State v. Reed

• Decision Date: 06 April 1974
• Docket Number: No. 47333,47333
• Citation: 520 P.2d 1314,214 Kan. 562
• Parties: STATE of Kansas, Appellee, v. Nathaniel REED, Appellant.
• Court: Kansas Supreme Court

Page 1314

520 P.2d 1314

214 Kan. 562

STATE of Kansas, Appellee, v. Nathaniel REED, Appellant.

No. 47333.

Supreme Court of Kansas.

April 6, 1974.

Syllabus by the Court

The record of trial wherein appellant was convicted of the offense of felony first degree murder is examined and it is held: (1) no unlawful discrimination was shown in the recial make-up of the jury panel; (2) the trial court did not err in refusing to instruct on lesser included offenses (3) abuse of discretion is not shown in ruling limiting the voir dire examination of the jury; (4) allowing an amendment of the information to insert the year '1972' was not prejudicial; (5) testimony concerning a photograph of the deceased was not inflammatory or prejudicial; (6) sufficient foundation was shown for the admission of challenged exhibits into evidence.

Michael J. Peterson, Kansas City, argued the cause, and Jay H. Vader, Kansas City, was with him on the brief for the appellant.

Nick A. Tomasic, Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for the appellee.

FOTH, Commissioner:

Appellant was convicted by a jury of felony first degree murder and he appeals.

His prosecution arose out of the September 4, 1972 robbery of $33.30 from the U-Totem Store No. 502 at 846 Central Avenue, Wyandotte County, Kansas. During the course of this robbery the appellant exhibited, in a threatening manner, a .22 caliber revolver with black electrician's tape on the handle. When the fruits of the robbery turned out to be much less than expected the appellant held the revolver to the head of the store clerk, one Dennis Ingram, and demanded the rest of it. When the rest was not forthcoming the appellant pulled back the hammer on the revolver and fired. The bullet struck the victim in the eye and caused his immediate demise.

The appellant and his confederate in crime, Bobby Charles Osbey, were apprehended immediately upon leaving the store. A more detailed account of the facts of this crime are set out in the companion case of State v. Osbey, 213 Kan. 564, 517 P.2d 414, where the conviction of the appellnt's confederate was affirmed.

Overall the appellant claims six trial errors. Of these, four were considered in some degree by this court in State v. Osbey, supra, and no error was found. Two are peculiar to this case will be considered first.

Appellant, a black man, first contends that the trial court should have sustained his objection to the jury panel because it was not representative of the racial make-up of the surrounding community. This contention is based upon the fact that the sixty member jury panel contained five blacks, or 8.5%, while the community at large, according to the appellant's estimate, is 20 to 25% black.

In dealing with such claims of discrimination this court looks to the method of selection of the jurors and not merely the racial make-up of a particular jury panel. A defendant is not necessarily entitled to be tried by a jury with even a single member of his race thereon. Lee v. State, 204 Kan. 361, 461 P.2d 743; Scoggins v. State, 203 Kan. 489, 454 P.2d 550; Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. He is entitled, however, to have a jury panel drawn from a list which is free from systematic and purposeful discrimination. Lee v. State, supra; State v. Stewart,208 Kan. 197, 491 P.2d 944. No evidence of such discrimination appears in this record.

The appellant makes no claim that the list from which these jurors were drawn was not reflective of the racial make-up of the community. He makes no claim that the method used in selecting this panel from the master list was in any way desinged to purposefully exclude members of his race. The trial court, in considering the appellant's motion for a new trial, took judicial notice of the fact that this panel was obtained by use of a data processor and that 'we have no way of telling how many blacks and how many whites we are going to get. This is takem from the census enumeration rolls and the votor registration rolls.'

The appellant bases his claim on the racial make-up of this one jury panel. That is not enough. Further, even if his claim were discrimination in the compilation of the master roll from which the panel was drawn, some proof would be required. A bald assertion in appellant's brief does not establish a prima facie case. Scoggins v. State, supra; State v. Brothers, 212 Kan. 187, 510 P.2d 608.

Appellant's second new contention is that the trial court should have instructed on lesser included offenses.

While it is the requirement of K.S.A. 1973 Supp. 21-3107(3), that instructions on lesser included offenses be given, this duty arises only where there is evidence of circumstances under which the appellant might have reasonably been convicted of the lesser offense. State v. Masqua, 210 Kan. 419, 502 P.2d 728.

In the past this court has held that in a murder committed during the commission of a felony the usual rule requiring instructions on lesser included offenses does not apply. State v. Germany, 173 Kan. 214, 245 P.2d 981; State v. Masqua, supra. If a murder is committed while engaged in a felony the felonious conduct itself is held tantamount to the elements of deliberation and premeditation which are otherwise required for first degree murder. State v. Osbey, supra; State v. Keleher, 74 Kan. 631, 87 P. 738.

Therefore, to support a conviction for felony murder all that is required is to prove that a felony was being committed which was inherently dangerous to human life, and that the homicide was a direct result of the commission of that felony. State v. Moffitt, 199 Kan. 514, 431 P.2d 879, Syl. 5. If such proof is produced the only possible conviction can be that of first degree murder under the felony murder rule.

This reasoning is aptly explained in State v. Masqua, supra, where the appellant was charged with first degree murder and forcible rape. His request for an instruction on the lesser indicluded offenses of second degree murder and manslaughter was denied. This court, in upholding the trial court's denial of the instruction, stated:

'. . . It follows that if the appellant was present at the rape, the mere participation in that felony would supply the elements of deliberation and premeditation, both of which must be absent from second degree murder and manslaughter. Either the rape was perpetrated by the appellant and he necessarily is responsible for the murder, or he was not present at the rape where the killing occurred and not guilty of any degree of homicide.' (210 Kan. p. 425, 502 P.2d p. 733.)

So here, either appellant was present when the robbery and attendant murder occurred, of the victim which would tend included offenses would have been inappropriate.

The remaining four allegations of error were all considered in State v. Osbey, supra. We note them briefly here, and the reader is referred to the opinion in Osbey for a more detailed explanation of the court's reasoning.

The first of these results from the voir dire examination of the prospective jury. The trial court refused to allow defense counsel to question the jury panel as to their feelings concerning the requisite intent for an individual to commit a crime. In dealing with this identical issue in Osbey, the court invoked the rule that the 'extent of examination of jurors on voir dire rests largely in the discretion of the trial court and this court will not interfere unless abuse of discretion is clearly shown (State v. Guffey, 205 Kan. 9, 468 P.2d 254).' (213 Kan. p. 569, 517 P.2d p. 146.) The court found that no prejudice or abuse of discretion on the part of the trial court appeared.

The second is based upon the trial court's granting permission to the district attorney to amend...