State v. Lee
| Decision Date | 11 December 1976 |
| Docket Number | No. 48271,48271 |
| Citation | 558 P.2d 1096,221 Kan. 109 |
| Parties | STATE of Kansas, Appellee, v. Emmanuel LEE, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The court is not required to define every word or phrase in an instruction unless from a fair reading of the instructions as a whole there is likelihood the jury will be misled or left to speculate without further explanation.
2. Argument, which lies properly within the domain of counsel in the case, finds no place in instructions of the court. A court should not give, and may properly refuse, argumentative instructions.
3. An instruction is objectionable as being argumentative when it directs the jury to look to or consider certain facts as tending toward certain conclusions, or when it suggests to the jury the probable or possible effect of the conduct of one person toward another.
4. Upon presentation of an application for expert services on behalf of an indigent defendant under K.S.A. 22-4508, a showing should be made of the anticipated cost in order that the judge may fix a tentative limitation as to the amount of money to be spent.
5. The appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court.
6. Upon reviewing the record of convictions for aggravated kidnapping, aggravated burglary, aggravated sodomy, aggravated battery, rape, attempted rape, and a felony theft, it is held that the trial court did not err in refusing a requested instruction; in denying a motion to dismiss; or in refusing additional mental examinations.
Steven L. Hornbaker, Harper, Hornbaker, Abbott & Hornbaker, Junction City, argued the cause, and Donald J. Willy, Junction City, was with him on the brief for appellant.
John H. Taylor, Sp. Prosecutor, argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.
Emmanuel Lee brings this direct appeal from the District Court of Morris County where he was convicted by a jury of twenty-one felony counts, one of aggravated kidnapping, eight of aggravated burglary, one of aggravated sodomy, two of aggravated battery, seven of rape, one of attempted rape, and one of felony theft. He was sentenced to imprisonment for life on the aggravated kidnapping conviction, to consecutive terms of not less than one nor more than twenty years on each of six aggravated burglary convictions, and to various concurrent terms for the other fourteen offenses. The crimes all took place in Geary County but on defendant's motion for change of venue the case was transferred to Morris County for trial.
Defendant raises three points on appeal, contending that the trial court erred in refusing to give a requested instruction that consent is a complete defense to the charge of rape; in overruling his motion to dismiss, made on the grounds that he was denied equal protection under the law because he was not afforded funds with which to hire his own handwriting expert; and in refusing him an 'independent' mental examination to determine his competency to stand trial and his sanity at the time of the commission of the offenses.
The crimes all occurred between March 28 and August 13, 1974, in Junction City. The defendant broke into the homes of eight army wives early in the morning, when the husbands were gone and the wives were still sleeping. Entry was gained by stealth. The victim usually first became aware of Lee's presence in the home when he put a pillow or pillow case over her head and held a knife at her throat. He threatened each victim that he was going to kill her or her child. All of the women were sexually molested. Several victims sustained knife wounds requiring substantial medical attention. One victim was forced from her home into an automobile and taken to two separate locations where she was repeatedly threatened and raped. In addition, the defendant took money and valuable articles from several of the homes. Some victims saw the defendant during the perpetration of the offenses, and identified him. Affidavits in the record state that defendant's fingerprints and palm prints were found in some of the homes; that some of the stolen articles were recovered from his residence and some from a friend with whom he had placed them; that index cards, bearing diagrams of the location of the residences of seven of the victims, were found in defendant's car; and that the husband of one victim found a letter (written in handwriting similar to that of the defendant) on the windshield of his truck, which letter purported to be written by the person who had assaulted his wife. The defendant does not challenge the sufficiency of the evidence to support the convictions.
Each of the victims testified. None knew the defendant prior to the commission of the offense. The defendant entered each house surreptitiously and without consent used a dangerous weapon and physical force, made threats as described above, and had sexual intercourse one or more times with seven of the women. The defendant did not testify and there was no direct evidence of consent. The only evidence in the record upon which he seizes to suggest consent is the testimony of one victim that she lay in bed while the defendant stood and talked with her between attacks, and the failure of some of the victims to raise an immediate outcry, offer substantial physical resistance, or make an immediate report to the authorities. Such matters may be appropriate subjects for oral argument but they need not and ordinarily should not be singled out and specifically mentioned in the court's instructions to the jury.
The requested instruction reads as follows:
The trial court gave a standard instruction on the elements of rape, patterned after PIK Criminal 57.01, as to each separate rape charged. That instruction required the jury to find that the act of sexual intercourse was committed without the consent of the victim. The jury was also instructed to determine the weight and credit to be accorded the testimony of each witness, to use common knowledge and experience in weighing the testimony, and to decide each charge separately on the evidence.
The elements of the offense were submitted to the jury in clear and understandable language. 'Consent' is a common word in everyday use, employed in the instructions in accordance with its customary and usual meaning: voluntary agreement, acceptance, approval, or acquiescence in what is proposed or has been done by another.
Justice Kaul, speaking for the court in State v. Sparks, 217 Kan. 204, 535 P.2d 901, said:
'. . . The court is not required to define every word or phrase in an instruction unless from a fair reading of the instructions as a whole there is likelihood the jury will be misled or left to speculate without further explanation. . . .' (p. 210, 535 P.2d p. 907.)
Here the jury was told that if it found that the act was committed without consent it could convict; otherwise, it could not. This was a clear statement and in no way misleading.
The requested instruction mentioned matters not in evidence, was argumentative, and in our opinion, tended to unduly emphasize portions of the evidence. The rule against argumentative instructions is aptly and concisely stated by Justice Prager in Bechard v. Concrete Mix & Construction Inc., 218 Kan. 597, 545 P.2d 334:
'. . . A court should not single out a particular theory or circumstance and give it undue emphasis although the requested instruction correctly states the law. . . .' (p. 601, 545 P.2d p. 337.)
The rule is also stated in 75 Am.Jur.2d, Trials, § 621:
'Argument, which lies properly within the domain of counsel in the case, finds no place in instructions of the court. A court should not give, and may properly refuse, argumentative instructions 'A charge is objectionable as being argumentative when it directs the jury to look to or consider certain facts as tending toward certain conclusions, or when it suggests to the jury...
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