State v. Hunter

• Decision Date: 17 July 1987
• Docket Number: No. 58974,58974
• Citation: 740 P.2d 559,241 Kan. 629
• Parties: STATE of Kansas, Appellee, v. James C. HUNTER, Appellant.
• Court: Kansas Supreme Court

Page 559

740 P.2d 559

241 Kan. 629

STATE of Kansas, Appellee, v. James C. HUNTER, Appellant.

No. 58974.

Supreme Court of Kansas.

July 17, 1987.

Syllabus by the Court

1. The usual grounds for granting a motion for severance are: (1) The defendants have antagonistic defenses; (2) important evidence in favor of one of the defendants which would be admissible in a separate trial would not be allowed in a joint trial; (3) evidence incompetent as to one defendant which can be introduced against another would work prejudicially to the former with the jury; (4) a confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants. State v. Pham, 234 Kan. 649, 653, 675 P.2d 848 (1984).

2. Evidence of events subsequent to an arrest is generally not relevant to show that an individual was compelled to commit prior criminal acts.

3. The determination of whether to change venue lies within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant, with the burden upon the defendant to show prejudice in the community, not as a matter of speculation, but as a demonstrable reality. The defendant must show that such prejudice existed in the community that it was reasonably certain he could not have obtained a fair trial. There must be more than speculation that the defendant did not receive a fair trial. The State is not required to produce evidence refuting that of the defendant. State v. Ruebke, 240 Kan. 493, Syl. pp 2, 3, 731 P.2d 842 (1987).

4. When crimes occur in rural areas, it is inevitable that members of the jury panel will be acquainted with trial participants or victims. In such cases, we must examine the jury selection process to determine whether the defendant's rights to a fair trial have been jeopardized.

5. The failure to object to a witness whose name is not endorsed on the information until the examination of the witness is concluded constitutes waiver. State v. Cook, 225 Kan. 259, Syl. p 1, 589 P.2d 616 (1979).

6. The limitation on the use of the compulsion defense is restricted to crimes of intentional killing, and where compulsion is a defense to an underlying felony under K.S.A. 21-3209 so that the felony is justifiable, compulsion is equally a defense to charges of felony murder.

7. A defendant is not precluded from asserting a compulsion defense by denying commission of the crime where the compulsion issue is raised by the evidence.

8. In a criminal action, a trial court must instruct the jury on the law applicable to the theories of all parties where there is supporting evidence. State v. Davis, 236 Kan. 538, Syl. p 4, 694 P.2d 418 (1985).

9. When considering the refusal of a trial court to give a specific instruction, the evidence must be viewed by the appellate 10. In order to constitute the defense of compulsion, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. The doctrine of coercion or duress cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. State v. Milum, 213 Kan. 581, 582, 516 P.2d 984 (1973). In addition, the compulsion must be continuous and there must be no reasonable opportunity to escape the compulsion without committing the crime. State v. Myers, 233 Kan. 611, 664 P.2d 834 (1983).

court in the light most favorable to the party requesting the instruction. State v. Myers, 233 Kan. 611, 616, 664 P.2d 834 (1983).

Robert J. Lewis, Jr., of Lewis, Lewis & Beims, Atwood, argued the cause and was on the brief, for appellant.

Perry Murray, Co. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

LOCKETT, Justice.

Defendant James C. Hunter appeals his convictions of two counts of felony murder, two counts of aggravated kidnapping, one count of aggravated robbery, one count of aggravated battery on a law enforcement officer, and one count of aggravated battery. Hunter raises numerous issues, among them that the trial judge committed reversible error by refusing Hunter's requested instruction on his defense of compulsion. We reverse and remand for a new trial.

In February 1985 James C. Hunter, a resident of Amoret, Missouri, was hitchhiking from Texas back to the Kansas City area. He arrived in Wichita on February 12, 1985. On February 13, Hunter hitched a ride with Mark Walters, Lisa Dunn, and Daniel Remeta. On the way north on I-135, Remeta displayed two weapons, a .357 Magnum and an inoperative .22 pistol. Hunter repaired the .22 and Remeta fired the .22 out of the car window several times. When they reached the intersection of I-135 and I-70, Hunter asked to be let off. At that point Remeta began talking about another hitchhiker he wished he had killed and also described prior crimes he had committed including several murders.

At the Levant exchange on I-70, Dunn, Walters, Remeta, and the defendant were pulled over by a police car. The driver of the police car was Thomas County Undersheriff Benjamin F. Albright, who had been asked to investigate a vehicle matching the description of the car. Albright instructed the occupants to remain in the car and put their hands on the ceiling. One of the passengers exited the car and fired two shots through Albright's windshield. Albright identified the person who fired these shots as having shoulder-length brown hair and a full beard. This description matched that of the defendant. Immediately thereafter, Albright was shot by the same person in the arm and chest. At trial, Albright identified James Hunter as his assailant. Hunter, Dunn, and Remeta all testified that it was Remeta who shot Albright. Hunter testified that, after Albright was shot, he attempted to shoot Remeta with the .22 handgun but accidentally wounded Dunn. Dunn and Remeta corroborated this testimony.

Shortly after the Albright shooting, the Remeta vehicle reached the Bartlett Elevator in Levant, Kansas. There were eight individuals at the elevator: Maurice Christie, the elevator manager; Fred Sager, the assistant manager; and Dennis Tubbs, Raymond Haremza, Rick Schroeder, Glenn Moore, and two others. The testimony concerning Hunter's activities at the Levant elevator conflicted greatly. Christie testified that he observed "a bearded man," later identified as Hunter, holding a gun in the face of Rick Schroeder and forcing him into a pickup truck. Sager testified that he saw a bearded man with a gun in his hand and that Rick Schroeder got into the pickup by himself. Dennis Tubbs testified that Hunter held Schroeder's arm and told him to get into the pickup; he further testified he saw only one person with a gun. After Following the shooting at the elevator, the hostages were driven to a point north of U.S. Highway 24 near Colby, Kansas. Remeta testified that he killed both Schroeder and Moore and left them at the side of the road. Police caught up with the pickup truck and forced it off the road at a farm. During an exchange of gunfire, Walters was killed. Subsequently, Remeta, Dunn, and Hunter were arrested.

Rick Schroeder and Glenn Moore were taken as hostages and loaded into Moore's pickup truck, Christie, while attempting to call the sheriff from the scale house, was shot by Remeta.

Remeta, Dunn, and Hunter were formally charged on February 15, 1985. A preliminary hearing was held, after which all three defendants were bound over. At the arraignment, all defendants refused to enter a plea and the trial court entered pleas of not guilty on behalf of all three. Prior to trial, Remeta entered a plea of guilty to all charges. Dunn and Hunter were tried by a jury, found guilty of all counts, and sentenced to consecutive terms. Hunter now appeals his conviction of two counts of felony murder (Schroeder and Moore), two counts of aggravated kidnapping (Schroeder and Moore), one count of aggravated battery on a law enforcement officer (Albright), one count of aggravated battery (Christie), and one count of aggravated robbery.

MOTION FOR SEVERANCE

Initially, Hunter contends that the trial court erred in refusing to grant him a separate trial from Dunn. Originally Remeta, Dunn, and Hunter were charged by separate complaints for identical crimes. The State's motion for joinder of the preliminary hearings and trials was granted. Following arraignment, each defendant filed a motion for severance which was denied.

Two or more defendants may be charged in the same complaint, information, or indictment if they are alleged to have participated in the same act or series of acts constituting the crime or crimes. K.S.A. 22-3202(3). Two or more defendants, charged in separate complaints or informations which allege that the defendants have participated in the same act or acts, may be later joined for trial if the defendants could have been charged in the same complaint, information, or indictment. State v. Tate, 228 Kan. 752, 620 P.2d 326 (1980).

When two or more defendants are jointly charged with a crime, the court may order a separate trial for any one defendant. K.S.A. 22-3204. Severance under 22-3204 lies within the sound discretion of the trial judge. State v. Myrick & Nelms, 228 Kan. 406, 416, 616 P.2d 1066 (1980). In order for a separate trial of a joint defendant to be granted, the movant must present to the trial judge grounds sufficient to establish actual prejudice. State v. Jones, 222 Kan. 56, 58, 563 P.2d 1021 (1977).

The usual grounds for granting a motion for severance are: (1) The defendants have antagonistic defenses; (2) important evidence in...