State v. Jacques

• Court: Kansas Supreme Court
• Writing for the Court: ABBOTT, J.
• Citation: State v. Jacques, 270 Kan. 173, 14 P.3d 409 (Kan. 2000)
• Decision Date: 08 December 2000
• Docket Number: No. 81,955.,81,955.
• Parties: STATE OF KANSAS, Appellee, v. MARK A. JACQUES, Appellant.

270 Kan. 173

14 P.3d 409

STATE OF KANSAS, Appellee, v. MARK A. JACQUES, Appellant.

No. 81,955.

Supreme Court of Kansas.

Opinion filed December 8, 2000.

Michael S. Holland, of Holland and Holland, of Russell, argued the cause, and Michael S. Holland II, of the same firm, Elizabeth Seale Cateforis, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were with him on the briefs for appellant.

Debra S. Peterson, assistant district attorney, argued the cause, and Charles R. Reimer, assistant district attorney, Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with her on the briefs for appellee.

The opinion of the court was delivered by

ABBOTT, J.:

This is a direct appeal by the defendant, Mark A. Jacques, from his convictions in two separate incidents. Jacques was charged with battery and possession of cocaine for events that occurred on February 19, 1998. He was also charged with felony murder, with possession of cocaine as the underlying felony crime, and possession of cocaine for events that occurred on March 1, 1998.

On February 19, 1998, Jacques was arrested when Mark Ailsbury came home after drinking all night and began "belting" the house with stones. The police were called and it was alleged that Jacques had struck Ailsbury in the face. Jacques denied that he had struck Ailsbury, and the jury later acquitted him of the battery charge. After his arrest, he was searched and police officers found a small set of plastic scales on him. There was residue on the scales that tested positive for cocaine. The jury found Jacques guilty of possession of cocaine. Jacques defended against this charge by claiming that the shirt and the scales were not his, but rather belonged to his cousin Ronald Everitt.

Jacques and Everitt were close friends and cousins who took drugs together. On March 1, 1998, Jacques and Everitt invented a scheme to purchase drugs. The drugs were allegedly to be purchased for a third person from Charlie Rogers and Jacques' sister, Julie Jakes, who was living with Rogers. Jacques rode part way to Rogers' house with Everitt. Jacques was dropped off at a nearby Dillon's store where he was to wait until Everitt returned. He did not accompany Everitt to Rogers' house because he had been barred from going there as he was suspected of stealing from the house. Both Jacques and Everitt were armed with steak knives.

After approximately 45 minutes, Jacques, who was cold and bored, walked to Rogers' house. After Jacques knocked on the door, Everitt rushed at him and began beating on him. Everitt was angry at Jacques because he was not supposed to be at the house and he felt his presence would "kill" the deal. Everitt cursed at Jacques and threatened to kill him. Everitt knocked Jacques down, kicked him in the face, and knocked out one of his teeth. Jacques pulled out the steak knife and stabbed Everitt. Although Everitt was conscious for a period of time, he eventually died as a result of the knife wound.

At trial, Jacques claimed that he had stabbed Everitt in self-defense and that after the stabbing Everitt threatened him with a knife and demanded that Jacques go into the house and complete the drug transaction. Jacques went into the house, subsequently came out, and drove Everitt to another location in an attempt to get someone to drive Everitt to the hospital. By the time Everitt got to the hospital, he was dead on arrival, having bled to death from two severed veins. Additional facts will be set forth as necessary in discussing the issues. Jacques was found guilty of possession of cocaine for the February 19 events, and he was found guilty of possession of cocaine and felony murder for the March 1 events. He was sentenced to life imprisonment for the felony-murder charge and 26 months for the drug charges, with the sentences to run consecutively.

Jacques raises six issues on appeal: (1) whether the trial court erred in refusing to give an instruction on self-defense in relation to the felony-murder charge; (2) whether the trial court erred when it prevented Jacques from asking questions on recross-examination regarding bias and motivation for testifying; (3) whether the trial court erred when it denied Jacques' motion to suppress his statement; (4) whether there was sufficient evidence to support the conviction for felony murder; (5) whether the trial court had subject matter jurisdiction over the case; and (6) whether the trial court erred in consolidating the charges against Jacques.

I. SELF-DEFENSE INSTRUCTION

Jacques argues that the trial court erred when it refused to give an instruction on self-defense for the felony-murder charge. The trial court instructed the jury on self-defense for all of the other lesser included offenses. Jacques asserts that possession of cocaine is not a "forcible felony" pursuant to K.S.A. 21-3110(8) and that it cannot, therefore, serve as a barrier to asserting self-defense pursuant to K.S.A. 21-3214(1).

Jacques offered a proposed instruction which would have allowed the jury to consider self-defense on the felony-murder charge. The trial court instead used the following instruction:

"A person is not justified in using force in defense of himself if he is committing or attempting to commit possession of cocaine, an inherently dangerous felony.

"If you find from the evidence that the defendant was not committing or attempting to commit possession of cocaine at the time of the killing, then you may consider that the defendant was justified in using force to defend himself.

"The defendant has claimed his conduct was justified as self-defense.

"A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force. Such justification requires both a belief on the part of defendant and the existence of facts that would persuade a reasonable person to that belief."

Although Jacques offered a proposed jury instruction, he did not object to the instruction given.

The evidence on the record reveals that Jacques went to his sister's house, after waiting for 45 minutes at the Dillon's store, and was pushed and beaten by Everitt as soon as he arrived. Everitt cursed at Jacques and threatened to kill him. Everitt knocked out one of Jacques' teeth and beat him on the ground. Jacques pulled out the knife, a knife that Everitt had given him, and stabbed at Everitt when Everitt attempted to beat him some more. We conclude that there is a real possibility that the jury would have returned a different verdict had it been given the opportunity to consider self-defense for the felony-murder charge.

Although we conclude that there is a real possibility that the jury would have returned a different verdict had it been allowed to consider self-defense in the felony-murder charge, our analysis does not end there. We must also consider whether it would have been legally proper to instruct the jury on self-defense, given the prohibition set forth in K.S.A. 21-3214(1). See State v. Mitchell, 262 Kan. 687, 695-96, 942 P.2d 1 (1997) (although determining the standard of review was clearly erroneous because of trial counsel's failure to object to the instruction, the court evaluated whether the instruction would have been legally proper pursuant to K.S.A. 21-3110[8]); State v. Wise, 237 Kan. 117, 123, 697 P.2d 1295 (1985) (holding that the instructions given were not clearly erroneous but also suggesting that even if the court would have concluded that the jury might have reached a different verdict, it would not have been proper to give the lesser included offense instructions as there was no evidence to support the instructions); and State v. Cady, 248 Kan. 743, 749, 811 P.2d 1130 (1991) (holding that failure to give the diminished capacity instruction was not erroneous under any standard of review as there was no evidence to suggest that the defendant lacked the capacity to kill his ex-girlfriend). K.S.A. 21-3214 provides in pertinent part:

"The justification described in sections 21-3211 [use of force in defense of a person], 21-3212 [use of force in defense of a dwelling], and 21-3213 [use of force in defense of property other than a dwelling] is not available to a person who:

"(1) Is attempting to commit, committing, or escaping from the commission of a forcible felony." (Emphasis added.)

The question becomes whether possession of cocaine is a "forcible felony" as contemplated by the legislature. If it is, regardless of what standard of review we apply, it would have been inappropriate for the trial court to give the instruction requested by Jacques. Interpretation of a statute is a question of law over which this court has unlimited review. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).

K.S.A. 21-3110(8) defines a forcible felony and provides that it

"includes any treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which involves the use or threat of physical force or violence against any person." (Emphasis added.)

Although K.S.A. 21-3110(8) does not specifically list possession of cocaine as a forcible felony, K.S.A. 21-3436(a)(14) defines possession of cocaine as an "inherently dangerous felony." The crimes in K.S.A. 21-3110(8), however, do not overlap completely with those listed in K.S.A. 21-3436. Mitchell, 262 Kan. at 694.

Whether possession of cocaine is a forcible felony is a question of first impression for this court. Previously, in Mitchell, this court considered whether the sale of cocaine was a forcible felony pursuant to K.S.A. 21-3110(8). In Mitchell, the felony-murder charge was supported by the sale of cocaine as the underlying felony. Like sale of cocaine, the possession of cocaine is an inherently...