State v. Sanders

• Decision Date: 27 October 1995
• Docket Number: No. 71975,71975
• Citation: State v. Sanders, 258 Kan. 409, 904 P.2d 951 (Kan. 1995)
• Parties: STATE of Kansas, Appellee, v. Lyle C. SANDERS, Appellant.
• Court: Kansas Supreme Court

Page 951

904 P.2d 951

258 Kan. 409

STATE of Kansas, Appellee, v. Lyle C. SANDERS, Appellant.

No. 71975.

Supreme Court of Kansas.

Oct. 27, 1995.

Syllabus by the Court

1. K.S.A. 21-3107(3) requires the trial court to instruct the jury not only as to the crime charged but also as to all lesser included crimes of which the accused might be found guilty. The statutory duty to instruct on lesser included offenses is an affirmative duty of the trial court and applies whether or not the defendant requests the instructions.

2. The duty to instruct on a lesser included offense does not arise unless there is substantial evidence supporting the lesser offense upon which the defendant might reasonably have been convicted of the lesser crime.

3. The evidence supporting the lesser included offense must be viewed in the light most favorable to the defendant. The evidence may be inconclusive, unsatisfactory, and weak and consist only of the defendant's testimony.

4. First-degree premeditated murder is the killing of a person committed maliciously, willfully, deliberately, and with premeditation. K.S.A.1992 Supp. 21-3401. Under K.S.A. 21-3402, second-degree murder, a lesser offense of first-degree murder, is the malicious killing of a human being committed without deliberation or premeditation.

5. K.S.A. 60-261 sets out the harmless error rule. Error in the admission or exclusion of evidence by the court is not grounds for granting a new trial or setting aside a verdict unless refusal to take such action appears to the court inconsistent with substantial justice. At every stage of the proceeding the court must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. When reviewing the erroneous admission or exclusion of evidence, the error is harmless if no substantial right of the defendant is involved.

6. Error in the admission or exclusion of evidence in violation of a constitutional or statutory right of a party is governed by the federal constitutional error rule. An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that the error is harmless. Before an appellate court may declare such an error harmless, the court must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. Where the evidence of guilt is of such direct and overwhelming nature that it can be said that evidence erroneously admitted or excluded in violation of a constitutional or statutory right could not have affected the result of the trial, such admission or exclusion is harmless.

Rick Kittel, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

Debra S. Peterson, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with her on the brief, for appellee.

LOCKETT, Justice.

Defendant appeals his jury convictions for first-degree premeditated murder (K.S.A.1992 Supp. 21-3401) and aggravated weapons violation (K.S.A. 21-4202) and the sentence imposed. Defendant claims the district judge (1) failed to instruct on the lesser offenses of second-degree murder and unlawful use of a weapon; (2) failed to grant a motion for judgment of acquittal of the aggravated weapons charge; (3) improperly allowed testimony of a witness who had violated the court sequestration order; (4) improperly admitted hearsay statements; and (5) imposed an illegal sentence.

At approximately 6:30 a.m. on February 7, 1993, Latonya Edmond's 5-year-old nephew, Shawn, discovered Latonya lying on her living room floor in a pool of blood. A ball cap, black and white with a red stop sign in the middle, was underneath Latonya's left hand. Shawn telephoned Latonya's mother. When she arrived, the front door of the house was not locked. Emergency personnel were called. Latonya died before they arrived. Officers noted that the utensil drawer in the kitchen was open.

Latonya had injuries to both eyes, her mouth, and her chest. These injuries had been caused by kicking or punching. Latonya would have been rendered unconscious or stunned by the blow to her right eye. On the right side of Latonya's neck were three or four slight cuts and one deep cut which was approximately 3 inches long and passed through the right carotid artery and jugular vein. The deep cut caused Latonya's death from external bleeding and appeared to have been made with a serrated-edged instrument such as a serrated knife or pinking shears. The cuts were inflicted while Latonya was lying on the floor.

The investigation by the police revealed that on the day before her death, Latonya visited her husband, Otha Edmond, who was imprisoned in Winfield, Kansas. She arrived at 1:00 p.m. and returned to Wichita around 4:00 p.m. Between 5:30 and 6:00 p.m. Latonya's sister-in-law, Pam Reed, drove Latonya home. As Pam was leaving, she saw Lyle Sanders near Latonya's house. Sanders explained to Pam that his car was running hot and he was going to get some water at Latonya's. Sanders was wearing a ball cap similar to the one found under Latonya's left hand after her death. When Pam saw Sanders around 9:00 that evening, he was wearing the cap.

Latonya had two telephone conversations with her husband. The first conversation occurred around 6:00 p.m. She told Otha that Sanders was sitting in front of her house. Sanders had been married to Latonya's husband's sister. A friend heard Latonya yell out the front door to Sanders that Otha said Sanders was not to come back to his (Otha's) house. Latonya spoke with Otha again around 10:00 p.m. At 11:00 p.m., Latonya spoke with her mother and sisters on the telephone. Pam called Latonya no later than 2:30 a.m. They spoke for 10 or 15 minutes. Pam was the last person to speak with Latonya.

The police interviewed Otha, who informed authorities that his wife had told him Sanders was making sexual advances toward her. Otha stated that his home telephone number had been changed to an unlisted number because Sanders was repeatedly calling the house. In addition, Pam informed the police that a couple of days before her death Latonya had told her (Pam) that Sanders was saying she (Latonya) was his "woman."

DNA testing of the clothes Sanders was wearing on February 6 revealed no blood which could have been Latonya's. Two small amounts of blood found on the eject button of the cassette player in Sanders' car were tested. One blood type was consistent with Latonya's type, found in approximately 3% of the black population. The other was consistent with Sanders' type. At trial, Sanders presented testimony which indicated that the DNA testing procedures were flawed because of contamination and because the examiner failed to follow proper protocol.

Sanders voluntarily spoke with police on February 7, 1993. He stated that he purchased a $10 rock of crack cocaine from Latonya and a second rock of crack at Martha Edmond's house. Sanders said that he had gone to Latonya's house before 5:30 p.m. to use the bathroom and borrow a screwdriver from her kitchen drawer to reconnect his stereo. Sanders denied that he had returned to Latonya's that night.

Sanders asserted that he had spent the evening at the house of his girlfriend, Queenie Moore. He left Queenie's several times to go to Moses Moore's house, a church, Martha Edmond's house, and his parents' house. Queenie had returned home at 11:00 p.m. From 11:15 p.m. to 12:15 a.m. Sanders was at Moses' picking up Queenie's daughter. He then studied for his Sunday School lesson. At 1:30 a.m. Sanders went to sleep on the floor of Queenie's bedroom.

At trial, the defendant's mother, father, and other witnesses corroborated the defendant's statement to police. Queenie testified that Sanders went to bed at 1:30 a.m. in her bedroom. The defendant slept on the floor because Queenie's daughter was sleeping in the bed with her. Queenie asserted that she would have heard the defendant if he had left the room that night because the door pulls the carpet when it is opened. The defendant's investigator also testified that when the door to Queenie's bedroom is moved, it makes a loud noise because of the carpet.

Sanders testified as to his activities the night of Latonya's death. He stated that he stopped by Latonya's house around 6:00 p.m. on his way to his parents' house. Sanders testified that he always stopped by Latonya's to check on her when he was in the area. Sanders stated that he used her bathroom and borrowed a screwdriver from the kitchen drawer to reconnect his stereo. Sanders admitted he was wearing a black and white ball cap with a red stop sign in the center during the day. After leaving Latonya's, Sanders had realized that he did not have the cap. He thought he had left it at Queenie's or in his car. Sanders denied telling the police that he had purchased cocaine that night. He testified that he went to sleep in Queenie's room. He woke up early in the morning and got up around 8:30 a.m. Sanders denied ever going back to Latonya's house after 6 p.m., and he denied that he killed Latonya.

The jury found Sanders guilty of first-degree premeditated murder and aggravated weapons violation. Sanders was sentenced to consecutive terms of life for the murder conviction and 1 to 5 years for the aggravated weapons conviction. The life sentence for murder was tripled under the Habitual Criminal Act. The defendant appeals.

SECOND-DEGREE MURDER

The defendant first claims that the trial court erred in failing to instruct the jury on the offense of second-degree murder as a lesser included offense of first-degree murder.

K.S.A. 21-3107(3) requires the trial court to instruct the jury not only as to the crime charged but also as to all lesser included crimes of which the accused might be...