State v. Mason, 57515

• Decision Date: 25 October 1985
• Docket Number: No. 57515,57515
• Citation: 708 P.2d 963,238 Kan. 129
• Parties: STATE of Kansas, Appellee, v. William H. MASON, Appellant.
• Court: Kansas Supreme Court

Page 963

708 P.2d 963

238 Kan. 129

STATE of Kansas, Appellee, v. William H. MASON, Appellant.

No. 57515.

Supreme Court of Kansas.

Oct. 25, 1985.

Syllabus by the Court

1. In the absence of a stipulation between the parties, the results of a polygraph examination are not admissible in evidence.

2. Drunkenness, to reduce a homicide from murder to manslaughter, must be so extreme as to prevent the formation of an intent to kill.

3. Once a trial court has ruled upon the voluntariness of a confession at a Jackson v. Denno hearing, the accused is not entitled under the Constitution to have the matter resubmitted to and redetermined by a jury.

4. A special instruction bearing on the credence to be given a confession is not required when the jury is given a general instruction bearing on the credibility of the testimony of every witness.

5. The two-sentence instruction on presumption of intent, formerly PIK Crim. 54.01, creates a permissive presumption and does not shift the burden of proof to the defendant.

6. In applying the Kansas harmless error rule (K.S.A. 60-2105) to a federal constitutional error, a court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt.

7. A trial court is not required to define words in common usage, words which are widely used and are readily comprehensible to the average person.

Lisa A. Nathanson, of Legal Services for Prisoners, Inc., of Lansing, argued the cause, and Benjamin C. Wood, of the same office, was on the brief for appellant.

Frank E. Kohl, Co. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

MILLER, Justice:

William H. Mason was convicted by jury trial in Leavenworth District Court of murder in the second degree, K.S.A. 21-3402, and aggravated burglary, K.S.A. 21-3716. He was sentenced on June 6, 1975, to serve a minimum term of fifteen years for the murder and a minimum term of five years for the aggravated burglary, the sentences to run concurrently and to commence as of March 1, 1974. (K.S.A. 21-4501 [Weeks], then applicable, fixed the maximum term for murder in the second degree at life imprisonment, and the maximum term for aggravated burglary at twenty years.) Notice of appeal was filed on June 11, 1975. The appeal, however, was not docketed until 1984, when an order was entered by this court granting leave to docket the appeal out of time. This is a direct appeal from the judgment of conviction and sentence.

Defendant contends that the trial court erred in refusing to admit the results of a polygraph test, in refusing to instruct the jury on voluntary and involuntary manslaughter, in its instruction to the jury relating to the defendant's confession, in improperly instructing the jury on the issue of intent, and in failing to instruct the jury that a killing, to constitute second-degree murder, must be intentional.

Since defendant does not challenge the sufficiency of the evidence to establish the offenses, we need not discuss the evidence extensively. The seventy-six-year-old victim, Mrs. Barbara Chmidling, lived alone in her home in Leavenworth. She rented a nearby house to the defendant, William H. Mason, where he, his wife, and their eighteen-month-old daughter lived. On January 24, 1974, Kenneth Chmidling, son of the victim, became concerned when his mother did not answer her telephone or contact other members of the family. He went to his mother's home, entered with his key, and found her body in the bedroom. Initially, no foul play was suspected. Mr. Chmidling called the undertaker, and he took the body to the funeral home. There, in preparing the body, the undertaker discovered that Mrs. Chmidling had been strangled by a green Army sock knotted around her neck. An intensive police investigation followed. Mrs. Chmidling's billfold, a shotgun, and a coin collection were found to be missing from her home.

On February 28, 1974, defendant was questioned by an agent of the K.B.I. at the Leavenworth police department headquarters. Defendant was first advised of his Miranda rights. He acknowledged in writing that he understood them, and he agreed to talk with the officer. The questioning began about 8:45 p.m. and concluded about 2:00 a.m. on the following morning, with a number of breaks being taken during the interrogation. Defendant confessed to the murder of Mrs. Chmidling by strangulation with a sock, and admitted that he took her wallet with him when he left the residence. There was no mention made in the statement about the shotgun or the coin collection. Defendant stated that he had thrown the billfold over a nearby bridge; none of the items were ever recovered. The evidence disclosed that the victim was raped, but the defendant denied that he had any sexual contact with her.

The defense was that the defendant was innocent, and that he only gave the officers a confession because he was a confused and brain-damaged individual who did not handle stressful situations well and might agree to things that were not true in order to relieve stress and anxiety. Most of the facts of the crime had already been reported in detail in the local newspaper before defendant confessed, and it was argued that defendant got the details set forth in his confession from reading newspaper accounts of the atrocity. Defendant was only eighteen years of age at the time the offense was committed. There was evidence that he was a native of Indiana, serving in the United States Army at Fort Leavenworth at the time of the occurrence. He had not done well in school but had been active in Boy Scouts, and he had no prior criminal record. His wife found him to be normal and mentally alert in all respects.

We turn first to the polygraph test result issue. Prior to his arrest, defendant was given a polygraph examination at the instigation of police officers. The test results indicated that the defendant had no guilty knowledge of the case. Defendant sought to introduce the result of the test into evidence, but the trial court refused to admit it. Defendant contends this was error.

In State v. Wise, 237 Kan. 117, 123-24, 697 P.2d 1295 (1985), we recently stated our rule with reference to polygraph evidence. We said:

"The Kansas rule has been frequently stated and is clear: In the absence of a stipulation between the parties, the results of a polygraph examination are not admissible in evidence. State v. Crossman, 229 Kan. 384, 389, 624 P.2d 461 (1981); State v. Nemechek, 223 Kan. 766, Syl. p 3, 576 P.2d 682 (1978); and State v. Blosser, 221 Kan. 59, Syl. p 1, 558 P.2d 105 (1976). Here there was no stipulation. To permit the defendant to introduce the results of the test, or even to refer to the giving of the test, would have been improper."

Similarly, there was no stipulation in the present case. The trial court did not err in refusing to admit the test results in evidence.

Next, we turn to the defendant's contention that the trial court erred by refusing to instruct the jury on the lesser included offenses of voluntary and involuntary manslaughter. The defendant did not testify in this case and we do not have the testimony of eyewitnesses to the occurrence. The evidence is that the victim was strangled; that strangulation caused her death; and that certain items were thereafter found missing from her home. There was no evidence of a sudden quarrel or heat of passion, and no evidence of an unintentional killing in the wanton commission of an unlawful act not amounting to a felony, or in the commission of a lawful act in an unlawful or wanton manner. In short, there was no evidence to support the giving of manslaughter instructions, and no evidence upon which the defendant might reasonably have been convicted of those offenses.

Defendant contends that there was evidence that he had been drinking on the night of the homicide and that drunkenness may reduce homicide from murder to manslaughter. The defendant did state in his confession that he had had some drinks on the night in question. However, he did not claim that he was drunk or intoxicated. The only other evidence relating to his condition on that night was to the effect that he was normal, acted the same as he always did, talked with his wife and made sense, and that he was not drunk. We have held that voluntary intoxication may be used to demonstrate an inability to form a particular state of mind necessary for a specific intent crime. State v. McDaniel & Owens, 228 Kan. 172, Syl. p 2, 612 P.2d 1231 (1980). However, to reduce a homicide from murder to manslaughter, drunkenness must be so extreme as to prevent the formation of an intent to kill. See State v. Crispin, 234 Kan. 104, 110, 671 P.2d 502 (1983), quoting from State v. Seelke, 221 Kan. 672, 678, 561 P.2d 869 (1977). There was no showing here that defendant was in that condition, and his memory of the events of the evening was remarkably clear. Under the circumstances, the trial court was correct in refusing the request to instruct the jury on manslaughter.

We now turn to the defendant's contention that the trial court erred in instructing the jury concerning the defendant's confession. The trial court gave the jury a lengthy instruction requiring it to determine that the confession was voluntarily made before the jury might consider it in its deliberations. The defendant argues that the giving of this instruction was error for two reasons: First, it is the province of the judge and not the jury to determine the voluntariness of a confession; second, the instruction did not require the jury to weigh and determine the truthfulness and reliability of the confession. In support of the first of these contentions, the defendant relies upon Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). That case, however, does not support defendant's claim that it is...