State v. Satterfield

• Decision Date: 23 March 1979
• Docket Number: No. 49902,49902
• Citation: 3 Kan.App.2d 212,592 P.2d 135
• Parties: STATE of Kansas, Appellee, v. Michael L. SATTERFIELD, Appellant.
• Court: Kansas Court of Appeals

Page 135

592 P.2d 135

3 Kan.App.2d 212

STATE of Kansas, Appellee, v. Michael L. SATTERFIELD, Appellant.

No. 49902.

Court of Appeals of Kansas.

March 23, 1979.

Review Denied June 13, 1979.

Syllabus by the Court

1. In K.S.A. 22-3212, the "court" referred to is the district court and includes all judges at that level, be they magistrate, associate or district court judges.

2. Under K.S.A. 22-3212, a pretrial discovery order which has been entered into between counsel and approved by a magistrate judge is to be complied with as fully as one approved by a district judge.

3. The trial court is vested with wide discretion in dealing with the failure of a party to comply with a discovery order, and it may order additional discovery, grant a continuance or allow such other relief as it deems necessary and will not be reversed absent a clear abuse of that discretion.

4. The qualifications of an expert witness and the admissibility of his testimony are matters within the sound discretion of the trial court.

5. An expert witness may render an opinion based on facts within his personal knowledge or observation, or made known to him at the trial.

6. It is error to allow testimony that an accused exercised his right to remain silent in the absence of his attorney.

7. A new trial will not be ordered when it is found from the totality of circumstances that the error described in Syl. P 6 above is harmless beyond a reasonable doubt.

8. In a criminal prosecution for voluntary manslaughter, the record is examined and it is Held that (1) the trial court did not err in instructing on the lesser included offense of involuntary manslaughter; and (2) when the instructions are considered as a whole, the instruction complained of is not an inaccurate or misleading statement of the law.

Robert D. Hecht, of Scott, Quinlan & Hecht, Topeka, for appellant.

Philip E. Winter, Asst. County Atty., and Curt T. Schneider, Atty. Gen., for appellee.

Before MEYER, P. J., and ABBOT and SPENCER, JJ.

ABBOTT, Judge:

This is a direct appeal by the defendant, Michael L. Satterfield, from a jury verdict convicting him of the crime of involuntary manslaughter (K.S.A. 21-3404). He was sentenced under the provisions of K.S.A. 1978 Supp. 21-4618, which prohibits probation to a defendant convicted of committing an Article 34 crime in which a firearm is used.

Defendant's appeal basically involves three issues: (1) Whether the trial court erred in permitting limited testimony concerning defendant's exercising his Fifth Amendment privilege against self-incrimination; (2) whether or not an instruction should have been given on involuntary manslaughter and, if so, whether the instruction given was proper; and (3) whether a pathologist should have been permitted to give an expert opinion.

The facts in many areas are not disputed. Defendant concedes the victim was killed by a bullet fired from a gun in defendant's hand. His defense was that he pointed a pistol at the deceased in self-defense, believing it to be empty, and through no intentional act on his part the hammer released, causing the pistol to discharge. The bullet, a .44-caliber hollow-point, struck the deceased on the nose slightly below a point between her eyes and exited the rear portion of her head slightly to the right and about five degrees above a straight line from the point of entry. Expert testimony placed the gun within two to five feet from the victim when the fatal shot was fired. By way of background, the record reveals the deceased, Diane Buerman, and defendant had lived together for over two years. On the day preceding Diane's death she consulted a physician who prescribed a drug for an upper respiratory illness. The drug was an antihistamine with some pain suppressant in a five percent alcohol base. The evening preceding this tragic event, defendant and the decedent made two trips from their home to purchase beer. Less than one hour into the following day, Diane Buerman was dead.

The defendant testified that the decedent became increasingly agitated during a discussion of their proposed future relationship. He concluded that he had never seen Diane so overwrought. As a number of loaded guns were in the house, defendant decided it would be a good idea to unload them. He went into the bedroom and began unloading the .44-caliber handgun which was kept there by cocking it and rotating the cylinder so that the rounds would drop out. After Diane's death, five live rounds were found on the bedroom floor. The pistol held six shells. Defendant testified he thought the gun was empty and lowered the hammer to the safety position. Later testimony revealed that the cylinder would not rotate nor would the pistol fire until the hammer was returned to a fully cocked position. Defendant testified that just as he placed the hammer in a safety position, he heard Diane scream, "Goddamn you," and turned to find her standing just inside the bedroom holding a rifle which was normally loaded and which she knew how to use. He moved the pistol in front of himself in order to tell her to drop the rifle, and as he did so the pistol discharged, striking Diane in the head and killing her. The defendant also testified that he did not intend to kill her or to even shoot the pistol, which he thought was unloaded, and speculated that his tenseness or jerking motion caused the pistol to discharge.

A few moments before 1:00 a. m. on September 30, 1977, a telephone operator received a call from the defendant requesting that she connect him to the police department, stating that a woman had been murdered and later that, "We had a fight." Other damaging statements were made by the defendant to the effect that Diane went for the M1 and he "just wanted to beat her to the punch," and, "Me and my girl friend got in a fight with guns and I shot her."

When the police arrived the defendant waved them in and said, "Me and my girl friend got in a fight with guns and I shot her." When the police officers entered the bedroom and found Diane on the floor, apparently dead, an empty bolt-action rifle was partially in her hand with the carrying sling across her arm. While defendant was originally charged with first degree murder, that charge was reduced to voluntary manslaughter at the preliminary hearing.

The defense was based on defendant's testimony that Diane was standing upright, holding a rifle. He argued he thought the revolver was empty, that he did not intend to pull the trigger, and that in any event he was defending himself. Over defendant's objection the State presented an opinion from Dr. William G. Eckhart, a board certified pathologist, that Diane was in a position ranging from lying on the floor to sitting when she was shot. This opinion was based solely on his examination of photographs of blood splatters on the wall and floor and from experiments he had previously conducted on blood splatters. If believed by the jury, his opinion was devastating to the defendant, for it was incompatible with defendant's version on a crucial point and would cast doubt on his testimony.

Defendant contends that the opinion testimony by Dr. Eckhart should have been rejected for two reasons. First, he argues the State failed to comply with the discovery agreement which had been reached earlier in that none of Dr. Eckhart's "results" had been released to the defendant as called for in the agreement. The trial judge took the position that as the agreement, which both the State and defense counsel agreed had been reached, took place in front of a magistrate judge, he was therefore not bound by it and, in addition, that counsel had not caused an order to be signed specifying the time, place and manner of making the discovery and inspection permitted, as required by K.S.A. 22-3212(4). Dr. Eckhart had been listed as a witness for more than two months prior to trial, although he was not designated as a physician. We know of no requirement that he be so listed. Defense counsel claims surprise, stating that while he did not interview Eckhart, he would have done so had he know of his expertise. Counsel has a clear duty in a criminal case to interview all witnesses and cannot be heard to claim surprise as a result of his failure to carry out that duty.

The State takes the position that in any event it did not breach the agreement as it had no written report to forward, and that Dr. Eckhart performed his experiments the morning of trial, thus it had no way of knowing the results before trial.

We need not decide whether the trial judge erred in deciding whether the agreement was enforceable when it had not been reduced to writing, for we are of the opinion that he handled the problem correctly under the circumstances even though he did erroneously refuse to recognize the agreement. A pretrial discovery order under K.S.A. 22-3212 which has been entered into between counsel and approved by a magistrate judge is to be complied with as fully as one approved by a district judge. The trial judge's conclusion that "the court" referred to in 22-3212 is the district judge alone is erroneous. "The court" is the district court and includes all judges at that level, be they magistrate, associate or district court judges.

The trial judge continued the trial until the next day to allow defense counsel to interview Dr. Eckhart. Defense counsel requested a week's continuance. The trial judge appears to have suggested to counsel that he interview the witness and see what would be necessary. The trial resumed the following morning and counsel for the defendant did not request additional time nor did he state he desired additional time to obtain other witnesses. His cross-examination of Dr. Eckhart was well prepared and executed.

The record is barren of any effort on the part of defense counsel to obtain an expert, or statements that he could not have obtained one during the remainder of the trial and that a longer continuance would have...