State v. Myrick, s. 50,637

• Decision Date: 28 August 1980
• Docket Number: 50,483,Nos. 50,637,s. 50,637
• Citation: 228 Kan. 406,616 P.2d 1066
• Parties: STATE of Kansas, Appellee, v. Walter MYRICK, a/k/a Tommy McClendon, a/k/a Tommy Spear, Appellant. STATE of Kansas, Appellee, v. Jimmie K. NELMS, a/k/a Blanche Wallace, a/k/a Steven Cooper, Appellant.
• Court: Kansas Supreme Court

Page 1066

616 P.2d 1066

228 Kan. 406

STATE of Kansas, Appellee, v. Walter MYRICK, a/k/a Tommy McClendon, a/k/a Tommy Spear, Appellant.

STATE of Kansas, Appellee, v. Jimmie K. NELMS, a/k/a Blanche Wallace, a/k/a Steven Cooper,

Appellant.

Nos. 50,637, 50,483.

Supreme Court of Kansas.

Aug. 28, 1980.

Syllabus by the Court

1. Defendants may be joined and tried together pursuant to K.S.A.1979 Supp. 22-

3202(3): (1) when each of the defendants is charged with accountability for each offense included, or (2) when each of the defendants is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to be in furtherance of the conspiracy, or (3) when in the absence of a conspiracy it is alleged the several offenses charged were part of a common scheme or were so closely connected in time, place and occasion that proof of one charge would require proof of the others. Following State v. McQueen & Hardyway, 224 Kan. 420, 423, 582 P.2d 251 (1978).

2. Separate trials should be granted under K.S.A. 22-3204 when severance appears necessary to avoid prejudice and ensure a fair trial to each defendant. The usual grounds for severance are discussed herein.

3. A change of venue will be granted a defendant when he or she can show prejudice has reached the community to the degree that it is impossible to get an impartial jury. Such prejudice may not be established by speculation but must be shown by specific facts and circumstances.

4. In determining the amount of security measures necessary to ensure safety and preserve dignity, order and decorum in a criminal trial, the trial judge must balance the accused's right to the presumption of innocence until guilt is proved beyond a reasonable doubt with the duty to protect the lives of the trial participants.

5. Evidence of a prior criminal offense is admissible, pursuant to the requirements of K.S.A. 60-455, to prove motive for the crime when such evidence is material.

6. In ruling on the admissibility of evidence of a prior conviction under K.S.A. 60-455, a district court must (1) determine it is relevant to prove one of the facts specified in the statute, (2) determine that fact is a disputed material fact-i. e. that it is substantially in issue, and (3) balance the probative value of the prior conviction evidence against its tendency to prejudice the jury.

7. A trial judge in passing on a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact therefrom, a reasonable mind, or rational trier of facts, might fairly conclude guilt beyond a reasonable doubt. Following State v. Tillery, 227 Kan. 342, 606 P.2d 1031 (1980).

8. When the sufficiency of evidence is questioned on appeal, the appellate court must be convinced that when the evidence is viewed in the light most favorable to the prosecution, a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

9. Contemporaneous statements admitted pursuant to K.S.A. 60-460(d)(2) must be so closely connected with the time and place of the crime as to be a part of the res gestae.

10. When a defendant moves for a new trial on the grounds of newly discovered evidence, pursuant to K.S.A. 22-3501, he or she bears the burden of proof to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial.

11. A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon retrial.

12. In a criminal trial the record is examined and it is held the trial court did not err in: 1) Joining and trying the defendants together; 2) failing to order a separate trial; 3) refusing to grant a change of venue; 4) taking necessary security measures; 5) admitting evidence of a prior offense; 6) denying the motion for judgment of acquittal; 7) limiting cross-examination of witnesses; 8) denying the motion for new trial.

Wallace F. Davis, El Dorado, argued the cause and was on the brief for appellant Jimmie K. Nelms.

Olin Stansbury, El Dorado, argued the cause and was on the brief for appellant Walter Myrick.

Norman G. Manley, Deputy County Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Geary N. Gorup, County Atty., were with him on the brief, for appellee.

HERD, Justice:

Defendants Jimmie K. Nelms and Walter Myrick were tried together and convicted by a jury of premeditated and felony murder (K.S.A. 21-3401); aggravated kidnapping (K.S.A. 21-3421) and unlawful possession of a firearm (K.S.A. 21-4204(1)(b)). Both defendants were sentenced to two life terms for murder and aggravated kidnapping and 6 to 20 years for unlawful possession of a firearm, to run consecutively. The convictions arose from the circumstances surrounding the death of Kansas Highway Patrolman Conroy G. O'Brien.

At approximately 6:00 a. m. on May 24, 1978, Steven Cahoon, a security guard company manager traveling the Kansas Turnpike, found Conroy G. O'Brien dead in a ditch in northern Butler County at mileage marker 94.5. O'Brien had been struck on the back of the head and shot twice through his left ear. The facts surrounding this tragic incident were later revealed at trial as follows. Shortly after daybreak on the 24th, O'Brien stopped a 1973 white over gold Mercury Marquis for speeding. Walter Myrick 25, was the driver. Jimmie K. Nelms, 31, was the owner of the car and back seat passenger at the time the car was stopped. Stanford Swain, 21, was the front seat passenger. The three occupants had met in Tulsa, Oklahoma the previous evening where they agreed to travel together. Nelms was having domestic problems and had decided to go to California. Myrick and Swain agreed to buy half the gasoline in exchange for a ride to Denver. With Nelms driving, the three departed Tulsa and drove west to I-35 highway, then turned north. During the trip, each man smoked a couple of marijuana cigarettes. The three traveled northward, intending in Wichita to proceed on I-135 to Salina and then turn west to Denver on I-70.

Somewhere between Perry, Oklahoma, and Wellington, Kansas, Nelms turned the driving over to Myrick and retired to the back seat for some needed sleep. Myrick missed the I-135 exit at Wichita and followed the turnpike toward El Dorado and Matfield Green. At about 5:00 a. m. Myrick noticed a highway patrol car approaching from the rear with its signal light flashing. He alerted Swain and Nelms, pulled to the side of the road and stopped. Trooper Conroy O'Brien stopped his car directly behind Nelms' vehicle. He advised Myrick he was speeding and asked him to step back to the patrol car. Myrick complied, entering the trooper's car on the passenger side. O'Brien sat on the driver's side to make out the ticket.

When Myrick left the car, Nelms muttered to Swain, "I am going to kill that mother fucker." He took his gun from the glove compartment and walked back to the passenger's side of the trooper's car. O'Brien told Nelms to come around to the driver's side. Nelms complied, walking in front of the trooper's car. He walked past the driver's door, stopped as he reached the back door, turned and brandished his handgun, surprising O'Brien. O'Brien was ordered to get out of the car and to place his hands on the top of his head. Nelms and O'Brien then walked behind the trooper's car with Nelms directing O'Brien to proceed to the ditch. As they passed the passenger side of the car, Myrick got out and followed the two of them quite closely. At this point, Swain could see from Nelms' car that O'Brien's gun had been taken from him but Myrick remained unarmed. Nelms directed O'Brien to lie down in the ditch. O'Brien pleaded: "Don't treat me this way." Nelms struck the trooper across the back of his head with the barrel of O'Brien's pistol which Nelms had obtained. When O'Brien fell to the ground, Nelms fatally shot him twice through the head with the same pistol.

Thereafter, Nelms and Myrick hurried back to Nelms' automobile. Nelms explained he had to kill the trooper and got behind the wheel. Swain remained a front seat passenger and Myrick got in the back seat. The three hurriedly left the murder scene. In their haste to find a way off the turnpike, they drove past the Emporia exit. They eventually stopped at the Emporia service area where they bought $12 worth of gasoline. While at the service station, Nelms studied the map which led him to turn around and go back to the Emporia exit where they left the turnpike and proceeded west on U.S. Highway 50.

Nelms' car was not running well. After going a few miles west on U.S. 50, Nelms turned off the highway onto a dirt road for the stated purpose of stealing a car, killing the owner, if necessary, in the process. They drove to a farmhouse and luckily no one was home. They returned to U.S. 50 and turned west to U.S. Highway 77, then north toward Herington. A few miles after turning north, the trio met highway patrolman Charles Smith. Smith was instantly suspicious and made a U-turn and followed defendant's vehicle. The defendants observed Smith's action and turned off the highway onto a dirt road. At this juncture, Myrick threw Trooper O'Brien's gun out of the car window. Ironically, the country road turned out to be a dead end. With Trooper Smith rapidly approaching, Nelms drove his car first through a metal gate, then a wire gate, and out into a pasture, where he spun around and started back to the road. At this point Swain jumped from the car and ran to a nearby creek where he hid until captured. Nelms' car and the patrol car stopped after a head-on collision at the gate and a gun battle ensued. Smith saw both Nelms and Myrick brandish firearms and saw one shot fired from Nelms' side of the car. He got behind the dashboard and heard a few more...