State v. Kaesontae

• Citation: 260 Kan. 386,920 P.2d 959
• Decision Date: 12 July 1996
• Docket Number: No. 73322,73322
• Parties: STATE of Kansas, Appellee, v. Leck B. KAESONTAE, Appellant.
• Court: Kansas Supreme Court

Page 959

920 P.2d 959

260 Kan. 386

STATE of Kansas, Appellee, v. Leck B. KAESONTAE, Appellant.

No. 73322.

Supreme Court of Kansas.

July 12, 1996.

Syllabus by the Court

1. Time, distance, and the causal relationship between the underlying felony and a killing are factors to be considered in determining whether the killing occurs in the commission of the underlying felony and the defendant is therefore subject to the felony-murder rule.

2. Where a constitutional issue is not raised in the trial court, it will not be considered for the first time on appeal.

3. In an appeal from a conviction of felony murder and attempted aggravated robbery, the record is examined and it is held (1) the district court did not err in admitting into evidence the tape of a 911 call or the statement made by the defendant to the police and (2) the evidence is sufficient to support the conviction of felony murder.

Jean K. Gilles Phillips, Assistant Appellate Defender, argued the cause, Hazel Haupt, Assistant Appellate Defender, andJessica R. Kunen, Chief Appellate Defender, were on the brief, for appellant.

David Lowden, Assistant District Attorney, argued the cause, Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellee.

ALLEGRUCCI, Justice:

This is a direct appeal by Leck Kaesontae from his conviction by the district court of one count of attempted aggravated robbery and one count of felony murder. The controlling term of his sentence is life imprisonment.

Kaesontae contends the district court erred in (1) finding that the killing was committed in an attempt to commit aggravated robbery; (2) admitting into evidence the tape recording of a 911 call made by a witness to the shooting; and (3) admitting into evidence the statement Kaesontae made to police.

The early morning hours of February 5, 1994, found five young men in two cars, with Matt Edgington alone in one car and Leck Kaesontae, David Edgington, Matt Journey, and Tim Blaine behind him in Blaine's car. Blaine testified that Kaesontae had explained Matt Edgington's being by himself as follows: "So he can start shit so they think he's by himself and actually he wouldn't be because we'd be behind him." Shortly after 2 a.m. they saw a man walking by himself. Blaine stopped in a parking lot to let Matt Edgington catch up. Blaine testified that Kaesontae said he wanted "to jack" the walking man, which meant that he wanted to rob him. Blaine said he was not going to be a part of robbing him. Kaesontae got out of Blaine's car and got into the front passenger seat of Matt Edgington's car.

Within a few minutes of arriving there, Matt Edgington drove off, and Blaine followed him. Soon Blaine saw Matt Edgington's car stop by the walking man. At first Blaine held back, but at the urging of Journey he pulled to within 30 to 35 feet of the lead car. The front window on the passenger side of Matt Edgington's car was down, and the man walked over to the car. The man bent down and acted as if he were pointing directions for the young men in the lead car. Then Blaine saw Kaesontae point a gun toward the man.

The man threw his hands up in the air and backed toward the rear of the car. He continued moving away from the window until his back was against the rear end of the passenger side of the car. Then, keeping his back against the side of the car, the man walked toward the front of the car and swung his right arm into the window. From Blaine's car it looked like the man fell or was pulled into the car. The man's feet were on the ground, but his body from the chest up was inside the car. Blaine saw the gun in Kaesontae's hand, pointed toward the man's chest, and heard two shots fired.

The man grabbed at his chest and walked back from the car. Matt Edgington immediately drove away. When Blaine drove off, the man was still upright in the street, but stumbling.

Matt Edgington made a 911 call at approximately 2:30 a.m. In response, Officer Cross went to a convenience store near the scene of the shooting and met Matt Edgington. During the 911 call, Matt Edgington had reported that a passenger in his car shot at a pedestrian. He also reported that he had dropped the passenger off at his house before making the call. Officer Cross and Matt Edgington first drove by Kaesontae's residence, and then Edgington was taken to the city building to be interviewed.

Before 3 a.m., police found the body of a man with a bullet wound below the rib cage lying in the yard of a residence. The man, Chance Pratt, died of a gunshot wound that resulted in massive internal bleeding. The bullet entered the right side of his chest, lacerated the front of the liver, perforated the heart and lower lobe of the left lung, and exited on the left side. The shot was fired at close range.

Timothy Blaine was the chief witness for the State at trial. The State indicated that Matt Edgington was available as a witness but was not called by the State or the defense.

We first consider Kaesontae's contention that the findings of the district court judge do not support the conviction of felony murder. The findings singled out by Kaesontae are contained in these comments made by the judge at the close of the evidence:

"Mr. Blaine saw the gun pointed, saw Mr. Chance Pratt raise his hands and back away and that after backing away he went towards the rear of the car, crouched and put his back to the rear quarter panel while Mr. Edgington and Mr. Kaesontae simply sat there in the car. Mr. Chance Pratt came forward, either reached in or hit into the car in a sudden manner, there was a scuffle, the gun went off.

....

"[A]t the point at which Mr. Leck Kaesontae raised the gun and asked for the wallet this became an attempt at aggravated robbery....

"The attempted aggravated robbery had stopped. That's not a legal term or a legal conclusion, it just had stopped. Mr. Kaesontae and Mr. Edgington were apparently simply sitting there in the car. What they were talking about or doing or thinking, we don't know. I suspect they may not know. We have no idea of what Chance Pratt was thinking....

"It does not feel right to say that Mr. Kaesontae did a premeditated first-degree murder; however, the public policy on felony murder is that a person who commits a felony assumes all the risks of that action, whatever happens. It's clear to the Court that but for this felony for which Mr. Kaesontae bears responsibility, Chance Pratt would not have been killed on that night, and that the imperfect tool of felony murder is the box, the pigeon-hole which best fits this particular set of facts."

K.S.A. 21-3401(b) provides: "Murder in the first degree is the killing of a human being committed ... in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto." Aggravated robbery is designated an inherently dangerous felony. K.S.A. 21-3436(a)(4).

Kaesontae argues that the district court found that the killing of Pratt was not committed in the attempt to commit or flight from the aggravated robbery of Pratt. The district court found that the attempt to commit aggravated robbery had "stopped." It further found that Kaesontae and Edgington "simply sat" in the car while Pratt backed away and then "went towards the rear of the car, crouched and put his back to the rear quarter panel." Then, "Pratt came forward, either reached in or hit into the car in a sudden manner, there was a scuffle, the gun went off." In Kaesontae's summation, before Pratt was shot he had "essentially escaped" and was not being pursued. Nor were Matt Edgington and Kaesontae fleeing or attempting to flee. Pratt opened a new episode by "reinsert[ing] himself into the situation."

The State's position is that a victim's resistance to an underlying felony may extend the duration of the criminal transaction beyond the time when the felony is technically complete. For the proposition, the State quotes State v. Giddings, 226 Kan. 110, 113, 595 P.2d 1115 (1979) (quoting State v. Branch and Bussey, 223 Kan. 381, 383, 573 P.2d 1041 [1978] ):

" 'A felon's attempt to commit a robbery sets in motion a chain of events which should cause him to contemplate that a death might occur. This is particularly true of a robber who carries a deadly weapon (as these robbers did) and forces his way into an occupied dwelling. The impulse for an individual to resist the sudden show of force, to defend himself or to come to the aid of a family member or loved one, is a basic human instinct. Under such circumstances every robber who expects human opposition to his quest to steal, as he must when he commits a statutory robbery, is a potential assassin because he knows he may be forced to use his weapon either to carry out his criminal act or to escape without being pursued and captured by his victim.' "

The State contends that in applying this rationale to the circumstances of the present case, the conclusion that the killing and the attempted aggravated robbery were part of one continuous transaction is unavoidable.

The connection between the inherently dangerous felony and the killing has been the subject of other decisions of this court. In State v. Rider, Edens & Lemons, 229 Kan. 394, Syl. p 4, 625 P.2d 425 (1981), the court stated:

"Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of the felony and, therefore, subject to the felony-murder rule. Whether the underlying felony had been abandoned or completed prior to the killing so as to remove it from the ambit of the felony-murder rule is ordinarily a question of fact for the jury to decide. (Following State v. Hearron, 228 Kan. 693, 619 P.2d 1157 [1980].)"

In State v. Lashley, 233 Kan. 620, 631, 664 P.2d 1358 (1983), we said:

"[The victim's] property stolen in Arkansas was brought into Wilson...