State v. Mitchell
| Decision Date | 31 January 1997 |
| Docket Number | No. 73483,73483 |
| Citation | 932 P.2d 1012,23 Kan.App.2d 413 |
| Parties | STATE of Kansas, Appellee, v. Nathaniel MITCHELL, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. When considering the refusal of the district court to give a specific instruction requested by a defendant, the evidence must be viewed by the appellate court in the light most favorable to the defendant. If there is substantial evidence upon which the defendant might reasonably have been convicted of a lesser offense, an instruction on the lesser included offense is required. Evidence supporting the instruction of a lesser included offense may be presented either by the defendant or by the State. Even the unsupported testimony of the defendant alone, if tending to establish such lesser offense, is sufficient to require the district court to so instruct.
2. The failure to give a lesser included offense instruction on involuntary manslaughter when the evidence supports the request is reversible error.
3. Involuntary manslaughter is the unintentional killing of a human being committed during the commission of a lawful act in an unlawful manner. K.S.A. 21-3404(c).
4. Under the facts in this case, a jury could have found that the defendant was not the initial aggressor and that he was justified in pointing a gun in self-defense but that the discharge of the weapon was the result of unlawful or wanton conduct. This supports the giving of an involuntary manslaughter instruction.
5. The constitutionality of a statute is a question of law, and appellate review is unlimited.
6. Depraved heart murder, a form of second-degree murder under K.S.A. 21-3402(b), is defined as the killing of a human being committed unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life. The phrase "extreme indifference to the value of human life" is easily understood, and the statute is not unconstitutionally void for vagueness.
7. Involuntary manslaughter is the unintentional killing of a human being committed recklessly. K.S.A. 21-3404.
8. Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. K.S.A. 21-3201(c).
9. The test for determining whether a statute is void for vagueness is whether the statute's language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. Another appropriate inquiry is whether the statute adequately guards against arbitrary and discriminatory enforcement.
10. A statute is presumed constitutional, and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the appellate court must do so if this can be done within the apparent intent of the legislature in passing the statute.
11. The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained.
12. The constitutionally valid distinction between depraved heart murder and involuntary manslaughter occurs in the degree of recklessness, not in the direction of the violence.
13. Rulings on the admissibility of evidence fall within the sound discretion of the district court. A party attacking the ruling must show abuse of discretion. The district court abuses its discretion only when no reasonable person would take the view adopted by the trial court.
Michael J. Helvey, Assistant Appellate Defender, and Steven R. Zinn, Deputy Appellate Defender, for appellant.
Jerome A. Gorman, Assistant District Attorney, Nick A. Tomasic, District Attorney, and Carla J. Stovall, Attorney General, for appellee.
Before GERNON, P.J., ELLIOTT, J., and THEODORE B. ICE, District Judge, Assigned.
The defendant, Nathaniel Mitchell, appeals his conviction of unintentional second-degree murder, contrary to K.S.A. 21-3402(b), after a jury trial on September 2, 1994.
Briefly stated, defendant, Linda Dodson, and the victim, Josey Hunter, were traveling to a destination near the University of Kansas Medical Center. Defendant was in the passenger seat, Hunter was in the back seat, and Dodson was driving. An argument arose over defendant's purchase of stolen baby clothes from Hunter, who wanted payment from defendant immediately. Defendant refused to give Hunter the money.
Defendant testified that during the trip, Hunter snatched money out of his hands, and he reached over the back seat, grabbed the money back, and pushed Hunter back. Thereupon, Hunter began to kick defendant and grabbed the steering wheel, causing the car to crash into a pole. Defendant testified that his head hit the windshield. He then got out of the car, feeling dazed and dizzy, while Hunter continued to kick at him. Defendant further testified that he began to move away from the car but returned to help Dodson,and, as he reached into the car, he saw Hunter getting up from the back seat pointing a gun at him. Defendant testified he was afraid for his life and thought he was going to be shot, whereupon he pulled out his own gun, closed his eyes, and began shooting.
Hunter died the next day from the gunshot wound. Defendant's gun was the only one found at the scene. It had three casings in it. However, four witnesses testified they heard at least four shots. Defendant further testified that Hunter did not have a gun when she got into the car but that Dodson carried a gun in her purse. Defendant further testified that Dodson had told him the gun had been in her purse and that it was the gun that Hunter had used. He also testified that Dodson removed the gun from the scene because having it would have been a parole violation, and she feared losing her children.
Defendant testified he shut his eyes while shooting and did not know whether he shot Hunter. He left the scene to protect himself from both Hunter and the police and was later apprehended near the scene. Other witnesses testified they saw defendant get out of the wrecked car, move away, and then turn around to retrace his steps and fire into the car.
At the instruction conference, the district court determined that instructions on first-degree murder and the lesser included offenses of intentional second-degree murder, unintentional second-degree murder, and voluntary manslaughter should be given. The district court denied defense counsel's request for an instruction on involuntary manslaughter.
At the motion for a new trial, defense counsel renewed his objections to the instructions and claimed the definition of unintentional second-degree murder was unconstitutionally vague. This motion was denied by the district court.
When considering the refusal of the district court to give a specific instruction requested by a defendant, the evidence must be viewed by the appellate court in the light most favorable to the defendant. State v. Scott, 250 Kan. 350, Syl. p 4, 827 P.2d 733 (1992).
If there is substantial evidence upon which the defendant might reasonably have been convicted of a lesser offense, an instruction on the lesser included offense is required. State v. Shannon, 258 Kan. 425, 427, 905 P.2d 649 (1995). Evidence supporting the instruction of a lesser included offense may be presented either by the defendant or by the State. State v. Coleman, 253 Kan. 335, 354, 856 P.2d 121 (1993). Even the unsupported testimony of the defendant alone, if tending to establish such lesser offense, is sufficient to require the district court to so instruct. State v. Harmon, 254 Kan. 87, Syl. p 1, 865 P.2d 1011 (1993). The failure to give a lesser included offense instruction on involuntary manslaughter when the evidence supports the request is reversible error. See State v. Warren, 5 Kan.App.2d 754, 758, 624 P.2d 476, rev. denied 229 Kan. 671 (1981).
Involuntary manslaughter is the unintentional killing of a human being committed during the commission of a lawful act in an unlawful manner. K.S.A. 21-3404(c).
As in this case, in State v. Clark, 218 Kan. 18, 23, 542 P.2d 291 (1975), the defendant testified that he was confronted by the victim pointing a gun at him. The defendant's reaction in both cases was to shoot back. In Clark, the Supreme Court considered whether an involuntary manslaughter instruction should have been given and answered in the affirmative, finding that a jury could find the defendant justified in pointing a gun in self-defense but that the discharge of the weapon was the result of unlawful or wanton conduct. A similar finding was made in State v. Griblin, 12 Kan.App.2d 677, 678-79, 753 P.2d 843 (1988). Under the facts in the instant case, there was also evidence of an unexplained fourth gunshot.
A jury could have found that Hunter, not defendant, was the initial aggressor. The evidence presented in the instant case supports the giving of an instruction on involuntary manslaughter. The trial court's failure to give this instruction constitutes reversible error.
Defendant argues that the phrase "extreme indifference to the value of human life" in K.S.A. 21-3402(b) is unconstitutionally vague. He further contends that due to that vagueness, the statute is nearly indistinguishable from language defining involuntary manslaughter.
The constitutionality of a statute is a question of law, and appellate review is unlimited. See State v....
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...where witnesses testified defendant shot gun randomly over crowd of people with eyes closed). See also State v. Mitchell , 23 Kan.App.2d 413, 416–17, 422, 932 P.2d 1012 (1997) (Defendant claimed victim had pulled a gun on him and he was afraid for his life, so he pulled out his own gun, clo......
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