State v. Meyers
| Decision Date | 27 October 1989 |
| Docket Number | No. 62457,62457 |
| Citation | 245 Kan. 471,781 P.2d 700 |
| Parties | STATE of Kansas, Appellee, v. Jeffery L. MEYERS, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The doctrine of self-defense cannot be invoked to excuse a killing done in mutual combat willingly entered into. The individual who willingly provoked the mutual combat is not justified or excused in taking life unless he has withdrawn in good faith, has communicated that withdrawal to his opponent, and has done all in his power to avert the necessity of killing.
2. Under the factual circumstances set forth in the opinion, the trial court did not err by refusing to instruct the jury on involuntary manslaughter as a lesser included offense of second-degree murder.
Kevin P. Moriarty, Overland Park, argued the cause and was on the brief, for appellant.
Ricklin R. Pierce, County Atty., argued the cause, and Susan E. Jones, Richard Hodson, and Larry C. Hoffman, Asst. County Attys., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.
Jeffery L. Meyers appeals his convictions for second-degree murder (K.S.A. 21-3402) and aggravated battery (K.S.A. 21-3414), claiming: (1) he should not have been prosecuted as an adult; (2) the trial court erroneously failed to instruct the jury on involuntary manslaughter (K.S.A. 21-3404) as a lesser included offense; (3) there is insufficient evidence to support the murder conviction; and (4) his controlling sentence, 12-50 years, is excessive. We disagree and affirm the trial court.
On January 22, 1987, Jeff Meyers shot and wounded Fernando Esquivel and shot and fatally wounded Martin Esquivel. Earlier that evening, Meyers and two friends, Chuck Smith and Mike Hamill, had driven from their hometown of Deerfield to Garden City looking for a fight. After they arrived in Garden City, the trio noticed a red Camaro containing three young women, Lucy and Manuela Esquivel, sisters of the shooting victims, and Lisa Klotz, Martin's girlfriend.
The trio followed the red Camaro to the Esquivel residence and unsuccessfully attempted to engage the women in conversation. When Fernando and his brother, Enrique, emerged from the house, the trio left. As they departed, one of the trio threw some firecrackers. They drove around the block, returned to the residence, threw some more firecrackers, and departed. Responding to the second set of firecrackers, Enrique armed himself with a large club with a spike in it, searched for the trio, and located them. After a brief verbal confrontation, the trio drove back to Deerfield. Mike Hamill, a member of the trio, testified that, while en route back to Garden City, Meyers told him that "if the [Esquivels] fucked with him with them clubs that he'd shoot them."
Meyers testified that the reason for returning to Deerfield was to pick up a rifle, which he had previously stolen. Meyers' intention was "for Chuck to show [the Esquivels] the gun, to have them put down their [clubs], and [for] me and Mike [to] fight a fair fight." After eating dinner at home, Meyers armed himself with the rifle and rejoined Chuck and Mike. The trio drove directly to the Esquivel residence in Garden City, where Chuck threw more firecrackers. Responding to the third provocation, Martin, Fernando, and Enrique engaged the trio in a high-speed car chase which ended when Meyers stopped his car on a secluded road. The Esquivels stopped their car directly behind Meyers' car.
There are two versions of what then transpired. The surviving Esquivels testified that Meyers got out of his car with the rifle, aimed, and shot Fernando and then Martin. Meyers testified that he got out of his car, saw two men coming at him at a fast rate with clubs, took the rifle from the car, and fired two warning shots into the air. Meyers further testified that, after firing the warning shots, he backed away, but the two men kept advancing towards him. He closed his eyes and fired three shots. One bullet hit Fernando in the arm; the other two hit Martin in the chest and head. After the shooting, the trio fled the scene, hid the rifle in an oil storage tank, and then returned to Deerfield.
On the night of the killing, Meyers was 17 years, 11 months old. The Kansas Juvenile Offenders Code allows the district court to authorize the prosecution, as an adult, of any juvenile who was 16 or more years of age at the time of the alleged commission of the offense if there is substantial evidence that the juvenile should be prosecuted as an adult for the offense charged. K.S.A. 38-1636(f).
When determining whether prosecution as an adult should be authorized, the court should consider whether the offense was serious; whether it was committed in an aggressive, violent, premeditated or willful manner; and whether it was committed against a person or against property, giving greater weight to offenses against persons, especially if injury resulted. It should also consider the need to protect the community, any history of antisocial behavior or patterns of physical violence, and the number of prior adjudications or alleged adjudications the juvenile has pending as a delinquent or miscreant, weighted by whether the offenses were against persons or property. In addition, the court should consider the respondent's home environment, emotional attitude, and pattern of living or desire to be treated as an adult, and whether facilities or programs are available and are likely to rehabilitate the juvenile prior to the expiration of the court's jurisdiction. The insufficiency of evidence pertaining to any one or more of the factors shall not, in and of itself, be determinative of the issue. Subject to the provisions of K.S.A. 38-1653, written reports and other materials relating to the juvenile's mental, physical, educational, and social history may be considered by the court. K.S.A. 38-1636(e).
Meyers contends that, even though the alleged offense was a violent act committed with a dangerous weapon which caused the death of one individual and seriously injured another, when considering all the statutory factors, there was not substantial evidence to authorize his prosecution as an adult. Meyers cites a number of cases which state that amenability should be given controlling weight by the judge when first determining if the accused should remain under the juvenile code.
This contention is incorrect. The cases cited by defendant were decided prior to the 1975 legislature's amendment of the predecessor statute to K.S.A. 38-1636, which made a substantial change in the standards for certification of a juvenile for prosecution as an adult. After the 1975 amendment, amenability became just one of the eight statutory factors. The 1975 legislative change placed a greater emphasis on the gravity of the offense and the protection of the community. In re Johnson, 5 Kan.App.2d 420, 425, 617 P.2d 1273, rev. denied 229 Kan. 670 (1980).
Here, the district court considered all eight factors. There is substantial evidence to support the district court's decision that Meyers should have been prosecuted as an adult.
Although the trial court instructed the jury on self-defense, it refused to instruct the jury on involuntary manslaughter as a lesser included offense of second-degree murder.
Where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced. K.S.A. 21-3107(3). However, this duty arises only when there is evidence under which the defendant may reasonably be convicted of the lesser offense. State v. Bishop, 240 Kan. 647, Syl. p 7, 732 P.2d 765 (1987).
Involuntary manslaughter is the "unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner." K.S.A. 21-3404. Meyers claims that he committed the lawful act of self-defense in an unlawful manner. A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force. K.S.A. 21-3211. The use of excessive force may be found to be an "unlawful manner" of committing the "lawful act" of self-defense, and thereby supply an element of involuntary manslaughter. State v. Gregory, 218 Kan. 180, Syl. p 5, 542 P.2d 1051 (1975).
An instruction on involuntary manslaughter may be appropriate where the defendant used a weapon to kill another and claims that he killed that individual in self-defense. Where the threat to an individual's life by another causes such extreme fear or severe mental stress that the individual acts impulsively without an opportunity to reflect, there is no intent to kill and an instruction on involuntary manslaughter is required. State v. Seelke, 221 Kan. 672, 680, 561 P.2d 869 (1977). Meyers testified that, although he intended to shoot the Esquivels, he did not intend to kill Martin. Whether the shooting is intentional is immaterial; what controls under the involuntary manslaughter statute is whether the killing is intentional. State v. Gregory, 218 Kan. at 184, 542 P.2d 1051.
Meyers argues that the jury could have found that he was entitled to defend himself or it could have found that he used excessive, unreasonable force when defending himself. Following the rationale of Gregory and Seelke, he argues that the trial court was required to instruct the jury on involuntary manslaughter. After reviewing the facts of Gregory and Seelke, we disagree.
In Gregory, the defendant was charged with second-degree murder and convicted of involuntary manslaughter. The...
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