State v. Hill, 46876

• Decision Date: 20 January 1973
• Docket Number: No. 46876,46876
• Citation: 505 P.2d 704,211 Kan. 239
• Parties: STATE of Kansas, Appellee, v. Andrew Leroy HILL, Appellant.
• Court: Kansas Supreme Court

Page 704

505 P.2d 704

211 Kan. 239

STATE of Kansas, Appellee, v. Andrew Leroy HILL, Appellant.

No. 46876.

Supreme Court of Kansas.

Jan. 20, 1973.

Syllabus by the Court

In an appeal from convictions of murder in the second degree and aggravated battery, the record is examined and it is held: The trial court did not err in (1) permitting an amendment to the information after the jury had retired for its deliberations; (2) replacing a juror who became ill immediately after the jury had been impanelled and sworn; (3) denying appellant's motion for change of venue; (4) admitting into evidence incriminating statements made by appellant; or (5) denying appellant's motion for new trial on the basis of newly discovered evidence. Further held, the evidence sufficiently supported the convictions.

Ralph M. King, Jr., Lawrence, was on the brief for appellant.

John Mike Elwell, County Atty., argued, the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.

HARMAN, Commissioner:

Andrew Leroy Hill was convicted by a jury of the offenses of second degree murder and aggravated battery. His motion for new trial was overruled, he was sentenced to concurrent terms of confinement and he now appeals.

Evidence for the prosecution revealed the following: The offenses occurred on the morning of November 4, 1970, in an apartment building in Lawrence. The principals in the affair were students at Kansas University. Bruce Douglas was killed by .22 caliber rifle fire and his girl friend Paula was wounded at the same time.

The preceding evening Paula had been in Douglas' apartment, assisting him in his school work. Another student, Byron Saunders, shared the apartment with Douglas. Appellant occupied an adjoining apartment and several times during the evening was in and out of Douglas' apartment where Paula was helping Douglas. Paula spent the night with Douglas, retiring about 2:30 a. m., November 4, after engaging in sexual intercourse with him. Appellant was acquainted with Paula, had dated her and on two occasions in October, 1970, had had sexual intercourse with her.

The clothes closet in appellant's apartment adjoined the bedroom in which Douglas and Paula were sleeping. The wall between the two rooms consisted of insulated wallboard through which sound easily traveled.

About 10:00 a. m. Paula was awakened by a shot coming through the wall, followed by a series of shots. She screamed, 'Cookie, stop' (appellant's nickname was Cookie). Paula fell off the bed and Douglas fell on top of her. Paula sustained a flesh wound in the shoulder and arm. Douglas was mortally wounded. Shortly before the shooting appellant had turned up his stereo very loud and had told Douglas' roommate Byron to stay in the living room for a couple of minutes. Douglas' roommate had responded to appellant, 'Hey man, wait, I have some stuff in the closet'.

Following the shooting Douglas was taken to the hospital where he died shortly after admission. Examination revealed at least six pieces of metal in his body. Appellant and Douglas had been good friends. Normally Douglas would not have been in his apartment at the time of the shooting as he had an 8:30 a. m. class.

Police were immediately summoned to the apartment. To the first policeman who arrived at the scene, Officer Schmille, appellant excitedly exclaimed: 'Come quick inside, I just shot my best friend, don't let him die'. To the officer's query as to what had happened he further stated: 'Well it was an accident. I was messing with my gun and it started firing and it wouldn't stop'. When the empty gun was found appellant repeated that it had jammed, started firing and wouldn't stop.

To another officer who took appellant first to the hospital and later to the police station, Officer Othick, he made a similar statement. While crying, he said, 'I killed my friend'. The official who was county attorney at the time of the shooting testified as to a further oral statement made by appellant:

'(He) had been helping a friend move that morning. When he got back to his apartment he looked at his .22 caliber rifle, purchased only a month and a half ago and which he had fired fairly frequently but which had been jamming on him and not operating properly, and thought to himself 'what have I spent my money for on this damn thing?' Then he indicated that he said 'Why it works' and that he pulled the trigger, and when the shot went off he continued to fire about 12 shots. He said he had to pull the trigger to fire each shot and by gesture fluttered his right index finger on the trigger in a rapid way. He was shocked when the gun first went off, in that he didn't know it was loaded, and he described his finger fluttering on the trigger as automatic as opposed to the gun firing automatically. At one point the defendant referred to his finger as 'jingling' the trigger. When nothing came out he kept jingling saying this damn thing makes me mad. This was when he grabbed it and it went pow pow pow pow pow. Then he heard Byron say cookie cookie you fired and hit Bruce. Whereupon he threw his gun down and ran to Bruce's apartment and grabbed Bruce and said Oh no. The defendant denied ever dating Paula . . ., and said he knew she was in Bruce's apartment the night before. He didn't know if Bruce and Paula had sexual relations, but he assumed they did. He denied having sexual relations with Paula himself. He also did not think the .22 would go through the wall. Besides that he didn't know anyone was in the room because Bruce usually was gone at that time of day. The defendant had been studying all night and was flunking English and psychology classes. The defendant explained he always fired the gun real fast because he liked the sound of it, but it always seemed to jam when firing fast. Hd did not intend to keep shooting after the first shot went off, but by reflex and habit kept hitting the trigger. It was an automatic reaction.'

Police examination revealed a pattern of thirteen bullet holes in the wall of appellant's closet in an area from thirty-six to thirty-nine inches in height and spaced in an opening made by pushing clothes on a clothes rack to either side. The angle made by the holes was downward. From the residue of powder marks on the wall it was estimated the gun was fired from a distance of about twenty-four inches. Subsequent test firing of appellant's rifle revealed no jamming. The weapon was semi-automatic, requiring that the trigger be pulled for each shot. Thirteen empty cartridges were recovered, twelve in the corner of the closet and one near the closet door.

At the time of the shooting the automobiles of Paula and Douglas were parked in a parking lot so as to be visible through a window in appellant's apartment.

Appellant testified in his own behalf. He admitted having sexual intercourse with Paula and was aware Douglas had likewise done so but he was not jealous; he was like a brother to Douglas; prior to the shooting he told Byron not to go back into the apartment, that he was going to work with his gun which he thought might go off; he turned up the stereo so that shots would not be heard; he had problems with his landlord and with his schoolwork, and his gun and his stereo hadn't been working right; he tried operating the ejector part of the gun and it wouldn't work; he then pulled the trigger and the gun fired accidentally; thereafter he fired the gun several times, pulling the trigger each time; he was obsessed with his problems and didn't care that he was damaging his landlord's property; he fired from inside the closet, aiming the gun through the empty space between clothes hanging in the closet; he had no idea anyone was in the next apartment; Douglas and Paula were his friends; when the police questioned him he did not want to answer but they kept hounding him and he said anything to get them to leave him alone; his statements regarding the jamming of the gun were an effort on his part to protect a girl Kate (or Kay) who was present in his room at the time of the shooting.

Further evidence will be mentioned where pertinent to the errors alleged.

Appellant's first specification of error is the trial court improperly permitted the information to be amended after the case had been submitted to the jury. The information initially alleged the shootings were done with a .22 caliber Remington automatic rifle. As indicated, the evidence revealed the weapon was in fact semi-automatic. However, this discrepancy apparently went unnoticed until, after retiring to consider its verdict, the jury sent a note back to the trial judge suggesting that in the information the type of weapon be changed from automatic to semi-automatic. The trial judge first denied but later adopted the suggestion, amending by interlineation both the original information and the copy contained in the instructions.

K.S.A.1971 Supp. 22-3201(4) provides:

'The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.'

Appellant argues he was prejudiced by the change because he was charged with first degree murder in which deliberation and premeditation were essential elements and the manner in which the weapon could be operated was crucial. The amendment did not in anywise change the nature of the crime charged. It simply was in accord with the evidence adduced. Appellant, who had been in the military, acknowledged in his testimony that the weapon was not an automatic and could not be fired fully automatically but was in fact semi-automatic in that it was necessary to pull the trigger for each firing. The amendment came as no surprise to appellant and manifestly he was in nowise prejudiced by it.

Appellant's next assertion of error relates to replacement of an ill juror, the story of which is told in the journal entry of judgment:

'THEREUPON, jurors...