State v. Mason

• Decision Date: 06 November 1971
• Docket Number: No. 45784,45784
• Citation: 490 P.2d 418,208 Kan. 39
• Parties: STATE of Kansas, Appellee, v. James Edward MASON, Appellant.
• Court: Kansas Supreme Court

Page 418

490 P.2d 418

208 Kan. 39

STATE of Kansas, Appellee, v. James Edward MASON, Appellant.

No. 45784.

Supreme Court of Kansas.

Nov. 6, 1971.

Syllabus by the Court

1. Where self defense is an issue in a homicide case, evidence of the turbulent character of the deceased is admissible. Such evidence may consist of the general reputation of the deceased in the community, but specific instances of misconduct may be shown only by evidence of conviction of a crime.

2. Failure to instruct the jury on lesser included offenses is not error where (a) the defendant affirmatively approves the proposed instructions, (b) the evidence does not clearly require an instruction on the lesser offense and (c) the defendant is convicted of the higher offense charged on satisfactory evidence and under proper instructions relating to it.

3. The record in a prosecution for second degree murder examined and it is held: neither the conduct of the county attorney during final argument nor the admission into evidence of a photograph of the deceased constituted reversible error.

Samuel J. Wilson, Kansas City, argued the cause and was on the brief, for appellant.

Nick A. Tomasic, Chief Deputy County Atty., argued the cause, and Vern Miller, Atty. Gen., and Frank D. Menghini, County Atty., were with him on the brief, for appellee.

FOTH, Commissioner:

Appellant was convicted by a jury of murder in the second degree, as charged in the amended information, and was sentenced to confinement for a period of ten years. He appeals, alleging several trial errors.

The deceased, Richard Calhoun, was eighteen years old at the time of his death. He and the appellant had been acquainted for approximately two years, going back to a time when Calhoun had been a student in a trade school operated by the Economic Opportunity Foundation in which appellant was an instructor-supervisor. Their relationship at the school and afterwards was not a friendly one, being marred by several conflicts over school hours and discipline, including one in which Calhoun was said to have displayed a knife and appellant sent him home from school. Calhoun was eventually discharged from the school and apparently blamed appellant for his dismissal.

Appellant testified to subsequent encounters with Calhoun and various of his friends during which appellant felt apprehensive. One of these was about a week before Calhoun's death, at which time both Calhoun and a friend showed appellant pistols, one of which appellant offered to buy. The fatal incident was precipitated by the theft that night of a tape player from appellant's car; appellant was led to believe Calhoun was responsible for the theft.

Their last encounter occurred about 8:00 or 9:00 p. m. on March 8, 1968, in a parking lot near a tavern in Kansas City. Appellant had observed a car pull into the lot and had recognized its passengers as friends of Calhoun. He followed in his truck seeking, he said, to interrogate them about his tape player. When both vehicles stopped he observed Calhoun alight from the driver's seat of the car, and he similarly alit from the truck.

Appellant had with him in the truck a Winchester .30-30 carbine which he had purchased about a month before, and which he had pawned about two weeks before. He had gotten it out of pawn aobut 7:00 o'clock that evening, and purchased shells for it and loaded it for the first time shortly before the shooting.

As to the brief encounter in the parking lot, we have two versions. Two young friends of Calhoun testified that appellant came running up with the rifle in hand, demanding to know where his tape player was; that Calhoun denied knowledge of it, whereupon appellant shot him from a distance of as much as six or seven feet; and that appellant then told them to get out, take Calhoun with them, and not come back.

Appellant's version was that, upon seeing Calhoun he reached into the truck and picked up the rifle-only because he didn't trust Calhoun and wanted to scare him; that he operated the rifle's lever action as he approached-again only to scare him, since he thought he had unloaded it; that Calhoun said he had the tape player and dared him to do something about it; and that Calhoun made arm motions leading appellant to believe he might have a pistol concealed in his belt under the bloused shirt or sweater he was wearing. Appellant insisted in both a pretrial statement and in his testimony that he poked Calhoun at the waist with the rifle to see if there would be a metallic clink indicating the presence of a pistol, and that as he did so the rifle discharged accidentally. He steadfastly denied pulling the trigger.

The ensuing events are immaterial here. They include appellant's pawning of the gun the next morning under an alias, his arrest and the giving of a statement which is not in issue, and the death of Calhoun from the gunshot wound after surgery.

As may be seen, appellant's defense was an uncertain mixture of accident and self-defense. His first allegation of error relates to the exclusion of testimony which he characterizes as dealing with the reputation and predilection for violence of the deceased, offered to support the latter theory.

There is no doubt that where a colorable claim of self-defense is made, evidence of the turbulent character of the deceased is proper and may be shown by evidence of his general reputation in the community. State v. Gray, 179 Kan. 133, 292 P.2d 698; State v. Long, 103 Kan. 302, 175 P. 145. Cf., State v. Johnson, 185 Kan. 1, 340 P.2d 373; State v. Frederickson, 81 Kan. 854, 106 P. 1061; State v. Kirby, 62 Kan. 436, 63 P. 752. Here, however, the evidence offered did not go to general reputation; what appellant sought to introduce was the testimony of a police juvenile officer showing a record of Calhoun's juvenile arrests, none of which resulted in a conviction or adjudication of miscreancy or delinquency. K.S.A. 60-446 has doubtless broadened the scope of evidence by which character may be proved by permitting proof of specific instances of a person's conduct, but that section is expressly subject to the limitation of 60-447. The latter in turn provides that, where a character trait is relevant, 'evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible * * * .'

The upshot of it is that appellant could prove Calhoun's claimed violent character either by general reputation or by evidence of convictions. The offered evidence was neither, and was therefore properly rejected.

Appellant's other major contention is based on the trial court's failure to instruct the jury on first, second and third degree manslaughter. No complaint is made of the instructions actually given, which covered murder in the second degree, fourth degree manslaughter and justifiable homicide. Neither is there a contention that the state's evidence, if believed, was not wholly adequate to sustain the verdict returned.

The following discussion occurred prior to the instructions' being given:

'THE COURT: It was my thought that that would take care of the matter if the jury should find that the killing was involuntary. Now, that was my reason for putting it there.

'MR. MENGHINI (county attorney): After his testimony this morning, I don't have any objection to the self-defense instruction.

'THE COURT: What about you, Mr. Fisette?

'MR. FISETTE (defense counsel): If Your Honor please, I think the instructions cover the situation as the Court has drawn the instructions, and we have no objection to the instructions as they now presently stand, and we feel that the defendant is entitled to the lesser crime-that of fourth-degree manslaughter-as the Court has instructed in its instructions.'

This exchange renders apropos what we said in State v. Hockett, ...