State v. Jackson
| Decision Date | 25 February 1978 |
| Docket Number | No. 48974,48974 |
| Citation | 575 P.2d 536,223 Kan. 554 |
| Parties | STATE of Kansas, Appellee, v. William E. JACKSON, Jr., Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. When an information charges the defendant with premeditated murder and felony murder for the commission of a single homicide, and the state introduces evidence on both theories at the trial, the trial court should instruct the jury on both theories in the alternative in order to avoid confusing the jury.
2. Plea bargaining is a tool which may be used subject to the discretion of the prosecutor.
3. The defendant in a criminal action has no constitutional right to plea bargain.
4. The record on appeal in a criminal action is examined and it is held : The trial court did not err (1) in refusing to order separate trials; (2) in instructing the jury on both premeditated murder and felony murder; and (3) in allowing the prosecution discretion to plea bargain with the defendant's accomplice.
Ernest H. Moulos, Wichita, argued the cause, and was on the brief for the appellant.
Stephen M. Joseph, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Vern Miller, Dist. Atty., were with him on the brief for the appellee.
This is an appeal in a criminal action from a jury verdict which found William E. Jackson, Jr., (defendant-appellant) guilty of aggravated robbery (K.S.A. 21-3427); first degree murder (K.S.A. 21-3401); and felony murder (K.S.A. 21-3401).
The appellant asserts numerous trial errors.
The undisputed facts are that on the evening of September 6, 1975, Willis Dewberry, Sammie D. McPhaul and the appellant went to B. J.'s Steakhouse at 2145 East 21st Street in Wichita, Kansas, in order to shoot some pool. Shortly before the threesome left the steakhouse the appellant received a handgun from another unidentified black male. The weapon was described as a black and brown gun with a brown handle.
The men then began driving around on the streets of Wichita. The appellant drove the car which belonged to Dewberry. Sammie McPhaul testified the appellant spotted a white man in an automobile on Fifteenth Street and Dewberry indicated the man might be collecting some money and he wished to rob him. The threesome followed the potential victim, Marvin D. Clary, for some time until he eventually parked his station wagon in the 2100 block of East Stadium Street. The appellant then stopped the Dewberry car in the parking lot of B. J.'s Steakhouse, and Dewberry and McPhaul left to pursue Mr. Clary.
While McPhaul stood behind some shrubs a short distance away, Dewberry approached the Clary vehicle armed with the gun the appellant received at B. J.'s. As he pulled the gun Mr. Clary jumped out of his car hollering, "Don't shoot" and shouted for help. A struggle between the two men ensued, but Mr. Clary was able to escape. Dewberry then began searching the car. Mr. Clary returned, however, and slammed the car door on Dewberry's legs which were extending beyond the driver's seat of the car. A second struggle followed, and Dewberry shot and instantly killed Mr. Clary at approximately 11:00 p. m. Both Dewberry and McPhaul immediately ran back to B. J.'s parking lot, reported the shooting to the appellant, and the threesome then proceeded to the home of the appellant's parents. After a short visit the three went to a party at the home of mutual friends and then to the Zodiac Club. Finally in the early morning hours of September 7, 1975, they returned home.
Suffice it to say, the three were eventually arrested for the aggravated robbery and murder of Marvin D. Clary. After their preliminary hearing Sammie McPhaul elected to plead guilty to attempted robbery and voluntary manslaughter.
The appellant and Willis Dewberry were tried jointly on March 15, 1976. The appellant presented an alibi defense but declined to take the stand. Sammie McPhaul testified as a witness for the state and directly implicated both defendants. Numerous eye-witnesses to the shooting corroborated his testimony.
The state also introduced, over objection, the preliminary hearing transcript of Dwight E. Littleton. Mr. Littleton's testimony showed the appellant had sold him a gun similar to the one used in the homicide. Sammie McPhaul had testified the appellant sold Mr. Littleton the gun after the robbery and murder, and Littleton was told the gun was "hot."
After hearing the evidence and arguments of counsel and being instructed by the trial court, the jury returned a verdict of guilty. The appellant's motion for a new trial was denied and appeal has been duly perfected.
The appellant first contends he was prejudicially deprived of his right to a fair and impartial trial when he was tried jointly with his codefendant Dewberry. He claims the trial court erred in refusing to admit Dewberry's confession into evidence because it allegedly exculpated him of the crime charged.
Willis Dewberry gave a confession to the Wichita police in which he stated he and Sammie McPhaul were the only persons who had participated in the attempted armed robbery and shooting of Mr. Clary. Dewberry stated therein it was McPhaul who shot Mr. Clary. At the trial Dewberry exercised his Fifth Amendment right to remain silent. The appellant now claims Dewberry's confession would have been admissible in a separate trial on the ground Dewberry was unavailable as a witness.
We find no merit in this argument. The state tried to offer the confession of Dewberry as evidence in rebuttal, after a complete and lengthy Jackson v. Denno hearing was conducted during the trial. Counsel for the appellant did not raise any objection to the court's exclusion of the confession or ever attempt to introduce the confession into evidence. The position taken by the appellant at the trial regarding the confession now precludes him from raising the point for the first time on appeal. (State v. Watie, Heard and Heard, 223 Kan. 337, 574 P.2d 1368; and State v. Hornbeak, 221 Kan. 397, 404, 559 P.2d 385.)
We have often stated the granting of separate trials lies within the sound discretion of the trial court, and absent an abuse of the exercise of the power of discretion, its action will not be set aside on appeal. (State v. Watie, Heard and Heard, supra; State v. Coe, 223 Kan. 153, 574 P.2d 929; and State v. Roberts, 223 Kan. 49, 574 P.2d 164.) The codefendants were tried on virtually identical charges arising out of the same transaction. Their defenses were neither in conflict nor antagonistic and there was no abuse of discretion in refusing separate trials.
The appellant asserts it was error to be charged and convicted of both premeditated murder and felony murder for the same homicide.
In State v. Lamb, 209 Kan. 453, 497 P.2d 275, our court held:
". . . (W)here an information charges a defendant with murder in the first degree on both theories the premeditated killing and killing while in the perpetration of a felony a defendant is not prejudiced because the state has apprised him that it is proceeding on both theories of first degree murder, and that it intends to produce evidence on both theories." (Syl. 9.)
Thus, the state is not required to elect between the murder theories charged as long as the defendant is fully apprised of the charges against him. (See also State v. Wilson, 220 Kan. 341, 344, 552 P.2d 931; State v. Domer, 1 Ohio App.2d 155, 204 N.E.2d 69 (1965); State v. Nelson, 103 N.H. 478, 175 A.2d 814 (1961); State v. Bickham, 239 La. 1094, 121 So.2d 207 (1960), cert. denied 364 U.S. 874, 81 S.Ct. 123, 5 L.Ed.2d 98; and State v. Rowan, 233 La. 284, 96 So.2d 569 (1957).)
In the case at bar, however, the appellant was convicted of both premeditated murder and felony murder. He asserts the trial court erred in instructing the jury on both premeditated and felony murder and...
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State v. Duke
...merely inform the jury that under the law it could convict Duke of first-degree murder under both theories. See State v. Jackson, 223 Kan. 554, 557, 575 P.2d 536 (1978). Duke next argues that the sentence in the instruction, "While Mr. Duke may be convicted of murder in the first degree und......
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State v. McCowan
...drawn and the evidence adduced, the propriety of the failure to do so is not an issue before this court at this time. State v. Jackson, 223 Kan. 554, 575 P.2d 536 (1978). Appellant's argument would be more persuasive if we were dealing with two different charges. He attempts to distinguish ......
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People v. Lowe
...(A defendant cannot be convicted and sentenced for both premeditated and felony murder arising out of one homicide.); State v. Jackson, 223 Kan. 554, 575 P.2d 536 (1978) (Double jeopardy is violated if a defendant is sentenced twice for one homicide.).Maryland: Loscomb v. State, 45 Md.App. ......
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State v. Thach
...upholding the defendant's conviction even though the jury could not agree as to which theory applied in the case); State v. Jackson , 223 Kan. 554, 556–57, 575 P.2d 536 (1978) (State may charge alternative theories of first-degree murder and need not elect a single theory). As these cases e......