State v. McClanahan, 68202

• Decision Date: 10 December 1993
• Docket Number: No. 68202,68202
• Citation: 865 P.2d 1021,254 Kan. 104
• Parties: STATE of Kansas, Appellee, v. Roy McCLANAHAN, Appellant.
• Court: Kansas Supreme Court

Page 1021

865 P.2d 1021

254 Kan. 104

STATE of Kansas, Appellee, v. Roy McCLANAHAN, Appellant.

No. 68202.

Supreme Court of Kansas.

Dec. 10, 1993.

Syllabus by the Court

1. The trial court has an affirmative duty to instruct the jury on all lesser included offenses for which there is evidence to support a conviction on the included offense. The evidence may be inconclusive, weak, or unsatisfactory, but must be substantial enough that a rational factfinder could reasonably find the defendant guilty of the lesser included offense. On review, this court views the evidence in the light most favorable to the defendant.

2. In order for the evidence to be sufficient to require jury instructions on lesser degrees of a homicide, the testimony supporting such instructions must be offered either by the State or by the defense for the purpose of proving what events occurred at the time the homicide was committed. Contradictory statements of a witness which are offered only for the purpose of destroying his credibility and not as positive evidence to prove the matters contained in the statements are not alone sufficient to require an instruction on the lesser degrees of homicide.

3. The Kansas rules for determining whether heat of passion and sufficient provocation existed to support a voluntary manslaughter conviction are set out.

4. Whether the provocation to support a voluntary manslaughter conviction is sufficient is an objective determination. The provocation must be more than mere words or gestures. If assault or battery is involved, the defendant must have a reasonable belief that he or she is in danger of suffering great bodily harm or at risk of death.

5. Res gestae evidence is that evidence which does not constitute a portion of the crimes charged but has a natural, necessary, or logical connection to the crime.

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

Kevin C. Fletcher, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

LOCKETT, Justice:

This is a direct appeal by defendant from his conviction of one count of premeditated first-degree murder, K.S.A.1990 Supp. 21-3401. Defendant claims the trial court erred in (1) failing to instruct the jury on the lesser included offenses of second-degree murder and voluntary manslaughter; and (2) admitting evidence that defendant had previously abused his wife.

Roy McClanahan was charged with one count of first-degree murder, K.S.A.1990 Supp. 21-3401, a class A felony, and one count of aggravated burglary, K.S.A. 21-3716 a class C felony, for the events culminating in the killing of Michael Martin.

Roy was married to Josephine McClanahan. They separated in early May 1991 due to Roy's physical abuse of Josephine. Josephine moved in with Ginger McClanahan, Roy's daughter-in-law. Josephine told Ginger that she could not take Roy's beating her any more. Josephine explained to Ginger that she did not want Roy to know where she was staying because he would come and hurt her. Josephine did tell Roy she was living on Main Street in Hutchinson but did not give him the address.

After the separation, Josephine began dating Michael Martin, a next-door neighbor and friend of Roy's. Martin stayed the night on May 25, 1991, with Josephine. Ginger, her roommate Vanessa Collins, and Jimmy Robert had been sitting outside on the back porch that evening until about 4:30 a.m. Collins saw a blue four-door car with only one occupant drive up and down the alley three to four times. She could not identify the driver. Collins took Robert home around 5:00 a.m., then returned to the residence, turned out the kitchen light, and went to bed.

About the same time, Ginger's baby, who was sleeping in the room with Josephine and Martin, woke Josephine up, and she then heard glass breaking. Josephine, who was nude, put on a housecoat as she was leaving the bedroom to check what had caused the noise. She then saw Roy with a shotgun coming into the front room of the residence. Roy told Josephine to get out of the way, pushed her aside, and entered the bedroom. Josephine called to Ginger for help. Roy was in the bedroom for about two minutes. Josephine heard Martin say, "Oh shit"; then the gun fired. Roy came out of the bedroom, hit Josephine in the face, and left the house.

Josephine looked in the bedroom and saw that Martin had been shot. Martin was in a different position than when Josephine had left the bedroom prior to the shooting. The covers had been pulled off him. The county coroner testified the shotgun blast entered Martin's right side and destroyed his heart, both lungs, and the dome of his liver. The coroner opined Martin had raised his right arm up in an anticipatory or defensive move immediately prior to the shooting. The coroner could not say what position Martin was in when he was shot. There was a large hole in the blanket that was found in the bed with Martin.

Josephine and Ginger went outside and met a police officer responding to the report of the shooting. Ginger had been awakened by people arguing downstairs. The arguing went on for one to two minutes. She did not know who was arguing or what was said. She heard a loud sound like a door being slammed. When Ginger got downstairs she saw Josephine. Josephine told her that Roy had been there. Ginger did not see Roy in the apartment.

Officer Sharp was the first officer on the scene. Josephine told him that Roy had been in the house and had beaten her. Sharp noticed Josephine's face was red and swollen. A second woman told Sharp that a body was inside the residence. Minutes after arriving at the scene, Sharp received a police radio transmission that Roy had surrendered at the police station and had admitted the shooting.

After leaving the residence, Roy apparently went directly to the police station. At the station, Roy told the desk clerk he had just killed a man. When Sergeant Angell, the detail commander, approached Roy, Roy assumed a "search position" by placing his hands on a railing. Roy told Angell he had found Martin in bed with Roy's wife and had killed him. Roy was nervous and acted out of breath. Angell did not smell any odor of alcohol on Roy's breath.

Angell searched Roy and found a spent shotgun shell in one pocket and an unused shell in another pocket. Roy told Angell that the shotgun was outside in his car. A search warrant was obtained, and a 12-gauge shotgun was found in a four-door blue Buick registered to Roy and Josephine McClanahan. A search of Roy's residence turned up a box of 12-gauge shotgun shells with four shells missing.

One to two months prior to the shooting, Roy had borrowed the shotgun from Jim Lowe, Josephine's brother, allegedly to scare off prowlers who had been hanging around Roy's residence. Lowe testified that Roy asked him how to load rock salt into the shotgun shells and then asked to borrow some shells. Lowe told Roy to get his own shells. Lowe only showed Roy how to load one shell at a time into the shotgun.

Jim Lowe and his wife Teresa both testified that on separate occasions, prior to the shooting, after Jim had loaned the shotgun to Roy, Roy had stated he would kill Josephine and her lover if he caught her messing around or stepping out on him. Roy told Teresa he would plead insanity to get away with it. Jim did not do anything because he did not think Roy was capable of carrying out the threat.

Roy McClanahan testified on his own behalf. Roy believed that Josephine was seeing someone else. He broke into the residence where Josephine was staying to find out what was going on. Roy claimed that during the week prior to the shooting, he had been threatened by two men he recognized but whose names he did not know. The men informed Roy if he bothered Mike and Josephine they would "kick his ass."

Roy testified that he had not intended to shoot anyone when he entered the residence. He took the shotgun to prevent anyone from bullying him. Roy said when he saw Josephine coming out of a bedroom, without any clothes on, putting on a robe, he was stunned, got angry, and "flipped." Roy stated he noticed a bruise on Josephine's cheek and asked her where it came from. She told him she "stepped through the bedroom door." Roy pushed Josephine aside and entered the dark bedroom. Someone grabbed the barrel of the shotgun and pulled Roy forward. Roy jerked back, and the gun went off. Roy testified he did not pull the bedding off of Martin. Roy stated he had not fought with Martin. Roy denied that he had cruised the alley before entering the residence, that he had struck Josephine after the shooting, or that he had an extra shell in his pocket when arrested at the police station.

On cross-examination, Roy stated he did not know if Martin was under the blanket when the gun fired. Roy claimed he learned that it was Martin who was in the bedroom as he was leaving the residence when Josephine said that he had shot Martin. Roy admitted Angell had found the second shell when Angell searched Roy at the police station. Roy denied that Martin said anything before the shot was fired. Roy also denied that he had asked Jim Lowe how to load rock salt in a shotgun shell, that Lowe had refused to give him any shells, or that Lowe had only shown him how to load one shell at a time. Finally, Roy denied telling the Lowes that he would kill Josephine and her boyfriend if he caught her "messing around."

Towards the end of cross-examination the prosecutor asked, "Isn't it true that when you flipped that you just got that much more angry and you went in that bedroom and finished the job and killed Michael Martin?" Roy replied, "The way I understand now, yes. The way I understand now, yes. At the time, no." The prosecutor then asked Roy if he disagreed that he beat Josephine up after he shot Martin and he said no. In response to the...