State v. Mitchell, 82,174.
| Citation | 7 P.3d 1135,269 Kan. 349 |
| Decision Date | 02 June 2000 |
| Docket Number | No. 82,174.,82,174. |
| Parties | STATE OF KANSAS, Appellee, v. VICTOR R. MITCHELL, JR., Appellant. |
| Court | United States State Supreme Court of Kansas |
Debra J. Wilson, assistant appellate defender, argued the cause, and Joseph P. Leon, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were on the brief for appellant.
Debra S. Peterson, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
This is a direct appeal by the defendant, Victor R. Mitchell, Jr., from his convictions for two counts of intentional second-degree murder for the deaths of brothers Jeff and Randy Hobaugh.
Mitchell claims the trial court erred in failing to give a voluntary manslaughter instruction and in giving an instruction that the jury "should not" consider Mitchell's refusal to testify rather than "must not"; he also claims prosecutorial misconduct in closing argument.
During the week of April 15, 1998, the Hobaughs made plans to burglarize Mitchell's residence, knowing that he kept a significant amount of marijuana, drug paraphernalia, cash, and firearms at his house.
On April 15, Douglas Dow drove the Hobaughs to the Planeview area of Wichita, Kansas, where Mitchell lived. After two aborted attempts, the Hobaughs burglarized Mitchell's residence at approximately 6:30 p.m. while Mitchell was away having dinner. When Mitchell returned, he knew his house had been "hit." Mitchell discovered that binoculars, a leather jacket, chaps, two guns including a .357 magnum, a satin jacket with the name "Vic" on it, triple beam scales used for weighing drugs, and a pound or a pound and a half of marijuana had been stolen. Mitchell did not call the police.
Dow drove the Hobaughs back to Mitchell's residence at approximately 11:30 that same night as they wanted to return and get some rifles they left behind on Mitchell's bed. Gary Hall testified that the Hobaughs told him that they were probably going to kill Mitchell if he was there when they arrived. Dow did not enter Mitchell's residence but waited in the car. Dow fell asleep, awoke, and eventually drove away without the Hobaughs.
A neighbor called police about midnight when he heard several gunshots in the area. Wichita Police Officer Renay Bryand responded to the "check-shots" call. After searching the area, Officer Bryand discovered the Hobaugh bodies in a drainage ditch near Mitchell's residence. Randy had been shot in the right temple; the left arm, with the bullet exiting the arm and eventually lodging in the nasal cavity; the right forearm; and the left buttock. He also had other graze wounds. Jeff had gunshot wounds to the back of his neck, fracturing cervical vertebras two and three and lacerating the spinal cord; the left shoulder blade; the right buttock, puncturing the intestine several times; and the left thumb. The Hobaughs had no weapons, and no other weapons were found in the area. Pursuant to a warrant, officers searched Mitchell's residence. They found a trigger housing group for a firearm, a considerable amount of ammunition, a spent .22 caliber bullet in the closet of the spare bedroom, numerous spent .22 cartridges between the slats on the back porch, and an empty box of CCI brand .22 caliber ammunition in the front porch area. A spent bullet casing marked with a small "c" on the bottom was also found approximately 30 to 40 feet from the Hobaugh bodies.
Firearms examiner Gary Miller testified that two of the casings found on the back porch were fired with the trigger housing group, as well as the casing found about 30 to 40 feet from the Hobaugh bodies. Furthermore, the spent cartridge found in the closet was fired from the same firearm as bullet fragments later recovered from the Hobaugh bodies.
Mitchell was charged with the first-degree murders of the Hobaughs. A jury found him guilty of intentional second-degree murder on both counts. Mitchell was sentenced to two consecutive terms of life imprisonment. Mitchell filed a timely notice of appeal. The matter is now before this court.
Mitchell was charged with two counts of premeditated first-degree murder pursuant to K.S.A. 21-3401(a). The trial court refused to give an instruction on voluntary manslaughter.
Mitchell argues that the trial court erred when it refused to instruct the jury on voluntary manslaughter as a lesser included offense of premeditated first-degree murder.
K.S.A. 21-3403 sets forth:
The key elements of voluntary manslaughter are whether the killing was intentional and whether there was legally sufficient provocation. State v. McClanahan, 254 Kan. 104, 113, 865 P.2d 1021 (1993). Whether a provocation is legally sufficient is an objective rather than a subjective determination. To be legally sufficient to intentionally kill an individual, a provocation must consist of more than mere words or gestures, and if assault or battery is involved the defendant must have a reasonable belief that he or she is in danger of great bodily harm or at risk of death. 254 Kan. at 114.
Mitchell argues that an instruction on voluntary manslaughter should have been given because there was no evidence which would have precluded a jury from determining that the killings were committed upon a sudden quarrel or in the heat of passion. The test is not whether there is a lack of evidence which would prevent a jury from convicting the defendant of a lesser crime, but whether there is any evidence, when viewed in a light most favorable to the defendant, by which a reasonable jury could convict a defendant of the lesser crime.
In State v. Haddock, 257 Kan. 964, 897 P.2d 152 (1995), the defendant was found guilty of first-degree murder of his wife. Haddock and his wife had been at home alone over the lunch hour and had eaten a light lunch together. According to Haddock, he left the home about 2 p.m. When the Haddocks' daughters came home later that afternoon, they discovered their mother's body in the garage under a woodpile. Investigators discovered evidence which led them to believe that Haddock's wife had been murdered and that her death was not accidental. Haddock insisted to police that he had not been home at the time of his wife's death and that he had been at Wendy's restaurant. On appeal, Haddock argued that the trial court erred when it refused to give an instruction on voluntary manslaughter. Instructions were given, however, on firstand second-degree murder. This court held that the trial court correctly refused the voluntary manslaughter instruction and stated:
As in Haddock, there is no evidence whatsoever concerning the moments leading up the deaths of the Hobaughs. Mitchell did not testify and there were no eyewitnesses. Neither the State nor the defense presented any evidence which would have led a reasonable juror to find that Mitchell was provoked to a sudden quarrel or acted out of heat of passion.
We hold that the trial court did not err when it refused to give an instruction on voluntary manslaughter when there was no evidence of provocation in the moments just prior to the killings or any facts from which Mitchell could have formed an honest belief that circumstances existed that justified deadly force. There is no evidence that Mitchell was aware of the Hobaughs' statements that they would kill him if he was at home. The Hobaughs were unarmed. See Bell, 266 Kan. at 918 (); Moncla, 262 Kan. at 74 (); State v. Cheeks, 258 Kan. 581, 591, 908 P.2d 175 (1995) (); State v. Dixon, 248 Kan. 776, 783, 811 P.2d 1153 (1991) (); and State v. Cates, 223 Kan. 724, 729, 576 P.2d 657 (1978) ().
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State v. Bernhardt
...exact language of a PIK instruction is not fatal and does not automatically require reversal. Prejudice must still be shown.” State v. Mitchell , 269 Kan. 349, Syl. ¶ 5, 7 P.3d 1135 (2000).“The use of PIK instructions is not mandatory but is strongly recommended. The pattern instructions ha......
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State v. McMillan
...they were reasonably sure of the defendant's guilt. See State v. Decker, 288 Kan. 306, 315-16, 202 P.3d 669 (2009); State v. Mitchell, 269 Kan. 349, 361, 7 P.3d 1135 (2000); Jackson, 37 Kan.App.2d at 747-49, 157 P.3d 660. Most pertinent to this case are those cases in which it was held impr......
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State v. Lowery
...prejudicial. Nevertheless, this court has considered failure to object in determining whether an error is harmless. State v. Mitchell , 269 Kan. 349, 361, 7 P.3d 1135 (2000) ("[T]he prosecutor's remarks did not receive the ‘imprimatur of the trial court,’ as the remarks were never objected ......
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Miller v. State, 103,915.
...was required to prove each element of the premeditated first-degree murder charge beyond a reasonable doubt, citing State v. Mitchell, 269 Kan. 349, 355, 7 P.3d 1135 (2000). It suggests appellate counsel reasonably could have refrained from raising the instruction error because the error wa......