State v. Lashley
| Decision Date | 10 June 1983 |
| Docket Number | No. 54861,54861 |
| Citation | 664 P.2d 1358,233 Kan. 620 |
| Parties | STATE of Kansas, Appellee, v. Clifton Linwood LASHLEY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The sufficiency of a preliminary examination may only be challenged by a Motion to Dismiss. K.S.A. 22-3208. Issues not raised by the motion nor presented to the court are deemed waived.
2. Where a witness who has testified at a preliminary hearing refuses to testify at the accused's trial, claiming a valid privilege, it does not violate the accused's right of confrontation to admit into evidence at his trial the transcript of the witness's preliminary examination testimony where the accused was provided an opportunity to cross-examine the witness at the preliminary examination.
3. It is improper conduct for either the prosecution or the defense knowingly to call a witness who will claim a privilege for the purpose of impressing upon the jury the fact of the claim of privilege. State v. Crumm, 232 Kan. 254, Syl. p 1, 654 P.2d 417 (1982).
4. Claims of privilege are to be determined outside the presence of the jury, since undue weight may be given by a jury to a claim of privilege and due to the impossibility of cross-examination as to its assertion.
5. Where a witness having a valid claim of privilege has given a prior statement, a hearing to determine if the statement is admissible must be conducted outside the presence of the jury. If the statement is admissible, before the statement is read into the record, the jury should be informed simply that the witness is not available to testify.
6. In charging the jury in a criminal case, it is the duty of the district court to define the offense charged, stating to the jury the essential elements of the crime, either in the language of the statute or in appropriate and accurate language of the court. State v. Nesmith, 220 Kan. 146, Syl. p 3, 551 P.2d 896 (1976).
7. The propriety of the instructions to the jury is to be gauged by consideration of the whole, each instruction to be considered in conjunction with all other instructions in the case.
8. 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.
9. The ostensible purpose of the felony murder doctrine is to deter those engaged in felonies from killing negligently or accidentally, and the doctrine should not be extended beyond its rational function which it was designed to serve. State v. Underwood, 228 Kan. 294, Syl. p 3, 615 P.2d 153 (1980).
10. To invoke the felony murder rule there must be proof that a homicide was committed in the perpetration of or an attempt to perpetrate a felony and that the collateral felony was one inherently dangerous to human life. State v. Underwood, 228 Kan. 294, Syl. p 4, 615 P.2d 153 (1980).
11. In determining whether a particular collateral felony is inherently dangerous to human life so as to justify a charge of felony murder under K.S.A. 21-3401, the elements of the collateral felony should be viewed in the abstract, and the circumstances of the commission of the felony should not be considered in making the determination. State v. Underwood, 228 Kan. 294, Syl. p 5, 615 P.2d 153 (1980).
12. Theft by obtaining or exerting unauthorized control over property, K.S.A. 21-3701(a ), and obtaining by threat control over property, K.S.A. 21-3701(c ), when considered in the abstract, are felonies inherently dangerous to human life and will sustain a conviction for murder in the first degree under the felony murder rule.
Douglas D. Depew, of the Depew Law Firm, Neodesha, argued the cause, and Harry L. Depew, Neodesha, of the same firm, was with him on the briefs, for appellant.
Richard G. Oliver, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Kurt F. Kluin, Asst. County Atty., were with him on the brief, for appellee.
This is an appeal from the district court of Wilson County, Kansas by the defendant Clifton Lashley based upon a conviction under the felony murder rule.
Kelsie Robbins was a resident of Bella Vista, Arkansas. Sometime early in February, 1981, he took in as a houseguest Clifton Linwood Lashley. Robbins and Lashley were joined by Marla Longworth, who also lived for a period of time at the Robbins home. Early in June of 1981, Robbins, Longworth and Lashley drove to Fredonia, Kansas to meet with one Kenneth Berry, a friend of Lashley. Mr. Robbins believed he was to participate in a bank robbery in Kansas with Lashley, Longworth and Berry. The trip to Kansas was for the purpose of planning that robbery.
At the first meeting in Fredonia, Kansas, outside the presence of Robbins, Berry and Lashley, in the presence of Longworth, planned to murder Robbins. At this meeting Kenneth Berry supplied Lashley with a .25 caliber automatic, the murder weapon. Shortly after the meeting, Robbins, Lashley and Longworth returned to Bella Vista, Arkansas.
Longworth testified that the next day she, while packing a suitcase, saw Lashley place in that suitcase a sterling silver tray belonging to Robbins. Robbins, Longworth and Lashley then left Bella Vista, Arkansas and drove to Fredonia, Kansas where they met Berry. Berry entered the vehicle and directed Robbins, who was driving, to a wooded area just north of Neodesha, Kansas. All four of the individuals walked a considerable distance through very rough, bushy terrain. Lashley, upon reaching a secluded area, pulled out the gun previously supplied him by Kenneth Berry and attempted to shoot Robbins. The gun jammed. Lashley handed the gun to Berry who corrected the faulty mechanism and returned the gun to Lashley. There is conflicting testimony as to the sequence in which the shots were fired at Robbins. Longworth testified that Lashley fired several shots into Robbins, then handed her the gun. She turned her head and fired one shot into the ground. Berry testified that Lashley fired a single shot and then Longworth emptied the clip at Robbins. Berry robbed the body of its personal effects and the three returned to the automobile belonging to the deceased and left the State of Kansas.
After leaving the wooded area in Wilson County, the three drove south towards Oklahoma City. In Oklahoma City, Berry attempted to sell some of the jewelry belonging to the deceased Robbins, one of those items being a 1970 class ring with the initials K.R. Thereafter, the trio left Oklahoma City and proceeded south to Gainesville, Texas, where additional jewelry belonging to the deceased was sold for the sum of $1,200.00 to a Mr. Clyde Bond.
At this point Kenneth Berry became apprehensive and at his first opportunity left Lashley and Longworth and returned to Kansas, where he initially told a story of being kidnapped by Lashley and Longworth. Berry, however, eventually came forward with the complete story. After Berry's departure, Lashley and Longworth proceeded west and eventually ended up in Phoenix, Arizona, using the names of Lonnie and April Sanders. While in Phoenix, Arizona, Lashley pawned a Black Hills gold man's ring which had belonged to Robbins.
Lashley was tried to the jury on a charge of premeditated murder or first degree felony murder based upon the theft of property belonging to the deceased Robbins, having a value of more than $100.00. Lashley was convicted by the jury of murder in the first degree under the felony murder rule and now appeals that conviction.
Defendant's preliminary examination was completed December 9, 1981, by a district magistrate judge. The district magistrate judge, after hearing the evidence, stated:
"The court, after hearing the evidence, finds that there's probable cause to believe that the offense of Count II, first degree murder and Count III, felony murder has been committed and that there's reason to believe that the defendant committed the crimes, and that he be bound over to appear before a district judge, or associate district judge for arraignment, ...."
December 21, 1981, a Notice of Appeal of the decision of the district magistrate judge binding the defendant over for arraignment was filed. The Notice of Appeal stated no reason or statutory authority for the appeal. A new preliminary examination was set for February 8, 1982, and a second judge assigned to hear the matter. February 8, 1982, Judge Richard L. Ashley ruled that the "binding over" at the preliminary hearing was not a final order and the court had no jurisdiction to hear the appeal and ordered the defendant to appear February 11, 1982, for arraignment.
Defendant first attempted to justify an appeal from the district magistrate judge's ruling under K.S.A.1982 Supp. 60-2103a, which provides:
Appeals contemplated by K.S.A.1982 Supp. 60-2103a are from orders or final decisions of a district magistrate judge's rulings in civil actions. The court, therefore, had no jurisdiction to hear an appeal under that procedure. Failing under K.S.A.1982 Supp. 60-2103a, defendant states his right to appeal the district magistrate judge's ruling after the preliminary examination was provided by K.S.A.1982 Supp. 22-3609a. It states in part:
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