State v. McCown
| Decision Date | 17 April 1998 |
| Docket Number | No. 79214,79214 |
| Citation | 264 Kan. 655,957 P.2d 401 |
| Parties | STATE of Kansas, Appellee, v. Ronald McCOWN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The 1993 amendment to the second-degree murder statute, K.S.A. 21-3402(a) (Ensley 1988), eliminated malice as an element of second-degree murder. Thus, malice is not an element of second-degree intentional murder. See K.S.A.1997 Supp. 21-3402(a).
2. Due process requires that the prosecution prove beyond a reasonable doubt all of the elements included in the definition of the offense with which the defendant has been charged. However, proof of the nonexistence of all defenses has never been constitutionally required.
3. In a prosecution for intentional second-degree murder, the State must prove that the defendant intentionally killed the victim. The State need not prove that such a killing was not done upon a sudden quarrel; in the heat of passion; upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person, dwelling, or property; or that such a killing was not done in self-defense or in defense of a person, dwelling, or property. However, where evidence is admitted supporting any of those mitigating circumstances, the court must instruct the jury on all such lesser included offenses or such defenses supported by the evidence.
Melissa A. Kelly, of Heathman & Kelly, Topeka, argued the cause, and James C. Heathman, of the same firm, was with her on the briefs, for appellant.
Ann L. Smith, County Attorney, argued the cause, and Carla J. Stovall, Attorney General, was with her on the brief, for appellee.
Ronald McCown appeals from his second-degree intentional murder conviction. He contends that even though the 1993 legislative amendment to second-degree murder, K.S.A. 21-3402(a) (Ensley 1988), deleted the term "malicious" from the definition of that crime, malice still remains an element of second-degree intentional murder. Thus, he claims that the trial court erred by not instructing on the element of malice and that his second-degree intentional murder conviction must be set aside. We affirm.
A full recitation of the facts in this case is not necessary because the question raised is one of law. Highly summarized, the facts are that the defendant was charged with first-degree murder in connection with the October 5, 1996, homicide of James Douglas, the stepfather of the defendant's roommate, Chad Gaskey. The body of Douglas was found on the living room floor of his home. An autopsy revealed that Douglas had suffered 97 separate wounds, including bruises, abrasions, lacerations, and stab wounds. Death was caused either by a stab wound which severed the jugular vein or a blunt force trauma to the body. A majority of the bruising occurred while the victim was still alive.
The defendant gave two statements to police officers. He first stated that he and Douglas got into a fight, that both he and Gaskey beat Douglas using fists and feet, and that Gaskey stabbed Douglas with a knife. He also stated that he stomped Douglas and watched Gaskey stick Douglas in the throat with a knife.
The district court instructed the jury on first-degree murder and on the lesser included offenses of intentional murder in the second degree, unintentional second-degree murder, voluntary manslaughter, involuntary manslaughter, aggravated battery, and battery. The defendant objected to the instruction regarding intentional second-degree murder on the ground that it did not include the element of malice. His objection was overruled. He raises this same issue on appeal.
In addition to his contention that the trial court wrongly failed to instruct on malice, the defendant argues that the specific instruction involving second-degree intentional murder was defective because it did not separate the phrases "upon sudden quarrel," "in the heat of passion," and "upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person," thereby confusing the jury. However, this argument was not briefed by the defendant and was raised for the first time during oral argument. We, therefore, do not consider this contention of the defendant. See State v. Patterson, 262 Kan. 481, 483, 939 [264 Kan. 657] P.2d 909 (1997). Moreover, our decision in this case renders the defendant's argument moot.
Prior to 1993, second-degree murder was defined as "the malicious killing of a human being, committed without deliberation or premeditation and not in the perpetration or attempt to perpetrate a felony." K.S.A. 21-3402 (Ensley 1988). Effective July 1, 1993, the legislature modified murder in the second degree to include both intentional and reckless killing. The current version of the statute, K.S.A.1997 Supp. 21-3402, is the version in effect at the time of the crime and incorporates the 1993 amendment. It defines murder in the second degree as "the killing of a human being committed: (a) [i]ntentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life."
Notably absent from the current definition of second-degree intentional murder is the term "malicious." In addressing the defendant's argument, we must answer the question whether the legislature intended to eliminate the element of malice from second-degree intentional murder when it deleted the term "malicious" from its definition. This is a question of law involving the interpretation of K.S.A.1997 Supp. 21-3402(a). Our review is unlimited. See State v. Robinson, 261 Kan. 865, Syl. p 1, 934 P.2d 38 (1997).
The legislature in its 1993 amendment specifically deleted the word "malicious" in defining the crime of second-degree intentional murder. The argument that malice remains an element of this crime is thus contrary to the 1993 statutory definition of second-degree intentional murder. K.S.A.1993 Supp. 21-3402(a). While the language used in the 1993 amendment seems to resolve the question raised, the defendant makes several interesting arguments that must be addressed.
First, the defendant observes that malice under Kansas law is defined as the willful doing of a wrongful act without just cause or excuse and relates to a defendant's state of mind. He notes that in Kansas statutes, as well as at common law, second-degree murder has been defined as a malicious killing. He argues that consistently over the years, "[t]he distinction between second degree murder and voluntary manslaughter is the presence or absence of malice." State v. Wilson, 215 Kan. 437, Syl. p 2, 524 P.2d 224 (1974). See State v. Jensen, 197 Kan. 427, 417 P.2d 273 (1966), and cases cited therein for an extensive discussion of the element of malice in distinguishing murder and manslaughter. He argues that malice is so well defined in common law and in Kansas statutory interpretation that legislative silence as to this mental element of malice should not be construed as eliminating malice from the statutory definition of second-degree intentional murder.
In making the above argument, the defendant relies upon the case of Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Morissette was charged under 18 U.S.C. § 641 with theft from a government reservation. The statute involved was silent concerning the mental element required for a conviction of larceny. The court, in reversing Morissette's conviction, held that Congressional silence as to mental elements in a statute merely adopting into federal statutory law a concept of crime already well defined in common law will not be construed as eliminating that element from the crimes denounced. 342 U.S. at 262-63, 72 S.Ct. at 249-50.
Unlike Morissette, the legislature in this state did not eliminate the mental element of second-degree intentional murder. Our statute is not silent. By expressed action, the legislature deleted the word malicious from the definition of second-degree intentional murder. We agree with the defendant's general observations concerning malice, but such observations do not support a conclusion that the legislature, by excluding the word malicious from the definition in second-degree murder, intended that malice nevertheless remain as element of that offense.
The defendant next points to the only significant legislative history involving the adoption of K.S.A.1993 Supp. 21-3402, found in the comments of the Kansas Judicial Council on S.B. 358, which contained the amendment. The defendant's contention is best explained by setting forth in full what changes were proposed to the legislature, with comments by the Judicial Council in regard to both first-degree murder and second-degree intentional murder:
To continue reading
Request your trial
-
In re M-W
...498 (Cal. Ct. App. 1990); Comber v. United States, 584 A.2d 26 (D.C. 1990); State v. Smith, 242 N.W.2d 320 (Iowa 1976); State v. McCown, 957 P.2d 401 (Kan. 1998); Gladden v. State, 330 A.2d 176 (Md. 1974); Commonwealth v. Sowell, 494 N.E.2d 1359 (Mass. App. Ct. 1986); State v. Thomas, 769 N......
-
State v. Abu-Fakher
...that it required these mitigating circumstances to be proven beyond a reasonable doubt. In support, Abu-Fakher cites State v. McCown, 264 Kan. 655, 665, 957 P.2d 401 (1998); State v. Cribbs, 29 Kan. App.2d 919, 34 P.3d 76 (2001); and State v. Harris, 27 Kan. App.2d 41, 45-46, 998 P.2d 524 T......
-
United States v. Love
...murder was recodified at K.S.A. § 21-5403 in 2011, so the Court will employ case law analyzing both statutes. 90. State v. McCown, 957 P.2d 401, 407 (Kan. 1998). 91. 269 P.3d 1282, 1289(Kan. 2012). 92. Id. at 1290. 93. Id. 94. 927 P.2d 503, 507 (Kan. Ct. App. 1996) (citing State v. Shannon,......
-
State v. Lawrence
...that, in Kansas, the element of malice was eliminated from both first-degree and second-degree murder in 1993. See State v. McCown, 264 Kan. 655, 656-61, 957 P.2d 401 (1998). We find no error in the instructions given to the jury in this HARD 50 SENTENCE Next, the defendant argues that the ......