State v. Linn

• Court: Kansas Supreme Court
• Writing for the Court: LOCKETT
• Citation: State v. Linn, 251 Kan. 797, 840 P.2d 1133 (Kan. 1992)
• Decision Date: 30 October 1992
• Docket Number: No. 67044,67044
• Parties: STATE of Kansas, Appellee, v. Jason C. LINN, Appellant.

Page 1133

840 P.2d 1133

251 Kan. 797

STATE of Kansas, Appellee, v. Jason C. LINN, Appellant.

No. 67044.

Supreme Court of Kansas.

Oct. 30, 1992.

Syllabus by the Court

1. In cases tried to a jury, the judge and jury have separate and distinct functions. It is for the judge to determine and decide questions of law presented during the trial and to state the applicable law in the judge's instructions to the jury. It is for the jury to decide the facts from the evidence submitted and to render a verdict in accordance with the judge's instructions.

2. An instruction as to the offense of aggravated burglary is defective unless it specifies and sets out the statutory elements of the offense intended by an accused in making the unauthorized entry.

3. A party may not assign as error the giving of or failure to give an instruction unless the party objects thereto, stating the specific grounds for the objection. Absent such objection, an appellate court may reverse only if the trial court's failure to give the instruction was clearly erroneous. The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict.

4. Lesser included offense instructions are not required in felony-murder cases unless the evidence of the underlying felony is weak or inconclusive.

5. The trial court has a duty to instruct the jury on all lesser included offenses which are supported by the evidence. K.S.A. 21-3107(3). This is true regardless of whether there is a request for such an instruction. Although the evidence in support of an instruction on a lesser included offense need not be strong and must be viewed in the light most favorable to the defendant, the duty to instruct on lesser crimes of which the accused might be found guilty under the information or indictment arises only where there is evidence upon which the accused might reasonably be convicted of the lesser offense.

Steven R. Zinn, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief for appellant.

Ann L. Smith, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with her on the brief for appellee.

LOCKETT, Judge:

Defendant was convicted of first-degree felony murder (K.S.A.1989 Supp. 21-3401), aggravated battery (K.S.A. 21-3414), and aggravated burglary (K.S.A. 21-3716). He was sentenced to life imprisonment on the felony-murder conviction and 5 to 20 years on each of the other two convictions, with all the sentences to run consecutively. On appeal, the defendant claims the trial court erred in (1) failing to specify the underlying felony intended for a conviction for aggravated burglary; (2) failing to instruct the jury on the lesser included offense of involuntary manslaughter; (3) failing to instruct that criminal trespass was a lesser included offense of aggravated burglary; and (4) after the trial, refusing to redetermine the defendant's competency during the trial. Defendant also claims there was insufficient evidence that the defendant was sane when he committed the offense, there was insufficient evidence to find the killing occurred during the aggravated burglary, and the trial court abused its discretion by imposing consecutive maximum sentences.

During the afternoon of May 21, 1990, Jason Linn, who was 21 years of age, went to the house where his sister and Lori Near lived to eat dinner and watch television. At some point during the evening of May 21, 1990, Linn left the house for a party at the home of a friend. At the party, Linn consumed alcohol and some LSD. He departed after he was involved in an altercation with another individual, but returned to the party several times. At about 2:30 a.m., he returned to his sister's house. His sister was at work. Linn told Lori Near he had left his radio at the party and stated he was going to go get it. After Linn had left the house, Lori Near heard screaming and the sounds of "someone getting hit with a big club or something."

Oliver and Vicie Teal, an elderly couple, lived close to Near's house. Mr. Teal was 89 years old. The Teals, who slept in separate rooms, went to bed between 11:00 and 11:30 p.m. on May 21, 1990. During the early morning hours, Mrs. Teal entered Mr. Teal's room and woke him. Jason Linn was standing beside Mrs. Teal. Mrs. Teal told her husband Linn wanted money. Mr. Teal testified the defendant said "he wanted me" and started hitting him in the head with something like a piece of metal he had in his hand. During the altercation, Mr. Teal forced Linn out the front door and locked it.

After being locked out of the Teal home, Linn kicked in the front door, came back into the house, and again began hitting Mr. Teal on the head. Mr. Teal attempted to hit the defendant with a pipe wrench, but dropped it. Mr. Teal told his wife to get a shovel, which was outside by the garage. Once Mr. Teal had the shovel, he managed to hit the defendant and force him outside the home again. Mr. Teal dropped the shovel and went back into the house. Mr. Teal could not remember what happened after that.

Later that morning the Teal children arrived at their parents' house. Mrs. Teal was on the front porch, covered with blood. A shovel with blood on it was found next to the sidewalk. Mr. Teal was inside the house, sitting on the floor and leaning against a chair, holding his wallet, which contained more than $800 in cash. He had blood on him and spots of blood were found in the bathroom. Mr. Teal was drifting in and out of consciousness but was breathing on his own. The police were called.

Without regaining consciousness, Mrs. Teal died as a result of a fractured skull and damaged brain. Mr. Teal survived the injuries he received.

The jury convicted Linn of first-degree murder of Vicie Teal, aggravated battery of Oliver Teal, and aggravated burglary. On appeal, Linn raises seven issues.

FAILURE TO SPECIFY THE FELONY WHEN INSTRUCTING THE JURY ON

AGGRAVATED BURGLARY

Defendant was charged with felony murder. The underlying felony for the murder charge was aggravated burglary. In a separate count Linn was charged with aggravated burglary of the Teal home. The charge of aggravated burglary alleged that defendant entered or remained in the home "with intent to commit a felony or theft therein."

Prior to instructing the jury, defense counsel requested that the felony-murder instruction specify aggravated burglary as the underlying felony. The judge agreed. Defense counsel also requested that the aggravated burglary instruction specify the underlying crime as theft. The State argued its evidence would support theft, aggravated battery, or robbery as the underlying felony for aggravated burglary.

In his instruction, the trial judge incorporated the language of the aggravated burglary statute (K.S.A. 21-3716). The judge's instruction stated that to find the defendant guilty of aggravated burglary the jury must find Linn entered or remained in the residence "with the intent to commit a felony or theft therein." The instruction is similar to the State's complaint. Defense counsel objected to this instruction, arguing there was no evidence of an intent to commit any crime other than a theft. The State argued that there was evidence of Linn's intent to commit the offenses of robbery, aggravated battery, and theft. The trial judge overruled defendant's objection. The judge's instruction to the jury failed to specify a specific felony the defendant allegedly intended to commit inside the Teal home or specify the statutory elements of theft or any other felony.

The judge's instruction allowed the prosecutor to state in closing argument:

"Aggravated burglary, that the Defendant knowingly entered into and remained in the residence. No question that he did so without authority. To commit a felony or theft therein. There are a number of felonies, robbery, intent to commit aggravated burglary, intent to commit aggravated battery, or a number of other things, and that, at that time, there was a human being in the residence." (Emphasis added.)

During deliberations, the jury submitted a question to the judge asking for "a complete description of ... felony." After a discussion with counsel, the trial judge informed the jury that a felony is a crime for which punishment could be in excess of one year in a state penitentiary. The trial court's response to the jury's question was approved by counsel for the State and the defendant.

On appeal the defendant does not contest the fact that there was evidence from which the jury could have found an intent to commit a theft, but argues the question submitted by the jury shows that the defendant was prejudiced by the court's use of the term "felony" in the aggravated burglary instruction. Linn argues that if the jury had based its verdict for the felony-murder and aggravated burglary convictions upon an intent to commit a theft, there would have been no reason for it to have requested the judge to define the term "felony." Linn contends the trial court's answer to the jury's question did not clarify or guide the jury because the answer defined felony rather than stated the specific offenses and their statutory elements. Linn asserts that the specific underlying felony intended by an accused in making an unauthorized entry is an essential element of the offense of burglary. See State v. Skelton, 247 Kan. 34, 49, 795 P.2d 349 (1990). Linn claims that the judge's instruction required the jury to speculate as to the elements of the various underlying offenses alleged by the State. Defendant argues that the trial court's failure to specify in its instruction the felony he was alleged to have intended to commit inside the residence requires a reversal of both the aggravated burglary conviction and the felony-murder conviction, which is based...