State v. Massey
| Decision Date | 11 December 1987 |
| Docket Number | No. 60306,60306 |
| Citation | 747 P.2d 802,242 Kan. 252 |
| Parties | STATE of Kansas, Appellee, v. Fred MASSEY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The defense of unconsciousness by reason of a seizure is recognized in a criminal trial and equated with epilepsy rather than insanity.
2. An instruction on the defense of unconsciousness is required when there is reasonable corroboration of a criminal defendant's testimony that a seizure rendered him unconscious at the time of the commission of the alleged offense.
3. The failure to give PIK Crim.2d 68.09 when a defendant is charged with two or more degrees of a criminal offense is error. Without objection by the defendant, however, the failure is not clearly erroneous and thus not reversible error.
4. Declaration of a mistrial is a matter entrusted to the trial court's discretion, which decision will not be set aside on appeal unless abuse of discretion is clearly shown. The defendant has the burden of proving he was substantially prejudiced.
5. The State's prejudicial violation of an order in limine issued in a criminal trial is reversible error.
6. Failure to grant a mistrial in a criminal case is an abuse of discretion if no reasonable person would agree that facts elicited by the State in its violation of an order in limine did not substantially prejudice the defendant.
Martha J. Coffman, Asst. Appellate Defender, argued the cause, and Benjamin C. Wood, Chief Appellate Defender, and Melissa Sheridan, Asst. Appellate Defender, were 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.
This is a criminal action where a jury found Fred Massey guilty of first-degree murder, K.S.A. 21-3401, for the killing of his wife, Karen. Massey was sentenced to a maximum term of life pursuant to K.S.A.1986 Supp. 21-4501(a). Massey appeals.
The relevant facts are as follows. In 1980, Fred Massey retired after 23 years in the military police. In 1971, he had married Karen and after fourteen years of marriage filed for a divorce which would have become final in November of 1985. Karen planned to go back to school after the divorce. Meanwhile, they continued to live together.
Massey's alcoholism was a factor in the divorce. It was severe enough he had been placed in a treatment facility several times. In 1984, he began to have seizures which were alcoholism related. During the seizures, he would lose consciousness and fall to the floor, remaining unconscious for approximately 10 minutes. Dilantin was prescribed for him, and he experienced no seizures for the 15 months he was on the medication. His doctors soon began to reduce his dosage, however, because Dilantin does not mix well with alcohol.
Massey was taken completely off Dilantin in the middle of October 1985. He was, by this time, in the habit of drinking about a case of beer a day. On October 18, he picked up his .32 automatic pistol which had been left in a repair shop for over a year. The next day he purchased a box of .32 ammunition.
On November 1, Massey got up at 5:30 a.m. and began drinking beer. He watched television and drank beer all day while Karen was at work. Karen came home and watched television with him in the evening; Massey continued to drink until about 11:00 p.m.
The next morning was a Saturday. Massey woke up at 4:30 a.m. and drank coffee and watched television until 7:00 a.m., when he awakened Karen to go to a dental appointment. After she left, he continued watching television and started drinking beer. Karen came home around 9:30 a.m. and went upstairs to take a nap. Massey continued to watch television and drink beer.
Massey testified he went upstairs to the bathroom around noon. The couple's dogs followed him and awakened Karen by jumping on the bed. Massey said Karen lay in bed petting the dogs while they discussed their plans for going out with another couple that afternoon to fire the pistol Massey had retrieved from the shop.
As they talked, Massey took the box of bullets and the loaded pistol out of the nightstand on Karen's side of the bed. He remembered pointing the gun away from the bed as he picked it up. He did not remember whether he held the pistol with his palm on the grip and his finger on the trigger.
The next thing he remembered was coming to on the floor. He realized he had had a seizure because all the muscles in his body were stiff and sore. He stood and saw Karen lying on the bed with blood on her face. He pulled the bedspread back to see if she was breathing. Seeing she was not, he began shaking, ran downstairs, and drank two beers. When he went upstairs again to take her pulse, he was certain she was dead. He grabbed some underwear, the pistol, shells, and a .22 rifle, and left the house.
He drove around drinking for some time before thinking about the dogs left at the house. He returned for them and dumped them behind a fenced area on the highway. He told a friend he did this so the dogs would not maul Karen's body.
The guns were never found. Massey said he might have thrown them into the Missouri River. His next clear memory was of drinking beer in a room at the Cody Hotel. He left the Cody Hotel the next afternoon, still drinking steadily, and checked into the Best Western Motel. From there he called his father in Arkansas and asked him to call the police. His father told him this was something he should do himself, so Massey called the police department and, without explaining the situation, asked them to send a policeman to talk to him.
When an officer arrived, Massey invited him in and continued to drink beer and smoke one cigarette after another. The officer asked why Massey had called for him, but Massey only stared at the officer in silence until suddenly he said,
Officers found Karen lying with the blankets pulled up to her shoulders in the upstairs bedroom of the couple's house. A spent .32 caliber automatic shell casing was found on the pillow directly under her head. The bullet had entered just above her left ear and had exited just in front of her right ear. It appeared she had been shot while sleeping on her right side.
Massey spent Sunday night in jail. The next day, a deputy sheriff witnessed a seizure Massey had in his cell. His body became very rigid, his arms extended, and he convulsively struck his head and upper body against the wall. The convulsions lasted about five minutes. Massey would not respond to his name either during the seizure or immediately after. Massey had no further seizures because he was put back on Dilantin.
For his first issue on appeal, Massey contends the trial court erred in failing to instruct the jury on his unconsciousness induced by the seizure.
At trial, Massey testified he had not intended to kill Karen. He claimed he must have discharged the gun accidentally while he was in the throes of a seizure. A doctor testified Massey could have had a seizure from alcohol withdrawal. He testified that even though he had consumed as many as six beers that morning, the level of alcohol in his blood might still have been very low because he drank a case of beer on Friday and then drank nothing during the night. The doctor testified there is no warning of alcoholic grand mal seizures. During such a seizure, while falling to the floor, Massey would have clenched his fists as his muscles became rigid. The doctor explained people usually wake up from a seizure in a confused state which can last anywhere from a few minutes to a couple of days. Massey argues this explains his erratic behavior after the shooting.
At the conclusion of the trial, the court gave the jury the general instruction on intent stating to find Massey guilty of murder the jury must find he killed Karen intentionally. The court did not give a separate instruction explaining unconsciousness is a complete defense to a crime so that, if the jury found the shooting occurred involuntarily during a seizure, Massey would have had no criminal intent and therefore could not be guilty of murdering Karen. Defense counsel made no objection to the instructions and proposed no additional instructions. Massey objected only to the court giving an instruction on second-degree murder.
Massey now argues the court should have given an instruction similar to that given by the trial court in State v. Jackson, 238 Kan. 793, 714 P.2d 1368, cert. denied, 479 U.S. 821, 107 S.Ct. 88, 93 L.Ed.2d 40 (1986). After giving an instruction similar to that given in this case, that a person ordinarily intends the usual consequences of his voluntary acts, the trial court recognized epileptic seizures as rendering an act involuntary by adding the following instruction:
" 'If you find that Mr. Jackson was in the throes of an epileptic seizure at the precise time of the commission of the crimes and that the seizure rendered his actions unintentional and involuntary, you must find him not guilty of all charges and their lesser included offenses.' " 238 Kan. at 805, 714 P.2d 1368.
Pattern Instructions for Kansas does not contain a specific instruction for the defense of unconsciousness from a seizure. The State argues Massey is asking this court to create a new instruction, never previously used in this state, and contends a specific instruction on "diminished capacity" would improperly emphasize Massey's case. 238 Kan. at 807-08, 417 P.2d 1368 (Miller, J., concurring). Massey is not claiming diminished capacity; he is claiming lack of capacity by reason of a grand mal seizure.
The first question to be considered is whether the defense of unconsciousness by reason of a seizure is one a trial court must accept. It is a basic tenet of criminal law that the State punishes only voluntary acts. A person cannot be held responsible for an act he commits while he is unconscious. See...
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