State v. Kirkpatrick

• Decision Date: 30 May 2008
• Docket Number: No. 93,465.,93,465.
• Citation: 184 P.3d 247
• Parties: STATE of Kansas, Appellee, v. John P. KIRKPATRICK, Appellant.
• Court: Kansas Supreme Court

184 P.3d 247

STATE of Kansas, Appellee, v. John P. KIRKPATRICK, Appellant.

No. 93,465.

Supreme Court of Kansas.

May 30, 2008.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Matthew J. Edge, of the same office, was with him on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by McFARLAND, C.J.:

John P. Kirkpatrick appeals his jury trial conviction of the first-degree felony murder of Jacob Williams. He received a life sentence with eligibility for parole after 20 years.

Kirkpatrick contends: (1) the trial court erred in denying his request for instructions on lesser included offenses of voluntary and involuntary manslaughter; (2) it was error for the district court to deny his motion to suppress his statements to the police; (3) the trial court abused its discretion in permitting the lead police investigator to sit at the prosecution table; (4) the trial court denied him a fair trial by quoting the Bible at the beginning of the trial; (5) the trial court erred in denying his motion for a continuance in order to hire private counsel; (6) the trial court erred in denying his motion to recall the jury; and (7) he is entitled to a new trial based upon cumulative error.

We affirm.

FACTS

On the evening of January 22, 2004, the defendant, John Kirkpatrick, and his friend, Garrod Farha, went to Mulligan's Pub in Wichita. Also at the bar were their friends, Rob Powers and Thomas Wright. Two friends of Powers, Jasen Tedlock and Jake Williams, were at the bar. The group stayed at the bar until approximately 1:45 a.m., when the bar was closing. Powers invited about a dozen people to come to his apartment, including all of the above-named individuals.

Powers and several of the guests were interested in car racing, and a loud discussion at the apartment occurred concerning who had the fastest car. Several times Powers advised his guests to quiet down as he was concerned about the noise bothering his neighbors in surrounding apartments. This admonition did not lower the noise level. Finally, Powers stated he would ask the next person who raised his voice to leave. Wright raised his voice, and Powers asked him to leave. Wright was unhappy with the request but walked outside with Powers, followed by Tedlock, Farha, and Kirkpatrick. Powers explained the request to leave was nothing personal. An argument erupted between Tedlock and Farha. Tedlock may have attempted to strike Farha. In any event, a scuffle broke out. Tedlock may have pulled a knife. The argument ended when Williams came out and took Tedlock back inside the apartment.

Kirkpatrick, Farha, and Wright then left. They drove to Farha's house, where Farha took possession of his roommate's handgun. The three men put Farha and Kirkpatrick's dog, a 75- to 80-pound pit bull, into the car and then drove back to Powers' apartment. During the drive, Kirkpatrick said that no one "disses my set."

When they arrived at Powers' apartment, Farha handed the gun to Kirkpatrick, who placed it in his waistband. Powers came out of the apartment with Tedlock and Williams remaining inside. Powers saw Farha holding the pit bull by the collar and asked why they had brought the dog. Powers continued to ask them what was going on but received no response. Kirkpatrick then pulled the gun out of his waistband. Powers moved in front of him and asked why he had a gun. According to Powers, Kirkpatrick responded that he was representing his "set," and he would continue to do so until he died. At the same time, Powers saw Farha kicking the door to Powers' apartment. Powers attempted to calm Kirkpatrick and asked him to hand over the gun. Kirkpatrick refused and instead fired a single shot into the door of Powers' apartment. After the shot, Powers grabbed Kirkpatrick and asked him what he was doing. After 3 or 4 seconds passed, Kirkpatrick shoved Powers away and fired two more shots into the door. Kirkpatrick, Farha, and Wright then ran to the parking lot.

Tedlock testified that, while inside the apartment, he and Williams heard the argument. Tedlock looked out the apartment window and saw a man holding a dog. As he closed the window, someone attempted to kick in the apartment door; however, the chain lock prevented its complete opening. When the door came partially open, Williams ran up to the door, pushed his body up against it, and locked the deadbolt. At that point, shots came through the door. Williams fell back onto Tedlock and said that he had been shot. Williams and Powers called 911. Paramedics transported Williams to the hospital where he died later that day.

Kirkpatrick was charged with one count of first-degree felony murder with the underlying felony being criminal discharge of a firearm at an occupied dwelling pursuant to K.S.A. 21-4219(b) (Furse). At trial numerous witnesses, including Tedlock and Powers, testified on behalf of the State. Kirkpatrick and Wright both testified on Kirkpatrick's behalf, but Farha invoked his right against self-incrimination. The jury returned a guilty verdict on the single count before us, and the trial court sentenced Kirkpatrick to life in prison with the possibility of parole after 20 years.

Additional facts will be provided as necessary for the resolution of particular issues.

DID THE TRIAL COURT ERR IN DENYING THE DEFENDANT'S REQUEST FOR INSTRUCTIONS ON VOLUNTARY AND INVOLUNTARY MANSLAUGHTER AS LESSER INCLUDED OFFENSES?

The defendant contends he was entitled to these instructions on various grounds. The defendant testified at trial that he saw, through the sliding glass door, Tedlock armed with a gun and heard Tedlock threaten to kill him. Tedlock then made a move toward the front door. At that point, Kirkpatrick said, he fired three shots at the door because he feared for his life and the lives of his two friends. Kirkpatrick claimed he believed that by firing the gun he would prevent Tedlock from stepping outside of the apartment.

The only gun found inside the apartment was a .45 caliber semi-automatic handgun. The gun was in a case that was on the upper shelf of a bedroom closet. A towel and some neatly folded clothing were stacked on top of the case. The magazine was out of the gun and was stored in its separate compartment in the case.

Wright's testimony controverted Kirkpatrick's recitation of events. Wright testified that once the group returned to Powers' apartment, Tedlock was not doing anything behind the sliding glass door. Further, Wright stated that he did not see anyone (other than Kirkpatrick) with a gun. Wright testified that Kirkpatrick did not have a reason to shoot the door. Tedlock's testimony supported Wright's position. Tedlock stated that he had not waved a pistol in the window. Tedlock also testified that he had not threatened to shoot anyone.

Kirkpatrick requested a jury instruction on self-defense based upon K.S.A. 21-3211 (Furse), which provides: "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." The State did not oppose the giving of that instruction, but requested an instruction concerning self-defense by an aggressor pursuant to PIK Crim.3d 54.22 (initial aggressor's use of force). The court gave both instructions. Kirkpatrick also requested instructions on several lesser included offenses of first-degree felony murder: voluntary manslaughter based upon all three theories contained in K.S.A. 21-3403 and (b) and reckless involuntary manslaughter under K.S.A.2004 Supp. 21-3404(a). He argued, among other things, that his defense of self-defense put "imperfect self-defense," which he asserted was a type of voluntary manslaughter, into play.

The district court denied Kirkpatrick's request for lesser included offense instructions, holding that an instruction for voluntary manslaughter was not warranted because there was no evidence of an intentional killing and an instruction for involuntary manslaughter was not warranted because there was no evidence of recklessness.

On appeal, Kirkpatrick argues the trial court erred in refusing his request to instruct the jury on imperfect self-defense voluntary manslaughter and involuntary manslaughter as lesser included offenses to first-degree felony murder.

As a general rule,

"[t]he duty to instruct on a lesser included offense arises only where there is evidence supporting the lesser crime. The evidence of a lesser included offense need not be strong or extensive as long as it presents circumstances from which the lesser offense might reasonably be inferred. Such an instruction must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant." State v. Horn, 278 Kan. 24, Syl. ¶ 6, 91 P.3d 517 (2004).

This general rule, however, does not apply in a felony-murder case:

"`When murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first-degree murder. It is only when the evidence of the underlying felony is weak, inconclusive, or conflicting that instructions on lesser included offenses may be required.' [Citation omitted.]" State v. Calvin, 279 Kan. 193, 201-02, 105 P.3d 710 (2005).

Kirkpatrick argues that to the extent his claim of self-defense would negate the criminal intent required for the underlying felony of criminal discharge of a firearm at an occupied dwelling, the evidence that the trial court found strong enough to warrant the self-defense instruction necessarily...