State v. Hobson, 54720

• Decision Date: 21 October 1983
• Docket Number: No. 54720,54720
• Citation: 671 P.2d 1365,234 Kan. 133
• Parties: STATE of Kansas, Appellee, v. Sueanne Sallee HOBSON, Appellant.
• Court: Kansas Supreme Court

Page 1365

671 P.2d 1365

234 Kan. 133

STATE of Kansas, Appellee, v. Sueanne Sallee HOBSON, Appellant.

No. 54720.

Supreme Court of Kansas.

Oct. 21, 1983.

Syllabus by the Court

1. In a criminal prosecution the test to be used in determining whether the offenses charged are duplicitous is whether each of the offenses requires proof of an additional element of the crime which the other does not, and if an additional fact is required, the offenses are not duplicitous.

2. Under the criminal code conspiracy is a separate and distinct offense from that of aiding and abetting. Conspiracy requires an agreement to commit a crime, while aiding and abetting requires actual participation in the act constituting the offense.

3. In the trial of a criminal case duplicity does not depend upon whether the facts proved at trial are actually used to support conviction of both offenses charged, rather, it turns upon whether the necessary elements of proof of the one crime are included in the other.

4. The inquisition statute, K.S.A. 22-3101, contains no language expressly limiting the time when inquisition proceedings may be used by a district attorney or attorney 5. The mere fact a witness has failed to testify as expected does not warrant impeachment by proof of prior statements in conformity with what he was expected to testify. The witness's testimony must be affirmative, contradictory and adverse to the party calling him to allow impeachment of that witness by cross-examination.

general. It may properly be used after an accused has been bound over for trial following a preliminary hearing to compel sworn testimony from individuals in order to investigate criminal activity that has come to the attention of the district attorney or attorney general.

6. Where a witness has been impeached or his credibility as a witness has been attacked, prior statements consistent with his testimony at trial may be shown to rehabilitate or support the witness.

7. Impeachment of a witness occurs when a suggestion is made by direct proof or by the nature of an examination that a witness has testified falsely for hope of reward, promise of immunity, fear or malice.

8. Cross-examination may be permitted into matters which were the subject of the direct examination. Questions asked on cross-examination must be responsive to testimony given on direct examination, or material and relevant thereto; and resolution of such issues resides in the sound discretion of the trial court, which will not be disturbed on appeal absent a showing of abuse of the exercise of the power of that discretion.

9. The rules pertaining to the admission of photographs in a criminal prosecution are stated and applied.

10. Prior spontaneous statements made by a defendant prior to the commission of a crime are admissible under K.S.A.1982 Supp. 60-460(l ) to show intent, plan, motive, design, malice or ill will where the defendant's state of mind is itself an issue in the case or is relevant to prove or explain acts or conduct of the defendant.

11. To admit hearsay statements under K.S.A.1982 Supp. 60-460(d )(3) the trial court must find (1) the declarant is unavailable as a witness, (2) the matter described was recently perceived by the declarant and the statement made while his memory was fresh, and (3) the statement was made under circumstances which show it was in good faith, before there was an action pending, and with no incentive to falsify or distort.

12. Under K.S.A.1982 Supp. 60-460(d )(3) the presence or absence of an incentive to falsify or distort is a question of fact to be determined by the trial judge in light of all the circumstances.

13. Although an expert witness may be permitted to give an opinion bearing on the ultimate issue, he may do so only insofar as the opinion will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence.

Scott Harrison Kreamer, of Gardner, Davis, Kreamer, Norton, Hubbard & Ruzicka, Chartered, Olathe, argued the cause and was on brief, for appellant.

Stephen R. Tatum, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Dennis W. Moore, Dist. Atty., were with him on brief, for appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict finding Sueanne S. Hobson (defendant-appellant) guilty of first-degree murder (K.S.A. 21-3401 and K.S.A. 21-3205) and conspiracy to commit murder (K.S.A. 21-3302). The appellant contends the trial court erred in numerous aspects, including the admission of previous statements made by various witnesses, the exclusion of hearsay statements and psychiatric expert testimony, failing to dismiss the charges because of inquisitions conducted by the State without proper authority, failing to dismiss one of the charges as duplicitous, and ordering the sentences to run consecutively.

The facts will be briefly stated since the appellant does not challenge the sufficiency Jimmy Crumm, Sueanne Hobson's seventeen-year-old son and Chris's stepbrother, was taken into custody later that day and gave a statement to police officers admitting his participation in the murder and implicating the appellant. Crumm told officers his mother had told him on several occasions that something had to be done about Chris, and asked him if he could help her get rid of him. At the appellant's insistence he and a friend, Paul Sorrentino, picked Chris up at his home on April 17, 1980, drove him to Miami County in the appellant's car, dug a grave, shot Chris at close range while he was sitting in the grave and covered his body with dirt. His mother told him later she threw Chris's billfold away at the shopping center. He further stated his mother had promised to buy him a car and pay for repairs on Sorrentino's motorcycle as their payment for killing Chris. Crumm was convicted of first-degree murder in Miami County, which was affirmed by this court on appeal in State v. Crumm, 232 Kan. 254, 654 P.2d 417 (1982). Sorrentino pled guilty to aiding and abetting first-degree murder. Both men testified to the above facts at trial.

of the evidence. The victim, thirteen-year-old Christen Hobson (Chris), was reported missing from his home in Overland Park by his father, Ed Hobson, on April 17, 1980. For several days Ed and his wife Sueanne Hobson assisted police in the search for Chris. During this time Chris's billfold was found at a shopping center in Overland Park. On May 3, 1980, Chris's body was found in a shallow grave in rural Miami County by two boys fishing nearby. Death was caused by shotgun blasts at close range to the head and chest.

Sueanne Hobson was taken to police headquarters for questioning in the late evening on May 3, 1980. During the questioning she admitted having learned from Jimmy on April 18, 1980, that Chris had been killed, but did not tell anyone because she was frightened and wanted to protect her son. Detectives went to the Hobson home between 5:30 and 6:00 a.m. on May 4 and questioned the appellant's thirteen-year-old daughter, Suzanne Hobson. Quickly discerning she had information concerning her mother's involvement in the murder the detectives transported her to police headquarters where they tape recorded an interview with her beginning at 6:38 a.m. and ending at 6:50 a.m. Suzanne told officers during the interview that Christen had been causing problems between Ed and Sueanne, and Sueanne had told Jimmy Crumm that something had to be done about Chris. The day of Chris's disappearance Suzanne overheard Jimmy tell the appellant he and someone else were going to take Chris out and "get rid of him." The appellant told Jimmy she would get Ed out of the house that night. Later that day the appellant told Suzanne she was supposed to stay upstairs and take a shower when Jimmy came over to pick up Chris. Her mother told her a few days later that Jimmy took Chris out and "took care of him," by which Suzanne thought the appellant meant Chris had been killed. She also stated her mother told her she threw Chris's billfold away at the shopping center.

Following the interview with Suzanne the detectives tape recorded an interview with the appellant. Sueanne told officers that because Chris had been causing problems by threatening Suzanne she had asked Jimmy to talk to Chris and knew that Jimmy and his friend were going to take Chris out that night and try to scare him so he would leave Suzanne alone. When she found out the next day from Jimmy what had happened she was afraid to tell her husband. She admitted taking Chris's billfold to the shopping center the day after his disappearance. At trial the appellant testified she asked Jimmy to talk to Chris about the problems he was causing at home, hoping this would help "get rid of" the problems. This tactic had apparently been successful with Chris before. She denied ever talking to Jimmy about killing Chris. The day after Chris's disappearance Jimmy called and said Sorrentino had killed Chris and had said he would kill all of them if she told anyone. She testified Jimmy took Chris's billfold to the shopping center the next day, but that she had told police earlier To bolster the appellant's story several defense witnesses were called who testified Jimmy had stated often that he hated Chris and was angry with him for telling his parents that he used drugs and had stolen some credit cards. The appellant's mother testified Jimmy had told her in February 1980 that he would "get even" with Chris. She further testified that after Jimmy's arrest he told her that he and Sorrentino had made up a story about the murder in case they got caught and that his mother had nothing to do with it.

that she had done it to protect Jimmy. She did not tell her husband or police what had happened to Chris for fear of what Sorrentino would do to her family and of what her husband would do to Jimmy and Sorrentino if he found out.

The appellant...