State v. Mitchell

• Decision Date: 11 July 1997
• Docket Number: No. 75781,75781
• Citation: State v. Mitchell, 942 P.2d 1, 262 Kan. 687 (Kan. 1997)
• Parties: STATE of Kansas, Appellee, v. Michael J. MITCHELL, Appellant.
• Court: Kansas Supreme Court

Page 1

942 P.2d 1

262 Kan. 687

STATE of Kansas, Appellee, v.Michael J. MITCHELL, Appellant.

No. 75781.

Supreme Court of Kansas.

July 11, 1997.

Syllabus by the Court

1.In determining whether sale of cocaine is a forcible felony so as to prohibit the defense of self-defense in a felony-murder charge, consideration of the circumstances of the commission of the crime, in addition to the elements of the crime in the abstract, is appropriate because the legislature has determined a cocaine sale to be an inherently dangerous felony in K.S.A. 21-3436(a)(14).

2.The "abstract approach" to determine whether a collateral felony is inherently dangerous so as to support a felony-murder charge is not controlling in the determination of whether the felony is a forcible felony for self-defense purposes, because the legislature has, in K.S.A. 21-3436, statutorily defined inherently dangerous felonies.

3.The record of defendant's convictions for first-degree felony murder and felony possession of cocaine is reviewed and it is held that: (1)the district court did not err in failing to give the self-defense instruction as to the felony-murder charge; and (2)the district court's failure to give PIK Crim.3d 68.07(instructing the jury that it must decide each charge separately) was not clearly erroneous.

Thomas W. Bartee, Special Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

Alan J. Stecklein, Assistant District Attorney, argued the cause, and Nick A. Tomasic, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellee.

SIX, Justice:

The primary issue in this felony-murder case arises from defendantMichael J. Mitchell's claim that the district court erred in failing to instruct the jury on self-defense.Mitchell also claims error for the failure to give PIK Crim.3d 68.07(jury must decide each of two charges separately).Neither instruction was requested at trial.

Mitchell, a cocaine seller with a handgun, was convicted under K.S.A. 21-3401 for the felony murder of Donald Beebe, a cocaine buyer with a handgun.Beebe's death resulted from a sale "gone wrong."Mitchell was also convicted of felony possession of cocaine (2 weeks after the homicide), under K.S.A.1996 Supp. 65-4160.Our jurisdiction is under K.S.A. 22-3601(b)(1)(a sentence of life imprisonment).

We affirm, finding no error on the self-defense instruction issue and no reversible error on the failure to give PIK Crim.3d 68.07.

FACTS

Barbara Williams and Nathaniel Pete Hill had been "doing" crack obtained from Mitchell.Early in the morning of December 15, 1994, they met a truck driver (Beebe) who said he was looking for an "eight-ball" of crack (approximately 1/8 ounce of rock cocaine) and asked if they knew where to get any.Hill thought Beebe was acting strange, like "in a rush to get high."Beebe told them that he would give them some crack if they would help him get it.Williams and Hill each contacted Mitchell.

Mitchell arrived with Hill and parked in front of the truck.Hill got in the cab with Beebe and Williams.Mitchell stood on the passenger side of the cab with the door open.Beebe told Mitchell to shut the door.Mitchell climbed into the passenger seat.Mitchell showed a baggie containing cocaine and gave a "20" to Beebe, who smoked it in a glass pipe.Mitchell wanted his money.Beebe said he wanted to talk to Mitchell alone to do some business and asked Williams and Hill to leave, which they did.Beebe and Mitchell moved back to the cab's sleeper area and pulled the curtain.Williams and Hill sat on the curb in front of Mitchell's car.Williams heard the first loud shot and looked up to see the curtain in the truck blowing up, as if over an open window.She heard three or four loud shots, with a second or two pause between the first and second shots and the later shots being closer together.She saw Mitchell get out of the truck looking angry, walk to his car, and drive off slowly and calmly.Neither she nor Hill returned to the truck.They went to Mitchell's house, because Hill wanted to see if Mitchell was hurt.Mitchell's right leg was bleeding.Williams saw a .357 revolver that Mitchell threw on the bed.She did not see any other weapons.Mitchell said he did not know Beebe had a gun and that Beebe shot him with a .25 caliber pistol.He said he needed to go to the hospital and left.

At trial, Hill described hearing the gunshots.First, he heard a "small sound" and then three big sounds "all together."Hill also saw the .357 revolver on the bed at Mitchell's house afterwards.Mitchell showed Hill a .25 caliber pistol.Hill had previously seen Mitchell with the .357 revolver, a Smith and Wesson, but had never seen him with a .25 caliber pistol before.

A surgeon testified that on December 15, 1994, Mitchell was treated in the emergency room for a gunshot wound in the right thigh.Mitchell told the surgeon that he had been robbed and shot at a street corner.

The homicide investigation began on the evening after the shooting, when the police opened the passenger door of the truck and found Beebe's body in the sleeper area of the cab.The autopsy revealed three gunshot wounds: one in the left side of the back, and two in the back of the head.Soot deposits on Beebe's jacket at the gunshot wound locations revealed that the two gunshots to the back of the head were at close range.Powder deposits showed that the wound to the back was also from a gunshot at close range.

Police searched the truck and found a partial box of .25 caliber bullets (five were missing) in the overhead compartment.The sleeper area showed evidence of a struggle.Beebe's widow testified that Beebe told her he had purchased a .25 caliber pistol in November 1994 and carried it to protect himself.

The investigation shifted to Mitchell's house.A residential narcotics search warrant was executed on December 30, 1994.Mitchell answered the door, attempted to escape, and was apprehended in the basement.He had crack cocaine in a plastic bag and $490 in cash in his pockets.

Police questioned Mitchell about the Beebe homicide.Mitchell initially denied involvement, but then admitted struggling with Beebe inside the cab and being wounded.Mitchell said that Hill and Williams had come to his house and told him a truck driver wanted to buy $150 worth of crack cocaine.Mitchell went to the truck driver to talk about the cocaine.Mitchell claimed the truck driver shot him with a .25 caliber pistol before Hill fired a .357 revolver.The police interviewed Hill and Williams separately.They described Mitchell's involvement in the shooting.Hill denied firing any weapon.

Mitchell later appeared at police headquarters with his attorney to give another statement.Mitchell said that Hill came to his house and told him a truck driver (Beebe) had marijuana for sale.Mitchell was interested, had $500 for the purchase, and went to see Beebe.Beebe pulled a .357 revolver and tried to rob Mitchell.Mitchell struggled with Beebe in the sleeper area.Williams and Hill stood outside.Mitchell claimed the revolver went off during the struggle.Mitchell would not admit taking the gun away from Beebe.The detective who took Mitchell's statement was skeptical of Mitchell's story and could not see how Beebe was shot in the back of the head while still struggling over the gun.

Mitchell did not testify at trial or present any witnesses.The two statements he gave to police were admitted into evidence.

Mitchell's motion for a new trial asserted for the first time that a self-defense instruction should have been given.The district judge, in denying the motion, responded: "[T]hat is not a defense, as I understand it, in a felony murder case, so that being the case, I think all of these grounds alleged by the defendant are without merit."

DISCUSSION

The Self-Defense Instruction

The primary issue is whether the district court erred in failing to instruct on self-defense.Mitchell acknowledges that because the instruction was not requested, the "clearly erroneous" standard of review applies.SeeK.S.A. 22-3414(3);State v. DePriest, 258 Kan. 596, Syl. p 4, 907 P.2d 868(1995).

K.S.A. 21-3214(1) provides that the defense of self-defense under K.S.A. 21-3211 is not available to a person who "[i]s attempting to commit, committing, or escaping from the commission of a forcible felony."(Emphasis added.)We recently applied this statute in State v. Shortey, 256 Kan. 166, 173-74, 884 P.2d 426(1994)(commission of a forcible felony precludes the giving of a self-defense instruction).After robbing a gas station, Shortey was apprehended in his car by police.A struggle followed between the two officers and Shortey.Before being subdued, Shortey pulled one of the officer's guns from the holster and pointed it at the officer.Although no self-defense instruction was requested at trial, on appeal, Shortey unsuccessfully argued that he should have been allowed to assert self-defense as to the aggravated assault on a law enforcement officer charge.

K.S.A. 21-3110(8) provides:

" 'Forcible felony' includes any treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which involves the use or threat of physical force or violence against any person."

First-degree felony murder means the killing of a human being committed "in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto."K.S.A. 21-3401(b). K.S.A. 21-3436(a)(14) defines as an inherently dangerous felony "any felony offense as provided in ... K.S.A.1995 Supp. 65-4160 through 65-4164 and amendments thereto."Mitchell's felony-murder charge alleged sale of cocaine as the inherently dangerous felony.Mitchell acknowledges that sale of cocaine is an inherently...