State v. Myers, 54718

• Decision Date: 10 June 1983
• Docket Number: No. 54718,54718
• Parties: STATE of Kansas, Appellee, v. Joe Buddy MYERS, Appellant.
• Court: Kansas Supreme Court

Page 834

664 P.2d 834

233 Kan. 611

STATE of Kansas, Appellee, v. Joe Buddy MYERS, Appellant.

No. 54718.

Supreme Court of Kansas.

June 10, 1983.

Syllabus by the Court

1. Compulsion, to constitute a defense under K.S.A. 21-3209, must be present, imminent, and impending; it must be continuous; and there must be no reasonable opportunity to escape the compulsion without committing the crime.

2. In a criminal case where the defendant proffered evidence to support a compulsion defense, the evidence is examined and held insufficient to establish compulsion as a matter of law.

Charles S. Arthur, III, of Arthur, Green, Arthur & Conderman, Manhattan, argued the cause and was on the brief for appellant.

Dennis C. Sauter, Sp. Asst. Atty. Gen., argued the cause and James E. Flory, Deputy Atty. Gen., and Robert T. Stephan, Atty. Gen., were on the brief for appellee.

MILLER, Justice:

Joe Buddy Myers appeals from his conviction by a jury in Riley District Court of aggravated burglary, K.S.A. 21-3716, kidnapping, K.S.A. 21-3420, and felony murder, K.S.A. 21-3401. The case was previously before us on an interlocutory appeal, State v. Myers, 229 Kan. 168, 625 P.2d 1111 (1981). The issues now raised all relate to the defense of compulsion, as defined in K.S.A. 21-3209.

The trial transcript is over 1,100 pages in length and the facts are quite detailed. We summarize them here. On September 10, 1979, Cristel Watson and her sister, Elke McGuyton, shared an apartment in Manhattan, Kansas, where Cristel was a student at Kansas State University. Cristel's boyfriend, Eric Sands, who lived in Kansas City, had left a parcel containing fifteen pounds of marijuana in the apartment. Cristel was to deliver it to the defendant, Joe Buddy Myers; Myers was to sell the marijuana and then pay Cristel, who in turn would give the money to Sands. Elke's boyfriend, Kevin Kitchens, the homicide victim, was spending the night with her in the apartment. Both Elke and Kitchens were apparently unaware of the marijuana transaction or of the presence of the contraband in the apartment.

Myers telephoned Cristel and made arrangements to pick up the marijuana. He came to the apartment around 11:00 o'clock p.m. on September 10, and Cristel took him to her bedroom where she delivered the marijuana to him. Myers did not see Elke or Kitchens; apparently they were in another bedroom, with the door closed. Myers left the apartment, taking the marijuana with him.

Cristel studied, then went to sleep. She awoke around 2:00 o'clock a.m. to find Myers standing at the foot of her bed. Myers gave her some money; she got up and went over to her desk, where she began counting the money. Myers produced a handgun, which he pointed at Cristel's head. He instructed her to telephone Sands and tell him that he (Myers) did not want the marijuana. Cristel complied. Elke, meanwhile, had come out of her bedroom to go to the bathroom, and she discovered a man, later identified as Lorin Axvig, standing in the hallway. Elke darted into the bathroom. About this time, Myers brought Cristel out of her bedroom and she discovered that Axvig was in the apartment. Myers stated that both girls would have to leave the apartment. Cristel went into Elke's bedroom and got some clothing for Elke. Axvig was pointing a handgun at Kitchens, who was stretched out on the bed. Cristel took the clothing to Elke; Elke dressed, and both women came out of the bathroom. Elke went into her bedroom to get her shoes, and Axvig was still in there, pointing a gun at Kitchens. Myers then took both women out of the apartment, holding Elke with his left hand and his gun with the other. Axvig remained in the apartment. During all of this period of time, Axvig said nothing; Myers did all of the talking, and he seemed calm and collected.

Once outside the apartment building, Cristel broke away, screamed, and quickly disappeared from sight. Myers, meanwhile, held onto Elke; he pushed her into his car, shoved her over into the back seat, and then drove slowly around the parking lot and stopped. Axvig came running out of the building, ran around the car, and got in the front seat with Myers. Myers drove, and proceeded to an area known as the tank trails on the Fort Riley military reservation. Myers stopped the car, and eventually told Elke to get out. She and Axvig got out of the car. Myers drove off, leaving Elke and Axvig at the tank trails. Myers returned in about an hour, driving a different vehicle. The three then drove to Myers' housetrailer, where Elke was taken inside and left with Myers' wife. Myers and Axvig left; Myers returned alone after an hour or more. Mrs. Myers then drove Elke back to her sister's apartment.

In the interim, Cristel went to the apartment of friends and called Sands to report the events to him. With several other young people, she returned to her apartment about an hour later and discovered the body of Kevin Kitchens in Elke's bedroom. He had been shot twice in the back of the head. The police were called and came to the scene. Elke and Mrs. Myers returned to find the police at the apartment. Myers was arrested later the same day, and both he and Axvig were charged with the felony murder of Kevin Kitchens, the kidnapping of the two young women, and aggravated burglary. Axvig was found murdered some months later in the State of Oklahoma.

Both Cristel and Elke testified that Myers was calm and deliberate throughout; Axvig said little, if anything. Myers did all of the talking and appeared to be completely in charge. Neither young woman ever saw Axvig point a weapon at Myers, or otherwise threaten him. Elke testified that she had been in the military service, stationed at Fort Riley, and that she had some familiarity with handguns of the type carried by Myers and Axvig, which she identified as Army-type .45 caliber automatic pistols, clip-fed through the bottom. She did not see a hole in the bottom of Myers' gun, where the clip is inserted, and she thinks that she would have noticed if there had been no ammunition clip in the weapon.

At trial, the defendant indicated that he planned to introduce evidence of compulsion, that Axvig disarmed him immediately before the two men entered the girls' apartment in the early morning hours of September 11, 1979, and that his actions thereafter were directed and compelled by Axvig. Our statute relating to the defense of compulsion is K.S.A. 21-3209. It provides:

"(1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.

"(2) The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat."

The trial court, after receiving the defendant's proffered testimony on compulsion out of hearing of the jury, ruled that the defense of compulsion is not available to one charged with felony murder; that neither Myers nor his family were under any threat of immediate harm; and that Myers was provided with various reasonable opportunities to escape or withdraw from the criminal activity and failed to do so. The court concluded that the proffered evidence did not establish compulsion, that the defense of compulsion was not available under the proffered facts, and that the proffered evidence could not be used for the purpose of establishing a...