State v. Pope
| Decision Date | 22 November 1996 |
| Docket Number | No. 74056,74056 |
| Citation | 23 Kan.App.2d 69,927 P.2d 503 |
| Parties | STATE of Kansas, Appellee, v. Bridget POPE, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Murder in the second degree is the killing of a human being committed intentionally or unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life. K.S.A. 21-3402.
2. Specific intent as an element of the crime charged is normally a question of fact for the finder of fact to determine and may be shown by acts, circumstances, and inferences reasonably deducible therefrom and need not be established by direct proof.
3. A conviction for intentional second-degree murder requires proof that the defendant intentionally killed a human being.
4. K.S.A. 22-3420(3) mandates that a district court respond to a jury's request for further information as to the law or evidence; however, the manner and extent of the response rest in the sound discretion of the district court.
5. Appellate courts decide only actual controversies and decline to give opinions on moot questions or abstract propositions.
6. An instruction on a lesser included offense is required if there is substantial evidence upon which the defendant might reasonably have been convicted of the lesser offense.
7. Where there is no substantial evidence applicable to the lesser degrees of the offense charged, and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary.
8. Voluntary manslaughter includes the intentional killing of a human being upon a sudden quarrel or in the heat of passion.
9. In order for a defendant charged with murder to be entitled to a jury instruction on voluntary manslaughter because he acted in the heat of passion, his emotional state of mind must exist at the time of the act and it must have arisen from circumstances constituting sufficient provocation.
10. Mere words or gestures, however insulting, do not constitute adequate provocation, but insulting words when accompanied by assault may constitute adequate provocation.
11. Involuntary manslaughter is the unintentional killing of a human being committed recklessly. K.S.A. 21-3404(a).
12. 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.
13. For conduct to be reckless, it must evince disregard of or indifference to the consequences of such conduct, under circumstances involving danger to life or safety of others, although no harm was intended.
14. Unintentional second-degree murder requires extreme indifference to the value of human life, while involuntary manslaughter requires a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.
15. K.S.A. 21-4711(f) provides that out-of-state juvenile adjudications will be treated as juvenile adjudications in Kansas.
16. Kansas law allows juvenile adjudications to be used in calculating a defendant's criminal history.
17. The Full Faith and Credit Clause of the United States Constitution does not require a state to apply another state's law in violation of its own legitimate public policy. U.S. Const. art. IV, § 1.
18. Kansas has a legitimate public policy interest in considering a defendant's juvenile offenses when sentencing that defendant for a criminal conviction.
Randall L. Hodgkinson, Assistant Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.
Timothy J. Chambers, County Attorney, and Carla J. Stovall, Attorney General, for appellee.
Before MARQUARDT, P.J., and ROYSE, J., and CHARLES E. WORDEN, District Judge, Assigned.
The State charged Bridget Pope with intentional second-degree murder or unintentional but reckless second-degree murder in the death of 16-year-old Tracy L. Horyna. A jury found Pope guilty of intentional second-degree murder, and the district court sentenced Pope to 141 months in prison. Pope appeals both her conviction and sentence.
Horyna and Mistyn Stewart attended the same high school and were close friends. Michelle Smyres, a friend of Horyna and Stewart, telephoned Stewart's house and asked to speak to Horyna. Smyres told Horyna that Hilleary McEhlheny wanted to meet Horyna at McEhlheny's aunt's house "to talk." McEhlheny was upset with Horyna because Horyna had kissed McEhlheny's ex-boyfriend. Horyna indicated to Stewart that she did not trust McEhlheny and that she was not going to the meeting.
A group of people met at Pope's house and Pope talked about damaging Horyna's car using a knife, bat, and crowbar. Part of the group left and went to McEhlheny's aunt's house to wait for Horyna. When Horyna did not show up, McEhlheny and some of her friends went looking for Horyna. Pope showed McEhlheny's best friend, Kim Miller, a knife and said that she "was going to make it where Tracy wasn't very pretty any more."
Later that evening, as Horyna was driving around town with Stewart, they noticed that a car was following them. McEhlheny was driving the pursuing car, flashing the headlights and honking the horn. Horyna pulled her car off the road and parked. McEhlheny then pulled her car in front of Horyna's car and stopped.
McEhlheny went back to Horyna's car and started yelling at her through the open window. Pope and another girl, Angela Chaffin, went back to Horyna's car and stood by McEhlheny. Stewart saw that Pope was holding a knife in her hand. Pope asked McEhlheny, "Are you done?" and then told McEhlheny to get back in the car.
As McEhlheny turned to leave, Pope reached into Horyna's car, stabbing her in the heart. As Horyna struggled with Pope, Horyna's car was knocked out of neutral and into drive. Pope ran back to McEhlhany's car. Horyna then drove about a block before she lost consciousness. A forensic pathologist testified that Horyna died from a loss of blood due to a stab wound to the chest. The knife had gone through Horyna's sternum into her heart.
Chaffin testified that when she, Pope, and McEhlheny returned to their car, Pope stated that she had stabbed Horyna in the leg and then started to laugh. April Bass, a friend of Pope, testified that later that evening Pope stated, "I cut her up real good."
Pope argues that intentional second-degree murder requires intent to kill and that the record does not contain sufficient evidence that Pope intended to kill Horyna.
The issue of the requisite intent for second-degree murder requires this court to interpret K.S.A. 21-3402(a). This issue raises a question of law over which this court has unlimited review. See State v. Caldwell, 21 Kan.App.2d 466, 470, 901 P.2d 35, rev. denied 258 Kan. 859 (1995).
"The standard of review when the sufficiency of the evidence is challenged on appeal "Murder in the second degree is the killing of a human being committed: (a) Intentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life." K.S.A. 21-3402. See State v. Jones, 257 Kan. 856, 872, 896 P.2d 1077 (1995).
is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found defendant guilty beyond a reasonable doubt." State v. Pratt, 255 Kan. 767, 768, 876 P.2d 1390 (1994).
Prior to July 1, 1993, second-degree murder was defined as "the malicious killing of a human being, committed without deliberation or premeditation and not in the perpetration or attempt to perpetrate a felony." K.S.A. 21-3402 (Ensley 1988); State v. Shannon, 258 Kan. 425, 429, 905 P.2d 649 (1995).
In State v. Hill, 242 Kan. 68, 81-83, 744 P.2d 1228 (1987), the court held that the prior version of the second-degree murder statute required a showing that the defendant possessed the specific intent to kill a human being before the defendant could properly be convicted of second-degree murder. The Hill court also noted that there is a distinction between intentionally shooting and intentionally killing someone. 242 Kan. at 82, 744 P.2d 1228.
The new statute has not removed the specific intent requirement for intentional second-degree murder convictions under K.S.A. 21-3402(a) (). See Shannon, 258 Kan. at 428-29, 905 P.2d 649.
"Specific intent as an element of the crime charged is normally a question of fact for the finder of fact to determine and may be shown by acts, circumstances, and inferences reasonably deducible therefrom and need not be established by direct proof." Pratt, 255 Kan. at 769, 876 P.2d 1390.
" State v. Scott, 250 Kan. 350, 362, 827 P.2d 733 (1992).
Thus, while a conviction for intentional second-degree murder requires proof that the defendant intentionally killed a human being, this specific intent may be proven by the acts of the defendant and the inferences deducible from those acts. K.S.A. 21-3402(a); Shannon, 258 Kan. at 428-29, 905 P.2d 649; Pratt, 255 Kan. at 769, 876 P.2d 1390.
Pope stabbed Horyna in the heart. Pope stated to the police that while she intended to stab Horyna, she did not intend to kill her. The jury heard testimony from the police officers regarding Pope's statements; however, the jury could have reasonably deduced from Pope's act of stabbing Horyna that she intended to kill her. There is sufficient evidence in the record to...
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