State v. Hutton, 54353

• Decision Date: 14 January 1983
• Docket Number: No. 54353,54353
• Citation: 657 P.2d 567,232 Kan. 545
• Parties: STATE of Kansas, Appellee, v. Malcom T. HUTTON, Appellant.
• Court: Kansas Supreme Court

Page 567

657 P.2d 567

232 Kan. 545

STATE of Kansas, Appellee, v. Malcom T. HUTTON, Appellant.

No. 54353.

Supreme Court of Kansas.

Jan. 14, 1983.

Syllabus by the Court

1. The rules used to determine sufficiency of evidence in a criminal conviction are set forth and applied.

2. Malice as it relates to murder means knowledge of such circumstances that, according to common experience, there is a plain and strong likelihood that death will follow the contemplated act. The existence of malice may be inferred from the circumstances attending the assault, such as the use of a deadly weapon, the character of the assault made, or an unprovoked or deliberately committed attack.

3. The element of premeditation, essential to first-degree murder, is not to be inferred from use of a deadly weapon alone, but if, in addition, other circumstances are shown, such as lack of provocation, the defendant's conduct before and after the killing or the dealing of lethal blows after the deceased was rendered helpless, the evidence may be sufficient to support an inference of deliberation and premeditation.

4. It is the prerogative of the jury to determine the credibility of the witnesses, the weight to be given the evidence, and the reasonable inferences of fact which may be drawn from the evidence.

5. The district court has an affirmative duty under K.S.A. 21-3107(3) to instruct on lesser included offenses even in the absence of a request. However, this duty arises only where there is evidence under which the defendant might reasonably have been convicted of the lesser offense.

6. In a felony-murder case instructions on lesser degrees of homicide are required where there is conflicting evidence that the underlying felony was committed and the evidence supports a conviction on the lesser degree of homicide.

7. The crucial point to consider where there are discrepancies in the time of an offense charged in a complaint, information or indictment is whether or not the defendant was misled or prejudiced in making his defense.

David Michael Rapp, of Moore, Rapp & Schodorf, Wichita, argued the cause, and John Terry Moore, Wichita, of the same firm, was on brief, for appellant.

Jack Peggs, Deputy Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, 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 Malcom T. Hutton (defendant-appellant) guilty of first-degree murder (K.S.A. 21-3401). The appellant contends that the evidence was not sufficient to support the verdict of first-degree murder, that the trial court erred in failing to instruct the jury on lesser included offenses, and that the bill of particulars furnished by the prosecution was insufficient and misleading, preventing the defendant from preparing his defense.

On the morning of January 30, 1981, Ella Mae Cherry was found dead in her car on North Piatt Street in Wichita, Kansas. The victim had been stabbed in the neck by a sharp instrument which had punctured the jugular vein and left lung. It was apparent that the murder had occurred the day before as an eleven-year-old boy had seen the body in the car around 4:30 in the afternoon when he had come home from school.

In October 1980 the victim's home had been burglarized and her television set and dog were stolen. Mrs. Cherry lived alone and was fond of the dog. She made numerous efforts to find the dog, including offering a $250 reward for its return in a local advertisement flyer, Pennypower. One such offer appeared in the Pennypower for the northeast section of Wichita for January 26 to February 2, 1981.

A co-worker testified that the day of the murder the victim told her that she had received a telephone call from someone who claimed he had her dog. The victim was supposed to meet the caller that afternoon, but said that she was skeptical about the meeting, because "it just didn't sound right." The witness believed Cherry said she was to meet the caller on Grove Street. After work Mrs. Cherry cashed her paycheck in order to have enough money for the reward, and put the cash in the trunk of her car.

The appellant was charged with first-degree murder, or, in the alternative, felony murder and aggravated robbery. He was convicted of first-degree murder but was acquitted on the felony murder and aggravated robbery charges. On appeal the defendant first contends the trial court erred in denying the defendant's motion for a directed verdict as the evidence was insufficient to support a conviction of premeditated first-degree murder. A review of the record shows that sufficient evidence was presented by the State to support the verdict of the jury.

At the time of the murder the defendant lived in a duplex on North Grove Street with four other persons, including Dianne Benford, and the defendant's girlfriend, Judy Woods. Benford testified that either the day of the murder or the day before she overheard the defendant make a telephone call around 11:00 a.m. during which he asked if the other person was looking for a lost dog, and stated that he had the dog at Minneapolis and Minnesota Streets. Prior to making the call the defendant had been looking in a newspaper. The Pennypower was received at their residence on Grove Street. Benford testified that on the day of the murder she had looked for, but could not find, the only butcher knife in the home. On cross-examination Benford admitted that she did not tell police about the phone call until five months after the murder.

Troy Barnes, a stepson of the defendant's brother, testified that when he saw news of the murder on television he recognized the victim's car as one in which he had seen the defendant sitting between 3:00 and 4:00 in the afternoon of the day of the murder. The car had been parked in front of the defendant's brother's home on North Minnesota Street. A white woman was seated on the driver's side of the car and the defendant was on the passenger side. Barnes testified he walked up to the car and greeted the defendant and then went into the house. The defendant came in the house a few minutes later. Barnes testified that the defendant's sister who lived there, Cynthia Hutton, asked the defendant what he was doing in the car and he had replied something about a dog. The defendant then left the house, but Barnes did not actually see him get into the car. Barnes testified that when he heard about the murder on television he told his mother and the defendant's sister-in-law that he had seen the defendant in the car, but did not report this to police until later when they questioned him concerning the defendant's possible involvement in the murder.

It was established that the distance between Piatt Street where the car was found and Grove Street where the defendant lived was two blocks.

The defendant's girlfriend, Judy Woods, testified that when the defendant arrived home around 7:00 or 8:00 p.m. the day of the murder he had scratches on his hands and neck and had blood on the front of his shirt. The defendant told her the blood came from a cut on his hand he received from jumping a fence behind where they lived. Woods recalled that Dianne Benford had asked where the butcher knife was on the day of the murder. Woods thought the defendant might have been involved in the murder after police began questioning him a few weeks later, so she gave the defendant's sister, Carla Hutton, the butcher knife and asked her to get rid of it because it was the murder weapon. Carla Hutton later turned the knife over to police. She testified the defendant asked her where the knife was so she told him she had thrown it in someone's yard. The defendant looked for the knife in the yard until he realized she was not telling him the truth. The defendant testified he wanted the knife back because it was the only one Benford had and she was upset about losing it and wanted it back.

Sometime after the murder the defendant was riding around with Cynthia Hutton and another woman in his car, drinking and smoking marijuana. A conversation ensued during which one of the women asked the defendant if he had killed Cherry and he replied that he had because she wouldn't give him the money and he got only $13 from her. However, both women and the defendant testified that the reply was made in a joking manner. Cynthia Hutton testified that after the defendant said he had killed Cherry he then denied doing it because he would not want anyone to take his own life. The defendant stated during his testimony that he had also told his brother that he killed Cherry.

The butcher knife given to police by Carla Hutton was tested for possible traces of blood. Blood was found under the handle of the knife, but there was an insufficient amount to determine whether it was human or animal blood. The pathologist who conducted the autopsy testified that the dimensions of the butcher knife were consistent with the wound to the victim's neck and the knife could possibly have been the murder weapon.

The defense presented evidence raising doubts about the credibility of the State's witnesses, particularly the testimony of Dianne Benford, Carla Hutton and Troy Barnes. Two of the victim's co-workers testified that Cherry had not received any phone calls at work the day of the murder, nor had she mentioned having received any calls that day. The victim had talked about having received a call about her dog the evening before the murder. The defendant's sister, Cynthia Hutton, testified that when the defendant and Troy Barnes were at her house the day of the murder she had not seen any cars in the street matching the description of the victim's car and had not asked the defendant about being in such a car. Ms. Hutton also testified that after the preliminary hearing Troy Barnes had admitted to her that he had lied about seeing the defendant in the victim's car. Evidence was presented...