State v. Hunt
| Decision Date | 21 April 1995 |
| Docket Number | No. 70479,70479 |
| Citation | 894 P.2d 178,257 Kan. 388 |
| Parties | STATE of Kansas, Appellee, v. James L. HUNT, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Jury instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.
2. In a prosecution for homicide where self-defense was an issue, based on the evidence in the record the trial court did not err in giving an "Initial Aggressor Instruction" under K.S.A. 21-3214 as set forth in PIK Crim.3d 54.21 and 54.22.
3. No party may assign as error the giving of or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict.
4. It is error to give what is commonly referred to as the expanded credibility instruction, but it is not clearly erroneous to do so under the facts of this case.
5. The judgment in a criminal case, whether it imposes confinement, imposes a fine, grants probation, suspends the imposition of sentence, or imposes any combination of those alternatives, is effective upon its pronouncement from the bench.
6. It is not reversible error for a trial court to permit an amended motion to impose the Habitual Criminal Act to be filed substituting a valid conviction usable under the Habitual Criminal Act for an invalid conviction prior to imposition of sentence.
7. It is the sentencing judge alone who determines the appropriate sentence or other disposition of the case. The sentencing judge determines the sentence by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant's background, the facts of the case, and the public safety. A sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court's discretion and not a result of partiality, prejudice, oppression, or corrupt motive.
8. It is for the sentencing court to determine what weight to give to mitigating factors.
9. K.S.A.1994 Supp. 22-3424(4) states in pertinent part: "Before imposing sentence the court shall: ... (d) address the defendant personally and ask the defendant if the defendant wishes to make a statement on the defendant's own behalf and to present any evidence in mitigation of punishment." This provision in K.S.A. 22-3424(4) establishes the right of a defendant to allocution, and this right is not waived by the defendant's silence or by argument of counsel.
10. For a defendant to successfully assert error based upon a denial of the opportunity to present evidence in mitigation of punishment pursuant to the right to allocution in K.S.A.1994 Supp. 22-3424(4), the defendant must make a proffer of the contemplated evidence comparable to that required by K.S.A. 60-405.
Thomas Jacquinot, Sp. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.
Debra S. Peterson, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief, for appellee.
This is a direct appeal by the defendant, James L. Hunt, from his conviction for second-degree murder. He claims error concerning the self-defense instruction and the witness credibility instruction, in being sentenced as a habitual offender (third offense), in the failure to provide allocution, and in the imposition of a sentence of 45 years to life.
The victim, Nehemiah Martin, lived with his girlfriend and her children in the same apartment building as the defendant. Defendant and Martin were drinking companions.
Martin and the defendant had a serious altercation a week before the shooting, culminating in Martin striking the defendant at least 30 times with a clothes iron. The defendant was uncooperative with police when they arrived, and the responding officer testified the defendant stated that he did not want to prosecute Martin and that they had fought about money. The defendant was intoxicated and bleeding profusely, and he had to be forcibly taken to the hospital for medical treatment. The defendant had 11 or 12 lacerations which required stitches.
The day after the beating, the defendant purchased a .25 caliber gun at a pawn shop.
A tenant who witnessed the iron beating testified Martin later told the tenant that he had taken the defendant's money and that he beat the defendant with an iron because the defendant pulled a fork on him. Martin also told the tenant that if the defendant said anything to him he would do it again. The defendant told this tenant that he was going to let Martin feel the same pain he felt by shooting Martin in the head.
The day after the iron beating, Martin told the manager of the apartment building about the incident, stating that the defendant had been calling his girlfriend names and had tried to scratch him with fingernail clippers. The manager also spoke with the defendant, who threatened to shoot Martin to let him (Martin) know the same pain he (the defendant) felt. That evening the manager went to the defendant's apartment and the defendant again said he was going to shoot Martin in the head. The next day the manager evicted the defendant for violating his lease. When the defendant was moving out the manager told him it was not worth it to shoot Martin, and the defendant replied that he had to do what he had to do. The manager warned Martin of the threat, who laughed it off.
On the day of the shooting, the defendant was drinking and smoking cigarettes in a friend's car. He saw Martin on the street, approached him, and asked Martin why he had beaten him and taken his money. Martin pushed the defendant aside. The defendant then shot Martin two times.
The defendant was arrested at the scene. He made no attempt to flee or give aid to the victim. He walked across the street, lit a cigarette, and drank a beer while waiting for the police. He admitted to shooting Martin. One police officer testified the defendant stated, After being Mirandized, the defendant gave a statement. He told of the beating by Martin a week earlier and indicated he thought Martin robbed him of $100 that night. The defendant stated he purchased a gun at a pawn shop to defend himself because he heard that Martin had a gun. The defendant told the police that he wanted to hurt Martin but did not want to kill him.
At trial, the defendant testified he shot Martin in self-defense. He testified he saw Martin coming down the street and approached Martin to ask why Martin had beaten him. Martin shoved the defendant. The defendant saw Martin throw something down. Martin turned and had his hand inside his pocket or inside his coat, which was partially zipped up. The defendant thought Martin was going to shoot him, so the defendant pulled out his gun and shot Martin two times. The defendant testified that he did not intend to kill Martin.
Martin was pronounced dead shortly after the shooting. One bullet entered the left chest and after passing through the lung and heart it lodged near the rib cage; the other entered the left nostril and exited the right cheek.
The jury convicted the defendant of second-degree murder. He was sentenced pursuant to the Habitual Criminal Act to 45 years to life. He appeals.
The trial court instructed the jury on the defendant's claim of self-defense, including the following instructions:
These instructions were based on K.S.A. 21-3214 and are consistent with the language of that statute and are taken from PIK Crim.3d 54.21 and 54.22. There is no claim that the language of instructions 10 and 11 was erroneous. Rather, the defendant argues that the district court should not have given the instructions at all.
The defendant objected to these instructions, arguing that there was no evidence the defendant provoked an attack from Martin or anyone else. The court overruled the objection, reasoning that the evidence showed the defendant was the one who approached Martin; there was no evidence that Martin approached the defendant.
This court has stated:
...
To continue reading
Request your trial
-
State v. Dixon
...by them, then the instructions do not constitute reversible error although they may be in some small way erroneous. State v. Hunt, 257 Kan. 388, 392, 894 P.2d 178 (1995); see State v. Butler, 257 Kan. 1043, 1065, 897 P.2d 1007 (1995). Errors that do not affirmatively prejudice the substanti......
-
State v. Williams
...to “clearly erroneous” as a “standard of review.” See, e.g., State v. Kelly, 262 Kan. 755, 764, 942 P.2d 579 (1997); State v. Hunt, 257 Kan. 388, 394–95, 894 P.2d 178 (1995); State v. Crawford, 253 Kan. 629, Syl. ¶¶ 1, 861 P.2d 791 (1993); State v. Perez, 251 Kan. 736, 737, 840 P.2d 1118 (1......
-
State v. Kahler
...in a separate instruction, was, in effect, an expanded version of the witness credibility instruction.Then, in State v. Hunt , 257 Kan. 388, 395, 894 P.2d 178 (1995), this court stated that it "has continually disapproved the giving of an expanded version of the credibility instruction," al......
-
State v. Weis
...Steven had slapped Alicia contemporaneously with his taunts to her family members was a question for the jury. See State v. Hunt, 257 Kan. 388, 394, 894 P.2d 178 (1995). The evidence that Steven slapped Alicia was therefore material under K.S.A. 60–455. See Gunby, 282 Kan. 39, Syl. ¶ 3, 144......