State v. Norris

• Decision Date: 25 January 1989
• Docket Number: No. 61472,61472
• Citation: 768 P.2d 296,244 Kan. 326
• Parties: STATE of Kansas, Appellee, v. Duke D. NORRIS, Appellant.
• Court: Kansas Supreme Court

Page 296

768 P.2d 296

244 Kan. 326

STATE of Kansas, Appellee, v. Duke D. NORRIS, Appellant.

No. 61472.

Supreme Court of Kansas.

Jan. 25, 1989.

Syllabus by the Court

1. A defendant's Fifth Amendment right to counsel, which attached upon custodial interrogation for an earlier offense, terminates upon defendant's release from custody for that offense. When defendant has not remained in continuous police custody, and interrogation begins concerning a later unrelated offense, the right to counsel will only vest again upon request by defendant.

2. Under the facts of this case, because adversarial proceedings had not yet been initiated at the time of defendant's interrogation, his Sixth Amendment right to counsel had not yet vested.

3. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily, and knowingly given, and admits the statement in evidence, the appellate court should accept the trial court's determination if supported by substantial competent evidence.

4. Where a confession/statement is challenged as involuntary, the prosecution must prove by a preponderance of the evidence that the confession was voluntary.

5. The fact a defendant is in pain, has been drinking, and is tired from lack of sleep does not per se establish involuntariness of a confession.

6. In considering the effect of a promise made by the police to an accused during an interrogation, various factors must be considered in determining the voluntariness of a subsequent confession. To render a confession involuntary, it is generally held that the promise must concern action to be taken by a public official, that the promised action must be such as would likely cause the accused to make a false statement to obtain the benefits of the promise, and that the promise must be made by a person whom the accused reasonably believed to have the power of authority to execute the same.

7. The fact a defendant objects to the giving of an instruction does not, of itself, preclude the giving of the instruction when proper.

8. Although PIK Crim.2d 52.09 is the preferred instruction on witness credibility, it was not error, under the facts of this case, to give an instruction which included a charge that the jury may take into account "any interest [the witnesses] may have in the result of this trial."

9. It is not reversible error to instruct that the element of malice may be inferred from the fact of a killing effected by a deadly weapon. However, the giving of this type of instruction is discouraged. The use of a deadly weapon is one of the evidentiary facts from which the jury could infer malice. It is the better practice not to give a separate instruction thereon.

10. PIK Crim.2d 54.01, as approved in State v. Ransom, 239 Kan. 594, 722 P.2d 540 (1986), creates a permissible inference, not a rebuttable presumption, and is not constitutionally improper.

11. The general rule on jury instructions is that the trial court must instruct on the law applicable to all theories of the parties that are supported by the evidence. However, evidence merely tending to refute or deny one of the elements of the crime does not necessarily constitute an affirmative defense entitled to a separate instruction.

12. An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, we presume that the action of the trial court was proper.

13. Expert testimony is not required for footprint testimony and a lay witness is generally allowed to give such testimony provided the witness' conclusion is based on measurements or peculiarities of the prints.

14. A prosecutor is entitled to considerable latitude in arguing to a jury. There is no prejudicial error where the remarks in question are made in response to previous arguments of defense counsel.

Martha J. Coffman, Asst. Appellant Defender, argued the cause, and Benjamin C. Wood, Chief Appellant Defender, was with her on the brief for appellant.

Debra L. Barnett, Asst. Dist. Atty., argued the cause, and Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief for appellee.

SIX, Justice:

Duke D. Norris appeals from his convictions for first-degree felony murder and aggravated robbery.

Norris claims: (1) his statements made to Wichita police detectives should have been suppressed; (2) the trial court erred in instructing the jury; (3) his counsel should have been allowed to examine the victim's psychiatric records; (4) evidence as to comparison and identification of shoe prints should have been excluded; and (5) the prosecutor's remarks during closing argument constituted prejudicial error.

We find no error and affirm.

FACTS

On the morning of March 17, 1987, Duke Norris and Bobby Grimes applied for jobs in Wichita. After filing their applications, they secured a ride to the house of the victim, Dean Harness. Grimes and Harness had met at church in 1985. Grimes began spending time at the Harness home, discussing the Bible and helping Harness with household chores. Harness gave Grimes presents, including clothes and jewelry, loaned him money, and gave him rides. According to Anna Harness, Grimes encouraged her husband to drink, took advantage of him, and harassed both herself and her husband. At one point, Grimes and Harness had a telephone conversation that upset Harness so much his wife hospitalized him for psychiatric care.

Norris and Grimes arrived at Harness' house at approximately 10:30 a.m. They occupied the morning and early afternoon by drinking beer and whiskey, playing games, and shopping at a liquor store. Norris told Grimes that he wanted to "roll" Harness to get his money. Grimes testified he told Norris not to do it. Norris testified that Grimes said Norris had better do it before Anna Harness came home from work; Harness had asked Grimes and Norris to leave before his wife returned home.

As the visitors were preparing to leave, Norris jumped Harness and hit him over the head with a lamp. When he first approached Harness, Norris had a lock-blade knife in his hand. Grimes was scared and ran out of the house. After Harness fell to the floor, Norris checked Harness' wallet and searched the house for valuables. He also changed into a pair of Harness' pants because his were bloody.

Norris testified that he did not stab Harness; he stated he entered the kitchen to find something to wrap around his bleeding hands, which had been cut when he broke the lamp in the attack on Harness. He then left the house and walked to Grimes' apartment.

Grimes testified that, after running a few blocks, he decided to return to the Harness house. Grimes saw Harness lying in a pool of blood on the living room floor.

A next-door neighbor testified she was talking on the phone while looking out her living room window when she saw a man fitting Grimes' description walking to the south at approximately 2:30 p.m. on the day of the murder. About ten minutes later, she saw him walking back north. About fifteen minutes later, she saw him walking south again. After she saw Grimes walk south the second time, she saw a man fitting Norris' description also walking to the south. Another neighbor testified she saw a man fitting Grimes' description running through the grass to the south between 2:00 and 3:00 p.m. the day of the murder. This second neighbor said the man went about two doors down, then turned around and came back.

Tina Grimes, Bobby Grimes' wife, testified that Bobby arrived home at approximately 4:00 p.m. that day. Norris arrived at the apartment about one-half hour later. His hands were cut. Norris told her he had been in a fight at South High School.

Dennis Grimes, Bobby's brother, testified that when Bobby arrived at Dennis' house Bobby asked to speak to Dennis privately. He told Dennis what had happened and that Norris had "screwed up." Dennis called the Harness home. A police officer answered the phone. The police came to Dennis' house and picked up Bobby for questioning.

Anna Harness testified she arrived home at approximately 4:00 p.m. on the day of the murder. She found her husband lying in the living room. Blood was everywhere. Furniture and knickknacks were broken. She ran to a neighbor's house and called an ambulance and the police.

The attending emergency room physician testified that Harness had bled to death at the scene. She noted Harness had severe facial injuries and several stab wounds in his back. The most severe wound was in the right flank. The cause of death was severe hemorrhaging.

Norris' grandmother took him to the Minor Emergency Center at approximately 6:00 p.m. the evening of the crime. While his hands were being treated, a Wichita police officer and a detective arrived. They told Norris that they wished to speak to him about how he injured his hands. A uniformed officer was also present. They waited for approximately two hours while Norris was being treated. Although they did not attempt to initiate any conversation with Norris, Norris did volunteer the information that he had been assaulted by several males and stabbed with a knife. After Norris was released, he was placed under arrest and advised of his rights pursuant to Miranda; he did not make a statement at this time. He was taken to St. Francis Medical Center for further medical attention and was then transported to the City Building.

Norris was taken into an interview room at the police station at 11:05 p.m. and handcuffed to a table. Shortly before midnight, a detective took him to the bathroom. Norris was given crackers and a soft drink. The detectives began their interrogation. They filled out a personal history sheet and again advised Norris of his Miranda rights. In the course of the interrogation, Norris made statements to the detectives about his involvement in the crime.

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