State v. Hoge

• Decision Date: 12 December 2003
• Docket Number: No. 88,454.,88,454.
• Citation: 80 P.3d 52,276 Kan. 801
• Parties: STATE OF KANSAS, Appellee, v. JOBY M. HOGE, Appellant.
• Court: Kansas Supreme Court

276 Kan. 801

80 P.3d 52

STATE OF KANSAS, Appellee, v. JOBY M. HOGE, Appellant.

No. 88,454.

Supreme Court of Kansas.

Opinion filed December 12, 2003.

Rick Kittel, assistant appellate defender, argued the cause and was on the brief for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee. The opinion of the court was delivered by

GERNON, J.:

Joby M. Hoge appeals his convictions for one count each of first-degree murder and aggravated burglary. Finding no error, we affirm Hoge's convictions.

On June 11, 2000, Wichita police responded to a call from a concerned neighbor and found Ivan Winn dead in his house. When the police arrived at Winn's house, the neighbor told them that he had heard a loud noise at 5:20 in the morning and had seen what appeared to be someone's shoulder in a white shirt outside of Winn's window. Later, the neighbor found Winn's bathroom window open with the shade hanging out. The vegetation around the window had been stomped down.

Winn did not respond to the police officer's calls, so a police officer unlocked Winn's front door with a key that Winn had given the neighbor. Inside, the police found Winn lying in a pool of blood on the floor in his bedroom. Winn had been killed by a single shot to the head. The crime scene investigator found five other bullets in Winn's bedroom and six shell casings. The bathroom window screen was lying behind some tall vegetation along the side of the house, and there were pry marks on the window sill, indicating a forced entry. The crime scene investigator lifted several fingerprints from Winn's house. Although the prints were not immediately identified, the fingerprint analyst matched the prints to Hoge's fingerprints several months later.

Detective Dana Gouge, a Wichita homicide detective assigned to investigate Winn's murder, contacted Hoge at his home in Liberal, Kansas, for an interview. Hoge agreed to be interviewed and voluntarily accompanied Detective Gouge and a Liberal police officer to the Liberal police station. Hoge initially told Detective Gouge that he did not know Winn and had never been to Winn's house. After being confronted with the evidence of his fingerprint on Winn's window, Hoge told Detective Gouge that he had gone to Winn's house with Quincy Hadley to get some alcohol and that Winn had opened the door for them. Hoge told Gouge that he sat on a couch in one room while Hadley went with Winn into another room. When Hoge heard gunshots, he climbed out of the bathroom window to escape. Detective Gouge then asked Hoge to explain why his fingerprint was on the outside of the window and why there were pry marks on the window. Hoge explained that he waited on the front porch while Hadley pried the window off and then let Hoge in through the front door. Hoge stated that he must have touched the window when he escaped during the gunfire. However, when Detective Gouge told Hoge that his explanation did not correspond with the location of the fingerprint on the window, Hoge finally admitted that he helped pry the window off. Hoge also told Detective Gouge that he and Hadley entered Winn's house so Hadley could rob Winn.

When it was clear to Hoge that he would be arrested, he told Detective Gouge that Hadley threatened to beat him up if he did not help him pry the window off. Finally, Hoge told Detective Gouge that Hadley had a small, chrome gun and threatened to shoot him if he did not help burglarize Winn's house.

The State charged Hoge with one count of premeditated first-degree murder, one count of felony first-degree murder, and one count of aggravated burglary. At trial, the State proceeded on both theories of first-degree murder, and the trial court instructed the jury regarding both theories. Hoge raised compulsion as his defense.

The jury was unable to reach a unanimous finding of guilt under either theory but found Hoge guilty of first-degree murder under the combined theories of premeditated murder and felony murder. The jury also found Hoge guilty of aggravated burglary. The court sentenced Hoge to life in prison on the first-degree murder charge with a minimum of 20 years before he is eligible for parole. On the aggravated burglary charge, the court sentenced Hoge to 49 months and ordered it to run consecutive to his life sentence. Hoge appeals to this court pursuant to K.S.A. 22-3601(b)(1).

Instructions for Lesser Included Offenses

For his first issue, Hoge argues that the trial court should have given an instruction for intentional second-degree murder as a lesser included crime. He requested several lesser included homicide instructions at trial. However, the trial court denied his request, finding that lesser included offense instructions were unnecessary because Hoge was charged with felony murder and the evidence of the underlying felony was neither weak nor inconclusive. Because Hoge requested the instructions, this court must review the matter in a light most favorable to Hoge. See State v. Douglas, 274 Kan. 96, 103, 49 P.3d 446 (2002).

Hoge claims that the trial court should have given the lesser included offense instructions under the premeditated-murder theory even though the instructions were not warranted under the felony-murder theory. In his argument, he stresses the fact that the jury convicted him under the combined theories of premeditated murder and felony murder without reaching agreement on the underlying theory.

Because the jury was divided regarding the theory for Hoge's first-degree murder conviction, we review each theory separately to determine whether the jury should have been instructed on lesser included crimes.

Under the felony-murder theory, lesser included offense instructions are unnecessary unless the evidence of the underlying felony is weak, inconclusive, or conflicting. State v. Jones, 257 Kan. 856, 871, 896 P.2d 1077 (1995). Hoge does not argue that the evidence of the underlying felony was weak or inconclusive. Instead, he argues that the instructions should have been given under the premeditated-murder analysis. As a result, we need not consider whether the instructions were required under the felony-murder theory.

Under the premeditated-murder theory, the general rules for lesser included offense instructions apply. Jones, 257 Kan. at 872. If the defendant requests the instructions, the trial court has a duty to instruct the jury regarding all lesser included crimes that are established by the evidence, regardless of whether the evidence is weak or inconclusive. K.S.A. 2002 Supp. 22-3414(3); State v. Davis, 268 Kan. 661, 681, 998 P.2d 1127 (2000). An instruction on a lesser included crime, however, is not required if the jury could not reasonably convict the defendant of the lesser crime based on the evidence presented. Douglas, 274 Kan. at 103; Davis, 268 Kan. at 681. Hoge argues that the evidence supports a conviction for intentional second-degree murder. Pursuant to K.S.A. 2002 Supp. 21-3402, second-degree murder is

"the killing of a human being committed:

(a) Intentionally; or

(b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life."

The difference between first-degree murder and second-degree murder is premeditation. Hoge argues that there is no evidence of premeditation. Premeditation may be inferred from "`(1) the nature of the weapon used; (2) lack of provocation; (3) the defendant's conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless.' [Citation omitted.]" State v. Murillo, 269 Kan. 281, 286, 7 P.3d 264 (2000).

The evidence in this case supports an inference of premeditation. Hoge and Hadley entered Winn's house with a gun. Six gunshots were fired either directly at the bed or within a few feet of the bed where Winn was sleeping. The shooter fired two bullets from the doorway between the dining room and Winn's bedroom, penetrating Winn's mattress. Two shots were fired from the foot of Winn's bed, with one of the bullets passing through a CD player that was laying on the bed and the other entering the wall at the head of the bed. The final two shots were fired near the closet door in the bedroom, with those bullets entering the wall on the right side of the bed and the victim. The fatal shot hit the victim in the left cheek, nearly severing his spinal cord and causing him to immediately drop to the floor. There was no evidence of a struggle or any other disturbance in the house, other than a box fan that had been knocked over on the floor of Winn's bedroom. At the foot of the bed, near Winn's leg, police found a sack filled with 13 bottles of alcohol, Hoge's alleged target for the burglary.

Hoge did not rebut the State's evidence or present any evidence that Winn was shot accidentally. Instead, he raised compulsion as a defense, claiming that he had to participate in burglarizing Winn's home or risk being beaten or shot by Hadley. This defense does not negate the evidence of premeditation in support of second-degree murder.

The State could not prove whether Hoge or Hadley fired the shots but proceeded on an aiding and abetting theory. Consequently, Hadley's premeditation transfers to Hoge, whether Hoge thought about killing Winn or not. Either Hoge was guilty of premeditated murder as an aider and abetter, or he was innocent because he was forced to participate. By finding Hoge guilty, the jury clearly rejected Hoge's compulsion defense.

Because there is no evidence to support a conviction for second-degree murder, the trial court did not err when it failed to give the lesser included offense instructions. Although the trial court relied on the wrong analysis, it reached the right result based on the facts of ...