan. 180, 186, 542 P.2d 1051 (1975). "Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to a felony, or in the commission of a lawful act in an unlawful or wanton manner." (Emphasis added.) K.S.A. 21-3404.

Although the trial court gave an instruction on self-defense, under the facts of this case, the trial court was not obligated to instruct on self-defense or involuntary manslaughter. The facts in this case are analogous to the facts in State v. Meyers, 245 Kan. 471, 781 P.2d 700 (1989). In Meyers, the defendant left an altercation, retrieved a weapon, returned to find the parties involved, and upon being attacked by those parties, killed one person and injured another. In Meyers, we said that the defendant was neither entitled to a self-defense instruction nor an instruction on involuntary manslaughter.

Although the defendant said more than once he did not want to or intend to kill his brother, we have held that such statements alone are insufficient to establish that the killing was unintentional if, when viewed in light of other competent evidence, such testimony is insubstantial. State v. Dixon, 248 Kan. 776, 786-87, 811 P.2d 1153 (1991); State v. Staab, 230 Kan. 329, 340, 635 P.2d 257 (1981).

The defendant fought with his brother earlier in the evening. His brother got the best of him in that encounter and belittled him in front of Steve McCoy. The defendant testified that he was "furious, humiliated, and scared." He got into his truck and drove to his father's house for the sole purpose of obtaining a gun, which he intended to use against his brother. He found an unloaded rifle, looked for shells without success, eventually found his father's loaded revolver, and left the house looking for his brother.

When he arrived at the location where he expected his brother to be, he hid his truck, concealed the loaded gun in the back of his pants, and went into the Town and Country store to purchase a pack of cigarettes. As he was leaving the store, he saw his brother, approached his brother, pulled out his revolver, pointed it at his brother, and fired it several times. He testified that he knew shooting his brother two times in the chest and once in the back could kill him.

The defendant contends this case is controlled by State v. Hill, 242 Kan. 68, 744 P.2d 1228 (1987). In Hill, the defendant had a gun in her purse to take back to her house because she was concerned about prowlers. She did not know the gun was loaded. She and her brother and a friend went to a bar. The entrance was very dark and crowded. The victim pushed the defendant several times and said something to the defendant that made the defendant afraid. The defendant reached for her pistol because she could not see the victim's hands and was afraid for her life. Several witnesses corroborated the defendant's testimony. 242 Kan. at 72-73, 744 P.2d 1228. We held that the trial court erred in refusing to instruct on involuntary manslaughter. 242 Kan. at 78, 744 P.2d 1228.

Unlike Hill, the defendant in this case was the aggressor. He went looking for his brother with a loaded gun for the express purpose of shooting his brother "if [he] had to." Even with the defendant's testimony that his brother threatened him verbally, was hostile and still angry, and lunged at the defendant with his hands in the air, the defendant, as the aggressor, was not entitled to use deadly force in self-defense unless he had exhausted every other reasonable means to escape the danger he perceived....